Journals of the Senate
45 Elizabeth II, A.D. 1996, Canada
Journals of the Senate
Issue 18
Tuesday, May 14, 1996
2:00 p.m.
The Honourable Gildas L. Molgat, Speaker
The Members convened were:
The Honourable Senators
Adams Anderson Andreychuk Atkins Austin Bacon Balfour Beaudoin Berntson Bonnell Bosa Bryden Carstairs Cochrane Cogger Cohen Comeau Cools Corbin Davey De Bané DeWare Di Nino Doyle Fairbairn Forrestall Gauthier Gigantès Graham Grimard Haidasz Hays Hébert Hervieux-Payette Kelleher Kelly Kenny Keon Kinsella Kirby Landry Lavoie-Roux Lawson LeBreton Losier-Cool Lynch-Staunton MacEachen Maheu Marchand Milne Molgat Murray Nolin Ottenheimer Pearson Petten Phillips Pitfield Poulin Riel Rivest Rizzuto Robichaud Rompkey Rossiter Roux Simard Sparrow Spivak Stewart Stratton Taylor Watt Wood
PRAYERS.
SENATORS' STATEMENTS
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Presentation of Reports from Standing or Special Committees
The Honourable Senator De Bané, P.C., for the Honourable Senator Tkachuk, Chairman of the Standing Senate Committee on National Finance, presented its Fourth Report (Bill C-7, An Act to establish the Department of Public Works and Government Services and to amend and repeal certain Acts) without amendment.
The Honourable Senator De Bané, P.C., moved, seconded by the Honourable Senator Hervieux-Payette, P.C., that the Bill be placed on the Orders of the Day for a third reading at the next sitting.
The question being put on the motion, it was adopted.
The Honourable Senator Kinsella tabled the following (Sessional Paper No. 2/35-144S):
TUESDAY, May 14, 1996
The Special Committee of the Senate on Bill C-110, which was appointed by the Senate on December 15, 1995 to incur expenses for the purpose of its consideration of Bill C-110, An Act respecting constitutional amendments, reports, pursuant to Rule 104, that the expenses incurred by the Committee during the First Session of the Thirty-Fifth Parliament are as follows:
| Hospitality | $454.50 |
| Total | $454.50 |
An additional expenditure related to the work of the Committee, but paid from the budget of the Committees and Private Legislation Directorate, was incurred for witnesses expenses. This amount totalled $11,851.09.
During the session, the Committee held 11 meetings and heard more than 34 hours of testimony given by 51 witnesses.
The Committee presented its final report to the Senate on February 1st, 1996.
Respectfully submitted,
NOËL A. KINSELLA
Government Notices of Motions
With leave of the Senate,The Honourable Senator Graham moved, seconded by the Honourable Senator Marchand, P.C.:
That when the Senate adjourns today, it do stand adjourned until tomorrow, Wednesday, May 15, 1996, at 1:30 p.m.
The question being put on the motion, it was adopted.
Introduction and First Reading of Government Bills
A Message was brought from the House of Commons with a Bill C-33, An Act to amend the Canadian Human Rights Act, to which they desire the concurrence of the Senate.
The Bill was read the first time.
With leave of the Senate,
The Honourable Senator Graham moved, seconded by the Honourable Senator Losier-Cool, that the Bill be placed on the Orders of the Day for a second reading at the next sitting.
The question being put on the motion, it was adopted.
Notices of Motions
With leave of the Senate,The Honourable Senator DeWare moved, seconded by the Honourable Senator Bosa:
That the Standing Senate Committee on Social Affairs, Science and Technology have power to sit at 4:00 p.m. today even though the Senate may then be sitting, and that Rule 95(4) be suspended in relation thereto.
The question being put on the motion, it was adopted.
ANSWERS TO WRITTEN QUESTIONS
Pursuant to Rule 25(2), the Honourable Senator Graham tabled the following:
Reply to Question No. 6, dated March 19, 1996, appearing on the Order Paper in the name of the Honourable Senator Kenny, respecting the Department of Veterans Affairs.-Sessional Paper No. 2/35-145S.
Reply to Question No. 13, dated March 19, 1996, appearing on the Order Paper in the name of the Honourable Senator Kenny, respecting Treasury Board.-Sessional Paper No. 2/35-146S.
Reply to Question No. 25, dated March 19, 1996, appearing on the Order Paper in the name of the Honourable Senator Kenny, respecting the Department of Western Economic Diversification. -Sessional Paper No. 2/35-147S.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Third reading of Bill C-9, An Act respecting the Law Commission of Canada.
The Honourable Senator Pearson moved, seconded by the Honourable Senator Losier-Cool, that the Bill be read the third time.
