Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 18 - Evidence, October 31, 2003
OTTAWA, Friday, October 31, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill C-34, to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other acts in consequence, met this day at 10:16 a.m. to give clause-by-clause consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this meeting of the Standing Committee on Rules, Procedures and Rights of Parliament is now met. I will note for the record that we have waited until 16 minutes after the hour for which the committee was called. There are no members of the opposition here. That is most unfortunate because this is such an important matter to all senators on both sides of this chamber.
Senator Hubley: Did anyone call and indicate that he or she would not be here?
Mr. Blair Armitage: Following the usual procedure, each office was canvassed for their intentions.
Senator Smith: Were we advised that they were not coming?
Mr. Armitage, Clerk of the Committee: We had some confirmations that they would be unable to appear. We had some comments that they were not certain whether they would be able to attend.
The Chairman: Which is the norm.
A problem with clause 12 was raised yesterday. I asked our law clerk, Mr. Audcent, to appear before us to speak to that matter.
Senator Smith: Madam Chair, the numbering is difficult. It would be helpful if you told us the page.
The Chairman: It is on page 14.
Senator Smith: Thank you.
Senator Grafstein: Are you referring to proposed subsection 19(1)? Which of the paragraphs?
The Chairman: We are on page 14. We are on clause 12 of this bill. Clause 12, in part, amends section 19(2) of the Garnishment Attachment and Pension Diversion Act.
Mr. Mark Audcent, Law Clerk and Parliamentary Counsel: This issue was drawn to my attention yesterday afternoon, no doubt as a result of your deliberations in the morning during which it was discussed. I was asked if there is a mistake and, if so, whether the errors could be corrected administratively.
Many kinds of errors can occur in a parchment. These include typographical, typesetting, computer, grammar and punctuation, numbering and cross-referencing errors and omitted materials. In the bill before senators, I have come to the conclusion that there is a clerical error that can be corrected administratively. The error is on page 14, line 26 of the bill, in the English language version. The error appears in the first reading copy of the bill in the House of Commons and has come right through Parliament. The provision in question reads:
19(2) In addition to any method of service permitted by the law of a province, service of documents on the Senate, House of Commons, Library of Parliament, office of the Ethics Commissioner or office of the Ethics Commissioner under subsection (1) may be effected by registered mail, whether within or outside the province, or by any other method prescribed.
Obviously, senators, you can see the redundancy where it reads "office of the Ethics Commissioner or office of the Ethics Commissioner." It was suggested that the erroneous words might read "office of the Senate ethics officer."
There are tests that I must apply to see if an error exists and if the error is clerical. I asked myself whether it is a clerical error and the answer is "yes."
As they currently read, the English and French versions of Bill C-34 do not have the same legal effect. The French version provides that:
19(2) En plus des modes de signification prévus par le droit d'une province, la signification d'actes prévue au paragraphe 1 peut se faire soit par courrier recommandé, à l'intérieur ou à l'extérieur de la province, soit de toute autre manière réglementaire.
In the French version, this would include, "service au bureau du conseiller sénatorial en éthique..." which is mentioned in subsection (1) of proposed section 19. I invite you to look at proposed subsection 19(1) of the French version, which reads:
Les actes relatifs à une saisie-arrêt prévue par la présente section doivent être signifiés au Sénat, à la Chambre des communes, à la Bibliothèque du Parlement, au bureau du conseiller sénatorial en éthique ou au commissariat à l'éthique au lieu indiqué dans le Règlement.
Thus, senators, in the French version, service on the "conseiller sénatorial en éthique" — Senate ethics officer — is permitted, whereas in the English version that is not reflected.
Having determined that there is an error because there is a different legal effect, the question is: Which version is in error? Is the English version or the French version wrong? It is clear that the English version is wrong. While the argument that the French version reflects the legislative context better than the English version does is persuasive, it is not determinative. However, the matter is determined because the English version contains a redundancy that is nonsensical, while the French version does contain such an item. The English version repeats "the office of the ethics commissioner" twice whereas the French version does not repeat.
Having determined that there is an error and that the French version is correct and that the English version is incorrect still does not bring us to the point where we can do an administrative correction. It is one thing to say there is an error but it is another thing to ask: Are we clear that there is only one possible correction that could be brought to the parchment? If there is more than one possible correction, then the correction could not be done clerically.
