50 Elizabeth II, A.D. 2001, Canada

Journals of the Senate

1st Session, 37th Parliament

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Issue 21

Wednesday, March 28, 2001
1:30 p.m.

The Honourable Daniel Hays, Speaker

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The Members convened were:

The Honourable Senators

Adams, Andreychuk, Angus, Austin, Bacon, Banks, Beaudoin, Bolduc, Bryden, Buchanan, Callbeck, Carney, Carstairs, Cochrane, Cohen, Comeau, Cook, Cools, Corbin, Cordy, DeWare, Di Nino, Doody, Eyton, Fairbairn, Ferretti Barth, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Gustafson, Hays, Hervieux-Payette, Hubley, Johnson, Joyal, Kelleher, Kenny, Keon, Kinsella, Kirby, Kolber, Kroft, Lawson, LeBreton, Losier-Cool, Lynch-Staunton, Maheu, Meighen, Mercier, Milne, Moore, Morin, Murray, Oliver, Pearson, Pépin, Pitfield, Poulin (Charette), Prud'homme, Rivest, Robertson, Robichaud, Rossiter, Setlakwe, Sibbeston, Simard, Spivak, St. Germain, Stollery, Stratton, Taylor, Tkachuk, Tunney, Watt, Wilson

The Members in attendance to business were:

The Honourable Senators

Adams, Andreychuk, Angus, Austin, Bacon, Banks, Beaudoin, Bolduc, Bryden, Buchanan, Callbeck, Carney, Carstairs, Cochrane, Cohen, Comeau, Cook, Cools, Corbin, Cordy, *De Bané, DeWare, Di Nino, Doody, Eyton, Fairbairn, Ferretti Barth, *Finestone, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Gustafson, Hays, Hervieux-Payette, Hubley, Johnson, Joyal, Kelleher, Kenny, Keon, Kinsella, Kirby, Kolber, Kroft, Lawson, LeBreton, Losier-Cool, Lynch-Staunton, Maheu, Meighen, Mercier, Milne, Moore, Morin, Murray, *Nolin, Oliver, Pearson, Pépin, Pitfield, Poulin (Charette), Prud'homme, Rivest, Robertson, Robichaud, Rossiter, Setlakwe, Sibbeston, Simard, Spivak, St. Germain, Stollery, Stratton, Taylor, Tkachuk, Tunney, Watt, Wilson

PRAYERS

 

SENATORS' STATEMENTS

Some Honourable Senators made statements.

 

DAILY ROUTINE OF BUSINESS

Presentation of Reports from Standing or Special Committees

The Honourable Senator Kirby, Chair of the Standing Senate Committee on Social Affairs, Science and Technology, tabled its Second Report (Interim) entitled: The Health of Canadians - The Federal Role, Volume One: The Story So Far.-Sessional Paper No. 1/37-143S.

The Honourable Senator Kirby, moved, seconded by the Honourable Senator Poulin, 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.

The Honourable Senator Murray, P.C., presented the following:

WEDNESDAY, March 28, 2001

The Standing Senate Committee on National Finance has the honour to present its

FOURTH REPORT

Your Committee, to which was referred Bill S-6, An Act to assist in the prevention of wrongdoing in the Public Service by establishing a framework for education on ethical practices in the workplace, for dealing with allegations of wrongdoing and for protecting whistleblowers, has, in obedience to the Order of Reference of Wednesday, January 31, 2001, examined the said Bill and now reports the same with the following amendments:

1. Page 5, Clause 9: Add after line 25, the following:

"(5) An employee who has made a request under paragraph (1)(b) may waive the request or any resulting right to confidentiality, in writing, at any time.

(6) Where the Commissioner is not prepared to give an assurance of confidentiality in response to a request made under paragraph (1)(b), the Commissioner may reject and take no further action on the notice.".

2. Page 7, clause 14: Replace line 34 with the following:

"(4) Information related to an investigation is confidential and shall not be disclosed, except in accordance with this Act.

(5) The Commissioner shall provide the".

3. Page 8, clause 17: Replace lines 30 and 31 with the following:

"(c) the number of notices rejected pursuant to sections 9 and 12;".

