Journals of the Senate
53 Elizabeth II, A.D. 2004, Canada
Journals of the Senate
3rd Session, 37th Parliament
Issue 34
Wednesday, April 28, 2004
1:30 p.m.
The Honourable Lucie Pépin, Speaker pro tempore
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Austin, Bacon, Banks, Biron, Bryden, Callbeck, Carstairs, Chaput, Christensen, Cochrane, Comeau, Cook, Cools, Corbin, Day, Di Nino, Doody, Downe, Eyton, Fairbairn, Ferretti Barth, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Graham, Gustafson, Harb, Hervieux-Payette, Hubley, Jaffer, Johnson, Joyal, Kelleher, Kenny, Kirby, Kroft, Lapointe, Lavigne, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Massicotte, Meighen, Mercer, Merchant, Moore, Morin, Munson, Murray, Nolin, Oliver, Pearson, Pépin, Phalen, Plamondon, Poulin (Charette), Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, St. Germain, Sibbeston, Smith, Spivak, Stollery, Stratton, Tkachuk, Watt
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Austin, Bacon, Banks, Biron, Bryden, Callbeck, Carstairs, Chaput, Christensen, Cochrane, Comeau, Cook, Cools, Corbin, Day, Di Nino, Doody, Downe, Eyton, Fairbairn, Ferretti Barth, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, *Grafstein, Graham, Gustafson, Harb, *Hays, Hervieux-Payette, Hubley, Jaffer, Johnson, Joyal, Kelleher, Kenny, Kirby, Kroft, Lapointe, Lavigne, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Massicotte, Meighen, Mercer, Merchant, Moore, Morin, Munson, Murray, Nolin, Oliver, Pearson, Pépin, Phalen, Plamondon, Poulin (Charette), Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, St. Germain, Sibbeston, Smith, Spivak, Stollery, Stratton, Tkachuk, *Trenholme Counsell, Watt
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Presentation of Petitions
The Honourable Senator Mahovlich presented petitions:
Of Residents of the Province of Ontario with respect to declaring Ottawa officially bilingual.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator De Bané, P.C., seconded by the Honourable Senator Gill, for the third reading of Bill C-21, An Act to amend the Customs Tariff.
After debate,
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, without amendment.
Resuming debate on the motion of the Honourable Senator Day, seconded by the Honourable Senator Léger, for the third reading of Bill C-7, An Act to amend certain Acts of Canada, and to enact measures for implementing the Biological and Toxin Weapons Convention, in order to enhance public safety,
And on the motion in amendment of the Honourable Senator Nolin, seconded by the Honourable Senator Lynch- Staunton, that the Bill be not now read a third time but that it be amended, on page 103, by adding after line 26 the following:
"Review and Report
111.2 (1) Within three years after this Act receives royal assent, a comprehensive review of the provisions and operation of this Act shall be undertaken by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.
(2) The committee referred to in subsection (1) shall, within a year after a review is undertaken pursuant to that subsection or within such further time as may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including a statement of any changes that the committee recommends.''.
Debate.
DEFERRED VOTE
At 3:00 p.m., pursuant to the order adopted April 27, 2004, the Senate proceeded to the taking of the deferred standing vote on the motion in amendment of the Honourable Senator St. Germain, P.C to the motion of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator LaPierre, for the third reading of Bill C-250, An Act to amend the Criminal Code (hate propaganda),
The question was put on the motion in amendment of the Honourable Senator St. Germain, P.C., seconded by the Honourable Senator Stratton, that the bill be not now read a third time but that it be amended, on page 1, in clause 1, by replacing lines 8 and 9 with the following:
"by colour, race, religion, ethnic origin or sex.''.
The motion in amendment was negatived on the following vote:
YEAS
The Honourable Senators
Angus, Cochrane, Cools, Forrestall, Kelleher, Lawson, Lynch-Staunton, Meighen, Merchant, Plamondon, St. Germain, Sibbeston, Stratton, Tkachuk—14
NAYS
The Honourable Senators
Adams, Atkins, Austin, Bacon, Banks, Biron, Bryden, Callbeck, Carstairs, Chaput, Christensen, Cook, Corbin, Day, Doody, Downe, Fairbairn, Ferretti Barth, Finnerty, Fitzpatrick, Fraser, Furey, Gauthier, Gill, Graham, Harb, Hervieux-Payette, Hubley, Jaffer, Joyal, Kenny, Kirby, Kroft, Lapointe, Lavigne, Léger, Losier-Cool, Maheu, Mahovlich, Massicotte, Mercer, Morin, Munson, Murray, Pearson, Phalen, Ringuette, Robichaud, Rompkey, Smith, Spivak, Stollery, Watt—53
ABSTENTIONS
The Honourable Senators
Andreychuk, Johnson, LeBreton, Nolin, Prud'homme, Rivest—6
The question was then put on the motion of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator LaPierre, for the third reading of Bill C-250, An Act to amend the Criminal Code (hate propaganda).