After debate,
The question being put on the motion, it was adopted.
The Bill was then read the third time and passed.
Ordered, That a Message be sent to the House of Commons to acquaint that House that the Senate have passed this Bill, without amendment.
The Order was called for the second reading of Bill C-28, An Act respecting certain agreements concerning the redevelopment and operation of Terminals 1 and 2 at Lester B. Pearson International Airport.
SPEAKER'S RULING
When second reading debate was again about to begin on Bill C-28, Senator Kinsella rose on a point of order to object to any further proceedings on the bill. This objection rests on two main points. First, he believes that the message from the House of Commons is defective. Second, he feels that the proceedings on the bill in the House of Commons were contrary to established principles of parliamentary procedure. Following his statement, several other Senators participated in the discussion on the point of order. I wish to thank those who spoke on the matter.
Since then, I have read the Debates and have reviewed the authorities that were cited and I am prepared to make my ruling. I will deal with the issues raised by Senator Kinsella and other Senators in proper sequence.
The first matter I will address relates to an observation made by Senator MacEachen about the time when a point of order should be raised. He is generally correct in stating that a point of order relating to a breach in our practices should be raised when the breach is first noticed and before it becomes futile to point it out. Beauchesne's Parliamentary Rules and Forms, sixth edition, at citation 319 on page 97 states:
Any Member is entitled, even bound, to bring to the Speaker's immediate notice any instance of a breach of order. The Member may interrupt and lay the point in question concisely before the Speaker. This should be done as soon as an irregularity is perceived in the proceedings which are engaging the attention of the House. The Speaker's attention must be directed to a breach of order at the proper moment, namely the moment it occurred;
And at citation 321:
A point of order against procedure must be raised promptly and before the question has passed to a stage at which the objection would be out of place.
Although Senator Kinsella linked his point of order to the message which was received some days ago, it involves more than just the message itself. Moreover, Senator Lynch-Staunton is right in observing that the Rules of the Senate limit the opportunity to raise a procedural objection when a bill is introduced and read the first time. This point was made as well by Senator Phillips. Accordingly, I find that Senator Kinsella has raised his point of order within an appropriate time.
Citing Erskine May Parliamentary Practice, 21st edition, at page 510, Senator Kinsella noted that "If a bill is carried to the other House by mistake, or if any other error is discovered, a message is sent to have the bill returned or the error rectified." Looking beyond the message, the error that is the focus of his argument is the treatment the bill received in the House of Commons. Although the message that arrived here with Bill C-28 stated that it had passed the House, Senator Kinsella contends that the House did not abide by its procedures and that it sent to the Senate a defective bill. According to the Senator, Bill C-28 is not Bill C-22 as it was at the time of prorogation. This, he claims, is a violation of the order which the House of Commons itself adopted on March 4, 1996. Senator Lynch- Staunton subsequently reiterated and summarized the position stated by Senator Kinsella when he asked if the bill had been returned to the Senate in the same form as it was at the time of prorogation. For him, the answer clearly and emphatically is "no".
In response to this argument, Senator Stanbury maintained that the Senate had no right or authority to look into the proceedings of the House of Commons. Referring to Beauchesne, at citation 4, the Senator took note of an important privilege enjoyed by all legislative bodies, the right to regulate their internal proceedings. Yet the point of order, according to Senator Stanbury, seeks to do precisely this; it is, in his words, "an invitation to the Speaker to destroy unilaterally parliamentary tradition and constitutional conventions."
In addition to his objection about when the point of order was raised, Senator MacEachen argued that any comparison between Bill C-22 of the last session and Bill C-28 now before the Senate is irrelevant. Prorogation, as he put it, has wiped the slate clean and "it is irrelevant whether Bill C-22 was ever in the last session." Moreover, he stated that "The House of Commons is entitled to send any bill in any form to us and we are entitled to deal with it as we wish."
This then is the core of the argument on the point of order: on the one hand, it is maintained that this bill cannot be received by the Senate in its present form because it is not identical to Bill C-22 as at the time of prorogation; on the other hand, it is contended that any comparison is immaterial and to look into this question is to interfere with the internal proceedings of the other place. It is my task as Speaker to determine if this issue constitutes a valid point of order upon which I can rule.
As Speaker, I find that my authority is, and must be, limited by the mandate I have through tradition and the Rules of the Senate. Under Rule 18, for example, the Speaker is empowered to preserve order and decorum. The Rules also explain my role with respect to putting motions and calling votes. The responsibilities of the Speaker, moreover, are confined to the proceedings of the Senate itself. My jurisdiction does not extend beyond its four walls. It is with these limitations in mind that I must examine the substance of the point of order raised by Senator Kinsella.
