Proceedings of the Committee on Rules, Procedures and the Rights of Parliament
Formerly: The Committee on Privileges, Standing Rules and Orders
Issue 9 - Evidence
OTTAWA, Wednesday, June 13, 2001
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was
referred Bill S-13, respecting the declaration of Royal Assent by the Governor
General in the Queen's name to bills passed by the Houses of Parliament; and
Bill S-8, to maintain the principles relating to the role of the Senate as
established by the Constitution of Canada, met this day at 12:10 p.m. to give
consideration to the bills and to examine changing the name of the Standing
Senate Committee on Defence and Security.
Senator Jack Austin (Chairman) in the Chair.
The Chairman: Honourable senators, today we are dealing with the Royal
Assent bill that has been referred to us by the Senate, now numbered Bill S-13.
Everyone gets a passing grade if they can tell me all the previous numbers of
the same legislation back to 1983.
I hope we will also have time to deal with Bill S-8, which is on the motion of
Senator Joyal, and essentially deals with the role of the Senate and the
engrossment of an additional role for the Senate in various pieces of
legislation where reference at the moment is now only to the House of Commons.
If there is time, we will deal with the motion of Senator Kenny, who wants to
change the name of the committee of which he is now the chair to "Defence
and National Security." In other words, he wants to add the word
"national" before the word "security."
Without further ado, Senator Lynch-Staunton, the proposer of the current Bill
S-13, the Royal Assent bill, is here. I should like to go in the ordinary way to
him to add comments and to direct the attention of the committee to the way in
which he believes we should respond to the motion.
Senator Lynch-Staunton: Mr. Chairman, I do not have anything to add to
what has already been said both here and in the chamber on what is in the bill.
It preserves the current way of doing Royal Assent and adds an alternative that
can be used on occasions that would arise when the Governor General or a judge
was unavailable, or if we had emergency legislation such as back-to-work
legislation that had to be given Royal Assent immediately. The alternative
method would replace drawing both chambers together and following the usual
The last time we spoke about this matter, we agreed that we might get together
with the House of Commons, since Royal Assent does not belong to the Senate. In
the Constitution it is part of Parliament - the Crown being part of Parliament.
I think that is where we should be headed now. We should get their views on this
matter. We can form a common view, if they accept this procedure, and we can
take it from there.
The Chairman: That is a most interesting suggestion. We have two choices
if we follow that suggestion. One would be to report the bill to the Senate for
approval of it in whatever form it wishes, send it to the House and then request
a conference under the rules. Alternatively, with the approval of the committee,
some of us could approach the House informally, as Senator Lynch-Staunton and I
did in the last Parliament, and discuss what they would consider a viable way to
proceed with amendments to the practice of Royal Assent that we now have.
I invite your comments and then comments of colleagues as to this way of
proceeding. This is not taking anything for granted with respect to the
substance of the bill.
Senator Lynch-Staunton: I prefer that the Senate take a vote on it, but
out of courtesy to the House I would not be at all averse to going to the House
first and canvassing their views.
The Chairman: In the same way as we did last time?
Senator Lynch-Staunton: Yes, although perhaps a little more formally this
time. Last time, it was an informal meeting. This time it would be on
instruction of the committee to meet and report back. I hope that they could do
the same thing on their side.
Senator Di Nino: Could you share with us the results of the last
The Chairman: At the meeting were Peter Milliken, Bill Blaikie of the NDP
and a third person whose name I do not recall from the House side, and Senator
Lynch-Staunton and I, and a third person from the Senate. My memory is that the
three people from the House side said that they agreed with the principle of a
summary procedure so long as nothing was done to interfere with the current
procedure. The government would have the option on how to proceed. They agreed
that there should be a formal Royal Assent at least once, and some of them
thought twice, in every calendar year or parliamentary year.
We went through the bill line by line and discussed it. They suggested that we
send them the bill in its current form and they would discuss it with their
colleagues in their caucus.
At that point, we in this committee had some differences of view on Royal
Assent. Senator Grafstein was particularly articulate in his views and there
were others who made other comments. The result was that we did not have a
Senate view that we could send them. That is where we sit today. We have a draft
bill, and they think it is an advance on the current practice, but until we have
a unified position in dealing with the House, I do not think they will take much
time with us on Royal Assent.
Moving on to discuss the bill itself, some points have been made by Senator
Lynch-Staunton. You have before you a memorandum prepared by our researcher,
James Robertson. He goes through the background, which is familiar to many of
you, then presents various proposals that to go back to Senator Frith, the
McGrath committee, Bill S-19, and previous versions of the current legislation.
Some colleagues will not have had a chance to see this document because it was
circulated only yesterday. Therefore, perhaps James could take us through key
issues rather than the document itself. What are the key issues that we should
address in this legislation?
Mr. James Robertson, Researcher, Library of Parliament: The suggestion in
this bill, as the briefing note indicates, goes back many years in Canada. It is
a question of whether the traditional Royal Assent ceremony that is currently
carried out in the Senate chamber by the Governor General or, more commonly, by
her deputy, should be continued in its present format or whether there should be
some alternative provided. Several other jurisdictions that trace their roots to
the British Parliament, such as Australia and New Zealand, have not continued
this traditional ceremony. They have adopted a more expeditious route of an
exchange of messages by document.
The current ceremony is, however, an important part of the legislative process
in Canada. It highlights the fact that the Parliament of Canada consists of the
Governor General, the Senate and the House of Commons. Concerns have been
expressed that to eliminate the ceremony altogether, or to have it only two or
three times a year, would diminish the importance of the Senate and allow the
media and the public to forget that the Senate plays an integral part in the
At the same time, suggestions have been made by Senator Grafstein and others
that the ceremony could be enhanced rather than eliminated by turning it into
more of an educational mechanism to educate viewers on CPAC or people in the
galleries on exactly what the bills are that are being assented to.
