Journals of the Senate
51 Elizabeth II, A.D. 2002, Canada
Journals of the Senate
2nd Session, 37th Parliament
Issue 25
Wednesday, December 4, 2002
1:30 p.m.
The Honourable Daniel Hays, Speaker
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Atkins, Bacon, Baker, Banks, Beaudoin, Biron, Bolduc, Bryden, Buchanan, Callbeck, Carstairs, Christensen, Cochrane, Comeau, Cook, Cools, Corbin, Day, De Bané, Doody, Fairbairn, Ferretti Barth, Finnerty, Forrestall, Fraser, Furey, Gauthier, Gill, Graham, Gustafson, Hays, Hervieux-Payette, Hubley, Jaffer, Joyal, Kelleher, Kenny, Keon, Kinsella, Kolber, Kroft, Lapointe, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Meighen, Milne, Morin, Murray, Nolin, Oliver, Pépin, Phalen, Poy, Prud'homme, Rivest, Robichaud, Rompkey, Rossiter, St. Germain, Setlakwe, Sibbeston, Smith, Sparrow, Spivak, Stollery, Stratton, Tkachuk, Watt, Wiebe
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, Atkins, *Austin, Bacon, Baker, Banks, Beaudoin, Biron, Bolduc, Bryden, Buchanan, Callbeck, Carstairs, Christensen, Cochrane, Comeau, Cook, Cools, Corbin, Day, De Bané, Doody, Fairbairn, Ferretti Barth, Finnerty, Forrestall, Fraser, Furey, Gauthier, Gill, *Grafstein, Graham, Gustafson, Hays, Hervieux-Payette, Hubley, Jaffer, Joyal, Kelleher, Kenny, Keon, Kinsella, *Kirby, Kolber, Kroft, Lapointe, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Meighen, Milne, Morin, Murray, Nolin, Oliver, *Pearson, Pépin, Phalen, Poy, Prud'homme, Rivest, Robichaud, Rompkey, Rossiter, St. Germain, Setlakwe, Sibbeston, Smith, Sparrow, Spivak, Stollery, Stratton, Tkachuk, Watt, Wiebe
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Presentation of Reports from Standing or Special Committees
The Honourable Senator Milne presented the following:
WEDNESDAY, December 4, 2002
The Standing Committee on Rules, Procedures and the Rights of Parliament has the honour to present its
SIXTH REPORT
Pursuant to its order of reference from the Senate dated November 5, 2002, your Committee is pleased to report as follows:
Your Committee recommends that Rule 86(1)(o) of the Senate be amended to read:
"The Senate Committee on Fisheries and Oceans, composed of twelve members, four of whom shall constitute a quorum, to which shall be referred, on order of the Senate, bills, messages, petitions, inquiries, papers and other matters relating to fisheries and oceans generally.''
Respectfully submitted,
LORNA MILNE
Chair
The Honourable Senator Milne moved, seconded by the Honourable Senator Rompkey, 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.
The Honourable Senator Murray, P.C., Chair of the Standing Senate Committee on National Finance, presented its Second Report (Supplementary Estimates (A) 2002-03).
(The Report is printed as Appendix "A'')
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.
The Honourable Senator Spivak for the Honourable Senator Banks, Chair of the Standing Senate Committee on Energy, the Environment and Natural Resources, presented its Second Report (Bill C-14, An Act providing for controls on the export, import or transit across Canada of rough diamonds and for a certification scheme for the export of rough diamonds in order to meet Canada's obligations under the Kimberley Process) without amendment.
The Honourable Senator Spivak moved, seconded by the Honourable Senator Rossiter, 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 Spivak presented the following:
WEDNESDAY, December 4, 2002
The Standing Senate Committee on Energy, the Environment and Natural Resources has the honour to present its
THIRD REPORT
Your Committee, to which was referred Bill C-5, An Act respecting the protection of wildlife species at risk in Canada, has, in obedience to the Order of Reference of Tuesday, October 22, 2002, examined the said Bill and now reports the same without amendment, but with observations which are appended to this report.
