Journals of the Senate
2nd Session, 41st Parliament
Issue 25
Tuesday, December 10, 2013
2:00 p.m.
The Honourable Noël A. Kinsella, Speaker
The Members convened were:
The Honourable Senators
Andreychuk, Ataullahjan, Baker, Batters, Bellemare, Beyak, Black, Boisvenu, Buth, Campbell, Carignan, Champagne, Chaput, Charette-Poulin, Cools, Cordy, Cowan, Dagenais, Dallaire, Dawson, Day, Downe, Doyle, Dyck, Eaton, Eggleton, Enverga, Fortin-Duplessis, Fraser, Frum, Furey, Gerstein, Greene, Hervieux-Payette, Housakos, Hubley, Jaffer, Johnson, Joyal, Kinsella, Lang, LeBreton, MacDonald, Maltais, Manning, Marshall, Martin, Massicotte, McCoy, McInnis, McIntyre, Merchant, Meredith, Mitchell, Mockler, Moore, Munson, Nancy Ruth, Neufeld, Ngo, Nolin, Ogilvie, Oh, Patterson, Plett, Poirier, Raine, Ringuette, Rivard, Rivest, Robichaud, Runciman, Segal, Seidman, Seth, Sibbeston, Smith (Cobourg), Smith (Saurel), Stewart Olsen, Tannas, Tardif, Tkachuk, Unger, Verner, Wallace, Watt, Wells, White
The Members in attendance to business were:
The Honourable Senators
Andreychuk, Ataullahjan, Baker, Batters, Bellemare, Beyak, Black, Boisvenu, Buth, Campbell, Carignan, Champagne, Chaput, Charette-Poulin, Cools, Cordy, Cowan, Dagenais, Dallaire, Dawson, Day, Downe, Doyle, Dyck, Eaton, Eggleton, Enverga, Fortin-Duplessis, Fraser, Frum, Furey, Gerstein, Greene, Hervieux-Payette, Housakos, Hubley, Jaffer, Johnson, Joyal, Kinsella, Lang, LeBreton, MacDonald, Maltais, Manning, Marshall, Martin, Massicotte, McCoy, McInnis, McIntyre, *Mercer, Merchant, Meredith, Mitchell, Mockler, Moore, Munson, Nancy Ruth, Neufeld, Ngo, Nolin, Ogilvie, Oh, Patterson, Plett, Poirier, Raine, Ringuette, Rivard, Rivest, Robichaud, Runciman, Segal, Seidman, Seth, Sibbeston, Smith (Cobourg), Smith (Saurel), Stewart Olsen, Tannas, Tardif, Tkachuk, Unger, Verner, Wallace, Watt, Wells, White
The first list records senators present in the Senate Chamber during the course of the sitting.
An asterisk in the second list indicates a senator who, while not present during the sitting, was in attendance to business, as defined in subsections 8(2) and (3) of the Senators Attendance Policy.
PRAYERS
The Senate observed a minute of silence in memory of Mr. Nelson Mandela, whose death occurred December 5, 2013.
SENATORS' STATEMENTS
Some Honourable Senators made statements.
ROUTINE PROCEEDINGS
Tabling of documents
With leave of the Senate,
The Honourable the Speaker tabled the following:
Companion to the Rules of the Senate of Canada, Second Edition, November 2013.—Sessional Paper No. 2/41-270S.
Presenting or Tabling of Reports from Committees
The Honourable Senator Day, Chair of the Standing Senate Committee on National Finance, tabled its second report (Supplementary Estimates (B) 2013-2014).—Sessional Paper No. 2/41-271S.
The Honourable Senator Day moved, seconded by the Honourable Senator Moore, that the report be placed on the Orders of the Day for consideration at the next sitting.
The question being put on the motion, it was adopted.
° ° °
The Honourable Senator Day, Chair of the Standing Senate Committee on National Finance, tabled its third report (Subject-matter of Bill C-4, A Second Act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures).—Sessional Paper No. 2/41-272S.
The Honourable Senator Day moved, seconded by the Honourable Senator Mitchell, that the report be placed on the Orders of the Day for consideration at the next sitting.
The question being put on the motion, it was adopted.
° ° °
The Honourable Senator Jaffer, Chair of the Standing Senate Committee on Human Rights, tabled its second report entitled: Employment Equity in the Federal Public Service: Staying Vigilant for Equality.—Sessional Paper No. 2/ 41-273S.
The Honourable Senator Jaffer moved, seconded by the Honourable Senator Downe, that the report be placed on the Orders of the Day for consideration at the next sitting.
The question being put on the motion, it was adopted.
Government Notices of Motions
With leave of the Senate,
The Honourable Senator Martin moved, seconded by the Honourable Senator Andreychuk:
That, for the purposes of its consideration of Bill C-4, A second act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures, should this bill be referred to the committee, the Standing Senate Committee on National Finance have the power to sit even though the Senate may then be sitting, with the application of rule 12-18(1) being suspended in relation thereto.
The question being put on the motion, it was adopted.
