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Income Tax Act (C-377) - Bill to Amend—Disposition of Bill—Allotment of Time—Motion Adopted


Hon. Serge Joyal: Honourable senators, the curtain is falling on the last act of the Forty-first Parliament. It's the last part of the life of a Parliament that has lasted for four years.

Over the weekend, following what happened on Friday, I was led to reflect on what we were doing. When I say "we," I thought of each senator individually and what we are being asked to do.

The first thing that came to my mind was, of course, that we had as Speaker an honourable senator, a senator who defined his conduct in relation to the point of order that was raised and debated in front of him with a decision that was in sync with the precedent that was well-established by his predecessor, who was also an appointee of the executive government as provided for in the Constitution, by the Prime Minister.

When Senator Kinsella rendered his decision in October 2013, it was also a very tense moment. I don't know if you remember, honourable senators. It was during the debate on the suspensions of Senator Brazeau, Senator Wallin and Senator Duffy. You will remember how difficult and heavy the ambience in the Senate was during those months. Even though there was a lot of pressure from all venues outside the Senate, Speaker Kinsella stood firm and honest in his decision, and we all recognized the appropriateness of it, because, as he wrote in his ruling, it was directly linked to the structure of the institution. In it, he reminded us that it was the way it was structured when the rules were reformed in 1991. In other words, he was upholding the practice, the tradition, the spirit and the rule of law under which we are governed in the standing Rules of the Senate.

In making his decision on Friday, Senator Housakos did the right thing in his soul and conscience. I might have questioned, being very frank with you, when he was first appointed to the chair. I thought he is a young senator. He has taken part in the deliberations and he sits on the Transport Committee. But in the first days when he took the chair, I was impressed by his concern about re-establishing transparency and accountability, and the fact that he took it upon himself to follow in the footsteps of our late former speaker, Speaker Nolin.

Today I have to commend him. I am happy to serve in the Senate with such a Speaker. I feel confident. I feel that whatever political game might be played around here, we can trust the Speaker. I think it's comforting intellectually to know that we have that kind of colleague sitting in the chair.

I think he sits in the chair in the same way former Speaker Kinsella and former Speaker Molgat did. Some of us served under Speaker Molgat, and one thing you have to know is that Speaker Molgat, for a decision that he took personally, not to support a government bill in those days was removed from the chair and he came back to the front bench, honourable senators. I was personally a part of that decision.

I tell you, when the Speaker takes a firm decision in his soul and conscience, it is reassuring for the future of this institution. Without that, this house of Parliament would be, in my opinion, unrulable. There would be no possibility to re-establish the trust of the public in it.

I deplore the issue of the vote of confidence that was taken, but on the other hand, I rest on the fact that —

— he is a man of integrity, an honest man whom we can trust.

As I said, even though the curtain falls on this day and tomorrow for the last vote on this bill, I think there are a lot of lessons that we have to draw.

The first lesson I would like to submit to you, honourable senators, is that with this bill we are compelled to adopt a bill that is unconstitutional. Many of my colleagues have developed one aspect or the other for which this bill is not constitutional.

There is no doubt that this bill doesn't respect the division of powers between sections 91 and 92 of the Constitution. But, honourable senators, this is not the first time that the government is proposing a bill that doesn't respect sections 91 and 92. In fact, the Securities Act that this government proposed has been ruled unconstitutional by the Supreme Court. You remember that act very well. It was studied by the Finance Committee or the Banking Committee.

I subscribe to the general objective of the Securities Act, which is to try to establish common rules among provinces. The federal government argued that under section 91 trade and commerce was the competence of the federal government, but the Provinces of Alberta and Quebec contended that it was against section 92. On the basis of the Civil Code, the Supreme Court ruled that that act was against the division of powers.

This act will be ruled against the division of powers because it's a clear intrusion into the Civil Code under the guise of an amendment to the Income Tax Act, because in pith and substance, it is essentially an attempt to rule the management of unions in Canada.

There is not even a penalty if a union doesn't file the information in due time. You know very well how fast Canada Revenue Agency is when a taxpayer doesn't file in time. You will quickly receive a letter establishing the amount of money you have to reimburse because you have not filed in time.