The motion was adopted on the following vote:
YEAS
The Honourable Senators
Adams, Andreychuk, Atkins, Austin, Bacon, Banks, Biron, Bryden, Callbeck, Carstairs, Chaput, Christensen, Cook, Corbin, Day, Doody, Downe, Fairbairn, Ferretti Barth, Finnerty, Fitzpatrick, Fraser, Furey, Gauthier, Gill, Graham, Harb, Hervieux-Payette, Hubley, Jaffer, Johnson, Joyal, Kenny, Kirby, Kroft, Lapointe, Lavigne, LeBreton, Léger, Losier-Cool, Maheu, Mahovlich, Massicotte, Mercer, Morin, Munson, Murray, Nolin, Pearson, Phalen, Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, Smith, Spivak, Stollery, Watt—59
NAYS
The Honourable Senators
Angus, Cochrane, Cools, Forrestall, Lawson, Merchant, Plamondon, St. Germain, Sibbeston, Stratton, Tkachuk—11
ABSTENTIONS
The Honourable Senators
Kelleher, Lynch-Staunton, Meighen—3
Accordingly, the Bill was read the third time and passed.
Ordered, That a Message be sent to the House of Commons to acquaint that House that the Senate has passed this Bill, without amendment.
SPEAKER'S RULING
At 8:00 p.m., yesterday evening, Senator Cools was recognized to speak on a question of privilege. The Senator had given proper written and oral notice earlier in the day as required by rule 43. The object of the question of privilege involved several claims as to the validity of proceedings of last Thursday, April 22 on Bill C-250, An Act to amend the Criminal Code (hate propaganda). These proceedings, according to Senator Cools, were irregular and out of order. As such, they breached the privileges of the Senator as well as other Senators who were thus deprived of their right to debate. It is the Senator's position that the Rules of the Senate do not provide any opportunity for any closure or guillotine motion to be moved by a private member or on a private member's bill. In addition, Senator Cools claimed that as Speaker, I had acted improperly to curtail debate on Bill C-250 last Thursday when I recognized one Senator over several others who had sought to be recognized.
Other Senators expressed themselves with respect to the question of privilege. Senator Lynch-Staunton, the Leader of the Opposition, also challenged the nature of the proceedings of last Thursday. Although he accepted that Senator Murray's motion was in order, Senator Lynch-Staunton decried the fact that the Senate had been deprived of an opportunity to debate that motion through the use of the previous question. As he explained it, the result was that closure was imposed on Bill C-250 without the chance for further debate. Senator St. Germain and Senator Di Nino concurred with the views of Senator Lynch-Staunton and also questioned the right of a member to move closure because of the possible impact it could have on the rights of Senators to participate in debate.
Senator Joyal then intervened to challenge some of the arguments that had been presented. The Senator disputed the assertion that only a Minister could ever propose closure or a guillotine. He also cited rule 48 to explain how the previous question is permissible under current Senate practices. Shortly thereafter, Senator Austin, the Leader of the Government, spoke to the question of privilege stating that the government had played no role in using the rules in the deliberations on Bill C-250. With respect to the possible use of closure on a private member's bill, the Senator suggested that the matter was a serious one that deserved the attention of the Committee on Rules, Procedures and the Rights of Parliament. On the question as to which Senator should have been recognized in debate last Thursday, Senator Austin cited rule 33 which provides a mechanism to resolve such a dispute when two or more Senators are seeking to participate in debate at the same time.
Senator Cools then replied to some of these arguments contesting her position on the question of privilege. The Senator rejected Senator Austin's suggestion about the use of rule 33 given what she described as the confused circumstances of last Thursday's proceedings. Senator Cools also dismissed the proposal to have the Rules Committee review the use of closure or the guillotine as it applies to private member's business since it would not be good enough to address the current problem facing the Senate. As to the position taken by Senator Joyal, Senator Cools contended that the fact that a practice is not forbidden in the Rules of the Senate does not mean that it is allowed in the context of the grand tradition of Parliament.
It was at this point that I agreed to take this question of privilege raised by Senator Cools under advisement.
I wish to thank honourable Senators for their participation in this question of privilege. As you can appreciate, this is a difficult matter for me to address since my actions as Speaker have been called into question. Nonetheless, I feel duty bound to deal with the issue of the question of privilege raised by Senator Cools. I believe that it is best to do this as expeditiously as possible. To delay a ruling would not serve the interests of the Senate. In the end, however, it will be up to the Senate to determine if my ruling, like my actions in the Chair, meet the standards required of the position.
