Journals of the Senate
52 Elizabeth II, A.D. 2003, Canada
Journals of the Senate
2nd Session, 37th Parliament
Issue 94
Tuesday, November 4, 2003
2:00 p.m.
The Honourable Daniel Hays, Speaker
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Bacon, Baker, Banks, Beaudoin, Biron, Bryden, Buchanan, Callbeck, Carney, Carstairs, Chalifoux, Chaput, Christensen, Cochrane, Comeau, Cools, Corbin, Cordy, Day, Di Nino, Doody, Downe, Eyton, Fairbairn, Finnerty, Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Gustafson, Harb, Hays, Hervieux-Payette, Hubley, Johnson, Joyal, Kelleher, Kenny, Keon, Kinsella, Kirby, Kolber, Kroft, LaPierre, Lapointe, Lavigne, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Massicotte, Meighen, Merchant, Milne, Moore, Morin, Nolin, Oliver, Pearson, Pépin, Phalen, Plamondon, Poulin (Charette), Poy, Prud'homme, Ringuette, Rivest, Robertson, Robichaud, Roche, Rompkey, Smith, Sparrow, Spivak, St. Germain, Stollery, Stratton, Tkachuk, Trenholme Counsell, Watt, Wiebe
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Bacon, Baker, Banks, Beaudoin, Biron, Bryden, Buchanan, Callbeck, Carney, Carstairs, Chalifoux, Chaput, Christensen, Cochrane, Comeau, Cools, Corbin, Cordy, Day, Di Nino, Doody, Downe, Eyton, Fairbairn, Finnerty, Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Gustafson, Harb, Hays, Hervieux-Payette, Hubley, *Jaffer, Johnson, Joyal, Kelleher, Kenny, Keon, Kinsella, Kirby, Kolber, Kroft, LaPierre, Lapointe, Lavigne, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Massicotte, Meighen, Merchant, Milne, Moore, Morin, Nolin, Oliver, Pearson, Pépin, Phalen, Plamondon, Poulin (Charette), Poy, Prud'homme, Ringuette, Rivest, Robertson, Robichaud, Roche, Rompkey, Smith, Sparrow, Spivak, St. Germain, Stollery, Stratton, Tkachuk, Trenholme Counsell, Watt, Wiebe
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Presentation of Reports from Standing or Special Committees
The Honourable Senator Losier-Cool, Chair of the Standing Senate Committee on Official Languages, presented its Fifth Report (Bill S-11, An Act to amend the Official Languages Act (promotion of English and French)) without amendment.
The Honourable Senator Losier-Cool moved, seconded by the Honourable Senator Gauthier, that the Bill 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.
The Honourable Senator Maheu, Chair of the Standing Senate Committee on Human Rights tabled its Seventh Report (fact-finding mission).—Sessional Paper No. 2/37-782S.
The Honourable Senator Maheu, moved, seconded by the Honourable Senator Bacon, 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 Maheu, Chair of the Standing Senate Committee on Human Rights tabled its Eighth Report (Interim) entitled: A Hard Bed to Lie in: Matrimonial Real Property on Reserve.—Sessional Paper No. 2/37- 783S.
The Honourable Senator Maheu, moved, seconded by the Honourable Senator Bacon, 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 Kroft, Chair of the Standing Senate Committee on Banking, Trade and Commerce, tabled its Fifteenth Report entitled: Debtors and Creditors Sharing the Burden: A Review of the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act.—Sessional Paper No. 2/37-784S.
The Honourable Senator Kroft, moved, seconded by the Honourable Senator Moore, 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 Meighen, Member of the Standing Senate Committee on National Security and Defence, tabled its Eighteenth Report (study on veterans services and benefits). —Sessional Paper No. 2/37-785S.
The Honourable Senator Meighen, moved, seconded by the Honourable Senator Atkins, 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.
Notices of Motions
With leave of the Senate,
The Honourable Senator Oliver moved, seconded by the Honourable Senator Di Nino:
That the Standing Senate Committee on Agriculture and Forestry have power to sit at 5:30 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.
