Proceedings of the Standing Senate Committee on
Rules, Procedures and the Rights of Parliament
Issue 4 - Evidence, June 17, 2008
OTTAWA, Tuesday, June 17, 2008
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:35 a.m. to consider the Question of Privilege raised by the Honourable Gerald J. Comeau respecting the consideration of draft reports in committee.
Senator Wilbert J. Keon (Chair) in the chair.
[English]
The Chair: Honourable senators, we are here for consideration of the question of privilege raised by Senator Comeau respecting the consideration of draft reports in committee raised and debated May 28 and 29.
Your steering committee has met and discussed this. It has developed the following work plan: to hear from the two principals, Senator Comeau and Senator Kenny, from Mark Audcent, Law Clerk and Parliamentary Counsel, and from Heather Lank, Principal Clerk of the Committees Directorate. We would then discuss the matter.
If you agree, we will proceed beginning with Senator Comeau.
Hon. Gerald J. Comeau, Senator, Senate of Canada: Thank you, Mr. Chair. If you would not mind, I have prepared some notes that I would like to go through.
On May 29, 2008, in response to my point of privilege in regards to the Defence Committee report passed without a corresponding French copy, I will quote Honourable Senator Kenny's response to my comments:
At that meeting, there was no request by any member of the committee to have a copy of the French version of the report. When the time came to adopt the report, I inquired of the clerk whether there was a French language copy available in the room and the clerk replied, "Yes.'' The committee then proceeded to adopt the report.
The first part of the comment would seem to indicate that there is no requirement to respect the two official languages if a request for such documentation is not made. Later in the chamber discussion, Senator Banks suggested that the transcripts of the in camera meeting could be consulted. I did so, and here is how it went:
Chair: Is there a French copy of the report in the room?
Clerk: There is one. It is not final.
Chair: Let the record show that we have a French copy of the report in the room during the adoption of the report.
There is no transcript of the minutes of the steering committee meeting the next day when Senator Tkachuk requested a French copy of the report. However, it was confirmed to me that it was made very clear at the steering committee that there was no corresponding French version of the English report, which was passed by the committee the previous day. When I refer to corresponding, it means both copies being equivalent.
I have learned that there never was a corresponding or equivalent French version of the report throughout the committee's consideration of the report. There were four meetings: February 2, May 5, May 12 and May 26. At no time was there ever a corresponding French copy of the report. In fact, there was no French report whatsoever at the initial February 2 meeting. There was only an English version.
For emphasis, allow me to repeat the quote made by Senator Kenny on the floor of the chamber on May 29:
. . . I inquired of the clerk whether there was a French language copy available in the room and the clerk replied, "Yes.''
I requested a copy of the French report on May 27, the day after the English report was passed by the committee. I will not go into all the details and the differences between the French and English versions, but allow me to point to a few inconsistencies. I have it here. This is, supposedly, the French copy.
I will not go through all the details of it, but let me note that in Part 4, the English version had 29 pages; the French version had three pages. The conclusion is that the French version does not exist. In committee recommendations, the French version did not exist. These are on top of all the other inconsistencies between the reports.
Senator Robichaud: As a matter of information, you said "supposedly'' you had a copy of the French version.
Senator Comeau: I did not say supposedly.
Senator Robichaud: A few moments ago, you said you had, supposedly, the French copy. I simply want to know why you said "supposedly.'' It either is a copy or it is not.
Senator Comeau: I am referring to what Senator Kenny referred to as the "supposed'' French copy, which is supposed to be an equivalent or corresponding version. The supposed French report was not a corresponding version of the English copy, which is what I am referring to.
Senator Robichaud: Thank you.
Senator Comeau: As an ex officio member of the committee, I then requested a copy of the corresponding French report as soon as it was possibly available. I had that copy brought to me by messenger at noon on Tuesday, June 10, the same day the 124-page report was tabled in the Senate.
The English copy had been in the committee hands since May 26. I considered this to be a direct impediment to my work as a member of the Senate. It was my constitutional right to have a report at the same time as my English- speaking colleagues, not 15 days late and two hours before tabling the report.
If you want to refer to constitutional rights, I think I raised those in my point of privilege. Based on the disregard for my constitutional right, I question even the legitimacy of the report and the process that led to it as presented in the Senate.
The Senate should reject any argument that French is only necessary if it is requested by a senator. In my view, it is out of order to conduct committee business when copies of proposed reports in one language only are before committee members. If we were to accept such an argument, would it not follow that simultaneous translation is necessary only if it is requested by a senator or witness?
This raises other issues. What happens if the whip sends a replacement member to committee? Should it be necessary for the replacement to formally request a document in the other official language?
I say no; that document must be made available without having to make a formal request. It is true that a number of us are fluent in both official languages. However, it has never been a requirement that senators are perfectly fluent in both official languages, nor should it be a requirement.
If francophones have to wait for translation of Senate documents — as happened to me in this case — it places those senators at a disadvantage because English copies have been available to the anglophone members for some time. The francophones have to play catch up once they finally get the translated copy.
In this case, I noted that it was 15 days late and two hours before tabling. This is what happened when I got my copy only two hours before it was tabled in the Senate.
Such documents should be made available at the same time to all members and be made available as the evolution of the report is under consideration. It may be inconvenient to chairs, in this case the Chair of the Defence Committee, and may delay hasty consideration of the reports, but that is a small price to pay for our respect for the two official languages and the obligations of our institution.
One would have thought that my point of privilege might have made an impact on Senator Kenny and made him more sensitive to the whole issue of official languages. Given that the Speaker had found a prima facie case in this case, allow me to show quite the contrary. I will show you a 17-page document sent to committee members on June 4, 2008. The covering page is in French and English, both official languages, but at the end it says: "The translation is not available. We apologize for any inconvenience.''
This was after the prima facie case had been made before the Senate. This is how the francophone members of the committee are sent documents.
Senator Corbin: Could we have copies of that made and circulated to the committee now?
Hon. Colin Kenny, Senator, Senate of Canada: I have not seen it yet, for example.
Senator Fraser: Would it be possible for us to receive a copy of Senator Comeau's statement in case some of our notes are inaccurate as to dates and numbers?
Senator Comeau: I will make those available. They are rough notes but I will make them available for sure.
Senator Kenny: At this meeting?
Senator Comeau: With respect to the official languages, because my document is not translated, I would prefer that it be translated so that it is available in both official languages before I distribute it.
Senator Kenny: With respect, chair, I presume I will be expected to answer to this shortly. To have a copy of it would be of some assistance.
Senator Comeau: With respect, I have always respected the process whereby we make documents available in both official languages. In this case, I have it in two separate versions. I would like to stick to my long-standing tradition.
The Chair: Senator Kenny, we have to comply with Senator Comeau's request. Perhaps some other accommodation can be made later to give you a chance to read and to respond.
Senator Kenny: I am at your service, chair, however you would like to handle it.
The Chair: Okay.
Senator Comeau: This document that I just handed out is about 17 pages long.
[Translation]
Senator Robichaud: This particular document is available in only one language, right? If I understand correctly, it is a committee document?
Senator Comeau: The Senate Standing Committee on National Security and Defence, yes.
Senator Robichaud: It will be provided to us just as it was received from other committee members, right?
[English]
Senator Andreychuk: Yes, as part of our evidence in a committee hearing.
The Chair: Senator Robichaud, are you referring to Senator Comeau's remarks or to the document tabled by the committee?
Senator Robichaud: I refer to Senator Comeau's 17-page document that Senator Corbin asked to have copies made.
Blair Armitage, Principal Clerk, Legislative Systems and Broadcasting, Senate of Canada: At the request of the committee, I have sent a copy out to translation and it will be distributed at this meeting.
Senator Comeau: On the 17-page document, will Senator Kenny blame the clerks again? Perhaps the committee would like to speak to those who have to follow the orders. In my experience over time, I have found that committee clerks do not issue documents in one language only. We might wish to determine whether a direct order had been given that this document be circulated in English only.
Senator Kenny: I have to take objection to my honourable friend's comment a moment ago, when he said, "Will Senator Kenny blame the clerks again?'' He should have to establish that before he makes such a statement.
Senator Comeau: Okay. The committee can proceed.
[Translation]
All committees should respect both official languages. As an ex officio member of all Senate committees, I want to be able to read all reports and documents of any committee. Ex officio members are not necessarily able to work comfortably in both official languages. Committee work is not just for senators who are perfectly bilingual.
