CHER Committee Meeting

STANDING COMMITTEE ON CANADIAN HERITAGE

COMITÉ PERMANENT DU PATRIMOINE CANADIEN

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, November 25, 1998

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[English]

The Chairman (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)): I declare open the meeting of the Standing Committee on Canadian Heritage. Our order of the day today is in two parts. First, pursuant to Standing Order 106(3), we will

[Translation]

consider the manner by which the report of Canada's compliance with the United Nations Convention on the Rights of the Child is being prepared.

[English]

Then further on, at 4 o'clock, pursuant to the Order of Reference of the House dated Tuesday, November 3, 1998, we will study Bill C-55,

[Translation]

An Act respecting advertising services supplied by foreign periodical publishers.

[English]

As agreed yesterday with all the members of the committee, we will study part A until 4 o'clock, at the request of Mr. Mark, because he wanted to have officials here from International Trade, who are going to be here.

So Mr. Lowther, I'll give you the floor.

Mr. Eric Lowther (Calgary Centre, Ref.): I just have a question, if I may, Mr. Chair. I saw Mr. Mills here earlier, and—

The Chairman: Mr. Mills is coming, yes. He's on the phone right now. He'll be here momentarily, and the other members are coming too. They're arriving. We don't have a quorum for a vote, but the members are on their way. They'll be here anytime now. You might as well start.

Mr. Eric Lowther: If clarification is needed for questions at the end, maybe you'd give me some latitude to explain to some of those who may have missed the upfront part.

The Chairman: Sure.

Mr. Eric Lowther: Thank you, Mr. Chairman.

I appreciate this opportunity to present this to the committee today. I'm going to give a little bit of background as to why I'm presenting this issue to the committee and also on the importance of this issue. Near the conclusion of my remarks, I'll have a bit of a call to action on this particular issue.

I'd ask the committee to listen closely to what I have to say, and as I go through it, I think maybe some of the questions individuals have will be answered, and my reason for bringing this forward will become very clear.

I've prepared my comments. I'm going to refer to them and read them for the purpose of conciseness and to fit all this into the time allotted. I have about 10 to 15 minutes of comments, and then I hope we'll have an opportunity, if any clarification is needed, for questions. Let me begin.

Canada signed the International Convention on the Rights of the Child—I'll refer to it as the ICRC—on May 28, 1990 and ratified it on December 13, 1991. The ICRC required an initial report covering the first two years following ratification and further reports every five years thereafter. Canada submitted its first report in June 1994. The due date for Canada's five-year report is early 1999.

The Department of Canadian Heritage coordinated the preparation of Canada's first report to the United Nations on the Convention on the Rights of the Child in 1994. It has also published copies of this first report, as part of a program of the human rights directorate of the Department of Canadian Heritage, to increase awareness of the whole issue.

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In responding to Canada's first report, the United Nations Committee on the Rights of the Child was critical of Canada in a number of areas.

The Department of Canadian Heritage, I should point out, is also responsible for the coordination of Canada's upcoming five-year report. That's why I'm in front of this committee. I'd be somewhere else if someone else were responsible. Parts of the federal government's portion of the UN report are being written by the human rights law section of Justice, and parts by the health department, but it is the Department of Canadian Heritage that pulls it all together.

The Department of Canadian Heritage has also been involved in funding a supplemental NGO report, done by the Canadian Coalition for the Rights of Children, on Canada's compliance with the UN convention. To obtain official membership in this coalition, an organization must submit a formal letter from an authorizing body of the organization stating official support for the coalition's mandate. All membership requests to this coalition are subject to approval by the members of the coalition.

The NGO report will primarily, I submit to you, be prepared by a special interest group after consultation with its own like-minded members. All this is being funded by the taxpayers' money. Parliamentarians should be interested, I submit, in seeing how it's being spent.

The UN convention is seen as a very important document and is pervasive in commentary surrounding public policy formulation. I'll quote the Honourable Ethel Blondin-Andrew, Secretary of State for Children and Youth, in a recent meeting. She said:

We support this convention, and this is the reflection of many of the underpinnings of our legislation mandate, and where we want to go in terms of policy.

Minister Rock also said:

The Government is firmly committed to...the Convention [which] now forms a foundation for all of our initiatives involving children.

Interestingly enough, the Supreme Court is now considering, in the case of Mavis Baker v. The Minister of Citizenship and Immigration, whether the International Convention on the Rights of the Child should be considered as having legal effect in a Canadian court.

So I submit that parliamentarians should indeed take an interest in how this particular report is being written. But—and I emphasize the “but” here—in response to the inquiries of my office, a heritage department bureaucrat involved in Canada's report to the United Nations indicated that parliamentary input into the government report was not desired. A fax sent on October 27, 1998 from the human rights program of the Department of Canadian Heritage stated:

I understand you may also be interested to comment on Canada's second report. (...) However, none of those comments are to be incorporated in any way into Canada's report.

That's indicative of the closed approach to this.

The Department of Canadian Heritage bureaucrats responsible for preparing the government report are not interested, in my estimation, in receiving input by you, the duly elected members of Parliament.

Many individuals are concerned about some of the articles in the convention. In the first year of the 36th Parliament alone, petitions with almost 12,000 signatures of individuals concerned about the implications of the UN convention were submitted. Concerns such as these were exacerbated when, in responding to Canada's first report, the UN Committee on the Rights of the Child was critical of Canada in a number of different areas. Canada—you—will have to address these criticisms in its second report, due in 1999.

In responding to a number of these petitions, the government has made its position fairly clear in a number of areas that are addressed by the convention. One of my concerns and one of the positions I would put forward to you is that we have a responsibility to ensure that the government's position, as recorded in response to these petitions, is included in the report that goes to the United Nations on the International Convention on the Rights of the Child.

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I submit that there is not adequate public input into Canada's report on compliance with the UN convention. Given this failure, the heritage committee should be prepared to call those responsible for drafting Canada's report before the committee and allow an opportunity for input or at least scrutiny by parliamentarians into Canada's report to a foreign body.

