Hon. Marc Gold (Government Representative in the Senate): Thank you for your question, senator. The government, as we know, has delivered on major income support measures that helped buffer the worst economic impacts of this pandemic with unprecedented speed.

With regard to protection against fraud, the CERB had front-end safeguards and back-end verification measures that allowed payments to be made quickly to workers while ensuring that cases of fraud or deliberate misrepresentations were identified. CRA and Service Canada have actively monitored and identified cases of fraud, and the government has announced multi-year funding to increase the capacity to detect, investigate and address cases of deliberate fraud.

As we move ahead in our economic recovery, the government will continue to work on post-payment verification and will be there to support Canadians.

In regard to some of your remaining questions, I will seek details from the government and report back to the chamber.

Senator Gold: I certainly will.

Senator Marshall: Thank you very much, Senator Gold. Could you also find out if there is any information about the magnitude of the work and the cost? I think there is about $60 million in Supplementary Estimates (B), but based on what I’m hearing in the media, the magnitude of the problem is quite extensive so $60 million doesn’t sound like a lot of money. If there is any additional information you could find on that, it would be appreciated. Could you do that?

The Hon. the Speaker pro tempore: Senator Marshall, would you take a question from Senator Galvez?

The Hon. the Speaker pro tempore: It was moved by the Honourable Senator MacDonald, seconded by the Honourable Senator Smith, that this report be adopted now.

Those in favour of the motion and who are in the Senate Chamber will please say “yea.”

Hon. Claude Carignan moved second reading of Bill S-229, An Act to amend the Language Skills Act (Lieutenant Governor of New Brunswick).

He said: Honourable senators, I rise today to speak to Bill S-229, which I introduced on December 1. The title of the bill is An Act to amend the Language Skills Act (Lieutenant Governor of New Brunswick). It is essentially identical to my Bill S-220, which concerns the bilingualism of the Governor General, but this bill deals with the bilingualism of the Lieutenant-Governor of New Brunswick.

When I introduced Bill S-220 on November 24, there was significant media coverage. That same day, a citizen sent me a newspaper article that addressed a similar issue with respect to the Lieutenant-Governor of New Brunswick, Brenda Louise Murphy.

In 2019, on the recommendation of the Prime Minister of Canada, the Committee of the Privy Council recommended that a commission be issued under the Great Seal of Canada appointing Brenda Louise Murphy as Lieutenant-Governor of New Brunswick. The next day, the Prime Minister announced her appointment as the 32nd Lieutenant-Governor of New Brunswick. In an interview that same day, the Lieutenant-Governor admitted that she couldn’t speak and understand both of New Brunswick’s two official languages with proficiency.

That appointment kind of snuck in under the radar, and the information went virtually unnoticed in the Senate. Had I had the information sooner, I would probably have introduced a bill to propose that both positions, those of Governor General and Lieutenant-Governor of New Brunswick, be added to the list of high-level positions whose occupants must be bilingual in accordance with the Language Skills Act.

In hindsight, I now believe it is better to have two separate bills. Certainly the underlying issues of respect for official languages are very similar, but New Brunswick being Canada’s only officially bilingual province raises specific issues regarding the appointment of a unilingual lieutenant-governor for that province.

Let’s start by looking at what the Constitution says about New Brunswick. The preamble to the 1867 Constitution states that New Brunswick is a party to the new Confederation pact. The first “whereas” reads as follows:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom . . . .

Throughout the rest of the constitutional text, particularly in the Charter of Rights and Freedoms, there are specific passages about New Brunswick. I think it would be useful to list the main ones.

[English]

(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick. . . .

English and French linguistic communities in New Brunswick

16.1(1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to such distinct educational and cultural institutions as are necessary for the preservation and promotion of those communities. . . .