An allegation has been made that the message is defective, but in what way remains unclear to me. While I believe that the Senate would have the right to consider bringing such a problem to the attention of the other place, it would likely do so only when confronted with incontestable evidence. If the message included a bill containing financial provisions without the requisite Royal Recommendation, it would be competent for the Senate to return the bill to the House since, under the provisions of Rule 81, such bills cannot be considered in this place without a recommendation from the Queen's representative.
Alternatively, if the message somehow infringed the privileges of the Senate or impinged on the ability of the Senate to conduct its business adequately, the Senate might have to consider appropriate action. In this particular case, however, I can find nothing to justify the claim that the message or the bill contains a mistake or error or is defective in any way.
Bill C-28 has been sent to the Senate from the other place as passed on April 19, 1996. Noted on the cover of the bill is the statement that this bill is "in the same form as Bill C-22 of the First Session of the Thirty-fifth Parliament, as passed by the House of Commons in that session." The message attached to the bill, signed by the Clerk of that House, states that it was an Order of the House that the Clerk "do carry this Bill to the Senate, and desire their concurrence." Nothing in the message or the bill warrants any interference on my part as Speaker of the Senate.
With respect to the matter of the proceedings of the House of Commons, as I suggested earlier, I have no authority whatever to consider such a question as a point of order. I have no right to look into the proceedings of the other place to determine if it has acted in accordance with proper parliamentary practice. The privilege of that House, like our own, to regulate its own internal proceedings is indisputable and cannot be questioned. However, if the House of Commons itself determines that an error had been made in transmitting Bill C-28 to the Senate, it can advise the Senate accordingly by another message and this would be in keeping with the reference Senator Kinsella made to Erskine May at page 510. To date, there has been no notification from the House of Commons. Instead, I am asked to deal with a point of order raised here, but as I have tried to explain, it is beyond my authority. I cannot accept any point of order founded on the proposition that the other place did not follow adequate parliamentary procedure. The Senate must determine for itself how it will proceed with the consideration of this bill. I must rule that the bill is properly before the Senate.
Whereupon the Speaker's Ruling was appealed.
The question being put on whether the Speaker's Ruling shall be sustained, it was adopted on the following division:
YEAS
The Honourable Senators
Adams Anderson Austin Bacon Bonnell Bosa Bryden Carstairs Cools Corbin Davey De Bané Fairbairn Gauthier Gigantès Graham Haidasz Hays Hébert Hervieux-Payette Kenny Kirby Landry Lawson Losier-Cool MacEachen Maheu Marchand Milne Pearson Petten Pitfield Poulin Riel Rizzuto Robichaud Rompkey Roux Sparrow Stewart Taylor Watt Wood-43
NAYS
The Honourable Senators
Andreychuk Atkins Balfour Beaudoin Berntson Cogger Cohen Comeau DeWare Di Nino Doyle Forrestall Kelleher Kelly Keon Kinsella Lavoie-Roux LeBreton Lynch-Staunton Murray Phillips Rivest Rossiter Simard Spivak Stratton-26
ABSTENTIONS
The Honourable Senators
Nil
A Point of Order was raised as to the receivability of Bill C-28.
After debate,
The Speaker reserved his decision until later this day.
Order No. 2 was called and postponed until the next sitting.
Motions
The Order to resume the debate on the motion of the Honourable Senator Bacon was called and postponed until the next sitting.
OTHER BUSINESS
Senate Public Bills
Order No. 1 was called and postponed until the next sitting in the name of the Honourable Senator Kelly.
Order No. 2 was called and postponed until the next sitting.
Commons Public Bills
Resuming debate on the motion of the Honourable Senator Maheu, seconded by the Honourable Senator Gigantès, for the second reading of Bill C-275, An Act establishing the Canadian Association of Former Parliamentarians.
After debate,
The question being put on the motion, it was adopted.
The Bill was then read the second time.
The Honourable Senator Maheu moved, seconded by the Honourable Senator Davey, that the Bill be referred to the Standing Senate Committee on Legal and Constitutional Affairs.
The question being put on the motion, it was adopted.
Reports of Committees
Order No. 1 was called and postponed until the next sitting.
Other
Orders No. 22 (motion), 5 and 3 (inquiries) were called and postponed until the next sitting.
Resuming debate on the inquiry of the Honourable Senator Cools, calling the attention of the Senate to the child and neglect (CAN) death of 5 year old Matthew Vaudreuil at the hands of his mother, Verna Vaudreuil, in July 1992; and the Inquiry by Judge Thomas J. Gove into child protection services in British Columbia as they relate to the terrible child abuse and neglect (CAN) death of Matthew Vaudreuil; and Judge Gove's report entitled: The Report of the Gove Inquiry into Child Protection in British Columbia, November 1995.
