Journals of the Senate
54 Elizabeth II, A.D. 2005, Canada
Journals of the Senate
1st Session, 38th Parliament
Issue 98
Wednesday, November 23, 2005
1:30 p.m.
The Honourable Daniel Hays, Speaker
The Members convened were:
The Honourable Senators
Andreychuk, Angus, Atkins, Austin, Bacon, Baker, Banks, Biron, Bryden, Callbeck, Campbell, Carney, Carstairs, Champagne, Chaput, Christensen, Cochrane, Comeau, Cook, Cools, Corbin, Cordy, Cowan, Dallaire, Dawson, Day, De Bané, Di Nino, Downe, Dyck, Eggleton, Eyton, Fairbairn, Fitzpatrick, Fox, Fraser, Furey, Gill, Goldstein, Grafstein, Gustafson, Harb, Hays, Hervieux-Payette, Hubley, Johnson, Joyal, Kenny, Keon, Kinsella, Lapointe, Lavigne, LeBreton, Losier-Cool, Lovelace Nicholas, Maheu, Mahovlich, Massicotte, McCoy, Meighen, Mercer, Milne, Mitchell, Moore, Munson, Nolin, Pépin, Peterson, Phalen, Plamondon, Poulin (Charette), Poy, Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, St. Germain, Sibbeston, Smith, Stollery, Stratton, Tardif, Tkachuk, Trenholme Counsell, Watt, Zimmer
The Members in attendance to business were:
The Honourable Senators
Andreychuk, Angus, Atkins, Austin, Bacon, Baker, Banks, Biron, Bryden, Callbeck, Campbell, Carney, Carstairs, Champagne, Chaput, Christensen, Cochrane, Comeau, Cook, Cools, Corbin, Cordy, Cowan, Dallaire, Dawson, Day, De Bané, Di Nino, Downe, Dyck, Eggleton, Eyton, Fairbairn, Fitzpatrick, Fox, Fraser, Furey, Gill, Goldstein, Grafstein, Gustafson, Harb, Hays, Hervieux-Payette, Hubley, *Jaffer, Johnson, Joyal, Kenny, Keon, Kinsella, *Kirby, Lapointe, Lavigne, LeBreton, Losier-Cool, Lovelace Nicholas, Maheu, Mahovlich, Massicotte, McCoy, Meighen, Mercer, Milne, Mitchell, Moore, Munson, Nolin, Pépin, Peterson, Phalen, Plamondon, Poulin (Charette), Poy, Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, St. Germain, Sibbeston, Smith, Stollery, Stratton, Tardif, Tkachuk, Trenholme Counsell, Watt, Zimmer
PRAYERS
SENATORS' STATEMENTS
Some honourable senators made statements.
DAILY ROUTINE OF BUSINESS
Presentation of Reports from Standing or Special Committees
The Honourable Senator Trenholme Counsell presented the following:
Wednesday, November 23, 2005
The Standing Joint Committee on the Library of Parliament has the honour to present its
SECOND REPORT
Pursuant to the order of reference from the Senate on November 22, 2005, House of Commons Standing Order 111.1, and the order of reference from the Commons on November 17, 2005, the Committee has considered the certificate of nomination of Mr. William Robert Young to the office of Parliamentary Librarian.
The Committee approves the appointment of Mr. Young to the office of Parliamentary Librarian.
A copy of the relevant Minutes of Proceedings (Meeting No. 5) is tabled in the House of Commons.
Respectfully submitted,
MARILYN TRENHOLME COUNSELL
Joint Chair
The Honourable Senator Trenholme Counsell moved, seconded by the Honourable Senator Campbell, 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.
Tabling of Reports from Inter-Parliamentary Delegations
The Honourable Senator Bacon tabled the following:
Report of the Canadian Section of the Canada-France Inter-Parliamentary Association respecting its participation at the 33rd Annual Meeting, held in Vancouver, Victoria and Nanaimo, British-Columbia, from August 28 to September 4, 2005.—Sessional Paper No. 1/38-912.
Presentation of Petitions
The Honourable Senator Meighen presented petitions:
Of Residents of Canada concerning LNG tankers.
SPEAKER'S RULING
Yesterday, Tuesday, November 22, Senator Spivak rose on a question of privilege to complain about the answers that she has received to a series of written questions she had placed on the Order Paper. Under our rules and practices, Senators are entitled to ask written questions soliciting information from the government on any matter that comes within its jurisdiction or administrative authority. In this particular case, Senator Spivak had posed a number of questions regarding the boundaries of Gatineau Park which is controlled and managed by the National Capital Commission, the NCC.