Senator Cools has rightly reminded the Senate that the role of the Speaker in considering a question of privilege is limited to assessing whether there is a prima facie case, that is, whether the subject of the alleged breach is sufficiently serious to warrant further consideration by the Senate. My ruling is not intended to determine whether a breach of privilege has in fact occurred, but to assess the nature of the alleged breach. In order to do this properly, I will confine myself to the facts and events of last Thursday and determine whether they were within the rules and practices of the Senate. This would allow me to determine whether a "grave and serious breach'' has occurred as required by rule 43(1). If the events of Thursday were outside our rules and practices, then it would seem to me that a prima facie question of privilege will have been established and Senator Cools would then have the right to move a motion to seek corrective action.
Let me begin then with an assessment of the motion of Senator Murray. The intent of the motion was very clear. By its terms, debate on Bill C-250 would be limited and all questions to dispose of the bill would be put at a set time. The motion does not pretend to use rule 39 which allows the government to seek time allocation with respect to an item of government business. Instead, it is a substantive motion, requiring one day's notice under rule 58(1)(i), creating a special order to deal with the disposition of a particular bill. Is such a motion in violation of the rules and practices of the Senate? While there is no doubt that it is unusual, I do not think so. Since the Senate has complete control over the disposition of the motion, it maintained its fundamental privilege to determine its own proceedings. It did not happen as a result of a decision by the Chair. Therefore, there is no prima facie question of privilege based on this motion.
A question has been raised with respect to the fact that Senator Joyal was recognized after Senator Murray had moved his motion. It has been argued that, as Speaker, my actions interfered with the rights of other Senators who had wanted to speak in debate. This allegation is based, at least in part, on the fact that Senator Joyal moved the previous question. While it is true that other Senators did seek to be recognized, Senator Joyal was among them and so I called on him. This was not unwarranted and it is within the rules and practices of the Senate. Senator Joyal was, in fact, the seconder of Senator Murray's motion. Citation 462 of the sixth edition of Beauchesne's at page 137 points out that "the mover and the seconder are recognized first''. While it is not usually the case in the Senate for seconders to seek recognition immediately following the mover of a motion, there is no binding prohibition to prevent it. I saw Senator Joyal rising and I called on him to speak in the debate. Did my action constitute a prima facie breach of privilege? I do not think so.
Senator Austin suggested during his intervention, that in any dispute about who should be recognized for the purposes of debate, it is in order to invoke rule 33 to request that a particular Senator "be now heard'' or "do now speak''. Such a question is put without debate or amendment and it allows the Senate itself, not the Chair, to decide who will speak next in debate. This did not happen last Thursday. Consequently, Senator Joyal properly had the floor. He promptly moved the previous question which is allowed under rule 48. This rule stipulates that when a question is under debate, it is permissible among other things to move the previous question. There is no restriction on the application of the previous question so long as there is no amendment outstanding to the original question. It can be applied to bills or motions whether sponsored by the government or a senator. Furthermore, rule 48(2) explains that the previous question is debatable and that it has the effect of preventing the introduction of an amendment to the original motion.
If carried, the previous question will immediately terminate debate on the original motion. If defeated, however, the original motion is dropped from the Orders of the Day. The outcome is a decision of the Senate. It is not imposed by the Senator who moved the previous question. No Senator was improperly deprived of a right to speak in debate, either on the previous question or the motion of Senator Murray since it is perfectly in order to address the motion of Senator Murray while speaking on the previous question moved in relation to it. As I mentioned, the only limitation was that it would not have been possible to move an amendment to Senator Murray's motion while the previous question was before the Senate.
This is where there seems to have been some confusion about the operation of the previous question. In reviewing the Debates of the Senate of April 22, various exchanges among the Senators leave the impression that some Senators thought that the previous question had completely deprived them of their right to speak in debate. This is my reading of the exchanges that are recorded between Senator Stratton and Senator Robichaud on page 894 before Senator Robichaud explained how the motion of the previous question actually operates on page 895. Shortly thereafter, Senator Stratton moved to adjourn the debate on the previous question. This motion was defeated on a recorded division and the sitting of the Senate was then suspended for approximately two hours. When the Senate resumed at 8:00 p.m., there was debate on the previous question by Senator Stratton. In the course of his brief remarks, he stated that "the previous question forces an immediate vote.'' He then moved a motion to adjourn the Senate which was defeated on another recorded division. What follows are several pages of debate on the merits of the previous question as a procedural tactic before the motion was put to the Senate as a question and the vote was deferred until Tuesday, yesterday, at 5:30 p.m..
