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50 Elizabeth II, A.D. 2001, Canada

Journals of the Senate

1st Session, 37th Parliament


Issue 8

Wednesday, February 21, 2001
2:00 p.m.

The Honourable Daniel Hays, Speaker


The Members convened were:

The Honourable Senators

Adams, Andreychuk, Angus, Austin, Bacon, Banks, Beaudoin, Bolduc, Bryden, Buchanan, Callbeck, Carstairs, Chalifoux, Christensen, Cochrane, Cohen, Comeau, Cook, Cools, Corbin, Cordy, De Bané, DeWare, Doody, Eyton, Fairbairn, Ferretti Barth, Finestone, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Gustafson, Hays, Hervieux-Payette, Johnson, Joyal, Kelleher, Keon, Kinsella, Kirby, Kolber, Kroft, LeBreton, Lynch-Staunton, Maheu, Mahovlich, Meighen, Mercier, Milne, Molgat, Moore, Murray, Oliver, Pearson, Pépin, Pitfield, Poulin (Charette), Poy, Prud'homme, Rivest, Robertson, Robichaud, Rossiter, Setlakwe, Sibbeston, Simard, Sparrow, Spivak, St. Germain, Stollery, Stratton, Taylor, Tkachuk, Watt, Wiebe, Wilson

The Members in attendance to business were:

The Honourable Senators

Adams, Andreychuk, Angus, Austin, Bacon, Banks, Beaudoin, Bolduc, Bryden, Buchanan, Callbeck, Carstairs, Chalifoux, Christensen, Cochrane, Cohen, Comeau, Cook, Cools, Corbin, Cordy, De Bané, DeWare, Doody, Eyton, Fairbairn, Ferretti Barth, Finestone, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Gustafson, Hays, Hervieux-Payette, Johnson, Joyal, Kelleher, *Kenny, Keon, Kinsella, Kirby, Kolber, Kroft, LeBreton, Lynch-Staunton, Maheu, Mahovlich, Meighen, Mercier, Milne, Molgat, Moore, Murray, *Nolin, Oliver, Pearson, Pépin, Pitfield, Poulin (Charette), Poy, Prud'homme, Rivest, Robertson, Robichaud, *Rompkey, Rossiter, Setlakwe, Sibbeston, Simard, Sparrow, Spivak, St. Germain, Stollery, Stratton, Taylor, Tkachuk, Watt, Wiebe, Wilson

PRAYERS

 

SENATORS' STATEMENTS

Some Honourable Senators made statements.

 

DAILY ROUTINE OF BUSINESS

Introduction and First Reading of Senate Public Bills

The Honourable Senator Kirby presented a Bill S-19, An Act to amend the Canada Transportation Act.

The Bill was read the first time.

The Honourable Senator Kirby moved, seconded by the Honourable Senator Callbeck, 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.

 

Tabling of Reports from Inter-Parliamentary Delegations.

The Honourable Senator De Bané, P.C., tabled the following:

Report of the Canadian Branch of the Assemblée parlementaire de la francophonie, respecting its participation at the APF Bureau meeting, held in Caen, France, from December 13 to 15, 2000.-Sessional Paper No. 1/37-80.

The Honourable Senator Kinsella tabled the following:

Report of the Delegation of the Canada-Japan Inter-Parliamentary Group respecting its participation at the Ninth Annual Meeting of the Asia-Pacific Parliamentary Forum, held in Valparaiso, Chile, from January 14 to 19, 2001.-Sessional Paper No. 1/37-81.

 

SPEAKER'S RULING

On February 6, Senator St. Germain filed a notice with the Clerk of the Senate of his intention to raise a question of privilege. This notification came within hours of my receiving a letter from Mr. Day, M.P., Leader of the Canadian Alliance and Leader of the Opposition in the House of Commons, advising me that he had nominated Senator St. Germain, the only Senate member of the party, to be the Leader of the Opposition in the Senate. For the information of Honourable Senators, I sent a reply to Mr. Day the same morning explaining how I thought the matter might be treated in the Senate.

