Journals of the Senate
47 Elizabeth II, A.D. 1998, Canada
Journals of the Senate
Issue 53
Thursday, April 2, 1998
2:00 p.m.
The Honourable Gildas L. Molgat, Speaker
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Bacon, Beaudoin, Berntson, Bryden, Butts, Callbeck, Carstairs, Cochrane, Comeau, Cook, Corbin, De Bané, Di Nino, Doody, Fairbairn, Ferretti Barth, Fitzpatrick, Forest, Gauthier, Gigantès, Grafstein, Graham, Grimard, Hébert, Hervieux-Payette, Johnson, Johnstone, Joyal, Kelleher, Kelly, Kenny, Keon, Kinsella, Lawson, LeBreton, Lewis, Lynch-Staunton, Maheu, Meighen, Milne, Molgat, Moore, Murray, Nolin, Oliver, Perrault, Poulin, Prud'homme, Roberge, Simard, Sparrow, Stewart, Tkachuk, Watt
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.DAILY ROUTINE OF BUSINESS
Presentation of Reports from Standing or Special Committees
The Honourable Senator Comeau, Chair of the Standing Senate Committee on Fisheries, presented its Second Report (budget-study on quota licensing in Canada's fisheries).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.
With leave of the Senate, The Honourable Senator Comeau moved, seconded by the Honourable Senator Beaudoin, that the Report be adopted now.
The question being put on the motion, it was adopted. The Honourable Senator Milne, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, presented its Seventh Report (Bill C-18, An Act to amend the Customs Act and the Criminal Code) without amendment.
The Honourable Senator Carstairs moved, seconded by the Honourable Senator Cook, 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 Bacon, Chair of the Standing Senate Committee on Transport and Communications, presented its Sixth Report (Bill S-2, An Act to amend the Canadian Transportation Accident Investigation and Safety Board Act and to make a consequential amendment to another Act), with certain amendments and observations.
The Report was then read by one of the Clerks at the Table, as follows:
THURSDAY, April 2, 1998
The Standing Senate Committee on Transport and Communications has the honour to present its
SIXTH REPORT
Your Committee, to which was referred Bill S-2, An Act to amend the Canadian Transportation Accident Investigation and Safety Board Act and to make a consequential amendment to another Act, has, in obedience to the Order of Reference of Tuesday, October 21, 1997, examined the said Bill and now reports the same with the following amendments and observations:1. Page 2, clause 3, replace lines 20 and 21 with the following:
"consisting of not more than five members appointed by the Governor in Council, at least three of whom shall be full-time members."
2. Page 9, clause 17, replace line 5 with the following:
"(i) the flight deck of an aircraft or a control facility for aviation operations,"
3. Page 9, clause 17, replace line 16 with the following:
"craft or a control facility for aviation operations, on the bridge or in a control room of the".
4. Page 13, new clause 28.1, add after line 18 the following :"28.1 For the purpose of any legal, disciplinary or other proceeding that is commenced prior to, on or after the coming into force of this Act, sections 32 and 33 of the Canadian Transportation Accident Investigation and Safety Board Act, as they read immediately before the coming into force of this Act, continue to apply in respect of a transportation occurrence, as that expression was defined in section 2 of the Act immediately before the coming into force of this Act.".
Observations
The Committee heard from Chairman Jim Hall of the United States National Transportation Safety Board. In his testimony he explained that one of the shortcomings they faced during his mandate was the lack of coordination and support for the family of an aviation disaster. Congress responded by passing legislation in 1996, the Aviation Disaster Family Assistance Act, giving their board the responsibility to address the needs of families of passengers involved in aircraft accidents.
Your Committee feels that the situation in Canada should be assessed and that the Canadian Transportation Accident Investigation and Safety Board Act undertake a study to identify any shortcomings in the matter of the provision of post-accident counselling and facilitation to the family and close friends of Canadians killed in major transportation accidents with a view to determining what measures, if any, may be necessary to alleviate those shortcomings.
Also, the Committee feels that the expertise of the Board could be valuable on major highway accidents and that the board should explore means by which it might co-operate more extensively with other federal and provincial agencies with a view to determining whether or not it might play a greater role in the investigation of some of the more serious highway accidents in Canada.
Respectfully submitted,
LISE BACON
Chair
The Honourable Senator Bacon moved, seconded by the Honourable Senator Ferretti Barth, 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 Murray, P.C., Chair of the Standing Senate Committee on Social Affairs, Science and Technology tabled its Fourth Report (Interim) entitled: "The State of Health Care for War Veterans and Service Men and Women - First Report: Long-Term Care, Standards of Care and Federal- Provincial Relations".-Sessional Paper No. 1/36-538S.