Then Section 18:

New Brunswick’s statutes and records

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

Section 20:

Communications by public with New Brunswick institutions

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

[Translation]

The Constitution Act, 1867 also stipulates that the executive powers of Canada are vested in the Queen. The Queen is represented in Canada by the Governor General and the lieutenant-governors of each province. Provincial lieutenant-governors are appointed by the Governor-in-Council.

“Governor-in-Council” is an expression referring to the Governor General acting by and with the advice of the Queen’s Privy Council for Canada. According to the constitutional conventions arising from the principles of constitutional monarchy and responsible government, the advice of the Queen’s Privy Council is, in fact, the advice of the Prime Minister of Canada. Although the term “advice” is used in the Constitution Act, 1867, constitutional convention requires that the Governor General, the holder of formal power, exercise it in accordance with the advice of elected members.

According to the Société des Acadiens du Nouveau-Brunswick, the appointment of Brenda Louise Murphy is unconstitutional. I quote as follows:

In this case, the advice of the Prime Minister recommending that the Governor General appoint Ms. Murphy as the Lieutenant-Governor for the Province of New Brunswick is inconsistent with the constitutional language rights protected by subsections 16(2), 18(2) and 20(2) and section 16.1 of the Charter. Neither this advice nor the resulting appointment respect the Constitution. Therefore, this appointment is illegal.

New Brunswick has a constitutional language regime that is quite peculiar to New Brunswick and unique in the country. Subsections 16(2), 17(2), 18(2), 19(2), 20(2) and section 16.1 of the Charter are exclusively devoted to the linguistic rights of New Brunswick. The purpose of all these provisions is to protect the rights of French and English linguistic communities in New Brunswick.

These provisions and the language rights they afford have to be considered as a whole, but also in the historic context in which they were enacted. Although French has been spoken in the Atlantic provinces since 1604, French speakers did not receive any legal protection of their language and culture when New Brunswick was founded in 1784. No rights relating to the use of the French language in government institutions in New Brunswick were enshrined in the Constitution Act, 1867, as was the case for English in Quebec. The French linguistic community of New Brunswick did not have that luck. It was more than 100 years after joining Canada, during the patriation of the Constitution in 1982, that New Brunswick changed this state of affairs. In 1982, New Brunswick had to submit to linguistic obligations that exceeded all those that exist for the other Canadian provinces and even for the federal government.

These obligations were specifically enacted to remedy the status quo, which, in reality, represented a situation of advanced diglossia and a progressive cultural degradation for the French linguistic community in New Brunswick. For anyone who might be wondering, the word “diglossia” refers to a situation in which one of the two languages spoken by a bilingual individual or community has a lower sociopolitical status.

(1640)

[English]

In 1982, the simple protection of acquired rights or the defence of minority language-use rights would have been insufficient to reverse hundreds of years of damage. It would have been too little too late. That is why the Constitution confers protections whose purpose is to correct a situation.

[Translation]

When the Canadian Constitution was repatriated in 1982, New Brunswick enshrined institutional bilingualism by imposing a series of obligations on its state institutions. These obligations are similar to those that enshrine institutional bilingualism at the federal level, but some are more robust and provide for a better guarantee of bilingualism in New Brunswick.

According to the Constitution, the New Brunswick Lieutenant-Governor is the only representative of the state who is a unique, essential, irreplaceable and irreducible part of both the executive and the provincial legislature. The executive and legislature of New Brunswick are subject to a number of bilingualism obligations set out in the Canadian Charter of Rights and Freedoms. Furthermore, these two institutions are the only institutions to which the Charter expressly assigns the role of promoting the equality of New Brunswick’s two official language communities.

I mentioned last week that the government recognizes that French is in decline in Canada. In its document setting out the modernization of the Official Languages Act, Minister Joly, who was the official languages minister at the time, said, and I quote:

The federal government must act in its areas of jurisdiction to respond to the concerns of Francophones in Quebec and across the country in order to protect and promote French and reinforce a sense of linguistic security.

