Journals of the Senate
54 Elizabeth II, A.D. 2005, Canada
Journals of the Senate
1st Session, 38th Parliament
Issue 70
Tuesday, June 14, 2005
2:00 p.m.
The Honourable Daniel Hays, Speaker
The Members convened were:
The Honourable Senators
Adams, Angus, Atkins, Austin, Bacon, Baker, Banks, Biron, Bryden, Buchanan, Carstairs, Chaput, Comeau, Cools, Corbin, Cowan, Dallaire, Day, De Bané, Di Nino, Doody, Eggleton, Fairbairn, Ferretti Barth, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, Grafstein, Gustafson, Harb, Hays, Jaffer, Johnson, Joyal, Kenny, Keon, Kinsella, Lapointe, Lavigne, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Massicotte, Meighen, Mercer, Milne, Mitchell, Munson, Murray, Nolin, Pépin, Peterson, Phalen, Plamondon, Poulin (Charette), Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, Sibbeston, Smith, Spivak, Stollery, Stratton, Tardif, Tkachuk, Watt
The Members in attendance to business were:
The Honourable Senators
Adams, *Andreychuk, Angus, Atkins, Austin, Bacon, Baker, Banks, Biron, Bryden, Buchanan, *Callbeck, Carstairs, Chaput, *Cochrane, Comeau, *Cook, Cools, Corbin, *Cordy, Cowan, Dallaire, Day, De Bané, Di Nino, Doody, Eggleton, Fairbairn, Ferretti Barth, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, *Gill, Grafstein, Gustafson, Harb, Hays, Jaffer, Johnson, Joyal, Kenny, Keon, Kinsella, *Kirby, Lapointe, Lavigne, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Massicotte, Meighen, Mercer, Milne, Mitchell, Munson, Murray, Nolin, *Oliver, *Pearson, Pépin, Peterson, Phalen, Plamondon, Poulin (Charette), *Poy, Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, Sibbeston, Smith, Spivak, Stollery, Stratton, Tardif, Tkachuk, *Trenholme Counsell, Watt
PRAYERS
SENATORS' STATEMENTS
Tributes
Tribute was paid to the Honourable Senator Léger, who will retire from the Senate on June 29, 2005.
Senators' Statements
Some honourable senators made statements.
DAILY ROUTINE OF BUSINESS
Tabling of Documents
The Honourable the Speaker tabled the following:
Report of the Auditor General of Canada for the fiscal year ended March 31, 2005, pursuant to the Privacy Act, R.S.C. 1985, c. P-21, sbs. 72(2).—Sessional Paper No. 1/38-595.
The Honourable Senator Rompkey, P.C., tabled the following:
Report of the National Defence and Canadian Forces Ombudsman for the fiscal year ended March 31, 2005. —Sessional Paper No. 1/38-596.
Presentation of Reports from Standing or Special Committees
The Honourable Senator Banks, Chair of the Standing Senate Committee on Energy, the Environment and Natural Resources, tabled its eighth report (second interim) entitled: Sustainable Development: It's Time to Walk the Talk.—Sessional Paper No. 1/38-597S.
The Honourable Senator Banks moved, seconded by the Honourable Senator Day, 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 Corbin, Chair of the Standing Senate Committee on Official Languages, tabled its sixth report (interim) entitled: French-language education in a minority setting: A continuum from early childhood to the postsecondary level. —Sessional Paper No. 1/38-598S.
The Honourable Senator Corbin moved, seconded by the Honourable Senator Ferretti Barth, 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 Kenny, Chair of the Standing Senate Committee on National Security and Defence, tabled its eighth report (study on the national security policy for Canada). —Sessional Paper No. 1/38-599S.
The Honourable Senator Kenny moved, seconded by the Honourable Senator Furey, 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, for the Honourable Senator Kenny, Chair of the Standing Senate Committee on National Security and Defence, presented its ninth report (budget—Study on the services and benefits provided to veterans in recognition of their services to Canada).
(The report is printed as an appendix)
The Honourable Senator Meighen moved, seconded by the Honourable Senator Keon, 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 Kenny, Chair of the Standing Senate Committee on National Security and Defence, tabled its tenth report (study on the national security policy for Canada). —Sessional Paper No. 1/38-600S.
The Honourable Senator Kenny moved, seconded by the Honourable Senator Phalen, 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 Kenny, Chair of the Standing Senate Committee on National Security and Defence, tabled its eleventh report (study on the national security policy for Canada). —Sessional Paper No. 1/38-601S.
