Proceedings of the Standing Senate Committee on
Rules, Procedures and the Rights of Parliament
(Formerly Privileges, Standing Rules and Orders)
Issue 13 - Evidence
OTTAWA, Wednesday, February 6, 2002
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill S-34, respecting royal assent to bills passed by the Houses of Parliament, met this day at 12:16 p.m. to give clause-by-clause consideration to the bill and to be briefed on reform of the House of Lords.
Senator Jack Austin (Chairman) in the Chair.
[English]
The Chairman: Before we begin with the item before us, Bill S-34, the Royal Assent bill, I should like to bring honourable senators up to date on a few other matters.
Yesterday, the Senate passed our eighth report, which is with respect to third parties. The recommendations in that report have received approval in principle. The matter will come back to this committee, to deal with the actual rules that must be drafted based on the approved recommendations. If, as and when Mr. Audcent is in a position to bring the proposed rules to us, we will come back to that topic, possibly in six to eight weeks from now.
Bill S-8, of which Senator Joyal is the sponsor, remains on our agenda; it is virtually the oldest item we have on our agenda. The committee should move forward on this matter.
Senator Joyal, could we ask you to be prepared in six or eight weeks?
We can consider parchment errors along with the review of the submission of Senator Hays, which is the reordination of the rules. I believe the committee was prepared to propose to the Senate not only reordination but also some technical amendments that would improve the rules, such as including something with respect to parchment errors and one or two other things that we will discuss at another time.
The question of tributes in the upper chamber has been referred to us. I find it somewhat difficult to get a research handle on that question. We have practice, but it has not been the subject of much academic study. We will bring a small briefing memo on what people have said about tributes. We will do a statistical analysis of the time that tributes take in the Senate and bring that to you some time in the spring when Mr. Robertson has finished the document.
Senator Gauthier, did you want to speak on the general business of the committee?
Senator Gauthier: You said that there are two or three things left. The official languages committee, which I proposed to this committee a year ago, seems to be constantly displaced by something else. Could we deal with that, please? I would like to have an answer, yes or no, that is all.
The Chairman: As you know, our recommendation is included in the draft report on committees. I hope to come to that item next week, if we sit, and if not next week, the next week in which we sit.
Senator Gauthier: We are not sitting next week.
The Chairman: We will come to that in the following week, then. If you wish to split that out of the committee report, and this committee wishes to do that, then we will deal with it as a separate item. In two weeks, we will address that question, with the approval of other members of the committee.
Senator Gauthier: I would like to have some action on it; otherwise, I shall have to draw the conclusion that there is resistance to even talking about it in this committee.
The Chairman: There is no resistance to talking about it, as there has been much talk about it. Two weeks from now we will come back to it.
That is the business of the committee. I have not seen a formal motion that we will adjourn next week; hence, if we sit next week we will come to the report on committees. The third draft of the report is in translation. I hope to have it circulated to you as soon as the clerk puts it in my hands.
The next item of business for today is Bill S-34. It is symbolically interesting, honourable senators, that today is the 50th anniversary of the accession of the Queen to the throne, and we are dealing with Royal Assent.
Senator Kroft: How did you manage with this complicated agenda over months and months to have this happen today?
The Chairman: I hope we can report this bill today or quite soon. Let me summarize for honourable senators our progress. We must consider our observations. You have the draft ninth report before you. We want to move to Bill S- 34 and consider whether we wish to amend the bill in any fashion.
Given that it has been 19 years since this matter began its process, it is hoped that this committee can succeed where others have not by approving the bill and sending it to the house.
I have had discussions with the government leader here and the new government leader in the House of Commons. I must say that their first preference is to leave the bill unamended, which will not surprise anyone here.
Senator Carstairs has made a suggestion with respect to the preamble, which I shall circulate to you. It summarizes our position more concisely. We have a desire from the government side to remove the reference for customary Royal Assent, one in December and one in June, but to retain the commitment to two such Royal Assents in every calendar year along with the Royal Assent for the first supply bill. Their position is that they would like more flexibility to use the customary Royal Assent for significant legislative measures.
The final item and suggestion is that the provision that —
Senator Gauthier: On a point of order, Mr. Chairman, I have not seen this. I do not know if members have seen this document. It is dated February 6th, which is today. I have not read this draft. They refer to comments of Senator Carstairs. I have not seen that either. I have a difficulty in hearing, but I can read that.
The Chairman: It was circulated yesterday. What I propose to do, Senator Gauthier, is to go through every line of the bill.
Senator Gauthier: You distributed this yesterday?
The Chairman: Yesterday.
Senator Gauthier: On February 6th for today. I never got it. It is dated February 6th.
The Chairman: Did anyone else fail to get this copy yesterday?
Senator Di Nino: I received it.
Senator Losier-Cool: I did not receive it.
Senator Cools: I received a copy a few minutes ago, when I walked in.
The Chairman: You are acting as a substitute.
Let us do our best. We have been dealing with this for months; there is nothing new in any of this. The same material, Senator Gauthier, has been before the committee. These are the same documents we had in November and December.
Senator Gauthier: I understand that.
The Chairman: Let me finish on the suggestion that we have at least two witnesses and executive Royal Assent from each chamber. A slightly different language has been suggested, which would be: Where Royal Assent is signified by written declaration, this may be witnessed by more than one member from each House of Parliament.