The question now is: Is there only one possible correction consistent with the intent of Parliament? The answer to that in my opinion is "yes." On page 14 at line 26 of the English version, one could substitute "Senate ethics officer" for "ethics commissioner." Only the English version can be corrected, not the French version. Any correction would have to make the defective English version correspond with the remaining correct French version. There is only one possible correction that could make the defective English version correspond to the correct French version: to include "the office of the Senate ethics officer" in the English version. This could be done and the redundancy eliminated by replacing at line 26 the words "ethics commissioner" with the words "Senate ethics officer." This correction reconciles the defective English version to the correct French version and also achieves a consistency of internal meaning in the English version.
The next issue, honourable senators, is that this is a House of Commons bill and not a Senate bill. The House of Commons has passed it in this format. It would be inappropriate for a Senate administrative officer to correct the parchment if the House of Commons were not in agreement. Hence, the next step that I took was to contact the Office of the Law Clerk and Parliamentary Counsel to the House of Commons. The law clerk is away but I was in touch with Mr. Richard Denis, who is the General Legislative Counsel for the House responsible for the legislative side of their office. He advised me as follows:
I believe that, while an amendment could be introduced in the Senate to make the correction, it is within the administrative powers of the law clerks to make the correction. I am authorized to act in this matter on behalf of the Law Clerk and Parliamentary Counsel of the House of Commons and to sign in his name the parchment containing the corrections to Bill C-34.
The offices of the House of Commons, according to their internal rules, are prepared to cooperate with an administrative correction to Bill C-34. The fact that they are prepared to cooperate does not mean, however, that you have to go that way.
That brings us to the final part of my presentation, which is: What are the remedies available to senators? It seems to me that there are three possible courses of conduct available to you. First, you could amend the bill to correct this error in the English version, and I have an amendment ready for you, should you wish to use it. Second, you could instruct the law clerk to correct the parchment. You could give me an instruction to correct the parchment and report that as an observation in your report to the chamber. Third, you could do nothing. It is not an option I particularly favour but if neither House has noticed an error and it comes to our attention before Royal Assent, the law clerks will do a correction. We can do a correction without instructions from the committee or from the chamber. If you do nothing, this is an obvious error and the law clerks would correct it before it went to Royal Assent.
Honourable senators, I hope that is helpful and I am available to answer your questions.
The Chairman: Thank you, Mr. Audcent. Are there any questions, senators?
Senator Joyal: I am happy that Senator Smith gave way to the question that I raised yesterday after reading the bill carefully, as I hope all senators did. It happened some time ago, if I recall, with another bill before the house. It seems that the procedure of drafting and reviewing bills, once there has been debate, is done in such a way that we do not have the perfect result that we would expect to have.
Recently, a Privy Council Office representative sat at this table and tried to explain why it happened. Before we make any decision on which of the three suggested courses of action to take, we could ask the representative of the Privy Council Office to briefly present additional information on how these things happen and the review system of a bill. We do not want to spend a lot of time on this but a brief presentation on this would help. I think it was at this committee or perhaps at the other committee that —
The Chairman: Excuse me, Senator Joyal, I believe such errors happened twice in the Standing Senate Committee on Legal and Constitutional Affairs, once when I was the Chair and once before that when Senator Beaudoin was the Chair. It happened most recently in the Legal Committee when they were debating Bill C-24 on election financing. I believe all of these errors were corrected as parchment errors. I think there is plenty of precedence for this.
Senator Joyal: Exactly. We must question how the system works to allow those errors to happen in the first place, although not regularly, but continually. For the record, if we do not express any views on this, the same system will continue in place. Unless one of us takes his magnifying glass to read every section and do the Benedictine work, we will pass legislation that will be defective.
The Chairman: Mr. Audcent, I believe you want to report on this. We can, of course, call the representative of the Privy Council Office to the table if we wish to, to castigate him in person, but I am sure he considers himself to be castigated.
Mr. Audcent: I certainly cannot speak for the Privy Council but, perhaps, I have information that they might not know. I should like honourable senators to note that the Senate is involved in a joint project with the House of Commons and the Department of Justice, called LIMS — the legislative information management system.
We are currently working on the technology to try and get a common technological base, so that information that is input can be input once and shared between the Houses. In other words, errors will occur, but I want you to know that the administration and staff are working very hard, and cooperation between the Houses is occurring to try to come up with a system that will give you better results.
The Chairman: I would also point out that some members, who have been on the committee longer than I, may recall that, in a previous incarnation, this committee did come up with a report. It died on the Order Paper, but the subject of correcting parchment errors was in that report. It is hoped that some day we can consider the rest of that report and get it passed.
