Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 1 - Evidence for October 30, 2002
OTTAWA, Wednesday, October 30, 2002
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:15 p.m., pursuant to rule 88 of the Rules of the Senate, to organize the activities of the committee.
[English]
Ms Marcy Zlotnick, Clerk of the Committee: Honourable senators, as clerk of your committee it is my duty to preside over the election of your chair. I am ready to receive motions to that effect.
Senator Beaudoin: I propose that Senator Furey be chair of this committee.
[Translation]
Ms Zlotnick: Is it your pleasure, honourable senators, to adopt this motion?
Senator Beaudoin: Agreed.
Ms Zlotnick: I declare the motion carried, and in accordance with rule 88, Honourable Senator Furey is elected chairman. I invite honourable Senator Furey to take in the Chair.
[English]
Senator George J. Furey (Chairman) in the Chair.
The Chairman: Thank you very much, colleagues.
Because this is an organizational meeting, it should not take too long. There are a number of housekeeping duties that we must perform. The first is the election of a deputy chair. Could I have a motion for the election of a deputy chair?
Senator Bryden: I move that Senator Beaudoin be deputy chair.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: I would ask for a motion that the Subcommittee on Agenda and Procedure be composed to the chair, the deputy chair and one other member of the committee to be designated after the usual consultations and that the subcommittee be empowered to make decisions on behalf of the committee with respect to its agenda to invite witnesses and to schedule hearings.
Senator Bryden: I so move, Mr. Chairman.
The Chairman: Is that agreed?
Hon. Senators: Agreed.
The Chairman: We need a motion that the committee print its proceedings and that the chair be authorized to set this number to meet demand.
Senator Pearson: I so move.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: May I have a motion for authorization to hold meetings and to print evidence when a quorum is not present, and that pursuant to rule 89 the chair be authorized to hold meetings, to receive and authorize the printing of the evidence when a quorum is not present, provided that a member of the committee of the government and the opposition be present.
Senator Beaudoin: I so move.
The Chairman: Is that agreed?
Hon. Senators: Agreed.
The Chairman: May I have a motion that pursuant to rule 104 the chair be authorized to report expenses incurred by the committee during the last session.
Senator Beaudoin: I so move.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: I now need a motion that the chair, on behalf of the committee, ask the Library of Parliament to assign research officers to the committee, that the chair be authorized to seek authority from the Senate to engage the services of such counsel and technical, clerical and other personnel as may be necessary for the purpose of the committee's examination and consideration of such bills, subject matters of bills and Estimates as are referred to it.
Senator Beaudoin: I so move.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: I now need a motion that the Subcommittee on Agenda and Procedure be authorized to retain the services of such experts as may be required by the work of the committee and that the chair, on behalf of the committee, direct the research staff in the preparation of studies, analyses, summaries and draft reports.
Senator Joyal: I so move.
The Chairman: Is that agreed?
Senator Cools: Many of these motions appear on the surface to be routine, but I am of the opinion that some of them are not that routine. The time is coming soon when we should review these so-called automatic motions.
We should always be clear that, in the chair's direction of the research staff, the interests of committee members must be foremost in the chair's mind. The principles bear repeating from time to time. I served on a committee a couple of years ago where the chairman forbade the researcher to have much to do with individual members of the committee. In other words, members of the committee could not call upon the researcher to perform tasks. It should be noted that the intention here is for the chairman to serve the committee members and the committee as a whole and that committee staff should understand that their primary job is to serve the committee and not solely to serve the chair. There is much confusion in many committees about who the staff work for.
The Chairman: Thank you, Senator Cools.
May I have a motion that, pursuant to section 32 of the Financial Administration Act, authority to commit funds be conferred on the chair, the deputy chair and the clerk of the committee and that pursuant to section 34 of the Financial Administration Act and guideline 3.05 of Appendix II of the Rules of the Senate authority for certifying accounts payable by the committee be conferred on the chair, the deputy chair and the clerk of the committee.
Senator Beaudoin: That has been usual for this committee, as far as I remember, and I so move.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: I now need a motion that the committee empower the Subcommittee on Agenda and Procedure to designate, as required, one or more members of the committee and/or such staff as may be necessary to travel on assignment on behalf of the committee.
Senator Smith: I so move.
The Chairman: Is it agreed, honourable senators?
Senator Cools: I wish to speak to this.
The Chairman: Go ahead, Senator Cools.
