Honourable senators, when we adjourned yesterday, I had explained this unsound point of order must be declined. As I said, if successful, this point of order would significantly narrow the Senate’s legislative power compared to its record in current practice.

As such, this point of order risks disallowing many government Senate bills, Senate public bills, Senate amendments and MPs’ private member bills. I had explained that Bill S-15 makes no direct expenditures, and turned to potential indirect expenditures. I will now pick it back up there.

This point of order argues that the indirect expenditures set in motion by Bill S-15 would necessarily be so extensive as to trigger the need for a Royal Recommendation and requiring the bill to start in the House of Commons.

As referenced by the critic, in Senate Procedure in Practice on page 154, the Speaker’s ruling of February 24, 2009, explains the Senate’s framework for considering the necessity of a Royal Recommendation to the House of Commons, a framework required to appropriate money or raise a tax under section 54 of the Constitution Act, 1867.

At some length, I quote:

… a number of criteria must be considered when seeking to ascertain whether a bill requires a Royal Recommendation. 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 same way, a bill that would only impose minor administrative expenses on a department or agency would probably not trigger this requirement.

The list of factors enumerated… is not exhaustive, and each bill must be evaluated in light of these points and any others at play. It certainly is not the case that every bill having any monetary implication whatsoever automatically requires a Royal Recommendation. When dealing with such issues, the Speaker’s role is to examine the text of the bill itself, sometimes within the context of its parent act.

In situations where the analysis is ambiguous, 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.

Relevant to Bill S-15, Senate Procedure in Practice also states:

A bill that would impose merely minor administrative expenses or inconvenience, particularly if they are closely linked to an existing statute’s purpose, may not require a Royal Recommendation. . . .

As I will explain, Bill S-15 does not impose any inherent indirect expenditures. Most important, at the optional discretion of government, any indirect expenses need only be in the class of permissible administrative expenses or inconvenience, and thus would not require a Royal Recommendation. As well, any expenses could be recovered with application or licensing fees for cost neutrality.

On this point, we need to consider the substance of the bill before returning to the PBO report. Bill S-15 would establish prohibitions against acquiring, breeding, importing or exporting elephants and great apes unless licensed for either their best interests, conservation or scientific research.

Either the Minister of Environment or a provincial government would be able to issue such licences, except for international trade, an area exclusive to federal jurisdiction.

The minister could issue the relevant federal licences via their proposed authority in the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, or WAPPRIITA. Of note, this statute already grants the government regulatory and permitting authorities for the import, export and possession of wildlife in sections 6, 8, 10 and 21, including elephants, great apes and other species.

As well, Bill S-15’s changes are closely linked to and within the existing statute’s purpose, stated in section 4 of WAPPRIITA:

. . . to protect certain species of animals and plants, particularly by implementing the Convention and regulating international and interprovincial trade in animals and plants.

I emphasize the phrase “to protect.” A protective purpose can and does include protecting wild animals from cruelty. For example, WAPPRIITA’s current administration generally prevents the import of wild captured endangered species. Certainly, it is cruel to capture elephants and great apes and to remove them from the wild for display in captivity.

As well, last year, Environment Canada introduced additional restrictions around elephant ivory and rhino horn via regulations in WAPPRIITA. In addition to promoting conservation, protecting elephants and rhinos from being slaughtered — including where killing occurs inhumanely or surviving elephants would be traumatized after the massacre of family members — connects to protecting wild animals from cruelty. It is protective.

On the bill’s contents, I also note that Bill S-15 would ban using elephants and great apes in performances for entertainment purposes, with no licensing possible.

The PBO indicated to my office that prohibitions, such as in criminal law or trade restrictions, are not considered as spending money in terms of their potential enforcement by police, border officials and the like. Indeed, the Senate regularly initiates or alters prohibitions through bills or amendments.

The PBO also confirmed that legislating potential licensing around prohibitions does not necessitate creating such a framework. As a preliminary point, before moving to potential minor expenses, Bill S-15’s prohibitions could be allowed to stand alone, without indirect spending or licensing.