The point has made by supporters of the bill that while they think the current
Royal Assent ceremony is important, it is sparsely attended, certainly by
members of the House and often even by members of the Senate. That is partly due
to the timing of it. That is partly due to the fact that the ceremony is not
attended frequently by the Governor General because of other commitments.
However, there are other ways in which it could be handled. Perhaps by having it
only two or three times a year, it could be enhanced and turned into a much more
ceremonial and symbolic occasion.
Those are some of the issues that have been raised in connection with the
previous versions of the bill.
The Chairman: Certainly, the judges are clear that they believe that the
Royal Assent, where they are called upon to act as Deputy Governor General, is
an interference with their work. In some ways, the notion of a conflict of
interest has arisen. They have to interpret the law. What are they doing
approving it? That does not trouble me in the slightest, but one hears that
Senator Lynch-Staunton: On that note, tomorrow a Royal Assent ceremony is
scheduled for five o'clock, with the Governor General in attendance. The only
reason the Governor General is coming is that no judge of the Supreme Court will
come, since one of the bills to be given assent to is in amendment of the Judges
Act, in which they find their salary increases. The Governor General is
replacing a member of the Supreme Court.
The House will have gone home by that time, so there will be very sparse
attendance from the House side. It will be the end of our last day here, I
believe. Our attendance will not be what it should be. It is in cases like that
where I think a written declaration saves the embarrassment of having the Royal
Assent ceremony conducted in such a manner that does not enhance its key role in
the parliamentary system.
If the formula suggested here does not satisfy, I hope we will not spend too
much time on it. The more I think of it, the more it would be valuable to get
together with members on the House side to explore with them alternatives that
could be agreed upon other than the ones offered here, while maintaining the
ceremony as we know it. That is a key component of the bill.
The Chairman: My inhibition has been that, in taking a variety of views,
I find that difficult advocacy. It is to be hoped that we could have a very
substantial common view with the flexibility to respond to their views and
interests before we sit down with them. I am eager to hear from honourable
Senator Grafstein: Let me deal with it in reverse order. To have a
conference without a view that the bill is acceptable, without a clear or
overwhelming consensus, to my mind is shooting ourselves in the foot. That is
not an appropriate way to prepare for a conference with the other House.
Second, there is a bias in the other house against the Senate. There is a bias
about walking over here. There is a bias against attending at a Royal Assent
ceremony. There is a bias in favour of the Senate being invisible. In addition,
three cabinet ministers have suggested that the monarchy should be abolished
and, in addition to that, a number have said from time to time that the Senate
should be abolished. To my mind, it is not appropriate to deal with this matter
as if they are equal parties coming to this conference with an open mind, unless
we take the position of Senator Lynch-Staunton and say, "Let us make this
efficient. Let us collapse the event as best we can."
I start from an entirely different premise. My premise is that we need greater
symbols, active symbols of unity. Therefore, I have no problem in suggesting
that the Governor General attend here on a much more regular basis. Her
constitutional duty, first and foremost, is her responsibility for Royal Assent.
She has only two constitutional duties: first, Royal Assent, and second, to deal
with changes of government, cabinet. The rest of it is in the area of symbolism.
I look at this as saying that the more she attends here, the more visibility is
given to the Senate, the more visibility is given to instruments of national
unity, and the more visibility is given to the role of the Senate in the
constitutional framework. We get the symbols to match the action, as opposed to
saying "Here is the symbol and here is the action," as if the two were
There is a disconnection in people's mind. They do not know about the Royal
Assent ceremony. They do not know about the role of the Governor General and the
role of the Senate. To remove those minimalist things that we do to heighten our
visibility is to agree with those who say that we should disappear, or roll
I start with an entirely different premise from Senator Lynch-Staunton. I say
that because he and I have been jousting about this. I start by saying that the
Governor General representing the Crown is a very important constitutional,
legal responsibility. It is more than the Speech from the Throne. Nothing is
more important than her responsibility for Royal Assent. It is in the
Here is the argument against it: It is inefficient; it requires people to walk
from one building to another, and it requires them to show up; it happens at
five o'clock, so no one is there. I agree with those arguments, but it is a
question of organization. If we had the Royal Assent ceremony regularly on
Wednesdays at one o'clock, there would be greater attendance. The chamber would
be full. There is no reason why we cannot schedule the Royal Assent ceremony at
The Chairman: We could not have this meeting or lunch.
Senator Grafstein: We conduct the Royal Assent ceremony at five o'clock
because of the organization of business between the two Houses. We are cramming
up and getting things through in the last two days, and then we have Royal
Assent to put the rubber stamp on it. We could say to the government, "By
the way, if you want to have Royal Assent, you had better go through all those
machinations on or before one o'clock on Wednesday of the last week, because
that is when we will have Royal Assent. If you miss that date, there will be no
Royal Assent until next September." Government would then reorganize
itself, and so would we.
If one wants to be efficient, that is fine. I will stand back. On the other
hand, one may want to take a serious look at the role of the Senate and the role
of the Crown's representative in the Senate. As senators have suggested, with
CPAC we have a magnificent vehicle to publicize all these ceremonial matters and
to act in an educational capacity as to what the Senate does and what is
contained in the bills. How many people really know, other than the salary bill,
what we have been doing in the last two or three weeks? The general public does
not know. There is no general understanding of it.
I think it is important for us to use this event. Royal Assent was meant
originally to demonstrate to the public at large that the Queen or the King was
coming to add her or his name to a bill that, in fact, would then be
promulgated. There would then be a royal proclamation of the bill, all with a
view to educating the public as to what was in the law, based on the
constitutional premise that ignorance of the law is no defence. That is how it
started. I am encapsulating a lot of constitutional history and catchwords, but
that is what it is all about.