The concern there is that they may require Royal Assent on an urgent matter, and finding two members of each House may be difficult to do. They want a slightly more flexible language there.
Those three items are acceptable to the committee. We will have done something that has not been done before. What I would suggest is that we go through the observations so that we are comfortable with what the committee wants to say. We will then go into the bill and review the amendments. We have been through all of this many times before. There is nothing new here. This committee was prepared to deal with the legislation before we rose in December; however, we were asked by the government to allow them more time to consider their views.
Let me take honourable senators to the appendix, which has been prepared by Mr. Robertson. We have seen this same text somewhat enlarged upon, but it is the same text as in Bill S-7, Bill S-13 and in our briefing memos on Royal Assent that we have had for several years.
Paragraph one is a statement of facts. Paragraph 2 is a statement of the witnesses. Paragraph 3 records that we have had many discussions, and compares Bill S-34 to bills that Senator Lynch-Staunton has proposed.
Then we discussed having the discussion recorded in the observations, so that it would be available to the public in order that they can understand Royal Assent and where it fits in the legislative process.
We have paragraphs describing the Queen and Parliament. It says as follows: ``...the representative of the Crown personifies the nation; the Senate embodies the federal principal; and the Commons represents the people through their representatives.''
Then, in Canada we describe —
Senator Cools: That is not accurate.
The Chairman: It is not?
Senator Cools: The Senate embodies the federal principle, but it also embodies other principles. We could come back to that.
Senator Murray: Including the monarchical —
Senator Cools: The Senate is the Queen's House. The Senate is the Royal Chamber. Yes, in Canada, the federation chose to use the upper chamber — the Royal Chamber — to embody the federal principle. In this context of describing the origin of Royal Assent, the Senate is definitely the upper chamber and the monarchical chamber. As a matter of fact, the Senate is a chamber of Parliament.
The Chairman: Thank you. Essentially, we are quoting the witnesses.
Senator Cools: The witness is wrong.
The Chairman: The statement is in the Canadian context, a Professor Smith explained. He is considered, certainly by many, as the leading expert on the Queen and Parliament. We are quoting him, and then we say: ``One may dispute the description of the parts, but not the parts themselves, nor their inclusion in a manner visible to all.''
Then we describe how Royal Assent is performed in Canada. That is in the next paragraph, which includes parliamentary traditions as varied in the U.K., Australia and New Zealand, all of which we have discussed at length here in the past and been briefed on.
Then we move to some history, beginning with Senator Frith in 1983, and the question of a simpler procedure. We referred to the McGrath committee, the Molgat committee and their recommendations.
Following that, we have Senator Murray, in July, 1988, and his government bill, Bill S-18.
Senator Murray: Biggest mistake I ever made.
The Chairman: It was a government bill. I do not want you to say that about 18 senators from British Columbia.
Senator Murray: Twenty-four.
The Chairman: He has got me excited — there were 24 —
The narrative then mentions Senator Murray's bill that proposed a system similar to the one used in Australia for many years. Although this bill died on the Order Paper, the issue was revived by Senator Lynch-Staunton in 1998 when he tabled Bill S-15.
Now we come to the current bill in our narrative. I believe this accurately reflects the discussion in committee. The members of committee believe that it is essential that measures be taken to enhance the public visibility and the constitutional and symbolic significance of Royal Assent.
Senator Cools: Chairman, perhaps in our discussion of this document we could find a way to differentiate between those elements of the report that are just narrative, which seems to be the first part, and the other elements of the report, which are more like recommendations. How we will process this?
The Chairman: Just bear with me to the end, after which we will have a discussion.
Senator Grafstein: On the legislative history, without being modest, I notice that Senator Lynch-Staunton is mentioned several times, Senator Frith is mentioned several times and Senator Murray is mentioned. My modest contributions to the work of the Senate in terms of preparing alternate draft bills, which were incorporated in part by your recommendations, have not been mentioned.
Senator Murray: You can take my name out and put Senator's Grafstein's name in.
Senator Lynch-Staunton: And mine, too; there is plenty of room.
Senator Grafstein: I think I have been the one who has moved major amendments. Had I not moved my amendments, Senator Lynch-Staunton's bill would probably have been carried.
Senator Lynch-Staunton: Biggest mistake I ever made.
Senator Grafstein: I do not think you are being fair to the modest opposition. That is just factual, Mr. Chairman.
The Chairman: Let me reply that I do not in any way reflect except with high commendation to your contribution in this committee, where it is taken that all members of this committee have made a significant contribution.
Senator Cools: And the chairman. We would also have to —
The Chairman: This is in jest. Let us move along to the work.
Senator Grafstein: Your comment is in jest but mine is not. I do not want to be totally invisible in the Senate.
The Chairman: I do not want you to have too much fun in this committee.
In my comments in this report, I undertake to refer to the signal work of members of this committee.
Senator Cools: What about members of the Senate who worked on the bills?
The Chairman: To them, as well, historically.
Senator Cools: Just think, when I raised the issue of Royal Consent, nobody knew what it was.
The Chairman: It was a very interesting education for members.
Paragraph 1 reads as follows:
Your Committee believes that it is essential that measures be taken to enhance the public visibility and the constitutional and symbolic significance of Royal Assent.
Paragraph 2 reads as follows:
Your Committee is of the opinion that the presence of both the Governor General and the Prime Minister for Royal Assent on those occasions where a customary ceremony is held in the Senate chamber are elements in demonstrating to the Canadian public the essence of Parliament in its law-making functions and the public expression of the Constitution of Canada wherein the participation of the Crown and the two houses of Parliament are conditions precedent to the making of laws of Canada.
