Honourable senators, I am prepared to rule on the point of order raised by Senator Carignan on October 24, 2024, in relation to Bill S-230, An Act to amend the Corrections and Conditional Release Act. The concern relates to whether the bill requires a Royal Recommendation. If it does, the bill cannot originate in the Senate. It would, instead, have to start in the House of Commons, and be recommended to that house by the Governor General.

The issue of the Royal Recommendation has been reviewed in detail recently, both during consideration of this point of order and in the one concerning Bill S-15. Arguments on the point of order concerning Bill S-15 were heard on September 25 and 26, and a ruling delivered, and sustained by the Senate, on October 2. Rather than repeating the detailed background on the Royal Recommendation, I encourage colleagues to review the relevant pages of the Debates of the Senate. Honourable senators will also be interested in reading the analysis of related issues found at pages 152 to 158 of Senate Procedure in Practice, including the quotes from the ruling of February 24, 2009, outlining many of the key factors guiding analysis of this topic.

For background on this particular point of order, I encourage colleagues to review the arguments presented by Senator Carignan, Senator Pate, who is the sponsor of Bill S-230, as well as other colleagues. I should also note that much of the commentary presented during argument on the point of order was informed by the analysis of the bill prepared by the Parliamentary Budget Officer, at the request of the Standing Senate Committee on Legal and Constitutional Affairs. The online version of the committee’s twenty-ninth report, dealing with Bill S-230, contains a link to the Parliamentary Budget Officer’s report.

Senator Carignan identified three key points of concern. First, he argued that clause 4 of Bill S-230, which would require that the transfer of detained individuals to a hospital be authorized in certain circumstances, could require new expenses to be effective. The Parliamentary Budget Officer suggested that the amounts involved might range from nothing to as much as two billion dollars. Second, Senator Carignan argued that clause 5, which would require that confinement in a structured intervention unit be limited to 48 hours unless an extension were authorized by a superior court, would require new expenditures not already authorized by law. This would be because of factors such as the need to prepare for legal proceedings and to move individuals who are in custody. He also suggested that clause 11, which would allow applications for reductions in sentences on the basis of unfairness in the administration of the sentence, would incur similar expenses. The analysis by the Parliamentary Budget Officer suggests that these two latter provisions might incur expenditures that are difficult to estimate, but could be in the range of $6.8 million.

Other senators did not accept this analysis and its possible consequences. In relation to the first point, it was noted that the changes in clause 4 do not mandate expenditures, since all that is required is an authorization to transfer an individual to a hospital, not that the transfer actually occur. While there might be pressure for the allocation of additional funds to finance transfers, that would be distinct from, although consequential to, the actual requirements imposed by the bill. In relation to the second and third points, it was noted that the possible expenses related to legal proceedings are significantly less than one per cent of the total expenses of the Correctional Services of Canada. Although the report of the Parliamentary Budget Officer itself calls these the “direct cost of the bill”, it then clarifies that “this does not mean that the bill authorizes any additional spending. Rather the direct cost of the bill represents an opportunity cost — the resources which would be needed to comply with the new obligations, and which may no longer be available for other responsibilities.”

Before advancing further, I do wish to address the issue of potential cost savings that may occur if a bill is adopted, even if some of its provisions could require novel expenditures. This issue came up a number of times during consideration of the point of order. It was suggested that potential savings consequent to the adoption of Bill S-230 could allow the Senate to sidestep concerns about novel expenditures the bill might require. However, the twenty-fifth edition of Erskine May, at page 891, notes that “[c]ounter-balancing reductions in expenditures purposes provided for elsewhere in the bill are disregarded, as are statements in the explanatory notes accompanying the bill to the effect that costs will be met from within existing financial resources or that no overall increase in public expenditure is expected to result from the bill.” If some element of the bill would require novel expenditures for purposes not already authorized in law or would broaden the purpose of a previously authorized expenditure, the bill would need a Royal Recommendation, even if it would result in a net saving to the public purse.

I must also remind colleagues that in the Senate our general presumption is that a matter is in order, if a reasonable argument can be made to that effect. The argument that an item is in order need not be stronger than the counterargument, it must only be reasonable. This is a deliberate bias in favour of allowing debate to continue, if reasonably possible, so that honourable senators have the broadest latitude reasonably possible in their legislative work.

In terms of the concerns about clause 4, which deals with authorization for transfer to a hospital, a strict reading of the clause would be that it only requires authorization, not that the transfer actually occur. Senators will no doubt wish to consider carefully whether such an approach is desirable, recognizing that the provision might create pressure to incur costs that might be required to make the authorization effective. The clause does not, however, itself appear to compel expenditures for novel purposes.

In relation to the concerns about clauses 5 and 11, which deal with expenses required for possible judicial review, I would again refer to the most recent edition of Erskine May, at page 892, where it is noted that the Crown’s recommendation is not required if “proposals may have the incidental consequence of increasing the costs of the administration of justice.” In this context, incidental does not refer to a specific amount of money, but instead to whether the charge on the public purse is merely a consequence of the legislative measure affecting the range of issues with which the court must deal. As a general principle, measures that could widen the jurisdiction of a court, as well as those creating new offences, do not, therefore, require a Royal Recommendation.

Separate from this issue, in relation to clause 5, it can be noted that section 33 of the Corrections and Conditional Release Act already requires that “[a]n inmate’s confinement in a structured intervention unit is to end as soon as possible.” The proposed new wording contained in Bill S-230 can thus be reasonably understood as structuring a requirement that already exists in law, by reducing the level of discretion enjoyed by the Correctional Service of Canada.

On balance, it does thus appear that a reasonable case can be made that debate on Bill S-230 should be allowed to continue. Honourable senators will no doubt wish to reflect on the possible broader effects of the bill and the issues raised in the point of order. I wish to thank Senator Carignan for his attention to an important matter, which helped ensure a more fulsome appreciation of the possible effects of the bill.