My view is that we can reorganize ourselves better and smarter. I hate this
process of having to cram things through at five o'clock or six o'clock on a
Thursday night. If we make this a condition, we would be forced to reorganize
ourselves better. Because we do not, we relegate Royal Assent to another sort of
administrative function. However, it is not an administrative function. If we
treat it as an administrative function, we are then treating ourselves as
administrators and not legislators.
I have made this argument before. I have a detailed series of amendments that
try to give a counter-version to this. I am prepared to table them if there is a
desire for me to do so. However, I do not want to continue to be the odd man out
on this matter, Mr. Chairman.
The Chairman: Could you address yourself, Senator Grafstein, to the
reason why Canada should be different in this respect from the U.K., for
example, or from Australia or New Zealand?
Senator Grafstein: Let us lay aside New Zealand for the moment. I have
not looked at that situation. Australia, however, has always had a strong
anti-monarchist streak. As a matter of fact, the country is divided 50-50. There
has always been a strong republican streak. Any limiting of a symbol of the
monarchy has been a means of reducing friction in the legislatures. There is a
reason for such a diminishment in Australia; however, in England there is no
reason necessarily to do that because the Queen is there. The Queen attends in
her person. The Queen as a symbol of national unity is entrenched in the public
However, the idea of the monarchy as it relates to Canada is still a dicey
question. I am not a monarchist. I do not want people to believe I am promoting
the monarchy. I am promoting symbols of national unity that are helpful as
opposed to harmful. To this juncture, I cannot think that monarchy still
represents an important symbol of national unity. I am an indifferent monarchist
in that sense.
Yesterday was a perfect example. It is so difficult to get Parliament to agree
on one thing as a question of one unified vision of the country. Yesterday I had
a big problem with my little poet laureate bill where Parliament wanted to have
two poets laureate, one French, one English. I would rather see the bill die. If
we cannot have one poet laureate at a time representing one vision of the
country, I would rather see the bill die. It has been passed through and I am
still fighting a rearguard action, but I have support from all parties, except
the Bloc, which does not want to have a single vision of the country, and will
fight it tooth and nail.
Yesterday, again, we had another debate on the pay bill, with a corresponding
diminution of the Senate, relegating the Senate to a second-class character. The
government would like this bill, no question about it, because it is
inconvenient and all things. Quite frankly, some elements of the government
would like the Senate to go away or wither away. If the government of the day
wants to do that, so be it, but let it do it front and centre, not by a death of
1,000 little wounds.
Wherever we get a chance to display a big-time symbol, I think that would be
terrific. There could be a great educational show. Her Majesty's representative
comes and grants Royal Assent to the bills on CPAC; the chairman of each
committee explains what each bill is all about. It could be done four times a
year. It would be great for the Senate, the country and for education. It would
be a great tool for unifying the country.
The Chairman: Thank you for putting your views so clearly to the
Senator Poulin: For six years, I have been taking a position on this
issue both within our Liberal caucus and at the meetings of the Committee on
Internal Economy. I have also taken a stand in the Senate Chamber, and I adopted
the same philosophy as that of Senator Grafstein.
I will not repeat all of Senator Grafstein's arguments, because I could not
present them as well as he did; however, we should remember that three years ago
we did a study using focus groups to get a better idea about the public
perception of the Senate.
One of the key conclusions was the misinformation about the entire parliamentary
system. Following this study, we gave the Committee on Internal Economy two
tasks: to become more transparent and accessible, and to try to identify the key
events that would enable us to produce information in an efficient, simple and
organized way with certain of our partners such as Government House and the
House of Commons. The idea was to ensure that we would create events that would
allow us to better inform all Canadians and other countries, to show them who we
are as parliamentarians and legislators.
For these reasons, I am in favour of reviewing the tradition, and I thank
Senator Lynch-Staunton for forcing us to do that. His initiative has given rise
to a very healthy discussion.
The Senate must be better organized in order to be more effective. We must
ensure that the other players involved, because we are not alone in this, are
committed to our objective of making the institution more transparent, and
particularly providing information by radio and television about the legislation
we are studying and the entire context of the various bills.
Senator Gauthier: I agree with Senator Grafstein, and I agree even more
with Senator Poulin. We come back to this question: "How can we make people
aware of the work done by the Senate?" What can we do to educate Canadians
and help them understand Parliament better?
To those who ask what difference there is between England and Canada, I would
say that we are a federation, first and foremost. That is important, because
there are 10 provinces in Canada with more power than in any other federation in
the world. Our system is decentralized. Canadians are confused when asked what
exactly senators do. We know that we work, but we do not say so. I wonder
whether we are afraid to speak up.
I have already suggested that we stop granting Royal Assent in private. This is
done publicly in the House of Commons, and yet we do it in secret in the Senate!
I am talking about television and visibility. I have nothing against the bill,
and I particularly like the idea of using this bill to promote a better
understanding of how the Parliament of Canada works, and the role of the two
I have already suggested CPAC. This is not a complicated matter. In the very
near future we will be making a decision about broadcasting committee meetings
and the Senate proceedings. In my view, it is essential that we start with the
Senate, that we install cameras so that we can broadcast special events such as
It is imperative that the Governor General be present and part of the
proceedings. There must be someone from the Senate to explain to Canadians in
both official languages exactly what is happening, what the objective is, and
how the procedure works. That is important.
I do not want to prolong the debate, but at this stage I do not think a meeting
between the committee and representatives from the House of Commons would be
useful. We must make our decisions here, and I would be very surprised if there
were any opposition. There may be some from the Bloc Québécois or a few
I was a member of Parliament for 22 years, and I can tell you that it was
difficult to find enough MPs to go to the Senate for Royal Assent. I remember
times when there was only one person in the Chamber and that was me! There was
no one else! As the whip, I was there, but no one else was. It was neither
inspiring nor proper. I think you understand what I mean, and I think we have an
opportunity to do something very special and we should take advantage of it.
