Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 29 - Evidence
OTTAWA, Wednesday, June 17, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-15, respecting the declaration of Royal Assent by the Governor General in the Queen's name to bills passed by the Houses of Parliament, met this day at 4:22 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Our first witness on Bill S-15 is Senator Lynch-Staunton. Please proceed, senator.
The Honourable John Lynch-Staunton, Sponsor of the bill: I do not have a prepared statement because I assume that you are aware of the statements made by both Senator Carstairs and myself on this bill. I would simply like to summarize the purpose of the bill and correct some of the reports about it which have claimed that this bill is to do away with the Royal Assent ceremony as we know it. This bill will, if passed, keep the Royal Assent ceremony and allow an alternative in cases where it is found more expedient and practical to have an alternative.
This is not to do away with the ceremony. It is to supplement it with a simpler way of having Royal Assent. This is not a new issue to the Senate. As far back as 1983, Senator Frith presented an inquiry regarding the advisability of establishing alternative procedures. The McGrath committee, which was established after the 1984 election, a Special Committee on the Reform of the House of Commons, recommended that a new Royal Assent procedure be adopted, and the Standing Committee of the Senate Privileges, Standing on Rules and Orders, chaired by Senator Molgat, recommended changes along the same lines.
If you read that report, you will find there was support for the idea, but disagreement on how to implement it. Finally, a solution was found through the introduction of Bill S-19 which was lost following prorogation less than three months later. Bill S-15 which is before you is almost an exact reproduction of Bill S-19.
With regard to the history of Royal Assent, there is nothing in our Constitution which requires a Royal Assent ceremony as such. The relevant provisions are sections 55, 56 and 57 of the Constitution Act, 1867 which simply provide that Royal Assent can be given or can be withheld. The actual description of the ceremony is found only in Beauchesne. It is not found it in any statute.
Canada is the only country to retain the formal Royal Assent ceremony requiring the presence of the Sovereign or the Governor General or his or her deputy. As the McGrath report states:
We note that Canada is still using a practice which was abandoned by the United Kingdom Parliament in 1967. In fact, no other Commonwealth Parliament has maintained the procedure still used in Canada.
After making these remarks in the chamber, it occurred to me that one should find out what other provinces are doing. As you know, they only have one chamber, not two. Unfortunately, I could not get a summary of the practices in all of them. In Alberta there are two options, one in the chamber and the other in the Lieutenant Governor's office. In Manitoba and Saskatchewan, they have the Royal Assent in the chamber. In Ontario, they have both but, more recently, they have been having Royal Assent in the Lieutenant Governor's office. Even in Canada we are tending away from the traditional Royal Assent ceremony.
Senator Doody: Nova Scotia it is still done in the legislature.
Senator Lynch-Staunton: In the U.K., which inspires our proceedings and procedures, the requirement that the Monarch be present was dropped in 1541, and then lower commissioners were designated. In 1967, Parliament in England passed a Royal Assent Act which retains a traditional ceremony while allowing a written declaration such as we are proposing in Bill S-15.
There are no details as to how the written declaration would be done. That will be designed by whoever is responsible for organizing Royal Assent ceremonies.
One commentator on Royal Assent noted that: Royal assent is still a necessary formality and is, at the same time, nothing more than a formality. Unfortunately, that is what it has now become. Although Parliament is made up of three entities, the Senate, the House of Commons and the Crown, most Canadians are now quite passive about the role of the Crown in the passage of legislation. Too often we find Royal Assent ceremonies are sparsely attended, and too often they take place without much attention by those who are there.
Unfortunately, as we saw last week when we had the Royal Assent ceremony, the atmosphere is one of indifference rather than one of respect for an event which, while largely is a formality, is nonetheless a necessary one and should remind us of the evolution of the parliamentary system over the century.
Many of us feel that, if we have fewer traditional Royal Assent ceremonies, we might have more respect for the significance of Royal Assent by itself. There are practical arguments in favour of the alternative. On occasion, it is difficult to find a deputy who is available to give Royal Assent because the deputies are either the Chief Justice or one of his associates and they may be so occupied at the court that they cannot come here on a moment's notice.
A problem will arise in a few years when the House of Commons will be asked to move to the East Block because of the renovations to take place in their chamber. It will mean if we rely exclusively on the Royal Assent ceremony, there will be a longer parade from the East Block to this place, and it will be more difficult for people to attend in the Senate chamber. After members are returned to their chamber, then the Senate will be asked to move out. The additional distance between chambers will persist for quite a few years starting three or four years from now.
For all those reasons, this bill respects tradition. It recognizes those many Canadians who still feel that some of our symbols and traditions must be respected and kept, but it also allows us to be realistic and by having an alternative, we can expedite our business with less dislocation. By having fewer Royal Assent ceremonies, maybe we can bring back the respect that Royal Assent requires and unfortunately does not have at this time. That is the intent of the bill.
[Translation]
Senator Nolin: Senator Lynch-Staunton, does clause 2 of your bill mean that the Governor General may still, in the Queen's name, declare Royal Assent in the form and manner customary today, above and beyond the limits prescribed in subsection (a)?
Senator Lynch-Staunton: Yes.
Senator Nolin: In other words, even if the first appropriation bill or some other type of bill has already been passed by both Houses, the Governor General may, in the Queen's name, require that Royal Assent be declared in the form and manner customary today?
Senator Lynch-Staunton: That is correct.
Senator Nolin: And there is no rule saying that this is to take place only once?
Senator Lynch-Staunton: It would be a minimum, in a given time period.
[English]
Senator Lewis: The procedure that is set out here is somewhat similar to what is already in place in other parliaments. Would there be a written declaration of Royal Assent which would then be reported to each House of Parliament?
Senator Lynch-Staunton: Yes.
Senator Lewis: The date of the Royal Assent would be the date of the last such report because, since both Houses of Parliament have to be informed, it might be that there are different days of reporting. Clause 4 states:
...the date of assent is the day on which the declaration is reported in both Houses of Parliament or, if it is reported in each House on different days, the later of those days.
Senator Lynch-Staunton: The House need not be sitting. That is the assumption I am making, but that should be looked into. Reports can be tabled even if the House is not sitting.
Senator Lewis: Would a report cover it? When would a declaration be reported?
Senator Nolin: The later date, when both Houses have been officially informed.
Senator Lewis: Does that mean that the reporting could be done even if the Houses are not sitting?
Senator Nolin: I would refer to the French version of clause 2 of the bill.
[Translation]
Where royal assent is declared by a written declaration, the date of assent is the day on which the declaration is reported in both Houses of Parliament or, if it is reported in each House on different days, the later of those days.
There is a cumulative effect. Until the declaration has not been reported to both Houses, I presume the official date of royal assent has not been reached. The day of assent is the day on which the declaration is reported in both Houses of Parliament.
Senator Lynch-Staunton: The question that has not been answered is the following: Do both Houses have to be in session for royal assent to be declared?
Senator Nolin: No.
Senator Lynch-Staunton: I believe the answer is yes, but I would like someone to verify that. It is not necessary, however, that the Houses of Parliament be in session, nor that parliamentarians be sitting, for the written declaration to be reported to the House and Senate.
[English]
Senator Lewis: That is my point. We need to know that.
Ms Deborah Palumbo, Senate Legal Counsel and Notary, Office of the Law Clerk and Parliamentary Counsel, Senate of Canada: It would be when the House is sitting.
Senator Lynch-Staunton: Tomorrow we may have a Royal Assent and the House of Commons is not sitting; and it will not sit until September. Does that mean that those bills given Royal Assent will not come into effect until September if this procedure were in order?
Senator Lewis: That is what I was worried about.
Senator Lynch-Staunton: That is only in the case of a declaration, not in the case of a traditional Royal Assent. If one chamber is not sitting, you could fall back on the traditional Royal Assent ceremony to cover that fact.
Senator Lewis: It might not happen, but it could be a very practical problem if certain legislation were necessary and the Houses were not sitting.
