Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 1 - Evidence for October 20, 2004
OTTAWA, Wednesday, October 20, 2004
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:30 p.m., pursuant to rule 88 of the Rules of the Senate, to organize the activities of the committee.
[English]
Mr. Adam Thompson, Clerk of the Committee: Honourable senators, as clerk of your committee, it is my duty to preside over the election of the chair. I am ready to receive nominations to that effect. Are there any nominations?
[Translation]
Senator Rivest: I nominate Senator Bacon.
[English]
Mr. Thompson: Are there any other nominations?
There being none, I will put the question. It is moved by the Honourable Senator Rivest that the Honourable Senator Bacon do take the chair of this committee. Is it agreed?
Hon. Senators: Agreed.
Mr. Thompson: I invite Senator Bacon to take the chair.
Senator Lise Bacon (Chairman) in the chair.
The Chairman: We move to the election of deputy chair.
[Translation]
Senator Ringuette: I nominate Senator Eyton.
[English]
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Congratulations, Senator Eyton.
Our next item is the Subcommittee on Agenda and Procedures. We should appoint a third member to the steering committee today so that we can start our work as soon as possible and present a program of work.
Senator Mercer: It is my pleasure to propose Senator Ringuette.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Senator Ringuette, you are the third member of the steering committee.
Senator Nolin: I move the creation of the Subcommittee on Agenda and Procedure with the proposed power.
The Chairman: Those in favour?
Hon. Senators: Agreed.
Senator Cools: Are we on item No. 3 or item No. 4.
The Chairman: We were on No. 3, and now we are on No. 4.
Senator Cools: The motion here before us says that the other person should be designated after the usual consultation. It is usually done without a vote of the committee.
The Chairman: We are now on to No. 4, motion to print the committee's proceedings.
Senator Mercer: I so move.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Our next item is No. 5, authorization to hold meetings and to print evidence when quorum is not present.
Senator Ringuette: I so move.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: The next item is the financial report. Let me read it:
That the committee adopt the draft first report prepared in accordance with rule 104.
Senator Nolin: We do not have that.
Mr. Thompson: You should have received copies along with your agendas. The report outlines the expenditures from the last session.
The Chairman: Do I have a motion on that?
Senator Nolin: I so move.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Let me read the motion related to research staff:
That the committee ask the Library of Parliament to assign research analysts 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;
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;
That the Chair, on behalf of the committee, direct the research staff in the preparation of studies, analyses, summaries, and draft reports.
Senator Nolin: I so move.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Item No. 8 is the authority to commit funds and certify accounts.
That pursuant to section 32 of the Financial Administration Act, and Section 7, Chapter 3.06 of the Senate Administrative Rules, authority to commit funds be conferred individually on the Chair, the Deputy Chair, and the Clerk of the Committee, and
That, pursuant to section 34 of the Financial Administration Act and Section 8, Chapter 3.06 of the Senate Administrative Rules, authority for certifying accounts payable by the Committee be conferred individually on the Chair, the Deputy Chair and the Clerk of the Committee.
Do I have a motion?
Senator Ringuette: I so move.
The Chairman: Is it agreed?
Hon. Senators: Agreed
The Chairman: No. 9, travel.
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 Rivest: Do we need this? We never travel.
Senator Nolin: It would be wise to have it, in the event that you need it.
The Chairman: Could I have a motion?
Senator Nolin: I so move.
The Chairman: Is it agreed, senators?
Hon. Senators: Agreed
The Chairman: No. 10:
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 an event or meeting related to the work of the committee; or (b) making a presentation related to the work of the committee.
Senator Nolin: I so move.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: No. 11, travelling and living expenses of witnesses:
That, pursuant to the Senate guidelines for witness 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.
Do I have a motion?
Senator Mercer: I so move.
The Chairman: Is it agreed, senators.
Hon. Senators: Agreed.
The Chairman: No. 12, electronic media coverage of public meetings:
That the Chair be authorized to seek permission from the Senate to permit coverage by electronic media of its public proceedings with the least possible disruption of its hearings; and
That the Subcommittee on Agenda and Procedure be empowered to allow such coverage at its discretion.
Senator Nolin: So moved.
The Chairman: Is it agreed, senators?
Hon. Senators: Agreed.
The Chairman: Time slot for regular meetings, No. 13, Wednesday when the Senate rises and Thursday at 10:45 a.m.
Senator Cools: The way the slots of time are set up in the schedules anticipate that, for example, this meeting will go on when the Senate rises and, for example, National Finance will go on at 6:15. What has been happening to this committee in recent years is that this committee will meet when the Senate rises and then continue on until ten o'clock at night sometimes.
