45 Elizabeth II, A.D. 1996, Canada

Journals of the Senate


Issue 16

Wednesday, May 8, 1996
2:00 p.m.

The Honourable Gildas L. Molgat, Speaker


The Members convened were:

The Honourable Senators

Adams Anderson Angus Atkins Austin Bacon Balfour Beaudoin Berntson Bolduc Bonnell Bosa Bryden Buchanan Carney Carstairs Cochrane Cogger Cohen Comeau Cools Corbin Davey De Bané DeWare Di Nino Doyle Eyton Fairbairn Forrestall Gauthier Ghitter Gigantès Grafstein Graham Grimard Gustafson Haidasz Hays Hébert Hervieux-Payette Jessiman Johnson Kelleher Kenny Keon Kinsella Kirby Kolber Landry Lavoie-Roux Lawson LeBreton Lewis Losier-Cool
Lynch-Staunton MacDonald (Halifax) MacEachen Maheu Marchand Milne Molgat Murray Nolin Oliver Ottenheimer Pearson Perrault Petten Phillips Pitfield Poulin Prud'homme Riel Rivest Rizzuto Roberge Robertson Robichaud Rompkey Rossiter Roux St. Germain Simard Spivak Stanbury Stewart Stollery Stratton Taylor Tkachuk Twinn Watt Wood

PRAYERS.

Tribute was paid to the memory of the Honourable Senator Hastings, whose death occurred on May 5, 1996.

DAILY ROUTINE OF BUSINESS

Presentation of Reports from Standing or Special Committees

The Honourable Senator Stewart tabled the following (Sessional Paper No. 2/35-134S):

WEDNESDAY, May 8, 1996

The Standing Senate Committee on Foreign Affairs has the honour to present its

FIRST REPORT

Your Committee, which was authorized by the Senate to incur expenses for the purpose of its examination and consideration of such legislation and other matters as were referred to it, reports pursuant to Rule 104, that the expenses incurred by the Committee during the First Session of the Thirty-Fifth Parliament are as follows:

1. With respect to its examination and consideration of legislation:

Committee Travel

$990.05

Registration Fees

$200.00

Contract Consulting

$8,000.00

Hospitality

$549.90

Miscellaneous

$2,663.55

Total

$12,403.50

The following expenses, incurred by the Committee, were charged to the budget of the Committees and Private Legislation Directorate:

Witnesses' expenses

$620.07

2. With respect to its special studies a) on Free Trade in the Americas; and b) on relations between Canada and the European Union.

The Committee did not incur expenses in these matters, except those incurred for witnesses expenses charged to the budget of the Committees and Private Legislation Directorate:

Witnesses' expenses

$14,519.55

Your Committee heard from 100 witnesses and held 45 meetings during which it reviewed four (4) Bills (C-4, C-57, C-47 and C-87). It completed a study on free trade in the Americas. The Report was tabled in the Senate in July 1995. It then undertook a study on relations between Canada and the European Union, which Order of Reference was renewed in the present Session. In all, your Committee issued eight reports in relation to its work.

Respectfully submitted,

JOHN B. STEWART
Chairman

The Honourable Senator Bacon, Chair of the Standing Senate Committee on Transport and Communications, presented its second report (Bill C-14, An Act to continue the National Transportation Agency as the Canadian Transportation Agency, to consolidate and revise the National Transportation Act, 1987, and the Railway Act and to amend or repeal other Acts as a consequence) without amendment.

The Honourable Senator Bacon moved, seconded by the Honourable Senator Wood, that the Bill be placed on the Orders of the Day for a third reading at the next sitting.

The question being put on the motion, it was adopted.

The Honourable Senator DeWare presented the following:

Wednesday, May 8, 1996.

The Standing Senate Committee on Social Affairs, Science and Technology has the honour to present its

THIRD REPORT

Your Committee, to which was referred the Bill C-18, An Act to establish the Department of Health and to amend and repeal certain Acts, has, in obedience to the Order of Reference of Tuesday, April 30, 1996, examined the said Bill and now reports the same without amendment, but with the following recommendation:

That, once the duties and responsibilities of the former Department of Health and Welfare have been fully reassigned to the Department of Health and the Department of Human Resources Development, there be continuous and substantial interaction between the two Departments as a matter of basic principle, given the affinity of the matters under their respective jurisdictions.