After debate,
The Honourable Senator Cools moved, seconded by the Honourable Senator Austin, P.C., that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
SPEAKER'S RULING
Honourable senators, the point of order raised by the Honourable Senator Phillips was that this bill (C-28) was a bill of pains and penalties. I searched carefully to determine what is exactly a bill of pains and penalties, and I must say that the text books did not have much information on this matter. Therefore, I had to refer to dictionaries.
In quoting from Jowitt's Dictionary of English Law, going to "Bill of pains and penalties," we read:
Bill of pains and penalties, a bill introduced, generally in the House of Lords but sometimes in the House of Commons, for the punishment of a particular person without trial in the ordinary way. A bill of attainder (q.v.) always imposed the penalty of death: a bill of pains and penalties inflicted some lesser penalty.
Later, in the same dictionary but under "Pains and Penalties, Bills of", we read:
Acts of Parliament to condemn particular persons for treason or felony, or to inflict pains and penalties beyond or contrary to the common law, to serve a special purpose.
Honourable senators, I find that this bill does not fall under this category of inflicting penalty of death, or some lesser penalty. Second, I would point out that a reference in Erskine May at page 68 states:
As in the case of the Lords, the Commons' constitutional role in passing Acts of attainder and of pains and penalties, and in prosecuting offences before the Lords in impeachments, is now of historical rather than current interest. But these powers have never been formally abolished.
Honourable senators, we find that they have now been abolished in the British practice. We find that they do not apply to this bill, even in the definition in its original state.
Coming back to our own book, Beauchesne, at page 191, citation 623, it is clear that:
According to Canadian Standing Orders and practice, there are only two kinds of bills - public and private.
I understand perfectly that there are different points of view regarding this bill. I need only to listen to the debate to know that it is highly controversial. However, those points of view are for the Senate to decide and, if the bill is in committee, for the committee to decide, not for the Speaker to decide. I declare that this bill is a public bill, and should be proceeded with.
MOTIONS
The Honourable Senator Murray, P.C., moved, seconded by the Honourable Senator Simard:
That Special Committee of the Senate on the Cape Breton Development Corporation have power to sit on May 28, 1996, at 3:00 p.m., even though the Senate may then be sitting, and that Rule 95(4) be suspended in relation thereto.
After debate,
The question being put on the motion, it was adopted.
___________________________
At 5:40 p.m. the sitting was adjourned during pleasure to resume at the call of the bell at approximately 6:30 p.m.
The sitting resumed.
MESSAGES FROM THE HOUSE OF COMMONS
A Message was brought from the House of Commons with a Bill C-12, An Act respecting employment insurance in Canada, to which they desire the concurrence of the Senate.
The Bill was read the first time.
The Honourable Senator Graham moved, seconded by the Honourable Senator Robichaud, P.C., that the Bill be placed on the Orders of the Day for a second reading on Thursday next, May 16, 1996.
The question being put on the motion, it was adopted.
A Message was brought from the House of Commons with a Bill C-19, An Act to implement the Agreement on Internal Trade, to which they desire the concurrence of the Senate.
The Bill was read the first time.
The Honourable Senator Graham moved, seconded by the Honourable Senator Rompkey, P.C., that the Bill be placed on the Orders of the Day for a second reading on Thursday next, May 16, 1996.
The question being put on the motion, it was adopted.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Report on Canada's activities as a Member of the Food and Agriculture Organization (FAO) for the period April 1, 1994 to March 31, 1996, pursuant to the Food and Agriculture Organization of the United Nations Act, R.S.C. 1985, c. F-26, s. 4-Sessional Paper No. 2/35-142.
Summaries of the Corporate Plan for the period of 1996-1997 to 2000-2001 and the Operating and Capital Budgets for 1996-1997 of the Cape Breton Development Corporation, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, s. 125(4).-Sessional Paper No. 2/35-143.
ADJOURNMENT
The Honourable Senator Graham moved, seconded by the Honourable Senator Riel, P.C.:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
___________________________
Changes in Membership of Committees Pursuant to Rule 85(4)
Standing Senate Committee on National Finance
The name of the Honourable Senator Kelly substituted for that of the Honourable Senator Nolin (May 9).
Standing Senate Committee on Transport and Communications
The names of the Honourable Senators Perrault, Roux and Bonnell substituted for those of the Honourable Senators Milne, Losier-Cool and Petten (May 14).
Standing Senate Committee on Social Affairs, Science and Technology
The name of the Honourable Senator Anderson substituted for that of the Honourable Senator Haidasz (May 14).
Standing Senate Committee on Fisheries
The name of the Honourable Senator Kenny substituted for that of the Honourable Senator Adams (May 14).