Senator Cools: This is another of those motions that seems to be ever so routine. No one ever really knows who the committee members and the staff are who are chosen to go off wherever to represent the committee. No one knows who they are, where they go or when they go. No one knows the process for choosing them. Is this a mystical choice by the chairman? This motion is not routine at all and it merits some discussion by members.
Senator Andreychuk: Just to be consistent, and I am raising it in all committees, I want to be certain that this is travel within Canada only, as there seems to be some misunderstanding as to whose authority it is to authorize travel outside of Canada and whether that is the prerogative of the Senate. I trust that the Rules Committee will be looking into that issue because it has been the subject of some debate in the last session. I have no problem with it, by the way, as long as it is within the work of the committee and within Canada.
Senator Cools: You would need to amend the motion to say that, because the motion currently does not say that, and neither does the motion limit activity to within Canada.
The Chairman: I believe the point being raised by Senator Andreychuk is that the Rules Committee will impose something on that; is that correct?
Senator Andreychuk: It has been raised with them for them to look into. They are still organizing, so I do not know whether they will look into it. It has been raised as something that perhaps they should look into.
Senator Cools: Does anyone know how and when this particular motion made its way into these routine motions? Over the last many years, I have seen these so-called routine motions grow like Topsy. They just keep growing. There was a time when the committee just met and elected a chairman and vice-chairman, and then we were off and running. Perhaps, Mr. Chairman, we may take a look at that and get some background on it. I would be interested, for example, in knowing how many members of this committee and chairs and staff travelled last year to represent the committee. I would like to know what they were representing the committee at.
The Chairman: If it is satisfactory with the committee, we will stand that particular motion, have some further review on it and discuss it at a later date.
Senator Cools: Absolutely.
Senator Beaudoin: I have been on this committee for many years; I think that particular motion is relatively recent. I do not know exactly when it began to appear. However, I will agree with you that perhaps we could stand this until the Rules Committee rules on it. I think a good point has been raised.
Senator Pearson: My recollection is that the last time we organized, it was there, but probably not before. However, we will determine that.
My recollection, from the time that I have been on this committee, is that whenever any kind of travel by the committee or staff here has been required — it is rare and has not happened very often — it has always been brought forward to the committee as a whole.
Senator Cools: Not necessarily.
Senator Pearson: In this committee, it has. I do not know about other committees.
Senator Cools: When the committee travels is a different question from the chairman appointing, say, Senator X or Y or Z to attend a conference wherever.
Senator Pearson: I think that is a good point. In this case, on this committee, the only thing I remember was someone being assigned to attend a meeting in Toronto. That is the only one. It was brought to the committee as a whole for discussion.
Senator Beaudoin: I remember the case of Senator Milne representing the Legal and Constitutional Affairs Committee at a colloquium. We did it by a motion in committee.
Senator Cools: If we do it by a motion in committee, there is no need for an appointment power to delegate the power to the chairman. Perhaps we should leave it.
Senator Smith: I have no objection to that. It is inconceivable how anyone would be adversely prejudiced by the passage of this in the meantime, but I am happy to stand it down.
Senator Baker: It is a similar motion to that passed by the two committees I have been at so far in the past week. This is in all of the committees. It was explained in one of them that, in cases where the committee was not sitting and an emergency arose, the chair would be empowered, on behalf of the committee, if someone had to attend an official function on behalf of the committee in some way. I do not know what the occasion was last year for a Senate committee to have been in that position where the Senate was not sitting, but it was suggested that the chair of the committee be able to approve a senator going on behalf of the committee when the committee was not present to sit and make that decision. That was the example given in one of the other committees yesterday.
Senator Cools: In the instance when the Senate is not sitting or the committee is not sitting, perhaps the authority should say precisely that. I know of gross violations of these practices. Perhaps this may sound odd, but I know one particular chairman who used this to do a lot of things. I think it is a worthwhile matter that committee members may want to travel on behalf of the committee. Any senator can travel anywhere any time in Canada on his or her own initiative. This is travelling at the behest of the committee. It would seem to me that if the committee wanted to nominate someone to attend a function or a conference on its behalf it would be in the interests of the committee that the entire committee should know about it and that all the members of the committee would have a shot at the selection process.
Senator Beaudoin: Another solution would be to leave it to the steering committee, in case of emergency. This is what I would propose, but I am quite open.