The Honourable Senator Kenny moved, seconded by the Honourable Senator Day, 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 Kenny, Chair of the Standing Senate Committee on National Security and Defence, tabled its twelfth report entitled: Borderline Insecure.—Sessional Paper No. 1/38-602S.
The Honourable Senator Kenny moved, seconded by the Honourable Senator Banks, 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 Kenny, Chair of the Standing Senate Committee on National Security and Defence, tabled its thirteenth report (study on the national security policy for Canada).—Sessional Paper No. 1/38-603S.
The Honourable Senator Kenny moved, seconded by the Honourable Senator Ferretti Barth, 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.
Introduction and First Reading of Government Bills
A Message was brought from the House of Commons with a Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, to which it desires the concurrence of the Senate.
The bill was read the first time.
The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Losier-Cool, that the bill be placed on the Orders of the Day for a second reading two days hence.
The question being put on the motion, it was adopted.
A Message was brought from the House of Commons with a Bill C-26, An Act to establish the Canada Border Services Agency, to which it desires the concurrence of the Senate.
The bill was read the first time.
The Honourable Senator Banks, moved, seconded by the Honourable Senator Ferretti Barth, that the bill be placed on the Orders of the Day for a second reading two days hence.
The question being put on the motion, it was adopted.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Second reading of Bill C-22, An Act to establish the Department of Social Development and to amend and repeal certain related Acts.
The Honourable Senator Carstairs, P.C., moved, seconded by the Honourable Senator Fairbairn, P.C., that the bill be read the second time.
After debate,
The Honourable Senator Stratton 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.
Third reading of Bill C-3, An Act to amend the Canada Shipping Act, the Canada Shipping Act, 2001, the Canada National Marine Conservation Areas Act and the Oceans Act.
The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Robichaud, P.C., that the bill be read the third time.
After debate,
The Honourable Senator Stratton, for the Honourable Senator Angus, 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 and 3 were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Carstairs, P.C., seconded by the Honourable Senator Rompkey, P.C., for the second reading of Bill C-23, An Act to establish the Department of Human Resources and Skills Development and to amend and repeal certain related Acts.
After debate,
The question being put on the motion, it was adopted.
The bill was then read the second time.
The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Losier-Cool, 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. 5 was called and postponed until the next sitting.
The Order was called to resume debate on the motion of the Honourable Senator Munson, seconded by the Honourable Senator Mercer, for the second reading of Bill S-33, An Act to amend the Aeronautics Act and to make consequential amendments to other Acts.
SPEAKER'S RULING
On Tuesday, May 31, before resuming debate on the motion for the second reading of Bill S-33, An Act to amend the Aeronautics Act, Senator Tkachuk rose on a point of order because of doubts he had regarding the need for a royal recommendation. In making his case, the Senator referred to the appropriate Senate rules and to the constitutional provisions which clearly stipulate that any bill seeking the appropriation of public money must be sanctioned by a royal recommendation and must originate in the other place. The Senator asked me as the Speaker to consider whether certain clauses in the bill might not need this royal recommendation.
There followed a brief statement by Senator Austin, the Leader of the Government, who doubted that there was a need for a royal recommendation though he asked for time to consider the matter. Senator Stratton, the Deputy Leader of the Opposition, then spoke to indicate that there was another portion of the bill that raised some additional questions about a possible requirement for a royal recommendation. The Senator asked whether Part II of the bill, establishing an Airworthiness Investigative Authority, might not involve new expenditures not previously authorized through legislation.
Other interventions were made by Senator Rompkey, the Deputy Leader of the Government and Senator Cools before I recognized Senator Tkachuk for a second time. I wish to thank all honourable Senators for their contributions to this point of order. As Senator Tkachuk indicated in his remarks, this is a challenging issue. For some years now, royal recommendations have been attached to government bills without clearly identifying the clauses which authorize the expenditure from the Consolidated Revenue Fund, even though this identification is supposed to be obligatory according to procedural authorities. As an example I would cite Marleau and Montpetit, the manual of practice for the other place. It states, on page 711, that ``A royal recommendation not only fixes the allowable charge, but also its objects, purposes, conditions and qualifications.'' In fact, as was mentioned, this issue was reviewed by the National Finance Committee in 1990.
This point of order is particularly important because of the consequences that flow from it. If it is determined that a royal recommendation is required for any part or clause of Bill S-33, then it must be discharged from the Order Paper so that it can be properly introduced in the House of Commons as constitutional practice requires. In order to decide this question to the best of my ability, I have reviewed the bill and studied several past rulings as well as consulted various relevant procedural authorities. I have tried to be diligent in this respect in particular because I declined the request to carry the discussion on the point of order to the next sitting day.
