Hon. Brent Cotter: Honourable senators, I rise to speak briefly on Bill C-284. I don’t usually get to speak on Wednesday, so this is a special honour.

You’ve heard the numbers with respect to vision: the extent of vision loss among Canadians in the millions; the economic losses in the billions; the emotional effect of loss of enjoyment of life; and the cost to Canadians who suffer — often unnecessarily — from vision loss. These are heartbreaking messages, and I hope they will motivate us to act with respect to this bill.

My own motivation to speak today, though, is inspired by two things: first, the wise, thoughtful leadership of Senator Ravalia on this matter; and, second, personal experience.

One of the remarkable things about this version of the Senate is the diversity of expertise residing in our individual senators. Each of us in this place looks to make meaningful contributions, often drawing on our own non-Senate experience and expertise and hopefully finding ways to make contributions that are consistent with our values and hopes to build a better Canada. Senator Ravalia is an exemplar in this regard, drawing from his experience as a medical doctor, his knowledge and his empathy for so many — including many patients suffering from vision loss, particularly in cases where this was preventable.

Senator Ravalia has agreed to sponsor this meaningful bill. It will not cure vision loss, but it will mandate the development of a long-overdue national strategy to address a scourge experienced by so many. I’m confident that its value is incontrovertible. I’m confident it is incontrovertible from your perspective as well. It is a bill from the heart. It feels to me as though this bill — a bill from the heart — is a model of the man who sponsors it in this place. I hope we will appreciate this work and commitment on his part and his partner in the other place, member of Parliament Judy Sgro.

Thank you, Mohamed. I’m honoured even in this small way to be associated with your work. We will all bask in the reflective glory of this achievement, both when the bill is passed and in the years ahead when a national framework makes a real difference in reducing preventable vision loss.

My second motivation in speaking today is personal. My mother passed away a few years ago at the age of 95. She was a loving, kind, devout woman and a supportive spouse to our father. My father tended to occupy a larger-than-life place in the close, loving family, but my mother was a critical anchor to it.

For pretty much the last 25 years of her life, my mother lived with steadily advancing macular degeneration and was legally blind for pretty much the last 20 years of her life. However, my mother was fortunate in so many ways — ways in which others who suffer from vision loss are not. She had a happy marriage of 55 years, a loving husband and wonderful children. She’s not here to dispute that. It’s kind of fun when there are no rebuttals.

Our family was not wealthy, but we lived comfortable lives, and my mother had a deep, deep religious faith — deeper than anyone I have ever known. I mention these things for two reasons. First, unlike many in her situation, although her own steadily declining loss of vision caused a meaningful diminishment in her life, she was fortunate and aware of it. This was one negative aspect of an otherwise fulfilling and meaningful life.

For example, she loved to travel. When it came to travel, she had the view that one third of the joy of travel was the anticipation, one third was the experience and one third was the remembrance. Even with macular degeneration, she still loved to travel, and the more exotic, the better. Though the experiences were much diminished by vision loss — and she had to hear more and more of what we told her we saw — she still had a great experience in those regards.

With respect to “the more exotic, the better,” I have one example. One year, when she was about 80 and had lost most of her vision, we went on a trip to Uganda. While we were there, we stayed at a resort near a lake in the western part of Uganda in the heart of a pretty basic, unfenced reserve filled with, among other animals, hippopotamuses — if that’s the right plural. Walking back to our rooms after dinner one evening just at dusk, she and my daughter Kelly got out in front of the rest of us. Between my daughter’s lack of attentiveness and my mother’s lack of vision — a bad combination of “lacks,” let me tell you — they came within a few feet of walking into the rear-end of a hippopotamus enjoying an early evening feeding. We learned afterward that this was a very dangerous situation. Our host rescued them. However, my mother, stoic as ever, was of the view that if this was the way she would meet her maker — through a combination of lost vision and an unfriendly hippo — so be it.

She was this way with her vision loss too. It was her lot in life, she felt. Her powerful faith made this acceptance possible for her in life.

I greatly admire the way in which my mother accepted — even embraced — this infirmity, but all of us wish that she had been able to live her life more fully with good eyesight.

I hope — as I’m sure my mother could — that through the initiative of this bill, we will reach a stage where this kind of vision loss and so many other vision infirmities are a vestige of the past. It is, in some respects, a small tribute to my mother that I make these remarks.

I hope you will support this bill, help to send it across the finish line without delay and get this important work under way. Thank you.

Hon. Brent Cotter: Senator Gold, thank you for your remarks and for your leadership on an important bill that is being considered by this chamber.

