Journals of the Senate
53 Elizabeth II, A.D. 2004, Canada
Journals of the Senate
3rd Session, 37th Parliament
Issue 22
Tuesday, March 23, 2004
2:00 p.m.
The Honourable Daniel Hays, Speaker
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Austin, Bacon, Banks, Beaudoin, Biron, Bryden, Buchanan, Callbeck, Carney, Carstairs, Chaput, Cochrane, Comeau, Cook, Cools, Corbin, Cordy, Day, De Bané, Di Nino, Doody, Downe, Fairbairn, Ferretti Barth, Finnerty, Fitzpatrick, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Gustafson, Harb, Hays, Hervieux-Payette, Hubley, Jaffer, Johnson, Joyal, Kelleher, Kinsella, Kirby, Kroft, Lapointe, Lavigne, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Massicotte, Mercer, Merchant, Milne, Morin, Murray, Nolin, Oliver, Pearson, Pépin, Phalen, Plamondon, Poulin (Charette), Prud'homme, Ringuette, Rivest, Robertson, Robichaud, Roche, Rompkey, St. Germain, Sibbeston, Smith, Sparrow, Spivak, Stollery, Stratton, Tkachuk, Watt
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, *Atkins, Austin, Bacon, Banks, Beaudoin, Biron, Bryden, Buchanan, Callbeck, Carney, Carstairs, Chaput, Cochrane, Comeau, Cook, Cools, Corbin, Cordy, Day, De Bané, Di Nino, Doody, Downe, Fairbairn, Ferretti Barth, Finnerty, Fitzpatrick, *Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Gustafson, Harb, Hays, Hervieux-Payette, Hubley, Jaffer, Johnson, Joyal, Kelleher, *Kenny, Kinsella, Kirby, Kroft, Lapointe, Lavigne, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Massicotte, Mercer, Merchant, Milne, Morin, *Munson, Murray, Nolin, Oliver, Pearson, Pépin, Phalen, Plamondon, Poulin (Charette), Prud'homme, Ringuette, Rivest, Robertson, Robichaud, Roche, Rompkey, St. Germain, Sibbeston, Smith, Sparrow, Spivak, Stollery, Stratton, Tkachuk, Watt
PRAYERS
SENATORS' STATEMENTS
Tributes
Tribute was paid to the memory of the Honourable Ernest G. Cottreau, former Senator, whose death occurred March 7, 2004.
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Ordered, That notwithstanding Rule 22(10), on Thursday, April 1, 2004, tributes be paid to the Honourable Senator Roche and the Honourable Senator Robertson.
SENATORS' STATEMENTS
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Presentation of Reports from Standing or Special Committees
The Honourable Senator Murray, P.C., Chair of the Standing Senate Committee on National Finance, presented its Fifth Report (Bill C-18, An Act respecting equalization and authorizing the Minister of Finance to make certain payments related to health, without amendment).
The Honourable Senator Ringuette moved, seconded by the Honourable Senator Chaput, 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 Murray, P.C., Chair of the Standing Senate Committee on National Finance, presented its Sixth Report (first interim) (2004-2005 Estimates).
(The Report is printed as an Appendix)
The Honourable Senator Murray, P.C., moved, seconded by the Honourable Senator Robertson, 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 Milne, Chair of the Standing Committee on Rules, Procedures and the Rights of Parliament, presented its Third Report (Bill C-4, An Act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence, without amendment).
The Honourable Senator Austin, P.C., moved, seconded by the Honourable Senator Rompkey, P.C., 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.
Presentation of Petitions
The Honourable Senator Murray, P.C., presented petitions:
Of Residents of the Province of Ontario with respect to declaring Ottawa officially bilingual.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Third reading of Bill C-8, An Act to establish the Library and Archives of Canada, to amend the Copyright Act and to amend certain Acts in consequence, as amended.
The Honourable Senator Morin moved, seconded by the Honourable Senator Gauthier, that the Bill, as amended, be read the third time.
After debate,
The Honourable Senator Tkachuk moved, seconded by the Honourable Senator Gustafson, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Order No. 2 was called and postponed until the next sitting.