Senator Lynch-Staunton: In the case of a declaration, neither one of them may be sitting. Then how do you have a Royal Assent when no chamber is sitting?
Senator Gigantès: What is the particular problem that is bothering Senator Lewis?
Senator Lewis: The date on which Royal Assent is deemed to have taken place might be important because the bill would not be legal until it has actually been given Royal Assent.
Senator Gigantès: What if the House of Commons is not sitting?
Senator Lewis: It says here that the declaration of Royal Assent must be reported to both Houses.
Senator Gigantès: We have had Royal Assent when the House is not sitting. They have sent an assistant Speaker and a couple of MPs who they have managed to dredge up from somewhere in Ottawa.
Senator Lewis: However, this provides for a practice which would be different from the one we now have.
Ms Palumbo: This bill is exactly the same as the bill that was introduced by Senator Murray quite a few years ago.
With regard to clause 4, it seems that Senator Nolin was right in that, if Royal Assent is reported in the Senate first, but the House of Commons is not sitting that is fine, but that is not reported as the day of Royal Assent. When the House of Commons is sitting and it is reported in the House of Commons, that is the day of Royal Assent.
Senator Lewis: The later day. If it was reported here in the Senate this week and the House of Commons did not sit until September and the report was made then, the date of Royal Assent would not be until September.
Senator Lynch-Staunton: That is right. In a situation like that, you would fall back on the traditional Royal Assent ceremony.
Senator Lewis: We have a procedure here where we sometimes provide that a report can be tabled with the clerk. If we had a provision like that it might cover that question. We could state that, where the report is filed with the clerk of each house, it would be deemed to have been reported to the house.
Senator Doody: This is probably written as it is intended to be, that is to say, if the House of Commons or the Senate wish to participate or wish to have a bill assented to, they should be in session. If they leave with no interest in a particular bill, then surely you cannot expect the bill to be assented to when they are absent. The two Houses of Parliament are responsible for the passage of the bill in conjunction with the Crown. If they pack up and go home, I find it difficult to have any sympathy for the urgency of the bill.
Senator Gigantès: Since my appointment fourteen and-a-half years ago, at the end of June each year when we give Royal Assent to bills, and somebody from the House of Commons wearing a Speaker's hat comes with some officials and one or two MPs, those bills have not come into effect until September when the House of Commons resumed.
Senator Lynch-Staunton: A motion has been passed allowing a minimum number of members of the house to attend as if they were sitting. They have provided for that.
The question is: when the House of Commons is not sitting, is the tabling of the declaration enough to confirm Royal Assent, or must be it be when the House is sitting? Clause 3 states, "within the first 15 sitting days". We assume the House is sitting. If that is correct, then we cannot table the written declaration unless the House of Commons is in session, so then you would fall back on the traditional Royal Assent ceremony to make sure that Royal Assent is confirmed on the date you want it to be confirmed.
Senator Buchanan: I do not see any problem here because if the House of Commons is adjourned and there are bills to be given Royal Assent, the same procedure is used that has always been used. The Royal Assent is given in the Senate and that is it. The only time clause 4 would be used would be if it is by declaration, and if the House of Commons is adjourned, you would not do it by declaration, you would do it in the usual way which is described in clause 2(a).
Senator Joyal: Today, as a member of the committee, I have been asked to pose some questions on behalf of Senator Carstairs who has been reviewing the application of the bill for the government. She has suggested -- and Senator Lynch-Staunton is aware of it -- some amendments to clarify some objectives of the bill. In regard to clause 3, the proposed amendment would be to delete the requirement for a written declaration. I recognize that we are not at the clause-by-clause stage at this point, but I want to inform members that this is the approach the government would like to suggest. We would not revert to the traditional procedure. I do not know if that is agreeable to the committee.
Senator Lynch-Staunton: I only received the proposed amendments last night, and I have one question. Generally, I do not see anything wrong with them.
The Chairman: We should discuss these proposed amendments while Senator Lynch-Staunton is here with us.
Senator Lynch-Staunton: You may want to hear the other witnesses and then do the clause-by-clause and move the amendment. I could revert to being an ex officio member and participate in any discussion.
The Chairman: We cannot move amendments until we are at the clause-by-clause stage. However we, including our witnesses, should be aware of what they are.
Senator Joyal: There is no difference of interpretation with respect to clause 2. The government seems to agree with the sense of that clause. When you introduce that clause, you interpreted the bill to mean that it would mandate at least two Royal Assent ceremonies during the session. I assume that Senator Lynch-Staunton is interpreting clause 2(b) of the bill as requiring one Royal Assent ceremony for the first bill to be introduced and one for the first supply bill at each session of Parliament.
The purpose of the amendment would be to clarify that the traditional Royal Assent ceremony be required for the first bill presented for assent in a session. It would be my intention to move a further amendment to also clarify that there will be a traditional Royal Assent ceremony for at least one bill in each subsequent calendar year in the session. However, a session might extend to more than a year, and we have experienced that in our history. The requirement would be for a Royal Assent ceremony for the first bill presented for assent in a session, and for at least one bill in each subsequent calendar year in each session. This would preserve the Royal Assent ceremony as a tradition of Parliament and it would give Parliament more flexibility with the written declaration. This would be the suggestion of the government.
Senator Lynch-Staunton: Clause 2(b) refers to the first appropriation bill.
The Chairman: It says "or".
Senator Lynch-Staunton: Clause 2(b) states:
..unless the bill is the first appropriation bill or the first bill other than an appropriation bill...
Senator Nolin: In French we use the word, "et".
The Chairman: As it reads in English, it would be exactly what Senator Joyal is suggesting.
Senator Lynch-Staunton: It should be "and". That is a mistake.
When dealing with a supply bill, the Speaker of the House of Commons, in traditional wording, requests the approval of His Excellency. In the case of an ordinary bill that participation by the Speaker of the House of Commons is not required. There is that added element in the Royal Assent of a supply bill, an element which does not exist in the ordinary procedure. If nobody is bothered by eliminating "appropriation" and substituting the first "bill", I have no problems with that at all.
Senator Joyal: The objective of the bill is to maintain the ceremony, that we retain the tradition so it will not be eliminated from the practice of the House of Commons. That is also the purpose of the motion.
There would be an amendment to clause 2 to have Royal Assent for at least one bill in each calendar year. It would be repeated in clause 3 and, if the new clause 3 is adopted, there would be a new clause 7 which would be only a technical amendment which would be made necessary by the inclusion of the new clause.
Senator Buchanan: Clause 7?
Senator Joyal: We would have a new clause 7 of the bill. There will be a renumbering of the clauses of the bill.
Senator Buchanan: Clause 5 becomes 6 and then 7.
Senator Joyal: Yes, we would renumber the clauses.
Senator Bolduc: There would be a new clause 3 and you said that there would not be the written declaration. How would it read?
Senator Joyal: Have the amendments been circulated?
The purpose of the new clause is to ensure that written declaration would not be invalid if the requirement for a traditional ceremony in each subsequent calendar year in a session was not met.
Senator Buchanan: The intent is to ensure that the present Royal Assent ceremony is continued once a year.
Senator Joyal: Yes. It will not change the objective that Senator Lynch-Staunton is pursuing with the bill, which is to ensure that the government has the capacity to function and, if we are faced with a situation of having to resort to a faster way of sanction, that it is still possible. That is the purpose of the new clause 7.
Senator Bolduc: I may be wrong, but if I remember our lengthy discussion with Senator MacEachen and Senator Stewart, the royal assent of the first supply bill in each year has some profound meaning. Unfortunately, Senator Stewart is not here to explain his own point of view, but he might be interested in having a discussion with you.
Senator Lynch-Staunton: The difference is that, with a supply bill, the Speaker of the House, after the ordinary bills have been given Royal Assent, then turns to the Governor General and advises him that supplies have been voted and humbly requests His Honour's assent. That is done to stress the importance of the House of Common's role in determining supplies. Then the clerk brings the bill to the front, reads it, and brings it back.
