Journals of the Senate
53 Elizabeth II, A.D. 2004, Canada
Journals of the Senate
1st Session, 38th Parliament
Issue 15
Wednesday, November 17, 2004
1:30 p.m.
The Honourable Daniel Hays, Speaker
The Members convened were:
The Honourable Senators
Adams, Angus, Atkins, Austin, Bacon, Banks, Bryden, Buchanan, Callbeck, Carney, Chaput, Cochrane, Comeau, Cook, Cools, Corbin, Day, Di Nino, Downe, Eyton, Fairbairn, Ferretti Barth, Fitzpatrick, Fraser, Furey, Gill, Grafstein, Gustafson, Harb, Hays, Hervieux-Payette, Hubley, Jaffer, Joyal, Kenny, Keon, Kinsella, LaPierre, Lapointe, Lavigne, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Massicotte, Mercer, Merchant, Milne, Moore, Morin, Munson, Murray, Oliver, Pearson, Pépin, Phalen, Plamondon, Poulin (Charette), Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, St. Germain, Sibbeston, Smith, Sparrow, Spivak, Stratton, Tkachuk, Trenholme Counsell, Watt
The Members in attendance to business were:
The Honourable Senators
Adams, *Andreychuk, Angus, Atkins, Austin, Bacon, Banks, Bryden, Buchanan, Callbeck, Carney, Chaput, Cochrane, Comeau, Cook, Cools, Corbin, *Cordy, Day, Di Nino, Downe, Eyton, Fairbairn, Ferretti Barth, Fitzpatrick, Fraser, Furey, Gill, Grafstein, Gustafson, Harb, Hays, Hervieux-Payette, Hubley, Jaffer, Joyal, Kenny, Keon, Kinsella, LaPierre, Lapointe, Lavigne, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Massicotte, Mercer, Merchant, Milne, Moore, Morin, Munson, Murray, *Nolin, Oliver, Pearson, Pépin, Phalen, Plamondon, Poulin (Charette), Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, St. Germain, Sibbeston, Smith, Sparrow, Spivak, *Stollery, Stratton, Tkachuk, Trenholme Counsell, Watt
PRAYERS
SENATORS' STATEMENTS
Tributes
Tribute was paid to the Honourable Richard Kroft, who resigned from the Senate on September 24, 2004.
Senators' Statements
Some honourable senators made statements.
DAILY ROUTINE OF BUSINESS
Presentation of Reports from Standing or Special Committees
The Honourable Senator Furey presented the following:
Wednesday, November 17, 2004
The Standing Committee on Internal Economy, Budgets and Administration has the honour to present its
FIRST REPORT
Your Committee recommends that the following funds be released for fiscal year 2004-2005.
Rules, Procedures and the Rights of Parliament (Legislation)
Professional and Other Services $ 9,000 Transportation and Communications 500 Other Expenditures — Total $ 9,500
Scrutiny of Regulations (Joint Committee)
Professional and Other Services $ 2,340 Transportation and Communications 1,650 Other Expenditures 2,250 Total $ 6,240
Respectfully submitted,
GEORGE FUREY
Chair
The Honourable Senator Furey 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.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Milne, seconded by the Honourable Senator Losier- Cool, for the second reading of Bill S-18, An Act to amend the Statistics Act.
After debate,
The Honourable Senator Lynch-Staunton 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.
Resuming debate on the motion of the Honourable Senator Harb, seconded by the Honourable Senator Adams, for the second reading of Bill S-17, An Act to implement an agreement, conventions and protocols concluded between Canada and Gabon, Ireland, Armenia, Oman and Azerbaijan for the avoidance of double taxation and the prevention of fiscal evasion.
After debate,
The question being put on the motion, it was adopted.
The bill was then read the second time.
The Honourable Senator Harb moved, seconded by the Honourable Senator Lapointe, that the bill be referred to the Standing Senate Committee on Banking, Trade and Commerce.
The question being put on the motion, it was adopted.
OTHER BUSINESS
Senate Public Bills
The Order was called to resume debate on the motion of the Honourable Senator Oliver, seconded by the Honourable Senator Comeau, for the second reading of Bill S-13, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate).
SPEAKER'S RULING
On Thursday, November 4, Senator Murray raised a point of order during second reading debate on Senator Oliver's bill, S-13, which seeks to introduce an election process for the offices of the Senate Speaker and Deputy Speaker as well as provide the Chair with a casting vote in instances where there is a tie. Without being definitive about his position, Senator Murray asked for a ruling to clarify whether royal consent was required for this bill.
Following a request from Senator Kinsella, the Leader of the Opposition, to provide some explanation to support the point of order, Senator Murray then cited section 34 of the Constitution Act, 1867 which states that the Governor General may from time to time, by instrument under the Great Seal of Canada, appoint a Senator to be Speaker. In Senator Murray's view, the election of the Speaker would remove a prerogative now exercised by the Governor General and turn it over to the Senate. Senator Austin, the Leader of the Government, then intervened to support the request for a ruling. Senator Joyal spoke next to suggest that based on previous rulings of the Speaker when confronted with a point of order respecting the possible need for a royal consent to a bill, the point of order need not impede debate since the Chair is not required to provide a ruling until the vote for third reading. This position was subsequently supported by Senator Stratton, the Deputy Leader of the Opposition.
After some brief exchanges relating to the election of the Speaker in the House of Commons, Senator Cools also spoke about the recent rulings on royal consent in the Senate. Senator Cools explained that it has been the consistent position of the Speaker as expressed in several rulings that royal consent can be given at any time during the proceedings and that a bill is not rendered defective for want of royal consent at second reading nor does it impede debate on the bill. Senator Kinsella then cited some decisions from Rulings of Senate Speakers 1994-2004 that confirmed this assessment.
