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48 Elizabeth II, A.D. 1999, Canada

Journals of the Senate


Issue 120

Tuesday, March 16, 1999
2:00 p.m.

The Honourable Gildas L. Molgat, Speaker


The Members convened were:

The Honourable Senators

Adams, Andreychuk, Angus, Austin, Balfour, Beaudoin, Bolduc, Bryden, Buchanan, Butts, Callbeck, Carstairs, Chalifoux, Cohen, Comeau, Cook, Cools, Corbin, De Bané, DeWare, Di Nino, Fairbairn, Ferretti Barth, Fitzpatrick, Forrestall, Fraser, Gauthier, Gill, Grafstein, Graham, Grimard, Gustafson, Hervieux-Payette, Johnstone, Joyal, Kelleher, Kenny, Kinsella, Kroft, Lavoie-Roux, Lawson, Lewis, Lynch-Staunton, Maheu, Maloney, Meighen, Mercier, Milne, Molgat, Murray, Nolin, Oliver, Pearson, Pépin, Perrault, Phillips, Pitfield, Poulin (Charette), Poy, Roberge, Robichaud , (L'Acadie-Acadia), Robichaud , (Saint-Louis-de-Kent), Roche, Rompkey, Rossiter, Ruck, St. Germain, Simard, Spivak, Stewart, Stollery, Stratton, Taylor, Tkachuk, Watt, Whelan, Wilson

The Members in attendance to business were:

The Honourable Senators

Adams, Andreychuk, Angus, Austin, Balfour, Beaudoin, Bolduc, Bryden, Buchanan, Butts, Callbeck, Carstairs, Chalifoux, Cohen, Comeau, Cook, Cools, Corbin, De Bané, DeWare, Di Nino, Fairbairn, Ferretti Barth, Fitzpatrick, Forrestall, Fraser, Gauthier, Gill, Grafstein, Graham, Grimard, Gustafson, Hervieux-Payette, Johnstone, Joyal, Kelleher, Kenny, Kinsella, *Kirby, Kroft, Lavoie-Roux, Lawson, Lewis, *Losier-Cool, Lynch-Staunton, Maheu, Maloney, Meighen, Mercier, Milne, Molgat, Murray, Nolin, Oliver, Pearson, Pépin, Perrault, Phillips, Pitfield, Poulin (Charette), Poy, Roberge, Robichaud , (L'Acadie-Acadia), Robichaud , (Saint-Louis-de-Kent), Roche, Rompkey, Rossiter, Ruck, St. Germain, Simard, Spivak, Stewart, Stollery, Stratton, Taylor, Tkachuk, Watt, Whelan, Wilson,

PRAYERS

SENATORS' STATEMENTS

Some Honourable Senators made statements.

DAILY ROUTINE OF BUSINESS

Government Notices of Motions

With leave of the Senate, The Honourable Senator Carstairs moved, seconded by the Honourable Senator Grafstein:

That when the Senate adjourns today, it do stand adjourned until tomorrow, Wednesday, March 17, 1999 , at 1:30 p.m.

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

Introduction and First Reading of Government Bills

A Message was brought from the House of Commons with a Bill C-61, An Act to amend the War Veterans Allowance Act, the Pension Act, the Merchant Navy Veteran and Civilian War-related Benefits Act, the Department of Veterans Affairs Act, the Veterans Review and Appeal Board Act and the Halifax Relief Commission Pension Continuation Act and to amend certain other Acts in consequence thereof, to which they desire the concurrence of the Senate.

The Bill was read the first time.

The Honourable Senator Carstairs moved, seconded by the Honourable Senator Austin, P.C., that the Bill be placed on the Orders of the Day for a second reading on Thursday next, March 18, 1999.

The question being put on the motion, it was adopted. A Message was brought from the House of Commons with a Bill C-55, An Act respecting advertising services supplied by foreign periodical publishers, to which they desire the concurrence of the Senate.

The Bill was read the first time.

