Journals of the Senate
54 Elizabeth II, A.D. 2005, Canada
Journals of the Senate
1st Session, 38th Parliament
Issue 42
Tuesday, March 8, 2005
2:00 p.m.
The Honourable Daniel Hays, Speaker
The Members convened were:
The Honourable Senators
Andreychuk, Austin, Bacon, Baker, Biron, Bryden, Callbeck, Carney, Carstairs, Chaput, Christensen, Cochrane, Comeau, Cook, Cools, Corbin, Day, De Bané, Di Nino, Doody, Downe, Fairbairn, Ferretti Barth, Finnerty, Fitzpatrick, Fraser, Furey, Grafstein, Gustafson, Harb, Hays, Hervieux-Payette, Hubley, Jaffer, Johnson, Joyal, Kelleher, Keon, Kinsella, Lapointe, Lavigne, Léger, Losier-Cool, Lynch-Staunton, Mahovlich, Massicotte, Mercer, Merchant, Moore, Murray, Oliver, Pearson, Pépin, Phalen, Plamondon, Poulin (Charette), Poy, Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, St. Germain, Sibbeston, Smith, Stollery, Stratton, Tkachuk, Trenholme Counsell, Watt
The Members in attendance to business were:
The Honourable Senators
*Adams, Andreychuk, *Angus, *Atkins, Austin, Bacon, Baker, *Banks, Biron, Bryden, *Buchanan, Callbeck, Carney, Carstairs, Chaput, Christensen, Cochrane, Comeau, Cook, Cools, Corbin, *Cordy, Day, De Bané, Di Nino, Doody, Downe, Fairbairn, Ferretti Barth, Finnerty, Fitzpatrick, *Forrestall, Fraser, Furey, Grafstein, Gustafson, Harb, Hays, Hervieux-Payette, Hubley, Jaffer, Johnson, Joyal, Kelleher, *Kenny, Keon, Kinsella, Lapointe, Lavigne, Léger, Losier-Cool, Lynch-Staunton, Mahovlich, Massicotte, *Meighen, Mercer, Merchant, *Milne, Moore, *Munson, Murray, *Nolin, Oliver, Pearson, Pépin, Phalen, Plamondon, Poulin (Charette), Poy, 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
Tabling of Documents
With leave of the Senate,
The Honourable Senator Hays tabled the following:
Report of the joint parliamentary delegation, led by the Speaker of the Senate, respecting its participation at the Thirteenth Canada-Mexico Inter-Parliamentary Meeting, held in Mexico City, Mexico, from January 24 to 27, 2005.—Sessional Paper No. 1/38-417S.
Presentation of Reports from Standing or Special Committees
The Honourable Senator Oliver, Chair of the Standing Senate Committee on National Finance, presented its third report (Bill C-24, An Act to amend the Federal-Provincial Fiscal Arrangements Act and to make consequential amendments to other Acts (fiscal equalization payments to the provinces and funding to the territories), without amendment).
The Honourable Senator Massicotte moved, seconded by the Honourable Senator Fraser, 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.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Third reading of Bill S-18, An Act to amend the Statistics Act.
The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Losier-Cool, that the bill be read the third time.
After debate,
The Honourable Senator Comeau moved, seconded by the Honourable Senator Andreychuk, 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 Carstairs, P.C., seconded by the Honourable Senator Fairbairn, P.C., for the second reading of Bill C-39, An Act to amend the Federal-Provincial Fiscal Arrangements Act and to enact An Act respecting the provision of funding for diagnostic and medical equipment.
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 Mahovlich, 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.
Order No. 3 was called and postponed until the next sitting.
The Order was called to resume debate on the motion of the Honourable Senator Banks, seconded by the Honourable Senator Ferretti Barth, for the third reading of Bill C-6, An Act to establish the Department of Public Safety and Emergency Preparedness and to amend or repeal certain Acts.
