Journals of the Senate
47 Elizabeth II, A.D. 1998, Canada
Journals of the Senate
Issue 88
Thursday, October 29, 1998
2:00 p.m.
The Honourable Gildas L. Molgat, Speaker
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Atkins, Balfour, Beaudoin, Berntson, Bolduc, Butts, Carstairs, Chalifoux, Cochrane, Cohen, Comeau, Cook, Cools, Corbin, De Bané, DeWare, Di Nino, Doody, Fairbairn, Ferretti Barth, Fraser, Gauthier, Ghitter, Grafstein, Graham, Grimard, Gustafson, Johnson, Johnstone, Joyal, Kelly, Keon, Kinsella, Lavoie-Roux, LeBreton, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Maloney, Mercier, Milne, Molgat, Moore, Murray, Pearson, Pépin, Phillips, Poulin (Charette), Poy, Prud'homme, Roberge, Robertson, Robichaud , (L'Acadie-Acadia), Robichaud , (Saint-Louis-de-Kent), Rompkey, Rossiter, Ruck, Simard, Sparrow, Spivak, Stollery, Stratton, Taylor, Watt, Whelan, Wilson
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, *Angus, Atkins, *Bacon, Balfour, Beaudoin, Berntson, Bolduc, Butts, *Callbeck, *Carney, Carstairs, Chalifoux, Cochrane, Cohen, Comeau, Cook, Cools, Corbin, De Bané, DeWare, Di Nino, Doody, Fairbairn, Ferretti Barth, Fraser, Gauthier, Ghitter, Grafstein, Graham, Grimard, Gustafson, *Hervieux-Payette, Johnson, Johnstone, Joyal, *Kelleher, Kelly, *Kenny, Keon, Kinsella, *Kirby, *Kroft, Lavoie-Roux, LeBreton, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Maloney, *Meighen, Mercier, Milne, Molgat, Moore, Murray, *Nolin, *Oliver, Pearson, Pépin, *Perrault, Phillips, Poulin (Charette), Poy, Prud'homme, Roberge, Robertson, Robichaud , (L'Acadie-Acadia), Robichaud , (Saint-Louis-de-Kent), Rompkey, Rossiter, Ruck, *St. Germain, Simard, Sparrow, Spivak, *Stewart, Stollery, Stratton, Taylor, *Tkachuk, Watt, Whelan, Wilson
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.DAILY ROUTINE OF BUSINESS
Tabling of Documents
The Honourable the Speaker informed the Senate that the Clerk of the Senate had tabled the following:Statement of the Clerks receipts and disbursements for the fiscal year 1997-98, pursuant to Rule 133.-Sessional Paper No. 1/36-890S.
Government Notices of Motions
With leave of the Senate, The Honourable Senator Carstairs moved, seconded by the Honourable Senator Losier-Cool:That the Clerk's Accounts be referred to the Standing Committee on Internal Economy, Budgets and Administration.
The question being put on the motion, it was adopted.
With leave of the Senate, The Honourable Senator Carstairs moved, seconded by the Honourable Senator Maheu:
That when the Senate adjourns today, it do stand adjourned until Tuesday next, November 3, 1998, at 2:00 p.m.
The question being put on the motion, it was adopted.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Order No. 1 was called and postponed until later this day. Order No. 2 was called and postponed until the next sitting.Reports of Committees
The Order was called concerning the motion of the Honourable Senator Milne, seconded by the Honourable Senator Butts, for the adoption of the Fourteenth Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-37, An Act to amend the Judges Act and to make consequential amendments to other Acts, with amendments) presented in the Senate on October 22, 1998.SPEAKER'S RULING
Earlier this week, Senator Milne moved the adoption of the fourteenth report of the Standing Committee on Legal and Constitutional Affairs proposing to make several amendments to Bill C-37 dealing with the Judges Act. Before there was any debate, however, Senator Cools rose on a point of order. While the Senator expressed her satisfaction about several amendments seeking to delete some clauses of the bill, she challenged the acceptability of an amendment to clause 6. This clause establishes the Judicial Compensation and Benefits Commission. The amendment proposed by the committee seeks to provide certain evaluative criteria that the Commission should apply in carrying out its mandate. Senator Cools argued that this amendment was procedurally objectionable for a number of reasons.First, Senator Cools held that the amendment was out of order because it was different from, or contrary to, the principle of the bill as agreed to when the bill received second reading last month. Second, Senator Cools contended that the amendment in expanding the original scope, powers and objects of Bill C-37, exceeded the terms of the Royal Recommendation attached to this bill. Third, the amendment is objectionable, according to Senator Cools, because it infringes the Royal Prerogative relating to the right of the Crown to make judicial appointments. Fourth, Senator Cools asserted that the amendment was defective because it lacked the necessary Royal Consent indicating the Crown's agreement to the modification of its prerogative rights proposed by the amendment. Finally, to support her objection to the procedural acceptability of the amendment, Senator Cools referred to a precedent from the other place. In April 1975, Speaker Jerome ordered that amendments to a bill which had infringed the Royal Recommendation be struck from the committee report before allowing the report to be debated. Senator Cools suggested that I, as the Speaker of the Senate, should consider a similar course of action in dealing with this amendment.