Respectfully submitted,
MIRA SPIVAK
Deputy Chair
(The Appendix to the Report is printed as Appendix "B'')
The Honourable Senator Spivak moved, seconded by the Honourable Senator Rossiter, 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.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Mahovlich, seconded by the Honourable Senator Poy, for the third reading of Bill C-12, An Act to promote physical activity and sport,
And on the motion in amendment of the Honourable Senator Murray, P.C., seconded by the Honourable Senator Oliver, that the Bill be not now read a third time but that it be amended,
(a) in clause 32, on page 13, by adding after line 27 the following:
"(4) The Minister shall cause a copy of the corporate plan to be tabled in each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives the plan.''; and
(b) in clause 33, on page 14, by adding after line 11 the following:
"(5) The Minister shall cause a copy of the annual report to be tabled in each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives the report.''.
And on the motion in amendment of the Honourable Senator Kinsella, seconded by the Honourable Senator Atkins, that the Bill be not now read a third time but that it be amended,
(a) on page 13, by adding after line 10, the following:
"32. The Centre is deemed to be a government institution as that term is defined in section 3 of the Access to Information Act and section 3 of the Privacy Act for the purposes of those Acts.'';
(b) on page 15,
(i) by adding before the heading "Department of Canadian Heritage'' before line 17, the following:
"Access to Information Act
37. Schedule I to the Access to Information Act is amended by adding the following in alphabetical order under the heading "Other Government Institutions'':
Sport Dispute Resolution Centre of Canada
Centre de règlement des différends sportifs du Canada'',
(ii) by adding after line 21, the following:
"Privacy Act
39. Schedule I to the Privacy Act is amended by adding the following in alphabetical order under the heading "Other Government Institutions'':
Sport Dispute Resolution Centre of Canada
Centre de règlement des différends sportifs du Canada'' ; and
(c) by renumbering clauses 32 to 40 and any cross-references thereto accordingly.
And on the motion in amendment of the Honourable Senator Roche, 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 35,
(a) on page 14, by deleting the heading before line 23 and lines 23 to 46;
(b) on page 15, by deleting lines 1 to 7; and
(c) by renumbering clauses 36 to 40 as clauses 35 to 39 and any cross-references thereto accordingly.
And on the motion in amendment of the Honourable Senator Gauthier, seconded by the Honourable Senator LaPierre, that the Bill be not now read a third time but that it be amended in the Preamble, on page 1, by replacing lines 5 to 8 with the following:
"social cohesion, linguistic duality, economic activity, cultural diversity and quality of life;''.
And on the motion in amendment of the Honourable Senator Bolduc, seconded by the Honourable Senator Nolin, that the Bill be not now read a third time but that it be amended, in clause 28, on page 10, by replacing lines 34 to 38 with the following:
"Auditor General of Canada
28. (1) The accounts and financial transactions of the Centre are subject to examination and audit by the Auditor General of Canada.
(2) The Auditor General of Canada shall annually
(a) audit and provide an opinion on the financial statements of the Centre; and
(b) provide a report to the Chairperson and to the Minister on the audit and opinion.
(3) The Minister shall cause a copy of the Auditor General's report to be tabled in each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives the report.''.
And on the motion in amendment of the Honourable Senator Gauthier, seconded by the Honourable Senator Hubley, that the Bill be not now read a third time but that it be amended in clause 7, on page 4, by adding after line 19 the following:
"(3) In developing contribution and policy implementation agreements, the Minister shall take into account the needs of the English-speaking and French-speaking minorities, in accordance with the Official Languages Act.''.
After debate,
With leave of the Senate,
In amendment, The Honourable Senator Gauthier moved, seconded by the Honourable Senator Gill, that the Bill be not now read a third time but that it be amended in clause 6, on page 4, by replacing line 7 with the following:
"of grants and contributions to any person, in accordance with Parts IV and VII of the Official Languages Act.''.