The Honourable Senator Carstairs moved, seconded by the Honourable Senator Maheu, that the Bill be placed on the Orders of the Day for a second reading on Thursday next, March 18, 1999.

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

With leave, The Senate reverted to Presentation of Reports From Standing or Special Committees. The Honourable Senator Stratton, Chair of the Standing Senate Committee on National Finance, presented its Tenth Report (Supplementary Estimates (C) 1998-99).

Ordered, That the Report be printed as an Appendix to the Journals of the Senate of this day and form part of the permanent records of this House.

(See Appendix "A")

The Honourable Senator Stratton moved, seconded by the Honourable Senator DeWare, 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 Stratton, Chair of the Standing Senate Committee on National Finance, presented its Eleventh Report (Main Estimates 1998-99).

Ordered, That the Report be printed as an Appendix to the Journals of the Senate of this day and form part of the permanent records of this House.

(See Appendix "B")

The Honourable Senator Stratton moved, seconded by the Honourable Senator Kinsella, 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.

Introduction and First Reading of Senate Public Bills

The Honourable Senator Lynch-Staunton presented a Bill S-27, An Act to amend the Canada Elections Act (hours of polling at by-elections).

The Bill was read the first time.

The Honourable Senator Lynch-Staunton moved, seconded by the Honourable Senator Kinsella, that the Bill be placed on the Orders of the Day for a second reading on Wednesday, March 24, 1999.

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

ORDERS OF THE DAY

GOVERNMENT BUSINESS

Bills

Third reading of Bill S-23, An Act to amend the Carriage by Air Act to give effect to a Protocol to amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air and to give effect to the Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier.

The Honourable Senator De Bané, P.C., moved, seconded by the Honourable Senator Robichaud, P.C. (Saint-Louis-de-Kent) , that the Bill be read the third time.

After debate, 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 to which they desire their concurrence. Second reading of Bill C-65, An Act to amend the Federal-Provincial Fiscal Arrangements Act.

The Honourable Senator De Bané, P.C., moved, seconded by the Honourable Senator Chalifoux, 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 Carstairs moved, seconded by the Honourable Senator Fairbairn, P.C., that the Bill be referred to the Standing Senate Committee on National Finance.

The question being put on the motion, it was adopted. Second reading of Bill C-49, An Act providing for the ratification and the bringing into effect of the Framework Agreement on First Nation Land Management.

The Honourable Senator Chalifoux moved, seconded by the Honourable Senator Maloney, that the Bill be read the second time.

After debate, The Honourable Senator Kinsella for the Honourable Senator Ghitter moved, seconded by the Honourable Senator Stratton, 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 of Bill S-26, An Act respecting the declaration of royal assent by the Governor General in the Queen's name to bills passed by the Houses of Parliament.

The Honourable Senator Lynch-Staunton moved, seconded by the Honourable Senator Bolduc, that the Bill be read the second time.

A Point of Order was raised as to the acceptability of the Bill.

Debate.

SPEAKER'S RULING

Honourable senators will not be surprised that I had anticipated that a question might be raised. As soon as I saw the bill coming back on the Order Paper, I myself wondered whether or not it was in order. I consulted the rules, and our own rule 63(1) is very clear. It states:
...has been resolved in the affirmative or negative...
That has not happened, of course. What has happened is that the bill was withdrawn.

I then consulted Erskine May, which states clearly:

...but if a bill is withdrawn after having made progress, another bill with the same objects may be proceeded with.
Based on that, the bill was withdrawn with leave of the Senate. It was not proceeded with. I rule that the bill is in order. The Senate proceeded to the debate on the motion of the Honourable Senator Lynch-Staunton, seconded by the Honourable Senator Bolduc, for the second reading of Bill S-26, An Act respecting the declaration of royal assent by the Governor General in the Queen's name to bills passed by the Houses of Parliament.

After debate, The Honourable Senator Grafstein moved, seconded by the Honourable Senator Callbeck, that further debate on the motion be adjourned until the next sitting.