The federal government must play a leading role in bilingualism. The judges appointed to the Supreme Court must be bilingual, the role of the CBC/Radio-Canada as a cultural institution must be strengthened, and the powers of the Commissioner of Official Languages must be enhanced. The public service, as the main point of contact for Canadians with their federal government, must also lead by example.

The minister emphasized that the government must act in its areas of jurisdiction to protect and promote French and reinforce a sense of linguistic security. The appointment of a Lieutenant-Governor of New Brunswick falls entirely within the federal government’s jurisdiction. What possible reason could it have had for appointing a person who has a very hard time speaking French to the position of Lieutenant-Governor for Canada’s only officially bilingual province?

Ultimately, I think the solution to preventing another such lapse is to amend the Language Skills Act to add the position of Lieutenant-Governor of New Brunswick to the list of high-level officials who must be bilingual.

When I gave my speech at second reading of Bill C-220 on the Governor General, I expounded at length on arguments in favour of the Governor General of Canada being bilingual and why it was logical to use the Language Skills Act to provide a framework with respect to bilingualism for the appointment of governors general. I will not revisit each of my arguments for the position of Lieutenant-Governor of New Brunswick. I will just say that they all apply holus-bolus.

Furthermore, constitutional requirements specific to New Brunswick’s institutional bilingualism further justify adding the Lieutenant-Governor of New Brunswick to the Language Skills Act list of high-level officials who must be bilingual upon appointment.

After Brenda Murphy was appointed Lieutenant-Governor, several complaints were in fact submitted to the Commissioner of Official Languages. In his investigation report, which was made public by Radio-Canada last week, he concluded that there had been no violation of the Official Languages Act because the Privy Council Office, a federal institution subject to the Official Languages Act, had not had to intervene in the selection of the new lieutenant-governor. That decision was recommended to the Prime Minister by the Prime Minister’s Office, which is not recognized as a federal institution within the meaning of the Official Languages Act and is therefore not subject to its provisions.

Nevertheless, in his report, the Commissioner of Official Languages makes the following observation and recommendation:

The issue of proficiency in both official languages was clearly not a prerequisite at the time of appointment, although it is a factor usually considered in the appointment process, along with diversity and professional background. If the issue of proficiency in both official languages was discussed, as confirmed by the Privy Council Office, it must be noted that it was not retained. The issue of proficiency in both official languages was raised when the PCO contacted the nominee. The nominee then would have committed to improving her proficiency in French.

Building on this close collaboration between the Privy Council Office and the Prime Minister’s Office, I strongly encourage the PCO to take full advantage of this working relationship with the PMO and to leverage its role of supporting, guiding and advising the Prime Minister to emphasize the special and unique nature of New Brunswick’s linguistic duality and to protect it in future appointments of this kind in the province. Subsection 16(2) of the Canadian Charter of Rights and Freedoms recognizes that French and English are the official languages of New Brunswick and this recognition was enshrined in the Charter at the express request of the province.

Again, during my speech on Bill S-220 regarding the bilingualism of the Governor General, I highlighted section 12 of the Canadian Constitution, which clearly gives Parliament the power to amend, through simple legislation, the powers to appoint the Governor General. This section reads as follows:

All Powers, Authorities, and Functions which . . . are vested in . . . Governors or Lieutenant Governors . . . shall . . . be vested in and exerciseable by the Governor General . . . subject nevertheless . . . to be abolished or altered by the Parliament of Canada.

After introducing my two bills to amend the Language Skills Act to add the Governor General and the Lieutenant-Governor of New Brunswick, a distinguished professor, Benoît Pelletier, who is also a great lawyer, constitutional expert and professor at Ottawa University’s faculty of law, published a very interesting piece in Le Droit on December 11.

I draw your attention to this excerpt from Professor Pelletier’s article, where he states the following:

Nevertheless, Mary Simon’s appointment speaks volumes about how little importance the federal authorities often accord to the French language, even though everyone is elated that an Indigenous person is, for the first time, the head of state.