At the appropriate time during the Routine of Business, Senator St. Germain provided the required oral notice and, at the conclusion of the Orders of the Day, he presented his case. In summary, the breach of privilege alleged by Senator St. Germain, as I understand it, is that he is entitled to the position and rank of the Leader of the Opposition. A failure to recognize his claim to this position, he argued, is a denial of precedent and tradition. It also constitutes a breach of privilege because it prevents him from fulfilling all of his duties.

The substance of the presentation made by Senator St. Germain involves a complex set of issues. The Senator began with an acknowledgement that the current situation is "so new and unusual that it begs for resolution." It is his contention that no Senate precedent exists to guide this House to properly identify the Leader of the Opposition. Senator St. Germain then made reference to rule 1 of the Rules of the Senate that sanctions recourse to the practices of other Parliaments in all unprovided cases. Senator St. Germain then cited the British House of Lords and the Australian Senate as sources for guiding precedents. According to the Senator, the practice in both Parliaments would appear to be that the political leadership in the Lower House is mirrored in the Upper House. That is to say, there is a direct correlation in the recognized leadership of the Official Opposition in the Upper House with that of the Lower House. Indeed, evidence would suggest that they are almost always of the same party affiliation, notwithstanding the relative numerical strength of party membership in the Upper House.

Following this review of practices in the United Kingdom and Australia, Senator St. Germain continued with an assessment of what occurred here in the Senate in 1994. At the outset of the 35th Parliament, the party representing the Official Opposition in the House of Commons, the Bloc Québécois, had no membership in the Senate. The Opposition in the Senate was provided by the Progressive Conservative Party. In the view of the Senator, this outcome has no real bearing on the merits of the case he is making with respect to his alleged question of privilege and is not relevant as a precedent.

Finally, Senator St. Germain argued for the need to recognize, as he put it, the "changing nature of Canada's political landscape." He urged the Senate to accept this reality, whatever the outcome of the ruling in this case. He also proposed that I as Speaker give "some strong direction regarding the resolution of this matter." In closing, the Senator made additional references to the statutory authority of the Speaker of the British House of Commons to determine the Official Opposition when the question is in dispute. He then cited the example of the decision by Speaker Parent in the "other place" in 1996 to maintain the status of the Bloc as the Official Opposition on the basis of incumbency in view of the numerical equality between that party and the Reform Party. Before taking his seat, Senator St. Germain made mention of a document that he had already tabled explaining in greater detail the precedents he had noted in his presentation.

By way of rebuttal, Senator Robichaud, the Deputy Leader of the Government, contended that no prima facie case had been made to support the allegation of a breach of privilege by Senator St. Germain. The Deputy Leader of the Government denied the Senator's claim to the title of Leader of the Opposition based exclusively on the status of the Canadian Alliance as the Official Opposition in the House of Commons. Senator Robichaud went on to refute the notion that the failure to recognize Senator St. Germain as Leader of the Opposition impairs his ability to function as a Senator and is therefore a breach of parliamentary privilege.

In explaining his position, Senator Robichaud noted that Senator St. Germain's ability to participate in various activities - moving motions or amendments, soliciting information in Question Period, speaking during Senators' Statements, and attending committee meetings - is the same as that of any other Senator. Senator Robichaud went on to state that Senator St. Germain enjoys the benefits of office space, a global budget and access to parliamentary documents and a research fund just like any other Senator.

With respect to the issue of who recognizes the position of Leader of the Opposition as defined in rule 4(d)(i), the Deputy Leader explained that it is the Senate itself that determines the meaning of its own rules. After acknowledging what he described as a longstanding practice to recognize, as the Opposition, the party of the greatest number that is not the Government, Senator Robichaud agreed that it was perhaps time to review the Senate's internal organization and the manner in which parties are recognized. The Senator concluded his intervention by suggesting that the Standing Committee on Privileges, Standing Rules and Orders study this question.

Senator Prud'homme then spoke to the question of the alleged breach of privilege. He proposed that I, as Speaker, take the necessary time to review this important question carefully. I want all Honourable Senators to know that I have taken this advice seriously. I believe that the issue raised in the question of privilege of Senator St. Germain is very important. In the days since it was first brought up, I have reviewed closely the arguments presented as well as the document that was tabled. I have also studied the relevant precedents of our Parliament as well as those of other Westminster-style Parliaments. I am now prepared to give my decision.

