Proceedings of the Standing Senate Committee on
Privileges, Standing Rules and Orders
Issue 10 - Evidence
OTTAWA, Wednesday, October 17, 2001
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:15 p.m. to consider Bill S-34, an act respecting Royal Assent to bills passed by the Houses of Parliament.
Senator Jack Austin (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I call our meeting to order. We have, as our lead witness today, the Honourable Sharon Carstairs, Leader of the Government in the Senate and the sponsor of Bill S-34, the subject of amending the Royal Assent procedure. This is a subject we have had before this committee in many variations over a number of years, the latter variation being Bill S-13, which was introduced in the Senate by Senator Lynch-Staunton. We are pleased to see the government bring a bill to us.
With that, minister, I invite you to make your statement to the senators.
Hon. Sharon Carstairs (Leader of the Government): Thank you, honourable senators, for inviting me to appear before the committee on Bill S-34, the Royal Assent written procedure bill.
As I mentioned in the Senate on October 4, this bill has benefited from considerable study by honourable senators and members of the other House. In 1983, the Senate initiated a discussion of alternatives to the traditional ceremony. In 1985, the Standing Rules and Orders Committee issued its fourth report recommending a change in the Royal Assent procedure.
In 1985, in the other House, the McGrath committee report on that chamber's standing orders recommended a simplification of Royal Assent. In 1988, Senator Murray, then the Leader of the Government in the Senate, introduced a Royal Assent bill similar to Bill S-34.
In 1988, the Leader of the Opposition, Senator Lynch-Staunton, introduced a similar bill. That bill was reviewed by the Standing Senate Committee on Legal and Constitutional Affairs, of which I was a member at the time, which made a number of amendments including those that I had earlier proposed on the floor of the Senate chamber. The bill that has been reported to you was reintroduced earlier this year by Senator Lynch-Staunton and, with his most gracious agreement, it was withdrawn on October 2.
On October 2, I then introduced a bill that mirrors Senator Lynch-Staunton's bill, with a few minor technical and editing changes. I want honourable senators to understand that all these changes were discussed with Senator Lynch-Staunton and they were acceptable to him.
As I have indicated, without the efforts and the leadership of Senator Lynch-Staunton and others, such as Senator Murray and former senator Frith, Bill S-34 would not be before us in its present form.
[Translation]
Last October 4, I advised the Senate that the Governor General had given her consent to our consideration of this bill. It is a long-standing parliamentary practice to obtain Royal Assent for the consideration of any bill which might affect the royal prerogative or interest, whether the bill is in relation to the prerogative or not.
Like the British government, the Canadian government does not believe that Bill S-34 will have any repercussions on the royal prerogative or interest. However, we also agreed with the British decision to ask for Royal Assent for any bill that appears to affect royal prerogative.
The provisions of the bill are procedural in nature and will not change Royal Assent as such in any way. Thus, Royal Assent was given for the consideration of Bill S-34 by Parliament, and I know that that is an important element for honourable senators.
[English]
Honourable senators, I should like to briefly explain the provisions of the bill. The title of the bill has been shortened to simplify the text. There is no impact on the meaning of the title compared with that of Bill S-13. Clause 1 sets out the short title of the bill, the Royal Assent Act, and it is the same as Bill S-13.
Clause 2 stipulates that Royal Assent granted by the Governor General to a bill passed by the Senate and House could be signified either with a Royal Assent ceremony in the Senate chamber or by a written declaration, but Royal Assent would take place during a parliamentary session in which both houses passed the bill.
Pursuant to clause 2(b), the first appropriation bill presented for assent in any session would require the formal customary ceremony, given the important and symbolic nature of supply bills.
There are three small changes from Bill S-13. The first change is the removal of the words "by the Governor General in the Queen's name." This technical adjustment in wording maintains the status quo with respect to the authority and title to give Royal Assent. The replacement of the word "declared" with "signified" has been made because signified is a more precise parliamentary term and avoids the duplication of the words "written declaration." The clarification of "appropriation bill" as a bill appropriating sums for the Public Service of Canada based on Main or Supplementary Estimates has been done to avoid possible confusion with other bills that authorize spending.
In clause 3, there is a provision for a declaration of Royal Assent in the traditional way that would take place on at least one occasion in each calendar year. There is a small wording change from Bill S-13 for consistency with the changes in clause 2, with no change in substance. It goes from "a declaration of Royal Assent" in Bill S-13 to "Royal Assent shall be signified" in the bill that is before you.
