Previous Sittings
Previous Sittings

Debates of the Senate (Hansard)

1st Session, 42nd Parliament,
Volume 150, Issue 12

Thursday, February 4, 2016
The Honourable George J. Furey, Speaker


Thursday, February 4, 2016

The Senate met at 2 p.m., the Speaker in the chair.



The Late Alberta "Bertie" Hensel Pew Baker

Hon. Wilfred P. Moore: Honourable senators, I rise today to pay tribute to Dr. Alberta "Bertie" Hensel Pew Baker, late of Chester, Nova Scotia, who passed away on December 6, 2015, at the age of 87 years. Bertie put more into those 87 years than one can imagine; her life should be an aspiration to all. There was not a moment wasted.

Born and raised in Ardmore, Pennsylvania, she excelled at all levels at school, winning many awards for equestrian and academic achievements. Bertie attended Sweet Briar College in Virginia, where she distinguished herself as president of her junior and senior classes. She was a member of its newspaper, The Brambler; the choir; the glee club; and the Political Economy and English clubs. As well, she was an excellent field hockey player. Indeed, the field hockey team competed internationally and had the reputation of being the toughest in the state.

Bertie graduated with a bachelor's degree, majoring in political science and nuclear physics.

She married Dr. David W. Baker in 1951 and raised a family of six children in St. Davids, Pennsylvania, where she became an active member in her church, a Sunday school teacher and book fair organizer.

In 1971 the family moved to Chester, Nova Scotia, where Bertie would positively affect the lives of so many in our community. She and David opened a tea room called The Thirsty Thinkers, and they began providing books for the local school, which had no library. She was also a trophy-winning skipper at the tiller of her Chester C-class sloop, Whim.

In 1973, special education classes were cut from the public school system. This left many special-needs individuals with no specialized classes to meet those needs. Bertie had the wonderful idea of creating a facility where mentally and physically challenged people could be welcomed and could experience life with dignity, learning and community living. This facility became Bonny Lea Farm, which was a pioneer undertaking that provided vocational day programs and pre-employment programs. Residential facilities were built which today provide a home for 36 adults, including Bertie's daughter.

Bertie continued her lifelong educational journey as well, earning a Bachelor of Education degree from Saint Mary's University at the age of 57, while going on to undertake a Master's Degree in Psychology at Mount Saint Vincent University. In recognition of her tireless, innovative work on behalf of others, she was the deserved recipient of an Honourary Doctor of Letters degree from Saint Mary's University in 1985.

Bertie bravely challenged those who could not see the worth of an individual or a just cause. Following the philanthropic tradition of her family, Bertie would quietly spend her time helping others, not seeking or needing any recognition or thanks. Indeed there are hundreds of organizations and individuals who have benefited from her generosity. She would sum up her view in a Biblical verse from Luke: "To whom much is given, much is expected."

Bertie was predeceased by her husband, David; and son, David. She is survived by her children Deborah, Rebecca, Bonnie, Joseph and Joanna, as well as grandchildren Jennifer, Jacques, Giovanna, and great grandchild, Ethan.

In extending our sympathy to her family, I would also like to give a resounding thank you on behalf of this chamber to Dr. Alberta "Bertie" Hensel Pew Baker for her life's work in making this world a better place. You shall be missed.

Tuition Fund for the Families of Federal Public Safety Officers Killed in the Line of Duty

Hon. Bob Runciman: Honourable senators, I would like to talk about an initiative I care deeply about, and one I'm urging our new federal government to act on — the creation of a tuition fund for the families of federal public safety officers killed in the line of duty.

When I was Solicitor General in Ontario, we created a scholarship fund for the families of fallen municipal and provincial police officers. It was named after Constable Joe MacDonald, a Sudbury officer who was savagely beaten and shot execution-style by two ex-cons following a routine traffic stop. He left behind two young daughters. The $5 million committed to that fund 19 years ago has never had to be replenished.

In December 2014, I was approached at a Senate committee hearing by one of our witnesses, Kim Hancox, a widow of Constable Bill Hancox, a Toronto undercover officer who was stabbed to death while on stakeout in 1998. Bill and Kim had a 2-year-old daughter, and Kim was pregnant with the son her husband would never see. Kim reminded me that we met at a memorial service in 1998, when I told her about the scholarship fund. She told me how much it has meant to her family. Her daughter is in her second year at university, and her son will be heading there this fall.

Honourable senators, government can do small things that have big results. This scholarship fund has made a meaningful difference in the life of Kim Hancox and her family. I think the federal government should start a similar fund to cover federal public safety officers — people like the family of RCMP Constable Doug Larche, who left behind a wife and three daughters when he was murdered, along with

two other RCMP officers, in Moncton, New Brunswick on June 4, 2014. Constable Larche literally ran towards danger to protect his community.


Thankfully, incidents like Moncton are few and far between in a safe, law-abiding country like Canada. According to the Canadian Police and Peace Officer's Memorial, 55 federal peace officers have lost their lives in the line of duty since 1990, the vast majority of them were members of the RCMP.

Funding a scholarship for survivors would not be a financial burden to the federal government. I hope you will join me in urging Prime Minister Trudeau and Finance Minister Morneau to include this measure in the upcoming federal budget. It's the least we can do to honour the memory and support the families of these brave men and women, officers who put their lives on the line each and every day they put on the uniform.

Hon. Senators: Hear, hear.

Lunar New Year

Hon. Victor Oh: Honourable senators, I am pleased to rise today to bring greetings to all those celebrating the Lunar New Year across Canada and around the world.

The Lunar New Year is one of the most significant celebrations in Asian culture. In 2016, the Lunar New Year will fall on February 8. People of Asian heritage living in Canada, including those of Chinese, Vietnamese and Korean descent, will be observing the traditions and customs associated with this special occasion.

As we gather with our friends and loved ones, it is important to take a moment to reflect on the past year and look forward to new opportunities in the future. 2016 is the Year of the Monkey on the Chinese zodiac. The monkey is gifted with wisdom, curiosity and leadership. We can all find inspiration in these virtues as we continue to work together on behalf of Canadians.

This past Tuesday, the Honourable Senators Dyck, Enverga, Martin, Ngo and I co-hosted a Lunar New Year event on the Hill. We put this event together to celebrate Canada's cultural diversity. All our traditions and customs become an integral part of the Canadian multicultural fabric.

A number of events are also taking place across the country in the weeks ahead. I invite all honourable senators to take part in these celebrations and experience the richness of our multicultural society.

In closing, it is my sincere hope that the Lunar New Year brings all Canadians peace, prosperity and good health.

Gong Xi Fa Cai. Thank you.

Hon. Thanh Hai Ngo: Honourable senators, I rise today, as my colleague has, on the occasion of the Lunar New Year, which will be celebrated next week on Monday, February 8.

2016 is the Year of the Monkey. It is the year that symbolizes energy, creativity and passion. I have no doubt that this honourable chamber will represent the virtuous features of the Year of the Monkey. However, it is also said that this year will be a lucky one, yet an irritant one.

So as we all hope for good fortune in the wake of the new year, let's also hope that from time to time the only people who find us irritants are those from the other place.


The Lunar New Year, also known as Tet by over 300,000 Vietnamese Canadians, is an important event that is celebrated across the country by Asian Canadians. It is always a pleasure and an honour for me to join the various communities across the country in celebrating this event. This special occasion provides an opportunity to think about the enormous contribution that members of the Central Asian and Southeast Asian communities make to Canada.

As we bid farewell to the Year of the Goat and usher in the Year of the Monkey, I wish you and your families a year filled with health, peace, joy and prosperity.


As we bid farewell to the Year of the Goat and welcome the Year of the Monkey, I extend my warmest greetings to you and your families. May the Year of the Monkey bring you health, peace, joy and prosperity.

Chúc mừng nᾰm mới. Thank you.


Public Sector Integrity Commissioner

Correctional Service Canada—Case Report of Findings in the Matter of an Investigation into a Disclosure of Wrongdoing Tabled

The Hon. the Speaker: Honourable senators, pursuant to subsection 38(3.3) of the Public Servants Disclosure Protection Act, I have the honour to table, in both official languages, the Public Sector Integrity Commissioner of Canada's case report of findings in the matter of an investigation into a disclosure of wrongdoing at Correctional Service of Canada.

Foreign Affairs and International Trade

Report Pursuant to Rule 12-26(2) Tabled

Hon. A. Raynell Andreychuk: Honourable senators, pursuant to rule 12-26(2) of the Rules of the Senate, I have the honour to table, in both official languages, the first report of the Standing Senate Committee on Foreign Affairs and International Trade, which deals with the expenses incurred by the committee during the Second Session of the Forty-first Parliament.

(For text of report, see today's Journals of the Senate, p. 141.)


The Senate

Notice of Motion to Affect Question Period on February 17, 2016

Hon. Claude Carignan (Leader of the Opposition): Honourable senators, having consulted Senator Cowan, I give notice that, at the next sitting of the Senate, I will move:

That, in order to allow the Senate to receive a Minister of the Crown during Question Period as authorized by the Senate on December 10, 2015, and notwithstanding rule 4-7, when the Senate sits on Wednesday, February 17, 2016, Question Period shall begin at 3:30 p.m., with any proceedings then before the Senate being interrupted until the end of Question Period;

That, if a standing vote would conflict with the holding of Question Period at 3:30 p.m. on that day, the vote be postponed until immediately after the conclusion of Question Period;

That, if the bells are ringing for a vote at 3:30 p.m. on that day, they be interrupted for Question Period at that time, and resume thereafter for the balance of any time remaining; and

That, if the Senate concludes its business before 3:30 p.m. on that day, the sitting be suspended until that time for the purpose of holding Question Period.



Hon. Fabian Manning: Thank you, Your Honour. Living on the Rock in the Atlantic Ocean for 50-plus years, I've developed a great deal of patience, so not to worry.

Fisheries and Oceans

Notice of Motion to Authorize Committee to Study the Outcomes of the Final Report of the Study on the Regulation of Aquaculture, Current Challenges and Future Prospects for the Industry and Refer Papers and Evidence from Second Session of Forty-first Parliament to Current Session

Hon. Fabian Manning: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That the Standing Senate Committee on Fisheries and Oceans be authorized to examine and report on issues arising from, and developments since, the tabling in July 2015 of its final report on the regulation of aquaculture, current challenges and future prospects for the industry in Canada;

That the papers and evidence received and taken and work accomplished by the committee on its study of aquaculture during the Second Session of the Forty-first Parliament be referred to the committee; and

That the committee submit its final report to the Senate no later than October 31, 2017, and that the committee retain all powers necessary to publicize its findings for 180 days after the tabling of the final report.

Notice of Motion to Authorize Committee to Study Issues Relating to the Federal Government's Current and Evolving Policy Framework for Managing Fisheries and Oceans and Refer Papers and Evidence from the Second Session of the Forty-first Parliament to Current Session

Hon. Fabian Manning: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That the Standing Senate Committee on Fisheries and Oceans be authorized to examine and to report on issues relating to the federal government's current and evolving policy framework for managing Canada's fisheries and oceans;

That the papers and evidence received and taken and work accomplished by the committee on this subject during the Second Session of the Forty-first Parliament be referred to the committee; and

That the committee submit its final report to the Senate no later no later than December 31, 2017, and that the committee retain all powers necessary to publicize its findings for 180 days after the tabling of the final report.

Banking, Trade and Commerce

Notice of Motion to Authorize Committee to Study Issues Pertaining to Internal Barriers to Trade

Hon. David Tkachuk: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That the Standing Senate Committee on Banking, Trade and Commerce be authorized to examine and report on issues pertaining to internal barriers to trade, including:

  • existing internal trade barriers, the reasons for their existence, and their economic, social and other effects on Canadians, Canadian businesses and the country's economy;
  • variations in regulatory requirements across provinces/ territories, and the ways in which such variations may limit the free flow of goods and services across Canada; and
  • measures that could be taken by the federal and provincial/territorial governments to facilitate a reduction in — if not elimination of — internal trade barriers in order to enhance trade, as well as to promote economic growth and prosperity.

That the committee submit its final report no later than June 10, 2016, and that the committee retain all powers necessary to publicize its findings until 180 days after the tabling of the final report.