4. Page 10, clause 20: Replace lines 25 to 30, with the following:

"20. (1) Except as authorized by this Act or any other law in force in Canada, no person shall disclose to any other person the name of the employee who has given a notice under subsection 9(1) and has requested confidentiality under that section, or any other information the disclosure of which reveals the employee's identity, including the existence or nature of a notice, without the employee's consent.".

5. Page 11, new clauses 23 and 24: Add after line 19, the following:

"REVIEW

23. (1) On the expiration of three years after the coming into force of this Act, it stands referred to such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established to review its administration and operation.

(2) Within one year after beginning a review under subsection (1) or within such further time as the Senate, the House of Commons or both Houses of Parliament, as the case may be, may authorize, the committee shall submit a report on the review.

CONSEQUENTIAL AMENDMENT

Access to Information Act

24. Schedule II of the Access to Information Act is amended by adding the following in alphabetical order:

Public Service Whistleblowing Act           section10, subsection
Loi sur la dénonciation dans la             14(4) and section 20".
fonction publique

Respectfully submitted,

LOWELL MURRAY

Chairman

The Honourable Senator Murray, P.C., moved, seconded by the Honourable Senator Simard, 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.

 

Government Notices of Motions

With leave of the Senate,

The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Finnerty:

That when the Senate adjourns today, it do stand adjourned until tomorrow, Thursday, March 29, 2001, at 1:30 p.m.

The question being put on the motion, it was adopted.

 

Notices of Motions

With leave of the Senate,

The Honourable Senator Gustafson moved, seconded by the Honourable Senator Fairbairn, P.C.:

That the Standing Senate Committee on Agriculture and Forestry have power to sit on Thursday, March 29, 2001, at 2 p.m., for the purpose of hearing from the Chief Canadian Negotiator of Free Trade Area of the Americas, even though the Senate may then be sitting, and that Rule 95(4) be suspended in relation thereto.

After debate,

The question being put on the motion, it was adopted.

 

Presentation of Petitions

The Honourable Senator Kroft presented the following petition:

Of the Conference of Mennonites of Canada, of the City of Winnipeg, in the Province of Manitoba; praying for the passage of An Act to amend the Act of incorporation of the Conference of Mennonites in Canada.

 

ORDERS OF THE DAY

GOVERNMENT BUSINESS

Bills

Third reading of Bill C-20, An Act for granting to Her Majesty certain sums of money for the public service of Canada for the financial year ending March 31, 2001.

The Honourable Senator Finnerty moved, seconded by the Honourable Senator Cordy, that the Bill be read the third time.

The question being put on the motion, it was adopted.

The Bill was then read the third time and passed.

Ordered, That a Message be sent to the House of Commons to acquaint that House that the Senate have passed this Bill.

Third reading of Bill C-21, An Act for granting to Her Majesty certain sums of money for the public service of Canada for the financial year ending March 31, 2002.

The Honourable Senator Finnerty moved, seconded by the Honourable Senator Milne, that the Bill be read the third time.

The question being put on the motion, it was adopted.

The Bill was then read the third time and passed.

Ordered, That a Message be sent to the House of Commons to acquaint that House that the Senate have passed this Bill.

 

SPEAKER`S RULING

On Thursday, March 22, 2001, Senator Wiebe, on behalf of Senator Kolber, presented the Second Report of the Standing Senate Committee on Banking, Trade, and Commerce, dealing with Bill S-16, An Act to amend the Proceeds of Crime (Money Laundering) Act.

Since the Bill was reported without amendment, the report stood adopted without motion under Rule 97(4). When I, as Speaker, asked when the Bill should be read a third time, the Deputy Leader of the Government in the Senate, Senator Robichaud, moved that it be placed on the Order Paper for consideration at the next sitting.

At the appropriate time, Senator Kinsella raised a point of order based on two principles. First, he questioned whether the Bill was properly reported. Second, he sought clarification as to whether Senator Robichaud had acted correctly in moving the motion to set the date for third reading.

On the first point, Senator Kinsella expressed the view that the practice has been that, when a Chair is not available to perform his or her functions, it falls upon the Deputy Chair to do so. He asked whether the Banking Committee had authorised Senator Wiebe to present the report. His fundamental concern was whether any member of a committee may present a committee report.

