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View Olivia Chow Profile
So I have an amendment to it.
Before I move my amendment, I just want to say two things.
I can't imagine the horror and the sadness that has descended upon that town—and thank you, Mr. Chair, for being there. We can do a lot to support the families there, whether it's through the Red Cross or by visiting them as tourists.
I also want to thank the first responders who have been on the ground and are working around the clock. I can't imagine it's an easy task; I imagine it's life-altering for some of them. They've perhaps even put their lives on the line to do what needs to be done. Of course, there are a lot of officials who are investigating.
I believe it is the responsibility of the government, and of course all elected members of Parliament, to make sure that the food we eat, the water we drink, and the trains that come through our communities are in fact safe. That's what a government is for—to make sure there are regulations in place that industry can follow.
I say this in the context of having looked at all the recommendations that have been made in the past from investigations of past derailments. I'm not talking about this specific derailment at Lac-Mégantic, but about other serious derailments, whether the one in Burlington, where three people died and some were seriously injured, and others slightly injured and traumatized, or other derailments large and small. There was one in Calgary, Alberta, where thank gosh that train didn't go into the Bow River. There have been other derailments too.
After the derailments, especially major ones, the Transportation Safety Board, which has experts on the ground, usually issues a report a year later with its recommendations. Recently, it came out with an annual report that highlighted previous recommendation on a watch list that have not been implemented by Transport Canada.
I don't think we need to wait till the investigation is finished. I believe we have enough information before us—and I will detail it in a few minutes' time—to begin to look at some previous recommendations, such as implementing additional backup safety defences to help ensure that signal indications are consistently recognized and followed, that there be voice recorders in locomotive cabs, that safety assessments be carried out at level crossings on high-speed passenger rail along the Quebec-Windsor corridor, and that positive train controls be in place, meaning automatic braking systems. These are the recommendations that the Transportation Safety Board has made over and over again through the years to improve rail safety.
Also, the Auditor General's office has a list of recommendations. When it did a study in 2001, it looked at the transportation of dangerous goods. It's a report by the Commissioner of the Environment and Sustainable Development from the Auditor General's office.
You have the key findings in front of you. Let me say that to date there is no quality assurance program, there is no clarity in terms of the roles and responsibility within Transportation Canada for dangerous goods inspections, and there is no system to measure and report on compliance with laws regulating the transportation of dangerous goods.
These three key things are critical to improving rail safety, and they have not been done.
Do they relate to the Lac-Mégantic tragedy? I don't know. We don't need to make that assumption, whether they do or do not. But it is our responsibility to make sure that the expert advice is followed now. We do not need to wait another six months or a year or however long the Lac-Mégantic investigation is going to take. I think we can do that work now.
That's why I move that in the recommendation in front of us, which reads “That, the committee conduct a study on rail safety”, etc., immediately after the word “safety”, I would like to insert a portion of my letter, which is in front of you, that first:
a) The Transportation Safety Board recommendations on rail safety that the agency has not deemed fully satisfactory in terms of the actions taken by Transport Canada[;] b) The December 2011 findings by the Commissioner of the Environment and Sustainable Development for the Office of the Auditor General on the transportation of dangerous goods;c) Examine if phasing out and replacement of unsafe tanker cars like the DOT-111/CTA-111A design is required.
And second:
that the Standing Committee on Transport, Infrastructure and Communities requests witnesses to appear in front of the committee from the Transportation Safety Board of Canada, the Office of the Auditor General, Transport Canada, rail companies and representatives of rail workers, the Federation of Canadian Municipalities and as well the Honourable Minister of Transport.
Furthermore, that the Standing Committee on Transport, Infrastructure and Communities request...copies of the following documents from Transport Canada—the General Operating Instructions and other Safety Management System and audit documents for all Transport Canada-licensed freight rail operators;
And that this Study be conducted throughout August and September of 2013, and a report of this study be prepared and reported to the House of Commons in October 2013.