In the consideration of this motion, I was thinking that we should begin to set some concept of how long we intend these meetings to last routinely. When we are running a marathon meeting, we have to understand we should not be encroaching into other grounds. Perhaps that motion could read that the meeting should run from roughly when the Senate rises until about six o'clock. You know exactly what I am talking about.
Senator Nolin: Yes.
Senator Cools: In previous years, when there were, say, for example, 10 witnesses, the chairman would schedule the meeting and run through other meetings.
Committees are intended to exist within slots of time.
Senator Nolin: The problem is the availability of witnesses. One witness alone could easily be rescheduled to another time slot. The problem occurs when we have panels of witnesses, and sometimes we need to hear a department before hearing others. That is why we have those conflicts. It is rare that we have to push to ten o'clock at night.
Senator Cools: We have done that many times, Senator Nolin. I could show you the record. I was a member of the National Finance Committee, and many times I had to miss National Finance or was running over there to run back here. It is not open to National Finance to say that we can bring our meeting back from 6:00 to 4:00.
Senator Nolin: Why do not we empower the steering committee to have a look at it?
Senator Cools: I would not like to empower the steering committee.
Senator Ringuette: Is that a motion?
Senator Nolin: We rarely operate on motions. We usually try to find a consensus.
Senator Cools: Quite often a committee has a room and sets boundaries and so on. If a committee, for example, is meeting at eleven o'clock or twelve o'clock, you know that it cannot possibly go past two o'clock.
For some strange reason, this committee has ignored boundaries in the past. It will begin at four o'clock many times and run right through until whatever time. It is very hard for those of us who have to go on to other committees at 6:30. It would not matter if it happened once in a while, but I can tell you I have known periods of time where this went on for months. The record supports me.
Senator Nolin: Perhaps we should refer it to the steering committee. You are raising a valid point that needs to be looked into to see how many times, what type of witnesses we were hearing at that time, what other committees were pushed.
It is important for the committee, if we have to decide something, to have the complete picture of exactly what happened.
Senator Mercer: It is important to remember that we would not go beyond the time unless it was agreed to by the committee at the time.
Senator Nolin: It always happens like that.
Senator Mercer: By virtue of the nature of the responsibility of this committee, which is very important, there will be occasions where we are going to have to go beyond. We need to be flexible to allow us to do that.
Senator Nolin has a good point, that maybe we should ask the steering committee to look at this. I am happy with the time slot for regular meetings as presented.
Senator Cools: What is the regular time? My understanding of a few years ago is that the regular time began at a certain time and ended at a certain time. The time is roughly indicated by the time slots of other committees.
We should set out some rough boundaries at the beginning. When there are exceptions or when the workload is extremely heavy, that is another matter. Committees are not free to set their times to run as long as they want. It involves some consultation on the entire plan for committees, especially for those of us who sit on several committees. You and I know that when we are doing this —
Senator Nolin: That is why the steering committee is the perfect body to look into our time slot. Does the committee stop at 6 p.m. or 7 p.m. — that I do not know?
Senator Eyton: In general, I support the motion on the table to have the subcommittee look at it. There is nothing wrong with targeting time, so that people have some sense of how it can be used. In that context, I will tell you that the best chairman I ever knew was the late Bud Estey. He would start a meeting by looking at everyone and saying, ``We will here for one hour and 45 minutes.'' On the first occasion, he looked at his watch and walked out after that amount of time. Thereafter, everybody was always on time, and used their time in such a way as to accommodate the agenda. People otherwise talk and talk.
If you tell a witness how much time is available and limit the person to that, the committee can still do the job and get it done in a reasonable time. I would be in favour of a targeted situation.
Senator Pearson: While we are scheduled to sit at four o'clock, the meeting does not always begin at four o'clock. Therefore, it is hard to the workload covered in one committee and get to another committee if the house does not actually rise before 4 p.m.
The Chairman: Senator Milne, will you tell us about your experience last year?
Senator Milne: In my experience, this committee, with respect to the Wednesday session, when the Senate rises, was always left to be as flexible as possible. You never know whether the Senate will rise early on Wednesday. If the committee has scheduled witnesses from across the country, they deserve to be heard. Therefore, we did not have an end time. In my experience, the committee did not go to unacceptable lengths very often.
Senator Cools: Once the motion for the Senate to end its business at 4 p.m. on Wednesdays is duly passed and executed, it will be better. For the most part, the Senate adjourns close to 3:30 p.m., unless something out of the ordinary happens. In past sessions, the Senate adjourned reliably early enough.
The point is that some members of this committee are obligated to other committees as well. All of these committees are busy. It is simply not right that one committee decides to run its time on and bar members from attending other committee meetings. Whoever designed the plan of committees understands that there are time slots and we should try to adhere to them.
