I am rising on a point of order.

Your Honour, I rise today on a point of order regarding Bill S-15 because, as I will demonstrate, this bill cannot be introduced in the Senate.

The Companion to the Rules of the Senate of Canada states, “The constitution states that bills to appropriate funds or impose taxation cannot originate in the Senate. . . .”

That is because section 53 of the British North America Act of 1867 says:

Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.

So the issue here is simple: Does Bill S-15 appropriate funds? In other words, if it had been tabled in the other place, would it require a Royal Recommendation?

On February 24, 2009, former Speaker Kinsella explained that the criteria for whether a Royal Recommendation is required come down to the following:

First, a basic question is whether the bill contains a clause that directly appropriates money. Second, a provision allowing a novel expenditure not already authorized in law would typically require a Royal Recommendation. A third and similar criterion is that a bill to broaden the purpose of an expenditure already authorized will in most cases need a Royal Recommendation. Finally, a measure extending benefits or relaxing qualifying conditions to receive a benefit would usually bring the Royal Recommendation into play.

On the other hand, a bill simply structuring how a department or agency will perform functions already authorized under law, without adding new duties, would most likely not require a Recommendation. . . .

In the spring of 2010 issue of Canadian Parliamentary Review, Michael Lukyniuk, former Principal Clerk of the House of Commons, stated the following:

New and distinct requests for expenditure: This refers to measures which propose spending and are not supported by an existing statute. When considering a bill or amendment, the Speaker reflects on whether some entirely new activity or function is being proposed that radically diverges from those already authorized. . . .

He continued, saying, “If spending is contemplated . . .” then “. . . a royal recommendation would be required.”

Bill S-15 proposes new activities and functions for Environment and Climate Change Canada, or ECCC, and new spending would be required. If Bill S-15 had been introduced in the House of Commons, it would have required a Royal Recommendation.

In the same article I mentioned earlier, Michael Lukyniuk stated the following:

When a legislative proposal envisages a new role or function for an existing organization or program, a royal recommendation is required because the terms and conditions of the original royal recommendation which created that organization or program are being altered. . . .

The legislative mandate and authority provided to ECCC were initially implemented in 1971 by the Department of Environment Act, which established ECCC as a department. Today, the Minister of Environment and Climate Change has direct responsibilities under 33 acts and secondary responsibilities under 16 others.

These acts and associated regulations provide the department with its mandate to enable it to carry out its programs and meet its core responsibilities, which are identified as the following:

preserving and enhancing of the quality of the natural environment, including water, air and soil quality; addressing climate change, including carbon pricing; protecting nature, biodiversity, and species, including migratory birds; managing freshwater ecosystems; delivering meteorological services.

At no time since the establishment of the Department of the Environment in 1971 have ECCC’s mandate and authority included the responsibilities to protect, regulate or monitor exotic animals in captivity. Yet, Your Honour, this is what Bill S-15 will do, as noted in the summary of the bill, which reads as follows:

This enactment amends the Criminal Code to create offences related to keeping elephants and great apes in captivity, subject to certain exceptions. It also amends the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act to, among other things, specify the circumstances in which the importation or exportation of living elephants and great apes may be permitted as well as the circumstances in which the keeping of these animals in captivity may be authorized.

The circumstances under which the importation or exportation of living elephants and great apes may be permitted along with the circumstances under which the keeping of these animals in captivity may be authorized are detailed by the act and are quite extensive. For the sake of time, I will not articulate them in their entirety, but allow me to mention just a few in order to illustrate my point.

If passed, Bill S-15 will do the following:

First, it will make it illegal to possess elephants, great apes or other designated species in Canada unless the owner held them prior to the coming into force of Bill S-15 or has a federal permit or provincial licence for scientific research or conservation purposes. This would require establishing and regularly updating parameters by which it is determined whether a zoological institution qualifies for a permit, issuing those permits and then maintaining ongoing monitoring and reporting systems to ensure the requirements are continued to be met by the zoo. It will also require investigative and enforcement capabilities to ensure that the conditions and requirements for holding a permit are upheld.

With respect to provincial permits, there will also be a need to assess the legitimacy of those permits and monitor their status. If either the federal or provincial permits are found to have lapsed, or the conditions are no longer being met, enforcement action will be required to remove the animals from the institutions and relocate them. This will involve the need for experts of exotic animal welfare, including veterinarians, transportation consultants and handlers.

