Proceedings of the Special Committee on
Bill C-20
Issue 7 - Evidence (Evening sitting)
OTTAWA, Monday, June 19, 2000
The Special Senate Committee on Bill C-20, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, met this day at 5:08 p.m. to give consideration to the bill.
Senator Joan Fraser (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, the 12th meeting of the Special Senate Committee on Bill C-20 is now in session. I should like to welcome all of you once again, including the television audience, to our hearings.
At this point this afternoon, we move to the final stage in our consideration of Bill C-20, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.
Senator Lynch-Staunton: Before moving to clause-by-clause study, Madam Chairman, might I be allowed to make a motion that I think is in order now?
By the way, I am an ex officio member of this committee, but I am here to replace Senator Rivest, so I am not acting in an ex officio capacity. If either Senators Boudreau or Hays show up and there is a vote, I could act as ex officio.
The Chairman: You are acting as an ordinary senator.
Senator Lynch-Staunton: First, the minister did not say anything this afternoon about the urgency of this bill, and we all know there is no urgency.
Second, looking down the witness list that we have kept up to date, I see there are a number of potential witnesses who declined to appear because of the timing, not because they were unwilling to do so. I do not have to name them. You have the same list as I do. One said he could not come before June 19. Another one is in Australia until June 16. Another one could not come before July, and for others I do not have the exact timing, but it is obvious that some of these people who could bring a lot of insight to this bill refused to appear only because of the timing.
They should be given an opportunity to appear. That is the purpose behind this motion. This will be interpreted as a delaying tactic, and in effect it is, but for a good reason. Many senators around this table -- even among those who support the bill -- have had an extraordinary amount of difficulty in understanding all its implications.
Because of the importance given to it, particularly by the government -- the most important bill in decades, one minister called it -- I do not think it would be appropriate to move into clause-by-clause study at this stage. Again, we are repeating that there is no urgency. No one foresees a referendum, certainly not on secession, over the next few months.
For those reasons, which I hope are acceptable, I move:
That clause-by-clause deliberation on Bill C-20 be not now proceeded with in order for the committee to continue to hear witnesses; and
That the committee report the bill back to the Senate no earlier than September 12, 2000.
I have copies of the motion for the clerk and enough copies for each senator.
The Chairman: Honourable senators, is it your pleasure to adopt the motion or shall we have a brief discussion of this matter?
[Translation]
Senator Nolin: This afternoon, in response to a question from Senator Kinsella, we heard the minister make a reference to a letter from the Premier of Prince Edward Island. He apprised us of some new facts, further to his meetings with the P.E.I. Premier.
Furthermore, it seems that the P.E.I. Premier took steps to have his legislature pass a resolution in support of Bill C-20. I think the least we can do is examine this resolution. There appears to be a contradiction between the document recently made public by Senator Kinsella and the minister's comments here this afternoon.
If only for the sake of this witness, I think some clarification of the P.E.I. government's position is in order at this time and as such, I agree with the motion brought forward by Senator Lynch-Staunton.
Senator Poulin: I am a little surprised by your motion. Given that the bill passed first reading in the Senate on March 21, I think all senators have had time to reflect upon it, examine it and engage in consultations. Given that we have heard from a vast array of expert witnesses and that fundamentally, Bill C-20 does not prevent a province from expressing or showing support of some kind for the legislation, I think that in light of all of the work accomplished by witnesses and by senators alike, the time has come to proceed with the clause-by-clause adoption of the bill.
[English]
Senator Kroft: Honourable senators, I would respond to both of Senator Lynch-Staunton's points, to the date that Senator Poulin mentioned, and to the process we have been through. The public, in a way, was put on extraordinary notice of the position of the Senate because of the substantial second reading debate we had here. The matter was unusually well aired, and I must say very impressively aired, on all sides.
This bill was not dropped into committee quickly and without warning. Indeed, witnesses who came before us were well briefed. The committee benefited from the fact that they had, in many cases, followed that debate very closely. I felt we were well down the road in the process because they had had that opportunity.
There is no doubt that a committee like this, on this subject, could continue to engage the interest, ingenuity, and important preoccupation of an enormous number of interested Canadians and others for a very long time. It is a matter of judgment whether we have reached the point where there has been a fair hearing. I would submit that there has been.
The second point, about timing and the fact that there is no referendum in view in the next few months, as Senator Lynch-Staunton said, goes to the core of my view that this is the very time to be considering this bill. If we were following this process, having this debate and doing this study in the context of an imminent referendum hanging over our heads, we would not have the same opportunity for the more dispassionate and considered study we have had here.
We have done our jobs well on all sides and it is time to move on to third reading.
Senator Kinsella: Honourable senators, I speak in favour of the motion. Senator Lynch-Staunton has alluded to a number of witnesses whom the committee attempted to hear. We could benefit from their shared experience and knowledge. For a good number of them, the impediment to appearing was logistical or related to scheduling. Gilles Remillard was out of the country. A number of others indicated they would appear, but not before a certain date.
Let me turn to the matter of the provinces and the territories. As honourable senators will recall, pursuant to the Rules of the Senate, and unlike the operating procedures in the other place, when a legislative proposal that affects the interests of the provinces and territories is before the Senate, we invite the provinces to attend on the matter if they so choose.
The steering committee did instruct the clerk of this committee to contact each of the premiers, and she did so. We have received correspondence in some instances. Minister Facal has written from the Province of Quebec, and his words have been referenced a few times at our hearings. The bottom line, as honourable senators will recall, is that the Province of Quebec is completely opposed to this legislative proposal.
The letter we received from the Premier of Prince Edward Island was dated June 15. Senator Nolin has drawn to our attention the discrepancy that exists between the resolution adopted in the legislative assembly of Prince Edward Island, to which the minister made reference earlier this afternoon, and the letter that the premier has addressed to this committee.
In my analysis, these two documents demonstrate a perfect example of the growth in understanding that has occurred since this honourable committee has been focused on the content of Bill C-20. Like many other Canadians, the premier has gone beyond the issue that was first presented simply as a clarity act.
There must be a clear question presented to the population of the province and there must be a clear majority on the referendum held on that clear question.
Everyone is in favour of clarity. In the first series of discussions across Canada, and in the other place, the focus was simply on whether or not there ought to be a clear question put during a referendum. Indeed, people were specific in focusing on the next referendum in Quebec.
We began our work in the Senate, and all honourable senators will recall the excellent debate that we had at second reading. Very fine work has been done in this committee since the bill was referred. The realization has grown that this is not simply about a clear question being put in the next referendum in the province of Quebec, but rather that a whole series of issues have come to the fore. For example, the exclusion of the Senate has received -- as one would have expected -- particular attention here in our study. It also captured the attention of Canadians from coast to coast, many of whom appeared before this committee as witnesses.
A premier has obviously had his attention drawn to the proper functioning of the Senate in our bicameral system of Parliament, for he writes in the penultimate paragraph of his letter dated June 15:
...from the point of view of the proper functioning of the Senate, I share the concerns of those who see the implementation and functioning of Bill C-20 as a realistic threat.
Honourable senators, this is from a premier who has recognized, as the debate has unfolded, and as we began to reflect upon this bill, that this is about more than a clear question at the time of a referendum. He has focused, in this paragraph, on the proper functioning of the Senate in our bicameral system and the realistic threat that this bill poses to it. The premier continues in that paragraph:
Until other arrangements are in place, Prince Edward Island should be true to its historic position: the Senate is important in defending the Island's representation in both Houses of Parliament. To the extent that Bill C-20, either directly or indirectly, undermines the validity and functioning of the Senate, a province like Prince Edward Island must register concern.
Honourable senators, understanding of Bill C-20 has grown. We have a clearer understanding of this bill and its negative impact on bicameralism, which has been a focus during the hearings of this committee as well as during our second reading debate.
I believe Senator Nolin makes an extremely important point -- there has been growth. How much more would our understanding grow if there were no rush to this thing? Nothing is imminent. Let us take more time and come to a clear resolution of this matter.
Senator Murray: Madam Chairman, the members of the House of Commons have gone home for their well-earned summer vacation, having sweetened their pension and severance arrangements before they went. That bill, of course, has yet to be passed through the Senate, and I do not know whether it is being given the same urgency as Bill C-20.
In any case, one of the arguments being deployed with regard to Bill C-20, and to discourage amendments thereto, is the inconvenience to which members of the House of Commons would be put if it were necessary to call them back from their well-earned repose to deal with amendments coming from the Senate.
Senator Lynch-Staunton's proposal would relieve us, and them, of that problem. They would continue to enjoy their summer holidays, and we would report the bill no later than mid-September. During that time, there would also perhaps be some opportunity for the government to reconsider the rather inflexible position taken by Mr. Dion when he was before us today, to the effect that no amendments would be countenanced by the government. There is that old French expression, "La nuit porte conseil." Therefore, I support the proposal of Senator Lynch-Staunton.
The Chairman: I believe we are ready to proceed to a vote on this matter.
Senator Cools, you wish to make an observation?
Senator Cools: I have put my name on the list.
The Chairman: I am sorry, I did not see you.
Senator Cools: Very well. I thought you could always recognize me by the colour of my glasses.
I would like to speak in support of Senator Lynch-Staunton's proposition, and I would like to say that as far as I am concerned, the study of this bill is young and has only just begun. It is abundantly clear to me that the issues are only now becoming manifest or evident for many senators. I would also like to say that I do not think it is a good idea in general to proceed directly from hearing witnesses to clause-by-clause consideration. It seems to me that a better way of proceeding is to give honourable senators some time to review the record, study the issues, and prepare themselves for better conclusions and potential amendments.
We must remember that this is a very unique situation. The bill before us is somewhat unusual. Some honourable senators would say somewhat irregular. In addition to the bill itself being unusual and irregular, the entire process that has been followed is also unusual and irregular.
We should consider the fact that this bill bypassed a perfectly legitimate and competent committee, for example, and was referred to this committee, which was constituted as a special committee to study the matter. I am referring here to the unusual nature of the entire process, because there are some senators, myself included, who believe that their rights were certainly abridged when the bill was sent to this committee.
