Journals of the Senate
49 Elizabeth II, A.D. 2000, Canada
Journals of the Senate
2nd Session, 36th Parliament
Issue 53
Tuesday, May 9, 2000
2:00 p.m.
The Honourable Gildas L. Molgat, Speaker
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Atkins, Austin, Bacon, Banks, Beaudoin, Berntson, Bolduc, Boudreau, Bryden, Buchanan, Callbeck, Carstairs, Chalifoux, Christensen, Cochrane, Cogger, Cohen, Comeau, Cook, Cools, Corbin, De Bané, DeWare, Di Nino, Doody, Eyton, Fairbairn, Finestone, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Grimard, Hays, Hervieux-Payette, Joyal, Kelleher, Kelly, Kenny, Keon, Kinsella, Kirby, Kolber, Kroft, LeBreton, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Meighen, Mercier, Milne, Molgat, Moore, Murray, Nolin, Oliver, Pearson, Pépin, Perry (Poirier), Pitfield, Poulin (Charette), Poy, Prud'homme, Rivest, Roberge, Robichaud, (L'Acadie-Acadia), Roche, Rompkey, Rossiter, Ruck, Sibbeston, Simard, Sparrow, Spivak, Stollery, Stratton, Taylor, Tkachuk, Watt, Wiebe, Wilson
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, *Angus, Atkins, Austin, Bacon, Banks, Beaudoin, Berntson, Bolduc, Boudreau, Bryden, Buchanan, Callbeck, Carstairs, Chalifoux, Christensen, Cochrane, Cogger, Cohen, Comeau, Cook, Cools, Corbin, De Bané, DeWare, Di Nino, Doody, Eyton, Fairbairn, Finestone, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Grimard, Hays, Hervieux-Payette, Joyal, Kelleher, Kelly, Kenny, Keon, Kinsella, Kirby, Kolber, Kroft, LeBreton, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Meighen, Mercier, Milne, Molgat, Moore, Murray, Nolin, Oliver, Pearson, Pépin, Perry (Poirier), Pitfield, Poulin (Charette), Poy, Prud'homme, Rivest, Roberge, Robichaud, (L'Acadie-Acadia), Roche, Rompkey, Rossiter, Ruck, Sibbeston, Simard, Sparrow, Spivak, Stollery, Stratton, Taylor, Tkachuk, Watt, Wiebe, Wilson
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.DAILY ROUTINE OF BUSINESS
Presentation of Reports from Standing or Special Committees
The Honourable Senator Bacon presented the following:TUESDAY, May 9, 2000
The Standing Senate Committee on Transport and Communications has the honour to present its
FOURTH REPORT
Your Committee, to which was referred Bill S-17, An Act respecting marine liability, and to validate certain by-laws and regulations, has, in obedience to the Order of Reference of Tuesday, April 4, 2000, examined the said Bill and now reports the same with the following amendments:1. Page 10, Clause 29: Replace lines 4 to 15 with the following:
(a) 2,000,000 units of account; and"loss of life or personal injury to persons carried on a ship otherwise than under a contract of passenger carriage is the greater of
(b) 175,000 units of account multiplied by
(i) the number of passengers that the ship is authorized to carry according to its certificate under Part V of the Canada Shipping Act; or
(ii) if no certificate is required under that Part, the number of persons on board the ship.
(3) Subsection (2) does not apply in respect of
(a) the master of a ship, a member of a ship's crew or any other person employed or engaged in any capacity on board a ship on the business of the ship; or
(b) a person carried on board a ship other than a ship operated for a commercial or public purpose".
2. Page 14, Clause 37: Replace lines 31 to 39 with the following:
(b) the carriage by water, otherwise than under a contract of carriage, of persons or of persons and their luggage, excluding"the same or another place in Canada, either directly or by way of a place outside Canada; and
(i) the master of a ship, a member of a ship's crew or any other person employed or engaged in any capacity on board a ship on the business of the ship, and
(ii) a person carried on board a ship other than a ship operated for a commercial or public purpose".
Respectfully submitted,
LISE BACON
Chair
The Honourable Senator Bacon moved, seconded by the Honourable Senator Joyal, P.C., 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 Government Bills
A Message was brought from the House of Commons with a Bill C-22, An Act to facilitate combatting the laundering of proceeds of crime, to establish the Financial Transactions and Reports Analysis Centre of Canada and to amend and repeal certain Acts in consequence, to which they desire the concurrence of the Senate.The Bill was read the first time.
