Journals of the Senate
52 Elizabeth II, A.D. 2003, Canada
Journals of the Senate
2nd Session, 37th Parliament
Issue 77
Wednesday, September 24, 2003
1:30 p.m.
The Honourable Daniel Hays, Speaker
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Angus, Austin, Bacon, Beaudoin, Biron, Bryden, Buchanan, Callbeck, Carstairs, Chalifoux, Chaput, Christensen, Cochrane, Comeau, Cook, Cools, Corbin, Day, De Bané, Doody, Downe, Eyton, Finnerty, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Harb, Hays, Hervieux-Payette, Hubley, Jaffer, Johnson, Joyal, Kelleher, Kinsella, Kirby, Kroft, LaPierre, Lapointe, Lavigne, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Mahovlich, Massicotte, Merchant, Milne, Moore, Morin, Murray, Nolin, Oliver, Phalen, Pitfield, Plamondon, Poulin (Charette), Poy, Prud'homme, Ringuette, Rivest, Robertson, Robichaud, Roche, Rompkey, St. Germain, Sibbeston, Sparrow, Stollery, Stratton, Tkachuk, Trenholme Counsell, Watt
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, Angus, *Atkins, Austin, Bacon, *Banks, Beaudoin, Biron, Bryden, Buchanan, Callbeck, Carstairs, Chalifoux, Chaput, Christensen, Cochrane, Comeau, Cook, Cools, Corbin, *Cordy, Day, De Bané, *Di Nino, Doody, Downe, Eyton, Finnerty, *Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Harb, Hays, Hervieux-Payette, Hubley, Jaffer, Johnson, Joyal, Kelleher, *Kenny, Kinsella, Kirby, Kroft, LaPierre, Lapointe, Lavigne, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Mahovlich, Massicotte, *Meighen, Merchant, Milne, Moore, Morin, Murray, Nolin, Oliver, *Pearson, *Pépin, Phalen, Pitfield, Plamondon, Poulin (Charette), Poy, Prud'homme, Ringuette, Rivest, Robertson, Robichaud, Roche, Rompkey, St. Germain, Sibbeston, *Smith, Sparrow, *Spivak, Stollery, Stratton, Tkachuk, Trenholme Counsell, Watt, *Wiebe
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Tabling of Reports from Inter-Parliamentary Delegations.
The Honourable Senator Losier-Cool tabled the following:
Report of the Canadian Section of the Assemblée parlementaire de la Francophonie respecting its participation at the XXIX Annual Session of the APF, held in Niamey, Niger, from July 4 to 10, 2003.—Sessional Paper No. 2/37-654.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Robichaud, P.C., seconded by the Honourable Senator Rompkey, P.C., for the third reading of Bill C-6, An Act to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims to provide for the filing, negotiation and resolution of specific claims and to make related amendments to other Acts, as amended,
And on the motion in amendment of the Honourable Senator Watt, seconded by the Honourable Senator Gill, that the Bill, as amended, be not now read a third time but that it be referred to the Standing Senate Committee on Legal and Constitutional Affairs.
After debate,
The Honourable Senator Tkachuk moved, seconded by the Honourable Senator Stratton, that further debate on the motion in amendment be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Third reading of Bill C-42, An Act respecting the protection of the Antarctic Environment.
The Honourable Senator Christensen moved, seconded by the Honourable Senator Léger, that the Bill be read the third time.
After debate,
The Honourable Senator Lynch-Staunton moved, seconded by the Honourable Senator Kinsella, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
The Order was called to resume debate on the motion of the Honourable Senator Day, seconded by the Honourable Senator Harb, for the third reading of Bill C-25, An Act to modernize employment and labour relations in the public service and to amend the Financial Administration Act and the Canadian Centre for Management Development Act and to make consequential amendments to other Acts,
And on the motion in amendment of the Honourable Senator Murray, P.C., seconded by the Honourable Senator Oliver, that the Bill be not now read a third time but that it be amended in clause 12,
(a) on page 145, by replacing line 20, with the following:
"(5) The Governor in Council shall designate, after approval by resolution of the Senate and House of Commons,''; and
(b) on page 151, by replacing lines 20 to 31, with the following:
"110. (1) The Chairperson shall, as soon as possible after the end of each fiscal year, submit an annual report to Parliament on the activities of the Tribunal during that fiscal year.
(2) The Chairperson may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of the powers and functions of the Tribunal where, in the opinion of the Chairperson, the matter is of such urgency or importance that a report on it should not be deferred until the time provided for transmission of the next annual report of the Tribunal.''; and
(c) on page 168, by replacing line 11, with the following:
"(4) The Governor in Council shall designate, after approval by resolution of the Senate and House of Commons,''.
SPEAKER'S RULING
Yesterday Senator Cools raised a point of order during debate on the third reading of Bill C-25.