Senator Di Nino: I laid my cards on the table first, notwithstanding that
I find Senator Grafstein's comments admirable. I disagree with him on this
issue. Senator Lynch-Staunton's bill does not include the kind of occasional
symbolic showing of the unity and the value of the educational component of our
I suspect one of the reasons why the UK decided to do away with this symbolic
gesture is that people felt it was not important enough to participate in, or
attend, or that they no longer saw any value in it. If it was done every time or
on a frequent basis, I fear that it would become an embarrassment, and that
members both from our chamber and the other place would not attend.
I was struck by the comment made by Senator Grafstein in support, the thought
that we should do things to inform Canadians and let them know the things that
we do for the benefit of the public policy process and the benefit of Canadians.
However, we should use substantive issues. We should do that in ways that have
some meat attached. The symbolic value of Royal Assent, particularly the way in
which it has been done in the last generation or two, adds no value. The
objective discussed cannot be achieved by that action. I think we need something
different. We will have an opportunity to discuss this when we talk about
committees and the role of the Senate and all those issues that this committee
has been charged with.
Senator Lynch-Staunton's bill says we should retain the ability to have Royal
Assent from time to time. I agree that perhaps this could be done once or twice
a year and that it be properly organized with the Governor General so that he or
she can be here at that time and allow that to be the educational component. I
am afraid it will not work if we retain it as a standard feature and will
probably be embarrassed, as we are now, when these things occur in the Senate.
Senator Joyal: I know that Senator Lynch-Staunton certainly will be able
to help us to clear the first point, which is the issue of the royal prerogative
that has been raised. I do not know if that was addressed in the earlier
presentation. It has been an issue mentioned in previous debates.
Senator Lynch-Staunton: Did we not receive a ruling from Senator Molgat
on that when he was Speaker, to the effect that that could be resolved during
committee hearings, or that the question should not stop the bill from
The Chairman: It is part of our assignment to report back on the use of
Senator Joyal: I wanted to know how to proceed with that. It is an
important element and essential for the validity of what we are doing.
Second, I have a point of information. In previous discussions, when Senator
Lynch-Staunton was in attendance, I mentioned the case in Federal Court where
the constitutionality of judges acting here in place of the Governor General was
raised. I wonder if that case has been resolved. The decision would be important
to reinforce the bill or not, depending on the outcome of that case, and is an
important element that we cannot ignore in terms of the arguments put forward.
Senator Lynch-Staunton: I do not know about the court case, but the view
of Senator Beaudoin, which must be respected, is that the judge acts as a Deputy
Governor General and not as a judge. Therefore, the conflict that is perceived,
like the one which would stop a judge from coming today, is not well-founded.
The Chairman: That is also the opinion of the court at this stage.
Senator Joyal: I should like a report on where the case stands. If there
is a final judgment, we should take that into account. It is an important
element that we should consider.
The Chairman: We will have it next week.
Senator Joyal: My final point to Senator Lynch-Staunton is that you
certainly have studied this proposal a lot because it came back again from the
last Parliament. In your knowledge of the practice that we have today of the
Governor General asking to be replaced more often than the Governor General is
present for Royal Assent, in your opinion, what is the reason or explanation to
try to help us understand the very point that if there is one function that is
not symbolic but is real that the Governor General has, it is to assent to
legislation.In your opinion, why, over time, has this developed as a practice?
Senator Lynch-Staunton: I have an opinion on that, but I want to be
careful on how I state it. I think it is because the office of the Governor
General, if not the Governor General himself or herself, are just not
interested, and feel that the act is but a symbolic act. It just has to be done,
but why bother doing it if there are more interesting things to do in life, and
they can send someone else to do it. That is basically what it is all about.
Senator Kroft: I found the remarks of Senator Grafstein never more so
completely responsive to what are the whole range of concerns raised. I share
his view of being an indifferent monarchist. I search always for the symbol and
wish we could find a better one.
Having said that, this is the one that we have and that serves us, and there is
a powerful case for presenting it for all its educational value. The troubling
thought that I cannot quite let go of is the issue of the Senate, the role of
the Senate, its relevance in the system, its meaning to Canadians. I have to ask
myself, as strongly as I believe in history and symbols and the importance of
carrying history forward, the more we present the ceremonial side and the pomp
and the things that are important in a parliamentary context, are we in some way
running contrary to our very efforts to demonstrate contemporary meaning and
relevance to Canadians? What is important to us in demonstrating that this is
the way our system works, that this is the Queen, and this is the great chamber?
Are we in a very real way saying to more and more Canadians that it is a
self-indulgent thing that is very meaningful to those people but really does not
mean much to us?
Perhaps what would be better on CPAC would be to have the Governor General, or
if not the Queen's representative, a Canadian institution in that regard enter
into a discussion challenging legislators as to the meaning of the legislation.
It sounds like a bizarre idea in the face of the formality, but I am searching
for relevance in the long-term interests of this institution. I am not convinced
that every time we present the ceremony in front of people we do not build a
greater message of "Those guys love doing that stuff down there but it is
not relevant to us." That is my dilemma.
Senator Murray: Just on one point, Mr. Chairman. The explanation given to
me a long time ago as to why the Governor General does not show up more often
for Royal Assent is that there is, or perhaps was, a tradition that whenever the
Governor General shows up on the Hill, the Prime Minister has to get busy and
greet him or her and take him or her into the Senate chamber. The problem is not
so much with the Governor General as it is, or was, interfering with the busy
schedule of the Prime Minister. I do not know why that should be so. A minister
is a minister, and there are plenty of them. I know that was the case, and it
was explained to me at the time within the past 12 years.