The Honourable Senator Murray, P.C., moved, seconded by the Honourable Senator Doody, 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 Lynch-Staunton presented a Bill S-15, An Act respecting the declaration of royal assent by the Governor General in the Queen's name to bills passed by the Houses of Parliament.The Bill was read the first time.
The Honourable Senator Lynch-Staunton moved, seconded by the Honourable Senator Kinsella, that the Bill be placed on the Orders of the Day for a second reading on Tuesday, April 21, 1998.
The question being put on the motion, it was adopted.
ANSWERS TO WRITTEN QUESTIONS
Pursuant to Rule 25(2), the Honourable Senator Carstairs tabled the following:Reply to Question No. 90, dated March 18, 1998, appearing on the Order Paper in the name of the Honourable Senator Kenny, respecting the Alternative Fuels Act-Farm Credit Corporation.-Sessional Paper No. 1/36-539S.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Order No. 1 was called and postponed until the next sitting.OTHER BUSINESS
Senate Public Bills
Order No. 1 was called and postponed until the next sitting. The Order was called concerning the motion of the Honourable Senator Kenny, seconded by the Honourable Senator Nolin, for the second reading of Bill S-13, An Act to incorporate and to establish an industry levy to provide for the Canadian Tobacco Industry Community Responsibility Foundation.SPEAKER'S RULING
Honourable Senators, on Tuesday, March 17, I stated that I would take under advisement the important point of order that had been raised with respect to Bill S-13, an Act to incorporate and to establish an industry levy to provide for the Canadian Tobacco Industry Community Responsibility Foundation. Arguments were presented by several Senators and three separate documents were tabled by Senator Kenny. On March 25, with leave of the Senate, Senator Kinsella raised another question regarding the procedural acceptability of this bill. He asked the Chair to consider whether this bill might in fact be a private bill rather than a public one. I have reviewed all the statements made by Senators who participated in the discussion on the point of order, studied the documents that were tabled and examined the bill itself. I am now prepared to rule on the point of order.There are two fundamental questions that were first raised with respect to Bill S-13 on March 17. The first has to do with the possibility that the bill requires a Royal Recommendation. The second is whether the levy described in the bill is in fact a tax. If the answer to either of these questions is affirmative, that the bill does require a Royal Recommendation or that the bill does impose a tax, then this so called "money bill" would not properly be before the Senate since such a bill must originate in the House of Commons. Under such circumstances, the order for second reading of the bill would have to be discharged and the bill itself dropped from the Order Paper. In order to determine the answers to these questions, it is necessary to review the basic arguments.
Senator Lynch-Staunton, who brought this matter to the attention of the Senate when the Bill S-13 was called for second reading, took no position on the matter. He raised the question simply for the purpose of clarification asking whether Bill S-13 was a money bill. A similar motive seems to have prompted Senator Stollery to rise on a point of order after the second reading of the bill was formally moved. In presenting his case, Senator Stollery pointed to the obvious financial implications of the bill and suggested that this bill may indeed be a money bill. After citing sections 53 and 54 of the Constitution Act, 1867 as well as rule 81 of the Rules of the Senate, the Senator noted that the bill appears to authorise the collection of money that is to be spent in pursuit of a public purpose. If such an assessment were accurate, the bill, in Senator Stollery's words, "must be introduced in the House of Commons by a minister, not in the Senate by a private member."
Speaking on behalf of the bill's procedural acceptability, Senator Kenny began by stating simply that Bill S-13 is not a money bill. He claimed that the financial provisions of the bill "do not appropriate any part of the public revenue and do not impose a tax." Developing his position in greater detail, he pointed to the clauses of the bill which indicate that the money raised through the levy is not public revenue. The Senator noted, for example, that the collected funds received by the non-profit corporation established through the bill, do not form any part of the Consolidated Revenue Fund, even if the corporation should be dissolved. He also cited a clause which states explicitly that the corporation is not an agent of the Crown and its funds are not public funds.
