Debates of the Senate (Hansard)
Debates of the Senate (Hansard)
2nd Session, 35th Parliament,
Volume 135, Issue 16
Wednesday, May 8, 1996
The Honourable Gildas L. Molgat, Speaker
- THE SENATE
- ROUTINE PROCEEDINGS
- QUESTION PERIOD
- ORDERS OF THE DAY
THE SENAT)
Wednesday, May 8, 1996
The Senate met at 2:00 p.m., the Speaker in the Chair.Prayers.
The Late Honourable Earl A. Hastings
Tributes
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, it is with great sadness and a profound sense of personal loss that I pay final tribute to our late colleague and friend, Earl Hastings. With his death on Sunday, Canada lost a very distinguished public servant and a humanitarian of rare courage and tenacity. It was his uncompromising belief in the value of each individual in society that defined Earl Hastings. It is the compassion and kindness that grew from those beliefs that I and his many friends will perhaps miss the most.Earl Hastings was summoned to the Senate by Prime Minister Pearson in 1966. Within a short period of time, he was widely recognized as a national ombudsman for prisoners and an advocate in the criminal justice system. His work made him an acknowledged expert by those associated with that system. Indeed, it consumed his working life as a permanent priority, as a cause, and as a senator in this place, where he served for almost 30 years.
Honourable senators, Earl Hastings spoke with tireless passion and conviction on behalf of a justice system which he believed should concern itself with humanity and rehabilitation. He believed that individuals could change the course of their lives, and he pursued that conviction until the very end.
Senator Hasting's leadership was formally acknowledged with two prestigious awards. In 1986, the John Howard Society presented him with its distinguished Canadian humanitarian award, and, in 1992, the St. Leonard Society with its humanitarian advancement award. Those were large moments in his life. However - and I am sure Senator Doyle would agree - the most profound impression one could form of Earl Hastings would be developed by travelling with him through the prison system of this country, where he was respected, not just by the prisoners, the wardens, the guards and the people who worked in them. Senator Doyle and I had the privilege of taking that amazing tour.
In addition to that cause, Earl Hastings also served his country, this chamber and his province as chair of the pipeline committee. He was chair of the Standing Senate Committee on Energy during the turbulent years of the 1980s, when he, as an Alberta senator, conducted himself with considerable courage. More recently, he served as the chair of the Standing Committee on Internal Economy, Budgets and Administration.
Senator Hastings took an active interest in aboriginal issues. As many senators know, he made a significant contribution as a delegate for Canada to the NATO Assembly. Senator Hastings was involved in that area since 1979 as a major player and was chairman of the association's committee on technology and verification.
Honourable senators, no tribute to Earl Hastings would be complete without citing the outstanding role he played in the life of the Liberal Party in both Saskatchewan and his adopted province of Alberta. He was steadfast, cheerful and vigorous. He went from door to door and farm to farm with a voice for a party that was not always received enthusiastically by the electorate of those provinces. He believed always in the democratic process and that, no matter how large the majority might be, there always had to be an alternative in order for citizens to make informed choices when choosing their representatives.
These few remarks only touch lightly upon the remarkable contribution this gentleman made to this chamber, his province, his country and the Liberal Party. We have lost a man of unique characteristics, a man of loyalty, humour and sensitivity. To his wife Evelyn, his children, David, Donald and Leslie, and his grandchildren, I extend on behalf of this side my most sincere condolences.
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, if the Honourable Earl Adam Hastings were with us today, I am certain he would want no fancy tributes nor testimony beyond what might be considered appropriate and timely to sum up the career of a "plain, blunt man," to borrow from Shakespeare's Julius Caesar.
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For a person as active, as involved, as committed as Senator Hastings, the care and upkeep of a reputation for simple and direct participation in the affairs of our times was no easy task. He worked at it. The modest outline of his career in Who's Who and the even more frugal, six-line biography in the Canadian Parliamentary Guide provide only a scant definition of his robust contributions to the political life of this country.
Earl Hastings campaigned for a House of Commons seat in 1962 and 1963. As a vigorous spokesman for Alberta, he became involved in the ferment that Lester Pearson brought to the Liberal Party as its leader and its Prime Minister.
It was in this chamber and beyond it, however, in the halls and meeting rooms, and wherever Canadians would give him a microphone and time to speak, that Senator Hastings became one of the country's most vigorous advocates of prison reform. Those who watched him in action, as he would go on one of his periodic visits to this country's penitentiaries, marvelled at his capacity to hold the attention and the respect of prisoners who trusted few others to befriend them, and even fewer in whom to confide.
It was not a cause that always brought universal acclaim or even reluctant enthusiasm. Less than three months ago, a Calgary newspaper wrote as follows in an editorial:
We wish Senator Earl Hastings well in his recovery from surgery. We wish, as well, he'd cut out counselling killer convicts on how to wiggle their way past parole boards and on to the streets of Canadian cities.
Against such ignorant vilification, Senator Hastings would have pointed with great pride to his designation as distinguished humanitarian by the John Howard Society in 1985.
All of us on this side extend our deepest condolences to his family on their great loss.
Hon. Dan Hays: Honourable senators, I should like to join with colleagues in paying tribute to Senator Earl Hastings. His achievements and some of his remarkable characteristics have been well described by the Leader of the Government and the Leader of the Opposition. I should like to share a few other reminiscences.
In addition to the reminders of Senator Hastings thus far as a fierce Liberal partisan, I remember him as being more committed to political causes than anyone I have ever met. I first met Earl Hastings in 1962. He was chairing the election campaign in Alberta for the Liberal Party as well as running in the election. Shortly after Earl's death, I was talking to James Maxim about that time period, and James reminded me that, at that time, there were probably only six Liberals in the province of Alberta: Earl Hastings, James Maxim, me - and we were not too sure about the other three.
My other memories of Earl concern the committee on which I served when I first came here. He was the chairman of the Standing Senate Committee on Energy and Natural Resources. I had the great honour of succeeding him in that chairmanship in 1987. Prior to that, the chair had been held by Senator Olson when the committee was called the pipeline committee. While chairing that committee, Earl undertook a number of studies which may not now seem so courageous, but they were then, indeed, quite an undertaking for the Liberal chair of an energy committee on the phase-out of the National Energy Program. Earl accepted that task with equanimity. He followed through on it and made some excellent suggestions which were later carried through.
Senator Carney was then Minister of Energy, and she later chaired that same committee. I am proud to say that the committee is again under the chairmanship of an Albertan, in the person of Senator Ghitter.
Finally, I think of another senator whom I knew so well, my father. He, too, died in office, interestingly enough on May 4, 1982; Earl died on May 5. He and my father died at exactly the same age - 72 years. As I think back on that, and on my feelings about Earl, I sympathize with his family and I mourn with them, knowing how difficult it is to lose someone of the calibre of Earl Hastings. He will be remembered and missed.
Hon. Nicholas Wm. Taylor: Honourable senators, I worked with Senator Hastings, first in the oil industry in the 1950s and then as we tried to revive the Liberal Party in the late 1950s, after the Diefenbaker holocaust. I have many fond memories of him.
I know that honourable senators opposite are probably thinking that it was a liberation rather than a holocaust, but we will debate that at a later time.
When Earl was president of the Liberal Association in the late 1950s and I was the treasurer, we would go throughout the byways of Alberta, trying to raise enough money to revive a party which was in a state very much similar to that in which the party of the honourable members opposite now languishes. It is not an easy thing to do.
One of Earl's great characteristics, which may not be well known in this place, was his fun-loving nature and his great singing voice. While we could afford no entertainment, we would call our Liberal meetings and be led in a sing-song by Earl Hastings through many of the old songs and Scottish tunes. He even prevailed upon me, on occasion, to wear my kilt.
That was the beginning of the Liberal revival in the early 1960s, when a mere tad of a lad came along, a student named Dan Hays. His father, the Honourable Senator Hays, also played a great role in that reviving work.
Another little-known fact about Senator Earl Hastings is that he was a great friend of Johnny Cash. Earl was instrumental in getting that great singer to visit Western Canada. Johnny Cash shared Earl's great interest in criminal rehabilitation.
I will remember Earl as a great, fun-loving man. I hold in my fondest memories the times I spent with Earl in the late 1950s. I treasure the great friendships we formed in those times.
I extend my sympathy to Earl's family and to his greatest supporter, his wife Evelyn.