Senator Fraser: In light of what the law clerk has just told us about LIMS, it seems clear that the system will be changing. I would be content with simply reinforcing the message that this committee is more than slightly irritated when errors of this nature occur, and that we trust the system will be improved immediately, if not sooner, so that these things no longer happen.
Moving to the substance of the matter and the alternatives outlined by the law clerk, it seems to me that the cleanest way — and also, if my recollection is correct, the way that fits most with our precedent — would be for us to simply instruct the law clerk to make the necessary correction. If the senators are in agreement, I would so move, Chair.
Senator Grafstein: Point of order, Madam Chair. We are about to vote on a motion, and I am feeling very uncomfortable with the absence of the Opposition. I took a quick look at the rules with respect to quorum. As I recall yesterday, when this question came up in the house — and I have not had a chance to check the record — it was clear that we could take evidence as a committee when we had four as a quorum, and it does not have to be both parties.
However, now we are starting to vote on matters and I want to be satisfied on the record — based on the advice of the law clerk — that we can proceed. I am uncomfortable dealing with a controversial bill, where we know the Opposition has substantive questions about it, and they are not here.
Yesterday, we heard the debate in the Senate, where a point of order was raised by the Deputy Leader of the Opposition in the Senate, asking for an order dealing with this subject matter. Because of the timing, we have not had the benefit of that particular order.
We are now proceeding in the absence of the Opposition, and we are proceeding in the absence of an order of His Honour, the Speaker, dealing with the subject matter. The substance of the Opposition's argument in the Senate was that this meeting was "illegal." I am not sure exactly what the words were but I believe the word was either "illegal" or "improper." In light of that, I think it is important that we get on the record exactly what our status is to vote.
The Chairman: Are you raising this as a point of order, Senator Grafstein?
Senator Grafstein: A point of information for you, Chair. All members of the committee should be enlightened as to what the rules are precisely on this matter as we go forward.
The Chairman: I will read the rules that pertain to this matter, and then you may raise it as a point of order if you wish. rule 89 of the Rules of the Senate says,
A quorum is required whenever a vote, resolution or other decision is taken by a select committee, but any such committee, by resolution thereof, may authorize the chairman to hold meetings to receive and authorize the printing of evidence when a quorum is not present.
The point of rule 89 is that a quorum is required whenever a vote, resolution or other decision is taken by a select committee. Now, if we go back to rule 86(1)(f):
The Committee on Rules, Procedures and the Rights of Parliament, composed of fifteen members, four of whom shall constitute a quorum..."
We have nine members of this committee present here today. We have more than a quorum here today. We are entitled to vote. Not hearing a point of order then, we shall continue with the discussion.
Senator Grafstein: Perhaps to be more formal, can I take it with the assent that I raised it as a point of order and the Chairman has answered the point of order? I want it to be clear that it was not just a comment; that it was, I think, a question of order and you clarified it. We are obviously bound by your ruling at this particular moment, so we will proceed.
I am sorry; I should not say that.
The Chairman: If you want to take that as a ruling, it is non-debatable.
Senator Grafstein: If it is a ruling, then I take it as non-debatable. Thank you, Chairman, for correcting me.
The Chairman: I have Senators Fraser and Smith on the list on this particular point. It may well be that we will have to decide whether we shall deal with this motion now, or do it as we are proceeding through clause-by-clause consideration.
Senator Fraser: You have heard me, Chair, and I made a motion. If the committee prefers to consider the motion at a later date, I am happy to withdraw it, but Senator Smith, I believe, wanted to speak.
Senator Smith: I wanted to speak in support of Senator Fraser's motion. I agree with Senator Grafstein that it is most regrettable that the Opposition, it would appear, has chosen not to attend. I feel badly about that. On the other hand, I do not think we can allow a party to bring Parliament to a standstill. The rules are clear.
As I understand it, the same thing happened in 1991 — only it was the Liberals who did it, and they boycotted a committee. However, they continued with their agenda. I also think it is fair to say that when you look at what this clause is about, we do not have a substantive policy issue at stake here. Clause 19 deals with service of documents. The first clause is the primary one. The second clause says, "in addition to any method of service of documents," which is described there, and then it just provides further clarification. This has to do with the further clarification of service of documents.
When you read it, you see the same officer spelled out twice. The law clerk has walked us through this and described the precedents and the criteria for establishing that there has been parchment error. We have also heard from the appropriate officials in the House of Commons that they are satisfied that that is the case here, and that if we do nothing, they will correct it anyway.