Following Senator Cools' intervention, several other Senators rose to speak on the point of order, either in response to it or to solicit further information. First to speak was Senator Stewart who mentioned the problems that have arisen in modern practice with the present form of the Royal Recommendation. According to his assessment, not only must Parliament come to terms with the vagaries of the present Royal Recommendation when the appropriation it authorizes is more or less identifiable, but we must also try and fathom its scope and meaning when confronted with what Senator Stewart called "virtual" Royal Recommendations.
The Deputy Leader of the Government, Senator Carstairs, then explained that the committee had followed the proper procedures in reviewing the bill and presenting its report last Thursday, October 22. With respect to the amendment to clause 6, Senator Carstairs maintained that its effect was to provide some guidelines for the Judicial Compensation and Benefits Commission rather than leaving its mandate so open-ended. Next, Senator Kinsella, Senator Grafstein and then Senator Robertson made some comments.
Finally, Senator Milne, the Chair of the Committee on Legal and Constitutional Affairs, explained that the proposed amendments to Bill C-37 were unanimously adopted by the committee. The Senator went on to state that the purpose of the amendment to clause 6 was intended "to narrow the sorts of things that the Commission could look at to come to its decision." Senator Milne also mentioned that clause 6 would require that the report of the Commission, which as she reminded the Senate, has only an advisory role, be tabled in both Houses and be referred to an appropriate committee. On this last point, Senator Cools replied that such a procedure was also out of order. As the Senator put it: "No statute can ordain that any report introduced into this chamber be referred to any committee."
Shortly thereafter, I said that I would be prepared to hear more arguments no later than the next sitting since some Senators had indicated they would like an opportunity to review the point of order raised by Senator Cools. Yesterday, Senator Beaudoin and Senator Joyal raised certain issues concerning the point of order. Senator Beaudoin challenged the merits of the objection raised by Senator Cools with respect to the claim that the amendment to clause 6 was contrary to the principle of the bill. Senator Joyal focused his remarks on the assertion that the amendment exceeded the provisions of the Royal Recommendation attached to Bill C-37.
I wish to thank all Honourable Senators who spoke to the point of order that was raised by Senator Cools. I have carefully reviewed the arguments that were made and I have also examined some of the references to the parliamentary authorities and to the particular precedent cited from the other place. In reaching my decision, I am guided by the proposition that, as Speaker, I should use my authority to rule on points of order to restrict debate on amendments only when the evidence is conclusive and compelling. In all other cases, my preference is to allow the Senate itself to reach its own decision on the subject-matter.
I propose to deal with the different procedural points that were raised in the order that Senator Cools presented them. The first point has to do with the claim that the amendment to clause 6 is contrary to the principle of Bill C-37. As we have all experienced at one time or another, the principle of a bill is not always easily grasped. With respect to Bill C-37, it appears to accomplish a number of related objectives dealing with the remuneration and compensation of judges and the proposal to replace the current triennial commission with one that would sit every four years. Senator Cools claims that the amendment dealing with the Commission has in fact substantially altered the principle of the bill. In my view, however, the amendment seeks to outline the criteria by which it might conduct its inquiry and nothing more. The language of the amendment makes this very clear.
According to citation 698 of Beauchesne 6th edition at page 207, amendments to the clauses of a bill are inadmissible if, among other things, they are irrelevant to the bill or beyond its scope. They are also inadmissible if they are inconsistent with the bill or contradictory to it. So far as I can determine, there is nothing in the amendment that would lead me to think it is inadmissible nor is there any evidence indicating that this amendment is inconsistent with the principle of the bill. If the purpose of the bill is, in part, to establish a Commission, how can the amendment be regarded as inconsistent or contrary if its purpose is intended to provide guidelines as to how the inquiry of the Commission should be conducted. Indeed, as citation 567 of Beauchesne at page 175 confirms, an amendment can have as its object the modification of a question so as to increase its acceptability or to present a different proposition as an alternative. This appears to be the goal of this amendment. Whether it is in fact more acceptable to the Senate than the original proposition should be settled by debate.
The second question that Senator Cools raised concerns the impact of the amendment on the Royal Recommendation. According to the Senator, the amendment infringes on the financial prerogative of the Crown. In order to make a persuasive case, it seems to me that it would be necessary to demonstrate that the appropriation implied in this bill has been affected by this amendment. To do this requires the marshalling of some evidence indicating how an amendment that purports to outline the criteria the Commission should consider in conducting its inquiry affects the appropriation establishing the Commission itself. In this case, however, the Commission remains firmly bound by the terms set forth in clause 6 to which the Royal Recommendation is attached. The amendment does little to change the overall operations of the Commission.
Both Tuesday and again yesterday, some critical comments were made by several Senators about the form of the current Royal Recommendation. I think that there is a good deal of merit in these complaints. Perhaps, the Senate might consider reviving a proposal first raised, as Senator Stewart and Senator Joyal pointed out, nine years ago when the National Finance Committee first studied the question of the Royal Recommendation. As I myself have stated in some recent decisions, the vagueness and imprecision of the Royal Recommendation remains a problem that unduly affects the rights of parliamentarians to study legislation and propose amendments.
In making her case, Senator Cools referred to a decision made by Speaker Jerome of the other place. I have reviewed that 1975 decision and I find it to be relevant as a comparative example of how the Royal Recommendation can be affected by an amendment. On that occasion, as Senator Cools stated, the Speaker ruled out of order some amendments that had been made by the committee charged with the bill's examination. The bill in question dealt with parliamentary allowances and salaries. The Royal Recommendation attached to the bill established certain fixed levels of indemnity for various parliamentarians and ministers and also stipulated the duration of this remuneration. The amendments, however, sought to introduce a scheme to index these salaries and also to extend the time period to be covered by the bill. Consequently, the Speaker felt compelled to rule the amendments out of order.
With respect to Bill C-37, the situation is not at all comparable. As Speaker, I am not confronted by any clear evidence that the terms and conditions of the Royal Recommendation attached to Bill C-37 have been in any way altered by the proposal contained in the amendment to clause 6.
Next, Senator Cools argued that the amendment should be ruled out of order because it proposed that the Commission consider as one of its evaluative criteria "the need to attract outstanding candidates to the judiciary." Senator Cools contended that this aspect of the amendment infringed the Royal Prerogative with regard to the Crown's right to make judicial appointments. With respect, I do not find that the objection is well founded. The text of Bill C-37 establishes that the power of the Commission is limited to presenting a report to the Minister of Justice containing recommendations about the adequacy of salaries and other benefits payable under this Act. The bill says nothing about the process of judicial appointments. Even with respect to the recommendations on salaries, there is nothing to indicate that they are binding on the Minister. Moreover, in so far as the amendment itself is concerned, the right of the Minister to exercise the prerogative right of the Crown to appoint judges is not affected. The portion of the amendment dealing with the need to attract outstanding candidates has nothing to do with the Royal Prerogative. Instead, it is simply a criterion to be used in guiding the work of the Commission in preparing recommendations on the adequacy of salaries and benefits for judges.
For similar reasons, I have reached the same conclusion with respect to the related objection that Senator Cools raised on the need for the signification of Royal Consent. As the Senator rightly pointed out, the consent of the Crown is necessary in matters involving the prerogatives of the Crown. As was already explained, however, the amendment to clause 6 does not infringe the Royal Prerogative and, consequently in this case, does not require Royal Consent.
Lastly, Senator Cools, in response to a point raised by Senator Milne last Tuesday, claimed that the provisions of the bill requiring that the report of the Commission be tabled in each House of Parliament and subsequently be referred to an appropriate committee of each House was out of order. Senator Cools indicated that this process encroaches on the right of Parliament to determine its own affairs. To my knowledge, this is not the first time that this question has been raised, but it would seem to be more a question of policy rather than one of procedure or law. Certainly this provision before us is not at all unusual in recent Acts adopted by Parliament. In passing these laws, the Senate and the House of Commons have sanctioned this procedure. There are now numerous laws providing the automatic referral of some report or document to a parliamentary committee. Be that as it may, this objection does not relate to the amendment that is the focus of Senator Cools' point of order. Rather, it is part of clause 6 that has been an element of Bill C-37 since it was received from the other place.
For these reasons, I find that the point of order raised by Senator Cools is not established. Debate on the Fourteenth Report of the Standing Committee on Legal and Constitutional Affairs may now proceed.
The Senate proceeded to the motion of the Honourable Senator Milne, seconded by the Honourable Senator Butts, for the adoption of the Fourteenth Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-37, An Act to amend the Judges Act and to make consequential amendments to other Acts, with amendments).
After debate, The question being put on the motion, it was adopted.
The Honourable Senator Carstairs moved, seconded by the Honourable Senator Robichaud, P.C. (L'Acadie-Acadia), that the Bill as amended be placed on the Orders of the Day for a third reading at the next sitting.
The question being put on the motion, it was adopted.
OTHER BUSINESS
Senate Public Bills
Order No. 1 was called and postponed until the next sitting.Private Bills
Second reading of Bill S-20, An Act to amend the Act of incorporation of the Roman Catholic Episcopal Corporation of Mackenzie.The Honourable Senator Taylor moved, seconded by the Honourable Senator Poy, that the Bill be read the second time.
Debate.
DEFERRED DIVISION
At 3:30 p.m., with leave and pursuant to Rule 66(3), the Senate proceeded to the taking of the deferred recorded division on the motion in amendment of the Honourable Senator Bolduc to the motion of the Honourable Senator Fitzpatrick, seconded by the Honourable Senator Ruck, for the third reading of Bill C-29, An Act to establish the Parks Canada Agency and to amend other Acts as a consequence.The question was put on the motion in amendment of the Honourable Senator Bolduc, seconded by the Honourable Beaudoin, that the Bill be not now read the third time but that it be amended, in clause 25, on page 13, by adding the following after line 40:
"(1.1) The Minister shall not fix a fee under section 23 or 24, or under any other Act under which the Agency provides services, facilities, products, rights or privileges, to be paid for admission to a national park.".
The motion in amendment was negatived on the following division:
YEAS
The Honourable Senators
Andreychuk , Atkins, Balfour, Beaudoin, Berntson, Bolduc, Cochrane, Cohen, Comeau, DeWare, Di Nino, Doody, Ghitter, Keon, Kinsella, LeBreton, Lynch-Staunton, Murray, Roberge, Rossiter, Simard, Spivak, Stratton-23
NAYS
The Honourable Senators
Adams, Butts, Carstairs, Chalifoux, Cook, Cools, Corbin, De Bané, Fairbairn, Ferretti Barth, Fraser, Grafstein, Graham, Joyal, Losier-Cool, Maheu, Mahovlich, Mercier, Milne, Moore, Pearson, Pépin, Poulin, Poy, Prud'homme, Rompkey, Ruck, Stollery, Taylor, Watt, Whelan, Wilson-32ABSTENTIONS
The Honourable Senators
Nil
Resuming debate on the motion of the Honourable Senator Fitzpatrick, seconded by the Honourable Senator Ruck, for the third reading of Bill C-29, An Act to establish the Parks Canada Agency and to amend other Acts as a consequence,And on the motion in amendment of the Honourable Senator Ghitter, seconded by the Honourable Senator Kinsella, that the Bill be not now read the third time but that it be amended:
1. in the preamble, on page 2, by replacing line 29 with the following:"(l.1) to effect the conservation of ecosystems and natural areas that extend beyond national park boundaries by working in co-operation with adjacent landowners, and being involved in research, environmental assessment and planning processes within the region, and".
2. on page 8, by adding after line 8, the following:"12.1 (1) The Minister shall appoint a Consultative Committee consisting of 12 persons with expertise in park management and conservation biology and interested in matters for which the Agency is responsible to hold office for a term of no more than five years.
(2) The Consultative Committee shall, at least once in each quarter of the calendar year, meet with the senior management officials of the Agency for the purpose of discussing any issues of national interest related to the management of national parks, national historic sites, and other protected heritage areas and heritage protection programs.(3) No member of the Consultative Committee may receive pecuniary gain or remuneration for service in connection with the Agency but members may be paid for any reasonable out-of-pocket expenses incurred by them for services rendered to the Agency.".
3. in Clause 32, on page 15:(a) by adding the following after line 15:"(1.1) The Agency shall, before any management plan referred to in subsection (1) is provided to the Minister under that subsection, hold a public hearing to hear all persons having an interest in and wishing to be heard in connection with the management plan.";
(b) by replacing line 18 with the following:
"protected heritage area every two years and"; and
(c) by adding the following after line 21:"(3) A public hearing to hear all persons having an interest in and wishing to be heard in connection with any amendments made to the management plan shall be held before any amendments are tabled in either House of Parliament.
(4) The Agency has, in relation to any public hearing under this section, the powers of a Commissioner under Part I of the Inquiries Act.
(5) A public hearing under this section may be held at such place in Canada or at such places in Canada by adjournment from place to place as the Agency may designate.(6) The Agency shall give notice of any public hearing under this section in the Canada Gazette and in one or more newspapers in general circulation throughout Canada, and in particular in those areas of Canada where, in the opinion of the Agency, there are persons likely to be interested in the matters to be considered at the hearing.".
After debate, The Honourable Senator Kinsella moved, seconded by the Honourable Senator DeWare, that further debate on the motion in amendment be adjourned until the next sitting.The question being put on the motion, it was adopted.
Private Bills
The Senate resumed debate on the motion of the Honourable Senator Taylor, seconded by the Honourable Senator Poy, for the second reading of Bill S-20, An Act to amend the Act of incorporation of the Roman Catholic Episcopal Corporation of Mackenzie.After debate, The question being put on the motion, it was adopted.
The Bill was then read the second time.The Honourable Senator Taylor moved, seconded by the Honourable Senator Poy, that the Bill be referred to the Standing Senate Committee on Social Affairs, Science and Technology.
The question being put on the motion, it was adopted.Order No. 2 was called and postponed until the next sitting.
Reports of Committees
Orders No. 1 to 5 were called and postponed until the next sitting._____________________________________________
With leave, The Senate reverted to Presentation of Reports From Standing or Special Committees.The Honourable Senator Rompkey, P.C. presented the following:
THURSDAY, October 29, 1998The Standing Committee on Internal Economy, Budgets and Administration has the honour to present its
TWENTY-SIXTH REPORT
Your Committee has examined and approved the supplementary budget presented to it by the Standing Committee on Social Affairs, Science and Technology for the proposed expenditures of the said Committee for the fiscal year ending March 31, 1999 for its special study on Social Cohesion.
| Professional and Other Services | $ 22,500 |
| TOTAL | $ 22,500 |
Respectfully submitted,
WILLIAM ROMPKEY
Chair
The Honourable Senator Rompkey, P.C. moved, seconded by the Honourable Senator Taylor, that the Report be placed on the Orders of the Day for consideration at the next sitting.The question being put on the motion, it was adopted.
ORDERS OF THE DAY
OTHER BUSINESS
Other
Orders No. 88 (motion), 42, 23 and 41 (inquiries) were called and postponed until the next sitting.Resuming debate on the motion of the Honourable Senator Kinsella, seconded by the Honourable Senator Gustafson:
That the Report of the Privacy Commissioner for the period ended March 31, 1998, tabled in the Senate on Tuesday, September 29, 1998, be referred to a Committee of the Whole for the purpose of hearing witnesses and making a report; andThat the Committee report no later than February 15, 1999.
After debate, The question being put on the motion, it was adopted.Orders No. 45, 1 (motions), 39, 35, 15, 34 and 37 (inquiries) were called and postponed until the next sitting.
MOTIONS
The Honourable Senator Carstairs for the Honourable Senator Watt moved, seconded by the Honourable Senator Chalifoux:That the Standing Senate Committee on Aboriginal Peoples be empowered to permit coverage by electronic media of its public proceedings with the least possible disruption of its hearings.
The question being put on the motion, it was adopted.REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Report of the President of the Medical Research Council of Canada, together with the Auditor General's Report, for the fiscal year ended March 31, 1998, pursuant to the Medical Research Council Act, R.S.C. 1985, c. M-4, sbs. 17(2). -Sessional Paper No. 1/36-888.Report of the Security Intelligence Review Committee for the fiscal year ended March 31, 1998, pursuant to the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, s. 53. -Sessional Paper No. 1/36-889.
ADJOURNMENT
The Honourable Senator Carstairs moved, seconded by the Honourable Senator Ruck:That the Senate do now adjourn.
The question being put on the motion, it was adopted.__________________________________________
Changes in Membership of Committees Pursuant to Rule 85(4)
Special Joint Committee on Child Custody and AccessThe name of the Honourable Senator Maloney substituted for that of the Honourable Senator Losier-Cool (October 28).
Standing Senate Committee on National FinanceThe name of the Honourable Senator Mahovlich substituted for that of the Honourable Senator Mercier (October 29).
Standing Senate Committee on Agriculture and ForestryThe names of the Honourable Senators Robichaud (Saint-Louis-de-Kent) and Whelan substituted for those of the Honourable Senators Gill and Mahovlich (October 29).