As to whether the committee is subject to the Official Languages Act, if both official languages enjoy equal status under the Constitution, and if the requirements apply to committee documents, that should be the case. I presented my arguments when I raised the question. I encourage you to consult others if you want a second opinion. You may discuss this with the Senate Law Clerk and Library of Parliament experts.
You may also seek the opinion of your colleagues from the official languages committee, which is currently examining the status of the implementation of Part VII of the Act and the actions taken by the federal institutions in that regard since the amendments made to the Act in November 2005. I would note that these amendments were drafted by our former colleague, Senator Jean-Robert Gauthier. Part VII of the Act also addresses French linguistic minority communities in Canada and the commitment to fostering the full recognition and use of both English and French in Canadian society.
Senator Gauthier's bill amended section 41 of Part VII by adding a subsection (2), which clarifies the federal institutions' obligation to act to ensure that "positive measures'' are taken for the implementation of their commitments under subsection (1) to enhancing the vitality of Canada's official language minority communities and supporting their development. The addition of the concept of "positive measures'' is particularly important since it expressly confirms that federal institutions must be proactive in implementing Part VII. Parties may take court action regarding failure to meet the obligations set out in Part VII of the Official Languages Act.
Equality between French and English is of paramount importance to the Committee on Official Languages. The committee is urging federal ministers and institutions to respect the letter and spirit of the Official Languages Act.
Allowing Senate committees to ignore these requirements would be hypocritical and would undermine their importance to the Committee on Official Languages' arguments.
Take a look at the committee documents in front of you today in both official languages. The documents are equal, in accordance with the spirit of the Official Languages Act. These documents were ordered for us before the meeting. If the French version were missing more than one paragraph, and if the committee were to use the English version as a working document, the committee would not be respecting the letter and spirit of the Official Languages Act.
What can we do about this issue? It would be presumptuous of me to propose solutions before you have had a chance to examine the facts and the issues raised by me and other people. That is why I suggest you invite other witnesses to delve into this issue. The facts are easy enough to verify. It should be a simple matter to determine whether the legal issues are pertinent.
You have some very important documents before you for consultation: the Canadian Constitution, the Charter, the Official Languages Act, and the Rules of the Senate.
As an institution, do we respect the Constitution of Canada and the Official Languages Act? The answer is either yes or no. If you determine that there has been a breach of privilege, it will be my pleasure to return here to recommend ways to remedy the situation.
[English]
To conclude, if you find that there is no breach of privilege, as proposed by Senator Kenny, then obviously chairs of committees can, on their own, decide whether official languages can be respected or not respected. It is that simple.
The Chair: Thank you very much, Senator Comeau. Senator Fraser would like to ask a question or make an intervention at this point.
Senator Fraser: No. I just wanted to get on the list whenever you decide we are opening it for questions, chair.
The Chair: Some of you were not here when I suggested the work plan the steering committee had developed. That is to hear from the two principals, to hear from legal counsel and then have the discussion. We thought it would be a better framework for questions and discussion if we proceed in that context. If you agree, we will hear from Senator Kenny.
Senator Kenny: I do not have any prepared notes, but I would like to start by saying I have been a member of the Senate for 25 years. Prior to that, I had worked for a decade in Prime Minister Trudeau's office, and I have a profound respect for the Official Languages Act and for the necessity of official languages as part of the fabric of Canadian culture and our society.
I have been the chair of different committees over the last 15 to 20 years, and we have always endeavoured to respect the Official Languages Act as a fundamental component of the work we do.
I feel I should describe the situation of the committee to some extent, to give you some background. We have not had an abundance of francophones on the committee, although we have repeatedly asked the leadership for francophones to come and serve on the committee.
We had Laurier LaPierre briefly. He refused to speak French. He chose to speak English. He would not take documents in French. He wanted them in English.
For a brief time, we were fortunate enough to have Pierre Claude Nolin. He not only served as our spokesman at press conferences, but also we would give him the text to perfect the French in the document, and he regularly did so with the full confidence of the committee. He changed titles of reports and ensured they were written in a style and tone that Canadians whose first language was French would be comfortable with.
When I made the comment that Senator Comeau referred to, that there had been no requests for the French version of the report, it was simply to point out that everyone in the room at the time was working in English. Therefore, no one asked for a copy of the French report to work from. That is simply a statement of fact; it is not a statement of attitude. We went through an entire meeting without a request coming up.
As I believe most members know, we meet only on Mondays, and the meetings take place for usually four or five hours. By the very nature of the way the committee functions, there is a preference for English. We have yet to have an intervention in a report-writing mode in French. Frequently, we have interventions in French when we hear witnesses.
I should say that I am a unilingual anglophone. Having said that, during five years of my time in the Senate I have set aside time for a month of French lessons in the summer and a month of French lessons in the winter. I have endeavoured to develop what I would describe as a bare-bones ability in French.
I endeavour to introduce witnesses in French who are francophones; and I endeavour, when I am chairing the committee, to deal with francophone members, when we have them, in their language.
I asked if there was a copy of the report in French in the room because I was uncertain as to whether there was since there had been no request for one prior to that. I am well aware of the requirement that there be a copy of the report available.
I should also say that the way the committee functions, having a virtually completely anglophone working group, their preference is to have an English text. If a French text was asked for, we would provide it. If a French text was not available, we would stop the meeting. We have done that. When a French text was not available and someone asked for one, that was it. There was no debate or discussion; the meeting ended.
In this case, I had not gone through the French text to compare it with the English text. I frankly do not think I am competent to do that. I can tell you that I have never read a French text from cover to cover in my life because it is not a productive exercise. I do not have the skills to make it a worthwhile exercise.
I have relied on the advice of others as to whether the text was appropriate or not. I am very anxious to see the document that has been tabled and is being reprinted because, from the quick glance that I could see as it was being passed by Senator Comeau, I do not believe it was something that ever went in the report. I do not believe it is part of the report. I do not believe it was ever considered by the committee. Once I see the copy, I will be able to comment on that with greater certainty.
I would like to summarize by saying that there is no doubt in my mind as to the requirements of the Official Languages Act. There is no doubt in my mind that a francophone coming to a committee meeting — or anyone coming to the committee meeting — is entitled to have the report in either language or both languages. Any time we have not been able to satisfy that, we have stopped the meeting. I believe that is the appropriate way to address the problem. That is the approach we have tried to follow.
It is fair to say that the committee works entirely in English. I cannot think of a time when a member of the committee, when it is working on a report, has said anything in French in the last eight years. The only time we hear French in the committee is when someone is giving testimony, and when that has happened, two, and sometimes three, members have asked questions in French, but they have never had a problem with the French text.
In some situations, we have some francophones with both texts, comparing them. I am trying to think of whether anglophones have done the same thing. I think we have also had situations where anglophones compared the two texts.
With this particular report, that did not happen, but had someone asked for it to happen, I presume we were prepared to do that. It is not a question that I ask at the start of each meeting. I just assume that the work of the previous meeting has been translated and brought forward.
The only reason I asked for it in this case is that we were on the verge of adopting the report and I knew it was important that I verify, even though it had not been asked for, that it was available.
I keep hoping that the page will bring in the copies of the report, but that appears not to be happening.
Subject to commenting on the document that Senator Comeau referred to, that is what I have to say.
The Chair: Thank you, Senator Kenny. Hopefully the report will arrive.
Senator Comeau: Reference has been made to this document being a report. It is not a report, and I did not indicate that it was a report. It is a document that was circulated to members of the committee prior to a meeting. It is not a report.
The Chair: Thank you, Senator Comeau.
While we await the document, perhaps we could continue with our work plan, which is to address the Official Languages Act from a legal perspective and a practical application perspective.
We will begin with Mr. Audcent and follow with Ms. Lank.
Senator Corbin: For information, is the Clerk of the Standing Senate Committee on National Security and Defence present here this morning?
The Chair: No, she is not.
[Translation]
Mark Audcent, Law Clerk and Parliamentary Counsel: Honourables senators, it is my pleasure to speak to you this morning about the legal basis for the rights and obligations related to official languages in the Senate.
[English]
My presentation is an overview of the law for your record and will take about 15 minutes.
[Translation]
I shall begin at the beginning, with the basic principle governing linguistic rights and obligations in Canada: the equality of both official languages. The fundamental nature of this principle is guaranteed by the Canadian Charter of Rights and Freedoms.
