The Hon. the Speaker: The time for debate has expired.

[English]

Hon. Renée Dupuis: Would Senator Clement take another question?

Hon. Paula Simons: Honourable senators, I rise today to speak in support of my colleague Senator Clement, who brought forward this amendment which I was happy to support in committee.

I think to understand why, we need to understand why one would reverse the onus in a bail hearing. It is important to understand that in a criminal justice system that is based on the principle that we are innocent until proven guilty, the state cannot constrain our liberty without just cause.

It is typical in a bail hearing that the prosecution must prove to the justice of the peace or the judge why someone should not be granted bail. That is on the basis, (a) that they are a flight risk; (b) that their release would pose a danger to the community; or (c) that their release would embarrass the justice system, that it would fly in the face of what the public believes the justice system should do.

Those are properly high tests, but the Crown has the full power of the state at its disposal to try to prove that fact.

When we reverse the onus, we require of the accused that they accept the burden that would properly belong to the state. Suddenly, they are the ones who have to prove why they should be released, sometimes with the help of a legal aid duty counsel or another lawyer, sometimes as self-represented citizens. They must take unto themselves the responsibility to argue for their liberty.

The Supreme Court has held that in certain circumstances we are allowed to reverse the onus. Bill C-48 would expand that to increase more categories at which we reverse the onus. But the premise of the bill is that this should be for the people who are the worst of the worst, the people who are the greatest danger to our community and perhaps to their own families.

This is why I bristled when I saw the words “discharge” in the legislation. As we all know, I am not a lawyer on the Legal and Constitutional Affairs Committee and I am filling in there.

I want to read to you what the Legal Aid Ontario page tells us about absolute discharges in the law:

An absolute discharge is the lowest-level adult sentence that an offender can get.

If an offender gets an absolute discharge, then a finding of guilt is made but no conviction is registered, and they are not given any conditions to follow (i.e. a probation order). The offender is finished with their case. The person does not have to go to court again or check in with a probation officer.

An absolute discharge will stay on an offender’s criminal record for a year after the date they received the discharge. . . .

Then I skip ahead:

The discharge will be automatically removed from their record after one year. The person doesn’t have to apply for a pardon.

In other words, to receive an absolute discharge, your record suggests that there is no vestige of the previous sin.

Why would someone be granted an absolute discharge? It happens very rarely in cases where the court believes the person is not a risk to reoffend, is not a danger to society and where the person has come forward with a plan to make amends. As Senator Clement correctly points out, this is often the case for Indigenous women because sometimes when police attend a home, there’s interpartner violence and are unable to tell who started what or who was the instigator, police will often charge both parties to clear the scene and get everything safe again. Then it may be that the one spouse who was primarily a victim finds themselves countercharged. Oftentimes those are records that are expunged, but that’s not the only reason one would receive an absolute or a conditional discharge. A conditional discharge, as the name implies, comes with conditions, and in that case your record is not sealed until three years have passed.

When I looked at this legislation I thought to myself, “All right, if we’re going to reverse the onus, we should be reversing the onus for the worst of the worst.” If somebody has received a discharge, it implies that their previous offence was relatively minor and that their actions were relatively understandable.

Now, look at the amendment that we have before us. It reads:

. . . with an offence in the commission of which violence was allegedly used, threatened or attempted against their intimate partner, and the accused has been previously convicted or discharged under section 730 of an offence in the commission of which violence was used, threatened or attempted against any intimate partner of theirs;

You could have a scenario where an Indigenous woman who has received an absolute discharge is charged with threatening violence against her partner and would now be under the burden of a reverse onus to be granted bail. This is patently unfair. If we’re going to have a reverse onus, let it be for the people for whom they are properly due, for people who are a proven threat to society and who have a track record of criminal behaviour.

To allow a reverse onus to affect somebody whose only previous brush with the law ended in an absolute discharge is a corruption of our bail system and a corruption of the presumption of innocence. Thank you very much.

The Hon. the Speaker: I see two senators standing. Do we have agreement on the bell?

Senator Seidman: The vote will be deferred to the next sitting of the Senate.

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

The Hon. the Speaker: Are honourable senators ready for the question?

The Hon. the Speaker: The time for debate has expired.

Hon. Salma Ataullahjan: Honourable senators, I rise today to request leave of the Senate:

That the sixth interim report of the Standing Senate Committee on Human Rights entitled Combatting Hate: Islamophobia and its impact on Muslims in Canada, tabled with the Clerk of the Senate on November 2, 2023, be replaced with a corrected version.

The earlier version had inadvertently misattributed one quote, and the corrected version addresses that error.

We apologize to the witness for this regrettable error.

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

Hon. Senators: Question.

The Hon. the Speaker: Are honourable senators ready for the question?

The Hon. the Speaker: Pursuant to rule 9-10 of the standing order, the vote will be at 4:15 p.m. during the next sitting of the Senate and the bells will ring at 4 p.m.

The Hon. the Speaker: I think the nays have it.