Rules, Regulations and the Rights of Parliament

Question Period

Hon. George Baker: Thank you, Mr. Speaker. My question is to the Chair of the Rules Committee, and it involves Question Period.

First of all, Your Honour, I'd like to congratulate you on the excellent manner in which you carried out your functions during Question Period yesterday. It was much appreciated, because we have no rules concerning the appearance of cabinet ministers. Nowhere in our Rules is it covered. The section that governs practices and rules of the Senate is 1-1(2), which says:

In any case not provided for in these Rules, the practices of the Senate, its committees and the House of Commons shall be followed, with such modifications as the circumstances require.

The procedures of the House of Commons — that's one thing we don't need: the procedures of the House of Commons governing Question Period in the Senate.

I am wondering, as I imagine other members are wondering, given Senator Carignan's notice of a further minister appearing, when the Rules Committee is going to come up with some rules regarding Question Period as it relates to ministers appearing before the Senate. I also have a supplementary question.

Hon. Joan Fraser (Deputy Leader of the Senate Liberals): I thank Senator Baker for his question. Yesterday was a precedent, and I think we all felt pretty good about a great deal of the way it unfolded.

The steering committee of Rules had a discussion, a fairly lengthy discussion, about the question you raise: Do we need to do something with the Rules in order to accommodate ministerial appearances?

I think it's fair to say that we basically believe that we don't have enough experience yet to know what the problems are. We've had one minister appear. As you will have understood from Senator Carignan's notice of motion earlier today, we're likely to have another one on the first Wednesday after the break. My understanding is that will be the Minister of Foreign Affairs, the Honourable StØphane Dion.

We can all hope that these appearances by ministers will be more frequent, indeed regular, but, among other things, we don't yet know how the proposed representative of the government is going to mesh into the business of replying to Senate questions about the business of the government. There is quite a lot, I think, that we should live through in order to figure out what, if anything, we need to do with the Rules.

Senator Baker: The chair says that we have to wait to see what the problems are. Well, there was one gigantic problem, which was not the Speaker's fault, and that was that many senators in this place were denied an opportunity to ask a question, although they had submitted their names to appropriate people in their political spectrum and also to the Speaker.

Will the committee give consideration, given the fact that this is not like Question Period in the House of Commons — we have 30 minutes; we should probably have 45 — and that each member of the Senate is on an equal standing? That is, neither Senator Carignan nor Senator Cowan, nor any other senator, should have a supplementary question until each member has had an opportunity — those who have signified they wish to do so — to have at least one question, and then have a second round in which you would then have supplementary questions? Will the committee consider that?

Senator Fraser: Since you've raised the question and put the question, I think you can take it as read that when the committee examines the question in general, that will be one of the elements before it.

I speak now for myself, but I have the floor at the moment. I agree that 45 minutes would be wonderful. I don't think we can accommodate 45 minutes on Wednesdays. Our Wednesday sittings are about to be limited to two hours. At the moment, that seems like ample time because there is not that much pressing business before the Senate. However, we all know how the rhythm of business increases as a session goes on, and we're going to find ourselves pretty busy on Wednesdays.

My personal preference would be to move it to Tuesdays. However, again, as I say, I really believe we need a bit more experience on this matter before we rush into decisions.


Senator Baker: I have a final supplementary. Half of the members in the Senate responded to a written questionnaire by a couple of representatives — one on this side and one on the other side — recently and held a three-day intensive meeting. One of the suggestions was that we have ministers before the Senate who would be asked questions on a priority basis on reports of the Senate. That is, most reports from the Senate, most committee reports, are sent to the government, to a minister, and ministers are given a certain period of time to respond, and Question Period would be an obvious way of having senators ask about their considerations in committee and their conclusions in that committee. It's excellent, and some members of the Senate actually did that yesterday in Question Period. The relevance — it doesn't open up the minister to everything that is happening in the world, but it relates to our work here in the Senate.

I wonder if the chair of the committee could keep this in mind, that this would be one of the ways that we would determine which minister would appear.

Also, before I sit down, I want to congratulate the Speaker again for not just following lists presented by each side. He recognized an independent member during Question Period yesterday, and our customs in the Senate are clear that it should not be based just on lists that are presented by political parties, but it should be based on the Speaker's sight as to who is rising.

In the House of Commons, honourable senators, as you know, Question Period is a means of rewards and sanctions on behalf of the leadership, and it should not be that way, especially here in the Senate. So I congratulate the Speaker and hope that the Rules Committee may take this into consideration.

Some Hon. Senators: Hear, hear!

Senator Fraser: That was a bit of an omnibus question.

First, in the business of having ministers appear, whether before the Senate or before a committee, to respond to reports, I think that is an absolutely wonderful idea, and there is no need to change the rules to do it. It can be done if the Senate or the committee wishes to invite a minister and manages to persuade them to accept the invitation, because, of course, we cannot compel ministers to appear. We do have some leverage, such as how quickly we will pass pieces of legislation and that kind of thing. But on the substance of your point, I think it is a wonderful idea, and we should do it.

What was next? Oh, lists. I do not know how the other side handles its approach to Question Period. I expect they are also on a bit of a learning curve. Even those who were here the last time the Conservative Party was in opposition may have forgotten a little bit; that was a long time ago.

On this side, we compiled these lists as a courtesy for successive Speakers, who found it helpful. In normal Question Periods, the lists were a guide, but they were not a rule. Nothing obliges a Speaker to follow the list, but it was, I think, a convenience, a bit of help for him to know who had submitted their names as wishing to ask questions.

But as I said last week when I was responding to a question from Senator Runciman, some of the best Question Periods we have had here have been when the chamber took over, when an original question from a senator captured the interest of members of this chamber, who popped up to their feet with frequently knowledgeable and interesting supplementary questions. We have all seen occasions when that took over the whole of Question Period, and nobody else on the list got a chance to ask their question.

So I guess the fundamental point I am making is that those lists are a long tradition in this place, but they don't bind anybody. They are a bit of a convenience, in particular for he who has to recognize us, and they ensure perhaps some degree of fairness, in that people who have taken the trouble to try and give notice that they want to ask a question will not be overlooked — at least by their deputy leader, for what that is worth — but they are not binding in any way.

Representative of the Government in the Senate

Hon. David Tkachuk: I have a question for the Chair of the Rules Committee on the question of the government leader in the Senate.

Is it convention or is it a rule of the Senate or is it a constitutional obligation for the Prime Minister to appoint a representative of the government to the Senate?

Hon. Joan Fraser (Deputy Leader of the Senate Liberals): I don't have an off-the-top-of-my-head answer to that. We are all familiar with the substantive issues that you raise, Senator Tkachuk. The Rules Committee hopes to invite — will be inviting — a couple of ministers to come before us to discuss the matter of government representation, leadership, et cetera, in this chamber.

Depending on how the committee sees the outcome of those discussions, I suppose it's perfectly possible we could also invite some constitutional experts, but I believe there is a case before the courts on that precise constitutional issue. So I think that the committee should be very careful about how it proceeds down the constitutional avenue.

There is no requirement in our Rules for there to be a Leader of the Government in the Senate. There are, as you know, various points in our Rules that refer to actions that can be undertaken only by the Leader of the Government in the Senate or his or her deputy, but there is no requirement for there to be such a person. This is one of the elements that we need to look at in our Rules.

In ordinary law, the relevant statute would be the Parliament of Canada Act, and it does not say that there shall be a Leader of the Government in the Senate. It says that the Leader of the Government in the Senate shall receive such and such extra salary, but it doesn't say that anyone has to occupy that job. If there is an occupant, that occupant gets the money.

We are in unchartered waters here. It's all very interesting.

Senator Tkachuk: But the Senate Rules that you talk about, officers of Parliament — we're the officers in the Senate. There's a leader and a deputy leader, the whip. None of those exist, so that puts us in a bit of a vacuum.

I know we are going to look at it in committee, but I think this is a good discussion to have here. I think there is an obligation by the Prime Minister to appoint a representative of the government. Obviously we all think that, and that is why we are asking ministers of the Crown to come here, which I think is a little odd by itself, that they would actually submit to come here; you know what I mean? We're the upper chamber, but they are submitting, but I will not tell them otherwise.

Senator Fraser: We have had them here before, I believe, in Committee of the Whole. It's Question Period that is the innovation.

I'm not sure you had a question there, but I did want to make one point that I overlooked in my previous answer to you, which is that of course we also have Senator Housakos' question of privilege and wait with interest the Speaker's ruling on that, and I wouldn't want the Rules Committee to preempt that. And we have a modernization committee, which is supposed to look at all of these things.

Senator Greene: When? When, I ask?

Question Period

Hon. Jacques Demers: Honourable senators, hopefully all of this works out. We are trying to change things in the Senate, and I see a positive outlook. In the last two years, we have asked some of the dumbest questions to Senator Carignan, and it became personal. To what Senator Fraser just said, some people asked questions that were based on credibility and positive questions.

What was done here yesterday, I do not know if it can continue. I don't have the savvy of some of the politicians who have been here forever or for their whole career, but what I saw last year at times I think was not fair to Senator Carignan, and if we are going to ask questions, let's make sure we ask questions that will be constructive.

Some Hon. Senators: Hear, hear!


Hon. Dennis Patterson: As Senator Fraser said, I have been inspired by the questions asked by my honourable colleague Senator Baker to ask a few as well of the Chair of the Rules Committee.

May I say to her that we might have all felt good about the way things went in Question Period yesterday, but that might particularly apply to people who indeed were fortunate enough to ask questions and represent their region in this great country before the minister.

I wonder if the chair of the committee in reviewing what I say is a welcome new opportunity to hold the government accountable has any thoughts on this, especially since she has said that we may not be able to expand the 30 minutes because of the need to conduct other business in this house on Wednesday. Does she have any thoughts about how the time for Question Period could be maximized to give senators from all regions an opportunity to ask questions specifically?

Does the chair have any observations about whether we should consider a rule that any honourable senator should be asking questions that were only related to the jurisdiction of the minister before us so as not to waste our time asking questions to which the minister would not be able to give an answer, which I think happened yesterday, unfortunately, and took up quite a bit of valuable time. Would a possible solution be to have a protocol on that?

Hon. Joan Fraser (Deputy Leader of the Senate Liberals): I am trying to find the actual rule about questions, but it certainly has been the practice that questions are directed to ministers about their ministerial responsibility.

When Senator LeBreton, for example, was Minister of State for Seniors, she would get questions about that. Because she was government leader and because Senator Carignan was also government leader, they also got any question related to government operations, but that is because they were the only ones who could do so.

In the past, there have been occasions when there were ministers in the Senate who were not the government leader, and they were asked questions about their departmental responsibilities and operations, and I think that is the way it should work.

You heard me say earlier that I think more time would be lovely; shoehorning more time in on Wednesdays would be very difficult.

I think my conclusions are fair. Rule 4-8(1) says:

During Question Period, a Senator may, without notice, ask a question of

(a) the Leader of the Government, on a matter relating to public affairs;

(b) a Senator who is a minister, on a matter relating to that Senator's ministerial responsibility; . . .

So the rule is already there.

Senator Patterson: Thank you for that answer and quoting that rule, which, of course, applies to a senator who is a minister, not a minister who is in the Senate.

One is not allowed to make a point of order in Question Period, and, frankly, I considered making a point of order yesterday when it appeared that a speech and a question that was being asked about Senate reform was clearly outside the jurisdiction of the Minister of Fisheries and Oceans. But since one cannot raise a point of order in Question Period, as I understand, according to our Rules, would the chair of the Rules Committee give consideration to perhaps giving us the mechanism to allow the Speaker to enforce that rule if we get off track, given that 30 minutes is precious little time to allow all regions of this great country to have access to a minister?

Senator Fraser: The honourable senator makes a couple of good points. We should probably look at the formulation of the portion of the Rules referring to senators who are ministers to make it precise that that also refers to ministers who are not senators if they are appearing before us in Question Period. I don't think that would be controversial.

It is my understanding that in the discussions which have been occurring between the Senate leadership and the government, the commitment on both sides has been that ministers who come here for Question Period would be responding to questions about their ministerial responsibilities.