Further, that when more findings of the TSB investigation into the disaster at Lac-Mégantic are available, the committee conduct the second part of this rail safety study, and report to the House of Commons its findings.
So effectively I've cut this rail safety study into two parts. The first part looks at what has been recommended in the past. When specific recommendations come to us from the TSB from the Lac-Mégantic investigation, we will then do the second part of the study. I see no reason to delay the first part, especially as we are hearing from mayors across Canada. Today, for instance, I saw another request from Vancouver. The Canadian Federation of Municipalities has been saying it wants to see precisely what the protocols are regarding the safety management systems, especially those under which MMA has been operating. They want to see all the documents. They want to make sure that these protocols are connected with the emergency crews in the municipalities, because when there is a derailment, guess what, it's the municipal workers who put their lives on the front line. The Calgary mayor said as much.
They deserve or have the right to know, as of now. We have the power to summon these copies. They have the right to know what is coming through their neighbourhoods, what kinds of dangerous goods are being shipped through their neighbourhoods. They have the right to know what protocol is in place and how they fit into that protocol. They have the right to be consulted, and that's what we should work toward. That's why we are asking for these documents.
As to the question of whether we will take people away from the investigation on the ground, absolutely not. I'm not asking the Safety Board staff on the ground investigating to come. Transport Canada should be implementing those previous recommendations. We want them to come and tell us what they are doing and how long will it take for these recommendations to get done.
Why won't Transport Canada wait until after the investigation is complete before issuing new directives? Today, two or three hours ago, Transport Canada issued new directives. They didn't wait. They issued emergency directives because they saw the need to do so. They saw the need to reverse the previous position, of having only one operator, back to having two.
Remember, Transport Canada gave the approval to move from two operators to one operator. They are now reversing it even though the Transportation Safety Board did not say they had to do that. Last Friday, they did not say that “thou shall” or “you should reverse it”. Transport Canada at 2:30 said they are reversing it. They are saying they need to have two operators. The New Democrats have been saying that for a few weeks now. They didn't wait until the investigation was over. They made that emergency directive because they knew what needed to be done and that's why they took action.
We have the road map, not from politicians; we have in front of us the Auditor General's report and the Transportation Safety Board annual report. We have the road map already. There's absolutely no reason for us to wait. I hope my colleagues will support my amendment and allow us to start to work now. We have the responsibility to tell Canadians that we are working together to improve rail safety.
Thank you, Mr. Chair.
View Larry Miller Profile
I would ask the members back.
In consultation with the clerk, I do have to rule the amendment out of order. There are three or four reasons, but one is that the main motion by Mr. Watson says “conduct a study on rail safety when more findings....are available”, whereas this amendment is totally contrary to that and says we should do it immediately. That would change the scope of the motion itself.
As I said, the amendment as a motion itself would be a different thing. To add it as an amendment here, I have to rule as out of order.
View Olivia Chow Profile
On a point of order, Mr. Chair, the rules, according to the Standing Orders, say that a very substantive motion requires 48 hours' notice. Mr. Watson's motion didn't have 48 hours, as you just pointed out.
The Chair: Correct.
Mr. Olivia Chow: That's why I was moving a motion to waive the requirement so that we can debate Mr. Watson's motion. That was what I was trying to do. At the same time, you have seen my motion in front of you. Let's not waste time and get bogged down with parliamentary rules. I know them as well as you do, so let's waive the requirements for the 48 hours.
If five minutes later, Mr. Holder, you want to move a motion related to studying rail safety systems, let's do it. Let's just get on with this.
View Cathy McLeod Profile
Thank you, Mr. Chair.
I do have to indicate that I'm very disappointed that the NDP, when we have the opportunity to question the witnesses, spend most of their time introducing a motion when there's a motion that's been introduced already that we'll be dealing with at the end of the committee meeting.
Having said that, I would like to focus in on Ms. Gallant's bill.
On behalf of the government, we have three amendments we are proposing. I'll just give a quick description.