Clause 4 provides that each House of Parliament shall be notified of a written declaration of Royal Assent by its respective Speaker or person acting as Speaker - in our case, the Speaker pro tempore. Bill S-34 has a small change from Bill S-13 for precision whereby "reported" is replaced by "notified."
Clause 5 stipulates that where Royal Assent is given by means of a written declaration the act is deemed to be assented on the day on which the two houses have been notified of the declaration. This is the same in substance as Bill S-13, with one minor wording change to avoid any misunderstanding with respect to the coming into force provisions of the Interpretation Act.
Also, the following words were removed from the English version at the end of paragraph 5: "or if notified on different days, the latter of those days." This was not necessary, as it is implicit from the rest of the clause and is similar to the bill in the United Kingdom.
Clause 6 provides that a written declaration of Royal Assent would not be a statutory instrument within the meaning of the Statutory Instruments Act. The definition of statutory instruments is intentionally broad. Anything that falls within it is subject to parliamentary review. Royal Assent in the form of a written declaration is not obviously intended to be subject to such a review. There is a small wording change from within Bill S-13 to "for the purposes of."
Clause 7 provides that no Royal Assent is invalid simply because clause 3 has not been complied with. This provision responds to concerns about the validity of any bills or Royal Assent declared during a year in which for some reason no ceremony was held. For example, if there was a prorogation prior to any Royal Assent ceremony happening and then Parliament was not recalled during that period of time, it would question the validity of the legislation. This is exactly the same as Bill S-13.
Honourable senators, you can see that Bill S-34 mirrors the Senate's work on Royal Assent, particularly that of Bill S-13, with minor editing changes that in my view do not affect in any way the substance of Bill S-13.
I would be pleased to answer any questions that you may have. I will be assisted in this regard by two officials, Ms Mary Dawson, associate deputy minister for constitutional affairs in the Department of Justice, and Mr. Lou Davis, senior counsel, constitutional and administrative law, from the Department of Justice, whom I understand has been following this bill through all of it is machinations for some decades now. Thank you very much.
Senator Joyal: When the bill refers in clause 2(a) to the tradition or the manner that is customary before the coming into force of this proposed legislation, could it mean that the only time that Royal Assent will happen to be performed in the Senate the Governor General could be replaced by a learned justice of the Supreme Court - in other words that we may not see the Governor General in the Senate?
Senator Carstairs: As you know, Senator Joyal, we have had various experiences with various Governors General. In some cases, the Governor General has made him or herself available on a fairly regular basis. That seems to be the practice with the present Governor General. In the past, however, we have had Governors General who have always deferred to their deputy, a member of the Supreme Court, to attend on their behalf.
Technically, you are correct. The manner customary would make it possible for the Governor General to not appear. It would certainly be my discussion and I would hope persuasive ability that, since there would probably only be one Royal Assent or slightly more in any given year, it would be appropriate not only for the Governor General to attend, but also for the Prime Minister to attend, in that the Governor General frequently likes to give Royal Assent in the presence of the Prime Minister.
Since we must have Royal Assent for the first bill, the first appropriations bill of any session, it will be easy enough to arrange that calendar well in advance. We know that the appropriations bill will be passed in the Senate on the final Thursday prior to March 31, all things being equal in a session. If it is not then, it will be the final Thursday before June 30, or the final Thursday before the end of September. Is that the next period of time? Or December.
We know when the appropriations bills are coming forward. Unlike now, having to guess about when we might want a Royal Assent procedure, in this case we should have some timed certainty.
Senator Joyal: In other words, there is really only one occasion where we can be satisfied that the Governor General would appear in person, that occasion being the first appropriation bill of the session. We know a session can last two or three years. Some sessions now last longer than at the beginning of our history.
I am raising the question, because if we are to limit the traditional or customary way to once a year, which is the impact of the ceremony, does that give the Governor General his or her full constitutional role? I raise that question.
Senator Carstairs: I will give two answers to that. First, we have a guarantee, and a guarantee with a time certainty that will help us to obtain the presence of the Governor General at least on that occasion. In addition, if we know that there is a bill that, for whatever reason, must go into force and effect particularly quickly we could use the written declaration. We could then hold over some other bills, not necessarily giving them a Royal Assent on the day that that occurred, and then establish some time certain for when it might be appropriate for the Governor General to appear.