The Honourable Senator claimed that Bill C-25 required the royal consent, but that the Senate had not been advised that consent had been granted. As I pointed out in undertaking to give a ruling, Beauchesne's, (6th Edition), page 213, citation 727, provides:
It will also be seen that a bill may be permitted to proceed to the very last stage without receiving the consent of the Crown but if it is not given at the last stage, the Speaker will refuse to put the question.
I have now had a chance to consider the points made by Senator Cools, as well as the interventions of Senator Carstairs and Senator Kinsella, for which I thank them.
Senator Cools read to us citation 727(1) of Beauchesne's in which the point is made that:
The consent of the Crown is always necessary in matters involving the prerogatives of the Crown.
The Senator clarified for us that her point of order was limited to a question of the prerogative, and that it had nothing to do with the personal properties of the Crown, for which the royal consent may also be required.
The Senator explained that in her view "there is something very wrong in how Bill C-25 has endeavoured to remove the oath of allegiance. One simply cannot just obliterate the oath of allegiance as a requirement of public service for Canadians.'' She referred to the entitlement of the Sovereign to allegiance, and suggested that: "One may not simply repeal the Sovereign's entitlement to that allegiance or fidelity by a simple bill''.
Honourable Senators, if Senator Cools' point is that Canadians owe allegiance to their head of state, she is of course right. That said, as far as I can see, Bill C-25 does not abridge the relationship of Canadians to their head of state. Bill C-25 is not about all Canadians; as the bill's sponsor Senator Day pointed out to us, it is about the public service and about public servants.
Bill C-25 does propose to repeal the requirement in section 23 of the Public Service Employment Act that every deputy head and employee shall, on appointment from outside the Public Service, take and subscribe the oath or solemn affirmation of allegiance. On the other hand, the Bill does not amend the Oaths of Allegiance Act, section 2 of which allows persons to take an oath of allegiance of their own accord. Section 4 of the Act even allows the Governor in Council to make regulations requiring any person appointed to or holding an office that is under the legislative authority of Parliament to take an oath of allegiance notwithstanding that the taking of the oath is not required by any other law.
Senator Cools pointed out to us, correctly, that the law of the prerogative is most complex. This has required the Chair to consult other texts in addition to the traditional procedural authorities. My review of the authorities revealed that the prerogative does sometimes play a role in the relationship between Her Majesty and public servants.
I would refer Honourable Senators to such citations as Halsbury's The Laws of England (1st Edition) (1909), citation 487 on page 342 of Volume 6; Halsbury's, at citation 26 on page 24 of Volume 7; as well as Mr. Paul Lorden, Q.C., Crown Law, Section 4. I would also refer Senators to the 1983 House of Commons Debates, at pages 29216 and 29217 with respect to the proceedings on Bill C-171, An Act to amend the Garnishment, Attachment and Pension and Diversion Act.
These authorities, both British and Canadian, touch on where public servants may be affected by the prerogative, but none leads us anywhere near the conclusion that the Queen has a prerogative right to an oath of allegiance from our public servants.
To conclude, Honourable Senators, no Senator has offered evidence to the Senate that a prerogative relating to oaths of allegiance by public servants currently exists. My research has also failed to uncover authority for such a proposition with respect to the general body of public servants, as opposed perhaps to distinct officeholders. My conclusion is that no such prerogative exists in Canada today. This conclusion in no way derogates from the duty of loyalty that all Canadians, and not just public servants, owe to the Sovereign.
I rule therefore that there is no point of order and that I am not prevented from putting the question on third reading of Bill C-25.
The Senate resumed debate on the motion of the Honourable Senator Day, seconded by the Honourable Senator Harb, for the third reading of Bill C-25, and on the motion in amendment of the Honourable Senator Murray, P.C.
After debate,
The Honourable Senator Stratton for the Honourable Senator Comeau moved, seconded by the Honourable Senator Nolin, that further debate on the motion in amendment be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Motions
Order No. 1 was called and postponed until the next sitting.
The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Grafstein:
That the Standing Senate Committee on National Finance be authorized to examine and report upon the expenditures set out in the Supplementary Estimates (A) for the fiscal year ending March 31, 2004.
After debate,
The question being put on the motion, it was adopted.
Reports of Committees
Order No. 1 was called and postponed until the next sitting.
OTHER BUSINESS
Senate Public Bills
Order No. 1 was called and postponed until the next sitting.
Third reading of Bill S-7, An Act to protect heritage lighthouses.
The Honourable Senator Kinsella for the Honourable Senator Forrestall moved, seconded by the Honourable Senator Oliver, that the Bill be read the third time.
The question being put on the motion, it was adopted on division.
The Bill was then read the third time and passed, on division.
Ordered, That the Clerk do go down to the House of Commons and acquaint that House that the Senate have passed this bill, to which they desire their concurrence.