Second, Bill S-15 will make it illegal to breed or impregnate elephants, great apes or designated species in Canada unless the owner has a federal permit or a provincial licence for scientific research or conservation purposes.

In addition to the introduction of a permitting system noted under point 1, this will require additional monitoring, investigation and enforcement in order to ensure ongoing compliance with the intent of the legislation respecting research and conservation. I doubt that it will be enough for a zoo to just check a box on a form that says, “Yes, we do research.” Research and conservation will need to be clearly articulated and defined after necessary research and consultation are undertaken.

Third, the bill imposes a legal duty on those who currently possess elephants or great apes in captivity to take reasonable measures to prevent their natural breeding. The definition and particulars of what constitutes reasonable measures will need to be developed and communicated with owners of the restricted animals, and then monitoring, investigation and enforcement will be required. The department will need to be able to examine and assess alterations to the animals’ living arrangements to determine if they are appropriate and sufficient, along with veterinary interventions taken to prevent breeding.

Since a failure to comply with the legislation will result in a charge under the Criminal Code, these guidelines and the obligations they place on zoo owners cannot be general or hazy. They will need to be clear and well documented. Furthermore, in the event of an unauthorized birth, a relocation of the animals may be required due to the contravention of the law’s requirements. This may require changes in the management of these animals, potentially involving alterations in their living arrangements or veterinary interventions. It may require the removal and the relocation of animals.

Fourth, for animals that cannot remain in their current settings under the new law, there will be a need for the development or expansion of sanctuaries capable of providing appropriate care in addition to the development of the process and the oversight of relocation.

These, Your Honour, are no small tasks. When considering if this bill is in order, or if it needs a Royal Recommendation, the evidence clearly shows that the legislation proposes entirely new activities for ECCC. This is a critical observation. The fact that Bill S-15 introduces responsibilities outside of ECCC’s current mandate has been confirmed, Your Honour, by the Office of the Parliamentary Budget Officer and by ECCC officials themselves.

As critic of Bill S-15, I asked the Parliamentary Budget Officer, or PBO, to prepare a legislative costing note for the bill. In my briefing with the Office of the PBO, they noted the following:

In their discussions with PBO, ECCC officials confirmed that ECCC does not currently have a mandate to protect wild animals in captivity and, as a result, does not have expertise in this area. Amending WAPPRIITA, would therefore require a new program with new expertise.

This was confirmed repeatedly by ECCC officials at committee: Bill S-15 introduces new responsibilities for the Department of Environment and Climate Change Canada outside of its current mandate and responsibilities.

Specifically, Stephanie Lane, Executive Director of Legislative Governance at ECCC, confirmed that the department does not currently have the expertise on species that are not native to Canada. At the Legal and Constitutional Affairs Committee meeting on May 22, Ms. Lane said, “. . . at this time, Environment and Climate Change Canada does not have that expertise,” and that the department’s role under the Convention on International Trade in Endangered Species, or CITES, is quite different when it comes to species outside of Canada. She said ECCC was focused on administrative controls and monitoring, but not direct management or expertise.

She also said that the Committee on the Status of Endangered Wildlife in Canada, or COSEWIC, assesses species that are native to Canada, and currently ECCC’s mandate is aligned with that. Hence, the department doesn’t have responsibility for non-native species at this time.

In the committee meeting on May 22, Basile van Havre, Director General of the Canadian Wildlife Service at Environment and Climate Change Canada, mentioned that the department does not have expertise related to species that are not native to Canada. He explained that while they administered the Convention on International Trade in Endangered Species, this expertise did not extend to species outside of Canada, underscoring how these new responsibilities would be beyond ECCC’s current scope.

Mr. van Havre said:

. . . we do not have expertise on species that are not native to Canada. We administer the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

While the department does manage species listed under CITES, this does not include management of species not found in Canada, which is outside of their current mandate.

There is no questioning the clear fact that not only does Bill S-15 introduce new responsibilities, but these are not captured under the existing mandate of the department.

In addition, these new responsibilities will require the expenditure of public funds.

The Office of the Parliamentary Budget Officer estimated this cost to be $8 million over five years. This is new spending which would be imposed on the treasury.

The total estimated cost of administering provisions under Bill S-15 consists of three categories of costs: policy development and permitting costs, enforcement costs and data management costs.