Ms Palumbo: The purpose of referring to it in the bill is so that, somewhere down the road, we do not lose sight of the difference between those two ceremonies.
Senator Lavoie-Roux: At the National Assembly, on occasion, the Lieutenant Governor would attend.
[Translation]
The sponsor of the bill and the opposition spokesperson would both go to the Lieutenant Governor.
[English]
The bill would be explained in a few lines and then the formal signing would take place.
Why not go to the Governor General if the House of Commons is not sitting?
Senator Lynch-Staunton: The procedures, when they are written out, I hope will include that a member or more of each house is present at the actual declaration to witness that it actually took place on the day it took place. That should certainly be part of the procedure.
Ms Palumbo: That was recommended. What Senator Lynch-Staunton recommended was part of Senator Molgat's report in the 1980s. It was certainly recommended by at least one committee.
The Chairman: Our researcher has pointed out that is not something which should be in the statute. It is part of regulations and developing a procedure.
Senator Bolduc: The situation is a little different because we do not see the Governor General very often, since he is constantly travelling all over Canada.
Senator Lavoie-Roux: A judge of the Supreme Court can replace him and that often happens now.
Senator Bolduc: We should not go to the Supreme Court to ask them to give Royal Assent to a bill. It must be done somewhere in Parliament.
Senator Lavoie-Roux: The Supreme Court comes to us.
Senator Doody: I have a sense of déjà vu. We went through this whole process a few years ago.
[Translation]
Senator Nolin: With your permission, I would like to go back to paragraph 2(a). It is important that that aspect be maintained for historical reasons. The conventions that surround and complete our laws are near and dear to Canadians. Today, we have a tendency to ignore the historical importance of the terms used to introduce appropriation bills. It would be unfortunate if we forgot that history in favour of a more expeditious procedure more in keeping with modern ways. To some extent, it's a bit as though we decided to abandon royal prerogative. I have problems with the amendment moved by the government. I understand that the government also wants to align itself with a bill intended to modernize procedure. In my opinion, we would be going a bit too far. Personally, I want to maintain the protocol surrounding royal assent, for the first appropriation bill, among others. That is a personal comment.
[English]
The Chairman: I am somewhat reassured by clause 2(a). I intend to support this bill as amended, but I do have some personal reservations about it because Royal Assent is the last vestige of raison d'être for our Usher of the Black Rod. It is the original reason behind the Senate having an Usher of the Black Rod and it is a fine piece of theatre.
Senator Lynch-Staunton: I share those reservations, but if there are fewer ceremonies, they can be done in the style they merit and given the importance and the promise that they merit. We can announce them ahead of time. It will not be a carnival or show. We explain by the ceremony the link between the two Houses and our head of state. As you saw last week and will probably see tomorrow, Thursday, it is inspiring for those who see it for the first or second time.
Senator Joyal: We rarely see Her Majesty, or the Governor General who represents Her Majesty in the Senate chamber. Their presence or the authority they represent in our system is represented by the mace. This is where the symbols lie. When the Usher of the Black Rod is walking behind the mace, he is walking behind the symbol of the authority. We should not imply that, because we are redefining the procedure, we are diminishing the role of that person in our constitutional history.
The procession is the most important element. It calls us and the public who is watching to the attention that this is the procedure by which enactment of legislation starts and continues. As long as the mace is in place, we must respect certain rules. This is the way the system has developed. I feel as much respect for the institution when the mace is presented and it lies on the table than I would feel if we were honoured by the presence of the monarch or of the Governor General. It is certainly not the same but I do not feel that we are diminishing the role of those persons.
Senator Bolduc: If we have Royal Assent only once or twice a year then perhaps the Governor General will attend.
The Chairman: Mr. Aimers is our next witness. Please proceed.
Mr. John Aimers, Dominion Chairman, The Monarchist League of Canada: I disagree with the thrust and the subtext, which inadvertently appear in the bill that Senator Lynch-Staunton is proposing.
I do not doubt for a second that Bill S-15 has been proposed to expedite public business and promote efficiency. However, as with many simple propositions, closer scrutiny suggests many difficulties. We find this bill inappropriate, unnecessary and ill-advised.
The proponents of the legislation argue that it provides an option, an alternative, to the current practice of giving Royal Assent. In fact, once one offers an expedient option, given the pressures and reality of time in your world and in the world today generally, the alternative often becomes the norm. We can all think of examples in public life when one's own innovative precedent becomes settled practice. Options allow too much discretion. They presume too much on goodwill. They suggest too little importance than we believe is attached to the ceremony and the process that we are considering today.
Some years ago, Canada Post decided to allow an option vis-à-vis the purpose of definitive postage stamps. It offered the Canadian flag as an option to the definitive bearing the portrait of Her Majesty. I should add that a loyal, constitutionally-minded Crown corporation might never have forced Canadians to make that choice. By squirreling away the Queen stamps into the bottom of obscure drawers and by making the flag stamps easily available in a variety of formats, the option very nearly became the rule. The non-ceremonious option for Royal Assent would also very quickly become, and be considered, the norm.
The proponents of this bill also say that their alternative method of giving Royal Assent would result in a greater convenience for the Governor General or his representative, as well as for senators and MPs. This may be so, but those arguing the point have lost the perspective, perhaps unattractive to many in this era, that public service is a burdensome responsibility, and rightly so. For the same reason that we do not pay senators or MPs an indemnity comparable to salaries in corporate Canada, the Queen, who is part of this Parliament, may find it inconvenient to get out of bed in the morning to peruse the tabloids, shake the 1,000th mayor's hand, accept the 10,000th bouquet from a nervous child, cut the 100,000th ribbon of the museum or hospital or library or whatever. The essence of constitutional monarchy, if we learn anything from it, is a sense of duty and obligation, the subsuming of personal preference and will to the imperatives of public service.
Even if what this bill proposes indeed resulted in a life more personally convenient for His Excellency or the justices of the court who normally deputize, or even parliamentarians generally, that is not the point. It cannot be weighed equally with the much greater inconvenience resulting from, not the abandonment of forms and ceremonies themselves, but the implicit invitation to ignore the constitutional reality that underlies them and that constitutes the underpinning of all we enjoy and so often take for granted in this Dominion.
The average Canadian who is expected to be at his or her desk 48 weeks of the year, would not feel that the schedule of Parliament sittings was so extensive that the hour taken here or there for Royal Assent would prove to be an extensive, significant barrier to the passage of legislation and to the substantive deliberations of those chambers. The laws passed by Parliament, after all, seriously affect and change the lives of ordinary Canadians. Laws should not be enacted with dispatch, but rather with solemnity. It is good for senators and members of the Commons to pause and reflect on the significance of their actions, as the Queen's delegate gives Royal Assent.
Senator Carstairs suggested in her remarks on May 14, which you can find on page 1515 of the Debates of the Senate, that this legislation only alters ceremony and form, and not substance, that it would not touch the "office of Queen", that inelegant phrase entrenched in the Constitution. She may be correct in a legal sense, although passage of the bill might invite a court challenge on the point. But morally and in reality, such is not the case. Removing the monarch, or her representative, from the normal performance of an act that is accomplished through physical presence, as well as by dictate of the Constitution, is a most serious step. The present Royal Assent symbolizes the monarch, represented by a person duly authorized, giving approval of bills after they have been passed by the two Houses of Parliament.
The new proposed method, which would become the norm, done as it were off the stage of the Government House, would change that symbolism, making it more like the American president signing bills at the White House. There would therefore be a shift from a fundamental monarchical symbolism to an inherently republican one, a change that the media, and thus the public, is sure to pick up and focus on.
Present practice, on the other hand, offers an appropriate symbolic picture to the country of what its Constitution and its institutions are. Such a picture is important for sustaining a sense of what it is to be Canadian. Watering it down would constitute an erosion of our institutions. The monarch is a part of Parliament as much as the Senate and Commons. By what logic does the monarch remain publicly and visibly as much a part of that Parliament as if, heretofore, a representative is to be discouraged from his physical premises and told to conduct his responsibilities by mail?
