Proceedings of the Standing Senate Committee on
Rules, Procedures and the Rights of Parliament
Issue 5 - Evidence, March 20, 2007
OTTAWA, Tuesday, March 20, 2007
The Standing Committee on Rules, Procedures and the Rights of Parliament met
this day at 9:34 a.m. pursuant to rule 86(1)(f)(i) of the Rules of the Senate
to give consideration to the notice requirements for questions of privilege; to
the reinstatement of bills; and to a draft budget.
Senator Consiglio Di Nino (Chairman) in the chair.
The Chairman: Honourable senators, this morning we will be dealing
with two issues, first of which is consideration of the notice requirements for
question of privilege that was referred to us by the Speaker some time back. The
other item is one that has been hanging around for a while, namely, the
consideration of the reinstatement of bills after either dissolution or
I shall ask our witness, Mr. Charles Robert, the Principal Clerk of the
Senate, to come before us and educate us on these issues. We will start with the
question of privilege.
Charles Robert, Principal Clerk, Chamber and Procedure Office, Senate of
Canada: Honourable senators, I appreciate the opportunity to address you on
the notice requirements for questions of privilege.
In a ruling given on October 26, 2006, dealing with the process for raising
questions of privilege, the Speaker noted three issues on which the Senate's
procedures could be clarified.
First, he analyzed the level of detail required in the written and oral
notices to raise a question of privilege under rule 43 and concluded that the
notice must clearly identify the issues that will be raised as a question of
Second, he invited this committee to examine the relationship between rule 43
and rule 59(10), both of which deal with the notice requirement for questions of
Finally, he invited this committee to examine ways in which the rules might
more clearly delineate the beginning and end of the Routine of Business. Under
rule 23(1), questions of privilege and points of order cannot be raised during
the Routine of Business or during Question Period.
Let me deal with each of these issues in this order. With respect to the
level of detail required in the notice of a question of privilege given under
rule 43, the Speaker emphasized that the purpose of notice is to allow senators
to know what issues they will be considering. He concluded that the notice given
under Rule 43 should, therefore, be sufficiently explanatory and comprehensive.
In other words, the notice must clearly identify the matter that will be raised
as a question of privilege.
If this committee wishes to recommend changes to the Rules of the Senate
to clearly express this requirement, it could amend sections (3), (4) and
(7) of rule 43 along the lines of the following:
(a) Add, at the end of sections (3) and (4) wording such as "clearly
identifying the matter that will be raised as a question of privilege." and,
(b) Insert, at the beginning of the second sentence of section (7) wording
such as "in doing so, the Senator shall clearly identify the matter that will
be raised as a question of privilege and shall indicate that he or she is
prepared . . ." and then continue with the existing wording.
I have models of that proposal here for you, which can be distributed.
This will make it easier for the committee to follow along.
The Chairman: We will have them distributed right now.
Mr. Robert: With respect to the notice requirement for questions of
privilege, the second issue in the Speaker's ruling dealt with the inconsistency
or the conflict between the notice requirements set forth in rule 43 and in rule
59(10). The latter allows a question of privilege to be raised without notice.
As the Speaker explained, rule 59(10) reflects the pre-1999 provisions of the
rule. Before the introduction of the process under rule 43, former rule 33 had
provided that — and I quote:
When a matter or question directly concerning the privilege of the Senate,
or any committee thereof, or of any Senator, has arisen, a motion calling upon
the Senate to take action thereon may be moved without notice and, until
decided, shall, unless a debate be adjourned, suspend the consideration of
other motions and of the Orders of the Day.
In that context, the Senate's current rule 59(10), which was then rule 46(k),
was coherent with the other rules. However, changes to 59(1) that were required
by the addition of the process under rule 43 were not made. Since the amendments
to the rules in 1991 were quite wide-ranging, this was not the only case of an
oversight. To take a very obvious example, former rule 26 prohibited preambles
to a question, whether oral or written, while at the same time rules 24(4) and
42 allowed for brief explanatory remarks.
This conflict was cleared up in 1994, when then rule 26 was deleted.
While the effects of implementing rule 43 on rule 59(10) may have been
overlooked in 1991, this committee is considering the issue now. The committee
might determine that rule 59(10) does serve a useful purpose, providing a means
for addressing a matter of privilege that arises during the course of a sitting.
If the committee decides that rule 59(10) should be maintained as a direct
means to deal with matters that occur during the sitting, it might be helpful to
move it and link it more directly to other provisions relating to questions of
privilege and to clarify how they relate to one another. This could, for
example, be done by adding a new section to rule 43, with the wording along the
lines of the following.
Rather than keep you in the dark, there is a document as well that can be
distributed to give you an idea of exactly what is being proposed.
It would be in the form of the following:
(2.1) If a matter about which a Senator wishes to raise a question of
privilege occurs while the Senate is sitting or after the time for giving
written notice under sections (3) and (4), the matter shall be dealt with at
the time provided for in section (8) or (9), as the case may be, provided that
the Senator rises at the first opportunity and gives oral notice of his or her
intention to do so. When giving notice under this section, the Senator shall
clearly identify the matter that will be raised as a question of privilege.
This would require coordinating amendments to some other provisions of the
rules, which we could do once the committee has come to a decision about the
If, however, the committee decides that rule 59(10) is unnecessary, it could
recommend that it be deleted. Other means exist to deal with issues of privilege
that could come up during the sitting. These include raising the matter as a
point of order if it occurs during the course of a sitting, the Speaker using
the power under rule 18(1) to preserve order and decorum on his or her own
initiative, or the Senate giving leave to take up the matter if deemed
sufficiently urgent. In addition, of course, a Senator would still have the
option of raising the matter the next day under rule 43.
I think, perhaps, I have gone on long enough. There may be some questions
that deal with these two specific points. We can then go on to the third element
that was raised in the Speaker's ruling dealing with points of order and
questions of privilege before Orders of the Day.
The Chairman: That is fair enough. We are happy to accept that
Senator Fraser: Which suggestion?
Mr. Robert: That we deal with these two issues about clarification of
the notice and whether 59(10) means anything to us.
Senator Fraser: Yes, but you offered two options on section 59(10). If
I have the floor, I was going to support the option of just ditching, dumping,
cutting, getting rid of rule 59(10). I like very much your proposals for
revisions to rule 43.
Senator Smith: We could spend a lot of time on this, but I thought the
Speaker's ruling in this was appropriate. I always prefer clarity over vagueness
and obfuscation. I am very comfortable in proceeding to amend the rule so as to
require clarity as to what the point is all about. With regard to the suggested
new rule, at first blush it looks fine. There may be a few great experts who
want to massage and fine-tune it, but in principle I think we are doing the
right thing if we clearly establish that clarity is required.
Senator Joyal: On the first point, which is the substance of the
notice that should be given when a senator wants to raise a question of
privilege, I concur with Senator Smith that clarity is better than uncertainty.
A senator who feels that his or her privilege has been questioned or is at stake
should provide to the other senators the object of his or her claim on the basis
that it helps to prepare for the debate later in the day. That, I think, is
essentially the purpose of that clarity. It is to help us individually
understand the scope of the claim. Meanwhile, if we feel that it is important
for an individual senator to intervene on the issue and reflect upon it, we can
prepare. I totally concur with Mr. Robert that, in that context, it would be
helpful for senators individually in performing their duty.
