Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, I rise today to speak to second reading of Bill S-13, an Act to amend the Interpretation Act and to make related amendments to other Acts.

It has been a few months since Senator LaBoucane-Benson spoke to this legislation on June 20, so allow me to provide you with a bit of an overview to refresh your memory.

Bill S-13 will, first of all, amend the Interpretation Act to include a non-derogation clause on upholding the Aboriginal and treaty rights found in section 35 of the Constitution Act, 1982. That clause will read as follows:

Every enactment is to be construed as upholding the Aboriginal and treaty rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.

In addition to establishing a blanket non-derogation clause, or NDC, Bill S-13 will remove the existing non-derogation clauses from 26 different pieces of legislation. Only three existing laws with non-derogation clauses will retain those NDCs.

On the surface, the government’s rationale for this legislation is, by and large, solid.

First of all, the legislation will provide a uniform standard for the interpretation of all federal legislation. By including a blanket non-derogation clause in the Interpretation Act, all federal laws will be read as including an NDC.

Second, the legislation will create a standardized non-derogation clause.

NDCs have been added to legislation in an ad hoc manner for decades. They first began to show up in a small number of federal laws in the 1970s and early 1980s — although at that time they obviously did not reference the Constitution Act, 1982. After the patriation of the Constitution Act and the adoption of the Charter of Rights and Freedoms of 1982, NDCs once again started to be included in federal legislation in 1986.

Over the years, the wording of these NDCs has changed. And while nobody has advocated that NDCs should be used to either extend or diminish existing rights, the arguments have gone back and forth regarding whether that might be the real-world outcome.

For example, when the Standing Senate Committee on Legal and Constitutional Affairs studied this issue between 2003 and 2007, they noted in their report that they “. . . heard significantly divergent testimony from government and non-government witnesses with respect to the purpose and effect of non-derogation clauses.”

Indigenous groups saw the inclusion of NDCs:

. . . as a minimum stipulation that the law should be interpreted so as not to negatively affect their constitutional Aboriginal and treaty rights.

On the other hand, Justice officials “. . . considered these clauses largely superfluous reminders of section 35 of the Constitution Act, 1982.”

The committee noted that as the wording of the NDCs began to be changed, Indigenous groups became concerned that because of the lack of consistency in the wording:

. . . the courts would or could attribute different interpretations to differently worded non-derogation clauses in order to make sense of the differences in various statutes.

As a result of this testimony, the Senate Legal Committee recommended that the government introduce a standardized non‑derogation clause, which is what Bill S-13 will do.

The third component of the government’s rationale for this bill is that amending the Interpretation Act to include a blanket NDC will remove “. . . the need for Indigenous peoples to press for NDCs whenever the government introduces legislation.”

There are clear advantages to this. However, I would note there is also a counter-argument for what has been called “continual reiteration” of non-derogation clauses rather than utilizing a single statement. Since the non-derogation clause primarily serves as a reminder of existing rights and does not confer any new rights, repeating a standardized non-derogation in every piece of legislation may be more effective than a single iteration, which is soon out of sight and out of mind.

The fourth part of the government’s rationale is that including an NDC in the Interpretation Act helps to fulfill an obligation under the United Nations Declaration on the Rights of Indigenous Peoples which requires that measures be taken to ensure the consistency of laws with the UN Declaration on the Rights of Indigenous Peoples.

Colleagues, in principle, I believe that we can all support these objectives. As noted in both the 2007 Senate report and the government’s 2022 What We Have Learned report, Indigenous peoples have been asking that the federal Interpretation Act be amended to include an NDC for many years.

However, rather than being celebrated, it is my view that this legislation should be recognized for what it is: an acknowledgement of the repeated and systemic failure of Canadian governments to honour Aboriginal and treaty rights.

How else do we explain such a bill? First, we had the treaties. Then the treaties were followed by court decisions that insisted those treaties must be honoured. Then we introduced the Charter of Rights, which affirmed that treaty rights are actual rights and must be respected. Following that, Parliament adopted the United Nations Declaration on the Rights of Indigenous Peoples Act, which requires that:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

And yet, in spite of all these measures, we somehow still need a blanket non-derogation clause. I can’t help but think that if the Government of Canada simply started honouring Aboriginal and treaty rights, we would no longer need to repeatedly layer statutory declarations on top of each other in order to try to compel the government to do what it agreed to do in the first place.