The question being put on the motion in amendment, it was adopted.
The Senate resumed debate on the motion of the Honourable Senator Mahovlich, seconded by the Honourable Senator Poy, for the third reading of Bill C-12, An Act to promote physical activity and sport, as amended, and on the motions in amendment.
After debate,
The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Carstairs, P.C., that further debate on the motions in amendment be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Motions
Resuming debate on the motion of the Honourable Senator Carstairs, P.C., seconded by the Honourable Senator Banks:
That the Senate call on the government to ratify the Kyoto Protocol on Climate Change,
And on the motion in amendment of the Honourable Senator Lynch-Staunton, seconded by the Honourable Senator Murray, P.C., that the motion be amended by substituting for the period after the word "Change'' the following:
", but only if, after the Senate has heard in Committee of the Whole from all federal, provincial and territorial government representatives who wish to appear, the Senate determines that there is a substantial measure of federal-provincial agreement on an implementation plan.''
After debate,
The Honourable Senator Kinsella moved, seconded by the Honourable Senator Rossiter, that further debate on the motion in amendment be adjourned until the next sitting.
The question being put on the motion, it was adopted.
SPEAKER'S RULING
Yesterday, the Senate agreed to the third reading and passage of Bill C-10A, an Act to amend the Criminal Code (firearms) and the Firearms Act without amendment. This bill is the end result of a decision of the Senate to divide Bill C-10. Bill C-10B remains before the Standing Committee on Legal and Constitutional Affairs. The Senate agreed to this when the second report of the Committee was adopted Thursday, November 28.
As is required, I read out the Message to be sent to the House of Commons following the adoption and passage of Bill C-10A. Following my reading of the message, Senator Kinsella rose on a point of order to seek clarification about Senate practices with respect to these messages and whether the Senate would follow the precedent of 1988 when another message, also related to a bill that was divided by the Senate, was the object of some discussion and amendment.
There followed a series of interventions by Senators. Senator Lynch-Staunton asked questions about the origin of the message, its content and its author. He also asked why the message had not been distributed to Senators before being read. Like Senator Kinsella, he suggested that this message is a debatable motion subject to amendment. In a subsequent intervention, Senator Kinsella cited rule 123 of the Rules of the Senate respecting messages that are transmitted between the Senate and the House of Commons through the Clerk. He also made reference to the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords and its use of messages to support his contention that the message is equivalent to a debatable motion, confirming the validity of the Senate precedent of 1988 relating to Bill C-103.
Senator Carstairs and Senator Robichaud contended that the message is not debatable. Senator Carstairs disagreed with the position of Senator Lynch-Staunton that the message contained editorial commentary. In her view, the message is simply stating the actions that have been taken by the Senate. As Senator Robichaud put it, the message is providing information to the House of Commons with respect to the decisions of the Senate.
In her comments, Senator Cools noted that messages have been debated before in the Senate and have even been referred to committee for study. Further, the Senator noted that there is nothing routine about this bill and there is nothing routine about what has happened. Finally, as Senator Cools put it, this message is the Senate's message and Senators have an interest in making their voices known and expressing their opinions on the actual wording of the message.
I wish to thank all honourable Senators for their contributions to this discussion on the point of order.
The purpose of a message is to provide a vehicle for a formal communication between the two Houses. The House of Lords Companion, to which Senator Kinsella referred, states that messages are used "for sending bills from one House to the other, for informing one House of the agreement of the other to bills or amendments, for requesting the attendance of officers of either Houses as witnesses, for the exchange of documents, for the setting up of joint committees ... and for other matters on which the two Houses communicate.'' The use of messages is generally much the same in our Parliament.
When the Senate receives a message from the House of Commons, the content of the message is often debatable, but not always. For example, yesterday, I read a message from the House of Commons to inform the Senate that it had passed Bill S-2, dealing with a series of tax treaties, without amendment. In this particular case, there is nothing to debate; the purpose of the message is simply to convey information. In other cases, however, a message may require some action on the part of the Senate. When, for example, the House of Commons either disagrees to a Senate amendment to a Commons bill, or the Commons amends a Senate bill, the message is taken as notice, and its contents are ordered for debate and determination at a subsequent sitting.
