Evidence of meeting #41 for Canadian Heritage in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was apology.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Clerk of the Committee  Mr. Richard Dupuis

11:30 a.m.

Conservative

The Chair Conservative Gary Schellenberger

Welcome to meeting number 41 of the Standing Committee on Canadian Heritage, pursuant to the order of reference of Friday, March 6, 2009, Bill C-302, An Act to recognize the injustice that was done to persons of Italian origin through their “enemy alien” designation and internment during the Second World War, and to provide for restitution and promote education on Italian-Canadian history.

Just before we start, I've been asked by the clerk to bring forth the budget for our witnesses. I would like to get it out of the way quickly, if I could.

The budget is for $16,400. Witnesses' expenses are $14,400, and $2,000 is for miscellaneous.

11:30 a.m.

The Clerk of the Committee Mr. Richard Dupuis

For Bill C-302.

11:30 a.m.

Conservative

The Chair Conservative Gary Schellenberger

Yes, this is for the witnesses for Bill C-302.

All those in favour of the budget?

11:30 a.m.

Some hon. members

Agreed.

11:30 a.m.

Conservative

The Chair Conservative Gary Schellenberger

Thank you for that. We now move back to the bill.

(On clause 3--Apology)

The other day we were at amendment L-1.

Mr. Del Mastro.

11:30 a.m.

Conservative

Dean Del Mastro Conservative Peterborough, ON

Thank you, Mr. Chairman.

I appreciate the opportunity to continue to discuss this important matter.

11:30 a.m.

Conservative

The Chair Conservative Gary Schellenberger

I'm going to interrupt one more time.

The meeting will be over at one o'clock. I have something I have to do and I know Mr. Angus has.

Go ahead, Mr. Del Mastro.

December 3rd, 2009 / 11:30 a.m.

Conservative

Dean Del Mastro Conservative Peterborough, ON

Thank you for that clarification, Mr. Chairman.

Subsequent to our meeting in which we were discussing the very significant legal ramifications of clause 3 of this bill, considerations I think this committee should be well apprised of because it seems that members are reluctant to consider the implications it could have for all Canadians who were ever affected by the War Measures Act, I did get a legal opinion on Bill C-302, which I'd like to share with the committee. It deals specifically with this matter. I'd like to share that with the committee, because I think it's very important. I can share more of the letter if people would like more background, but I'm going to deal with the potential legal risks arising from Bill C-302.

This opinion I received from Mr. George Barry, counsel, legal services unit, Citizenship and Immigration Canada. He writes:

One area of legal risk that exists should the Bill become laws concerns the possible increased liability to the Crown in the context of the Giacomelli case. In Giacomelli v. R. the plaintiff, an Italian-Canadian who had been interned in World War II, brought legal proceedings against the government seeking damages based in part on an apology given in 1990 outside the House of Commons by then Prime Minister Mulroney to the Italian Canadian community. Since Giacomelli is still before the courts, the passage of Bill C-302, in particular its formal apology by Parliament could have an adverse effect on its outcome. While Mr. Giacomelli passed away 2 years ago, his estate is continuing the proceedings, but only on non-Charter arguments since the Courts have ruled that Mr. Giacomelli's estate cannot invoke Charter arguments in his stead.

As well, the Bill must be considered in the context of the Agreement-in Principle entered into between the government of Canada and representatives of the Italian-Canadian community. While this agreement did not create specific obligations on the part of the Crown with respect to compensation, it did arguably create an obligation on the Crown to negotiate. Bill C-302, at the least, creates a parallel obligation to negotiate.

Up to now Canadian courts have been reluctant to conclude that an apology is an admission of liability. This said, all court cases so far on this issue have been concerned with material or physical damages from motor vehicle accidents, commercial transactions and the like. In many cases the apologies were made verbally, and on the spur of the moment. No court has ever had to determine whether an apology contained in a statute or made by a Prime Minister in the House of Commons or by another representative of the Crown is akin to an admission of liability. It is consequently uncertain how the court in Giacomelli would interpret an additional apology, this time in a statute, when the case is actually pending before the court. But it seems safe to say that it increases the risk against the Crown.

It is also important to note that any risk represented by Giacomelli may be clarified in the near future as a hearing before the Ontario Divisional Court in this case took place on November 4th. The appeal here is by the Crown challenging the Ontario Superior Court's decision not to allow the Crown's motion to strike the plaintiff's claim. While our litigators view the Crown's chances of success in this appeal as good, an assessment of the ongoing impact of this case on C-302 will have to await the release of the Court's decision, which is anticipated in the near future.

Notwithstanding the courts' reluctance to link apologies to liability, there is concern about this in the legal and parliamentary communities. Evidence of this is that 2 years ago the Uniform Law Conference of Canada adopted a motion encouraging all provincial legislative assemblies and the Parliament of Canada to enact legislation which states that an apology is not an admission of liability and cannot be used in a court of law to prove liability. So far, 4 provinces have enacted such legislation (BC, Saskatchewan, Manitoba and Ontario). At the federal level, some discussions have taken place between the Department of Justice and the Department of Canadian Heritage with no outcome yet.