Senator Grafstein: Hence my idea that Royal Assent would take place on
Wednesday, which the Prime Minister says is the most important day of his life,
when he comes to caucus. I thought that, five minutes after caucus, he could
The Chairman: The next Prime Minister might have another priority.
Senators, I would like to close this discussion soon. We will come back to it
next week, because we have another item on the agenda.
Senator Kenny: I was about to say some very interesting things about pomp
and ceremony, but I was told if I did that, we would not get to my item on the
agenda, so I will not speak.
The Chairman: I thought it was background for your statement.
Senator Stratton: As a practical reality, it will be tough to make this
fly. I would agree with Senator Kroft: How relevant is this in the eyes of
Canadians - with one exception. If you use this as a ceremony and you fill the
gallery with school kids to educate them as to what happens as legislation
proceeds through this place, then you might have a greater chance of making it
relevant to those who are coming along.
You must pick something like that to make it relevant. Use the ceremony as an
Senator Bryden: Almost anything would be better than what is happening
now, when we have an empty room and people who treat this ceremony with no
regard. Having said that, I am concerned that, no matter what we do with
legislation, we as parliamentarians - perhaps that is why - have an automatic
reaction to fix any problem in this country by passing more legislation. We
change the acts, whether on criminal justice or young offenders or whatever.
That will not solve our problem here.
A few things may be helpful, though. Senator Lynch-Staunton's proposal goes some
distance, but I suggest that the onus be reversed. Royal Assent would be
conducted by the Governor General as a general rule, with the provision that
another procedure could apply.
As an educational tool, we should schedule two Royal Assent ceremonies per year.
One of those events could happen when the Forum of Young Canadians is here in
the spring and the place is full of people. Another context could be developed
for the fall session at an appropriate stage.
Going the other route and saying that the symbolism is not important and that
the symbolism separates us from ordinary Canadians, I do not think that is
valid. To follow Senator Kroft's line, if we want to really become relevant, the
Governor General and all senators should be joining an Internet chat room to
explain how all of this happens, so that everyone is wired and everyone gets to
My observation is that something may need to be done to the legislation so that
it can be a stimulus, but only practical action and practical planning will keep
this symbol at all, either the way it is now or by making it the one that
normally happens and the other as an exemption in the event of an emergency.
Give it some priority. Make it a place where people want to be. For the Governor
General, this is her job and he or she should be here.
As another comment, we might get more commoners if, in the event of Royal
Assent, we would allow the commoners to sit down.
Senator Kenny: Let us not go that far.
Senator Bryden: Or do it in the House of Commons. We talk about them
trying to exclude us and do away with us. If I were a sitting MP, I would not
come down and stand out there in the corridors to watch this ceremony occur.
Whatever happens to Senator Lynch-Staunton's bill, we must do some practical
organizing and planning to make this a hit. It can be done. Symbolism is
important in this country, and we have lost much of it.
The Chairman: I will try to sum up and then we can continue the
discussion next week. Strangely enough, to my ear, there is a lot of commonality
in what sounds like different approaches. Apart from the question of whether we
are excited, indifferent or negative with respect to the monarchy, we have the
monarchy and we must build a solution on the basis of the existing system.
There is a lot of interest in creating an environment where Royal Assent is
meaningful within the parliamentary tradition and to the public. Some commented
that not all ceremonies are worthy of drawing them to the public's attention.
Numerous bills are passed at numerous times during the year. Senator
Lynch-Staunton's bill suggests that a choice should be given to the government
on the condition that timely Royal Assents do take place, perhaps before
Christmas, before Easter, before the summer break, sometime in the fall, three
or four times, and that the government commit to using these occasions to
express to the Canadian public the importance of Parliament as a whole.
I leave that as a summary. The steering committee will chat with staff and
perhaps we can make suggestions on one piece of paper next Wednesday and see if
we can conclude a common view by going in both directions at the same time. That
should not be beyond our capacity. Thank you, Senator Lynch-Staunton.
We now turn to Senator Joyal's proposals in Bill S-8.
Senator Joyal: Mr. Chairman, I am privileged to have this bill discussed
by the Standing Committee on Rules, Procedures and the Rights of Parliament at this point
in time when the committee is seized with the mandate from the Senate to review
the structure of committees, and considering our previous discussions on the
role and functions of the Senate, particularly on the functions of committees.
Bill S-8, as you know, is an omnibus bill to restate the status of the Senate in
27 pieces of legislation where it was omitted. The preamble of the bill states
very clearly the parity of equal consent that should be provided by the Senate
in the enactment of valid legislation in Canada.
We must report as a committee, if I remember, at the end of October of this year
on the restructuring of committees. I thought it would be advisable, then, for
this committee to take part in the debate on this bill because it comes back
finally to the art of the principles that preside over our responsibility.
On some of these 27 acts, the government has no objection in principle to
reinstating the Senate, particularly where the Senate has been admitted as a
recipient of reports ordered to be tabled in the House of Commons by ministers.
In other words, these are statutes that seem to have omitted the Senate for no
policy purpose. This is a set of bills that does not question any policy issues.
The Leader of the Government outlined that there are bills with respect to which
the government would like to have a representative of the department or
ministers concerned to restate the policy objective. Personally, I have no
objection to that. I think it would be helpful for the members of the committee
to help them come to a conclusion on this matter.
I see in our organization studying this bill the possibility of presenting to
you at the next meeting a kind of report on the bills about which there do not
seem to be any problems. Those would have a second kick at the can, if I can use
an unparliamentary term: that is, a hearing of representatives of the
departments concerned. They could explain why the Senate was omitted, along with
the rationale, the policy objectives and reasons therefor, as well as whether
those reasons, valid at the time of the passing of the legislation, are valid
The Chairman: If they were valid to begin with.