Another factor in the irregularity and unusual nature is that the majority of the members of the committee, including the chairman, are very new. It seems to me that when subject matter is new, when composition of committees is new, and when the minister is also relatively new, the Senate has a double duty to give the matter the kind of attention and the quality of time that it properly deserves.
Honourable senators, I have sat here for quite some time, and I have sat through our considerations, particularly as Liberal senators, of the Meech Lake Accord and other important issues.
I would like to remind honourable senators that Liberal senators then made sure that the question of the Meech Lake Accord was properly canvassed --
Senator Murray: It was held up for six months.
Senator Cools: -- and was properly studied, if one will remember, and properly debated. I believe that most Liberal senators are very proud of their track record.
We even heard former prime ministers. One will remember we had a marathon session upstairs in Committee of the Whole with Prime Minister Trudeau. I believe Mr. Trudeau spoke to us for some five or six hours. I think most of us -- especially myself -- were extremely thrilled to have the input of such a learned mind on the subject matter of the Constitution of Canada and any proposals to change it. We welcomed that.
I would think, honourable senators, that this committee owes this subject matter and this bill a similar sort of rigorous study. I cannot help but notice that we have not called a single political or parliamentary authority. We keep citing Professor Hogg and Professor Monahan, but we have not really called any parliamentary authorities like, for example, Senator MacEachen, Mr. Trudeau, whose health is not as good perhaps, and Mr. John Turner. I am talking to you about individuals who embody the Liberal tradition of constitutionalism in this country. It may well be that some members do not think that the Liberal body of constitutionalism in this country is relevant, but I would urge that this committee not move quickly to abridge and to intervene in the delay.
I would like to continue, honourable senators. Liberal senators learned a great deal about this sort of thing from people like Senator MacEachen. I would like to say, honourable senators, that some witnesses have been heard, but yet in respect of the importance of the subject matter, I would say to you the best witnesses have still not been heard and are yet to come. I know that there are many people who have not been called, and I really believe that they should be heard. All those witnesses should be heard.
I would also add, honourable senators, that many issues have not been canvassed. I would like to lay out a few of the issues that have not yet been studied in the hopes that I may just catch a glimmer of support from Senator Joan Fraser, our notable chairman, and encourage her to see that it is in the interests of this issue, if it is as important as she says it is, that it continue to be studied.
For example, we have heard no witnesses whatsoever and no body of evidence whatsoever on the question of the proper relationship between the courts and Parliament. This bill is unusual. This bill is a very new phenomenon. Its title alone says it is an act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference. I would submit to honourable senators that even such a title and such a phenomenon in law is entirely new.
I am a Liberal, and I speak as a Liberal, and I speak in the tradition of the proper relationships between the courts and Parliament. Many senators may not think that is important any more, but the body of Liberal tradition, as it developed in the province of Ontario, came directly out of the issue of the proper relationship between the courts and Parliament. It is very unfortunate that the minister, in all of his testimony, never thought that that body of Liberal Party knowledge of 100 years should even be referred to. I can tell you that this sort of thing would have been roundly condemned historically by Liberals, particularly people like George Brown and a whole stack of others I could name with a little bit of pushing. That is a very important issue: the proper relationship between the courts and the Parliament.
I would also like to say again, as I hinted at, that no parliamentary authorities have been heard as witnesses -- absolutely no authorities, for example, on the law of Parliament. We have not heard a single witness on the law of Parliament. I believe that Senator Kinsella is quite on the right track when he speaks about this bill not being consonant with the law of Parliament and the proper role of Parliament, never mind the proper role of the Senate.
I would also like to go on to another issue on which we have received absolutely no evidence and no testimony, and that is the question of the Royal Prerogative. I have raised this issue. Some treat it as an arcane or cryptic sort of issue. It is not the least bit arcane or cryptic. In fact the government has said that that is the primary authority on which it is basing much of its position. It seems to me that the government could at least bring forward some of that lawful authority. It is a principle of parliamentary government, and a principle of responsible government, that ministers should always be ready to tell you their lawful authority for any actions that they would take. This new approach is unheard of. This is a totally new approach to responsible government that says basically that the government can negotiate quite anything that it likes. That is unheard of in the history of responsible government.
I would like to say again that what the minister has presented to us as parliamentary government and constitutional history in Canada is simply unfounded and unsupported by the history of this land.
I would also like to say that we have heard a lot about minority rights, but I have not seen or heard from a single witness who looks to me vaguely like a member of a minority. As a matter of fact, when I look around the table, I seem to be the only minority speaking. I have had quite a difficult time being heard, in my own view, but I cannot help but observe that in --
Senator Grafstein: What about me?
Senator Cools: Oh golly, I will get to you, if you give me a chance. How long do you want me to go on for?
I would like to say that Ms Finestone spoke nicely and adequately today about a body of anglophone persons who live in Quebec. I would also like to add that there is a body of anglophone persons who live in Quebec who are all black and remain anglophone, and it is a group that no one has spoken for. I would have thought, Madam Chairman, being a diligent chairman, that you would have seen to it that witnesses came forward before this committee to be heard on this particular subject matter.I just make that point again if we are so concerned about minorities.
I keep hearing time and time again about how compassionate Liberals are and how fair and egalitarian. It is not my experience that Liberals are that way, but I keep hearing it. It seems to me we could have brought some witnesses to this table who represent minority positions, at least from the province of Quebec.
I move on to note that those are just some of the issues that have not been canvassed, but I think they are profound.
I would also note, chairman and honourable colleagues, that this committee has not travelled, and sought no authority to travel from the Senate when it was constituted. That means to me, at least when the motion was moved, and I believe it was moved by Senator Hays, that it was the intention of the government that the committee would never travel. I find that extremely questionable. I raised that before, and I raise it again. I just do not understand how a committee can say that it is studying a very important subject matter that has to do with the future of Quebec and the future of Canada, without at least taking the committee to Quebec to hear what witnesses there have to say about it.
I have put forward some of these questions in very quick and summary form. If I could come to a conclusion, I would have to say, honourable senators, that we are moving this committee along, and we are rushing this issue to a conclusion. I think it is hasty. I think it is unnecessary. There is absolutely no reason for it in the world. The House of Commons does not want to return, but they never want to return, or at least I have got that impression. There is absolutely no reason in the world why this committee cannot continue to study this bill in the next few weeks or months. It is not pressing. There is absolutely no urgency whatsoever. The chairman, the government, the minister, and the bill's supporters on this committee, of which I am not one, have not been able to give us a single good reason why this bill should be moved hastily along.
I think it is important to differentiate between principles and interests, but there is nothing in this bill that demands that it be hurried or be moved hastily along.
The Chairman: Thank you, Senator Cools.
Senator Cools: I could go on.
The Chairman: You have had 15 minutes.
Senator Cools: However, I could go on for more.
The Chairman: I am sure you could, but I think you have made your case eloquently.
Senator Cools: Very well. The larger point, honourable senators -- and I say this with all seriousness -- is that this bill is very unique. The Senate has never had to deal with such a bill. It may not bother certain senators to vote to exclude the Senate, but it bothers some of us. It seems to me that if, as you say, and as the minister says, this bill is so important to the well-being of Canada, then certainly we should give it the quality of time and study that it deserves.
Madam Chairman, I would like to say that I do not consider these crushed, rush hearings of all day on Monday to be adequate to the task. Having said that, I support Senator Lynch-Staunton in his efforts to continue the study of the bill.
The Chairman: Thank you, Senator Cools. We will move now to vote on Senator Lynch-Staunton's motion.
He has moved:
That clause-by-clause deliberation on Bill C-20 be not now proceeded with in order for the committee to continue to hear witnesses; and
That the committee report the bill back to the Senate no earlier than September 12, 2000.
For those senators who are, as Senator Cools has so graciously reminded us, new to some of these proceedings, I might point out that a voice vote or a show of hands is procedurally acceptable in committee votes. If an honourable senator so wishes, we can also have a recorded division. In all cases, an affirmative vote, a negative vote, or an abstention is permissible. If we have a recorded vote, the clerk will call the roll, starting with myself, and then proceeding in alphabetical order.
It is moved by the Honourable Senator Lynch-Staunton that --
Shall I dispense?
Senator Lynch-Staunton: Certainly. We would like to have a recorded voice vote.
The Chairman: The clerk will then proceed to a recorded voice vote.
Senator Fraser: No
Senator Beaudoin: Yes.
Senator Bolduc: Yes.
Senator Chalifoux: No.
Senator Christensen: No.
Senator Cordy: No.
Senator Kenny: No.
Senator Kinsella: Yes.
Senator Kroft: No.
Senator Lynch-Staunton: Yes.
Senator Milne: No.
Senator Murray: Yes.
Senator Nolin: Yes.
Senator Poulin: No.
Senator Sibbeston: No.
Senator Cools: Honourable senators, I am not a member of the committee, but I would like to show --
The Chairman: Honourable Senator Cools, we are in the process of carrying out the voting procedure, which is at the heart of what the Senate is about. Please do not interrupt it.
Ms Heather Lank, Clerk of the Committee: Yeas six; nays nine.
The Chairman: I declare the motion negatived.
Senator Cools: Honourable senators, I would like --
Senator Milne: I move that the committee complete clause-by-clause consideration of Bill C-20.
Senator Cools: I have the right --
The Chairman: It is moved by the Honourable Senator Milne that the committee complete clause-by-clause consideration of Bill C-20.
Senator Prud'homme: However, there was a point of order.
The Chairman: We are voting, Senator Prud'homme.
Senator Prud'homme: I know, but I also know you want a harmonious meeting and harmonious debate for the next two weeks. Senator Cools had already indicated the rules long before. You were right in interrupting her in what she was about to say, because you do not interrupt a vote. The vote having been taken, she was therefore the first to be recognized -- I am sure the rules are clear -- for what, I do not know. I imagine she just wants her name to be registered, as in, if I would have voted, I would have voted like this. I think she is allowed to do that.
The Chairman: Then, Senator Prud'homme, let me put it to the members of the committee. Do you wish to allow Senator Cools to interrupt the voting procedure and make her point?
Senator Cools: That is not usual until the vote is completed. Chairman, you are out of order.