Clause 17 of Bill S-33 replaces section 5.81 of the Aeronautics Act and would allow, among other things, the Minister of Transport to pay certain costs in clearing lands adjacent to airports of natural growth for safety reasons. The Minister is entitled to recover any costs incurred in carrying out this activity from the airport operator who is, in fact supposed to be responsible for this. In commenting on this provision, Senator Tkachuk recognized that these recoverable payments could be quite small. Nonetheless, he believed that they still constituted a charge on the public purse and that, as a matter of principle, they required a royal recommendation.
As to the second objection which was raised by Senator Stratton, I note that the Airworthiness Investigative Authority is to be an individual designated by the Minister. This designate is be an employee of National Defence. According to the clause of the amended bill, the scope of this investigating authority is to include the power to investigate, to identify safety deficiencies, to make recommendations addressing identified deficiencies, and to publish reports on any investigations.
Based on the explanations presented, it is not certain whether either of these anticipated operations would be funded by a new appropriation which would require a royal recommendation or by existing allocations established through previous legislation. While it is the presence of a clause specifically authorizing a new appropriation that is supposed to be the trigger for a royal recommendation, I would point out that in recent years, the practice has been to use a non- specific royal recommendation that details nothing but rather covers many possibilities.
My guarded assessment about whether there is any clear authorization of a new expenditure in Bill S-33 calls to mind the conclusions of the National Finance report of February 1990. More than fifteen years ago, the Senate agreed that the present use of the royal recommendation is unsatisfactory as a guide to understanding whether or not a new expenditure is being authorized through legislation. The report noted that the form of the current royal recommendation, in use since 1976, does not define or specify the appropriation approved by the Governor General. This, in turn, leaves members of both Houses, including the Speakers, without a clear statement from the Crown as to what appropriation is being sought.
The committee's report also included some interesting testimony from the Chief Legislative Counsel of the Department of Justice. According to him, in advising the Government House Leader of the Commons about the introduction of government legislation, the Department prefers to err on the side of caution. That is, confronted with any dubious case, Justice would normally advise the Government to seek a royal recommendation to a bill and avoid introducing it in the Senate because it might be ruled out of order. Nothing has changed to clarify the use of the royal recommendation since the Senate adopted the National Finance report.
Honourable Senators, we are confronted by an unusual situation. My ruling, if it were to permit the Senate to proceed with debate on Bill S-33, would run the risk of being effectively overturned in the other place if a point of order similar to this one were raised there. The Speaker of the other place is duty bound to jealously protect the rights and privileges of that House. Given the uncertainty that Bill S-33 may authorize new expenditures, though I remain unconvinced about this based on the arguments presented to me, it is possible that the Speaker could rule in favour of a point of order challenging the constitutional propriety of introducing legislation with financial implications in the Senate.
Faced with these circumstances, I have come to the following conclusion and make it my ruling that, since there is a plausible case that the bill may involve a new appropriation, second reading debate on Bill S-33 should not proceed. Consequently, unless the Senate wishes to challenge my ruling, I am ordering that the second reading motion of Bill S- 33, amending the Aeronautics Act, as well as the bill itself, be discharged from the Order Paper effectively nullifying all proceedings in connection with this bill.
In concluding, let me repeat that the challenge of assessing the requirements for a possible royal recommendation is more difficult than it should be. While the Crown has every right to preserve its prerogatives with respect to financial initiatives that appropriate new expenditures, the exercise of this prerogative should not impede the rights of parliamentarians, either in the Senate or the other place, in carrying out their responsibilities to consider and possibly amend legislation. Perhaps the time has come to again review the problems that National Finance identified in 1990.
Second reading of Bill S-40, An Act to amend the Hazardous Materials Information Review Act.
The Honourable Senator Cowan moved, seconded by the Honourable Senator Eggleton, P.C., that the bill be read the second time.
After debate,
The Honourable Senator Stratton, for the Honourable Senator Cochrane, 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.
Reports of Committees
Consideration of the thirteenth report (fourth interim) of the Standing Senate Committee on National Finance (2005-2006 Main Estimates), presented in the Senate on June 9, 2005.
The Honourable Senator Day moved, seconded by the Honourable Senator Dallaire, that the report be adopted.
After debate,
The Honourable Senator Stratton, for the Honourable Senator Oliver, 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.