One of the things that happens, and I am sure Senator Joyal is aware of this having been a minister of the Crown, is that we are never sure exactly, unless we have an order in the house, when a bill will pass. It might pass one week, it might pass the following week, and it might pass two weeks after that. Asking the Governor General to change his or her schedule on very short notice means that it is difficult for us to obtain the Governor General. That is why we frequently end up with her deputy, in the present case, or his deputy, as the case may have been in the past. If we have the ability to get Royal Assent via written procedure, we may be able to have ceremonies on a more regular basis.
More important will be how we use the ceremonies that we will now have. Currently, our pages run around at four o'clock in the afternoon setting up the microphones, and we send a request down to the House of Commons. As we know, the situation arose last year when the House of Commons had risen and we could not summons them. We had to find 15 senators to come back the next day because we were dealing with an appropriations bill.
If we have some time for planning, we can make the ceremony more important. We can ensure that there is greater attendance by senators. If we had Royal Assent ceremonies on a Tuesday or Wednesday, it is likely that we would have more senators in attendance in the chamber than we do late on a Thursday.
The Chairman: Minister, could you reflect on the concept of "customary" as in "in the form and manner customary before the coming into force of this Act"? What evidence would be incontrovertible about what our customary procedure is? Before you answer the question, I might suggest that perhaps at report stage of this bill you provide the house with a description of "customary" in order that we have on the record in the Debates of the Senate a statement that can be relied on by future generations.
Senator Carstairs: First, this wording comes from the Royal Assent Act of Great Britain of 1967 in which they used the words "customary before the passing of this act." We have tried to be consistent with the Westminster parliamentary tradition.
In addition, there are many things that take place on Parliament Hill that are customary. The Speech from the Throne has a customary tradition. The opening of a new Parliament has a customary tradition. The swearing in of a Governor General has a customary tradition. If we want to get into a legal argument, we can talk about convention and custom as opposed to actual legalities. The customary process that takes place is well known and well recognized within the Senate chamber. We know, for example, that the Leader of the Government in the Senate sits to the right of the Governor General or her representative. We know that the Black Rod bows three times as he or she leaves the chamber before going to the other place to pound on the door. We know that there is a ceremonial parade down the hall, a parade that includes our pages and our security guards, to the House of Commons.
There are already built in a series of customs. While those customs do not have force of law, they have so evolved in Parliament that I have no concerns that they might change except in a very positive way. By that I mean that, if members of the other place know that this is not happening on a regular basis, perhaps we will get more than six or seven of them at the bar in the Senate chamber. In another forum, we might discuss the possibility of televising Royal Assent procedures.
I have heard Senator Grafstein talk about televising the procedure in a way that might involve discussions before or after the ceremony about what kinds of bills are receiving Royal Assent and what led up to that. If we do not have to do this on as frequent a basis as we do it now, we could turn it into something even more special than it currently is.
[Translation]
Senator Gauthier: I agree with the bill, and I support it, but I would have a question for you. At this time, the ceremony is public and takes place in the House of Commons. In the Senate, proceedings are not televised, so people do not know how the ceremony unfolds. People wonder why these ceremonies are public up to the door of the Senate, and why, afterwards, they can no longer follow what happens.
The important part of the ceremony takes place in the Senate. Does the government intend to go forward with this idea of televising the ceremonies from beginning to end? Were that to happen, the members and the press might be interested in attending the ceremony in the Senate and Canadians would have a better understanding of what goes on. Would you have any comments on that?
[English]
Senator Carstairs: That is an excellent suggestion, and one that I would support. However, I remind the honourable senator that television in the chamber is the decision of the Senate. We have certain occasions when the Senate is televised, but on those occasions, such as the swearing in of the Governor General and the Speech from the Throne, we are not in total control of the ceremonies. They are government ceremonies and are prescribed by others.
This ceremony, however, would take place in our chamber as it always has, and we would be free to decide whether to televise a particular ceremony. We have made that decision with respect to Committee of the Whole in the past. It is well within our authority. It would simply require a motion in the Senate to provide for television coverage. Because we know when it will happen, we can do it by way of time certainty. I assure the honourable senator that I would support, and even move, such a motion if I felt that that was the wish of colleagues on both sides of the chamber.
Senator Gauthier: I thank you for that. I will remind you of that.
Senator Carstairs: You will not have to.