The Chairman: By what rule?
Senator Cools: What rule? By the fact that since I indicated to you what I wanted to do prior to the vote being taken, and the vote having been completed, it was your duty then to turn to me first.
The Chairman: We now have another motion before us, Senator Cools.
Senator Cools: No. It has not been moved properly yet.
The Chairman: Yes it has. It has been duly moved.
Senator Murray: I would like to speak to it.
The Chairman: Senator Murray would like to speak to it.
Senator Murray: Just briefly, the agenda for today for this meeting is clause-by-clause consideration of Bill C-20. A motion that Senator Lynch-Staunton proposed a few minutes ago that we defer clause-by-clause consideration and not report the bill until mid-September has been defeated. I wonder what the significance of Senator Milne's motion is. I do not think it is necessary in order to permit us to get on with clause-by-clause consideration of the bill. The question I raise is whether, by her motion, she is trying to forestall amendments to various clauses that not I, but others, may wish to propose, or whether she is trying to cut off debate on various clauses. What then is the purpose of the motion?
Senator Milne: My notion is to complete clause-by-clause consideration of Bill C-20. I understand we are going to go through it clause by clause.
The Chairman: In my experience, which I grant you is rather more limited than yours, Senator Murray, this is almost a formality by which the process of clause-by-clause consideration is not completed, but launched.
Senator Murray: That is fine -- as long as it is understood that this is all that is implied.
The Chairman: Indeed, but it is a motion that is now before us.
Senator Murray: All right.
The Chairman: All those in favour?
Some Hon. Senators: Agreed.
The Chairman: All those opposed?
Some Hon. Senators: No.
The Chairman: Abstentions?
Senator Kinsella: On division.
The Chairman: I declare the motion carried, on division.
We will go then to a motion on clause 1.
Senator Kinsella: Madam Chair, Beauchesne's allows us to start at the top of the bill. After we stand the title, we could move into the preamble. We will take it from the top.
The Chairman: I have generally seen the preamble carried second last, before the title.
Senator Kinsella: It is discretionary. We wish to go to it first in this instance, if there is agreement.
The Chairman: The committee wishes to go first to the preamble? I see no difficulty in that.
Do I have a motion for the preamble to carry?
Senator Milne: I so move.
Senator Kinsella: Are we going to stand the title first?
The Chairman: You want to stand the title first?
Senator Milne: I move that the title stand.
The Chairman: It is moved by Senator Milne that the title stand. Is it agreed?
Hon. Senators: Agreed.
The Chairman: I declare the motion carried.
Senator Kinsella: With reference to the preamble, honourable senators --
The Chairman: We do not have a motion yet on the preamble.
Senator Kinsella: I was going to move one.
The Chairman: Senator Milne was halfway through her motion.
Senator Kinsella: We were standing the title first.
Senator Milne: Then shall the preamble carry?
Senator Murray: The chairman says that.
The Chairman: Senator Milne, are you moving that the preamble carry?
Senator Milne: I am so moving.
The Chairman: Senator Kinsella wishes to speak.
Senator Kinsella: I wish to speak to it because, honourable senators, I think that we should delete the preamble. The reason is that on page 2 of the bill, the seventh preambular paragraph, which reads, "Whereas, in light of the finding by the Supreme Court of Canada that it would be for elected representatives to determine what constitutes a clear question and what constitutes a clear majority..." et cetera, is not a true statement.
If honourable senators will turn to the reference and the opinion of the Supreme Court, at paragraph 153, the court writes -- and I am quoting:
...it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken.
Honourable senators, we have heard incontrovertible evidence that the Supreme Court, in its opinion, did not say that it would be for elected representatives to determine what constitutes a clear question. The seventh paragraph of the preamble is simply false. For that reason alone, I think that the Senate should delete the preamble.
Second, the preamble is not integral to the bill anyway. There are many schools of thought on the purpose of a preamble. As a result of the failure of that particular paragraph to be congruent with what the court has written, we would do no harm to the bill by simply deleting the preamble. At least from that standpoint, those who find some merit with the bill surely would be able to accept that the preamble being false, nothing is lost by having it deleted.
The Chairman: Senator Kinsella, I am not sure that that motion is entirely in order. I see that Beauchesne's says at paragraph 698(6):
An amendment to delete a clause is not in order, as the proper course is to vote against the clause standing part of the bill.
One could extend that to preambles. However, in any case, if you wish the preamble to disappear, all you have to do is get a sufficient number of the committee members to vote against it.
Senator Cools: How can he do that if the preamble is being tabled as a whole?
The Chairman: Senator Kinsella was proposing that we delete the preamble as a whole.
[Translation]
Senator Prud'homme: I would concur, if I were entitled to vote.
After closely reading all of the whereases, and in particular "now therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons, enacts as follows:", we get the impression that in all of this, no mention is ever made of Quebec as such, but rather of a province. I find the title somewhat excessive. Even if we were to publicly proclaim that the bill does not target Quebec and that it could just as easily apply to British Columbia, Alberta or another province, that is not what I read into it.
Heaven knows that I will do everything I can to convince French Canadians in Quebec, because the rest of the people are already convinced of it, of the merits of the nation of Canada, but in order to do that, we need some ammunition.
I am trying to convince my colleagues to vote in favour of Senator Kinsella's resolution. There are elements to this bill: the whereas as and the title, and the bill. As far as the bill is concerned, I agree with the federal government -- I do not agree with the fact that the Senate is not mentioned. We are entitled to say that any province wishing to take a particular step must follow a particular course of action. I am speaking in general, and not targeting anyone in particular.
[English]
The beginning is specific.
This is the 10th anniversary of the death of Meech Lake. Every 10 years, something happens that involves the fate of Quebec. Some day, Quebec will have had enough and say, "We will put it to you clearly." Those of you who vote for this bill will have to try to convince Quebec to stay in Canada. I will just watch you.
Madam Chair, Senator Lynch-Staunton tried to convey to colleagues the impact of the partisan line. Reflection is important. It took three years to build this country, and within a few minutes we are told that we must proceed quickly.
I was recently visited by a delegation from Denmark. I showed them Mr. Speaker's office, where one may read Seneca's words: "Nothing is well ordered that is hasty and precipitate." That is a new concept. No one speaks about the nuance between the two.
I regret I am not a voting member of the committee, but that is okay. It is fair game.
[Translation]
Senator Beaudoin: Before I vote, I would like some clarification as to the seventh whereas.
[English]
Whereas, in light of the finding by the Supreme Court of Canada that it would be for elected representatives to determine what constitutes a clear question and what constitutes a clear majority...
The Supreme Court refers to political actors at least three times in its advisory opinion, and once to the elected representatives. A preamble like the one before us should be corrected. The court referred to "elected political actors" and "elected representatives" only once, if I am not mistaken. In that sense, there may be something wrong in that paragraph.
Are we voting on the entire preamble or just one paragraph?
The Chairman: First, for purposes of clarification, I found many more than one reference to "elected representatives" in the opinion. However, be that as it may, the motion before us is on the entire preamble: "Shall the preamble carry?"
I would draw to your attention, honourable senators, at page 657 of the new House of Commons Procedure and Practice, which is proving so valuable.
In the case of a bill that has been referred to a committee after second reading, a substantive amendment to the preamble is admissible only if it is rendered necessary by amendments made to the bill.
That is why we normally consider the preamble after the substantive clauses of the bill. However, the committee has decided that we will consider the preamble now.
The motion before us concerns the entire preamble.
Senator Beaudoin: It is "yes" or "no."
The Chairman: Shall the preamble carry or not?
Senator Kinsella: If the ruling from the Chair is that the motion by Senator Milne is in order, namely, that the preamble carry, then I will accept your ruling.
I would like then to move this amendment.
I move that Senator Milne's motion be amended in line 10 on page 2, and that the phrase "political actors" be substituted for the phrase "elected representatives."
Then I think that would be all procedurally in order.
I am simply moving an amendment to the motion of Senator Milne, and I will read my motion again:
That in line 10 on page 2 of Bill C-20, the phrase "political actors" be substituted for the phrase "elected representatives."
The Chairman: Delete the words "elected representatives" and insert the words "political actors."
We have before us an amendment proposed by the Honourable Senator Kinsella. I am not sure that this is procedurally in order, but I will give it the benefit of the doubt and allow this amendment to be put to the committee now.
Senator Lynch-Staunton: Senator Kinsella already has another motion in front of us.
The Chairman: No. I ruled that one out of order, and he accepted that ruling.
Senator Lynch-Staunton: Sitting next to you, I would too.
The Chairman: If you don't watch out, I will get after you too.
Senator Cools: I am a little lost. What is the question that we are currently debating?
Senator Kinsella: The amendment.
The Chairman: Senator Kinsella has proposed an amendment, to substitute the words "political actors" for the words "elected representatives" and their equivalents in French at line 10 of page 2 in the preamble.
Senator Cools: Chairman, if I could get a clarification, we are no longer debating the entire preamble; we are now only debating that proposed amendment?
The Chairman: We are debating a proposed amendment to that.
Senator Cools: To that particular paragraph.
The Chairman: I propose now to put that to a vote.
Senator Cools: Oh, no. We have to debate it.
The Chairman: Shall the amendment carry?
Senator Cools: No, we have to debate it. We have to have some debate.
Senator Lynch-Staunton: Since this is a correction, not a political decision, can anyone here guide us and tell us if we are implicating the Supreme Court properly or not by keeping "elected representatives" in, or whether, as Senator Kinsella says, they really meant the political actors when they talk about determining what constitutes a clear question? We are quoting now, or paraphrasing, the Supreme Court, and it is very important that we have the right wording.
The Chairman: We are voting on the text of a bill that has been brought before us for our consideration. We are now considering a motion in amendment to a motion to adopt the preamble. The motion in amendment would make a change to the text of the bill that is before us.
Honourable senators have heard many witnesses on this precise matter in addition to the weeks of debate in the Senate. We are all familiar with the Supreme Court opinion. I do not believe that we need to delay our consideration on this. I think that opinions of senators on this matter are by now fairly well informed.
Does any other senator wish to take part?
