Journals of the Senate
56 Elizabeth II, A.D. 2007, Canada
Journals of the Senate
1st Session, 39th Parliament
Issue 95
Wednesday, May 9, 2007
1:30 p.m.
The Honourable Noël A. Kinsella, Speaker
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Bacon, Baker, Banks, Biron, Bryden, Callbeck, Carney, Chaput, Cochrane, Comeau, Cook, Cools, Corbin, Cordy, Cowan, Dallaire, Dawson, Day, De Bané, Di Nino, Downe, Dyck, Eggleton, Eyton, Fairbairn, Fitzpatrick, Fortier, Fox, Fraser, Furey, Gill, Grafstein, Harb, Hays, Hervieux-Payette, Hubley, Joyal, Kenny, Keon, Kinsella, Lapointe, Lavigne, LeBreton, Losier-Cool, Lovelace Nicholas, Mahovlich, Massicotte, McCoy, Meighen, Mercer, Merchant, Milne, Mitchell, Moore, Munson, Murray, Nancy Ruth, Nolin, Oliver, Pépin, Peterson, Poulin (Charette), Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, Segal, Sibbeston, Smith, Spivak, Stollery, Stratton, Tardif, Tkachuk, Trenholme Counsell, Watt, Zimmer
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Bacon, Baker, Banks, Biron, Bryden, Callbeck, Carney, Chaput, Cochrane, Comeau, Cook, Cools, Corbin, Cordy, Cowan, Dallaire, Dawson, Day, De Bané, Di Nino, Downe, Dyck, Eggleton, Eyton, Fairbairn, Fitzpatrick, Fortier, Fox, Fraser, Furey, Gill, *Goldstein, Grafstein, Harb, Hays, Hervieux-Payette, Hubley, Joyal, Kenny, Keon, Kinsella, Lapointe, Lavigne, LeBreton, Losier-Cool, Lovelace Nicholas, Mahovlich, Massicotte, McCoy, Meighen, Mercer, Merchant, Milne, Mitchell, Moore, Munson, Murray, Nancy Ruth, Nolin, Oliver, Pépin, Peterson, Poulin (Charette), Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, Segal, Sibbeston, Smith, Spivak, Stollery, Stratton, Tardif, Tkachuk, Trenholme Counsell, Watt, Zimmer
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Introduction and First Reading of Senate Public Bills
The Honourable Senator Carney, P.C., presented a Bill S-225, An Act to amend the International Boundary Waters Treaty Act (bulk water removal).
The bill was read the first time.
The Honourable Senator Carney, P.C., moved, seconded by the Honourable Senator Cochrane, that the bill be placed on the Orders of the Day for a second reading two days hence.
The question being put on the motion, it was adopted.
First Reading of Commons Public Bills
A message was brought from the House of Commons with a Bill C-299, An Act to amend the Criminal Code (identification information obtained by fraud or false pretence), to which it desires the concurrence of the Senate.
The bill was read the first time.
The Honourable Senator Comeau moved, seconded by the Honourable Senator Nolin, that the bill be placed on the Orders of the Day for a second reading two days hence.
The question being put on the motion, it was adopted.
SPEAKER'S RULING
On Wednesday, April 25, 2007, Senator Banks rose on a point of order respecting the membership of the Standing Senate Committee on National Security and Defence. He raised several issues. As Senator Banks recognized, the less serious of his concerns was that the membership change form that removed three senators from the committee on February 27, 2007, without indicating replacements, gave the incorrect name for the said committee and referred to rule 86(4) rather than rule 85(4). His principal concern, however, was that rule 86(1)(r) provides that the committee is to be composed of nine members. Senator Banks questioned the propriety of removing members without replacements, since it effectively reduced the committee's membership from nine members, plus the ex officio members, to six, plus the ex officio members.
Senator Kenny spoke in support of this point of order, and Senator Cools then addressed concerns about the membership of committees. The senator suggested that such changes should only be done with the agreement of the senators involved and that changes made by the leaders should not permanently override the decision of the Senate, made when it adopts a report of the Committee of Selection. Senator Hervieux-Payette also participated in debate, underscoring the disruptive effects that unexpected changes or vacancies can have on the work of committees and inviting guidance about how this situation might be improved.