According to Senator Spivak, the answers provided by the NCC through Canadian Heritage were contradictory. Her complaint is based on the fact that the responses that she received were different in material respects from those made to identical questions asked by a member of the other place. Senator Spivak explained that in three specific instances the information given to her about the boundaries of Gatineau Park was inconsistent with the answers provided elsewhere.
The failure to prepare complete answers that are accurate or consistent is, in the Senator's view, a serious breech of privilege since it deprives parliamentarians of the information that they need to do their job properly. To prove her point, Senator Spivak mentioned the work that she is doing on a draft bill relating to Gatineau Park for which solid data on its boundaries is important.
Following the Senator's remarks, I indicated that I would seek to provide a ruling as soon as I was able on the question of privilege, to determine if a prima facie case had been established. I have considered the matter carefully and am prepared to make my ruling now.
Senate rule 43 outlines the criteria that I must use in order to determine a question of privilege prima facie. I am satisfied that the matter has been raised ``at the earliest opportunity'', but I am less clear about the remaining criteria. It is not obvious to me how an inconsistent response provided by the NCC through Canadian Heritage constitutes a matter that directly concerns the privileges of the Senate, a committee or a Senator.
While the Senator has made a good case that the information received from the NCC is not consistent with the information it has provided elsewhere, I do not see how this, in itself, is a matter of privilege or contempt. As the Senator herself stated at the opening of her intervention, parliamentarians often complain that answers from the government are slow or incomplete. None of these instances would normally give rise to a question of privilege. In addition, no evidence was presented to suggest that these errors or inconsistencies were deliberate. I am also uncertain about whether it is the information that was provided to the Senator or to the other parliamentarian that is inaccurate. Had a compelling case been made that the NCC had sought to deliberately mislead the Senator, my ruling would have been different. As it happens, however, with respect to this case, there are other means readily available to seek some clarification about the NCC information. For example, the matter could be taken up again by another written question or perhaps through a Senate committee hearing officials from the NCC. These alternative approaches would be in keeping with the traditional oversight function of the Senate and would be more suitable than having the matter considered as a contempt.
Having reviewed the complaint based on the criteria stipulated in rule 43, I am unable to support the contention that a prima facie question of privilege has been established.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Motions
The Honourable Senator Rompkey, P.C. moved, seconded by the Honourable Senator Losier-Cool:
That, notwithstanding the Order of the Senate of November 2, 2004, when the Senate sits on Wednesday, November 23, 2005, it continue its proceedings beyond 4 p.m. and follow the normal adjournment procedure according to Rule 6(1); and
That committees of the Senate scheduled to meet on Wednesday, November 23, 2005, be authorized to sit even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.
After debate,
The question being put on the motion, it was adopted on the following vote:
YEAS
The Honourable Senators
Atkins, Austin, Bacon, Baker, Banks, Bryden, Callbeck, Campbell, Carstairs, Chaput, Christensen, Cochrane, Comeau, Cook, Corbin, Cordy, Cowan, Day, De Bané, Di Nino, Dyck, Eggleton, Eyton, Fairbairn, Forrestall, Fraser, Furey, Gill, Grafstein, Harb, Hubley, Joyal, Kenny, Keon, Kinsella, Lavigne, LeBreton, Losier-Cool, Lovelace Nicholas, Maheu, Mahovlich, Massicotte, McCoy, Meighen, Mercer, Milne, Mitchell, Moore, Munson, Nolin, Pépin, Peterson, Phalen, Poulin, Poy, Ringuette, Robichaud, Rompkey, Stollery, Stratton, Tkachuk, Zimmer—62
NAYS
The Honourable Senators
Plamondon, Prud'homme, St. Germain—3
ABSTENTIONS
The Honourable Senators
Andreychuk, Angus, Champagne, Lapointe, Trenholme Counsell—5
Bills
Third reading of Bill C-28, An Act to amend the Food and Drugs Act.
The Honourable Senator Mercer moved, seconded by the Honourable Senator Peterson, that the bill be read the third time.
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 has passed this bill, without amendment.
Second reading of Bill C-55, An Act to establish the Wage Earner Protection Program Act, to amend the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act and to make consequential amendments to other Acts.
The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Losier-Cool, that the bill be read the second time.
