Journals of the Senate
55 Elizabeth II, A.D. 2006, Canada
Journals of the Senate
1st Session, 39th Parliament
Issue 13
Thursday, May 11, 2006
1:30 p.m.
The Honourable Noël A. Kinsella, Speaker
The Members convened were:
The Honourable Senators
Adams, Angus, Atkins, Austin, Bacon, Banks, Bryden, Callbeck, Campbell, Cochrane, Comeau, Cook, Cools, Corbin, Cordy, Dallaire, Dawson, Day, De Bané, Di Nino, Eyton, Fairbairn, Fitzpatrick, Forrestall, Fortier, Fox, Fraser, Furey, Gill, Goldstein, Grafstein, Hays, Hervieux-Payette, Hubley, Jaffer, Joyal, Keon, Kinsella, Lapointe, Lavigne, LeBreton, Losier-Cool, Lovelace Nicholas, Mahovlich, Massicotte, McCoy, Meighen, Mercer, Mitchell, Moore, Munson, Murray, Nolin, Peterson, Phalen, Pitfield, Plamondon, Poulin (Charette), Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, St. Germain, Segal, Sibbeston, Smith, Stollery, Stratton, Tardif, Tkachuk, Watt, Zimmer
The Members in attendance to business were:
The Honourable Senators
Adams, *Andreychuk, Angus, Atkins, Austin, Bacon, *Baker, Banks, Bryden, Callbeck, Campbell, *Carstairs, *Champagne, Cochrane, Comeau, Cook, Cools, Corbin, Cordy, Dallaire, Dawson, Day, De Bané, Di Nino, Eyton, Fairbairn, Fitzpatrick, Forrestall, Fortier, Fox, Fraser, Furey, Gill, Goldstein, Grafstein, *Harb, Hays, Hervieux-Payette, Hubley, Jaffer, Joyal, Keon, Kinsella, *Kirby, Lapointe, Lavigne, LeBreton, Losier-Cool, Lovelace Nicholas, Mahovlich, Massicotte, McCoy, Meighen, Mercer, *Milne, Mitchell, Moore, Munson, Murray, Nolin, *Oliver, Peterson, Phalen, Pitfield, Plamondon, Poulin (Charette), Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, St. Germain, Segal, Sibbeston, Smith, Stollery, Stratton, Tardif, Tkachuk, *Trenholme Counsell, Watt, Zimmer
PRAYERS
The Honourable the Speaker informed the Senate that a communication had been received from the Deputy Secretary to the Governor General.
The communication was then read by the Honourable the Speaker as follows:
RIDEAU HALL
May 11, 2006
Mr. Speaker:
I have the honour to inform you that the Right Honourable Michaëlle Jean, Governor General of Canada, will proceed to the Senate Chamber today, the 11th day of May, 2006, at 4:30 p.m. for the purpose of giving Royal Assent to certain bills of law.
Yours sincerely,
Curtis Barlow
Deputy Secretary, Policy, Program and Protocol
The Honourable
The Speaker of the Senate
Ottawa
SENATORS' STATEMENTS
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Tabling of Documents
With leave of the Senate,
The Honourable Senator Keon tabled the following:
Document entitled: National Awareness Day Proclamation for Fibromyalgia and Chronic Fatigue Syndrome/Myalgic Encephalomyelitis (English text).—Sessional Paper No. 1/39-151S.
Presentation of Reports from Standing or Special Committees
The Honourable Senator Eyton presented the following:
Thursday, May 11, 2006
The Standing Joint Committee for the Scrutiny of Regulations has the honour to present its
FIRST REPORT
Your Committee reports that in relation to its permanent reference, section 19 of the Statutory Instruments Act, R.S.C. 1985, c. S-22, the Committee was previously empowered "to study the means by which Parliament can better oversee the government regulatory process and in particular to enquire into and report upon:
1. the appropriate principles and practices to be observed
(a) in the drafting of powers enabling delegates of Parliament to make subordinate laws;
(b) in the enactment of statutory instruments;
(c) in the use of executive regulation - including delegated powers and subordinate laws;
and the manner in which Parliamentary control should be effected in respect of the same;
2. the role, functions and powers of the Standing Joint Committee for the Scrutiny of Regulations.''
Your Committee recommends that the same order of reference together with the evidence adduced thereon during previous sessions be again referred to it.