On the second point, which is when an issue of privilege occurs while the
Senate is sitting, the procedure should be very clear. Before dumping, as
Senator Fraser mentioned, rule 59(10), I should like to be reassured that the
procedure is clear somewhere else in the rules so that we know the exact
procedure and the notice that would be given. I understand that, in that case,
it would be an oral notice that would be of the same substance as the written
notice. In other words, it would have to explain to senators the purpose of the
claim or the nature of the claim so that, later in the day, when the issue of
privilege is debated, senators would be "armed" with the previous knowledge of
the issue so that they have time to think about it.
To me, it is as important to know the procedure clearly when the question
arises during a debate as when it happens before the Senate's sitting. I would
try to create a parallel between the two procedures, in terms of the nature of
the information provided and the time frame for senators to give the notice or
to raise it so that there is a similarity of procedures so that we know
individually when such an occurrence happens what to do and how to behave. I
would try to put the two procedures in line so that we do not have two different
sets of approaches, depending on if it is before or during.
Before I accept the proposal to dump 59(10), I should like to know exactly
where we would get the information about the procedure when the situation occurs
during a debate.
Mr. Robert: If you look at the proposed (2.1) that was distributed,
you would see that it tries to parallel, as you suggested, the process that is
followed now. The only difficulty would be that, if the incident that provokes
the oral notice that the senator wants to give comes at the end or close to the
end of the Orders of the Day, the time gap for preparation would be almost
minimal. The time to prepare, then, would be sacrificed.
For example, let us say that we were dealing with Other Business and a debate
on a motion or an inquiry, which are events that occur towards the end of the
sitting day under Orders of the Day before we get to the Notice Paper. If
something occurred and a senator rose and gave oral notice and clearly
identified the matter that he or she thought merited treatment as a question of
privilege, the time to prepare under the rules would be minimal because it would
come up almost immediately as we approach the end of the Orders of the Day.
There is a problem. Unless we do decide to dump it, I do not know how we can
give you a guarantee of sufficient warning with respect to the consideration of
the question of privilege. The flip side, however, may very well be that, if the
event is provoked by something that occurred in the chamber, those senators who
are in the chamber would be a witness to it. If it is an attack coming from
outside the chamber, I am not sure really why we would want to resort to rule
59(10) when rule 43 is still available.
Again, it is not for us to presume what the committee might judge to be the
appropriate action to take with respect to rule 59(10). When we did our
analysis, the general consensus around the table was that it was an oversight
and that, because of its clear relationship to a previous rule that allowed you
to raise a question of privilege without any notice whatsoever, the listing of
what motions or what rubrics did not require notice would have had to include
questions of privilege. When that change was made, we made no similar adjustment
under that rule.
Senator Joyal: I do not want to "complexify" the issue further, but
let me present two scenarios. A senator is concerned that his or her privilege
is questioned during a debate within the Senate. We are within the Senate and
debating an issue and there is an allegation or a statement made whereby one
senator reflects that his or her privilege might be in question, or the
privilege of the institution, but he does not raise it immediately. He or she
still has the possibility to give a notice.
Mr. Robert: Under rule 43.
Senator Joyal: Yes, to raise that matter the following sitting day.
Mr. Robert: Yes.
Senator Joyal: There is the other occurrence where the privilege of
the Senate is questioned, not during a debate on the floor of the Senate, but
outside. The senator might be aware because, perhaps, there is an article in the
newspaper. However, before the senator comes to the conclusion that the
privilege of the institution is being questioned, he or she could raise it at
the next sitting day of the Senate even though it occurred during a sitting of
the Senate. In other words, there is still flexibility of time for a senator to
raise an issue of privilege even though he is present in the chamber when the
statement is made or he is present in the chamber when the statement is made
outside the chamber.
Mr. Robert: Let me raise a doubt about the first scenario and how it
might play out.
If rule 43 actually requires that you do it at the first opportunity and it
is an event that occurs in the chamber and you did not avail yourself of rule
59(10) if it exists, then have you in fact done it at the first opportunity?
That becomes the question, and because the Speaker is required to evaluate the
criteria by which a question of privilege should be given priority of
consideration, that may become a factor.
With respect to "outside of the chamber," if it is not within your
knowledge the instant it occurs it is very difficult to invoke rule 59(10) to
challenge its privilege status. However, I think there is an issue in the first
scenario that you mentioned if an event occurs within the chamber.
Senator Joyal: Yes, but as I tried to explain, there might be a
situation whereby the senator wants to get further advice on the issue before
raising it. In other words, in the context of risk, you prefer to play the risk
of being ruled out or lose your opportunity of putting it forward. Those are the
Mr. Robert: I agree. If, per chance, the question of privilege had a
political component to it, the first opportunity element could be a basis for a
Senator Joyal: Hence, your advice would be that if you are in doubt
Mr. Robert: If in doubt, I would be inclined to follow Senator
Fraser's advice and actually give more manoeuvrability to the senators involved
by, in some sense, relying more heavily on rule 43.
We always admit that if you do not want to go the Speaker's ruling route to
determine whether there is a prima facie, nothing prevents a senator from doing
it by way of a substantive motion. I am not sure that rule 59(10) gives you a
Senator Cordy: I want to place on the record that in my mind the
purpose of the question of privilege is to allow all senators to contemplate
what they would say in the ensuing debate. If the question of privilege is
simply that I am bringing forward a notice of a question of privilege with no
indication whatsoever as to what it will involve, then the participation of
senators, I think, is at risk, because, when the moment comes, you have no idea
and cannot formulate any thoughts whatsoever in your mind.
I agree with the Speaker that the purpose of notice is to allow senators to
inform themselves of an upcoming debate. In fairness, both to the Senate and to
senators, it is important that any question of privilege give an indication to
senators as to what is actually in it.
I guess we are now in the midst of where we go from there. The rules must be
clear, so that we do not have to go through this time and again. The rules must
be clear and fair to all senators.
Senator Robichaud: I fully agree with what you said at the beginning
of your presentation, namely that the notice must clearly identify the matter to
be addressed, otherwise senators are lost.
My question relates to the point raised by Senator Joyal. If an opportunity
to raise a question of privilege does not arise during a sitting of the Senate,
one could argue that one is late in bringing the matter up, because one failed
to take advantage of the first opportunity to raise the question. This happened
to me once during a debate. I could have raised a question of privilege, but did
not. However, could one give oral notice of one's intention of raising a
question of privilege in the Senate? Would this not leave us time to prepare
ourselves for raising the question at the next sitting, particularly if the
issue arises at the end of the sitting?
Mr. Robert: In practice, under rule 43, when notice is given during
"Senators' Statements," it is an oral notice. It is immediately clear to
everyone that at the end of the day's business, a question of privilege will be
raised so that the Speaker can make a ruling. In addition, written notice is
given prior to the start of the sitting to allow senators time to prepare
themselves, if necessary. That is one way of integrating rule 59(10) with
existing practices under rule 43. However, preparation time remains limited.