Presentation of Petitions
The Honourable Senator Gauthier presented petitions:
Of Residents of the Provinces of Ontario and Quebec with respect to declaring Ottawa officially bilingual.
SPEAKER'S RULING
In accordance with Rule 43, Senator Kinsella gave written and oral notice of a question of privilege that was subsequently considered yesterday at the conclusion of Orders of the Day. The question of privilege being raised by Senator Kinsella challenges the meeting of the Standing Committee on Rules, Procedures and the Rights of Parliament held last Friday, October 31. During the course of that meeting, the committee completed clause-by-clause consideration of Bill C-34, an Act establishing separate ethics officers for the Senate and the House of Commons. Earlier today, the committee presented its report on the bill without amendment. All of these actions, according to Senator Kinsella, constitute a contempt of Parliament.
In the view of the Deputy Leader of the Opposition, the contempt arises from the fact that the conduct of the committee was already under review through a point of order that was awaiting a Speaker's decision. ``Holding a meeting while the validity of a previous meeting has been taken under advisement by the Speaker carried with it'' as the Senator explained it, ``the clear implication that the ruling of the Speaker and, thus, of the chamber is irrelevant.'' The meeting of the committee last Friday, according to Senator Kinsella, was an improper action taken in contempt of the chamber itself.
Senator Robichaud, the Deputy Leader of the Government, then spoke to contest the merits of the question of privilege. In his estimation, no prima facie case for a question of privilege has been established. The actions taken by the Rules Committee last week were, according to the Senator, the result of decisions that had been made by its steering committee with respect to the consideration and disposition of Bill C-34. In the Deputy Leader's view, there was no motion or order of the Senate to prohibit the committee from meeting and no Senator was prevented from participating in the committee's deliberations at meetings that were properly called following the required notice.
In supporting the position of the Senator Kinsella, Senator Lynch-Staunton requested that due consideration be given to the long-standing customs and traditions of the Senate, not just to its written rules. In fact, as the Leader of the Opposition explained, this is the basis of the question of privilege. Alluding to the point of order that had been raised last week, Senator Lynch-Staunton maintained that the rights of certain Senators sustained by custom and tradition have been violated. This breach of their rights was now compounded by the committee's actions to meet last Friday and to adopt a report on Bill C-34.
Several other Senators participated in the debate on the question of privilege. Senator Milne, the Chair of the Rules Committee, disputed the notion that the committee was effectively immobilized by virtue of a pending ruling from the Speaker. Senator Andreychuk, on the other hand, suggested that the point of order raised with respect to the committee's meeting last Thursday also had inferential implications that undermined the validity of what occurred last Friday. Senator Fraser defended the process that the Rules Committee followed in providing notice for the Friday meeting. The Senator also noted that, in comparison, to the complaint regarding the Thursday meeting, there were no scheduling conflicts affecting the ability of any Senator to attend. For Senator Stratton, the fundamental question is one of cooperation or rather the lack of it. Next, Senator Rompkey asked me to take into account what occurred in 1991 when the Rules Committee met to adopt important amendments to the Rules of the Senate despite a deliberate boycott by the Liberal Opposition.
Finally, Senator Kinsella made another intervention to close the debate on the question of privilege. He reiterated the point that, in his view, there is a tradition suspending any activity that is the object of a ruling by the Speaker until the ruling is made. Based on this understanding, the Rules Committee's meeting last Friday and the presentation of its report on Bill C-34 violated this tradition and constituted a breach of privilege. That the ruling made earlier today did not sustain the point of order, according to Senator Kinsella, did not materially affect this basic proposition. The meeting of the Rules Committee last Friday, based on this perspective, is invalid and the report adopted by the committee is equally invalid.