Senator Grafstein: As you know, senator, I have not been in favour of streamlining this because of a very serious problem that I think inflicts the Senate, and that is its invisibility, its lack of credibility, its lack of public legitimacy and its lack of self-esteem. Whatever symbolic steps one can take to correct this deficit, this imbalance, are, to my mind, important. I think that we suffer from this deficit among ourselves in terms of our responsibilities as senators, but we are collaborators with the executive and with the Commons who wish that the Senate would disappear. We know that voices on the other side have called for the abolition of the Senate and that others have called for reform of the Senate.
I see this as a means of taking a ceremony that has fallen into a decrepit state because of its timing and turning it into a positive, not only for the Senate but for the public and those who do not understand the role of the Senate.
I will read your point four from your speech at second reading on October 4. You said, in part:
Fourth, written declaration will reduce the burden that the ceremony places on the Governor General and the Supreme Court justices who act as her deputy.
If you believe that the Royal Assent ceremony is a burden to the Governor General to fulfil one of her three constitutional responsibilities, then I am whistling in the wind. The Governor General has only three constitutional responsibilities, and one of them is Royal Assent.
The history and the nature of Royal Assent in Australia is different because they do not have a problem of credibility in respect of their second institution, for many reasons. In England, they do not have a problem of credibility in respect of the House of Lords, for many different reasons. However, we have a severe problem of credibility in respect of the Senate and the invisibility of the Senate.
I agree with your point that echoed my point about the inconvenient timing for the Governor General, for her representatives and for the Senate. However, rather than have the ceremony on a Thursday afternoon when people are preparing to return to their home ridings, there is no reason why it could not be held, say, on a Wednesday at one o'clock for 15 minutes immediately following the national caucus, when all the leaders and all the caucus members are here. It is an easy walk down the street before they go to lunch. In that way, the Governor General could more often than not attend.
That would do what is implicit to the nature of Royal Assent. It is not only meant to be a constitutional affirmation of the two Houses of Parliament - putting their work into law - but it is also meant to show the public that there are parliamentarians at work.
We have just been working on a Bill C-6 in respect of the Youth Offenders Act. One of the points that some of us are wrestling with is a strong statement in the Criminal Code that states that ignorance of the law is no defence. There is a presumption that every citizen in Canada know not just the Criminal Code but all the punitive actions of the law.
People do not even know how the law is made. My own family does not know how the law is made. Any element or symbol that we can take to demonstrate to the public, via television, that this is the rule of law, this is how it is made and this is the content of that particular rule of law, to my mind, is an important vacuum to be filled to reduce public ignorance.
This ceremony is a tremendous way to show the public our "commander in-chief" coming across Parliament Hill to the Senate building, three or four times each year, for 15 minutes. I do not think that is a burden. It is an opportunity to present herself, as she does so gracefully and magnificently, to the chamber. This would attract the appropriate public attention.
You could use that example, as Senator Gauthier said, to educate the public on television about the bills that we pass. One would hope that it might even draw attention to some of the senators about the content of the bills that we have voted for.
It is not a question of inconvenience; rather, it is a question of how to take an important historical and constitutional practice and modernize it to create a positive image as opposed to a negative image.
I have a bill that I have not yet presented. Perhaps, after we are finished, I shall table it so that we can look at a different model before we make a decision. It certainly is not perfect, but it is a point for discussion.
I compliment Senators Lynch-Staunton, Murray and Frith for having this argument over and over again. However, I still sense the reason we have been reluctant to change the process - because no one is comfortable with marginalizing the Senate even further. The bill before us to change Royal Assent is a further way to marginalize the Senate, when we are fighting a huge credibility battle.
I shall present my bill at a later time. Other senators have heard my views; I shall present my model and let the will of the Rules Committee determine which model they choose to report.
Senator Carstairs: Clearly, I do not agree with Senator Grafstein, because that is not the way to increase our credibility as an institution. Increased television coverage of our committees and of our activities in the Senate would be a good concept. More travel by the committees across Canada will enhance our credibility. These are far more indicative to improve our credibility - reaching closer to Canadians and increasing their knowledge of our activities - than through Royal Assent ceremonies.
I have been in the chamber less time than Senator Grafstein, but I have been here for seven years. I have never seen the Senate chamber even close to being filled for a Royal Assent ceremony, even when I knew members of the chamber were still in the buildings. They still did not attend Royal Assent ceremonies.