OTHER BUSINESS
Senate Public Bills
Orders No. 1 and 2 were called and postponed until the next sitting.
The Order was called to resume debate on the motion of the Honourable Senator Kinsella, seconded by the Honourable Senator Stratton, for the second reading of Bill S-7, An Act respecting the effective date of the representation order of 2003,
And on the motion of the Honourable Senator Kinsella, seconded by the Honourable Senator Stratton, that the original question be now put.
SPEAKER'S RULING
On Thursday, March 11, Senator Kinsella raised a point of order to have his bill, Bill S-7, struck from the Order Paper. Citing first the British parliamentary authority, Erskine May, and then subsequently a precedent that had occurred in the Senate some years ago, Senator Kinsella explained that when a decision has been made with respect to one of two bills on the Order Paper dealing with the same subject matter, it is not possible to proceed with the second bill. In this case, Bill C-5, setting the effective date of the representation order of 2003, received royal assent March 11. Bill S-7, dealing with the same subject as Bill C-5, still remains on the Order Paper and Senator Kinsella has now proposed that I as Speaker discharge the bill.
For his part, Senator Robichaud suggested that it would be just as effective to vote on his motion of the previous question that he had moved to the second reading motion of Bill S-7. If the previous question were to be defeated, he said, it would lead to the discharge of the bill. Senator Rompkey then proposed to follow up on Senator Kinsella's point of order by agreeing to provide unanimous consent to withdraw Bill S-7 from the Order Paper, an offer that Senator Kinsella declined.
According to Senator Kinsella's understanding of the Senate precedent and the procedural literature, it is the responsibility of the Speaker to discharge the bill. In his view, unanimous consent is not the appropriate means to meet this procedural step. Senator Robichaud again intervened to express a concern that by discharging Bill S-7, the Senate might establish a precedent that could, in the future, block consideration of a Government bill based on a prior decision taken with respect to a Senate bill on a similar subject.
It was at this stage that I agreed to review the authorities and the precedent and come back with a ruling. In the interval between March 11 and today, I have considered the references that were provided by Senator Kinsella. I have also reviewed the relevant Rules of the Senate and am now prepared to give my ruling.
Let me begin by addressing the concern that was raised by Senator Robichaud. The Senator indicated that the request of Senator Kinsella to discharge Bill S-7 might create a precedent that could lead to the blockage of consideration of any future bill coming from the House of Commons. As Senator Robichaud explained it on March 11, "if Senator Kinsella's bill had been defeated ... the Government would not have been able to introduce its bill because a ruling would already have been made on the issue.'' I have considered the matter carefully, but can provide no simple answer.
It is useful to explain how the different parliamentary authorities and our own rules operate in circumstances where the House is confronted with bills that are substantially the same. The passage at page 499 of the 22nd edition of Erskine May that Senator Kinsella referred to, in raising his point of order, states that "There is no general rule or custom which restrains the presentation of two or more bills relating to the same subject, and containing similar provisions. But if a decision of the House has already been taken on one such bill, for example, if the bill has been given or refused second reading, the other is not proceeded with if it contains substantially the same provisions.'' This passage closely resembles citation 624(3) in the sixth edition of the Canadian authority, Beauchesne.
The Australian Senate authority, Odgers, provides a much narrower interpretation. As it explains at page 203 of the 9th edition, "the same question rule is seldom applied because it seldom occurs that a motion is exactly the same as a motion moved previously. Even if the terms of a motion are the same as one previously determined, the motion almost invariably has a different effect because of changed circumstances and therefore is not the same motion. There may be different grounds for moving the same motion again.''
The principle of the "same question rule,'' also forms a part of the Rules of the Senate. Rule 80, for example, provides that "When a bill originating in the Senate has been passed or negatived a new bill for the same object shall not afterwards be originated in the Senate during the same session.'' In addition, rule 63(1) states that "A motion shall not be made which is the same in substance as any question which, during the same session, has been resolved in the affirmative or negative, unless the order, resolution, or other decision on such question has been rescinded ...''