Order No. 3 was called and postponed until the next sitting.
Second reading of Bill S-23, An Act to prevent unsolicited messages on the Internet.
The Honourable Senator Oliver moved, seconded by the Honourable Senator Nolin, that the Bill be read the second time.
After debate,
The Honourable Senator Poulin moved, seconded by the Honourable Senator Grafstein, 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 S-22, An Act respecting America Day.
The Honourable Senator Grafstein moved, seconded by the Honourable Senator Joyal, P.C., that the Bill be read the second time.
After debate,
The Honourable Senator Grafstein for the Honourable Senator Eyton moved, seconded by the Honourable Senator Corbin, 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 Lapointe, seconded by the Honourable Senator Gauthier, for the second reading of Bill S-18, An Act to amend the Criminal Code (lottery schemes).
After debate,
The Honourable Senator Stratton moved, seconded by the Honourable Senator Kinsella, 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 to 9 were called and postponed until the next sitting.
Commons Public Bills
Second reading of Bill C-250, An Act to amend the Criminal Code (hate propaganda).
The Honourable Senator Joyal, P.C., moved, seconded by the Honourable Senator Mahovlich, that the Bill be read the second time.
After debate,
The Honourable Senator Kinsella moved, seconded by the Honourable Senator Stratton, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
With leave of the Senate,
The Honourable Senator Comeau moved, seconded by the Honourable Senator Stratton:
That the Standing Senate Committee on Fisheries and Oceans have power to sit at 6:15 p.m. today even though the Senate may then be sitting, and that Rule 95(4) be suspended in relation thereto.
The question being put on the motion, it was adopted.
With leave of the Senate,
The Honourable Senator Kroft moved, seconded by the Honourable Senator Moore:
That the Standing Senate Committee on Banking, Trade and Commerce have power to sit at 6:20 p.m. today even though the Senate may then be sitting, and that Rule 95(4) be suspended in relation thereto.
The question being put on the motion, it was adopted.
Reports of Committees
Orders No. 1 to 13 were called and postponed until the next sitting.
Other
Orders No. 26, 22 (inquiries), 66, 104, 86 (motions), 9 (inquiry), 130 (motion), 2, 14 (inquiries), 121, 122 (motions), 16 (inquiry) 115 (motion), 6, 11, 15 and 21 (inquiries) were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Gauthier, seconded by the Honourable Senator Fraser:
That the Senate approve the radio and television broadcasting of its proceedings and those of its committees, with closed-captioning in real time, on principles analogous to those regulating the publication of the official record of its deliberations; and
That a special committee, composed of five Senators, be appointed to oversee the implementation of this resolution.
After debate,
In amendment, the Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Gauthier, that the motion be referred to the Standing Committee on Internal Economy, Budgets and Administration; and
That the Committee report no later than May 27, 2004.
The Honourable Senator Kinsella moved, seconded by the Honourable Senator Stratton, that debate on the motion in amendment be adjourned until the next sitting.
The question being put on the motion, it was adopted.
INQUIRIES
The Honourable Senator Day called the attention of the Senate to the inquiry standing in the name of the Honourable Senator Prud'homme, P.C., concerning the parliamentary associations, in particular their budgets and the very odd manner in which some of them, specifically the Inter-parliamentary Union, conduct their annual meetings.
After debate,
The Honourable Senator Day moved, seconded by the Honourable Senator Cools, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
MOTIONS
The Honourable Senator Losier-Cool moved, seconded by the Honourable Senator Joyal, P.C.:
That the Senate of Canada recommends that the Government of Canada recognize the year 2004 as the Acadian Year.
After debate,
The Honourable Senator Kinsella for the Honourable Senator Comeau moved, seconded by the Honourable Senator Stratton, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
The Honourable Senator Roche moved, seconded by the Honourable Senator Plamondon:
That the Senate of Canada recommend that the Government of Canada refuse to participate in the U.S.-sponsored Ballistic Missile Defence (BMD) system, because:
1. It will undermine Canada's longstanding policy on the non-weaponization of space by giving implicit, if not explicit, support to U.S. policies to develop and deploy weapons in space;
2. It will further integrate Canadian and American military forces and policy without meaningful Canadian input into the substance of those policies;
3. It will make the world, including Canada, not more secure but less secure.
After debate,
The Honourable Senator LaPierre moved, seconded by the Honourable Senator Gill, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Summaries of the Corporate Plan for 2003-2204 and of the Operating and Capital Budgets for 2003-2004 of the Old Port of Montréal Corporation Inc., pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 125(4).—Sessional Paper No. 2/37-653.
ADJOURNMENT
The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Rompkey, P.C.:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 6:44 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 Fisheries and Oceans
The name of the Honourable Senator Trenholme Counsell added to the membership (September 23).