As to whether the levy is a tax, Senator Kenny explained that, based on relevant citations of the 21st edition of Erskine May Parliamentary Practice, the levy described in the bill is not a tax and as such is exempt from normal financial procedures including, presumably, the obligation to have this bill considered first in the House of Commons before the Senate. This is because, as he stated, the levy is being imposed exclusively on the tobacco industry and in pursuit of its own purposes even though there is a public benefit as well. In addition, he sought to buttress his case with references to legal opinions which concluded that the levy described in the bill was not a tax. Since it did not have as its primary purpose the collection of revenue for government purposes and because the levy was part of a regulatory scheme, the money collected through this bill was not a tax.
After Senator Kenny had spoken, several other Senators made some comments. Senator Kinsella attempted to find out if the Government had a position on this bill. This theme was subsequently raised again by Senator Murray after Senator Carstairs explained that because the bill was not sponsored by the Government, it had taken no position on it. Instead, she said that the Government was prepared to await the Speaker's decision. Senator Bryden then expressed some doubt about whether the levy was in fact a tax. Of greater concern to him was whether the bill was making the government some sort of ally of the tobacco industry. Speaking immediately after Senator Murray, Senator Gigantès suggested that the Senate should be more confident in exercising its own powers. Finally, Senator Stewart maintained that the real question, in fact the only question, was whether the levy involves a tax or impost. As he put it, "If it is a tax or impost, it is out of order here. If it is not a tax or an impost, the question of the Royal Recommendation for an appropriation does not arise."
A week after the point of order was originally raised, Senator Kinsella obtained the leave of the Senate to re-open the matter in order to ask another question with respect to the procedural acceptability of Bill S-13. His question concerned whether this bill was a private bill or a public one. In stating his case, he noted that the corporation established by this bill was for the benefit of the tobacco industry. This being so, he then wondered if perhaps the industry should be petitioning for this bill, a required preliminary to the introduction of any private bill. He then referred to the four criteria listed in Beauchesne's Parliamentary Rules and Forms used to assess whether a bill should be viewed as private or public and suggested that the Chair take them into consideration. Senator Kinsella also took note of the fact that the bill conferred on the corporation certain powers including the power to collect levies. Without reaching a firm conclusion, he indicated that he was suspicious that this bill is more in the nature of a private bill.
I want to thank all Honourable Senators who contributed their views to this point of order. As I already stated, I have taken the opportunity to review the arguments, the tabled documents and the bill itself since the point of order was first raised March 17.
Let me begin with this general proposition. It is my view that matters are presumed to be in order, except where the contrary is clearly established to be the case. This presumption suggests to me that the best policy for a Speaker is to interpret the rules in favour of debate by Senators, except where the matter to be debated is clearly out of order.
Addressing first the question that was raised by Senator Kinsella asking if Bill S-13 should be viewed as a private bill rather than a public one, I have taken his advice and looked closely at the four criteria spelled out in the sixth edition of Beauchesne at citation 1055. In addition, I have carefully reviewed the bill in light of the standard definition of a private bill. Beauchesne, in words closely based on Erskine May, states, at citation 1053, that "private legislation is legislation of a special kind for conferring particular powers on any person or body of persons, including individuals and private corporations, in excess of or in conflict with the general law." Proceedings on a private bill are initiated by a petition solicited by the parties interested in promoting the bill.
In this case, Senator Kinsella has suggested that if this bill is indeed a private bill, it would be out of order since it was not introduced into the Senate through a petition. If, on the other hand, it is a public bill, no petition would be necessary. Senator Kinsella identifies the possible petitioners as the "tobacco industry". He does not, however, identify the individuals or corporations who should be the petitioners for the tobacco industry. Nor does the bill define the tobacco industry or specify who are its members. Whatever the precise identity of the tobacco industry, the first question that must be decided is whether Bill S-13 is a private bill or a public bill.
Looking at the four criteria which would determine whether a private bill should be handled as a public bill, I am struck by two of the criteria which lead me to believe the Bill S-13 is properly a public bill. The first is the fact that the objects of the bill affect public policy. While it cannot be denied that the language of the bill highlights industry benefits, it is equally true that public policy is very much served by the bill in so far as it is aimed at the reduction of smoking by young people as is stated in subsection 3(2) of the bill. As well, the magnitude of the area covered by the bill and the multiplicity of interests involved, which is the third criterion listed in Beauchesne, suggest to me that the bill is a public bill.
In the absence of any compelling reasons to assess the bill any other way, I am satisfied that Bill S-13 can proceed as a public bill.
