Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 5 - Evidence for April 26, 2001

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-25, to amend the act of incorporation of the Conference of Mennonites in Canada, met this day at 10:45 a.m. to give consideration to the bill and to give consideration to other matters before the committee.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, before we begin, I should inform senators that Mr. Lohrenz and Mr. du Plessis are here with answers to some of the questions raised yesterday about the disposition of real estate, which really has nothing to do with this bill. Perhaps I could ask them to give me something in writing at a future time about that, and I will circulate it for the information of the committee.

Hon. Senators:Agreed.

The Chairman: Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill S-25, to amend the act of incorporation of the Conference of Mennonites in Canada?

Hon. Senators: Agreed.

The Chairman: Shall the title stand postponed?

Hon. Senators: Agreed.

The Chairman: Shall the preamble stand postponed?

Hon. Senators: Agreed.

The Chairman: Shall clause 1 carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall clause 2 carry?

Senator Moore: I have been asked by the sponsor of the bill, Senator Kroft, who could not be here this morning, to speak to this. A copy of the fifth draft of the amendment has been distributed.

I would move

THAT Bill S-25 be amended in clause 2,

(a) on page 1, by replacing lines 27 to 29, with the following: 

"2. Sections 1 to 5 of the Act are replaced by the following:

 1.(1) The Corporation created by chapter 91 of the Statutes of Canada, 1947, is continued as a body corporate under the name "Mennonite Church Canada".

 (2) The Corporation consists of those congregations of Mennonites and conferences of Mennonites that are corporate members of the Corporation on the coming into force of this Act and such other congregations of Mennonites, conferences of Mennonites or other entities as may become corporate members thereof.

2.(1) The head office of the Corporation"; and

(b) on page 2, by replacing line 6 with the following:

"3.(1) Subject to this Act, the Corpor-".

The Chairman: There is no "of" in the title "Mennonite Church Canada" commensurate with titles of the Mennonite Church in the United States and in other countries.

Senator Fraser: I second the amendment.

The Chairman: Shall the amendment carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall clause 2, as amended, carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall clauses 3 to 6 carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall the preamble carry?

Hon. Senators: Agreed.

The Chairman: Carried. Shall the title carry?

Hon. Senators: Agreed.

The Chairman: Carried. Is it agreed that this bill be adopted with amendment?

Hon. Senators:Agreed.

The Chairman: Carried. Do we want to add any observations to this study?

Some Hon. Senators: No, no.

The Chairman: Is it agreed that I report this bill as amended at the next sitting of the Senate?

Hon. Senators: Agreed.

The Chairman: Thank you, senators.

Next Wednesday, at the usual time, we will be meeting informally, in camera, I suppose, to discuss the presentation that Senators Austin and Stratton gave to us yesterday as well as to discuss the draft report on the appearance of the Chief Electoral Officer of Canada before us.

Senator Beaudoin: We will give priority to the Austin report?

The Chairman: I think so, yes

Senator Beaudoin: He does seem to be in a hurry.

The Chairman: Yes.

Senator Joyal: Madam Chairman, in view of that upcoming meeting and the fact that we are the Standing Senate Committee on Legal and Constitutional Affairs, would it be possible to get from our researcher some documents to help us to discuss the essential legal elements that exist in the committees?

We are a committee with a very specific nature. I believe we can contribute to the Privileges, Standing Rules and Orders study in a specific way in relation to the status of committees in the Senate. Can our researcher provide us with some materials to help us in that regard?

Senator Pearson: I support that very good idea. One of the first committee meetings I attended was Scrutiny of Regulations, where we studied the legal powers of committees. That might be interesting to have in the documentation that the other committee will send back. Those powers are greater than we think.

Senator Cools: Those powers are enormous. The problem, when a committee is on the defence, is that no one is inclined to defend the committee.

Senator Moore: I would support that. I have been thinking about Senator Beaudoin's comments mentioned yesterday with respect to joint committees. Why are we not be recognized until after the fourth and fifth parties? What is that structure about? Is it written down? By what authority are joint committees not permitting senators to speak earlier in the order?

Senator Beaudoin: We had a long debate at the time of the amendment to section 93. We raised the point because, in the joint committees, the first to speak is Leader of the Opposition in the House of Commons; second is the Bloc Québecois; and then they alternate with the government - and there is nothing wrong with that; then the NDP speak, and then the Conservatives are fourth.

The Chairman: Perhaps I would remind senators that this is all still on the record.