Paragraph 3 reads as follows:
Your Committee believes that Members of the Senate should recognize the importance of their presence in enhancing the Crown in Parliament, as well as their role as representatives of Canadians —
The next two words appear to be reversed. They should read ``in the'' and not ``the in.''
... in the legislative process. With respect to customary Royal Assent ceremonies and ceremonies for the written declaration of Royal Assent, the whips of the parties in the Senate should be encouraged to invite the following persons to attend: the sponsor of the bill and the opposition critic, the chair and the deputy chair of the committee to which the bill was referred, the movers of any amendments proposed to the bill, any other Senators directly involved in the passage of the legislation, and the Minister or Ministers responsible for the bill. The Senate should encourage the House of Commons to extend a similar invitation to those of its members involved in the passage of the bill.
This is an expression of our view of what should take place in respect of the written declaration. However, the bill itself will not necessarily, depending on what we do, encumber the whips or the government to follow this recommendation.
Paragraph 4 reads as follows:
In those rare circumstances where the Governor General is unavoidably unable to attend Royal Assent personally, in the view of the Senate, and in light of the separation of powers between the Legislative and the Judicial Order, it would be desirable if Judges of the Supreme Court of Canada were not to be asked to act as Deputies to the Governor General for the granting of Royal Assent, but that the Governor General consider the appointment of companions of the Order of Canada to serve as Deputies for such purposes, provided that no member of the Senate or House of Commons, or of the executive, should be so authorized.
Senator Cools: That is the major obstacle.
The Chairman: Do you want judges?
Senator Cools: The fact is that in Canada there is no separation between the judges and the executive.
The important fact is, that constitutionally, the Chief Justice of the Supreme Court of Canada, in the event of the demise or the absence of the Governor General of Canada, becomes the administrator. In this chamber — in this Parliament — there have been many instances recorded of just such occurrences. I remember very vividly when former Chief Justice Bora Laskin came here and delivered the Throne Speech.
Those statements are not only improper and unconstitutional, but they are totally out of place.
The Chairman: Senator Cools, we are only talking about the granting of Royal Assent. Please look at the third line on top of page 6. This is an observation.
Senator Cools: I know, but I am trying to —
The Chairman: You are right about the role of the Chief Justice as administrator.
Senator Cools: That is right.
The Chairman: Paragraph 5 reads as follows:
To further enhance the Royal Assent ceremony, your Committee believes that the customary ceremony of Royal Assent in the Senate Chamber should be televised and made available to be broadcast on television and on the Internet.
Paragraph 6 reads as follows:
Your Committee believes that the customary Royal Assent ceremony should be held at a time which is more convenient for most Parliamentarians, and when attendance would be greater. Insofar as possible, provision should be made to give as much advance notice as possible of customary Royal Assent ceremonies to ensure that no other parliamentary activities are scheduled at the same time.
Paragraph 7 reads as follows:
In connection with the written declaration of Royal Assent, your Committee considers it desirable, depending on the nature of the legislation and the impact on regions of Canada, that consideration be given to the holding of such ceremonies outside Ottawa.
That, for example, regards the change of the name of Newfoundland to Newfoundland and Labrador. Royal Assent in Newfoundland and Labrador might have given a little bit of flourish to that.
Paragraph 8 reads as follows:
In order to enhance the educational value of customary Royal Assent ceremonies, efforts should be made, in collaboration with groups or organizations for young people and schools, to invite students and others to attend Royal Assent ceremonies.
Paragraph 9 reads as follows:
Since the granting of Royal Assent is designed, in part, to give the public notice of a new law passed by Parliament, initiatives are essential to enhance public awareness of significance — That should read ``of the significance.''— and substance of the bills being assented to by developing public education and communications strategies in order to educate the public. The Senate should ensure that the broadcast production of Royal Assent ceremonies include appropriate educational and informational segments about the bills being assented to.
I am now open for comments with respect to the nine observations. We have had some comments.
Senator Grafstein: In paragraph 2, I think the word ``essence'' is a misnomer. I do not think it is the essence of Parliament; I think it is the purpose of Parliament. In other words, I think ``essence'' is a literary word, but not a legal or pejorative word. We should be more precise.
The sentence reads, in part: ``...where a customary ceremony is held in the Senate Chamber are elements in demonstrating...'' It is more than a demonstration to the Canadian public. It is not a demonstration. It is like having open trial. You must have an open trial. It is not a demonstration; it is the public aspect of this.
The Chairman: The first sentence in paragraph 2 reads, in part: ``...the presence of both the Governor General and the Prime Minister...are elements in demonstrating to the Canadian public the essence...'' — you may be right about the word ``essence.'' Should it read instead the ``significance'' or the ``paramount importance of Parliament''?
Senator Joyal: The operation of Parliament.
Senator Grafstein: I do not mind if it is the paramount purpose. The paramount purpose is law-making. There are more purposes to Parliament than law-making, but it is a paramount purpose.
This is not put in legal language.
The Chairman: No, it is not, deliberately so.
Senator Grafstein: It is not demonstrating. Without the public ceremony, you lose the contours of the event.
The Chairman: Mr. Robertson has a suggestion to make.