The government should reassure Canadian families and reaffirm written statements made in the response to petitions, in keeping with the government's publicly stated position. Those positions should be contained in the report, I submit.

Let me also say this is not a unique request. There are precedents for the kind of thing I'm requesting. Similar public input is being sought by the Department of Foreign Affairs and International Trade for Canada's report on the International Conference on Population and Development. An e-mail from the office of Jean Augustine was sent on November 23, 1998. It gave notice that they are currently planning a series of consultative meetings across Canada to seek input into Canada's report and positions to be taken during this conference in February 1999 at The Hague.

I'm not suggesting that we go with a series of meetings across the country. I'm just saying we should bring it before this committee for some sort of review.

As it is the Department of Canadian Heritage that is responsible for Canada's report to the UN on compliance with the International Convention on the Rights of the Child, the heritage committee, I believe, has the responsibility to provide guidance and give input on Canada's report.

I have some concluding comments.

The UN Convention on the Rights of the Child is an important document that Canada is reporting on. This documents shapes Canadian policy; we've heard that from two ministers. Thousands of Canadians are concerned about this particular convention. An NGO has been given tax dollars to prepare a supplemental report. The reporting process to the UN and the output should at least be reviewed by the taxpayers' elected representatives—you.

The stated position of the government, perhaps Parliament, should be in the report, not just that of the bureaucrats or selected special interests. This is particularly important before it goes to an international body, which will then critique Canada and all provinces on the world stage. Shouldn't we at least know what we're submitting and the process by which it was arrived at before the UN does and calls us all to account?

It is within this context that I present the request before this committee. I submit to you, as honourable parliamentarians placed here to serve our constituents, that we have a duty to allow the public, through your eyes—our eyes—to ensure that the integrity of the reporting process and the positions of the people's duly elected government are reflected in the report.

This concerns the children of the nation. Let us take this reasonable precaution and serve them well by agreeing to meet again on this issue, call the appropriate witnesses, and properly review the process. I would submit that and ask for consensus on this.

I open the floor to any questions anyone may have, Mr. Chairman.

The Chairman: Thank you, Mr. Lowther.

I understand, Mr. Lowther, that you have sent the clerk a motion to back up your request, under Standing Order 106(3), which reads:

That the Heritage Committee have hearings on the preparation of Canada's second report to the United Nations on the International Convention on the Rights of the Child (ICRC) before the House rises.

The floor is open.

[Translation]

Mr. Bélanger.

Mr. Mauril Bélanger (Ottawa—Vanier, Lib.): Mr. Chairman, the government certainly takes very seriously the responsibility it accepted in signing such an agreement. The role of the Department of Canadian Heritage, if I understand correctly, is to coordinate the government's response concerning the implementation of this agreement, for which responsibility is shared by various departments having what I might call more operational missions. I stress this coordinating role and, consequently, I suggest that there has to be a secretariat within the department, responsible for coordinating the preparation of this report.

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I can assure Mr. Lowther right now that the position set out in the report will not be that of the officials, as he claims, but that of the government. This will be a government report.

I'm beginning to wonder what is being proposed by the official opposition party, the Reform Party. If I understand correctly, it would like to prepare this report in place of the government. This report must be prepared by the duly elected government of Canada. The government has the firm intention of respecting this commitment and of fulfilling its obligations by submitting in due course the report that it undertook to submit as a signatory to the agreement.

Once this report has been prepared, approved and ratified by the government, which is responsible for doing this, and after it has been submitted to the proper authorities at the United Nations, it will likely be made public. At that point, as is the case with all other reports put out by the government or by government agencies, Parliament will become involved in studying the report, and will revise or criticize it if it wishes. All the parties will be free to do it.

As far as I know—and if I'm wrong, please correct me—anyone who wishes to comment on it is free to do so. As a matter of fact, Mr. Lowther said that himself. Where we don't agree, is when he says he wants to help draft the report. I don't think that it's up to the Opposition to prepare a report that is the government's responsibility.

As far as discussing the report, or making comments or suggestions is concerned, everyone is free to do so. They need only take the time, make their comments known and forward them to the appropriate authorities. The latter will take note of them and determine whether they should or whether they want to follow up.

After all, this is the accepted way of governing. We cannot consider changing established ways of operating, that are the practice in a system where the elected government has a certain responsibility. It is incumbent on it to fulfil its obligations.

With all due respect, I don't think it would be desirable for the opposition parties to draft reports on the government's behalf. Are those parties free to make comments? Yes. Do they require a forum like the committee to do so? It is up to the committee to decide. I don't believe that this is necessary, but if the committee wishes to take this on, it is free to do so.

However, as far as I know, the government has no obligation to include recommendations or comments from the opposition in the reports for which it is responsible. If it wants to take them into account, it may certainly do so and, in such a case, comments will be welcomed. At the risk of repeating myself, I don't really see how we could agree to this request.

[English]

The Chairman: I would ask for precision from Mr. Lowther.

When you submitted your request under Standing Order 106(3), the wording was that the heritage committee should convene a meeting:

for the purpose of examining the process by which the report on Canada's compliance with the United Nations Convention on the Rights of the Child is prepared.

Is that what you want to do—find out from the ministry where this is at and how the process is going? Or do you want to delve into the substance of the report itself? Because they are two different issues.

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Mr. Eric Lowther: Thank you, Mr. Chairman.

Certainly my intent here is not to write the report. My intent here is simply to allow us, as the committee that's reflective of the ministry that's writing this, to have the process reviewed and understood to make sure there's some comfort there.

Let me also say that I'd like to propose an amendment to the motion that was put forward, which might make it more palatable to some of the members opposite. This does not have to be before the House rises, so we could actually strike that phrase, “before the House rises.” It can be at a time when the committee deems it appropriate. The only comment I would make is that this report is due to be submitted in early 1999, so we couldn't leave it too long.

The Chairman: Actually I did check on this. There's no compulsion at all on the part of Canada to submit the report at any particular date in 1999. There will probably be an advance report and there will be a discussion at The Hague, but Canada can send that report anytime in 1999, right up to the end of the year.