The purpose of rule 80 is to prevent the consideration of a Senate bill that has substantially the same object as another Senate bill that had already been adopted or rejected during the same session. Rule 80 applies strictly to bills that originate in the Senate. It does not apply to bills that come from the "other place''. Rule 80, therefore, does not apply to the present circumstances since Bill C-5 did not originate in the Senate.
Erskine May, unlike Odgers does not seem to observe the distinction provided in Senate rule 80. In fact, it may be that neither Erskine May nor Odgers are appropriate guides to our practices. It is worth noting that the Companion to the Rules of the Senate published in 1994, on page 247 cites section 42(2) of the Interpretation Act, which specifically allows that "An Act may be amended or repealed by an Act passed in the same session of Parliament.'' There is nothing to suggest that a proposed amendment or repeal of an Act could not be similar in substance to the earlier Act that was already adopted by Parliament in the same session.
How can we sort out these conflicting provisions and statements? I am not really sure that we can. It may not be possible to square the circle. The role of the Speaker is to ensure that best practices are followed while at the same time protecting the interests of the Senate. This is what the Speaker strives to do through rulings. If, at any time, the Senate disagrees with that judgment, with a decision, any Senator can challenge the ruling and the Senate itself will decide what the outcome will be by either accepting or overturning that ruling. In any case, it might be prudent to follow the advice of Hatsell, also cited in the Companion at page 190, which explains that it is "the good sense of the House that must decide, upon every question, how far it comes within the meaning of the [same question] rule.''
With respect to this point of order, the Senate has adopted a C-bill and it is now left with the task of discharging a similar S-bill from the Order Paper. Senator Robichaud's concern, however, has to do with the possibility of the Senate taking a decision to adopt an S-bill that might block consideration of a C-bill. A solution for the future might be to propose the withdrawal of the S-bill in order to allow unimpeded consideration of the C-bill. The Senate did something similar to this in October 2001 when it unanimously agreed to withdraw Senator Lynch-Staunton's bill on royal assent in order to permit the introduction a similar bill sponsored by the Leader of the Government. Alternatively, it could be argued that rule 80 recognizes an implicit exception and that C-bills do not come under the "same question'' prohibition if it thwarts the Senate's ability to fulfill its obligation as the "Chamber of sober second thought'' to review the legislation that comes to it from the "other place''.
In the end, the boundaries of the same question rule can only be drawn when the Senate is confronted with a concrete event. During discussion on the point of order on March 11, reference was made to a Senate precedent. On February 27, 1991, the Speaker ruled that a bill sponsored by Senator Haidasz, coincidently also Bill S-7, entitled An Act to amend the Criminal Code (protection of the unborn child), should be removed from the Order Paper following a substantial decision on Bill C-43, An Act respecting Abortion, since both bills sought to amend section 287 of the Criminal Code. As the Speaker noted in the ruling "Although Bill S-7 and Bill C-43 have different objectives and represent alternatives on the subject of abortion, the Chair feels that ... a strong case may be made that they are `the same in substance'.'' This impression was strengthened by the fact that Senator Haidasz had moved amendments to Bill C-43 that resembled the objectives and provisions of Bill S-7, all of which were rejected by the Senate.
The case that is now before the Senate is broadly similar to the precedent of 1991. In both instances, the Senate completed consideration of a Government sponsored bill received from the House of Commons before voting on the second reading motion of a Senate bill. Bill S-7 was introduced or presented February 4 and debate on its second reading began on February 11. The Senate received a message from the House of Commons concerning Bill C-5 on February 11 and, following our usual practice, the bill was read the first time immediately. Second reading debate commenced on February 13 and ended February 20 when the bill was subsequently referred to the Standing Committee on Legal and Constitutional Affairs. After it was reported without amendment, Bill C-5 was debated and passed at third reading on March 10. Royal assent was given on March 11. At the same time, I note that no further action was taken with respect to Bill S-7 until the point of order was raised.
In passing Bill C-5 at third reading, the Senate did pronounce itself on the effective date of the representation order of 2003. As such, it would be inappropriate to now proceed on Bill S-7 since, in my view, it does deal with the same object as Bill C-5. Based on this assessment, I agree with Senator Kinsella and it is my ruling that Bill S-7 be discharged from the Order Paper.