Senator Robichaud: Yes, that is my point. If we do away with rule
59(10) and incorporate it into rule 43, as you suggest, and if during a sitting,
a senator gives oral notice at the first possible opportunity that he intends to
raise a question of privilege, could we not find a way to allow that senator,
having given oral notice, to raise the question of privilege the following day
when all senators would be aware of it and could prepare themselves. That goes
for the senator raising the question as well as for the person who is the
subject of the question.
Mr. Robert: If you are suggesting that it should be possible to
consider this question of privilege the following day, why then not simply use
Rule 43? What advantage is there to giving oral notice during the sitting, and
to debating the issue the following day?
Senator Robichaud: The question is also what advantage there might be
to proceeding in this manner, since a senator might be really miffed at the
Mr. Robert: Indeed.
Senator Robichaud: That is time to speak up and emphasize the
importance of the matter. A question of privilege is not something to be taken
lightly. When someone claims that the privileges of a senator or of the Senate
are threatened, then the matter that is to be raised is important.
Mr. Robert: However, if a senator is genuinely frustrated and gives
notice of a question of privilege, when really it is more in the nature of a
point of order, it will limit the manner in which the issue will be dealt with.
The question will be treated as a point of order, rather than as a question of
However, perhaps after giving some thought to the matter, the senator will
come to the realization that the matter is more in the nature of a point of
order that he is entitled to raise immediately. The fact is that very rarely
should a question of privilege be raised in the Senate chamber, whereas points
of order are a more common occurrence and can be dealt with right away.
If the notice is deemed to be a question of privilege and not a point of
order, the Senate must deal with the oral notice and debate the question the
following day, after Routine Proceedings, in accordance with the procedure set
out in rule 43.
Senator Robichaud: If I stand in the Senate and give notice of my
intention of raising a question of privilege and if, the next day, I send a
written notice to the Clerk of the Senate outlining the issues that I raised the
previous day, then under the rules, the matter could be debated. Correct?
Mr. Robert: Yes, by all means.
Senator Robichaud: And we would not have to deal with the matter the
very same day.
Senator Andreychuk: Two difficulties arise here — the first
opportunity and clearly identifying. Having been one who has tried both in
writing and in the chamber, I know how difficult it is. I recall a discussion
about a newspaper story that I found to be breaching my privilege but the
situation was such that I did not read about it until the next morning.
Nevertheless, I was told that the story was in "yesterday's" paper. My reply
was that I am on 12 committees and thus could not get to it. However, if it is
your first opportunity, that is how it will be interpreted. How does one capture
that it was my first opportunity? That was never clearly defined to me. I am
still at the behest of a Speaker ruling on that.
Clearly identifying the matter is also a problem, because to do it justice
you have to do some homework. If you are facing a deadline, you will not have
time to do the necessary research.
We have been in a difficult situation — which is why there are not many
written questions of privilege, except by some senators who know the system or
may have a particular privilege issue that they are tracking and so you do not
see it. Daily, senators jump up in the chamber and yell "privilege," to which
another senator replies "order," so we go to a point of order rather than
privilege. We are either going to have the capability of standing up and saying
"privilege" and having to argue it out and suffer the consequences, or we will
have to have the ability to delay the real debate. To me, a question of
privilege is not for the person raising it but for each and every of us. How
that privilege is identified by the Speaker for that individual will affect me
later. I may have a valid reason for not being in the chamber — or I may not be
available for whatever reason. It seems to me there has to be some sort of
What about the scenario where a question of privilege is raised at 5:45 and
we get to it but time runs out and there is no consent to continue? It goes to
the next day then. In that case, there would be an opportunity to prepare
Should we not be reflecting on these terms and seeing how they are applied
and identifying whether a question of privilege on the floor is handled in the
same way as a written question?
Mr. Robert: I have no disagreement with what you are saying in the
points that you are raising. The only comment I would add is that if you
reviewed the Speaker's rulings on first opportunity and clarity of the question
of privilege, the Speakers of the Senate tend to be fairly generous and are not
too demanding on the senators who feel that a serious grievance is being
addressed through this process.
If, for example, under first opportunity you were to explain that something
appeared in the paper but only now came to your attention, that the moment you
saw it you realized that a breach had occurred and you are taking the
opportunity to raise it now, I doubt the Speaker would deny you the opportunity.
If you feel you want to address it more substantively, it is up to the
With respect to clarity of the issue, often enough the notice is not meant to
be thorough. It is meant to identify what is the privilege that somehow or
another is being breached. It is not necessary to have all the circumstances of
the event to explain how it constitutes a breach. It is your opportunity to
explain that at the end of Orders of the Day, when you have the right to rise
and explain everything. There, the time limit for debate is waived, and you have
as much time as you feel is necessary to explain why such and such merits being
treated as a question of privilege.
Senator Andreychuk: That is fine for someone who has done rules and
procedures. However, for some new senators — newness counts, background counts —
it would be difficult to jump to your feet and explain your point of privilege
fully and adequately on the same day. For someone with a legal background, that
is quite a load. An individual has to be in the chamber for quite some time to
understand what an explanation is. It puts a lot of senators at a disadvantage,
such as those who have not had the benefit of the kind of training and
experience that leads you to that. We take great pride that we are all equal in
the chamber. It would be very difficult to express yourself that quickly without
benefit of some reflection and assistance.
Mr. Robert: That is true, but I will capture the last word of your
comment — that is, "assistance." We are available in the procedure office and
in the Journals office to provide that assistance. We also give seminars to
staff, to senators' staff and to senators themselves, on issues like points of
order, questions of privilege, the mechanics and process to be followed and the
kind of issues that traditionally have been involved when a point of order or a
question of privilege is invoked.
Senator Fraser: I should have explained my reasoning earlier when I
said I was in favour of dumping it. You touched on a number of points that
concern me about preserving 59(10) in any way.
One is that the earliest-opportunity matter I think would become a question
of grounds for challenge, for arguing against the legitimacy of a question of
privilege if it had not been raised.
If we preserve 59(10) and bring it into 43, thereby giving it new legitimacy,
I suspect that people who were not in the chamber, or did not realize that what
had happened was a matter of their privilege, would be strongly challenged when
they tried to raise it the next day because they had not done it at the earliest
It is important to remember, first, that privilege is one of the biggest
weapons in our armoury. It is not something we should do lightly. Second, it is
very complicated; the laws, rules and precedents on privilege are immensely
complicated. That is why I really like this very elaborate procedure that is
laid out in 43.
The language may not be as clear as it ought to be, but the notion that it
must be done in a measured way, with time for all senators to consider the
matter, is very important — most of all for the senator raising the question of
privilege. If the habit takes hold of saying that I have to raise the question
of privilege right away, the process will end up being seriously distorted.
I believe other remedies are sufficient for those rare occasions when
something happens in the chamber that is really egregious. As Mr. Robert pointed
out, rule 18 allows the Speaker to preserve decorum, order and all that.
Points of order are wonderful things. The rules allow for points of order on
all kinds of matters that can be raised in the chamber. I think those
protections are sufficient. That is my comment.