Yesterday was our first time out. I am astounded that there weren't more areas of miscommunication, if you will. I thought it went well, and I think in the future it can go even better.

Hon. Pierrette Ringuette: I have a follow-up question to the current flow of discussion.

Senator Fraser, you have indicated that we are in uncharted waters. May I remind this house that we have been in that area in regard to a minister of the Crown not being within this chamber for five years now. In that respect, the minister of the Crown not only has the responsibility for their own portfolio but also is a member of cabinet. Of course, there are people who know how cabinet and government decision-making happens, so that any time that a cabinet minister is within this chamber, any issue with regard to any activity of government should apply. Do you not think so, Senator Fraser?

Senator Fraser: Not precisely. Cabinet solidarity is one thing. We certainly expect it to bind all members of cabinet. However, a minister's direct ministerial responsibility, as normally understood, relates to that minister's department. Certainly, that is the understanding upon which we have been suggesting that ministers come to us. I would not personally ask the Minister of Veterans Affairs to respond to a question about fish, for example.

I think that one of the things that happened in Question Period yesterday was that a senator asked a question relating to changes in the Senate and the minister answered courteously but said, "that's not my call." He didn't feel qualified to answer the question, so he didn't.

Senator Ringuette: The fact that the minister didn't feel at ease to answer that question should not prohibit a member of this chamber from asking a question to any government representative, especially a member of cabinet. That used to be our practice with former Senator LeBreton, Leader of the Government in this chamber.

I was pleased to have the minister here yesterday. It was a first and an interesting experience. It was also interesting that he reminded this chamber that before becoming a cabinet minister in the current government, he was also part of the Legislative Assembly of Nunavut, and they had an excellent practice there of non-partisanship within their legislative chamber.

Senator Fraser: I think I missed a question. Was that a question?

Senator Ringuette: Yes, it was, because I said "do you not recall," actually. To resume my issue, do you not recall the last minister that we had in this chamber, prior to yesterday, was former Senator LeBreton, and we used to be able to ask her any issue because she was a cabinet minister. We also asked Senator Carignan about any issue because he was on a cabinet committee.

I think the issue of restricting questions to a particular portfolio of a cabinet minister should not be part of our guidelines.

Senator Fraser: Yes, I do recall that.

I also recall with some chagrin that when the Honourable Michael Fortier, who was a minister of the Crown, was in this chamber, I tried a couple of times — maybe more than a couple of times — to ask him questions about other matters than his ministerial responsibilities. I got absolutely nowhere, and was reminded by the Speaker that I could not do that. You can ask the Leader of the Government questions about anything connected with the government because he or she is representing the whole government. However, a specific minister with specific ministerial responsibilities, if that minister is a senator, we can only ask about those responsibilities.


As Senator Patterson pointed out, that specific rule doesn't apply to a minister who is not a senator. I suspect there may be changes made there. It is possible that the Senate will find itself able to invite ministers more regularly and easily if we undertake to confine ourselves to their ministerial responsibilities, but there I am venturing into the hypothetical and I had better stop and sit down.

Hon. Carolyn Stewart Olsen: If I am hearing you correctly, you don't think we need new rules. Each of us is here, independents as well, representing our provinces and our regions. To miss an opportunity to ask an important question to your region seems to be a shame.

I don't know if we would look at a rule that says that you are here to represent your region when a minister of the Crown is before you talking about what is important to your region. It behooves us, as senators, to ask that important question. I know that in New Brunswick fisheries is extremely important, and it is a missed opportunity.

I don't know if you would consider rules around that, but maybe we have to.

Senator Fraser: It would be very tricky to write an actual rule about that that wouldn't end up having as many unfortunate consequences as positive ones.

It has always been the case that there were days, even in ordinary Question Period, when people who had a question that was important to them, their region or community, didn't make it in because we have a 30-minute time limit. There are days when there are lots of people who want to ask questions. There are other days when hardly anybody does, but today has turned into a bit of a marathon, if I may say.

Hon. Daniel Lang: I want to reinforce one of the points that Senator Patterson made earlier that was lost. Over the course of that 30-minute period a conscious effort is made through the office of the Speaker to ensure there is balance, and not just each senator having the opportunity to ask a question but taking into account how large our country is, with representation from various parts of Canada.

For example, in the North we have nobody in opposition to ask questions in the House of Commons. That provides us this venue; similarly, in this case, for the East Coast.

If lists are put in, the Speaker, in his wisdom, can make decisions. If it is organized ahead of time, that gives him the ability to make those decisions.

Senator Fraser: I would agree that the Speaker retains absolute discretion. Again, as with Senator Stewart Olsen, I am leery of putting too much into rules because the more you specify in the rules the more you risk unintended consequences.


Food and Drugs Act

Bill to Amend—Second Reading— Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Stewart Olsen, seconded by the Honourable Senator Johnson, for the second reading of Bill S-214, An Act to amend the Food and Drugs Act (cruelty-free cosmetics).

Hon. Elizabeth (Beth) Marshall: Honourable senators, I rise today in support of Bill S-214, An Act to amend the Food and Drugs Act (cruelty-free cosmetics).

As an avid animal lover and supporter of the SPCA, I could not pass up the opportunity to speak to such an important bill, a piece of legislation quickly becoming the way forward in the global cosmetic market. I would like to express my support for Bill S-214 and explain why Canada should unite with its counterparts in the cruelty-free movement.

The European Union and European Free Trade Association passed an historical ban on animal testing of finished cosmetic products from 2004, ingredients from 2009, and finally a ban on marketing all animal-tested products and ingredients from March 11, 2013. Other important cosmetic markets such as Norway, Israel, India, New Zealand and Turkey followed them by enacting similar legislation against animal testing to protect the welfare and safety of our most vulnerable creatures.

The European Union is the world's largest beauty products market. With the sales ban in force in 28 countries across the EU, along with the other countries to recently impose bans or partial bans on animal-tested products, some Canadian cosmetic companies have significant barriers in accessing international markets. The markets of Europe, Norway, Israel and India cater to over 1.7 billion consumers worldwide in total on just cosmetics. Should the United States pass a sales ban proposed under their "Humane Cosmetics Act," Canadian companies will face even tougher obstacles. The United States "Humane Cosmetics Act" would prohibit the testing of cosmetics on animals and a ban on selling or transporting any product in the U.S. if it has been developed or manufactured using animal testing.

Although there is a comprehensive general trend towards the protection of animals, it is still legal in 80 per cent of countries to conduct cosmetic testing on animals. There are a variety of tests that are currently conducted on animals for the purpose of assessing the safety of cosmetics and beauty products. Some of the most common ones include skin, eye and oral tests.

According to the Humane Society International, skin sensitization tests are used to assess allergic reactions and are performed by applying a substance to the surface of the skin of a rabbit, guinea pig, rat or mouse. This test can be conducted by shaving the animal and applying the substance topically or by injecting the substance under the skin. In mice, substances can be applied by injection to the sensitive inner ear. The potential effects to the animal's skin may show signs of redness, ulcers, scaling, inflammation and itchiness. Another skin test commonly performed assesses for skin irritation and corrosion, which is severe and irreversible skin damage. Substances that are applied to a shaved animal's skin in this test may also show signs of redness, rash, lesions, scaling, inflammation and/or other signs of damage.

Eye tests are also performed, typically on rabbits, in which the animal has a substance applied directly into the eyes. Reactions may include redness, bleeding, ulcers or other severe effects that could be irreversible. Some products tested on the eyes of animals include eyelash-waving products, mascaras and shampoos, and are comprised of harmful chemicals.

Oral tests are also performed on animals. Unfortunately, these painful tests go much further than topical applications. Every year, animals around the world are subject to oral toxicity tests. These tests force the animal to consume, by injection, inhalant or ingestion, chemicals or other harsh substances to determine the safety of a product or ingredient. This test may result in changes to cells or organs, cause birth defects, infertility, cancer or death. Some of these tests are conducted with ingredients that may go into the production of beauty items such as lipsticks. The animals subjected to these tests are not given any kind of pain-management care and often suffer through the side-effects of these tests in extreme discomfort.


As Senator Stewart Olsen told us yesterday, nearly 200,000 animals still suffer and die every year in the name of cosmetics and beauty products.

Honourable senators, if we could eliminate even a small percentage of this number by passing Bill S-214, it would be an enormous success for Canada and would free a significant number of animals from unnecessary pain and suffering.

Traditionally, it was thought that animals did not have a sense of mental consciousness and their welfare was not always considered. When cosmetic chemical testing on animals began in the 1930s, it was largely believed that animals could neither think nor feel. This ideology can be traced back in part to the 17th century philosopher RenØ Descartes. Descartes believed animals were merely robots that simply co-existed with humans. He and his school of thought argued that animals only responded automatically to the stimuli they were exposed to and had no real ability to think or feel. One of his followers, Nicolas Malebranche, once said that animals "eat without pleasure, cry without pain, grow without knowing it: they desire nothing, fear nothing, know nothing."

Fast-forward 350 years, and we now know that this simply is not the case. Research indicates that animals do in fact think, and display both simple and complex thought processes in many forms. Scientific studies performed over the last century tend to side with Charles Darwin, who theorized that perhaps the differences in species are differences in degree rather than in kind, that if "we" as humans have something, then "they" as animals must have it too. There are a variety of species shown to exhibit behaviours that demonstrate mental consciousness and emotion, such as pleasure, pain and fear.

Take, for example, common experiments using fear conditioning. This is performed when an animal is placed in a new or novel environment and then exposed to aversive stimuli such as electric shock. When the animal later returns to that environment, it will demonstrate signs of uneasiness such as freezing: a common and recognized response to fear. Experiments such as these teach us that animals are capable of making associations and therefore demonstrate some degree of thought process.

One could argue that the display of emotion such as fear is simply an instinct. However, it leaves some sophisticated animal behaviours unanswered, such as the exhibition of concern, pity or empathy.

Iain Douglas-Hamilton, an elephant expert who spent years studying African elephants, observed a herd living in a reserve in Northern Kenya. This particular herd adapted their entire travel and forage patterns for a young female member of the group who was called Babyl, as she had been severely crippled and could not keep pace with the others. The entire group changed their pace to protect the vulnerable elephant from predators for an incredible 15 years. Douglas-Hamilton said they would be known to walk for a while, then stop to see where Babyl was, and would either wait or proceed depending on how she was doing. Douglas-Hamilton even reported that the matriarch of the herd would feed Babyl on occasion. The injured elephant could do nothing in return for the herd, so it was obvious the group had nothing to gain from catering to her. One could only conclude that they adjusted their behaviour so she could remain with the group out of friendship and compassion.

Another example comes from the work of Hal Markowitz, who worked mainly at the Portland Zoo in Oregon and is credited for pioneering research often referred to as "behavioural engineering." Over his career he developed a number of mechanical devices that would deliver food to animals upon completion of a task. During one experiment, he trained monkeys to exchange plastic tokens for food by inserting them in a slot at a dispenser. Remarkably, when the oldest female of the group had trouble putting her token in the slot, a younger male, unrelated to her, put her token in the machine for her and stood back to let her eat.

Research shows that even rats are capable of demonstrating compassion. Rats, a typical test subject for animal cosmetic testing, were put to the test in 1959 by Russell Church of Brown University. Church set up a cage divided in two, which allowed laboratory rats in one half of the cage to receive food by pressing a lever. At the same time the rats pressed this lever to get food, the rats in the other side of the cage received an electric shock. When the first group realized that pushing the lever that rewarded them with food simultaneously gave their counterparts an electric shock, the group dramatically decreased the rate at which they pressed the lever, indicating sympathy. The rats were willing to give up the necessity of food for the sake of the rats on the electric side of the cage. Church observed that the reduction in lever-pressing persisted up to 10 days in the group who realized their peers were being shocked, and also noted that the group who received the shock showed greater fear to the pain of others rather than experiencing the pain themselves.

If these animals, from giant elephants to monkeys to tiny rats, can all demonstrate emotion such as empathy and kindness, surely they are capable of simple thought processes and basic emotions. Based on this research, I believe it can be argued that the animals subjected to cosmetic testing do in fact suffer physical and mental anguish.

