Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 1 - Evidence for November 14, 2007
OTTAWA, Wednesday, November 14, 2007
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:05 p.m., pursuant to rule 88, to organize the activities of the committee.
[English]
Adam Thompson, Clerk of the Committee: Honourable senators, as clerk of this committee it is my duty to preside over the election of the chair, and I am now prepared to receive nominations to that effect.
Any nominations?
Senator Stratton: I would like to nominate Senator Fraser.
Mr. Thompson: Are there any further nominations? Seeing none, I will put the question. It is moved by the Honourable Senator Stratton that the Honourable Senator Fraser do take the chair of this committee. Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Mr. Thompson: I declare the motion carried and invite Senator Fraser to take the chair.
Senator Joan Fraser (Chair) in the chair.
The Chair: Thank you very much indeed, honourable senators. Ever since I arrived here, I thought this was the best committee in the Senate, and I still think so. It is a tremendous privilege to be asked to be your chair.
We will have a very heavy session, I think. There is a lot of work coming our way, but as I look around the table at the calibre of the members of this committee, I know we will do very well.
It is now my duty, I believe, to proceed with the other elements of the organizational meeting.
The second item is the election of the deputy chair. Do I have a motion?
Senator Milne: I would move that Senator Raynell Andreychuk be the deputy chair.
The Chair: It is moved by Senator Milne that Senator Andreychuk be named the deputy chair of the committee. Are there any other nominations? Senator Andreychuk being absent on public business, I would just like to verify that she is aware of this proposal.
Senator Stratton: Yes, she is. She is in a rather interesting place that I will let her tell you about next week. Not very nice, let us put it that way.
The Chair: In that case, all in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Motion carried.
The next motion concerns the Subcommittee on Agenda and Procedure. We are looking for a motion:
That the Subcommittee on Agenda and Procedure be composed of the chair, the deputy chair, and one other member of the committee to be designated after the usual consultation; and
That the subcommittee be empowered to make decisions on behalf of the committee with respect to its agenda, to invite witnesses, and to schedule hearings.
Senator Di Nino: So moved.
The Chair: Moved by Senator Di Nino. All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Motion carried.
Senators, I would like to inform you that it is my intention to invite Senator Milne to be the third member of the steering committee. She has a long and illustrious history on this committee. She has been its chair, its deputy chair and one of its hardest working members.
I have consulted with the other side about this.
Senator Joyal: I am concerned that the chair, the deputy chair and the third member are all women. I will have to reverse my traditional stand — I always propose that there be women. I have to express that concern to save the future.
The Chair: We will do our level best to take you into account.
Senator Di Nino: Senator Joyal is saying it in the most positive terms possible.
[Translation]
We now move to the next motion:
That the committee prints its proceedings and that the chair be authorized to set the number to meet demand. Would someone like to move this motion?
Senator Joyal: I so move.
The Chair: Thank you, Senator Joyal. Does everyone agree?
Hon. Senators: Agreed.
The Chair: The motion is carried.
[English]
Next, we have authorization to hold meetings and to print evidence when quorum is not present. The motion is:
That, pursuant to rule 89, the chair be authorized to hold meetings, to receive and authorize the printing of the evidence when a quorum is not present, provided that a member of the committee from both the government and the opposition be present.
Senator Jaffer so moves. All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
[Translation]
Item six:
That the committee adopt the final draft report, pursuant to rule 104.
Everyone should have received a copy of the draft report. It deals with committee expenses in the last session of Parliament.
[English]
I believe that this is not a controversial report in any way. Rather, it is a simple statement of what the committee spent on its studies of bills, including witness testimony, et cetera.
Senator Milne: I so move.
The Chair: All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
The seventh motion is:
That the committee ask the Library of Parliament to assign analysts to the committee;
That the chair be authorized to seek authority from the Senate to engage the services of such counsel and technical, clerical, and other personnel as may be necessary for the purpose of the committee's examination and consideration of such bills, subject-matters of bills, and estimates as are referred to it;
That the Subcommittee on Agenda and Procedure be authorized to retain the services of such experts as may be required by the work of the committee; and
That the chair, on behalf of the committee, direct the research staff in the preparation of studies, analyses, summaries and draft reports.
Senator Di Nino: I so move.
The Chair: All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
Perhaps our analysts could join us now.
As many of you probably know, these truly fabulous people are Mary Hurley and Sebastian Spano. Ms. Hurley is with us on matters relating to Aboriginal affairs and lucky Mr. Spano covers just about everything else. Welcome.
Senators already know our new clerk, Adam Thompson, who presided over the beginning of this meeting and who will have a lot of fun with us.