At this point, I would note that in the province of Ontario the provincial government did enact the Apology Act 2009. What the Apology Act does--and what the federal government is not protected from--is the act stipulates that in civil proceedings, administrative proceedings, or arbitrations, evidence of apology is inadmissible as evidence of fault or liability in connection with that matter. It's significant. The federal government has no such legislation. So an apology, especially one that's passed by Parliament, could very well bring the crown into a significant case of liability in all cases where the War Measures Act was in fact undertaken.

I'll continue on with the letter:

As well, and perhaps more significantly, the Bill appears to be seeking to alter the legality of things done in the past. The Crown has argued in the Giacomelli case that its actions were appropriate and measured, in terms of the situation that existed at the time, and that these actions were entirely within the law. This Bill seeks to reach back into the past and to retroactively render these acts illegal.

If C-302 is enacted, it would be the first time that an apology is provided to ethno-cultural communities in a federal statute. Apologies have been made by Prime Minister's in the House.

An example is given for the internment of Japanese Canadians during World War II, which was made in 1988, and there was one for the residential schools in 2008. Outside the House, prime ministers have apologized for the internment of Italians during World War II, in 1990, and the turning back of the Komagata Maru ship to India in 1914.

A number of court cases, initiated by ethno-cultural communities, followed the apologies and redress package provided only to the Japanese-Canadian community in 1988....

--the Giacomelli case in 2005 on the World War II internment, and the Ukrainian Civil Liberties Association in 2007 with respect to the World War I internment--

In order to mitigate risks, the Prime Minister's apologies for the Chinese Head Tax and for the Komagata Maru incident referred to the legality, at the time, of the measures taken.

This bill, as stated previously, seeks to rewrite history and deem these things as illegal, which is a problem.

Passage of C-302 could also expose the government to a significant risk of...litigation based on s. 15 of the Charter by members of other ethno-cultural communities who suffered comparable treatment as the persons of Italian descent in World War II.

The example given is German Canadians, or in “World War I (Germans, Ukrainians and other members of the Austro-Hungarian Empire) who would not benefit from C-302.”

Risk of a successful s. 15 Charter challenge was mitigated in the case of the apologies and redress made to the Japanese- and Chinese-Canadian communities, in 1988 and 2006...because these two communities each suffered treatment that was deemed unique and unparalleled.

Legislation related to the internment of persons of Ukrainian origin during World War I received Royal Assent in 2005. This legislation was amended such that a number of legal issues identified above were addressed.

So they actually took time to deal with this and head off the potential legal implications for the crown prior to royal assent.

As well, while requiring the Government of Canada to undertake negotiations with the representatives of the affected community, it did not require that these negotiations concern restitution for unjust treatment. Considerable discretion was provided for with respect to the various measures that might be addressed in the agreement (including that the parties “may request the Canada Post Corporation to issue a commemorative stamp”).

In s. 3 of the Bill the treatment of the persons concerns is said to be “unjust” and to represent “an infringements on their rights”. While this language does not explicitly and retroactively alter the legality of what was done, it might, as noted above, be argued to have this effect. An amendment would be advisable to reflect...what...was legally authorized at the time and to clarify the current Bill is not making any retroactive change to the law in effect at the time. It should also be noted that, while the Bill (in terms of the apology and the acknowledgement of past wrongdoing) is aimed at individuals, the compensation referred to would not be individual in nature.

Therefore, by referring to individuals, and wrong done to individuals, it could well be interpreted that the compensation, or any kind of funding that would be forwarded, as the bill seeks negotiations, could be deemed to have been directed at the wrong individuals, representing, again, a significant liability for the crown.

The letter continues:

Therefore any argument that the Bill is intended to address all issues with respect to the right to compensation is diminished by the fact that the Bill speaks in terms of wrongs done to individuals but compensation that is not to be provided on an individual basis.

As well, the Bill identifies the wrong Minister: the Minister of Canadian Heritage. If this Minister were given the authority set out in this it is unclear that the negotiations could be carried out under the current authority of the CIC Minister. The most straightforward method to address this would be to amend the Bill to name the correct Minister.

In addition, as noted above, the Bill as currently drafted runs the risk of being viewed as a money bill. Even if this were not the case, and as also noted above there is an argument to the contrary on this point, the fact that the Bill would require a pay out of funds still creates a problem. Parliament's approval of a negotiated agreement by any mechanism other than enacting a money Bill would have no ability to unlock the consolidated Revenue Fund so as to enable payment to be made.

I could continue, because the letter does continue, but it's very important. I understand that several members opposite feel that we should just vote on this, we should get it done, we should move it through. That's all we should do, because it's a short bill, and you know, what harm can be done by a short bill? But the reality is—as I stated at the last meetings—the ACE agreements specifically limited the liability of the crown, and this bill does not do that. It simply does not.

