Journals of the Senate
56 Elizabeth II, A.D. 2007, Canada
Journals of the Senate
1st Session, 39th Parliament
Issue 72
Tuesday, February 20, 2007
2:00 p.m.
The Honourable Noël A. Kinsella, Speaker
The Members convened were:
The Honourable Senators
Andreychuk, Angus, Atkins, Austin, Bacon, Banks, Biron, Bryden, Campbell, Carstairs, Champagne, Chaput, Cochrane, Comeau, Cools, Corbin, Cowan, Dallaire, Dawson, De Bané, Di Nino, Downe, Dyck, Eggleton, Eyton, Fortier, Fox, Fraser, Gill, Goldstein, Harb, Hays, Hervieux-Payette, Hubley, Jaffer, Johnson, Joyal, Kenny, Keon, Kinsella, LeBreton, Losier-Cool, Massicotte, McCoy, Merchant, Milne, Mitchell, Moore, Munson, Murray, Nancy Ruth, Oliver, Pépin, Phalen, Poulin (Charette), Prud'homme, Ringuette, Robichaud, Rompkey, Segal, Smith, Spivak, Stollery, Stratton, Tardif, Tkachuk, Trenholme Counsell, Watt, Zimmer
The Members in attendance to business were:
The Honourable Senators
Andreychuk, Angus, Atkins, Austin, Bacon, Banks, Biron, Bryden, *Callbeck, Campbell, Carstairs, Champagne, Chaput, Cochrane, Comeau, Cools, Corbin, *Cordy, Cowan, Dallaire, Dawson, De Bané, Di Nino, Downe, Dyck, Eggleton, Eyton, *Fairbairn, Fortier, Fox, Fraser, Gill, Goldstein, *Grafstein, *Gustafson, Harb, Hays, Hervieux-Payette, Hubley, Jaffer, Johnson, Joyal, Kenny, Keon, Kinsella, LeBreton, Losier-Cool, *Mahovlich, Massicotte, McCoy, *Mercer, Merchant, Milne, Mitchell, Moore, Munson, Murray, Nancy Ruth, Oliver, Pépin, *Peterson, Phalen, Poulin (Charette), Prud'homme, Ringuette, *Rivest, Robichaud, Rompkey, Segal, Smith, Spivak, Stollery, Stratton, Tardif, Tkachuk, Trenholme Counsell, Watt, Zimmer
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Presentation of Reports from Standing or Special Committees
The Honourable Senator Johnson, Deputy Chair of the Standing Senate Committee on Fisheries and Oceans, tabled its sixth report (interim) entitled: The Management of Atlantic Fish Stocks: Beyond the 200-Mile Limit.—Sessional Paper No. 1/39-677S.
The Honourable Senator Johnson moved, seconded by the Honourable Senator Stratton, 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 Andreychuk, Chair of the Standing Senate Committee on Human Rights, tabled its seventh report entitled: Employment Equity in the Federal Public Service — Not There Yet.—Sessional Paper No. 1/39- 678S.
The Honourable Senator Andreychuk 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.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Order No. 1 was called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator LeBreton, P.C., seconded by the Honourable Senator Comeau, for the second reading of Bill S-4, An Act to amend the Constitution Act, 1867 (Senate tenure).
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 Comeau moved, seconded by the Honourable Senator Cochrane, 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.
Order No. 3 was called and postponed until the next sitting.
Second reading of Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment).
The Honourable Senator Tkachuk moved, seconded by the Honourable Senator Eyton, that the bill be read the second time.
After debate,
The Honourable Senator Jaffer moved, seconded by the Honourable Senator Watt, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Order No. 5 was called and postponed until the next sitting.
Motions
Order No. 1 was called and postponed until the next sitting.
Reports of Committees
Orders No. 1 and 2 were called and postponed until the next sitting.
OTHER BUSINESS
Senate Public Bills
Orders No. 1 to 3 were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Austin, P.C., seconded by the Honourable Senator Carstairs, P.C., for the second reading of Bill S-215, An Act to amend the Income Tax Act in order to provide tax relief.