Mr. James Robertson, Senior Analyst, Law and Government Division, Research Branch, Library of Parliament: Could we say, ``are elements in emphasizing''?
Senator Grafstein: No.
Mr. Robertson: Or ``illustrating to the Canadian public''?
The Chairman: It is the word ``essence'' with which he is concerned, not the word ``demonstrating.'' What about the word ``significance''?
Is ``the essence of Parliament'' comfortable in French?
Senator Poulin: It is not a word that we use often. ``Essence'' in French means gas.
The Chairman: The functional word is ``role,'' as Mr. Audcent says. Could we let you think about that and come back to it?
Senator Cools: Paragraph 2 reads, in part, as follows: ``Your Committee is of the opinion that the presence of both the Governor General and the Prime Minister...'' is important. The practice for centuries has been that, whenever Parliament is involved, the Governor General is not supposed to be present unless the Prime Minister is present. It is for this reason that many years ago the Royal Assent ceremony started to suffer. Prime Ministers were too busy to attend.
I am wondering why we feel it is necessary to say that the Prime Minister should be present when the Governor General is present?
The Chairman: We are talking about both. We are simply saying —
Senator Cools: That is how it is. The king must be accompanied by his first minister.
The Chairman: We have been through this for weeks and months, honourable senator. The conclusion of the committee, up to now at least, has been that we want to say the following to both of them: ``Please come, to these two or three Royal Assents per year, a limited number, to make the point that Royal Assent is an important part of educating the public about the role of Parliament.'' That is all we are trying to say.
Senator Cools: I have no problem with that. However, that does not need to be said in a report.
Senator Poulin: The committee wanted it said.
The Chairman: We had a unanimous view, until you arrived, that that needed to be said in the report.
Senator Gauthier: Could I put in my two words?
Senator Cools: I was not finished, but go ahead.
The Chairman: Please continue.
Senator Gauthier: The Governor General would not come because the Prime Minister would not come.
Senator Cools: That is what I just said.
Senator Gauthier: It is a chicken-and-egg kind of thing.
Senator Cools: That is what I said, that the principle is that whenever the Governor General is present the Prime Minister must be present. That has been deviated from. All we are doing here is saying that it is an established principle. I am wondering if it should be articulated in that way.
Senator Poulin: It has not been the practice.
The Chairman: We have noted Senator Cools' comment.
Are there any further comments regarding the text, honourable senators?
Senator Cools: I am still on the same one.
The Chairman: Are you making a different point or the same one?
Senator Cools: A different point.
The Chairman: Go ahead.
Senator Cools: I am noticing that we are misusing the term ``Crown.'' In this instance, it is the sovereign himself or herself or the direct representative. We keep saying ``Crown'' when it is not the Crown. The Crown means the king in action with counsel, or the Crown is the king in action cooperatively.
However, in respect of Royal Assent, in Canada is it distinctly the Governor General; in England it is the Queen. There is a very distinct difference. The Constitution says ``shall be composed of the Queen.'' There is a very distinct meaning.
The Chairman: I shall ask Mr. Audcent whether he wishes to comment on your point.
Mr. Mark Audcent, Law Clerk and Parliamentary Counsel, Senate of Canada: Mr. Chairman, I would have to pursue the question further, but if I take Senator Cools' description that the Crown means the Queen in action with her advisers, I would have thought that that is what Parliament is, that is, the sovereign in action, acting on the advice and consent of the Senate and the House of Commons.
As you know, bills begin with ``Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts...'' That is Her Majesty in action with her advisers in the legislative sphere. In the executive sphere, she is advised by the Privy Council, as we know.
Senator Cools: You just proved my point. The enacting clause on every bill is Her Majesty, the Queen, acting with. When Royal Assent is given, it is an act of the royal persona. The Royal Assent is not given with anyone else. The Queen or the King acting solely in the undivided sovereign capacity gives that assent. It is not the Crown giving the ascent, it is the King or the Queen.
The Chairman: Does anyone else have a contribution to make on this topic?
We will make an inquiry of the law officers of the Crown — or is it the law officers of the sovereign? I am not sure.
Senator Grafstein: To the general public, the word ``executive'' in this context would be misconstrued.
Instead of saying ``executive,'' we should say ``cabinet.''
The Chairman: That is on page 6.
Senator Grafstein: Yes.
The Chairman: The second last line of the first paragraph, ``executive.'' Does anyone have a comment on that? No problem? Cabinet.
Senator Losier-Cool: My comment dealt with page 5, number 3.
[Translation]
Maybe Mark could explain for me the meaning of the word conforter. On page 5, number 3, we read:
Your committee believes that members of the Senate recognize the importance of their presence in enhancing —
In French it says ``conforter —
[English]
The Chairman: I shall ask Senator Gauthier or some senator with far more competence in French than I have to address this.
Senator Poulin: It is a word that I do not know either. I know ``réconforter.''
Senator Losier-Cool: It is a comfort.
[Translation]
Senator Poulin: The translator just tells me that the actual word in French for ``enhance'' is conforter. The translator is a professional.
[English]
The Chairman: We will accept that.
Are there any other comments about the observations?
We return to you, Senator Grafstein, on the ``essence of Parliament.'' Do you have a specific proposal?
Senator Grafstein: ``Primary purpose'' might be better.
The Chairman: Would you accept ``paramount purpose''?
Senator Grafstein: Sure.
The Chairman: In French, ``raison d'être,'' the essential reason; is that right? We would use ``raison d'être'' in French?