First is to import the definition of “person” from the Income Tax Act; number two will be to improve the penalty structure; and third is to focus in on information sharing. Everyone has a copy.
I would like to ask Mr. McCauley two things. One is to first indicate why we felt these amendments were important to strengthen the bill. They're technical in nature. I too—if he could speak further about the form—look at the piece that has to be done by the individual. I certainly appreciate the physicians' much more complex piece, but the reality is, it is a very simple form that's done initially by the person or their support person who helps them fill the form.
First of all, could you speak to the amendments, and second, talk about the form?
Paul Chartrand
View Paul Chartrand Profile
Paul Chartrand
2013-04-30 9:00
Thank you, Mr. Chairman. I will begin by offering my greetings to the committee. Thank you for inviting me to appear.
Briefly, by way of introduction, I am a retired professor of law, which I taught for a few decades, mostly in Canada and Australia. I've focused on law and policy relating to indigenous peoples.
Because of some of the comments that were made, I should also add that I was one of the commissioners appointed by Prime Minister Mulroney to Canada's Royal Commission on Aboriginal Peoples in 1996, among other appointments.
I'm here today to make my own professional observations about Bill C-428, not as a representative of anyone. My approach is to make some recommendations based on what I view as good law and good policy based on principles of democracy and constitutional values in Canada.
I offer the following.
The preamble of Bill C-428 characterizes the act as an outdated colonial statute. Is amendment the best way to deal with that? The royal commission's final report in 1996 made some alternative suggestions with regard to amending the Indian Act, but no government since then has undertaken those alternative means, which would by and large involve a negotiation of treaties.
Let me say by way of opening comment that some take the view that amendments to the act involve an attempt to make a silk purse out of a sow's ears, as it were. Given the politically contentious nature of any amendments to the Indian Act, one might add to the image by suggesting the knitting of a silk purse is to take place while tiptoeing through a minefield.
The Indian Act is, indeed, an archaic law that has been imposed upon Indians since 1876, for the purpose of having Ottawa bureaucrats and politicians run the affairs of Indians on reserves. It must be done away with, one way or another. But in Canada you cannot change the state of affairs under which people have been administered for many generations in accordance with the idea that motivated the Indian Act in the first place; that is, that those Ottawa people know better than Indians how to run their own affairs at home. The Indian Act also involves treaty rights because of section 88, which deals with the application of provincial laws and its treaty exemptions.
Clause 2 of the bill, of course, requires that a minister report annually to this committee. My first recommendation is a policy that no amendment to the act is to be proposed or introduced in Parliament without first conducting proper consultations with first nations representatives, and that all bills be drafted in consultation with them.
This approach would tend to promote the democratic principle that laws ought not to be passed without the agreement of those who are to bear the burdens or reap the benefits of the legislation. This approach would at least partly remedy the lack of equitable representation and participation of first nations in Canada's Parliament and government.
My second point is this. Amendments increase the complexity of the law applicable to Indians and lands reserved for the Indians. An annotated publication of the act runs well over 400 pages. Amendments are being made all the time, under various bills, some with obscure titles such as budget implementation acts, and other omnibus bills. These types of bills, which by the way do nothing to promote democratic consideration of proposed legislation, increase the complexity.
There are costs of all kinds worked against first nation interests in such a situation. I note in this regard, that Bill C-45, the recent omnibus bill, also provided for an amendment to the act. That amendment called for the involvement of the minister in the administration of Indian Affairs on a reserve. The interested reader of Bill C-428 will not see that particular amendment.
I will refer to the title of the act. I mentioned that it is a good feature of this piece of legislation that it appropriately identifies the contents of the bill. That's unlike legislation that has recently been passed whose titles obscure the contents of the legislation rather than reveal it. The most egregious example I can think of was known as Bill C-3, which was entitled the gender equity in Indian registration act. That became law in January of 2001. The content of that bill was to deal with the right of individuals to equality before and under the law without discrimination on the basis of sex, as provided in section 15 of the charter. There's no such thing as gender equity in the Constitution.