Senator Kinsella's second concern was whether Senator Robichaud acted properly in moving the motion to set the date for third reading. He noted that Rule 97(4) provides that it is the Senator in charge of the bill who should move such a motion, and suggested that, since Senator Robichaud was not the sponsor, he should not have moved that motion.

A number of Senators then spoke to the issue. Senator Robichaud quoted Rule 97(1), which deals with the presentation of committee reports: "A report from a select committee shall be presented by the chairman of the committee or by a Senator designated by the chairman." He felt that Senator Wiebe had acted properly, since Senator Kolber had asked him to act on his behalf. As to the second matter raised by Senator Kinsella, Senator Robichaud noted that the Bill in question was government legislation. He suggested that as Deputy Leader of the Government, he could move the motion to set the date for third reading. Senator Wiebe then intervened to confirm that Senator Kolber had asked him to present the report.

Subsequently, Senators Tkachuk, Carstairs, Lynch-Staunton, and Taylor also participated in the debate, which can be found at pages 422-424 of the Debates of the Senate.

I would like to thank all Honourable Senators for their contribution to the consideration of this issue.

Senator Kinsella's point of order touches directly on section (1) of Rule 97, as quoted above, and section (4) of the same Rule, which states that:

"When a committee reports a bill without amendment, such report shall stand adopted without any motion, and the Senator in charge of the bill shall move that it be read a third time on a future day."

With regard to the first element of the point of order, that relating to the propriety of Senator Wiebe presenting the report, similar issues have been raised in the past.

On February 24, 1998, Senator Callbeck presented reports of the Banking Committee on behalf of Senator Kirby, the Committee's Chair. Senator Kinsella asked why the reports had not been presented by the Chair or Deputy Chair. Senator Callbeck replied that she had been asked by Senator Kirby to present them. Senator Kinsella accepted this response, although he indicated that he did not view it as a precedent.

On December 8, 1999, Speaker Molgat dealt with a point of order raised the previous day by Senator Kinsella. In his point of order, Senator Kinsella questioned, among other things, whether the Banking Committee had adopted a motion to report Bill S-3, an income tax convention bill, and whether the Committee had authorised Senator Hervieux-Payette to report the Bill. At that time, Senator Kolber, the Chair of the Committee, noted that he had authorised Senator Hervieux-Payette to act on his behalf. Senator Molgat made a point of noting that, as Speaker, he had no authority to question whether the Senator presenting a report had been designated, and that he must depend upon the committee Chair to have done so. In light of Rule 97(1), Speaker Molgat did not find that Senator Kinsella's point of order had been established.

As noted previously, in the present case, Senator Wiebe also confirmed to the House that Senator Kolber had asked him to present the report, as Rule 97(1) allows. I would like to confirm my support for Speaker Molgat's position. In my opinion, the statement by Senator Wiebe was not strictly necessary. If an Honourable Senator declares that they are doing something on behalf of another, this declaration should be taken in good faith, and should only become an issue if the designator were to indicate that there had been a misunderstanding.

Pursuant to Rule 97(1), I therefore find that the report to the Senate was properly presented.

I will now turn to the second element of the point of order, as to whether Senator Robichaud acted properly by moving the motion to set the date for third reading of Bill S-16.

In relation to Rule 97(4), I would note that our Rules do not provide a clear definition of "the Senator in charge of the bill." In the case of a government bill such as S-16, the Leader of the Government in the Senate is ultimately responsible for it - indeed that position appears on the cover of the Bill. In keeping with Rule 4(d), the Deputy Leaders on both sides often act on behalf of their respective Leaders in this Chamber.

In addition, the Senator serving as sponsor of a bill - who begins debate at second reading - also has a high degree of involvement throughout the process, often including moving the motion to set the date for third reading. Finally, in matters resulting directly from a committee's work, as in this case, the committee Chair may also be involved.

Senate practice with respect to moving the motion to set the date for third reading reflects the variety of Senators who may be involved in the process. For government bills, there have been many cases in which a Senator other than the Leader of the Government has moved this motion. This motion has often been moved by the Deputy Leader of the Government. To take a few examples, during the 2nd Session of the 36th Parliament, the Deputy Leader moved this motion for Bills C-10, C-22, and C-26. During that same Session, Chairs of committees reporting government bills sometimes moved the motion in question; this was the case, for example, with Bills S-18, C-2, and C-7.