The Honourable Senator Hays moved, seconded by the Honourable Senator Moore, that the Bill be placed on the Orders of the Day for a second reading on Thursday next, May 11, 2000.
The question being put on the motion, it was adopted.
First Reading of Commons Public Bills
A Message was brought from the House of Commons with a Bill C-445, An Act to change the name of the electoral district of Rimouski-Mitis, to which they desire the concurrence of the Senate.The Bill was read the first time.
The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Finestone, P.C., that the Bill be placed on the Orders of the Day for a second reading on Thursday next, May 11, 2000.
The question being put on the motion, it was adopted.
Tabling of Reports from Inter-Parliamentary Delegations
The Honourable Senator Beaudoin tabled the following:Report of the Canadian delegation of the Canada-France Inter-Parliamentary Association respecting its participation at the Meeting of the Standing Committee, held in Paris from March 6 to 10, 2000.-Sessional Paper No. 2/36-362.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Boudreau, P.C., seconded by the Honourable Senator Hays, for the second reading of Bill C-20, An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.After debate, The Honourable Senator Joyal, P.C., moved, seconded by the Honourable Senator Gill, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted. Resuming debate on the motion of the Honourable Senator Pépin, seconded by the Honourable Senator Maheu, for the second reading of Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations.
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 Pépin moved, seconded by the Honourable Senator Carstairs, 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. Resuming debate on the motion of the Honourable Senator Hays, seconded by the Honourable Senator Moore, for the third reading of Bill C-2, An Act respecting the election of members to the House of Commons, repealing other Acts relating to elections and making consequential amendments to other Acts,
And on the motion in amendment of the Honourable Senator Oliver, seconded by the Honourable Senator Murray, P.C., that the Bill be not now read a third time but that it be amended, in Clause 350, on page 144, by replacing line 6 with the following:
"(2) Not more than $4,000 of the total".After debate, The question being put on the motion in amendment, With leave of the Senate, a recorded division was deferred until 3:30 p.m. tomorrow. Order No. 2 was called and postponed until the next sitting. Third reading of Bill C-10, An Act to amend the Municipal Grants Act.
The Honourable Senator Moore moved, seconded by the Honourable Senator Wiebe, that the Bill be read the third time.
After debate, The question being put on the motion, it was adopted.
The Bill was then read the third time and passed.
Ordered, That a Message be sent to the House of Commons to acquaint that House that the Senate have passed this Bill, without amendment.
Motions
The order was called concerning the motion of the Honourable Senator Hays, seconded by the Honourable Senator Robichaud, P.C. (L'Acadie-Acadia):That a special committee of the Senate be appointed to consider, after second reading, the Bill C-20, An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference;
That, notwithstanding Rule 85(1)(b), the committee be comprised of fifteen members, including:
Senator Joan Fraser
Senator Céline Hervieux-Payette, P.C.
Senator Colin Kenny
Senator Marie P. Poulin (Charette)
Senator George Furey
Senator Richard Kroft
Senator Thelma Chalifoux
Senator Lorna Milne
Senator Aurélien Gill;That four members constitute a quorum;
That the committee have power to send for persons, papers and records, to examine witnesses, and to print such papers and evidence from day to day as may be ordered by the committee;
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 have power to retain the services of professional, clerical, stenographic and such other staff as deemed advisable by the committee.
SPEAKER'S RULING
Last Thursday, May 4, Senator Lynch-Staunton, Leader of the Opposition, rose on a point of order when the motion to create a special committee to study Bill C-20, the Clarity Bill, was moved by Senator Hays. The Senator had provided notice of the motion in properly drafted form earlier the same week, on Tuesday. In the view of the Leader of the Opposition, the motion is out of order for several reasons. Senator Lynch-Staunton argued that the motion anticipates a decision of the Senate with respect to Bill C-20 and, accordingly, it is not in order to debate the motion prior to the second reading of the bill. To support his position, he cited several procedural authorities including Erskine May, Beauchesne's and the recently published House of Commons Procedure and Practice with respect to the rule of anticipation.During the course of the discussion on the point of order, Senator Kinsella spoke in support of the position taken by the Leader of the Opposition. In his assessment, there is a problem with appointing a special committee when the Rules of the Senate provide for a standing committee whose mandate, he contended, includes such matters as those proposed in Bill C-20. A similar argument was made by Senator Cools who also suggested that there were some errors in the drafting of the motion. Senator Murray also intervened to question how the motion of Senator Hays could be in order especially in view of the ruling of Tuesday, May 2, 2000 on the motions of instruction.