Your Committee informs both Houses of Parliament that the criteria it will use for the review and scrutiny of statutory instruments are the following:
Whether any Regulation or other statutory instrument within its terms of reference, in the judgement of the Committee:
1. is not authorized by the terms of the enabling legislation or has not complied with any condition set forth in the legislation;
2. is not in conformity with the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights;
3. purports to have retroactive effect without express authority having been provided for in the enabling legislation;
4. imposes a charge on the public revenues or requires payment to be made to the Crown or to any other authority, or prescribes the amount of any such charge or payment, without express authority having been provided for in the enabling legislation;
5. imposes a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation;
6. tends directly or indirectly to exclude the jurisdiction of the courts without express authority having been provided for in the enabling legislation;
7. has not complied with the Statutory Instruments Act with respect to transmission, registration or publication;
8. appears for any reason to infringe the rule of law;
9. trespasses unduly on rights and liberties;
10. makes the rights and liberties of the person unduly dependent on administrative discretion or is not consistent with the rules of natural justice;
11. makes some unusual or unexpected use of the powers conferred by the enabling legislation;
12. amounts to the exercise of a substantive legislative power properly the subject of direct parliamentary enactment;
13. is defective in its drafting or for any other reason requires elucidation as to its form or purport.
Your Committee recommends that its quorum be fixed at 4 members, provided that both Houses are represented whenever a vote, resolution or other decision is taken, and that the Joint Chairmen be authorized to hold meetings to receive evidence and authorize the printing thereof so long as 3 members are present, provided that both Houses are represented; and, that the Committee have power to engage the services of such expert staff, and such stenographic and clerical staff as may be required.
Your Committee further recommends to the Senate that it be empowered to sit during sittings and adjournments of the Senate.
Your Committee, which was also authorized by the Senate to incur expenses in connection with its permanent reference relating to the review and scrutiny of statutory instruments, reports, pursuant to Rule 104 of the Rules of the Senate, that the expenses of the Committee (Senate portion) during the First Session of the Thirty-eighth Parliament were as follows:
Professional and Other Services: $ 576.60 Transport and Communications: — All Other Expenses: 1,253.56 TOTAL: $ 1,830.16
A copy of the relevant Minutes of Proceedings and Evidence (Issue No. 1, First Session, Thirty-ninth Parliament) is tabled in the House of Commons.
Respectfully submitted,
JOHN TREVOR EYTON
Joint Chair
The Honourable Senator Eyton moved, seconded by the Honourable Senator Angus, 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.
Tabling of Reports from Inter-Parliamentary Delegations
The Honourable Senator Day tabled the following:
Report of the Canadian Delegation of the Canada-China Legislative Association respecting its annual visit by the Co-Chairs of the Canada-China Legislative Association to the People's Republic of China, held in Beijing, Guangzhou, Hainan Island and Hong Kong, from March 22 to April 1, 2006. —Sessional Paper No. 1/39-152.
The Honourable Senator Grafstein tabled the following:
Report of the Canadian Delegation of the Canada-United States Inter-Parliamentary Group respecting its participation at the National Governors Association: Healthy America Forum and Winter Meeting, held in Washington, D.C., United States, from February 25 to 28, 2006.—Sessional Paper No. 1/39-153.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Order No. 1 was called and postponed until the next sitting.
Motions
Order No. 1 was called and postponed until the next sitting.
OTHER BUSINESS
Senate Public Bills
SPEAKER'S RULING
On Tuesday May 2, during Orders of the Day, Other Business, as Senator Austin was about to move the second reading of Bill S-212, Senator Di Nino rose on a point of order to argue that the bill was not properly before this House. The Senator explained that under the Constitution Act, 1867, bills that appropriate any part of the public revenue or impose a tax must originate in the House of Commons. Such bills cannot be introduced first in the Senate. Based on his reading of the bill, Senator Di Nino maintained that Bill S-212 was imposing a tax and was appropriating public revenue. In his view, the bill "should have been preceded by a Ways and Means motion, should have been accompanied by a Royal Recommendation, and should have originated in the other place.'' The Senator went on to explain the reasons why he thought Bill S-212 was out of order. The first reason is that the bill provides an increase in the child disability supplement which could lead to payments out of the Consolidated Revenue Fund, the CRF. Secondly, clause 3 of the bill increases the maximum refundable medical expense supplement. As a result, in instances where a taxpayer is entitled to a tax credit, a refund will be made out of the CRF. And finally, while Senator Di Nino acknowledged that Bill S-212 reduces the income tax rate from 16 per cent to 15 per cent, he suggested that this could actually result in an increased tax burden for a very small number of taxpayers.