I will turn now to consider the objectives of the act. What is the mischief to be remedied by the proposed amendments in Bill C-428? The first or preambular statement asserts implicitly that Canada's first nations ought not to be “subjected to differential treatment”. This offends the constitutional recognition and affirmation of the distinct collective rights of Indians as aboriginal peoples who are entitled to differential treatment. Differential treatment is demanded by the law of the Constitution. The easily misunderstood concept of equality of citizenship rights, to which all first nations or Indian persons are entitled, is easily confused, in the public mind and in this preambular statement, with the constitutionally mandated treaty and aboriginal rights, which are collective in nature and demand differential treatment.
My recommendation is that a new, substantive, and not a preambular provision be inserted in the bill that clearly identifies the purposes or objectives of the act. This would go a long way toward assisting in judicial or other interpretation of the legislation. I note that section 3 of the Indian Act—and this is an important provision of the Act—reads that “This Act shall be administered by the Minister, who shall be the superintendent general of Indian Affairs”. Without removing or altering that provision, there might be some difficulties interpreting any sort of an amendment that proposes to do things pursuant to the objectives identified in the preamble.
I'll go now to mention the repeal of sections 32 and 33, which have to do with the outlawing of free trade. If you're not familiar with the history of this provision, I would respectfully urge the members of the committee to look at that, which as I understand began in Manitoba. The Dakota farmers were outdoing the local farmers in the Brandon area and they didn't like that. They contacted their friends in Ottawa and had free trade of agricultural products from the reserve outlawed by these particular provisions.
I would cite the literature of Professor Sarah Carter, who has written a book and some articles that would provide you with an excellent historical background of the way in which this has come about. You will know, honourable members, that section 32 has not been enforced for quite a long time. An order in council from 2010 has exempted all bands on the prairies from this operation. This was a prairie provision.
My modest suggestion in regard to the repeal of these provisions is that you can't dispute that the operation of these provisions would have worked to the economic disadvantage to prairie Indian farmers. The act has contributed to a legacy of poverty and marginalization that forms part of a national mythology of racist assumptions about Indians.
Is it good enough to shut the door on this bad legacy? I suggest that when we shut that door we open another door. The repeal of these provisions is an invitation to you, to the federal government, to set up remedial programs to boost Indian agriculture to make amends. Experts in the field would be able to advise you on the details of such programs, but certainly, you will agree that the objective is one that's recommended by a genuine sense of doing the right thing today.
I refer now to the wills and estates provision, which is clause 7 of the bill and which proposes the repeal of sections 42 to 47 of the Indian Act.
By the way, I suggest that some cleaning-up of the drafting be done. The drafting, in respect to clauses 5 and 7, could be done a lot better rather than throwing headings and substantive provisions all in one basket and saying we're repealing all of that. It's better to clean it up and say, “We repeal the heading, we repeal section 32, we repeal section 33”, rather than saying “The heading and blah, blah, blah...”, which can be confusing. We don't need to add unnecessarily to the complexity, and so a little better drafting can help.
The core issue in respect to the proposed repeal of these sections, which have to do with Indian wills and estates, has been considered by the Supreme Court of Canada. Again, the case of Canard from the Sagkeeng First Nation in Manitoba in 1976 is a leading authority in this area. With the repeal of these provisions at first blush, it appears that the wills of Indians resident on reserves would now be governed by provincial laws of general application rather than federal laws under the Indian Act. This is the result of the constitutional division of powers as well as the operation of section 88 of the Indian Act.
It would seem at first blush that this type of wills and succession legislation necessarily involves family relations and, therefore, the traditional values of first nations, their customs and practices. If wills and succession legislation, which also by the way affects interests in reserve lands, is part of first nation law, say Cree family law, then there's an important implication of the repeal of sections 42 to 47.