Speaking of Mary Simon, it was her lack of proficiency in one of Canada’ official languages that led Senator Carignan to propose amendments to the Language Skills Act, an act dating back to 2013, requiring that anyone aspiring to become the Governor General of Canada or the Lieutenant-Governor of New Brunswick be able to clearly speak and understand French and English. We can only applaud this initiative. These legislative amendments could effectively limit the discretion or prerogative of Canada’s Prime Minister . . . .

Honourable senators, I would especially like to highlight this excerpt from Professor Pelletier’s article, which reads as follows:

While that discretion or prerogative is, in fact, constitutional, it is still derived from conventions, which are not, strictly speaking, rules of law. Even an ordinary law can override similar constitutional conventions, which are not sanctionable by a court of law.

Bill S-229 essentially has two provisions. The first would amend the Language Skills Act to add the office of Lieutenant-Governor of New Brunswick to the list of senior officials who must be bilingual at the time of their appointment. The second provision involves coordinating amendments. It accounts for the fact that another bill, Bill S-220, would also amend the Language Skills Act and provides instructions in the event that one bill is passed before the other.

[English]

In conclusion, honourable senators, I would like to repeat that we have a constitutional responsibility to protect minorities in Canada. Today, we are faced with a situation that certainly requires us to fulfill that constitutional function.

(1650)

[Translation]

Honourable senators, I urge you all to support Bill S-229 at second reading stage so that it can be studied in committee.

Thank you.

(On motion of Senator Duncan, debate adjourned.)

[English]

On the Order:

Resuming debate on the motion of the Honourable Senator MacDonald, seconded by the Honourable Senator Smith, for the adoption of the second report (interim) of the Committee of Selection, entitled Duration of membership on committees, presented in the Senate on December 2, 2021.

Hon. Senators: Agreed.

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to and bill read second time, on division.)

The Hon. the Speaker pro tempore: Those opposed to the motion and who are in the Senate Chamber will please say “nay.”

The Hon. the Speaker pro tempore: Is there leave for the proposed length of the bell from senators in the chamber?

Some Hon. Senators: Yea.

Hon. Pierre J. Dalphond: Honourable senators, I rise today in reply to the Speech from the Throne. I have the honour of being the first of my colleagues to do so, but I am sure I will not be the last.

I want to start by acknowledging that we are here today on the unceded territory of the Algonquin Anishinaabe people. As the Governor General said in the introduction of her speech, which historically are her own words, this acknowledgement is not just a symbolic declaration. In making this declaration, I want to note an important fact about our true history that was not taught to my generation, namely that in many cases, our ancestors appropriated land belonging to those who were here long before us.

I hope that, as suggested by the Truth and Reconciliation Commission, then chaired by the Honourable Justice Murray Sinclair, this omission is now being addressed in every province and territory. Indeed, without a proper understanding of our country’s colonialist and assimilative past, we cannot build a viable path to reconciliation.

[English]

That said, I would now like to address the other part of the speech: the one written by the government. It is called Building a Resilient Economy: A Cleaner & Healthier Future for Our Kids.

In addition to reconciliation, the government indicated that it will focus on our collective health and well-being as we face the numerous aftermaths of the pandemic and the need to rebuild an economy that works for everyone. The government said that its priorities include plans on housing and child care. Like most of you, I agree with these plans.

The government is also committing to respond to the climate crisis that the world is facing. As stated in the speech, our earth is in danger, with some regions — particularly the North of Canada — even more exposed.

This situation calls for significant and transformative measures to our economy and even to our way of life, possibly requiring legislative support. For example, it remains to be seen how the government will achieve its goal of capping and significantly reducing oil and gas sector emissions. The climate crisis, as the government acknowledged in the speech, also requires stronger actions to prevent and prepare for floods, wildfires, droughts, coastline erosion and other extreme weather worsened by climate change.