SPEAKER'S RULING
You will recall that on Wednesday February 23 when Senator Banks moved third reading on Bill C-6 which establishes the Department of Public Safety and Emergency Preparedness, Senator Cools raised a point of order. The purpose of the point of order, as Senator Cools explained, was to claim that Bill C-6 requires royal consent.
According to the Senator, there are two basic interrelated reasons why Bill C-6 requires royal consent. The first is that the bill deals with matters which involve the prerogative powers of the Crown. The numerous prerogatives that Senator Cools said are affected by this bill involve pardons, mercy and clemency. In support of her position, the Senator made reference to several authorities including specifically the Letters Patent of 1947 regarding the office of the Governor General of Canada, in particular Article XII and the authority to grant pardons. Associated to this, the Senator stated, is the fact that the bill "attempts to alter, jettison or abolish the position of Solicitor General''. If I understand the Senator's position correctly, such an action cannot be done without royal consent because the Solicitor General is a law officer of the Crown, and, as such, belongs to the office of the Queen or the Queen's representative, the Governor General.
At the outset of her presentation on the point of order, Senator Cools explained that she had waited deliberately until the Senate had come to the third reading stage of Bill C-6 in compliance with previous Speaker's rulings. These rulings acknowledge that, according to established practice, royal consent on a C-bill need not be signified until it reaches its final stage in the Senate if it has not been granted in the other place.
Following Senator Cool's initial intervention, three other Senators spoke to the point of order. Senator Rompkey, the Deputy Leader of the Government, argued that the point of order in not being raised promptly was now out of place as an objection. More to the point, Senator Rompkey asserted that Bill C-6 does not affect in any way the prerogative, hereditary revenues, personal property or interests of the Crown. As the Senator maintained, "This is a change in government departments which we have acknowledged from time to time on both sides of the House is the prerogative of the advisors of Her Majesty.''
For his part, Senator Kinsella, the Leader of the Opposition, supported the point of order because, in his view, Bill C-6 affects an office of the Crown. Consequently, in seeking to abolish the office of the Solicitor General, there is a clear need, in the Senator's opinion, to secure royal consent.
Senator Banks, the sponsor of the bill, then spoke to challenge the merits of the point of order. The Senator took note of the fact that the position of Solicitor General in Canada is not the same as in the United Kingdom. He also explained that Canada did not always have a Solicitor General. This being so, Senator Banks argued that "The connection between the majesty of the Crown and the office of the Solicitor General in Canada, which is vastly different from the office of the Solicitor General in the United Kingdom then or now, has not been made. There is no point of order.''
After Senator Cools made a final statement, I agreed to take the question of the possible requirement for royal consent under advisement. In keeping with established practice, I also informed the Senate that debate at third reading of Bill C-6 could continue.
I wish to express my appreciation to all Honourable Senators for their participation on this point of order. As Senator Cools stated, the question of royal consent has come up several times in recent years. In this particular case, there are two questions to be answered based on the arguments that were made: are the prerogative powers of the Queen or the Governor General being affected by this bill; and does the abolition of the Solicitor General as an officer of the Crown require royal consent.
In looking to answer these two questions, I will put aside the objection to the point of order that was made with respect to timeliness. While there was nothing to prevent anyone from raising a point of order about royal consent earlier, Senator Cools is right in noting that the need to secure royal consent for a C-bill that is deemed to require one, if it has not already been obtained in the other place, must be no later than when third reading of the bill is finally put to a vote here in the Senate.
As Speaker, my role is to rule on points of order, citing the relevant authorities or practice applicable to the case. Most points of order relate directly to the conduct of business in the Senate. Such is not the case in matters related to royal consent. To determine the merits of this point of order, I have been obliged to look into subject matter that is somewhat beyond the normal purview of the Speaker. To the extent that I have been required to do this, I hope to have the Senate's indulgence and understanding.
