Journals of the Senate
45 Elizabeth II, A.D. 1996, Canada
Journals of the Senate
Issue 31
Thursday June 13, 1996
2:00 p.m.
The Honourable Gildas L. Molgat, Speaker
The Members convened were:
The Honourable Senators
Adams Anderson Andreychuk Angus Atkins Austin Bacon Beaudoin Berntson Bolduc Bonnell Bosa Bryden Buchanan Carstairs Charbonneau Cochrane Cogger Cohen Comeau Cools Corbin Davey De Bané DeWare Doody Doyle Fairbairn Forest Forrestall Gauthier Ghitter Gigantès Grafstein Graham Grimard Gustafson Haidasz Hays Hébert Hervieux-Payette Jessiman Johnson Kelleher Kelly Kenny Keon Kinsella Kirby Landry Lavoie-Roux LeBreton Lewis Losier-Cool Lucier Lynch-Staunton Macdonald (Cape Breton) MacDonald (Halifax) MacEachen Maheu Marchand Meighen Milne Molgat Murray Nolin Oliver Ottenheimer Pearson Petten Phillips Pitfield Poulin Prud'homme Riel Rivest Rizzuto Roberge Robertson Robichaud Rompkey Rossiter Roux Simard Spivak Stanbury Stewart Stollery Stratton Taylor Tkachuk Twinn Watt Wood
PRAYERS.
SENATORS' STATEMENTS
Some Honourable Senators made statements.
Tribute was paid to the memory of the Honourable George Hees, P.C., whose death occurred on June 10, 1996.
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Presentation of Reports From Standing or Special Committees
The Honourable Senator Tkachuk, Chairman of the Standing Senate Committee on National Finance, presented its Fifth Report (Bill C-31, An Act to implement certain provisions of the budget tabled in Parliament on March 6, 1996) without amendment.
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 third reading at the next sitting.
The question being put on the motion, it was adopted.
The Honourable Senator DeWare, Chairman of the Standing Senate Committee on Social Affairs, Science and Technology, presented its Sixth Report (Bill C-12, An Act respecting employment insurance in Canada) without amendment but with observations and recommendations.
Ordered, That the Report be printed as an Appendix to the Journals of the Senate of this day and form part of the permanent records of this House.
The Honourable Senator Graham moved, seconded by the Honourable Senator Maheu, that the Bill be placed on the Orders of the Day for a third reading at the next sitting.
After debate,
The question being put on the motion, it was adopted.
The Honourable Senator Ghitter presented the following:
THURSDAY, June 13, 1996
The Standing Senate Committee on Energy, the Environment and Natural Resources has the honour to present its
THIRD REPORT
Your Committee, which was authorized by the Senate on Wednesday, March 27, 1996, to monitor all matters related to the implementation and application of the Act to accelerate the use of alternative fuels for motor vehicles (previously S-7), now presents its report.
Respectfully submitted,
RON GHITTER
Chairman
(The full text of the Report is printed as Appendix "B")
The Honourable Senator Ghitter moved, seconded by the Honourable Senator Andreychuk, that the Report be placed on the Orders of the Day for consideration at the next sitting.
The question being put on the motion, it was adopted.
The Honourable Senator Carstairs, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, presented its Tenth Report (Bill S-8, An Act respecting Queen's University at Kingston) without amendment.
With leave of the Senate,
The Honourable Senator Murray P.C., moved, seconded by the Honourable Senator Beaudoin, that the Bill be placed on the Orders of the Day for a third reading later this day.
The question being put on the motion, it was adopted.
The Honourable Senator Carstairs, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, presented its Eleventh Report (Bill C-8, An Act respecting the control of certain drugs, their precursors and other substances and to amend certain other Acts and repeal the Narcotic Control Act in consequence thereof) with certain amendments and recommendations.
(The Report is printed as Appendix "C")
The Honourable Senator Carstairs moved, seconded by the Honourable Senator Losier-Cool, that the Report be placed on the Orders of the Day for consideration at the next sitting.
The question being put on the motion, it was adopted.
Introduction and First Reading of Senate Public Bills
The Honourable Senator Tkachuk presented Bill S-9, An Act providing for self-government by the first nations of Canada.
The Bill was read the first time.
