Honourable senators, I am prepared to rule on the point of order raised by Senator Plett on October 3, 2024, concerning the receivability of certain amendments proposed to Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, in the 25th report of the Standing Senate Committee on Legal and Constitutional Affairs.

The Leader of the Opposition argued that amendments moved by Senator Klyne, the bill’s sponsor, in the committee, and contained in the report, exceed the scope of the bill as agreed to by the Senate at second reading. If so, they cannot be properly before the Senate. Senator Klyne, on the other hand, felt that the amendments he proposed should continue before the Senate. I thank both senators, as well as Senator Batters who also participated in the consideration of the point of order, for their thoughtful input on an important matter.

As senators know, amendments to a bill must respect the principle of the bill, be within its scope, and be relevant to it. As noted in a ruling of December 9, 2009:

It may generally be helpful to view the principle as the intention underlying a bill. The scope of the bill would then be related to the parameters the bill sets in reaching any goals or objectives that it contains, or the general mechanisms it envisions to fulfil its intentions. Finally, relevancy takes into account how an amendment relates to the scope or principle of the bill under examination.

As indicated at page 141 of Senate Procedure in Practice, this means that:

Amendments must ... be in some way related to the bill before the committee, and cannot introduce elements or factors alien to the proposed legislation or destructive to its original goals. In addition, amendments must respect the objectives of the bill. In dealing with these issues, it may be necessary to perform the delicate task of trying to identify the fundamental policy and goals behind the bill. In so doing, factors such as the long title of the bill, its content and debate at second reading may be taken into account.

Senators’ understanding of the bill, as outlined in debate at second reading can thus be considered in this analysis. As set out in rule 10-4, the principle of the bill is under consideration at this stage. All subsequent proceedings may be restricted by the decision on principle — and flowing from it the matters of scope and relevancy — taken when the Senate agrees to a bill at this stage. No one senator can determine whether amendments can go beyond these parameters.

The fact that a committee adopts an amendment that does not respect the principle and scope of a bill, or is not relevant to it, does not protect the amendment from being challenged in the Senate. While committees are often said to be masters of their own proceedings, they must operate within the rules and practices of the Senate. Although rare, there have been cases where an amendment made in committee has been challenged while the report was under consideration in the Senate. Once the report is adopted, of course, such a challenge would no longer be possible, since it would involve questioning a decision of the Senate itself.

So, while it is possible for a committee to propose quite substantial changes to a bill, the committee must do this within the Senate’s framework of rules and practices, including respect for principle, relevancy and scope.

During consideration of the point of order, concerns were expressed that finding the contested amendments to be out of order might unduly restrict the flexibility needed by the Senate and its committees. On this matter, it must be emphasized that these rules assist in ensuring a structure and orderliness to proceedings, and they are not unduly burdensome. Unless a colleague raises a point of order, debate will almost always go ahead. Even if a point of order is raised, it is quite possible that the amendments would be found to be in order. The Senate has not chosen to impose upon itself a rigid system of pre‑verification or validation of amendments and, in practice, this issue only comes up quite rarely, and only if a senator raises it.

In the current case, such a concern has, of course, been raised. The contents of Bill S-15 are clearly structured around issues relating to elephants and great apes. That is what the bill deals with. During debate at second reading, senators focused on these issues. It is also noteworthy that a clear distinction was drawn by some senators between Bill S-15 and Bill S-241, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and interprovincial Trade Act (great apes, elephants and certain other animals). While Bill S-15 was portrayed as generally fitting within Bill S-241, it was recognized to have a much narrower scope, to take into account concerns that had been noted during consideration of the latter bill.

To transform a proposal dealing with two types of exotic animals, developed for specific purposes in light of our constitutional regime, into a measure possibly capturing an open-ended list of species, based on decisions of the Governor in Council and going far beyond just elephants and great apes, would be a surprising development. The goal may or may not be desirable — that is for individual colleagues to decide — but such a transformation cannot be supported by the framework of Bill S-15 as introduced or the understanding of its goals and structure that were evident at second reading debate. The amendments challenged in the point of order are therefore not in order, to the extent they go beyond the bill’s original focus on elephants and great apes.

This analysis does not, however, resolve the issue, since the question of an appropriate remedy must also be considered. In our recent cases involving committee reports containing amendments that were beyond the scope of the bill, all the amendments were involved. The content of the report could thus be evacuated, and the bills proceeded to third reading without amendment. Since some of the amendments contained in the report before us were not challenged, this option does not seem appropriate in this case.

The chair thus sees three possible options available. First, the Senate could continue with debate on the report, with the restriction that the question cannot be put with the report in its current form. A senator would have to move an amendment to remove the proposals that are beyond the scope of the bill. This approach could lead to confusion as to what exactly the Senate is dealing with and whether such changes are sufficient to ensure respect for the scope.

Another approach — which reflects how the House of Commons has dealt with this issue — would be for the Speaker to direct that the relevant elements be struck from the report. This approach would, however, not be in keeping with the culture of our institution, where senators are generally responsible for our work, assisted by the Speaker in the orderly conduct of business. In addition, it should be noted that some elements in the report appear to contain provisions that are out of order and others that are not. As such, the chair is reluctant to arrogate to itself such a role in relation to a lengthy and complex report.

On balance, it would appear that the most appropriate approach, in this particular case, would be for the report and the bill to be returned to the committee. This would allow the committee, which has the expertise, to correct the report by removing the elements that are beyond scope. The committee would be best placed to decide on any complex cases in light of its previous work on the bill. While the committee would be able to decide how it wishes to proceed, this work could be relatively limited, with the committee only having to review the report, remove provisions that were challenged in the point of order, make necessary adjustments and adopt a new report on the bill for presentation to the Senate. It would not be necessary for the committee to redo clause-by-clause consideration of the bill, unless it decides to proceed in that way.

The ruling is therefore, that the amendments challenged in the point of order are not properly before the Senate. To allow the committee to correct this situation, the report is to be struck from the Orders of the Day, and it and the bill be returned to the Standing Senate Committee on Legal and Constitutional Affairs, so that it can make the requisite corrections and present a new report that respects the scope of the bill. That new report could, of course, be challenged in turn if a colleague were to develop strong arguments that the result is still beyond the bill’s scope.