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 Austin, P.C., moved, seconded by the Honourable Senator Carstairs, P.C., that the bill be referred to the Standing Senate Committee on National Finance.
The question being put on the motion, it was adopted.
Orders No. 5 and 6 were called and postponed until the next sitting.
The Order was called to resume debate on the motion of the Honourable Senator Harb, seconded by the Honourable Senator Keon, for the second reading of Bill S-221, An Act to establish and maintain a national registry of medical devices.
SPEAKER'S RULING
On January 30, when the Senate resumed consideration of second reading of Bill S-221, an Act to establish and maintain a national registry of medical devices, Senator Comeau raised a point of order. He questioned whether it was appropriate that the bill originate in the Senate. Bill S-221 provides that the Minister of Health shall designate a Registrar of Medical Devices, and that this person shall maintain a registry. Senator Comeau contended that the bill would require that additional expenses be incurred, and that it must therefore involve an appropriation of public funds. What follows from such a finding, he argued, is that Bill S-221 then requires a royal recommendation and must originate in the other place.
Senator Comeau pointed out that, under clause 4 of the bill, the registry would be distinct from the department's regular activities and require a separate operating budget. He then drew the senators' attention to the 23rd edition of Erskine May, at page 886, which reads:
When a bill contains a provision extending the purposes of expenditure already authorized by statute (for example, by adding to the functions of an existing government agency or publicly funded body, extending the classes of persons entitled to a statutory grant or allowance, or extending the range of circumstances in which such grants or allowances are payable), that provision will normally require authorization by Money resolution.
On the basis of the reasoning found in Erskine May, Senator Comeau concluded that receiving Bill S-221 in the Senate would offend sections 53 and 54 of the Constitution Act, 1867 and rule 81 of the Senate.
Sections 53 and 54 of the Constitution Act, 1867, provide:
53. Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.
54. It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.
Senate rule 81 stipulates:
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.
Three other senators offered their contributions to this debate. Senator Carstairs expressed the view that, "It is not the purpose of this bill to spend money, therefore, it is not, by definition, a money bill.'' Support for Senator Carstairs' opinion came from Senator Fraser. She noted that almost all legislation may have monetary implications, without its main purpose being to spend money. In her comments, Senator Fraser suggested that a bill that does not set out to change the budgetary situation or budgetary policy of the government and that does not affect taxes is not a money bill, even if its ancillary effect is the spending of some money.
The sponsor of the bill, Senator Harb, began by expressing his agreement with the comments of Senators Carstairs and Fraser, and went on to deal specifically with the notion of Bill S-221 as a money bill. He pointed out that regulations under the bill could conceivably impose a fee on those who use the registry; this could result in the initiative being revenue neutral, or even generating revenues for the Crown. Significantly, Senator Harb also pointed out that the Auditor General's report acknowledged the existence of an inspection strategy at Health Canada, although it recommended the elaboration of this strategy.
I would like to express my appreciation to those honourable senators who offered their contributions to the discussion on this point of order. I have had an opportunity to consult the authorities and am prepared to make my ruling.
The issue with respect to the introduction of Bill S-221 in the Senate is whether the provisions of this bill appropriate "any part of the public revenue or impose any tax or impost'', as set out in section 53 of the Constitution Act, 1867. It is very difficult to ascertain, without extensive evidence and based purely on the provisions of a bill, what the financial implications of its enactment might be. Moreover, as Speaker, I am obliged to avoid ruling on questions of law. As Speaker Molgat noted in his ruling of April 2, 1998, in the case of Bill S-13, the Tobacco Industry Responsibility Act,
The . . . question . . . has to do with whether or not the levy scheme established through this bill constitutes a tax. In answering this question, I am constrained by the rule that the Speaker does not rule on questions of law. Citation 168(5) of Beauchesne states that "The Speaker will not give a decision upon a constitutional question nor decide a question of law, though the same may be raised on a point of order or a question of privilege.''
What is in my authority, however, is the examination of the bill in order to assess what it declares itself to be.