This being said, it's important to acknowledge the scientific breakthroughs that were made possible by animal testing. Without the animal research conducted over the last 100 years, we would not have the same degree of medical knowledge on life-saving technologies such as penicillin, the development of various vaccines and how to effectively perform blood transfusions. However, subjecting animals to harmful chemicals and unknown substances for the sole purpose of esthetics is neither ethical nor necessary.

The good news is that we can still test the safety of cosmetics without compromising the emotional and physical integrity of animals. There are many modern tests that include the world's latest technologies to ensure beauty products are safe to use for humans. It is also important to consider that cosmetic animal testing is not necessarily indicative of the effects that certain chemicals and substances may have on humans. In fact, tests on animals are well known to have scientific limitations as predictors of outcomes on humans, according to Humane Society International. New, modern tests that use artificial human tissue are oftentimes more cost-effective and reliable than outdated animal testing and can better distinguish toxic from non-toxic cosmetic ingredients.

According to Humane Society International, there are now over 40 "validated" tests that have replaced cosmetic testing on animals and are both internationally practised and recognized. Government authorities and companies will accept these validated testing methods as they have proven to accurately identify products that may cause irritations to skin and/or eyes, or cause serious internal side effects.

One such test, the EpiDerm Skin Irritation test, was developed and validated for in vitro testing of chemicals for cosmetics and pharmaceutical ingredients. In this test, reconstructed human tissue is exposed to substances over a four-day period. After the tissue is incubated overnight, it's topically exposed to the test chemicals, which can be liquid, semi-solid or wax. Three tissues are used for each chemical or substance during the process to ensure accurate results. This test can be used as a full replacement of the rabbit skin irritation test, which I spoke of earlier, and is completely in line with the EU regulations set in March of 2013.

In response to the cosmetic testing ban of the European Union a symposium was held this past December in Brussels, gathering different stakeholders in the area of alternative safety assessments. Since the complete ban on cosmetic products and cosmetic ingredients took effect in March 2013 in the EU, the symposium created an opportunity for the Director-General of Research and Innovation of the European Commission and Cosmetics Europe to launch several initiatives to research replacement technologies in toxicity testing. According to the SEURAT-1 website:

. . . the results of this Research Initiative will have an impact on many other areas of application such as drug development, food production, and safety assessment of industrial chemicals, plant protection products and biocides.

I encourage you to visit the Humane Society International's website for more information on these new and innovative tests, which are rapidly replacing cosmetic testing on animals in order to comply with changing market standards.

Not only are there cruelty-free methods of testing the safety of substances and products that are better predictors of effects on humans than traditional animal testing for beauty products, there are tens of thousands of raw ingredients now available to companies that have already proven to be safe. Many of these ingredients include natural products such as balsamic vinegar, lemon or honey. Other cruelty-free products include cetearyl alcohol, a white, waxy, solid material that is oil soluble and used as an emulsifier to thicken moisturizers and lotions. Natural products such as bee pollen have many health and beauty benefits as well. Bee pollen can be used in lotions to treat inflammatory conditions and common skin irritations like psoriasis or eczema. The amino acids and vitamins present in bee pollen protect the skin and help the regeneration of cells.


The economic benefits of going "cruelty free" are important to examine as well. John Chave, Director-General of Cosmetics Europe, a European trade association representing the interests of the cosmetics industry, said that the animal testing ban has not affected the cosmetic industry of Europe negatively, and that the safety level of cosmetics has not been compromised by the ban. In fact, new, innovative technologies being developed to test the safety of new substances have created jobs in Europe — something we could potentially anticipate in North America should Bill S-214 be passed, and of course if the legislation in the United States is passed.

In an interview in December, Chave said that the:

. . . cosmetics industry in Europe is responsible directly or indirectly for 1.7 million jobs. A lot of those jobs depend on our ability to innovate and create new products to grow the industry, and that is directly linked to our ability to validate alternative testing.

May I have a few more moments to finish?

Hon. Senators: Agreed.

Senator Marshall: Companies who have made the commitment to be cruelty free are also an indicator for economic success in the cosmetic industry. Companies such as LUSH, Paul Mitchell, The Body Shop, Smashbox and Aveda have all made a pledge to the cruelty-free movement, and are examples of successful players in the cosmetics industry that provide jobs and contribute to the global economy.

Last year, the United Kingdom-based company LUSH reported an 8 per cent increase in sales and profits, bringing in 23.3 million euros of pre-tax profit. The Body Shop, a brand of L'OrØal, started the fight against animal testing in 1996 and was the first international cosmetic company to sign up to the Humane Cosmetics Standard, formal criteria for non-animal-tested cosmetic and toiletry products. In 2014, The Body Shop reported a 5.5 per cent growth in retail sales and a 6.5 per cent increase in new markets, an outstanding achievement in the world's cosmetic market. Many cosmetic manufacturers realize it's bad for business if consumers associate their beauty products with animal cruelty.

Honourable senators, testing cosmetics on animals is known as the ugly face of the beauty industry. The passing of Bill S-214 will not only serve to protect vulnerable animals but could cause ripple effects in our social consciousness and our economy. I lend my support to Bill S-214 and commend Senator Stewart Olsen for introducing such an important and significant bill, one that will allow Canada to keep pace with our global partners in the fight to help end cruelty to animals for cosmetics testing purposes. Thank you.

(On motion of Senator Fraser, debate adjourned.)

Constitution Act, 1867
Parliament of Canada Act

Bill to Amend—Second Reading— Debate Adjourned

Hon. Terry M. Mercer moved second reading of Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate).

He said: "It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness." Those immortal words by Charles Dickens could be used to describe the Senate, and indeed the Government of Canada, over these past years.

We have seen a new government elected and an old one replaced. Certainly the best of times — for me, anyway.

But here in this place we find ourselves in a precarious situation. We recently had some senators leave their political party and become independent; we have had other senators become independent not of their own volition; we also have some senators who are enduring ongoing legal battles — certainly not the best of times.

What remains clear is that the Senate needs to change. I believe we all know that, and I believe we all want that to happen.

So we must ask ourselves how we accomplish that without changing the constitutional role we play in governing the country. For too long Senate reform has languished on the sidelines as a political tool for an old government.

Honourable senators, while the Liberal leader removed senators from the national caucus of the Liberal Party, we still share Liberal values, and we have enjoyed quite a lot of independence since then.

During the recent election campaign, the Liberal Party, and now Prime Minister Justin Trudeau, promised Senate reform. To quote from the platform of the party, the plan:

. . . eliminates partisanship and political patronage, without bogging down the country in years of divisive constitutional negotiations with the provinces . . .

— which of course said the status quo is not an option.

The platform went on to say:

. . . we will also create a new, non-partisan, merit-based, broad, and diverse process to advise the Prime Minister on Senate appointments.

We have seen those moves made already. I applaud the government for moving quickly on these promises, yet I urge caution to the new advisory committee currently looking at the recommendations for Senate appointments. I am ever hopeful that they will take into consideration the history of this place, what it stands for, how it participates in the function of government, and the regional balance it supports.

One could also make the case that this is the opportunity to address gender equity, or should I say inequity, in Parliament.

I have said many times before that we should be looking at mechanisms to ensure an equal number of women and men in this chamber. Quite frankly, it is easier to accomplish gender equity here rather than in the other place — one of the virtues of our chamber being appointed rather than elected. As the Prime Minister said more recently: "After all, it is 2015."

Indeed, this past December, over 80 prominent Canadian women, including former Prime Minister Kim Campbell and former Deputy Prime Minister Sheila Copps, sent a letter to the Prime Minister calling on him to fill all the current vacancies with women.

So I do hope that the new advisory committee takes these ideas to heart as they deliberate the nominees for senators to the Prime Minister.

So, honourable senators, what other ways should we explore to reform this place without opening up the Constitution? What initiatives can we implement to make the chamber more democratic?

We saw one yesterday. We decided, as senators, to invite ministers of the Crown to attend our Question Period. The appearance of Minister Tootoo, Minister of Fisheries, Oceans and the Canadian Coast Guard, was not the first time a minister has appeared in this place, but it was the first time we invited a minister here to answer questions during our Question Period.

This experiment was not only bold and innovative, but informative. I hope we continue this practice. I also hope we continue to think about new ways to show Canadians that this hallowed chamber has a purpose and that its purpose is indeed to represent them and their interests.

That brings me to the bill before us today, Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act.

The speakership of the Senate act seeks to change the way our presiding officer is chosen. Forgive me, honourable senators, if some of this sounds repetitive, because these proposals are not new. This is the fifth incarnation of this bill since 2003. Our former colleague Senator Oliver introduced a similar bill three times, and this is my second go at it. Only once was it ever referred to committee, but it has never been studied. I hope we can change that now.


Let's briefly review what the bill accomplishes.

The legislation amends the Constitution Act, 1867 to provide for the election of a Speaker and a Deputy Speaker of the Senate. It further amends the Constitution Act, 1867 to provide for a voting procedure similar to that of the House of Commons and provides that the elected Speaker, Deputy Speaker or whoever is presiding cannot vote except in the event of a tie. It also makes consequential amendments to the Parliament of Canada Act to allow for the absence of the Speaker and the Deputy Speaker of the Senate.

One thing you probably noticed is that big, bad phrase "amending the Constitution." We are not talking about opening up the Constitution to negotiations with the provinces on this issue. We're not talking about using the 7-50 rule. What we are talking about are amendments that I and many others believe fall within the scope of our powers as senators to change how we govern ourselves.

Honourable senators, as I also mentioned the last time I introduced this bill, the act would also amend the Parliament of Canada Act to ensure the chair is never empty. The Speaker must choose the Deputy Speaker to replace him or her. In the event the Deputy Speaker is unavailable, the Speaker may choose another senator to act as a temporary Deputy Speaker, and if the Deputy Speaker is in the chair and must leave, the Deputy Speaker may choose a senator to replace him or her as a temporary Deputy Speaker.

When both the Speaker and Deputy Speaker are absent, all senators in the chamber would decide on who will be the temporary Deputy Speaker on that day. This does seem like a rather natural process that emanates from the selection of both the Speaker and the Deputy Speaker.

What does not seem natural is that our presiding officer, our Senate Speaker, is not chosen by us. He or she is chosen by the Governor General on the advice of the Prime Minister.

I should take a moment, honourable senators, to tell you that if a selection process were to happen at this time, I would be among the first to vote for the current incumbent in the chair. So this is not about the incumbent we have today but about the process itself.

What does seem unnatural is that the presiding officer, the Senate Speaker, is being chosen by the Prime Minister. The question we ask ourselves again is whether the Speaker should be independent of a government appointment. So if you believe that they should be chosen independently of the Prime Minister of the day and should be chosen by the very people they will be serving, you should be supportive of this bill.

In all the provinces and territories in Canada, the Speakers are elected by the members of those legislatures. Of course, the House of Commons elects its Speaker. According to the research I had completed, the data contained information on the structure of 267 parliamentary chambers in all 191 countries where a national legislature exists. Of those, only the bicameral legislatures in Canada, Antigua and Barbuda, and Bahrain appoint their presiding officers. That's it.

Here are some of the countries that elect their presiding officers for their upper chambers: Argentina, Australia, Bahamas, Barbados, Belgium, Belize, Bolivia, Brazil, Chile, Colombia, Dominican Republic, France, Gabon, Germany, Grenada, Ireland, Italy, Jamaica, Japan, Kenya, Malaysia, Mexico, Netherlands, Nigeria, Paraguay, Philippines, Poland, Romania, Russian Federation, St. Lucia, Spain, Switzerland and the mother of all parliaments, the United Kingdom.

So I ask you: What's our problem?

The last time I introduced this bill, Senator Greene spoke to the bill. I was very happy to hear that he was supportive of senators choosing our own Speaker. While he was not supportive at that time of the way it could be done — that is, this bill — I wonder how he feels now. Hopefully we'll hear soon. Indeed, I wonder how we'll all feel about it now.

Honourable senators, are we now ready to consider this bill seriously? Are we now ready to change an old parliamentary tradition that simply stays the course and keeps the selection of our Speaker out of our control?