To illustrate, in 2019, Parliament passed whale and dolphin captivity criminal and trade prohibitions initiated in the Senate via Bill S-203 and government-initiated Senate amendments to Bill C-68. While banning performances for entertainment using whales and dolphins, those laws allowed provinces to potentially license the practice. However, that law did not mean that provinces must license the practice or must create a licensing process. After all, only two provinces had captive whales or dolphins.

Just so, if Bill S-15 becomes law, neither the federal nor provincial governments would be obliged to create a licensing process, such as for potential breeding. For example, would the seven provinces currently without captive elephants or great apes necessarily create such frameworks?

To this preliminary point, the prohibitions could stand alone, without any in direct spending on licensing. As such, Bill S-15 does not inherently cause any indirect spending. This is a technical point, but it is a technical point of order.

I would also very quickly respond to Senator Plett’s assertion yesterday that it will be the government’s responsibility to instruct owners of elephants and great apes about how to prevent their natural breeding. To the contrary, it will be current owners’ responsibility to comply with the law if adopted by Parliament, based on existing and reasonable animal husbandry practices, such as separating or not separating animals of breeding age by gender, the use of birth control or other reproductive control methods and so forth.

I turn now to the PBO report on Bill S-15 of August 8, 2024, and the question of potential minor expenses. In that report, the PBO estimated that over five years, Bill S-15 could cost $8 million to administer, with $2 million in each of the first three years and $1 million in each thereafter. The PBO confirmed to my office that their estimate is based on indications from the Department of Environment and Climate Change Canada, which the PBO deferentially accepts as regards development, permitting, permitting enforcement and data management.

In addition, the PBO’s estimate is based on the department’s optional position of not recovering any potential costs, such as through application of licensing fees from organizations looking to benefit financially from the display of captive elephants or great apes. The PBO also deferentially accepts that option for the purpose of their estimate, although cost recovery is possible.

To illustrate, a PBO estimate for a previous wildlife captivity bill from last year, Bill S-241, estimated a cost of $4 million over four years, with $1 million in cost recovery available per year. Notably, the PBO estimated that Bill S-241 would be half as costly to administer as Bill S-15, despite covering over 800 wild species, including elephants and great apes, with some species like big cats estimated to be held in the thousands, as compared to only elephants and great apes in Bill S-15, which number in the dozens. This was a surprising proposition: that the more extensive bill would be less costly to administer. Go figure.

In general, the PBO’s report on Bill S-15 appears to reflect a scenario where the department would choose, at its optional discretion, to spend an unnecessarily large amount of money to perform a modest function related to existing functions. It also reflects a scenario where the department would choose, at its optional discretion, not to recover any costs from organizations benefiting financially from the display of captive elephants or great apes.

In Saskatchewan, such a scenario would be referred to as bewildering or perplexing. This is why I agree with the public comments of Minister Guilbeault’s office that the Parliamentary Budget Officer, or PBO, estimates on Bill S-15 are premature, speculative and, “. . . no conclusions can yet be made about future cost implications.”

Please allow me to elaborate. For one, Bill S-15 is extremely similar to Canada’s whale and dolphin captivity laws, initiated in the Senate and administered by Fisheries and Oceans Canada, or DFO, for the last five years — without financial controversy — including with a permitting scheme that’s been applied for exports.

The PBO confirmed to my office that neither they nor Environment and Climate Change Canada, or ECCC, asked DFO about the indirect costs of administering the whale and dolphin captivity laws. The PBO did indicate that ECCC included in its estimates a major initial investment to maintain and operate a new IT data management system to log and track numbers of captive elephants and great apes in Canada. Hence, the higher claimed cost in initial years. This would be further to a proposal in clause 6 of Bill S-15 to monitor with a legislated notification system than what they would be monitoring: the numbers and locations of elephants and great apes in Canada.

Frankly, I do not understand this costing, since the small numbers and few locations of elephants and great apes in Canada are known and, except for Fauna Sanctuary, the animals are on public display. According to their websites and the media, 25 elephants live in Canada, with 19 at African Lion Safari, two at Parc Safari, three at Granby Zoo and one at the Edmonton Valley Zoo. The latter two zoos don’t plan to breed or acquire more elephants, so we can consider that to be a static count.

