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Speech in Senate Chamber: Senator Cools' question of privilege on a press release by Benjamin Perrin, claiming the Senate and Senator Cools were stalling Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years).

Hon. Anne C. Cools: Honourable senators, I rise to speak on this question of privilege. I gave the required written notice to the Clerk of the Senate earlier this morning and, earlier this afternoon, I gave oral notice here.

Honourable senators, I contend that Mr. Benjamin Perrin, law professor at the University of British Columbia, has breached my privilege as a senator and has also breached the privileges of the Senate as a whole.

He has reflected on the Senate in his press release entitled "Human Trafficking Charges on International Day for the Abolition of Slavery." This press release was about Ms. Joy Smith's Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years).

I would take it as a given, honourable senators, that every one of us is opposed to bad things happening to children and that we need not discuss who may be for and who may be against. That is a given. We are also authorized — if not ordered — under the doctrine of parens patriae to uphold and protect children at all times. I put that out as a given of what I would consider to be mutual respect.

Honourable senators, before I continue, let us remember at all times that there is something in offences, especially sexual offences, involving children, which shocks and offends us all and is naturally abhorrent to us.

In any event, I ask His Honour, The Speaker, to make a prima facie ruling on the facts and also on the law of Parliament, or the lex parliamenti, as received into Canada by the British North America Act of 1867, section 18. Section 18 receives the powers, privileges and immunities of the ancient Parliament of the United Kingdom. These powers and privileges were born by the supreme sacrifice and efforts of many great members of the British Parliament. These privileges came at a great cost. They exist not to serve us personally, but to serve the public good.

Honourable senators, if Senator Kinsella were to find a prima facie case, I shall be prepared to move the relevant motion.

All of this arises in respect of a bill sponsored by Ms. Joy Smith. Just to recount the facts for honourable senators, if you were to look at today's Order Paper, you will see that I am holding the adjournment in my name, and it is Order No. 1, at page 8. Today is day nine. This is quite healthy and there is nothing wrong with that at all.

Honourable senators, I must inform the house that I had a meeting with Ms. Smith, who is the MP for Kildonan—St. Paul, on October 27, 2009. At that time I indicated to her that I wished to speak to the bill and that I was doing some very serious research. I will be honest, honourable senators. I have been reviewing Blackstone and Sir Matthew Hale and others on the whole set of principles of punishment and sentencing.

I informed her of this. I also informed her it was my intention to support the bill at second reading. She understands that. I also informed her that it was my intention to do my research and then to speak.

Subsequent to that meeting, my office has received several telephone calls suggesting that I have stalled the bill — that was their language — even pressuring my staff about my intentions regarding this bill. I do not understand if, how or why any doubts may have arisen about my intentions regarding this bill, but what I do know is that on the record here my intention has been pretty clear all along. I have been working on it and I do plan to speak on this bill very soon.

I would also like to say about this question of privilege that I have no knowledge of any involvement of Ms. Smith in the production of Mr. Perrin's press release. She sent me a copy and I would just like to clear her name on this so that we can understand the nature of my complaint with some clarity.

I remind honourable senators again that when I moved the original motion of adjournment, I yielded the floor to Senator Dyck, at her request, so she could have that second spot and the 45 minutes allocated to that spot. Senator Dyck was persuasive; she wanted to put on the record several important points concerning native peoples. Senator Dyck knows that I honoured her in that, just as I have honoured Ms. Smith.

I have also made it clear that if any senator wishes to speak to Bill C-268, I am willing to yield the floor at a moment's notice.

Honourable senators, I should like to read from Mr. Benjamin Perrin's press release of December 2. I remember thinking this is the very law professor at the University of British Columbia who, in the debates in the House of Commons on the bill, it is made quite clear, played a very important role in the development of this bill. As I said in my notice, there is a pride of authorship here, honourable senators. I do not know the full extent, but I do know that he was fully involved.

I want to read the press release. If I could table it, that would spare me having to read the whole thing.

The Hon. the Speaker pro tempore: Honourable senators, is it agreed that the press release be tabled?

Some Hon. Senators: Agreed.

Senator Cools: That way I can read only the relevant portions.

It is entitled, "Human Trafficking Charges on International Day for the Abolition of Slavery."

Honourable senators must understand this press release jolted me in very deep and primeval ways that perhaps I cannot express. I would hope some people have the imagination to understand why.

It says "for immediate release" and is dated yesterday, December 2, 2009. I shall read the first paragraph, skip some and then go into the sections that speak about me. I quote:

Vancouver — Today, two separate human trafficking cases were announced by the Calgary Police Service — the first such charges to be laid in the city since the 2005 offence became law. They are poignant reminders that modern-day slavery exists in Canada on the very day that the world is commemorating the International Day for the Abolition of Slavery.