Hon. Len Marchand: Honourable senators, I would join with the other honourable senators who have said such wonderful things about the late Honourable Senator Earl Hastings. In particular, I would offer thanks on behalf of the aboriginal people in this country for the many things that Senator Hastings did on our behalf. He was a great friend of our people. Of course, as we have said, he really was a great friend of humankind.
He cared deeply, in recent times especially, about aboriginal veterans. You may recall the motion for a special report which I put forward, and which was seconded by my friend Senator Watt. Earl Hastings did a great deal of the prodding and the backgrounding for that study.
Before we got the study going, Earl and I went out to Saskatchewan where we met quite a large number of the aboriginal veterans. Upon our return to Ottawa, I moved the motion, and the special study ensued.
On behalf of my community, we offer our thanks to Earl. He is sure to make it to the happy hunting ground where he will meet many of his old buddies who have gone before. I am not sure if I will make it there, but I am sure Earl will be there.
I wish to extend my condolences to Evelyn and all their family.
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Hon. Sharon Carstairs: Honourable senators, as I listened to Senator Hays talk about himself and Jim Maxim, I was reminded that the other three were Jim Coutts, Senator Taylor and John Carstairs. On many a night that group would write for The Albertan, the Liberal paper in Calgary, a press release talking about a wonderful Liberal meeting they had attended. The fact that only the six of them were there was entirely irrelevant. It made good copy, and The Albertan always printed it.
I did not meet Earl until after John and I were married. John's favourite story about Earl happened on the day he got the call from the Prime Minister to say that he had been summoned to the Senate. He was not a man of means. He did not own $4,000 worth of property. As a matter of fact, he did not own any property. He called my husband, who was a lawyer, and said, "What am I going to do?" John said, "Well, Earl, go down and visit a real estate office, buy a piece of property, and I will register it this afternoon so you will have your piece of property." Earl walked into a real estate office and said he wanted to put $4,000 down on a piece of property. The real estate agent said, "We have lots of properties. Where would you like to go?" Earl said, "I don't want to see any of them. I just want to buy it this afternoon." John and I have often thought, with some amusement, of that realtor going home that night and saying to his wife, "I had the strangest man in my office this afternoon."
Earl could be fiercely partisan, and we all know that. He could also be pretty gruff on occasion. The day after I was elected president of the Liberal Party in Alberta, he asked me to go for breakfast. He was the federal campaign chair, and he made it clear that I was to take my orders from him henceforth. I made it equally clear that I did not take my orders from him, and he said, "I figured that's what you'd say," and that was the end of that.
Earl had great warmth of spirit. On one particular night, of all the many nights we spent with the Hastings - Earl, Evelyn, David, Don and Leslie - John and I even served as babysitters on occasion - the Right Honourable Pierre Elliott Trudeau was to arrive in Calgary. It was during the 1968 campaign. It was late, and no campaign event had been planned. As members of the campaign committee, John, Earl and I were to meet the future Prime Minister. The road to the airport was filled with cars, and the airport was jammed with people. A radio station had announced that Pierre Trudeau was to be in town, and people had come out by the thousands, in the midst of Trudeaumania, to meet this man. Earl was absolutely beaming. This is a man who, for a decade, had worked in the wilderness for the Liberal Party, and finally it was about to happen: The people of Alberta would soon elect some Liberals. It was a very special night for Earl.
Evelyn will miss her husband; David, Don and Leslie will miss their father, and the grandchildren will miss their grandfather, and many others will miss Earl Hastings.
Hon. Bill Rompkey: Honourable senators, I should like to pay a brief tribute to our late colleague Earl Hastings.
Some years ago, I celebrated 20 years in elected politics. Some people thought that we should have a celebration. God knows why, but they did. I must tell you that only a handful showed up from Parliament Hill. That, perhaps, says a lot about me. However, it also says something about Earl Hastings, because he was one of those who came. Labrador is a long ways away, and you must plan and make an effort to take the trip. Earl Hastings made that effort, and that has stayed with me and is something that I appreciate. It indicates the kind of person he was. One of the remarks made about John Diefenbaker on one of his last trips across the prairies was, "He cared enough to come." The same can be said about Earl Hastings. I appreciated that gesture, and I will never forget it.
I have known Earl Hastings as a member of the North Atlantic Assembly, which is the parliamentary arm of NATO, for some years. I wish to tell honourable senators that, so often, the work that we do, not only here but abroad, goes unrecognized. Earl Hastings had a place of eminence in that particular parliamentary forum which represents all the member countries of NATO. Earl Hastings was involved with parliamentarians from Germany, France, Great Britain, and other countries. He chaired the scientific and technical committee for some years. I can tell this chamber that he was viewed with a great deal of respect and affection in that particular forum, the kind of respect and affection that is being shown for him here, today.
He will be missed there. I received today a copy of a letter from the president of the North Atlantic Assembly saying essentially what I have said here in this chamber. That letter is to be sent on to Evelyn.
I pay tribute to Earl Hastings as a man of warmth and humour, a man who told it like it was, a man of solid advice who was constant, firm and reliable, and a man who will be greatly missed.
[Translation]
Hon. Marcel Prud'homme: Honourable senators, I do not want to speak on behalf of the independent senators.
[English]
My recollections of Senator Earl Hastings go back a long time. You heard me say the same thing recently about Senator Olson. What do they have in common? In June, 1967, I accompanied a great Prime Minister whom I served, Mr. Lester B. Pearson, to Winnipeg, Saskatchewan, and Alberta. My host was Mr. Bert Hargrave, who became a Liberal member of Parliament in 1968. As my host in 1967, he said to me, "There is a big reception tonight at Mr. Bud Olson's house."
It was the day that the late Ernest Manning released a book entitled Political Realignment. Perhaps today someone could be writing another book about renewed political alignment. At the time, many people were lost as to what to do. Bud Olson was a social critic. At the reception, I could detect that something was going on. I called Mr. Pearson, and I said, "Something is happening." I did not know what had taken place, but years later I discovered that, after my phone call, Mr. Pearson had dispatched Senator Hastings, a young senator and organizer for the party in Alberta, to speak with Mr. Olson. I do not know what happened during that discussion, but I do know that, in 1968, Mr. Olson ran for the Liberals, and that, in 1972, Mr. Bert Hargrave, the man who introduced me to Mr. Olson, ran against him and defeated him. That is for history. It has nothing to do with what I should like to say today, but I wanted to describe how I met Senator Hastings many years ago.
Earl Hastings had a good soul. What Earl Hastings did for prisoners was extremely unpopular then. It is because of him that I went to speak in a prison in Drumheller. At the time, people were upset because Jim Fleming, who was from Toronto, and I had suggested that the death penalty be replaced with a term of 25 years. Earl Hastings asked me, "Would you dare to go to a prison to talk about your 25-year proposal with people who should have been hanged?" Over the years, he made me do a few things like that. The good things that he did will be remembered in many circles.
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I should like to join with Senator Carstairs - who was the last speaker I heard because I was a bit late - in telling his family how much we regret the premature departure of Senator Hastings, who, as you all know, came here in 1966. There were 10 senators appointed that same day, and of those 10, we still have the pleasure of the presence of Senator Keith Davey.
Hon. Keith Davey: Honourable senators, on February 24, 1966, as our friend just mentioned, Prime Minister Pearson appointed 10 new senators. They were, in rank order: Senator Earl Hastings; Senator John Lang Nichol, who left the Senate after approximately five or six years; Senator Earl Wallace Urquhart; Senator Keith Davey; Senator Jean-Paul Deschatelets; Senator Hazen Robert Argue; Senator Harry William Hays; Senator Charles Robert McElman, who left the Senate a few years ago; and Senator Norman Archibald MacKenzie. I guess I am the only one of that group left. Earl and I, from time to time, would talk about this eventuality, and who would get there first and who would get there last.
Earl was a truly remarkable person to know. He was interesting and he was interested. He certainly was a Liberal; a Liberal for all seasons. He was a great Canadian, someone we could respect. I am delighted that so many honourable senators had so many nice things to say.
I am not sure to whom I should direct this, but the situation puts me in a difficult position. In terms of rank order, I am now the leading Liberal. I will hold that ranking for probably another 15 or 20 days, and then the position will move on. I do not know who will succeed me. It was a matter of great interest to each of us.
This also means that the ranking senators in the entire enterprise are on the far side of the house. Two of them are Orville Phillips and, of course, the remarkable John Macdonald. I remember the day I met Senator Macdonald. From that day to this, he has been a gentlemen and a great friend. There are two Tories in the ranking leadership, but it is to be hoped that one of these Grits will take over reasonably soon.