Senator Joyal: I am thinking in particular of the referendum bill. The
resolution is first tabled in the House of Commons. Once it has been debated and
adopted in the House of Commons, it is then sent to the Senate. In a strict
sense, the resolution is not tabled at the same time in both chambers. However,
in practical terms, we assume our responsibility of sober second thought and
amend it, if necessary, and send it back to the Commons. I have no quarrel with
a situation like that because the principle is preserved.
However, there are other bills where we are clearly omitted from important
legislative activities of scrutinizing regulations and holding the government to
account. I refer to the Employment Insurance Act where only the House of Commons
can veto regulations. We all know that there is a joint committee of the Senate
and the House that is very active. In fact, with all due respect to the members
of the other place, having been one myself, most of the work of that committee
is performed by honourable senators. We might want to revisit why we were
excluded from giving consent on the regulations related to the Employment
I do not want to debate this issue today. I am giving that as an illustrative
Furthermore, with the consent of the committee, I should like to suggest to the
committee that we could call upon a witness to exchange views with us on the
issue of bicameralism in Canada. In fact, it is part of the overall discussion
that we have been having on the restructuring of the committees. I am thinking
of Professor David Smith from the University of Saskatchewan whom some of us
know. He is presently writing a book on bicameralism. He has done extensive
research on the issue. I feel that this goes to the core of the very definition
of our role and function.
Some of us last year heard from Professor Smith. Most of the senators who had
the privilege of attending his presentation, regardless of their stand on the
issue we are debating, recognized the great in-depth knowledge of Professor
Smith. That, honourable senators, would be helpful for the overall discussion
that we have on the restructuring of committees. In other words, we could kill
two birds with one stone. That is the way I propose proceeding with the study of
The Chairman: Thank you, Senator Joyal, for outlining a procedure. I was
considering taking this committee next week, paragraph by paragraph, through the
issues and having you comment with respect to what you thought was controversial
and what you thought was not, and limiting the number of issues. I understand
you are not available next week.
Senator Joyal: Unfortunately, I made some previous commitments on the
basis that we would be adjourning on June 15. As you know, I always try to put
the Senate first. I look at my colleagues on my left with whom I feel familiar,
and those on my right, and I took for granted that we would be adjourned. I
accepted a commitment abroad, which is partly in France. I am presiding over
The Chairman: We have about 10 minutes now. You could take us through the
bill and indicate those things that you think are sufficiently controversial
that we might need to hear from a witness on. Unless there is someone who
objects to hearing from Professor Smith, the proposer of the bill is suggesting
his name. It raises the question of whether any senator wishes to propose
another professor who would take a contrary view. We do not have to have a
contrary view, but it is always proper procedure to suggest such a thing. We
would then defer the witness to the fall, of course. However, in preparing our
witness list, it would be helpful for you to tell us now, or if senators are
comfortable in saving time, you could indicate to me at another time and I could
inform colleagues next week. Do you have the information ready now?
Senator Joyal: I have prepared a classification on my own. I have not
reviewed that with the government representative, let us call it the Privy
Council, to put it in the broadest terms. Before I circulate that kind of
classification, I should like to revisit it with them so that we come to the
same conclusion that this is not contentious but needs to be revisited. I could
take it upon myself to provide you with that for the next meeting on June 19.
You would then have a report that would be fairly clearly defined as to which
legislation would need to be revisited by the members of the committee. I have
it only in one language. It might not be the only one the government would like
to see. I would prefer to refrain from identifying those bills because, as I
mentioned to you, this is the government approach to the study of the bill. In
principle, they accept most of the bills, except perhaps three or four on which
they would like us to hear the reasons at that time. I would prefer to revisit
that with them. In fairness to the government, I think it would be better.
The Chairman: That would be very acceptable to the committee, to have
your document when it is ready and to continue the discussion on the bill when
we meet again in the fall.
Senator Joyal: It will narrow the debate to a very specific number of
items. That will save time and be more effective.
Senator Losier-Cool: At recent meetings, we have talked about the role of
the Committee of the Whole. I would like to hear Senator Joyal's comments about
the possibility of studying this bill in Committee of the Whole since it
concerns all senators. I would also like to hear what he has to say about
possible reactions regarding the study of this bill by the Committee of the
The Chairman: In the Committee of the Whole?
Senator Losier-Cool: Yes.
The Chairman: Senator Joyal might like a moment to think about that.
Senator Losier-Cool: I will not be here next week. I would like to here
his reaction to that suggestion.
Senator Grafstein: Chairman, all of the matters we have discussed
regarding the bill raises another question that perhaps might be addressed in
the process of our review. What is the role of the Department of Justice and the
Privy Council Office in examining legislation and, in effect, approving
legislation? I am not sure how it currently works, but there is obviously a
requirement by the Department of Justice to sign off on bills. There is also a
process, different from government to government, whereby all legislation gets
funnelled through a Legislative Committee. It would be very useful, in addition
to all the evidence that Senator Joyal is suggesting, that we have
representatives from those two government branches present their views about
I support this bill. We did not present it merely to try to correct the past. My
purpose in supporting the bill was not merely to correct the past but to send a
strong message to the government and its organs that they should not do this for
many different reasons, constitutional and otherwise. We are here not only to
redress the past, but as an educational tool to the government.
I raise that as a suggestion, not a requirement. I would be interested in
hearing what the Department of Justice has to say about this, as well as finding
out the role of the Legislative Committee in the Privy Council Office. I am not
sure if we ask the officials or the ministers responsible.