It goes on to speak about the Calgary Police Service and the need for prosecutors to pay full attention, et cetera. Then it describes the first case announced by the police, and on and on. Then there is another headline: "Tougher Laws against Child Trafficking Needed."

In September, the House of Commons approved Bill C-268, which would enact tougher penalties for child traffickers with a five-year minimum term of imprisonment. Inadequate sentences in both Ontario and Quebec in 2008 spurred calls for action. In one case, a convicted child trafficker spent just a week in prison upon conviction after receiving 2-for-1 credit for a year of pre-trial custody.

Honourable senators, tons of other things are offensive about this release that do not necessarily offend our privileges. Then Mr. Perrin goes on:

Unfortunately, Bill C-268 is currently stalled in the Senate because independent Senator Anne Cools has unilaterally adjourned debate on it.

I will read that again.

Unfortunately, Bill C-268 is currently stalled in the Senate because independent Senator Anne Cools has unilaterally adjourned debate on it.

I do not think the man understands what it means to move an adjournment. For the sake of enlightening this appalling ignorance, perhaps I should put on the record that an adjournment is not and cannot be a unilateral action. An adjournment is a conclusion, a decision of the house that is reached on the strength of a vote. Therefore it cannot be a unilateral action. Unilateral is not even the right word.

The press release continues:

"Senator Anne Cools is stalling critical legislation that was approved overwhelmingly by the House of Commons to ensure that child traffickers are held accountable and victims are protected," said Professor Perrin. "As a result of her inaction, alleged child traffickers in a Calgary case announced today will benefit from lax sentences that the current law permits. The Senate must take action."

I want to read this again, colleagues, because I want other people to understand why I find this release so repugnant.

This is Anne Cools speaking. I have spent my life working for people, healing broken families. I began my career as a youth worker, intervening to keep young juvenile delinquents from being detained. While we are at it, the slavery analogy does not make me feel too warm.

I shall repeat:

"Senator Anne Cools is stalling critical legislation that was approved overwhelmingly by the House of Commons to ensure that child traffickers are held accountable and victims are protected," said Professor Perrin. "As a result of her inaction, alleged child traffickers in a Calgary case announced today will benefit from lax sentences that the current law permits. The Senate must take action."

Honourable senators, it continues and you can read it for yourselves.

Let us understand carefully that this particular press release has struck a very deep note with me. To continue with some of the facts, because I was here in the house yesterday, I received this press release at 2:27 p.m. yesterday. I was here in the house. The Senate adjourned at 3:10 p.m. Therefore I learned of this press release only when I returned to my office. Barely an hour later, I received another email copy of Mr. Perrin's press release from Joy Smith at 4:03 p.m. I have made no attempts to find out if she had any role in the production of this distasteful document and I intend to make none.

Having read from this insensitive and distasteful statement, which questions not only my right to speak but also the validity of the entire second reading and, as a matter of fact, of the validity of the entire Senate proceeding itself, including the Senate votes when I adjourned the debate, I must tell honourable senators there is a clear breach of privileges here.

Honourable senators, I shall try to outline some of these breaches. I want to impress upon senators that I understand very well that a disagreement or an unpleasant statement or even offensive statements are not breaches of privilege, so I understand the difference and so I shall continue.

Mr. Perrin has unjustifiably reflected on me and my right to speak in accordance with the rules of debate, as has been verified and supported by the other members of this house. I view this document as an act of pressure and intimidation. Mr. Perrin is insisting that the Senate pass a bill with what Sir Wilfrid Laurier once called indecent haste — indecent haste.

Mr. Perrin has said that accused child traffickers in Calgary will benefit as a result of my actions in the Senate. Mr. Perrin does not seem to comprehend that the Criminal Code is a mighty instrument and that the entire law enforcement system has many tools at its disposal. If this bill were such an important one, then why was it not moved through these houses by a minister under the strength of ministerial responsibility? Are we in another one of those cases where one, it either moved ahead under the opposition of the minister, which means he should resign if that happened, or two, it is moving ahead silently, quietly, with the minister supporting it furtively, that is equally wrong, because the notion of ministerial responsibility must prevail.

What Mr. Perrin has said about these child traffickers benefit from me is not only untrue, but it is outrageous and scandalous and not becoming to any one of Her Majesty's officers of the court. We always forget that every lawyer is an individual minister of justice. Each one is an officer of the court.