Senator Lynch-Staunton: It is a question of fact. I do not care what they said, as long as we quote them properly.
[Translation]
Senator Nolin: You are saying that you will not hear debate on the sub-amendment.
The Chairman: I did not say that. However, I do not see any need for a drawn-out debate.
Senator Nolin: May those who wish to comment do so?
The Chairman: Yes, within reason.
Senator Nolin: I would like to say something.
[English]
Senator Beaudoin: I do not think the question is as simple as that. Look at the French text.
[Translation]
Senator Bolduc: The two versions are not consistent with each other.
Senator Beaudoin: The French version reads as follows:
...compte tenu du fait que la Cour suprême du Canada a conclu qu'il revient au président élu de déterminer [...]
If the court is wrong, then it is wrong. I do not want to imply that it is wrong if it is not.
Senator Nolin: No one came before this committee to declare: Here is the opinion of the Supreme Court on this portion only of the preamble". No one came to say to us: The Supreme Court found that it was for the actors, the elected representatives, to determine..., not the political actors." No one attempted to convince us otherwise. We were told that both expressions were used and that they had more or less the same meaning, whereas we know that this cannot be so. Clearly, we have not thoroughly debated this matter.
Senator Beaudoin: I fully agree with Senator Nolin. I do not wish to misspeak. When one must make a political decision, one votes according to one's conscience, but when it says that the court has made a determination, then I do not like to be wrong. We are supposed to be able to understand decisions of the Supreme Court.
Senator Bolduc: I am a member of this committee, and until now, I have been fairly reasonable.
[English]
...in light of the finding by the Supreme Court of Canada, it would be for elected representatives...
[Translation]
Can we really say:
...compte tenu du fait que la Cour suprême a conclu qu'il revient aux représentants...
It is not the same thing. One of the two versions is incorrect, although I cannot say which one. The French text carries more weight than the English one. I am familiar enough with both languages to say that.
Senator Beaudoin: He is quite right.
Senator Bolduc: If the two versions are not consistent, then we have a problem. Partisanship aside, I think we really need an amendment.
The Chairman: Partisanship aside?
Senator Bolduc: Yes. I am certain that an amendment is in order. We will try to find a linguist who can provide us with the exact translation. Did the Supreme Court deliver its finding in French or in English?
Senator Beaudoin: It was delivered in both languages.
Senator Bolduc: We will need to look at the text of the ruling in English and in French.
[English]
Senator Cools: Thank you, Madam Chairman. I am struggling with Senator Kinsella's proposal, and I have been looking at this particular paragraph in the preamble. I must say I am puzzled, because I have read that judgment very, very seriously, and, I would admit, very thoroughly, and I can find nothing in that judgment that allows the conclusion that this preamble makes. For example, line 12 or 13 speaks of the House of Commons as the only political institution elected to represent all Canadians. There is nothing whatsoever in the judgment that spoke at all about the House of Commons. However, I would also like to raise a few more points here.
First, the House of Commons is not a political institution. The House of Commons is a parliamentary institution. I noticed that currently, ministers and a lot of individuals are referring to political institutions and parliamentary institutions as synonymous. They are not synonymous at all. As a matter of fact, I think it is a derogatory term even here to refer to the House of Commons or the Senate as political institutions.
The real point I would like to make about the term "elected representatives" is that I think that term is extremely undermining to Canada's constitutional system because the preamble as written -- and I welcome Senator Kinsella's attempt to change it -- would box out the Prime Minister of Canada and the premiers of the provinces, since when last I checked, Madam Chairman, they were not elected positions. It seems to me that it is a well-known fact in our constitutional system that the Prime Minister of Canada and the premiers of the provinces are commissions of appointment, just as senators are. I think, honourable senators, we should pay very careful attention to the fact that if, for example, we were to have a senator as Prime Minister of Canada in future years, we would in fact be limiting his hand and boxing him in very seriously, both in a parliamentary way, and politically across the country, as this would mean that the senator Prime Minister could not have a say in this very, very important question because he would not be an elected representative.
That is twofold. First, a senator is not elected, but neither is the Prime Minister. You just simply cannot dismiss it and say that he is. The Prime Minister of Canada is chosen by Royal Prerogative, but he is just one member of the House of Commons. It is very possible within the Constitution of Canada for someone to become Prime Minister long before he seeks a seat in the House of Commons.
For example, Premier Bouchard himself was --
The Chairman: Senator Cools, we understand that point.
Senator Cools: Essentially, I am saying that the text of the bill belies what is in this preamble, and I do not think that is proper procedure.
The Chairman: Thank you.
Senator Kroft.
Senator Cools: I was not finished and I did not hear senators complaining.
The Chairman: Senator Kroft.
Senator Kroft: The tone of this debate is as if we had stumbled upon a parchment error. This is not something that has come to our attention today. This is part of the substance of a bill that we have had before us for two months. As the Chair has pointed out, these exact points were raised extensively in second reading debate.
If we put our minds to it, we could probably go through most bills and find language that any one of us might consider less than perfect. These points have all been raised and debated at great length. I do not think they are errors, as has been proposed here.
The Chairman: Thank you, Senator Kroft.
I would propose then --
Senator Cools: There is a speaker here.
The Chairman: Senator Sibbeston.
Senator Sibbeston: I am new to this process, but I have dealt with legislation in my earlier career as a government minister in the Government of the Northwest Territories. In my understanding of preambles, particularly in this case, the preamble need not necessarily reflect word for word the clauses in the reference. It is my understanding that the preamble contains the government's view of what is in the reference, in that it is attempting to provide legislation in tune with that.
The seventh preambular paragraph seems to be more accurate than the clauses of the bill itself with regard to the House of Commons, describing members of the House of Commons as elected representatives rather than simply as "political actors."
My main consideration in that regard is the wording of the actual clauses of the bill. The preamble is there to assist people as a prelude to what is contained in the bill itself. I believe that the words "elected representatives" more accurately describe what is in the bill. Therefore, I am satisfied with the wording as is and would not support the amendment.
Senator Prud'homme: If you are unilingual English, you work in English. If you are unilingual French, you work in French. However, if you happen to have a knowledge of both languages, you find these mistakes. What you are saying sets a dangerous precedent. When I was in the House of Commons, I was noted for listening to the interpretation of debates and pointing out discrepancies. Due to that, we avoided a lot of chicanery.
It would be a dangerous precedent not to comment. Our esteemed colleague has good experience, but I do not agree with him. We had better stick to the same version in both languages in the preamble. Otherwise, I will go to one part of the country explaining my version, and others will go to other parts and explain their version. At the end of the day, people who understand both languages will realize that we are debating two different things.
I suggest that we be very careful in this. I always bow to Senator Beaudoin on legal technicalities.
[Translation]
Senator Beaudoin: I note the reference to political actors in paragraph 153. Elsewhere, mention is made of constitutional amendments made by elected representatives, while section 46 of the Constitution states that procedures for amendment may be initiated by the Senate. I certainly cannot oppose this amendment because in my view, the correct expressions is "political actors."
[English]
The Chairman: Let us put the amendment to a vote.
It is moved by Senator Kinsella --
Senator Kinsella: This debate will be concluded. I have a right to speak.
Honourable senators, we have all seen this error since we began debate at second reading. We have raised it in the House; it has been raised here in committee. Now we have to do something about it, which is why I attempted to see whether we could simply delete the preamble, because as Senator Sibbeston concludes, it is only a kind of policy directive, and the pith and substance of the bill is what comes after:
Now, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
This precedes the enactment. It seemed to me that the simplest way of dealing with this very serious error is to delete the entire preamble, which would not affect the bill.
Senator Cools: Great idea.
Senator Kinsella: Surely we have not arrived at a point in the Senate where we can look at an error that is in black and white, and because a whip is being imposed, and notwithstanding that senators have tenure until they are 75, turn our backs on something as prima facie as this.
The Chairman: Thank you, Senator Kinsella.
Senator Cools, followed by Senator Bolduc.
Senator Cools: Chairman, I think the committee is labouring under some very gross and unfortunate disadvantages. It seems to me that when we do clause-by-clause study of a bill, we usually rely on the government sponsor of the bill to answer any questions that members or attending senators may have. It seems to me that we are attempting here to move clause-by-clause study along without explanation from the government about the intention and meaning of every individual word of the --
The Chairman: I understand where you are going, Senator Cools.
Senator Cools: No, you do not.
The Chairman: Nowhere in the rules --
Senator Cools: Maybe you are more gifted than most and can see into people's heads before they speak. I am not that gifted.
The Chairman: Your line of reasoning was crystal clear.
Senator Cools: It happens that way a lot.
The Chairman: Indeed.
Senator Cools: Good. However, the fact is that I have not spoken and I would like to complete my statement.
The Chairman: You have spoken at some length.
Senator Cools: No, not on this point, but you if want, I will really start and then really put you to a challenge to get me to stop. That would be a very big challenge.
The Chairman: Then you would be impeding the work of the committee --
Senator Cools: Yes.
The Chairman: -- as it proceeds to its voting duty.
Senator Bolduc?
Senator Cools: Madam Chairman, I was trying to say that we here should be receiving some explanation from the government side. As the sponsor of the bill, he owes us some explanation.
The Chairman: I understood that that was what you said.
Senator Cools: Perhaps we should have the sponsor of the bill attend the meeting.
Senator Kinsella: Where is he?
The Chairman: Senator Bolduc?
[Translation]
Senator Bolduc: The Senator noted that a preamble merely reflects the intent of a bill. Otherwise, we are misrepresenting the intent of the Supreme Court, which is making a serious statement. I am not an expert in constitutional law, but it would appear to me that "political actors" and "elected representatives" are not one and the same thing. Therefore, I think Senator Kinsella's proposed amendment has considerable merit.
Senator Poulin: Like Senator Bolduc, I am not a constitutional expert either, but I defer to the decision of the Supreme Court on this matter, paragraph 62 of which reads as follows:
...the democratic principle can best be understood as a sort of baseline against which the framers of our Constitution and subsequently, our elected representatives under it, have always operated.