I’m a member of the Legal and Constitutional Affairs Committee, where it seems likely this bill will go, so I’ll have a decent number of opportunities to explore the bill, but I did want to ask one, what I would call, institutional question, in your capacity both as sponsor of the bill and as Leader of the Government in the Senate. You made reference to the five-year review and you used, I thought very carefully, the words “reviewed by Parliament.” But I think as you know, the bill calls for a review by the House of Commons.

I have in front of me here the clause, which is clause 2 of the bill, a review on the fifth anniversary to be carried out by a standing committee of the House of Commons.

This strikes me as not entirely respectful of this portion of Parliament, and in light of your endorsement of the confidence you have in the Senate, which I believe was part of your speech, I wonder if you could speak to what I would call an oversight. I would be interested in your view on that, especially since, as I seem to understand, the House of Commons didn’t study it at all in the first go-round.

Hon. Brent Cotter moved second reading of Bill C-51, An Act to give effect to the self-government treaty recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate and to make consequential amendments to other Acts.

He said: Before I begin, I want to acknowledge that Canada’s Senate is located on the unceded traditional territory of the Algonquin Anishinaabeg people.

I want to begin my remarks by talking about the War of 1812. Now, I wasn’t there, and I don’t think most of you were either, but it was a fairly important war. It was our only war with the United States of America, and you might recall that we won. Indeed, though lost to a degree in the mists of history, the political and governance structure of this continent and this country would be vastly different if that war had had a different outcome.

The Dakota were critical military allies of the British in that war. During the War of 1812, they defended what is Canada today and were presented with King George medals and promises that their lands and rights would be protected.

This was a major moment in an otherwise formative period of the Crown-Dakota/Lakota relationship that began in the mid-18th century, and in a context of increasing conflict between British North America and the United States.

In the years that followed, the Dakota did not feel particularly welcome — that is, those who resided in the United States — and Chief Whitecap was one of the leaders that journeyed north with his community to Canada. They wanted to remain part of a British territory and reminded authorities of the promises made to them.

It is an understatement to say that their commitment to British North America did not make them popular in the United States and, as I will emphasize later, since time immemorial the Dakota, and specifically the Whitecap Dakota, have governed themselves.

I will now say a few words about the history of the Dakota and, in particular, the Whitecap Dakota, and then a bit about self‑determination and self-government for the Whitecap Dakota First Nation and leading to this bill and agreement. In doing so, I hope to show why the bill we’re speaking about is critical to advancing reconciliation in Canada. I hope to show that, while some of the bill’s details might be new, the concepts of self-determination and self-government it is based on are not new. Indeed, what we’re doing is reviving what previously existed.

The Dakota are part of the Oceti Sakowin Oyate, the People of Seven Council Fires, which was an alliance of seven Dakota, Lakota and Nakota groups. These groups shared similar languages, history and culture and their territory spanned central regions of the United States and Canada.

The word “Dakota” means “friends, or allies” — meaningful in the context of the War of 1812, I think — and the Dakota/Lakota Nation successfully built alliances to establish peace and prosperity.

In the early 1860s, when many Dakota people sought refuge in the north, they were led by Chief Whitecap, Chief Standing Buffalo and Chief Little Crow. Chief Whitecap established his community along the South Saskatchewan River, and — you may find this amazing — went on to co-found the city of Saskatoon, my city.

Most of the bands are located in Manitoba and Saskatchewan. The Whitecap Dakota band is on a reserve about 30 kilometres south of Saskatoon. It is a small First Nation with a population of 692. It has a small parcel of reserve land, much smaller than other treaty nations in Saskatchewan. It’s near the South Saskatchewan River. It’s not on good land, and for more than a century the Whitecap Dakota struggled.

Let me speak a bit about its history, in particular dating to 1991, more recently, when Chief Darcy Bear became chief. The nation had an unemployment rate of 50%, its social and health services for its people were in tatters and the band’s finances were abysmal. Chief Bear told me recently that when he became chief, he was attending university and was in business school. As a student, he had a small amount of money in his bank account. By comparison, the band’s bank account had nothing and, in fact, it was overdrawn. He was, in a way, richer than his whole First Nation.

Where is the Whitecap Dakota Nation now? The band has developed services for its people in education, social services and health. It has established a range of business enterprises and it has an almost nonexistent unemployment rate. Among their best‑known businesses and enterprises are a First Nations casino — the most spectacular and successful in Saskatchewan — a world‑class golf resort and an adjacent hotel resort. When it opened, the Dakota Dunes Golf Links was selected the best new golf course in Canada. The Professional Golfer’s Association Tour Canada, or PGA, stops there every July.