As I mentioned, the first question to be answered deals with the alleged effect Bill C-6 has on the prerogative powers of the Crown. Among the powers that were identified by Senator Cools are mercy, clemency and pardon. These powers date back in England to medieval times and to the extent they still exist in Canada, they are a part of our constitutional heritage. They are powers vested in the Crown that are exercisable by the Governor General upon the advice, depending on the nature of the offence, of either the Privy Council or at least one Minister according to Article XII of the Letters Patent of 1947. I note that no specific reference is made to the Solicitor General in Article XII.
Prerogative powers, despite their long history, need not be forever immutable. They can be abolished or limited by statute. Once these powers have been eliminated or curtailed by law, the powers of the Crown are appropriately restricted. When Parliament seeks to limit or abolish these powers, royal consent is required. Through the signification of this consent, the Crown acknowledges that its prerogative powers are being affected by proposed legislation and concedes to Parliament the authority to consider the matter.
I listened closely to the discussion on the point of order on February 23 and I read the Debates of the Senate afterwards to better understand the nature of the arguments that were made. I also looked into the substance of Bill C- 6, the purpose of which is to establish the Department of Public Safety and Emergency Preparedness. Despite the allegation that the prerogative powers are being affected, I have neither heard nor read anything that supports the claim. There is nothing in the bill to suggest that any of the prerogative powers themselves are in any way restricted or constrained, let alone abolished. There is nothing to lead me as Speaker to believe that royal consent is required due to any limitation on the prerogative powers of Article XII being imposed through Bill C-6.
It may be, however, that the claim regarding the prerogative powers is founded not so much on their direct restriction, but rather through the abolition of the position of the Solicitor General. This is the second question that I identified in the point of order.
The claim being made, as I understand it, is based on the assertion that the Solicitor General is an officer of the Crown. This view is founded largely on the history of the office in the United Kingdom. The position of Solicitor General has existed in England for centuries. In modern times, as was explained, the British Solicitor General functions as a sort of Deputy Attorney General. In the United Kingdom, the position is styled Her Majesty's Solicitor General for England and Wales. In former times, there were several Solicitors General of which some were actually listed as members of the royal household, particularly that of the Queen consort, a situation which is still true, as Senator Cools stated, for the holder of an equivalent position in the household of the Prince of Wales.
The history of the Solicitor General in Canada is very different. It is not equivalent in its history to the position in the United Kingdom. Contrary to what was claimed during the point of order, the Solicitor General is not a constitutional office; there is no mention made of a federal level Solicitor General in the Constitution Act of 1867. Indeed, according to the information that I have obtained, the office of the federal Solicitor General was first created by statute in 1887 though not proclaimed in force until 1892. It was not originally a cabinet level position and it was occasionally left vacant, sometimes for several years at a time. It was not until 1917 that the first Solicitor General was sworn to the Privy Council, and it was not until 1926 that this practice became consistent. For a two-year period in 1950, the duties and functions of the Solicitor General were transferred to the Minister of Justice and Attorney General. In 1966, the old Solicitor General Act was repealed and a new Act was adopted creating the Solicitor General of Canada as a ministerial office. Almost fifteen years ago, an attempt was made to restructure the portfolio of Solicitor General into a new Public Security function. None of these bills or Acts presented to Parliament, so far as I have been able to determine, obtained or required the signification of royal consent.
Furthermore, having been established by statute law, I see no reason why the abolition of the Solicitor General, or rather the transfer of the authority and responsibilities of the old position into the expanded position of the Minister of Public Safety and Emergency Preparedness, by new legislation would require royal consent. I have found no evidence to convince me that the objectives of Bill C-6 affect the prerogatives, interests or personal property of the Crown in any material way so as to require royal consent.
Accordingly, it is my ruling that the point of order is not well founded and that there is no requirement for royal consent with respect to Bill C-6. Debate at third reading may continue to its conclusion as there is no impediment to making a decision with respect to the third reading motion.
The Honourable Senator Cools moved, seconded by the Honourable Senator Gustafson, that the debate on the motion of the Honourable Senator Banks, seconded by the Honourable Senator Ferretti Barth, for the third reading of Bill C-6 be adjourned until the next sitting.