Mr. Eric Lowther: So if you'll accept that amendment striking “before the House rises”, I would submit it in that context.

May I reply to some of Mr. Bélanger's comments? As I said, I don't in any way intend to substitute the official opposition for the government. I am concerned that, as has been stated, this is a foundational document to all public policy. We've had a number of petitions, which have been replied to by the government.

I'm concerned that the report that is going forward be cognizant of the concerns of many of the people who have petitioned and that the government's own responses to those petitions be included in the report as it goes forward.

Those are some of the concerns I have, but I'm suggesting we bring forward some of the senior bureaucrats who are involved in this issue, for maybe only one meeting, so that we have the opportunity to question them a bit and make sure the process is sound for such a key document.

The Chairman: Just hold it, Mr. Bélanger. I have Mr. Godfrey, Mr. Bélanger, Mr. McWhinney, and Madame Tremblay. Could we make it short? We have officials here. We agreed it would be a short meeting.

Mr. John Godfrey (Don Valley West, Lib.): I only have two questions. One is to Mr. Bélanger, which goes like this.

During the whole period of the preparation of the report, is the heritage department the place to which interested parties may have been sending comments or briefs? Was that the mailing address? And was there some official recognition of those briefs or of people who may have submitted things? Do you have any sense of how that process works? You may not know the answer to that, but it would be helpful to know there was some such poste restante.

My second question is to Mr. Lowther.

I'm reading the Family Coalition letter that's been circulated, which, while talking about the public review of the five-year report, seems to focus on receiving a copy of any draft report and requesting a copy of the final report once it's been completed. This would suggest there might be a possible further amendment to the motion, which would be that once there is some draft that is in some sense public, at that moment, we would be brought into the process to both look at the text and examine the process and talk to the bureaucrats. That might allow us to have a fuller sense of how this is working and what the items are.

So one question is in one direction, and the other question is in the other direction.

Mr. Mauril Bélanger: To answer the question, I guess we're not supposed to say these things, but I'll be quite honest: I'm not familiar with the process, the mechanics, of how indeed this report will be written, beyond the coordinating role of the department. I will endeavour to find out. That's number one.

The other thing is, whether it's before or after the House rises to me it's somewhat irrelevant. If you'll notice, Mr. Chair, I did not address that issue. It's much more fundamental than that.

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I will not be supporting this, on the grounds that the right, if you will, the responsibility, of preparing a report for the Government of Canada rests with the Government of Canada. Any party, whether it be a political party, the official opposition, or an individual, can write to the Government of Canada to indicate their views. That hasn't changed and won't change.

So I don't believe we're being asked here something that we should accept. That's my view, and I won't change it because it's before or after the House rises.

The Chairman: I should add a precision that this is why I asked Mr. Lowther purposely about the letter he wrote to Mr. Radford. Mr. Lowther made clear that the intention is to hear from officials of the ministry as to what the process is to prepare the report and to get information on how the coordination is done.

Mr. Mauril Bélanger: I'll endeavour to get that, Mr. Chairman. I'll provide it to the committee as early as possible next week.

The Chairman: Mr. McWhinney and Madame Tremblay.

Mr. Eric Lowther: Excuse me, could I respond to Mr. Godfrey's question? He had a two-part question. I thought Mr. Bélanger was answering the first part and I was to answer the second. Is that correct, Mr. Chair?

The Chairman: Go ahead.

Mr. Eric Lowther: In regard to the letter that was just circulated, I have not seen this before. This is not part of my presentation today. I think it's simply a reflection of some of the groups that perhaps have been part of the petitions that have come forward. I don't know.

If we were to go further, as this letter is suggesting, Mr. Godfrey, all I would say is that would be a collective decision of this committee. It's not something I'm asking for today. It would be subject to the position of the committee after having an opportunity to review the process.

Mr. John Godfrey: So you wouldn't accept an amendment that would say let's wait until we see a draft or a document before we comment on both the text and the process? You want the process before the document?

Mr. Eric Lowther: Let me just clarify that in a response from Canadian Heritage, which I can give you a copy of right here, they've made it clear to us that:

Once the government report has been submitted to the UN, copies will be made available to interested parties.

So you don't see a copy until after submission.

My concern is that we have an opportunity to understand the process prior to submission.

The Chairman: Mr. McWhinney.

Mr. Ted McWhinney (Vancouver Quadra, Lib.): I'm glad Mr. Lowther raised the issue. It's probably an issue better thought out in another committee. When I was on the foreign affairs committee, I was made a member of a subcommittee with

[Translation]

your brilliant young colleague, Mr. Daniel Turp, to conduct a thorough study of the issue of how we should review treaties signed or being signed by Canada, as well as reports submitted to international organizations. No decisions had yet been reached at the time of my hasty departure from this Foreign Affairs committee. You remember the discussions, don't you?

An hon. Member: Yes, yes.

[English]

Mr. Ted McWhinney: The foreign affairs committee was trying to get what I would call a standard, rational, acceptable process to all parties. It was part of the minister's desire to have all-party involvement in these processes. I'd like to see how far that's gone with foreign affairs.

Normally, though, these reports to the Human Rights Commission and others don't examine new policy. They're basically résumés of what you've done in the past, and as such, of course they would be subject to examination by this committee. Where they're to do with heritage, we might want to debate them, depending on their importance.

I doubt, though, if as a matter of policy, the government would submit a copy of any draft report to outside organizations.

I'd also like to signal—and it's not a commentary on my colleague, Jean Augustine—that she would not have been representing the Ministry of Foreign Affairs when she sent this circular out. It would have been in her capacity as a member of Parliament.

One, if the report is coming out and following the usual UN Commission on Human Rights procedure, it's going to be delayed, as most countries are very much in delay. We have a little bit of time.

Two, if the intention is to get this committee involved in anything involving reports to international agencies within the heritage mandate, it's a good thing. I would suspect that across the line, in line with the government policy of involving all parties in foreign affairs, it would be welcomed.