Subsection 16.(1) of the Charter reads as follows:
English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
Subsection 4.(1) of the Official Languages Act addresses the application of this fundamental principle within a parliamentary context. It reads, in part:
English and French are the official languages of Parliament...
This basic principle appears once again in section 5 of chapter 1:02 of the Senate Administrative Rules:
English and French are the official languages of Canada and are equal in status in the Senate. . .
[English]
Moving on from the fundamental principle of equality to its application, two golden threads are the warp and the weft of the fabric of language rights in the Senate.
The first of these golden threads is the right of any person to use English or French in the debates of the Houses of the Parliament of Canada. The second is the obligation of the Houses of Parliament to use both English and French in their respective records and journals.
These applications have been with us since the beginning of Confederation and are embedded in our founding constitutional document, the Constitution Act, 1867. Chronologically, they precede the more formal declarations of equality that followed much later.
Section 133 of the Constitution Act, 1867 reads in part:
Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada . . . ; and both those Languages shall be used in the respective Records and Journals of those Houses; . . . The Acts of the Parliament of Canada . . . shall be printed and published in both those Languages.
These section 133 rights and obligations are restated in both the Canadian Charter of Rights and Freedoms and the Official Languages Act.
The Charter provides:
17.(1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.
18.(1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.
The Official Languages Act provides:
4.(1) English and French are the official languages of Parliament, and everyone has the right to use either of those languages in any debates and other proceedings of Parliament.
(2) Facilities shall be made available for the simultaneous interpretation of the debates and other proceedings of Parliament from one official language into the other.
(3) Everything reported in official reports of debates or other proceedings of Parliament shall be reported in the official language in which it was said and a translation thereof into the other official language shall be included therewith.
5. The journals and other records of Parliament shall be made and kept, and shall be printed and published, in both official languages.
6. All Acts of Parliament shall be enacted, printed and published in both official languages.
The restatements of these rights and obligations in the different statutory sources bring them within the different governance and enforcement frameworks, thus enabling participants to access the different remedies they provide.
What is meant by the right of any person to use English or French in the debates of the Houses of Parliament of Canada?
The Federal Court had occasion to look at this question in the case of Knopf v. Speaker of the House of Commons. The trial decision was rendered in 2006 by Madam Justice Carolyn Layden-Stevenson, and the appeal decision in 2007 by Mr. Justice Trudel.
Mr. Knopf appeared as a witness before the House of Commons Standing Committee on Canadian Heritage and provided documents in support of his presentation for distribution to members in English only. In accordance with the practice of that committee, the unilingual documents were not distributed. Mr. Knopf claimed that his language rights had been infringed. Both courts held that this was not the case.
In Knopf, the working assumption was that the laws governing the use of official languages in the House also govern their use in committee. Madam Justice Layden-Stevenson of the Trial Division quoted from Mr. Justice Cheverie in the Canada v. Prince Edward Island (Legislative Assembly) case, affirming that committees are the "natural extensions of the House and the House naturally functions through them.''
Both courts in Knopf also relied on the 1986 judgment of the Supreme Court of Canada in the case of MacDonald v. City of Montreal for the proposition that subsection 4(1) of the Official Languages Act and subsection 17(1) of the Charter create a scheme of unilingualism at the option of the speaker or writer, who cannot be compelled by Parliament to express himself or herself in a language other than the one he or she chooses.
What about the distribution of unilingual documents? In the words of Mr. Justice Trudel of the Federal Court of Appeal:
Justice Layden-Stevenson was right in finding that the distribution of documents does not fall within the scope of subsection 4(1) of the Act. The right to use an official language of choice does not include the right to impose upon the Committee the immediate distribution and reading of documents filed to support one's testimony. The decision on how and when to treat the information received from a witness clearly belongs to the Committee.
The finding that the distribution of documents is not governed by subsection 4(1) of the Official Languages Act may have been sufficient to settle the Knopf case, but it does not answer the further question of whether documents that are submitted to or used by the Senate or one of its committees must be translated.
That issue is addressed through the application of the second golden thread of the official language fabric: the obligation of the Houses of Parliament to use both English and French in their respective records and journals. What is the scope of that obligation?
In a United Kingdom publication entitled Words and Phrases Legally Defined, the following appears under the entry "Record'':
What then is the record? It has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings: see Blackstone's Commentaries, Vol. 3, p. 24
In the 1985 case of Quebec v. Collier, Mr. Justice Turgeon of the Quebec Court of Appeal, speaking of the meaning of the expression "Records and Journals'' in section 133 of the Constitution Act, 1867, stated:
I believe that sessional papers are included in the above-mentioned terms.
A few years later, the Supreme Court of Canada, in the 1992 Manitoba Language Reference decision, noted that the scope of the phrase in section 23 of the Manitoba Act must be limited to those documents which are actually tabled in the Legislative Assembly.
In my view, the very best source for understanding the scope of the English expression "records and journals'' is the official French version. It reads: "les archives, comptes rendus et procès-verbaux du Parlement.'' Translated back, that means the archives, transcripts of proceedings and minutes respectively.
To complete my survey, I now turn to the procedural authorities. I refer you to two Speakers' decisions, rendered on April 15 and May 11, 1999. A point of order had been raised, objecting to amendments moved in the chamber in one language only. The Speaker pointed out that while most motions are always available in both languages since they can be translated during the notice period, legislative amendments are in a different category since no notice is required. He then noted that, in the absence of rules governing the situation, it was the practice of the Senate to adjourn the debate until both language versions were available. In his words:
[Translation]
Furthermore, it is my understanding that the practice in committees is to ensure that both language versions of any amendments to bills are available to Senators before a decision is taken.
This suggests that whatever the requirements stipulated in the rules or authorities, the Senate recognizes the importance to have motions, inquiries and amendments in both languages. When this has not been done, it would appear that the Senate has been disposed to postpone any decision until the debated question, having been moved, is available in both languages. It seems to me that this is the proper way of proceeding.
Procedural authorities have more insight to offer. On page 962 of the House of Commons Procedure and Practice, Marleau and Montpetit inform us that:
All parliamentary publications are produced in both official languages. The Constitution and the Official Languages Act provide for the use and equal status of the official languages in the "records and journals'' of Parliament.
Many of the Standing Orders of the House of Commons make explicit reference to the Journals, the Debates, the Order Paper and the Notice Paper. These publications, along with minutes of committees and bills introduced in the House of Commons, are produced by order of the House, under the authority of the Speaker and are considered as "official'' publications.
On page 976, they add:
Each committee of the House produces its own records. Since 1995, these records have become available primarily by electronic means. They include three main documents:
The minutes of proceedings: the formal record of business occurring during a committee meeting;
The evidence: the in extenso transcript of what is said during a meeting;
Reports to the House: the means by which committees make their views and recommendations known.
All committee records are made available electronically under the authority of the Speaker of the House. Under the Standing Orders, committees are empowered to print papers and evidence in accordance with any such decision they may make. However, this authority is somewhat qualified by limitations set by the Board of Internal Economy.
[English]
At pages 865 and 866, Marleau and Montpetit explain further:
A document submitted to a committee becomes the property of the committee and forms a part of the committee's records. Government departments are required to submit documents in both official languages when presenting them to committees. Everyone else, including Members of the House of Commons, may submit written material in either or both official languages. Each committee must then decide whether documents submitted to it in only one official language will be distributed to members immediately or once a translation is available. The right to submit a document does not, however, imply the right to have the document considered forthwith.
The lesson to be drawn from this quote is that, working within the requirements of the law, there can be flexibility in the system with respect to practice and timing. In other words, there is still room for each committee to be master of its own procedure.
Carrying this thought further, the Senate and its committees have a long-standing tradition of dispensing with procedural requirements by unanimous consent.
Applying the above to the Senate and its committees, I would suggest that it can be clearly deduced from the law that there is a legal obligation for committee reports to be tabled in the Senate in both official languages.
In a key 1979 Supreme Court of Canada decision known as the Blaikie case, in which a certain Yoine Goldstein, whom I take to be your colleague, participated as a plaintiff, the court held:
By requiring printing and publication of statutes in both languages, the section in question (which was section 133) covers enactment by implication; what is required to be printed and published in French and English is described as "acts'' and texts do not become "Acts'' without enactment.