The nation’s wise land management, a range of economic development initiatives and efforts to build a tax base for their own-source revenues is exceptional.

The Whitecap Dakota Nation is well known across Canada for this remarkable socio-economic development and the various successes of its business ventures and partnerships, many with the private sector and with the Province of Saskatchewan.

Though the reserve is small and the population, as I said, is only 692 people, its enterprises generate millions annually in own-source revenue for their community. This prosperity extends beyond Whitecap Dakota’s reserve and has significant benefits for neighbouring local businesses and the city of Saskatoon. For example, the on-reserve businesses employ as many non-First Nations people from off-reserve as there are citizens of the Whitecap reserve in total. About 650 non-members are employed at Whitecap; Whitecap is an economic engine for my city. In short, Whitecap is a strong, thriving community and has a long history of self-governance.

The Crown promised assistance and protection following their participation in the War of 1812. How did that work out?

Well, that promise was broken. Talk about breaking promises early. The war occurred in 1812, and promises were broken in the negotiations that concluded with the Treaty of Ghent in 1815 — three years later. These are the negotiations that ended the War of 1812.

The Dakota were not welcomed by the Crown as allies. Instead, they were permitted to stay in Canada but branded as “American-Indian refugees” in the decades that followed. When the Crown began entering into the numbered treaties with First Nations in Western Canada in the late 1860s, the Dakota were purposefully excluded from the numbered treaties.

As a result of unfair policy decisions made over a century ago, the Dakota have been denied formal recognition as Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982 — denied recognition as Aboriginal peoples until, hopefully, Thursday of this week. In every way but one, the Dakota nations have been treated as any other First Nation, Your Honour, and, generally speaking, the treatment has not been favourable. They were subjected to the Indian Act, residential schools, the Sixties Scoop, the pass system, the theft of their children, the reserve system and various other laws and policies that have failed Indigenous people and Canada writ large. The Dakota have shared in this experience and, at the same time, do not even have a constitutional foothold the way that other Indigenous communities have. They continue to exist today as “American-Indian refugees,” present in Canada at the pleasure of the Crown.

The Whitecap Dakota self-government treaty we’re talking about today in Bill C-51 will change all of that. It will reinforce the Dakota spirit of alliance, as was recognized way back when. What does the Whitecap Dakota Nation think of this bill? It is acknowledged to be the next step toward the First Nation’s vision of self-determination. The treaty is a product of 12 years of negotiations. Senator Arnot was an early proponent of this, and I hope he will speak about it himself in his remarks. It was approved by Whitecap Dakota membership through a community approval campaign that was aligned with their customary decision-making processes with 92% support in the fall. When, finally, the membership voted on this governance treaty, the vote was 100% in favour. Sounds fairly positive to me: strong community support.

What does Bill C-51 do? The bill does two things: First, it recognizes Whitecap Dakota as a First Nation pursuant to section 35 of the Constitution. This changes their status from refugees to an Aboriginal people recognized under section 35, correcting more than a century of injustice. Second, it removes Dakota Whitecap from the oversight of most aspects of the Indian Act and recognizes a range of governmental authorities for Dakota Whitecap in the self-government treaty. As we know, many federal laws and policies, including the Indian Act, have constrained First Nations governance.

First, the Indian Act imposed a colonial form of governance on Dakota Whitecap, and so many other First Nations, with limited forms of local administration. For decades, the Dakota Whitecap have been working to leave the Indian Act. They had a series of initiatives from 1989 to 2012 and have removed themselves, as if percentages matter, from about 35% of the Indian Act’s control over Whitecap Dakota — steps toward reclaiming self‑governance.

To replace this very large Indian Act framework in this treaty and self-government agreement, the governance treaty provides that the Government of Canada will recognize the First Nation and give it jurisdiction over core governance; membership; language and culture; lands management; emergencies; public order; peace and safety; taxation; environment; resource management; agriculture; public works and infrastructure; local traffic and transportation; wills and estates; education; health; licensing, regulation and operation of businesses; economic development; alcohol, gaming and intoxicants; landlord and tenant matters; and the administration and enforcement of Whitecap Dakota laws. It’s a pretty spectacular range of governmental authority.

I want to say a word or two about taxation, and here I will leave my prepared remarks, if I may.

One of the great constraints of the Indian Act and the Canadian relationship with First Nations, in my view, is that we have not moved to models like own-source revenues and the building of financially accountable governments. We have relied too much on transfers from Ottawa.

We need to build the models of government that communities need and want. One of the keys to that is building a taxation regime that a government can administer itself. From my briefs with government officials over the past few days, I understand the Department of Finance has been working to negotiate a complementary real property tax agreement and tax treatment agreement setting out the scope of Whitecap Dakota’s tax jurisdiction on reserve lands.