Taking the first question that was raised on March 17, does the bill require a Royal Recommendation, I must conclude that it does not. The fundamental purpose of the requirement for a Royal Recommendation is to limit the authority for appropriating money from the Consolidated Revenue Fund to the Government. In section 2 of the Financial Administration Act, "appropriation" is defined to mean "...any authority of Parliament to pay money out of the "Consolidated Revenue Fund"; Consolidated Revenue Fund" is defined to mean "...the aggregate of all public moneys that are on deposit at the credit of the Receiver General". Only Ministers can obtain the necessary approval from the Governor General for a Royal Recommendation to appropriate these funds. The Constitution stipulates that bills requiring or possessing a Royal Recommendation must originate in the House of Commons, a requirement enforced through rule 81 of the Senate.
With respect to Bill S-13, the money raised through the levy is to be collected by the Canadian Tobacco Industry Community Responsibility Foundation or its agent. The Foundation also disposes of the funds raised in the manner and for the purposes spelled out in the bill. While section 2 of the Financial Administration Act defines "public money" in part as "...all money belonging to Canada...", clause 33(1) of the bill expressly states that "...the Foundation is not an agent of Her Majesty and its funds are not public funds of Canada". Moreover, no part of the bill suggests that any money need be appropriated from the CRF in order to implement any aspect of this bill.
Therefore, I can see no requirement for a Royal Recommendation for this bill.
The second question of March 17 has to do with whether or not the levy scheme established through this bill constitutes a tax. In answering this question, I am constrained by the rule that the Speaker does not rule on questions of law. Citation 168(5) of Beauchesne states 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."
What is within my authority, however, is the examination of the bill in order to assess what it declares itself to be. I accepted the plain and ordinary meaning of its words and studied them to see if all the clauses relevant to the issue of the levy were internally consistent. I then measured the levy described in the bill against the criteria Erskine May sets out at pages 730-737 for identifying levies that are exempt from financial procedures governing the imposition of taxes.
With respect to the matter of the plain language of the bill, it speaks in terms of a levy rather than a tax. This is evident from Part II of the bill. It is also clear that the levy is imposed on the tobacco industry alone. The purpose of the levy, as stated in the bill, is to meet an industry purpose beneficial to it, although this industry purpose also has public benefit. Clause 3 states categorically that the purpose of the bill is "to enable and assist the Canadian tobacco industry to carry out its publicly-stated objective of reducing the use of tobacco products by young persons throughout Canada ..." The levy is imposed exclusively on tobacco products of whatever description and is to be spent in pursuit of the goals listed in clause 5. Consequently, with respect to the language of the bill, I must accept that what is proposed is a levy, not a tax.
Erskine May describes two criteria by which a bill proposing a levy is exempt from the financial procedures, including the adoption of a Ways and Means resolution that would normally apply to bills imposing a tax. The first criterion is that the levy must be for industry purposes. The second is that the funds collected must not form any part of Government revenue. Erskine May includes examples of bills which were regarded as levies as well as those which failed to meet either or both of these two criteria. Some of these examples are of relatively recent date, suggesting that the criteria remain applicable in modern British practice. More importantly, they also seem to be applicable in Canadian practice.
Beauchesne at citation 980(1) states that "a Ways and Means motion is a necessary preliminary to the imposition of a new tax." It is the corollary to the principle behind the Royal Recommendation in that it requires the sanction of the Crown to provide the revenue that may be appropriated for public purposes at a future date. Beauchesne goes on to explain the circumstances relative to the introduction of a new tax. Citation 980(2) declares that "no motion can ... be made to impose a tax, save by a Minister ... nor can the amount of a tax proposed on behalf of the Crown be augmented, nor any alteration made in the area of imposition. In like manner, no increase can be considered .... except by a Minister, acting on behalf of the Crown." Once a Ways and Means motion has been proposed and subsequently adopted, it becomes a Ways and Means resolution. Following the adoption of this resolution, a bill is introduced based on its provisions, given first reading, printed, and ordered for second reading at the next sitting of the House. In Canadian practice, based on the British model, any bill proposing to introduce a new tax must be preceded by a Ways and Means motion. Without it, any charge proposed in a bill would not be identified as a tax.
Bill C-32, An Act to amend the Copyright Act, passed by the previous Parliament, was mentioned by Senator Kenny when he presented his case on this point of order. Certain provisions of Bill C-32, a Government bill, imposed a levy on the sale of blank tapes to be distributed to artists and artist groups as a form of royalty. The Senator indicated that Bill C-32 did not have a Royal Recommendation suggesting, at the very least, that the funds distributed were not regarded as an expenditure of Government revenue, and hence not collected by a tax. However, that is not the complete picture. There is further evidence that the levy was not viewed as a tax. I say this because, so far as I have been able to determine, the bill was not preceded by a Ways and Means resolution which would have been a prerequisite if the funds collected had been viewed as a tax.