Again, why should Canadians copy the United Kingdom and other Commonwealth countries if their practice is arguably inferior? We should strive to develop a model that the rest of the Commonwealth may wish to follow, as, in our opinion, their forms of Royal Assent are unsatisfactory.
It is vital that the Canadian practice be retained, despite the fact that it was dropped at Westminster. In the United Kingdom, the Sovereign frequently performs a variety of constitutional acts in person, whereas Her Majesty has not opened a Canadian Parliament personally since 1977, and it is nearly 60 years since Royal Assent was given in Ottawa by a monarch, in that case, by His Majesty George VI. He was another man who found the Royal duty unexpectedly thrust upon him inconvenient, but who performed that duty to the day of his death.
Royal Assent is the culmination of a process of lawmaking that begins each session with a Speech from the Throne. In the Speech from the Throne, all three parts of Parliament are assembled together in one place. They separate for debate, discussion and decision. For Royal Assent, the last stage in the process, they are now, most appropriately, brought together again. The proposed change to the assent process would divide Parliament because there would be no such coming together again, with written assent to bills being sent to each house separately.
As senators know, in common with experienced mediators or meeting chairs, it is only really in person, not via video-conferencing or communications in writing, that one can tell the mettle of those with whom they speak. The set of a person's eye, the quality of their grip, the aura of their presence. betrays much. These are tangible things. So are manual acts in our society, in our body politic. These manual, physical acts performed in public have a deep resonance in both our daily lives and in the nation's consciousness, whether it is the crowning of a sovereign, the bow of respect to a judge or to the Speaker of the House of Commons, making a sign of reverence before an altar, or rising to welcome a guest to your home or office. They emphasize, by what they represent, some very vital element of the essential elements of our national fabric. Repeat the Royal Assent 100,000 times and you still cannot do it often enough. The presence of the Crown reminds us all, its subjects, that there is another level of authority in our society above and beyond the vicissitudes and discontinuity of jockeying for position, appeals for votes, seeking to gain advantage of partisan politics.
Having this level of authority at the Crown level guarantees that we are a nation based on the rule of law, not on the whims of even enlightened leaders. It guarantees that this process is achieved and is exemplified by another human being, not by the presence of a mace. We owe our deepest allegiance to another human being, not to abstractions, not to symbols -- important though they be. It is an institution, personified by a sovereign, represented by the Governor General, who stands apart from the fray, who quite understandably and properly dominates much of the proceedings of partisan political life.
In the same way, I would argue that much of the value of this institution, the Senate, surely lies in its standing at one remove from the partisanship of the Commons. The Crown stands at an even more remote second degree of distance from contention. The Crown reminds all politicians that their power is not theirs, but that it is lent for a sometimes short and an always unpredictable season. The nod of the head signifying assent will probably never be denied in my lifetime. The importance of the Crown lies not in the power it could wield, rather, it stems from the fact that it denies ultimate power to others who would love to wield it. The customary nod could turn to a shake of disapproval, if the customs and laws of our Parliament and Constitution were violated. This is the surest check on the untrammeled exercise of power by a popular political executive and its mandarin cohorts.
Who benefits from the passage of this bill? Does the virtual abolition of the ceremony of Royal Assent that would follow the adoption of this legislation, now uniquely Canadian in its form, add one ounce of freedom to those liberties that Canadians possess? Does it improve by one factoid Canadian's abysmal ignorance of their Constitution and history? Does it somehow improve the quality of the legislation passed by the House of Commons and the Senate? Does it add one chicken to any pot? Or rather, does it place a skewer through the heart of an institution? Does it banish the role of Queen and Parliament from a stately throne and consign it to a secretarial act performed at a distant functional desk some miles away? Does it actually remove one tiny occasional reality check on the political ruling class?
How often in this world have we not seen that the abandonment of the forms of civility is but a prelude to the abandonment of the civil behaviour itself.
This bill ignores another practical and rather human aspect of the role of the Canadian Crown, that of reconciling. Legislation has often been bitterly contested, the subject of general study and debate for years, culminating in a slow and contentious passage through both Houses of Parliament. It is rare for even less controversial legislation not to make some fraction of the population feel disquiet. How appropriate it is then for the Crown to perform personally the final act of this process, to reconcile, to soothe and to reassure. Hundreds of thousands of Ontarians wrote to the Lieutenant Governor about some of the controversial legislation passed by the Ontario legislature. Mr. Diefenbaker, after a year of bitter debate over the national flag, nonetheless attended its raising on Parliament Hill in January, 1965. This was a flag authorized by Royal Proclamation, and he attended to reconcile, to soothe, to reassure and to remind us that the rule of law had been attained, that the customs, traditions and procedures of Canada's Parliament and Constitution had been met, and that people's debate had been transformed into an act of Parliament, demanding all to obey it, whatever their personal opinions, for the sake of the greater community. Equally implicitly, it reminded them that those same procedures, that very rule of law, will be vigilantly safeguarded to allow them to agitate for the change or repeal of that act, whether by parliamentary amendment or following the result of an election.
In expressing their views, no matter how unpopular they are, no matter how contradictory to prevailing wisdom, no matter how uncongenial to the government of the day, those Canadians need not fear the midnight knock on the door, the warrant executed by a suborned judge, enforced by a politicized military nor the censoring of the letters to the editor in The Globe and Mail, nor my right to speak freely before this committee. Most of the world does not enjoy such assurances, nor can they go to bed with such equanimity. Most of the world does not live under a constitutional monarchy.
Why would this Parliament seek to remove this visible aspect of the workings of our system <#0107> a system that guarantees the liberty of the whole?
The social role of the Crown is possibly ignored by this legislation. It removes the opportunity for an individual public servant who may have laboured over his work for years, even for uncontroversial legislation, lobbyists and MPs, to see the incarnation of their work. I have been told that the custom is to indulge in some discreet refreshment behind the Throne to celebrate their achievement.
Could the current practice be improved? Undoubtedly. Canadians would understand more of what happens if Royal Assents were televised from time to time, and if they began with a brief explanation by His Excellency about the significance of what was about to unfold. The Governor General's more frequent appearance in person would enhance the importance of these occasions, and a deliberate effort to summon all involved in the development and legislative process of the bills to which assent is being given, both to witness and then to celebrate, might also raise the assent's profile. These objectives are partly consistent with Senator Lynch-Staunton's remarks on April 28, as reported in the Debates of the Senate on page 1364. They might be accomplished by scheduling every second or third Thursday late afternoon while Parliament is in session, so that His Excellency could place them on his schedule and perform this as an important constitutional responsibility before a particularly interested audience, and afterwards greet and meet them in a social context.
Nothing would prevent a bill that requires particularly urgent assent from using the procedures now in place, nor, from my readings of the Letters Patent, would there seem to be any impediment to His Excellency appointing a deputy who is not a judge for the purpose of occasionally giving assent. An eminent companion of the Order of Canada, a distinguished, retired military officer, might fill this role admirably. Puisne judges of the Supreme Court might often find it inconvenient to attend Royal Assent ceremonies. Some of those judges expressed unease. The Charter gives them more of an activist role in interpreting and dealing with legislation, and I understand that some of them feel that they are in an awkward position when giving assent to legislation that they may be subsequently called to rule upon.
The Monarchist League does not believe that it is necessary for this committee to make a hasty decision on the question of Royal Assent, particularly when the only option before it are the status quo and the written assent model. We would hope that the committee might instruct its research staff to consider various modifications based on a Royal Assent ceremony in the Senate chamber. The League would like the opportunity to discuss with, and present to, staff various changes and options that would meet the legitimate concerns raised by senators, in addition to the one option provided by Bill S-15. Perhaps this committee should delay making a definitive decision until the end of summer, at which time it might consider, in a more detailed manner, the various options from which it could choose the best.