Some Hon. Senators: Hear, hear.

Senator Mercer: What I did notice from Senator Greene's speech was that he mentioned a previous version of the bill that was introduced by a fellow Bluenoser, Senator Oliver. One of his ideas provided for a non-renewable term for the Speaker. Senator Greene pointed out that that may have the advantage of enabling more senators to bring their experience and talents to this important position. This is something we could explore as we move forward with examining this bill. Or perhaps down the road after we witness how the election of the Speaker, as changed by this bill, works. It might be time to look at it then.

Senator Greene also mentioned that another method could be used: changing the Rules of the Senate and hoping that the Governor General would listen to our advice instead of the Prime Minister's over time. The question I asked myself was, why would we do that? Why would we not exercise our powers to enshrine such a process in the highest rule books of the land, the Constitution and the Parliament of Canada Act?

The House of Commons elects its Speaker, so why shouldn't we? While we are, in many ways, different from the House of Commons, the choice of our presiding officer should not be at the whim of the Prime Minister of the day. It should be ours.

Honourable senators, you will recall that back in October, after the federal election, senators from all sides of this chamber met as a group to discuss possible reforms to the way we govern ourselves. One of the ideas that was quite popular included electing the Speaker.

The appetite is here for this change from all sides, so let's not let partisanship stand in the way once more. Let us get this bill to committee where it can be studied further. Let us do what we were sent here to do: use our experience to guide our deliberations, seek out further advice when we need it, listen and decide for ourselves independently of the government of the day how we want to govern ourselves. Let us have this debate.

Honourable senators, I ask you for your support in this endeavour and your support for this bill.

Hon. Stephen Greene: Your Honour, I'd like to take the adjournment of this wonderful debate in my name.

The Hon. the Speaker: Would you mind holding on to the adjournment for a question from Senator Joyal? Senator Mercer, are you ready for a question?

Senator Mercer: Yes.

Hon. Serge Joyal: Senator Mercer, you alluded in your speech to a previous incarnation of this bill. You mentioned it was in its fifth rebirth, I should say. You referred to the bill introduced by our former esteemed colleague Senator Oliver. You have certainly read the Journals of the Senate in relation to the debate that took place on those various occasions, and you will certainly have noticed the issue of the constitutionality, that is, the capacity of Parliament to amend that section of the Constitution, which is, as you know, section 34. I will read it to you:

The Governor General may from Time to Time, by Instrument under the Great Seal of Canada, appoint a Senator to be Speaker of the Senate, and may remove him and appoint another in his Stead.

There were debates on those occasions where previous bills to that effect were introduced. Did you pay attention, or did you have time to review the constitutionality of removing this provision from the Constitution? Does the Parliament of Canada alone have the capacity to remove that section, that is, to amend the power of the Governor General?

Senator Mercer: Thank you very much, Senator Joyal, for your question.


In my research and in the background that I've been able to find, almost everyone that I've listened to on the subject has said that we have the power to pass this bill that will make this amendment, and obviously it would need the concurrence of the other place because it is a bill. That was entirely within our jurisdiction. It will not require any consultation with the provinces because it deals with how this place is run, as opposed to the representation of the provinces or anything outside of this. It is the old term, a sort of an inside baseball thing. It is our fixing a rule that, in some of our minds, has hindered our ability to move forward.

All of the people and opinions that I have seen have been very supportive of the fact that this is a legitimate amendment of the Constitution.

Senator Joyal: In that context, did you get a written opinion, for instance, from the legislative adviser of the Senate or legal counsel, a constitutional lawyer or somebody with a background in studying the Constitution, an opinion that we could take notice of, read, reflect upon, so that we could help you move the bill forward?

Senator Mercer: When I decided to proceed with this bill, one of the first things I did was consult with the law office of the Senate of Canada. I was told that this would require an amendment to the Constitution, and that an amendment to the Constitution of the country was legitimate within the context in which I have put the argument and in which the bill has been framed.

I think your point is a very good one, and once we move from here to the committee, of which I know you are a member, that would be a good place. I hope that the committee will call those experts and have them testify before the committee so that we have it on record and in the records to support the fact that that is exactly what we want to do.

I agree with you, senator. There are many people who are supportive of it, but we need to get them on the record.

(On motion of Senator Greene, debate adjourned.)

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of the 2015-2017 Cohort of the Jane Glassco Northern Fellowship, including the following Fellows: Thomsen D'Hont, Dawn Tremblay, Jordan Peterson, Catherine Blondin, Angela Rudolph, Jessica Black, Clara Wingnek, Samantha Dawson, Meagan Grabowski and Melaina Sheldon. They are accompanied by representatives from The Gordon Foundation. They are the guests of the Honourable Senator Patterson and the Honourable Senator Watt.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

Hon. Senators: Hear, hear!

Financial Administration Act

Bill to Amend—Second Reading— Debate Adjourned

Hon. Wilfred P. Moore moved second reading of Bill S-204, An Act to amend the Financial Administration Act (borrowing of money).

He said: Honourable senators, I rise today to speak to Bill S-204, An Act to amend the Financial Administration Act (borrowing of money). Senators will know that this bill is today in its fifth iteration and, hopefully, final form for your sake and mine.

I believe everyone in this chamber is familiar with this issue, which was first presented here by our former colleague the Honourable Senator Lowell Murray. In 2007, the government of the day introduced their budget implementation act, which came in the form of an omnibus bill, composed of 134 pages, with 14 parts and 154 clauses. It contained some issues which were the subject of some acrimonious debate at the time, including the Atlantic Accord, changes to the equalization program and many more.

Clause 43.1 entitled: "The Power to Borrow," stated:

The Governor in Council may authorize the Minister to borrow money on behalf of Her Majesty in right of Canada.

That clause removed a power held by our Parliament since the start. It took away the people's power to hold their government to account where it matters most: through the public purse.

You know, senators, at its core this issue dates back to Runnymede and the formation and foundation of our parliamentary system. Borrowing authority is perhaps the most powerful tool a parliament possesses, and it has been removed.

There are several issues here which are cause for concern. The intent of that section and the manner in which it was introduced was, to my mind, "buried" in a budget bill, as it really had very little to do with the budget.

I believe omnibus bills to be a direct affront to the manner in which Canadians expect us to do their business in Parliament. When a budget bill arrives here with a title which ends with the words "and other measures," it surely means that the bill is meant to be much more sweeping than what, in retrospect, was just a simple budget bill. And it was not just the previous government only which used such measures.

I raised a point of order with our former colleague and dear friend our late Speaker Pierre Claude Nolin in December of 2014 regarding Bill C-43, another budget bill, another omnibus bill and, this time, coming in at 478 pages. Senator Nolin returned a ruling which did not ban the use of omnibus bills but did suggest methods for dealing with them, methods which he felt warranted changes to the Rules of the Senate in order to study these massive pieces of legislation to the best of our abilities.

I still feel that both houses were taken advantage of inasmuch as the change effected in clause 43.1 was not something which should have been a "throw-in" in a budget bill. That clause should have come to us in the form of an independent bill, to stand or fall on its own merits. That it appeared as a clause in a 143-page document speaks to something else.

As Dr. Lori Turnbull stated during study in committee:

It is not about purposeful deception; it is about knowing how much time and how many resources MPs and senators have to review legislation and for everybody to have the same assumptions about how broad a scope a piece of legislation is going to take.

Senator Murray was blunt with regard to the Department of Finance in his assessment of what occurred. He said:

This thing was slipped in there quietly while our attention was focused on other major matters. It was slipped in and slipped by us. Honourable senators, let us get this straight. That is exactly the tactic that the authors of this amendment intended. Slip it in there when their attention is diverted by other important matters and we will get it through . . .

In any case, the House of Commons and the Senate both missed it, and here we are, six years later, and I am still talking about it. In any case, that's the "how" — how it happened, by stealth.

The borrowing authority bill is a money bill, and a money bill needs to be debated before Parliament. The government, prior to 2007, was required to seek the permission of Parliament for any funds over and above existing funding and the non-lapsing funding limit of $4 billion. Post-2007, we see a government which faces no such scrutiny and no such accountability.

The borrowing authority bill would also be considered as a money bill, a vote of confidence in the government. A confidence vote is a fairly strong means of accountability that doesn't exist now.

The other aspect of the fiscal process which has disappeared due to the removal of the Borrowing Authority Act is the element of context for Parliament. Pre-2007, the budget was tabled before or with the borrowing bill. Spending and borrowing are part of the same cycle. We learned last time through this process that the Senate held up the borrowing authority bill in 1985 because there was no budget tabled. How can you borrow without having an approved spending plan? Why should you be able to spend when you have not sought the approval to borrow?


The Department of Finance's arguments for making this fundamental change in how our Parliament functions are probably succinctly summed up in one word: expediency. In cutting Parliament out of the loop, Finance need not worry about that pesky problem of oversight. The money is borrowed and spent long before we know about it.

We have been told that the Borrowing Authority Act had to be removed to allow for borrowing by three Crown corporations, that somehow borrowing on behalf of the three corporations should trump the ability of Parliament to authorize it. Why should the people of Canada not debate borrowing by Crown corporations?

Finance tells us that this enabled the government to inject billions of dollars into financial institutions during the financial crisis of 2008, the so-called "Great Recession." Well, Canadians woke up owing billions of dollars more and with no idea how it happened. Does that sound like accountability?

Parliament should have been recalled to debate this matter. The government should have sought the consent of Parliament to borrow so much on behalf of Canadians. And Parliament could have done this quite readily. This was a two-week process in which the people's representatives should have had a hand. They should have been a part of the solution, which would have added to faith in our institutions. Instead, they were bypassed and cut out of the loop.

I will outline some of the other so-called reasons put forth by Finance as justification for removing borrowing authority from Parliament, and I will attempt to explain how I do not think the arguments hold water.

Number one, they said that the present borrowing authority regime has provided for a more efficient, flexible, responsive and prudent financial management and greater transparency and accountability.

Honourable senators, Parliament is more than capable of responding to a crisis. The ability to recall both houses in 24 hours exists in the Standing Orders of the House of Commons and in the Rules of the Senate.

There can be no greater transparency than Parliament. Legislation in the form of a borrowing authority bill for members to debate is the ultimate accountability.

Number two, Finance says the current regime introduced enhanced disclosure requirements on anticipated borrowing and planned uses of funds. Through the Debt Management Strategy, which is included in the budget and is debated and voted on by members of the House of Commons each year, this information forms the basis for the submission the Minister of Finance makes to the Governor-in-Council on borrowing authority.

Frankly, senators, these enhanced disclosure requirements could be maintained, while still bringing a borrowing bill to Parliament.

Number three, in addition to the Debt Management Strategy, the government is required to publish a Debt Management Report. This report provides a reconciliation of the projections in the Debt Management Strategy, and what was actually required by the government. This information, like the Debt Management Strategy, is available to Canadians and parliamentarians. Under the current system, the Debt Management Report is required to be published within 30 days of the release of that year's public accounts, 15 days less than under the previous process.

Well, the Debt Management Report existed prior to 2007 and is tabled after the fact in Parliament. There is no reason why this report could not be tabled in Parliament at the same time as a borrowing authority bill.

Number four, Finance said that governments have attempted to find a borrowing authority process that balances the need for parliamentary oversight with the requirement for efficiency and flexibility.

The last time changes were made to the process of borrowing authority was in 1975 when the Standing Orders were changed to allow for an independent debate in a borrowing authority bill, not to remove Parliamentary oversight.

There is nothing appropriate about allowing the executive to borrow at will without the consent of the people of Canada in the form of their Parliament.

The removal of Parliament's oversight role in borrowing does not make for a balanced system. The pendulum swings too far to the executive and away from Parliament, to a situation where there is imbalance.

Efficiency and flexibility do not trump the role of Parliament, which we heard is flexible and efficient enough to have dealt with borrowing authority for the past 140-plus years.

The current government has launched an effort to put more control into the hands of Parliament through empowering its MPs to have a more comprehensive level of oversight.

This effort is clearly set out in the platform of the Liberal Party in the 2015 general election under the heading "We will provide better oversight of taxpayer dollars." I quote:

Canadians understand the importance of saving, spending, and borrowing responsibly. Our government should hold itself to the same standard.