I will complete my comments by saying how very much Earl meant to so many of us.
Hon. Anne C. Cools: Honourable senators, I join with all senators to pay tribute to Earl Hastings and to say good-bye to him.
Senator Hastings was appointed to this place by Lester B. Pearson, as Senator Davey has just outlined, and was well known for his many achievements and commitments, but the one commitment for which he was best known nationally was his commitment to the prisoners in the federal correctional system of this country. Earl Hastings was really quite remarkable in that he took the time and care to advance the grievances of prison inmates at a point in time when to do so was not particularly trendy.
One of the interesting things about Senator Hastings was that he acquired a reputation throughout the entire prison system for his activities, and was well known to inmates for it. If anyone did anything wrong to an inmate, that inmate would quickly say that he would write to Senator Hastings.
On the other side of the coin, those who worked and ran the correctional system simultaneously held him in enormous respect. At one period in my life, I served on the National Parole Board, and thus knew a lot of inmates. Senator Hastings would bring me messages from time to time, saying that so and so said hello, or so and so had escaped. Some months before Senator Hastings fell ill, he sent me a newspaper clipping about a particular inmate who had escaped, and he wrote across it in his own handwriting, "That's our boy."
His life's journey is now over. His pilgrimage is done. He will be remembered by all of us here. I take this opportunity to extend my condolences to his wife and family, and to offer them our warmest sympathy.
Visitor in the Gallery
The Hon. the Speaker: Honourable senators, I should like to draw your attention to a visitor in the Speaker's Gallery, an ex-colleague of ours and a good friend, the Honourable John Godfrey.Pages Exchange Program with House of Commons
The Hon. the Speaker: Honourable senators, I should also like to introduce to you two House of Commons pages who have been selected to participate in the exchange program with the Senate for the week of May 6 to May 10.[Translation]
Honourable senators, Christine Larocque is from Carleton Place and is a student at the University of Ottawa. I wish her welcome.
[English]
We also have with us Eric Ferguson from Beaumont, Quebec, who is studying at the University of Ottawa. He is enrolled in the Social Science faculty and is pursuing his studies in political science. Welcome.
ROUTINE PROCEEDINGS
Foreign Affairs
Report of Committee Tabled
Hon. John B. Stewart: Honourable Senators, pursuant to rule 104(1) of the Rules of the Senate, I have the honour to table the first report of the Standing Senate Committee on Foreign Affairs. This report deals with the expenses incurred by the committee during the First Session of the Thirty-fifth Parliament.(For text of report, see today's Journals of the Senate.)
[Translation]
Canada Transportation Bill
Report of Committee
Hon. Lise Bacon, Chair of the Senate Standing Committee on Transport and Communications, presented the following report:Wednesday, May 8, 1996
The Standing Senate Committee on Transport and Communications has the honour to present its
SECOND REPORT
Your Committee, to which was referred Bill C-14, An Act to continue the National Transportation Agency as the Canadian Transportation Agency, to consolidate and revise the National Transportation Act, 1987 and the Railway Act and to amend or repeal other Acts as a consequence, has, in obedience to the Order of Reference of Thursday, March 28, 1996, examined the said Bill and now reports the same without amendment.Respectfully submitted,
LISE BACON
Chair
On motion of Senator Bacon, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.
[English]
Department of Health Bill
Report of Committee
Hon. Mabel M. DeWare, Chair of the Standing Senate Committee on Social Affairs, Science and Technology, presented the following report:Wednesday, May 8, 1996
The Standing Senate Committee on Social Affairs, Science and Technology has the honour to present its
THIRD REPORT
Your Committee, to which was referred the Bill C-18, An Act to establish the Department of Health and to amend and repeal certain Acts, has, in obedience to the Order of Reference of Tuesday, April 30, 1996, examined the said Bill and now reports the same without amendment, but with the following recommendation:That, once the duties and responsibilities of the former Department of Health and Welfare have been fully reassigned to the Department of Health and the Department of Human Resources Development, there be continuous and substantial interaction between the two Departments as a matter of basic principle, given the affinity of the matters under their respective jurisdictions.
Respectfully submitted,
MABEL M. DeWARE
Chair
On motion of Senator Corbin, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.
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Cape Breton Development Corporation
Notice of Motion to Authorize Special Committee to Permit Coverage of Meetings by Electronic Media
Hon. Bill Rompkey: Honourable senators, I give notice that on Thursday next, May 9, 1996, I will move:That the Special Committee of the Senate on the Cape Breton Development Corporation be authorized to permit coverage by electronic media of its public proceedings with the least possible disruption of its hearings.
Aboriginal Peoples
Notice of Motion to Authorize Committee to Engage Services
Hon. Len Marchand: Honourable senators, I give notice that on Thursday next, May 9, 1996, I will move:That the Standing Senate Committee on Aboriginal Peoples have power to engage the services of such counsel and technical, clerical and other personnel as may be necessary for the purpose of its examination and consideration of such bills, subject-matters of bills and estimates as are referred to it.
QUESTION PERIOD
Delayed Answers to Oral Questions
Hon. B. Alasdair Graham, Deputy Leader of the Government: Honourable senators, I have a response to a question raised in the Senate on March 21, 1996 by the Honourable Senator Comeau regarding the designation of former CFB Cornwallis as a militia training support centre. I also have a response to a question raised in the Senate on March 26, 1996 by the Honourable Senator Forrestall regarding the delay of search and rescue helicopters.National Defence
Designation of Former CFB Cornwallis as Militia Training Support Centre-Government Position
(Response to question raised by Hon. Gerald J. Comeau on March 21, 1996)Following the official closure of Canadian Forces Base Cornwallis on September 2, 1994, the Government, through the Canadian Institute of Strategic Studies, established the Lester B. Pearson Canadian International Peacekeeping Training Centre. This centre continues to operate with the full support of this Government and, in particular, the Department of National Defence. In addition, a local development authority called The Cornwallis Park Development Agency continues to support the cadet summer camp known as HMCS Acadia.
With respect to Militia training support centres, four have been established, geographically dispersed throughout Canada. The Militia training centres supporting the Land Force Atlantic Area (LFAA) are located in Aldershot, Nova Scotia and CFB Gagetown, New Brunswick. Aldershot is used primarily for leadership training, while CFB Gagetown is used for mechanized training and unit exercises. Other centres are located in: CFB Valcartier, Quebec covering the Land Force Quebec Area (LFQA); Camp Meaford, Ontario covering the Land Force Central Area (LFCA); and Camp Wainwright, Alberta covering the Land Force Western Area (LFWA) of responsibility.
These centres have been strategically laid out by Land Force Command and are quite adequate in meeting the needs of the Militia. Additionally, with DND's greatly reduced budget, there has been a requirement to revisit and occasionally revise priorities. Such a climate of financial constraint requires DND to identify the most essential services to be retained and the most efficient manner to deliver them. Therefore, there are no plans to introduce new Militia training support centres at this time.
Delay in Replacement of Search and Rescue Helicopters-Parameters for Future Decision-Making
(Response to question raised by Hon. J. Michael Forrestall on March 26, 1996)In the 1994 Defence White Paper, the Government made clear its intention to maintain multi-purpose, combat-capable armed forces, prepared to carry out a variety of important roles at home and abroad. This commitment remains valid today in the context of continued instability on the international scene, as well as further cuts in defence expenditures mandated by the last federal budget. Despite the fiscal constraints facing the Department of National Defence and the Canadian Forces, the Government recognizes that the need for flexible, capable forces has not diminished, whether these forces are contributing to the security and well-being of Canada's own citizens, or collective security beyond our shores.
Canadian Forces have been at the forefront of international peacekeeping efforts since the late 1940s, and will remain so for the foreseeable future - witness their leading role in the current Haiti mission. That said, our forces are geared for maximum versatility, not specialization. Search and rescue (SAR) remains an important priority, as does the capability to monitor and control activity within Canada's maritime areas of jurisdiction. The Government has reaffirmed the need to acquire new platforms to replace equipment that is reaching the end of its operational life. The Search and rescue helicopter project is moving forward, with various acquisition strategies being studied. A request for proposals could be issued this summer. As for the maritime helicopter, plans remain in place to maintain that capability.
Consistent with the White Paper, the Government continues to do everything possible to focus defence expenditures on operational capabilities considered most essential to the carrying out of defence policy. In the final analysis, the Government will ensure that the Forces have the tools to do the job asked of them - protecting Canada, defending North America in cooperation with the United States, and making meaningful contributions, alongside our allies and partners, to a more peaceful and secure world.