Applying the criteria explained in Erskine May, and based on the model of Bill C-32, I can only determine that the levy proposed in Bill S-13 is not a tax from a procedural point of view. Consequently, the bill is not subject to the usual financial procedures that would require it to be considered first in the other place.
My ruling is that the bill is properly before the Senate. Debate on second reading can now proceed. The Senate proceeded to the debate on the motion of the Honourable Senator Kenny, seconded by the Honourable Senator Nolin, for the second reading of Bill S-13, An Act to incorporate and to establish an industry levy to provide for the Canadian Tobacco Industry Community Responsibility Foundation.
After debate, The question being put on the motion, it was adopted.
The Bill was then read the second time.
The Honourable Senator Kenny moved, seconded by the Honourable Senator Nolin, that the Bill be referred to the Standing Senate Committee on Social Affairs, Science and Technology.
The question being put on the motion, it was adopted.
Reports of Committees
Orders No. 1 to 3 were called and postponed until the next sitting. Order No. 4 was called and pursuant to Rule 27(3) was dropped from the Order Paper.Other
Resuming debate on the motion of the Honourable Senator Bacon, seconded by the Honourable Senator Pépin:That the Standing Senate Committee on Transport and Communications have power to sit at 4:00 p.m. on Tuesdays for the duration of its study of Bill C-9, Canada Marine Act, even though the Senate may then be sitting and that Rule 95(4) be suspended in relation thereto.
After debate, With leave of the Senate and pursuant to Rule 30, the motion was withdrawn. Orders No. 14, 27, 15, 25, 21 (inquiries), 45 (motion), 12, 19, 24, 18, 20 (inquiries), 48, 54 (motions) and 16 (inquiry) were called and postponed until the next sitting. Resuming debate on the inquiry of the Honourable Senator Robertson calling the attention of the Senate to its lack of full accessibility to Canadians with disabilities, and to a means for dealing with disability issues.
Debate concluded. Order No. 1 (motion) was called and postponed until the next sitting.
MOTIONS
The Honourable Senator Moore moved, seconded by the Honourable Senator Butts:That the Senate urge the governments of the provinces and territories to ensure that their laws respecting the enforcement of interprovincial subpoenas explicitly provide that they are applicable, not only to courts of law, but also to commissions of inquiry;
That the Senate also urge the government of any province or territory to amend such laws where they are not clearly applicable to commissions of inquiry in order to remove any doubt; and
That a message be sent to the Assemblies of the provincial and territorial legislatures to acquaint them accordingly.
After debate, The Honourable Senator Berntson moved, seconded by the Honourable Senator Lynch-Staunton, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
The Honourable Senator Watt moved, seconded by the Honourable Senator Adams:
That the papers and evidence received and taken by the Standing Senate Committee on Aboriginal Peoples during its study of Bills S-10 and S-12 ( An Act providing for self-government by the first nations of Canada) in the Thirty-fifth Parliament be referred to the Committee for its present study of Bill S-14.
The question being put on the motion, it was adopted.
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With leave, The Senate reverted to Government Notices of Motions.With leave of the Senate, The Honourable Senator Carstairs moved, seconded by the Honourable Senator Bacon:
That when the Senate adjourns today, it do stand adjourned until Tuesday, April 28, 1998, at 2:00 p.m.
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 Public Service Staff Relations Board, for the fiscal year ended March 31, 1997, pursuant to the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, sbs. 114(2).-Sessional Paper No. 1/36-535.Copy of Order in Council P.C. 1998-426, dated January 6, 1998 concerning the Agreement on Social Security between the Government of Canada and the Government of St. Vincent and the Grenadines, pursuant to the Old Age Security Act, R.S.C. 1985, c. O-9, s. 42(1).-Sessional Paper No. 1/36-536.
Copy of Order in Council P.C. 1998-427, dated March 19, 1998 concerning the Agreement on Social Security between the Government of Canada and Grenada, pursuant to the Old Age Security Act, R.S.C. 1985, c. O-9, s. 42(1).-Sessional Paper No. 1/36-537.
ADJOURNMENT
The Honourable Senator Carstairs moved, seconded by the Honourable Senator Bacon:That the Senate do now adjourn.
The question being put on the motion, it was adopted.