I have a question: Do we know how often people have used 59(10) in recent
Mr. Robert: The only time was the occasion in October, I believe.
Senator Fraser: I did not remember seeing it used before that day.
Mr. Robert: No, because I think people naturally resort to 43.
Senator Fraser: It is not a protection, in other words, that senators
have felt great need to resort to, since we have rule 43 in its present form.
Mr. Robert: The evidence would suggest not.
The Chairman: For clarification, I think you said the only time or, to
the best of your knowledge, the only time.
Mr. Robert: To the best of my knowledge. We have to take into account
that 59(10) is appearing on a list that simply states that no notice is
required. According to the analysis we made, that was linked to old rule 33,
which said that there was no requirement for notice for raising a question of
privilege. To borrow Senator Fraser's words, we dumped that rule and replaced it
with rule 43, but we did not make a consequential change to consider whether we
wanted to keep 59(10).
Senator Smith: I suspect I know the answer to this, but it is not
definitive. Is the word "reasonable" ever used in the rules? Is "at the first
reasonable opportunity" too vague?
Mr. Robert: I think it is used in the authorities but not in the rules
Senator Smith: I am just posing a question. You could say the first
reasonable opportunity, if you want to avoid strict fanaticism and rigidity.
Mr. Robert: I think the way the circumstances are presented by the
senator, with respect to first opportunity, is taking into account the Speaker
has the right to use discretionary authority to understand or appreciate the
circumstances in a way that would be oftentimes sympathetic to the complaint of
the senator and the circumstances under which the aggrieved senator is bringing
the matter to the attention of the house. The notion of reasonable accommodation
is a motive factor that the Speaker uses in preparing his rulings.
Senator Smith: I was just exploring there a little bit.
Senator Joyal: This is on the same pathway that Senator Robichaud has
mentioned. Let us make two scenarios, and the point that Senator Smith raised
will enlighten them.
Scenario number one: A senator who is concerned with an issue is not in the
chamber when it is raised. The case is clear — the first opportunity is the next
day. Scenario number two: The senator happens to be in the chamber. That is
where there is a question. As Senator Andreychuk has said properly, before you
raise an issue of privilege, because to a point your credibility is at stake,
you want to reflect because there are consequences following from that. It is
not just a point of order. There might be a decision that has important
consequences, so you want to reflect upon it. In that context, you are
physically there, but, reasonably or intellectually, you want to reflect on it.
You come to a conclusion, after having consulted, and send a written notice the
next day. It seems to me that both senators — the one who is absent and the one
who is there — should have a reasonable capacity to raise it at first
opportunity, first opportunity not being the exact hours but when the person
comes to a conclusion reasonably that there is an issue of privilege.
The point raised by Senator Smith makes sense. The reasonableness is linked
to the conclusion, after reflection, that there is a serious issue of privilege,
either for the senator or the institution. We always think of the privilege as
being linked to ourselves individually but it pertains to the institution too.
To come to the conclusion that the institution is at stake might take additional
On the same ground as Senators Smith, Robichaud and Andreychuk, I think that
is why we should protect that possibility for a senator who happened to be there
but thinks, after reflection, that he or she has a question of privilege. They
should be able to raise it the following sitting day, to protect the
reasonableness that Senator Smith has just mentioned.
As much as I agree that we might remove section 59(10), there is a need for
clarity on the issue of privilege occurring during a debate in the Senate.
Mr. Robert: If you take that route — and as you point out, it all
seems perfectly reasonable — do you even need 59(10) to do that? Do you need
some sort of rule to give you permission to say I think something happened here
that I do not like and I will bring it to your attention tomorrow?
It seems to me that 59(10) was clearly almost a clerical listing that was
provided under the rules for those kinds of activities that did not require
notice. It was linked to a rule that said you could bring up a question of
privilege without notice and, somehow or another, it was overlooked.
However, the scenario you describe does not require 59(10) on the books to
work. If something is occurring in the chamber that is serious enough to merit
being considered a question of privilege, no one — not the Speaker certainly —
would ever forbid a senator, in the absence of 59(10), from rising and saying
something just happened that I think is a question of privilege.
You do not need 59(10) to do that. By keeping it in, perhaps there is some
sort of sense that well, yes, maybe you need it. In fact, it has no real force,
no real substance behind it. It is an enumerated item that was overlooked in an
All that you say is perfectly true, and reasonableness should be factored in
your reflection about whether the incident that occurred should be treated as a
question of privilege. You do not need rule 59(10) to do it; by omitting it, you
Senator Joyal: How do you do it?
Mr. Robert: You do it by rising and saying that something happened
that you do not like, in the same way that you could do it as a point of order.
Senator Robichaud: The point of order has to be done according to the
rules and the order has not been followed.
Mr. Robert: That is right.
Senator Robichaud: The question of privilege has to be done according
to the rules.
Mr. Robert: As part of the scenario that you describe, you say that it
will be taken into account at the next sitting day. Well then, rule 43 is
already in play. The process that you would follow to actually make sure that at
the next sitting day it will be taken into account properly, as a question of
privilege, would be through rule 43.
Senator Andreychuk: What if you do not stand up but you file a 43 and
it was something in the chamber? I do not know where you are drawing your
Mr. Robert: There is no loss.
Senator Robichaud: That is where the reasonability of the Speaker of
the Senate comes in.
Senator Andreychuk: It is all in the hands of the Speaker and his
discretion is my understanding from your explanation.
Mr. Robert: Yes and no, because in some sense the senator who has a
grievance will make a case.
Senator Andreychuk: Why would I rise and say something is a question
of privilege when I know it will not be dealt with then? Why would I not
consider doing it the next day? That brings us back to rule 43 and we have
nothing on the chamber. Having people declare question of privilege to be dealt
with tomorrow sets a tone in the chamber that I am not sure I would like, unless
it is followed through with the next day. I envision people rising and saying
Mr. Robert: Then rule 59(10) does not make any difference.
The Chairman: Mr. Robertson wants a clarification on the record.
James Robertson, Principal Analyst, Law and Government Division,
Parliamentary Research Branch, Library of Parliament: To reiterate what Mr.
Robert is saying, there were two incidents in the House of Commons in recent
years when a member grabbed the mace. It was clear in that case that the
privilege of the house had been affronted and affected. Everyone present saw the
incident and the matter was of a serious nature to be dealt with right away. In
that case, there was no need to prepare arguments or to review the precedents or
anything else. Without a clear indication that the matter could be raised when
it happened, there would have been some concern about the procedure for dealing
The procedure for raising it in the chamber when the incident occurs is to
allow those kinds of egregious situations to be dealt with on the floor without
any question of notice being required.
The Chairman: We have had a full and discussion with some interesting
new thoughts expressed. May I suggest that this does not have to be dealt with
today and that we charge our capable staff to come back to us at an early
opportunity with a revision of or support for what they have prepared already
for the committee's consideration. I promise it will be in the not too distant
Senator Robichaud: And we have this currently on the table. Correct?
The Chairman: We do, but it is not an urgent issue. I should like to
have this dealt with at the next meeting or two. I am your humble servant if you
wish to continue, but I think we have heard enough.
Mr. Robert: There was a third element in the first part of the
question in dealing with points of order and questions of privilege before
Orders of the Day.