SPEAKER'S RULING
On December 5, Senator Cowan, the Leader of the Opposition, raised a question of privilege relating to alleged interference in the audit of Senator Duffy's expenses commissioned by the Standing Committee on Internal Economy, Budgets and Administration. He argued that the various kinds of interference that have been reported may have compromised the effective operation of the Senate and its members.
The senator's question of privilege is largely based on information provided in a sworn affidavit from the RCMP that was released on November 20. The contents of the affidavit, which have not been tested in court, have attracted considerable public attention. The alleged information it outlines is of concern to all senators and has been discussed both in the Senate and in the Internal Economy Committee. Senator Cowan argued that the events surrounding the audit, as set out in the RCMP document, amounted to interference in the work of the Internal Economy Committee and with the evidence that the auditing firm Deloitte was to provide.
In making his case, the Leader of the Opposition addressed the four criteria that must be met to establish a prima facie question of privilege under rule 13-3(1). In particular, he noted how he had sought to exhaust all reasonably available alternative processes before raising the matter as one of privilege. He felt his last alternative had been exhausted when the Senate rejected a proposal to direct the Internal Economy Committee to hear from the Deloitte partner mentioned in the RCMP document. Despite resulting delays, Senator Cowan argued that he fulfilled all the criteria of rule 13-3(1).
Senator Cowan's argument was later supported by Senator Fraser. She indicated that the events, as presented by the RCMP, suggest that there had been interference with a proceeding in Parliament. Like Senator Cowan, she believed that the requirements for finding a prima facie question of privilege have been met.
Senator Carignan, the Leader of the Government, did not agree that there was a question of privilege. He did not accept that the events outlined in the RCMP document constituted interference in the Senate's work.
Communications between the members of each house in the same caucus is a normal feature of political life in any bicameral Westminster-type institution. Such conversations should not be construed as interference in the parliamentary context.
In addition, Senator Carignan specifically addressed the phone call from a managing partner of Deloitte to the audit group. He underscored the fact that the Deloitte forensic audit group has denied providing information, beyond direction to publicly available material. The Leader of the Government concluded that there was no interference in the audit process and that potential witnesses were not blocked.
Senator Cools, for her part, was uncomfortable with the remedy — referral to the Standing Committee on Rules, Procedures and the Rights of Parliament — that Senator Cowan would propose if a prima facie question of privilege were established. She feared this would amount to one committee sitting in judgment on the work of another. Senator Cools pointed out that the Internal Economy Committee has decided how to deal with the issue. She urged the committee's decision be respected.
Honourable senators, the issue of interference is central to this question of privilege, which leads one to consider what kind of interference may have actually occurred. While a definite answer on this point may not be required at this moment, it has become apparent that the legal and parliamentary meanings of the term are not necessarily the same.
Irrespective of the specifics of a particular question of privilege, the Speaker is responsible for assisting the Senate by conducting an initial evaluation, and the Speaker is obliged to follow the criteria in rule 13-3(1). All the criteria must be met to determine that a prima facie question of privilege exists. The criteria are that the question must:
(a) be raised at the earliest opportunity;
(b) be a matter that directly concerns the privileges of the Senate, any of its committees, or any Senator;
(c) be raised to correct a grave and serious breach; and
(d) be raised to seek a genuine remedy that the Senate has the power to provide and for which no other parliamentary process is reasonably available.
In presenting his argument, the Leader of the Opposition suggested that there is an option to exhaust all reasonable alternatives — helping ensure that the criterion of paragraph (d) is met — before the criterion of paragraph (a) comes into play. The implication would be that one criterion can have priority over the others.
This does not reflect the Senate's practice. All four criteria must be met, and all must be met simultaneously, rather than over a period of time or sequentially. The initial assessment of whether all criteria have been met is done by the Speaker, and the chair's decision can be appealed to the Senate.
Honourable senators, rule 13-1 provides a general declaration about privilege, framing how the process relating to questions of privilege is to be understood. The rule states that:
A violation of the privileges of any one Senator affects all Senators and the ability of the Senate to carry out its functions. The preservation of the privileges of the Senate is the duty of every Senator and has priority over every other matter before the Senate.
This makes clear that senators should raise any concerns they may have about privilege expeditiously, without protracted delay. Within the structure of our Rules and practices, issues of privilege are considered with some urgency.
In light of this, and consistent with past practice, rule 13-3(1)(a) means that a question of privilege must be raised at the earliest opportunity. Our precedents establish that even a delay of a few days can result in a question of privilege failing to meet this criterion. Attempting to exhaust alternative remedies before giving notice of a question of privilege does not exempt it from the need to meet the first criterion.
Since this question of privilege involves events in committee, it is appropriate to note that senators can raise issues of privilege arising from committee proceedings directly on the floor of the Senate. A report of the committee is not essential. The fact that the committee could make a report on the issue has never been understood as bringing the issue of a reasonable alternative process — the fourth criterion — into play.
The RCMP affidavit became public on November 20, and the issues contained in it have been extensively discussed in the Senate. It was more than two weeks after the release of the document that the question of privilege was raised. In light of this lapse of time, the first criterion — that the issue be raised at the earliest opportunity — has not been met. As such, a prima facie question of privilege cannot be established, and there is no need therefore to consider the other three criteria.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills — Second Reading
Second reading of Bill C-4, A second act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures.