Other Senators participated in the discussion on this point of order. Senator Rompkey characterized the arguments justifying the point of order as specious. Senator Baker claimed that the expenditures contained in Bill S-212 were not really expenditures within the meaning of the objection raised. For his part, Senator Austin, the sponsor of the bill, denied that there were any appropriations or tax impositions in Bill S-212. The Senator also pointed to several precedents to buttress his position including past rulings in which the Speaker declared that bills proposing reductions in taxes did not require a royal recommendation. Senator Stratton appreciated the intent of the point of order. He thought that the bill should be examined to determine if there is an increase on the public purse. Senator Murray then intervened. He repeated a point that had already been made by Senator Di Nino; that Bill S-212 is based in large measure on a bill that had been introduced in the House of Commons in the last Parliament. That bill, as Senator Murray recalled, had been preceded by a Ways and Means motion and accompanied by a royal recommendation. Whether right or wrong in his recollection, the Senator was convinced that the provisions of the bill implicitly involved payouts that would be drawn from public funds. Finally, Senator Hays spoke to caution against any misunderstanding of the fiscal process that might prompt any confusion about the purpose of the bill, which is "to preserve tax reductions that are already in place.''
Following these exchanges, I stated that I would take the matter under advisement. Since then, I have reviewed the applicable Rules of the Senate, closely examined the bill and studied the relevant precedents and authorities. I am now ready to make my ruling on the point of order.
There were three arguments made by Senator Di Nino to justify his claim that Bill S-212 is not properly before the Senate. Let me begin with the last one. The Senator accepted that one objective of the bill is to reduce the federal income tax rate to 15 per cent from 16 per cent. This is achieved through clauses 1 and 2 of the bill. As he and other Senators acknowledged, this reduction first appeared in Bill C-80, a bill introduced in the other place in what turned out to be the closing days of the last Parliament. According to the Journals of the other place, that bill was preceded by a Ways and Means motion. However, I can find no evidence that the bill was also accompanied by a royal recommendation.
In his presentation, Senator Di Nino explained that when the percentage of the tax rate is lowered, the tax credits are also lowered. When this happens, when a tax credit is lowered, according to the Senator, a Ways and Means motion is required. Such motions are a distinct feature of the other place. There is no equivalent in any part of the Senate's rules and practices. While I accept that clauses 1 and 2 of Bill S-212 will reduce the tax rate, I do not agree that this tax reduction necessitates a Ways and Means motion. A tax reduction is clearly not a tax imposition even if, incidentally, it has a negative impact on a small number of taxpayers. According to House of Commons Procedure and Practice by Marleau and Montpetit, at page 759, "Legislative proposals which are not intended to raise money but rather to reduce taxation need not be preceded by a Ways and Means motion before being introduced in the House.'' This statement is supported by two rulings by Speakers of the House of Commons, dating back to 1957 and 1972. Based on this aspect of the point of order, I would not be disposed to rule Bill S-212 out of order. This is in keeping with my preference and underscores my intention, to allow debate which gives the Senate itself the opportunity to come to its own decision on the question.
There are, however, two other arguments that need to be considered in regard to this point of order. I propose to deal with both of them together. As has already been mentioned, much of Bill S-212 is based on Bill C-80. Despite their similarities, there are some significant differences which may be reflected in their different titles. Bill C-80 was entitled, An Act to implement certain income tax reductions; Bill S-212 has as its title, An Act to amend the Income Tax Act (tax relief). In addition to incorporating elements of Bill C-80, Bill S-212, in clause 3 and 4, also seeks to implement increases to the refundable medical expense supplement and the child disability benefit. As honourable Senators may recall, both of these refundable credits had been increased in the budget implementation bill, Bill C-43, adopted last June. Prior to the enactment of this bill, the formulas used to calculate the refundable credits for medical expense supplements and the child disability benefit were $500 and $1,600 respectively. As a result of the changes implemented through Bill C-43, the figures were increased to $750 and $2,000. Bill S-212 now proposes to increase the benefit again to $1,000 and $2,300. Based on this analysis, it is clear that Bill S-212 is doing more than preserving tax reductions already in place. Bill S-212 also aims to provide tax relief in the form of refundable tax credits.