Therefore, while the Rules do not define the term "Senator in charge of a bill," Senate practice would suggest that, at least for government legislation, the Leader of the Government, the Deputy Leader of the Government, the sponsor of the Bill, or their designate can move the motion to set the date for third reading.

In light of the Rules of the Senate and Senate practice, I find that the second element of this point of order has also not been established. Bill S-16 was properly reported and the motion to set the date for consideration at third reading was properly moved.

Third reading of Bill S-16, An Act to amend the Proceeds of Crime (Money Laundering) Act.

The Honourable Senator Furey moved, seconded by the Honourable Senator Gauthier, that the Bill be read the third time.

After debate,

The Honourable Senator Kelleher, P.C., moved, seconded by the Honourable Senator Rossiter, that further debate on the motion be adjourned until the next sitting.

The question being put on the motion, it was adopted.

Order No. 4 was called and postponed until the next sitting.

 

SPEAKER`S RULING

Honourable Senators, yesterday, at the conclusion of the Orders of the Day, Senator Carney rose on a question of privilege raised in accordance with the provisions of Rule 43. The essence of Senator Carney's argument was that her privileges were breached when leave was denied when she appealed to the Senate to allow her to extend her remarks past the 15 minutes allowed by the Rules of the Senate. This incident came to pass on Thursday March 15, 2001 while Senator Carney was speaking on an inquiry of which she had previously given notice. Senator Carney explained that the denial of leave was inequitably applied to her in that other speakers had been allowed to extend their remarks, while her request for leave to continue speaking had been denied.

Senator Carstairs responded to Senator Carney's remarks by referring to the tests laid out in the Rules of the Senate in Rule 43(1), which aid us in determining the validity of a claim that privileges have been breached. Specifically, Senator Carstairs argued that, in her opinion, Senator Carney had not met the test of raising this question at the earliest opportunity, as specified in 43(1)(a), since three sitting days had passed since the 15th of March before Senator Carney raised this matter under Rule 43. Secondly, Senator Carstairs argued that privilege cannot be breached by the observation of, and strict adherence to, the Rules of the Senate. Senator Carstairs and Senator Robichaud both pointed out in their remarks that Senator Carney had already been extended the courtesy of leave earlier to allow her to get to her item of business ahead of other Senators who held positions of priority on the Order Paper.

Finally, Senator Kinsella and Senator Grafstein had an exchange on the principle of freedom of speech and the individual rights and immunities of Senators.

Honourable Senators, as I indicated at the conclusion of debate on this matter, I am obliged by Rule 43(12) to explain my ruling, using references to any rule or written authority relevant to the case. I am also obliged by Rule 43 to ensure the question of privilege being raised meets certain tests. Having considered the remarks made by those Senators who intervened, to whom I extend my thanks for their assistance, and having consulted the authorities and precedents, I am prepared to give my ruling.

Senator Carney has used the provisions of Rule 43 to bring her question of privilege to the Senate. I would like to remind Honourable Senators that Rule 43 exists to give precedence in the business of the Senate to this type of question, underlining the importance all Westminster-style Parliaments give to matters of privilege. As a result, any matter raised using these provisions must meet certain conditions precedent to being afforded that priority.

In my judgement, this matter was not raised at the earliest possible opportunity, according to 43(1)(a). While I am sympathetic to the medical limitations cited by Senator Carney, three sitting days did, indeed, pass before the matter was raised. The Rules do not reveal an exemption from this imperative for any reason, medical or otherwise.

Further, I am not convinced that, according to 43(1)(b), this matter directly concerns the privileges of Senator Carney. It is true that, as Senator Kinsella argued, freedom of speech is an unquestioned privilege of any Member of Parliament. However, in the same authority to which Senator Kinsella referred, just a little further down the same page, on page 51 of Marleau and Montpetit's House of Commons: Procedure and Practice, another privilege is listed, that of the privileges of a house of parliament to regulate its own internal affairs. In fact, in Beauchesne's 6th edition, citation 33 says: "The most fundamental privilege of the House as a whole is to establish rules of procedure for itself and to enforce them. A few rules are laid down in the Constitution Act, but the vast majority are resolutions of the House, which may be added to, or repealed at the discretion of the House."