The Honourable Senator Tkachuk moved, seconded by the Honourable Senator Twinn, that the Bill be placed on the Orders of the Day for a second reading on Tuesday next, June 18, 1996.
The question being put on the motion, it was adopted.
With leave,
The Senate reverted to Presentation of Reports from Standing or Special Committees.
The Honourable Senator Kenny presented the following:
THURSDAY, June 13, 1996
The Standing Committee on Internal Economy, Budgets and Administration has the honour to present its
EIGHTH REPORT
Your Committee has examined and approved the following budgets presented to it by the Standing Senate Committee on Fisheries and the Standing Senate Committee Foreign Affairs for the proposed expenditures of the said Committees for the fiscal year ending March 31, 1997:
Standing Senate Committee on Fisheries
| Professional and Special Services | $12,000 |
| Witnesses Expenses | 6,000 |
| All Other Expenditures | 500 |
| TOTAL | $18,500 |
Standing Senate Committee on Foreign Affairs
| Professional and Other Services | $7,900 |
| Transport and Communications | 9,964 |
| Witness Expenses | 8,000 |
| Courier Services | 100 |
| All Other Expenditures | 1,200 |
| TOTAL | $27,164 |
Respectfully submitted,
COLIN KENNY
Chair
The Honourable Senator Kenny moved, seconded by the Honourable Senator Stewart, that the Report be placed on the Orders of the Day for consideration at the next sitting.
The question being put on the motion, it was adopted.
The Honourable Senator Kenny, Chair of the Standing Committee on Internal Economy, Budgets and Administration, presented its Ninth Report (benefits re individuals on contract with Senators).
(The Report is printed as Appendix "D")
The Honourable Senator Kenny moved, seconded by the Honourable Senator Stewart, that the Report be placed on the Orders of the Day for consideration at the next sitting.
The question being put on the motion, it was adopted.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Motions
Resuming debate on the motion of the Honourable Senator Fairbairn, P.C., seconded by the Honourable Senator Stanbury:
WHEREAS section 43 of the Constitution Act, 1982 provides that an amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies;
NOW THEREFORE the Senate resolves that an amendment to the Constitution of Canada be authorized to be made by proclamation issued by His Excellency the Governor General under the Great Seal of Canada in accordance with the schedule hereto.
SCHEDULE
AMENDMENT TO THE CONSTITUTION OF CANADA
I. Term 17 of the Terms of Union of Newfoundland with Canada set out in the Schedule to the Newfoundland Act is repealed and the following substituted therefor:
"17. In lieu of section ninety-three of the Constitution Act 1867, the following shall apply in respect of the Province of Newfoundland:
In and for the Province of Newfoundland, the Legislature shall have exclusive authority to make laws in relation to education but
(a) except as provided in paragraphs (b) and (c), schools established, maintained and operated with public funds shall be denominational schools, and any class of persons having rights under this Term as it read on January 1, 1995 shall continue to have the right to provide for religious education, activities and observances for the children of that class in those schools, and the group of classes that formed one integrated school system by agreement in 1969 may exercise the same rights under this Term as a single class of persons;
(b) subject to provincial legislation that is uniformly applicable to all schools specifying conditions for the establishment or continued operation of schools,
(i) any class of persons referred to in paragraph (a) shall have the right to have a publicly funded denominational school established, maintained and operated especially for that class, and
(ii) the Legislature may approve the establishment, maintenance and operation of a publicly funded school, whether denominational or non-denominational;
(c) where a school is established, maintained and operated pursuant to subparagraph (b)(i), the class of persons referred to in that subparagraph shall continue to have the right to provide for religious education, activities and observances and to direct the teaching of aspects of curriculum affecting religious beliefs, student admission policy and the assignment and dismissal of teachers in that school;
(d) all schools referred to in paragraphs (a) and (b) shall receive their share of public funds in accordance with scales determined on a non-discriminatory basis from time to time by the Legislature; and
(e) if the classes of persons having rights under this Term so desire, they shall have the right to elect in total not less than two thirds of the members of a school board, and any class so desiring shall have the right to elect the portion of that total that is proportionate to the population of that class in the area under the board's jurisdiction."