I think that for us to do nothing is sort of an abdication of our responsibility, when it has been highlighted for us, and we have a comfort level that what we are doing is appropriate. Were this some substantive policy issue, we would probably give greater pause to it. However, that is not really the case here, so I think it is appropriate to deal with it now.
Senator Rompkey: I support Senator Fraser's motion, but I wonder if it would be best to hold it until we get to the clause.
The Chairman: We could do that. We could instruct the law clerk now to make the necessary correction. When we come to that clause, we could move that we are passing it as corrected by the law clerk.
Mr. Audcent: That seems fine, Madam Chair.
The Chairman: In that case, I suggest we take the motion right now. Is there agreement with Senator Fraser's motion?
Some Hon. Senators: Agreed.
Senator Joyal: No. I want to have a vote on this. I would appreciate that.
The Chairman: I will call the roll.
Will I do the roll call? Those honourable senators in favour of this motion will please say yea.
Some Hon. Senators: Yea.
The Chairman: Will those opposed to please say nay.
Senator Joyal: Nay.
Senator Grafstein: Please mark my abstention.
Senator Joyal: Please record that I voted nay.
The Chairman: It is not a roll call, so names are not mentioned.
Senator Joyal: Why is it not a roll call? I would appreciate a roll call.
The Chairman: Okay, we will call the roll.
Mr. Armitage: The Honourable Senator Chaput?
Senator Chaput: Yea.
Mr. Armitage: The Honourable Senator Downe?
Senator Downe: Yea.
Mr. Armitage: The Honourable Senator Fraser?
Senator Fraser: Yes.
Mr. Armitage: The Honourable Senator Grafstein?
Senator Grafstein: Abstain.
Mr. Armitage: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Armitage: The Honourable Senator Joyal, P.C.?
Senator Joyal: No.
Mr. Armitage: The Honourable Senator Milne?
Senator Milne: Yes.
Mr. Armitage: The Honourable Senator Ringuette?
Senator Ringuette: Yes.
Mr. Armitage: The Honourable Senator Rompkey, P.C.?
Senator Rompkey: Yes.
Mr. Armitage: The Honourable Senator Smith, P.C.?
Senator Smith: Yes.
The Chairman: The motion is carried with eight in favour, one abstaining and one negative vote. Consider yourself instructed, Mr. Audcent.
Since we have no further witnesses this morning, is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-34, an act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other acts in consequence?
Senator Grafstein: Madam Chair, just a comment, last night, I re-read our interim report on page 2, and there was some controversy on whether it was a report or a document or whatever but I will refer to it as the eighth report. On page 2, it states "while considerable work remains to be done, the members of your committee believe that it would be useful for our colleagues in the Senate and others to have an idea of our current thinking..." Paragraph 3(j) states:
For greater certainty, the committee intends to give further consideration to the relevance of the Privacy Act, the Access to Information Act, and the Federal Court Act to the activities of the Senate ethics officer under the Rules of the Senate.
There are other statements here indicating that the report was a work in progress.
Now we have been told, listening in the Senate, that other witnesses are not going to be called. I think, chairman, we should have on the record an explanation as to the status of those witnesses. It was my understanding there are one or two witness that I had an interest in. I did not contact them; others did. I would like a status report from the staff, as to why we do not have other witnesses available?
Now, I want my understanding to be confirmed one way or the other that appropriate witnesses have not been able to come because of the time frames — they just were not able to change their schedules to attend on the Senate. Now, that is what I get by way of hearsay, but I would like a more formal statement from you, chair, and from the staff, as to what witnesses were called, what their difficulties were, and why we cannot fulfill —as we unanimously agreed to do — consideration on the items that we suggested and to which we agreed unanimously.
Senator Fraser: I believe the clerk has already given us information about witness who could not come, and including a number of them who said they had nothing to add. I wanted to respond to the reference by Senator Grafstein to the interim report of paragraph 3(j) where we said indeed that we intended to give further consideration to the relevance to various statutes to the activities of the Senate ethics officer under the Rules of the Senate of Canada.
The point of this bill and the burden of this committee's deliberation is that the activities of the ethics officer will be carried out under the Rules of the Senate of Canada. This bill has nothing to do with the Rules of the Senate of Canada, nor the ethics officer's activities save the tabling of an annual report, with surely is non-controversial, since we even get to determine when he is allowed to say in the annual report. When we come to consider changes to the Rules of the Senate, to adopt a code, and to include instructions to the ethics officer, then I assume we will take all these various pieces of legislation into account, but it seems to me that they are not relevant to the bill now before us.