So far as I have been able to determine, these proposed tax credits have not had any expression in legislation. No bill was introduced in the last Parliament to implement them. They were certainly not any part of Bill C-80. In preparing my ruling, I found it instructive to review the procedures that were followed in the other place with respect to Bill C-43, entitled Budget Implementation Act, 2005. This bill was preceded by a Ways and Means motion. More importantly, when Bill C-43 was introduced and read the first time, it had a royal recommendation attached to it. This recommendation was necessary because of the proposed scheme to increase refundable tax credits. Unlike measures that affect non-refundable tax credits, bills proposing to alter refundable tax credits need a royal recommendation. This is because the payouts that will be made to taxpayers who are entitled to claim them must be authorized. This authorization is the royal recommendation. These payments can only be made from the CRF; they are expenditures of public money.
Rule 81 stipulates that "The Senate shall not proceed upon a bill appropriating public money that has not within the knowledge of the Senate been recommended by the Queen's representative.'' Bill S-212 does not have a royal recommendation, though it is clearly necessary with respect to clauses 3 and 4. Had Bill S-212 contained only clauses 1 and 2, I would have been able to rule otherwise. However, given this level of certainty with respect to the meaning and operation of clauses 3 and 4, I am obliged to rule that the point of order that was raised with respect to further proceedings on Bill S-212 is well founded. The second reading motion on Bill S-212 will not be put for debate and the bill is to be stricken from the Order Paper.
(Accordingly, the Order of the Day for the second reading of Bill S-212, An Act to amend the Income Tax Act (tax relief), was discharged and, by order, the Bill withdrawn.)
Orders No. 1, 2 and 4 to 11 were called and postponed until the next sitting.
Second reading of Bill S-207, An Act to amend the Criminal Code (protection of children).
The Honourable Senator Hervieux-Payette, P.C. moved, seconded by the Honourable Senator Rompkey, P.C., that the bill be read the second time.
After debate,
The Honourable Senator Comeau moved, seconded by the Honourable Senator Cochrane, 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.
Other
Orders No. 3 (inquiry), 53, 3, 10 and 7 (motions) were called and postponed until the next sitting.
QUESTION OF PRIVILEGE
Pursuant to rule 43(8), the Senate proceeded to the consideration of the question of privilege of the Honourable Senator Ringuette concerning misleading statements made by the Leader of the Government in the Senate on May 3, 2006.
After debate,
The Speaker reserved his decision.
INQUIRIES
The Honourable Senator Munson called the attention of the Senate to the issue of funding for the treatment of autism.
After debate,
The Honourable Senator Mercer moved, seconded by the Honourable Senator Goldstein, 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 Hervieux-Payette, P.C. moved, seconded by the Honourable Senator De Bané, P.C.:
That the Standing Committee on Rules, Procedures and the Rights of Parliament study and make the necessary recommendations on the advisability of amending Senate practice so that bills tabled during a parliamentary session can be reintroduced at the same procedural stage in the following parliamentary session, with a view to including in the Rules of the Senate, a procedure that already exists in the House of Commons and would increase the efficiency of our parliamentary process; and
That the committee report to the Senate no later than June 8, 2006.
Debate.
Ordered, That after the Royal Assent Ceremony, the Senate adjourn at pleasure to reassemble at the call of the chair and that the bells ring for five minutes.
Pursuant to rule 134(8), the proceedings were interrupted to resume after Royal Assent.
ROYAL ASSENT
The Senate adjourned during pleasure to await the arrival of Her Excellency the Governor General.
After awhile, Her Excellency the Governor General, having come and being seated at the foot of the Throne.
The Honourable the Speaker commanded the Usher of the Black Rod to proceed to the House of Commons and acquaint that House that:
"It is the pleasure of Her Excellency the Governor General that they attend her immediately in the Senate Chamber.''
The House of Commons being come,
One of the Clerks at the Table then read the title of the bill to be assented to as follows:
An Act to amend An Act to amend the Canada Elections Act and the Income Tax Act (Bill C-4, Chapter 1, 2006)
To this Bill the Royal Assent was pronounced by the Clerk of the Senate in the following words:
"In Her Majesty's name, Her Excellency the Governor General doth assent to this Bill.''
5 p.m.
The Speaker of the House of Commons addressed Her Excellency the Governor General as follows:
"May it Please Your Excellency:
The Commons of Canada have voted supplies to enable the Government to defray certain expenses of the public service.
In the name of the Commons, I present to Your Excellency the following Bill:
An Act for granting to Her Majesty certain sums of money for the public service of Canada for the financial year ending March 31, 2007 (Bill C-8, Chapter 2, 2006)
To which Bill I humbly request Your Excellency's Assent.''
After one of the Clerks at the Table read the title of the Bill.