The next motion is:
That pursuant to section 32 of the Financial Administration Act and Section 7, Chapter 3:06 of the Senate Administrative Rules, authority to commit funds be conferred individually on the chair, the deputy chair and the clerk of the committee; and
That pursuant to section 34 of the Financial Administration Act, and Section 8, Chapter 3:06 of the Senate Administrative Rules, authority for certifying accounts payable by the committee be conferred individually on the chair, the deputy chair and the clerk of the committee.
Senator Di Nino so moves. All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
[Translation]
Motion nine:
That the committee empower the Subcommittee on Agenda and Procedure to designate, as required, one or more members of the committee and/or such staff as may be necessary to travel on assignment on behalf of the committee.
Would anyone like to move it?
[English]
Senator Milne: I so move.
The Chair: All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
The tenth items reads:
That the Subcommittee on Agenda and Procedure be authorized to:
(1) determine whether any member of the committee is on ``official business'' for the purposes of paragraph 8(3)(a) of the Senators Attendance Policy, published in the Journals of the Senate on Wednesday June 3, 1998; and
(2) Consider any member of the committee to be on ``official business'' if that member is: (a) attending an event or meeting related to the work of the committee; or (b) making a presentation related to the work of the committee.
Senator Watt so moves. All in favour?
Senator Joyal: My question is about the subcommittee determining whether the person is on official business for the purpose of the work of the committee. Would it not be appropriate for the committee to be informed if someone is designated to represent the committee or to do work in relation to the committee? I think it would be helpful.
The Chair: Certainly, I would think so but what do other members of the committee think?
Senator Milne: Absolutely.
The Chair: A similar question came up at the Rules Committee meeting this morning, where we adopted a motion to the effect that after the steering committee has made such a determination, it would notify the full committee of that.
Senator Joyal: Exactly. Notification would be fine. The intent is not to present a challenge.
The Chair: Yes, it would be fine to be notified after the decision is made.
Senator Joyal: Yes, after the decision is taken.
Senator Watt: You could probably ask for volunteers.
The Chair: Senator Joyal, are you making a motion in amendment to that effect?
Senator Stratton: We would note that you do not need to make an amendment.
Senator Joyal: No.
The Chair: Can we just do it?
Senator Di Nino: The clerk would be so instructed.
Senator Joyal: Exactly. I think we all agree on the substance of being properly informed because it would be helpful for us in our work.
The Chair: The clerk will consider himself to have been so instructed.
Do we have a mover for this?
Senator Watt: I so move.
The Chair: All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
[Translation]
Motion 11. It is moved:
That, pursuant to the Senate guidelines for witnesses' expenses, the committee may reimburse reasonable travelling and living expenses for one witness from any organization and payment will take place upon application, but that the chair be authorized to approve expenses for a second witness should there be exceptional circumstances.
Would anyone like to move this motion?
[English]
Senator Di Nino so moves. All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
The twelfth motion is:
That the chair be authorized to seek permission from the Senate to permit coverage by electronic media of the committee's public proceedings with the least possible disruption of its hearings; and
That the Subcommittee on Agenda and Procedure be empowered to allow such coverage at its discretion.
Senator Jaffer so moves. All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
I do not think that number 13 requires a motion. It is a reminder that the time slot for regular meetings is Wednesdays at 4 p.m., or when the Senate rises if for some reason the house sets aside the house order that it rise at 4 p.m., and Thursdays at 10:45 a.m.
Do we have other business?
Senator Bryden: I do not know whether this is the right place to raise this question.
The Thursday time slot for the regular meetings is not a problem as far as determining the length of the meetings, because we have to be back in the Senate and must adjourn before then. However, the normal time for Wednesday is from 4 p.m. to 6 p.m.; is that right?
Senator Stratton: Yes, the meeting usually sits for two hours.
Senator Bryden: It is two hours. I would like to suggest that that would be the position that we would take: That our meetings are two-hour meetings. Sometimes they can stretch out, and people will just let them go. I have been here at 10 p.m. thinking I was coming for two hours.
The Chair: And there was a hockey game.
Senator Bryden: Yes! Well, I do not come for those meetings if there is a game.
Senator Stratton: Senator, are you trying to slow things down, or what is your real reason?
Senator Bryden: No, it is my usual way of trying to make sure everything is clear.
Senator Stratton: For the record, I believe you are trying to slow things down. This is the committee that has government business, a lot of government business. There are going to be times when we need to sit beyond 6 p.m. because we are limited on Thursday morning. I am putting that on the record. From our side, it is important that the legislation be completed. That is our responsibility here.
Senator Bryden: Yes, it is our responsibility that legislation is considered and either is adopted, amended, or rejected. We will do that; all of the above probably.
It also is the case that there is a slot set for this committee to do its business, and there are other committees that meet on the same evening.