Let me begin by thanking all Honourable Senators for their participation in the debate on the question of privilege. It is always a challenge for the Speaker to come to terms with these complex procedural issues. As Speaker, I am duty bound to be concerned with my obligation to balance as best I can the opposing principles that are at the core of our parliamentary system — to permit the transaction of business in a timely manner while at the same time preserving the right of opposing factions to be properly heard. In fulfilling this responsibility, I am conscious of the need to take into account the traditions and customs of the Senate, but I am equally obliged to abide by the Rules of the Senate whenever they provide clear direction.
Rule 43 provides some guidance on the procedures to be followed in raising a question of privilege for the purpose of obtaining a ruling from the Speaker on its prima facie merits. The notice requirements have been met and the arguments for and against the question of privilege have been made. The question of privilege was raised at the first opportunity and it involves a matter within the competence of the Senate to correct. What remains to be determined, however, is whether the matter of the question of privilege is a ``grave and serious breach.''
Senator Kinsella has argued that the question of privilege he alleges in this case is in fact a contempt of Parliament. According to Marleau and Montpetit at page 52, a contempt of Parliament refers to ``any conduct which offends the authority or dignity of the House, even though no breach of any specific privilege may have been committed.'' The text continues and states that ``Contempt may be an act or an omission; it does not have to actually obstruct or impede the House or Member, it merely has to have the tendency to produce such results.'' Erskine May points out that it is not really possible to list every conceivable contempt though it generally relates to misconduct of some kind that impedes either House of Parliament in the performance of its functions.
In this case, the contempt of Parliament that allegedly infringed the rights of some Senators relates to the decision of the Rules Committee to meet last Friday despite the fact that questions about the committee meeting on Thursday, October 30 were the object of a point of order awaiting a ruling from the Speaker. It is being asserted that because of this impending ruling, the committee was not entitled to meet and to pursue its business until such time as the ruling was made.
Although I have been asked not to neglect the traditions and customs of the Senate, I am hard pressed to understand how they relate to this case in the way that has been suggested. It is true that an item on the Order Paper is normally suspended once a point of order has been raised concerning a procedural question requiring a ruling from the Speaker. This is because it is usually not possible to pursue the item within the Chamber while its procedural probity is in question. There are numerous examples where this has occurred. It is not invariable however. Debate on two Royal Assent bills last year, for example, was not suspended following a point of order on the possible need to seek royal consent from the Crown.
In dealing with committees, we are confronted with something that is quite different than an item of Senate business on the Order Paper. The workings of a committee are not the same as items on the Order Paper. By tradition, custom and practice, Senate committees are generally autonomous in the way they conduct their business. This is the case despite the fact that committees receive their authority from the Senate. Each standing committee has a mandate under the Rules of the Senate and receives from time to time orders of reference to undertake certain specific work. Committees expect to conduct their affairs without undue interference from the Senate itself. Arrangements are often made between members of the Government and the Opposition to guide the operations of committees. As has been discussed, time slots are assigned to committees based on an understanding reached between the leadership of the parties, not by order of the Senate. This is done, in part, to better accommodate the needs of Senators who are often members of several committees. Each committee elects a Chair and a Deputy Chair to regulate the proceedings of committee meetings. Most committees also establish steering committees to set the agenda and schedule of their meetings. All of this is done without reference to the Chamber and even less to the Speaker.
In my ruling last Monday, I referred to a passage from Beauchesne 6th ed. at citation 760(3) which explained that the Speaker of the other place has declined many times to exercise procedural control over committees. I stated at that time that this proposition is no less true in the Senate; it is one of our customs and practices. Now, however, it would seem that the question of privilege is expecting me to do the reverse and to go against this practice.
