Journals of the Senate
48 Elizabeth II, A.D. 1999, Canada
Journals of the Senate
Issue 138
Tuesday, May 11, 1999
2:00 p.m.
The Honourable Gildas L. Molgat, Speaker
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Atkins, Austin, Balfour, Beaudoin, Berntson, Bolduc, Bryden, Buchanan, Butts, Callbeck, Carstairs, Chalifoux, Cochrane, Cogger, Comeau, Cook, Corbin, De Bané, DeWare, Di Nino, Doody, Fairbairn, Ferretti Barth, Forrestall, Fraser, Gauthier, Ghitter, Gill, Grafstein, Graham, Grimard, Gustafson, Hervieux-Payette, Johnson, Johnstone, Joyal, Kelleher, Kenny, Keon, Kinsella, Kirby, Kroft, Lavoie-Roux, Lawson, LeBreton, Lewis, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Maloney, Meighen, Mercier, Milne, Molgat, Moore, Murray, Nolin, Oliver, Pearson, Pépin, Perrault, Poulin, Prud'homme, Rivest, Roberge, Robichaud, (L'Acadie-Acadia) , Robichaud, (Saint-Louis-de-Kent), Rompkey, Rossiter, Ruck, St. Germain, Simard, Sparrow, Spivak, Stewart, Stollery, Stratton, Taylor, Tkachuk, Watt, Whelan, Wilson
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, *Angus, Atkins, Austin, Balfour, Beaudoin, Berntson, Bolduc, Bryden, Buchanan, Butts, Callbeck, Carstairs, Chalifoux, Cochrane, Cogger, Comeau, Cook, *Cools, Corbin, De Bané, DeWare, Di Nino, Doody, Fairbairn, Ferretti Barth, Forrestall, Fraser, Gauthier, Ghitter, Gill, Grafstein, Graham, Grimard, Gustafson, Hervieux-Payette, Johnson, Johnstone, Joyal, Kelleher, Kenny, Keon, Kinsella, Kirby, Kroft, Lavoie-Roux, Lawson, LeBreton, Lewis, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Maloney, Meighen, Mercier, Milne, Molgat, Moore, Murray, Nolin, Oliver, Pearson, Pépin, Perrault, Poulin, Prud'homme, Rivest, Roberge, Robichaud, (L'Acadie-Acadia) , Robichaud, (Saint-Louis-de-Kent), Rompkey, Rossiter, Ruck, St. Germain, Simard, Sparrow, Spivak, Stewart, Stollery, Stratton, Taylor, Tkachuk, Watt, Whelan, Wilson
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.DAILY ROUTINE OF BUSINESS
Government Notices of Motions
With leave of the Senate, The Honourable Senator Carstairs moved, seconded by the Honourable Senator Graham, P.C.:That when the Senate adjourns today, it do stand adjourned until tomorrow, Wednesday, May 12, 1999, 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-66, An Act to amend the National Housing Act and the Canada Mortgage and Housing Corporation Act and to make a consequential amendment to another 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 Carstairs moved, seconded by the Honourable Senator Poulin, that the Bill be placed on the Orders of the Day for a second reading later this day.
The question being put on the motion, it was adopted. A Message was brought from the House of Commons with a Bill C-71, An Act to implement certain provisions of the budget tabled in Parliament on February 16, 1999, to which they desire the concurrence of the Senate.
The Bill was read the first time.
With leave of the Senate, The Honourable Senator Carstairs moved, seconded by the Honourable Senator Moore, that the Bill be placed on the Orders of the Day for a second reading later this day.
The question being put on the motion, it was adopted. A Message was brought from the House of Commons with a Bill C-72, An Act to amend the Income Tax Act, to implement measures that are consequential on changes to the Canada-U.S. Tax Convention (1980) and to amend the Income Tax Conventions Interpretation Act, the Old Age Security Act, the War Veterans Allowance Act and certain Acts related to the Income Tax 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 Carstairs moved, seconded by the Honourable Senator Mahovlich, that the Bill be placed on the Orders of the Day for a second reading later this day.
The question being put on the motion, it was adopted.
SPEAKER'S STATEMENT
On Wednesday, April 14, during debate on the third reading motion of Bill C-40, Senator Grafstein spoke to several amendments he proposed to move. At the time, the text of these amendments was only in English. Furthermore, while explaining the reasons for these amendments, Senator Grafstein made reference to Madam Justice Louise Arbour, a Canadian judge who is currently serving as Prosecutor at the International War Crimes Tribunal in The Hague.The absence of the French text of the proposed amendments and the references to Madam Arbour gave rise to a point of order from Senator Bolduc. The Senator expressed his objection that the proposed motions in amendment were in only one language. He also questioned the propriety of soliciting advice from a judge on a matter of public policy, in this case the policy relating to extradition.