In making my ruling, I want to address three inter-related issues: the question of privilege raised by Senator St. Germain; the role of the Speaker of the Senate in deciding certain questions; and thirdly, possible methods to determine the Leader of the Opposition.

Let me begin with the question of privilege claimed by Senator St. Germain. Rule 43(1) reminds us that "the preservation of the privileges of the Senate is the duty of every Senator. A violation of the privileges of any one Senator affects those of all Senators and the ability of the Senate to carry out its functions ..." The struggle of Parliament with the Crown for the recognition of its privileges several centuries ago is in fact the history of the rise of parliamentary government and democracy in Great Britain. This history is also a proud part of our Canadian constitutional heritage. The underlying principles of privilege established so long ago still remain important today, although the application of these privileges continues to evolve.

According to the British parliamentary authority, Erskine May, "Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively ... and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals." The foremost privileges that are exercised by the House collectively are the power to punish for contempt and the power to regulate internal proceedings as a body. Pre-eminent among the rights enjoyed by Members is freedom of speech. Other rights enjoyed by Members individually include freedom from arrest, hindrance or molestation. These latter privileges remain important, in the words of Erskine May, "as a means to the effective discharge of the collective functions of the House ..."

Whether or not a Senator is acknowledged as Leader of the Opposition does not fall within the traditional privileges enjoyed by individual members or even the privileges exercised by the Senate as a whole. It is, therefore, difficult for me to see how the matter of any Senator's recognition in the position of Leader of the Opposition could constitute a question of privilege. This view is supported by Joseph Maingot in his book on Parliamentary Privilege in Canada. At page 224 of the second edition, he notes that parliamentary privilege applies to members in their capacity as members, not in their capacity as ministers, party leaders, parliamentary secretaries or whips. Accordingly, it is my ruling that no prima facie case of a breach of privilege has been established in this case.

There may well be instances, however, where the status of the Leader of the Opposition can give rise to points of order. For example, the Rules provide that in most instances, the Leader of the Government and the Leader of the Opposition will be granted unlimited time for debate. An attempt to limit that right could lead to a point of order that could be the subject of a Speaker's ruling. It must be stressed that the protection of these rights does not involve their recognition as parliamentary privileges over and above the privileges accorded to all parliamentarians. It is also necessary to point out that in such a case, as in all matters relating to the enforcement of the Rules of the Senate, the ruling itself could be the subject of an appeal to the Senate for confirmation or rejection. This is because the Senate retains for itself the exclusive authority to determine its practices even to the extent of passing judgment on decisions of the Speaker. In this regard, the Senate is quite different from many other Parliaments including the United Kingdom and Australia, where the decisions of the Speaker are not subject to appeal.

At this point, I am already well into the second issue that I wished to raise in this ruling - the role of the Speaker of the Senate. That role is, in fact, quite limited. As Speaker, I have an obligation to enforce the Rules to the best of my ability, but the Senate alone has the ultimate authority to determine its practices, not the Speaker. Precedents, therefore, do not have any binding character. They would, of course, influence the assessment of a situation by a Speaker, but they could not bind the Senate. Under our current practices, the Senate is not constrained by any obligation to follow precedent.

In this particular case, I have looked closely at the precedents mentioned by Senator St. Germain which are also explained more fully in the document that he tabled February 6. It is Senator St. Germain's contention that these precedents are useful and provide guidelines that could influence the outcome in this case. The first example that he referred to in his presentation was that of the British Parliament. The Senator makes the case that in Westminster, the opposition leadership in the House of Lords is determined by reference to the political composition of the House of Commons. I think that this is a correct account of how the system operates in the United Kingdom Parliament.