Do the debates and proceedings of last Thursday afternoon and evening substantiate in any way the finding of a prima facie question of privilege? I do not think so. While there was some misunderstanding about the nature of the previous question, this confusion does not itself invalidate the use of that motion. As I have already mentioned, the Rules of the Senate specifically allow for it without regard to the nature of the motion to which it can be applied. More importantly, perhaps, the Rules do not restrict how soon it can be applied; it can be proposed at any time as long as there is no amendment outstanding to the motion. With respect to the opportunity to debate, the parliamentary authorities admit that the previous does not deprive members of the opportunity to debate. On the contrary, they often note how members who have already spoken to the main motion can speak again once the previous question is moved. That this did not happen in this case, because the previous question was moved so quickly, does not constitute a breach of our rules and is not a prima facie question of privilege.
Rule 43 (1) states that an alleged question of privilege must meet certain criteria if it is to be given priority of consideration over all other business before the Senate. Among them is one "to correct a grave and serious breach''. Based on my review and explanation of the events which occurred in the Senate last Thursday, I do not find that there is any prima facie evidence to support the allegation of a question of a privilege. Accordingly, it is my ruling that there is no prima facie question of privilege.
Bills
The Senate resumed debate on the motion of the Honourable Senator Day, seconded by the Honourable Senator Léger, for the third reading of Bill C-7, An Act to amend certain Acts of Canada, and to enact measures for implementing the Biological and Toxin Weapons Convention, in order to enhance public safety,
And on the motion in amendment of the Honourable Senator Nolin, seconded by the Honourable Senator Lynch- Staunton, that the Bill be not now read a third time but that it be amended, on page 103, by adding after line 26 the following:
"Review and Report
111.2 (1) Within three years after this Act receives royal assent, a comprehensive review of the provisions and operation of this Act shall be undertaken by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.
(2) The committee referred to in subsection (1) shall, within a year after a review is undertaken pursuant to that subsection or within such further time as may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including a statement of any changes that the committee recommends.''.
After debate,
The question was put on the motion in amendment.
Pursuant to Rule 67(2), a standing vote was deferred until 5:30 p.m. tomorrow, with the bells to sound at 5:15 p.m. for fifteen minutes.
OTHER BUSINESS
Senate Public Bills
Resuming debate on the motion of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator Gill, for the second reading of Bill S-9, An Act to honour Louis Riel and the Metis People.
After debate,
The Honourable Senator St. Germain, P.C, 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.
Orders No. 2 to 5 were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Nolin, seconded by the Honourable Senator Lynch- Staunton, for the second reading of Bill S-12, An Act to amend the Royal Canadian Mounted Police Act (modernization of employment and labour relations).
After debate,
The question being put on the motion, it was adopted.
The Bill was then read the second time.
The Honourable Senator Stratton moved, seconded by the Honourable Senator Lynch-Staunton, that the Bill be referred to the Standing Senate Committee on National Finance.
The question being put on the motion, it was adopted.
Commons Public Bills
Order No. 2 was called and postponed until the next sitting.
Reports of Committees
Orders No. 1 to 7 were called and postponed until the next sitting.
Other
Orders No. 67 (motion), 5, 11 (inquiries) 40, 59, 3, (motions), 1 (inquiry) and 28 (motion) were called and postponed until the next sitting.
Order No. 9 (motion) was called and pursuant to Rule 27(3) was dropped from the Order Paper.
Order No. 10 (inquiry) was called and postponed until the next sitting.
INQUIRIES
The Honourable Senator LeBreton called the attention of the Senate to the culture of corruption pervading the Liberal government currently headed by Prime Minister Paul Martin.
After debate,
The Honourable Senator LeBreton moved, seconded by the Honourable Senator Stratton, 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 Chaput moved, seconded by the Honourable Senator Plamondon:
That, notwithstanding the Order of the Senate adopted on February 19, 2004, the date for the final report by the Standing Senate Committee on Official Languages on its study of the operation of the Official Languages Act be extended from June 30, 2004, to March 31, 2005.
The question being put on the motion, it was adopted.
_____________________________________________________
At 4:00 p.m., pursuant to the Order adopted by the Senate on February 23, 2004, the Senate adjourned until 1:30 p.m. tomorrow.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Employment Insurance Monitoring and Assessment Report for the fiscal year ended March 31, 2003, pursuant to the Employment Insurance Act, S.C. 1996, c. 23, sbs. 3(3).—Sessional Paper No. 3/37- 176.