Senator Pearson: There is the second part of that motion, which is No. 9, which is since 1998. Therefore, we know the date that it probably came in. It is worth noting that we are really looking at the question of whether a senator is designated as being on official business for the purposes of his or her attendance policy, which is not the same thing as that which is in the first part of that motion.
Senator Cools: As a matter of fact, they should be quite separate motions.
Senator Pearson: There probably should be two motions.
Senator Cools: We did that. We discussed that at the last go-round, and still it has not been separated. It is very important that the motions be clearly done because separate and distinct are being sought. All these are recent innovations.
The Chairman: I believe on the copy that you have, Senator Pearson, the procedure for the day shows that they are not indeed separated. Mine, however, shows them separate. Travel is one, and designation of members is No. 10, which is a completely separate matter.
Senator Cools: According to my notice, No. 10 is travelling and living expenses of witnesses. According to mine, item No. 9 is about travel, and it is in two parts. It very clearly says ``that'' and ``that.'' It is very clearly two, and even the second motion has two subparts.
The Chairman: There is obviously a minor clerical error here because everyone should be working from the agenda I am working from. If you will bear with me, I will read through the one I have. We will take Senator Smith's motion on travel, which is No. 9, and stand it until we hear from the Rules Committee on the issue of whether it is foreign travel or just travel within the country. At that time, we will engage in some discussion on points such as those raised by Senator Cools.
Item No. 10 is a motion that the Subcommittee on Agenda and Procedure be authorized to (1) determine whether any member of the committee is on official business for the purposes of paragraph 8(3)(a) of the Senators Attendance Policy published in the Journals of the Senate on Wednesday, June 3, 1998, and (2) consider any member of the committee to be on official business if that member is (a) attending a function, event, or meeting related to the work of the committee, or (b) making a presentation related to the work of the committee.
May I have a mover for that item number?
Senator Andreychuk, is it agreed?
Senator Cools: Here again we have some of the same problems, Mr. Chairman, because this whole phenomenon of certain committee members making decisions about whether other senators are on official business gets pretty ticklish.
The Chairman: Senator Cools, it would be the steering committee making that decision. If there were any problem with that, I am sure it could be raised at committee at any time and discussed.
Senator Cools: Most members of the committee never get to steering committee meetings, chairman, and most members of committees have no access to steering committee meetings. As a matter of fact, they very rarely, if ever, even see the minutes.
Senator Baker: That is what the steering committee is for. A steering committee makes decisions on behalf of the committee.
Senator Cools: No, the steering committee is supposed to make decisions — to assist the committee to make a decision. That is exactly what it does. Here, their judgment is involved as to whether senators are on official business when they are away or not. That is a substantial decision that far exceeds —
The Chairman: Senator Cools, all senators have access to that particular information on a daily basis, whether a particular senator is in attendance in the chamber or on official business. Any time anyone wanted to raise a question in this committee about a decision of the steering committee with respect to that issue, I do not see any problem with that.
Senator Cools: I do have a problem with delegating power over senators to other senators. That is all. It is just the principle, whether it is in this committee or anywhere else. I just have a few difficulties with that. It seems to me that these kinds of issues need not be handled by motions that stand in perpetuity for the life of the session. It seems to me that such decisions can easily be made on a case-by-case and on an individual basis.
My concern is not so much doing certain things as the routinizing, handing it over to someone else. That is my concern.
Senator Bryden: Unfortunately, I have to leave. I am late for something I must do. However, when you get to item No. 12, would you please consider, where it says the starting time of the regular meetings, including an ending time in there?
I kid you not.
Senator Andreychuk: You were not here last year.
Senator Bryden: The reason I say that, Mr. Chairman, is that all of us try to schedule our time, and many of us have other committees that bump against these and other functions. If we had some indication of the length of time, it would be very helpful in trying to organize our agendas. I am not making a motion. I am not trying to break this up. I know how much fun you are having.
The Chairman: We will raise it.
Senator Cools: I support Senator Bryden on that. Last year, this committee went on endless hours. I do not think we can resolve it right now, but I think it is something we should wrap our minds around.
The Chairman: Just for proper housekeeping, more than anything else, we had a motion from Senator Andreychuk with respect to the Subcommittee on Agenda and Procedures being authorized to determine whether any member of the committee is on official business, et cetera, and we had that agreed to. Your comments came after it was agreed to, Senator Cools.
Senator Cools: I did not hear it called, because I certainly would have constrained myself and not spoken after.
The Chairman: It is fine to hear your comments on it.
Senator Cools: Let the record show, then, that, I abstain.