Senator Stratton: Yes, the Standing Senate Committee of Fisheries and Oceans and the Finance Committee sit on the same evening.
Senator Bryden: There are other commitments that all of us often have to make well in advance of the time.
I do not mind if we are going to make an exception and go for an extra hour or a half hour, but it will be very bad legislation if it ends up being an endurance process.
Senator Stratton: I want to ask Senator Joyal and other individuals who have sat on this committee for a long time, how many times have we sat in this room until quite late at night? That is fairly often.
I do not think we should put a time on it. We should measure it by what needs to be done on a case-by-case basis, rather than setting something that is frozen in time. In other words, has an end stop.
I agree with you. I do not like committees sitting beyond their allotted time; however, there may be times that we need to sit for an extended period. We should keep that in mind when we have the discussion.
Senator Bryden: I do not disagree with that, except for the fact that it would be open to the committee.
The Chair: Senators, perhaps I might observe that in general, sitting slots are the business of the whips, and we are hearing a strong message from one of the whips here.
I would agree with you, Senator Bryden, that two-hour meetings are entirely the way to go when at all possible. Indeed, we have to notify the staff, the translators, and all that, as I understand it, of how long we expect to sit. I certainly would be willing — pending discussions with the steering committee — to undertake to plan on two-hour meetings, unless there are good reasons for sitting more than two hours.
Senator Bryden: That decision would be made by the committee.
The Chair: It would be made first by the steering committee. Sometimes when you are scheduling witnesses, you have to give a witness an answer. The witness says they can only come at a certain time, and it is someone we all want to hear from. In my view, it would be the exception and not the rule. I do not want to get into numbers games, but you might want to look at the composition of the steering committee.
Senator Bryden: That is fine. I just wanted to put that on the record. If it becomes a contest of endurance as to who can out-stay the others in order to push to get a particular piece of legislation through no matter how bad or how good, then that does not lead to the best legislation, in my opinion. There is a reason for the two-hour period, and if that is acceptable, it is certainly acceptable to me. That is what we will do. We did that under the former chair pretty accurately. I am fine with that.
It needs to be an exception, and we need to have notice if that is going to occur.
Senator Stratton: I hope you will understand where I am coming from as government whip. We must get legislation through, and it is my responsibility to help move it through. I will, on occasion, be pushing. Our side will be pushing for exceptions.
Senator Bryden: You will, of course, get the usual cooperation.
Senator Stratton: Thank you very much. That is all I ask.
The Chair: I have three items of other business that I want to raise, but I wonder if anyone else has items of other business that they wish to raise.
Senator Baker: I noticed the summary given to us by the table concerning the current status of bills that would be referred to the committee.
The Chair: It is a fair guess they might be referred to the committee.
Senator Baker: I am referring to page 2, third section down, an act to amend the criminal code, criminal procedure, language of the accused, sentencing and other amendments. It says the current status is at first reading in the Senate. I distinctly heard —
The Chair: Status at prorogation.
Senator Oliver: As of June 14.
Senator Baker: I beg your pardon?
Senator Milne: It was then, but it is now —
Senator Baker: No, the last section is status at prorogation. I am talking about current status.
I am simply pointing out chair, the fact that there is an error there. It says Senate, first reading. I distinctly heard Senator Oliver speaking in an excellent manner, I must say, as to content, at second reading.
I do not know what the motion was after he had finished, but the suggestion was, by some members around me, that the matter should be referred to the committee immediately. I do not know if Senator Oliver wishes to comment on that.
Senator Oliver: The Deputy Leader of the Opposition took the adjournment, and I thought someone was going to speak today or perhaps tomorrow, so then it could be referred to this committee next week.
The Chair: I confess I had taken the liberty of asking for this list to be prepared, but it was done on very short notice. You can blame me if the library staff missed one transition from first to second reading, and I apologize for that.
Senator Baker: They missed an excellent speech by Senator Oliver.
Senator Watt: I have one issue to bring to the table, and at the same time acknowledging that Bill C-11 is not at first reading, it is at second reading.
The Chair: It is now also at second reading, okay. That was only today.
Senator Watt: That was only today.
Senator Baker: That brings it up to date.
Senator Watt: There is another issue that is directly connected to this issue is the non-derogation clause.
The Chair: That was going to be one of the items I was going to bring up.
Senator Watt: I will leave that up to you then. I will wrap it up by saying I assume that the way we dealt with Bill C- 51 last session will be coming to this committee.
The Chair: As I understand it, that decision has not been made yet. This document is titled, ``List of Bills and Other Business Likely to Come before Committee'' Since Bill C-51 had been referred to this committee and obviously, that is why it is here. The leaderships, I believe, have unending discussions about these matters.
I do not know what will happen.