[Translation]

Like many Quebecers, on the recommendation of a good friend I recently explored the wonderful Magdalen Islands. Unfortunately, that ecosystem is fragile. The rising water temperatures in the Gulf of St. Lawrence are causing a loss of winter sea ice, while the rising sea level is eroding the islands. I look forward to seeing meaningful proposals put forward by the federal government, in collaboration with the Government of Quebec and the Magdalen Islands residents, to save this treasure in the Gulf of St. Lawrence.

[English]

The government also indicated its willingness to stand up for diversity and inclusion by investing in the empowerment of Black people, Indigenous peoples and other racialized Canadians by fighting harmful content online and by strengthening French outside and inside Quebec. These are all measures that the Senate should support while reviewing carefully.

I was also happy to hear that the government will address gun violence, which is on the rise in many of our biggest cities, including my home city of Montreal. The government’s commitment to the mandatory buyback of banned assault-style weapons is good news. However, easy access to handguns by members of street gangs — essentially young men — has resulted in increased casualties and injuries, including to young people with no connection to gangs.

I agree that the best way to deal with this problem is investing in prevention and supporting the work of law enforcement. I salute the plan, recently released by the Quebec government, to allocate $52 million for this purpose. However, other policies must include measures to further restrain access, such as more resources dedicated to preventing illegal imports of handguns into Canada and to the use of straw buyers within Canada.

(1610)

Our collective response to gun violence also requires strengthening handgun legislation as has been said repeatedly by various groups, including Canadian Doctors for Protection from Guns, Danforth Families for Safe Communities and PolySeSouvient. Unfortunately, the government has been rather timid so far on this issue.

[Translation]

Before the last general election, the government introduced a bill that would have allowed Canadian municipalities to ban handguns in their jurisdictions. The mayors of the largest cities in Quebec, the Fédération québécoise des municipalitiés, the mayor of Toronto and the mayors of several other major Canadian cities all spoke out against this problematic approach and the challenges it would create.

Since it came to power, the government has been floating the possibility of having the provinces ban handguns in their respective jurisdictions. This new approach, like the original one, seems motivated by the federal government’s desire to avoid assuming direct responsibility and leave it up to provincial governments to decide whether to ban handguns.

Esteemed colleagues, how can we, on the one hand, recognize that illegal importation from the United States is one of the main reasons behind the increase in handguns on the streets of our major cities, in spite of border controls, yet, on the other hand, opt for provincial bans, when provincial governments generally don’t control access to their provinces?

[English]

In other words, the government is contemplating implementing the U.S. approach to handgun control in Canada, which is a proven recipe for an ineffective, patchwork solution. I urge the government to assume its responsibilities and enact an effective handgun ban applicable all across Canada.

Finally, it is notable that the speech says nothing about the ongoing transformation of the Senate. This is despite the fact that we are now the sole upper house in the Westminster model made essentially of groups unaffiliated to political parties, where individual independence is the central principle for selecting and appointing senators. This reform requires amendments to the Parliament of Canada Act beyond additional paid leadership positions. For this, we may have to wait for bolder government initiatives.

Senate reform also requires changes to our Rules, an area where we have full authority to ensure greater transparency, equality and independence. In this task, our Rules Committee should not hesitate to take the time to consider the 12 reports of our now-dissolved Modernization Committee, as well as ideas raised by senators in the Forty-third Parliament and reports from other legislatures where there is an upper house made of more than two recognized groups.

In the French Senate, where there are 348 indirectly elected senators, there are eight recognized groups. In the House of Lords, where we currently have 783 life and hereditary peers, there are six groups with 25 or more members, including 192 cross-benchers, a group not affiliated with any political party. Interestingly, like our Senate, both places are looking at ways to be more relevant to the democratic governance of their country.