We will change Parliament's financial processes so that government accounting is more consistent and clear. We will ensure accounting consistency between the Estimates and the Public Accounts, provide costing analysis for all proposed legislation, and require the government to receive Parliament's approval on borrowing plans.

The current government also plans to run large deficits for the foreseeable future which will require large borrowing. I suggest this would be a very good time to allow Parliament to debate the government's borrowing and spending plans in the form of a borrowing authority bill.

I am hoping that we can restore Parliament's supremacy and create a more accountable government for Canadians. This nation survived two world wars, the Great Depression, two referenda and countless other national emergencies while still bringing in a borrowing authority bill to keep the government accountable to its people.

I wonder what it says about us currently that we do not have the same faith in our own Parliament to shepherd our nation through hard times.

I hope that you will share my faith in our Parliament and restore its full power of oversight by passing this bill.

Some Hon. Senators: Hear, hear!

The Hon. the Speaker: Senator Moore, would you take a question by the Honourable Senator Bellemare?

Senator Moore: Yes.

Hon. Diane Bellemare: Senator Moore, have you ever thought about the crisis that happened in 2010 or 2011 in the U.S., with all the necessity to approve borrowing plans by their chambers? Do you think it could create a crisis in Canada if we had to accept in both chambers borrowing and debt management issues?

Senator Moore: You are asking about what happened in the U.S. at the time of the so-called Great Recession?

Senator Bellemare: No, at the time when there was a need to borrow in the U.S., and I think it was the Senate or the Congress that didn't want to do it. There was a problem about financing the government.

Senator Tkachuk: They had to approve borrowing through the House of Representatives.

Senator Moore: Far be it from me to comment on the U.S. system of government and how they manage the need for funds and how they get it into the system. All I know is we have been doing it right. We have been doing it well under the Canadian parliamentary system for 140 years. We have been able to handle this properly and in a timely way, no matter what emergency our country was facing. It should have happened in 2008-09.

The rules are there to call back the members of both houses within 24 hours. That exists in both the Standing Orders of the House of Commons and in the Rules of the Senate. It could have and should have been done.

Hon. David M. Wells: Would the Honourable Senator Moore take another question?

Senator Moore: Yes.

Senator Wells: I recall at one of the meetings at Finance when you brought this subject up a couple of years ago. You mentioned Ms. Turnbull in your remarks, and I recall what she said. I also recall one of the questions I asked that day.

With the pace of financial transactions today, especially because many of the finances transactions are based on computer programs and not necessarily human thought, the reality is that things can go south quickly, especially in the financial markets. I recognize the concept of recalling Parliament to address this question. However, do you think Parliament would be able to give the consideration that's required, given the rapidity of how quickly things can go bad in the financial markets, especially if it were in the summer months or at some time when Parliament wasn't regularly sitting?


Senator Moore: Thank you for that question, senator.

I have faith in the people. I believe that, with the rules that are set up, we can recall both houses within 24 hours; the representatives of the people could come to Ottawa, to the nation's capital, sit down, learn whatever advice they have to get from the proper authorities and make the proper decisions. They have been doing it for over 140 years. What has changed? People haven't changed. The bureaucrats changed it and I don't think we should let them get away with it.

Some Hon. Senators: Hear, hear!

Senator Wells: If it hasn't changed in 140 years and, as you say, it has been going very well for 140 years, why make the change now? We delegate authority to senior officials who are qualified. It's not simply the bureaucracy writ large; it's qualified individuals who have been retained to do that and who have the confidence of the people who hired them.

Senator Moore: I, for the life of me, don't understand why the borrowing authority act was changed in 2007. We were able to handle everything properly up to that time and there's no reason we couldn't have continued doing the same thing. However, the bureaucrats seized on the moment. They hid it in that bill and they know they hid it in that bill. We all missed it. We know they hid it in the bill. So we could have carried on.

They don't like the idea of having to face the people. They don't like the idea of having to come to Parliament and defend themselves. They don't like that. They could expedite this through. Their whole thesis was expedience, not accountability.

(On motion of Senator Bellemare, debate adjourned.)

Business of the Senate

Motion to Engage Services of All Committees for Remainder of Current Session Adopted

Hon. Joan Fraser (Deputy Leader of the Senate Liberals), pursuant to notice of January 28, 2016, moved:

That, pursuant to section 1(2) of chapter 3:06 of the Senate Administrative Rules, all committees have power, for the remainder of the current session, to engage the services of such counsel and technical, clerical, and other personnel as may be necessary for the purpose of their examination and consideration of such bills, subject-matters of bills and estimates as are referred to them.

She said: Since I ask everyone else these questions, I might as well answer them myself.

This is an absolutely standard motion, colleagues. It simply gives general authorization for committees to engage the services of counsel and technical and other personnel, but they cannot do that without getting budgets for the specific work from the Internal Economy Committee. Those of us who have been subject to Internal's inquisitions on these matters know that their authorization is not lightly granted.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to.)

Human Rights, Official Languages and National Defence Committees Authorized to Meet on Mondays for Remainder of Current Session

Hon. Joan Fraser (Deputy Leader of the Senate Liberals), pursuant to notice of January 28, 2016, moved:

That, pursuant to rule 12-18(2), for the remainder of this session, the Standing Senate Committees on Human Rights, Official Languages, and National Security and Defence be authorized to meet at their approved meeting times as determined by the Opposition Whip and the Senate Liberal Whip on any Monday which immediately precedes a Tuesday when the Senate is scheduled to sit, even though the Senate may then be adjourned for a period exceeding a week.

She said: This is also a standard motion, colleagues. It enables those committees that normally sit on Monday to sit on Monday even after a break week or a break period when the Senate has been adjourned for more than one week. It's something we do on a regular basis and I believe is utterly uncontroversial.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to.)

Motion to Change Commencement Time on Thursdays and to Effect Wednesday Adjournments—Motion in Modification Adopted

On Motion No. 37 by the Honourable Yonah Martin:

That, for the remainder of the current session,

(a) when the Senate sits on a Thursday, it shall sit at 1:30 p.m. notwithstanding rule 3-1(1);

(b) when the Senate sits on a Wednesday, it stand adjourned at 4 p.m., unless it has been suspended for the purpose of taking a deferred vote or has earlier adjourned; and

(c) where a vote is deferred until 5:30 p.m. on a Wednesday, the Speaker shall interrupt the proceedings, immediately prior to any adjournment but no later than 4 p.m., to suspend the sitting until 5:30 p.m. for the taking of the deferred vote, and that committees be authorized to meet during the period that the sitting is suspended.

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, pursuant to rule 5-10(1), I ask leave of the Senate to modify the motion by replacing paragraph (b) with the following:

(b) when the Senate sits on a Wednesday, it shall stand adjourned at the later of 4 p.m. or the end of Question Period, unless it has been suspended for the purpose of taking a deferred vote or has earlier adjourned; and

The Hon. the Speaker: Is leave granted, honourable senators?

Some Hon. Senators: Agreed.

Hon. Elaine McCoy: What is she asking to modify?

The Hon. the Speaker: She is asking for leave to modify the motion.

Is leave granted?

Hon. Senators: Agreed.

The Hon. the Speaker: Senator Martin, you may now move the motion.

Senator Martin: I move the motion standing in my name.

The Hon. the Speaker: It is moved by the Honourable Senator Martin, seconded by the Honourable Senator Marshall:

That for the remainder of the current session,

(a) when the Senate sits on a Thursday, it shall sit at 1:30 p.m. notwithstanding rule 3-1(1);

(b) when the Senate sits on a Wednesday, it shall stand adjourned at the later of 4 p.m. or the end of Question Period, unless it has been suspended for the purpose of taking a deferred vote or has earlier adjourned; and

(c) where a vote is deferred until 5:30 p.m. on a Wednesday, the Speaker shall interrupt the proceedings, immediately prior to any adjournment but no later than 4 p.m., to suspend the sitting until 5:30 p.m. for the taking of the deferred vote, and that committees be authorized to meet during the period that the sitting is suspended.

Senator Martin: Senators will recognize some of the wording of this motion. In essence, the adoption of this motion will allow us to sit on Thursdays starting at 1:30 instead of 2 p.m. and on Wednesdays. As we experienced yesterday with our Question Period, it could be scheduled for 3:30. There is one scheduled for 3:30 when we come back after the constituency week. The motion allows us to do so, but if, for whatever reason, Question Period does not take place, having the Senate end at 4 p.m. gives a predictable time for when the Senate shall rise on Wednesdays so that committees can sit at 4:15.

Senator Fraser and I have had a discussion regarding the start time on Wednesdays. It's at 2 p.m. The motion does not request it to start earlier. There had been discussions regarding certain committees, for instance our Human Rights Committee, where we were looking at potential meeting times. With everyone's busy schedules and the work of committees being very important, the Wednesday time slot from noon to 2 p.m., perhaps, or even a bit earlier, at 11:30 until 1:30, would allow the committee to meet.

Wednesday is a busy day for everyone. But we do have national caucus, so just that half hour builds in a little bit of room for us to be able to use that time and be flexible.


An adoption of this motion does not mean that it is permanent. As need arises, we can enter into further debate.

I ask all honourable senators to adopt this motion today. Thank you.

Hon. Joan Fraser (Deputy Leader of the Senate Liberals): It has been said that nothing is more permanent than the temporary.

I agree that sitting at 1:30 on Thursday is appropriate. I agree that rising at 4:00 on Wednesdays to accommodate committee work is appropriate, but that gives us a very short sitting on Wednesday. As I was saying in Question Period, two hours is ample for most of what is before us now, but we are very early in the session and in a new Parliament. The amount of work before us will increase.

For many years now, we have adopted sessional orders that the Senate would sit at 1:30 on Wednesday in order to accommodate that work. I continue to believe that it would be entirely appropriate to sit at 1:30 on Wednesdays, and if there are committees that need to sit over the lunch period on Wednesdays, let them meet at 11:30.

I understand about national caucuses, but I can tell you that life goes on when one does not attend a national caucus, and it is my view that the work of the Senate is more important than national caucuses.

That said, we can all count. We're not going to win this one, but I shall vote against it.

Hon. Jim Munson: One of the great freedoms of being in an independent liberal caucus is that I will vote for it.

The Hon. the Speaker: Are senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

(Motion agreed to, on division.)

The Senate

Motion for Membership of Standing Committee on Conflict of Interest for Senators— Debate Adjourned

Hon. Joan Fraser (Deputy Leader of the Senate Liberals), pursuant to notice of February 3, 2016, moved:

That, notwithstanding rule 12-27(1) and subsections 35(1), (4), (5) and (8) of the Ethics and Conflict of Interest Code for Senators, the Honourable Senators Andreychuk, Cordy, Frum, Joyal, P.C. and Tannas, be appointed to serve on the Standing Committee on Ethics and Conflict of Interest for Senators, until such time as a motion pursuant to rule 12-27(1) is adopted by the Senate; and

That, when a vacancy occurs in the membership of the committee before the establishment of the committee pursuant to rule 12-27(1), the replacement member shall be appointed by order of the Senate.

She said: This is a very simple motion, colleagues, designed to continue the membership of the Committee on Ethics and Conflict of Interest as it was in the previous session of Parliament.

We're doing this because, as colleagues will recall, the current Rules of the Senate say that the first four members of the committee shall be named — two by the opposition and two by the government caucus. As we know, we do not, at the moment, have a government caucus, but we need this committee to do its work.

In consultation between the two sides and with members of the committee, it was agreed that this was the simplest way to handle matters, until such time, as the motion says, as the committee has been reconstituted according to the Rules of the Senate. I think it's worth doing.

Some Hon. Senators: Agreed.

Hon. Elaine McCoy: I'm pleased to see that some effort is being made to adjust to changes in circumstances as we go forward. The degree of flexibility being shown today by Senator Fraser, I presume in consultation with her Senate colleagues, is to recognize that there is no such thing as a government caucus. However, to adjust to future circumstance by locking in stone what you had before doesn't strike me as a particularly progressive move.