By analogy, reports required to be presented to or tabled in the Senate in both official languages must, by implication, first be adopted by the committee in both official languages.
So what can be concluded concerning any obligation in law to submit or distribute bilingual documents?
With respect to committee reports, my conclusion is that a committee must report to the Senate in both official languages and that, in order to do so, it must first adopt the report in both official languages. Prior to adopting a report, the committee is master of its own proceedings and has some flexibility in the structure of its deliberations. Even then, however, it is subject to the rules of law that require it to respect the right of any person to use either official language in debate, and to its obligation to ensure that its records and journals, composed of its archives, minutes and transcripts of proceedings, will be bilingual.
[Translation]
Thank you, honourable senators.
Heather Lank, Principal Clerk of Committees: Honourable senators, thank you for inviting me to talk to you about the distribution of draft committee reports to committee members and about official languages.
English and French are Canada's official languages and enjoy equal status, rights and privileges in the Senate. Respect for official languages is therefore an underlying principle in the work of Senate committees.
Usually, committees ask Library of Parliament analysts to draft their reports in French or English, depending on the committee's instructions. All draft reports are then sent to the translation service by the Library of Parliament, or, more often, by the clerk of the committee. The clerk provides committee members with drafts, as instructed by the appropriate authority, be that the committee chair, the steering committee or the main committee, when the latter decides to delegate the study of the report.
Typically, a draft is not provided to the committee unless it is available in both official languages. Documents are usually distributed in both official languages. Clerks do not provide unilingual drafts unless they have been instructed to do so. To my knowledge, a committee has never studied a unilingual draft where one of its members objected. In the vast majority of cases, committees begin studying draft reports when both versions are available. They also adopt the final versions of their reports in both official languages.
That is important, because as both versions are authoritative, the committees must assume responsibility for both versions.
I should point out that committees often delegate the power to approve the final text of the report to their steering committee. Generally, the steering committee is authorized to correct only grammatical and typographical errors before the report is finalized and tabled in the Senate.
[English]
It is difficult to generalize about what happens between the first meeting on a draft report and the adoption of the final, bilingual report. The process varies, depending on the committee, the report in question, the time frame, and so on.
In general, committees considering a draft report will tend to work primarily with one language version to make amendments. The time lag between making the amendments and having them incorporated into the other language version does vary. For instance, if a committee is meeting two days in a row to consider a draft report, revisions might be submitted to translation only after the second meeting. In other cases, the changes will be submitted right away. The manner of proceeding is normally determined by the wishes of the committee members. It is not unusual, then, for there to be a lag as one language version is revised and the other language version is subsequently updated.
Clerks make a concerted effort to send documents to translation in a timely manner, so that they can be made available to senators in identical form in both French and English as soon as possible.
In cases where the steering committee considers a draft report prior to its being submitted to the full committee for consideration, it is not unusual for members to work with a unilingual document. Again, I am not aware of any cases where a steering committee has proceeded to consider a unilingual draft against the express wishes of a member. However, in the interest of efficiency, some steering committees may ask the clerk to send them a unilingual draft of a report as soon as it is received from the analyst so that they can review it, make changes and have the revised text translated prior to its being distributed to the full membership of the committee.
Allow me to conclude that clerks take the matter of respect for official languages very seriously. Taking the steps necessary to ensure that senators are able to work in the official language of their choice is an important part of what we do, whether through ensuring that interpreters are present at every meeting, sending unilingual briefs to translation promptly, or speaking to senators in the official language of their choice. Ensuring the translation of draft reports is a part of our responsibility and our commitment to official languages.
The Chair: Thank you very much. Honourable senators, we are now ready to proceed with discussion.
Senator Cools: I would like to identify exactly what the issue is that we are being asked to look at. In other words, is Senator Comeau saying that his privileges were breached? He is saying that privileges have been breached. Usually, these systems work by virtue of an individual senator saying, "My privileges have been breached.''
I am trying to find out about this, colleagues, because Senator Comeau has said clearly that he was not present at the meeting where this report was adopted. Therefore, no objection was raised at the committee about the manner of proceeding.
I believe, chair, that you have had more expert advice and more assistance than I have. What is the exact question that we are deliberating here?
The Chair: We are here to deliberate the question of privilege that was raised by Senator Comeau.
Senator Cools: I am trying to figure out what question that is.
Senator Comeau: Could I help?
Senator Cools: Please.
Senator Comeau: Rule 43(1) of the Rules of the Senate of Canada states — and you were absolutely correct when you alluded to it:
The preservation of the privileges of the Senate is the duty of every Senator. A violation of the privileges of any one Senator affects those of all Senators and the ability of the Senate to carry out its functions outlined in the Constitution Act, 1867.
The day after the document had been adopted in English only by the committee, I requested in my capacity as an ex officio member to have a French version of the document sent to me so that I could have a look at it. That document was sent to me about 15 days later, the same day that, two hours later, both documents were tabled in the chamber. In other words, as far as I can tell, only the English version of the document was accepted by the committee. I got my copy 15 days later, after the English version had been adopted.
Senator Cools: You are saying then, Senator Comeau, that the act of receiving that document 15 days later is the breach?
Senator Comeau: Yes.
Senator Cools: Is that your complaint?
Senator Comeau: Yes. As well — and I think you have a copy of the documents which have been distributed now — it becomes part of a pattern of this committee that respect for the two official languages is not part of the committee's method of working. There is also the fact that we received a copy for an upcoming meeting on June 9 completely in English. By the time someone had laid a complaint and had received a copy, we would have been at the meeting time. That is kind of a pattern of the committee.
Senator McCoy: I too am a little confused as to the issue. We have the transcript of the debates when the question of privilege was raised initially, senator. According to the rules, you said in the debate that you had given notice, and so on. It seems to me that you are raising two separate points today without notice. I am left grasping here for some sense of appropriate order and proceedings, which I do not think we are following.
Perhaps we could clarify this point of order before we go any further whatsoever.
Senator Fraser: This is not my question; I am just quoting from the letter that Senator Comeau originally sent to the clerk to launch all this. He said:
Pursuant to Rule 43 of the Rules of the Senate of Canada, I give notice that later today I intend to raise a question of privilege . . . .
I refer to the committee's adoption of a draft report that was available to Senators in only one of Canada's two official languages.
It seems to me that that is the core of the issue before us, but it is also, I believe, the practice of this committee, as of many Senate committees, to try to consider whatever those involved believe to be the general context in which a specific question is being raised.
The original point that Senator Comeau made, as we got into all this, was the adoption of a draft report not available in both languages.
Senator Cools: We are only hearing now of the other set of questions, then, because what the Speaker adjudicated was far more limited than what Senator Comeau is raising now. This may seem unimportant to many people, but it is extremely important.
I am grappling with this. This thing is wider than it appears at first blush. Therefore, we will have to find some way of moving ahead. The decision taken in the house, in the Senate, which provided a reference to this committee, will be founded on a different premise than what this meeting here is moving ahead on.
It is not entirely kosher or proper. I make that point.
I have a second question for clarification. Senator Comeau, you said in your remarks on May 28 that you were only informed of the events in question "after 11 a.m. yesterday morning.'' This is at page 1415.
Senator Comeau: That would be day after the document had been adopted by the committee.
Senator Cools: Consequently, you were unable to give three hours' notice before the Senate.
Senator Comeau: That is correct.
Senator Cools: I am curious. If you were not able to give three hours' notice, how was the Clerk of the Senate able to circulate to us? I definitely do not have a copy of the original question that was circulated by Mr. Bélisle's office. How was he able to circulate that to us? You are saying here that you were not able to give the three hours' notice. In your remarks at page 1415, May 28, you said: "First, allow me to state that I was only informed of the events in question after 11 a.m. yesterday morning . . . .'' Consequently, you were unable to give three hours of notice before the Senate met. That was the day before. You mean you did not proceed the day before. Is that what you mean?
Senator Comeau: Let me try to get the timeline down here.
Senator Cools: I will lend you my copy here. It is paragraphs 1 and 2 of your remarks.
Senator Comeau: That was May 28.
Senator Cools: Yes.
Senator Comeau: Wherein I read my comments.
Senator Cools: Right.
Senator Comeau: I found out the day before, May 27, at 11 a.m.
Senator Cools: Right, but it is a three-hour notice, so it was too late. Is that what you are saying?