Respectfully submitted,

MABEL M. DeWARE
Chairman

The Honourable Senator Corbin moved, seconded by the Honourable Senator Rizzuto, that the Bill be placed on the Orders of the Day for a third reading at the next sitting.

The question being put on the motion, it was adopted.

ANSWERS TO WRITTEN QUESTIONS

Pursuant to Rule 25(2), the Honourable Senator Graham tabled the following:

Reply to Question No. 3, dated March 19, 1996, appearing on the Order Paper in the name of the Honourable Senator Kenny, respecting the Department of Transport.-Sessional Paper No. 2/35-135S.

Reply to Question No. 17, dated March 19, 1996, appearing on the Order Paper in the name of the Honourable Senator Kenny, respecting the Department of Natural Resources.-Sessional Paper No. 2/35-136S.

Reply to Question No. 22, dated March 19, 1996, appearing on the Order Paper in the name of the Honourable Senator Kenny, respecting the Department of National Revenue.-Sessional Paper No. 2/35-137S.

Reply to Question No. 27, dated March 19, 1996, appearing on the Order Paper in the name of the Honourable Senator Kenny, respecting the Department of Finance.-Sessional Paper No. 2/35-138S.

ORDERS OF THE DAY

GOVERNMENT BUSINESS

Bills

Resuming debate on the motion of the Honourable Senator Graham, seconded by the Honourable Senator MacEachen, P.C., for the third reading of Bill C-3, An Act to amend the Canada Labour Code (nuclear undertakings) and to make a related amendment to another Act;

And on the motion in amendment of the Honourable Senator Cohen, seconded by the Honourable Senator Lavoie-Roux, that the Bill be not now read the third time, but that it be referred back to the Standing Senate Committee on Social Affairs, Science and Technology for further study.

After debate,

The question being put on the motion in amendment, it was adopted.

Third reading of Bill C-16, An Act to amend the Contraventions Act and to make consequential amendments to other Acts.

The Honourable Senator Losier-Cool moved, seconded by the Honourable Senator Poulin, that the Bill be read the third time.

The question being put on the motion, it was adopted.

The Bill was then read the third time and passed.

Ordered, That a Message be sent to the House of Commons to acquaint that House that the Senate have passed this Bill, without amendment.

The Order was called for the second reading of Bill C-28, An Act respecting certain agreements concerning the redevelopment and operation of Terminals 1 and 2 at Lester B. Pearson International Airport.

SPEAKER'S RULING

Last Tuesday, April 30, when Senator Kirby rose to move second reading of Bill C-28, the Leader of the Opposition intervened on a point of order to argue against proceeding further with this bill. Following the remarks of Senator Lynch-Staunton, there were several statements and exchanges by Senator Stanbury, Senator Stewart, Senator Nolin, Senator Graham, Senator Cools and Senator Berntson. I wish to thank all Honourable Senators for their participation in the discussion on this point of order. I believe this question to be very important as it touches upon the rights and powers of Parliament and the role of the Speaker to maintain order in the Senate's proceedings.

As I understand it, Senator Lynch-Staunton claimed that the Senate ought not to consider this bill for a number of reasons. The principal objection seemed to be the fact that the subject matter of the bill is now before the courts. Unlike the circumstances surrounding the consideration of Bill C-22 in the last Parliament, he noted that there are now two court judgments confirming the legality of the Pearson International Airport Agreement and permitting certain parties to sue the Government for breech of contract. In addition, as he pointed out, the trial for damages is currently before the courts. Were consideration of Bill C-28 to proceed and were the bill to pass, according to Senator Lynch-Staunton, it would have the effect of nullifying valid court judgments. He further maintained that he could find no precedent to support such a "gross violation of the independence of the judiciary and a gross interference in a judicial proceeding already underway."