The development and permitting costs and the enforcement costs required to administer the provisions of the bill were estimated by the Parliamentary Budget Officer, or PBO, using the costs provided by Environment and Climate Change Canada, or ECCC. This included the number of full-time equivalent employees needed to administer the provisions of the bill, as well as the salaries, employment benefits and pension plan costs of those individual employees.

The data management costs were also provided by Environment and Climate Change Canada. Salaries, employment benefits and pension plan costs were calculated using the Treasury Board of Canada Secretariat and Statistics Canada data.

Altogether, as I mentioned, the total came to $8 million over five years.

The PBO noted, however, there is significant uncertainty over these numbers because they do not include the impact of the amendment adopted at committee — the “Noah Clause” — which permits the government to add additional species by order‑in-council. This means that this estimate is the bare minimum. Considering the significant expansion of responsibility imposed on the department, it should be considered to be extremely conservative.

Furthermore, regarding the possibility of recovering the costs, the PBO told me the following:

The question of recovery costs was duly discussed with ECCC, and ECCC officials confirmed that they will not recover any of the costs associated with administering the provisions of Bill S-15.

They have also mentioned that they have never recovered any of the costs associated with administering the permit scheme under WAPPRIITA.

In other words, any effort to recover costs under the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, or WAPPRIITA, would likely be, in and of itself, an expansion of Environment and Climate Change Canada’s mandate. It is not something Environment and Climate Change Canada does now, nor has it ever done under the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.

Even if the costs of the new responsibilities imposed on Environment and Climate Change Canada could be recouped either through fees and charges or by redirecting money from other places, this would not alleviate, Your Honour, the need for a Royal Recommendation. There is simply no way around this fact.

Some may say the expenditures are not significant and should be seen only as minor administrative expenses. First of all, I would strongly object to any assertion that $8 million amounts to minor administrative expenses. Even if it would be considered a small amount, that would not be sufficient to save the bill.

Speaker Kinsella’s ruling on February 24, 2009, made it clear when he said that to be exempt from the need of a Royal Recommendation, the bill must be:

. . . a bill simply structuring how a department or agency will perform functions already authorized under law without adding new duties . . . .

In other words, if the bill results in minor administrative expenses, it does not need a Royal Recommendation as long as those expenses are incurred in functions that were previously authorized by a Royal Recommendation.

As I have pointed out, however, that is not the case with Bill S-15. This legislation significantly expands the mandate and responsibilities of Environment and Climate Change Canada into areas they have no expertise with or in.

Some senators may invite you, Your Honour, to use your discretion to allow these debates to continue rather than ruling in favour of a point of order. However, this would not be in line with our jurisprudence.

Again, I refer you to Speaker Kinsella’s decision on May 5, 2009, where he said:

While there is a general preference in the Senate to favour debate in uncertain situations, this must be balanced against the need for a scrupulous respect for the financial initiative of the Crown, a basic principle of our parliamentary system. The passage of Bill S-219 would expand the range of conditions under which the government would have to make good its guarantee of loans under the Canada Student Loans Act. This would change the existing scheme, since payments from the Consolidated Revenue Fund might increase due to the change in possible obligations. As such, the bill should have a Royal Recommendation, and would have to originate in the other place.

The ruling is, therefore, that this bill is out of order. Debate at second reading cannot continue, and the bill shall be withdrawn from the Order Paper.

This is not an isolated ruling on this matter. Numerous rulings by the Speaker of the Senate have underscored this point, including rulings on December 1, 2009; March 10, 2011; and December 16, 2011. I am quite prepared to send those to you, Your Honour.

When a Senate bill has been found to require a Royal Recommendation, the Senate cannot continue debate, as the legislation must originate in the other place.

When it has been established that the bill will expand the existing mandate and these new responsibilities are not covered by existing appropriations, the Speaker cannot rule to continue debate.

There is no ambiguity in the situation before this chamber.

Bill S-15 creates new responsibilities for the department; the government officials and the PBO have said so.

Bill S-15 creates new expenditures for the government; the government officials and the PBO have said so. Even if it did not, this bill cannot be introduced in the Senate because it creates new responsibilities.

Your Honour, debate cannot continue, as it was decided by previous Speakers. Therefore, Your Honour, with all respect, you have no other choice but to respect the Constitution of Canada and declare that Bill S-15 be discharged and the bill be withdrawn.

Thank you, Your Honour.