The question was never properly put.
The Chairman: May I have a motion that pursuant to the Senate guidelines for witnesses expenses, the committee may reimburse reasonable travelling and living expenses for one witness from any one organization and payment will take place upon application, but that the chair be authorized to approve expenses for a second witness, should there be exceptional circumstances.
Senator Pearson: I so move.
Senator Beaudoin: It is usual.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
Senator Beaudoin: I never heard any problems.
Senator Cools: This committee has refused to pay some witnesses. There is a lot of trouble about witnesses in this committee.
Senator Beaudoin: I remember one case.
Senator Andreychuk: This rule was put in because of, I think, another committee, not this one, where there was consistently a request for more than two witnesses from one organization, and Senator Pearson will know which committee I am talking about. To make it fair, we said that all committees would be under that rule, except for exceptional circumstances. Therefore, it relieved the clerks of a great difficulty when five and six witnesses would appear and ask for it.
The Chairman: Thank you, Senator Andreychuk.
Item No. 11 reads as follows:
That the Chair be authorized to seek authority from the Senate to permit coverage by electronic media of the Committee's public proceedings with the least possible disruption of its hearings; and
That Subcommittee on Agenda and Procedure be empowered to allow such coverage at its discretion.
May I have a motion to that effect?
Senator Cools: I so move, Mr. Chairman.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: The times that have been set for this committee to meet are Wednesdays at 3:30 or when the Senate rises, but not before 3:30, in this room, and I think Senator Bryden indicated that he would like to put some time constraints on that in terms of when we finish.
Senator Cools: We cannot do that now. That would take considerable discussion.
Senator Andreychuk: Mr. Chairman, I do not think it is something we should put in the rules. Last year, if one were to ask what time the committee would adjourn, the answer would be five o'clock. Some of us had another committee to attend. On many occasions, we would still be here till nine o'clock, and that presented a difficulty for many. Obviously, if the committee is studying a contentious bill, one understands, if there are witnesses.
As well, on Wednesdays, we must stop at 3:15. There was a tendency on the part of both leaderships to go on, as they did today, beyond 3:15 and 3:30. I think that has to be addressed also.
We are anticipating last year's problems, which may or may not happen.
Senator Cools: Some of these problems can be solved by a small amount of sensitivity and a fair amount of astuteness. Last year, we had situations where times would be set for committee meetings that could last 12 hours. It did not really matter who objected because nobody's opinion was solicited. The real solution to this is not so much to impose a rule that says a committee shall begin and end at a particular time, but for the chairman to engage, I think, in discussing these kinds of matters with members of committees and to make sure that their agreement is secure, every time they are going to set marathon meetings, for example, of 12 hours.
At times last year, meetings would begin at 10 o'clock on Mondays and go right through until whatever time. That is a concern. I would not like to see the committee constrained in such a narrow way, but it would be nice to know that we set off on a footing where there would be a lot of consultation about the setting of committee meetings and the setting of committee times, which was appalling last year.
Senator Beaudoin: I think we have to do something. First, we should have the right to sit at 3:30, whether the house is sitting or not. The experience in the past has been that sometimes we wait and wait, and it is a problem for the witnesses. That is my first point.
My second point — and I do not know if we should make a ruling on it — is that some committees have an ending time also. Perhaps it is not necessary to have a rule on this, but I think we should, because discussions sometimes go on and on. It becomes repetitive. Usually, we have a lot of business to cover; there are difficult problems from time to time. There is no use spending hours on things that we know. It is repetition.
I wonder whether we should not start at a precise time and conclude, except in emergency cases, at a precise time. I put that on the table because it is not logical to discuss for five hours something that is not the end of the world.
Senator Pearson: I support what Senator Beaudoin has said. I am not sure about how to do it technically, but I think we could make it quite clear. We know, for example, that the Thursday meeting has to end for the sitting of the Senate, so that is a precise ending. However, for the Wednesday and other meetings we should always have an agenda that states the start and finish time, and we should try very hard to live with it. Perhaps the steering committee could be asked to comment on this when we start hearing witnesses, after having thought about it.
Senator Baker: Senator Beaudoin believes that we should be permitted to sit while the Senate is sitting. Is it our standing orders that prohibit that?
Senator Joyal: The Rules of the Senate provide clearly that no committee can sit while the Senate is sitting unless it has sought special authorization. If we have a long list of witnesses on a Wednesday, for example, we would have to seek the authorization of the Senate to start at 3:30.