I could recommend to the Senate that legislation is not really required on the subject, or use the experience and imagination represented in this chamber to recommend ways to enhance, rather than to reduce, the visibility of our parliamentary monarchy.
As it stands, this bill suggests to me that its proponents have unwittingly become captive to another agenda, an attitude towards the monarchy which they know is endemic in Ottawa. Who needs it? It is an inconvenience. The Prime Minister has equated the potential trouble for monarchists with the grief he gets from separatists. And so goes the insidious rubric of our republican fellow subjects: we will pay lip service to it; we will tolerate Royal homecomings from time to time, but at the same time, we will do everything we can to ignore the monarchy, to chip away at its visibility, its symbols, any teachings about it, so that some day nothing will stand in our way; nothing will prevent the benevolent exercise of our unfettered political power.
There is one problem with this. The ordinary men and women of Canada see through it like Shakespeare's Caesar looking down at scheming old Cassius. They realize that our political masters "be never at heart's ease whilst they behold a greater than themselves", that Crown and Crown-in-Parliament are inestimably greater than any human agenda or schedule. Convenience is an attitude. I suggest that those who seek to serve this land, rather than merely to direct it, might well reflect upon this. They should ask whether this bill promotes the latter or the former intent.
Senator Carstairs: An expression is sometimes used of Catholics: Should you be more Catholic than the Pope? The same applies here. Should we be more monarchist than the United Kingdom?
I spent a week with members of the House of Lords in February, and I raised this particular issue with them. They have done away with the procedure as we know it. They thought ours was anachronistic and somewhat arcane and could not understand why in 1998 we are still doing what we are doing. How would you reply?
Mr. Aimers: In Canada, it is terrifically important that we maintain what indeed might be an archaic or unnecessary piece of flummery in the United Kingdom. In the United Kingdom, the Queen, the sovereign, performs constitutional acts day in and out. She is physically present to do that.
In Canada, it has been 20 and more years since the Queen opened Parliament personally, and 60 years since the one act of personal Royal Assent was performed by the King. I would argue that it is more important, especially for Canada, to maintain these acts. For the system under which we live has arguably resulted in giving us one of the most free and prosperous nations in the world. We are the envy of other nations, the destination of choice for many of our new fellow citizens. It is important that these acts be performed physically so that the nation can see that it is not an accident that Canada has turned out this way. Vigilance, maintenance and an understanding of that system, which I certainly agree are not widely shared in this country at the moment, must be fostered rather than discouraged.
This Parliament seems to be discouraging the physical presence of the Governor General. This seems to run counter to that process of education and of maintaining the visibility of a system that is widely misunderstood or little understood in many sections of the land.
I do not think that this is being more monarchist than the United Kingdom. As we have so many other aspects of the institution of the Crown, we are adapting the symbols and usages that surround the Crown to the particular circumstances of Canada.
Senator Bolduc: If the bill would say that we do the traditional ceremony when the Governor General can be present and if he cannot be, we do otherwise, what do you think of that?
Mr. Aimers: I have not heard that suggestion before. It is an interesting one that we might well support. A variety of options should be presented to the committee before this historic decision is made. That might be a very viable option, if it encouraged His Excellency to be present.
Senator Carstairs: I have been in the Senate now for almost four years. I have made every single Royal Assent in that period. I can only remember one particular event in which the Governor General was here.
I personally have a great deal of trouble with judges appearing, because I do not like this mixture of responsibilities. If they will interpret laws, they should not be there when those laws are proclaimed. You have suggested some alternative measures, but let me give a normal scenario. The House of Commons has adjourned. We do not know when the Senate will adjourn. Some of us would like it to be sooner rather than later. However, we literally must keep somebody in waiting because, before we adjourn, we will want to have a Royal Assent ceremony and that is not easily done. You cannot say to an individual that it might be at 3:00, 6:00 or it could be at midnight. In Manitoba, we certainly brought in the Lieutenant Governor at 4:30 in the morning in order to give Royal Assent. Is that a reasonable policy in today's day and age?
Mr. Aimers: It is not only reasonable, it is essential. Public service is not meant to be convenient. It is a duty. It is the subsuming of personal agendas to the welfare of the wheel. We should be more creative in appointing deputies to the Governor General. Certainly the Companions of the Order of Canada and retired senior military officers fall into the category of people who might be appropriate. I think that they would regard it as a priceless honour to be in waiting for that week or month. I cannot imagine a greater thrill for a citizen than to be representing his or her sovereign, and it would expand the popular notion of our constitutional monarchy, which is very democratic. It would make it visible and approachable. I do not think that would be onerous at all. I can think of some volunteers in my organization.
Senator Gigantès: I served the Queen's father. I admire her and her grandfather, Edward VIII. Partisan politicians stopped him from wrecking the monarchy. You seem to have looked upon partisan politicians in your speech with a little impatience or maybe distaste. Think back to the time when a Liberal government asked the King of Britain to pack the House of Lords, or to threaten to pack the House of Lords, because the House of Lords was blocking the will of the elected House. The King agreed that that was an act of wisdom, but it was produced by elected politicians.
I have served our constitutional monarch, a cousin of this Royal Family of Britain, and he broke the Constitution, lost his throne. His brother-in-law did not break the Constitution and has remained on the throne of Spain and is a good king. The elected Houses of such proper constitutional monarchies have made those constitutional monarchies the decent and inspiring institutions that they are, so please do not cast aspersions at politicians. I am not one, but they produced the constitutional monarchy, not the Royals.
Mr. Aimers: Nothing in my remarks was intended to be disrespectful of politics or of politicians. Indeed, I referred to the necessary combat and partisanship that goes on, but my point is that nature abhors a vacuum. It is a natural part of the partisan political process to seek to accumulate power rather than to shed it.
Part of the value of the Crown, which indeed has evolved with the support, input and the good ideas of politicians and other segments of the community, lies in the fact that it denies final power to the partisan political process or denies final authority. Normally in a constitutional monarchy, we are governed by those whom we elect. No one would question that in 1998. There are extraordinary occasions where the national fire extinguisher is useful. Whether it is useful as a warning or to raise our consciousness of the danger of the fire, or whether it needs to be pulled off the wall and employed, is a question for history.
Senator Gigantès: You have not seen a monarch shake his head in dissent instead of assent; I have. It is difficult for me to accept the idea that the monarchy is faultless. It depends on who occupies the throne. When the monarchy is faulty, it creates havoc, although at times politicians are able to stop this.
Senator Grafstein: I apologize for not coming here earlier. I had wished to hear Senator Lynch-Staunton. Unfortunately, I was in the house. I hope I will have an opportunity to read his testimony. I found myself thinking that if Mr. Diefenbaker found a bill of this nature coming from his party, he would have had serious concerns about those who would introduce such a measure. I find myself in the invidious position of defending the ghost of John Diefenbaker, which I intend to do.
Senator Lynch-Staunton: We disagree on the flag, too.
Senator Grafstein: It is fair to say that Mr. Diefenbaker, after the decision was taken, stood as proudly, erectly and as respectfully before the Maple Leaf as any other Canadian. So, I would like to take the Diefenbaker position, not in an extreme way but in a more precise way. I am very uncomfortable with this bill for a number of reasons.
First of all, our Deputy Leader talked about the difference between Canada and the United Kingdom and indicated that they had done away with some of the mechanics of Royal Assent. Surely, the Queen in the U.K. is different substantively from the important symbolism of the Governor General, who is the Queen's representative in Canada. One of our concerns is that the Governor General does not attend to his senior constitutional duties in our chamber.
Senator Nolin: That is his first responsibility.
Senator Grafstein: His other major responsibility is to be kept advised of the state of the nation by his senior minister, the Prime Minister. Other than that responsibility, I cannot think of another more important responsibility than giving Royal Assent to the laws of the land. I do not see why the Governor General, who was a former member of our chamber, would not see this as one of his primary duties. He would rather spend his time visiting with schoolchildren, which is important, but in my view is not appropriate. We do not have enough public exposure and symbolism of the Governor General, even in Ottawa.