Finally, Senator Tkachuk suggested that there was no valid point of order. The senator referred to the Rules of the Senate, Beauchesne, Erskine May, and general Senate practice to argue that the membership of committees can be changed and that the changes made to the National Security and Defence Committee respected normal practice and were in order.
Given the importance of this question, I took the issue under advisement. I thank all senators who participated in discussion. A consideration of Senator Banks' principal point, that the membership change of February 27, 2007 should have replaced one senator by another senator, has led to a consideration of several closely related issues. The specific situation cited by Senator Banks did respect general practice and was not in contradiction with the rules. At the same time, there are several points needing clarification, and it might be appropriate for the Rules Committee to consider them.
An understanding of subsections (3), (4), and (5) of rule 85 is essential to this issue. Subsection (3) states that, once appointed, a senator is a member of a committee for the duration of the session. The appointment is, however, subject to subsection (4), which authorizes changes of membership by notices filed with the Clerk of the Senate. Subsection (5) specifies that the change of membership shall be made by the Leader of the Government for a government senator, by the Leader of the Opposition for an opposition senator, or by the leader of a recognized third party for a senator who is a member of such a party. In all these cases, the leaders may name another senator, typically the whip, to exercise this authority on their behalf.
Allowing changes in membership during the course of a session provides a convenient way to co-ordinate caucus work. If, for example, a senator is obliged to be away from a meeting for other responsibilities or if a senator who is not a regular member of a committee has particular expertise in a matter under consideration, rule 85(4) provides a way to accommodate these circumstances.
The Committee of Selection has recommended the appointment of independent senators to committees. These independent senators can indicate, in writing, that they agree to accept the authority of either the government or the opposition whip for the purposes of membership changes. This arrangement is entirely voluntary. If an independent senator does not write such a letter, or withdraws it, the rule respecting changes does not apply. Similarly, if a senator withdraws from a caucus, rule 85(4) would cease to apply. In the latter case, that senator would retain any then current committee memberships unless removed, either through a report of the Committee of Selection or a substantive motion, adopted by the Senate.
I will now turn to Senator Banks' concerns. On his first point, the rule number and the name of the National Security and Defence Committee, the changes sent by the whips have at times made reference to rule 86(4) rather than rule 85(4), most likely due to the use of forms antedating the renumbering of the Rules of the Senate. This can be easily corrected. Furthermore, the forms sometimes use abbreviated or incomplete names for committees. This particular form referred to "National Defense (sic) and Security,'' so the intent was clear. The inaccuracies were by no means so egregious as to render the form invalid. As Senator Banks noted, they should be viewed as typographical errors.
The more substantive complaint relates to changing membership by removing a member without designating an immediate replacement. Rule 85 is clear that the leaders do have authority to make changes with respect to their members. Once a change is made, the senator added is a member for the rest of the session until and unless another change is received.
As Speaker, I am bound to interpret the rules and practices as they exist. Whether a requirement for consultation and limits on the duration of a change in membership are desirable is not an issue that can be appropriately addressed in this ruling. Any guidance or changes should come from the Standing Committee on Rules, Procedures, and the Rights of Parliament.
Returning to the main issue raised by Senator Banks, the removal of a committee member without making an immediate replacement, this has been a long practice in the Senate, developed since 1983, when the leaders were empowered to make changes to committee membership. During the current session, there have already been at least two dozen such changes, done by both sides. In some cases the vacancies were subsequently filled, while in others they remain to be filled. Such changes often occurred during previous sessions.
It will be noted that rule 85(4) simply refers to "a change in the membership of a committee.'' Removing a member from a committee with the replacement to follow clearly constitutes a "change'' in committee membership that fits within the general wording of the rule and this practice has been sanctioned by long use. Again, if there is an interest in the Senate taking a new direction on this matter, the Rules Committee could make the appropriate recommendations.