These press release statements are calculated to cause, to lead and to incite others to heap scorn and contempt upon me. I have received countless letters and I was informed a few minutes ago that there was a statement on a radio program, I think in Regina, Saskatchewan somewhere. Mr. Perrin's press release is an obvious exercise in behaviour modification intended, frankly, to modify my behaviour.

Honourable senators, I know a lot about the human psyche, and I know what an artful dodger the human psyche can be. All this is intended to alter my actions here on the floor of this house; in short, correcting my behaviour, my actions here in the Senate to be in line with something he would prefer, or something he wants. Maybe we should have an opportunity to ask him.

Honourable senators, this release is a breach of the highest privilege of free speech. It is a reflection on me and on the Senate. It is a breach of article 9 of the Bill of Rights of 1689, all of which was received into Canada by the BNA Act of 1867. However, I will put this on the record for you. The Bill of Rights, article 9 states:

That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.

Those are powerful words. It may be that Mr. Perrin is just a person who has an overactive vanity, or a bad day; who knows. We do not know, but I am saying his action is wrong.

Honourable senators, senators are supposed to be able to act and speak in this place without intimidation and without reprisal from others. Healthy criticism and healthy disagreement are welcome and desirable, but Mr. Perrin's statements are neither of these things.

This is an attempt to poison my reputation by creating an illusion that, somehow, I am supporting crimes, or would support crimes, or I am capable of supporting crimes that are naturally abhorrent and repugnant to most of us. This seems to be the new thing these days — that is, to point a finger at the other person who disagrees, or questions. If he disagrees with you on something like the Anti-terrorism Act, to suggest that maybe he supports terrorism himself. It is that sort of thing. It is both mischievous and menacing.

I wish to share with honourable senators the natural repugnance and the deep disturbance that we experience when we hear of sexual crimes against children. As a social worker, I have seen and worked with the most horrendous cases that anyone could ever imagine. Mr. Perrin is trying to massage that natural repugnance and then to tar me with it. It is truly distasteful and it should be condemned as such.

Honourable senators, Mr. Perrin seems to be saying that the House of Commons' word is word enough and that the Senate should adopt Bill C-268 without much ado and with no debate. That is to say, less is good; none is even better. This is another breach of the Senate's privilege of independence because the Senate is the house of sober second thought for study and deliberation in review of the decisions of the House of Commons. This is a separate and sovereign house, and we ought to remind others about that fact every now and again.

Honourable senators, it is my bounden and imperative duty to study the questions that are put before me and it is my intention to continue to do so and to continue to honour and uphold my oath of allegiance to serve and to think and to yield and to give the best that I have to offer. The Mr. Perrins in the world will never alter my mind on any of that. It is an unfortunate thing that he used the example of slavery, because he would have to know in my life what names like William Wilberforce meant to me. Mr. Perrin had better know that he struck a deep, primeval place in me. I do not talk about that very much, but one of these days, I shall.

Honourable senators, there is another breach by Mr. Perrin. I would call it the privilege of representation.

One of the reasons, honourable senators, I am trying to articulate these breaches is that normally we rise and say that there is a breach of privilege and then I believe we must show which one in particular. Most researchers on privilege run to Hallsbury's Laws of Canada. The most important examples are not listed there, however. I am talking about the one called representation. That is the reason we are all here, namely, to represent others, the public, in Parliament. Senators are representatives, just as members of the House of Commons are representatives. We have a duty to represent people here, Canadians here, and it is my intention on this bill to represent everyone touched by these measures contained in Bill C-268.

Let me list some of them for us. Some are the accused; some are the victims and the victims' families, prosecutors and defence counsel. I wish to add that I will also be defending the interests of judges at a time when ideologues are attempting to shape and direct judges' conclusions and findings. No public good can be served by ministers invading the ken of judges. I will not dwell on that, honourable senators, because that is the substance of the bill. However, I shall deal with that later on and I shall raise it when I speak to Bill C-268 next week, as planned.

Honourable senators, it is my bounden duty to measure every proposal here against the well-established principles of this system of governance.

I think I have said enough on slavery, but Mr. Perrin has exceeded what I would consider to be reasonable boundaries of criticism and social comment. Senator Murray will remember when we said goodbye to Senator MacEachen. His supporters had a lovely conference for him at St. Francis Xavier University. I was there, as was Mr. Trudeau, Mr. Pelletier and Senator Jacques Hébert; it was the last time I saw them together. I was taken by the motto of St. Francis Xavier University. The place was teeming with marvellous Roman Catholic academics. Senator Kinsella has had that kind of rigorous intellectual training.