Responding immediately to Senator Bolduc's second objection, Senator Grafstein admitted to his own reservations about the action he had taken in seeking Madam Arbour's views on Bill C-40. He admitted that Senator Bolduc had raised a valid objection and agreed to withdraw his references to Madam Arbour.
Despite this, Senator Bolduc asked for a ruling from the Chair. Several Senators spoke in support of this position and Senator Prud'homme noted how the additional time could be used to prepare the amendments in both languages. Senator Grafstein subsequently confessed his own misgivings about proceeding with his amendments in one language only. He explained that he had felt compelled to bring forward these amendments for fear that Bill C-40 would be passed without having an opportunity to explain his position on the current version of the bill.
Shortly afterwards, I indicated my readiness to study the issues related to the point of order and there was agreement to adjourn debate on the bill.
The next day, Thursday, April 15, when Bill C-40 was called, I made a statement proposing that debate be allowed to proceed. I made this suggestion in view of the fact that Senator Grafstein's proposed amendments were now in both languages and because he had withdrawn all references to Madam Arbour. At the same time, I indicated that I would be making a statement on the two issues raised by Senator Bolduc's point of order following some further study. Senator Grafstein's amendments were properly moved and debate has proceeded since then.
Having had an opportunity to review the matter more closely, I am now prepared to make a statement on the questions that were raised by the point of order.
I will begin by addressing the issue of whether there is an obligation to present motions, inquiries or amendments in the Senate in both official languages. The Rules of the Senate are silent on this question. This is also true of the other place. Beauchesne's Parliamentary Rules and Forms (6th edition) citation 552(3) at page 171 notes only that in the other place the written version of motions that must be provided to the Speaker prior to presentation to the House for debate can be in either of the two official languages.
In the Senate, the presentation of motions and inquiries in one language poses no inconvenience because neither is usually debated before a requisite notice period of one or two days has lapsed. By the time these motions or inquiries are called for debate, they are invariably available in both languages having been printed in the Order and Notice Papers.
The situation is somewhat different in the case of amendments including those made to the content of bills at report stage and third reading. Such amendments are routinely moved without notice and can be placed before the Senate for immediate consideration while still in one language. In Senator Grafstein's case, a lack of time and a sense of urgency prevented him from having his amendments ready in both languages as he had intended.
Such an occurrence is not without precedent. The Senate was faced with a similar circumstance in January 1993 during debate on Bill C-91 amending the Patent Act. At that time, a long and complex amendment was moved to one of the clauses of the bill at third reading. One Senator objected on a point of order because the amendment had been presented in only one language. It was proposed, therefore, that debate on the amendment be suspended or adjourned until it was available in both languages. Although some Senators took note of the fact that the rules and authorities did not require that amendments be presented in both languages, it was generally agreed to have them in English and French prior to further debate. The Senate then decided to adjourn the debate in order to allow the preparation of the amendment in both languages.
The incident of 1993 parallels exactly what occurred on the amendments of Senator Grafstein to Bill C-40. Furthermore, it is my understanding that the practice in committees is to ensure that both language versions of any amendments to bills are available to Senators before a decision is taken. This suggests that whatever the requirements stipulated in the rules or authorities, the Senate recognizes the importance to have motions, inquiries and amendments in both languages. When this has not been done, it would appear that the Senate has been disposed to postpone any decision until the debated question, having been moved, is available in both languages. It seems to me that this is the proper way of proceeding.
As to the second issue raised in Senator Bolduc's point of order, the references to the views attributed to Madam Justice Arbour, I do not believe that there is a simple answer. Beauchesne's notes, at citation 493 at pages 150-151, the deference that is due in debate to so-called protected persons. Certain prohibitions are normally observed or applied when these protected persons are mentioned in debate. For example, all references to judges and the courts that are in the nature of a personal attack or censure have always been considered unparliamentary. In addition, Beauchesne's states that the Speaker has traditionally protected from attack, groups or individuals of high official status. As well, the Speaker has cautioned parliamentarians to exercise great care in making statements about persons who are outside the House and are unable to reply directly.
On the face of it, the precautions cited in Beauchesne's do not seem to have any immediate bearing on the case at hand. Senator Grafstein's references to Madam Arbour were certainly not critical or offensive. Indeed, they suggest that the Senator was not particularly successful in obtaining information on the bill from Madam Arbour's office. As I understand it, Madam Arbour made no substantive comment on the details of the bill. The statement attributed to her simply suggests some satisfaction that Canada has taken steps in fulfillment of a treaty obligation and little else.