I have been a regular attendee of this committee for the past five years. The problem is when we invite three groups of witnesses to begin at 3:30 and the committee does not start until five o'clock. When there are witnesses waiting to be heard, we cannot simply disappear, because those people sometimes come from far away and they have an important contribution to make to the committee. We cannot just say: ``We are sorry, ladies and gentlemen. We normally sit until 5:30. Thank you and goodbye. Come back another time.''
The major problems we have encountered are in scheduling various groups of witnesses and the starting time. We will know when we will finish if we know when we will start. The problem with Wednesday sessions is that we do not know when we will start. It is an unsolvable problem, without a definite start time on Wednesday. The steering committee must take into account that on Wednesdays unforeseeable circumstances might prevent us from starting at 3:30, unless we seek authorization from the Senate to do so.
Senator Baker: Can Senator Joyal give us the exact wording in the rules that prevents this committee from seeking a permanent time of 3:30?
Senator Cools: It will not happen. Forget it.
Senator Baker: I am just looking for the words. If the words say ``only in extraordinary circumstances,'' if there are extraordinary circumstances you seek special permission. Does it say that you could seek special permission to sit at 3:30 in other than exceptional circumstances?
Senator Andreychuk: The leadership on both sides has undertaken to both caucuses that the Senate will adjourn at 3:15 except in exceptional circumstances. Of course, that gets forgotten in the heat of debate, and they go past 3:30.
We fought back last year by having the committee chairs, at 3:15, requesting leave to sit because they had witnesses scheduled. A bit of give and take is required. We should remind the leadership that they should not sit past 3:30 and our chair should be ready to seek leave to sit while the Senate sits. Once they allow one committee to sit, they must allow all of them, in fairness.
Senator Cools: This has been gone over time and again. The Senate guards jealously its needs for senators to attend to the pressing business of the Senate. It holds that committee meetings should not siphon off members.
The rule is to the effect that committees cannot be sitting while the Senate is sitting. This particular rule has been guarded very jealously. The real problem is that senators only want to attend committee meetings Tuesday, Wednesdays and Thursdays. It is a huge problem, and we have managed it relatively successfully for many years. The enormous concern that the leadership and alert people have had is that they do not want the Senate chamber empty with quorum bells ringing. They do not want the host of problems that they have in the House of Commons.
It is one thing for the House of Commons chamber to be quite empty; it is a different thing here. On the one or two occasions that the quorum bell has rung in the Senate chamber, there has been a huge commotion in the media. People, in their wisdom, or lack of wisdom, have guarded that particular rule, and I do not see that changing in the near future. If it did, soon every committee, not only those that sit on Wednesdays, will be asking for the same exception.
The real problem at the end of the day is that senators only want to sit in committees Tuesdays, Wednesdays and Thursdays. When you start to probe this, you begin to discover that it is a real hornet's nest. Jack Aubry will be on your cases.
Senator Beaudoin: We have only two slots and we have more than one committee. In my opinion, it would be a good thing. Why do we not try it?
Senator Baker: Exactly.
Senator Beaudoin: I would accept four o'clock. Some people are talking about 3:00 until 6:00 in the house. That is certainly too much. I have never heard of a case where it was necessary to do that. This is why I suggest that we have 3:30 or 4:00, but we should try it.
Senator Cools: Years ago, this used to be solved by the choice of witnesses who would appear first at the committee meeting. Witnesses who live in Ottawa or would not be disturbed by a half-hour wait would be chosen to go first.
If some committees want to bring witnesses from the Soviet Union or somewhere, that is a different problem. However, some of these problems have been managed quite well. I can assure you that every committee is currently attempting, for one reason or another, to have its meeting time changed.
I think it would be very wise for us to approach this on a &return;case-by-case basis, seeking the authority case-by-case. Before we set out to do any of these things, let us begin to ascertain at least what our workload is. The evidence is that that bucket load of legislation that we had last year is not coming again this year.
The Chairman: Thank you, Senator Cools. We will meet tomorrow morning at our regular scheduled time in camera. The purpose of the meeting tomorrow is to discuss upcoming business for the committee. It should not take too long. There are several bills we will have to talk about, and there are some ideas that some members of the committee may wish to share with us tomorrow with respect to possible future business. The meeting time is 10:45, and your offices will be notified by e-mail as to which room. Apparently, they need this room for a videoconference. It should probably not take more than an hour.
The committee adjourned.