Honourable senators, I am prepared to rule on the point of order raised by Senator Plett on September 25, 2024, as to whether 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, requires a Royal Recommendation. Consideration of the point of order continued on September 26, and I invite colleagues to review the Debates of the Senate for the full analysis provided by senators who took part. Although the point of order was raised during consideration of the report of the Standing Senate Committee on Legal and Constitutional Affairs recommending amendments to the bill, if the concern that Senator Plett identified is found to be valid, the bill itself could not be before the Senate, and the report would therefore be a nullity.

Senator Plett’s fundamental concern relates to the possibility that Bill S-15 would expand the range of governmental actions permitted under the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act and therefore require expenditures for a novel purpose not provided for under the current act. If this is the case, the bill would have to be accompanied by a Royal Recommendation, and it could not begin in the Senate.

On the other hand, the senators arguing for favouring the receivability of the bill stated that it does not give rise to distinct spending not already authorized and that it generally operates within the existing act’s structure and purpose. There were also concerns that an overly rigid interpretation concerning the Royal Recommendation could impede the Senate’s role as a legislative body.

It is a basic principle in our system of government that the Crown must agree to public expenditures before they can be approved by Parliament. This agreement is signalled by the expenditures being recommended to the House of Commons by the Governor General. Any such bill must begin in that house. This basic principle is expressed in rule 10-7, which states that “[t]he Senate shall not proceed with a bill appropriating public money unless the appropriation has been recommended by the Governor General.” This rule embodies some of the obligations imposed by sections 53 and 54 of the Constitution Act, 1867.

It is not, however, always evident when the financial initiative of the Crown comes into play, and procedural authorities and past rulings identify a range of factors to be taken into account. During consideration of the point of order, reference was made to key decisions such as that of February 24, 2009, concerning Bill S-204, and to another ruling of December 1 of that year, concerning Bill S-241. Extracts from other relevant rulings can be found in the third edition of the Companion to the Rules of the Senate, tabled earlier this year, in the citations relating to rule 10-7.

Factors that can be taken into consideration when determining whether a bill requires a Royal Recommendation include whether it contains a clause appropriating money, whether there is a novel expenditure not already authorized in law, whether the bill broadens the purpose of an expenditure already authorized by a Royal Recommendation, whether there is a relaxing of criteria to qualify for a benefit, whether the bill merely structures how a public agency will perform functions it can already undertake without imposing new duties, and whether the bill only imposes minor administrative expenses. This is not an exhaustive list of the points to consider, and each case must be evaluated separately. In the case of a bill to amend an existing statute, reference may also be made to whether the parent act was accompanied by a Royal Recommendation or not.

In ambiguous or uncertain cases, the Senate has a well-established preference, expressed in numerous rulings, for allowing debate to continue if a valid and reasonable argument that the bill is in order can be established. This principle of favouring debate if reasonably possible is fundamental to many aspects of the practical application of our procedure. It allows senators to reach a final decision, except in cases where an item is clearly out of order, thereby preserving the Senate’s role as a house of discussion and reflection.

It may also be noted that on some issues relating to public finance and expenditure, the Senate and the House of Commons have divergent analyses and can reach different conclusions. The most evident case is that the Senate recognizes that it has the right to amend supply bills — even though it rarely does so — while the House of Commons does not accept this position. It is thus entirely possible for a house to reach one conclusion, and for the other house to reach a different conclusion. This is in keeping with the bicameral nature of our Parliament; a bill can only proceed if both houses agree on every aspect.

Before proceeding with the specific case of Bill S-15, it should also be understood that there is no precise sum of money that triggers the requirement for a Royal Recommendation. If a bill would require a small expenditure for a purpose that is totally new and distinct, it may need a Royal Recommendation, whereas large increases in operational expenditures due, for example, to structuring how a government body performs existing responsibilities, may not require one. The fact that there may be expenditures consequential to the adoption of Bill S-15, as suggested by the report from the Parliamentary Budget Officer to which reference was made, does not, therefore, resolve the issue.

When dealing with issues of the Royal Recommendation, the Speaker’s role is to examine the text of the bill before the Senate, sometimes within the context of an existing law. Of course, when making this assessment the Speaker seeks, as in all procedural matters, to avoid interpreting constitutional issues or questions of law.

In the case of Bill S-15, a key issue relates to the permitting regime that currently exists under the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act relating to the transport of certain animals. If Bill S-15 is adopted, this regime would be extended to the possession, and not just limited to the transport, of elephants and great apes. Senators supportive of the point of order argued that this would constitute novel expenditures unrelated to the existing act. Senators who thought debate can continue argued that this was a minor adjustment to the existing permitting regime that would not require new spending authority and would fit within the existing structure and purpose of the act, which is broadly to protect certain species. On this point it is interesting to note that when the act was first adopted in 1992, the bill as introduced in the House of Commons did not receive a Royal Recommendation.

We thus face two clear arguments as to whether Bill S-15 can continue before the Senate. While the concerns about the measure are understandable, they can nevertheless be reasonably understood as being limited to matters very directly related to the purpose of the existing act, building on its structure, and complementing it. Coupled with the fact that the original act did not require a Royal Recommendation, there are strong arguments in favour of the continuation of debate. In keeping with our precedents and practice, the ruling must therefore be that the bill is in order and consideration can continue.

Before concluding, I wish to thank Senator Plett for his vigilance on this question. As I noted earlier, the financial initiative of the Crown is a key principle in our system of parliamentary government, and places restrictions on measures that can start in the Senate. All senators must bear these limitations in mind when considering bills or amendments that originate in the Senate.

Honourable senators, just to be clear, the motion cannot be debated, so we will be voting on this motion to appeal.

Honourable senators, shall the Speaker’s ruling be sustained?

All those in favour of the motion will please say “yea.”

Some Hon. Senators: Yea.

The Hon. the Speaker: All those opposed to the motion will please say “nay.”

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion the “yeas” have it.

Is there agreement on the bell? I hear one hour. Therefore, the vote will take place at 4:10 p.m.

Call in the senators.