I understand exceptional circumstances occur when one committee may have to seek leave to move outside the slots. For the most part, it is important to have slots because you cannot be unfair to members of committees. To say that we do not care is unfair. The whole committee system is supposed to operate with a high degree of cooperation, one for the other.
I certainly have other committees on Wednesday evenings, and I dare say those committees are just as important as this committee is. It is not up to this committee to determine that this work is more important than that work.
The Chairman: We are not trying to do that.
Senator Cools: There is supposed to be some discretion. I do not believe that this committee is supposed to begin at four o'clock and continue indefinitely whenever it feels like it. No system is supposed to run that way.
The Chairman: We have not done that, yet.
Senator Milne: Madam Chair, I believe you have a motion on the floor to pass the time slot for the regular meetings. I would suggest that we vote for it, with the understanding that the steering committee will look at it.
Senator Cools: You cannot condition a motion. You cannot amend or condition a motion.
Senator Joyal: The problem does not exist for Thursday because we know exactly when we start and when we have to rise, which is when the bell rings. The problem is with Wednesday only.
The starting and ending times are open on Wednesday. That is where the problem occurs. It is to begin when the Senate rises, as we all know, but, as Senator Cools mentioned, that would normally be at 3:30. However, there have been times when we have started at 5:30 or 6:00 and the witnesses asked Senator Milne whether they should leave and return later. As a result, we were feeling pressured and uncomfortable.
The start time is not fixed formally, even though most of the time it is 3:30. The ending time is not fixed either because if we begin late all the waiting witnesses are bumped one after the other. We are all human beings and after a while we become exhausted. By 7:30 p.m., if we have been in caucus since eight o'clock in the morning, our capacity to question witnesses and listen carefully to their responses wanes. The witnesses deserve to be heard attentively, but our attentiveness diminishes with time.
We cannot say, in principle, that the meeting should end at seven o'clock. One day it might be 7:15 or 7:30. We have to judge that on the basis of the agenda of witnesses. We generally know from one week to the other who the witnesses will be. The steering committee could probably manage what we should expect.
Senator Cools is right. We all suffer from it. How do we address a fixed time slot at this time? We have to leave it open with the understanding that the steering committee will review that when we have a long list of witnesses.
The Chairman: We will see the list of witnesses ahead of time to ensure that we do not sit until ten or eleven o'clock.
Senator Cools: Habitually, this committee hears from as many as 12 witnesses. I have attended meetings where the witnesses appear and there is hardly anybody around the table because they are out at dinner. That is not fair to the witnesses.
The general principle should be that we plan to sit every Wednesday night until a reasonable time and that the committee will meet for two or for three hours. I have sat on this committee for 20 years, so I have a good idea about the problem.
Senator Milne: You have been here, but not as a member of the committee.
Senator Cools: For a few years you folks kept me off the committee, but before that I was on this committee.
Members have a good idea of how long they are expected to sit in on a committee meeting. It was not an open-ended thing. I just put this out as a consideration. You pre-empted it by moving a motion. I was trying to bring forward something for a discussion. I do not even know what the motion is on the floor but that really does not matter.
We should have some idea when we come into these meetings roughly how long we want to sit. Sometimes, there is no clarity on that. I do not believe that that should be left to the call of the chair. I should have an idea going in to a meeting when I can expect to be finished. If we begin at 10:45 a.m., we automatically know that this committee cannot possibly go past the call of the bells. It is that way for many of the committees that are restricted by not only the timing in terms of the sitting of the Senate but also by the fact that the room has to be emptied for another committee to sit. That happens all the time.
We should introduce a rational basis, because otherwise you are just at the hands of the government.
The Chairman: May I add that members of the steering committee have enough common sense not to have you sit until 11 p.m. When we compile the list of witnesses, we can take into account the number of hours that we are able to sit. To put a fixed time on it is difficult.
Senator Cools: I am not suggesting that we put a fixed time on it. We should create some rough expectation of the average length of time this meeting should take. I understand that we cannot make a fixed time.
Senator Nolin: To help us to reach a consensus, item No. 13 is probably ill-written. We are allowed a slot of time. The item is an information item only and no one is asking us to vote on it.
We know what time the meeting begins, but the information stops there. Maybe we should add an end time. Should it be 6:00 p.m., or should it be 6:30 p.m. on Wednesday night? Perhaps the clerk could inform us of the time slot in which we are allowed to sit. That might clear the air for all. As well, the clerk could instruct the steering committee to work within those parameters.
I am not making a motion.
The Chairman: If we put a fixed time to end the meeting, anything could happen. It could go beyond the fixed time by 15 or 30 minutes; we can never be sure. However, it would not be as late as 10:00 p.m. because we have to sit the next morning. We would have to take into account the number of witnesses appearing before us.