Getting back to what Senator Sibbeston was saying, we are in the process of discussing the context of Bill C-20. I believe the context should be a faithful reflection of the Supreme Court decision, and we have a responsibility, pursuant to our rules, to report to the Senate. First, we can find that the preamble of Bill C-20 is fully respectful of the Supreme Court decision, and second, it will allow those responsible for implementing its provisions -- and I hope never to see that day -- to interpret it according to the context in which it was drafted by the government of the day.
Senator Bolduc: Speaking of the court reference, mention is made of a referendum on secession elsewhere in the reference.
Senator Poulin: This genuinely reflects the spirit and we are discussing the preamble of Bill C-20. I want to stick with this. We can discuss Bill C-20 later.
Senator Bolduc: I disagree. If you take the time to read the text carefully, you will see that it is not at all applicable to the case that concerns us here.
Senator Poulin: We can agree to disagree.
Senator Nolin: Senator Cools has made a legitimate request, in my view. I am not aware of any rule that precludes us from calling a witness -- there are enough people familiar with the Supreme Court ruling. We could even invite one or two witnesses. Let them decide who should come and enlighten us on this subject.
Senator Bolduc: We could ask Ms Dawson. She has already written a number of articles on the subject.
Senator Nolin: Ms Dawson could supply some answers to our questions. I think Senator Cools' request is quite legitimate and that we should go along with her suggestion.
[English]
Senator Poulin: Call the question. We have heard this before.
Senator Cools: The remarkable thing about this bill is that it is not being defended. Herein the statement is "WHEREAS, in light of the finding..." Senator Kinsella says the Supreme Court made no such finding. Therefore we are dealing with possible dishonesty in the bill.
This cannot be sloughed off. You simply cannot run a meeting like this. You must deal with the issues and you must deal with them in debate.
The Chairman: I believe we have canvassed this question quite clearly, Senator Cools.
Senator Lynch-Staunton: I would quote from paragraph 153 of the secession reference. I think it is clear:
However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken.
Here, in the "whereas," it says it would be for the elected representatives. Ce n'est pas la même chose. Someone here is misquoting the Supreme Court, unless they can show me a place elsewhere where the court contradicts itself. Somebody had better clear this up, because we may be misrepresenting the Supreme Court.
[Translation]
Senator Joyal: We have had the opportunity to question witnesses about the definitions of "political actor" and "elected representative" according to the meaning of the seventh whereas in the preamble. The majority of those who had an opportunity to answer the question referred to paragraph 153 of the court opinion which states the following, and I quote:
However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken.
We asked a number of witnesses for their interpretation of this paragraph of the court opinion, and they responded in no uncertain terms that the expression "political actor" was to be taken collectively to include both elected representatives and unelected officials. Consequently, I have to conclude that the seventh whereas is not in keeping with the meaning of paragraph 153. I do not have a vote on this committee, but as I see it, the seventh whereas is not consistent with the expressed will of the court.
[English]
The Chairman: It is moved by Senator Kinsella:
That in line 10 on page 2 of Bill C-20, the words "political actors" be substituted for the words "elected representatives."
All those in favour?
Some Hon. Senators: A recorded vote.
The Chairman: The clerk will proceed to a recorded voice vote.
Senator Fraser: No.
Senator Beaudoin: Yes.
Senator Bolduc: Yes.
Senator Chalifoux: No.
Senator Christensen: No.
Senator Cordy: No.
Senator Kenny: No.
Senator Kinsella: Yes.
Senator Kroft: No.
Senator Lynch-Staunton: Yes.
Senator Milne: No.
Senator Murray: Yes.
Senator Nolin: Yes.
Senator Poulin: No.
Senator Sibbeston: No.
Ms Lank: Yeas 6; nays 9.
The Chairman: I declare the notion negatived.
Shall the preamble carry?
[Translation]
Senator Nolin: I would like to comment further on the preamble. If we look at the third paragraph of the preamble, we read the following:
Whereas the government of any province of Canada is entitled to consult its population by referendum on any issue and is entitled to formulate the wording of its referendum question;
This is very much in keeping with reality. However, on reading clause 1(1) of the bill, we note that the House of Commons may, by resolution, set out its determination on whether the question is clear. Madam Chairman, I submit that the preamble contradicts the text of the bill, and therefore, I support Senator Kinsella's motion. I therefore move that we should vote against the preamble, as it contradicts, or at least paragraph 3 does, the text of the bill.
[English]
Senator Kenny: Point of order, Madam Chair. A non-member cannot make a motion.
The Chairman: Senator Nolin is a member.
Senator Kenny: I beg your pardon.
The Chairman: Senator Nolin, I think I addressed that point earlier with Senator Kinsella. If we do not believe that the preamble should be in the bill, we vote against it when we call a vote on the carriage of the preamble.
[Translation]
Senator Nolin: Did you call for the vote on the preamble?
The Chairman: I did.
Senator Nolin: Before we do that, do we not have the right to comment?
The Chairman: Yes.
Senator Nolin: That is what I was doing, as a member of this committee.
[English]
Senator Cools: Honourable senators, the preamble says some interesting things, and, I would submit, some novel things. For example, the preamble speaks of our government's entitlement. It uses the word "entitled" twice. This is the first time I have ever seen this kind of language about a government entitlement in a bill. Bills usually speak to being "lawful" or "authorized." That is number one.
Number two, I do not know what constitutional or legal authorities support such entitlement. That is my second point. My most important point, however, is bordering on and interfacing directly with Senator Nolin's point. The preamble is directly contradicted by the provisions of the bill, because the preamble says that the government of any province -- of Quebec, which I would question -- is entitled to formulate the wording of its referendum question. It then proposes, as we go forward in the actual provisions, the clauses of the bill. You find that the actual text of the provisions of Bill C-20 negatives the proposition contained in that preamble, because the proposition contained in clause 1 and others of the bill is precisely the opposite. Clause 1 and the other clauses of the bill place limitations, conditions, and qualifications on the so-called "entitlement" that the preamble creates.
I would submit to the committee that on at least one level, you can say it is a contradiction, but I would say to you, honourable senators, and to you, Madam Chair, that the one puts the other into oblivion. Therefore, what you actually have in the bill is clauses nullifying each other. I would submit to you that that is a serious problem and we should try to examine that before we attempt to pass this into law.
The Chairman: Thank you, Senator Cools.
It is moved by the Honourable Senator Milne that the preamble carry. All those in favour?
Some Hon. Senators: Agreed.
Senator Nolin: Recorded vote, please.
The Chairman: The clerk will call a recorded voice vote.
Senator Fraser: Yes.
Senator Beaudoin: No.
Senator Bolduc: No.
Senator Chalifoux: Yes.
Senator Christensen: Yes.
Senator Cordy: Yes.
Senator Kenny: Yes.
Senator Kinsella: No.
Senator Kroft: Yes.
Senator Lynch-Staunton: No.
Senator Milne: Yes.
Senator Murray: No.
Senator Nolin: No.
Senator Poulin: Yes.
Senator Sibbeston: Yes.
Ms Lank: Yeas nine; nays six.
The Chairman: I declare the motion carried.
Senator Milne: I move that clause 1 carry.
The Chairman: It is moved by the Honourable Senator Milne that clause 1 carry. All those in favour?
Some Hon. Senators: Agreed.
Senator Lynch-Staunton: I am not stretching this out, believe me. This will be my last major suggestion. I have notes so I will be as brief as possible.
This afternoon the minister confirmed, in an exchange with Senator Joyal on Nunavut, that the bill was aimed at only one province, Quebec. It was also confirmed in his quote from Roger Gibbins of the Canada West Foundation. If we agree with him on that, why do we not just say so in the bill? This bill is based on the opinion of the Supreme Court in the Quebec Secession Reference. In the first part of the preamble there is a reference to the opinion of the court that the National Assembly of Quebec cannot effect secession from Canada unilaterally.
How better to confirm what we all want, which is the confirmation in whatever way of the indivisibility of this country, than by excluding all the provinces and territories from the bill except for Quebec? The only province affected by this bill is Quebec. Had it not been for two referenda and the constant debate in the assembly on the future of that province within Canada, this bill would be unnecessary. I think the other provinces and territories might feel a little tainted by the fact that they would be included in the possibility of a secession movement that no one wants. Why not just rule them out completely, exclude them, and put in Quebec only? At the same time, the bill would identify at which province this bill is aimed, and perhaps give it a little more teeth.
I have, Madam Chairman, amendments which cover all clauses and they simply read, where appropriate, at each line where it says "province" that the words "province of Quebec" be substituted. In effect, if that is accepted, the "whereas" will need to be amended accordingly, and the bill would be aimed formally and legally exactly where it should be aimed, at the province of Quebec, and we take it from there.
The Chairman: Can you propose them as a single amendment?
Senator Lynch-Staunton: I would propose for clause 1, and depending on the disposition of that amendment, I would propose for clause 2 and clause 3. I am only doing clause 1 for the moment, but I have also prepared them for clause 2 and clause 3, and I am arguing for all three clauses, so I will not need to repeat the same argument.
The Chairman: Could you give the clerk your amendments for clause 1, Senator Lynch-Staunton?
Senator Lynch-Staunton: Thank you.
Senator Prud'homme: I found something that to me means something totally different in English and French.
The Chairman: It is moved by Senator Lynch-Staunton:
That wherever the word "province" appears in clause 1 of Bill C-20, that that word be replaced by the words "province of Quebec."
That would occur in lines 35 and 39 of page 2; line 10 twice; line 15 twice; lines 20, 21, 25, 28, 29, and 35 of page 3; and lines 3, 8, and 9 of page 4.
Senator Lynch-Staunton: If I may, that is only in the English version. It may not be the same lines in the French version.
The Chairman: With the corresponding changes to the French version.
Senator Lynch-Staunton: Not the same line numbers.
The Chairman: Forgive me. I have the English page reference in front of me.
All those in favour of the amendment?
Senator Murray: I think there is a lot to be said for what Senator Lynch-Staunton has proposed. This bill contains the ludicrous concept that the only permanent part of Canada is perhaps the northern territories and the lands reserved for Indians. In the rest of the country, all the provinces can come and go as they see fit. They are given, if not a right to secede, certainly a right to have a referendum on secession that, if passed, would require all parties to negotiate. I think that Senator Lynch-Staunton is well advised to try to focus this bill on Quebec, which is the only province that this bill is concerned with. The minister and various witnesses have reminded us of that today.