The question being put on the motion, it was adopted. Orders No. 2 and 3 were called and postponed until the next sitting.

Commons Public Bills

Third reading of Bill C-208, An Act to amend the Access to Information Act.

The Honourable Senator Maheu moved, seconded by the Honourable Senator Kenny, 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.

Reports of Committees

Orders No. 1 to 4 were called and postponed until the next sitting. Resuming debate on the consideration of the First Report (Interim) of the Special Committee of the Senate on Transportation Safety and Security, deposited with the Clerk of the Senate on January 28, 1999.

Debate concluded. Orders No. 6 to 9 were called and postponed until the next sitting.

Other

Resuming debate on the inquiry of the Honourable Senator Lynch-Staunton calling the attention of the Senate to the Budget presented by the Minister of Finance in the House of Commons on February 16, 1999.

After debate, The Honourable Senator Carstairs for the Honourable Senator Graham, P.C., moved, seconded by the Honourable Senator Fairbairn, P.C., that further debate on the inquiry be adjourned until the next sitting.

The question being put on the motion, it was adopted. Orders No. 47 and 65 (inquiries) were called and postponed until the next sitting. Motion by the Honourable Senator Roche, seconded by the Honourable Senator Keon:

That, whereas the proliferation of nuclear weapons poses a real and ongoing threat to global security, and recognizing the strong conclusions of the Standing Committee on Foreign Affairs and International Trade in their study, "Canada and the Nuclear Challenge", the Senate of Canada fully supports the disarmament and non-proliferation objectives of the Report, and urges the Government of Canada to carefully consider its recommendations when preparing its response.

SPEAKER'S RULING

On Thursday, March 11, just as Senator Roche was about to speak on his motion, Senator Kinsella rose on a point of order to question the procedural acceptability of a motion that endorses a report of the House of Commons of which the Senate has no direct knowledge. The motion of Senator Roche seeks to have the Senate support the disarmament and non-proliferation objectives of the report of the Commons Standing Committee on Foreign Affairs and International Trade respecting nuclear policy.

In making his case, Senator Kinsella asked whether it was proper given the independence and autonomy of the two Houses for the Senate to debate a report from the other place that has not been formally communicated to it. At the same time, the Senator made it clear that he was not challenging the right of the Senator Roche to present a motion supporting disarmament.

Several other Senators participated in the discussion to suggest that the motion of Senator Roche could be amended to avoid this apparent procedural obstacle. More than once, Senator Roche indicated that he was prepared to make whatever changes might be necessary so that his motion would be procedurally acceptable. Indeed, following the suggestion of Senator Stewart, he proposed a revised version of his motion that eliminated any direct reference to the Commons report.

At this stage, I asked Senator Kinsella if he might be prepared to withdraw his point of order. Though the Senator explained that he did not want to impede the work of the Senate, he felt a need to proceed with the point of order. Senator Kinsella went on to state his conviction that the rules are the best defence of the minority and this case was sufficiently important to merit a formal decision from the Chair.

Let me begin by thanking all the Senators who joined in the discussion on this point of order. As always, I find it helpful in highlighting this issue.

The practice of avoiding any reference to the proceedings of the other place in debate is an old and well-established restraint going back many years. Indeed, almost twenty-five years ago, this prohibition was formally incorporated into the Rules of the Senate. In 1975, the Senate adopted what is now rule 46. This rule stipulates that "the content of a speech made in the House of Commons in the current session may be summarised, but it is out of order to quote from such a speech unless it is a speech of a Minister of the Crown in relation to government policy." Though it was not explicitly acknowledged at the time, it appears that the language of the rule was based on the relevant text of the British parliamentary authority, Erskine May that has been part of that venerable book through many editions.