Do not misunderstand me; I do not blame our Indigenous peoples for wanting this non-derogation clause. I blame the government that it is needed at all. I support this bill in principle, but I am not convinced that a fifth “for greater certainty” layer is going to provide any more certainty to Indigenous peoples than the previous four layers.

Let me illustrate my concern with a simple example: Right now, the Standing Senate Committee on National Security, Defence and Veterans Affairs is studying Bill C-21, An Act to amend certain Acts and to make certain consequential amendments (firearms), otherwise known as the gun control bill. This legislation will enact significant changes that will have serious detrimental impacts on law-abiding gun owners in Canada, including the treaty rights of Indigenous peoples. Yet, in spite of this, the government completely failed to consult with Indigenous peoples, and is instead charging ahead. I noted this in my speech on Bill C-21 when I mentioned the following question that was posed to the officials during my critic’s briefing on the bill: “With whom did you consult?” When the officials were asked to describe their process of consulting with Indigenous peoples, they turned and looked for answers from the representative who was from Minister Mendicino’s office. Departmental officials did say they had consulted on the previous bill — Bill C-21 — which died on the Order Paper, but they engaged in no such consultation with Indigenous peoples in advance of introducing this bill, which has different provisions from the previous bill.

Subsequent to my critic’s briefing, officials sent my office a list of meetings they held with Indigenous groups after the bill was introduced. In other words, those were meetings held between January and May of this year. But that, colleagues, was months after Bill C-21 had been introduced, and only occurred after public opposition to the government’s amendments had arisen. As on so many other occasions, Indigenous peoples were only an afterthought. That makes a mockery out of the claim that when it comes to Indigenous peoples, it is “nothing about us without us.” Even though Indigenous peoples have treaty rights, even though the courts have upheld these rights, even though the Charter affirms these rights and even though the United Nations Declaration on the Rights of Indigenous Peoples Act passed by Parliament compels the government to consult with Indigenous peoples in order to “. . . obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them,” the government is still failing to consult and respect Indigenous rights.

Now we have Bill S-13 in front of us, which says that Bill C-21 should:

 . . . be construed as upholding the Aboriginal and treaty rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.

Yet, Bill C-21 does nothing of the sort. We may as well pass a law that says, “Plumbers should be construed as lawyers.” I think they would make better lawyers. Saying it is so does not make it so.

Colleagues, I support the intent of this legislation, but I question the value it will bring when we have a government that has repeatedly demonstrated it will flout the law whenever that might be to its advantage. I hope this legislation will be very carefully studied at committee to ensure that it has the support of Indigenous peoples — that the government claims it does — and that it will achieve the objectives it is designed to achieve.

Thank you.

The Hon. the Speaker: Honourable senators, Senator Jaffer has made a written declaration of private interest regarding Bill C-282, An Act to amend the Department of Foreign Affairs, Trade and Development Act (supply management) and in accordance with rule 15-7, the declaration shall be recorded in the Journals of the Senate.

On the Order:

Resuming debate on the motion of the Honourable Senator LaBoucane-Benson, seconded by the Honourable Senator Gold, P.C., for the second reading of Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.

The Hon. the Speaker: Is leave granted?

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Lucie Moncion, pursuant to notice of June 13, 2023, moved:

That, in light of the adoption of the Financial Policy for Senate Committees by the Standing Committee on Internal Economy, Budgets and Administration on June 1, 2023, the Senate Administrative Rules be amended in Chapter 3:05

(a)by repealing the heading before section 1, section 1, subsections 10(2) and (3) and section 11; and

(b)by replacing the heading before section 2 and subsections 2(1) and (2) with the following:

“Committee Budgets

(a) adopted by the committee;

(b) submitted by the committee to the Internal Economy Committee for its consideration; and

(c) presented to the Senate by committee report, with the budget and a report of the Internal Economy Committee attached.

(2) A budget prepared for the purposes of subsection (1) must contain a detailed estimate of the committee’s special expenses for the fiscal year.”; and

That the Law Clerk and Parliamentary Counsel be authorized to make any necessary technical, editorial, grammatical, or other required, non-substantive changes to the Senate Administrative Rules as a result of these amendments, including the updating of cross-references and the renumbering of provisions.

She said: Honourable senators, this motion proposes consequential changes to the Senate Administrative Rules that are necessary to implement a new financial policy for Senate committees, which was adopted by the Senate Standing Committee on Internal Economy, Budgets and Administration on June 1, 2023. The new policy will come into force at the end of September 2023.