Once again we need to recognize that the world is changing and the composition of the Senate is changing. There are, as we speak even today, 11 independent sitting senators; as sitting members, we have 11 per cent proportional representation; so at the end of this February, we'll have 17 per cent. By the time all of the vacancies are filled, including the two vacancies that will come free this month, we'll have 20 per cent.

The Standing Committee on Ethics and Conflict of Interest for Senators is a committee that we have through our own Rules — the code is one of our own Rules. It's not a statute; it's a code that we have adopted. Therefore, what we do with it is totally within our power. But it is one of those serious committees, because we're self-governing. We are governed by our peers. As Senator Fraser points out, it was set up so that we chose by secret ballot which peers would sit in judgment upon us.

At the time it was conceived, there were two caucuses that had virtually all the members of the Senate, but it was set up so that the Conservatives would, by secret ballot, elect two members. The Liberals, by secret ballot among themselves, would elect two members. Then those four members would get together and choose a fifth member.

That is a practice unique to that committee in this institution, and I think it's an appropriate one. It allows us to choose who will sit in judgment upon us, and it does that by secret ballot. It's the only secret ballot, I think, that we allow in this institution, because there is a rule that governs our work in this chamber and every other committee where it says it must be by open vote. There is no other secret ballot anywhere else.

So, we have a new session. We have had a change in membership, even in the short time we've been here. We are now throwing out this practice that we have instituted, and we are ignoring not only the current situation in which we have more independent senators and a growing list of senators — and we know we can anticipate even more — but we are sticking our head in the sand and reverting to a less-democratic process and denying an equal representation to some members of the Senate.

Motion in Amendment

Hon. Elaine McCoy: For all of these reasons, honourable senators, I therefore propose the following amendment to this motion:

That the motion be not now adopted, but that it be amended by replacing all words following the words "Ethics and Conflict of Interest Code for Senators," by the following:

"the Standing Committee on Ethics and Conflict of Interest for Senators be composed of two Conservative senators, two Liberal senators and one independent senator;

That the Conservative senators select the Conservative members to sit on the committee by means of a secret ballot;

That the Liberal senators select the Liberal members to sit on the committee by means of a secret ballot;

That the independent senators who are authorized to attend the Senate select the independent member to sit on the committee by means of a secret ballot;

That each of the groups of Conservative, Liberal and independent senators select a representative to move a motion in the Senate without notice that the selected senator or senators be a member or members of the committee, which motion shall be deemed seconded and adopted when moved;

That, when a vacancy occurs in the membership of the committee before the establishment of the committee pursuant to rule 12-27(1), the replacement member be appointed by the same process used to name the previous member of the committee; and

That the membership of the Standing Committee on Ethics and Conflict of Interest for Senators as established pursuant to this motion remain in effect until such time as a motion pursuant to rule 12-27(1) is adopted by the Senate.

Thank you.


The Hon. the Speaker: On debate.

Hon. Pierrette Ringuette: I would like to highlight a few things with regard to, first of all, the process and then with regard to the content of the issue.

Rule 12-27(1) specifically says:

As soon as practicable at the beginning of each session. . . .

First of all, this means that this motion creates a committee framework for the next, possibly, four years unless there's prorogation. One interesting issue is that then it says "the Leader of the Government." So, technically, one could argue that the motion is out of order.

That being said, I think it is very important for us also to understand that this is contrary to all other standing committees of the Senate where any senator can attend a meeting. It is not necessarily the case that they have voting power on the committee. However, any senator can attend these committee meetings. That is very important, but, in this particular situation, with regard to this committee, Rule 12-28(2) says:

When the committee is meeting in camera, only members of the committee or, by decision of the committee, a Senator who is the subject of an inquiry report may attend and participate in deliberations.

I think that is very important with regard to the principle that all other senators, when this committee meets in camera, are not allowed to participate in the committee. I foresee that, within the next six, maybe eight, months, there will be a possibility of anywhere between 35 and 38 independent members of the Senate. Therefore, I think, with regard to the specifics and to the particularity of this committee, that it is certainly important.

I would even suggest that it could be left to the discretion of the two members from the Conservative Party and the two members from the Liberal Party, that, between the four of them, at least the fifth person on this very particular committee would be an independent senator.

I hope that consideration of what I have said will be taken into consideration, and I certainly congratulate Senator McCoy on raising this very important issue.

Hon. Serge Joyal: I am happy to join in an exchange of opinions on the proposal of Senator McCoy and on the comments of my colleague Senator Ringuette.

I have a certain number of reflections to share with you. The first one is that it's not unusual to suspend a rule of the rulebook for a specific purpose. As a matter of fact, we have just adopted one such decision when Senator Martin proposed to shorten the number of sittings to extend Question Period only five minutes ago. So it's not unusual for us to suspend the Rules of the Senate for specific purposes that we deem beneficial for the whole of the chamber. That said, I think that we will agree — and that's the second element of my reflections to you — that we are certainly in a period whereby the change will come incrementally.

I supported the proposal of Senator McCoy two weeks ago when the proposal was made to study and reflect upon the positioning of independent members in the chamber.

The Rules Committee, where I sit and which was chaired by our colleague Senator Fraser, this week considered reflecting on and studying the amendments to the Rules to allow participation of independents in the general work of the committee — how we could restructure that. This committee is part of those overall reflections.

I think that any one of us can read the paper; any one of us can share reflections and understand that, in the weeks and months to come, some changes will happen, as Senator McCoy has mentioned, as you have mentioned, as Senator Wallace has mentioned. There will be a much larger number of independents joining the Senate, and there is no doubt that the Rules, not only that rule 12(27) but all of the Rules, are affected by a substantial number of colleagues who will be independent and declare themselves independent. We will have to imagine a way to confirm their participation. There's no doubt about how that will be done. We will share our reflections. This week at the Rules Committee, we started to reflect on that. There is a ruling from the Speaker also expected in this chamber that might enlighten us on what course to take. So on that, I don't think, as I said, the wheel will stop turning in the forthcoming weeks.


I stand this afternoon to share this with you because you will see that I have a vested interest in that committee, but certainly in my third group of reflections, I want to share with you in terms of the in camera sessions of this committee.

Senator Ringuette, you seem to question the fact that there is too much secrecy in the committee or the fact it is held in camera so other senators cannot attend, any senators, be they Liberal, Conservative or independent. As the Rules stand now, they are also precluded from coming to the committee. That decision was taken in the wisdom of this chamber, and I will explain to you why.

I have sat as a member of this committee since its inception some nine years ago. We study privacy issues relating to senators. I will give you an example.

If the committee receives a report of an investigation from the Senate Ethics Officer, we have to decide whether and how we will study it. We will hear from the concerned senator. We will give that senator the opportunity to state his or her case. We might decide to listen to other witnesses. We might even open a larger review of the report. All that, of course, is on the presumption, as you say, of innocence. No one deserves a sanction before their responsibility is clearly established.

So to protect the reputation of senators, it is preferable to hold that process in camera. And once the committee has deliberated, it comes forward with a report. The report is tabled in the Senate. If the senator is concerned with the object of the report, they have the right to stand up and explain their case again, and we all sit in judgment on both sides of the status of the report.

So I would resist the perception being created that because the committee sits in camera, that in fact we are infringing on the rights of each and every senator to come to the committee meeting to listen, to intervene and to question and so forth. That is the way we have established the system.

Like any one of you, I'm open to reviewing that system. If we feel the committee should sit openly, I'm ready to debate that at any time, if there is such a motion in this chamber, and we will take a decision. Certainly whoever is a member of that committee will decide.

But you will understand that the sensitivity related to the reputation of any senator and the presumption of innocence until proven guilty is very important. We all cherish our reputations, and each senator deserves to have their reputation protected. That is why this committee, with the concurrence and unanimity of this chamber, was proposed to sit in camera.

Again, if we are of the opinion that we should re-examine the rules, I am open to discussing it on the floor of this chamber at any time, like any other senator.

That's why I think at this stage it's important that the committee continues its sitting because it has some serious issues that need to be debated. I don't want to mention anything or to name any senators. You may read the paper like any one of us. It's not the preferred option or the preferred route to change at this stage how things operate. That doesn't mean, though, that the committee cannot be structured differently, as all other committees may be structured differently, down the road once that reflection has been shared.

My conclusion to you is that to make changes only to that committee, in my opinion, is not the best approach in order to come to the wisest decision. That's why I suggest to you humbly, as much as I support the general objective pursued by Senator McCoy — as I told you, Senator McCoy, I voted in favour of your approach. I took a stand in the Rules Committee last week to that effect. I am sympathetic. I said it also to Senator Wallace when he introduced his question of privilege, but I think that will certainly come down the road this year. There is no doubt about it.

The numbers are there. The commitment of the government to name independent senators is there. As Senator Ringuette has mentioned, five new senators will be forthcoming, so the Rules Committee will certainly have to discuss this as a priority.

But as I say, at this stage for this committee, what that proposal essentially says is let's keep it as is for the time being. As soon as the Rules of the Senate have been reviewed in relation to all of the committees, then this committee will also be the object of revision. That's essentially what I propose to you, honourable senators.

Hon. George Baker: I wonder if Senator Ringuette or Senator McCoy could answer a simple question.

Senator Ringuette mentioned that for this particular rule, a motion has to be made by the Leader of the Government in the Senate, as you've read. Now, in order to change the Rules —

The Hon. the Speaker: Senator Baker, pardon me. If you want to revert to questions to the previous speaker, you're going to require leave. Is leave granted?

Hon. Senators: Agreed.

Senator Baker: Thank you. Either one of them may answer the question.

Since it requires the Leader of the Government in the Senate to move a motion that the senator has moved in this particular motion on the Order Paper, in order to change a rule, you have to have leave of the Senate.

Now, you can only get leave of the Senate to change a rule if the person moving the motion to change the rule explains the reason for changing the rule and seeks leave of the Senate to get it prior to the motion being discussed.

Are you suggesting that perhaps we've forgotten along the way that we didn't seek leave of the Senate? And in your estimation, what type of leave would be required?

Senator Ringuette: I certainly enjoy the comments and questions from my honourable colleague.

In my earlier comments, and in order to be reasonable, I know the committee has been working on a particular issue. I am not asking for this chamber to revert and that leave be requested.

However, the point is not of the delicacy and the secrecy of in-camera meetings. Unfortunately, I think someone might have interpreted it that way.

This is a very important committee. The members on it have, as far as I know, done an excellent job in the past. But the issue still remains that this motion is for the duration of the session, and that could be up to four years.

If you look at the current situation and even the short-term situation of independent members in the Senate, it is possible that by September we will have 38. Knowing that full well, the flexibility and the acknowledgement of the progress — earlier in the chamber this week, I saw tabled provisions coming from Internal Economy to allow for different-sized caucuses to operate with a funding budget. It is not the current situation, but it is the upcoming situation of this institution.


Because this is a very particular, very sensitive committee, and especially since it is a "notwithstanding motion," should it not at least have allowed for the two Liberal senators and the two Tory senators, among the four of them, to identify a fifth independent senator that they could include in the proceeding and membership of this committee?

Senator Baker: I just wonder, though, if you could address the question that I put to you. When I stood to ask you a question, the Speaker said, "Well, does he have leave of the Senate?" If you had said no, I wouldn't be able to ask you the question. The rule says that if you wish to change the Rules, you require, first of all, leave of the Senate, with the person explaining exactly why leave of the Senate to change a rule is required.

I wonder if you could address my question as to whether or not you are questioning the order, the procedure that we are now adopting under this resolution, or are you just making general comments? Perhaps Senator McCoy has an interest in this.

Senator Ringuette: After 28 years of being in a legislative body and the search for change within this institution, and the upcoming change, I was hoping, in a friendly manner, to drive the point home that if, in some instances, provisions can be made for the future set-up of caucus in this chamber, why can't other committees have this outlook in the composition of its membership? Thank you very much.

Senator McCoy: I think the question was —

The Hon. the Speaker: Order!

Senator McCoy, did you wish to respond to the question?

Senator McCoy: Yes. I think I was invited to, and the leave extended to that.

The Hon. the Speaker: You would require leave to respond to the question. Are you asking for leave?

Senator McCoy: Yes.

The Hon. the Speaker: Is leave granted?