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You may have noticed the fact that we now debate in the House Canada's involvement in peacekeeping missions. That's new. That wasn't done five years ago. There's a lot of movement towards this.

So I don't have any great problem with the spirit and drive of your motion. I'm just wondering if a motion is needed. Perhaps the chair of the committee would undertake to communicate the interest of the committee and get information on what process has been followed and whether the report as such is simply descriptive of past compliance or whether it gets into policy. If it gets into policy, obviously there will be a keen desire to be involved at appropriate stages in that.

The Chairman: I have two requests, three now.

We agreed that we would have a meeting yesterday so that we could listen to the officials from international trade. That was really the agreement. So could we say that we'll close the remarks after this, and then we'll decide where we go? Otherwise, we might as well take the whole meeting and not hear the officials we have convened.

Madame Tremblay.

[Translation]

Ms. Suzanne Tremblay (Rimouski—Mitis, BQ): Mr. Chairman, I will be brief. I personally agree with Mr. Bélanger when he says that it's up to the government to draft reports. However, the House is made up of five parties, four of which form the Opposition and represent nearly 50% of the population. I think it's natural and legitimate that we would want to know about the reports being sent out by the government on our behalf.

It seems to me that it would be much better if we could react and give our opinion, which the government is always free to accept or ignore, since it's the one that signs the report. I think that this would be preferable to speaking out in public after the fact about how the report was filled with lies and the government had deceived the United Nations, and so on.

That's what it does every year, moreover, when it puts out a report ranking it as number one. Canada neglects to say that we have an illiteracy rate of 28%, that we have literacy programs because some of our citizens are illiterate. If the Canadian government told the truth, we would not be ranked first but fourth. There's nothing wrong with being number four. Why should we proclaim ourselves to be number one? It's only because we want to project a certain image, that we refuse to acknowledge the existence of a problem and refuse to settle it?

I'm convinced that if the government drafts its report by itself, there will be plenty to publicly protest; we will realize too late that the contents of the report is completely false, that it doesn't match reality. We would ourselves write the United Nations to tell them to read between the lines of the report written by the government, because it has lied to them. No one would come out ahead if we had to go this route.

I believe that it would be very easy for the government to draft the report that it intends to send to the United Nations, which it would then submit to us asking whether or not we endorse it. If it's fine and we endorse me, so much the better, we will have endorsed the government's report. We are not asking to write it; we are asking to see it before it is sent on to the United Nations, that's all.

The Chairman: As you know, Ms. Tremblay, I'm not too much of a stickler for procedure. However, I think it's clear, in our parliamentary system, that the word “lie” or other words of this nature should not be used. I believe that we must always assume that everyone's intentions are honourable.

[English]

Mr. Muise.

Mr. Mark Muise (West Nova, PC): I have just a couple of comments, Mr. Chairman.

Firstly, I want to state for the record that, like everyone around this table, I support the rights of the child, and in no way do I want my comments to be interpreted against that.

I have a question, however. I see a motion before us that says one thing, but I've seen a lot of correspondence, such as this one from the Family Coalition, that says a lot more. I'm wondering, Mr. Lowther, where we're going with this. Are we just going to look at the process by which the report is done, or do we want to investigate further and have input into the report?

Mr. Eric Lowther: In quick response to that, I say again the main purpose here is to understand the process. Taxpayers' dollars are being spent. This is foundational to policy. This is a critical report that goes to the UN before politicians or parliamentarians get to see it, or even understand the process. That's all I'm asking.

If, after we have done that, this committee decides, “Gee, we should go further” or “No, we're happy” or “Let's just leave it alone” or whatever they decide, that's subject to the committee. I'm not asking for more than an opportunity to bring this to the committee of the department that's actually charged with drafting and bringing the whole thing together.

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The Chairman: Mr. Bonwick, and then we'll close the discussion.

Mr. Paul Bonwick (Simcoe—Grey, Lib.): Mr. Chair, Mr. Lowther has made two very different points—process versus examination of content. If Mr. Lowther is interested in finding out the process, all he has to do is ask the parliamentary secretary to outline the process on how the document is being dealt with, where the document ends up, and how it comes back to the House.

I believe that in the interest of efficiency, this committee—and I would like to think Mr. Lowther as well, when I'm done speaking—would withdraw his motion, simply because we have to reflect on what the purpose of the committee is. In my opinion, the purpose of the committee is to report to the minister and take on responsibilities handed down by the minister. The all-party committee is not necessarily reflective of all the internal documents or documents generated out of the minister's office.

To look at it from this perspective, for the government to review at all-party committees the various reports and documents that come out of all the different ministries and departments to all the different countries, outlining the positions of government on any number of positions and topics, imagine how much time we would all... Nothing would get done at committee or in government.

We have a government in place that is dealing with these issues. What we should do, in the interest of efficiency, is get back to the work at hand. We have a very heavy schedule as it stands right now.

If Mr. Lowther is interested in the process, Mr. Bélanger has clearly stated that he will provide him a detailed description of the process of handling this document.

As for the content, it's not just this document we're talking about; it's any number of internal documents or documents that are done by departments. If we had to debate them and the content of them at committee level, we would never get anything done.

Mr. John Godfrey: I have a point of order.

The Chairman: Yes, a point of order, and then we'll close.

Mr. John Godfrey: I wish to propose that we table this motion until Mr. Bélanger produces a written report on the process from the Department of Canadian Heritage, and that he be encouraged to do so at the earliest possible convenience.

Mr. Mauril Bélanger: If it has to be written, Mr. Chairman, I withdraw my endeavour to have it done by next week. I'm sorry. I committed to trying to get some information to the members of the committee by next week, but if it's to be written, I ain't committing to next week, sorry.

The Chairman: Mr. Bélanger, would it be possible to have a written report in the hands of members of the committee within, say, 10 days, using the officials? It doesn't have to be a 55-page—

Mr. Mauril Bélanger: I thought we were going to get to vote on this motion, first of all.

An hon. member:

[Inaudible—Editor].

Mr. Mauril Bélanger: You've asked the question, so I'm going to take a stab at answering it.