Since the removal of committee members without making immediate replacements falls within the terms of rule 85(4) and has long been part of Senate practice, it follows that there have been many cases of committees not having the full membership as set out in rule 86(1). The general acceptability of this situation is to some degree supported by a ruling of the Speaker of May 30, 1991. That ruling stated that, while current rule 85, which was rule 86 at the time, "sets the maximum number of members which a committee may have, the committee of selection is not obliged to nominate a full complement of senators for each committee.'' Since then, some reports of the Committee of Selection have not recommended the maximum number of members.
A committee can function, from the time members are appointed, with fewer members than the number in the rules, provided it has quorum. This situation is endorsed by the Senate when it adopts the report of the Committee of Selection. Practice has been that a committee can also function if its membership falls below this number during the course of a session, as long as it continues to have quorum. What distinguishes the case Senator Banks raised is not only its duration, but also the fact that the entire membership of one caucus is involved. There is, however, no cut-off point as to how long this situation can last, nor can the Speaker impose one. Furthermore, while recognizing that the permanent withdrawal of all members from one side could alter the operations of a committee, this aspect of the issue is also beyond the authority of the Speaker, as long as there still can be quorum at meetings.
These issues, while important, are not strictly matters of procedure. In conclusion, the removal of certain members from the National Security and Defence Committee on February 27, 2007 respected the practices as they have evolved in the Senate, and was not inconsistent with the rules. The senators removed on that date, or other senators from the government caucus, can be added to the committee by the Leader of the Government in the Senate or her designate.
As noted, Senator Banks' point of order has brought to light a number of significant points on which clarification would be helpful, but the Rules Committee is the appropriate venue for such discussions. In closing, therefore, I urge that committee to take up these issues.
ORDERS OF THE DAY
A point of order was raised with respect to Question Period.
Debate.
SPEAKER'S RULING
The Rules state that question period is to last 30 minutes. By my watch, question period lasted 30 minutes, but if my watch is not working properly, I will find another one.
I would like to take this opportunity to point out that we prefer a good exchange during question period. One question may lead to many supplementary questions and this creates a dilemma for the Speaker, as to whether he should interrupt the flow of the debate. I also try to recognize all senators who rise in this Chamber so that they may take part in question period.
In any event, Senator Nolin was right to point out that question period is to be 30 minutes long. As for me, I am going to get a new watch.
GOVERNMENT BUSINESS
Bills
Third 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 Meighen, that the bill be read the third time.
After debate,
The Honourable Senator Tardif moved, seconded by the Honourable Senator Cowan, 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.
Resuming debate on the motion of the Honourable Senator Nolin, seconded by the Honourable Senator Stratton, for the second reading of Bill C-18, An Act to amend certain Acts in relation to DNA identification.
After debate,
The question being put on the motion, it was adopted.
The bill was then read the second time.
The Honourable Senator Comeau moved, seconded by the Honourable Senator Oliver, 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.
Second reading of Bill C-48, An Act to amend the Criminal Code in order to implement the United Nations Convention against Corruption.
The Honourable Senator Andreychuk moved, seconded by the Honourable Senator Nancy Ruth, that the bill be read the second time.
Debate.
At 4 p.m., pursuant to the Order adopted by the Senate on April 6, 2006, the Senate adjourned until 1:30 p.m. tomorrow.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Summaries of the Corporate Plan for the period 2007-2008 to 2011-2012 and of the Operating and Capital Budgets and Borrowing Plan for 2007-2008 of Farm Credit Canada, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 125(4).—Sessional Paper No. 1/39-812.
Changes in Membership of Committees Pursuant to Rule 85(4)
Standing Senate Committee on Agriculture and Forestry
The names of the Honourable Senators Dawson and Milne substituted for those of the Honourable Senators Peterson and Mahovlich (May 8).
Standing Senate Committee on Legal and Constitutional Affairs
The name of the Honourable Senator Cowan substituted for that of the Honourable Senator Jaffer (May 8).
Standing Senate Committee on Transport and Communications
The names of the Honourable Senators Eyton and Carney substituted for those of the Honourable Senators Carney and Johnson (May 8).