Through incremental changes, we are reforming the Senate to better complement the House of Commons and more effectively improve laws for Canadians thanks to our increasing independence from partisan politics. As a result of these internal reforms, senators now have the choice of four recognized groups, along with the options of non-affiliation or of starting a new group. Senators are exercising greater mobility, evident on many occasions since 2019, especially with the creation of the Canadian Senators Group and the rebirth of the Progressive Senate Group, now largely modelled on the cross-benchers group in the U.K. House of Lords. In addition, we have elected our Speaker pro tempore by secret ballot rather than, as we did previously, allocating the position by negotiation.

Logically, the next step in modernization should be the election of the chair and deputy chair of most committees by secret ballot, possibly in a manner consistent with the distribution of these positions by group. Greater democratization of this process will further establish these roles as positions of trust conferred by other senators. For example, we could look at the House of Lords model where some chairs of committees are elected by the whole house. As stated in the 2009 report of the House of Commons Reform Committee in the United Kingdom, the time has come to reduce the influence of leaderships and to democratize the process of committee appointments and house governance.

In our own House of Commons, rule changes have been made over the years to increase the ability of members to debate and vote on private members’ bills. The influence of party leaders has been reduced by more free votes. Furthermore, a new division was added to the Parliament of Canada Act in 2015. The Honourable Michael Chong’s Reform Act granted members of a recognized caucus in the House of Commons the power to recall and replace their leader and caucus chair by secret ballot, as well as the power to expel or readmit an MP from caucus by secret ballot. Then Prime Minister Harper supported these changes. As Mr. Chong said at the time, the Reform Act was “. . . a once-in-a-generation opportunity for MPs to reclaim their influence in caucus and, by extension, Parliament.”

No doubt, colleagues, these changes are reflective of the desire of Canadians and citizens in other democratic countries to have a new style of governance — less like a pyramid — where backbenchers have rights. Of course, political parties remain focused on winning seats and forming government, and this purpose calls for a well-organized structure and a considerable degree of discipline.

However, as senators, we sit in a chamber where members serve until 75 years of age and where direct partisan influence is limited to one group. In this framework, we should not hesitate to embrace maximum independence for each of us to discharge our constitutional function as the chamber of sober second thought.

[Translation]

In conclusion, esteemed colleagues, in 2022 we will be facing the interesting challenge of redefining this chamber.

I hope that we will all keep the objective of a more independent Senate in mind as we do this exciting work, while also acknowledging the Senate’s role as a complement to the House of Commons. We are not here to usurp the instrumental role of the chamber of elected members. We are here to provide value added to parliamentary business as the chamber of sober second thought.

I wish all senators a happy holiday season and I look forward to working with you on these reforms in the new year.

Thank you. Meegwetch.

(On motion of Senator Gagné, debate adjourned.)

(1620)

[English]

On the Order:

Resuming debate on the motion of the Honourable Senator Miville-Dechêne, seconded by the Honourable Senator Cormier, for the second reading of Bill S-211, An Act to enact the Fighting Against Forced Labour and Child Labour in Supply Chains Act and to amend the Customs Tariff.

Hon. Senators: Question.

The Hon. the Speaker pro tempore: Senator Pate, there are eight minutes before six o’clock.

Hon. Yonah Martin (Deputy Leader of the Opposition): Your Honour, I want to say, personally, I know this is very important, but right now I will adjourn debate. I hope to get to this soon. Thank you.

(On motion of Senator Martin, debate adjourned.)

The Hon. the Speaker pro tempore: Senator Pate, I am sorry to interrupt. Honourable senators, it is now six o’clock, and pursuant rule 3-3(1) and the order adopted on November 25, 2021, I’m obliged to leave the chair until seven o’clock unless there is leave that the sitting continue.

The Hon. the Speaker: I hear a “no.” Those in favour of the motion who are in the Senate Chamber will please say “yea.”

Some Hon. Senators: No.

Senator Gold: Concerning all these questions, I will ask the government and try to provide answers as quickly as possible.

[English]