Answers to Order Paper Questions Tabled
Transport-Vehicles Purchased-Request for Particulars
Hon. B. Alasdair Graham, Deputy Leader of the Government tabled the answer to Question No. 3 on the Order Paper-by Senator Kenny.Natural Resources-Vehicles Purchased-Request for Particulars
Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 17 on the Order Paper-by Senator Kenny.National Revenue-Vehicles Purchased-Request for Particulars
Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 22 on the Order Paper-by Senator Kenny.Finance-Vehicles Purchased-Request for Particulars
Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 27 on the Order Paper-by Senator Kenny.[Translation]
ORDERS OF THE DAY
Canada Labour Code
Bill to Amend-Third Reading-Motion in Amendment Adopted
On the Order:Resuming debate on the motion of the Honourable Senator Graham, seconded by the Honourable Senator MacEachen, P.C., for the third reading of Bill C-3, to amend the Canada Labour Code (nuclear undertakings) and to make a related amendment to another Act.
And on the motion in amendment of the Honourable Senator Cohen, seconded by the Honourable Senator Lavoie-Roux, that the bill be not now read the third time but that it be referred back to the Standing Senate Committee on Social Affairs, Science and Technology for further study.
Hon. Philippe Deane Gigantès: Honourable senators, the other day I had a sore neck and my mood was worse than usual. I withdraw my comments. I have no objection to Senator Cohen's motion.
[English]
The Hon. the Speaker: During debate on the motion for third reading of this bill, it was moved in amendment by the Honourable Senator Cohen, seconded by the Honourable Senator Lavoie-Roux, that the bill be not now read the third time, but that it be referred back to the Standing Senate Committee on Social Affairs, Science and Technology for further study.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
Motion in amendment agreed to.
[Translation]
Contraventions Act
Bill to Amend-Third Reading
Hon. Rose-Marie Losier-Cool moved third reading of Bill C-16, to amend the Contraventions Act and to make consequential amendments to other Acts.Motion agreed to and bill read third time and passed.
[English]
Pearson International Airport Agreements Bill
Second Reading-Point of Order-Speaker's Ruling Sustained-further point of order
On the Order:Second reading of Bill C-28, An Act respecting certain agreements concerning the redevelopment and operation of Terminals 1 and 2 at Lester B. Pearson International Airport.-(Speaker's Ruling)
The Hon. the Speaker: Honourable senators, last Tuesday, April 30, when Senator Kirby rose to move the second reading of Bill C-28, the Leader of the Opposition intervened on a point of order to argue against proceeding further with this bill.
Following the remarks of Senator Lynch-Staunton, there were several statements and exchanges by Senators Stanbury, Stewart, Nolin, Graham, Cools and Berntson. I wish to thank all honourable senators for their participation in the discussion on this point of order. I believe this question to be very important, as it touches upon the rights and powers of Parliament and the role of the Speaker to maintain order in proceedings of the Senate.
[Translation]
As I understand it, Senator Lynch-Staunton claimed that the Senate ought not to consider the bill for a number of reasons. The principal objection seemed to be the fact that the subject-matter of the bill is now before the courts. Unlike the circumstances surrounding the consideration of Bill C-22 in the last Parliament, he noted that there are now two court judgments confirming the legality of the Pearson International Airport agreement and permitting certain parties to sue the government for breach of contract. In addition, as he pointed out, the trial for damages is currently before the courts. Were consideration of Bill C-28 to proceed and were the bill to pass, according to Senator Lynch-Staunton, it would have the effect of nullifying valid court judgments.
[English]
He further maintained that he could find no precedent to support such a:
- gross violation of the independence of the judiciary, and a gross interference in a judicial proceeding already under way.
I have reflected on this point of order over the past few days. I have also reviewed the authorities, and I am now prepared to rule.
Let me begin by noting that I understand why the Leader of the Opposition would claim that the circumstances associated with the consideration of Bill C-28 are different from those related to Bill C-22 when it was before the Senate in the last session. After an extensive inquiry, a special Senate committee has reported on the Pearson International Airport agreements and, as Senator Lynch-Staunton has emphasized, the courts have rendered some judgements.
These different circumstances may be material to the consideration of Bill C-28, but the question remains whether they are within the scope of my authority as Speaker of the Senate. Do they, in fact, involve procedures of the Senate over which I have some jurisdiction? As citation 317(2) of Beauchesne's Parliamentary Rules and Forms, 6th Edition, explains on page 96:
A question of order concerns the interpretation to be put upon the rules of procedure...
[Translation]
The Leader of the Opposition asserts that this question is not one of law, but one of procedure. He has asked me to use the authority of the Chair to halt proceedings on a bill first, because this bill nullifies two court judgments and, second, because a trial resulting from the judgments is in progress.
[English]
To allow the bill to go forward, he argued, would be to jeopardize the independence of the courts. To have me consider such a claim, let alone possibly oblige me to determine whether it is true or not, would involve the Chair, ipso facto, in constitutional and legal matters. As Speaker, I have no authority or right to look into such questions. The Canadian parliamentary authority, Beauchesne's, is quite categorical on this. Citation 324, at page 97 of the 6th edition states:
The Speaker will not give a decision upon a constitutional question nor decide a question of law, though the same may be raised on a point of order or privilege.
Bourinot's Parliamentary Procedure and Practice, 4th Edition, 1916, also supports this position and cites several cases from both the Canadian and British Parliaments.
(1450)
With respect to the issue of the trial now in progress, again I have no authority to intervene. While the actual term "sub judice convention" was not raised during debate on the point of order, it directly relates to this objection. This convention is a voluntary restraint on debate observed by the house to avoid references to matters before the courts. In addition, the sub judice convention is intended to keep members from making a court matter the subject of a motion or a question to a minister. Its possible application in this case, however, is doubtful for two reasons.
First, the dispute in question in this case is civil rather than criminal. Being a civil case, the application of the sub judice convention based on Canadian precedents is less clear or certain and, in doubtful cases, it may be preferable to allow debate.
Second, and more important, the sub judice convention cannot be applied to limit or impede the right of Parliament to legislate. Beauchesne and Erskine May are quite explicit on this last point. Beauchesne, at citation 508(3), on page 153, summarizes the matter in this way:
The convention applies to motions, references in debates, questions and supplementary questions, but does not apply to bills.
For these reasons, I cannot find for the point of order raised by the Leader of the Opposition. Whatever the merits of the case he presented, they are matters for debate and for the consideration of all senators. They are not issues on which I can rule as Speaker of this house.
Senator Kinsella: In light of the statement by His Honour that the matter is for the debate and consideration of all senators, we appeal the ruling.
The Hon. the Speaker: Honourable senators, the question before the Senate is: Will the Speaker's ruling be sustained?
Is it your pleasure, honourable senators, to adopt the ruling?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Hon. the Speaker: Will those honourable senators in favour of the motion please say "yea"?
Some Hon. Senators: Yea.
The Hon. the Speaker: Will those honourable senators opposed to the motion please say "nay"?
Some Hon. Senators: Nay.
The Hon. the Speaker: In my opinion, the "yeas" have it.
And two honourable senators having risen.
The Hon. the Speaker: If there is an agreement between the Whips, as the rules provide, we will have the vote at 3:30 p.m.
Please call in the senators.
(1530)
Speaker's ruling sustained on the following division:
YEAS
The Honourable Senators
| Adams, Anderson, , Austin, Bacon, Bonnell, Bosa, Bryden, Carstairs, Cools, Corbin, Davey, De Bané, Fairbairn, Gauthier, Gigantès, Grafstein, Graham, Haidasz, Hays, Hébert, Hervieux-Payette, Kenny, Kirby, Landry, Lawson, Lewis, Losier-Cool, MacEachen, Maheu, Marchand, Milne, Pearson, Perrault, Petten, Pitfield, Poulin, Riel, Rizzuto, Robichaud, Rompkey, Roux, Stanbury, Stewart, Taylor, Watt, Wood-46 |
The Honourable Senators
| Angus, Atkins, Balfour, Beaudoin, Berntson, Bolduc, Buchanan, Carney, Cochrane, Cogger, Cohen, Comeau, DeWare, Di Nino, Doyle, Eyton, Forrestall, Ghitter, Grimard, Gustafson, Jessiman, Johnson, Kelleher, Keon, Kinsella, Lavoie-Roux, LeBreton, Lynch-Staunton, MacDonald (Halifax), Murray, Nolin, Oliver, Phillips, Rivest, Roberge, Roberston, Rossiter, Simard, Spivak, St. Germain, Stratton, Tkachuk, Twinn-43 |
The Honourable Senators
| Nil. |
Point of Order
Hon. Noël A. Kinsella: Honourable senators, I wish to raise a point of order concerning the ruling by His Honour the Speaker.Honourable senators, the message which has been received from the other place relative to Bill C-28 is defective, irregular and should be returned. As Erskine May provides at page 510 of the 21st edition:
If a bill is carried to the other House by mistake, or if any other error is discovered, a message is sent to have the bill returned or the error otherwise rectified.