Honourable senators, I would like to quote from the New Testament, book of Philippians, chapter 4, verse 8, the motto of St. Francis Xavier, which states:

Finally, brethren, whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report, if there be any virtue and if there be any praise, think on these things.

Honourable senators, I thank you very much for your patient attention.

Hon. Mac Harb: Honourable senators, when my colleague brought this issue to my attention, I had a chance to look at the press release. Frankly, I would like to join her in requesting that His Honour look into this matter and make a decision as to whether it should go to the Rules Committee in order to look at it more closely or render a decision on behalf of the Senate and communicate the correct facts to the individual.

Quite correctly, Senator Cools cannot adjourn without the approval of the Senate. Therefore, the statement indicating that she unilaterally adjourned the debate is not accurate. Furthermore, as we all know, the Rules of the Senate state that each senator has the ability to go up to 15 working days by putting in a motion to adjourn so that the senator can prepare to speak. Therefore, Senator Cools is within her own right in asking to adjourn so that she can prepare.

The Honourable Senator Cools is not stalling. If she is stalling, then the Senate agreed to her adjournment. Therefore, the Senate is stalling. We have a responsibility to stand up and correct the record.

Furthermore, there is the honourable senator's inaction. In fact, she acted. That was not inaction; it was an action on her part in order to participate in an important debate, as was stated and as the other place debated this issue. I am not second-guessing Mr. Benjamin Perrin; I am indicating to honourable senators that it is important not to let this issue go without a challenge of the facts, simply put, under rule 43 (1)(a)(b)(c) and (d). Moreover, under rule 45, the message was not a private, direct communication to the senator, but it was transmitted throughout the media, creating a false impression of what really happened here in the Senate. It was not a true reflection of what happened.

I would like to join with the honourable senator in appealing to His Honour to use his good offices to communicate either directly or through a committee in terms of the facts.

Hon. Sharon Carstairs: Honourable senators, I think it is important to look at the history of Bill C-268 since its arrival in this place. It arrived in the Senate on October 1. Senator Martin did not speak as a mover until October 22, some three weeks later. Was Senator Martin stalling? Of course not.

Hon. Marjory LeBreton (Leader of the Government and Minister of State (Seniors)): There was a break for Thanksgiving during that period.

Senator Carstairs: Senator Martin had every right to take her time to prepare her remarks. As a private member's bill, there are no speeches prepared by departmental officials, as is the case with government legislation. It takes time to prepare. The bill was adjourned on October 22 and spoken to by Senator Dyck on November 3. Was Senator Dyck stalling? Of course not.

Senator Dyck gave an impassioned speech on this particular bill, which was extremely thoughtful and raised some serious questions with respect to the original bill and its potential need for improvements. That day, the bill was adjourned by Senator Banks, in the name of Senator Cools.

Honourable senators, this bill, according to our Order Paper, is on the ninth day. This is quite a normal process, I would suggest, in private members' legislation. I would invite honourable senators to pick up today's Order Paper. It is riddled with bills that have waited for 11 or 12 days. Some of them, in fact, have waited 15 days and the clock has been rewound for the second edition of those 15 days. No one has issued press releases accusing the members of stalling.

While the press release was issued by Professor Perrin from the University of British Columbia, a copy of this press release was quickly sent to Senator Cools' office by the sponsor of this bill, Member of Parliament Joy Smith.

Honourable senators, article number 75 in Beauchesne's Rules & Forms states:

. . . freedom of speech is . . . the most fundamental right of the Member of Parliament. . . .

I would suggest, honourable senators, that this must be interpreted as the right to speak after sufficient time has passed to allow one to participate intelligently in the debate.

Article 93 in Beauchesne's states:

It is generally accepted that any threat, or attempt to influence the vote of, or actions of a Member, is breach of privilege.

I would suggest, honourable senators, that this unwarranted attack on Senator Cools as stalling the bill is an attempt to influence her actions, which might result in her speaking before she is ready, were she the least bit conducive to being persuaded in this way. I think we all know the strength of her character and that this will not in any way determine that she should speak before that.

Article 99 in Beauchesne's states:

Direct threats which attempt to influence Members' actions . . . are undoubtedly breaches of privilege.

I believe the press release issued by Professor Perrin and sent to Senator Cools, by both the professor and the Member of Parliament Joy Smith, should be examined in light of Beauchesne's articles 75, 93 and 99, and that there has been an attempt to influence Senator Cools in terms of her actions and that her privileges have been breached.

Both are entitled to hold views about her actions. That is clear. They are entitled to hold views about her actions. They do not, I would suggest, honourable senators, have the right to attempt to influence her by attempting to limit her freedom of speech.