Senator Comeau: It involved a report that had been passed May 26. What is your question?
Senator Cools: From the way that reads, it sounds as if you were not able to give three hours' notice this day, May 28.
Senator Comeau: On May 27, I would not have been able to give the notice.
Senator Cools: It reads as if you could not give it on May 28. You did give your full three hours' notice. Thank you. That question has been answered.
In any event, chair, unless we want to be here for six months doing this, it is important that we clarify the issue we are pursuing.
The Chair: Thank you very much, Senator Cools. I was about to return to that. Senator McCoy raised a point of order in our deliberations, and we have to establish whether there is a point of order here or not, whether this discussion is within the scope of the question of privilege that is under discussion.
It would be my impression that it is, but the committee will have to establish that.
Senator Cools: Senator McCoy, you spoke on the point of order brilliantly, but it was very short. Perhaps you could amplify a bit.
Senator McCoy: It would appear to me that the question that is in front of us is, as enunciated on page 2 of the document, from the notes from the clerk.
There are other matters that seem to have been raised today that are entirely new and beyond that. I am trying to establish, as you said, Senator Fraser, the context in which we are dealing and with which questions, keeping in mind that privilege is fundamentally and functionally an allegation that one has been prevented from carrying out one's duty as a parliamentarian.
In pith and substance, as we say in English and in the law, it is that that we are, I think, investigating. We need then to focus on what incident is being complained of and whose function was unable to be executed. That is the grounding I am searching for, and I am thinking that some irrelevant matters have been introduced today.
Does that help?
Senator Cools: I want to speak on the point of order when I get a chance.
The Chair: Please proceed.
Senator Cools: Does anyone else want to speak first? Go ahead.
Senator Cordy: I was waiting to hear from you first, Senator Cools. I am not a lawyer, but I guess I was getting confused, too, at the number of issues.
When I look at the letter to Mr. Bélisle, I believe that what we should be dealing with is what the letter refers to, and that is the draft report. Many of the other things that have come in today are new to us.
We can think about them, but the bottom line is that that is the specific issue we are dealing with, the draft report that was in the hands of the Defence Committee.
Senator Cools: Honourable senators, my understanding of the situation is that we are proceeding here under the rubric of an order of reference from the house, and the motion itself that was sent us, the order of reference, is not all that clear.
However, what is crystal clear is the notice because we are moving ahead on this proceeding under section 43 and section 44 as well of the Rules of the Senate because the prima facie case has been found.
We are not in a position here to roam as widely as we think. The order of reference from the Senate tells us what it is we are looking at. If you were to look at the motion, which is to be found on page 1429, May 29, of the Debates of the Senate, Senator Comeau says:
Honourable senators, in light of His Honour's ruling, I move that this question of privilege be referred to the Standing Committee on Rules, Procedures and the Rights of Parliament.
The question must be the question that is contained in Senator Comeau's notice, which he gave oral notice of originally. For the sake of this point of order, I would like to place this on the record. I will take it from the proceeding in the Senate Chamber. Senator Comeau is speaking, and it is May 28:
Honourable senators, pursuant to rule 43(7), I give notice that I will raise a question of privilege.
Earlier today, pursuant to rule 43(3), I gave written notice of the question to the Clerk of the Senate in the form of the following letter:
Dear Mr. Bélisle,
Pursuant to Rule 43 of the Rules of the Senate of Canada, I give notice that later today I intend to raise a question of privilege regarding the proceedings of the May 26, 2008 meeting of the Standing Senate Committee on National Security and Defence.
I refer to the committee's adoption of a draft report that was available to Senators in only one of Canada's two official languages. I believe this is an affront to the bilingual nature of the Senate.
Respectfully,
Hon. Gerald J. Comeau
Honourable senators, what is before us is not a lot of what Senator Comeau raised here. We can consider all of that for understanding perhaps, for enlightenment, but the question before us, honourable senators, is whether or not the committee's adoption of that draft report is a breach of his privileges. The question that we have been asked to study is remarkably narrow.
The Chair: Thank you, Senator Cools.
[Translation]
Senator Robichaud: When the Speaker of the Senate ruled on this, he did not do so on the strength of the notice he received. Notices are sent to the Speaker to indicate that a senator wishes to raise a question of privilege. Such notice has no force beyond its intrinsic value as a notice. The person who sends the notice states his or her case in the Senate. All senators can comment on the issue or they can object. Based on the evidence and arguments provided, the Speaker decides whether the matter merits further consideration and whether it is a prima facie question of privilege. Then, the Speaker entertains a motion concerning the proposed remedy by the person who raised the question of privilege. In this case, the remedy was to refer the matter to the committee.
I think that what was said in the Senate to influence the Speaker's ruling on whether or not there was a prima facie question of privilege must be considered. Such statements contributed to the Speaker's decision that, at first glance, the matter merited consideration. I do not think that we should rely on the notice alone, because the notice is, after all, merely a notice.
Senator Corbin: Mr. Chair, I would like a copy of the report so that I can make an informed decision about the events that took place.
Also, this morning, we were given a whole series of documents. Several precedents were cited, and we heard from two witnesses. I would like some time to read the report of the committee's deliberations until 7 p.m. so that I can start to figure out where the committee's work on this particular issue is headed.
We have been given a lot of information. I would like some time to process it. It seems to me that we are heading in several directions at once. As someone said earlier, we could spend a lot of time debating the validity of this question. I think it is important for us to understand and consider the basic facts of the law and the practices of the Senate and Canada's Parliament in this regard.
I would like to remind the committee that as recently as last week — and I am sorry that I do not have the specific reference to this event at my fingertips — someone put forward a motion in the Senate in English only. Other senators did not receive the French version of that motion. The Speaker called a vote on the motion in the original language only. Often, to speed things up when we are short of time, or for other reasons, accommodations are or should be made in the Senate. Such practices are not always respected — far from it. I almost rose when that incident took place, but I decided to refrain because it was not the first time such a thing happened, nor will it be the last.
We have a simultaneous interpretation service, and for some, that is enough. However, even in the Senate, we do not always comply with the strict practices required under the Official Languages Act.
That being said, could we adjourn our work? I am due to appear at another committee, unless there are any absolutely urgent matters to deal with.
Senator Fraser: I would like to add some clarification about some of the testimony before we adjourn, and I have been waiting 40 minutes to do so.
Senator Corbin: Please do not get upset. That is what I just said, and I respect your rights. It was just a personal suggestion. If some members are comfortable with everything we have heard this morning, so much the better. I, myself, am not.
[English]
The Chair: Thank you very much, Senator Corbin. I think that is a worthwhile consideration.
Senator Fraser: I am not on a point of order, chair. I have been waiting to put my questions. May I put my questions?
Senator Cools: He is on a point of order, which may determine —
Senator Fraser: Have you ruled on the point of order?
Senator Cools: No, he has to do something; he cannot just skip over. A point of order was raised. He has to rule on it. Something has to happen.
The Chair: I do not think there is a point of order, myself. However, I wanted to have a number of comments. I would think we do not have a point of order.
Senator Fraser: Thank you, chair.
Coming back to the interesting testimony from Senators Comeau and Kenny, Senator Comeau, you spoke of a document you received well before. I am not talking about the document that has been circulated here, and I am not talking about the final formal translation of the report.
You spoke about an earlier version of the report that you received, which had substantial differences, as you described it, between the English and the French versions. What I noted was that Part 4 had in the English version nearly 30 pages and in the French version three pages, that in the French version there was no conclusion and in the English version there was a conclusion. These are, I think, substantive differences.
You probably said, but I just want to be sure I understand what it is we are trying to grapple with here. Is it your understanding that that document, the one with these discrepancies, is in fact the French copy of the report that was in the room when the report was adopted by the committee?
Senator Comeau: Yes.
Senator Fraser: When did you get that?
Senator Comeau: I received it on May 27.
Senator Fraser: May 27?
Senator Comeau: The English report was adopted on May 26 by the committee. On May 27, I requested a copy of the French report.
Senator Fraser: You received the document with the discrepancies?
Senator Comeau: I received the English and the French.
Senator Fraser: Chair, I would ask that these documents in particular be reproduced and circulated to the committee. It seems to me that this may be part of the core of what we are looking at.
Senator Kenny, is it your belief that the document I have just been discussing with Senator Comeau was the French copy of the report that was in the room when you asked if there was a French copy in the room?