Senator Grafstein: I heard what the Honourable Senator said but there is direct reference in the bill to the Privacy Act, to the Access to Information Act, and to the courts. Therefore, to my recall, we have not had or received any evidence as to the impact of those provisions with respect to the bill. As well, it is in the bill; it is stated on the bill. In addition, it obviously has an implication for the officer.
For instance, today, I asked my colleague Senator Downe why I read in the newspapers today, the Ethics Officer, appointed by the Prime Minister was announcing documents or correspondence that he had with the previous minister? I believe that is all based on confidentiality yet it was in the newspapers today.
This is a concern, voted in the chamber. It was a concern raised in the committee, and we have had absolutely no evidence on that. As a matter of fact, yesterday, we had the advantage of excellent evidence by Mr. Robert Marleau, former Clerk of the House of Commons, who is now the interim Privacy Commissioner. When I raised this issue with him, he said that he was not familiar with that and as Privacy Commissioner, he did not have time to pursue that.
For the purposes of the record to say it is not relevant to the bill, it is on the face of the bill, and prima facie, if it is on the bill, it is relevant to the work of the committee.
Senator Joyal: The point I wanted to ask was that, of course, we could make reference in Rules to those three acts. However, if we come to the conclusion that they need to be adjusted to reflect our intention, it will be too late. Rules cannot amend an act. This is the legal reality. We might want in the Rules of the Senate of Canada to establish some context within which the files of the registry might be conceived and might be kept according to the Privacy Act. We might want to define which aspects of the Access to Information Act will be accessible, and which aspects of the federal court, too. However, in the rules, we cannot change those acts. We are limited by the body of the statute.
It is a very important element to be part of our consideration on the basis that it is mentioned in the bill. Even the witness yesterday morning, Mr. Marleau, suggested that we might want to hear from the Privacy Commissioner. He who raised it as something we might want to investigate. It is not something that Senator Grafstein or myself created; it is part of the evidence we heard yesterday.
The Chairman: I would point out to the honourable senators that one of the purposes of clause-by-clause is to clear up the details. We have people here from the PCO who, when we get to that stage in our clause-by-clause deliberations, can be called to the table to answer some questions. Is that agreeable to the honourable senators?
Some Hon. Senators: Agreed.
Senator Grafstein: To be clear, we are not here to hear evidence alone from the government. We are here to hear evidence to give senators an opportunity to not only hear the government's side, but to hear third-party evidence. We will not have the benefit of that. We will not have the benefit of hearing from the key officers who are responsible for these statutes.
Sure, we will hear from whoever you choose to call at this moment, but to my mind, it leaves me again with the deep and uncomfortable feeling that we are flying in the face of our own recommendations to the Senate.
The Chairman: Thank you, Senator Grafstein. In that case, we have a motion before us to proceed to clause-by-clause consideration. Is it agreed, honourable senators?
Senator Joyal: No.
Senator Grafstein: No.
Some Hon. Senators: Agreed.
The Chairman: On division?
Senator Joyal: Can we have a recorded vote, please?
The Chairman: It is a roll call vote.
Mr. Armitage: The Honourable Senator Milne?
The Chairman: Yes.
Mr. Armitage: The Honourable Senator Chaput?
Senator Chaput: Yes.
Mr. Armitage: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Armitage: The Honourable Senator Fraser?
Senator Fraser: Yes.
Mr. Armitage: The Honourable Senator Grafstein?
Senator Grafstein: No.
Mr. Armitage: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Armitage: The Honourable Senator Joyal, P.C.?
Senator Joyal: No.
Mr. Armitage: The Honourable Senator Ringuette?
Senator Ringuette: Yes.
Mr. Armitage: The Honourable Senator Rompkey, P.C.?
Senator Rompkey: Yes.
Mr. Armitage: The Honourable Senator Smith, P.C.?
Senator Smith: Yes.
The Chairman: The vote is eight in favour and two against, with no abstentions. We shall proceed to clause-by-clause.
Shall the title stand postponed?
Some Hon. Senators: Agreed.
The Chairman: It is agreed. Shall clause 1 carry?
Senator Joyal: No.
Some Hon. Senators: Agreed.
The Chairman: On division.
Senator Joyal: No, I would like my abstention be noted, Madam Chair.
The Chairman: Are you abstaining, Senator Joyal?
Senator Joyal: No, I want to vote "no."
The Chairman: By roll?
Senator Joyal: Yes, please. I would appreciate that.
Mr. Armitage: The Honourable Senator Milne?
Senator Milne: Yes.