I agree with you that Royal Assent should be televised and explained so that students understand. Students would learn more from regular, televised explanations of bills being passed on CPAC than they would from the Governor General speaking to thousands of them across the country. What is your comment about that?
Mr. Aimers: Yes, speaking as a former assistant to Mr. Diefenbaker for two years in this place, I am sure you were not intending to criticize the Governor General. His Excellency has followed a pattern developed by the last three or four incumbents whereby the Queen's judges deputize for him. There are many alternatives to that. I am sympathetic to what you are saying.
Senator Grafstein: I agree with those who feel that judges, particularly reluctant judges of the Supreme Court of Canada, should not be the ones to establish the rule of law. In passing laws and establishing a rule of law, the Queen is, in effect, saying through her representative that she is below the law. She is below, not above, the rule of law. She hands down the law and agrees to abide by the rule of law. She, through her representative, is a symbol of that. I am concerned that that cannot be done without the physical presence of the Queen's representative. In my view, it is inconsistent to have a judge attend who, in effect, is given the rule of law by the monarch, who agrees to abide under the rule of law.
Efficiency over symbolism? Is that what we are talking about? Two inconveniences have been raised here. It has been suggested that it may be inconvenient for five or six members of Parliament to witness the Royal Assent. How many are required to attend from the other place?
Senator Nolin: One.
Senator Grafstein: There are always at least one or two members of the House.
Senator Nolin: When they are not sitting, one is required to attend.
Senator Grafstein: This week, at least half a dozen members of Parliament as well as all of the ministers are here. Surely it is not an inconvenience. Do you agree or disagree?
Mr. Aimers: I totally agree. It is a privilege.
Senator Grafstein: One of our problems is the disregard that the public has for public institutions. We find enemies from within and from without. At this particular moment, the Senate faces an unfair challenge. Even if, in fact, all of this can be done pro forma in a back room, how can we, as senators, justify eroding the minimum exposure that we have as a fundamental part of Parliament?
Mr. Aimers: It cannot be done, because, if the process is removed to a desk, a function, a return of post, what is left? There is only the appearance of a rubber stamp, as opposed to a living, breathing, human being, to whom we can all relate. It is a human being who performs the actions that represent the wholeness of the community.
Senator Grafstein: I do this in the spirit of fairness, civility and respect for the memory of Mr. Diefenbaker, with whom, on this particular point and in this particular way, I would fundamentally agree.
Senator Buchanan: I find myself not in agreement with what Senator Grafstein is saying. I am, and always have been, a traditionalist and a defender of our system of government and the monarch. Most Nova Scotians, probably 80 per cent or more, are.
Every year of the 24 years I served as Premier, as Leader of the Opposition, or as a backbencher in our legislature, there were two major events. Every year, our legislature opened with pomp and ceremony, and the representative of the Crown was there. The Lieutenant Governor read the Speech from the Throne; we were cordial to everybody, and then we had a reception. At the closing of our legislature, the Lieutenant Governor personally, on behalf of the Queen, granted Royal Assent to most of the bills that were passed.
That was done in every session of our legislature to ensure that we maintained and strengthened the parliamentary system that we have in our province with the monarch present through the Lieutenant Governor. All of our members were there. It was a big event. The legislature and the galleries were filled. The television cameras were there so that everyone would know that we retained our system of government under the Queen. That was important to us because we were very traditional in that way.
Most of our bills were granted Royal Assent at that time. However, there would be bills from time to time that required immediate Royal Assent, and, at his convenience, the Lieutenant Governor would come down and grant Royal Assent. That system has been in place in our province since Confederation.
The problem is that when we have Royal Assent, it is rather demeaning to the Chief Justice or the judge of the Supreme Court and to the monarch to have as witnesses only a handful of people and perhaps five or six MPs who are sometimes anxious to get the ceremony over with. This is not an event, and it should be.
It will not be an event when you have two Houses. It is easy for us to do in Nova Scotia and Newfoundland, and I suspect still in New Brunswick and some other provinces, but it is easier when there is one house. I am certainly not at the present time advocating the abolition of the Senate. As the fellow says, "I changed my mind."
It might be better if the Governor General did a ceremony three or four times a year for major bills, like appropriation bills; then we could say to the people of Canada, "We are maintaining and strengthening our constitutional ties to the monarch by doing it this way." I think this bill will do that. In no way, Senator Grafstein, am I moving away from my traditional position of having Royal Assent.
It is not a matter of inconvenience. It is demeaning to the monarch to do it the way we do it all the time. We pass two or three bills with a judge and very few people, and the media do not care about it anymore. However, the media would come if it were an event, and we could make it an event if we had a sufficient number of important bills. The members of the House, the senators and the Governor General would all be there. Since I have been here, I do not think I have seen the Governor General come in to give assent to a bill. I am a traditionalist. I believe in our system.
Senator Lavoie-Roux: You are a monarchist.
Senator Buchanan: This bill is important. We should retain and strengthen our ties to the monarchy, not disrespect or demean it by having a handful of people there for Royal Assent.
Senator Gigantès: I agree with what you are saying, but I am not sure why you assume that MPs will come in greater numbers even if it is done once a year.
Senator Buchanan: I think more MPs will come if it is an event. In our legislature, all members would be there. It was the opening or the closing of the legislature. These were big, meaningful events in our province; they were televised and well covered by the media. I was always very proud to stand up and take the bills and present them to the Lieutenant Governor, and he would give assent to them on the spot in front of the television cameras. Senator Moore was there many times.
Senator Grafstein: The problem is with the Governor General not being present. I am sure that in some legislation it says that for this purpose, the Chief Justice of the Supreme Court or, alternatively, a judge of the Supreme Court may replace the Governor General. In essence, because the Governor General is not compelled by law or by a higher standard to attend, the event has fallen into disregard.
What would happen if the Governor General were required to attend and Royal Assent were deferred until such time as he could attend?
Senator Buchanan: I do not think we can do that.
The Chairman: I have been told by the researcher that this is enshrined in the Constitution.
Mr. James R. Robertson, Researcher, Library of Parliament: The Constitution provides for the Governor General to appoint deputies. The Letters Patent Constituting the Office of the Governor General makes a specific provision for the appointment of deputies to represent the Governor General and do such acts as the Governor General may delegate. These are rights given by the Queen to the Governor General
Senator Grafstein: But that does not mean the Supreme Court of Canada.
Mr. Robertson: As Mr. Aimers pointed out, we have found no requirement stating that it must be the justices of the Supreme Court. However, since the late 19th century, the practice and the tradition has been to delegate as deputies the justices of the Supreme Court.
Senator Grafstein: If, in fact, it is in the Constitution, that is fair enough. We cannot fiddle with that. But could there not be a unanimous resolution of the Senate to say that the Senate requires, whenever possible, that the Governor General himself attend? Would that not be a pretty strong request?
Senator Buchanan: I do not think you can require that.
Senator Grafstein: I will put it in diplomatic language. One cannot order the monarch, or the Governor General, to attend, but one can say it would be in the interest of the Senate and respectful of the rule of law that, whenever possible, the Governor General attend in person. If a deputy must attend in his place, perhaps we could name who some of the deputies might be. I am talking about a prerogative as opposed to a binding invitation.
Mr. Aimers: I deal with Government House quite a lot, and my impression is that they are extremely sensitive to the prevailing political winds. If it were made clear that the Governor General's presence for Royal Assent were regarded by Parliament as an important function of the role of the Crown -- because, after all, for 40 or more years it has not been -- I cannot imagine His Excellency would not respond and adjust his schedule accordingly.
It would not take any legislation because the Letters Patent from 1947, as I read them, said he will appoint such fit person or persons. Therefore, the door is wide open for suggestions, whether my own or somebody else's, as to categories of people who could do this.
