Journals of the Senate
45 Elizabeth II, A.D. 1996, Canada
Journals of the Senate
Issue 39
Wednesday, October 2, 1996
1:30 p.m.
The Honourable Gildas L. Molgat, Speaker
The Members convened were:
The Honourable Senators
Adams Anderson Andreychuk Atkins Austin Bacon Balfour Beaudoin Berntson Bolduc Bosa Bryden Buchanan Carney Carstairs Cochrane Cogger Cohen Comeau Cools Corbin De Bané DeWare Doody Doyle Fairbairn Forest Forestall Ghitter Gigantès Grafstein Graham Grimard Gustafson Haidasz Hays Hébert Hervieux-Payette Kelly Kenny Keon Kinsella Kolber Landry Lavoie-Roux LeBreton Lewis Losier-Cool Lynch-Staunton MacDonald (Halifax) Maheu Mercier Milne Molgat Moore Murray Nolin Pearson Perrault Petten Phillips Pitfield Poulin Prud'homme Riel Rizzuto Robertson Robichaud Rompkey Rossiter Simard Sparrow Stanbury Stewart Stollery Taylor Tkachuk Twinn Watt Whelan
PRAYERS.
INTRODUCTION OF SENATORS
The Honourable the Speaker informed the Senate that the Clerk of the Senate had received a Certificate from the Registrar General of Canada showing that Wilfred P. Moore had been summoned to the Senate.
The Honourable the Speaker informed the Senate that there was a Senator without waiting to be introduced.
The Honourable Senator Moore was introduced between the Honourable Senator Fairbairn, P.C., and the Honourable Senator Graham, and having presented Her Majesty's Writ of Summons it was read by one of the Clerks at the Table as follows:-
CANADA
Frank Iacobucci(G.S.)
Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories QUEEN, Head of the Commonwealth, Defender of the Faith.
TO
Our Trusty and Well-beloved
WILFRED P. MOORE
One of Our Counsel learned in the law
of Chester, in the Province of Nova Scotia
KNOW YOU, that as well for the especial trust and confidence We have manifested in you, as for the purpose of obtaining your advice and assistance in all weighty and arduous affairs which may the State and Defence of Canada concern, We have thought fit to summon you to the Senate of Canada.
AND WE do command you that all difficulties and excuses whatsoever laying aside, you be and appear, for the purposes aforesaid, in the Senate of Canada at all times whensoever and wheresoever Our Parliament may be in Canada convoked and holden, and this you are in no wise to omit.
IN TESTIMONY WHEREOF, We have caused these Our Letters to be made Patent and the Great Seal of Canada to be hereunto affixed.
WITNESS:
The Honourable Frank Iacobucci, a Puisne Judge of the Supreme Court of Canada and Deputy of Our Right Trusty and Well-beloved Roméo A. LeBlanc, a Member of Our Privy Council for Canada, Chancellor and Principal Companion of Our Order of Canada, Chancellor and Commander of Our Order of Military Merit, Governor General and Commander-in-Chief of Canada.
AT OTTAWA, this twenty-sixth day of September, in the year of Our Lord one thousand nine hundred and ninety-six and in the forty-fifth year of Our Reign.
BY COMMAND,
JOHN MANLEY
Registrar General of Canada
The Honourable Senator Moore came to the Table and took and subscribed the Oath prescribed by law, which was administered by the Clerk of the Senate, the Commissioner appointed for that purpose, and took his seat as a Member of the Senate.
The Honourable the Speaker informed the Senate that the Honourable Senator Moore had made and subscribed the Declaration of Property Qualification required of him by the Constitution Act 1867, in the presence of the Clerk of the Senate, the Commissioner appointed to receive and witness same.
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Tribute was paid to the memory of the Honourable Robert Bourassa, former Premier of the Province of Quebec, whose death occurred October 2, 1996.
DAILY ROUTINE OF BUSINESS
Tabling of Documents
The Honourable Senator Fairbairn, P.C., tabled the following:
Employment Insurance (Fishing) Regulations.-Sessional Paper No. 2/35-438S.