Some Hon. Senators: That is fine.

Senator Beaudoin: That is okay.

To me, the speaking order is not fair at all because the Senate is coming late. We have an official opposition in the Senate. We are considered as the fifth or sixth, after the House of Commons. To me, this goes against the procedural principal.

We won the case when we studied with Lucie Pépin and Denis Paradis. They applied the rules as I suggested, but when we left they went back to their old system.

Senator Moore: That may be something we can consider here.

Senator Fraser: As a supplementary to that, the same is true on the government side. Senators come last, with the occasional exception: a senator who is regarded as a monument in the field may get to go first.

Senator Beaudoin: It is unfair for the government and for the opposition in the Senate. We come last.

The Chairman: It may be worthwhile for our researcher to look into the rules of joint committees vis-à-vis how speaking order is determined in joint committees.

Senator Beaudoin: I would like to know where we stand right now. I would like to know the impact of the committee on human rights - and I am in favour of having that committee - on our work here in this committee.

Senator Fraser: It is my understanding, if I may, Madam Chair, that the human rights committee will not study legislation, that they will concern themselves with issues, studies, and the like. I do not believe that committee will see legislation.

Senator Andreychuk: That is still an open question. As new committees are struck, terms of reference are set. That committee could in fact have legislation put to it, but I do not think there is any intention by those of us who put forward the idea of the human rights committee to compete with or dilute the work of this committee in any way. However, as you know, it is not in the hands of the committees to designate where bills go. That decision belongs to the leadership of the government.

Senator Beaudoin: This is what worries me. We have to talk on both sides about that. We are in agreement with having the human rights committee, agree that it is very important, but it is in the Senate that the decision is taken. This committee can say nothing after that. It is up to our leader to consult this committee, to know whether we agree or disagree that it be referred to the new committee, in my opinion.

Senator Andreychuk: No, no. That is beyond what we were discussing. If you have a particular problem with the human rights committee, I would hope that, once that committee is constituted, you would raise those issues in that committee.

Senator Moore: He will not be in that committee to do that.

Senator Andreychuk: Yes, he is on the list. I sit on the Privileges, Standing Rules and Orders Committee and there we have agreed that the chair and the deputy chair will go out and speak to the other committees. My understanding is that they are under a time limit and that they are doing the core discussion to evaluate committees.

I am concerned with some of the questions I have heard here. Will we study the whole committee concept and its worth, et cetera? We may have some need to do so, but surely that is the responsibility of Senators Austin and Senator. Myunderstanding - and Senator Moore can speak to it also - is that the two senators want to know from this committee what difficulties we face - our composition, the timing, the clerking, the staffing. Those are some of the things they have to report on in a timely manner.

I hope we do that job and answer whether we need the membership we have. There has been a hint that they will reduce the numbers. Do we need all the members we have? Are we having problems with quorum, meeting times, et cetera?

Senator Pearson: That was not the message we got yesterday.

The Chairman: They asked us to go beyond the questions they had given us. That is what the discussion will be next Wednesday with Senators Austin and Stratton.

Senator Andreychuk: If that is the case, they are going beyond the suggestions of the Privileges, Standing Rules and Orders Committee. So on Wednesday at noon, in the that committee, we will have to raise just what the committees will be asked, because that was not quite the way they presented it to us.

The Chairman: They asked us to bring forward anything we wanted -

Senator Andreychuk: Of course.

The Chairman: - as well as the questions that every committee has received.

Senator Gustafson: I just wanted to raise a point of information coming out of the Agriculture and ForestryCommittee. Today, we dealt with rule 94. It is very confusing. We asked the Table Officers and the Senate lawyers to appear. They tell us that they do not want to make any comments and that they do not want to appear before the committee to explain it. There was quite a discussion about it and whether we, as a committee, should sign in, as it were, on rule 94.

The consensus in our committee was that because it is not compulsory we should just take a wait-and-see approach.

I understand that the Aboriginal Peoples Committee has already approved it, but it seems odd that one committee would approve it while another does not. It is not compulsory, as we read it.

Yesterday, I talked extensively to Heather Lank. She indicated that they are not giving any guidance, nor did they want to be put on the spot or questioned on it.

Senator Cools: Absolutely. They should not. This is the business of senators.

The Chairman: The consensus of that committee was not to sign something about which we do not know what we are doing. I wondered if there might be some guidance from this committee or from the Department of Justice, who may know something that we do not know.