Also according to their websites and the media, 30 great apes live in Canada, with seven gorillas and seven orangutans at the Toronto Zoo; seven gorillas at the Calgary Zoo; four gorillas at Granby Zoo; and five chimpanzees at Fauna Sanctuary, which does not plan to breed or acquire more chimps.

To monitor these small and known populations in Canada — rather than spending vast sums on a new IT system — an Excel spreadsheet and the occasional phone call, email or online search would seem to suffice. That’s the way we do it in Saskatchewan. Moreover, the government would require notifications of birth after coming into force if any relevant animals are pregnant at the time.

In terms of regular costs, the PBO indicated that the department would ideally like to hire six new full-time staff at an average annual cost of $140,000 to administer the proposed elephant and great ape laws. Again, this discretionary option seems like an unnecessary cost. The department already employs staff to administer permitting for the transport of Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES, species to prevent trade harmful to wild populations, including elephants and agreement apes.

This occurs under existing appropriations for administering the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, which, as I noted, already contains regulatory and permitting authorities for the import, export and possession of wildlife, including the species covered by Bill S-15. As noted, Bill S-15’s function is also closely linked to the statute’s existing protective purpose. Bill S-15 would simply add prohibitions with potential licensing, as with the whale and dolphin laws.

In regard to licensing, as the Legal Committee learned in its study of Bill S-15, free expert advice is readily available about animal welfare, conservation and scientific research relating to elephants and great apes from scientists, non-governmental organizations and leading zoos. Perhaps current departmental staff could contact these publicly known experts for this free information and advice, as my office has done.

Again, there’s also nothing preventing the department from recovering any costs, such as through application and licensing fees, as the PBO assumed would occur in its estimate in relation to Bill S-241. That is another option to achieve cost neutrality, if indirect costs were incurred, such as the occasional contract for outside expertise.

The important point here is if there were cost implications in Bill S-15, they would be minor expenses or inconveniences or recoverable.

I also note that on May 22 at committee, in response to a question from Senator Dalphond, departmental officials confirmed that the amendments like the “Noah Clause” will not cost anything, if adopted by this chamber. This is because they do not require the government to do anything. The “Noah Clause” would simply establish that option going forward.

Senators, in thinking about potential indirect costs and this point of order, we should be mindful to compare the situation with Bill S-15 to other legislation initiated in the Senate. This is where this point of order, if it succeeds, could create a major precedent to significantly narrow our legislative powers in terms of government S bills, Senate public bills and amendments as well as private member’s bills, all of which almost never carry Royal Recommendations.

In considering the permissibility of potential indirect costs in Senate-initiated legislation, in the last 10 years, government legislation starting in the Senate and related Senate amendments have included: new vehicle recall powers for the Minister of Transport; an end to gender discrimination in Indian Act status, extending eligibility to tens and perhaps hundreds of thousands of people which, in 2017, the PBO estimated would cost in the form that Bill S-3 was amended by the Senate an initial $71 million plus $407 million a year; tax conventions with Taiwan, Israel and Madagascar; a regulatory framework for vaping and major changes to tobacco laws; major changes to the Canadian Environmental Protection Act, including Senate amendments to phase out chemical testing on animals — a practice that in 2019 impacted 90,000 animals — with a draft strategy to achieve this goal released by ECCC this month; admissibility changes to the Immigration and Refugee Protection Act; a chemical weapons convention; and several Indigenous self-government agreements.

In addition, reflect and consider that senators have initiated Senate public bills to, among other things: prevent genetic discrimination, including in the workplace; require the government to pay its contracts in a timely way as well as to require prompt payment of related subcontracts; prohibit cosmetic testing on animals and the sale of such products; create a Magnitsky Law to sanction foreign human rights abusers; change the customs rules for boaters on the U.S.-Canada border; phase out the captivity of whales and dolphins, with potential licensing; ban the import and export of shark fins; end the advertising of unhealthy foods to children; require age verification for online pornography; ban the live export of horses overseas for slaughter; create a Parliamentary Visual Artist Laureate; enhance the use of wood in public works; prohibit the exports of plastic waste; declare an Atlantic dikeland system to be federal; create an Employment Insurance council; establish the expiry of criminal records; prohibit the import of goods from a region of China; prohibit First Nations with the authority to conduct gaming; adopt a national strategy on human trafficking; create climate obligations on financial entities; have warning labels on alcoholic beverages; establish a foreign influence registry; authorize advance requests in medical assistance in dying, and make many other changes.