To this Bill the Royal Assent was pronounced by the Clerk of the Senate in the following words:
"In Her Majesty's name, Her Excellency the Governor General thanks her loyal subjects, accepts their benevolence and assents to this Bill.''
5:03 p.m.
The Commons withdrew.
After which Her Excellency the Governor General was pleased to retire.
At 5:37 p.m., the sitting resumed.
MOTIONS
The Senate resumed debate on the motion of the Honourable Senator Hervieux-Payette, P.C., seconded by the Honourable Senator De Bané, P.C.:
That the Standing Committee on Rules, Procedures and the Rights of Parliament study and make the necessary recommendations on the advisability of amending Senate practice so that bills tabled during a parliamentary session can be reintroduced at the same procedural stage in the following parliamentary session, with a view to including in the Rules of the Senate, a procedure that already exists in the House of Commons and would increase the efficiency of our parliamentary process; and
That the committee report to the Senate no later than June 8, 2006.
After debate,
The Honourable Senator Segal 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.
The Honourable Senator Bacon moved, seconded by the Honourable Senator Robichaud, P.C.:
That the Standing Senate Committee on Transport and Communications be authorized to examine and report on current and potential future containerized freight traffic handled at, and major inbound and outbound markets served by, Canada's
i) Pacific Gateway container ports;
ii) east coast container ports;
iii) central container ports;
and current and appropriate future policies relating thereto; and
That the Committee submit its final report no later than March 31, 2007.
After debate,
The question being put on the motion, it was adopted.
The Honourable Senator Day moved, seconded by the Honourable Senator Dallaire:
That the Standing Senate Committee on National Security and Defence be authorized to undertake a study on:
(a) the services and benefits provided to members of the Canadian Forces, veterans of war and peacekeeping missions and members of their families in recognition of their services to Canada, in particular examining:
access to priority beds for veterans in community hospitals;
availability of alternative housing and enhanced home care;
standardization of services throughout Canada;
monitoring and accreditation of long term care facilities;
(b) the commemorative activities undertaken by the Department of Veterans Affairs to keep alive for all Canadians the memory of the veterans achievements and sacrifices;
(c) the implementation of the recently enacted Veterans Charter;
That the papers and evidence received and taken during the First Session of the Thirty-eighth Parliament be referred to the Committee; and
That the Committee report to the Senate from time to time, no later than June 30, 2007.
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 Comeau moved, seconded by the Honourable Senator Cochrane:
That when the Senate adjourns today, it do stand adjourned until Tuesday, May 16, 2006, at 2 p.m.
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 Ridley Terminals Inc. for the fiscal year ended March 31, 2005, pursuant to the Alternative Fuels Act, S.C. 1995, c. 20, s. 8.—Sessional Paper No. 1/39-144.
Summary of the Corporate Plan for 2005-2009 of Ridley Terminals Inc., pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 125(4).—Sessional Paper No. 1/39-145.
Copy of Order in Council P.C. 2006-245 dated April 28, 2006, concerning the Agreement on Social Security between the Government of Canada and the Government of Japan, pursuant to the Old Age Security Act, R.S.C. 1985, c. O-9, sbs. 42(1).—Sessional Paper No. 1/39-146.
Report of Telefilm Canada, together with the Auditor General's Report, for the fiscal year ended March 31, 2005, pursuant to the Canadian Film Development Corporation Act, R.S.C. 1985, c. C-16, sbs. 23(2).—Sessional Paper No. 1/ 39- 147.
Reports of the National Gallery of Canada for the fiscal year ended March 31, 2005, pursuant to the Access to Information Act and to the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2). —Sessional Paper No. 1/39- 148.
Reports of Status of Women Canada for the fiscal year ended March 31, 2005, pursuant to the Access to Information Act and to the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2). —Sessional Paper No. 1/39-149.
Reports of Library and Archives Canada for the fiscal year ended March 31, 2005, pursuant to the Access to Information Act and to the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2). —Sessional Paper No. 1/39- 150.
ADJOURNMENT
The Honourable Senator Comeau moved, seconded by the Honourable Senator Stratton:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 5:46 p.m. the Senate was continued until Tuesday, May 16, 2006 at 2 p.m.)
Changes in Membership of Committees Pursuant to Rule 85(4)
Standing Senate Committee on Agriculture and Forestry
The names of the Honourable Senators Forrestall and Campbell substituted for those of the Honourable Senators Gustafson and Mahovlich (May 10).
The names of the Honourable Senators Gustafson and Mahovlich substituted for those of the Honourable Senators Forrestall and Campbell (May 11).