I would hope we'd deal with the motion and not defer it, leave it in abeyance. I'm surprised that my colleagues have no faith in me whatsoever, in my willingness to bring you forth information in a format that is understandable and acceptable. Must it be dictated how I do it? Go right ahead. I'm surprised at that.

Mr. John Godfrey: Anyway, this is a non-debatable motion, Mr. Chairman.

The Chairman: Mr. Mark.

Mr. Inky Mark (Dauphin—Swan River, Ref.): Mr. Chairman, I certainly support Mr. Godfrey in his request, and I would make it even more reasonable and extend the date to February 1.

Mr. Ted McWhinney: That's reasonable.

The Chairman: There's a motion by Mr. Godfrey, and now it's been amended to February 1. We'll vote on whether there will be a report, and then we'll go from there. The question has been called.

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Mr. Eric Lowther: Can we please get clarification, Mr. Chairman? I'm sorry, but I'm a bit confused here.

Number one, is the motion still in existence, but just tabled to be called back? Number two, in the interim, are we going to receive the report?

The Chairman: By February 1.

Mr. Eric Lowther: Okay, thank you.

The Chairman: Is that clear?

(Motion agreed to) [See Minutes of Proceedings]

The Chairman: All right, we've dealt with this now. We'll move on.

While we're waiting for the witnesses, I should mention to members that tomorrow, after the witnesses have been heard, we must spend 10 minutes to go... Our budget has been approved now, and also our travel budget has been approved. Members will have to decide if and when they travel, because the dates are few and far between. The clerk has some tentative dates. We should discuss this tomorrow. We should also discuss legislation that's coming up. Bill C-48 is before the House and will get to us very soon. So tomorrow I want 10 minutes to go over the business before us.

At the request of Mr. Mark and with the agreement of the committee, we decided to have a special session today to look at the international trade implications of Bill C-55, following various representations that have been made to us by witnesses who appeared, especially the advertising fraternity yesterday.

So we are pleased today to have with us Mr. John Gero, the director general of trade policy bureau, services, investment, and intellectual property, from the Department of Foreign Affairs and International Trade. He is a recognized expert in his field.

We also have with us again Mr. Michael Wernick and other officials from the Ministry of Canadian Heritage.

Because members asked for this session to question officials, we won't ask Mr. Gero to make any preliminary statement. The officials of Canadian Heritage have already talked to us about their view in regard to international trade, so I think you should spend the rest of the time questioning Mr. Gero and the other officials about whatever you want in regard to international trade.

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Mr. Mark, you'll be the first.

Mr. Inky Mark: Thank you, Mr. Chair.

Certainly the questions I raised yesterday relegate Bill C-55 to one of trade rather than culture. I don't need to remind the committee that Canada is a trading nation. We must keep that in mind. As we all know, 80% of our products head south to the U.S. market, and 40% of our GDP is derived from trade, compared to 10% for the Americans.

On the other hand, it's not only on the economic basis that I'm concerned; it's also our reputation with the World Trade Organization. Canada has led the way, I'm told, for over 50 years in the world of international trade negotiations. If we don't have the complete answers in terms of the effect of this bill on our largest trading nation south of us, it possibly puts us in a position of risk. It's harmful not only to our economic sectors in this country but also to our reputation in the world theatre.

So my question is, in your view, are advertising services a cultural industry, particularly given the definition of “cultural industries” in the NAFTA?

Mr. John Gero (Director General, Trade Policy Bureau II - Services, Investment, and Intellectual Property, Department of Foreign Affairs and International Trade): Thank you, Mr. Chairman. Did you want me to answer each question or did you want to have people ask questions and I can respond later? I'm in your hands.

The Vice-Chairman (Mr. Ted McWhinney): With each questioner, it would be best to take his questions as a whole.

Mr. John Gero: Okay. Thank you, Mr. Chairman.

From our perspective, advertising services in the publishing industry would definitely fall under the definition of cultural industries.

Mr. Inky Mark: I said “advertising services”. I asked if advertising services fall into that.

Mr. John Gero: Anything to do with the publishing industry, including advertising, would fall into that definition, yes.

Mr. Inky Mark: Okay. In your view, can the GATS, which is the service part of it, and the GATT, the goods, both apply to the same law?

Mr. John Gero: Both the GATT and the GATS can apply to laws. It is our view of course that in the context of this law, only the GATS applies, because it applies only to advertising services, which is clearly a service. So in our view, the GATT would not apply in the context of this law.

Mr. Inky Mark: Okay. In your view, did the WTO say, in a recent WTO decision on the banana case, that the GATT and the GATS both can apply to a law that is about a service supplied in conjunction with a good?

Mr. John Gero: Yes, it did, but this law is not the same as the banana case. Clearly in the context of the WTO, you have two different agreements: you have the GATT, which applies to products, and the GATS, which applies to services. It's entirely possible to have situations where only one of the agreements applies or where both agreements apply.

In the context of the banana case, the ruling of the WTO was that both the GATT and the GATS applied. It is our view that in this context, only the GATS would apply, because it's clearly in the realm of advertising services, which is clearly a service.

To illustrate that a little bit, I can give you an example. Suppose I ran a small restaurant in Windsor and I wanted to have more clients, so I wanted to advertise. Say I hired a Detroit small airplane company to fly a banner over Windsor that said “Eat at John's”. I would have contracted an advertising service. It's true the banner is a good and the airplane is a good, but from an international trade perspective, it's clear that what has happened there, in that context, is there's been a cross-border provision of a service: advertising my restaurant.

• 1625

Mr. Inky Mark: In the event that there is retaliation on the part of the Americans, has your department done any kind of risk management or risk assessment of the probabilities of potential harm that could come about through this legislation?

Mr. John Gero: We're certainly of the view that the United States should not be retaliating, because we're acting fully consistent with our international trade obligations. It's difficult to do any kind of analysis in that context until you know the facts. At this point in time, we don't have any facts in this regard. We don't even know what the United States may or may not do. But from our perspective, they shouldn't be retaliating, because we're acting consistent with our international obligations.