The Chairman: Perhaps we could confine this to questions rather than statements.
Senator Grafstein: If the Governor General were here, do you think that senators would take the same approach and not attend as they do with simply a judge of the Supreme Court of Canada?
Senator Buchanan: Maybe more senators and more MPs would be present. Mr. Aimers said that it is important to have a living, breathing, human being present and that would be the Governor General or the Chief Justice. The problem with that is that there are not enough senators or MPs present who are living and breathing. Perhaps a joint committee of the House and the Senate could get together to ensure that the ties are maintained and that, when certain bills are given Royal Assent, the Governor General is there and we are there in great numbers.
The Chairman: This is a bit beyond the scope of this bill and we have discussed it for quite some time.
Senator Bryden: I have listened with interest to some of the flights of fancy and rhetoric. I speak to the witness's suggestion that we need to be more creative in finding pinch-hitters for the Queen's representative. Should we be more creative than that? I wonder if the Senate, as its millennium project, could not avail itself of the technology that is now readily available to bring the person of the Queen right into the chamber by teleconferencing. We could do it for the Royal Assent, at least once a year for the Speech from the Throne, as Senator Lynch-Staunton indicates in this bill. We would pack the galleries, with a lot of emphasis on children, and we would bring the House of Commons. There would be an exchange of views. We would not only see the Queen nod her head, we would hear her say, "Yes, I assent." If need be, she could wheel up to Westminster Abbey in her horse-drawn coach and we could see all of that. We could make this into an event. If the party afterwards was good, we would have a good turnout. My point is that if we will be creative, why do we not look forward into the new millennium in this regard?
Many people defend the monarchy and its role. Rightly or wrongly, they are seen as people who look backward. To be creative, why not look forward and avail ourselves of this rapidly developing technology? What is your view?
Mr. Aimers: Absolutely. The monarchy has survived and prospered because of its ability to adapt. From time to time, it could be the Prince of Wales or any member of the Royal Family deputizing for the Queen. What you are suggesting would bring into public focus the fact of what we are. If we are ever to have an intelligent debate about the desirability of this institution, it must be based on information that now does not exist. Your suggestion would contribute to that process. It would bring crowds, especially of young people, of new Canadians, of native peoples; all the elements of our community would come together in unity under the Crown. Your suggestion would breathe new life, and that is what this committee is here to do. If you pass this bill today, that one option will be precluded.
The Chairman: There are some wonderful suggestions before us but the matter that is really before us is this bill. We must deal with it. In the absence of any further questions for our witness, we will proceed to clause-by-clause consideration of the bill. I thank you very much for appearing before us.
Shall clause 1, the short title of the bill, carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 2 carry?
Senator Joyal: I should like to move an amendment to clause 2. I expect that my colleagues have before them copies of the proposed amendments.
I move:
That Bill S-15, in Clause 2, be amended by replacing lines 12 to 14 on page 1 with the following:
"is the first bill presented for assent in a session."
Senator Buchanan: I do not have too much objection to what you propose. However, does that include the appropriation bill?
Senator Joyal: If it is the first one.
Senator Lynch-Staunton: It makes no distinction.
Senator Joyal: There is no distinction as such. The first bill is the first bill. If it is a bill and if it is the first one that comes from the House of Commons, then that is the bill that should be receiving the assent.
Senator Buchanan: It should be given the formal Royal Assent.
The Chairman: Shall clause 2, as amended, carry?
Senator Lynch-Staunton: The supply bill is more interesting for Royal Assent purposes than an ordinary bill. If you only want one bill, would you consider making it the first supply bill?
Senator Bolduc: That is what I wanted to suggest.
Senator Lynch-Staunton: We are asking whether the proposer of the amendment would accept the addition of the word "supply", so that it would read:
"is the first supply bill presented for assent in a session."
The Chairman: By that, you mean the first appropriation bill.
Senator Lynch-Staunton: Yes, I mean the first appropriation bill.
Senator Buchanan: The first bill to come through the House of Commons could be an innocuous, meaningless bill, and to ask the Governor General to give Royal Assent to that kind of bill would be meaningless. However, appropriation bills are different.
Senator Joyal: It could happen that it might be a bill to put an end to a strike, for instance, and we know the context in which those bills are sometimes adopted. I was in the other place for a long time; some bills were hotly debated, not only by us but by the general public. To have the Governor General, or his replacement, associated with that kind of legislation might be inappropriate.
The Chairman: Do you agree to change the wording?
Senator Joyal: Yes. It should read:
"is the first appropriation bill presented for assent in a session."
The Chairman: Shall clause 2, as amended and re-amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried, unanimously.
Shall clause 3 carry?
Senator Moore: Reading through this, I am not sure that the wording of the amendment accurately reflects what we are trying to achieve. Clause 3 reads:
A written declaration of royal assent shall be reported in each House of Parliament by the Speaker of that House...
Is it not by the Speaker of each House?
Senator Buchanan: Are we talking about clause 3 or clause 3, as amended?
Senator Lynch-Staunton: Clause 3, as it appears in the bill.
Senator Moore: The amendment, Senator Buchanan, refers to the latter part of the phrase.
The Chairman: I do not see a problem with that, as far as grammar is concerned, because the word "each" appears prior to the phrase "of that House."
Is there an amendment to clause 3?
Senator Joyal: I move:
That Bill S-15, in Clause 3, be amended by replacing lines 17 to 20 on page 1 with the following:
"ment by the Speaker of that House or by the person acting as the Speaker."
[Translation]
Senator Nolin: You are eliminating the 15-day period. That is the objective.
Senator Joyal: That's correct.
[English]
The Chairman: Shall clause 3, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 4 and 5 carry -- that is, honourable senators, those clauses that are numbered 4 and 5 in the original bill, because there are no new clauses yet.
Senator Buchanan: Will you go back and do the clauses?
Senator Joyal: I move:
That Bill S-15 be amended by
(a) adding after line 14 on page 1 the following:
When customary form and manner to be used
"3. A declaration of royal assent in the form and manner referred to in paragraph 2(a) must occur on at least one occasion in each calendar year."
(b) renumbering the subsequent clauses accordingly.
The Chairman: Before we vote on this one, we should first agree whether or not we will carry clauses 4 and 5, the original ones to which there are no amendments, because this particular amendment renumbers things.
Shall clauses 4 and 5 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the new clause 3, as moved by Senator Joyal, carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Joyal: I should like to move:
That Bill S-15 be amended by adding after line 29, on page 1, the following:
No invalidity
"7. No royal assent is invalid by reason only that section 3 is not complied with in any calendar year."
The Chairman: Is there any discussion?
Senator Buchanan: I am concerned that this may be the thin edge of the wedge, to ensure that there is no Royal Assent required in any year?. Mr. Aimers referred to these types of things. If in one year Royal Assent is done only by declaration and not by the Governor General or the Chief Justice, or somebody, then the next year, will we say, "Well, last year's Royal Assents were not invalid"?
Senator Joyal: If it became the procedure, in two years we would in fact invoke the proposed new section 7. That would change as you suggested. It is not the intention of the mover of the bill. The intention of the mover of the bill is to keep the continuity of the tradition in the regular way, but if for all kinds of reasons in a year that did not happen, the government is suggesting that that should not of course entail the invalidity of legislation. It is more technical than anything else because there is clear intention on the part of the movers of the bill that the tradition is continuously present on a yearly basis.
The Chairman: Then if Parliament for some reason prorogued earlier than they expected to, late in the year, this would be covered.
Senator Joyal: That is the purpose.
[Translation]
Senator Nolin: Are the words "no invalidity" part of a title?
Ms Lank: They are in the margin.
Senator Nolin: They are in the margin. They are not part of the bill?
Ms Lank: Precisely. They are not part of the bill.
[English]
Senator Joyal: It is just a matter of presenting.