Once the arguments had been made, the Speaker pro tempore agreed to take the matter under advisement. Since then, I have had time to read the exchanges on this point of order, consult the relevant procedural authorities, and review the recent rulings that have been made in the Senate on royal consent. I am now prepared to give a ruling.
The issue of whether royal consent is required for this bill is not new. It has been raised in debate with respect to a prior version of this bill on September 30 and October 21, 2003. No ruling, however, was ever actually sought or made at that time.
Royal consent is a feature that has been incorporated into our parliamentary practices from Westminster. As is stated in Marleau and Montpetit, House of Commons Procedure and Practices, p. 643:
Royal Consent...is taken from British practices and is part of the unwritten rules and customs of the House of Commons of Canada. Any legislation that affects the prerogatives, hereditary revenues, property or interests of the Crown requires Royal Consent, that is, the consent of the Governor General in his or her capacity as representative of the Sovereign.
In the twenty-third edition of Erskine May's Parliamentary Practice the royal prerogative is described as being ``...powers exercisable by the Sovereign for the performance of constitutional duties...'' (p. 708). Many of these prerogatives, in turn, have been vested, as Dicey explained in his study on the Law of the Constitution, in the office of the Governor General.
Both the Canadian and British authorities explain the consequences of failure to signify royal consent for a bill requiring it in a similar way. Erskine May at p. 710 states:
If Queen's consent has not been obtained or is not signified, the question on the relevant stage of a bill for which consent is required cannot be proposed. Similarly, where a bill affecting the interests of the Crown has been allowed, through inadvertence, to be read the third time and passed without the Queen's consent being signified, the proceedings have been declared null and void.
Erskine May goes on to explain that the Queen's consent involves the willingness of the Crown to place its prerogatives or interests at the disposal of Parliament for the purposes of the bill. There is an element to this procedure that is very much pro forma. In the United Kingdom, at least, it would appear that the government will invariably provide the consent even to bills of which it disapproves. As Erskine May explains:
The understanding is that the grant of consent does not imply approval by the Crown or its advisers, but only that the Crown does not intend that, for lack of its consent, Parliament should be debarred from debating its provisions.
As was noted, one objective of Senator Oliver's bill is to amend section 34 of the Constitution Act, 1867 by providing for the election of the Senate Speaker by secret ballot. This would effectively extinguish the authority of the Governor General to appoint the Speaker. Such an action clearly affects the prerogative power exercised by the Governor General. Accordingly, it seems to me appropriate that royal consent be obtained for this bill.
A review of Senate practice as decided in recent rulings by both my predecessor, the late Senator Molgat, and myself, clearly show that the requirement for royal consent need not be signified in both chambers. In fact, in most precedents, consent was signified in the other place only. There are a few notable exceptions to this, one being in 1951, and two others of more recent date. As Honourable Senators will recall, the Senate was advised of royal consent to Bill C-20, the Clarity Act, in the second session of the thirty-sixth Parliament and Bill S-34, the Royal Assent Act, in the first session of the thirty-seventh Parliament. Further, the Senate rulings by the chair show that the requirement for royal consent is not an impediment to debate since it need only be given before final passage of the bill. There is no reason for me to dispute either of these assessments.
To clarify the point brought up by the Honourable Senator Murray, royal consent will indeed be necessary. It will not, however, prevent the debate on second reading from continuing.
The Senate resumed debate on the motion of the Honourable Senator Oliver, seconded by the Honourable Senator Comeau, for the second reading of Bill S-13, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate).
After debate,
The question being put on the motion, it was adopted.
The bill was then read the second time.
The Honourable Senator Oliver moved, seconded by the Honourable Senator Cochrane, that the bill be referred to the Standing Senate Committee on Legal and Constitutional Affairs.
The question being put on the motion, it was adopted.
Orders No. 2 to 8 were called and postponed until the next sitting.
Second reading of Bill S-19, An Act to amend the Criminal Code (criminal interest rate).
The Honourable Senator Plamondon moved, seconded by the Honourable Senator Ringuette, that the bill be read the second time.
After debate,
The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Losier-Cool, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Reports of Committees
Consideration of the second report of the Standing Senate Committee on Energy, the Environment and Natural Resources (budget—study on emerging issues related to its mandate—power to hire staff) presented in the Senate on November 4, 2004.
The Honourable Senator Banks moved, seconded by the Honourable Senator Moore, that the report be adopted.
The question being put on the motion, it was adopted.
Other
Orders No. 4 and 1 (inquiries) were called and postponed until the next sitting.
INQUIRIES
With leave of the Senate,
The Honourable Senator Banks called the attention of the Senate to the contributions to the Senate of the Honourable Richard Kroft, who resigned on September 24, 2004.
Debate concluded.
At 4 p.m., pursuant to the order adopted by the Senate on November 2, 2004, the Senate adjourned until 1:30 p.m. tomorrow.
Changes in Membership of Committees Pursuant to Rule 85(4)
Standing Senate Committee on Aboriginal Peoples
The names of the Honourable Senators Hubley and Banks substituted for those of the Honourable Senators Christensen and Mercer (November 16).
Standing Senate Committee on Agriculture and Forestry
The name of the Honourable Senator Kinsella substituted for that of the Honourable Senator Kelleher (November 16).
The name of the Honourable Senator Kelleher substituted for that of the Honourable Senator Kinsella (November 17).