At the conclusion of discussion last Thursday, the Speaker pro tempore agreed to take the matter under advisement. Since that time, the Speaker pro tempore and I have had an opportunity to review the matter in some detail. We have studied the various points that were raised during the discussion and have reviewed the parliamentary authorities that were cited. Based on this examination, I am now prepared to rule on the procedural acceptability of the motion proposed by the Deputy Leader of the Government to create a special committee to study Bill C-20 after second reading.
As I began my assessment of the point of order, it seemed to me that there was to be an interrelationship with respect to the some of the arguments that were raised against the motion. Nonetheless, I will try to deal with each of them separately.
The first point that was made by the Leader of the Opposition has to do with the objection that the motion to create the special committee anticipates an affirmative decision on the second reading motion on Bill C-20. While there is some sense to this position, I do not think that it violates customary parliamentary practice. Nor does it conflict with the Rules of the Senate as I understand them. It is true that the motion can be said to anticipate a favourable outcome with respect to the vote on second reading of Bill C-20, but it does not have any determinative effect on the outcome of the second reading vote. The two motions are separate and distinct questions from a procedural point of view. Even if the motion to create the committee is adopted before the second reading of Bill C-20, it does not preclude the possibility that the Senate might vote against second reading of the bill. If this were to happen, the motion creating the committee would simply become a nullity, as was explained by the Deputy Leader of the Government.
Senator Lynch-Staunton then noted that committees are limited and bound by their orders of reference. The consequence of this principle with respect to this particular case, in his view, is that it would not be proper to consider the motion creating the special committee until after second reading. Only then would it be certain that the Senate has approved the principle of Bill C-20 thus establishing the parameters of the order of reference. There is, however, a difficulty with respect to this assessment; one that also touches the intervention of Senator Murray who appeared to find a resemblance between a motion to create a special committee with a motion of instruction, at least to the extent that neither can be moved prior to the second reading of the bill to which it pertains.
As everyone who spoke on this point last Thursday seemed to acknowledge, a motion to create a special committee is debatable. In fact, this is based on Rule 62(1)(h) which explains that a motion for the appointment of a standing or special committee is debatable. Senator Hays went further to point out that under the terms of Rule 93, the Senate "may appoint such special committees as it deems advisable and may set the terms of reference and indicate the powers to be exercised and the duties to be undertaken by any such committee."
However, the motion to refer a bill to one committee or another following second reading is neither debatable nor amendable according to Rules 62(1)(i) and 62(2). This is because a motion of reference to a committee is what might be classed a procedural motion. It follows automatically as a consequence from the adoption of the second reading motion of the bill.
The only opportunity, therefore, for a bill to be referred to a special committee or a legislative committee, which is also permitted under our Rules, is to create that committee by a separate debatable motion. Moreover, as I have attempted to explain, that motion must be adopted prior to the decision on second reading of the relevant bill. Otherwise, under our current Rules, it will not be possible to send the bill to that committee because it does not exist. My understanding of this procedure seems to be confirmed by several precedents.
There have been three occasions in the last twelve years when the Senate decided to establish a special committee to deal with legislation. Two of the cases predate the rule changes of 1991, the third does not. The first occurred in July 1988 and related to Bill C-72, on official languages. The second happened the following year, in November 1989, and related to Bill C-21 dealing with unemployment insurance. Of these two cases, the first motion was adopted after second reading, but the second motion was adopted before second reading. The third and most recent precedent dates to 1995 and involved Bill C-110 on constitutional amendments. Notice of all three motions was given before the motion for second reading of the relevant bill was adopted. In fact, all of them were cast in the same language as the motion relating to the present case. They all proposed to establish a special committee to consider a specific bill "after second reading". As it happened, only the 1995 precedent gave rise to any debate, though all of them were moved as debatable motions.
In addition to these Senate precedents, there is another interesting example that occurred in the other place in March 1993. On that occasion, a motion was moved to establish a special joint committee to consider Bill C-116 dealing with conflict of interests for public office holders. Though the practices of the other place are not identical to our own, like the Senate, there is no opportunity there to debate the question of the committee to which the bill will be referred once second reading debate has concluded. Consequently, the motion creating the special joint committee had to be adopted before the question for second reading was voted.