OTHER BUSINESS
Senate Public Bills
Orders No. 1 to 3 were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Biron, seconded by the Honourable Senator Robichaud, P.C., for the second reading of Bill S-30, An Act to amend the Bankruptcy and Insolvency Act (RRSP and RESP).
After debate,
Further debate on the motion was adjourned until the next sitting in the name of the Honourable Senator Rompkey, P.C.
Orders No. 5 to 11 were called and postponed until the next sitting.
Reports of Committees
Consideration of the fourth report of the Standing Committee on Rules, Procedures and the Rights of Parliament (amendment to Rule 96(7)—Clause-by-clause consideration of a bill), presented in the Senate on June 9, 2005.
The Honourable Senator Smith, P.C., moved, seconded by the Honourable Senator Eggleton, P.C., that the report be adopted.
After debate,
The question being put on the motion, it was adopted.
Order No. 2 was called and postponed until the next sitting.
Consideration of the third report (interim) of the Standing Senate Committee on Fisheries and Oceans, entitled: Interim Report on Canada's New and Evolving Policy Framework for Managing Fisheries and Oceans, tabled in the Senate on May 19, 2005.
The Honourable Senator Comeau moved, seconded by the Honourable Senator LeBreton:
That the Third Report of the Standing Senate Committee on Fisheries and Oceans, tabled in the Senate on May 19, 2005, be adopted and that, pursuant to rule 131(2), the Senate request a complete and detailed response from the government, with the Minister of Fisheries and Oceans being identified as Minister responsible for responding to the report.
After debate,
The Honourable Senator Rompkey, P.C., for the Honourable Senator Hubley, 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.
Orders No. 4 and 5 were called and postponed until the next sitting.
Other
Orders No. 11, 15 (inquiries), 105, 91 (motions), 4, 24, 21, 22, 23, 12 (inquiries), 94 (motion), 6 (inquiry), 85, 78 (motions), 14, 20, 16 (inquiries), 69 (motion), 18 and 2 (inquiries) were called and postponed until the next sitting.
INQUIRIES
The Honourable Senator Rompkey, P.C., for the Honourable Senator Jaffer, called the attention of the Senate to the situation in Sudan, and the role of Canada's Special Envoy for Peace in Sudan.
After debate,
The Honourable Senator Rompkey, P.C., for the Honourable Senator Jaffer, moved, seconded by the Honourable Senator Losier-Cool, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
The Honourable Senator Milne called the attention of the Senate to the life of Margaret Ann Mick, the first female Peace Officer killed in the line of duty in Canada.
After debate,
The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Losier-Cool, 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 Corbin moved, seconded by the Honourable Senator Ferretti Barth:
That, notwithstanding the Order of the Senate adopted on November 3, 2004, the date for the presentation of the final report by the Standing Senate Committee on Official Languages on the application of the Official Languages Act be extended from June 15, 2005, to June 15, 2006.
The question being put on the motion, it was adopted.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Report on Corporations for the year 2003, pursuant to the Corporations Returns Act, S.C. 1998, c. 26, s. 68.—Sessional Paper No. 1/38-589.
Reports of the Military Police Complaints Commission for the fiscal year ended March 31, 2005, pursuant to the Access to Information Act and to the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2).—Sessional Paper No. 1/38- 590.
Reports of the National Defence and Canadian Forces Ombudsman for the fiscal year ended March 31, 2005, pursuant to the Access to Information Act and to the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2) and s. 73.—Sessional Paper No. 1/38-591.
Reports of the Canadian Environmental Assessment Agency for the fiscal year ended March 31, 2005, pursuant to the Access to Information Act and to the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2).—Sessional Paper No. 1/ 38-592.
Federal-Territorial Implementation Agreement with the Nunavut Territory, pursuant to the Farm Income Protection Act, S.C. 1991, c. 22, sbs. 6(1).—Sessional Paper No. 1/38-593.
Federal-Provincial Implementation Amending Agreements with the provinces of Newfoundland and Labrador, New Brunswick and Nova Scotia, pursuant to the Farm Income Protection Act, S.C. 1991, c. 22, sbs. 6(1).—Sessional Paper No. 1/38-594.
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 4:49 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 Legal and Constitutional Affairs
The name of the Honourable Senator Eyton substituted for that of the Honourable Senator Gustafson (June 9).
Standing Senate Committee on Banking, Trade and Commerce
The names of the Honourable Senators Cowan and Meighen substituted for those of the Honourable Senators Massicotte and Oliver (June 14).
Standing Senate Committee on National Finance
The name of the Honourable Senator Nolin substituted for that of the Honourable Senator Oliver (June 14).