Senator Murray: My recollection is that there is a legal and
parliamentary group within the Privy Council that deals with legislation and
advises the house leaders of the two houses on various parliamentary matters. I
would presume that the statements quoted in this document from Senator Carstairs
would have been drafted by Privy Council and vetted, probably, in the Prime
Minister's office, as indeed would have been the excellent answer she brought in
yesterday defining the constitutional convention of cabinet solidarity. That is
worth reading, by the way.
Those are the people whom you want here as witnesses when it comes to looking at
these areas that Senator Carstairs indicated might be problematic. We should
have the people from Privy Council here to justify why the Senate was written
out of those particular provisions, and only the House of Commons remains. The
draftsmen are in Justice, but I am not sure that they would have a view as would
Privy Council as to the role of the two houses.
The Chairman: Anyone who has been in cabinet, and Senator Joyal and I as
well know that oft-times it is not a question of law or ordinary procedure but a
question of policy. The Cabinet committee on legislation will wonder why
something should be done in a certain way and then they will make a change. That
is the sort of thing that a public official would not be able to address.
Senator Murray: If there is a rationale, they could state it. If it is a
policy matter, they could state that it is a policy matter, and we could go
after the policy.
Senator Grafstein: There is a confusing process in the practice of the
government that we have uncovered in the course of dealing with a number of
bills. It is important that we at least look at it.
Senator Murray has raised this from time to time in some of his questions. My
understanding is that when legislation is drafted, the Department of Justice, as
a question of convention or requirement - I am not sure which - signs off and
says that the bill is constitutional. I also understand that within the Privy
Council Office, Justice officials are part of the Privy Council Office, and they
play a particular role.
I never sorted that out in my mind. I found it very confusing in terms of
cross-examining witnesses with respect to some measures where it was clear that
the department had signed off on something, and then something was added at a
subsequent stage. It would be very interesting to at least have an understanding
of how that works. You raised this, Senator Murray, a number of times. I think I
am clear on it. However, when I hear officials talk about, it is not clear.
To whom does a Justice official sitting in Privy Council office report? Where
does that official's responsibility lie?
Senator Murray: They are employees of Justice. They are no different from
lawyers in any other department who belong to Justice.
Senator Grafstein: The Department of Justice pays them?
Senator Kenny: They report to PCO, and answer to PCO.
Senator Murray: It is a legal requirement that the Minister of Justice
sign off on government bills presented in the House both as to the Diefenbaker
Bill of Rights and the Charter. That is what I mean in terms of division of
power issues. I do not know whether there is any formal sign-off.
The Chairman: There are one or two very interesting issues that Jamie
Robertson has raised in his note. I would ask colleagues to pay particular
attention to that. One of our most interesting future discussions will be on the
Employment Insurance Act and the role of the Senate there.
Having said that, we have a clear path for going forward. You might want to
consider, Senator Joyal, the report of this committee being raised, as Senator
Losier-Cool suggested, in a debate in Committee of the Whole. I leave that to
you. You are the sponsor of the bill.
Senator Joyal: As we would say in court, I concur with my learned friend,
Senator Murray, about the role of the PCO and the Department of Justice. I have
been a member of the Legislative Committee of cabinet when I was a minister of
the Crown. At that time, I knew well the practice and the role of each of the
departments, including Privy Council and Justice.
I wish to point out the bizarreness that exists in the Canadian Bill of Rights.
The certification by the Department of Justice is only for bills tabled in the
Senate. Any government Senate bill is not covered under the obligation of the
Minister of Justice to be certified. The Senate is omitted. It is the same for
The matters on page 7 and 7a of the proposed Bill S-8 is aimed at correcting
that. It tells you what is in the mind of the Department of Justice on an issue
such as that. They consider the Senate as being not useful or not necessary to
give certification as to the Bill of Rights or the Charter. Page 2 of Mr.
Robertson's paper alludes to that.
I will work under your guidance for the overall organization of the committee.
The issue raised by Senator Losier-Cool is in relation to the comment by Senator
Grafstein that there is an educational purpose with that bill. It signals that,
as a house of Parliament, we want to have our constitutional role of expressing
parity of consent fully recognized, and our role of scrutinizing government
administration and government decisions. We wish to assure that the role of our
check that we exercise on the other chamber is done properly.
This bill addresses those two issues. We could have a debate in the house on
third reading, perhaps at report stage, as a Committee of the Whole so that we
have a free flow of intervention and debate on this matter.
The Chairman: We must consider whether we have witnesses at this
committee to assist us in preparing our report, or alternatively, whether we
invite several officials into the house for a Committee of the Whole. Which
would be the more efficient and effective way to take the evidence?
This committee could be televised, if it met in committee; however, we cannot
televise the Committee of the Whole. That question is on the agenda of the
Standing Committee on Internal Economy, Budgets and Administration, but it has
not yet progressed. Those are some issues that we will look after.
Senator Murray: We have done it.
Senator Di Nino: We have not televised Senate proceedings, but we have
televised Committee of the Whole.
The Chairman: I stand corrected; I am so oblivious to cameras.
Senator Kenny wants to make an argument for the change of name of his committee.
We have time, Senator Kenny.
Senator Kenny: Thank you very much. I appreciate the time and
opportunity. The committee met, and its request to the Senate, which was quite
properly referred here, was to change the name of the committee, which is
currently the Standing Senate Committee on Defence and Security, to the Standing
Senate Committee on National Security and Defence. The committee felt that the
suggested name would more accurately reflect the work of the committee. We feel
that the ambit of national security more accurately describes the work that the
committee envisioned, and that we assume this committee envisioned when it put
forward its initial report.
Perhaps, in a general sense, if I could comment on the areas that this committee
would touch on, that might assist the Rules Committee in examining this matter.
