Journals of the Senate
53 Elizabeth II, A.D. 2004, Canada
Journals of the Senate
3rd Session, 37th Parliament
Issue 37
Wednesday, May 5, 2004
1:30 p.m.
The Honourable Daniel Hays, Speaker
The Members convened were:
The Honourable Senators
Andreychuk, Angus, Atkins, Austin, Bacon, Baker, Banks, Biron, Callbeck, Carstairs, Chaput, Christensen, Cook, Cools, Corbin, Cordy, Day, Di Nino, Doody, Downe, Eyton, Fairbairn, Finnerty, Fitzpatrick, Forrestall, Furey, Gauthier, Gill, Grafstein, Graham, Harb, Hays, Hervieux-Payette, Johnson, Joyal, Kelleher, Kinsella, Kirby, Kroft, LaPierre, Lapointe, Lavigne, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Massicotte, Meighen, Mercer, Merchant, Milne, Moore, Morin, Munson, Murray, Nolin, Oliver, Pearson, Pépin, Phalen, Pitfield, Plamondon, Poulin (Charette), Poy, Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, St. Germain, Sibbeston, Smith, Sparrow, Spivak, Stollery, Tkachuk, Trenholme Counsell, Watt
The Members in attendance to business were:
The Honourable Senators
Andreychuk, Angus, Atkins, Austin, Bacon, Baker, Banks, Biron, Callbeck, Carstairs, Chaput, Christensen, Cook, Cools, Corbin, Cordy, Day, Di Nino, Doody, Downe, Eyton, Fairbairn, Finnerty, Fitzpatrick, Forrestall, Furey, Gauthier, Gill, Grafstein, Graham, Harb, Hays, Hervieux-Payette, Johnson, Joyal, Kelleher, Kinsella, Kirby, Kroft, LaPierre, Lapointe, Lavigne, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Massicotte, Meighen, Mercer, Merchant, Milne, Moore, Morin, Munson, Murray, Nolin, Oliver, Pearson, Pépin, Phalen, Pitfield, Plamondon, Poulin (Charette), Poy, Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, St. Germain, Sibbeston, Smith, Sparrow, Spivak, Stollery, *Stratton, Tkachuk, Trenholme Counsell, Watt
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Morin, seconded by the Honourable Senator Downe, for the third reading of Bill C-24, An Act to amend the Parliament of Canada Act.
After debate,
The Honourable Senator Lynch-Staunton moved, seconded by the Honourable Senator Kinsella, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Third reading of Bill C-11, An Act to give effect to the Westbank First Nation Self-Government Agreement.
The Honourable Senator Fitzpatrick moved, seconded by the Honourable Senator Gill, 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 has passed this Bill, without amendment.
Second reading of Bill C-15, An Act to implement treaties and administrative arrangements on the international transfer of persons found guilty of criminal offences.
The Honourable Senator Christensen 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 Christensen moved, seconded by the Honourable Senator Cordy, 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.
SPEAKER'S RULING
Last Thursday, Senator Cools raised a question of privilege to challenge a Speaker's ruling of Wednesday, April 28 regarding the validity of proceedings on Bill C-250, An Act to amend the Criminal Code (hate propaganda). The conclusion of that ruling was that there was no prima facie question of privilege. According to Senator Cools, there was an error in the ruling that is "egregious and fundamental and founds a new breach of privileges.''
According to Senator Cools, the error is in the summary of her position stated in the first paragraph of the ruling. It states that: "It is the Senator's position that the Rules of the Senate do not provide any opportunity for any closure or guillotine motion to be moved by a private member or on a private member's bill.'' Senator Cools contends that this summary misrepresents her view.
I have had a chance to review the arguments that were made April 27, as well as the ruling of the Speaker pro tempore April 28. I am now prepared to make my ruling.
Senator Cools is correct that the summary of her position in the ruling is not entirely accurate. In her arguments of April 27, the Senator equated the guillotine with time allocation and the previous question with closure, and she recognized that private members can move the previous question. The summary did not accurately reflect her understanding. However, I believe that it is worthwhile to distinguish between the terms previous question and closure. As noted in the Glossary of Parliamentary Procedure (3rd edition), closure is a "procedure forbidding further adjournment of debate on any motion or on any stage of a bill and requiring that the motion come to a vote at the end of the sitting in which it is invoked.'' However, the previous question is defined as a "debatable motion preventing any further amendment to the motion or bill before the House.'' They are related, but not identical, concepts.
When challenging the right of Senator Murray to have proposed his motion, the Senator said the following: "Outside of that [being rules 38 and 39] there is no power within any rule of the Senate for a private member to move a guillotine motion.'' [Debates, p.934] This is a power, according to the Senator, that can only be exercised by a Minister following rules 38 and 39 on time allocation. The Senator did not, however, challenge the right of a private member to move the previous question, though she did explain that the motions of both Senator Murray and Senator Joyal were an abuse of the house and a breach of Senators' privileges. Senator Cools had also suggested that it was a responsibility of the Speaker as Chair to protect the Senate "from motions that are unusual or irregular, particularly questions of closure or guillotine which are exceptional procedures.'' [Debates, p. 932]
The clarification that Senator Cools has brought to the attention of the Senate does nothing to undermine the reasoning of the decision or its result. If any Senator wished to challenge the ruling, the correct procedure would have been to appeal the ruling immediately. Since there was no appeal of the Speaker's decision when it was made last Wednesday, April 28, it stands as a decision of the Senate itself. It is not appropriate to try to appeal the ruling indirectly through a question of privilege.
Rule 43 stipulates the criteria that must be met in raising a question of privilege. Among other criteria, it must be raised to "correct a grave and serious breach'' of the privileges of either the Senate itself or any of its individual members. While there was indeed an error in the summary of Senator Cools' position, it does not in my opinion have any effect on the substance, logic or conclusion contained in the ruling of April 28.
Therefore, it is my ruling that there is no basis of a prima facie question of privilege.
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At 4:00 p.m., pursuant to the Order adopted by the Senate on February 23, 2004, the Senate adjourned until 1:30 p.m. tomorrow.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Report of the Auditor General of Canada for the fiscal year ended March 31, 2004, pursuant to the Privacy Act, R.S.C. 1985, c. P-21, sbs. 72(2).—Sessional Paper No. 3/37- 196.
Report of the Canada Student Loans Program for the loan year 2001-2002, pursuant to the Canada Student Financial Assistance Act, S.C. 2003, c.15, s. 12.—Sessional Paper No. 3/37-197.
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Changes in Membership of Committees Pursuant to Rule 85(4)
Standing Senate Committee on National Finance
The names of the Honourable Senators Comeau and Chaput substituted for those of the Honourable Senators Stratton and Ferretti Barth (May 4).
Standing Senate Committee on Aboriginal Peoples
The name of the Honourable Senator Fitzpatrick substituted for that of the Honourable Senator Trenholme Counsell (May 4).
Standing Senate Committee on Social Affairs, Science and Technology
The names of the Honourable Senators Kinsella and Forrestall substituted for those of the Honourable Senators Keon and Robertson (May 5).