The Chairman: With apologies, yes, please proceed Mr. Robert.
Mr. Robert: The Speaker did note in his ruling of October 2006 that
rule 23(1) prohibits points of order or questions of privilege during either the
Routine of Business or Question Period. Senators' Statements, however, are not
part of the Routine of Business. This is clear by the fact that rule 26 provides
that the Routine of Business is a distinct category of business called after
However, it is not entirely clear that Senators' Statements are not part of
the Routine of Business. The committee may want to amend the rules to make it
clear that questions of privileges or points of order are receivable. It could
go about doing this two ways. First, it could recommend to the Senate that rule
23(1) be amended to prohibit the raising of points of order or questions of
privilege before Orders of the Day. The amended wording could be as follows:
Prior to the calling of Orders of the Day, it shall not be in order to
raise any question of privilege or point of order. Any question of privilege
or point of order to be raised. . . .
— and then continue with the existing wording.
Alternatively, this section could be clarified by providing specific
cross-references to other parts of rule 23, along the lines of the following:
During the daily Routine of Business, provided for in section (6), or the
daily Question Period, provided for in section (7), it shall not be in order.
. . .
— and then continue with the existing wording.
This simply helps to make a determination on the part of the committee
whether to keep the existing rule or to change it to forbid the possibility of
raising points of order or questions of privilege during Senators' Statements.
As it exists, although I do not think it is generally understood by the
senators, given the way in which we write our rules, it is possible to raise
points of order or questions of privilege under Senators' Statements.
The Chairman: Are there questions?
Senator Robichaud: As a result of that amendment, questions of
privilege could not be raised. Correct?
Mr. Robert: Or points of order.
Senator Robichaud: However, is this not the time when a senator gives
Mr. Robert: It was not really a question of privilege as such, because
it came under rule 43.
Senator Robichaud: We would be limiting the times when a senator could
raise a question of privilege during a sitting. Correct?
Mr. Robert: Yes, but during Senators' Statements, a senator may give
notice of his intention of raising a question of privilege. However, we are
talking here about questions of privilege that are akin to points of order.
Neither can be raised during the Routine of Business or during Question Period.
The Rules already make that abundantly clear. And most senators assumed that
these could not be raised during Senators' Statements either.
We realized that as the Rules are now worded, clearly there is no such
prohibition. We are wondering if you really want to adopt a rule that would
prohibit senators from raising a point of order or a question of privilege
during Senators' Statements. If that is the case, then we will propose some
amendments. Otherwise, we can maintain the status quo.
Senator Robichaud: Mr. Chairman, personally, I would prefer not to
make any changes to the Rules. The time set aside for Senators' Statements
should be used for its intended purpose, that is to highlight a particular
event. However, senators often overstep the limit and make a statement having to
do with a committee or an individual. However, if senators are prohibited from
raising a point of order or a question of privilege, they will no longer have
Mr. Robert: Perhaps raising a point of order could become part of
Senators' Statements, as is currently the case, when allowed.
With respect to Senators' Statements, the rules are clear that you are not
meant to raise an item that is on the Orders of the Day. If a senator makes an
allusion to an item that is on the Orders of the Day, his stride could be broken
by a senator jumping up and saying, "Point of order, you have no right to talk
about this." I am not sure if you want that to happen or if you want that to be
done after the fact.
Senator Joyal: After the fact is too late. The senator has already
said what he or she wanted to say, and it is on the record.
Senator Robichaud: Yes, it is on the record.
Senator Andreychuk: Half of it — maybe the bad half. I do not think
you can do it any other way, though.
Senator Smith: The lawyer in me forces me to ask you this question. I
do not disagree with what you are proposing.
Let us say that in Senators' Statements a senator arose and used gross and
obscene language, a four-letter word or something like that, and repeated it
several times during the statement. Could someone stand up —
Mr. Robert: The Speaker has the authority to intervene to maintain
order and decorum. Any sort of outrage of that sort would certainly prompt an
intervention on the part of the Speaker — at least I think it would.
Senator Fraser: I am the one who got us into this. I think there is a
reasonable argument to be made that points of order should be heard only after
Routine of Business.
Similarly, questions of privilege — although I think perhaps it would be
important if we are rewriting this rule to include an exemption for the notice.
The point of the rule should be that senators understand what they can and
I should like, I think, to support your first recommendation because I think
it is clearer. However, chair, I do not know if we really need the second
sentence in rule 23(1).
I might ask Mr. Robert, since we have the benefit of his wisdom, to explain
why we need that. If we are reopening the rule, could we not just ditch the
second sentence of that paragraph?
Mr. Robert: I do not have the text that I distributed to you in front
Senator Fraser: The first sentence is about when you can raise them,
and then it goes on to say: "Any question of privilege or point of order to be
raised in relation to any notice given during this time can only be raised at
the time the Order is first called for consideration by the Senate." The point
of order, however, might relate to something that had already happened.
Similarly, the question of privilege might relate to something that had already
happened, either during the Senators' Statements or during Routine of Business.
It strikes me as odd to have that second sentence there.
Mr. Robert: That second sentence is the actual ruling.
Senator Fraser: I understand. However, since we are considering
reopening the rule —
Senator Smith: It clarifies when you can do it.
Mr. Robert: That is a good point.
Senator Fraser: In the substance of the thing, I think it is
reasonable to suggest that we have time limits written into the rules for
Senators' Statements and for Routine of Business, 15 minutes and half an hour.
Obviously, the time limits are there in part to ensure that the business of
the Senate proceeds in an orderly fashion and we get down to the real business
of the Senate, which are the Orders of the Day. If we start cluttering up
Senators' Statements — and, who knows, maybe one day down the road Routine of
Business with points of order — it will get very messy. I think it will be
perfectly clean and simple.
At the time I raised this, I did so because I thought I had to do so then,
given the rules, but I would not have minded if the rules were very clear and
stated that, no, you will do this in 45 minutes.
Senator Joyal: With respect to your proposal that during Senators'
Statements no point of order or question of privilege should be raised, to me it
moots the issue of point of order because then the damage has already occurred,
the breach has already happened.
Let us take the example that you gave, Mr. Robert, namely, that we should not
cover in Senators' Statements an issue that is already on the Order Paper. If I
stand up and I make a statement about an issue that is on the Order Paper and no
one can stop me from talking about it, you have just opened the door to it.
It is the same with respect to the issue of privilege. If you do not provide
the opportunity to intervene at the moment that it happened, you might find
yourself with damage that you cannot repair and that you are not exercising
"your first opportunity" by putting it only at the time the order is first
called. In other words, you would have to stand up when Orders of the Day are
called either to raise your point of order or your question of privilege.
In the context of trying to maintain Senators' Statements outside the Orders
of the Day, you remove any kind of monitoring of those statements with the
proper protection of either the order or the privileges of senators. That is a
decision that bears consequences before we come to the conclusion that we should
provide a free hand for Senators' Statements on anything.
Of course, when everything runs smoothly, there is no problem, but the day an
issue or a situation occurs whereby Senators' Statements become an important
element of "political strategy," you then create a potential situation that
might be very consequential for "the order or the decorum of the Senate."