Mr. Inky Mark: So in your opinion there is no risk on the trade side then? In your opinion, there is no risk of this legislation putting Canada in a position of retaliation from the Americans?

Mr. John Gero: I'm not sure I understand what you mean by “risk” in that regard.

Mr. Inky Mark: Well, there are always risks to everything we do. I'm just saying, as I started with in my comment, that because our economy is so dependent on our trade with our southern neighbours, I would hope that whatever we do, we calculate risk and potential risk.

Mr. John Gero: In preparing policies for the government, we suggest to them that as long as we're acting consistent with our international obligations, we're doing what is appropriate. There may be times when other countries may not appreciate or may disagree with what we're doing, but from our perspective, we've been focusing on what is of interest to Canada and whether we are consistent with our international obligations.

Mr. Inky Mark: Okay, so in your opinion, you're saying the probability for retaliation is low, or may be very low?

Mr. John Gero: I have great difficulty in speaking for what the United States may or may not do in any particular circumstance.

The Vice-Chairman (Mr. Ted McWhinney): Mr. Mark, are you satisfied?

Mr. Inky Mark: Okay.

[Translation]

The Vice-Chairman (Mr. Ted McWhinney): Ms. Tremblay, please.

Ms. Suzanne Tremblay: No.

[English]

The Vice-Chairman (Mr. Ted McWhinney): No?

Mr. Muise.

Mr. Mark Muise: A number of witnesses have come forward saying there's the potential for retaliation, and I'd just like to go a little further on that, if we could.

Just for my own peace of mind and to be cautious in what we're trying to achieve here, is this a stop-gap measure that will effectively lead to another challenge under the WTO?

Mr. John Gero: I don't believe the cabinet and the government, when they decided to go forward with this measure, considered it a stop-gap measure, no.

Mr. Mark Muise: Okay.

The Vice-Chairman (Mr. Ted McWhinney): Are you finished, Mr. Muise?

Mr. Mark Muise: Yes, I am.

The Vice-Chairman (Mr. Ted McWhinney): Mrs. Bulte.

Ms. Sarmite Bulte (Parkdale—High Park, Lib.): Thank you, Mr. Chairman.

Mr. Gero, I wonder if you could help me through this. I think what everybody's confusing here is the cultural exemption under NAFTA and the retaliatory provisions under the NAFTA agreement with the GATT and the GATS, which are in the WTO forum.

I think what Mr. Mark is speaking about and what Mr. Sosnow from Lang Michener was speaking about yesterday is NAFTA. While culture and the publishing industry would be exempt under NAFTA, the Americans, if they chose to launch the trade dispute through NAFTA, could bring in retaliatory provisions. Is that correct?

• 1630

Mr. John Gero: No, from my perspective, that's not correct, because the United States under NAFTA could retaliate on a cultural measure only if that measure were inconsistent with the original free trade agreement.

In our view, advertising services are not covered in the original free trade agreement. Therefore we are not acting inconsistent with the original free trade agreement and therefore the United States would not have the ability or should not have the ability to retaliate in the context of NAFTA.

Ms. Sarmite Bulte: Therefore NAFTA is not applicable and it wouldn't be the forum if they wanted to take us on a trade dispute.

Mr. John Gero: Well, the United States always has the ability to do whatever the United States wishes to do. If they wished to use NAFTA, they could try to do so, but certainly it is our view that that would not be a legitimate use of the NAFTA in that regard.

Ms. Sarmite Bulte: Okay. Secondly, with respect to the GATS and the GATT, one of the things Mr. Sosnow said many times during his presentation is that this bill is not consistent with our international obligations and that there is nothing we can do by putting in “whereas” clauses to show that what we're really trying to do is protect our publishing industry. He said time and time again that it is inconsistent and it would be harmful. I don't know many times the word “harm” was used.

Then he specifically pointed to clause 2 and the definition of “advertising services”. He stressed again that a service supplied in conjunction with a good has been found to be an advertising service and therefore falls within GATS, and we are signatories to GATS, and therefore what we are proposing to do here is not valid. Could you just help us and explain GATS, perhaps give a little bit more of a technical presentation as to what he's trying to get at here?

Mr. John Gero: Let me try to clarify. As you know, the WTO has two different agreements. One is the General Agreement on Tariffs and Trade, which has existed since 1947 and deals with trade in goods as such. There is also, as of the Uruguay Round in the early 1990s, the General Agreement on Trade in Services, which deals with trade in services.

It's correct to say, as Mr. Sosnow said, that sometimes, in the context of the manufacturing of a product, such as an automobile, there are services involved. But the trade is of the automobile, and therefore the GATT would apply. In the context of the banana case, the trade was in bananas, and that's why the GATT was found to apply in that regard.

The GATS deals with what is deemed to be a service. That doesn't mean there are no goods involved in it. Let me give you another example. I may want to fly from here to New York. I use air transportation services to get me from here to there. Unfortunately, technology being what it is, I can't fly by myself; I have to sit in an airplane. So the airplane actually crosses the border and there's a good involved, but I don't think anybody has any doubts that in fact that is an air transportation service. I've bought myself a service, and the provider of that service provides that service. There is a good involved, but it's clearly the GATS that would apply.

Actually in transportation services the GATS doesn't apply, because it doesn't cover air transportation at all, but in essence it's clearly a service.

In our view, the advertising services measure in Bill C-55 is merely a service, and therefore only the GATS would apply. The GATT would not apply, and therefore we would not be, as Mr. Sosnow said, in contravention of our international obligations. We believe we would be consistent with our international obligations.

Ms. Sarmite Bulte: Following up on the GATS, Mr. Sosnow also seemed to imply that not only are we bound by GATS in that GATS covers advertising services, but that because that is in fact the case, we are contravening the GATS.

Mr. John Gero: I may have misunderstood or misread some of Mr. Sosnow's statements, but my interpretation of what he said is that if only the GATS applies, we're perfectly safe, because we took no provisions under the GATS on advertising services, and therefore we are not in violation of our obligations in the General Agreement on Trade in Services.