In order for a bill to become an Act of Parliament, it must be adopted by both Houses. It is part of established practice that when a bill is adopted at third reading and passed by one House, a message must be sent to the other House informing it of the actions taken and the decisions made. This message is an automatic consequence flowing from the decision to pass a specific bill. The message itself is not debatable. The debate took place on the bill; the message is simply a method of informing the other House of the decision taken with respect to the bill.
Furthermore, the message on a bill must relay all relevant information that would allow the receiving House to understand what has happened. When it is a House of Commons bill, the message must provide all the information necessary for the House of Commons to understand what the Senate did while reviewing the legislation.
Messages of this kind conveyed from the Senate to the House of Commons are routine. Whenever the Senate has amended a Commons bill, the message sent by the Senate to the House of Commons identifies the amendments and seeks its concurrence. So far as I have been able to determine, these messages are not the object of a debate. I can only assume that this is because, as I have already explained, the message itself is not a motion. Certainly it is not listed as a debatable motion under rule 62 of the Rules of the Senate.
The one exception appears to be the case mentioned by Senator Kinsella yesterday. In 1988 after the Senate had already agreed to divide Bill C-103 into two bills and then adopted and passed Bill C-103 (Part I), there was some discussion on the content of the message. As recorded in the Debates of July 7, at page 3888, a portion of the message was deleted. I am being asked if this case constitutes a precedent that is binding with respect to the matter now before the Senate, namely Bill C-10A.
Having reviewed the Debates carefully, I am uncertain as to exactly how this incident occurred. It would appear that Senator Flynn contested an assertion made by Senator MacEachen that the decision of the Senate with respect to the adoption of the first part of the divided bill was unanimous. Senator MacEachen made this claim immediately following the Speaker's pronouncement of the message. In the ensuing exchanges, Senator Flynn proposed that the first phrase of the second portion of the message, soliciting the concurrence of the House of Commons with respect to the division of the bill, be deleted. The remainder of the message informed the House that the Senate passed Bill 103 (Part I) without amendment and that it is further considering Bill C-103 (Part II). The proposal to delete the concurrence request was accepted and the message was subsequently sent to the House of Commons.
Based on my reading, it does not appear that his action was in the form of an amendment to a motion. There is no identified mover and seconder. It just seemed to happen. That this decision was not an amendment to a motion is confirmed by reference to the Journals for that date on pages 2908-2909. The message was not moved by any Senator and the change suggested by Senator Flynn was not moved as an amendment. Consequently, I am not sure how I can take this event as a precedent. If it is being suggested that this action was done implicitly by leave, that may be true, but anything done by leave can never be taken as a precedent. If anything, it may prove the exception to the rule that messages like this are not normally the subject of any discussion. To my mind, it was an exceptional occurrence and was done without a dissenting voice.
As I have mentioned already on a previous occasion, the Speaker of the House of Commons objected to the message from the Senate because, in part, it departed from customary usage in not seeking the concurrence of the House of Commons. In the end, the Commons did not accept the Senate's action in dividing the bill because it claimed that it infringed its rights and privileges.
As we have acknowledged, instructions to committees to divide or combine bills are very rare in Canadian parliamentary practice. Nor are they that frequent in the United Kingdom Parliament yet it is British practice that constitutes our model. This difficulty is compounded because Westminster has no precedent for the Lords dividing a Commons bill. As Erskine May states in a footnote on page 470 of the twenty-second edition: "the propriety of dividing a Commons bill has not been decided.'' As a result, there is no established formula for the message.
In 1941, when the Senate combined two Commons bills dealing with war revenue, a message was sent immediately upon the third reading and passage of the bill. The message read as follows:
Ordered, That the Clerk do carry this Bill back to the House of Commons and acquaint them that the Senate has passed the same with an amendment, and with the incorporation therein of Bill (101) of the House of Commons intituled: "An Act to amend the Special War Revenue Act,'' to which they desire their concurrence.