Senator Lynch-Staunton: I think that clause 3 will be in the margin here and it is a new clause 3, so clauses 3, 4 and 5 are now numbered 4, 5 and 6. The new clause 7 says that if there is no Royal Assent as required by section 3, it is too bad. There is no sanction, and no valid reason need be given. I find that rather draconian. It just invalidates with no reason.
Senator Joyal: It might be a stronger way of putting it, to face the arguments put forward by Senator Buchanan. On the other hand, the way that Senator Milne has been expressing it is a reality, too. Certainly, the government does not want to find itself in a situation whereby because Royal Assent was not given in a traditional way that year, that all the legislation has been declared invalid. For all kinds of reasons, it might happen because of the calendar year, the way that we sit in a year. The circumstances might not have provided for a Royal Assent in the traditional way. That is essentially the problem we face.
Senator Lynch-Staunton: Can you think of any situation where 365 days could pass without a Royal Assent ceremony? There has not been one occasion yet where even a few months have gone by without one, when Parliament is sitting, of course. This seems to be a way to exempt legally the traditional Royal Assent ceremony without any valid reason having to be given. First, you say that you have one every calendar year, and then you say that if you do not have one, it does not matter.
Senator Gigantès: If this clause is taken out, the government will be obliged to have a Royal Assent once a year. There are 365 days a year in which to have Royal Assent. I think we can squeeze that in somewhere. We only sit 70 days a year.
Senator Joyal: I understand the argument and there is merit. On the basis of it, we should not do indirectly what we do not want to do directly. We should not open the door to something that we do not want to achieve. I recognize that the argument put forward by the government has merit, too, and maybe there is certainly a better way to rephrase it if members and senators are not happy, satisfied or comfortable with it. I would not be in a position to say, "Drop it because we are not achieving our objective."
Senator Bolduc: Why do we not suspend it? We will change it in the House. That will give you time to get a technical explanation by someone who is more familiar than we are.
Senator Buchanan: Are you suggesting that because of the prorogation of Parliament?
The Chairman: We must either pass it or not pass it. It has been moved. I do not think that we can suspend part of a bill and then go back and report the bill. We must either pass it or not pass it and then leave it up to the House to do what it wishes at third reading.
[Translation]
Senator Nolin: Senator Joyal, if I understand the intent of this amendment correctly, it would apply in the following situation: we are at the end of the month of June, some bills have not received royal assent, and during the summer recess, the Prime Minister decides to prorogue the House. What happens to those bills?
Senator Joyal: That could be invoked to allege that a law is invalid. It is a technical question, basically. The objective is to provide a technical argument for situations such as the one you have just described. If we could find some other more rigorous way of preventing the situation Senator Buchanan referred to, I don't think the government would object. We have to protect the intent, the basic purpose of the bill. The idea is precisely to provide a solution for the type of situation you just described.
Senator Gigantès: But if people are aware of the problem, would the Prime Minister not make sure that royal assent be declared before prorogation?
Senator Nolin: Royal assent would be declared because this would be the normal way of doing things, but if the minimal condition of having a traditional royal assent at least once a year has not been met, he would be facing a dilemma. He could not prorogue the House. It is a prerogative he has pursuant to the Parliament of Canada Act.
Senator Gigantès: He would have to do it at the beginning of the year.
Senator Nolin: Perhaps we could pass this clause on division and debate it at third reading.
[English]
Senator Lynch-Staunton: I can see a case where a minority government passes regular legislation and gets defeated on a supply bill. The written declaration has been used, and for one reason or another, the election is held or Parliament reconvenes in the following calendar year. So, the government has inadvertently, because of circumstances beyond its control, not been able to use a traditional Royal Assent during those 12 months. This opens the door for any purpose rather than a specific reason.
Senator Joyal: The suggestion put forward by Senator Nolin is a valid one. We could adopt the bill, and on third reading we will have time to think about it and come up with some kind of wording to tighten the opening. We would not be opening a trick in the legislation that could be used to defeat the purpose, made in good faith by all of us.
The Chairman: With unanimous consent of the committee, someone who has proposed an amendment may withdraw that amendment, if there is unanimous consent of the committee. Senator Joyal, if he wishes to withdraw this amendment, can do so and we can carry on with the bill and do it at third reading.
Senator Grafstein: There is a valid problem with either a minority government or government choosing to immediately pull down the writ, and that has happened. It is a prerogative and it is clear. Maybe a way to deal with this is to say that no Royal Assent is invalid. By the way, I am doing this subject to my right to oppose the entire bill.
No Royal Assent is invalid by any reason, only that proposed section 3 does not comply within any two calendar years. If the government does not do it in two years, there is absolutely a problem. If you said two years, that would cover a period for an election. Nobody can be caught like that.
On the eve of an election, the government is always caught with appropriation bills. At the last moment, somebody reminds the Prime Minister to get those appropriation bills or those supply bills through before doing whatever he must do. There should be a bill ringing over the Prime Minister's office to say that this is a precondition. Maybe that is a solution.
The Chairman: If we will move amendments like this without actually thinking them through, perhaps it would be better to do it at third reading, rather than right here. Senator Grafstein, you are a voting member of the committee.
Senator Moore: To the senior parliamentarians around the table here, is it likely that a year would go by without an appropriation bill?
Senator Nolin: That depends on when the year stops.
Senator Grafstein: It is possible.
Senator Bolduc: It happened in 1988.
Senator Moore: In that calendar year, there was no appropriation bill?
Senator Buchanan: They did it by special warrant. It happened in the 1970s.
Senator Nolin: Why not approve that and wait until third reading, so that our minds are clearer.
Senator Moore: I was just thinking that if there was an appropriation bill once a year, it would take care of itself. You would not need that because you must have the traditional ceremony.
The Chairman: Senator Nolin has come up with a good solution. We should vote on the amendment.
Shall new clause 7 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: It is carried, on division.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Shall the bill, as amended, carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Grafstein: I abstain.
The Chairman: Carried, on division.
Shall the bill, as amended, be reported to the Senate?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Grafstein: I abstain.
The reason for my abstention is that I feel a little embarrassed opposing the bill. I was unaware that I was a named member of this committee and I do not want to interfere with the decision-making process. Please note my abstention.
Senator Buchanan: By a majority vote, proposed section 7 has now been included in the bill.
The Chairman: That is correct.
Senator Buchanan: If we had voted on it, it would not have happened.
The Chairman: The vote was taken and it was agreed to on division.
Senator Buchanan: I did not agree.
The Chairman: You disagreed.
Senator Buchanan: Had you taken an actual count on the vote, then it would have been apparent to me that proposed section 7 would have been excluded.
Senator Grafstein: Why, because I abstained?
Senator Buchanan: No, because there would have been seven votes.
The Chairman: I believe that some of the ones you are counting do not generally vote in the committee.
Senator Buchanan: Why not?
The Chairman: For example, if Senator Lynch-Staunton had intended to vote on this, then Senator Berntson could not.
Senator Lynch-Staunton: I would not vote in the absence of the other ex officio member.
Senator Buchanan: Proposed section 7 would not have been carried. I thought that we were voting on the bill as is, with the amendments we had agreed to, and leaving proposed section 7 to be added to the bill in third reading.
The Chairman: I believe I quite clearly called what we were voting on, Senator Buchanan, because I said, "Shall new clause 7 carry?", and it carried on division, with one abstention.
Senator Gigantès: It can be changed at third reading.
[Translation]
Senator Lynch-Staunton: Senator Joyal has prepared an amendment for tomorrow afternoon.
[English]
Senator Bolduc: It would be wiser to do that.
Senator Joyal: I would like to confirm that I take it upon myself to talk to the government leadership to make sure that the observation that has been put forward by my honourable colleague on the fact that we might open a door to change the objective of the bill -- which is to maintain on a yearly basis a traditional ceremony of assents -- be met in a satisfactory way so that, at third reading, those concerns will be addressed in a proper way.
The Chairman: All right.
Thank you, honourable senators. I will now adjourn the committee.
The committee adjourned.