Senators, we need to be consistent in this regard. Canadians are watching.

In considering that these bills started in the Senate, is Bill S-15 an extraordinary outlier when it comes to potential indirect costs? Against this backdrop, and with the precedent on whales and dolphins, is Bill S-15 so clear a case that we would be barred from debate and decision on the bill? Is it really a multimillion-dollar task to count the animals I have just listed?

Senators, the financial responsibility of Bill S-15 is not a closed case. Even were it so, the Senate’s presumption applies that Bill S-15 is in order, which I quoted earlier.

To reiterate this central principle in our chamber from our primary authority, page 83 of Senate Procedure in Practice states:

The Senate is often flexible in the application of the various rules and practices governing debates. As stated by Speaker Molgat in a ruling on April 2, 1998:

It is my view 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.

Senators, Bill S-15 is properly before the chamber, and this point of order must be declined. Thank you. Hiy kitatamihin.

I rise to make brief remarks in support of Senator Plett’s point of order. Despite some of the assertions in Senator Klyne’s remarks today and the other day, it’s clear that bills spending significant money cannot be initiated in the Senate. Here, we’re not dealing with minor administrative expenses. I’ll give you two recent examples of bills in this respect.

The first is An Act to amend the Judges Act. I remember it well because I was the critic for it throughout. The Trudeau government first introduced that bill here in the Senate as Bill S-5 in June 2021. Then, following the 2021 election, the Trudeau government reintroduced this bill in the Senate as Bill S-3 in December 2021. In my role as critic for that bill, I raised my concern that those bills contained monetary provisions that I contended were not appropriate for a government bill being initiated in the Senate.

The Trudeau government did not initially heed these concerns, but later, the Speaker of the House of Commons made a ruling that then held the government to withdraw the Senate bill and reintroduce An Act to amend the Judges Act — properly this time — in the House of Commons as Bill C-9 in February 2022. The monetary provisions in An Act to amend the Judges Act were much less substantial than what exists in Bill S-15. As Senator Plett stated in his point of order speech, because of that expansive amendment that Senator Klyne brought at committee, Bill S-15 would involve, at a minimum, $8 million.

The second example is the bill on the Parliament of Canada Act changes. That bill was initially introduced by the Trudeau government as Bill S-4 in June 2021. Later, the Trudeau government reintroduced this bill in the Senate as Bill S-2 in November 2021. That bill also contained monetary provisions — specifically, additional salary amounts for senators in leadership positions within Senate groups other than government and the opposition. Given the concerns about a bill with these types of monetary provisions being initiated in the Senate, the Trudeau government withdrew Bill S-2 and reintroduced these Parliament of Canada Act changes in a Budget Implementation Act, obviously properly introduced in the House of Commons soon thereafter.

Again, honourable senators, the monetary provisions in that bill were nowhere near the dollar amount of Bill S-15, which is a minimum of $8 million. And let’s remember, this is according to the PBO, which is a pretty good source. Given these clear examples, I support the point of order of Senator Plett and ask that Bill S-15 be withdrawn. Thank you.

I will be brief. I will respond to Senator Batters because I was the sponsor of the bill on the Judges Act three times. I introduced it twice in the Senate, and when it came back from the House of Commons on the third attempt, it came here. You will remember that bill provided for automatic appropriations of funds from the Consolidated Revenue Fund to pay for the lawyers who would be acting for a judge. This is an appropriation bill.

We refer now to the Parliament of Canada Act, which again provided for the creation of new officers of the Senate. That would be automatically paid for from the Consolidated Revenue Fund. We’re not talking about these other bills, and Senator Klyne clearly made that point that when a department exists and is conferred duties, and then duties are added to those duties — where civil servants will have one more thing to check on the list of things to do — we’re not appropriating funds there.