Taking a somewhat different approach than that maintained by the Leader of the Opposition, Senator Kinsella argued that the Rules of the Senate provide mandates for all of its standing committees including Legal and Constitutional Affairs. Bill C-20, he maintained, clearly falls within the mandate of this standing committee and, therefore, the bill should be referred to it rather than to any special committee. Whatever the merits of this point of view, it does not take into account another rule of the Senate. Rule 86(2) provides that "any bill message, petition, inquiry, paper or other matter may be referred, as the Senate may decide, to any committee." This rule allows the Senate to disregard, as it deems appropriate, the mandates of the standing committees. Thus there would appear to be no obstacle based on the rules for a motion to create a special committee.
Finally, there is the third argument put forward by Senator Lynch-Staunton which resembles in part his point regarding anticipation. As was mentioned last Thursday, the rule of anticipation is not an explicit rule of the Senate or of the other place, though it is a principle of practice. Citation 512(1) and (2) in the sixth edition of Beauchesne's at page 154 notes that the rule of anticipation is dependent on the same principle as the rule on the "same question". The rule of anticipation provides that "a matter must not be anticipated if it is contained in a more effective form of proceeding than the proceeding by which it is sought to be anticipated." In a descending scale of possibilities, a bill trumps a motion which, in turn, has priority over amendments. Senator Lynch-Staunton's position was that the bill has priority over the motion to create the special committee and therefore must be given precedence.
I would be prepared to consider accepting this proposition if I could be convinced that the two questions are the same, or even substantially similar, but they are not. The motion for the second reading of Bill C-20 involves a decision on the principle of the bill and whether it warrants further study by the Senate. The motion to create a special committee to examine Bill C-20 does not directly address the principle or content of the bill, but rather seeks to provide an alternative to the possibility of referring the bill to another kind of committee. These two motions are not the same in substance and the rule of anticipation does not apply to their consideration.
For these reasons, I rule that the motion moved by Senator Hays is in order and debate on it can proceed. The Senate proceeded to the debate on the motion of the Honourable Senator Hays, seconded by the Honourable Senator Robichaud, P.C. (L'Acadie-Acadia).
That a special committee of the Senate be appointed to consider, after second reading, the Bill C-20, An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference;
That, notwithstanding Rule 85(1)(b), the committee be comprised of fifteen members, including:
Senator Joan Fraser
Senator Céline Hervieux-Payette, P.C.
Senator Colin Kenny
Senator Marie P. Poulin (Charette)
Senator George Furey
Senator Richard Kroft
Senator Thelma Chalifoux
Senator Lorna Milne
Senator Aurélien Gill;That four members constitute a quorum;
That the committee have power to send for persons, papers and records, to examine witnesses, and to print such papers and evidence from day to day as may be ordered by the committee;
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 have power to retain the services of professional, clerical, stenographic and such other staff as deemed advisable by the committee.
After debate, The Honourable Senator Cools moved, seconded by the Honourable Senator Prud'homme, P.C., 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 4 were called and postponed until the next sitting. Second reading of Bill S-20, An Act to enable and assist the Canadian tobacco industry in attaining its objective of preventing the use of tobacco products by young persons in Canada.The Honourable Senator Kenny moved, seconded by the Honourable Senator Nolin, 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 Kenny moved, seconded by the Honourable Senator Nolin, that the Bill be referred to the Standing Senate Committee on Energy, the Environment and Natural Resources.
The question being put on the motion, it was adopted. Order No. 6 was called and postponed until the next sitting. Resuming debate on the motion of the Honourable Senator Grimard, seconded by the Honourable Senator Atkins, for the second reading of Bill S-16, An Act respecting Sir John A. Macdonald Day.
After debate, The Honourable Senator Hays for the Honourable Senator Grafstein moved, seconded by the Honourable Senator Boudreau, P.C., that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Commons Public Bills
Order No. 1 was called and postponed until the next sitting. Second reading of Bill C-473, An Act to change the names of certain electoral districts.The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Austin, P.C., that the Bill be read the second time.
After debate, The Honourable Senator Kinsella for the Honourable Senator Nolin 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.
Reports of Committees
Order No. 1 was called and postponed until the next sitting. Consideration of the Fourth Report of the Standing Committee on Privileges, Standing Rules and Orders (questions of privilege of Honourable Senators Andreychuk and Bacon) presented in the Senate on April 13, 2000.The Honourable Senator Austin, P.C., moved, seconded by the Honourable Senator Bacon, that the Report be adopted.
After debate, The Honourable Senator Cools moved, seconded by the Honourable Senator Milne, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Orders No. 3 to 6 were called and postponed until the next sitting.