Presentation of Reports from Standing or Special Committees
The Honourable Senator Kenny presented the following:
WEDNESDAY, October 2, 1996
The Standing Committee on Internal Economy, Budgets and Administration has the honour to present its
ELEVENTH REPORT
Your Committee has examined and approved the budget presented to it by the Standing Committee on Privileges, Standing Rules and Orders for the proposed expenditures of the said Committee for the fiscal year ending March 31, 1997:
|
Professional and Other Services |
$3,000 |
|
Total |
$3,000 |
Respectfully submitted,
COLIN KENNY
Chair
The Honourable Senator Kenny moved, seconded by the Honourable Senator Lewis, 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
Bills
The Order was called to resume debate on the motion of the Honourable Senator Bryden, seconded by the Honourable Senator Roux, for the second reading of Bill C-42, An Act to amend the Judges Act and to make consequential amendments to another Act.
SPEAKER'S RULING
Honourable Senators, yesterday during debate on the second reading of Bill C-42, an Act to amend the Judges Act and to make consequential amendments to another Act, a point of order was raised asking for a ruling from the Chair. Senator Kinsella asked me as Speaker to determine whether Bill C-42 is a public or a private bill. He made this request following remarks of Senator Cools in which she suggested that there were elements of the bill that seemed to be essentially of a private bill nature. In supporting the request of Senator Kinsella, Senator Cools asked that the comments she had made during second reading debate be taken into consideration. She also suggested that I read an article that appeared in a newspaper. In addition, Senator Kinsella also asked me to assess whether the bill impinges any part of the Constitution.
I have reviewed these statements as well as earlier comments made during second reading debate, examined the bill and studied the relevant authorities and am now prepared to rule on Senator Kinsella's point of order.
Basically, the question before us seems to be one of definitions: What is a public bill and what is a private bill? Citation 623 of Beauchesne, 6th edition at page 192 states that:
A public bill relates to matters of public policy while a private bill relates to matters of a particular interest or benefit to a person or persons. A bill containing provisions which are essentially a feature of a private bill cannot be introduced as a public bill. A bill designed to exempt one person from the application of the law is a private bill and not a public bill.
And at citation 1053 (page 285-6), Beauchesne further explains that:
Private legislation is legislation of a special kind for conferring particular powers or benefits on any person or body of persons, including individuals and private corporations, in excess of or in conflict with the general law.
From these definitions, it is pretty clear to me that in order for Bill C-42 to be viewed as a private bill, it must be the case that its provisions do not relate at all to public policy, but rather confer particular benefits on certain individuals or provide an exemption from the general law. To assess this issue, it has been necessary for me to review the provisions of the bill. I also read the statements made by Senator Cools and the remarks of Senator Bryden, who is the sponsor of the bill, and the comments of Senator Berntson, who spoke in reply, when the motion for second reading was first moved on June 19th.
Based on the debates thus far, it seems evident that Bill C-42 is attempting to accomplish a number of objectives: One, it establishes a mechanism to permit judges to apply for a leave of absence without pay in order to participate in international activities or international technical assistance programs under certain conditions. Two, Bill C-42 transfers from the cabinet to chief justices the authority to approve leaves of up to six months. Three, it permits the appointment of a judge to the Ontario Court of Appeal and of two judges to the British Columbia Court. Four, the bill adds the Chief Justice of the Court Martial Appeal Court to the membership of the Canadian Judicial Council. Finally, the bill also makes a change with respect to the annuity entitlements of judges in certain circumstances and provides for representational allowances to the Chief Justice of the Court Martial Appeal Court as well as to the Chief Justices of the Yukon and Northwest Territories Courts of Appeal. While some of these changes may relate at the moment to identifiable individuals, they are designed to have lasting application; consequently, they are not in any way an exemption from the general law, but a change to it. Given this interpretation, it seems clear to me that Bill C-42 is a public bill, and not a private one.
In addition, I would refer Honourable Senators to citation 1055 of Beauchesne at page 286 where an explanation is given about four principles used to determine whether a bill introduced as a private bill should in fact be treated as a public one. Applying the appropriate principles to this particular bill in order to evaluate its public or private character, I believe that my assessment of Bill C-42 as a public bill is confirmed. As I have already indicated, its subject matter relates to public policy; it also proposes to amend or repeal a public act; and it has as its object what is essentially a public matter.
Accordingly, I must conclude that Bill C-42, which was introduced in the other place by a Minister of the Crown as a matter of public policy and with a Royal Recommendation attached to it, is a public bill.