Ms. Sarmite Bulte: Could you repeat that? I'm sorry.

Mr. John Gero: Let me explain.

• 1635

In the context of the General Agreement on Trade in Services, there is an obligation that obliges countries to provide national treatment—that is, non-discriminatory treatment. It says we will not discriminate between how we treat a Canadian and how we treat a foreigner. But in the context of the GATS, that provision only applies to those services that a country has chosen to say it will apply to. It doesn't just apply holus-bolus to all services; it only applies to services for which the country has said they're willing to undertake obligations in that regard.

In the context of the General Agreement on Trade in Services, Canada did not decide to take obligations in advertising services, and therefore the obligation for national treatment—that is, non-discrimination—does not apply in this instance.

Ms. Sarmite Bulte: That's very important. We did not take any obligation on advertising services.

Mr. John Gero: That's right.

Ms. Sarmite Bulte: Thank you.

The Vice-Chairman (Mr. Ted McWhinney): Thank you very much.

We're into the second round.

Mr. Bonwick.

Mr. Paul Bonwick: I'll be very brief and then Mr. Godfrey can take over.

I want to thank you very much for taking some time out today to provide us your opinions, obviously very highly respected and expert opinions. I look at this as an opportunity to resolve some of the fears instilled in the Reform Party by their friends in the publishing business in the States.

An hon. member: Friends?

Mr. Paul Bonwick: My question is fairly simple, and you've demonstrated it along the way. If any challenge takes place out of the decision—and that's purely speculation at this point—do you feel confident that we would be able to defend the policy dealing with our publication industry?

Mr. John Gero: Certainly it's the view of the government that this is fully consistent with our international obligations.

Mr. Paul Bonwick: Thank you.

The Vice-Chairman (Mr. Ted McWhinney): That's all, Mr. Bonwick?

Mr. Godfrey.

Mr. John Godfrey: First of all, I'm delighted you're here, because these are complicated issues, and you're helping us resolve them.

For me, the reason we got into this whole situation was the split-run case, in which material was satellited into the country, and that electronic material led to the creation of a physical product in Canada—a good, if you like—manufactured in Canada. Therefore it didn't have the usual characteristics of a good physically crossing the border, and that was because they overcame it by technology.

That puts this into a special category. It's not like other things that come over the border, such as banking services or broadcasting, for which we have a regime. It's one of the few cases where something comes over the air and ends up being a physical product made in Canada, so it's exempt from being treated as a good at the border, which is one of the problems we got into.

The advertising folk came in yesterday and had this to say about the relations between services and goods, and I'm referring to their brief on page 10:

44. When the WTO court ruled last year in the split-runs case that Canada's split-run legislation violated trade rules, it said that:

- a magazine is made up of two components: stories (editorial content) and advertisements (advertising content);

- each of these components involves a services aspect; but

- the two combine to form a physical good, the magazine.

45. Therefore, even though advertising is a service, the advertisement is a part of a magazine, which is a good. This means that laws like Bill C-55 that apply to advertising in magazines have to obey the rules of the GATS and the GATT, including the GATT non-discrimination rules.

My two questions are linked. I'll start with the second observation they make, that two services add up to a physical object. How do you react to that? And having reacted, how do you get back to this unique problem of the split-run, because of the nature of a physical object being made in Canada by material that comes in electronically? Does this solve our problem, or in fact have the advertisers painted themselves into their own corner? Do you see what I'm trying to get at here—the relationship between these things?

Mr. John Gero: I'll start at the beginning rather than backwards.

Mr. John Godfrey: Okay.

Mr. John Gero: The WTO case on split-run magazines ruled on four Canadian measures, and they ruled that both the GATS and the GATT applied, because of the nature of those measures. They said you can't argue that for a customs prohibition on magazines—which is one of the measures they found to be illegal—the GATT doesn't apply. Clearly that's a customs prohibition on the good. It's illegal in that regard, because it contradicts the GATT.

• 1640

So one needs to be very clear and precise about what the WTO ruled on in the split-run periodicals case. It ruled on four existing measures and it found them to be in violation of the GATT, because it felt that they had applied in essence to the physical product, the magazine, and therefore it was a magazine measure as such. Therefore it was a violation of the GATT.

Interestingly enough, the WTO said, “All we're doing is ruling on these measures; we're not ruling on the policy. We don't have a view on the Canadian policy. All we're saying is that these measures are inconsistent.”

The government, right from the beginning, said, “We accept the decision of the WTO bodies that these measures are inconsistent, but we have said all along that as far as we're concerned, we're not about to change the policy.”

So the question then arose, which the government spent some time researching, how do you implement that policy with a measure that doesn't contradict our international obligations? The decision of the government was that Bill C-55 did that, because it focused on advertising services, and as such, it got itself out of the realm of the application of the GATT and into the realm of the application of the GATS.

Mr. John Godfrey: But do the two services, editorial and advertising, add up to a physical product called a magazine? Are the advertising folks right when they say that?

Mr. John Gero: In the context of the issues we have at hand and the measure we have in Bill C-55, we think they're not right. This is purely a service. That's why I gave you the example of my advertising from a Windsor restaurant and having the airplane fly over Windsor. The banner is a good and the plane is a good, but I don't think anybody would argue that this is trade in goods. This is clearly trade in services.

Mr. John Godfrey: Thank you.

The Vice-Chairman (Mr. Ted McWhinney): Thank you, Mr. Godfrey.

Mr. Bélanger, s'il vous plaît.

Mr. Mauril Bélanger: I have a few quick questions, Mr. Chairman.

For the record, so that we're all clear, in your opinion, Mr. Gero, is the Government of Canada now or will it soon be, after having introduced the appropriate measures, in full compliance with the decision of the WTO respecting the four measures you were mentioning?

Mr. John Gero: Yes.

Mr. Mauril Bélanger: Thank you. Is the Government of Canada, with Bill C-55, in full compliance with its international obligations flowing from international treaties relating to trade?

Mr. John Gero: Yes.

Mr. Mauril Bélanger: Thank you.