Mr. Armitage: The Honourable Senator Chaput?
Senator Chaput: Yes.
Mr. Armitage: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Armitage: The Honourable Senator Fraser?
Senator Fraser: Yes.
Mr. Armitage: The Honourable Senator Grafstein?
Senator Grafstein: No.
Mr. Armitage: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Armitage: The Honourable Senator Joyal, P.C.?
Senator Joyal: No.
Mr. Armitage: The Honourable Senator Ringuette?
Senator Ringuette: Yes.
Mr. Armitage: The Honourable Senator Rompkey, P.C.?
Senator Rompkey: Yes.
Mr. Armitage: The Honourable Senator Smith, P.C.?
Senator Smith: Yes.
The Chairman: Clause 1 is carried, with eight in favour and two against.
Shall clause 2 carry?
Senator Joyal: No.
Some Hon. Senators: Agreed.
The Chairman: Senator Joyal, whenever you say "no," can I assume you are calling for a roll call vote?
Senator Joyal: Just for the three first clauses, the ones that deal with the Senate.
Senator Rompkey: Is there a simpler way of doing it?
The Chairman: Can we agree to apply the same vote?
Senator Grafstein: Our objection to these provisions is that they fly in the face of our representations of a previous committee. We do not want to feel that we are inconsistent with government policy. We are flying in the face, we believe, of our own recommendations. Therefore, we are voting "no."
That is my position. Senator Joyal can speak for himself.
For the sake of convenience, we can state, if all the senators agree, that my vote and Senator Joyal's vote will be "no" for the first three items, which deal with the heart of our committee's recommendations.
The Chairman: Honourable senators, is it agreed that we shall apply the eight to two vote — eight in favour, two against — to both clauses 2 and 3?
Hon. Senators: Agreed.
The Chairman: It is agreed. Both clauses 2 and 3 have eight in favour and two against.
If you will permit me, I will attempt to group some of the further clauses. I turn to clauses 4 to 11.
Senator Rompkey: On a point of order, I wonder if, when you are grouping them, you could do as you did before and refer to the page number, so that we are all clear.
The Chairman: I shall be sheafing through vigorously as we go.
Senator Rompkey: The numbers are incomprehensible.
The Chairman: Clause 4 is on page 4. That carries through to clause 11 on page 13. These are the clauses that refer only to the House of Commons.
Shall clauses 4 to 11 carry?
Senator Joyal: On division.
Some Hon. Senators: Agreed.
The Chairman: On division.
Shall clause 12 carry?
Clause 12, at pages 13 and 14, is the one in which we have instructed the law clerk to correct the parchment error in 19(2) on page 14 at line 26.
Senator Smith: Madam Chair, please tell us every page. Are we on page 12 now?
The Chairman: We are on pages 13 and 14. Clause 12 begins at the bottom of page 13. Ignore that "18" below it. It carries on down through to line 40 on page 14.
Mr. James R. Robertson, Principal, Law and Government Division, Parliamentary Research Branch, Library of Parliament: To clarify, the clauses of this bill are the ones in bold type. They are numbered consecutively.
Some people are having trouble with which sections we are dealing with.
Senator Rompkey: The numbers "19" and "13" on page 14 are both in bold type.
The Chairman: As are "12" and "18" on page 13.
Senator Rompkey: That is something we should bring to the attention of the Privy Council.
The Chairman: Certainly. This method of lack of indentation or differentiating the indentation on these things is appallingly difficult to follow.
Senator Grafstein: In the past, we did have a practice of explanation of the various clauses beside it. We have dropped that explanation. There used to be a process of earlier drafting masters where they gave an explanation of the changes so that we could follow not just the numbers but also follow where it was changed and why.
The Chairman: I believe that was in one of the earlier draft versions. It may be what the House of Commons gets before it comes to us, and then it comes to us as passed by them.
Senator Grafstein: It has been in both instances and that practice has fallen in disrepair.
The Chairman: That practice was of tremendous help when going through a bill.
Senator Grafstein: This is unfair to all senators. We try to read this and we cannot even really decide how to vote.
The Chairman: We are starting once again on page 13, clause 12, which refers to sections 18 and 19 of the bill. We have instructed the law clerk to alter 19(2) on line 26 to agree with the French version and with the intent of the entire clause.
Are we agreed, then, that clause 12 carry?
Senator Joyal: On division.
Some Hon. Senators: Agreed.
The Chairman: It is agreed, on division.
Senator Grafstein: Madam Chairman, on that point, can I note my abstention? I am just not clear about that. I do not want to disagree or agree.