Senator Murray: And in English.
The Chairman: In English? It is not in use in British Columbia.
Senator Di Nino: It should be.
Senator Andreychuk: That is too bad.
The Chairman: We use old-fashioned English on that side. In French, it is ``raison d'être.''
Honourable senators, on the observations, may I say that before reporting we will check with the law officers of the Crown the position of Senator Cools on the question of the use of ``sovereign'' versus ``Crown.''
Senator Cools: In this instance, you can say the Governor General. I just want to clarify that. I was speaking to Senator Poulin about it. This is where the expression ``Governor in Council'' comes from. You would say the Queen in Parliament or the Governor in Parliament. It is the Queen in Council, the Queen in Parliament, but you do not say the Crown in Parliament. You do not say the Crown —
The Chairman: Is ``Queen'' acceptable to you?
Senator Cools: ``Queen'' is, yes, but we should particularize it to Canada. We can say ``Governor General.''
The Chairman: Let us say ``Queen.''
Senator Cools: You can say ``Queen'' because the Constitution uses the word ``Queen'' and so do the enacting clauses of most bills.
The Chairman: That solves the issue. The Interpretation Act allows the Queen to be interpreted as ``King,'' if we have a king. It is fine.
Senator Grafstein: In paragraph 9, on the fifth line — again, I am trying to stick to the less descriptive and more accurate nouns. It says there the following: ``...Parliament, initiatives are essential to enhance public awareness...'' It is not public awareness; it is public knowledge.
The Chairman: Is that acceptable, honourable senators?
Hon. Senators: Agreed.
Senator Grafstein: The last sentence of paragraph 9 says: ``The Senate should ensure that the broadcast production of Royal Assent ceremonies include appropriate educational and informational segments...'' I understand the niceties of not taking it upon ourselves to co-opt the House of Commons in this process. However, quite frankly, it should really be a joint venture, if you will. If the House of Commons refuses to cooperate, we will do it on our own; however, the broadcast production should be a joint venture. The Senate should somehow enlist the House of Commons to do this. This is not a venture of the Senate alone. It is a question for both Houses of Parliament.
The Chairman: I will have Mr. Robertson comment on that. This is actually something you wanted in the observations.
Senator Grafstein: I understand that. I do not wish to relieve us of the obligation. If you say we are not to do it and the House of Commons does not do it, that means we are stultified from doing it.
The Chairman: We are not here reflecting on the House of Commons. That would be inappropriate. We are just saying that the Senate should ensure. If the House of Commons is with us, that is great. If not, fine. I think the words cover your meaning.
May we move to the bill?
Senator Gauthier: To end on a positive note, we have been told here by the Leader of the Government in the Senate many times that the Senate can do whatever it wants in the Senate. We do not need to consult the House of Commons. As a matter of fact, the Governor General cannot go into the House of Commons. She can come to our place, though, and she is welcome.
The Chairman: Let us move to the bill. We have approved the observations.
Senator Cools: We have not yet. I thought we were moving on.
The Chairman: I want approval of the observations. Do you have another comment?
Senator Cools: I have a minor comment, mostly with respect to syntax. At the top of page 2, it says the following: ``The coming together of the three branches in a formal ceremony...'' Around Parliament, the term is not ``branches''; it is the three estates of Parliament.
The Chairman: You are at the top of page 2.
Senator Cools: It says, ``The coming together of the three branches...'' The Queen is not a branch of Parliament; she is an estate. Instead of ``branches,'' ``estates'' is the word.
The Chairman: Is the word ``estates'' a conventional use? I have never seen ``three estates'' used.
Senator Cools: ``Branches'' has come to mean the three branches of government, being the legislature, the executive and the judiciary. This is the context within which branches has become prominent in the last many years.
Senator Poulin: Mr. Chair, in the French we have ''La reunion des trois entités...'' Could we say ``three entities''?
The Chairman: If no one objects.
Senator Cools: You could say ``entities,'' if you prefer.
The Chairman: Is that all right with everyone? Can we substitute ``entities'' for ``branches''?
Hon. Senators: Agreed.
Senator Cools: Page 6, coming back to the entire question of the judicial, paragraph 4. I have serious problems about the business of the judges. I am wondering if someone could explain to me the last four lines of that paragraph, being: ``...provided that no member of the Senate or House of Commons, or of the executive, should be so authorized.''
I do not understand how such a report can attempt to limit Royal Prerogative.
The Chairman: This is an observation. We are saying that it would be our preference. This is not legislation.
Senator Cools: I am aware of that.
The Chairman: It is only to say that if a member of the House, the Senate, the cabinet is a companion of the Order of Canada, they should not be deemed to be eligible to act as a deputy of the Governor General.
Senator Cools: The Chief Justice is not only a member of the Order of Canada, she is one of the executive. This is the entire thing about the judiciary in Canada.
Senator Kroft: It is two different things.
The Chairman: We could show our knowledge of that by adding three or four words, saying, ``However, this is not intended to include the Chief Justice in the role of administrator.''
Senator Cools: That would not satisfy me at all because in England the Queen always has an appointed additional officer in the upper chamber — for example, the Lord Chancellor. In the process of Royal Assents in England, they use the Lord Chancellor and they use the Lord Commissioners.
Perhaps the sensible thing would be to delete ``provided that no member of the Senate or House of Commons...be so authorized'' and just rely on politics that it would not happen.