Indeed, not only has there been an error in the message, but there has been a breach of parliamentary convention and tradition, and it is necessary to make every effort to remedy an unseemly disregard for the autonomous natures and independent bodies that are the Canadian Houses of Parliament: the Senate of Canada and the House of Commons.
May I remind honourable senators that rule 125 of the Senate of Canada provides that the Journals of the House of Commons may be searched by the Senate. It was on December 17, 1867, that the Senate adopted this principle in the form of a rule, with the present wording being agreed to on December 10, 1968.
Many will also recall that in Bourinot's Parliamentary Procedure, 4th Edition, it is written that it is ordered by a rule of the Commons "that this house doth consent that its Journal may be searched by the Senate..."
As honourable senators know, the Journals are the permanent official record of proceedings of the other place, containing all the proceedings which have actually taken place, the res gestae, including bills read a first, second or third time. Honourable senators will also know that the records of the other place are matters of public record: available and accessible to the public.
With regard to the proceedings in the other place with respect to Bill C-28, what would Canadians find upon examination of the public record? When, and if, the Senate exercises its right to examine the Journals of the other place, what would the Senate find?
Honourable senators, already, Canadians have discovered that the House of Commons did not give first reading, did not give second reading and did not give third reading to this new bill. A message, rather, has been sent to the Senate, advising the Senate that the House of Commons had adopted Bill C-28, and requesting the consent thereto of the Senate.
(1540)
The message from the other place does not, however, tell the whole story. The message does not indicate what transpired on this bill's antecedent. The message from the other place does not indicate that there was no debate on the principle of this bill - a principle which clearly needed to be debated in light of the changed jurisprudential environment which is now fundamentally different than it was during the examination of the principle behind Bill C-22 in the last session of Parliament.
Honourable senators, Bill C-28 must be examined in principle, and in light of the two court judgments which concluded with a substantively contradictory position to the substance of Bill C-28. Examination of the principle had to happen, and it did not. The House of Commons had a duty to reflect on the clash which the principle of Bill C-28 establishes between Parliament and the courts, but it did not.
Honourable senators, you will find, should you consult the public record, that the government in the House of Commons, through its motion on March 1, 1996, sought to establish the situation under which a minister of the Crown, when proposing a motion for first reading of a bill, states that the said bill is in the same form as a government bill at the time of prorogation of the first session, and that the said bill shall be deemed to have been considered, and shall also be deemed to have been approved at all stages completed by its predecessor bill at the time of prorogation. I do not believe that this bill, Bill C-28, meets the requirements as stated in the March 1 motion.
It is instructive for us to carefully examine three issues: First, is Bill C-28 the same as Bill C-22? Is it in the same form? Second, what is meant by the word "deemed"? As we just heard, the bill is deemed to have been considered. Third, were all phases of study of Bill C-22 from the old session in fact completed? Or, if you will, has Bill C-28 completed all stages?
The House of Commons order, as moved by Mr. Gray on March 1, 1996, contained the following:
Provided that, if this Order is applied to any bill, the consideration of which had been completed in the House of Commons, but which was before the Senate at the time of prorogation, the said bill shall be deemed to have been introduced, completed at all stages and passed by the House of Commons in the present session...
A number of problems are raised for the Senate by this irregular procedure. Samuel Johnson, as far back at 1755, wrote:
Tongues, like governments, have a natural tendency to degeneration. We have long preserved our Constitution; let us make some struggle for our language.
Perhaps I should commence by informing honourable senators what the word "deem" means according to the Second Edition of the Oxford English Dictionary. The word "deem" appears on pages 360 and 361 in volume IV of the aforementioned dictionary. It provides:
deem...to give or pronounce judgement; to act as judge, sit in judgement; to give one's decision, sentence or opinion; to arbitrate. To administer; to decide; to pass judgement upon; to condemn, censure. To decree, ordain, appoint. To think to do something, to expect, hope. To guess, suspect, surmise, imagine.
Certainly, if one were to substitute "imagine" for "deem" in the House of Commons order as moved by Mr. Gray on March 1, 1996, it would read:
Provided that, if this Order is applied to any bill, the consideration of which had been completed in the House of Commons, but which was before the Senate at the time of prorogation, the said bill shall be "imagined" to have been introduced, shall be "imagined" to have been completed at all stages and shall be "imagined" to have been passed by the House of Commons in the present session...
Legislating, honourable senators, with precision and sensitivity is fast becoming either the privilege or burden of a very few. The Senate must recognize this diseased English - in other words "to have deemed" - that aims at neither comprehension nor clarity. The Senate cannot let itself be a passive victim of an unparliamentary procedure.
The obvious problems, honourable senators, that are raised for this chamber by this irregular approach by the other place are several. The House of Commons has no jurisdiction over that which is in the domain of the Senate. If the bill in question has been sent already to the Senate, as Bill C-22 was sent, then the House of Commons has no jurisdiction over that bill, and to assume such jurisdiction would be to invade the powers and the prerogatives of the Senate.
Some Hon. Senators: Hear, hear!
Senator Kinsella: Second, honourable senators, there is an exertion to invade the powers of the Senate. The attempt by the House of Commons to make an order affecting a bill that was before the Senate at the time of prorogation is an attempt to invade the powers and prerogatives of the Senate.
Third, the message from the House of Commons is defective, in error and should be returned to that house because the message does not, in fact, meet the test of the House of Commons' own presumptive order which requires that a bill - that is, Bill C-22 - from a previous session must have had its consideration by the House of Commons completed. However, the House of Commons' consideration of Bill C-22 was not completed, for it had yet to consider the amendments which the Senate was about to make to that bill.
If I might further emphasize this last point, the Senate cannot allow to go unchallenged a view that places the House of Commons in an uncompromising - not to mention unflattering - position of authority. In this instance, the House of Commons has placed itself in a very peculiar position, and one that is fraught with danger for the Canadian parliamentary method. Can it be that whatever the House of Commons alone might decide constitutes a decision of the Parliament of Canada? Is it not the duty of the Senate to ensure that the bicameral nature of Parliament is respected, or the role of the Speaker?
Furthermore, honourable senators, Bill C-28 is not the same as Bill C-22. An additional problem that is raised by the government's initiative is its mistake in supposing that Bill C-28 is the same as Bill C-22, which was before Parliament during the last session. This bill, as with any bill, seeks to modify the law, but the state of the law at the time when Bill C-22 was introduced is radically different from the state of the law today. Bill C-28 is a bill that the government seeks to introduce into Parliament at a time when not one but two court judgments have been rendered on the very substance of Bill C-28.
(1550)
Because this bill was not examined by the House of Commons in light of the changed law, the government is simply, and incorrectly, stating that this bill is the same bill. The House of Commons is deeming, hoping or imagining that this is the same bill, but it is not the same bill.
Furthermore, what about the exercise of sober second thought? Does this not imply a first level of consideration? Honourable senators, rule 2 of the Rules of the Senate speaks to the powers, privileges and immunities of the Senate. The Constitution Act provides for two Houses of Parliament, not one. The Senate has become known as the Chamber of sober second thought. Immediately, one can see that the exercise of second thought presupposes a first level of consideration.
Before I summarize my main points, and because one might reasonably anticipate the counter-argument to this particular point of order, I should like to submit that it is not possible to apply directly the circumstances of Bill C-8, formerly Bill C-7, the drug bill, to this point of order respecting Bill C-28 and its communication.
The circumstances and the environs of Bill C-28 have changed dramatically and meaningfully. Please recall, first, the court rulings. Please recall the information uncovered, unearthed and exhumed by the Senate's study of the agreements respecting Pearson International Airport and the events pertaining to their creation and cancellation.