The Chairman: Your abstention has been noted, but it is on division.
Senator Grafstein: That is fine.
Senator Joyal: Please add my name on division along with Senator Grafstein, please.
The Chairman: Certainly. Shall clauses 13, beginning at the bottom of page 14, to 42 carry?
Senator Rompkey: Are they all House of Commons?
The Chairman: That is the consequential amendments to other bills. It is both House of Commons and Senate. These are all consequential amendments.
Senator Smith: Clause 42 is on what page?
The Chairman: The last page, on page 32. These are consequential amendments to the Lobbyists Registration Act.
Senator Fraser: We have already done some?
The Chairman: Yes, we have done some. The Garnishment, Attachment and Pension Diversion Act, the Lobbyists Registration Act, the Non-smoker's Health Act, the Official Languages Act, the Parliamentary Employment and Staff Relations Act, the Privacy Act and the RadiocommunicationAct
[Translation]
Senator Gauthier: I have a question about official languages. This bill deals with both Houses of Parliament. On page 20, line 40, the amendment dealing with official languages says that "le conseiller sénatorial en éthique et le commissariat à l'éthique" are federal institutions.
It doesn't say that the ethics officer for the House of Commons is also a federal institution. Is it included or is it simply...? Do you understand what I mean?
[English]
The Chairman: I do not understand, but I understand that our parliamentary library researchers do.
Mr. Robertson: My understanding is that the House of Commons and the Senate are already included in the Official Languages Act. This amendment is designed to ensure that these two new offices will come within the definition of a federal institution. There is a specific reference to the Senate ethics officer because this is a separate officer for the Senate. The House of Commons will not have a separate officer; instead, the ethics commissioner will apply to both the House of Commons and to the Government of Canada for public office-holders. There is no need to specifically refer to any Ethics Counsellor for the House of Commons. This office, which is created by this statute, will apply to the House of Commons.
The Chairman: Are you satisfied, Senator Gauthier?
Senator Gauthier: That is not my problem.
The Chairman: Perhaps before we get into this, we should deal with clauses 13 to 25 before we come to the Official Languages Act, if you wish. It is clauses 13 to 25.
Shall clauses 13 to 25 carry?
Senator Joyal: On division.
The Chairman: Agreed on division, I assume?
Senator Joyal: On division, if I can shout louder.
The Chairman: Okay.
We are now at clauses 26 to 42.
Senator Fraser: I think I understand the point that Senator Gauthier was making. You will see that in the English version, a subparagraph is being amended, and in the French version, it lists the whole definition. I have a recollection that the way the Official Languages Act is written, in the English version, the definitions are set out in numbered subsections; all the institutions are listed separately. In the French version, they are all lumped into one definition, so that, for purposes of clarity, the whole definition is listed in our French version, but does not need to be in the English version. I hope that makes sense.
The Chairman: Does that help you, Senator Gauthier?
Senator Gauthier: That makes sense. I have to add that I am partly responsible for the having the House of Commons, the Senate and the Library of Parliament included in the Official Languages Acts in 1988, as Mr. Robertson will probably verify. I just wanted to make that point.
The Chairman: You have done a great deal for the advancement of the French language in Canada.
Shall clauses 26 to 42 carry?
Some Hon. Senators: Agreed.
Senator Joyal: On division. That is the one dealing with the Privacy Act, as I see at page 23, clause 35.
Senator Grafstein: Again, chairman, this is another example for all honourable senators of lack of information and lack of evidence on this particular point. It is not clear as to the application of the Privacy Act as it applies to the statute and to the work and the activities of the future officers or commissioners. It is just not clear, nor is it as it applies to the Access to Information Act.
The Chairman: Thank you, Senator Grafstein.
Clauses 26 to 42 have carried, on division.
Senator Grafstein: One final comment: There is a reference there to "ethics counsellor." I did not quite understand the explanation given by our staff about the word "ethics counsellor." Why does it appear the way it appears? Perhaps we should get that. The word "ethics counsellor" appears nowhere else in the statute.
The Chairman: I would point out that we have already taken and recorded the vote on this, but if you want an explanation now, that is okay.
Senator Grafstein: No, that is okay. I just wanted to note that.
Senator Smith: Let us get the explanation.
The Chairman: That is what I am just saying.
Senator Joyal: It might be another parchment error. They seem to be frequent.
The Chairman: I am turning to the Library of Parliament people for an answer.