The Honourable Senator Buth moved, seconded by the Honourable Senator Unger, that the bill be read the second time.
After debate,
The question being put on the motion, it was adopted, on division.
The bill was then read the second time, on division.
The Honourable Senator Buth moved, seconded by the Honourable Senator Unger, that the bill be referred to the Standing Senate Committee on National Finance.
The question being put on the motion, it was adopted.
Bills — Third Reading
Third reading of Bill C-7, An Act to amend the Museums Act in order to establish the Canadian Museum of History and to make consequential amendments to other Acts.
The Honourable Senator Eaton moved, seconded by the Honourable Senator Ataullahjan, that the bill be read the third time.
After debate,
The Honourable Senator Day moved, seconded by the Honourable Senator Ringuette, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
MESSAGES FROM THE HOUSE OF COMMONS
A message was brought from the House of Commons with a Bill C-9, An Act respecting the election and term of office of chiefs and councillors of certain First Nations and the composition of council of those First Nations, to which it desires the concurrence of the Senate.
The bill was read the first time.
The Honourable Senator Martin moved, seconded by the Honourable Senator Andreychuk, that the bill be placed on the Orders of the Day for a second reading two days hence.
The question being put on the motion, it was adopted.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills — Second Reading
Orders No. 1, 2 and 4 were called and postponed until the next sitting.
Reports of Committees — Other
Orders No. 1 to 6 were called and postponed until the next sitting.
Motions
Order No. 11 was called and postponed until the next sitting.
° ° °
Resuming debate on the motion of the Honourable Senator Martin, seconded by the Honourable Senator Carignan, P.C.:
That the following Address be presented to His Excellency the Governor General of Canada:
To His Excellency the Right Honourable David Johnston, Chancellor and Principal Companion of the Order of Canada, Chancellor and Commander of the Order of Military Merit, Chancellor and Commander of the Order of Merit of the Police Forces, Governor General and Commander-in-Chief of Canada.
MAY IT PLEASE YOUR EXCELLENCY:
We, Her Majesty's most loyal and dutiful subjects, the Senate of Canada in Parliament assembled, beg leave to offer our humble thanks to Your Excellency for the gracious Speech which Your Excellency has addressed to both Houses of Parliament.
After debate,
The Honourable Senator Cowan moved, seconded by the Honourable Senator Fraser, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
OTHER BUSINESS
Senate Public Bills — Second Reading
Orders No. 1 to 12 were called and postponed until the next sitting.
Commons Public Bills — Second Reading
Orders No. 1 to 13 were called and postponed until the next sitting.
Reports of Committees — Other
Order No. 1 was called and postponed until the next sitting.
Motions
Orders No. 9, 33 and 5 were called and postponed until the next sitting.
Inquiries
Order No. 3 was called and postponed until the next sitting.
° ° °
Resuming debate on the inquiry of the Honourable Senator Chaput, calling the attention of the Senate to the Conservative government's unilateral decision not to review the standards and criteria of the Canada Periodical Fund and the disastrous consequences of this failure to act for francophone minority newspapers, such as La Liberté, Manitoba's only French-language weekly
After debate,
The Honourable Senator Fraser moved, seconded by the Honourable Senator Tardif, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
° ° °
Order No. 4 was called and postponed until the next sitting.
INQUIRIES
The Honourable Senator Mitchell called the attention of the Senate to the forestry industry's efforts to address public criticism about environmental practices and how it could be applied to the energy industry.
After debate,
The Honourable Senator Maltais moved, seconded by the Honourable Senator Seth, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
° ° °
The Honourable Senator Jaffer called the attention of the Senate to the negative effects of the Quebec Charter of Values on Canadians.
After debate,
The Honourable Senator Cordy moved, seconded by the Honourable Senator Watt, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
° ° °
The Honourable Senator Dyck called the attention of the Senate to the disparities in educational attainments of First Nations people, inequitable funding of on-reserve schools and insufficient funding for postsecondary education.
After debate,
The Honourable Senator Patterson moved, seconded by the Honourable Senator Wallace, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 14-1(7):
Report on the operations under the Canada Water Act for the fiscal year ended March 31, 2013, pursuant to the Act, R.S. 1985, c. C-11, s. 38. —Sessional Paper No. 2/41-269.
ADJOURNMENT
The Honourable Senator Martin moved, seconded by the Honourable Senator Marshall:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 7:13 p.m. the Senate was continued until tomorrow at 1:30 p.m.)
Changes in Membership of Committees Pursuant to Rule 12-5
Standing Senate Committee on Aboriginal Peoples
The Honourable Senator Watt replaced the Honourable Senator Dyck (December 9, 2013).
Standing Committee on Internal Economy, Budgets and Administration
The Honourable Senator Tkachuk replaced the Honourable Senator Greene (December 9, 2013).
Standing Senate Committee on National Security and Defence
The Honourable Senator White replaced the Honourable Senator Stewart Olsen (December 9, 2013).
Standing Senate Committee on Official Languages
The Honourable Senator Rivard replaced the Honourable Senator McIntyre (December 9, 2013).