I have reflected on this point of order over the past few days. I have also reviewed the authorities and I am now prepared to rule. Let me begin by noting that I understand why the Leader of the Opposition would claim that the circumstances associated with the consideration of Bill C-28 are different from those related to Bill C-22 when it was before the Senate in the last session. After an extensive inquiry, a Special Senate Committee has reported on the Pearson International Airport Agreements and, as Senator Lynch-Staunton has emphasized, the courts have rendered some judgments. These different circumstances may be material to the consideration of Bill C-28, but the question remains whether they are within the scope of my authority as Speaker of the Senate. Do they, in fact, involve procedures of the Senate over which I have some jurisdiction? As Beauchesne explains at citation 317(2) on page 96 "A question of order concerns the interpretation to be put upon the rules of procedure..."

The Leader of the Opposition asserts that this question is not one of law, but one of procedure. He has asked me to use the authority of the Chair to halt proceedings on a bill firstly because this bill annuls two court judgments and secondly because a trial resulting from the judgments is in progress.

To allow the bill to go forward, he argued, would be to jeopardize the independence of the courts. To have me consider such a claim, let alone possibly oblige me to determine whether it is true or not, would involve the Chair ipso facto in constitutional and legal matters. As Speaker, I have no authority or right to look into such questions. The Canadian parliamentary authority, Beauchesne, is quite categorical on this. Citation 324 at page 97 of the sixth edition states that "The Speaker will not give a decision upon a constitutional question nor decide a question of law, though the same may be raised on a point of order or privilege." Bourinot's Parliamentary Procedure and Practice (4th edition, 1916) also supports this position and cites several cases from both the Canadian and British Parliaments.

With respect to the issue of the trial now in progress, again I have no authority to intervene. While the actual term sub judice convention was not brought up during debate on the point of order, it directly relates to this objection. This convention is a voluntary restraint on debate observed by the House to avoid references to matters before the courts. In addition, the sub judice convention is intended to keep Members from making a court matter the subject of a motion or a question to a Minister. Its possible application in this case, however, is doubtful for two reasons. First, the dispute in question in this case is civil rather than criminal. Being a civil case, the application of the sub judice convention based on Canadian precedents is less clear or certain and, in doubtful cases, it may be preferable to allow debate. Second, and more importantly, the sub judice convention cannot be applied to limit or impede the right of Parliament to legislate. Beauchesne and Erskine May are quite explicit on this last point. Beauchesne at citation 508(3), on page 153, summarizes the matter this way: "The convention applies to motions, references in debates, questions and supplementary questions, but does not apply to bills."

For these reasons, I cannot find for the point of order raised by the Leader of the Opposition. Whatever the merits of the case he presented, they are matters for debate and for the consideration of all Senators. They are not issues that I can rule on as Speaker of this House.

Whereupon the Speaker's Ruling was appealed.

The question being put on whether the Speaker's Ruling shall be sustained, it was adopted on the following division:

YEAS

The Honourable Senators

Adams Anderson Austin Bacon Bonnell Bosa Bryden Carstairs Cools Corbin Davey De Bané Fairbairn Gauthier Gigantès Grafstein Graham Haidasz Hays Hébert Hervieux-Payette Kenny Kirby Landry Lawson Lewis Losier-Cool MacEachen Maheu Marchand Milne Pearson Perrault Petten Pitfield Poulin Riel Rizzuto Robichaud Rompkey Roux Stanbury Stewart Taylor Watt Wood-46

NAYS

The Honourable Senators

Angus Atkins Balfour Beaudoin Berntson Bolduc Buchanan Carney Cochrane Cogger Cohen Comeau DeWare Di Nino Doyle Eyton Forrestall Ghitter Grimard Gustafson Jessiman Johnson Kelleher Keon Kinsella Lavoie-Roux LeBreton Lynch-Staunton MacDonald (Halifax) Murray Nolin Oliver Phillips Rivest Roberge Robertson Rossiter Simard Spivak St. Germain Stratton Tkachuk Twinn-43

ABSTENTIONS

The Honourable Senators

Nil

A Point of Order was raised as to the receivability of Bill C-28.