Senator Mercer: We need to provide a guideline for the length of time that we would like to sit, but there needs to be flexibility. We may have witnesses brought in from across the country, but we have no idea as to the quality of their testimony until they are sitting down. We may have witnesses from a remote part of the country who have come here at great expense to the committee and to themselves. I would hope that we would not allow an artificial time slot of a two- hour restriction to cause us to miss the opportunity of benefiting from interesting testimony. That extra half hour or so could benefit the committee tremendously in its deliberations.
There are also occasions when legislation before us is of such import that we want to sit longer. The steering committee needs to have the flexibility to give everyone fair warning that we will probably sit on Wednesday night for three hours and not for two hours. We rely on your good judgment and the good judgment of the other two members of the steering committee. We simply need a rough idea and not a rigid time slot.
The Chairman: The consensus here is not to have a fixed time but to try to be reasonable with the time allowed.
Senator Nolin: You heard the concern of Senator Cools.
Senator Cools: That is still on the table. I share all of your concerns, Senator Mercer, and everybody else's concerns, with due respect to witnesses and proper consideration to hear from people. We can say we are as sensitive as others are on some of these issues.
I was talking about the notion that when we come into meetings we should have some idea of how long we are planning to sit. That should be given some thought. I do not want to sit in on marathons that are created because the government does not want to take an extra week or two to study the bill. You and I know that that has happened at other times. Instead of taking and extra two or three weeks to study the bill, 25 witnesses are crammed in, one after the other. When you listen to that many witnesses at the end of the day, it is difficult to remember who said what when it is all over. We should operate in a way that is respectful to witnesses and senators alike.
The Chairman: Our purpose is to hear from the witnesses.
Senator Cools: We are here for all the senators to work.
The Chairman: The members of the steering committee will have enough common sense to make the time to hear the witnesses and, at the same time, to be reasonable with the time allowed to hear the witnesses and to work here in this committee.
Do you agree, senators?
Senator Cools: There is no agreement for anything because it was not a motion.
Senator Milne: I move item No. 13.
Senator Cools: You cannot move it because it is not a motion.
The Chairman: It is Item No. 13 on the agenda. It is information that we give to the senators.
Senator Joyal: Normally, this committee has an exchange of views around the table on the issues that we want to study not related to government bills. They are issues that this committee feels strongly about. Maybe we are not in a position today to take a stand on this, but I raise it as a matter of reflection for us to come back to in the future.
[Translation]
We had begun to look into the notwithstanding clause as it applied to aboriginals and we were not able to complete our study of the issue. This matter, which is mentioned in the report, is still pending before the two Houses of Parliament. If other issues have not been raised in this committee and should in fact be raised, I would appreciate our colleagues making some suggestions. Perhaps we should set aside some time at a future meeting to discuss these proposals. This is an important part of the committee's work for the weeks ahead.
The Chairman: Many bills will be referred to us once they have been adopted in the House of Commons. We could not really get into this today, but there will be a great many bills to consider. Each of you can analyse the situation and think about a specific topic. Subsequently, we will draw up a list of subjects that the committee can discuss. We can then decide what our priorities will be.
[English]
The Chairman: We will have to work on that and see how many bills will come forward. There are many problems that we can deal with here.
Senator Sibbeston: I am aware that the issue of the non-derogation clause was one that this committee had dealt with or was beginning to deal with during the last session. However, I do not see any reference to it in the literature.
The Chairman: It is there.
Senator Joyal: It is under constitutional issues on page 5 in the French version. It should be close to that in the English version.
Senator Sibbeston: Should that be brought forward again for our consideration by the committee in the future?
The Chairman: It could be one item. We will take the time at the next meeting to discuss it further and make priorities.
Senator Cools: I take it that we will have a section of time dedicated to future business and studies. Over the years, many suggestions have come forward for study — and it is interesting that this committee is mandated to look at justice issues. There are many areas of the entire system that have not had a study by the Senate or the House of Commons for years. For example, no one has looked at the National Parole Board for years or at the system of Legal Aid. I remember Senator Callbeck once attempted to bring forward the idea of looking at Legal Aid. These are huge pressing issues. I think the committee would be well served to set aside some time to look at the questions and the studies that should be attempted. Perhaps we could all bring forth our ideas.
The Chairman: We will take the time to do that at our next meeting. We do not have the bills yet.
Senator Cools: When they start, they will come fast and furious.
Senator Milne: Will it be tomorrow morning?
The Chairman: We should have a meeting of the steering committee tomorrow morning to look at the expected bills and to discuss various matters. We will report that to the committee at next week's meeting on Wednesday.
The committee adjourned.