[Translation]

I want to point out that this policy compiles into one comprehensive document long-standing decisions, policies, practices and guidelines of the Internal Economy Committee that apply to Senate committees in the area of financial management and committee budgets. Most of these measures are nothing new and will be familiar to senators who have participated in committee travel activities in the past.

[English]

The new policy streamlines the committee budget process to reflect the activity-based budgeting system that has been in place for over 10 years. It also replaces outdated financial reports on committee expenditures with the new legislative requirement for proactive disclosure. I would also note that last week, the Senate adopted changes to the Rules of the Senate, which also repealed obsolete sessional financial reports. Committees will continue to post quarterly, public, proactive disclosure reports, along with an annual report, which follow the fiscal years on the Senate of Canada website. These changes are simply to align our Senate Administrative Rules with the new policy, and will help ensure that the Senate continues to inform the public about spending by its committees in an open and transparent manner.

Thank you again, colleagues, for your consent.

Hon. Leo Housakos: Would Senator Moncion take a question?

I assume there was a subcommittee that reviewed these policies. Which subcommittee was it, senator?

Senator Moncion: It’s the subcommittee that reviews all policies — well, it depends on the matter. This one was the Subcommittee on Senate Estimates and Committee Budgets, under the budgets. We looked at the whole policy, and we tweaked it because most of the policies in the Senate now have been reviewed. Some of them are 10 or 15 years old. This was an older one, so we streamlined and looked at this. The Subcommittee on Senate Estimates and Committee Budgets was the committee that looked at it.

(On motion of Senator Martin, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator McPhedran, seconded by the Honourable Senator White, for the second reading of Bill S-201, An Act to amend the Canada Elections Act and the Regulation Adapting the Canada Elections Act for the Purposes of a Referendum (voting age).

The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

(On motion of Senator LaBoucane-Benson, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.)

Leave having been given to proceed to Motions, Order No. 131:

Hon. Senators: Agreed.

(At 3:34 p.m., the Senate was continued until tomorrow at 2 p.m.)

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Yonah Martin (Deputy Leader of the Opposition) moved second reading of Bill C-288, An Act to amend the Telecommunications Act (transparent and accurate broadband services information).

She said: Honourable senators, I rise today to speak as the Senate sponsor of Bill C-288, an Act to amend the Telecommunications Act (transparent and accurate broadband services information). Bill C-288 is timely and necessary, as too many communities in this country — particularly rural communities — still lack connectivity to broadband.

I would like to begin by acknowledging my colleague in the other place, Member of Parliament Dan Mazier, for his tireless work and dedication to ensuring all Canadians have equal access to communication technologies.

In 2019, the Canadian Radio-television and Telecommunications Commission, or CRTC, launched an eight‑month inquiry into a host of complaints from Canadians over the harm caused by misleading sales tactics by Canada’s telecommunications companies. Some of the unacceptable practices the report pointed to included call centre employees at major telecommunications companies adding services to a customer’s account without permission, retail store employees fudging contract details and door-to-door salespeople misrepresenting contract prices.

Some of the key recommendations included the CRTC creating a mandatory internet code of conduct that could include price protections during a contract, similar to those that exist for cell phones under the Wireless Code; requiring service providers to allow a cooling-off period so customers can cancel services if they don’t match what they were offered; broadening the mandate of the telecommunications mediator — the Commission for Complaints for Telecom-Television Services, or CCTS — so it can investigate complaints about misleading and aggressive sales tactics; and conducting nationwide secret shopper tests to ensure retail sales staff aren’t misleading customers.

It is worthwhile to mention that the report did not differentiate between telecommunications companies that were engaged in these misleading practices and those that were not. In advance of the inquiry, the Commission for Complaints for Telecom-Television Services sampled 441 complaints to identify sources of customer frustration. The CCTS found that more than half — 53% of the complaints — reported a mismatch between expectations at the point of sale and subsequent experiences. In 41% of the complaints, consumers claimed they weren’t told their contracts include a clause that allows for unilateral price or service changes. Canada saw a 57% spike in complaints in 2017-18, most of them involving wireless providers. This was despite a revised Wireless Code, which is meant to protect consumers. It came into effect in December 2017. Just a few of the cases are as follows.

A customer from Laval, Quebec, agreed to obtain a bundle of home phone, internet and TV services for $111 per month, but was then billed $131 per month. The provider told her that she was not eligible for the offer priced of $111 per month. A customer from Langley, B.C., received an offer from her service provider of a new mobile device, which included a device protection plan. The customer paid $280 for the device and believed she was on a month-to-month agreement. The device broke, and she received a refurbished replacement. When she reported her dissatisfaction, she was told she was locked into a 24-month plan with a $500 cancellation fee.