Senator Joyal: That is fine. My question has been answered on the back page of the document.
The Chair: In connection with the list of bills that may come before this committee, the steering committee would appreciate if all committee members would indicate, as soon as possible in each case, who they would suggest as appropriate witnesses and include a brief explanation why.
I think there is so much expertise around this table that we would be foolish not to try to take advantage of it. Rather than just leave the job entirely to the steering committee, I am formally asking you, honourable senators, if you have such suggestions, to please forward them to the steering committee.
The next thing I wanted to raise was the matter of the non-derogation clause study. I was going to ask the committee to authorize me to give notice of motion tomorrow in the chamber, which would be moved on Tuesday. The notice would be to resume our study of the non-derogation clause. The motion that I would propose would be identical to the motion that was adopted by the Senate and that was the basis for our study in the last session of Parliament, with the exception that we would have to change the expiry date since the expiry date last time was the end of October. I do not think we would get very far proposing a study that was to report October 31 this year. I propose year end, which is an obvious, non-controversial thing.
Senator Di Nino: December 31, I guess?
The Chair: This year; 2007. However, as you know, this study did cover a great deal of ground in the last session of Parliament. It would certainly be my hope that we would be able to turn ourselves to this matter next week and possibly even conclude the matter, thereby keeping what has been in effect an undertaking for years that this committee would do a report on non-derogation clauses. It has always been swamped by government bills which, of course, take precedence.
If honourable senators would agree to give me leave to table that notice of motion tomorrow, we would at least have taken that step forward. I should say that I have consulted Senator Andreychuk about this, and she is in full agreement.
Senator Di Nino: I am assuming you will also ask for the transfer of records, and so on, so that information will be in effect.
The Chair: That was part of the motion last time. The study has been around for so long, all we have to do is say it again.
Senator Stratton: We will put a time limitation on this? This is not open-ended.
The Chair: No. As this is the only change from last reference, I was going to suggest that by this time — say by December 31 of this year —
Senator Stratton: We will not do non-derogation at the sacrifice of government bills is my question.
The Chair: It is my impression that the library has been working diligently and very knowledgably on this matter and can probably produce a draft report for us very quickly.
Senator Stratton: I think there is an agreement that government bills take precedence. I just want to make sure.
The Chair: There is.
Senator Stratton: I would like to get the non-derogation done myself. It has been hanging around for a long time. I have to put that qualifier in for government bills, even to the extent of doing something at the Wednesday meetings to allocate a certain amount of time to get it done apart from government bills. That may be something we could think about.
The Chair: At the moment, however, no government bills have been referred to us. We may have a tiny little window here.
Senator Stratton: Thank you.
The Chair: Do I have your authorization to give that notice of motion?
Hon. Senators: Agreed.
The Chair: The last thing I wanted to do was pay tribute to my predecessor, Senator Oliver, who chaired this committee in one of its most difficult times. I think we all owe him our gratitude. I wanted to put that formally on the record. It was one of the hardest jobs imaginable. Congratulations on having survived it, Senator Oliver.
Hon. Senators: Hear, hear!
The Chair: If there is no other item of business that anyone wishes to raise — Senator Bryden.
Senator Bryden: With respect to upcoming business, as you see from the current status, Bill S-203 was referred to this committee yesterday. The fact that we do not have any government business before us and that this bill, Bill S-203, is identical to Bill S-213 that was at the committee stage in the House of Commons at prorogation, I would hope that we would be able to consider that bill at our next sitting, which is on Wednesday.
The Chair: Yes, the reason I did not raise that was because I had not raised it in my conversation with Senator Andreychuk. However, as you rightly observe, it is identical to the previous version of the bill, which this committee studied in-depth. It has always been my view that once a committee has studied something in-depth, normally, all other things being equal — that is, the same identical item comes back — the committee would normally accept the work of the predecessor committee. That being the case, I would think it probable that we would be able to do that. However, I was going to suggest, I have not consulted Senator Andreychuk about this. I am not aware of any problems that she would have with that approach, and I shall certainly put it to her. I know Senator Milne probably agrees with your view on this matter, but I did not want to raise it formally just for that reason, out of courtesy. The bill has of course been referred to us.
We all remember your eloquent remarks in the chamber about time elements, among other things.
Senator Bryden: Taking due note of the whip on the other side and the preference for government bills when they come —
Senator Stratton: Have I got a deal for you.
Senator Bryden: It may be an opportunity to deal with this issue.
The Chair: The same little window of opportunity exists.
Senator Joyal: Do we meet tomorrow?
The Chair: We do not meet tomorrow, no. We meet next Wednesday.
Senator Joyal: I see a window of opportunity.
The Chair: We meet a week from today at 4 p.m. as has been established.
The committee adjourned.