I support the amendments proposed by Senator Lynch-Staunton.
Senator Cools: There is a principle in legislative drawing that one should employ, wherever possible, words that indicate the express, plain meaning and intention of the piece of legislation. It seems to me that the minister has told us very clearly today, with absolutely no hesitation or equivocation, that this bill is aimed at one province only, Quebec. If the minister has said so, and the bill was drawn and drafted under his watch, it seems to me that we should make sure that the bill says exactly what the minister told us it was intended to say. In other words, the bill should say what it means and should mean what it says.
Therefore, if "the province" means Quebec, then let it say "Quebec" so there is no dichotomy whatever between the intention and wording of the bill.
The Chairman: Shall the sub-amendment carry? Shall the amendment carry?
[Translation]
Senator Joyal: I would remind my colleagues that pursuant to section 35 of the Interpretation Act, when the word "province" is used in an act of the Parliament of Canada, in regulations or in any other statutory instrument, the word shall be taken to include the Yukon, Nunavut and Northwest territories. This is consistent with the meaning of the Interpretation Act and no witness has argued to the contrary.
The Chairman: That is an interesting point.
[English]
Shall the amendment carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: Recorded vote? The clerk will proceed to recorded vote.
[Translation]
Senator Beaudoin: Mention was made of Nunavut. Did only one witness suggest that a territory might move to secede? I am familiar with section 35. A province includes a territory, but a territory is not a province. I fail to see how a territory could secede. That would be a problem.
[English]
Senator Cools: I think Senator Joyal has raised a very profound and interesting point. If Senator Joyal is right, it of course affects the nature of the amendment that Senator Lynch-Staunton is making. Perhaps Senator Lynch-Staunton should have a moment to reconsider the exact wording of his amendment, or at least, as chairman of the committee, you should check whether or not Senator Joyal's comments are correct concerning the Interpretation Act and the meaning of the word "province." These concerns are very important.
Senator Lynch-Staunton: The point of the amendment is to limit the bill's impact on the one province which, on occasion, decides it wants to change its association with the rest of the federation. That is all there is to it. I agree with Senator Joyal that "province," under the Interpretation Act, includes the territories. Thus, the territories and the other provinces would be excluded from this act and because of this, 90 per cent of this nation would be indivisible.
The Chairman: The clerk will now proceed with the recorded vote.
Senator Fraser: No.
Senator Beaudoin: Yes.
Senator Bolduc: Yes.
Senator Chalifoux: No.
Senator Christensen: No.
Senator Cordy: No.
Senator Kenny: No.
Senator Kinsella: Yes.
Senator Kroft: No.
Senator Lynch-Staunton: Yes.
Senator Milne: No.
Senator Murray: Yes.
Senator Nolin: Yes.
Senator Poulin: No.
Senator Sibbeston: No.
Ms Lank: Yeas, six; nays, nine.
The Chairman: I declare the motion negatived.
It is moved by the Honourable Senator Milne that clause 1 carry.
Senator Prud'homme: My colleague Senator Bolduc and I have discussed subclause 1(2).
[Translation]
Would you look closely at section 1.(2)?
[English]
Where the thirty days referred to in subsection (1) occur, in whole or in part, during a general election of members to serve in the House of Commons, the thirty days shall be extended by an additional forty days.
At least, if you take that version. There is a debate with Senator Nolin. Even the dictionary does not help.
[Translation]
The French version reads as follows:
S'il coincide, en tout ou en partie [...] le délai mentionné au paragraphe (1) est prorogé de quarante jours.
Is the meaning the same in the English version? Should the word "prorogé" not read "prolonger"? Is there not a problem with "prorogé de 40 jours additionnels"?
Senator Beaudoin: I do not think that this is a mistake.
Senator Prud'homme: That is what I want to know. According to the first definition in Le Petit Larousse, "proroger" means "reporter à une date ultérieure." However, according to the second definition, in the field of constitutional law, "proroger" means "prolonger les fonctions d'une assemblée délibérante au-delà de la date légale; suspendre et fixer à une date ultérieure les séances d'une assemblée." Are you satisfied that this in fact means "extended by an additional forty days"?
Some Hon. Senators: Yes.
Senator Beaudoin: Personally, I would have used the word "prolongé."
Senator Prud'homme: So would I.
[English]
The Chairman: Shall clause 1 carry? All those in favour?
Som Hon. Senators: Yes.
Som Hon. Senators: No.
The Chairman: Recorded vote? Will the clerk proceed to recorded vote, please?
The Chairman: Yes.
Senator Beaudoin: No.
Senator Bolduc: No.
Senator Chalifoux: Yes.
Senator Christensen: Yes.
Senator Cordy: Yes.
Senator Kenny: Yes.
Senator Kinsella: No.
Senator Kroft: Yes.
Senator Lynch-Staunton: No.
Ms Lank: The Honourable Senator Milne.
Senator Milne: Yes.
Senator Murray: Nay.
Senator Nolin: No.
Senator Poulin: Yes.
The Chairman: He is not in his seat.
Ms Lank: Yeas, 8; nays, 6.
The Chairman: I declare the motion carried.
Senator Milne: I move that clause 2 carry.
The Chairman: It is moved by the Honourable Senator Milne that clause 2 carry.
All those in favour will please say --
Senator Kinsella: May we have a recorded vote, Madam Chair?
The Chairman: Will the clerk please proceed to a recorded vote?
The Chairman: Yes.
Senator Beaudoin: No.
Senator Bolduc: No.
Senator Chalifoux: Yes.
Senator Christensen: Yes.
Senator Cordy: Yes.
Senator Kenny: Yes.
Senator Kinsella: No.
Senator Kroft: Yes.
Senator Lynch-Staunton: No.
Senator Milne: Yes.
Senator Murray: No.
Senator Nolin: No.
Senator Poulin: Yes.
Ms Lank: Yeas, 8; nays, 6.
The Chairman: I declare the motion carried.
Senator Milne: I move that clause 3 carry.
The Chairman: It is moved by the Honourable Senator Milne that clause 3 carry.
Senator Murray: I have an amendment to propose to clause 3 of the bill.
Let me begin by saying for the record what I have already said at second reading. I am opposed in principle to this bill. I cheerfully acknowledge, therefore, that there is something inherently contradictory in my lending myself to efforts to improve it. Nevertheless, there is a real possibility that the bill will be passed. Therefore, my support for or advocacy of various amendments is what is called a damage control exercise.
In that respect, I want to express my dismay that the government itself has not, after the representations that have been made and the evidence we have heard, agreed to a further amendment with regard to the rights and the role of the aboriginal peoples of Quebec in this process. I know -- we all know, I think -- what the constitutional provision is in sections 35(1)(a) and (b). In the event of any amendment to section 91.24 or to section 25 of the 1982 Constitution, or to the amending formula, it requires that any amendment touching on the rights of the aboriginal peoples of Canada would require a constitutional conference with their representatives invited to participate in the discussions on that item.
When Bill C-20 was before the House of Commons, the government received three proposals for amendment relating to the aboriginal peoples of Canada. The government accepted two of those amendments, the two which, in effect, provided that the aboriginal peoples would be one of the several focus groups that would be listened to, like the Senate, the provinces and others, if they produced any formal resolutions concerning the clarity of the question or the clarity of the majority.
The government refused an amendment. It declined to go forward with an amendment that would have guaranteed the aboriginal peoples of Quebec a seat at the negotiating table. I have said here before, and I repeat, that in my humble opinion the aboriginal peoples of Quebec cannot have their status vis-à-vis the federal Crown and Parliament changed without their consent. I do not care if the Parliament of Canada and 10 provinces agree to it. I do not think that the proposition that the aboriginal peoples of Quebec could simply be transferred to the jurisdiction of some new foreign country, the new republic of Quebec, is defensible. I think their consent is necessary and required.
The minister has come close to acknowledging that; but he cannot bring himself to say it. Indeed, he explicitly avoided the question by taking refuge in the advisory opinion of the court:
[Translation]
"The court did not state it, and therefore, neither can I."
[English]
That was the statement he made to us on May 29.
I am aware also -- and let me anticipate the argument -- that Grand Chief Fontaine has indicated that he would not allow this to stand in the way of his support for this bill. However, the representatives, the leaders of the aboriginal people in Quebec, the people who will be most directly affected, take quite a different point of view. Indeed, they are threatening to contest the bill in court. Mr. Moses said:
Currently, the James Bay Cree people are being confronted by one of the most colonial actions any people could ever experience. A government in Quebec claims it can transfer us like a herd of cattle into a new country. The federal government, our so-called "fiduciary," is in effect collaborating in this ruthless process.
That is his statement, and it is a very strong one.
I think we can correct this -- I hope we can correct it -- with a simple amendment to clause 3(1) of this bill. I am sorry that I do not have copies to circulate to members of the committee, but I think you will have no difficulty understanding it. I will read the clause as it is now it is now proposed. It states:
It is recognized that there is no right under the Constitution of Canada to effect the secession of a province from Canada unilaterally and that, therefore, an amendment to the Constitution of Canada will be required for any province to secede from Canada, which in turn would require negotiations involving at least the governments of all of the provinces...
I would then amend that clause by putting a comma after the word "provinces" and I would add "the representatives of the aboriginal peoples in the province whose government proposed the referendum on secession, and the Government of Canada."
That is my amendment, Madam Chairman.
The Chairman: Let me get this clear, Senator Murray. The clause would then read "The governments of all the provinces," add a comma; "the representatives of the aboriginal peoples in the province whose government has proposed" --
Senator Murray: I said "proposed" not "has proposed."
The Chairman: Proposed?
Senator Murray: Yes, "proposed the referendum on secession."
The Chairman: All right, "proposed the referendum on secession." All those in favour? Discussion?
Senator Prud'homme: Perhaps someone could read it again, slowly, because I want to make sure I understand it in French. Would you kindly reread it?