A customer from Saskatchewan subscribed to internet service delivered through a satellite system. The service functioned properly for a few days, until the internet speed decreased, particularly when used for gaming or watching Netflix. The provider said a new plan would be necessary to get those speeds.

“Marketplace,” a consumer protection program on CBC, did a hidden-camera investigation in 2018 and found that door-to-door telecom sales representatives were promising “forever prices” on internet services, fictional promotion prices and made false speed claims. Furthermore, many customers were misled on claims that they would be able to access fibre-optic technology right to their homes, where they were still relying on copper cabling from their homes to a fibre-optic node several streets away.

That brings us to the need for Bill C-288. In articulating the reasons for this bill, MP Mazier said the following:

Access to quality Internet is essential, and rural Canadians, in particular, understand the devastating impacts associated with poor Internet service across our nation. . . .

He correctly stated that:

. . . If members of the House were to speak with Canadians across our country, they would realize that many feel cheated, misled and ripped-off by Internet companies. This is because millions of Canadians are frustrated to learn that the Internet quality they are paying for is nowhere near what they expected.

Consumers make purchasing decisions based on information. When it comes to the Internet, Canadians expect the highest quality of service. Unfortunately, when consumers are making decisions on what Internet provider is best for them, they do not have access to the most accurate and realistic information.

As Mr. Mazier said, “Canadians deserve to know what they are paying for,” which is why he introduced Bill C-288. Bill C-288 addresses the concerns of Canadians, especially those in rural communities who buy expensive internet services only to realize that they do not receive the speeds that were advertised to them. The speeds that customers see when they go to purchase internet are not guaranteed, and they are rarely minimum or average speeds.

Currently, the government allows internet companies to advertise maximum theoretical speeds. Such words as “up to” are used in those advertisements, leading consumers to believe that an internet service is better than it actually is.

Bill C-288 addresses that by providing customers with accurate and transparent information on fixed broadband services. Simply put, it clarifies what an internet service customer is buying.

First, this legislation would mandate internet companies to provide Canadians with typical download and upload speeds, and not maximum theoretical speeds. Bill C-288 also provides Canadians with quality metrics during peak usage times. Internet users want to know what their speeds will be at peak times, not in the middle of the night, when people are sleeping. This puts consumers first by empowering them with the knowledge they need to make the right decisions for their personal and business use of the internet.

Last and most important, Bill C-288 will be properly enforced. Thanks to a Conservative amendment at the Standing Committee on Industry and Technology, public hearings must be held by the Canadian Radio-television and Telecommunications Commission to ensure compliance, monitoring and enforcement.

Honourable senators, this bill is about lifting the veil and providing honest information that enables consumers to make well-informed choices about the internet services they are purchasing.

OpenMedia, an organization that works to keep the internet open and affordable, agrees with that objective. In a statement, it said:

When you sign up for an Internet plan, you deserve to know what you’re paying for. It’s a simple matter of truth and transparency. If an Internet provider is advertising certain speeds, consumers have the right to know BEFORE they buy if those speeds accurately reflect average network performance.

As I mentioned earlier, Bill C-288 will amend the Telecommunications Act to require that internet service providers, or ISPs, give consumers accurate information regarding the quality and speeds of internet services during peak usage periods, and not based on theoretical possibilities or best‑case scenarios. Such words are misleading for consumers, who are then fooled into believing that they will receive a certain level of service under all scenarios, when, in fact, the best-case scenario might never be achieved.

According to an expert, the CRTC explicitly excluded restrictions against misleading advertisements of service quality levels in the development of its 2019 Internet Code, and this bill will potentially mitigate what can be viewed as an error in developing the Internet Code.

You may ask yourself this: What are the consequences of an absence of accurate information during purchasing decisions?

The principal concerns are that consumers will be overpaying for services and probably not purchasing the best service that fits their needs. In our interconnected world, where many people increasingly work from home, this has serious potential implications for those who run home businesses that might be competing globally.

Canadians currently pay some of the highest costs for internet and wireless telecom services in the world, while access to high-speed broadband internet and wireless telecom services is also among the lowest for developed countries. According to the CRTC’s data, 38% of rural and remote communities have inadequate access to high-speed broadband internet services. Among Indigenous communities, that drops to less than 30%, whereas the all-Canada average, including urban centres, is well over 80%.