In this connection, the Senate may be interested in knowing that the present Select Committee on Modernisation in the British House of Commons has recommended that this long-standing prohibition be abandoned. In its fourth report presented in March of last year, the committee noted that "the rule is often difficult for the chair to enforce, since it is not always easy immediately to be certain that the Member is quoting rather than summarising, that the Peer in question is not a member of the Government, and that the debate quoted from took place in the current session. By the time the facts have been established, it is generally too late." Accordingly, the Modernisation Committee recommended "that the rule banning direct quotation from speeches made in the House of Lords in the current session should be abolished." Reviewing the debate on our Senate rule in 1975, similar problems were acknowledged at the time by Senator Argue and Senator Flynn even though the rule was subsequently adopted by the Senate. Perhaps this is a matter which the Committee on Privileges, Standing Rules and Orders might want to consider at some point.

This practice of forbidding the use of direct citations from the debates of the House of Commons, euphemistically identified as "the other place" was originally intended to prevent, according to Erskine May, fruitless arguments between Members of two distinct bodies who are unable to reply to each other, and to guard against recrimination and offensive language in the absence of the other party.

However, Erskine May and the Canadian parliamentary authority, Bourinot, have always recognised some exceptions to this rule of debate. All four editions of Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, dating from 1884 to 1916, note the exception in the same language. "It is perfectly regular, however, to refer to the official printed records of the other branch of the legislature, even though the document may not have been formally asked for and communicated to the house." For many years, Erskine May has been explicit in noting that these official records include not just the Journals of either House, but also committee reports. Even though reports from the other House may not have been communicated to the Chamber, practice has allowed for references to be made to them in the course of debate.

As far as I see it, that which can be debated can legitimately be the object of a motion. Once it is part of a motion, it is up to the Senate to adopt, to amend or to reject it. That is the core of the process of debate.

I rule, therefore, that the motion of Senator Roche can proceed. The Senate proceeded to the motion of the Honourable Senator Roche, seconded by the Honourable Senator Keon:

That, whereas the proliferation of nuclear weapons poses a real and ongoing threat to global security, and recognizing the strong conclusions of the Standing Committee on Foreign Affairs and International Trade in their study, "Canada and the Nuclear Challenge", the Senate of Canada fully supports the disarmament and non-proliferation objectives of the Report, and urges the Government of Canada to carefully consider its recommendations when preparing its response.

After debate, With leave of the Senate and pursuant to Rule 30, the motion was withdrawn.

Order No. 64 (inquiry) was called and postponed until the next sitting. Resuming debate on the inquiry of the Honourable Senator Simard calling the attention of the Senate to the current situation with regard to the application of the Official Languages Act, its progressive deterioration, the abdication of responsibility by a succession of governments over the past ten years and the loss of access to services in French for francophones outside Quebec.

After debate, The Honourable Senator Kinsella moved, seconded by the Honourable Senator DeWare, that further debate on the inquiry be adjourned until the next sitting.

The question being put on the motion, it was adopted. Orders No. 49, 63, 44, 58 (inquiries), 1 (motion), 59 and 46 (inquiries) were called and postponed until the next sitting. Resuming debate on the inquiry of the Honourable Senator Losier-Cool, calling the attention of the Senate to population, education and health, particularly for young girls and women in many developing countries.

After debate, The Honourable Senator Carstairs for the Honourable Senator Callbeck moved, seconded by the Honourable Senator Fairbairn, P.C., that further debate on the inquiry be adjourned until the next sitting.

The question being put on the motion, it was adopted. Orders No. 118, 45 (motions), 50 and 51 (inquiries) were called and postponed until the next sitting.

MOTIONS

The Honourable Senator Taylor moved, seconded by the Honourable Senator Butts:

That notwithstanding the Order of the Senate adopted on October 23, 1997, the Standing Senate Committee on Energy, the Environment and Natural Resources, in accordance with Rule 86(1)(p), which was authorized to examine such issues as may arise from time to time relating to energy, the environment and natural resources generally, in Canada, be empowered to present its final report no later than March 31, 2000.

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

ADJOURNMENT

The Honourable Senator Carstairs moved, seconded by the Honourable Senator Stollery:

That the Senate do now adjourn.

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