Equally important in this instance is the fact that Madam Arbour was not in fact cited in connection with her position as a Justice of the Ontario Court. Instead, Madam Arbour was mentioned in her current international role as Prosecutor at the International War Crimes Tribunal, a position she secured through an authorization by Parliament for a leave of absence from her judicial office.
Senator Bolduc also explained that the references to the views of Madam Arbour were objectionable because they transgressed the boundaries normally maintained between Ministers and their public servants. It is well accepted that the domain of policy is reserved exclusively to Ministers while public servants should normally confine themselves to statements on programs and implementation. Again, in this particular case, I am uncertain whether Madam Arbour, either as a Prosecutor or even as a judge, can be looked upon as a public servant answerable to a Canadian Minister or how her comments can be construed as an unwarranted expression of opinion on public policy. I do not believe that this kind of objection is applicable to the situation that occurred April 14.
Nonetheless, I appreciate the point of view that prompted Senator Bolduc and others to speak to the issue, particularly with respect to the expressed concerns involving the judiciary. Very specific roles are assigned to the legislatures and to the courts. The independence of both is essential to the proper operation of our form of government. This independence can be undermined by Parliament commenting on judges and the courts in debate in ways that are inappropriate. While there is no doubt that parliamentarians have a right, and perhaps an obligation, to take note of the work performed by the courts, it must be done in a way that respects the integrity of the courts. How this is actually done in practice is a responsibility we all share.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Bryden, seconded by the Honourable Senator Pearson, for the third reading of Bill C-40, An Act respecting extradition, to amend the Canada Evidence Act, the Criminal Code, the Immigration Act and the Mutual Legal Assistance in Criminal Matters Act and to amend and repeal other Acts in consequence,And on the motions in amendment of the Honourable Senator Grafstein, seconded by the Honourable Senator Joyal, P.C., that the Bill be not now read a third time but that it be amended:
1. in clause 44:
(a) by replacing lines 28 and 29 on page 17 with the following:
"circumstances;
(b) the conduct in respect of which the request for extradition is made is punishable by death under the laws that apply to the extradition partner; or
(c) the request for extradition is made for"; and(b) by replacing lines 1 to 6 on page 18 with the following:
"(2) Notwithstanding paragraph (1)(b), the Minister may make a surrender order where the extradition partner requesting extradition provides assurances to the Minister that the death penalty will not be imposed, or, if imposed, will not be executed, and where the Minister is satisfied with those assurances.".
2. in Clause 2 and new Part 3:
(a) by substituting the term "general extradition agreement" for "extradition agreement" wherever it appears;
(b) by substituting the term "specific extradition agreement" for "specific agreement" wherever it appears;
(c) in clause 2, on page 2
(i) by adding after line 5 the following:
""extradition" means the delivering up of a person to a state under either a general extradition agreement or a specific extradition agreement.";
(ii) by deleting lines 6 to 10;
(iii) by replacing line 11 with the following:
" "extradition partner" means a State";
(iv) by adding after line 15 the following:
" "general extradition agreement" means an agreement that is in force, to which Canada is a party and that contains a provision respecting the extradition of persons, other than a specific extradition agreement.
"general surrender agreement" means an agreement in force to which Canada is a party and that contains a provision respecting surrender to an international tribunal, other than a specific extradition agreement.";
(v) by replacing lines 20 and 21 with the following:
" "specific extradition agreement" means an agreement referred to in section 10 that is in force.
"specific surrender agreement" means an agreement referred to in section 10, as modified by section 77, that is in force.";
(vi) by replacing lines 29 to 31 with the following:
"jurisdiction of a State other than Canada; or
(d) a territory.
"surrender partner" means an international tribunal whose name appears in the schedule.
"surrender to an international tribunal" means the delivering up of a person to an international tribunal whose name appears in the schedule."(d) on page 32, by adding after line 6 the following:
"PART 3
SURRENDER TO AN INTERNATIONAL TRIBUNAL
77. Sections 4 to 43, 49 to 58 and 60 to 76 apply to this Part, with the exception of paragraph 12(a), subsection 15(2), paragraph 15(3)(c), subsections 29(5), 40(3), 40(4) and paragraph 54(b),
(a) as if the word "extradition" read "surrender to an international tribunal";
(b) as if the term "general extradition agreement" read "general surrender agreement";
(c) as if the term "extradition partner" read "surrender partner";
(d) as if the term "specific extradition agreement" read "specific surrender agreement";
(e) as if the term "State or entity" read "international tribunal";
(f) with the modifications provided for in sections 78 to 82; and
(g) with such other modifications as the circumstances require.