Full coverage of rural and remote Canada is promised by 2030, by which time download speeds of 50 megabytes per second and upload speeds of 10 megabytes per second might be woefully inadequate for the functions of broadband that will be enjoyed in cities. It might also be completely inadequate for rural home businesses that are seeking to stay competitive.

I believe that Bill C-288 will improve accountability and transparency in Canada’s telecom sector by lifting the veil so that Canadians know the quality of the broadband services they are purchasing. The bill will not have a direct impact on improved access to high-speed broadband services in rural and remote areas, but it will at least improve accountability and transparency. That will hopefully lead to more competition while improving consumer choice.

A report by the House of Commons’ Standing Committee on Industry and Technology echoed how important the objectives contained in this bill are. That report noted that the CRTC should require internet service providers to make information available to consumers on the usual download and upload speeds they can expect during peak periods so that they can make more informed purchasing decisions based on accurate and transparent information.

Witnesses at the House committee also testified that Bill C-288 would bolster the CRTC’s new policy direction to ensure competition and consumer rights.

Honourable senators, this gap in rural and remote connectivity has been with us for too long. In 2021, the Conservative Party election platform stated:

As technology continues to advance, the infrastructure of the future — broadband and 5G — will be increasingly critical to job creation.

The platform proposed to:

Build digital infrastructure to connect all of Canada to High‑Speed Internet by 2025 . . . .

It also proposed to:

Accelerate the plan to get rural broadband built.

Speed up the spectrum auction process to get more spectrum into use and apply “use it or lose it” provisions to ensure that spectrum (particularly in rural areas) is actually developed . . . .

I am pleased to underscore the support that this bill received in the other place.

As Kevin Lamoureux, Parliamentary Secretary to the Leader of the Government in the House of Commons, stated on the bill at third reading, “For me, it is all about consumer awareness and protection, and that is the reason I am supporting it.”

Mr. Bryan Masse of the NDP in turn said this:

I congratulate the member because he has a specific thing here to fix broadband services and bring greater accountability to their advertising and what they are promoting, which is critical in a couple of contexts. One is obviously truth in advertising. This bill would give more expectations and oversight to ensure that when services are advertising certain speeds, consumers actually get that. That is important for making purchasing decisions.

Before I conclude, honourable senators, I would be remiss if I did not mention the Honourable Senator Patterson’s Bill S-242, An Act to amend the Radiocommunication Act, or as he calls it, “the use it or lose it” bill. Bill S-242 complements Bill C-288 by ensuring that Canada’s spectrum is available for Canadians to deliver important wireless services like the internet and not exploited by larger companies that hold licences and turn them around at staggering profits.

To quote Senator Patterson:

Canadians in rural, remote and northern communities deserve connectivity. Senators know that I have long railed against Canada’s spectrum policy, which prioritizes urban competition over rural connectivity. Communities anywhere from 15 minutes outside of Calgary to those in the Far North — such as Grise Fiord, Nunavut — are deprived of connectivity. While there are many factors that contribute to the lack of connectivity, one reality is that some communities lack access to sufficient internet connectivity thanks to spectrum that remains unused.

I believe Bill S-242 will prevent spectrum squatting and, coupled with bills like C-288, will usher in a new age of rural entrepreneurialism — a new economy that is being created because of the global pandemic — where Canadians are and will be working from home more than ever before. This, then, is where Senator Patterson’s and MP Mazier’s bills are very useful in establishing a level playing field for Canada’s rural and Indigenous communities.

Honourable senators, this bill has passed through the other house with strong support and is now before us in the Senate. I ask for your support at second reading of this bill and to send it to committee where we can hear from Canadians who are directly affected by this issue and help ensure equal and fair internet access for all. Thank you.

(On motion of Senator Downe, for Senator Patterson (Nunavut), debate adjourned.)

Hon Senators: Agreed.

(Debate adjourned.)

Hon. Leo Housakos: Honourable senators, I note that this item is at day 15 and I’m not ready to speak at this time. Therefore, with leave of the Senate and notwithstanding rule 4-15(3), I move the adjournment of the debate for the balance of my time.

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, I note that this item is at day 15. I would like to adjourn the debate for the balance of my time.

(On motion of Senator Martin, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Patterson (Nunavut), seconded by the Honourable Senator Tannas, for the second reading of Bill S-228, An Act to amend the Constitution Act, 1867 (property qualifications of Senators).

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate): Honourable senators, with leave of the Senate and notwithstanding rule 5-13(2), I move:

That the Senate do now adjourn.