I was persuaded by the logic of Speaker Molgat's remarks and examined Bill S-221 to see what, on the face of it, the bill "declares itself to be''. In considering this question I was guided by Speaker Molgat's decision in Bill S-12, the First Nations Government Act, rendered on February 4, 1997 and directly on point with the current case:
I have carefully reviewed Bill S-12 . . . and I have been unable to find any provision that clearly appropriates money from the Consolidated Revenue Fund. Moreover, while Senator Stanbury indicated that clauses 16 to 27 might possibly involve an expenditure by the government, it is not certain whether these anticipated operations would be funded by a new appropriation which would require a royal recommendation or by existing allocations established through previous legislation. Nor is there any language in the bill that effectively imposes any perceived appropriation. Yet these are the conditions to be satisfied when considering whether a royal recommendation should be attached to the bill.
[...]
Without sufficient evidence that Bill S-12 as drafted provides for an appropriation or creates a new charge, I have no authority to prevent debate on it.
With respect to the present situation, no part of Bill S-221 discusses an appropriation of the public revenue, or the levying of any tax or impost. What it does do is create a new registry, staffed by a registrar who is to be a person already employed by the department. Are there expenditures involved with this process? Almost certainly. Whether these expenditures are new, however, is less certain. Under the Department of Health Act, the "powers, duties, and functions of the Minister'', already include "the establishment and control of safety standards and safety information requirements for consumer products''; this function appears to cover the same type of activity contemplated by Bill S- 221. In addition, as I mentioned earlier, the Auditor General's report confirmed the existence of an inspection strategy, which obviously has had funds granted to it. This current initiative may well be construed as an elaboration of the existing system.
Certainly it can be argued that the fact that this is an originating bill — as opposed to an amending bill — might increase the possibility of new spending, but I do not believe that such is necessarily the case. Rather, it is equally plausible that the bill will require that an existing function be carried out in a new way. Consequently, it is not certain that this bill adds to the functions of an existing government agency, as set out in the Erskine May test.
Senator Harb offered the possibility that this bill, through its authorization of regulations, might impose fees that could effectively raise enough funds to pay for the registry it creates. Admittedly, this talk of potential fees put forward by Senator Harb is speculative. Suggestions to the contrary on my part, however, would be equally speculative. It is not my place as Speaker to conjecture, but rather to do my utmost to maintain the role of the Senate, so long as it involves no trespass on the privileges of the other place or on the financial initiative of the Crown. Once again, I find compelling the comments of Speaker Molgat when ruling on Bill S-13:
Let me begin with this general proposition. It is my view that matters are presumed to be in order, except where the contrary is clearly established to be the case. This presumption suggests to me that the best policy for a Speaker is to interpret the rules in favour of debate by senators, except where the matter to be debated is clearly out of order.
I am similarly persuaded by the common sense argument that it could certainly not be intended that every bill that has any monetary implications whatsoever must be introduced first in the other place. Such an interpretation would greatly impede the power of the Senate to initiate legislation. For this reason, and those I have previously stated, I find that Bill S-221 is properly before the Senate and that debate on second reading may proceed.
The Honourable Senator Keon moved, seconded by the Honourable Senator Segal, that the debate on the motion of the Honourable Senator Harb, seconded by the Honourable Senator Keon, for the second reading of Bill S-221, be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Orders No. 8 and 9 were called and postponed until the next sitting.
Commons Public Bills
Second reading of Bill C-288, An Act to ensure Canada meets its global climate change obligations under the Kyoto Protocol.
The Honourable Senator Mitchell moved, seconded by the Honourable Senator Trenholme Counsell, that the bill be read the second time.
After debate,
The Honourable Senator Tkachuk 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.
Reports of Committees
Consideration of the seventh report of the Standing Senate Committee on Foreign Affairs and International Trade entitled: Overcoming 40 Years of Failure: A New Road Map for Sub-Saharan Africa, tabled in the Senate on February 15, 2007.