I urge His Honour to take this matter under advisement. Your Honour, this is not a question of whether we support or do not support this particular piece of legislation. This piece of legislation is worthy of consideration. Suggestions made by Senator Dyck make it even more worthy of consideration. However, in that consideration, we have a right as senators, and we have a right as a Senate, to take our time, to deliberate carefully, to write our speeches, and to make decisions.

I find it a little difficult when I hear the interjections on the other side and see some of the smiles and some of the concerns that perhaps we are going too far on this issue. Senator Cools comes from a history in which, clearly, the whole concept of slavery is repugnant to her. I would hope it is repugnant to all of us. She, as with Senator Oliver, has a particular relationship.

Honourable senators, nothing offends me more than the trafficking of children. Nothing. This bill is of great concern to me. I was sexually assaulted as a child. I know what it is like from personal experience. This is no attempt on my part to delay this bill in any way, shape or form. However, I will protect the privileges of every member of this house, and that is what I am doing in my remarks today.

Hon. Lillian Eva Dyck: Honourable senators, I rise to support Senator Cools in her motion for a breach of privilege. I would confirm the fact that after Senator Martin, the sponsor of the bill, rose to speak, Senator Cools got up and adjourned the debate, and then she yielded the floor to me so I could be the critic for the bill. She was definitely trying her best to have the bill go forward within the chamber.

I, too, received a copy of the press release from Mr. Perrin. I have to say that I was shocked that it came out on the International Day for the Abolition of Slavery. Does Mr. Perrin not know that Senator Cools is a Black woman? He is trying to restrict her freedom of speech and research to do her job as a Black woman in this chamber. To me, that was incredibly appalling. He does not know who she is and the incredible work she has done.

I do not believe other honourable senators have made the case that she is stalling. She has 15 days in which to prepare her materials and do adequate research. It is an important bill, and one cannot just get up and do a sloppy job. She is a very intelligent woman. She is doing her research, and I look forward to hearing what she has to say.

I will close by saying the bill spent five months in the House of Commons. Were they stalling? Many Members of Parliament got up to speak to the bill because it is an important issue.

I will close by quoting from our writ, which Senator Cools herself reminded us of. It says:

KNOW YOU, that as well for the especial trust and confidence We have manifested in you, as for the purpose of obtaining your advice and assistance in all weighty and arduous affairs . . .

This bill is a weighty and arduous affair to which we must devote all our attention, time and resources to do the job that we have been summoned here to do. I congratulate Senator Cools, because I know she has done her job well as a senator in the past and I know she will continue to do so in the future. I urge His Honour to make a decision as quickly as possible.

Hon. Joan Fraser: Honourable senators, a while ago in this chamber, when I raised a question of privilege, Senator Cools stood up and made what I thought at the time — and in retrospect, even more — a profoundly wise statement. She said basically, "I do not know if this is actually a question of privilege, but something has gone very wrong in this case." At a minimum, it seems to me that that is an absolutely appropriate comment to make about the case that she has brought to our attention today, and I thank her for doing it.

I do not know if His Honour will find that a prima facie case for privilege has been made out. My attention was caught by the same citations from Beauchesne's that Senator Carstairs read. I would observe that freedom of speech, to which the first Beauchesne's reference referred, includes freedom not to speak, or freedom to reflect and consider and do research before speaking.

I would further observe that Senator Cools has, as has been pointed out, been fully within our rules and has been accommodating to other speakers, as she has engaged in her reflection on this matter.

It remains true, of course, that everyone, every member of the public, every citizen of Canada and every visitor here has the right to comment on what we do or do not do in this chamber. Some of those comments are, on occasion, wounding.

However, one thing that has gone terribly wrong here, apart from the obviously appalling ignorance shown about Senator Cools herself in the comments made by Mr. Perrin, is that it has betrayed one more time the appalling ignorance that is prevalent in this country about Parliament, and in particular about this chamber. It is even worse when it comes from what, I gather, is a university professor.

If Senator Cools is guilty of stalling, half the senators in this chamber, including a large number of those on the government side, are even more guilty. There are many bills on our Order Paper that have been adjourned for much longer than this one. There are bills on our Order Paper on which senators have held the adjournment since February, March, April and May, and no one has claimed that this adjournment was a public shame.

Furthermore, in practical fact, I assume that this bill, if it receives second reading, will be referred to the Standing Senate Committee on Legal and Constitutional Affairs. If so, it will go automatically to the bottom of the list until yet another bill comes and replaces it at the bottom of what is a long list. As all honourable senators know, government bills take priority in committee work.