78. For the purposes of this Part, section 9 is deemed to read:"9. (1) The names of international tribunals that appear in the schedule are designated as surrender partners.
(2) The Minister of Foreign Affairs, with the agreement of the Minister, may, by order, add to or delete from the schedule the names of international tribunals."
79. For the purposes of this Part, subsection 15(1) is deemed to read:"15. (1) The Minister may, after receiving a request for a surrender to an international tribunal, issue an authority to proceed that authorizes the Attorney General to seek, on behalf of the surrender partner, an order of a court for the committal of the person under section 29."
80. For the purposes of this Part, subsections 29(1) and (2) are deemed to read:"29. (1) A judge shall order the committal of the person into custody to await surrender if
(a) in the case of a person sought for prosecution, the judge is satisfied that the person is the person sought by the surrender partner; and
(b) in the case of a person sought for the imposition or enforcement of a sentence, the judge is satisfied that the person is the person who was convicted.
(2) The order of committal must contain (a) the name of the person; (b) the place at which the person is to be held in custody; and (c) the name of the surrender partner."
81. For the purposes of this Part, the portion of paragraph 53(a) preceding subparagraph (i) is deemed to read:
"(a) allow the appeal, if it is of the opinion"
82. For the purposes of this Part, paragraph 58(b) is deemed to read:
"(b) describe the offence in respect of which the surrender is requested;" and
(e) by renumbering Part 3 as Part V and sections 77 to 130 as sections 83 to 136; and
(f) by renumbering all cross-references accordingly."And on the motion in amendment of the Honourable Senator Kinsella, seconded by the Honourable Senator DeWare, that the Bill be not now read the third time, but that it be referred back to the Standing Senate Committee on Legal and Constitutional Affairs, together with the proposed amendments, for further consideration.
After debate, The question being put on the motion in amendment, With leave of the Senate, a recorded division was deferred until 3:00 p.m. tomorrow. Second reading of Bill C-66, An Act to amend the National Housing Act and the Canada Mortgage and Housing Corporation Act and to make a consequential amendment to another Act.
The Honourable Senator Gill moved, seconded by the Honourable Senator Wilson, that the Bill be read the second time.
After debate, The question being put on the motion, it was adopted.
The Bill was then read the second time.
The Honourable Senator Gill moved, seconded by the Honourable Senator Wilson, that the Bill be referred to the Standing Senate Committee on Social Affairs, Science and Technology.
After debate, The question being put on the motion, it was adopted.
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Ordered, That Motion No. 140 standing in the name of the Honourable Senator Comeau be brought forward. The Honourable Senator Comeau moved, seconded by the Honourable Senator Grimard:That the Standing Senate Committee on Fisheries have power to sit at 5:30 p.m. on Tuesday, May 11, 1999, 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.
Bills
Second reading of Bill C-71, An Act to implement certain provisions of the budget tabled in Parliament on February 16, 1999.The Honourable Senator Moore moved, seconded by the Honourable Senator Maheu, that the Bill be read the second time.
After debate, The Honourable Senator Kinsella for the Honourable Senator Bolduc moved, seconded by the Honourable Senator Keon, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Second reading of Bill C-72, An Act to amend the Income Tax Act, to implement measures that are consequential on changes to the Canada-U.S. Tax Convention (1980) and to amend the Income Tax Conventions Interpretation Act, the Old Age Security Act, the War Veterans Allowance Act and certain Acts related to the Income Tax Act.
The Honourable Senator Callbeck moved, seconded by the Honourable Senator Cook, that the Bill be read the second time.
After debate, The Honourable Senator Kinsella for the Honourable Senator Tkachuk moved, seconded by the Honourable Senator DeWare, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
OTHER BUSINESS
Senate Public Bills
Orders No. 1 to 6 were called and postponed until the next sitting.Reports of Committees
Order No. 1 was called and postponed until the next sitting. Consideration of the Thirty-third Report of the Standing Committee on Internal Economy, Budgets and Administration (Senators Travel Policy) presented in the Senate on May 6, 1999.The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Maloney, that the Report be adopted.
The question being put on the motion, it was adopted. Consideration of the Nineteenth Report of the Standing Senate Committee on Social Affairs, Science and Technology (budget-study on social cohesion) presented in the Senate on May 6, 1999.
The Honourable Senator Murray, P.C., moved, seconded by the Honourable Senator Kinsella, that the Report be adopted.