Mr. Robert: As a contribution to these kinds of reflections, let me
make a few additional comments of my own with respect to the points that are
If there is a thought that there may be value in being allowed to raise
points of order or questions of privilege during Senators' Statements, why would
it be less true to do it during Routine of Business or Question Period when they
are already forbidden? What occurs in the 15-minute period that is so important
that you would want to have the opportunity to raise a point of order or a
question of privilege in that time frame and not during Question Period or
Routine of Business?
Was the right of the Senate to regulate its proceedings unfairly impeded
during — we are dealing with several rulings now about the conduct of Question
Period and points of order that have been raised. Did something happen that was
improper by restricting the right of senators to raise it subsequent to Question
Period or subsequent to the Routine of Business? That is the question you must
answer. It has a bearing on how you want to review whether or not that practice
should be followed with respect to Senators' Statements.
The other question that is a bit odd — and I will take the lead of Senator
Fraser and look at an element of the rule that is not before us explicitly under
the recommendation of the Speaker — why do we forbid during Senators' Statements
alluding to items on the Orders of the Day? What happens if we do make an
allusion to an item on the Orders of the Day?
The counterclaim I would make that this is not "a big deal" is that you can
actually move an inquiry that relates to an order of the day. No one will say
you cannot do that, and no one will care, because no decision will result from
that. No decision will result from a senator's statement either, and it is only
One wonders why the rule was put in, but it exists and, therefore, it
deserves to be respected as long as it remains part of our rules. However, I am
not sure that it adds any great value to our practices.
Is there really a value in allowing points of order to be raised during
Senators' Statements that could not also be present under Question Period or
Routine of Business? We forbid them for those two categories. Why do we suddenly
insist that it be allowed under Senators' Statements?
Senator Joyal: You forbid them, but a senator can give a notice the
next day that something has been said during Question Period or during Senators'
Statements that affects the privilege of the institution or his or her own
Mr. Robert: Absolutely. There would be nothing there. The one that
would more likely arise is a point of order, because it is instantaneous; you do
not need to give advice.
Senator Joyal: I know.
Mr. Robert: One reason the rules were crafted to forbid questions of
privilege or points of order during these two categories was to address a rather
unhappy circumstance that frustrated too many senators in the time immediately
preceding the adoption of these rule changes in 1991. It may very well be that
there was an oversight — we seem to be talking a lot about oversights today —
that it, somehow or other, did not attach itself to Senators' Statements,
although, by and large, you as senators generally believe that that is the case,
that questions of privilege and points of order should not be raised during
Senators' Statements. However, a close reading of the rules suggests that there
is this inadvertent loophole — which begs the question: Do we close the loophole
or do we leave it?
The Chairman: The Speaker obviously still has a role to play if there
an abuse or misuse of proceedings. He would intervene in situations such as
Senator Joyal suggested. If an item is on the Order Paper and someone speaks to
it, he would have the right to intervene.
Mr. Robert: Yes, he would. However, they tend to do so with
hesitation. Again, we are talking about a three-minute event.
Senator Robichaud: Often, the Speaker will wait until a senator brings
a matter to his attention.
Mr. Robert: The senator will do that if he cannot raise a point of
The Chairman: He has the right, of course.
Mr. Robert: If he thinks it is worthwhile doing. I suspect there is a
discretionary application that he must consider, too.
Senator Fraser: Since we are contemplating the reopening of rule 23,
should we not delete reference to questions of privilege? Questions of
privilege, as we have established this morning, are dealt with in rule 43. Why
would we not just confine rule 23 to the matter of when you can raise a point of
order? Why would we not simply say, "Prior to the calling of Orders of the Day,
it shall not be in order to raise any point of order"?
Mr. Robert: I see your point.
Senator Fraser: Is there a reason?
Mr. Robert: I think that was done basically from —
Senator Fraser: Inadvertence?
Mr. Robert: — a sense of completeness.
Senator Fraser: Rule 43 says that you can only raise questions of
privilege under certain circumstances, so why are we cluttering up rule 23 with
matters of questions of privilege?
Mr. Robert: That seems to me to be a fair point.
The Chairman: I have just been informed that the House of Commons has
this provision. It is exactly the same; both points of order and questions of
privilege. I would think it is more an issue of clarity.
Senator Fraser: Mr. Chairman, it is not clarifying things; it is
confusing them. Rule 43 talks about when you can raise questions of privilege,
but then we also have this odd reference dropped in. It is possible that the
House of Commons may also have had some lapses in editing as it has worked on
its rules over the years. They are no more perfect than we are.
Senator Andreychuk: What harm does it do?
Senator Fraser: It just confuses matters.
Senator Andreychuk: It clarifies rather than confuses.
The Chairman: After Senator Joyal speaks, we will wrap up and I will
instruct our staff to fulfill the mandate given to them by this committee, and
we will deal with it at our earliest opportunity.
Senator Joyal: Mr. Robert, please tell us the negative consequences of
removing it and the negative consequence of keeping it, in order that we can
evaluate and balance the options.
Mr. Robert: If you prohibit raising questions of privilege or points
of order under Senators' Statements, I think you will be completing the process
that was originally intended in the reform of the rules or changes to the rules
that came about in 1991. You would at least clarify that during that first part
of the day the time limits would be respected and we would move along through
the 15 minutes for Senators' Statements, the half hour allowed for Routine of
Business and the half hour allowed for Question Period.
If the house is in a fractious mood, it could use Senators' Statements in
such a way as to demonstrate that by raising points of order under Senators'
Statements, which was part and parcel of the frustration that was felt pre-1991.
The advantage might be that you will have recognized that there is a block of
time in the Senate sitting that will be free from the potential frustration of
raising points of order or questions of privilege, because they do not have to
be real to consume time; they simply have to be raised.
With respect to keeping them, you make a declaration that you want to follow
the rules as written, including rule 22(4), which states that you cannot use a
senator's statement to allude to an item on the Orders of the Day, and that that
rule will be vigorously enforced with an opportunity to call points of order to
challenge it, and it would be done immediately. That would be one way to better
ensure that the rules would be followed. However, I am not clear what benefit it
gives you beyond that.
The Chairman: Thank you for that.
The next item deals with the reinstatement of bills. Again, Mr. Robert will
be enlightening us on this issue.
Mr. Robert: The Senate does not currently have rules dealing with the
reinstatement of bills in a new session of the same Parliament. As a result,
there have been cases where bills, particularly non-government bills, have been
reintroduced in a number of successive sessions. There have been cases such as
the Heritage Lighthouse Protection bill sponsored by Senators Forrestall and
Carney, the Statutes Repeal bill, by Senator Banks, and the Personal Watercraft
bill by Senator Spivak. As a means to deal with this issue, at least in part,
the Senate has on occasion referred evidence and papers from one session of a
committee studying a bill during a succeeding session, allowing the committee to
build on previous work instead of having to start anew. There have also been a
number of proposals in recent sessions that the issue of reinstating bills be
studied by this committee.
Since the late 1990s, the House of Commons has allowed for the reinstatement
of non-government bills from a previous session in the same Parliament.