In Marleau and Montpetit, pages 71 to 79, the freedom of speech is further explained. If I may paraphrase, freedom of speech is not necessarily the freedom to speak. The principle behind the freedom of speech is that a Member of Parliament, while speaking within what is defined as a proceeding of parliament, cannot be prosecuted through either civil or criminal means for what has been said. This principle allows Members of Parliament to express themselves freely on any matter being debated, without fear of legal consequences. Since Senator Carney is not arguing that she is being punished legally for what she was saying, I do not believe her freedom of speech privileges have been breached.

As for equity of treatment by colleagues as a privilege, I cannot find anything in the authorities that suggests that one must be treated by one's colleagues exactly the same as one perceives others are treated in the application of such devices as leave. While Senator Carney may have a grievance over how she perceives she has been treated by her colleagues, there does not appear to be a related privilege she may claim.

Accordingly, I do not find that Senator Carney has met the particular tests of raising the matter at the earliest opportunity or that denial of leave directly affects her privileges. Therefore, I do not find that a prima facie of privilege has been established.

In closing, if I may, 43(1)(c) also asks if a question raised as a matter of privilege could possibly be remedied by another parliamentary process. In the hope that it is of use to Senator Carney and other Senators, I would suggest to her that the questions of time limits on speeches and of leave to extend remarks are both elements of our rules of procedure. We do have a committee that concerns itself with these questions. Senator Carney might consider at some time in the future moving a motion to have the Standing Committee on Privileges, Standing Rules and Orders study this question, as well as that of medical exemptions to raising questions of privilege. I should also note that the Speaker's Advisory Committee has in the past, and most likely will in the future, consider the issue of the adequacy of 15 minute speeches and the question of granting leave.

 

OTHER BUSINESS

Senate Public Bills

Orders No. 1 to 5 were called and postponed until the next sitting.

Resuming debate on the motion of the Honourable Senator Stratton, seconded by the Honourable Senator Cohen, for the second reading of Bill S-20, An Act to provide for increased transparency and objectivity in the selection of suitable individuals to be named to certain high public positions.

After debate,

The Honourable Senator Cohen 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.

Orders No. 7 and 8 were called and postponed until the next sitting.

 

Other

Orders No. 2, 15, 8, 6, 7 (inquiries) and 3 (motion) were called and postponed until the next sitting.

 

MOTIONS

The Honourable Senator Gauthier moved, seconded by the Honourable Senator Setlakwe:

That a Message be sent to the House of Commons requesting that House to support the contents of the following motion adopted by the Senate on March 22, 2001:

That, in the opinion of the Senate, Mr. Denis Desautels has been an excellent Auditor General of Canada.

Scrupulously honest, professional, fair-minded and a determined investigator, Mr. Desautels carried out his duties as Auditor General efficiently and effectively. During his ten-year term, he not only verified the government's accounts but also was able, thanks to his leadership, to lead a team as professional and dedicated as himself.

The Parliament of Canada thanks Mr. Desautels for his services and recognizes the valuable work he has done for his country.

After debate,

The question being put on the motion, it was adopted.

 

ADJOURNMENT

The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Pépin:

That the Senate do now adjourn.

The question being put on the motion, it was adopted.

(Accordingly, at 3:15 p.m. the Senate was continued until 1:30 p.m. tomorrow)

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Changes in Membership of Committees Pursuant to Rule 85(4)

Standing Senate Committee on National Finance

The names of the Honourable Senators Cohen, Mahovlich and Hervieux-Payette substituted for those of the Honourable Senators Doody, Taylor and Christensen (March 27).

Standing Senate Committee on Foreign Affairs

The name of the Honourable Senator Setlakwe substituted for that of the Honourable Senator Poulin (March 27).

The name of the Honourable Senator Poulin substituted for that of the Honourable Senator Setlakwe (March 28).

Standing Senate Committee on Social Affairs, Science and Technology

The name of the Honourable Senator Ferretti Barth substituted for that of the Honourable Senator Graham (March 27).

The name of the Honourable Senator Johnson removed from the membership (March 28).

Committee of Selection

The names of the Honourable Senators Poulin, Graham, Pépin and Callbeck substituted for those of the Honourable Senators Fairbairn, Milne, Cordy and Graham (March 27).

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