The question is whether these provincial laws of general application to Indian reserve residents apply, and if so, if they are constitutionally valid, notwithstanding the potential infringement of the treaty or aboriginal rights of the Cree people. I note, by the way, that the current government has also introduced other legislation dealing with family homes, and matrimonial interests and rights on reserve, and the same question appears there. So one has to be very careful when scrutinizing the implications of this sort of legislation, otherwise you're inviting litigation, or challenging it for its constitutional validity.
I mention, for the benefit of the members of the committee, that Cree law, and Cree family law in particular, has long been recognized as good law in Canada, I cite the Connolly and Woolrich case of 1867, which is a reported decision.
In regard to the comments I'm making, I note also that the modern treaties being negotiated with first nations include provisions recognizing the authority of these first nations to make laws in respect to particular aspects of family law. For example, the Maa-nulth Treaty of 2007 includes the power to make laws respecting adoption, child custody, child care, social development, and solemnization of marriages of Maa-nulth citizens.
Clause 6 proposes an amendment to current section 36 regarding special reserves and reserve lands. This is a very difficult topic, both as a matter of statutory interpretation and constitutional analysis and as a political issue. It is not all that easy to discern the objective of this particular provision. Again, it would be helpful if you had, as I suggested, some provision to better identify the objective of the legislation.
As I understand the text of the proposed amendment, it would have a prospective effect of only retaining the status of reserved lands that are now in the category of special reserves. By necessary implication, all reserve lands created in the future would have to be lands to which a legal title were held by the federal or provincial government.
The implications of that have to be examined very carefully, I think, given the difficulties of ascertaining the law applicable to Indian reserve lands. I cite in particular a proposal that has been floated around for a few years. I don't believe this has been put in the form of a bill yet. It's been called under various names, including the first nations property ownership act. I've concluded in my work that what has been proposed, at least so far as I've gathered from reading a book by some people who are not lawyers, that the objective of creating fee simple on-reserve land is constitutionally impossible. In fact, that may be one of the reasons why the bill hasn't surfaced yet.
View David Tilson Profile
Then it fails. I'm just here counting. You guys have to do what you have to do.
(Amendment negatived)
The Chair: Shall clause 22 carry?
View Kevin Lamoureux Profile
Lib. (MB)
Yes, Mr. Chairperson, this is the last one that I'm going to be moving in this category.
I move that clause 23 of Bill C-43 be amended by replacing line 39 on page 7 with the following:
conditions on the person, taking into account their needs and public safety.
View Kevin Lamoureux Profile
Lib. (MB)
View David Tilson Profile
We will have a recorded vote on amendment NDP-8.
(Amendment negatived: nays 6; yeas 5 [See Minutes of Proceedings])
Mr. Lamoureux, would you move LIB-12.
View Kevin Lamoureux Profile
Lib. (MB)
Mr. Chair, I move that Bill C-43, in clause 24, be amended by replacing lines 6 and 7 on page 8 with the following: ment of at least six months that is not a conditional sentence and was not committed by a foreign national who proves by any means that he or she has habitually resided in Canada since the age of 13 or younger or has lawfully resided in Canada for more than 20 years.
In attempting to explain this, I'll try to stick to the script and then provide a few comments after that, Mr. Chair.
This change would exempt those living in Canada since the age of 13 or younger or those who have resided in Canada for at least 20 years from being affected by the deportation change of two years to six months. This not only addresses issues surrounding the punishment of long-term permanent residents, but it is modelled after the French legislation.
I'd like to point out that the government routinely references other European countries that have similar laws and it would make sense that we incorporate this one as well. It also removes conditional sentences from being considered.
First off, I would like to say that the Liberal Party does not agree with the change from two years to six months for deportation. The amendment we are putting forth is only to improve, if every so slightly, a severely flawed clause. I would like to point out that Richard Goldman sent correspondence last week citing the Alberta Court of Appeal decision. All of us should be very much concerned. The ruling that he attached indicates that Alberta does not consider immigration implications when regarding a decision. I think that's a very important thing to recognize as a committee. In fact the decision states in paragraph 23, “Furthermore, it would be a strange and unfortunate legal system wherein a non-citizen could expect to receive a lesser sentence than a citizen for the same crime. No such distinction should be countenanced.”