Circumstances respecting Bill C-8, formerly Bill C-7, the drug bill, have not changed, as have those pertaining to Bill C-28. Despite the ill-advised incursion into the Senate's precincts that Mr. Gray's motion initiates, the Commons debate on Bill C-8 would, one might reasonably conclude, have resembled that which occurred in the previous session of Parliament, both in form and in substance. This definitely cannot be said about Bill C-28. Bill C-22, notwithstanding the danger of parliamentary encroachment, was last debated in the House of Commons on September 30, 1994.
It is unprincipled and unparliamentary not to have debated the bill's principle in Parliament. What is the House of Commons attempting to reinstate with its motion of March 1, 1996? It is attempting to reinstate a bill that died at second reading. Where? In the Senate. Is it attempting to reinstate a bill that died at third reading? Was Bill C-28, née Bill C-22, before a Senate committee when prorogation occurred?
Your Honour, surely these are reasonable questions that must be answered before the Senate can, in good conscience, discharge its office.
My reading of the matters outlined here suggests that the answers to these questions are edifying. No, Bill C-22 was not at any of these stages when prorogation occurred. The bill had been passed at third reading in the Senate and had been referred back to the Commons, with several amendments. The Leader of the Government in this place asked that the Senate not insist on its amendments. This motion, along with the message from the Commons indicating its disagreement with the amendments, was sent to the Senate's Legal and Constitutional Affairs Committee. While in committee this second time, the government proposed new amendments to Bill C-22. These proposed amendments were under consideration at the time of prorogation. Bill C-22 had, therefore, attached to it proposed amendments.
The bill, you might say, was in a state of flux and transition. Attached to it were the proposed amendments of the Senate's Legal and Constitutional Affairs Committee. It had attached to it, as well, proposed amendments by the government itself. This may not be clear, initially, but what is crystalline is that, given time, Bill C-22 would be passed in an amended form. Of course, the House of Commons would have been required to formally concur with the amended bill.
However, I think honourable senators will agree that it is simply unfathomable and quite baffling that the role of the House of Commons could be so eliminated, ousted and void by turning back the clock to June 1994. One cannot hide, bury, conceal, nor eliminate the responsibility of the House of Commons to study the principle of this new bill in light of recent events.
I shall abbreviate my closing remarks and end with what I believe to be the crux of this matter, requiring a decision from the chair: Debate on Bill C-22, now Bill C-28, was not completed by the House of Commons. If one considers specifically the words of the motion of March 1, 1996 - "the consideration of which had been completed in the House of Commons" - it is obvious that what the House of Commons wants before us should not be before us. Bill C-22 was not completed in the House of Commons. The Senate had made its intentions clear. Changes would be required for Bill C-22 to pass. The government had made its intentions clear, and it had agreed that some changes were necessary and imminent. The House of Commons still had a responsibility to pass judgment on these changes.
Therefore, I respectfully submit that the House of Commons' role should apply in the manner it must to Bill C-22 and its progeny, Bill C-28. As well, I respectfully submit that the message communicating to this chamber Bill C-28 is incorrect and in error. As Erskine May says, to repeat:
If a bill is carried to the other House by mistake, or if any error is discovered, a message is sent to have the bill returned or the error otherwise rectified.
Hon. Richard J. Stanbury: Honourable senators, I am glad that Senator Kinsella looked up the word "deemed" and found it meant "imagined" because he then used a great deal of deeming in the course of his argument.
Honourable senators, there is so little substance in the point of order - and I believe the Speaker will find that to be so - that it is unfortunate that we have to go through this again, considering all the delays there have been on this bill, to which the honourable senator has referred and which were not the fault of this side of the house.
We received a message from the House of Commons informing us that it had passed Bill C-28. Beauchesne's, 6th edition, citation 740, page 215, provides:
When a bill has passed all its stages, the House communicates the bill to the Senate by Message, acquainting the Senate that the bill has passed in the Commons.
We received that message on April 23, 1996. Citation 1112 of Beauchesne's at page 299, tells us:
The Journals are the permanent official record of the proceedings of the House.
Citation 1113(2) provides:
... whenever any question arises as to any proceedings which have taken place, the Journals alone are held to be correct.
(1600)
The Journals of the House of Commons, dated Friday, April 19, 1996, describe how this bill is given first reading. It then states:
Pursuant to Order made Monday, March 4, 1996, the Bill (previously Bill C-22, 1st Session, 35th Parliament) was deemed to have been read the second time, considered by the Standing Committee on Transport and reported with amendments, concurred in at report stage with further amendments, read the third time and passed.
Will we in the Senate seriously argue that the Journals of the House of Commons are not correct? I doubt if my friend could find a single lawyer among his colleagues who believes that a judge would say that the word "deemed" means "imagined." This was the action of the House of Commons; and it was the normal and complete action of that House.
The suggestion seems to be that we alone have discovered this truth, because not a single member of the House of Commons, including the members of the Conservative Party, have raised any points of order or questions of privilege concerning the passage of Bill C-28 or the entry in the journals.
The House of Commons is the master of its own procedures. Beauchesne's, 6th edition, citation 4 at page 4 provides:
Beyond the vast legacy of tradition implanted in Canada by the preamble to the Constitution Act, one section above all affects procedure. Section 18 permits the adoption in Canada of all of the privileges of Parliament current in the British House of Commons. Few of these are of greater importance than the right to regulate the internal proceedings of the House, or more specifically, to establish binding rules of procedure.
Is the Senate now to declare that the internal proceedings of the House of Commons are subject to Senate scrutiny and adjudication, and that we will regulate their internal proceedings, notwithstanding section 18 of the Constitution Act? It is a startling proposition that would go against hundreds of years of parliamentary tradition and practice in countries the world over.
The Journals of the House of Commons record that Bill C-28 was passed in that chamber. An examination of the bill shows that it has received the Royal Recommendation. We have received a message from the House of Commons telling us that it has passed Bill C-28. We have no right to go behind that message in order to pass judgment on the internal proceedings of that chamber. There is no Canadian precedent for so doing. In fact, I know of no precedent anywhere in the world where there is a bicameral system in place.
This is not a point of order; it is an invitation to the Speaker to destroy unilaterally parliamentary tradition and constitutional conventions that have been in place worldwide for centuries.
If the objection is that we should not be entertaining in the Senate a resurrected bill that previously died in the Senate when we prorogued, why was that objection not raised with respect to Bill C-8, the Controlled Drugs and Substances Act? In the first session, it was known as Bill C-7, and was in our Legal and Constitutional Affairs Committee when the session ended.
On March 6, it was resurrected in the House of Commons as Bill C-8. It was sent to the Senate and, on March 18, it received first reading, and on March 21 it was referred to our Legal and Constitutional Affairs Committee.
On that day, Senator Berntson said:
Honourable senators, Bill C-8 is, in fact, a reincarnation of what was before us prior to prorogation as Bill C-7. I understand it is identical to Bill C-7, and we did, in fact, study that bill in committee prior to prorogation. I understand that, since it is identical, and since for all intents and purposes we have put our views on the record as it relates to second reading and the principles of the bill, there is not much to be heard in terms of evidence from witnesses who will be coming before the committee. Therefore, we do not object to it going to committee at this time.
That is a perfect admission that the old bill died at prorogation. Whether it had any amendments or not, it died at prorogation. It is not open to Senator Kinsella to suggest that there is something wrong with having a fresh start on a bill.
Since then, the Legal and Constitutional Affairs Committee has heard from many witnesses. Surely, that bill is properly before us. If it is otherwise, then all the witnesses who have appeared will have to be told that they were the victims of a hoax, a charade, in testifying on a bill that does not exist.
The opposition cannot have it both ways. Both Bill C-8 and Bill C-28 were in the Senate when the session ended. Both died at prorogation. Both have been sent to the Senate by the House of Commons in this new session using the identical procedure. We established firm precedent with respect to Bill C-8, and that precedent must govern Bill C-28.
Honourable senators, I may wish to add further points later, but I will give the floor over now to another honourable senator.
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, the question raised by Senator Kinsella can be reduced to this: Has the House of Commons honoured its motion to reintroduce bills at the stage and in the form that they were at when the last session of Parliament was prorogued? We are not questioning the right of the House to do that. As a matter of fact, some here will remember the debate that took place when Speaker Fraser was in the chair regarding the challenge to the Conservative government of the day to do exactly the same thing. The question is not to challenge the right of the House to reintroduce bills. The challenge to this bill is this: Has it been returned to us in the same form as it was at the time of prorogation? The answer to that question is, "No."