As I indicated earlier, by indicating that measures, as undertaken through the War Measures Act, which was repealed by Brian Mulroney, then Prime Minister, in 1988.... His government repealed the War Measures Act, specifically citing experiences of cultural communities, including the Italian Canadian community, as a reason for repealing the War Measures Act. The actions taken under it were just at the time. They may not have been right, but they weren't illegal in Canadian society. And when the previous government undertook its ACE agreements, it said, again—I just want to find it—that this “this Agreement-in-Principle, premised on the principles of ‘no compensation’ and ‘no apology'”. The reason they did that specifically was because of the potential liability, into the billions of dollars, that can be created by literally rewriting history in this fashion. It's irresponsible, and it's not expected by Canadian society.

Thank you, Mr. Chair.

11:40 a.m.

Conservative

The Chair Conservative Gary Schellenberger

Mr. Angus.

11:40 a.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Thank you, Mr. Chair.

I've been on this committee for five years. I come to this committee in good faith to provide the perspective that I think we can move forward with good legislation. I do my time on this committee doing my research so that I'm prepared for issues.

We've been on this bill on November 19, November 24, November 26, and December 1--not to mention the fact that we knew this bill was coming up for months in advance. At no time did the parliamentary secretary bring forward any information. At no time did he offer witnesses, not until we were in clause-by-clause. It seems to me—and I take this as a matter of great seriousness—that either the government had this information, knew this information and withheld it from our committee as part of an obstructionist pattern, which has been, unfortunately—

11:40 a.m.

Conservative

Dean Del Mastro Conservative Peterborough, ON

I have a point of order.

11:40 a.m.

Conservative

The Chair Conservative Gary Schellenberger

On a point of order, Mr. Del Mastro.

11:40 a.m.

Conservative

Dean Del Mastro Conservative Peterborough, ON

Thank you, Mr. Chairman.

The clerk well knows that we did in fact bring witnesses, including the Minister of Immigration, before the committee—

11:45 a.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

The Minister of Immigration did not speak on this issue at all.

11:45 a.m.

Conservative

Dean Del Mastro Conservative Peterborough, ON

He did speak about the viability—

11:45 a.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Can I continue? You will have time to speak.

11:45 a.m.

Conservative

Dean Del Mastro Conservative Peterborough, ON

—but we also brought other witnesses. Pal Di Iulio was a government witness on this bill.

Thank you.

11:45 a.m.

Conservative

The Chair Conservative Gary Schellenberger

Okay. Let it be recorded—

11:45 a.m.

Conservative

Dean Del Mastro Conservative Peterborough, ON

I just want to correct the record.

11:45 a.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Well, let's correct the record, Mr. Chairman.

11:45 a.m.

Conservative

The Chair Conservative Gary Schellenberger

—that there were some government witnesses.

11:45 a.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

They brought witnesses who spoke nothing of this issue. If this were the seminal issue, those witnesses would have spoken about it. They spoke nothing of it. I asked the government witnesses whether they had a problem with this bill. They shrugged; they didn't say a single word. So now, at clause-by-clause on a private member's bill, when the clock is ticking, they bring this forward, and suddenly they're accusing the opposition of not doing our work.

I would say that either the government had this information and withheld it from our committee, which I take as very serious, or they were incompetent and didn't know, which I find hard to believe.

When the member first raised this on Tuesday, I said that if there are problems, then I'm certainly open to amending the language. If the issue is restitution, we can deal with it. But I have not seen a single move from the members across at any point to try to amend language so that this can be addressed. They have obstructed, they have talked out the clock, and now they're in a position in which they know that if we continue to talk this out without amending the bill, it will go back to the House without any amendments. So if there is any issue of risk or liability, I would say it lies squarely on the shoulders of the parliamentary secretary for not bringing it to us in advance.

And it's certainly hard for me as a member on this committee to take it seriously. If this were the fundamental reason for opposition, it would have been raised as a fundamental reason for opposition. I heard none of that from Minister Kenney; I heard none of it from the government witnesses. I find it very unfortunate that when I made the offer.... And I made the offer in good faith. This is not my private member's bill; I have no stake in the bill whatsoever. If there's language that has to be amended, I'm willing to amend it. That's what we do at clause-by-clause. What we don't do at clause-by-clause is start waving around a paper saying that if we go forward in any way the end of the world is nigh.

I would like it on the record that if this member and his party were serious about this, they would stop the filibustering games, stop playing with the clauses, and go through it, and we can talk about language that would have to be amended in order to bring this forward. Otherwise, I say they've acted in bad faith.

If we continue to talk the clock out, this bill will go back to the House unaltered.

11:45 a.m.

Conservative

The Chair Conservative Gary Schellenberger

Mr. Calandra.

11:45 a.m.

Conservative

Paul Calandra Conservative Oak Ridges—Markham, ON

Thank you, Mr. Chair.

I would note to Mr. Angus that we're actually talking about the amendment; we're not talking about the bill just yet. I hope he has this same feeling when Canada-Colombia comes back up for debate.

It's ironic that we are talking about this a couple of days after the town of Ortona in Italy was paying tribute to Canadian soldiers who sacrificed a tremendous amount in the Second World War. The town was actually thanking Canada for all it had done.

11:45 a.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

My uncle was there.