Hon. Senators: Agreed.

Senator McCoy: Thank you, colleagues.

Senator Baker, do I understand your question properly to mean that leave would have had to be granted to make the motion? Leave has not been granted to make Motion No. 43, let alone amend it. Is that correct? Is that what you are suggesting?

Senator Baker: If you could just read rules 1-3(1) and 1-3(2).

Senator Martin: Your Honour, on a point of order. I thought our leave was for Senator McCoy to answer the question, not ask the question. I want to get clarification on that, Your Honour. Our leave was for Senator McCoy to answer Senator Baker's question.

The Hon. the Speaker: You are quite right, Senator Martin. It was not to engage in another debate; it was to answer Senator Baker's question.

Senator McCoy, if you would like to answer the question, you have leave to do so.

Point of Order

Hon. Elaine McCoy: On a point of order.

I believe that leave is required to bring Motion No. 43, let alone make an amendment to it, and I don't think leave was requested. So I leave it in your hands as a point of order, then, Your Honour.

Hon. Joan Fraser (Deputy Leader of the Senate Liberals): I am content to leave the point of order in your hands, Your Honour. If no other senator wishes to speak to the point of order, I would like to speak to the amendment.

The Hon. the Speaker: Senator McCoy, are you raising a point of order?

Senator McCoy: Yes.

The Hon. the Speaker: Could you please elucidate what that point of order is?

Senator McCoy: I will, and somebody will speak to it in addition and will give the actual citation of the rule, but I believe leave is required to suspend a rule of the Senate. I believe that leave was not requested. Therefore, I think we are asking that we regularize these proceedings.

The Hon. the Speaker: Senator Fraser has already given notice of the motion. Under rule 5-6(1)(a), two days' notice is required for a motion to amend the Rules, while under rule 5-5(a) one day's notice is required to suspend a rule or part of a rule. So debate can proceed.

Senator Martin: Thank you, Your Honour.

The Hon. the Speaker: What we have, then, is the motion of Senator Fraser, which is in order. We have an amendment of Senator McCoy, which is in order. Right now before the house we have debate on Senator McCoy's amendment.

On debate.

Senator Fraser: Thank you, Your Honour. It seems to me one of the things that we often get confused about is who has the right to move an amendment to a motion, with or without leave. It is the senator who has initially moved the motion who needs leave of the Senate to modify it.

I did not propose this amendment. I would, however, like to speak to it in light of the comments made by colleagues, the interesting and very timely comments made by colleagues.

The first point I would like to make is that the motion before us, as presented by me, was designed as a stopgap, interim, temporary measure. We are all aware that the very fabric of this place is going to change significantly in coming months. I have said in this place — and I repeat now — that I believe that we have to change our habits, customs, practices — and probably rules — to accommodate a significantly larger number of independent senators.

When the Rules were written, even when they were rewritten very recently, the identity of this place was essentially that there was a government side and an opposition side — a single opposition side. That has changed, and it will change more soon. This place, therefore, will have to change soon, at least in certain key respects, to accommodate the new nature of the Senate, senators and, to some extent, the work we will do.

As I tried to explain, under rule 12-27(1) there is no way we can have a Conflict of Interest Committee, because we do not have a government caucus. Nor, indeed, do we have a Leader of the Government in the Senate. So we are going to have to make adjustments to the Rules, not only about the Conflict of Interest Committee but about all committees. However, I truly believe, A, that this should not be done piecemeal, changing one thing here and one thing there. We need to consider the architecture of what we are doing.


B, when we are adjusting ourselves to accommodate all these new, independent senators, we need to give them a voice. We don't just say to them, "Here, this is what your new world is going to be like." We have to give them a voice, and they are not here yet. I know we have some independent senators but the ones we have now, for whom I have great respect, will be vastly outnumbered in a short period of time.

C, I believe we need a Conflict of Interest Committee. There are important cases that need to be handled. It is neither fair to the subjects of those cases nor to the Senate to sit around saying, "We can't do it because we don't have a government caucus." This motion as I have proposed it seems to me to be a fairly neat, simple, straightforward way to do a temporary squaring of the circle. But I know for a fact that there are members of that committee who insist that it be a temporary squaring of the circle. This is not designed to be a motion that will last for a very long period of time at all — not even the whole session, assuming a session is two years: far less than that.

We have to be able to get on with our work while we consider the longer term changes that we need. Therefore, while I share in many ways the spirit that prompted Senator McCoy's proposed amendment, I think it is ill-timed at this precise moment; and, therefore, I shall not support it.

Hon. John D. Wallace: I would agree with Senator Fraser that we have to get on with business. For each of us individually in this chamber, there is probably nothing more significant than our ethics code. It can't be held in limbo; we have to move on. We are in a situation of unique circumstances, and we have to be nimble to adjust to that; so I fully sympathize with the need to do that.

Our conflict code, though, and the impact that has on each of us, is unique in that this committee is comprised of our peers. It represents the members of this chamber. I have difficulty with the suggestion to continue the existing composition of the committee — not because of the individuals, I certainly don't as I hold all five of them in the highest regard. However, this is a committee of peers to the point that our Rules say that the members will be elected by the caucuses — the government caucus and the opposition caucus — they're very unique in that regard.

Effectively, Senator Fraser's motion proposes to replace references in our Rules and in the code to government members or the government caucus and substituting "the independent Liberal caucus." I understand from a practical point of view why that is being suggested. However, I would point out to you, in terms of this committee being representative and a committee of the peers of this chamber, that the Liberal independent caucus does not represent all independents of this chamber.

That situation, as has been pointed out, will change more dramatically in short order. We will have five new senators, from what we understand, who will join us by the end of February to fill five of the existing vacancies; and by August this year the total number of independents — those who are members of the chamber and those who will join us — will total 38. The number of Liberal independents will be 24. I simply point that out to say that the decision we make today and the decisions of this extremely important committee will impact many who are not here today and who will not be represented on that conflict committee.

In short, that committee, of all committees, should be representative of the chamber. We have to have our eyes open, as we know what is coming in short order. I would support Senator McCoy's proposed amendment.

(On motion of Senator Martin, debate adjourned.)


Question of Privilege

Speaker's Ruling

The Hon. the Speaker: Honourable senators, I am now prepared to rule on the question of privilege raised by Senator Housakos on December 8, 2015.

His basic concern relates to the lack of a Leader of the Government in the Senate.


In his remarks, Senator Housakos noted that the Senate has always had among its senators a representative of the government. He argued that the Prime Minister has not fulfilled an obligation to name a government leader in the Senate, which is an affront to our parliamentary system and contempt to the dignity of Parliament. He went on to state that senators would not have the right to question the leader on matters of public affairs during Question Period, a key component in senators' role to hold the government to account. Senator Batters supported Senator Housakos' premise and reasoned that the failure to appoint a leader impeded the Senate's ability to regulate its own proceedings and deliberations as well as the ability of senators to protect regional interests.

Other senators questioned which of the Senate's privileges were being breached by the lack of a Government Leader and noted that historically the Senate has evolved and adapted its Rules and practices to address changes in its organization. Senator Cools indicated that Question Period is only a relatively recent addition to the Senate's procedure. Senator Joyal remarked that even though the Leader of the Government is recognized in statute, the Senate does not have a corollary right to compel the government to appoint a leader.

Senator Fraser stated that the core function of the Senate is to review, initiate or amend legislation, not to hold the government to account, which she argued is primarily a role for the other place as the confidence chamber. Senator Joyal affirmed that the essence of a senator's role is to debate and that the lack of a Government Leader does not impede this ability. Both argued that senators can continue to invite ministers to appear in the Senate or before our committees as a means for the government to answer questions relating to its policies or legislation.


Senators McCoy and Maltais also contributed to the debate on this question of privilege. I would like to thank all senators for their contribution to this important question.


The Speaker's role at this stage is not to decide whether a breach of privilege has in fact occurred, which is a decision that ultimately belongs to the Senate. My role at this initial stage is limited to determining whether the question of privilege raised meets the four criteria listed in rule 13-2(1) and should, therefore, be accorded priority over other proceedings of this house.

The first criterion is that the question "be raised at the earliest opportunity." The leader in the Senate of a new government has traditionally been appointed when the Cabinet is sworn in. The current government was sworn in on November 4, 2015, and no senator has since been appointed as Government Leader. The first two sitting days of the 42nd Parliament, December 3rd and 4th, were devoted to the traditional ceremonies and procedures related to the opening of a new Parliament. Senator Housakos raised his question of privilege on December 8th, the first normal sitting of the new session and the first sitting at which he could avail himself of the procedure established in Chapter 13 of the Rules. As such, I am satisfied that the first criterion has been met.

The second and third criteria can be, and often have been, considered together in rulings. They are that the matter ". . .directly concerns the privileges of the Senate, any of its committees or any Senator" and that it "be raised to correct a grave and serious breach."



Parliamentary privilege relates to the privileges, immunities and powers enjoyed by the Senate and each of its members without which they could not discharge their legislative and deliberative functions. Senator Housakos argued, in substance, that the Senate and senators cannot discharge their parliamentary functions in the absence of a Leader of the Government in the Senate.


The appointment of a Leader of the Government has always been a prerogative of the executive. Since Confederation there has always been a senator who was designated by the government to manage government business and ensure its dispatch in this chamber. The senator was first chosen among one of the ministers of the Crown in the Senate. Over time, as the number of ministers in this house declined, this responsibility was entrusted to a minister without portfolio designated as the Leader of the Government in the Senate. The position was first recognized in statute in 1947 for the purpose of providing an additional allowance to its holder.

The Senate only explicitly recognized the position of Government Leader over time and integrated the office into its procedure gradually, notably in 1968 — when the Rules were amended and Question Period established — and in 1991 — when a formal distinction was made between Government and Other Business.


Senator Housakos and Senator Batters stated that the absence of a Leader of the Government would impede the Senate's ability to regulate its own proceedings and deliberations, and the freedom of speech of senators. They also argued that it would impede senators' right to hold the government accountable and to represent their constituents.


The right of this house to regulate its proceedings free from outside interference and senators' freedom of speech are both authoritatively established parliamentary privileges. The absence of a Leader of the Government does not, in any way, jeopardize these privileges. The Senate still has the unfettered right to establish its procedure and conduct its proceedings as it sees fit, and senators can participate in debate without inhibition and with the full protection of privilege. Furthermore, while this house might not benefit from the government's perspective as presented by the Leader of the Government in the Senate, this is a political matter rather than one of privilege.

As for the right of the Senate and its members to hold the government to account and for senators to represent their constituents, these do not relate to known parliamentary privileges but are rather aspects of the parliamentary work that freedom of speech already allows each senator to accomplish.

I note that while there might not be a Leader of the Government in this chamber, senators have other avenues to engage the government and question its legislation and policies. I would remind senators of the existence of rule 2-12, which allows for ministers to participate in proceedings in the chamber in certain circumstances, although this provision has been rarely used in recent years. We also have the very well established practice of ministers appearing before our committees as witnesses. I also take note of the motion proposed by Senator Carignan, and adopted by the Senate on December 10, 2015, regarding ministers participating in Question Period, which has indeed occurred recently. The mechanism of written questions to the government is also available to honourable senators.

Thus, the question raised by Senator Housakos does not concern a serious breach of privilege either of this House or of its members. The second and third criteria have not been met.

The final criterion is that a question of privilege "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." While Senator Housakos has indicated that he would be prepared to move a motion seeking genuine remedies should the matter be found to be a prima facie case of privilege, I have already indicated that the appointment of a Leader is the prerogative of the Crown over which the Senate has no power. Therefore, this criterion has also not been met.

Since a question of privilege must meet all the criteria of rule 13-2(1) to be given priority, my ruling must be that there is no prima facie case of privilege.


Motion Adopted

Leave having been given to revert to Government Notices of Motions:

Hon. Joan Fraser (Deputy Leader of the Senate Liberals): Honourable senators, with leave of the Senate and notwithstanding rule 5-5(g), I move:

That when the Senate adjourns today, it do stand adjourned until Tuesday, February 16, 2016, at 2 p.m.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to.)

(The Senate adjourned until Tuesday, February 16, 2016, at 2 p.m.)

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