The department highlighted that Whitecap Dakota have proven successful with innovative taxation tools and powers and that these complementary agreements yet to come will provide the community with added taxation powers to advance this interest. In fact, the real property tax agreement set out in this legislation is the first agreement of its kind in the country.

Senators, this is good legislation. It puts decision-making power back in the hands of Indigenous governments to make their own choices about how to deliver programs and services to their own communities. The bill also, I should say parenthetically, renames the self-governing entity the Whitecap Dakota Nation. They lost their name when they left the Indian Act, and they needed a new one. This is the one the community wanted, and it is a good one.

This bill is a major step to revive self-governance and self‑determination for the Whitecap Dakota people who have contributed to our country for a very long time, and that contribution has not been well recognized. It is also an important step for reconciliation, moving past colonialism and paternalism, toward legislation grounded in equality and respect.

Honourable senators, I encourage you to join me in taking this next step.

Thank you, pidamayado.

Hon. Brent Cotter: Would Senator Wells take a question?

Senator Wells: I would.

Senator Cotter: By way of background — and I think Senator Wells knows where this is coming from — you observed the part about employees getting a modest degree of super priority for unpaid wages and the Wage Earner Protection Program filling in some of that gap. The evidence from the Wage Earner Protection Program is that there is still a significant shortfall for employees. Indeed, that plan itself acknowledges that its recovery — subrogated, that is, in the place of workers — is a recovery of about 2% or 3%.

I recognize the dilemma you described about the other place, but when one thinks about workers who might lose some portion of the pension they will collect 20 years from now versus the shortfall of last month or the month before and paying the rent with credit cards, the attraction of a super priority seems to me to be compelling for the parts of wages they have not been able to get. I would be interested in whether you think that’s an appropriate issue to be considered in this exercise?

Senator Wells: It’s a really good point, Senator Cotter, and you and I have spoken about this. I read the transcripts from the other place where they addressed it. It was removed not because it was a bad idea. I think it’s a great idea. I agree that severances and unpaid wages may be even more important — they’re certainly equally as important.

I think it’s something we should explore further at committee. If there is an amendment to that, we will address it there. If there are some sharp edges that might suggest that it wouldn’t pass again in the other place, then we would have to deal with that. On principle, I think it’s an excellent idea. If this is the vehicle for it, then terrific. If it’s not the vehicle for it, then maybe that’s something this chamber should seek.

Hon. Brent Cotter: Honourable senators, the remarks this evening and throughout the day on this topic have been outstanding. Senator Gold gave one of his finest speeches, and it will be remembered here. I agree with much of it. His recitation of the history of these issues was outstanding.

This is a narrow but important issue, and a hole in the law that the Supreme Court of Canada itself acknowledges.

Let me begin by speaking about this personally. Much of my career has been skipping from issue to issue off of the tops of the waves rather than digging deeply into issues, with some exceptions, and this is one.

As a young lawyer doing legal aid work, I defended a young man with intellectual impairments who was charged with rape, as it was then called. He was extremely intoxicated, so much so that, many hours after his arrest, he blew 0.21 on the Breathalyzer — nearly three times the legal limit for driving a car. The defence was that he was too intoxicated to form the intent to commit the crime of sexual assault.

I did my best. The case went to the Saskatchewan Court of Appeal. The legal issues were complex, or at least they were at that time, and the Court of Appeal took a year to make a decision. They upheld the young man’s conviction — rightly, in my opinion.

This got me thinking about two things. First was the role of lawyers in defending people in these situations — a topic for another day. Second was the problematic nature of the law if people who put themselves in such a state can be absolved for what they did when they were very intoxicated.

Unlike other areas of the law, I have followed the evolution of the law in this area of extreme intoxication more closely than others. I found that Senator Gold’s recounting of that law brought me back to those cases and memories of that evolution.

It brings me, in some ways, to this place and this issue today. I have a tangent that I would share, but I feel Senator Plett stole the quota of tangents for the evening, and I’m going to let this one go and start my remarks at another point.

I have immense respect for Minister Lametti. In my view, he’s doing an excellent job in a very challenging portfolio, and I greatly admire the work of his Department of Justice team. In that sense, I’m in accord with the remarks of Senator Tannas.

On Bill C-28, I think they worked diligently on short notice, under significant public and political pressure, and they did the best they could. Let me be fair to the minister and his team: They may be working on a problem that is virtually intractable. Let me try to explain.