With respect to the second question asked by Senator Kinsella whether or not this bill impinges upon provisions of the Constitution Act, I must reply that by long established tradition and practice, the Speaker generally refrains from any involvement in constitutional or legal questions. In support, I would refer Honourable Senators to citation 168(5) in Beauchesne at page 49 where it is stated that:
The Speaker will not give a decision upon a constitutional question nor decide a question of law, though the same may be raised on a point of order or a question of privilege.
Debate will now resume where we left it yesterday.
Resuming the debate on the motion of the Honourable Senator Bryden, seconded by the Honourable Senator Roux, for the second reading of Bill C-42, An Act to amend the Judges Act and to make consequential amendments to another Act.
After debate,
The question being put on the motion, it was adopted, on division.
The Bill was then read the second time, on division.
The Honourable Senator Bryden moved, seconded by the Honourable Senator Anderson, 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
SPEAKER'S STATEMENT
Honourable senators, yesterday afternoon a question arose as to whether I had said "adopté, carried". We had some discussion on this matter, and it was agreed that the transcripts would be reviewed. After the session yesterday, we obtained the tape and sought consultation with both sides, representatives of whom came to my chambers and listened to the tape. Subsequently the tape was played for Senator Prud'homme, the only member of the independent group who is here, and I think everyone was satisfied that, indeed, I had not said "adopté, carried". Therefore, the question before us is the motion in amendment proposed by the Honourable Senator Doody, seconded by the Honourable Senator Kinsella.
Resuming the debate on the motion of the Honourable Senator Rompkey, P.C., seconded by the Honourable Senator De Bané, P.C., for the adoption of the Thirteenth Report of the Standing Senate Committee on Legal and Constitutional Affairs (amendment to the Constitution of Canada, Term 17 of the Terms of Union of Newfoundland with Canada), deposited with the Clerk of the Senate on July 17, 1996,
And on the motion in amendment of the Honourable Senator Doody, seconded by the Honourable Senator Kinsella, that the Report be not now adopted but that it be amended by deleting the words "without amendment, but with a dissenting opinion" and substituting therefor the following:
"with the following amendment:
Delete the words in paragraph (b) of Term 17 that precede subparagraph (i) and substitute therefor the words: "where numbers warrant,"".
After debate,
The Honourable Senator Forest moved, seconded by the Honourable Senator Landry, that further debate on the motion in amendment be adjourned until the next sitting.
The question being put on the motion, it was adopted.
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Ordered, That all remaining Orders be postponed until the next sitting.
Motions
The Honourable Senator Bacon moved, seconded by the Honourable Senator Corbin:
That the Standing Senate Committee on Transport and Communications be authorized to examine and make recommendations upon the state of transportation safety and security in Canada and to complete a comparative review of technical issues and legal and regulatory structures with a view to ensuring that transportation safety and security in Canada are of such high quality as to meet the needs of Canada and Canadians in the twenty-first century;
That the Committee be authorized to permit coverage by electronic media of its public proceedings with the least possible disruption of its hearings; and
That the Committee present its final report no later than December 31, 1997.
The question being put on the motion, it was adopted.
Reports Deposited with the Clerk of the Senate Pursuant to Rule 28(2):
Report of the Canadian International Trade Tribunal entitled: "Requests for Tariff Relief by Freed & Freed International Ltd. and Fen-Nelli Fashions Inc., regarding certain woven fabrics of wool and/or fine animal hair or blends thereof with synthetic staple fibres" dated August 27, 1996, pursuant to the Canada- United States Free Trade Agreement Implementation Act, 1988,c. 65, sbs. 21(2).-Sessional Paper No. 2/35-437.
ADJOURNMENT
The Honourable Senator Graham moved, seconded by the Honourable Senator Whelan, P.C.:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
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Changes in Membership of Committees Pursuant to Rule 85(4)
Standing Senate Committee on Transport and Communications
The names of the Honourable Senators Perrault and Whelan substituted for those of the Honourable Senators Losier-Cool and Forest (October 2).
Standing Committee on Privileges, Standing Rules and Orders
The name of the Honourable Senator Gustafson substituted for that of the Honourable Senator Rossiter (October 2).