After debate,

The Speaker reserved his decision.

Motions

The Order to resume the debate on the motion of the Honourable Senator Bacon was called and postponed until the next sitting.

OTHER BUSINESS

Senate Public Bills

Orders No. 1 and 2 were called and postponed until the next sitting.

Commons Public Bills

Second reading of Bill C-275, An Act establishing the Canadian Association of Former Parliamentarians.

The Honourable Senator Maheu moved, seconded by the Honourable Senator Gigantès, that the Bill be read the second time.

After debate,

The Honourable Senator Kinsella moved, seconded by the Honourable Senator Doyle, that further debate on the motion be adjourned until the next sitting.

The question being put on the motion, it was adopted.

Private Bills

Second reading of Bill S-7, An Act to dissolve the Nipissing and James Bay Railway Company.

The Honourable Senator Kelleher, P.C., moved, seconded by the Honourable Senator Twinn, that the Bill be read the second time.

After debate,

The question being put on the motion, it was adopted.

The Bill was then read the second time.

The Honourable Senator Kelleher, P.C., moved, seconded by the Honourable Senator Twinn, that the Bill be referred to the Standing Senate Committee on Transport and Communications.

The question being put on the motion, it was adopted.

Reports of Committees

Orders No. 1 and 2 were called and postponed until the next sitting.

Other

Order No. 5 (inquiry) was called and postponed until the next sitting.

Resuming debate on the inquiry of the Honourable Senator Murray, P.C., calling the attention of the Senate to the state of the coal mining industry in Cape Breton and the policy of the Cape Breton Development Corporation in relation thereto.

Debate concluded.

Orders No. 3 and 2 (inquiries) were called and postponed until the next sitting.

REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):

Report of VIA Rail Canada Inc., including its accounts and financial statements certified by the Auditor General, for the year ended December 31, 1995, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, s. 150(1).-Sessional Paper No. 2/35-128.

Report of Marine Atlantic Inc., including its accounts and financial statements certified by the auditors, for the year ended December 31, 1995, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, s. 150(1).-Sessional Paper No. 2/35-129.

Report of the Canada Mortgage and Housing Corporation, including its accounts and financial statements certified by the auditors, for the year ended December 31, 1995, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, s. 150(1).-Sessional Paper No. 2/35-130.

Report of the Canadian International Trade Tribunal entitled: "Request for Tariff Relief by Peerless Clothing Inc. regarding dyed woven fabrics of rayon", dated April 12, 1996, pursuant to the Canada-United States Free Trade Agreement Implementation Act, 1988, c. 65, sbs. 21(2).-Sessional Paper no. 2/35-131.

Report of the Auditor General to the House of Commons, Volume I, dated May 1996, pursuant to the Auditor General Act, R.S.C. 1985, c. A-17, s. 7(1).-Sessional Paper no. 2/35-132.

Report of the Chief Electoral Officer required by the Privacy Act for the period ended March 31, 1996, pursuant to the Act, R.S.C. 1985, c. P-21, s. 72(2).-Sessional Paper No. 2/35-133.

ADJOURNMENT

The Honourable Senator Graham moved, seconded by the Honourable Senator Landry:

That the Senate do now adjourn.

The question being put on the motion, it was adopted.

_______________________________

Changes in Membership of Committees Pursuant to Rule 85(4)

Standing Senate Committee on Social Affairs, Science and Technology

The name of the Honourable Senator Bosa substituted for that of the Honourable Senator Lewis (May 6).

Standing Senate Committee on Transport and Communications

The names of the Honourable Senators Davey and Milne substituted for those of the Honourable Senators Maheu and Perrault (May 7).

Special Committee of the Senate on the Cape Breton Development Corporation

The name of the Honourable Senator Bonnell substituted for that of the Honourable Senator De Bané (May 7).

The name of the Honourable Senator De Bané substituted for that of the Honourable Senator Bonnell (May 8).