Perhaps it is our own view of the Royal Assent ceremony. Having been deputy leader and leader, I have been engaged in trying to find 15 Liberal senators, on our side, on a number of occasions who will be present in the house, to absolutely guarantee that we have a quorum so that we can proceed with Royal Assent. There is not that much fussing around to find quorums for committees.
If I had to place my emphasis, in order to enhance our credibility, it would not be on the Royal Assent ceremony but on the "jewels" of the Senate - committee work.
The Chairman: If there are no other questions, we can proceed to one or two stages of handling this bill. First, I would like to ask senators for agreement that the material contained in the briefing book that is before us be appended to today's transcript, so that the extensive discussion and dialogue on Royal Assent, which is contained in it, is available to those who are seeking to review and understand this particular issue. Is that agreed?
Hon. Senators: Agreed.
(For text of document, see Appendix following the Evidence.)
The Chairman: I wish to advise honourable senators that Mr. John Aimers, Chairman of the Monarchist League of Canada, would like to appear before the committee to give evidence. He will be available in the week following next. If there is no objection, we will invite Mr. Aimers to attend. The Monarchist League has given evidence in the past.
Senator Kenny: Is he speaking for or against?
The Chairman: You will have to wait for his appearance.
Senator Grafstein: Mr. Audcent helped me draft my bill, which is really an amendment to Senator Lynch-Staunton's bill. Rather than regurgitate that, it sets out the principles that I would like to adopt. Following Mr. Aimers, perhaps I could table my bill, for consideration as part of the evidence to this bill.
The Chairman: The only way we can proceed under our rules is to have you move an amendment to the bill that is in front of us. We will then consider whether, as a committee, we wish to receive your motion.
Senator Grafstein: That is fair enough.
Senator Kinsella: I have a question of Ms Dawson. After Royal Assent occurs, who is responsible for the appearance of that in the Canada Gazette?
Ms Mary E. Dawson, Associate Deputy Minister, Department of Constitutional Affairs, Justice Canada: I do not know.
Dr. Gary O'Brien, Deputy Clerk and Principal Clerk, Legislative Services, The Senate of Canada: As deputy clerk, on behalf of the clerk, I forward to the Gazette information regarding a Royal Assent ceremony that took place. I provide details such as the date, the time of the ceremony, who presided and for what bills.
Senator Kinsella: Is that the act of proclamation?
The Chairman: No. That is by Governor in Council.
Ms Dawson: Proclamation and Royal Assent are two different concepts completely. Therefore, it is not proclamation.
The Chairman: I am sure Senator Kinsella knows that, so I am wondering what he wants to learn.
Senator Kinsella: Does the publication in the Gazette have any impact? If there were a defect, would it impede on the validity of the law?
Senator Carstairs: I think the answer to that is no. The Royal Assent is performed in the chamber. That, in fact, is the assent. It is not the publication that is the assent; it is the activity in the chamber.
The Chairman: That gives rise to a comment. We did have the minister before us in previous discussions on Bill S-7 and then Bill S-13 regarding the question of public notice that Royal Assent has been given. Normally, in the case of this bill, if it is adopted, we would have public notice through the notice given by the Speaker in the two Houses of Parliament. That would then be recorded in the Journals of the two Houses.
Sometimes there is a desire, particularly on the part of government when it is happy with a piece of legislation, to give some publicity to it. Nothing in your bill deals with that, nor need it. However, if you look, for example, at the process in the United States with the president signing a bill, forming each letter of his name with a pen, with all sorts of stakeholders surrounding, and photographs and so on, I suppose that is something that might develop in this country as well under certain circumstances.
Senator Carstairs: It is fair to say that not every bill is signed with that kind of fanfare. It depends on what publicity the president of the United States wants with a particular signing of a piece of legislation. If there were that kind of public ceremony for every single piece of legislation passed in the United States Congress, the president would not have much time to do anything else.
He picks and chooses when he to take out his pen.
Senator Kinsella: Under this bill, Royal Assent will be by written declaration. Will section 9 of the Publication of Statutes Act apply? That section read as follows:
The Clerk of the Parliaments shall furnish the Queen's Printer with a certified copy of every Act of Parliament as soon as it has received royal assent.
Will this then apply to this new form of Royal Assent?
Senator Carstairs: Absolutely. It is still Royal Assent. That has not changed.
The Chairman: Thank you very much, minister.
The committee adjourned.