Ms Lank: It is moved by the Honourable Senator Murray, P.C., by amending clause 3(1) by adding at line 23 on page 5, "The representatives of the aboriginal people in the province whose government proposed the secession." It then continues, "and the Government of Canada". I will reread it: "The representatives of the aboriginal peoples in the province whose government proposed the referendum on secession."
Senator Murray: By way of explanation, Senator Beaudoin, this is the proposed amendment to clause 3(1). The formulation I am using, namely, "the aboriginal peoples in the province whose government proposed the referendum on secession," is a phrase that I simply picked out of clause 2(3). I just borrowed the formulation.
[Translation]
The Chairman: I assume the same holds true for the French version.
[English]
Senator Murray: I could try a running translation, but you do not want that from me.
The Chairman: This is for the purpose of the clerks who are trying to keep up with this.
[Translation]
Senator Prud'homme: Senator Murray, if you take another look at clause 2(3), you will see that the reference is to resolutions based on official statements made by representatives of the aboriginal peoples of Canada. You want to borrow the formulation of these resolutions to introduce an amendment to clause 3(1). Is that correct?
Senator Murray: Yes.
Senator Prud'homme: If you phrase it the same way, you would add "the representatives of the aboriginal peoples of Canada," whereas you mean to say " the aboriginal peoples in the province whose government proposed the referendum on secession." Correct?
Senator Murray: Correct.
Senator Prud'homme: Therefore, we must be careful not to say that clause 2(3) says the same thing, when we refer to the aboriginal peoples of Canada.
[English]
I just want to be sure. I think I understand what you want, but this is not what my colleagues may conclude if they read clause 2(3) attentively. That says all you want specifically, namely, "the aboriginals of the province that..."
Senator Murray: What I am trying to do for greater certainty, if you like, is to ensure a seat at the table of negotiation for the representatives of those aboriginal peoples whose consent, in my opinion, would be required for the amendment.
The Chairman: For what I hope will be crystal clarity here, I think the phrase you were looking for in the French version would come from the French version of clause 2(3) and would read:
[Translation]
Clause 2(3):
The representatives of the aboriginal peoples in the province whose government proposed the referendum on secession...
Senator Murray: Precisely.
[English]
Senator Chalifoux: I have been looking at this. We do have a small aboriginal caucus, but we were discussing this. I have looked and looked. I have looked at the Constitution and what this bill addresses. This bill, in my opinion, addresses two things. One is the clarity of the question, and the other one is the majority.
The rights of the aboriginal peoples of Canada -- and everyone has talked about section 35 of the Constitution -- is already in the Constitution that we fought for in 1982 to ensure that all aboriginal peoples were at the table. I have been looking at this, and clause 3(2) just verifies that, where it says "any changes to the borders of the province, the rights, interests and territorial claims of the aboriginal peoples of Canada, and the protection of minority rights." They must be at the table.
Most of you were there when I questioned some of the constitutional experts on this. A lot of them did not even realize what effects the treaties would have on this, if this happens. It would have to go to international law, according to some of the experts. I strongly feel that the rights of the aboriginal peoples of this country are protected in the Constitution and that they will be at the table. They have the same rights as we have in the Senate to be consulted on the question. They are at the same level. When it comes to the negotiations, they are automatically assured a seat at the table through the Constitution. This is why I cannot support the amendment. In my own layman's opinion, and after reading all this, I feel that the Constitution protects our rights.
Senator Joyal: I want to tell Senator Chalifoux that I would like to share the assurance that there is a guarantee for aboriginal peoples to be at the table, but the special study that the Privy Council has been commissioning under Professor Buchanan came to the opposite conclusion, namely, that section 35 does not clearly guarantee a right to be at the table.
I share with Senator Chalifoux and other senators of aboriginal origin their preoccupation about that, but a study by a noted professor who has paid tremendous attention to that very aspect was published today in the newspaper and he came to the opposite conclusion. I just want to put that on the record.
Senator Sibbeston: In one respect, I am glad that Senator Murray is advancing the cause of aboriginal people. I raised this issue when we had the aboriginal leaders before us a week or more ago. My view at the time, after reading the bill and the Constitution, was that the government has provided for the involvement of aboriginal people as much as is provided under the Constitution. I am satisfied that this bill provides for the involvement of aboriginal people and does not give less than what the Constitution does. Section 35.1 would come into play in the event that there is any effect to the aboriginal peoples' rights in terms of their treaty rights, anything under section 91.24.
Section 35(1) simply provides for a conference to be provided, not necessarily that the aboriginal peoples will have a final say or a veto. That provision is simply a guarantee that they be invited to a conference of the federal government and provinces. When Senator Murray proposes that amendment, I am wondering whether he is really going beyond what is permitted in the Constitution.
I raised this matter the other day with the aboriginal leaders. I asked them if this were not a matter for the future. When aboriginal governments are recognized as a third level of government and as one of the founders of the country, at that time they would be recognized and included in the Constitution, particularly in those sections that provide for amendments.
As I read the Constitution, where the amendment provisions apply, it only refers to the provinces and the federal government. It does not refer to the aboriginal peoples. I hope that some day in our lifetime that will be the case.
If Senator Murray purports to have the aboriginal people involved in the negotiations but not necessarily to have a veto, that would be fine. However, if what he is suggesting here results in some respect in enhancing the role of aboriginal people to have a veto with respect to the constitutional changes that may occur, then he is suggesting means that are not presently provided for in the Constitution.
While in one sense I am happy that Senator Murray is advancing the cause of native people, I am wondering whether it is really permitted under the Constitution. It is perhaps more a matter for future constitutional conferences than a matter to be dealt with at this time.
Senator Kinsella: Quite frankly, I am astonished by the arguments that have been advanced in opposition to Senator Murray's motion and amendment. We have come a long way since the early 1980s in recognizing the right of the aboriginal people to be real participants in the ongoing constitutional development of our country. The paternalistic arguments that have just been advanced to Senator Murray's motion make me feel somewhat caught in a time warp.
Let us look at clause 3(2). It is a negative proposition:
No Minister of the Crown shall propose a constitutional amendment to effect the secession of a province from Canada unless the Government of Canada has...
The bill outlines a certain number of things.
Honourable senators, the principal participants in the lot of what the Government of Canada would be addressing in terms of secession in the Province of Quebec that would affect the Cree is something that speaks directly to their right of self-determination internally.
If we had more courage in this room, we would vote for Senator Murray's amendment. Such an amendment would address the issues that were identified by the Grand Chief of the Crees. The Grand Chief foresaw a constitutional challenge to the bill as it presently stands for excluding them from being real principal participants in the envisaged talks.
I certainly support this motion and amendment.
[Translation]
Senator Nolin: To answer one of Senator Sibbeston's questions, I think the key word here is "participate." Section 35.1 of the Constitution Act, 1982 does not require government participants to invite aboriginal peoples to the table to participate in the negotiations. One might argue that if they are invited, they will participate. One can make that assumption, but the government is under no constitutional obligation to allow them to participate. They may be invited and attend the formal negotiations between the provincial and federal government solely as observers.
The proposed amendment, which is very timely indeed, calls for the participation in the negotiations of those aboriginal peoples directly affected by a province's decision to secede. This is a clear improvement over section 35(b) of the Constitution Act, 1982.
On the subject of treaty rights, the amendment makes no reference to these rights as such. That is the biggest hurdle aboriginal peoples face in the event a province decides to secede. What happens to aboriginal rights? Who will negotiate these rights? Some witnesses appearing before the committee frankly acknowledged that they felt the federal government had betrayed them in the past, whereas it had a duty and obligation to uphold these rights. They were told not to be worried about the future. The federal government would see to things. Aboriginal peoples were deceived. The amendment is a small step in the right direction. They may already be invited to attend negotiations. They have that right. However, they do not have the right to participate in negotiations. This amendment would change that. In my view, it is the least we can do. Therefore, I will be supporting this amendment.
[English]
Senator Chalifoux: Honourable senators, with all due respect to what Senator Nolin is saying, I would point out that years ago we did not have white man's education for most of our people. We now have it. We have wonderful leaders and some of them appeared before this committee.
It will be because of the treaties that were agreed to by the Crown many years ago, including the Cree-Naskapi treaty, that the aboriginal leaders of Quebec will be able to negotiate in the future. That will be resolved by international law. That was stated in one of the presentations.
I have all the faith in the world in our aboriginal leaders across this country. We now have well educated constitutional lawyers, men and women, who will be able to make representation, much better than we ever did in the past.
As I read the Constitution, the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussion on this subject. However, section 35(1) of the Charter of Rights and Freedoms states that the existing aboriginal and treaty rights of the aboriginal peoples of Canada are thereby recognized and affirmed. That is in the Constitution. Therefore, I do not think that an amendment is necessary.
[Translation]
Senator Beaudoin: The word "participate" appears clearly in section 35.1 and in this respect, Senator Chalifoux is perfectly correct. I have no problem with adding this word to clause 3(1) of Bill C-20. Does that make it clearer that aboriginal peoples will participate in the process? Perhaps, but in any case, I do not have a problem with this. However, a bill such as this could not amend the Constitution. We have not mentioned it, but I am always a little perturbed by any apparent minor violations of the Constitution. We cannot amend section 35 of the Constitution Act, 1982 without a formal constitutional amendment. However, I have no problem with adding a word on the end of clause 3(1). In any event, the representatives of aboriginal peoples will, ipso facto, be invited to take part in these discussions. I have nothing further to say on the subject.
[English]
Senator Sibbeston: While I appreciate and commend Senator Murray for wanting to put in another provision with respect to aboriginal rights, I consider, after looking at the provisions, that aboriginal people have guarantees, have a provision in the Constitution, a provision that overrides this bill and guarantees participation and involvement of the federal government, the provinces, and the aboriginal peoples.
I believe that that is the extent to which the Constitution provides for the involvement of aboriginal people. Aboriginal people do not have a veto with respect to any constitutional amendment that is being made, so while it would be nice to have it, I do not think it is necessary because section 35(1) of the Constitution is far-ranging in its effect. There are aboriginal people in all provinces, so their rights are automatically affected. Section 25 provides not just treaty rights but rights that aboriginal people gain through land claim settlements. It is far-reaching. I do not think Senator Murray's amendment is necessary.