We have a long list of government bills coming at us before we even started to consider private members' bills. There is a profound ignorance displayed in the statement that has been made.

Most offensive of all, however, is the implication that because the House of Commons has passed a bill, we should click our heels and do likewise. That attitude is common not only among certain commentators but among a number of members of the House of Commons, including ministers of the Crown, certainly in this government and also in predecessor governments. That attitude is profoundly offensive to this chamber. I find it offensive that Ms. Smith deemed it appropriate to, if you will, endorse this profoundly ignorant statement by Mr. Perrin in forwarding it to members of this chamber.

Yes, Mr. Perrin is trying to modify Senator Cools' behaviour as a senator. Of course, he is. I have already said, Senator Mockler, that every citizen of this country has the right to comment on what we do.

Senator Tkachuk: Exactly.

Senator Fraser: I await with interest His Honour's ruling on whether this degree of comment constitutes a breach of privilege, but I return to my original quotation from Senator Cools. Something has gone terribly wrong here. Something goes too often terribly wrong in the way that members of the other place, and supposedly informed members of the public, discuss the activities of this chamber and its members.

If His Honour finds that there is a prima facie question of privilege, I suggest that the matter be taken up not only by the Standing Committee on Rules, Procedures and the Rights of Parliament but perhaps even by a special committee of the Senate to see what can be done to combat this appalling ignorance that afflicts Canadians. Even if His Honour determines that no question of privilege has been made out, I still think that sending the matter to committee is an appropriate course of action for the Senate to adopt.

Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable senators, I wanted to hear the nature of the alleged breach of privilege. I did not write any notes prior to this debate. I did not seek to consult with my usual advisers. Let us hear what Senator Cools has to say. As Senator Cools spoke, I put down some notes. I have no pre-prepared notes. I am speaking from what I feel are the issues raised here today.

I do not wish to discuss the merits of the bill in question, as others have done. However, it strikes me that Canadians must be free to express publicly how they feel about how we proceed or do not proceed with bills. Canadians must have the right to express their opinion on how this chamber does its work.

I do not know who Mr. Perrin is. However, I think he has an absolute right to express his views. To him, these views are extremely important. He expressed them in his way, as a great number of Canadians do, sometimes in writing, sometimes on radio, sometimes on television or in emails, of which I happen to receive many.

The opinions of Canadians in general have to be protected and we have to protect their right to express those opinions. This one in particular as well; we have to protect Mr. Perrin's right to express his opinions.

If Senator Cools feels that she has been attacked in a way that is inappropriate, there is always access to the courts, if she has received an opinion she does not like.

Mention was made this afternoon about the pressure that was brought to bear on Senator Cools through this press release. Yes, in fact, Mr. Perrin was probably trying to put pressure on her. However, we are under pressure virtually every day from Canadians. Only today, Senator Nolin brought in a petition of 4,000 some-odd names calling on us to take certain action on Bill C-15. Senator Harb for a number of weeks brought in petitions asking every one of us to support the views of certain European people who, in his view, wanted us to take a certain action. We listened. We did not rise and express an opinion that he did not have the right to bring in those petitions.

Freedom of speech was mentioned by Senator Carstairs and Senator Fraser. I wrote this down: "a direct threat made to Senator Cools."

Anyone who reads this press release will not see a threat or a direct threat. What this gentleman is asking for is that Senator Cools act on a bill that she has under adjournment. He is not expressing a threat. There is no threat, or even an intimation of a threat.

I agree with Senator Fraser that the public has the right to comment. I am not sure if I would have used the phrases "appalling ignorance" or "profound ignorance." I tend not to use those kinds of phrases when describing the public. That reluctance is probably from my years of having knocked on doors when I ran for public office.

I say there is absolutely no prima facie case in this press release for His Honour to go out with handcuffs and bring in a Canadian citizen before this court. This gentleman has expressed his views. He has a right to do so, as Canadians always do. Yes, we should protect our right to speak in this chamber, but primarily we should protect the rights of Canadians to express themselves, both publicly and privately.

Hon. James S. Cowan (Leader of the Opposition): Honourable senators, I want to place on the record two facts so that this can be seen in the proper context. First, this bill was introduced in the House of Commons on January 29 and was in the House of Commons from January 29 until it arrived here on October 1. That is a fact.

Second, as has been pointed out by other honourable senators, Senators Cools did not unilaterally delay the discussion of this bill. Senator Cools moved the adjournment of the debate, and we all concurred in that adjournment. This was not the subject of a vote where she was entitled to a vote and all the rest of us wanted to move immediately forward. Senator Cools moved the adjournment of the debate and we all concurred in it. I want those two facts to be on the record.