The Honourable Senator Segal moved, seconded by the Honourable Senator Keon:
That the seventh report of the Standing Senate Committee on Foreign Affairs and International Trade entitled Overcoming 40 Years Of Failure: A New Road Map For Sub-Saharan Africa, tabled in the Senate on February 15, 2007, be adopted and that, pursuant to rule 131(2), the Senate request a complete and detailed response from the government, with the Minister of Foreign Affairs, the Minister of International Trade, the Minister of International Cooperation and the Minister of National Defence being identified as Ministers responsible for responding to the report.
After debate,
The Honourable Senator Corbin moved, seconded by the Honourable Senator Pépin, 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 to 8 were called and postponed until the next sitting.
Resuming debate on the consideration of the third report (interim) of the Standing Senate Committee on Agriculture and Forestry, entitled: Agriculture and Agri-Food Policy in Canada: Putting Farmers First!, tabled in the Senate on June 21, 2006.
After debate,
Further debate on the consideration of the report was adjourned until the next sitting in the name of the Honourable Senator Fraser.
Other
Orders No. 14, 17, 25 (inquiries), 140, 81, 119 (motions), 20, 15, 3, 6, 19, 11 (inquiries), 5 (motion), 18, 23, 9 (inquiries) and 92 (motion) were called and postponed until the next sitting.
Resuming debate on the inquiry of the Honourable Senator Tardif calling the attention of the Senate to questions concerning post-secondary education in Canada.
After debate,
The Honourable Senator Banks, for the Honourable Senator Callbeck, moved, seconded by the Honourable Senator Joyal, P.C., that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Resuming debate on the inquiry of the Honourable Senator Callbeck calling the attention of the Senate to the importance of Canadian immigration policy to the economic, social and cultural development of Canada's regions.
After debate,
The Honourable Senator Tardif moved, seconded by the Honourable Senator Fraser, that further debate on the inquiry 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 Andreychuk, seconded by the Honourable Senator Tkachuk:
That the Senate refer to the Standing Committee on Rules, Procedures and the Rights of Parliament the issue of developing a systematic process for the application of the Charter of Rights and Freedoms as it applies to the Senate of Canada.
After debate,
The Honourable Senator Andreychuk moved, seconded by the Honourable Senator Tkachuk, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
INQUIRIES
The Honourable Senator Fraser called the attention of the Senate to the Government response to the second report of the Standing Senate Committee on Transport and Communications entitled: Final Report on the Canadian News Media.
After debate,
The Honourable Senator Banks moved, seconded by the Honourable Senator Corbin, 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 Oliver moved, seconded by the Honourable Senator Stratton:
That, notwithstanding the Order of the Senate adopted on Thursday, December 7, 2006, the Standing Senate Committee on Legal and Constitutional Affairs, which was authorized to examine and report on the benefits and results that have been achieved through the Court Challenges Program, be empowered to extend the date of presenting its final report from February 28, 2007 to June 30, 2007.
After debate,
The question being put on the motion, it was adopted.
The Honourable Senator Trenholme Counsell moved, seconded by the Honourable Senator Munson:
That the Standing Senate Committee on Social Affairs, Science and Technology be authorized to examine the state of early learning and child care in Canada in view of the OECD report Starting Strong II, released on September 21-22, 2006 and rating Canada last among 14 countries on spending on early learning and child care programs, which stated ". . . national and provincial policy for the early education and care of young children in Canada is still in its initial stages. . . and coverage is low compared to other OECD countries;'' and
That the Committee study and report on the OECD challenge that ". . . significant energies and funding will need to be invested in the field to create a universal system in tune with the needs of a full employment economy, with gender equity and with new understandings of how young children develop and learn.''
After debate,
The Honourable Senator Comeau moved, seconded by the Honourable Senator Oliver, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
List of Commissions issued for the year 2006, pursuant to the Public Officers Act, R.S.C. 1985, c. P-31, s. 4.—Sessional Paper No. 1/39-667.
Comprehensive report for 2006 of the Economic Development Agency of Canada for the Regions of Quebec Act, pursuant to the Economic Development Agency of Canada for the regions of Quebec Act, S.C. 2005, c. 26, ss.17(3) and (4).—Sessional Paper No. 1/39-668.