The point of order that was raised last Thursday addressed an objection to the arrangements that had been made to a meeting of the Rules Committee that morning. As I understood it, neither the committee's mandate nor its specific order of reference was in question. Though I was fully prepared to make my ruling at the time, circumstances intervened to prevent me from doing so. Nonetheless, there was nothing in the point of order to indicate that the committee was not competent to carry on its work. The objection to the method followed by the committee with respect to one meeting did not put into question the entire operations of the committee or its ability to call more meetings. To suggest otherwise would seriously undermine the ability of committees to function and would even jeopardize the work of the Senate itself. If I were to accept the underlying proposition of the question of privilege, any point of order could halt the operations of any Senate committee at any time. I do not believe that this is right. This is not correct procedurally and is contrary to the Senate's traditions.
As I tried to indicate in my ruling on the point of order, I appreciate the sense of grievance that some Senators of the Opposition as well as some Senators from the Government side have expressed in respect to the pace that is being followed in the deliberations on Bill C-34. Some Senators are convinced that there is need for more time to study this complex question. The Government, on the other hand, feels that the work already done by the Rules Committee should be sufficient to enable it to review the bill within a limited time. This is not a procedural issue, but a political one. With respect to this point, I appreciate the analogy that was made by Senator Lynch-Staunton regarding the decision of the Supreme Court and the matter of a unilateral decision to patriate the constitution: legally it was possible, but it might not be prudent or right. As Speaker, however, I have no role in resolving these different points of view because they are political and not procedural.
Based on the arguments that have made, it is my ruling that there is no prima facie question of privilege. No compelling case has been made that the Rules Committee committed a contempt of Parliament in meeting last Friday and adopting its report on Bill C-34.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Carstairs, P.C., seconded by the Honourable Senator Robichaud, P.C.:
That, with respect to the House of Commons Message to the Senate dated September 29, 2003 regarding Bill C-10B:
(i) the Senate do not insist on its amendment numbered 2;
(ii) the Senate do not insist on its modified version of amendment numbered 3 to which the House of Commons disagreed;
(iii) the Senate do not insist on its modified version of amendment numbered 4, but it do concur in the amendment made by the House of Commons to amendment numbered 4; and
That a Message be sent to the House of Commons to acquaint that House accordingly,
And on the motion of the Honourable Senator Watt, seconded by the Honourable Senator Adams, that the motion, together with the message from the House of Commons dated September 29, 2003, regarding Bill C-10B, An Act to amend the Criminal Code (cruelty to animals), be referred to the Standing Senate Committee on Legal and Constitutional Affairs for consideration and report.
After debate,
The Honourable Senator Cools 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 on division.
Resuming 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.
After debate,
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 a Message be sent to the House of Commons to acquaint that House that the Senate have passed this Bill, without amendment.
Third reading of Bill C-34, An Act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence.
The Honourable Senator Carstairs, P.C., moved, seconded by the Honourable Senator Robichaud, P.C., that the Bill be read the third time.
After debate,
The Honourable Senator Moore for the Honourable Senator Furey moved, seconded by the Honourable Senator Kroft, 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 Smith, P.C., seconded by the Honourable Senator Léger, for the second reading of Bill C-49, An Act respecting the effective date of the representation order of 2003.
After debate,
The Honourable Senator Nolin moved, seconded by the Honourable Senator LeBreton, 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 Day, seconded by the Honourable Senator Léger, for the second reading of Bill C-55, An Act for granting to Her Majesty certain sums of money for the public service of Canada for the financial year ending March 31, 2004.
After debate,
The question being put on the motion, it was adopted.
The Bill was then read the second time.
The Honourable Senator Day moved, seconded by the Honourable Senator Cordy, that the Bill 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.
Resuming debate on the motion of the Honourable Senator Carstairs, P.C., seconded by the Honourable Senator Robichaud, P.C., for the second reading of Bill C-36, An Act to establish the Library and Archives of Canada, to amend the Copyright Act and to amend certain Acts in consequence.
After debate,
The question being put on the motion, it was adopted.
The Bill was then read the second time.
The Honourable Senator Carstairs, P.C., moved, seconded by the Honourable Senator Robichaud, P.C., 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.
Resuming debate on the motion of the Honourable Senator Morin, seconded by the Honourable Senator Gauthier, for the second reading of Bill C-13, An Act respecting assisted human reproduction and related research.