Senator Kenny: I have no idea.
Senator Fraser: You have no idea.
Senator Kenny: I did not ask to physically see it. I did not look at it. I must confess that throughout the whole process, I never asked for a copy of the French document. My assumption was that it was being translated as we went forward.
As I said earlier, the committee meets once a week, and there are seven days for the translation to be accommodated. Inasmuch as no one had requested a copy in French, the issue had not come up. I asked as a matter of form before the motion was put, and then the motion was put and it was adopted unanimously with the caveats that Heather Lank referred to, that there would be opportunities to correct, providing the substance of the report was not changed.
I think it is fair to say that I assumed that none of the changes that had occurred during the previous four hours were included in the French report. There would have been no time for that to have happened, and I assumed that would have happened in the normal course of events after that.
Had there been a request at any point during the meeting to see if the two reports matched or to examine the wording, for example, of the recommendations, the outcome of the meeting would have been quite different and we would have either provided a satisfactory copy of the report or we would have stopped. Either option was acceptable to the committee, and it would have been consistent with the official languages.
Inasmuch as there was no request, the committee carried on. I believe that every member there felt their rights were being dealt with in an appropriate fashion.
Senator Fraser: If I may ask, would it have been at that final meeting just before adoption of the report that the committee agreed upon the conclusions or that the committee agreed upon an expansion of the previous draft of Part 4, to bring it up from three pages to nearly 30 pages?
Senator Kenny: The committee went through the report in sequence. I would expect that most of the changes, and I am guessing here, related to the last part of the report rather than the earlier parts of the report. Sometimes we go through it a chapter at a time, but my recollection is that we went through this in sequence.
My only comment is that had someone said, "I would like to see how this compares,'' we would have then circulated the French text to those who wanted it. If someone had said, "This does not look anything like the English and we need something that matches,'' we would have stopped until we had something that was appropriate.
Inasmuch as that question never came up, we carried on and relied on the boilerplate phrase that provides for corrections in the report, providing no substance is changed, and that authority was granted to the steering committee.
Senator Fraser: I wonder if you could make whatever that boilerplate phrase was that the committee adopted available to us.
Senator Kenny: I do not have a copy of it, but I am sure the clerk has it.
Senator Fraser: If you could ensure we get it, I would appreciate that.
Chair, I will make a request now, not dissimilar to Senator Corbin who wants more reflection. Here is what I am turning around in my mind, and it will probably require further input from Mr. Audcent and maybe from other people as well. I do not know.
Reports must be adopted in both official languages, and indeed then they are tabled in the Senate. Frequently, the Senate is asked to adopt the reports as produced by the committee. That is a very serious and solemn thing. It is the core of our responsibilities: right after passing legislation is adopting these reports, it seems to me.
The question I am grappling with is whether the French version of the report that was then before the committee was so grammatically different from the English version of the report as to, if you will, constitute a breach of privilege or in some way be invalid, bearing in mind that both languages have equal status and one is entitled to make reference to either version of the law, of a report, of a journal, of a record or anything you want.
In the extreme, for example, might someone say, "But the committee voted to adopt the French copy that did not even have conclusions in it?'' I do not know. I do not know where the dividing line comes, but I think that is the core of where we are going.
We are all familiar with the procedure whereby a committee will authorize the steering committee to check off on final little corrections in both languages. It may be punctuation, grammar or checking that the final translation is comparable to what the committee has just completed in one language. However, that is normally confined to small, manageable matters, not to big stuff.
From what Senator Comeau told us today, this sounds like big stuff. I would really like some further legal guidance on this matter. I am sure the law clerk would like to slit my throat at this point, but I really need guidance.
The Chair: Thank you very much, Senator Fraser. We will provide that for you. You have requested certain documents as well, if I can return to your previous comment. Would you be kind enough to put that in the form of a motion?
Senator Cools: Mr. Chair, there is no need for all of this. The reference from the house is a command to the committee to produce all the relevant documentation for the members of the committee. I was expecting that before this meeting went ahead, we would have had copies of the report in question and we would have had copies of the committee proceedings and the debates. An order from the Senate commands that. That is the question before us. It would be nice if someone wanted to do the work that the Senate Chamber did, but in point of fact, no motion is required for members here. That information should be before us.
The Chair: Senator Cools, it is very difficult to know where to begin and end with the production of documents. This is a very complex undertaking.
Senator Cools: Yes, it is.
The Chair: I would prefer if you would simplify my life as chairman and give me a motion for the documents that Senator Fraser wants.
Senator Fraser: Chair, I therefore move — and I am producing this on the fly, and maybe Senator Corbin can produce a translation for me —
Senator Cools: See, here is the problem.
Senator Fraser: I move that this committee obtain copies of the following documents: Senator Comeau's original statement — I thought he had more material than he read to us about discrepancies that he saw between the final draft French version and the English version; that draft French-language report that was in the committee room at the clause-by-clause meeting; if possible, the English draft report with which the committee began its meeting; and Mr. Audcent's statement, because he had many legal references there. If we can get a copy of the statement it would be easier to read, Senator Cools.
Senator Cools: The committee is supposed to provide that to us automatically.
Senator Fraser: Order. You can vote against the motion.
Senator Cools: I will not vote against the motion. I am saying the committee is supposed to send us copies of proceedings immediately.
Senator Fraser: Finally, a copy of that portion or portions of the clause-by-clause proceedings of the Defence Committee in which the French-language version of the report was discussed, its availability, and what Senator Kenny referred to as the boilerplate clause.
[Translation]
And, in French:
Je propose que le comité obtienne le. . .
Will the translation suffice?
Senator Corbin: We have nothing against that.
Senator Fraser: Excellent. Thank you very much.
[English]
The Chair: Thank you very much, Senator Fraser. Do we have discussion of this motion?
Senator Cools: I am very sorry; people may want to move amendments to the motion. Operating sloppily has become such a habit in this place. I would also like to propose an amendment, to add some other documents, if we could. In particular, Senator Comeau's statements where says he observed discrepancies. Perhaps he could make his allegations or observations of discrepancies available to us.
In addition, since Mr. Audcent's statements should automatically come to us, could we have the committee clerk or whoever, perhaps the Library of Parliament, provide us with copies of the jurisprudence of the case law, the whole documentation? In other words, not just Mr. Audcent's words and his particular citations, but the original documents themselves so that we can include that in the kit and caboodle. If colleagues are prepared to accept that as an amendment, that is fine.
Senator McCoy: Clarification. We will get that. Let me ask you, is your intention to get the information and then we come back and then we can ask further questions? Is that understood?
The Chair: I believe so.
Senator Fraser: Presumably.
The Chair: Senators, are you ready for the question on the amendment? All those in favour?
Some Hon. Senators: Agreed.
The Chair: Are you ready for the question on the motion as amended?
Senator Corbin: Go ahead. I want to raise a point of order right after that.
The Chair: Are you ready for the question on the motion as amended?
Hon. Senators: Agreed.
The Chair: Agreed, okay.
Senator Corbin?
Senator Corbin: Senator Comeau gave a committee assistant a bunch of papers about five minutes ago. This was not done formally. I do not know what those papers are. They are now in the possession of the clerk. Could we clarify what those documents are?
Senator Comeau: May I?
The Chair: Please.
Senator Comeau: It was requested earlier on — it was not done in a formal fashion — that I hand over the French and English supposed reports, which I did. I wish to make that more formal now.
The documents I handed over to the clerk of the committee were, in fact, those two documents: the English version of the copy adopted on May 26; and the May 26 French version, which was the document which has been referred to as the French document. These are the two documents that I received on May 27 upon my request to the Clerk of the Standing Senate Committee on National Security and Defence. This can be verified by the clerk. They were passed by the committee that evening.
May I add as well that in reference to my comments on the discrepancy, by all means I will do that, once I have them translated.
Senator Corbin: The documents that Senator Comeau speaks about, are they the reports — is it the report that was adopted — or were they the working papers, "des projets de rapport''? I am not clear.
Senator Comeau: I requested, on May 27, a copy of the report that had been adopted the previous day. To the best of my knowledge — you might have to seek the views of the clerks, but these are the documents I got: one being the English copy, which was adopted; and one being the French copy, which was, I guess, adopted.
Senator Corbin: I want to make sure we are talking about the same papers that Senator Fraser requested. We will have to sort that out.