The Vice-Chairman (Mr. Ted McWhinney): Mr. Mark, second round.

Mr. Inky Mark: Thank you, Mr. Chair.

First I need to correct Mr. Bonwick. My responsibility and accountability is not to either the publishers or the advertisers. My responsibility is to the people of this country, like you. That's why this whole issue is so important.

I had to sort out in my own mind whether this was a cultural issue or a trade issue. It's quite obvious that it's a trade issue. So the first question I ask is why are we dealing with this bill?

Having said that, and realizing that we are dealing with the bill, it's incumbent upon me, as the opposition member, to make sure we know what we're doing so that we're not putting our country at risk. That's why I said this bill may have far-reaching implications down the road. It's not as simple as what we see in our magazines, an ad that we read.

I will go back to my first question on the definition of “advertising services”. My information tells me that NAFTA defines “cultural industries” to include the publication, distribution, or sale of books, magazines, periodicals, or newspapers in print or machine-readable form. The definition nowhere includes advertising services. So I ask you the same question, the original one, just to be certain in my own mind. Are you saying that NAFTA includes “advertising services” in “cultural industries”?

Mr. John Gero: Let me answer in two ways. First of all, NAFTA has no obligations in this area, from a Canadian perspective. Canada has not taken on any obligations in NAFTA from this perspective. Clearly, if, as you read the definition, it includes publications, then that's what this deals with—publishers.

• 1645

Mr. Inky Mark: Okay. The other question, as I originally indicated, is about our reputation on the world stage with the WTO. If we end up going back to the WTO, a decision having been rendered, do you think there's a risk that our reputation would be tarnished through being taken back to the WTO for the same issue?

Mr. John Gero: Let me answer that two ways. First of all, it's not the same issue. The WTO found in a panel that four of our measures were in violation. We've accepted the decision of the WTO panel in that regard and we've implemented those decisions. This is a totally different measure, and therefore it's not at all the same issue.

As far as we're concerned, we're living up to our international obligations in that regard, and I don't think we would be ashamed of defending our international reputation in the context of defending measures that the Government of Canada takes that it believes are consistent with its international obligations.

Mr. Inky Mark: If I may conclude, Mr. Chair, I'm very surprised that the government has not done a risk management profile on this piece of legislation. In my opinion, it would be very unwise if they had not done that.

Thank you.

The Vice-Chairman (Mr. Ted McWhinney): I think you asked if this wasn't a trade bill. Would you not accept a characterization that this could be a heritage bill with trade law implications? That could be a possible characterization.

We're on to completing the second round. We have Ms. Bulte again, Mr. Muise, and then I have one in the third round.

Ms. Bulte.

Ms. Sarmite Bulte: Thank you, Mr. Chair.

I'd like to go back to the definition of “advertising services” in clause 2. I want you to clarify for me one of the things Mr. Sosnow stated. It says:

“advertising services” means the supply by a foreign publisher, for payment, of

(a) advertising space in a periodical...

Mr. Sosnow said the fact that the service is related to the periodical makes it fall within the GATT. Could I have your comments and opinions on that?

Mr. John Gero: That's certainly not the legal advice that the government is working under.

Ms. Sarmite Bulte: Okay. My second question is this. One of the things that the advertisers said time and time again yesterday was that if we intend to promote our magazine industry, nowhere in this act does it say so. So my question is, is there any reason we didn't say that, and if not, why not? Would the act be better served by putting some recitals in the beginning?

These are direct questions that I have from Mr. Sosnow's representation yesterday.

Mr. Michael Wernick (Assistant Deputy Minister, Cultural Development, Department of Canadian Heritage): Perhaps I could try that one.

The bill is about regulating the advertising services market, no more, no less. We quite deliberately kept the bill to the subject it covers, which is regulation of foreign publishers' activity in the Canadian advertising services market.

Ms. Sarmite Bulte: Okay.

The Vice-Chairman (Mr. Ted McWhinney): It's not a general trade bill. It simply happens to be a bill that has trade implications or trade aspects.

Mr. Michael Wernick: It's part of a tool kit of measures that affect the periodicals industry. There are section 19 provisions, there's a postal subsidy that supports some of the costs of publishers, and so on.

Ms. Sarmite Bulte: What did you say? It's part of a tool kit?

Mr. Michael Wernick: Yes, it's part of a tool kit that affects the business of Canadian magazine publishers, but this legislation is about the advertising services market.

The Vice-Chairman (Mr. Ted McWhinney): Mr. Muise.

Mr. Mark Muise: You mentioned that you don't see any problems or ramifications that will be created by this, anything that the U.S. might see as a problem. But if they choose to see this as a problem and they retaliate, what kind of defence do we have?

What I'm leading to is I don't want to see another issue like the MMT situation that happened earlier this year. I just want to be able to be clear in my mind on that.

• 1650

Mr. John Gero: Well, of course, as I think we discussed the last time I testified before this committee, the United States has the ability to act totally outside of its international trade obligations if it decides it doesn't like something the Government of Canada does. And it has demonstrated that it will do so. So I can't say anything in that regard.

Certainly it is our belief that the United States can't legitimately act under any of its international trade agreements, because we haven't violated our international trade obligations. But that's about as far as I can go in that regard.

The Vice-Chairman (Mr. Ted McWhinney): Are you finished, Mr. Muise?

Mr. Mark Muise: Yes.

The Vice-Chairman (Mr. Ted McWhinney): I have one last questioner in the third round, but before I do so, I'd like to thank both the members of the committee and the witnesses for good, clear questions and good, clear, professional answers. We've done it very quickly and very effectively. It's excellent committee work, if I may so, on the part of the whole company, members and witnesses.

Mr. Bonwick, you have the last word in the round.

Mr. Paul Bonwick: No, sorry. Everything is fine.

The Vice-Chairman (Mr. Ted McWhinney): You pass?

Mr. Paul Bonwick: Yes.

The Vice-Chairman (Mr. Ted McWhinney): Then I must thank everybody for their cooperation, and I declare the meeting adjourned.