And two honourable senators having risen:

Hon. Jane Cordy: Honourable senators, I note that this item is at Day 15; therefore, with leave of the Senate, and notwithstanding rule 4-15(3), I move the adjournment of the debate for the balance of Senator Dalphond’s time.

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

The Hon. the Speaker: The time for debate has expired.

Hon. Mary Coyle: Honourable senators, I rise today on the unceded, unsurrendered territory of the Anishinaabe Algonquin nation to speak to you about a proposed law which would impact Mi’kma’ki, the unceded lands of the Mi’kmaq people, and, in fact, all the lands and peoples across Canada and North America.

I rise to speak at second reading to Senator Quinn’s Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada.

We have heard excellent speeches on this bill from two New Brunswick senators: the bill’s sponsor, Senator Quinn —

[Translation]

 —and his Acadian brother, Senator Cormier.

[English]

So I thought it was time for this chamber to hear from someone from the other side of the Chignecto Isthmus.

Colleagues, Nova Scotia CTV News special correspondent Steve Murphy set up the discussion of this critical topic in a unique and compelling way. He said:

National unity has been a recurring issue during Canada’s 156 years as a nation. Finding ways to keep the country together, through political accommodation, has been a challenge for governments for generations.

But in 2023, Canada is facing a unity challenge of the sort we have never really seen before. While we have long heard rhetoric about Canada falling apart in the figurative sense, we are today confronted with the prospect that it might literally happen.

Storm surge and rising sea levels are threatening to swamp the isthmus of Chignecto, the tenuous . . . strip of marshy land that connects peninsular Nova Scotia to the mainland of North America.

He concludes by saying:

As the only province connected to the rest of the country by a thin slice of vulnerable land, Nova Scotia is the only province that will ever face this existential threat. That make this a national issue. The national government is morally responsible on behalf of all taxpayers, to keep the country united figuratively and literally.

We will come back to this point about who is responsible and who pays, but before we do that, let’s have a look at this “thin slice of vulnerable land.”

Because of its central location, the Chignecto Isthmus has long been an important travel corridor. If any of you have travelled in a vehicle to Nova Scotia, you will have passed through the isthmus. In fact, you will have been welcomed to Nova Scotia when you get there.

Approximately 12,000 years ago, following the retreat of the glaciers that covered the Maritimes, the isthmus was one of two — at that time — land routes to the Nova Scotia peninsula. The other is now under the waters of the Atlantic Ocean.

The marshes of the isthmus have a long history of human occupancy. For at least 5,000 years prior to European contact, Mi’kmaq First Nations would gather there to meet, fish and hunt waterfowl, moose, bears and porcupines. The name “Chignecto” derives from the Mi’kmaq word Siknikt, which translates to “drainage place” and refers to the great marsh area.

Only 21 kilometres wide at its very narrowest, the isthmus separates two large bodies of water: Chignecto Bay, a sub-basin of the Bay of Fundy — which has, as we know, the highest tides in the world — and the Northumberland Strait, an arm of the Gulf of St. Lawrence on the Atlantic Ocean. The rivers and creeks of the isthmus provided a transportation route for the Mi’kmaq and, later, Acadians and British travelling between the Bay of Fundy and the Northumberland Strait.

At its widest, the approximately 24-kilometre area located between Tantramar, New Brunswick — Tantramar is a town formed earlier this year from the amalgamation of the town of Sackville and the village of Dorchester — and Amherst, Nova Scotia, is becoming increasingly vulnerable to the severe effects of climate change. In fact — and I didn’t know this until I started my research — it has been 16 years since a UN Intergovernmental Panel on Climate Change report highlighted the increasing risk to infrastructure on the Chignecto Isthmus due to rising sea levels, mentioning it alongside the city of New Orleans.

Colleagues, we all know about the Hurricane Katrina devastation that happened to New Orleans in 2005 when the resultant storm surge caused 23 breaches in that city’s drainage canal, canal levees and floodwalls.

The Chignecto Isthmus is not a highly populated area like the city of New Orleans, but, as we heard from Senator Quinn, it is a vital trade corridor, critical to Canada’s economic prosperity, through which runs the CN railway line, the Trans-Canada Highway, telecommunications lines and fibre-optic lines that link to transatlantic cables. Of course, it is also a place where there is farmland, wind farms, important natural corridors for wildlife and local communities of people to consider.

Senator Cormier reminded us that this isthmus, with its:

. . . system of dykes and aboiteaux that has been protecting it for centuries from the high tides in the Bay of Fundy holds a special historical and cultural place in the collective psyche of the region’s residents, particularly Indigenous people and Acadians.

In his testimony to the Senate Standing Committee on Transport and Communications, when the committee was studying the impacts of climate change on critical infrastructure, Rob Taylor, Deputy Minister in the Department of Transportation and Infrastructure, the Government of New Brunswick, said:

Climate change impacts — specifically storm surges and increasing sea levels — pose a risk to infrastructure within the isthmus. Potentially 38 kilometres of dikes, 19 kilometres of Trans-Canada Highway and 19 kilometres of the CN railway could be severely impacted by flooding due to a climatic event in the near future.