Citation
2. This Amendment may be cited as the Constitution Amendment, year of proclamation (Newfoundland Act);
And on the motion in amendment of the Honourable Senator Doody, seconded by the Honourable Senator Kinsella, that the motion be not now adopted but that it be referred to the Standing Senate Committee on Legal and Constitutional Affairs;
And on the motion in amendment of the Honourable Senator Murray P.C., seconded by the Honourable Senator Robertson, that the motion be further amended by adding thereto the following:
That the Committee be authorized to permit coverage by the electronic media of its public proceedings with the least possible disruption of its hearings;
That the Committee be instructed to travel to Newfoundland and Labrador to hear representation on the proposed Constitutional amendment;
That the Committee present its report no sooner than September 30, 1996; and
That the Committee be authorized to deposit its report with the Clerk of the Senate if the Senate is not sitting and that the said report shall thereupon be deemed to have been tabled in the Chamber.
After debate,
With leave of the Senate and pursuant to Rule 30, the motion in amendment of the Honourable Senator Murray, P.C., was modified by deleting the third paragraph thereof and replacing it with the following:
"That the Committee present its report no later than July 17, 1996; and".
After debate,
The question being put on the motion in amendment, as modified, it was adopted.
Resuming debate on the motion in amendment, as amended, of the Honourable Senator Doody, seconded by the Honourable Senator Kinsella, that the motion be not now adopted but that it be referred to the Standing Senate Committee on Legal and Constitutional Affairs;
That the Committee be authorized to permit coverage by the electronic media of its public proceedings with the least possible disruption of its hearings;
That the Committee be instructed to travel to Newfoundland and Labrador to hear representation on the proposed Constitutional amendment;
That the Committee present its report no later than July 17, 1996; and
That the Committee be authorized to deposit its report with the Clerk of the Senate if the Senate is not sitting and that the said report shall thereupon be deemed to have been presented in the Chamber.
After debate,
The question being put on the motion in amendment, as amended, it was adopted.
Reports of Committees
The Order was called for the consideration of the Ninth Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-28, An Act respecting certain agreements concerning the redevelopment and operation of Terminals 1 and 2 at Lester B. Pearson International Airport, with amendments and observations) presented in the Senate on June 10, 1996.
SPEAKER'S RULING
On June 11, 1996, last Tuesday, when the order was called for consideration of the ninth report of the Standing Senate Committee on Legal and Constitutional Affairs dealing with Bill C-28, Senator Kinsella rose on a point of order. He claimed that the committee in adopting a report proposing amendments that he viewed as contrary to the principle of the bill acted beyond its authority and that, in consequence, the report should not be put to the Senate. In making his case, he referred to the Rules of the Senate and several passages from different authorities including, Erskine May, Beauchesne and Bourinot. Senator Kinsella also cited a Senate precedent from 1973. Supporting Senator Kinsella in this view was the Leader of the Opposition, Senator Lynch-Staunton who made several interventions during the discussion on this point of order.
Presenting contrary arguments were the Deputy Leader of the Government, Senator Graham, the Chairman of the Committee, Senator Carstairs, and Senator Stewart. The basis of their argument was that the amendments to Bill C-28 adopted by the committee are in keeping with the principle of the bill and that there is nothing in the report that is objectionable from a procedural point of view.
I want to thank the Honourable Senators who participated in the debate on the point of order. I found it very interesting, though I feel that it is now the Speaker who is in a bit of a conundrum.
The crux of the matter is the identification of the principle of the bill. The opposing positions taken in the debate stem from the different assessments made as to what is the principle of the bill. Senator Kinsella and Senator Lynch-Staunton, on the one hand, claim that the principle of Bill C-28 is very specific. It is their view that the bill declares the agreement "not to have come into force and to have no legal effect." They also maintain that the bill "bars certain activity or other proceedings against Her Majesty in right of Canada in relation to the agreements". Senator Graham, Senator Carstairs and Senator Stewart, on the other hand, take a broader view of the principle of the bill. They claim that the bill seeks "to set aside the agreements and, at the same time, ... to define the liability of the Crown consequent upon the enactment of that clause".