Copy of a directive to the Canada Post Corporation regarding the Publications Assistance Program (P.C. 2006- 1531), pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 89(4).—Sessional Paper No. 1/39-669.
Copy of a directive to the Canada Post Corporation regarding rural mail delivery (P.C. 2006-1532), pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 89(4).—Sessional Paper No. 1/39-670.
Copy of estimate as a result of complying with the directive by Governor in Council regarding the Publications Assistance Program, pursuant to the Canada Post Corporation Act, R.S.C., 1985, c. C-10, s. 22(5).—Sessional Paper No. 1/39-671.
Copy of estimate as a result of complying with the directive by Governor in Council regarding Rural Mailbox Delivery, pursuant to the Canada Post Corporation Act, R.S.C., 1985, c. C-10, s. 22(5).—Sessional Paper No. 1/39-672.
Report on the administration and operation of the Canada Health Act for the fiscal year ended March 31, 2006, pursuant to the Act, R.S.C. 1985, c. C-6, s. 23.—Sessional Paper No. 1/39-673.
Reports of the Patented Medicine Prices Review Board for the fiscal year ended March 31, 2006, 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- 674.
Report of operations under the Export and Import Permits Act for the year 2005, pursuant to the Act, R.S.C. 1985, c. E-19, s. 27. —Sessional Paper No. 1/39-675.
Report on the Annual Summary of Steel Import Permit Information for the year 2006, pursuant to the Export and Import Permits Act, R.S.C. 1985, c. 13 (3rd Supp.), s. 1.—Sessional Paper No. 1/39-676.
DECLARATIONS OF PRIVATE INTERESTS
Pursuant to subsection 14(2) of the Conflict of Interest Code for Senators, a declaration of private interest was made as follows:
—By written declaration, February 20, 2007, the Honourable Senator Mitchell (concerning questions he asked in the Chamber on November 22, 2006 and January 30, 2007).
ADJOURNMENT
The Honourable Senator Comeau moved, seconded by the Honourable Senator Oliver:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 5:50 p.m. the Senate was continued until 1:30 p.m. tomorrow.)
Changes in Membership of Committees Pursuant to Rule 85(4)
Standing Senate Committee on Fisheries and Oceans
The names of the Honourable Senators Hubley, Adams and Campbell substituted for those of the Honourable Senators Cowan, Phalen and Cook (February 15).
Standing Senate Committee on Social Affairs, Science and Technology
The name of the Honourable Senator Chaput substituted for that of the Honourable Senator Munson (February 15).
The name of the Honourable Senator Munson substituted for that of the Honourable Senator Chaput (February 19).
Standing Senate Committee on Agriculture and Forestry
The name of the Honourable Senator St. Germain substituted for that of the Honourable Senator Tkachuk (February 16).
Standing Senate Committee on Banking, Trade and Commerce
The name of the Honourable Senator Oliver substituted for that of the Honourable Senator Tkachuk (February 16).
Standing Senate Committee on Energy, the Environment and Natural Resources
The name of the Honourable Senator Tkachuk substituted for that of the Honourable Senator Carney (February 16).
Standing Senate Committee on Foreign Affairs and International Trade
The name of the Honourable Senator Oliver substituted for that of the Honourable Senator Eyton (February 16).
The names of the Honourable Senators Johnson and Campbell substituted for those of the Honourable Senators Di Nino and Mahovlich (February 20).
Standing Senate Committee on Legal and Constitutional Affairs
The name of the Honourable Senator Di Nino substituted for that of the Honourable Senator Oliver (February 16).
Standing Senate Committee on Official Languages
The names of the Honourable Senators Carstairs and Chaput substituted for those of the Honourable Senators Chaput and Carstairs (February 19).
The name of the Honourable Senator Carstairs added to the membership (February 19).
Standing Senate Committee on Transport and Communications
The name of the Honourable Senator Fox substituted for that of the Honourable Senator Adams (February 20).