Other
Resuming debate on the inquiry of the Honourable Senator Forrestall calling the attention of the Senate to the need for Canada to join the United States in National Missile Defense.After debate, Further debate on the inquiry was adjourned until the next sitting in the name of the Honourable Senator Taylor. Orders No. 14, 17 (inquiries), 7 (motion), 6, 19, 12, 9 and 18 (inquiries) were called and postponed until the next sitting. Resuming debate on the inquiry of the Honourable Senator Forrestall calling the attention of the Senate to the future of Canadian Defence Policy.
Debate concluded. Order No. 13 (inquiry) was called and pursuant to Rule 27(3) was dropped from the Order Paper.
INQUIRIES
The Honourable Senator De Bané, P.C., called the attention of the Senate to the visit of the Prime Minister of Canada to the Middle East and the Persian Gulf from April 7 to 20, 2000.After debate, The Honourable Senator Prud'homme, P.C., moved, seconded by the Honourable Senator Cools, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
MOTIONS
The Honourable Senator Stollery moved, seconded by the Honourable Senator Pearson:That the Standing Senate Committee on Foreign Affairs be authorized to examine the Performance Report of the Department of Foreign Affairs and International Trade for the period ending March 31, 1999, tabled in the Senate on November 2, 1999 (Sessional Paper No. 2/36-71); and
That the Committee report no later than March 31, 2001.
After debate, In amendment, the Honourable Senator Cools moved, seconded by the Honourable Senator Rompkey, P.C., that the motion be amended by striking out the words "March 31, 2001" and substituting therefor the words "August 31, 2000".
The question being put on the motion in amendment, it was adopted.
The question then being put on the motion, as amended, it was adopted. The Honourable Senator Stollery moved, seconded by the Honourable Senator Mercier.
That the Standing Senate Committee on Foreign Affairs be authorized to examine and report on emerging political, social, economic and security developments in Russia and Ukraine, taking into account Canada's policy and interests in the region, and other related matters; and
That the Committee submit its final report no later than June 15, 2001, and that the Committee retain all powers necessary to publicize the findings of the Committee contained in the final report until June 29, 2001.
After debate, 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 Hays moved, seconded by the Honourable Senator Finestone, P.C.:
That when the Senate adjourns today, it do stand adjourned until tomorrow, Wednesday, May 10, 2000, at 1:30 p.m.;
That, following the deferred division on the amendment to Bill C-2, the Speaker shall interrupt the proceedings to adjourn the Senate;
That should a further division be deferred until 5:30 p.m. tomorrow, the Speaker shall suspend the sitting until 5:30 p.m. for the taking of the deferred division; and
That all matters on the Orders of the Day and on the Notice Paper, which have not been reached, shall retain their position.
The question being put on the motion, it was adopted.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Document entitled "Implementation of the Inuvialuit Final Agreement: Annual Review 1997-98".-Sessional Paper No. 2/36-358.Report of the Canada Mortgage and Housing Corporation, together with the Auditor General's report, for the year ended December 31, 1999, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 150(1).-Sessional Paper No. 2/36-359.
Reports of the Canada Ports Authorities required by the Access to Information Act and the Privacy Act for the period ended December 31, 1999, pursuant to the Access to Information Act, R.S.C. 1985, c. A-1, sbs. 72(2) and the Privacy Act, R.S.C. 1985, c. P-21, sbs. 72(2).-Sessional Paper No. 2/36-360.
Report of VIA Rail Canada Inc., together with the Auditor General's report, for the year 1999, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 150(1). -Sessional Paper No. 2/36-361.
ADJOURNMENT
The Honourable Senator Hays moved, seconded by the Honourable Senator Finestone, 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 Committee on Privileges, Standing Rules and OrdersThe name of the Honourable Senator Andreychuk substituted for that of the Honourable Senator Beaudoin (May 8).
Standing Senate Committee on Social Affairs, Science and Technology
The names of the Honourable Senators Pépin and Gill substituted for those of the Honourable Senators Milne and Corbin (May 8).
Standing Senate Committee on National Finance
The name of the Honourable Senator Finnerty substituted for that of the Honourable Senator Christensen (May 8).
Standing Senate Committee on Legal and Constitutional Affairs
The name of the Honourable Senator Pépin substituted for that of the Honourable Senator Poy (May 9).
Standing Senate Committee on Banking, Trade and Commerce
The name of the Honourable Senator Kenny removed from the membership (May 9).