Senator Tkachuk: No one is arguing with you.

Hon. Consiglio Di Nino: Honourable senators, I do not want to prolong this any longer than necessary. I want to put on the record a couple of my own personal thoughts on this matter. First, if we look at the Debates of the Senate, no one from either side of this chamber has accused Senator Cools of stalling this bill. Certainly, I did not hear any such comments today.

Second, we are not talking about the bill. We are talking about an action that Senator Cools is prepared to take, which she claims impinges on her rights as a senator. It has been said, and I think it is worth repeating, honourable senators, that this is a Canadian citizen who, for his own reasons, feels that Senator Cools is not acting, as he believes Senator Cools should. He believes that Senator Cools is not acting as quickly as she should. Any member of the public has that right and we, as public servants, must be prepared to accept criticism from the public. This is the issue.

Senator Tkachuk: We must also protect that right.

Senator Di Nino: Honourable senators, I do not believe there is a question of privilege. I read Senator Cools' announcement, and I frankly could not see a question of privilege in her information. I think the most important issue that we need to deal with is whether Canadians have a right to criticize and comment. Do Canadians have a right to suggest that we may not be conducting our affairs in the way they would like? I think they have that right and that we should protect that right.

Hon. Yonah Martin: Honourable senators, as the sponsor of this bill in the chamber, I feel compelled to say a few things for the record. First, I want to thank all honourable senators who have expressed their insights and opinions on this matter. I say this respectfully to Senator Cools, with whom I conversed on this matter very early on. At that time, I respected her right to reflect and then speak on this bill. Senator Cools mentioned that to me personally, and that is why I did not approach her a second time, to ask and urge her to speak sooner than when she was ready. I want to put that on the record. My thanks also go to Senator Dyck whose statement was extremely emotive, and we all agree that she put a great of thought into her remarks. I thank Senator Comeau for articulating some of the points I wanted to stress.

For the record, I do know Professor Perrin, a professor at the University of British Columbia, my alma mater. Before I accepted sponsorship of this bill in the chamber, I met with Mr. Perrin and was extremely impressed with his dedication to this issue. He has dedicated the past 10 years of his life to working in Thailand and to coming to an intimate understanding of this issue. Professor Perrin is not here today. I point out that Professor Perrin worked with member of Parliament Ms. Joy Smith, who has made this issue one of her priorities for many years. Ms. Smith's son is a police officer and this bill came at the urging of police officers with whom her son works, as well as other officers who see what is happening to our children. I offer senators this information within the context of how much time has been spent on this bill.

Senator Cools, and all honourable senators who have spoken today, as the sponsor of the bill, I stand to urge all senators to reflect on what we discussed today. I urge all to reflect on the bill, which is important and is urgent as it pertains to the protection of our most vulnerable — our Canadian children and youth.

Senator Cools: Honourable senators, I would like to answer a few remarks, not many. My thanks go out to this new senator, Senator Martin, for her intervention. It is no simple or easy matter for a new senator to intervene in a debate like this, so I want her to know that I admire her and thank her.

Having said all of this, honourable senators, I would take issue with Senator Comeau first. Honourable senators, the cast of mind of the Senate or of the House of Commons or Parliament is a common law cast of mind. Honourable senators, there is no common law right to hurt anyone. Let us be clear.

Freedom of speech affects and applies to everyone, but no one has the right to use freedom of speech to incite or elicit scorn against anyone else, and the common law is clear on that point; the jurisprudence is thick, heavy and deep. Senator Comeau is not quite correct.

I was citing freedom of speech in a parliamentary way, not freedom of speech like the ordinary person out on the street. Freedom of speech as embodied in the BNA Act and the great constitutional acts of this country has a particular meaning, and one of its meanings is that we are bound by a wider set of principles than the ordinary and average person. When I was speaking of freedom of speech, I was speaking of its parliamentary meaning. I would like to record that in case there is any doubt.

Senator Comeau speaks about the rights of ordinary Canadians. If this were about a disagreement, there would be no problem. I would not have raised it. If this were about a difference of opinion, I would not have raised the question of privilege. I want to make this quite clear. I was raising an issue as a breach of the privileges of this place, of statements that are barely disguised as social comment, just barely. I do not even think they meet the standards of social comment.

The first standard of social comment is fairness, balance, equilibrium, upholding the moral condition and then the moral position of the law and the moral position of individuals.