Ms. Margaret Young, Researcher, Law and Government Division, Parliamentary Research Branch, Library of Parliament: Those organizations are institutions that are covered by the Privacy Act. They are listed in the schedule to the act. Currently, the ethics counsellor is listed on that schedule. That means that the Privacy Act applies to that office. However, that office will cease to exist once the new regime comes into place. Since the office will no longer exist, the office is taken out of the schedule.
In terms of the Senate ethics officer and the ethics commissioner, you will notice that they are not going under the Privacy Act nor in a different context — you were raising the Access Act — they are not going into that schedule, either. That means that neither the Access to Information Act nor the Privacy Act will have any applicability to the office of the Senate ethics officer or the ethics commissioner.
Senator Joyal: I agree with that, but I do not see why we have "Ethics Counsellor" and "ethics officer." It seems to me that the ethics counsellor is the translation for the "conseiller en éthique," while, in fact, in the Senate as I read the bill, it is ethics officer.
Mr. Robertson: This is the existing position held by Mr. Wilson. He is the Ethics Counsellor. His office will cease to exist upon proclamation of this bill. Therefore, they have to delete the reference in the schedule to his office.
Senator Joyal: Where, then, in the act does the ethics officer or conseiller en éthique exclude it from the act? We are excluding one that exists already.
The Chairman: There are no others that exist already.
Senator Joyal: No, but once the act is passed, there will be one — that is, if the act is passed.
Ms. Young: You will notice that the act is being amended by striking out the Ethics Counsellor. In other words, he was on the schedule; therefore, he was covered by the Privacy Act. The Senate ethics officer and the ethics commissioner will not be on the schedule. Therefore, the Privacy Act will have no application to them. It is exactly the same situation with the Access to Information Act. If you are not on the schedule — and the Senate ethics officer is not — the act has no applicability to the office.
Senator Grafstein: Just to conclude, that raises my point — namely, that what senators believe was previously covered is no longer covered under the new statute.
Regarding the privacy issue, we are doing the reverse of what was done before as opposed to dealing with the substance of what the senators were dealing with there; we are doing exactly the reverse.
I should like to point that out to honourable senators. That is one of the reasons I am proceeding on division. This has not been thought out.
The Chairman: Thank you.
Clauses 26 to 42 have carried on division.
Shall the title carry?
Some Hon. Senators: Agreed.
Senator Joyal: On division.
The Chairman: Is it agreed that this bill be adopted with appended instructions to the law clerk concerning a parchment error?
Some Hon. Senators: Agreed.
Senator Joyal: I request a vote, Madam Chair.
The Chairman: We want a roll call on this one.
Mr. Armitage: Honourable Senator Milne?
The Chairman: Yes.
Mr. Armitage: Honourable Senator Chaput?
Senator Chaput: Yes.
Mr. Armitage: The Honourable Senator Downe?
Senator Downe: Yes.
Mr. Armitage: The Honourable Senator Fraser?
Senator Fraser: Yes.
Mr. Armitage: The Honourable Senator Grafstein?
Senator Grafstein: Abstain.
Mr. Armitage: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Armitage: The Honourable Senator Joyal, P.C.?
Senator Joyal: Abstain.
Mr. Armitage: The Honourable Senator Ringuette?
Senator Ringuette: Yes.
Mr. Armitage: The Honourable Senator Rompkey, P.C.?
Senator Rompkey: Yes.
Mr. Armitage: The Honourable Senator Smith, P.C.?
Senator Smith: Yes.
The Chairman: It is carried with eight in favour and two abstentions.
Is it agreed that the chair report this bill, with appended instructions to the law clerk concerning a parchment error, at the next sitting of the Senate?
Hon. Senators: Agreed.
Senator Joyal: Abstention.
Senator Grafstein: Abstention.
The Chairman: The same vote will apply; eight in favour and two abstentions.
The Chairman: I thank you, senators. This has been an extremely difficult proceeding for all of us. I just wish to repeat, once again, that I am very, very sorry that Her Majesty's loyal opposition has chosen to boycott this meeting. I think that is deplorable and regrettable.
Senator Grafstein: To be fair, in the absence of the opposition, I do not think it is fair for us, based on the evidence we have, to designate the fact that they are not here as a boycott. That is unfair. It is fair to note that they are not here and that we have no rationale for their absence other than what they said yesterday in the house.
The Chairman: That is true.
Senator Grafstein: To say that is a boycott is not being fair to the opposition.
The Chairman: You are correct, Senator Grafstein. I stand corrected and I withdraw my remarks, if I may, from the official record.
The committee adjourned.