If one accepts the position of Senator Kinsella and Senator Lynch-Staunton on the principle of Bill C-28, the committee would seem to have exceeded its powers and the report should be ruled out of order. Senator Graham and Senator Stewart argued, however, that such a specific assessment of the principle of the bill might unduly restrict the ability of the Senate or its committees to consider the substance of any bill.
In this regard, I was interested in the references to the ruling made by Senator Macnaughton cited by Senator Kinsella. The ruling of Senator Macnaughton was made November 21, 1973 in his capacity as Chairman of the Committee of the Whole while it examined Bill C-2, an Act to amend the Criminal Code. An amendment had been proposed to abolish capital punishment permanently. A point of order was raised challenging the amendment because it was thought to be contrary to the principle of the bill. To determine what was the principle of the bill, Senator Macnaughton reviewed the second reading debate as well as the bill itself. In this particular case, the amending bill sought to provide for a continuance of an experiment to limit the application of the death penalty for five more years and this intention was confirmed by the debate at second reading. As Senator Macnaughton pointed out, twenty-four of the twenty- eight senators who spoke during the second reading debate mentioned the principle of the bill and agreed on it. With such a consensus, Senator Macnaughton was able to rule that the proposed amendment was out of order and, as Senator Kinsella pointed out, his decision was sustained following an appeal to the Senate.
In the pattern of Senator Macnaughton, I have studied the bill and reviewed the debate at second reading. The debate on Bill C-28 took place over several days beginning May 15 when the sponsor of the bill, Senator Kirby, addressed the intentions of the Government in bringing forward this particular legislation. Reviewing the history of this bill, he indicated that its purpose was "to cancel the Pearson airport agreements." At the same time, however, he indicated that the Government was prepared to introduce amendments to address legal objections to the bill that had been made during consideration of Bill C-22 in the previous session. During the course of his remarks, he explained what the amendments would seek to do. On page 350 of the Debates of the Senate, Senator Kirby outlined the specific nature and purpose of the amendments that the Government was prepared to move in committee.
Much of the remaining debate that took place on second reading acknowledged the fact of possible amendments with the caution that there could be no approval of the amendments before they were actually presented in committee. Though he remained opposed to the Government's policy with respect to Pearson airport agreements, Senator Lynch-Staunton seemed to welcome the evident intention of Senator Kirby to introduce amendments that "will address the concerns of senators opposite him". At the same time, however, Senator Lynch-Staunton stated that he would not debate "what is not before us".
Second reading of Bill C-28 was given by the Senate on May 30 and the bill was then referred to the Standing Senate Committee on Legal and Constitutional Affairs where the amendments were duly moved and adopted. The Committee reported the bill with these amendments and an observation last Monday, June 10.
In my assessment, the principle of this bill is not a simple one to identify. Certainly the language of the bill itself does not identify its principle in precise terms. The title indicates that the bill relates to certain agreements concerning the redevelopment and operation of Terminals 1 and 2 at Lester B. Pearson International Airport. These agreements are to be abrogated and a mechanism established to compensate some of the affected parties. To what extent the specific provisions of the bill dealing with the status of the agreements and the issue of liability are to be counted as part of the bill's principle is subject to interpretation.
Senator Kinsella held that there were three criteria by which amendments to a bill could be assessed and, as if to prove the point, Senator Stewart suggested that the committee amendments fulfil these three conditions. In this connection, I am mindful of the fact that amendments similar to these now proposed were adopted by the Senate during consideration of Bill C-22 without objection.
As Speaker, my role is to see to it that the rules and practices of the Senate are followed and that Senators are provided with an opportunity to debate issues in an orderly manner so that the Senate can come to its decision on those issues it has elected to consider. In this case, I am reluctant to find for the point of order raised by Senator Kinsella. The arguments that have been presented were persuasive, but not conclusive. The one thing that is clear is that there is no consensus on the principle of this bill and it is not for the Chair to impose one.
Accordingly, I feel that it would be more appropriate to allow the Senate to determine what constitutes the principle of Bill C-28. The Standing Senate Committee on Legal and Constitutional Affairs has proposed certain amendments to the bill and it would be better for the Senate itself, rather than the Speaker, to determine whether those amendments should be incorporated into the bill. Therefore, the report will be put before the Senate for debate.
Whereupon the Speaker's Ruling was appealed.