Standing Orders 86.1 and 86.2 deal with this matter. In the case of Private
members bills originating in the Commons, this reinstatement is now automatic
under SO 86.1. As the 2005 edition of the Annotated Standing Orders of the House
of Commons notes at page 331, this means "that prorogation has almost no
practical effect on Private Members' Business." It is possible for such a bill
to pass the House of Commons without any debate in the second or subsequent
session of a Parliament, provided that it had been so passed during the previous
Non-government bills originating in the Senate that had reached the House of
Commons are not automatically reinstated at the stage they had reached. Standing
Order 86.2 provides that, to benefit from reinstatement, they must be
reintroduced within the first 60 days of the session after being passed again by
the Senate and the Speaker of the House of Commons must be satisfied that the
bill is in the same form as it was at the time of prorogation. If these
conditions are not met, non-government Senate bills are dealt with like any
other bill from the Senate.
It must be noted that carry-over provisions do not apply between Parliaments.
In the case of government bills, reinstatement in the House of Commons is not
automatic but may be effected by passing a motion to that effect.
A review of the situation in provincial and territorial legislatures
indicates that there is a range of practice on this matter. In nine of the
thirteen legislatures, there is no formal process for reinstating bills. In
Alberta, the Standing Orders provide that a government bill can be reinstated on
motion in a new session of the same Legislature. In Manitoba, on the other hand,
reinstatement has been by way of ad hoc motions in the new session. In Ontario,
provision for carry-over of items of business has sometimes been made at the end
of one session and sometimes at the beginning of a new session in the same
Finally, in Quebec there are provisions that allow for the reinstatement of
bills in a new session of the same Legislature on a motion of the Government
House Leader in the first three sitting days after debate on the opening speech.
Looking internationally, both Houses of the U.K. Parliament now have
provisions for the reinstatement of bills. These procedures apply between
sessions of the same Parliament. In the House of Lords, carry-over is restricted
to bills that have not yet left the House and is based on ad hoc motions after
informal consultations. In the House of Commons, measures have been established
since 2002 to allow for the reinstatement of bills. Details of the process can
be found in the twenty-third edition of Erskine May, at pages 649 and 651. One
reason for this change was to allow for legislation to be reviewed in a less
rushed environment with a longer time perspective allowing for more thorough
In the United Kingdom, it is pertinent to point out that sessions last only
In the Australian state of New South Wales both Houses have Standing Orders
that allow for bills that have lapsed due to prorogation to be restored during
the same Parliament.
If there is a wish to adopt such a practice in the Senate there could be many
variations of possible changes to the rules. Some of the points on which
guidance would be required from this committee before developing definitive
wording for a proposed rule change include the following questions: First,
should it apply to all bills, only to non- government bills or only to
Second, should reinstatement be automatic — that is, that all bills are
automatically deemed to have reached the stage they were at when the previous
session ended — or should it apply only at the request of either the government
in the case of government bills or of the sponsor in the case of non-government
Third, what, if any, should be the mechanism to verify that a bill is indeed
the same form of a bill from the previous session? Various individuals or bodies
might play a role, including the Speaker, this committee or the law clerk.
Should this verification be automatic or only if a senator raises a point of
order asking for such verification?
Fourth, in the case of a bill that had, during the previous session, passed
the Senate and been sent to the Commons, would reinstatement mean that it would
be immediately sent to the Commons again without the Senate having another
chance to vote on it? Should there be a requirement for it at least to be
adopted again at third reading? We have addressed this problem ourselves when we
have seen bills coming to us from the House of Commons that apparently had no
consideration in the second session.
Fifth, in the case of bills introduced in the Senate from the Commons whose
consideration is interrupted by prorogation, should there be a system for
reinstatement, provided that they are, again, received from that House?
Finally, should there be provisions respecting carry-over of motions? This
might open a whole range of issues that are quite beyond the matter of bills
These are the questions that we considered when we were thinking about how
reinstatement might possibly work. They are questions that really do not belong
to staff to answer. They really are the proper purview of this committee.
The Chairman: Thank you, Mr. Robert.
Senator Andreychuk: What is the purpose of reinstating bills? Is it
for efficiency? I have heard some senators who have had private bills say that
they do not want to go through that again. It seems we need a rationale as to
why we would want to have a reinstatement.
Is there any rationale coming through from all the other jurisdictions? Is it
efficiency? Is it another rule? In other words, why are they doing it? There
seems to be a trend to do it, although it is haphazard.
Mr. Robert: I think the methods they use may be different, and perhaps
you could characterize them as haphazard, but I think they are addressing
perhaps not only the matter of efficiency but also the matter of frustration.
It is particularly difficult for non-ministerial members of Parliament. The
time of the House in many jurisdictions has come under the control of the
government. It is less the case in the Senate, but certainly in the House of
Commons that is very clear and in most elected Houses that is also the case.
That is a pattern that has a long history.
The issue in the House of Commons comes about through reform movements that
have at least a 20-year life and have tried to give greater empowerment and
greater possibilities for MPs — that is, non-ministers — to succeed in their
legislative role as parliamentarians by advancing bills that mean something to
There is a very complex process that follows in the House of Commons. The
idea of allowing them to have a reinstatement option improves their chances,
despite the difficulties they have to overcome, even in the new session, by
saying: Well, you can start where you left off, and perhaps this time around you
It is not just efficiency, but I think efficiency factors in. I think
frustration also is an obvious element that they are trying to address through
Senator Andreychuk: With the Senate's uniqueness of now having quite a
number of independents, we handle that cautiously throughout the procedures
through the leaders. How would we do this on reinstatement of bills?
Mr. Robert: If we were to follow the lead in other jurisdictions, the
questions asked at the end of my presentation give you the options that you
could consider. You might do it automatically or by adoption of a motion. You
might treat government bills differently from non-government bills. You might
even want to treat private private bills differently from private public bills.
These are all questions that you have to consider to determine what you
think, given the nature of the Senate and the nature of our work, would be the
Senator Losier-Cool: Personally, I think the Committee should
seriously consider the importance of this matter. Without wishing to tell the
steering committee what it should do, I believe this issue has come up a number
of times over the past five years. If the trend continues of legislatures
lasting less than 18 months, I think the Committee should give this question
priority consideration, bearing in mind what Senator Andreychuk and Mr. Robert
have just said about Senate debates, efficiency and continuity and without
revisiting our legislative procedures. I hope that we do give this matter
Senator Joyal: I should like to come back to the fundamental role of
the Senate. The Senate is a chamber of revision. Once the other place has taken
a stand on a bill and confirms its concurrence on it, it is sent to us. I think
that if we are to maintain that fundamental issue of revision or review, the
situation may change. The context of a bill a year and a half ago might be
different today. It allows the Senate to rethink and pass the bill quickly
because the Senate considered that the circumstances remain as is and the bill
should proceed. We can even introduce a motion to reinstate the witnesses so
that a bill can continue with the contribution that has already been heard. On
the other hand, it maintains the principle that we can always review.