Senator Murray: I wish to reassure Senator Sibbeston that I am not proposing, and I do not believe, that the aboriginal peoples and their leaders have a veto over constitutional amendments in this country, nor that there is an obligation to include them in discussions and negotiations, except where their interests are immediately impacted. I have argued the contrary in another life. More recently, I had a fairly vigorous exchange with Ovide Mercredi on that matter, when we had the regional vetoes bill before us in a previous session.
I do say, however, and I hope Senator Sibbeston, Senator Chalifoux and others would agree, that the aboriginal peoples of Quebec, which is what we are talking about, could not simply, without their consent, be transferred out from the jurisdiction of the federal Crown and Parliament to some other jurisdiction.
While it is not for tonight, it would be interesting to speculate on what the Supreme Court of Canada, as presently constituted, would find if that matter were ever put before it. It is also interesting to speculate on what would happen if any Government of Quebec, pursuing a unilateral declaration of independence, sought international recognition of same, with the aboriginal peoples of Quebec one step behind them saying, "We are being highjacked." I think that international acceptance of a UDI under those circumstances would be rather unlikely.
My antenna started to quiver when the government accepted two amendments in the House of Commons relating to the role and rights of the aboriginal peoples of Quebec and of Canada and refused the third amendment, which would have guaranteed the aboriginal peoples of Quebec a seat at that negotiating table. I wonder why, and I have not yet heard a satisfactory explanation for why the government refused that amendment.
Senator Chalifoux has told us, and Senator Sibbeston has mentioned, that there is a provision, which I quoted earlier, in section 35(2), I believe, of the Constitution requiring that the Prime Minister would invite representatives of the aboriginal peoples of Canada to participate in discussions on any item affecting them. Because it is there, why do we need to put it in the bill, ask Senator Chalifoux and Senator Sibbeston. The amending formula in the Constitution provides that the consent of the provinces, either all of them or in various combinations, is required for any constitutional amendment. Yet, that was not enough for the government in this case. It specified, in clause 3(1), that an amendment to the Constitution would be required, which, in turn, would require negotiations involving at least the government of all the provinces. We knew that already, I could argue. Why do they need to put that there?
I think that for the sake of greater certainty we should include there the representatives of the aboriginal peoples of Quebec, or of the province whose government proposed the referendum on secession.
Senator Chalifoux also mentioned clause 3(2), to which I am not proposing an amendment. However, if I were a representative of the aboriginal peoples, I would be less rather than more reassured by the provisions in that clause. It requires that the Government of Canada address in its negotiation, among other things, the rights, interests, and territorial claims of the aboriginal peoples of Canada. What is to address? I would have been much more comfortable and reassured with a more robust statement of what I believe is to be the fact, namely, that in any secession negotiation it is a given that the aboriginal peoples of that province cannot be transferred out from under the jurisdiction of the federal Crown and Parliament without their consent.
I do not want to be more Catholic than the Pope or more aboriginal than our aboriginal friends at this table. Nevertheless, you will understand, on the basis of some experience, why I believe it would be constructive to amend clause 3(1) in the fashion I have suggested, namely, to guarantee that in any negotiation the representatives of the aboriginal peoples in the province whose government proposed the referendum on secession would necessarily be included.
[Translation]
Senator Prud'homme: I will be brief. When it comes to protecting the rights of minorities, I have considered various definitions, but thus far, none has satisfied me. As I understand it, no one is going to have their say in the matter. Everyone will have the right to be consulted, and to sit down at the table, but the only people whose position we are truly interested in hearing are Quebec's French Canadians, of whom I am one.
[English]
The Chairman: Will all those in favour of the amendment so indicate in a recorded vote. Will the clerk proceed to a recorded vote.
Senator Fraser: No.
Senator Beaudoin: Yes.
Senator Bolduc: Yes.
Senator Chalifoux: No.
Senator Christensen: No.
Senator Cordy: No.
Senator Kenny: No.
Senator Kinsella: Yes.
Senator Kroft: No.
Senator Lynch-Staunton: Yes.
Senator Milne: No.
Senator Murray: Yea.
Senator Nolin: Yes.
Senator Poulin: No.
Senator Sibbeston: No.
Ms Lank: Yeas, 6; nays, 9.
The Chairman: I declare the motion negatived.
It was moved by the Honourable Senator Milne that clause 3 carry. Will all those in favour please so indicate.
Senator Kinsella: A recorded vote, please.
The Chairman: Will the clerk please proceed to a recorded vote.
Ms Lank: The Honourable Senator Fraser.
Senator Fraser: Yes. I am in favour of having clause 3 carry.
Senator Beaudoin: No.
Senator Bolduc: Yes.
Senator Chalifoux: Yes.
Senator Christensen: Yes.
Senator Cordy: Yes.
Senator Kenny: Yes.
Senator Kinsella: No.
Senator Kroft: No.
Senator Lynch-Staunton: No.
Senator Milne: Yes.
Senator Murray: No.
Senator Nolin: No.
Senator Poulin: Yes.
Senator Sibbeston: Yes.
Ms Lank: Yeas, 9; nays, 6.
The Chairman: I declare the motion carried.
Senator Milne: I move that the title carry.
The Chairman: It is moved by the Honourable Senator Milne that the title carry.
All those in favour?
Senator Murray: We have the same problem with the title that we had with the preamble, where we purported to rely on the opinion of the Supreme Court of Canada.
I put the question to Senator Kinsella and to my Conservative colleagues. Do we want to challenge the statement that the proposed legislation gives effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada?
The Chairman: Senator Murray, if I might interrupt just to read to you from Marleau and Montpetit.
Senator Murray: Who are they? He is the clerk of another place.
The Chairman: As we know, unless otherwise specified, we do follow. It is stated:
The title may be amended only if the bill has been so altered as to necessitate such an amendment.
I think that would apply in this committee.
Senator Prud'homme: You may say that it is your wish, but I would hate to set a precedent here by saying that that is the way it is done in the House so that is the way it is done in the Senate.
That is a very good book. I bought a copy. It is very intelligent and well written but it has nothing to do with us. If we start using that book, we are establishing precedent for the future to say that that book applies mutatis mutandis to the Senate. That is certainly not our intention. With all due respect to the authors, whom we know very well, they had nothing to do with the Senate.
As chair, you are permitted, as you have done, to make a ruling. If some do not like, they can call you what they want. You can express your views. You can look into Beauchesne or into our red book, but please do not establish a precedent by saying that we should follow what happened in the House of Commons.
The Chairman: Senator Prud'homme, believe me, I would not have quoted from this book had I not previously heard the Speaker do so. I would remind all senators that Beauchesne is also a House of Commons book.
Senator Cools: It is also not very relevant to the Senate. That fact has been raised again and again. The fact of the matter is that you do not want the title amended. That is the real issue. I would submit to you, Madam Chairman, that the real decision is that if there were sufficient votes around this table to carry a vote you would see how relevant that particular citation is.
The Chairman: Undoubtedly, I would indeed see that, since the committee is the master of its own destiny.
Senator Kinsella: Are we on a point of order?
The Chairman: I am bringing this rule to the attention of Senator Murray, who had made some observations. There has been no question on which to rule. No motion has been put. I was contributing to Senator Murray's reflections. We will vote on the title.
Senator Kinsella: I would like to add to this debate, as we are trying to improve Senator Murray's reflections, which is very hard to do. It seems to me that it is not a satisfactory principle to submit to a procedural piece of literature from the other place, notwithstanding that some people argue that the important decisions really should be relegated only to the House of Commons. I simply say for the record that I do not share that view.
Senator Murray: You can always try at third reading.
The Chairman: I would draw your attention to our very own rule 1(1):
In all cases not provided for in these rules...
-- which do not refer to amendments to titles of bills, as far as I know --
...the customs, usages, forms and proceedings of either House of the Parliament of Canada shall, mutatis mutandis, be followed in the Senate or in any committee thereof.
Senator Cools: Perhaps we should change that.
The Chairman: Perhaps but that would be for another committee.
Senator Beaudoin: I wish to speak on this question. The title is this:
An Act to give effect to the requirement for clarity...
Look at what is said next.
...as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.
To me, Bill C-20 is not exactly that. It is a proposed piece of legislation to give effect to the requirement for clarity in the negotiations that should be carried on regarding the clarity and the legality of a secession. In that sense, I cannot vote for that.
The Chairman: You do not have to vote for it. We can put it to a vote and you can vote against it.
Senator Beaudoin: It is a very strange procedure.
The Chairman: Would all those in favour of having the title carried please so indicate?
The clerk will please proceed to a recorded vote.
Senator Fraser: Yes.
Senator Beaudoin: No.
Senator Bolduc: No.
Senator Chalifoux: Yes.
Senator Christensen: Yes.
Senator Cordy: Yes.
Senator Kenny: Yes.
Senator Kinsella: No.
Senator Kroft: Yes.
Senator Lynch-Staunton: No.
Senator Milne: Yes.
Senator Murray: No.
Senator Nolin: No.
Senator Poulin: Yes.
Senator Sibbeston: Yes.
Ms Lank: Yeas, 9; nays, 6.
The Chairman: I declare the motion carried.
Senator Milne: I move that Bill C-20 carry.
The Chairman: It is moved by the Honourable Senator Milne that Bill C-20 carry. All those in favour?
Some Hon. Senators: Agreed.
Senator Kinsella: On division.
The Chairman: I declare the motion carried, on division.
Shall I report the bill to the Senate without amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chairman: I declare the motion carried, on division.
That, honourable senators, concludes our clause-by-clause proceedings.
Honourable senators, I would like to thank all the senators for their truly remarkable, sustained and assiduous work in this committee. You have made my job much easier.
On behalf of all of us, I would like to move a vote of thanks to all of our staff, including the library researchers, who have done such a wonderful job for us.
Senator Cools, you get the last word.
Senator Cools: Honourable senators, all I wanted to say, once again, to Senator Fraser and to the members of this committee is that I would have loved to have been a voting member of this committee. That is an issue that shall die hard with me.
The committee adjourned.