The question being put on whether the Speaker's Ruling shall be sustained, it was adopted by the following division:
YEAS
The Honourable Senators
Adams Anderson Austin Bacon Bonnell Bosa Bryden Carstairs Cools Corbin Davey De Bané Fairbairn Forest Gauthier Gigantès Grafstein Graham Haidasz Hays Hébert Hervieux- Payette Kenny Kirby Landry Lewis Losier- Cool Lucier MacEachen Maheu Marchand Milne Pearson Petten Pitfield Poulin Riel Rizzuto Robichaud Rompkey Roux Stanbury Stewart Stollery Taylor Watt Wood-4 7
NAYS
The Honourable Senators
Andreychuk Angus Atkins Beaudoin Berntson Bolduc Buchanan Charbonneau Cochrane Cogger Cohen Comeau DeWare Doody Doyle Forrestall Ghitter Grimard Gustafson Jessiman Johnson Kelleher Kelly Keon Kinsella Lavoie- Roux LeBreton Lynch-Staunton Macdonald (Cape Breton) MacDo nald (Halifax) Meighen Murray Nolin Oliver Phillips Rivest Roberge Robertson Rossiter Simard Spivak Stratton Tkachuk Twinn-4 4
ABSTENTIONS
The Honourable Senators
Ottenheimer- 1
Consideration of the Ninth Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-28, An Act respecting certain agreements concerning the redevelopment and operation of Terminals 1 and 2 at Lester B. Pearson International Airport, with amendments and observations) presented in the Senate on June 10, 1996.
The Honourable Senator Carstairs moved, seconded by the Honourable Senator Gauthier, that the Report be adopted.
After debate,
The Honourable Senator Lynch-Staunton moved, seconded by the Honourable Senator Murray, P.C., that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
With leave,
The Senate reverted to Government Notices of Motions.
With leave of the Senate,
The Honourable Senator Graham moved, seconded by the Honourable Senator Robichaud, P.C.:
That when the Senate adjourns today, it do stand adjourned until Tuesday next, June 18, 1996, at 2:00 p.m.
The question being put on the motion, it was adopted.
ORDERS OF THE DAY
OTHER BUSINESS
Senate Public Bills
Orders No. 1 and 2 were called and postponed until the next sitting.
Private Bills
Third reading of Bill S-8, An Act respecting Queen's University at Kingston.
The Honourable Senator Murray, P.C., moved, seconded by the Honourable Senator Macdonald (Cape Breton), 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 to which they desire their concurrence.
Ordered, That all remaining Orders be postponed until the next sitting.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Reports of the Freshwater Fish Marketing Corporation required by the Access to Information Act and the Privacy Act for the period ended March 31, 1996, pursuant to the Access to Information Act, R.S.C. 1985, c. A-1, s. 72(2) and the Privacy Act, R.S.C. 1985, c. P-21, s. 72(2).-Sessional Paper No. 2/35-214.
Statutes of the Northwest Territories for the year 1996, pursuant to the Northwest Territories Act, R.S.C. 1985, c. N-27, s. 22(1).-Sessional Paper No. 2/35-215.
Report on the Implementation of the Nunavut Land Claims Agreement for the period ended March 31, 1995, pursuant to article 37.3.3.(h)(ii) of the Nunavut Land Claims Agreement as ratified by the Nunavut Land Claims Agreement Act, S.C. 1993, c. 29.-Sessional Paper No. 2/35-216.
Report of the Northern Oil and Gas for the year ended 1994, pursuant to the Canada Petroleum Resources Act, R.S.C. 1985 (2nd Supp.), c. 36, s. 109.-Sessional Paper No. 2/35-217.
ADJOURNMENT
The Honourable Senator Graham moved, seconded by the Honourable Senator Robichaud, 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 Transport and Communications
The name of the Honourable Senator Roux substituted for that of the Honourable Senator Landry (June 12).
Standing Senate Committee on National Finance
The names of the Honourable Senators Forest, De Bané, Haidasz and Poulin substituted for those of the Honourable Senators Pearson, Petten, Poulin and Haidasz (June 12).
Standing Senate Committee on Legal and Constitutional Affairs
The name of the Honourable Senator Pearson substituted for that of the Honourable Senator Poulin (June 12).