I bring this up because in deliberating the six-month sentence many government members incorrectly contend that all criminal courts take into consideration immigration when making a decision, and therefore, the deportation change to six months is seen as being warranted.
As many of you have now seen the correspondence, as it was sent to all committee members, this notion that immigration matters are considered across the board in Canada is incorrect, and I fear it will cause members to pass a clause that ultimately is based at the very least on a glaring falsehood.
If the government is truly intent on passing clause 24, I ask that they at least consider this amendment that would put us more in line with what France has in their legislation.
Further to that, Mr. Chairperson, I want to pick up on two observations I have made.
I believe not taking into consideration conditional sentences is a serious mistake. I sat on and chaired a youth justice committee and am very familiar with different forms of dispositions that are given to people. Quite frankly, conditional sentences are something which I think do have a role to play in our judicial system, which I respect as being independent. I believe it would be a mistake to incorporate conditional sentences in this because a judge has in essence taken into consideration the severity of a particular crime when he or she hands down a conditional sentence. I think we need to make note of that particular fact. I think other presenters have also noted that.
The other thing is that I modelled the whole 13 years and under 13 based on what was being suggested in France. I have personal opinions on that issue, but at the end of the day, I think we've had presenters who, and I would have thought most members of the committee would recognize that for young people who come to Canada at two years of age and have been living in Canada for 20 years or more, Canada for all intents and purposes is their home.
To consider deporting, because of what some might determine is a serious crime, someone who came to Canada as an infant.... An example I used quite often during the committee process is that of the 20-year-old man or woman who uses false identification to cross the border, for whom the ramifications of doing so ultimately could see that person deported.
I believe that would take place. If that's not the case, I would love to see an actual legal opinion saying that it is not the case. There is a discussion that we should be having here in committee before we start to say that anyone under the age of 13 is going to be deported because of what the government or some people might say is a serious crime.
We even passed legislation saying there would be a minimum sentence for six pots of marijuana. It has been pointed out that this is only for trafficking purposes. There are a number of young people who, in their teenage years, traffic some marijuana in high schools. We know it's going on there. Once they hit university, quite often they will stop; hopefully they find different ways to make income. We're not going to condone that sort of behaviour, but the reality is that it does happen. This would receive a minimum sentence.
Is it proper to deport someone in a situation like this, when they grew up in Canada? I think not, and equally I think not in the example I used in regard to using false identification in order to gain entry to the United States and have a drink to celebrate with their peers who have graduated from high school or a university.
I hope members will seriously contemplate supporting this particular amendment.
View David Tilson Profile
Yes, Mr. Lamoureux.
(Amendment negatived [See Minutes of Proceedings])
The Chair: Shall clause 32 carry?
Mr. Kevin Lamoureux: On division.
(Clause 32 agreed to on division)
(On clause 33—Appeal)
The Chair: Ms. Sims, we are on clause 33 and amendment NDP-9.
View Jinny Jogindera Sims Profile
A recorded vote, please.
(Amendment negatived: nays 6; yeas 5)
Ms. Jinny Jogindera Sims: A recorded vote on the clause, please.
View David Tilson Profile
It is. Could I see it?
I appreciate all the help everybody's given me.
We're going to vote on amendment LIB-5. It's a recorded vote, Mr. Lamoureux.
(Amendment negatived: nays 6; yeas 5 [See Minutes of Proceedings])
The Chair: Mr. Weston, your proposed amendment seems to be in order. You could move that, please.
View David Tilson Profile
Government amendment G-2 carries.
(Amendment agreed to)
Shall clause 8 as amended carry?
Mr. Kevin Lamoureux: On division.
(Clause 8 as amended agreed to on division)
View Jinny Jogindera Sims Profile
Could we have a recorded vote, please.
(Bill C-43 as amended agreed to [See Minutes of Proceedings])
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