Let us go back to Bill C-22. Prior to the summer of 1994, Bill C-22 was amended by this chamber and returned to the House of Commons with amendments just prior to the summer recess. When the House came back in the fall of 1994, it rejected our amendments and sent a message to that effect to the Senate. It did not send the bill back, it sent a message back. The message - and I am paraphrasing - said, "We do not concur with your amendments. We would appreciate it if you would pass the bill as we originally passed it."
However, the bill did not come back. The bill was still before the House with our amendments attached to it; or, at least, the last time we saw it, it had our amendments attached to it. We are saying today that the bill which is before us is not in the same form as it was in the other place.
The argument can be turned around to say, "The bill was before the Senate. This is just a technicality because the government came twice with amendments, once in the winter of 1994 and again in 1995. They were discussed. Therefore, for all intents and purposes, the bill was before the committee." Let us accept that argument. What the House of Commons is saying to the Senate of Canada is, "Scrap everything you did concerning Bill C-22. It does not matter. We are erasing two years of debate and telling you that this is the bill as we see it, and we are indifferent to what you have done."
Part of the basis of the argument by Senator Kinsella on accepting the bill in this way is that it is a challenge from one independent house to another independent house, which, I hope we can all agree, is completely unacceptable.
(1610)
Hon. Allan J. MacEachen: Honourable senators, I listened with great interest to the comments that have been made. As one who has taken an interest in parliamentary matters over the years, I must say that I was somewhat surprised that this particular point of order was raised at this particular time.
There used to be an axiom of parliamentary practice that a point of order was raised when the breach of order took place. In other words, if the disorder takes place today, you cannot raise it three weeks from now; you have to strike at the moment the disorder occurs.
That thought came to my mind when Senator Kinsella began by basing his point of order on the defective character of the message. The message is not before us now. The message came to the Senate on April 23, according to what I have heard, and the moment, of course, to have said that this message is defective is at the point when the bill was given first reading.
We are now into second reading. We had an earlier point of order on second reading, which has been disposed of, and now we have a second point of order on second reading. Presumably, if this is disposed of, tomorrow or next week there will be further points of order.
The attention to a disorder has to be raised when the disorder happens; not later on, not when time has passed and the disease has become more deeply embedded in the political body. It has to be scotched right at the moment.
However, what we received, as I understand it, from the House of Commons, through the message which was given to us by first reading, was Bill C-28. That is what the Senate is asked to deal with. It is a new bill insofar as the Senate is concerned. It has a new number. I cannot, for the life of me, see why the Senate is entitled now to say to the House of Commons, "You did not give us a bill in the way we would like to have it."
We have a bill. It is our job to deal with it: debate it, send it to committee, pass it or defeat it. All our rights are maintained to deal with this bill. Senator Lynch-Staunton has made the argument, as I understand it, that it was the obligation of the House of Commons to send Bill C-28 in precisely the same form as it sent Bill C-22.
We all know what the effect of dissolution of Parliament is. Everything is washed out; it is cleaned up; everything is over. Prorogation is not quite as drastic. When Parliament is prorogued, the slate is wiped clean, but the slate itself is held in existence for a further session. So the slate of the last Parliament was wiped clean and we now have a new slate. Procedurally speaking, it is irrelevant whether Bill C-22 was ever in the last session. I think that is pretty clear.
However, we all know that the subject-matters of Bill C-22 and Bill C-28 are identical, similar or related. The House of Commons was asked to pass a new bill, Bill C-28, and send it to the Senate. It was given first reading. To encapsulate, the House of Commons then said, "We waive a debate on second reading; we waive our right to send it to committee; we waive our right to have a report stage and third reading. We deem all of that to be done and we send it to the Senate."
That is how they did it. They could have gone through all the stages, but knowing that they had done all that work in the last session, they deemed that to have happened and sent it to us. That is not new.
I firmly believe that it is wrong to say that the bill has to be returned to us in the same form. The House of Commons is entitled to send any bill in any form to us and we are entitled to deal with it as we wish.
I support what Senator Stanbury has said. We have the journals; they tell us that the bill has been dealt with by the House of Commons in the way the House decided, with the agreement of all its members, with two strong opposition parties. Everything was done and it came to us.
What is the point of order? The message is defective in what way? Is it that the bill is not in the same form as the previous bill came to us? Well, that happened because Parliament was prorogued and the slate was wiped clean. We have a new slate and a new bill which is called Bill C-28. All the rights of the Senate are preserved.
I am a strong believer in the independent right of the Senate to do its own thing. I have argued that, and I think the House of Commons is entitled to take the same attitude and say, "Look, we run our show. We have sent you a bill. If we waived second reading, or if it is not the same wording as the bill in the former session, that is up to us to decide, but we have given you a bill in good form and we urge you to deal with it."
Your honour, I would suggest that we are faced here with the basic rule of Parliament, that when order is not being observed, the point of order has to be raised at that point. I think that in this case the point has long passed. Second, there has to be some substance in the point of order when it is raised. We do not find that it is based on any substance, as has been so ably argued by Senator Stanbury.
Senator Lynch-Staunton: I do not want to repeat the arguments. I do, however, want to reply to the suggestion that it is out of order to raise a point of order because the disorder took place some time ago. The rules are quite specific. Rule 23(2) says:
The Introduction and First Reading of Government, Public and Private Bills are pro forma stages of consideration and shall be decided without debate or standing votes.
Respect for that rule is why we did not bring it up at the time. Second, a point of order cannot be brought up during routine proceedings when messages are received.
Senator MacEachen: You can raise a point of order at any time.
Senator Lynch-Staunton: The appropriate time to raise the point of order was when second reading was called.
Senator MacEachen: You do not have the message before you at second reading. You have the message at first reading.
Senator Lynch-Staunton: That is correct and, according to our rules, that is a non-debatable item.
Senator MacEachen: You can raise a point of order.
Senator Lynch-Staunton: Not during receipt of the message. It is a routine proceeding, as it says in the rules.
Hon. Finlay MacDonald: Was Senator MacEachen suggesting that there is a possibility that Bill C-22 and Bill C-28 are not identical?
Senator MacEachen: I must say that I cannot argue whether or not they are precisely identical, but that is irrelevant.
(1620)
It is my understanding that Senator Lynch-Staunton argued that there was something wrong because Bill C-28 was not precisely in the same form as Bill C-22. I am saying that, even if that is so, it does not make any difference. Bill C-22 disappeared with prorogation. We have a new slate and a new bill. Whether or not it is identical to a former bill, the Senate is still obligated to deal with it. There is no obligation on the part of the House of Commons to send us anything in any form except the form in which the House wishes to send it. We then deal with it. That is my point.
Senator MacDonald: Honourable senators, if the bills are not identical, and, given that the honourable senator is saying that it is irrelevant whether or not this is a new bill, perhaps he could answer this: -
Senator MacEachen: It is irrelevant from a procedural point of view.
Senator MacDonald: How can the honourable senator justify the method used, which is traditional, to revive a bill that has died as a result of prorogation, as has this one before us, unless it is identical? How can he argue that it is irrelevant as to what the bill was, that we must deal with it?
Senator MacEachen: From a procedural point of view, that would be a matter entirely for the House of Commons. They were presented with Bill C-28, and they made a decision as to how it was to be dealt with. They deemed that it had passed certain stages, which is not the normal way but they decided to do it that way. I do not think it is up to us to say, "You should have done it another way." They did it precisely as they wished. They waived the normal procedures and the normal rules, by unanimous consent. There had to be unanimous consent because they deemed these stages to have been dealt with. How could you deem all these stages to have occurred unless there was consent that they could all be done together? That is what I mean.
I am talking procedurally here. We know perfectly well - and you know better than I do because you have studied these two bills intimately; I have not - that, from a procedural point of view, it is neither crucial nor critical whether the bills are the same or different, in a procedural context.
Hon. Orville H. Phillips: Honourable senators, I have two brief points. Senator MacEachen has questioned the timing of the point of order. He will recall last fall, that when a motion was put before the chamber to reintroduce a bill, I rose right away and raised a point of order on it. His Honour the Speaker, in giving his decision, finished with a mild rebuke, pointing out that I had raised the point of order too early. I should have waited until it was before the chamber.
Second, I should like to ask Senator MacEachen a question, and I will use Bill C-3 as an example. This is a type of bill that could have been introduced in the Senate. What would have been the reaction in the other place if the Senate, after having gone through first reading, said, "We will now deem that second reading, committee stage and third reading have been completed," and sent it back to the House of Commons? According to the MacEachen theory, the Senate would be entitled to do that on any bill. That same procedure could originate in the Senate.
