Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 17 - Appendix 1120-04-02-3.40/L1-s-1-,18 "1''
Chair's Ruling
This is a very unusual point of order. It is being raised in camera. It refers to the procedural acceptability of amendments that are not yet formally before the committee. But it does contain the substance of what I would rule if a similar point of order were raised following the introduction of similar amendments during clause-by-clause consideration of Bill C-464. This is not a comment on the desirability of these amendments.
In preparation for making this ruling, I have consulted with the deputy chair, Senator Wallace. I have also consulted with the Table Officers. I have reviewed the 2nd reading speeches in the Senate and committee transcripts and I have read staff memos on the in camera meeting from last week. I have also received advice from the Law Clerk and I have consulted the written authorities such as the 2nd edition of House of Commons Procedure and Practice, Beauschene (6th edition) and Erskine May (23rd edition). I have also reviewed several Speakers' rulings in coming to this decision.
I will now review Bill C-464 and the proposed amendments. Bill C-464 amends paragraph 515 b(10)(b) of the Criminal Code, which says that bail can be denied where detention is necessary for the protection or safety of the public, including any victim of or witness to the offence. The bill amends the Code to add "persons under the age of 18 years'' to that short list, which is essentially illustrative. The bill does not change the law, but rather clarifies it. It is a "flag'' for the judge.
Senator Carignan's first proposed amendment would amend another element of section 515, namely paragraph 515(4)(e.1), which has to do with the conditions that may be set when bail is granted. The present paragraph says that conditions may be set to ensure the safety and security of "a victim of or witness to the offence''. This section does not mention the public. Senator Carignan's proposed amendment would further amend the bill to add "persons under the age of 18 years'' to this short, restricted list. His proposed amendment thus would cause an actual change to the substance of the existing law.
Senator Carignan's second proposed amendment would adjust a different section of the Code, paragraph 518(1)(d.2), which concerns the evidence a judge must consider when setting bail conditions. This proposed amendment would add evidence about the safety and security of "persons under the age of 18 years'' to this section of the Code. Again, this is an actual change to the substance of the existing law.
Turning now to the procedural analysis: The written authorities agree that an amendment is out of order if it is irrelevant to the bill, beyond its scope, inconsistent with the bill, or if it effectively reverses the bill's principle.
Beyond that, I turn to Speaker Kinsella's ruling on December 9, 2009. In his ruling, he states that:
. . . an amendment moved in committee must respect the principle and scope of the bill, and must be relevant to it.
[. . .]
As Senator Comeau noted, normal practice is that an amendment should not be moved that would amend an existing Act, unless the bill under consideration proposes that the Act be amended. What is more, in general, only those aspects of the original Act that are already to be amended by the bill are subject to further amendment. In the Commons, this appears to have been interpreted in a very rigid manner, that is to say that amendments that fail to respect these criteria, even if they are directly relevant or perhaps seek to correct something overlooked in error, are not acceptable.
As is often the case, and reflecting its unique approach, the Senate has not been so rigid on this point. Although the issue only comes up very rarely, practice here has tended to be that a proposed amendment to a bill amending an existing Act may deal with sections of the original Act that are not amended by the bill, provided that there is a strong and direct link between an existing clause of the bill and the change to the original Act that the proposed amendment seeks to affect.
So, are these proposed amendments relevant to bill C-464 and within its scope and principle? Arguments can be made either way.
As Senator Banks, the sponsor of the bill in the Senate, told this committee, the sponsors decided it was appropriate to move "one step at a time''. The bill is therefore limited in its scope, as indicated by its summary, to cases of an accused being detained in custody. Also, Bill C-464 only serves to clarify the law, as opposed to changing its substance. This is because persons under 18 are already members of the "public'', therefore protected under the current law, while the proposed amendments effect a more substantive change to the law.
That being said, it was clear, particularly from the debate in the Senate, that the sponsors and other senators were concerned about the need to consider the safety of persons under 18 generally when bail is being considered, and to ensure that judges have all relevant information before them.
Another indicator of the scope of Bill C-464 is its substance. It concerns persons under the age of 18 years and the need for attention to their protection in the context of judicial interim release. Both of the proposed Senate amendments are aligned with this substance.
Another indicator can be found in the opening words to section 518. They read: "In any proceedings under section 515. . .''. In other words, section 518 is intimately and directly linked to section 515; it is merely an extension of section 515.
From a substantive point of view, if a justice is to be enabled to make conditions to ensure the safety of a person under the age of 18 under paragraph 515(4)(e.1), it is logical to require him or her to consider evidence regarding the need to protect the safety of a person under 18. So, if the first proposed Senate amendment is allowed, so should the second one.
A fourth objective indicator of the scope of Bill C-464 is An Act to amend the Criminal Code (Victims of Crime) and another Act in consequence, S.C. 1999, c. 25. That Act amended each of the provisions of the Criminal Code put into play by Bill C-464 and the proposed Senate amendments: paragraph 515(4)(e.1); paragraph 515(10)(b); and paragraph 518(1)(d.1). So these provisions have been linked in past legislation, which opens the door to finding that they are all within the same scope.
Bill C-464 concerns persons under the age of 18 years and the need for attention to their protection in the context of judicial interim release. Both of the proposed amendments are aligned with this substance.
Thus it is clear that cogent arguments can be made either way. So I have turned to Speakers' rulings for further guidance:
On April 2 1998, Speaker Molgat stated that:
. . . matters are presumed to be in order, except where the contrary is clearly established to be the case. This presumption suggests to me that the best policy for a Speaker is to interpret the rules in favour of debate by Senators, except where the matter to be debated is clearly out of order.
On February 24, 2009, Speaker Kinsella stated:
. . . several Senate Speakers have expressed a preference for presuming a matter to be in order, unless and until the contrary position is established. This bias in favour of allowing debate, except where a matter is clearly out of order, is fundamental to maintaining the Senate's role as a chamber of discussion and reflection.
On June 3, 1999, Speaker Molgat stated:
. . . I do not think that there is any doubt that the amendments are relevant to the bill. There is nothing in their content that suggests that they are bringing into the bill anything that is extraneous or foreign to it. The real question is whether they are destructive of its principle. Do they have the effect of reversing this principle? Unless they do this unmistakably, I would feel obliged as Speaker to allow them and so let the Senate itself come to a determination on their merits.
[. . .]
Whether these are desirable objectives is not for me to decide. My responsibility is to assess whether these proposed amendments are beyond the scope of the bill, whether they are clearly destructive of the bill's principle or whether they unmistakably reverse that principle. It does not appear to me that they do this.
On June 13, 1996, Speaker Molgat found:
The arguments that have been presented were persuasive, but not conclusive. . .
[. . .]
. . . it would be better for the Senate itself, rather than the Speaker, to determine whether those amendments should be incorporated into the bill.
After having reviewed the bill and the proposed amendments and weighed the various arguments, I find that Senator Carignan's proposed amendments are not destructive to the principle of the bill. They are acceptable as a matter for consideration by this committee.