I think there is a clear line with what the Constitution says: An appropriation bill cannot arise in the Senate, and that’s why the Speaker of the House of Commons felt that it was proper to have one of these two bills introduced in the House of Commons and not the Senate. Thank you.

I wish to respond to the point of order in the following way: In the government’s view, none of the provisions contained in Bill S-15 would give rise to a new and distinct spending authority that is not already authorized by statute. The changes proposed in Bill S-15 are intended to complement the permitting scheme found in the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, or WAPPRIITA. It protects Canadian and foreign species from illegal trade by regulating import, export and interprovincial trade of certain wild animals and plants to a permitting scheme that includes inspections, prohibitions, offences and penalties.

In terms of implementation, subsection 10(4) of WAPPRIITA allows the Minister of Environment and Climate Change to delegate responsibility for the permitting process to the provinces. It is possible that the federal government could provide funds to a province to support the permitting process if it were delegated; however, such a funding transfer would be made through statutory authorities beyond WAPPRIITA. Accordingly, this issue is not relevant to the point of order.

Bill S-15 would add two new permits to the current scheme to authorize the import and export of elephants and great apes and keeping these animals in captivity. The new permits would be integrated into the overall system established by WAPPRIITA, including offence and penalty provisions. WAPPRIITA includes authorities to administer the act. Section 12 of the act authorizes the Minister of Environment and Climate Change to designate officers and analysts to administer the act.

Any new employees to implement the scheme proposed in Bill S-15 would be funded through the authority provided under WAPPRIITA or through appropriations bills as part of the supply cycle. These resources would enable Environment and Climate Change Canada, or ECCC, to increase enforcement and inspection activities and to issue and review permits, including any other technological or resource requirements. This includes ECCC’s abilities to implement these measures with existing staff and data management capacities, as well as considering cost recovery options.

Colleagues, Bill S-15 also makes complementary amendments to the Criminal Code to make it a criminal offence to keep or breed elephants and great apes in captivity unless authorized by a permit issued under WAPPRIITA. These amendments are similar to section 445.2 of the Criminal Code, which makes it an offence to keep or breed whales and dolphins in captivity unless authorized by a provincial licence.

Honourable senators will remember that these offences were introduced by our former colleague Senator Moore in December 2015 as part of Bill S-203, which were later enacted into law through Bill C-68, which dealt with amendments to the Fisheries Act. You’ll recall — I certainly do — that Bill S-203 was subject to significant debate in committee study before it was passed in this place at third reading in October 2018. There were many senators who were concerned about the bill, and those senators made their views very well known. However, at no point did any of our colleagues call into question whether Bill S-203 imposed new and distinct spending on the Crown.

I will quote from a ruling by Speaker Kinsella from December 1, 2009, to which I think mention was made earlier — I apologize for underlining it, but I’m about to do so. The ruling clarified that when a bill proposes to add a function generally relating to an act’s existing purpose and without mandating new hiring or other expenditures as part of its decisions, then it doesn’t necessarily meet the threshold of a “new and distinct” expenditure.

To quote again from a ruling by Senator Kinsella, this one on February 24, 2009:

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 same way, a bill that would only impose minor administrative expenses on a department or agency would probably not trigger this requirement.

Later in the same ruling, Speaker Kinsella noted:

In situations where the analysis is ambiguous, several Senate Speakers have expressed a preference for presuming a matter to be in order unless and until the contrary position is established.

Page 155 of Senate Procedure in Practice also states:

A bill that would impose merely minor administrative expenses or inconvenience, particularly if they are closely linked to an existing statute’s purpose, may not require a Royal Recommendation.

To conclude and reiterate, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act already provides the Minister of Environment and Climate Change with existing statutory authorities to carry out both the permitting process and the necessary monetary penalties, namely in sections 10, 22 and 23 of the act. Therefore, Your Honour, for the reasons I have provided to you, I do not believe that this is a valid point of order. I submit that Bill S-15 is able to proceed.

Thank you very much.

Thank you, Senator Plett, for bringing this important question to our attention, and thank you to all honourable senators who shared their points of view on this important debate. I will take this question under advisement. Thank you.