Accordingly, the motion that the original question be now put was deemed withdrawn and the Order of the Day for the second reading of Bill S-7, An Act respecting the effective date of the representation order of 2003, was discharged and, by order, the Bill withdrawn.
Order No. 4 was called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Oliver, seconded by the Honourable Senator Gustafson, for the second reading of Bill S-2, An Act to prevent unsolicited messages on the Internet.
After debate,
The question being put on the motion, it was adopted.
The Bill was then read the second time.
The Honourable Senator Oliver moved, seconded by the Honourable Senator Robertson, that the Bill be referred to the Standing Senate Committee on Transport and Communications.
The question being put on the motion, it was adopted.
Orders No. 6 to 8 were called and postponed until the next sitting.
Second reading of Bill S-16, An Act to amend the Copyright Act.
The Honourable Senator Day moved, seconded by the Honourable Senator Léger, 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 Day moved, seconded by the Honourable Senator Finnerty, 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.
Commons Public Bills
Resuming debate on the motion of the Honourable Senator Morin, seconded by the Honourable Senator Munson, for the third reading of Bill C-260, An Act to amend the Hazardous Products Act (fire-safe cigarettes).
After debate,
The Honourable Senator Kinsella moved, seconded by the Honourable Senator Stratton, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Orders No. 2 and 3 were called and postponed until the next sitting.
Reports of Committees
Consideration of the Third Report of the Standing Senate Committee on Fisheries and Oceans (budget—study on straddling stocks and fish habitat) presented in the Senate on March 11, 2004.
The Honourable Senator Cook moved, seconded by the Honourable Senator Pearson, that the Report be adopted.
The question being put on the motion, it was adopted.
Orders No. 2 and 3 were called and postponed until the next sitting.
Consideration of the Third Report of the Standing Senate Committee on Human Rights (budget—study on the division of on-reserve matrimonial real property), presented in the Senate on March 22, 2004.
The Honourable Senator Maheu moved, seconded by the Honourable Senator Cook, that the Report be adopted.
The question being put on the motion, it was adopted.
Other
Orders No. 40, 59, 3, 24 (motions) and 1 (inquiry) were called and postponed until the next sitting.
Resuming debate on the inquiry of the Honourable Senator Ferretti Barth calling the attention of the Senate to the report of the Prime Minister's Caucus Task Force on Seniors.
Debate concluded.
Orders No. 5 (inquiry), 28 and 9 (motions) were called and postponed until the next sitting.
INQUIRIES
The Honourable Senator Carstairs, P.C., called the attention of the Senate to the state of cancer in Canada — its care, treatment and expectations for the future.
Debate concluded.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Report of the Office of the Superintendent of Financial Institutions for the fiscal year ended March 31, 2003, pursuant to the Pension Benefits Standards Act, R.S.C. 1985, c. 32, (2nd Supp.), s. 40.—Sessional Paper No. 3/37-103.
Copies of Orders in Council P.C. 2001-2281, P.C 2002-1556, P.C. 2002-2227, P.C. 2003-279, P.C. 2003-448, P.C. 2003-652 to 2003-659, P.C. 2003-878, P.C. 2003-880, P.C. 2003-936, P.C. 2003-1014, P.C. 2003-1053 and P.C. 2003- 1054, P.C. 2003-1404 to 2002-1409 and P.C. 2003-1423 concerning federal-provincial and federal-territorial crop insurance agreements with Manitoba, New Brunswick, British Columbia, Ontario, Saskatchewan, the Yukon Territory and the Northwest Territories, pursuant to the Farm Income Protection Act, S.C. 1991, c. 22, sbs. 12(7).—Sessional Paper No. 3/37-104.
ADJOURNMENT
The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Graham, P.C.:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 3:50 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 Transport and Communications
The names of the Honourable Senators Andreychuk and Beaudoin substituted for those of the Honourable Senators Johnson and Eyton (March 22).
Standing Committee on Rules, Procedures and the Rights of Parliament
The name of the Honourable Senator Mercer substituted for that of the Honourable Senator Ringuette (March 23).