I would hesitate to adopt a rule whereby everything is reinstated
automatically. I think it questions the fundamental role of our institution. I
know that it is frustrating. Many of us have private member's bills that have
lapsed, have been reintroduced, and so forth, but is it not the nature of our
chamber to think twice? If we are to adopt a procedure, in my opinion, it should
not be an automaton — that is, that once we have pronounced it is over, we
presume that everything remains equal even if there is a lapse of time.
Our longest Parliament has been four years and a couple of months, I believe.
According to section 50 of the Constitution, the maximum term is five years. If
we presume that the context of a bill that would have been adopted in the first
year of a government remains the same in the fourth year — I am not sure that
this is the capacity of the institution that is not requestioned.
There should be criteria and guidance so that the Senate maintains its
capacity to review a bill and so that the bill is not brought back automatically
all the time without due consideration. As I say, the circumstances might
change. For example, senators who have not participated in the debate might find
they have something to contribute at a certain point in time and want to have it
considered. I think that is a plus for the institution. That is why there has to
be a framework that maintains the principle of our institution.
Of course, when we deal with bills from senators, we are not a house of
review but a house of first knowledge; it is the other place that does the
review. That changes the context of a private senator's bill. However, in the
case of a government bill, we have to maintain our capacity because that is
essentially where we exercise our sober, independent second thought, on the
issue of legislation.
The Chairman: Would you like to make a comment?
Mr. Robert: I do not think a comment is required. I think Senator
Joyal was reflecting on the questions that were posed and coming to a
determination about his preferences.
The Chairman: I agree with you, but I wanted to give you an
Senator Andreychuk: Are you making a distinction between government
bills and other bills?
Senator Joyal: Yes, on the basis of the principle that with a
government bill the Senate comes in second. On a private senator's bill, we are
first. We do not exercise review but first judgment. When it is a government
bill that comes from the House of Commons, we exercise a review of the bill.
Senator Andreychuk: There are private bills coming from the House of
Senator Joyal: The same for their private bills. They have already
pronounced on it. They are bills that already have a decision of one legislative
house. When it is a senator's bill, we have the first knowledge; we are the
first house that takes care of it. To me, there is a distinction between those
two kinds of bills, and that should be reflected in the procedure dealing with
Senator Robichaud: Would a motion to restore a bill reassure us
sufficiently to review the bill, if the bill were debated in the Senate? I put
the question to Senator Joyal. Would he be satisfied with debating the motion to
reinstate the bill, instead of going through all of the stages once again?
Senator Joyal: Yes, a senator who wants to pronounce on the motion to
reinstate a bill, who has something to contribute or an issue that he or she
wants to reopen, would have an opportunity to state it and share it with the
other senators. Then, of course, you would maintain the review capacity of the
Senate, which I think is the fundamental principle we have to maintain. We are
not a house of expedition. We are a house of second thought, review,
reassessment and reconsideration.
We cannot presume that, just because a bill has been adopted some while ago,
everything remains equal. I have seen bills being changed, coming back with
amendments for the betterment of legislation. If you introduce such a motion and
the motion is debatable, any senator who might have a concern could stand up and
say, "Here is the reason I feel that this bill should be reopened."
Senator Robichaud: And amended.
Senator Joyal: Properly considered. Observations might be added —
because many situations happen that we cannot foresee — but we would protect the
capacity of the Senate to review. That is my point.
Senator Fraser: I agree with the profoundly important point that the
Senate is a chamber of sober second thought. I am also strongly opposed to
automatic mechanisms that rush things through. However, there is an argument to
be made for having available some such mechanism, so I have some quick answers
to your questions.
Question 1 — in fairness, such a mechanism should be available for all bills
but, question 2, reinstatement should never be automatic. It should apply only
at the request of whoever is bringing forward this bill and it should be done
individually, not in one omnibus motion for all government bills to be
reinstated as they were, or even private member's bills; there would be an
individual motion for each bill, on which the Senate would vote, up or down. You
could even build in some reasonable time limits — six hours, maybe — for such a
motion, not for the bill itself.
Question 3: Probably the verification that it is indeed the same should be
automatic because often senators will not check the text until it is too late.
Question 4: There should be a requirement for it to be adopted again at third
reading. This goes to Senator Joyal's point about times maybe having changed,
having the opportunity to speak again and, if necessary, to amend again. The
mechanism would only take you up to that point. It would not rush you through
that point, I would think.
The same would therefore apply, in my view, in all fairness, in question 5.
Third reading debate would begin all over again if we had reached that stage.
Finally, no, I do not think there should be carry-over of motions or anything
else. Biting off a chunk with bills will be a big enough change for us. Let us
not complicate life any more than we have to.
Senator Cordy: It is an issue we should be looking at because we have
all seen the frustration of people trying to get their bills through time and
time again. We have all been on committees where we are hearing the same
witnesses time and time again for the same bill. In some cases, I have been a
committee where we dealt with the same bill three or perhaps four times. We have
to look at this issue closely.
I do not think reinstatement should be automatic. The points have been made
by previous speakers, so I will not get into the same arguments they have
presented, but there should be a process in place that is simpler the second or
third time around. That is my point, and I feel strongly that it should not be
an automatic dispensation for all bills. Previous speakers have said individual
motions for each bill. I agree. It should not be a blanket reinstatement as
Senator Robichaud: According to this procedure, if a bill were
defeated, it could not be reintroduced during the same session. Is that correct?
Mr. Robert: If a bill was defeated, then that decision stands. When
the previous session ended, the bill had been defeated.
There is nothing to reinstate.
Senator Robichaud: The bill could not then be reintroduced in the
House of Commons and then referred to the Senate.
Mr. Robert: Certainly, it could be reintroduced when the next session
The Chairman: Thank you, again, all of you. We have at least the
beginning of a discussion paper. I should like to have it considered at one more
meeting, at least. Hopefully, we will have additional comments. We will prepare
an update for an early future meeting.
Tomorrow, there is no meeting. We have a steering committee meeting. I hope
that everyone will be available next Tuesday, same time, same place.
There is one more thing, I apologize. There is the little budget for us to
run our business.
The budget we are preparing today is being circulated to you. It is for
professional and other services, and it means that we can eat. If you do not
like what is being served, we will blame the clerk of the committee, since he is
Senator Joyal: With the risk of offending you, Mr. Chairman, no
lasagne with thick cheese on it or thick food that we usually find in cafeterias
whereby we sit for hours and fall asleep after that. Any light food would be
The Chairman: I would suggest to you that my loss of 30 pounds in the
past months is not because I am eating lasagne with thick cheese.
Obviously, any guidance would be welcomed and appreciated, and we will pass
it on to our fine staff.
In the meantime, I should like a motion that we adopt this.
Senator Andreychuk: If this in line with the usual budget of the Rules
Committee as in the past, I so move it.
The Chairman: No objection? All in favour?
Senator Robichaud: The reference on page 1 is to professional and
other services, which could lead one to believe that we are hiring persons to
receive services. Page 2 simply mentions that it is for meals. I just want to be
clear that it is only for meals.
The Chairman: I am told that those are the categories that are stated,
but your comment is taken and maybe we can be a little clearer in the future.
Senator Robichaud: Then I agree with this item.
The Chairman: I gather there is no objection and the budget is passed.
I thank you for that.
The committee adjourned.