Despite the lack of a clearly established formula, one thing is clear. A proper message must seek the concurrence of the House of Commons to any changes made by the Senate to a Commons bill. This is the only element of the message in 1988 that was deleted. The original message informed the House of Commons that it divided the Bill into two Bills, both of which were attached as appendices. Further, the message informed the House of Commons that the Senate had passed one part of the bill and was continuing its examination of the second part.
Is the current message much different from the original version of the 1988 example? Any comparison would suggest that they are almost identical. Certainly, there is no substantive difference. The 1988 message on Bill C-103 with the deletion was sent by the Senate.
Taking into account what happened in 1988, I think it can be said that the original version of the 1988 message is a fair model. That being said, it is possible for Senators to raise points of order on the content of the message if there is any suspicion as to a factual or procedural error in it. However, with respect to the claim that the message is a debatable motion, it is my ruling that the point of order raised by Senator Kinsella is not substantiated. Accordingly, the message that I read yesterday is in order and will be sent to the House of Commons forthwith.
The Honourable the Speaker read the Message to the House of Commons, as follows:
Ordered, That the Clerk do carry this Bill back to the House of Commons and acquaint that House that the Senate has divided the Bill into two Bills, Bill C-10A, An Act to amend the Criminal Code (firearms) and the Firearms Act, and Bill C-10B, An Act to amend the Criminal Code (cruelty to animals), both of which are attached to this Message as Appendices "A'' and "B'' respectively; and
That the Clerk further acquaint that House that: (a) the Senate desires the concurrence of the House of Commons in the division of Bill C-10; (b) the Senate has passed Bill C-10A without amendment; and (c) the Senate is further considering Bill C-10B.
Points of Order were raised with respect to the wording of the Message to the House of Commons.
Debate.
SPEAKER'S RULING
The question raised by Senator Lynch-Staunton is whether the message is incorrect in that it sends back Bill C-10 when the committee only dealt with Bill C-10A, having divided it. I believe the message is correct. To not return the bill to the House would be incorrect because the House may, for instance, decide not to accept the Senate's message that it has divided the bill, similar to their process when dealing with amendments. They could treat it like an amendment and accept or not accept it. To receive only the appendices created by the committee would leave the House of Commons without the bill to send back. To receive the bill, we must send the bill back. In the message to the House we have asked that the bill be divided because the committee of our chamber reported it to Senate in that form.
Honourable senators, I must say that I am relying also on the rulings given on this point by the then Speaker of the Senate and the then Speaker of House of Commons in 1988 when Bill C-103 was the subject of a similar conversation, debate or discussion in this place and in the other place. Those rulings, one of which was voted against by a majority of voices in the Senate, did not raise the message as a concern. In other words, I am relying on the fact the Senate accepted that process then. It was also accepted as the correct procedure in the House of Commons in then Speaker Fraser's ruling. Accordingly, I rule that there is no error in the message.
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Ordered, That all remaining Orders be postponed until the next sitting.
ADJOURNMENT
The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Rompkey, P.C.:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 3:48 p.m. the Senate was continued until 1:30 p.m. tomorrow.)
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Changes in Membership of Committees Pursuant to Rule 85(4)
Standing Senate Committee on Agriculture and Forestry
The names of the Honourable Senators Fraser and Hubley substituted for those of the Honourable Senators Hubley and Moore (December 3).
The name of the Honourable Senator Moore substituted for that of the Honourable Senator Fraser (December 4).
Standing Senate Committee on Energy, the Environment and Natural Resources
The name of the Honourable Senator Jaffer substituted for that of the Honourable Senator Banks (December 3).
The name of the Honourable Senator Rompkey added to the membership (December 3).
The name of the Honourable Senator Banks substituted for that of the Honourable Senator Jaffer (December 4).
The name of the Honourable Senator Rompkey removed from the membership (December 4).