The Chair: Senator Joyal has been waiting a long time to speak. Are you first? I am sorry, Senator Andreychuk.
Senator Joyal: If Senator Andreychuk was before me, please proceed.
Senator Andreychuk: I am trying to get back to the original point of privilege, and so I want a few questions answered so that I can determine in my own mind where I am going.
Senator Kenny, you have been chair for quite some time, so this is not your first report. You have done many reports, as we know.
When you get your order of reference and you do your study and you come to the conclusion that it is time to write the report, could you tell me what process you, as chair, follow from that point on? Has it been the same with all or does it vary?
Senator Kenny: We have produced 22 reports since the committee was founded, and the process varies depending on the membership of the committee.
Senator Andreychuk: Is it the steering committee that determines that now is the point, we have run out of witnesses or we have other reasons that we should go to drafting a report?
Senator Kenny: No. The committee has chosen to have very few decisions made by the steering committee; it prefers to make decisions collectively. It is the committee itself that decides how to proceed.
Senator Andreychuk: Do you recommend then, as chair? How does it happen that you will go into a report?
Senator Kenny: I ask the question, and then await the views of the committee.
Senator Andreychuk: If it is determined that you will produce a report, does the steering committee get involved at that point in the initial draft, or does it go directly to the full committee? In other words, you have made the comment now and I want to follow up. Do you work through the steering committee or do you go directly to the committee and work with them?
Senator Kenny: The full committee does the work. Typically the first meeting would be to go around the room and the members of the committee make comments about their observations.
On this particular report, for example, the full committee chose to follow the practice of each person commenting around the room about what they wanted. The staff took careful notes of what they said and, a couple of weeks later, endeavoured to bring forward something that they thought reflected the views of the full committee.
Senator Andreychuk: The staff gather the views and they prepare a report?
Senator Kenny: Correct.
Senator Andreychuk: Who sees the report first? Does the full committee or do you see it?
Senator Kenny: I usually see it. I usually work with the staff and we prepare something that we think reflects the views of the committee members. We then go before the committee in a manner similar to this. I would sit with staff and we would read the report aloud to the committee. We would usually do it in three- or five-page tranches. We would then stop and committee members would each take a turn commenting on the three or five pages that have been dealt with. We work our way through the report in that fashion.
Sometimes there is a decision to go back again. Sometimes there is a decision to scrub whole chapters. Sometimes we have excellent grammarians on the committee and we spend a lot of time with commas and semicolons. However, each iteration of the report is gone through, word by word, by every member of the committee before it is adopted.
I will also add that there is a difference in the approach of the committee when there is a francophone on the committee. In that instance, there are two reports on the table, one in English and one in French. The report is dealt with in that fashion with comments relating to, for instance, the fact that the English version does not reflect the French very well or the French does not reflect the English. That sort of discussion happens, as well. However, in the eight or so years we have been in existence, only twice have we had francophones on the committee.
Senator Andreychuk: When you start this process, you say you go away and you draft it. Then you come back with a report and it proceeds from you to the committee, and the committee moves through the report line by line or paragraph by paragraph.
I suppose that you authorize the release of the report to be circulated to the members in preparation for the meeting. Does the French version or the English version come first?
Senator Kenny: Usually the members prefer to read through it together. They see the report for first time when we read it as a committee.
Senator Andreychuk: Therefore, do committee members arrive and the report is circulated to them?
Senator Kenny: Correct.
Senator Andreychuk: Is that in both official languages or do you just work with one, unless you are asked for the second one?
Senator Kenny: The staff have canvassed the members of the committee to determine what language they would like to receive their documentation in. They would receive it in English, in French or in both, depending on what they requested.
Senator Andreychuk: Whose instructions would lead the staff to do that?
Senator Kenny: The individual senator would tell the clerk what his or her preference is.
Senator Andreychuk: You said the staff would canvas. Whose instructions does the clerk follow in canvassing? I do not know that process. I have never been involved with a committee that does that.
Senator Kenny: At the start of each Parliament or each session, I request the clerks to ask each member of the committee how they want their documentation, whether in English, in French or in both languages. That is a standard question they ask in order to provide members with service in the language they choose.
Senator Andreychuk: Do you therefore believe there is some process? I have never heard of that process and I sit on a lot of committees. I am not canvassed as to which language I want. I wondered whether this was unique to your committee.
Senator Kenny: I have always been canvassed on every committee I have ever sat on. I receive the documents in the language I choose. It is just like in the chamber: I tell the pages the language I would like and they give it to me in the language I have asked for.
Senator Andreychuk: Do you not make a distinction when a report is filed in the committee that members receive it in the language that you believe they have requested?
Senator Kenny: It is not that I believe. It is in the language they have requested. I do not decide. They decide.
Senator Andreychuk: We do not have the evidence, and perhaps Mr. Audcent did not touch this area. It was drummed into me a little differently. I was told, in all of my discussions, et cetera, that the chair and the steering committee — if you are functioning through a steering committee — have the responsibility to produce a report in a form available for the committee and that the report must be available to all members in both languages.
I want the second language. It is it not just for francophone members. I want the French version to be assured there is consistency. At some point, we want to address that we have only one report but in two official languages. I remember Senator Corbin, in one of the first committees 15 years ago, though I do not expect him to remember that —
Senator Corbin: I have been here 25 years.
Senator Andreychuk: I have been here 15. Regardless, he was very diligent to determine, before we ever signed off on a report, that both versions were identical. If we had the capacity within the committee, we did that. If we did not have the capacity in the committee, we reached out to an editor or to our staff to give us that assurance, because it is not just francophone members who want to be assured that we have two official versions.
I want to be assured, even though I may function in only one language, because, if I understand where Senator Comeau is coming from, it is a privilege; we have a responsibility to carry out the functions of Parliament. One of the functions is that, when I delegate to some committee, they would follow the rules. One of the rules is based around the official languages.
I am trying to arrive at that thread. I have never sat on the Standing Senate Committee on National Security and Defence. I may have been there once to relieve someone, but I know I have not sat on it so I do not know the routine there.
That is really where I am coming from. I would like to see the record of the committee on this — the minutes.
The Chair: I believe those records are in camera, correct?
Senator Andreychuk: Yes. However, if we want them, can we not see them?
The Chair: We can receive them if you care to move. I would like a motion, though. Do you care to move that, specifically?
Senator Andreychuk: I will wait and hear other comments. Maybe at the end I will ask.
You say that committee members are canvassed for their language preference. How are you aware of that? How is that done?
Senator Kenny: It has been the routine of the clerks to ask those questions any time there is a new member on the committee, or at the start of a new session or a new Parliament. It usually happens before the first meeting takes place. They are asked if they have a preference in how they want their documentation.
Senator Andreychuk: Is that done in the committee?
Senator Kenny: No, it is done by the clerks in their own time. They speak to each member of the committee and ask the question.
Senator Andreychuk: Is it because you have given those instructions that you become aware it is done, or do you follow up to find it is done? I am rather curious.
Senator Kenny: I do not do either. I would know at the first meeting if senators were not happy with their documentation. A person would say, "I have something in English and I would prefer it in French,'' or vice versa, or "I would like both copies, please.'' They would say so.
No one has ever said that with the exception of former senator Laurier LaPierre. Our clerk might have taken his choice for granted and provided him with a French version. He objected vigorously.
Senator Joyal: I listened to Mr. Audcent carefully when he stated in his presentation — and it will be reflected in the minutes of this committee — that a report has to be tabled in both languages in the Senate. I do not think there is any dispute about that. He also stated emphatically that they have to be adopted in both languages to be tabled or reported in both languages, which means that the two versions have to be adopted at the same time.
A committee cannot decide to function in English only. I weigh my words carefully here. A committee cannot decide, because all the members are unilingual, to suspend the law of the land. It is in the Constitution. Ms. Lank said that a committee is the master of its proceedings, but a committee cannot decide to suspend the Official Languages Act because it is more convenient since everyone speaks English or is unilingual English or unilingual French. This is not the law of the land.
I think chairs of committees have to be made well aware when they assume the role of chair that they are bound to function in both languages for a number of their legal obligations. One of their legal obligations is to adopt the report in both languages. That seems to be the law of the land, unless I stand to be contradicted.
If it is the law of the land, it means that it is up to a chair, whether unilingual English or French or bilingual, to ensure that both copies are on the table at the same time when a committee votes.