If we were to do that, what does the honourable senator think the reaction in the House of Commons would be? He knows very well, as do I, that it would be bounced right back to us and we would be told that it was out of order. For the same reason, I think we should bounce back this "deeming" procedure with regard to Bill C-28. I hope that is what we will do.
Senator MacEachen: Honourable senators, I wish to make one further point. When I came to the Senate, I was accustomed to first reading, second reading, committee study and third reading. I discovered that, in the Senate, bills were passed without committee study. There was no committee involvement whatsoever. It happened. One of the persons who instructed me in this new mystery was the late Senator Hicks. I also remember having discussions with our deputy leader at the time, Senator Frith. I told him, "Look, this is not right." The argument was that the Senate deems that it is unnecessary to have committee hearings on certain bills, and that happened.
I agree with Senator Phillips that if the Senate - or any body, for that matter - regularly deemed bills through all their stages, there would be a political reaction. However, if bills were presented and there was unanimous consent to deem them through, the objection would not be necessarily on procedural grounds, it would be in the form of a strong political reaction. Is that not correct?
I am dealing with the procedural aspect. Procedurally, this process is correct. However, politically, there would have been an outcry in the country if Bill C-28 had gone through the House of Commons without the background. Everyone knows that the substance of what became Bill C-28 was harrowed, ploughed, sowed, harvested, and sowed again. It could never have been more thoroughly cultivated. That is the political background. However, in this case we are arguing about the procedure.
Senator Phillips: The Honourable Senator MacEachen, in all his agricultural description, forgot one thing, namely that the bill was amended. Therefore, I think his example is incorrect in that the bill was amended by this chamber. I do not think this chamber can overlook the fact that we amended the bill and sent it back to the House of Commons. That matter of the amendment was never resolved.
They did send a message back, but, as Senator MacEachen is well aware, messages go back and forth several times. I recall that he was the initiator of that procedure on several bills. I know he will be retiring soon, but his memory has not gone. I am sure that he can recall those instances. That must be borne in mind. He cannot do any further mining, whether it be for coal, gold, or whatever. In this case, the fact is that the procedure was not followed. If we did not follow it, the House of Commons would reject it. We should do the same thing.
Senator Kinsella: Honourable senators, by virtue of the observations that have been made by honourable senators on both sides, this question is a bit more complex than at first blush. A number of issues must be canvassed.
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Erskine May refers only to a bill being carried to the other house by mistake or the discovery of an error; it does not say when it is discovered. We have discovered this error because we went and examined the journals.
Senator MacEachen: There is no error.
Senator Kinsella: Upon examining the journals of the other place, the honourable senator will apprehend the error, which is in the message. In other words, one must look at the journals to see what was said, to see what actually happened in fact, to learn the truth of the decision that was taken that led to the message that arrived here.
We have apprehended an error. The error speaks to the order that was acted upon in the other place. The first two lines of the order stated:
... this Order is applied to any bill, the consideration of which had been completed in the House of Commons...
We have prima facie knowledge that it was not completed, because the Senate had been engaged in an exchange with the other place. We were seized of the bill and were engaged in an exchange with the House of Commons.
Senator MacEachen: That is the old slate. The old slate is gone.
Senator Kinsella: To pick up on the point that Senator MacEachen is now making with his metaphor of the slate, Bill C-28 is said to be the same bill as Bill C-22. If that is the case, then one must examine both the form and the substance of it to see whether it is the same bill. The honourable senator will find that it is not the same bill.
What we have here is an attempt by the House of Commons to control the Senate. The Senate, as does the House of Commons, knows very well the effect of prorogation. This theory of a remaining slate with certain items wiped off it is another matter. The effect is the same.
I would have no difficulty if the government came forward in the Senate with a Senate bill and asked for first reading. However, it would be a grave error for us to respond to a message and to accept that message at face value when the journals explicitly state something different than what is stated in the message.
The Hon. the Speaker: If no other senator wishes to participate in the discussion, I thank all honourable senators for their contributions on the point of order. I wish to read carefully the particular point of order raised by Senator Kinsella, so I will take the matter under advisement.
Canadian Association of Former Parliamentarians Bill
Second Reading-debate adjourned
Hon. Shirley Maheu moved second reading of Bill C-275, establishing the Canadian Association of Former Parliamentarians.She said: Honourable senators, Bill C-275 establishes the Canadian Association of Former Parliamentarians as a body corporate giving it the legal capacity of a natural person and the legal powers usually possessed by a corporation.
[Translation]
The objects of the Canadian Association of Former Parliamentarians are to put the knowledge and experience of its members at the service of parliamentary democracy in Canada and elsewhere, and to serve the public interest by providing non-partisan support for the parliamentary system of government in Canada.
[English]
On behalf of the association, I request that honourable members grant me the privilege of their support on this bill.
On motion of Senator Kinsella, debate adjourned.
Private Bill
Nipissing and James Bay Railway Company-Bill to Dissolve-Second Reading
Hon. James F. Kelleher moved second reading of Bill S-7, to dissolve the Nipissing and James Bay Railway Company.He said: Honourable senators, the purpose of Bill S-7 is to provide for the dissolution of an orphan railway company that has been defunct and abandoned since 1904. The dissolution of the company will enable the City of North Bay to acquire title to a small parcel of land that is still in the name of the railway company - land that is needed for public purposes.
The Nipissing and James Bay Railway Company was incorporated by an act of the Parliament of Canada in 1884 to develop a railway line from Lake Nipissing to James Bay. Eight years later, in 1902, all that had been accomplished was the development of 4,300 feet of track bed in North Bay and the granting of letters patent for that land to the company. This consisted of 4,300 feet of track, 100 feet wide, which approximated ten acres, more or less. However, at that point, the company ran into problems and nothing further happened.
Honourable senators, this land lay dormant for the next 90 years, not even having been assessed for municipal taxes until 1990. By this time, urban development within the city of North Bay had reached the edge of this strip of right-of-way. This bill will allow the ten acre right-of-way to escheat to the Crown in the right of Ontario so that the city can obtain title to the transfer to it and then transfer it to Canadone College and Nipissing University for expansion purposes. The college presently owns all of the land surrounding this existent right-of-way.
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The city and the college have tried to find a parent for this orphan since 1987. Most of the old railway company's charters were transferred to the Grand Trunk Railway in 1925, but not this one. This orphan railway was disavowed by its corporate secretary in 1904 and was abandoned by its shareholders upon settlement of the outstanding debts of the company in 1907 of $8,000. It has been disclaimed by the CNR, the CPR and the ONR. It has no record of activity with the National Transportation Agency, the Minister of Consumer and Corporate Affairs of Canada, or the Public Trustee of Ontario. The various public notices and news stories since then have not produced any claim to ownership of the Nipissing and James Bay Railway Company. If any were to be produced, the city now has a substantial tax account on the lands and would be happy to have it paid.
The usual process for lands of abandoned corporations to be dealt with is found in the Provincial Escheats Act. This bill will dissolve the corporation so that its lands can be dealt with in the usual process.
In short, honourable senators, this bill drives the last spike in the story of the development of railways in and around North Bay at the turn of the last century.
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, I presume it would be the intention of Senator Kelleher to move that the bill be referred to the Standing Senate Committee on Transport and Communications. If that is his intention, we on this side have no objection to the bill. We would support it.
Senator Kelleher: That is my intention, honourable senators.
Motion agreed to and bill read second time.
Referred to Committee
The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?On motion of Senator Kelleher, bill referred to the Standing Senate Committee on Transport and Communications.
Nova Scotia
State of Coal Mining Industry in Cape Breton-Inquiry Withdrawn
On the Order:Resuming debate on the inquiry of the Honourable Senator Murray, P.C., calling the attention of the Senate to the state of the coal mining industry in Cape Breton and the policy of the Cape Breton Development Corporation in relation thereto.-(Honourable Senator Berntson).
Hon. Eric Arthur Berntson (Deputy Leader of the Opposition): Honourable senators, with the advice and consent of my colleague Senator Murray, if there are no other honourable senators who wish to speak on this particular inquiry, and in light of the fact that the purpose of the inquiry has been preserved by virtue of the fact that the Special Senate Committee on the Cape Breton Development Corporation has been struck, Senator Murray is quite prepared to see this item dropped from the Order Paper.
The Hon. the Speaker: Honourable senators, is it agreed that the item be dropped from the Order Paper?
Hon. Senators: Agreed.
Order withdrawn.
The Senate adjourned until tomorrow at 2 p.m.