The Chairman: We need the qualification, I would argue.
Senator Di Nino: I have a recommendation, Mr. Chairman.
The Chairman: Do any other honourable senators support Senator Cools in this? No. Then I think we will leave it as it is.
Senator Joyal: Mr. Chairman, in all fairness, regarding your remarks to Senator Grafstein, two senators in our committee played a significant role. Senator Lynch-Staunton has made numerous proposals. We all acknowledge that this proposed bill of the government is very close to the bill proposal by Senator Lynch-Staunton. Additionally, alternative proposals have been put forward by Senator Grafstein. Those were the two main poles of our discussion.
If you read the conclusion, many of the items, as you have said yourself quite properly, reflect elements in the alternative bill of Senator Grafstein. In all fairness, it would recognize the reality and would not remove any merit from anyone around the table if we were to add, at the middle of the third paragraph on the first page, the words ``and an alternative bill proposed by Senator Jerry Grafstein,'' so that the third paragraph would then read, in part:
In addition, your Committee has held numerous discussions regarding this bill and the underlying issues and concerns, and an alternative bill proposed by Senator Jerry Grafstein. Bill S-34 is very similar to earlier bills introduced by the Honourable Senator Lynch-Staunton...
I think it is fair to balance that.
The Chairman: There are two questions, where to put it and the reference. As chairman, I would be delighted, personally.
If all honourable senators are agreeable, please go to page 4, to the paragraph in the middle of the page that begins, ``In July 1988,'' and then coming to the very end, ``this bill and three subsequent versions introduced by Senator Lynch- Staunton have been considered by the Senate and its committees,'' and then add the following: ``This bill has been given careful consideration by this committee and, in particular, several proposals introduced by Senator Grafstein.
Is that acceptable, a reference there?
Senator Joyal: I agree with the location; I have no problem with the location on page 4. I agree with saying, ``This bill and three subsequent versions introduced by Senator Lynch-Staunton have been considered by the Senate and its committees, as well as an alternative bill proposed by Senator Grafstein,'' which is how it happened.
The Chairman: I would like to say that this committee benefited greatly through the proposals.
Senator Grafstein: It was a draft bill. I proposed two draft bills, one to suit Senator Lynch-Staunton's bill and then another draft bill that was the same in substance to match the government's bill. They were draft bills, aided by our remarkable draftsman, Mr. Audcent.
The Chairman: We will just give him more money.
What I have, if you will bear with me:
This committee benefited greatly through the proposals made by Senator Jerry Grafstein in the form of draft bills brought to the committee.
Senator Murray: I would be quite happy not to be mentioned. I am embarrassed by my part in the process.
The Chairman: Have we completed our consideration of the observations?
Hon. Senators: Agreed.
Senator Cools: I want my objection noted. I want the record to be crystal clear.
The Chairman: We have a transcript. This is a public meeting.
Senator Cools: I am aware that it is a public meeting.
The Chairman: Therefore, the record is there.
Senator Cools: I want to be crystal clear. I am speaking to the record right now that my objections to that paragraph, which would be paragraph 4, located at page 5, are unacceptable to me.
The Chairman: Noted.
We are at the bill. I would ask honourable senators to refer to Bill S-34 in the form reported to us by the chamber on second reading. I would suggest that we proceed by informal discussion of the proposed amendments.
Senator Kroft: The note I have is at first reading. Are there any changes from first reading to the second reading?
The Chairman: That is it. That is just a statement of fact.
There is no preamble in the bill as sent to us. Some honourable senators, and Senator Grafstein in his draft bills, felt that it would be desirable to explain the bill, not change the meaning thereof or the purpose thereof, but simply explain the bill in the form of the preamble that is in the memorandum that we have in front of us. I will take you to that, as follows:
WHEREAS the customary ceremony by which royal assent is given to legislation in Parliament assembled is a public expression of the requirement in the Constitution of Canada that the Crown and the two —
So we change that to ``Queen,'' if we use it.
— and the two Houses of Parliament participate in the making of federal laws;
AND WHEREAS the Parliament of Canada will wish to use the customary ceremony from time to time in order to better inform Canadians on the nature of the legislative process and the enactment of the particular law or laws being assented to;
AND WHEREAS at other times the Parliament of Canada may wish to facilitate the business of Parliament by having royal assent signified by written declaration;
Senator Murray: By the way, the ``r'' in royal and the ``a'' in assent, in my opinion, ought to be capitalized.
The Chairman: That is agreed.
I have been asked to request that the committee consider a different form of recital, which has been circulated to members. This is a form that the government leader is prepared to espouse. If you look at the recital in front of you, it is simplified:
Whereas royal assent is the constitutional culmination of the legislative process;
Whereas the customary ceremony of royal assent, bringing together the three components of Parliament, is an important tradition to be preserved;
And whereas it is desirable to facilitate the work of Parliament and the process of enactment by enabling royal assent to be signified by written declaration;
This is one of the three changes that the government side is asking us to adopt.
The committee wanted a recital and the government is prepared to accept the idea of a recital in this form. In terms of the third paragraph, I am much happier with the use of the word ``enabling'' in the proposed amendment as opposed to the use of the word ``having.'' You can look at that if you like, but it is more of a legislative term than ``having.''
Apart from that, do any honourable senators have a view towards the recital?