What we love or value in general terms, we often hate in its specifics. Here is what I mean: First, we have a foundational principle in our criminal law of hundreds of years’ standing, reinforced by our Charter of Rights that, with rare exceptions, we only punish people for offences when they have a guilty mind or, as Senator Dalphond said in his more erudite manner, mens rea. In simpler terms, we only use the criminal law to punish people for doing a bad thing if we conclude that they intended to do the bad thing, and nearly all of us are fine with this. Senator Gold presented this in a more elegant way.

Second, in an instance like the cases that bring us here, courts have found that the person who did the bad thing had no ability to intend to do the bad thing. Hence their acquittal, and hence our problem.

Let me add a bit to this. In Brown, Sullivan and Chan, all nine judges of the Supreme Court of Canada came to the same conclusion. It’s not some aberrant flight of fancy. In fact, in my view, Justice Kasirer’s decision, writing for the whole of the Supreme Court, is principled, honourable and heartfelt. He understood the significance of what he and his colleagues were deciding, and in an extraordinary effort — unusual in court decisions — offered ideas for ways forward for Parliament to fill the gap that they knew they were creating in the criminal law.

This is a classic example of what Professor Peter Hogg, perhaps Canada’s greatest constitutional lawyer — even, if I may say so, greater than the Leader of the Government in the Senate, perhaps a subject of debate on another day, I’m sure — referred to as a dialogue between the courts and the legislatures in relation to the Charter of Rights — in this case, Justice Kasirer’s dialogue; it is now our turn.

The question is: Is Bill C-28 the right parliamentary response in this dialogue? Many of us have spoken and will speak to the perceived or anticipated shortcomings of Bill C-28 as a response to what I will call self-induced criminally negligent extreme intoxification leading to harm to victims. In discussion with Minister Lametti, as Senator Plett noted, I raised one of these points myself regarding the ability to effectively prosecute the offence.

To be fair, the dilemma is difficult. We are reluctant — as Senator Gold noted — to create an offence that is limited to merely criminalizing negligent intoxification. Some have suggested, including the Supreme Court, that this provides a discount for intoxification. On the other hand, a bill like Bill C-28 honourably seeks to link the criminal negligence to the risk of harm and essentially the harm itself so that the perpetrator, if convicted, will be punished in line with the severity of the harm caused, not just the intoxication.

Here is my concern: By pursuing the very goal it seeks to achieve, Bill C-28 poses the risk that the necessary evidentiary connection, not constitutional, to that bigger offence and punishment — the linkage to that bigger guilty mind, the intention not just to become extremely intoxicated, but even objectively to risk harm — will be potentially unachievable.

Let me say a little bit more on that. Senator Gold described, rightly, that this will be an objective standard. I have no idea what the statistics are about magic mushrooms, but I want to tell you that it is almost unimaginable to me that lots of people having ingested a lot of magic mushrooms rush out and harm other people. My guess is that on all kinds of these substances the statistics are shockingly low that people take them and then engage in violence. If that is true, it powerfully undermines the argument that convictions will be achieved.

Senator Gold and I had an informal discussion about Bill C-28 yesterday. It was a rich discussion. I will not say more about the content. It was enriching for me, at least, and it made me somewhat more hopeful — but I think that I would only say “somewhat” — that the bill will be able to be effective. It brought to mind a metaphor that I shared with Senator Gold. I wasn’t going to share it today, but I quite frankly can’t resist. I believe Senator Plett left one more metaphor on the table, and I would like to use mine now.

A Nova Scotian friend told me this story about two fellows riding in a rowboat. They are going down the river. Suddenly they realize, holy cow, they are about to go over a waterfall. One of them, the leader in the boat, says to the other, “Throw out the anchor.” The second guy says, “I would, but the anchor is not attached to the boat.” The first guy says, “Throw it out anyway, it might do some good.”

I am a little bit worried that this piece of legislation, as heartfelt as it is — and I prefaced that in my remarks to Minister Lametti — may not be effective.

Where do I ultimately stand on the bill?

First, I’m satisfied that it is constitutional. I have had advice on that from others. I am completely in agreement with Senator Gold. The bill will not be struck down. It touches all the bases the Supreme Court asks it to touch, and indeed the Supreme Court invites this as one option for consideration.

Second, I would have preferred more reflection to see whether other formulations are preferable. At the same time, I am aware of the urgency of the issue. Additionally, the willingness of all elected parliamentarians to embrace the option deserves meaningful consideration. I’m appreciative that plans are in place to enable senators to study the whole terrain of extreme intoxification in criminal law, including this section of the code. On balance, with some reluctance, I will support the bill and watch attentively its effectiveness. Thank you.