Senator Fraser: I am a temporary member of the Aboriginal Peoples Committee and, as such, was there for that particular discussion. For those honourable senators who do not recall,rule 94 is the new rule about declaring potential conflicts of interest, declaring whether one has an interest not available to Canadians in general. was perfectly content to approve the rule. I think it is a wholly appropriate rule. If this committee is being asked to determine whether to abide by it, I would vote to abide by it.

Senator Andreychuk: Again, I came from the RulesCommittee, and perhaps memory fails me, but I understood the rule was put in place and therefore we must abide by it. The discretion comes in that no senator is not forced to sign a letter and file it with no disclosure. If an honourable senator thinks he or she may have a conflict, that senator is to file a letter. It is a personal thing. It is not a committee chairman's thing. It is the honour system, as Senator Moore said. It is not discretionary to any committee to determine whether it will abide by the rule.

The Chairman: This, to me, is an individual matter. For the information of senators, the steering committee has discussed this matter and has determined that this is an individual matter for senators, but it probably will have minimal application to this particular committee.

Senator Joyal: I do not want to expand on this issue but rather on the issue of creating new standing committees. The human rights committee would become a standing committee with the same status of this and other committees, as Senator Gustafson has mentioned. That committee will essentially be a study committee.

When we create a permanent committee, we have to fundamentally ask ourselves how that committee fits within the very specific constitutional role of the Senate. The constitutional role of the Senate is to revise legislation. We are the house of sober, second thought. That is our prime responsibility. Our second responsibility is to keep the executive in the other place accountable. If a committee is being struck merely to recommend or make observations to the chamber, then I would like to reflect upon that before saying that I agree.

Should the new human rights committee have no - I should not say constitutional capacity but no essential capacity to deal with legislation? We need to reflect on that. As Senator Fraser has said, this is a very important issue, one that we certainly have to discuss in our future.

The Chairman: You are quite right; it is a very important issue, but it probably falls more within the concerns of the Rules Committee than this committee. I do not think we should be sitting on -

Senator Joyal: We can certainly make observations, as we were invited to by Senators Austin and Stratton.

The Chairman: We will undoubtedly do that next Wednesday.

Senator Beaudoin: This has been my concern from the beginning. I am in favour of a human rights committee. We need it; there is no doubt in my mind. The question is the mandate. Everything is there and obviously we need that. However, we did not have a chance to discuss that on both sides, together. It is true that we are the Standing Senate Committee on Legal and Constitutional Affairs and that human rights is part ofconstitutional law, but this is another thing. What will be the mandate of that committee? I am quite ready to study that and to come to a conclusion, but we have to discuss it first.

Senator Andreychuk: There are two approaches. We can study it in advance of the terms of reference of the other committee. That is a good idea. Foreign Affairs is having a similar discussion, that is, how the defence and security committee will fit in with the area of foreign affairs and international trade. There, the idea is to wait and see - to respect the fact that potential members of that committee are well aware of the Foreign Affairs Committee and will be respectful of it and not tramp on its territory.

Senator Grafstein: The inherent conflict is based on both committees, prima facie - this committee and the Foreign Affairs Committee. Why? Because their mandate is broad. The mandates of this committee and the Foreign Affairs Committee include perforce, as a logical conclusion, international human rights. That is in respect to not only to agreements that are passed; the conflict or overlap comes in when there is an application for a treaty requiring domestic legislation. That legislation is a matter for Legal and Constitutional Affairs. That applies both to the provincial governments and the federal government undersections 91 and 92.

By carving out human rights, in effect, you gut the Foreign Affairs Committee and it becomes, in effect, a trade policy or economic committee. You also gut this committee because the heart of this committee is the constitutional aspect of law, as well as legislation. We dealt with it today even with this tiny bill. For me, it is a conundrum.

Senator Andreychuk: Madam Chair, this is not a new issue. This discussion has come up in the Foreign Affairs, Banking, and Legal committees whenever international legislation has come up. We have it with all committees. If there are broad mandates, they tend to overlap. In every piece of legislation, there are components that fit into any committee. We need some goodwill to ensure that all committees cover essentially their position, and then there must be a way to resolve any differences.

Senator Beaudoin: The problem is a question of timing. The discussion should take place before the mandate is drafted or conceptualized. Once we say, "This is your mandate," it is too late.

Senator Andreychuk: The terms of reference have to go back to the Senate.