The question being put on the motion, it was adopted.
OTHER BUSINESS
Senate Public Bills
Orders No. 1 to 11 were called and postponed until the next sitting.
Private Bills
Orders No. 1 and 2 were called and postponed until the next sitting.
Reports of Committees
Orders No. 1 and 2 were called and postponed until the next sitting.
Consideration of the seventh report of the Standing Senate Committee on Social Affairs, Science and Technology (budget—study on mental health) presented in the Senate on February 24, 2005.
The Honourable Senator Keon moved, seconded by the Honourable Senator Lynch-Staunton, that the report be adopted.
The question being put on the motion, it was adopted.
Consideration of the seventh report of the Standing Senate Committee on National Security and Defence (budget—study on the necessity for a National Security policy) presented in the Senate on February 24, 2005.
The Honourable Senator Day, for the Honourable Senator Kenny, moved, seconded by the Honourable Senator Moore, that the report be adopted.
After debate,
The Honourable Senator Tkachuk moved, seconded by the Honourable Senator Keon, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Other
Orders No. 78, 69 (motions), 11, 2, 13 (inquiries), 58 (motion), 4 and 6 (inquiries) were called and postponed until the next sitting.
INQUIRIES
The Honourable Senator Kinsella called the attention of the Senate to the budget presented by the Minister of Finance in the House of Commons on February 23, 2005.
After debate,
The Honourable Senator Stratton, for the Honourable Senator Cochrane, moved, seconded by the Honourable Senator Gustafson, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Ordered, That Order No. 4 under ORDERS OF THE DAY, OTHER BUSINESS, Senate Public Bills be again called.
Resuming debate on the motion of the Honourable Senator Hervieux-Payette, P.C., seconded by the Honourable Senator Losier-Cool, for the second reading of Bill S-21, An Act to amend the criminal Code (protection of children).
After debate,
The Honourable Senator Stratton, for the Honourable Senator Cools, moved, seconded by the Honourable Senator Gustafson, 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):
Agreements for RCMP policing services made between Canada and the Yukon Territory, pursuant to the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, sbs. 20(5).—Sessional Paper No. 1/38-408.
Amendments to the Agreements for RCMP policing services made between Canada and the Province of British Columbia, pursuant to the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, sbs. 20(5).—Sessional Paper No. 1/38-409.
Amendments to the Agreements for RCMP policing services made between Canada and the Province of Prince Edward Island, pursuant to the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, sbs. 20(5).—Sessional Paper No. 1/38-410.
Amendments to the Agreements for RCMP policing services made between Canada and the Province of New Brunswick, pursuant to the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, sbs. 20(5).—Sessional Paper No. 1/38-411.
Agreements for RCMP policing services made between Canada and the Province of Nova Scotia, pursuant to the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, sbs. 20(5).—Sessional Paper No. 1/38-412.
Amendments to the Agreement for RCMP policing services made between Canada and the Province of Manitoba, pursuant to the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, sbs. 20(5).—Sessional Paper No. 1/38-413.
Amendments to the Agreements for RCMP policing services made between Canada and the Province of Saskatchewan, pursuant to the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, sbs. 20(5).—Sessional Paper No. 1/38-414.
Report of operations under the Export and Import Permits Act for the year 2003, pursuant to the Act, R.S.C. 1985, c. E-19, s. 27. —Sessional Paper No. 1/38-415.
Report of the Canadian Commercial Corporation, together with the Auditor General's Report, for the fiscal year ended March 31, 2002, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 150(1).—Sessional Paper No. 1/38-416.
ADJOURNMENT
The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Losier-Cool:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 4:48 p.m. the Senate was continued until 1:30 p.m. tomorrow.)
Changes in Membership of Committees Pursuant to Rule 85(4)
Standing Senate Committee on National Finance
The name of the Honourable Senator Massicotte substituted for that of the Honourable Senator Biron (March 7).