Debate.
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Pursuant to Rule 13(1), the Speaker left the Chair to resume the same at 8:00 p.m.
The sitting resumed.
MESSAGE FROM THE HOUSE OF COMMONS
A Message was brought from the House of Commons to return 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,
And to acquaint the Senate that the Commons have agreed to the amendments made by the Senate to this Bill, without amendment.
Bills
The Senate resumed debate on the motion of the Honourable Senator Morin, seconded by the Honourable Senator Gauthier, for the second reading of Bill C-13, An Act respecting assisted human reproduction and related research.
After debate,
The Honourable Senator Kinsella for the Honourable Senator Keon moved, seconded by the Honourable Senator Robertson, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Orders No. 8 and 9 were called and postponed until the next sitting.
Reports of Committees
Order No. 1 was called and postponed until the next sitting.
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Ordered, That the Standing Senate Committee on Fisheries and Oceans have power to sit while the Senate is sitting today, and that Rule 95(4) be suspended in relation thereto.
OTHER BUSINESS
Senate Public Bills
Resuming debate on the motion of the Honourable Senator Poy, seconded by the Honourable Senator Milne, for the third reading of Bill S-3, An Act to amend the National Anthem Act to include all Canadians.
After debate,
The Honourable Senator Cools moved, seconded by the Honourable Senator Prud'homme, P.C., that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was negatived on the following vote:
YEAS
The Honourable Senators
Atkins, Banks, Buchanan, Comeau, Cools, Gustafson, Kinsella, Lynch-Staunton, Nolin, Prud'homme, Robertson, Sparrow, Stratton, Tkachuk—14
NAYS
The Honourable Senators
Andreychuk, Biron, Callbeck, Carney, Carstairs, Chalifoux, Chaput, Christensen, Cordy, Downe, Fairbairn, Graham, Hubley, Johnson, Kroft, Lawson, Léger, Losier-Cool, Mahovlich, Milne, Pearson, Pépin, Poulin, Poy, Robichaud, Roche, Spivak, Trenholme Counsell, Wiebe—29
ABSTENTIONS
The Honourable Senators
Fraser—1
The Senate resumed debate on the motion of the Honourable Senator Poy, seconded by the Honourable Senator Milne, for the third reading of Bill S-3, An Act to amend the National Anthem Act to include all Canadians.
After debate,
The Honourable Senator Prud'homme, P.C., moved, seconded by the Honourable Senator Nolin, 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 Banks, seconded by the Honourable Senator Spivak, for the third reading of Bill S-10, An Act concerning personal watercraft in navigable waters.
After debate,
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.
Orders No. 3 to 8 were called and postponed until the next sitting.
Commons Public Bills
Third reading of Bill C-459, An Act to establish Holocaust Memorial Day, as amended.
The Honourable Senator Poulin moved, seconded by the Honourable Senator Mahovlich, that the Bill, as amended, be read the third time.
After debate,
The question being put on the motion, it was adopted.
The Bill, as amended, 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, with an amendment, to which they desire their concurrence.
Resuming debate on the motion of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator Mahovlich, for the second reading of Bill C-250, An Act to amend the Criminal Code (hate propaganda).
After debate,
The Honourable Senator Banks moved, seconded by the Honourable Senator Wiebe, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Private Bills
Third reading of Bill S-21, An Act to amalgamate the Canadian Association of Insurance and Financial Advisors and The Canadian Association of Financial Planners under the name The Financial Advisors Association of Canada.
The Honourable Senator Kroft moved, seconded by the Honourable Senator Moore, that the Bill be read the third time.
After debate,
The question being put on the motion, it was adopted.
The Bill was then read the third time and passed.
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.
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Ordered, That all remaining Orders be postponed until the next sitting.
ADJOURNMENT
The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Poulin:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 10:55 p.m. the Senate was continued until 1:30 p.m. tomorrow.)