Should there be any doubt in the United Kingdom as to which party should be recognized as the Official Opposition based on parity, the Speaker of the House of Commons is authorized under statute to make a final and conclusive determination. In all other instances, however, the Speaker has no role to play. Under the same law, the Ministerial and other Salaries Act, the Lord Chancellor is given the same authority to determine the Official Opposition in the House of Lords, but this authority must be exercised by way of reference back to the decision made in the House of Commons. These provisions of the Act date back to 1937 and I am unaware of any occasion where the Speaker or the Lord Chancellor had to resort to it; nor did Senator St. Germain indicate that it had ever been used. In any case, it is the view of the Senator that I, as Speaker, can exercise the same authority through the provisions of rule 1. I do not accept this proposition. Moreover, my position appears to be shared by my counterpart in the "other place". In a ruling that was made February 26, 1996 dealing with the status of the Bloc Québécois, Speaker Parent explained that "Unless the House wishes, either in the rules or in legislation, to give the Speaker precise powers and guidelines by which to designate the official opposition, I must state at the outset that I do not feel it is within my power to make such a decision ..." The Speaker went on to acknowledge the status quo incumbency of the Bloc Québécois as the Official Opposition.

In my assessment of the position taken by the Commons Speaker in that instance, this was not a typical ruling at all. In character, it resembled the approach the Speaker would be expected to take in respect of a casting vote which is to keep the question open by opting for the status quo. The Speaker simply recognized the status quo. Speaker Parent acknowledged that he had no authority to alter the status quo and recognize the Reform Party as the Official Opposition. Such a decision, as he explained, "has never been decided on the floor of the House of Commons, and the House has never put in place a procedure for the selection of the official opposition."

Australia was another jurisdiction that Senator St. Germain raised as a possible model. There too, it seems a correlation exists between the identity of the Official Opposition in the Senate and the House of Representatives. In explaining the history of the Australian experience, Senator St. Germain referred to an account that had been secured from the Senate Clerk Assistant of Procedure, Dr. Rosemary Laing, in Canberra. While the experience in Australia has been largely consistent, with the anomalous exception of what occurred in the early 1940's involving different opposition parties that were in a coalition, the practice is regarded as a convention. This convention, however, is not unalterable or inflexible. The Clerk Assistant has provided the Table with some information about the character of this convention. This document, as well as the research paper tabled by Senator St. Germain and my correspondence with Mr. Day, is available in the Clerk's Office. As Dr. Rosemary Laing describes it: "The fact is that while the position of Leader of the Opposition in the Senate has to date been determined by reference to the party in opposition in the lower house, changing circumstances in the future may well lead to a different outcome. If the situation arose in the Senate in which the party constituting the Opposition in the House of Representatives was not also the largest party in the Senate not included in the government, it is highly likely that the right of the leader of such a party to the title of Opposition Leader would be disputed. The issue of which Senator is designated as Opposition Leader is a matter of custom and practice only. If a dispute arose about which party could claim the title, the matter could be resolved only by the Senate itself. Custom and practice (or `precedent') may well not be the determining factor in the resolution."

Senator St. Germain explained that he felt obliged to refer to the examples of the Parliaments of the United Kingdom and Australia because there seemed to be no precedents in our Senate history that address the problem of determining who should be the Leader of the Opposition. This is, no doubt, because there was no difficulty in deciding who should have the title. Until recently, the Senate has been almost exclusively a two-party House with a handful of independents. The two political parties represented in the Senate are the only parties that have ever formed the Government. Thus, there was never a problem in deciding which party formed the Government, and which the Opposition. This may have established a practice, it is not clear that it has established a convention.

Reference to authorities such as E. Russell Hopkins and Robert MacKay suggest that there has been some variation on how the Leader of the Opposition in the Senate has been designated. Although Hopkins indicates at page 17 in an unpublished manuscript in the collection of the Library of Parliament that it was by the decision of the Leader of the Opposition in the House of Commons, MacKay states in his book entitled The Unreformed Senate at page 66 that it was a decision of the Senate opposition party caucus. F. A. Kunz in his work, The Modern Senate of Canada / 1925-1963, at page 85, takes a position that more closely resembles the account provided by MacKay.