The Chairman: There has to be a full discussion at some time in the Senate.

Senator Andreychuk: This committee can take note of the issues and ask that they be referred here or studied informally. There are many ways to gain input. It does not just happen. There will be an opportunity for debate and discussion.

Senator Grafstein: The short answer to my concerns - and I am sure this will be the answer - is that when a piece of specific legislation comes up, it is up to the leadership to decide by whom that piece of legislation is to be reviewed.

There is another interesting issue about building up some expertise and knowledge and continuity in a particular committee. It certainly goes to that. To my mind, the new mandate has a material impact on the essence of legal and constitutional affairs primarily because, to my mind, since 1982, that is the heart of many of the things we do. If you want to carve out the heart of the committee, so be it.

Senator Beaudoin: It affects Charter issues, too. But the international aspect of human rights may be in the other committee, where it probably should be.

Senator Joyal: That is what I think.

Senator Grafstein: In turn, that guts Foreign Affairs.

Senator Beaudoin: If there is a legal problem on the international scene, I think it should be dealt with in the human rights committee.

Senator Joyal: That is the whole objective of creating a "specialized" capacity within the Senate to deal with the very issue of human rights. If we start splitting it again, we are doing exactly what we are doing now. It is split between various committees and then we are not satisfied with the effectiveness in dealing with the issues. The idea for the committee stems from that conclusion.

If we have a committee that produces the same kind of scattering that we already have, what will it be? Well, we will have an interesting discussion between learned senators but no real building of capacity over a specific domain in which we feel the Senate has a vested interest and which is in its very nature to promote.

We are not having a definitive discussion on this.

The Chairman: This discussion has been very valuable to focus our minds on next Wednesday.

Senator Joyal, have you anything specific that you want? Your direction to our researcher was rather vague. What specifically would senators like to see as some background material for next Wednesday?

Senator Joyal: It should be material on the powers of committees and the constitutional role of committees in the context of exercising the very specific responsibilities of the Senate dealing with legislation. This is essential to understand what we are as an emanation of the chamber.

The Chairman: That is good, because there are papers on that.

Senator Joyal: I know there are.

The Chairman: So there will be not be a great deal of work to do. It is simply a matter of gathering the material and getting it out to us on Monday. We can then all have a chance to look at it before next Wednesday.

Senator Cools: I had not realized that there was any doubt about the powers of committees and the proper constitutional role of committees. It is a good thing for us to refresh and renew our knowledge.

A committee is a subset of the parent body, the Senate. It largely does what the Senate asks it to do. No one committee has any peculiar power or additional power. It is the business of every senator to attend that. There is a lot of mythology around.

A committee can receive any bill or any reference that the Senate chooses to send to it. I remember some years ago a situation where only one committee was functioning, because of how life had unfolded in a new session. Every bill was being sent to that committee. The Senate can send any bill to any committee, as it sees fit, but the exercise was very useful.

Am I understanding that the entire meeting next Wednesday will be given over to these questions?

The Chairman: The meeting will also include our draft report on our meeting with the Chief Electoral Officer.

Senator Cools: The major point I want to come to is this new rule in respect of senators' potential conflicts of interests.

It seems to me that new rule or this new situation is something that we should discuss very thoroughly before any conclusion is reached. It should be canvassed very carefully. It is well known that the real concern is that senators do not vote or exercise their voting capacity on bills in which they have a direct fiduciary or pecuniary interest. However, we should be careful that this new rule does not become an obstacle or a millstone around one's neck, such that the rule begins to bar perfectly qualified and knowledgeable senators from participating in the consideration of bills when, in point of fact, they have enormous expertise.

To use Senator Gustafson as an example, he is a seasoned and experienced farmer who knows a lot about agriculture. He can bring that wealth of knowledge to the table. I certainly would not want to see any senator blocked from participating because, for example, he or she owns a farm, even a large farm or a few farms. We should look at this matter with very practised eyes.

The Chairman: Senator Austin is set up to study the structure of committees - not the role, the structure. It is somewhat beyond us to be talking about rule 94. Also, I understand thatrule 94 does not apply to any public bills. The only bill before this committee in a long time to which rule 94 would apply isBill S-25, the one we just passed this morning for the Mennonite Church Canada.

Senator Cools: You are saying that the application ofrule 994 is remarkably narrow.

The Chairman: Yes. Thank you, honourable senators, for the very interesting discussion this morning.

The committee adjourned.