Senator Di Nino: Mr. Chairman, is this the position of the Leader of the Government in the Senate, or do we understand the recitation to be a suggestion by the government that would be acceptable to them in order to hasten the process?
The Chairman: Yes.
Senator Di Nino: This is the latter. This is not Senator Carstairs' opinion, it comes from the Government of Canada.
The Chairman: Speaking on behalf of the government, if we adopt the three amendments the bill will be passed all the way through. This is the recital.
Senator Grafstein: A legal question, Mr. Chairman. I am seeking advice from our law officers on this. I may be incorrect in this, and I am seeking advice, but it goes to the question of recital. From a drafting standpoint, if there were a government bill that ab initio included a recital, it is open to Parliament, the Senate and the House to amend that recital. The question that I have for myself is this: Since I proposed this as a private member's bill, is it appropriate or legal for us to amend the bill by adding a recital, absent a government recital in its bill, or is the better legislative practice — and I look to Mr. Audcent on this and to what Senator Di Nino said — to have an objective clause, which we can clearly do in amending the bill? We have a draft amendment in front of us, not a government-sponsored amendment in front of us; it might change as a result of that if there were.
The Chairman: What do you mean by an objective clause?
Senator Grafstein: It is a legal question I am asking, not a drafting question.
Mr. Audcent: Honourable senators, the question being addressed would not be an issue of law. I believe it would be an issue of procedure. It would be a question to be resolved by reference to the procedural authorities that we use in Parliament. To answer the legal part of this, in a bill that is enacted by Her Majesty with a preamble, the preamble is a recital of the factual basis on which Parliament decided to enact what follows. Whereas, if you do a purpose clause, the purpose clause legislation in itself: the clause that contains the purpose clause is legislation.
The difference is, as we come out of the legislative process and we have enacted the bill into law, one would be a factual recital underpinning the bill, whereas the other would be a legal statement by Parliament that this is the purpose of the proposed legislation.
Senator Grafstein: Mr. Audcent, if it is a question of procedure and practice, and I know we are not asking you to pre-empt the procedural process, what would be your view as to the better practice? Would the better practice be a purpose clause or an objective clause, as opposed to the recital clause, absent recitals in the bill that we are amending? I have no problem amending a recital if the government proposes a recital. I would have no problem, if this were a private member's bill, putting in my own recital. However, we are in this melange between the government bill absent a recital, and the government is preparing to do a recital. Obviously, it would have to be noted as a government amendment, not a committee amendment. Absent that, is the better practice to do the purpose clause or the recital clause? I assume this can be changed if the government chooses to move an amendment.
Mr. Audcent: With respect to practice, I must defer to the chair and his adviser in matters of practice. With respect to law, there is clearly a choice for senators to make, which is do you want these factual representations to be in the law, or to be the preamble, that is, the factual basis on which the law would be based?
Senator Grafstein: There is no legal objection to choosing either type of clause. Is it a question of what our intent would be.
Mr. Audcent: From a legal point of view.
The Chairman: Let me answer the question, which I have discussed with our clerk at some length. You can correct me, Mr. O'Brien, if I misspeak myself. The authorities do not empower the committee to put a recital in a bill that has none. However, because this committee has expressed a wish for a recital, the government is prepared to agree to a recital of its own drafting, which is before you. That is the situation under our rules. The question is this: Do you want this recital, or do you want to do without a recital?
Senator Grafstein: I am looking at the government's amendment. This is a distinction without a difference. The government has pre-empted by saying that they are prepared to move, or have a government recital.
The Chairman: They are prepared to let the committee recommend this recital.
Senator Grafstein: Just to practice the niceties here, and this is Senator Di Nino's question, whose recital is it? Is it the committee's, or is it the government's?
Senator Andreychuk: It will be both.
Senator Cools: If it is moved here it will be the committee's.
The Chairman: We will either accept this recital, or — it is not how many angels dance on the point of a pin.
Senator Grafstein: For the point of the record, we need to be more clear.
Senator Cools: I was thinking that we seem to be working ourselves into a conundrum. I belong to that group that does not like either of the preambles. The government's preamble is somewhat better than the one that is in the text. I do not understand why we need a preamble at all, since the practice is that you do not amend bills by adding preambles where previously there had been none. Perhaps we could conform to that practice.
Going beyond that, I had planned to speak to these three paragraphs in this preamble as written up in our draft report, as I have recently read them. Some of them are textually not accurate. They are substantially insufficient. For example, it is not right to say that the customary ceremony by which Royal Assent is given to legislation in Parliament assembled is a public expression of the requirement of the Constitution of Canada. That is not so. In point of fact, Royal Assent in Canada antedates the BNA Act. We are looking at an ancient form of law. Perhaps the solution to the dilemma is to have no preamble whatsoever. Since this is a bill in an unknown area of the law, it seems to me that the shorter and more to the point we can keep the bill, the better.
The Chairman: Your point is made.
The honourable senators are unanimous in saying no recital. Is that acceptable to everyone?
Some Hon. Senators: No.
Senator Poulin: I am trying to remember all of the discussions that we have had. When I read the amendment, I felt that it reflected the discussions that we had here. You, Mr. Chairman, had, therefore, negotiated with the Leader of the Government, because this was a government bill. You wanted to inform the leader of the Government of the discussions that were here. That is supposed to, therefore, reflect the discussions that we have had, and I thought it did.
The Chairman: I believe the government has accepted —
Senator Poulin: Yes.