I agree with you, senator, that you can direct adjustments in the text to a steering committee, but adjustment does not mean to translate the report after it has been adopted in English. That is not an adjustment; for me it is a breach of the law of the land.
I can understand that a committee may be under pressure to table its report because the Senate Chamber is sitting on a particular day. They may want to finish and go to the press in order to get publicity on the issue. I agree with that, but if they do not adopt the two versions at the same time, they cannot proceed.
I think the Committees Directorate — I am looking at Ms. Lank — has to make the chairs aware. A circular should be sent to the chair of a committee indicating what you have to do in both languages. Otherwise the law means nothing.
As the Supreme Court has said in the Manitoba reference, it is providing direction — you do it if you want and it is convenient — it is not mandatory. You can suspend the application of the principle.
The Supreme Court ruled clearly in the 1985 decision regarding the Manitoba Act when it declared all the legislation in Manitoba unconstitutional because there was a constitutional obligation. It was not a report, but all the law in Manitoba.
That seems to be very clear. If that report has been adopted in only one language, then translated and not submitted to a final vote of the members, the status of the report is in question.
I do not think there was ill intention in this case from what we have heard so far, especially noting what Senator Kenny has said. The committee decides if they want to produce the report in English. Everyone is canvassed regarding which language he or she wants to function in.
It would be totally against the spirit and the letter of the law if we start functioning in committees based on what seems to be more expeditious or more convenient. I do not think we can function in that way respecting the principle of equality of both official languages.
I understand that it creates a problem if there is a unilingual chair. It may be difficult to ensure that both the English and French versions of the report are similar. However, as the chair of a committee, you are responsible for the legality of the French version as much as the English version.
Once the Senate has adopted a report, both versions are of equal value. One is not the translation of the other. For 40 years, the Department of Justice Canada has maintained a system whereby they have developed not a translation service, but a drafting service to maintain the equality of concept in both languages. That is what we call harmonization.
The Standing Senate Committee on Legal and Constitutional Affairs has adopted bills on that basis. There have been two such bills since I have been a member of that committee for the past 11 years.
Ms. Lank, through your directorate, it is very important that the chair, deputy chair and the clerk of committees be made well aware of the instances where there is no discretion in the use of official languages.
Senator Cools: Do you want instructions to be given formally?
Senator Joyal: No, you understand the objective.
Someone may prefer to work in one or the other language and the practice starts with that. At a point in time, the committee may function in only one language. However, that is where there is a risk that a committee may make decisions only in one language when, in fact, they should make decisions in both languages to maintain the principles of equality of the two languages. The committee has to respect the law of the land in its functioning and decision making. That is the principle here.
That each committee is master of its business has some important limits. The limits are the respect of the principle of equality of both languages. That is entrenched in all the legislation that Mr. Audcent has recited, all the decisions of the courts and the Speakers that have implemented the laws.
The crucial element here is that we recognize this is an important decision at this point in time. As individual senators, we must ask ourselves how we implement those objectives and principles beyond the details of one case, because that is not the objective.
The objective is to ensure that we respect the law of the land in all our deliberations. This is the responsibility and the duty we have individually in a committee. No member of a committee is relieved of that responsibility because he or she happens to be unilingual in one or the other language. It is a responsibility we all have in our respective capacities inasmuch as we are informed that our Parliament and the Senate honours the commitment to the equality of the languages.
I do not want to offend Senator Cools. I apologize if I have offended an officer of Parliament. It is certainly not my intention.
An important element of information we have heard this morning from our two advisers is of fundamental importance for the way to behave properly in committee.
The Chair: Senator Joyal, we hear you loud and clear. We will definitely revisit the direction provided to committees and have it presented in a way that we have the full agreement of this committee at the conclusion of our deliberations.
Senator McCoy: I want to ask Senator Joyal a question following his submission putting forward the principles. As always, it is eloquent and I learn every time he speaks.
The clarification I am seeking is that you say — and I agree — that the committees need to adopt one English version of a report and one French version of a report at the same time. Do you mean literally at the same time, and if so, what is the authority for that?
Senator Joyal: It makes sense, as Mr. Audcent said, to adopt them in both languages so that you give as much weight to the decision to adopt an English version as you give to adopt a French version. If you want to ensure that the two versions are of equal importance and substance, then both of them have to be on the table when the matter is adopted.
You might not be able to pronounce on one or the other language, but it is the responsibility of the chair and of the clerk of the committee, with the Library of Parliament, to ensure that the French version is of the same substance and importance as the English version.
Otherwise, you would be functioning in one language if you agree to a draft that is in English only and then send it to translation, presuming that we have adopted it while you have not seen it. It has not been in front of you or in the committee's hands.
Senator McCoy: Thank you for that clarification.
Senator Andreychuk: I know we have run out of time, but, Senator Joyal, the emphasis should not be on the clerk but on senators as parliamentarians. I do not know whether it was done officially or unofficially, but it was drummed into me that you do not proceed at committee unless you have the two reports. The first question is whether you have received the report in both official languages. That is the question to the clerk, rather than the clerk having the responsibility for that. The clerk has a responsibility for official languages too, but committees are creatures of the Senate, and, therefore, that is where the threat to Senator Comeau's privilege occurred, as I understand. He stood up in his individual capacity because something happened in committee. As a member of the committee, he can question what happens in committees because it is a delegated responsibility.
Senator Joyal: He is a member of the committee, as he stated.
Senator Andreychuk: He is an ex officio member, yes. That adds even more weight to the matter. We should get our house in order before we give instructions to the clerk.
Senator Cools: I will respond to Senator Andreychuk's point about having a clear understanding and agreement on what we are seeking before we give instructions to staff. I do not want to shock any ears, but I have sat in committees where versions of the report were adopted on separate occasions. I remind honourable senators that most senators seem to have forgotten that a committee report is the authorship of the chair. I have served in this place on many committees where a chair worked laboriously on reports and sat with members to have input before anything went to translation. We must allow chairs some freedom.
At the end of the day, that same report must be adopted in French and in English. Let us understand what we are dealing with. Perhaps we are habituated to current trends and not in order with appropriate practices at times. We must remember that many chairs in this place work on reports. I have worked with many chairs to produce many reports. We can recall those occasions, Senator Corbin, for those of us whose memories go back.
There must be some freedom for individuals without violating the law. There is no violation of law if a chair works laboriously for days and weeks to write a report in his language, French or English, brings it forward and, once it reaches a degree of satisfaction, goes forward for translation. I have taken part in many such reports where a chair might give you a whole section to work on. We should not react in shock or with anxiety. As we go on, we will discover what future best practices will be.
Mr. Chair, you will recall a meeting of this committee some months ago, in October, I believe, when I was urged or pressured to vote on the adoption of a report and hand over the ends of it or whatever to someone else. I said, and it is on the record, that I wanted to put members of the committee on notice that I do not vote on final reports unless I can see those copies, because I have seen many horrendous examples of things going wrong.
Perhaps one good thing will come out of this committee's report, because I am satisfied that there is no breach of privilege: Senators and Senate committees might approach reports a bit more seriously in respect of attendance to practice and procedure. For example, many committees no longer adopt the bills in total and waive clause-by-clause consideration. It is not only this particular phenomenon but also the increasing shoddiness. Mr. Chair, perhaps this could be an opportunity to look into this.
Senator Andreychuk: Will we receive the minutes of the committee, including the in camera portions?
The Chair: I need a motion to that effect.
Senator Andreychuk: I so move.
The Chair: Is there discussion on the motion?
Senator Robichaud: Is there a motion before us? I had a comment on Senator Cools' remarks because I would not want her words "increasing shoddiness'' to go unchallenged: certainly, the committees that I sit on display no such shoddiness.
The Chair: We have Senator Andreychuk's motion before the committee. Is there further discussion on the motion?
Senator Corbin: What is the motion?
The Chair: The motion is to provide Senator Andreychuk with the minutes of the in camera meeting. My apology, you are correct, Senator McCoy: it is to provide the committee with the documents. Thank you, we will obtain the in camera documents.
We need a motion for adjournment on the understanding of Senator Corbin's suggestion that we provide members with these documents to study over the summer. We will come back in the fall and have an in-depth discussion of the matter. With that, could I have a motion for adjournment?
Senator Robichaud: I so move.
The Chair: All those in favour? Carried.
Have a great summer, everyone.
The committee adjourned.