In any case, these options were exercised in an era when two parties dominated the political landscape, a landscape which, Senator St. Germain told us, is now changed. In any event, it seems to me that there is precedent to indicate how the Senate will designate its Leader of Opposition. In 1994 and again in 1997, the Leader of the Opposition was chosen by the caucus representing the largest number of Senators not of the Government. The proposition that these examples do not count because there were no representatives from the Bloc Québécois or the Reform Party in the Senate at the time is not altogether persuasive. I say this because these precedents prove that there need not be a corresponding relationship in the political composition of the House of Commons and the Senate. Our parliamentary system continued to function even though the Senate had an Opposition that did not match the Official Opposition in the House of Commons when it was the Bloc or the Reform Party. Parliament is flexible enough to accommodate this possibility. This is because, in large measure, the Senate and the House of Commons are, and remain, independent, autonomous bodies performing roles that are complementary to each other.

Whether the identity of the Opposition in the Senate will change or ought to change at some point in the future is not for me as Speaker to decide unless I should be authorized to make such a decision. As I stated in my response to Mr. Day, I believe that this is a matter to be determined by the Senate itself. With respect to the identity of the Opposition in the current session, let me point out that the Senate has already indicated whom it recognizes. On Thursday, February 8, the Senate adopted, on division, the second report of the Committee of Selection. In addition to identifying the membership of the standing committees, the report also identified the ex officio members, Senator Carstairs or Senator Robichaud for the Government and Senator Lynch-Staunton or Senator Kinsella for the Opposition. For the moment at least, the matter seems to be settled.

I have made an effort to go into the substantive issues raised by Senator St. Germain even though I ruled that no prima facie case of a question of privilege had been established. I did this, not only because the Senator asked me to, but also because I believed it was important to explain what I understand to be the practices related to identification of the Leader of the Opposition. In view of the current circumstances, I am satisfied that the Office of the Clerk has dealt with this issue appropriately. It may be that I have not answered all the interesting and important questions raised by Senator St. Germain. Should this be the case, it might be useful, as was suggested, to have the status of opposition parties studied by the Standing Committee on Privileges, Standing Rules and Orders. This is an avenue that Senator St. Germain may want to pursue or the Committee itself may choose to explore.

Whereupon the Speaker's Ruling was appealed.

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

 

ORDERS OF THE DAY

GOVERNMENT BUSINESS

Motions

Resuming debate on the motion of the Honourable Senator Cordy, seconded by the Honourable Senator Setlakwe:

That the following Address be presented to Her Excellency the Governor General of Canada:

To Her Excellency the Right Honourable Adrienne Clarkson, Chancellor and Principal Companion of the Order of Canada, Chancellor and Commander of the Order of Military Merit, 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 Murray, P.C., moved, seconded by the Honourable Senator Doody, that further debate on the motion be adjourned until the next sitting.

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

 

Bills

Resuming debate on the motion of the Honourable Senator Hervieux-Payette, P.C., seconded by the Honourable Senator Finestone, P.C., for the second reading of Bill S-11, An Act to amend the Canada Business Corporations Act and the Canada Cooperatives Act and to amend other Acts in consequence.

After debate,

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

The Bill was then read the second time.

The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Fairbairn, P.C., that the Bill be referred to the Standing Senate Committee on Banking, Trade and Commerce.

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

 

Motions

The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Ferretti Barth:

That it be an instruction to the Standing Committee on Privileges, Standing Rules and Orders that it examine the maximum number of Senators for each of the several standing committees provided for in Rule 86(1); and

That the Committee report its findings to the Senate no later than Tuesday, March 27, 2001.

After debate,

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

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

_________________________

Ordered, That all remaining Orders be postponed until the next sitting.

 

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

Report on the Employment Equity Act (Labour) for the year 2000, pursuant to the Act, S.C. 1995, c. 44, s. 20.-Sessional Paper No. 1/37-78.

Report of the Canadian Artists and Producers Professional Relations Tribunal for the fiscal year ended March 31, 2000, pursuant to the Status of the Artist Act, S.C. 1992, c. 33, s. 61.-Sessional Paper No. 1/37-79.

 

ADJOURNMENT

The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Mercier:

That the Senate do now adjourn.

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

(Accordingly, at 4:20 p.m. the Senate was continued until 2:00 p.m. tomorrow)