The question being put on the motion, it was adopted. Consideration of the Tenth Report of the Standing Committee on Privileges, Standing Rules and Orders (suspension of Rule 106) presented in the Senate on May 6, 1999.
The Honourable Senator Maheu moved, seconded by the Honourable Senator Ferretti Barth, that the Report be adopted.
After debate, The question being put on the motion, it was adopted. Orders No. 5 to 9 were called and postponed until the next sitting.
Other
Orders No. 77, 73, 61 (inquiries), 125 (motion) and 46 (inquiry) were called and postponed until the next sitting. Resuming debate on the inquiry of the Honourable Senator Losier-Cool, calling the attention of the Senate to population, education and health, particularly for young girls and women in many developing countries.After debate, The Honourable Senator Corbin for the Honourable Senator Losier-Cool moved, seconded by the Honourable Senator Ferretti Barth, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted. Orders No. 49, 44 (inquiries), 1, 118, 45 (motions), 63 (inquiry), 127 (motion), 47, 65, 69, 58, 59, 67, 50 (inquiries), 114 (motion) and 34 (inquiry) were called and postponed until the next sitting. Resuming debate on the inquiry of the Honourable Senator Joyal, P.C., calling the attention of the Senate to International Women's Week, and to the participation of women in the legislative institutions of Canada, at the federal and provincial level, and particularly in the Senate of Canada.
After debate, The Honourable Senator Carstairs moved, seconded by the Honourable Senator Adams, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
INQUIRIES
The Honourable Senator Carstairs, in recognition of National Palliative Care Week, called the attention of the Senate to the status of palliative care in Canada.After debate, The Honourable Senator Carstairs for the Honourable Senator Wilson moved, seconded by the Honourable Senator Callbeck, that further debate on the inquiry be adjourned until the next sitting.
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 VIA Rail Canada Inc., together with the Auditor General's report, for the year 1998, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 150(1). -Sessional Paper No. 1/36-1149.Report of the Chief Electoral Officer for the fiscal year ended March 31, 1999, pursuant to the Privacy Act, R.S.C. 1985, c. P-21, sbs. 72(2).-Sessional Paper No. 1/36-1150.
Report of the National Energy Board for the year ended December 31, 1998, pursuant to the National Energy Board Act, R.S.C. 1985, c. N-7, s. 133.-Sessional Paper No. 1/36-1151.
Report to Parliament on the Administration and Enforcement of the Energy Efficiency Act for the fiscal year ended March 31, 1997, pursuant to the Energy Efficiency Act, S.C. 1992, c. 36, s. 36.-Sessional Paper No. 1/36-1152.
Response of the government to the Second Report of the Special Joint Committee on Child Custody and Access, "For the Sake of the Children" (Sessional Paper No. 1/36-952), presented to the Senate on Wednesday, December 9, 1998.-Sessional Paper No. 1/36-1153.
Report on the Administration of the Canadian Environmental Protection Act for the fiscal year ended March 31, 1998, pursuant to the Canadian Environment Protection Act, R.S.C. 1985, c. 16 (4th Supp.), s. 138.-Sessional Paper No. 1/36-1154.
ADJOURNMENT
The Honourable Senator Carstairs moved, seconded by the Honourable Senator Cook: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 Foreign AffairsThe name of the Honourable Senator Forrestall substituted for that of the Honourable Senator Carney (April 22).
Standing Senate Committee on Transport and Communications
The names of the Honourable Senators Perrault, Fitzpatrick and Robichaud (Saint-Louis-de-Kent) substituted for those of the Honourable Senators Fitzpatrick, Perrault and Maheu (May 6).
The names of the Honourable Senators Maheu and Kinsella substituted for those of the Honourable Senators Robichaud (Saint-Louis-de-Kent) and Johnson (May 10).
The name of the Honourable Senator Grafstein substituted for that of the Honourable Senator Fitzpatrick (May 11).
Standing Committee on Privileges, Standing Rules and Orders
The names of the Honourable Senators Kelly, Cools and Sparrow substituted for those of the Honourable Senators Andreychuk, Bryden and Lewis (May 6).
Standing Senate Committee on Aboriginal Peoples
The name of the Honourable Senator Ghitter substituted for that of the Honourable Senator Cochrane (May 7).
Standing Senate Committee on Agriculture and Forestry
The name of the Honourable Senator Gustafson substituted for that of the Honourable Senator Kinsella (May 10).
Standing Senate Committee on Social Affairs, Science and Technology
The name of the Honourable Senator Ruck substituted for that of the Honourable Senator Poy (May 10).