We anticipate connections with the following organizations: The Communications
Security Establishment; the Defence Science Advisory Board; the Defence
Department Ombudsman; reserves; cadets; benevolent funds; Veterans Affairs; the
Solicitor General, as it related to policing; the National Security Directorate,
the Department of the Solicitor General; the RCMP, as it related to national
security issues and the protection of the state; Canada Customs and Revenue
Agency as it related to secure borders and people penetrating the borders, and
the relationship that customs and immigration has with the police and,
sometimes, with the Department of Defence.
Our request is simply that this committee give its approval to the proposed name
change, to the Standing Senate Committee on National Security and Defence.
Senator Murray: Not like that.
The Chairman: What does the word "defence" encompass in your
Senator Kenny: Issues that the Department of National Defence would
normally deal with: Army, Navy, Air Force reserves, cadets, and those sorts of
things, and the benevolent funds associated with them.
The Chairman: Defence policy?
Senator Kenny: Defence policy.
The Chairman: Canada and NATO?
Senator Kenny: Canada and NATO I would see as a joint issue where Foreign
Affairs would have a view as to the treaty aspects of it and defence would have
a view as to the defence capabilities of it.
The Chairman: The equipment?
Senator Kenny: Yes, and whether it is working. The sorts of problems that
come up with our allies. I can see issues coming up, for example, in terms of
NATO expansion. The Foreign Affairs Committee would have views on how countries
were going through the partners-for-peace type of process; how they were
qualifying in terms of demonstrating their capacity as viable democracies,
pursuing the free enterprise approach; how they dealt with minorities; and
whether they had a free press.
I can envision the proposed National Security and Defence Committee looking at
these countries from the point of view of what do they bring to NATO in terms of
their capacity to defend their borders, their ability to project force and
sustain it, and at what tempo?
Senator Murray: I had not heard about this before. I do not know whether
Senator Kenny is suggesting that we simply do this today. If he is, he will have
one negative vote at this table. It is far too big a step to be taken without a
lot of consideration. First, there are committees of the Senate, including the
Standing Senate Committee on Legal and Constitutional Affairs, which would
normally, and which do, have a mandate for the Department of the Solicitor
General. You propose to effectively take over CSIS and other areas under the
Solicitor General that relate to what you call "national security"?
Second, this is a gut reaction more than anything, but I think you are casting
your net far too broadly. National defence is national defence, and God knows
there is enough to be considered there in terms of the morale of the Armed
Forces and the policy governing the Armed Forces, the recruitment, the direction
of the Armed Forces, about which I have some serious concerns. There is enough
for you to do there, without casting your net so broadly and deciding that you
are no longer a committee on national defence but a committee on national
security that will take in all these other matters. Admittedly, this is a gut
reaction, and I can be convinced otherwise, but certainly there has to be very
wide consultation before anything of this kind is attempted.
The Chairman: The Defence and Security Committee, as it is named, has not
been given the power to take on studies without a reference from the Senate. Any
of these wide-ranging ideas would have to come to the Senate for approval of an
order of reference.
Senator Andreychuk: What is the proposal?
The Chairman: Just to change the name.
Senator Kenny: To change the name to National Security and Defence. Right
now, it is defence and security. It is not a big deal.
Senator Murray: Like hell it's not.
Senator Kenny: Like hell it is.
Senator Andreychuk: It was set up as defence and security. The issue is,
did it overlap with foreign affairs? There is a tradition in other countries,
and in the other place, of having a defence committee and a foreign affairs
committee and, from time to time, not always both committees. My feeling was
that, so long as they held to a traditional work load of what defence committees
normally do, there would not be an overlap with foreign affairs. Naturally,
issues overlap, but if both committees were sensitive to each other, they would
not duplicate work; they would compliment work. It was on that basis that the
Foreign Affairs Committee indicated that, with good cooperation, we should, for
the sake of the work of both committees, not compete.
I wonder whether we should have a discussion now, if we will be touching on what
appears to be internal security issues within Canada, or is it that, at the
time, they propose a study? I do not know. That is an entirely different issue,
because it is a national issue, not a foreign affairs policy issue.
The Chairman: The issue before us is whether the change of name changes
anything in the reference of the committee. When we discussed the issue in this
committee, the focus was on defence and security-related issues to defence,
defence policy, DND, and the issues in DND and a particular overview of the
whole area of public policy that was not being considered in the Senate. Of
course, any particular studies would have to be framed, and an order of
reference approved by the Senate.
Senator Stratton: I raised a concern in the first instance because, in
the change of the name, are we changing the mandate of the committee? Has it
changed in any way from its approved mandate? That is fundamental.
The Chairman: Senator Kenny, why do you feel a change of name is
Senator Murray: Is there a change in the mandate?
Senator Kenny: We are not asking for a change of mandate. Our assumption
was that we would have the capacity to continue on the work of Senator Kelleher.
Senator Stratton: Was that in your original mandate?
Senator Murray: I do not know that you have any such mandate.
Senator Stratton: Was that in your original mandate? That is the
The Chairman: Yes. The question of the security of the state was part of
the mandate, if we send the order of reference to them.
Senator Kenny: That is how we read the order of reference.
Senator Stratton: That is really the question, because it then became,
"Why the reversal?"
The Chairman: That is Senator Kenny's burden - why he wants to add the
worth "national " and reverse the names.
Senator Di Nino: We are in the process of reviewing committees and
mandates. Can we not make this matter a part of that review? You do not need to
change the name today. This is an ongoing process.
The Chairman: I do not need a consensus to approve a change of name of
this committee at this time. It will remain on our agenda and we will discuss it
I want to ensure that you take away the binders. Mr. Mark Audcent is reviewing
the draft rules that he presented here. If any of you have any comments, issues
or explanations that you wish to make or obtain, please give them to Mark today
or tomorrow to allow him to prepare for our discussion next Tuesday.
The committee adjourned.