The Chairman: The government, in its versions of the recitals, has accepted the essence of what our committee wanted.
Senator Poulin: Therefore, I think we should include them. Absolutely.
Senator Di Nino: Mr. Chairman, I, too, think that, after the lengthy discussion we had, credit is due to Senator Grafstein for bringing this to our attention. The preamble, in effect, perhaps states the obvious to those of us involved in the system. However, if someone were to read this, whether an educational component or just an interest from the community, it would be useful to state in terms acceptable to us the kind of message that the preamble sends.
We should have a preamble, and if the government is prepared to accept this in the form that they have proposed, we should consider agreeing to it with one minor change, if I may suggest. The minor change includes the word ``component'' that the chairman referred to a moment ago, and I believe we used the word ``entities.'' We should keep the language consistent: use one word or the other.
The Chairman: I agree — the uniformity is important. I am sure that it is not in any way a concern.
Senator Di Nino: Either one is fine, because I am not stuck on one or the other. However, I do suggest that we should retain the preamble because it sends a good message.
Senator Kroft: Briefly, I feel strongly about it because the great strength of this bill, after much difficulty, is that it represents a coming together of two significantly different points of view. Both views are expressed, having been reconciled. It is evident that two approaches to this are brought into the bill in the preamble. If it is not included, it will not be as clear that we want to both preserve the tradition and provide the executive form.
I will not get involved in the wording at all. I am quite happy with the preamble that the government has provided.
The Chairman: I agree with Senator Di Nino, Senator Poulin and you, Senator Kroft. The government has come up with a good version of a preamble. I am prepared to ask the members of the committee whether we agree to accept the government's preamble in principle. We will have to vote on it in the normal way, but are we agreed to accept the government's preamble?
Senator Grafstein: Again, Mr. Chairman, we just had a chance to read it carefully again. At the second recital, we use two words in a different way: one is the word ``customary'' and the other is the word ``tradition.'' It says: ``Whereas the customary ceremony of royal assent, bringing together the three components of Parliament, is an important tradition to be preserved.'' I am trying to be more technical than just a pejorative word. The word ``tradition'' is not appropriate because it is not a tradition, but rather it is either a custom, which has legal significance, or it is a convention. A custom.
Senator Di Nino: It is a practice.
Senator Cools: It is not a tradition.
Senator Grafstein: It is not a tradition and I am trying to come up with the words that would be more appropriate. Perhaps it could state that the ceremony of Royal Assent, which brings together the three components of Parliament, is an important ``custom.''
Senator Kroft: How about saying that it is important and should be preserved.
Senator Grafstein: I would have no problem with that. We get into trouble with —
The Chairman: The legislation uses the phrase ``in the customary form.''
Senator Grafstein: Yes. That is fine.
The Chairman: We will keep ``customary.''
Senator Murray: There is a bigger problem with this preamble from the government. In the second recital it says, ``the customary ceremony of royal assent, bringing together the three components of Parliament, is an important ...'' et cetera. That suggests that the new ceremony does not bring together, or will not bring together, the three components of Parliament. Even when we go to the written declaration, the three components of Parliament will be together. This is not well done, pardon me, but tell the government to take the word back.
Further, about the ``customary ceremony of royal assent, ``if it must be referred to, I would prefer to say the ``public ceremony'' or something like that.
Senator Kroft: That is the word that is missing.
Senator Murray: Send this thing back to the drawing board. I do not think it is adequate.
Senator Grafstein: Let us see if we can fix it up.
Senator Murray: Let them fix it up, because it is their draft.
The Chairman: Given the time, we will obviously not finish the bill today. We will finish it at the next session, I would hope.
Can I consult with you on the other two amendments? Is there any objection to the removal of ``June'' and ``December'' and the replacement of ``two''? Does anyone have any difficulty with that?
Hon. Senators: No.
The Chairman: Is there any difficulty with the phrase the government is offering us, clause 3.1: ``The signification of royal assent by written declaration may be witnessed by more than one member from each House of Parliament.''
Is there any problem with that? We had ``two'' not ``one.''
Senator Murray: It must be witnessed by at least one from each House. Is that right?
The Chairman: Do you want the word ``must''?
Senator Lynch-Staunton: Not ``may,'' but ``must''.
Senator Murray: It ``must'' be witnessed.
The Chairman: We want the word ``shall'' rather than ``may'' —
Senator Cools: It is Clause 3.1.
The Chairman: Yes, clause 3.1.
Senator Cools: Is that in the bill or in the draft?
The Chairman: It is in reference to clause 3.1 in the amendments.
Senator Di Nino: I think we are talking about two different things. One issue is that it must be witnessed by at least one member from each House of Parliament and the other issue is that it may be more than one member.
The Chairman: The word ``may'' is implicit. The Crown can do anything with the ceremony that it wishes to do.
Senator Cools: So, ``may'' is —
The Chairman: The members of this committee are asking for a baseline of one member from each House.
Senator Murray: I find that inadequate. There should be two members. I do not buy the government's view that there would be occasions when it would be impossible to find two members of the Senate and two members of the House of Commons to go over to Rideau Hall. I find that impossible.
The Chairman: We have had this discussion before.
Senator Murray: I will not pursue it now, but I will express my view. Consider it expressed.
Senator Cools: The word ``may'' is definitely a great improvement.
The Chairman: We have guidance for the committee's direction on Bill S-34.
The committee adjourned.