Senator Comeau keeps saying that the person in question, the professor, is an ordinary Canadian. I think that is the understatement. This is no ordinary Canadian. This person is an extremely privileged Canadian who is a professor of law and who should know better. I would expect him to respect the principles of the common law.

Not only is he no ordinary Canadian, he is actually present here in the debate since he is the co-drafter, the co-creator, the co-producer of the bill. There is a section in the House of Commons Debates, which even suggests that he was the directing mind of the bill, creating or forming the language.

This man, Mr. Perrin, has a great privilege to work with a member of the House of Commons to produce a bill to put before us for debate. Therefore, he cannot go out there, waving his little flags as though he is just some simple, ordinary, unknowing and uninformed individual.

He has to respect the fact that he has been a participant in this process, though in an indirect way. I respect that, and I would have upheld that. However, he stepped outside the boundaries that should pertain when one is invited, as he was, to partake in creating a bill that is put before us.

I would never have raised this unless I thought it had an extremely serious basis and foundation. I would like to say, honourable senators, I am used to disagreements. A bit of disagreement does not bother me at all. I have been very blessed; I was raised to respect criticism, and raised in the finest British traditions of criticism and self-criticism. However, I do not think these players were, because they want to pile on criticism but they do not want to take any. I take mine and I will give it, when needed.

Let us understand clearly: This is no ordinary, poor little Canadian, like the victims he is talking about with regard to the bill. These need our protection. They are being told that harder stiffer penalties will correct crime. I will tell honourable senators that they ought to instruct themselves on social deviance and crime. We understand that. There is a lot of literature on this, but we will get there on the substance of the bill. I wanted to make the point that this is no frivolous, capricious or cavalier fact that I have raised. I was mortified and shocked, because Ms. Smith had spoken so highly to me of this gentleman. I was mortified that this press release could come from the hand of the person whom Ms. Smith had described to me as an eminent mind and great respecter of human rights. How can he respect other people's human rights if he does not respect mine? That is my bounded duty, honourable senators.

Honourable senators, as I said before, I was raised to debate and I will touch this again: Individuals like William Wilberforce, Buxton, Clarkson, John Newton, and John Wesley, these abolitionists, were upheld to me as the individuals to emulate. Therefore, when I read his statement about slavery, I reacted very strongly. However, I will tell you a little secret that he does not know. I will inform him, because I know he will be reading the record. He wants to amend the Criminal Code in ways that are unconstitutional. I can tolerate change, once you make the change in accordance with the system. These are major amendments being suggested.

Honourable senators, to Mr. Perrin, I would like to say there is no connection whatsoever with the phenomenon of slavery and these poor, terrible cases that are happening, and they are very terrible cases. I can only find one connection, and it is an intellectual one and a coincidence. The Criminal Code of Canada was drafted by a man named James Fitzjames Stephen. Many people here do not even know this. I have been looking at it, because I am a great reader of all literature. We know that. I am an antiquarian.

Honourable senators, let us understand who James Fitzjames Stephen was. He was one of the greatest minds of criminal law in the U.K. Unfortunately, in the U.K., they never adopted the whole code he wrote, but it was adopted here in 1892. I believe he was the grandson of James Stephen, who wrote the Act for the Abolition of the Slave Trade that William Wilberforce moved, and that is the only connection anyone could ever find between slavery and this thing.

That is purely coincidental and simply the nature of human history. The great thinkers on the Criminal Code or the criminal law would be shocked. I will raise these matters in due course; I will be raising them because I feel I am on pretty strong ground. As a matter of fact, I was in Toronto a few days ago meeting with some criminal lawyers on these very points.

I just wanted to say, honourable senators, that there is a clear breach of privilege here. Mr. Perrin ought to have known the boundaries of critical comment and proper social comment. He should understand them, he should adhere to them, and he should uphold the principles that I am upholding right now in respect of human debate, human endeavour and human freedoms to engage in endeavours and to work together.

I will tell honourable senators something: I will support the bill, but I will ask a lot more questions.

The Hon. the Speaker: Honourable senators, allow me to express my appreciation and thanks to all honourable senators for their contributions to the consideration which is now before the Speaker, which is to determine the very narrow question of whether a prima facie case of privilege has been made out.

I also wish to salute all of the honourable senators for the manner in which they approached helping the Speaker on this question of privilege raised by Senator Cools. It illustrated that all honourable members of this honourable house take the question of privilege the way it needs to be taken. It is not something that speaks to an individual member of the house but, indeed, to the entire house.

I wish to extend my appreciation for honourable senators' contribution. I will take the matter under advisement and shall report back in due course.

 

The remainder of this day's Senate Debates are available here.