He then went on to cite relevant regional data on already documented rises in sea level, including a 27-centimetre rise in Saint John, New Brunswick, since 1961; a 21-centimetre rise in Yarmouth, Nova Scotia, since 1966; and a 19-centimetre rise in Halifax since 1961.

He said that “Atlantic Canada is expecting a one-metre increase in sea level by 2100, and two metres or more by 2150.”

This is serious.

He concluded his testimony by saying:

We wish to acknowledge, as per previous witnesses and climate science experts, that it is not about whether the Chignecto Isthmus infrastructure will be impacted by a climatic event, but when it will happen. We need to address this risk now, especially since an engineered solution will require up to 10 years to complete.

Colleagues, where are we now, and what are the next steps with this “national unity” matter?

Nova Scotia, New Brunswick and the federal government commissioned a study which resulted in a 2022 engineering and feasibility report that focused largely on engineering solutions to protect the transportation corridor.

In a recent CBC radio noon show on the topic of the Chignecto Isthmus — where our colleague had called in — Dr. Danika van Proosdij of Saint Mary’s University expressed concern that the engineering report doesn’t consider sustainability, protection of the marshlands or archeological factors. She cited the example of the dike system on the border of the Netherlands and Belgium where they have realigned the infrastructure, increased the safety and security of the agricultural lands and restored large numbers of tidal wetlands with nature-based solutions — an important part of the response to building climate resiliency.

After a meeting in Mill River, P.E.I., in June of this year, the four Atlantic premiers issued the following statement:

The Chignecto Isthmus between New Brunswick and Nova Scotia is a vital corridor at risk due to rising seas levels. The Premiers reiterated that the federal government has a constitutional responsibility to maintain links between provinces and fully fund this project.

On the same weekend that the premiers were meeting in P.E.I., David Kogon, Mayor of Amherst, Nova Scotia, hosted the Atlantic Mayors Caucus. The mayors released their own statement calling for immediate action on the Chignecto Isthmus. Their statement said the group is:

. . . urging the Province of Nova Scotia, Province of New Brunswick, and the Government of Canada to immediately establish a Steering Committee to lead the work required to prepare for upgrade or replacement of the Chignecto Isthmus protective infrastructure.

They also stated that the isthmus steering committee must include municipal leaders from all four Atlantic provinces.

Honourable colleagues, Senator Quinn’s Senate public bill — Bill S-273 — would invoke section 92(10) of the Constitution which allows the federal government to take jurisdiction of undertakings that are of the national interest.

He reminds us that this was done when the federal government paid for the new Champlain Bridge in Montreal, as well as a new international bridge to the United States in Windsor.

We know that under the severe use-it-or-lose-it pressure from federal Minister LeBlanc, Nova Scotia and New Brunswick reluctantly submitted an application to the federal Disaster Mitigation and Adaptation Fund on a cost-sharing basis — which is the part that they didn’t agree to — for the Chignecto Isthmus while, at the same time, asking the Nova Scotia Court of Appeal to rule on whether Ottawa has an exclusive responsibility to maintain the dikes and other structures. Estimates of the total costs range from $400 million to $650 million. New Brunswick Premier Higgs sent a letter to Minister LeBlanc citing section 91(29) and section 92(10) of the Constitution — underlining the evidence that interprovincial transportation is the sole authority of the federal government.

Honourable colleagues, I am not a constitutional expert, as you can probably tell, and, while I applaud my colleague Senator Quinn’s initiative with sponsoring Bill S-273, I can’t honestly say whether this is the best mechanism to induce the action that is required on this matter of national importance. I do, however, most definitely agree that this provocative bill on this critical matter of the Chignecto Isthmus merits careful study in committee.

This September, after post-tropical storm Lee put the risks and storm anxiety back into the nightmares of locals, Mayor Andrew Black of border town Tantramar, New Brunswick, commented:

It seems like every big storm that comes our way, people get more and more anxious . . . . You know, is this going to be the storm that [the high tide in the Bay of Fundy will cause the dikes to fail and] cuts us off from Nova Scotia?

Mayor Black and his counterpart on the other side of the isthmus, Mayor David Kogon of Amherst, Nova Scotia, are major proponents of the flood protection project. They are focused on making sure that the project is completed as soon as possible — and not on the disagreements of who might fund it.

Honourable colleagues, getting on with action in building a climate-resilient future for the highly vulnerable Chignecto Isthmus is a matter of urgency for Mayor Kogon and Mayor Black, and for all the people of their communities and of our neighbouring provinces — of course it is.

And, colleagues, in conclusion, I will reiterate what journalist Steve Murphy reminds us of, no matter what province or territory we represent in this chamber.

Honourable colleagues, ensuring a strong, protected and sustainable Chignecto Isthmus is, in fact, essential to keeping our country Canada united — literally.

Colleagues, let’s send this bill to committee and discuss how we can best keep our country together.

Wela’lioq.

The Hon. the Speaker: I see two senators standing. Do we have agreement on the bell?

Senator Seidman: The vote will be deferred to the next sitting of the Senate.

The Hon. the Speaker: I think the nays have it.

And two honourable senators having risen: