Journals of the Senate
49 Elizabeth II, A.D. 2000, Canada
Journals of the Senate
2nd Session, 36th Parliament
Issue 50
Tuesday, May 2, 2000
2:00 p.m.
The Honourable Rose-Marie Losier-Cool, Speaker pro tempore
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Austin, Bacon, Banks, Beaudoin, Bolduc, Boudreau, Bryden, Carstairs, Chalifoux, Christensen, Cochrane, Cogger, Cohen, Comeau, Cook, Cools, Corbin, De Bané, DeWare, Di Nino, Doody, Eyton, Fairbairn, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Grimard, Gustafson, Hays, Hervieux-Payette, Johnson, Joyal, Kelleher, Kelly, Kenny, Kinsella, Kolber, Kroft, Lawson, LeBreton, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Mercier, Milne, Moore, Murray, Nolin, Oliver, Pearson, Pépin, Perry (Poirier), Pitfield, Poulin (Charette), Robertson, Robichaud, (Saint-Louis-de-Kent), Rompkey, Rossiter, Ruck, Sibbeston, Simard, Sparrow, Spivak, Stollery, Tkachuk, Watt, Wiebe, Wilson
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Austin, Bacon, Banks, Beaudoin, Bolduc, Boudreau, Bryden, *Callbeck, Carstairs, Chalifoux, Christensen, Cochrane, Cogger, Cohen, Comeau, Cook, Cools, Corbin, De Bané, DeWare, Di Nino, Doody, Eyton, Fairbairn, *Finestone, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Grimard, Gustafson, Hays, Hervieux-Payette, Johnson, Joyal, Kelleher, Kelly, Kenny, Kinsella, *Kirby, Kolber, Kroft, Lawson, LeBreton, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Mercier, Milne, Moore, Murray, Nolin, Oliver, Pearson, Pépin, Perry (Poirier), Pitfield, Poulin (Charette), *Prud'homme, *Rivest, Robertson, Robichaud, (Saint-Louis-de-Kent), Rompkey, Rossiter, Ruck, Sibbeston, Simard, Sparrow, Spivak, Stollery, *Stratton, *Taylor, Tkachuk, Watt, Wiebe, Wilson
The Clerk at the Table informed the Senate that the Honourable the Speaker was unavoidably absent, whereupon the Honourable Senator Losier-Cool, Speaker pro tempore, took the Chair, pursuant to Rule 11.
PRAYERSTribute was paid to the memory of the Honourable Richard A. Donahoe, former Senator, whose death occurred April 25, 2000.
SENATORS' STATEMENTS
Some Honourable Senators made statements.ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Third reading of Bill C-2, An Act respecting the election of members to the House of Commons, repealing other Acts relating to elections and making consequential amendments to other Acts.The Honourable Senator Hays moved, seconded by the Honourable Senator Moore, that the Bill be read the third time.
After debate, The Honourable Senator Oliver moved, seconded by the Honourable Senator Beaudoin, that further debate on the motion be adjourned until the next sitting.The question being put on the motion, it was adopted.
Resuming debate on the motion of the Honourable Senator Boudreau, P.C., seconded by the Honourable Senator Hays, for the second reading of Bill C-20, An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.After debate, The Honourable Senator Atkins moved, seconded by the Honourable Senator DeWare, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.Second reading of Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations.
The Honourable Senator Pépin moved, seconded by the Honourable Senator Maheu, that the Bill be read the second time.After debate, The Honourable Senator Robertson moved, seconded by the Honourable Senator Cohen, that further debate on the motion be adjourned until 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.Second reading of Bill S-21, An Act to protect heritage lighthouses.
The Honourable Senator Forrestall moved, seconded by the Honourable Senator DeWare, that the Bill be read the second time.After debate, The Honourable Senator Hays for the Honourable Senator Callbeck moved, seconded by the Honourable Senator Watt, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.Orders No. 3 to 8 were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Cools, seconded by the Honourable Senator Milne, for the second reading of Bill S-9, An Act to amend the Criminal Code (abuse of process).After debate, The Honourable Senator Hays moved, seconded by the Honourable Senator Bacon, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.Commons Public Bills
Orders No. 1 and 2 were called and postponed until the next sitting.Reports of Committees
Orders No. 1 to 4 were called and postponed until the next sitting.Consideration of the Seventh Report of the Standing Senate Committee on Foreign Affairs entitled: "The New NATO and the Evolution of Peacekeeping: Implications for Canada", tabled in the Senate on April 5, 2000.
After debate, The Honourable Senator Stollery moved, seconded by the Honourable Senator Bolduc, that the Report be adopted.The Honourable Senator Andreychuk moved, seconded by the Honourable Senator DeWare, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.Other
Orders No. 21, 14, 17 (inquiries) and 7 (motion), were called and postponed until the next sitting.The Order was called concerning the motion of the Honourable Senator Lynch-Staunton, seconded by the Honourable Senator Beaudoin:
That upon committal of Bill C-20 to committee, the committee be instructed to amend Bill C-20 to rank the Senate of Canada as an equal partner with the House of Commons, and report back accordingly.SPEAKER'S RULING
On Tuesday, April 11, when Senator Lynch-Staunton, the Leader of the Opposition, moved a motion of instruction, Senator Hays, the Deputy Leader of the Government, rose on a point of order. Senator Hays claimed that the motion of instruction was out of order because it was not in the correct form. The motion of Senator Lynch-Staunton seeks to instruct the committee that would examine Bill C-20 to make certain amendments "to rank the Senate of Canada as an equal partner with the House of Commons." According to Senator Hays, this instruction is mandatory in form and consequently is out of order. Senator Hays argued that the instruction must be permissive, rather than mandatory, because the power to amend the bill is a power which the committee already possesses. In support of his position, Senator Hays referred to a ruling of November 1995 as well as to Bourinot on Parliamentary Procedure and Practice in the Dominion of Canada.Subsequently, there were some other interventions by several Senators, including Senator Lynch-Staunton who supported his motion with a citation from Beauchesne's Parliamentary Rules & Forms as well as a reference to the Companion to the Standing Orders and Guide to the Proceedings to the House of Lords. I want to thank all Senators who spoke on the point of order. I have reviewed the material and the references that were cited during the discussion on the point of order. I am now prepared to give my ruling.
Motions of instruction are relatively infrequent in Canadian parliamentary practice. They are not a regular feature in either the Senate or the House of Commons and it is not altogether surprising that their use can give rise to some confusion. A motion of instruction was last moved in the Senate December 6, 1999 by Senator Murray. In that particular case, the instruction proposed to empower the committee to divide Bill C-6, a bill dealing with electronic commerce. This motion was taken up for consideration immediately after the bill had received second reading. As it happened, however, no decision was taken with respect to the motion because it was withdrawn some days later after the Senate had actually disposed of Bill C-6.The point of order raised by Senator Hays focuses on the question of whether the motion of instruction should be in a permissive form rather than in the mandatory style proposed by Senator Lynch-Staunton. If it is determined that the point of order is well founded, then the motion must be ruled out of order. In trying to determine the proper answer to this proposition, I felt obliged to investigate some of the history of motions of instruction in earlier editions of Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, the British parliamentary authority. This seemed appropriate given the limited use made of instructions in the Canadian Parliament and the fact that these motions are derived from British parliamentary practice.
Motions of instruction developed in the British Parliament at a time when the powers of committees were narrowly defined and severely constrained. Through the eighteenth century and into the first decades of the nineteenth, it would seem that the authority of committees to amend bills was so limited that they frequently required instructions from the House to carry out their work effectively. A partial remedy to this problem was to incorporate within the rules or standing orders of the House, certain powers whereby the committees acquired the authority to make amendments to legislation so long as those amendments were generally within the scope of the bill and were relevant. Thereafter, the need for instructions became less frequent and they developed certain characteristics which remain generally the same to this day. Among these characteristics was the distinction between permissive and mandatory instructions. The more ordinary instruction was the permissive instruction which empowered a committee to exercise certain powers at its discretion. Instructions had to be in the permissive form if they were to apply to committees which already possessed some authority under the standing orders. Instructions could be either permissive or mandatory if the committees involved possessed no powers because they were created on an ad hoc basis or if they concerned private bills.Applying this basic distinction to the Rules of the Senate as they are presently written, it would seem to me that motions of instruction to a committee with respect to the study of public bills must be in the permissive form. This is because our rules already authorize any committee examining a bill to recommend any relevant amendments it deems appropriate. Thus, a committee looking at Bill C-20 has the power to amend it in the way suggested by the motion of instruction proposed by Senator Lynch-Staunton. The text of the motion, however, is mandatory in its form and this is contrary to established usage. This position is supported by recent Canadian authorities including Beauchesne's and is confirmed in the latest Canadian parliamentary manual House of Commons Procedure and Practice at page 641: "Motions of instruction respecting bills are permissive rather than mandatory."
Moreover, the present motion of instruction, even if it had been written in the permissive form, would still not past muster procedurally. There are various criteria listed in Erskine May on admissible and inadmissible instructions. Admissible instruction can authorize a committee to treat legislation in a variety of different, but specific, ways. Among the instructions which are acceptable are motions empowering a committee to divide a bill, to consolidate several bills or to report separately on different parts of a bill. The motion of instruction of Senator Lynch-Staunton seeks to do none of these things. Rather it seeks to instruct the committee to do something which it already has the power to do. This in fact, is a form of instruction which is recognized to be inadmissible because it is superfluous.Beyond this, there is still another reason why the motion would give rise to some doubts about its acceptability, quite apart from what has already been discussed. Any motion seeking to authorize or direct a committee in its study of a particular bill must be clear and explicit. As I read it, the current motion does not meet this standard. In seeking to have the committee make whatever changes are required "to rank the Senate of Canada as an equal partner with the House of Commons," the motion is not providing an instruction that is adequately explicit. The language is not clear or specific enough. It does not allow the committee to understand definitely what provisions the Senate desires that it should take into consideration.
For these reasons, therefore, I rule that the motion of instruction proposed by Senator Lynch-Staunton is out of order.One final comment, while the point of order was raised at the earliest opportunity when the motion of instruction was first called, I think it advisable to note that a motion of instruction cannot properly be taken up for debate prior to the adoption of the second reading motion on the bill to which it relates. Again, all the authorities are clear on this. Beauchesne's states at citation 684 on page 204 that "The time for moving an instruction is immediately after the committal of the bill, or, subsequently as an independent motion. The instruction should not be given while the bill is still in the possession of the House, but rather after it has come into the possession of the committee. If the bill has been partly considered in committee, it is not competent to propose an Instruction."
Accordingly, Order No. 61 was discharged and the motion withdrawn.Other
Orders No. 6, 19, 12, 9, 18, 16 and 13 (inquiries) were called and postponed until the next sitting.____________________________________________
With leave, The Senate reverted to Government Notices of Motions.With leave of the Senate, The Honourable Senator Hays moved, seconded by the Honourable Senator Wiebe:
That when the Senate adjourns today, it do stand adjourned until tomorrow, Wednesday, May 3, 2000, at 1:30 p.m.;That at 3:30 p.m. tomorrow, if the business of the Senate has not been completed, the Speaker shall interrupt the proceedings to adjourn the Senate;
That should a division be deferred until 5:30 p.m. tomorrow, the Speaker shall interrupt the proceedings at 3:30 p.m. to suspend the sitting until 5:30 p.m. for the taking of the deferred division; andThat all matters on the Orders of the Day and on the Notice Paper, which have not been reached, shall retain their position.
The question being put on the motion, it was adopted.REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Document entitled "Indian Claims Commission: Annual Report 1998-99".-Sessional Paper No. 2/36-333.Report of Petro-Canada Limited, together with the Auditor General's report, for the year ended December 31, 1999, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 150(1).-Sessional Paper No. 2/36-334.
ADJOURNMENT
The Honourable Senator Hays moved, seconded by the Honourable Senator Banks: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)
Standing Senate Committee on Banking, Trade and CommerceThe names of the Honourable Senators Kenny and Kroft substituted for those of the Honourable Senators Poulin and Grafstein (April 13).
Standing Senate Committee on Transport and CommunicationsThe names of the Honourable Senators Kirby, De Bané, Finestone and Furey substituted for those of the Honourable Senators Maheu, Callbeck, Furey and Kirby (May 1).
Standing Senate Committee on Aboriginal PeoplesThe name of the Honourable Senator Tkachuk removed from the membership (May 1).