This is clearly against the division of powers, and the provinces have seen it quite clearly. My colleague Senator Cowan has mentioned it. I'm sitting for the province of Quebec, in the district of Kennebec. I want to read into the record a letter of the Quebec Minister of Labour —

. . . we believe that this bill, if it were passed, would lead to a serious imbalance of power between unions and employers since it aims exclusively and specifically labour organizations.

The minister continues:

This bill . . . is already deemed as a violation of the division of jurisdictions . . . .

This is where this bill failed, so we are compelled to adopt a bill for which seven provinces will rush to the court Wednesday, after Royal Assent, to challenge it, and I tell you where, under section 3 of the bill. I will read it for you:

This Act applies in respect of fiscal periods that begin after the day that is six months after the day on which this Act is assented to.

This act will be assented to tomorrow. On Wednesday, honourable senators, some provinces — be it Quebec, Alberta, Ontario — will make a reference to the Court of Appeal to challenge this bill.

That's the first count, and we have it on record. I asked the question when those ministers were appearing through video conference at the sitting of the Legal and Constitutional Affairs Committee. So today we are adopting a bill that will be challenged the next day.

May I have five minutes more?

Hon. Senators: Agreed.

Senator Joyal: That's the first count on which this bill will be ruled unconstitutional.

Then there is another count, which is the privacy of it. It is common sense that if you are compelled to disclose what you do outside your professional job, in your leisure time, that this is totally against privacy rules. This is written in this bill.

I'm not against transparency of unions. I'm not against the fact that unions should disclose the money that they receive from their members and how that money is spent. I have no problem with that. Most of the provinces have rules in relation to their own unions.

Again, when I read the letter of the Quebec Minister of Labour, the minister added to her letter the provisions of the Civil Code, the provisions of professional union acts, the provisions of the Canada Labour Code, the provisions of the Canada Labour Code on labour relations, and the provisions of transparency and ethics in relation to lobbying that clearly compel unions to disclose.

No one is against disclosure under the proper legal, constitutional authority — which is the provinces — in relation to unions. This is where the responsibility lies and where those rules should be enunciated, adopted, promulgated and implemented. No one questioned that.

I was listening to the Honourable Leader of the Opposition this afternoon answering the question about transparency. No one is questioning transparency.

If there is a need for that, that's where the decision has to come. When you go overboard and compel the union to declare the private activities of union leadership, that's where you cross the line. It's so obvious. And the Privacy Commissioner is on record about that. There are limits to disclosure. That's the second count on which this bill will fail.

Then on the third count, is the fact that it creates an imbalance between the union leadership and the employer. Our colleague Senator Gerstein will understand that.

When you put two parties, one in front of the other, and they have to negotiate "in good faith" — this is the term in the law — conditions of work, social benefits, everything related to the implementation of the collective agreement in a particular industry or economic activity, you have to keep a balance between the two. You cannot say to one party, "Tell me everything about you, but I will keep everything behind my back, and you won't know how much money I have to stem the strike or to keep you locked out."

There has to be a balance. The Supreme Court said in January 2015, in a decision I refer you to, honourable senators, Saskatchewan Federation of Labour v. Saskatchewan. I refer to you another decision that I would like to quote to you, which is the Mounted Police Association of Ontario v. Canada (Attorney General). It says they have the right to a union, but they have to face equal arms, one in front of the other.

This is a fundamental principle of what my mother would say —

— "justice immanente," —

— which means "common-sense balance."

This bill ties the hands of union leadership in collective bargaining by compelling them to disclose all of their assets, how much time they devote to this and that, and leaves the bosses with absolutely no obligation to disclose anything of their capacity to resist a strike or to resist the pressure. That's where this bill fails.

Honourable senators, to be compelled to adopt a bill that is unconstitutional — I'm sorry; I can't vote for that. It happened many times in this Forty-first Parliament whereby I stood up here, as have my colleagues Senator Baker, Senator Jaffer and others, to say —

I'm sorry. I would have liked to finish, but this is the rule. I have to abide. Thank you, honourable senators.