After debate,
The Honourable Senator Angus moved, seconded by the Honourable Senator Eyton, 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
Andreychuk, Angus, Carney, Champagne, Cochrane, Comeau, Di Nino, Eyton, Gustafson, Johnson, Kinsella, LeBreton, McCoy, Meighen, Nolin, Plamondon, Stratton, Tkachuk—18
NAYS
The Honourable Senators
Austin, Baker, Banks, Biron, Bryden, Callbeck, Campbell, Carstairs, Chaput, Christensen, Cook, Corbin, Cordy, Cowan, Dallaire, Day, De Bané, Downe, Eggleton, Fairbairn, Fraser, Furey, Gill, Goldstein, Grafstein, Harb, Hervieux-Payette, Hubley, Joyal, Lapointe, Lavigne, Losier-Cool, Mahovlich, Mercer, Milne, Mitchell, Moore, Munson, Pépin, Peterson, Phalen, Poulin, Poy, Ringuette, Robichaud, Rompkey, Smith, Stollery, Tardif, Trenholme Counsell, Watt, Zimmer—52
ABSTENTIONS
The Honourable Senators
Prud'homme—1
The Senate resumed debate on the motion of the Honourable Senator Rompkey, P.C, seconded by the Honourable Senator Losier-Cool, for the second reading of Bill C-55, An Act to establish the Wage Earner Protection Program Act, to amend the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement 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 second time, on division.
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 Banking, Trade and Commerce.
The question being put on the motion, it was adopted.
Motions
The Honourable Senator Rompkey, P.C. moved, seconded by the Honourable Senator Losier-Cool:
That when the Senate adjourns on Friday, November 25, 2005, it do stand adjourned until Saturday, November 26, 2005, at 9 a.m.
The question being put on the motion, it was adopted.
The Honourable Senator Rompkey, P.C. moved, seconded by the Honourable Senator Losier-Cool:
That, notwithstanding rule 5(1), when the Senate sits on Monday, November 28, 2005, it shall meet for the transaction of business at 9 a.m.
The question being put on the motion, it was adopted.
The Honourable Senator Rompkey, P.C. moved, seconded by the Honourable Senator Losier-Cool:
That the Standing Senate Committee on Banking, Trade and Commerce be authorized to undertake a review of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (S.C. 2000, c. 17) pursuant to Section 72 of the said Act; and
That the committee submit its final report no later than June 30, 2006.
The question being put on the motion, it was adopted.
Reports of Committees
Consideration of the ninth report of the Standing Senate Committee on Transport and Communications (Bill C-37, An Act to amend the Telecommunications Act, with amendments and observations), presented in the Senate on November 22, 2005.
The Honourable Senator Fraser moved, seconded by the Honourable Senator Pépin, that the report be adopted.
After debate,
The question being put on the motion, it was adopted.
The Honourable Senator Tardif moved, seconded by the Honourable Senator Fraser, that the bill, as amended, 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.
OTHER BUSINESS
Senate Public Bills
Resuming debate on the motion of the Honourable Senator Cochrane, seconded by the Honourable Senator Andreychuk, for the third reading of Bill S-12, 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 has passed this bill, to which it desires its concurrence.
Order No. 2 was called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Grafstein, seconded by the Honourable Senator Ferretti Barth, for the second reading of Bill S-43, An Act to amend the Criminal Code (suicide bombings).
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.
Orders No. 4 to 8 were called and postponed until the next sitting.
Ordered, That notwithstanding rule 27(3), Order No. 9 (Bill S-34) remain on the Order Paper for another fifteen consecutive sitting days.
Orders No. 10 to 14 were called and postponed until the next sitting.
Commons Public Bills
Resuming debate on the motion of the Honourable Senator Di Nino, seconded by the Honourable Senator Keon, for the second reading of Bill C-259, An Act to amend the Excise Tax Act (elimination of excise tax on jewellery).
A point of order was raised as to the acceptability of the Bill C-259.
Debate.
Pursuant to rule 13(1), the Speaker left the Chair to resume the same at 8 p.m.
The sitting resumed.
MESSAGES FROM THE HOUSE OF COMMONS
A message was brought from the House of Commons with a Bill C-71, An Act respecting the regulation of commercial and industrial undertakings on reserve lands, 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 Day, 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-57, An Act to amend certain Acts in relation to financial institutions, 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-331, An Act to acknowledge that persons of Ukrainian origin were interned in Canada during the First World War and to provide for recognition of this event, to which it desires the concurrence of the Senate.
The bill was read the first time.
The Honourable Senator Kinsella moved, seconded by the Honourable Senator Plamondon, 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.
Commons Public Bills
The Senate resumed consideration on the point of order respecting the acceptability of Bill C-259, An Act to amend the Excise Tax Act (elimination of excise tax on jewellery).
SPEAKER PRO TEMPORE'S RULING
When the second reading of Bill C-259 was reached today, the Leader of the Government raised a point of order questioning the propriety of proceeding to the resumed debate on this bill. Citing several rules, decisions and authorities, Senator Austin argued the case that Bill C-259 should not be allowed to proceed. Other Senators also spoke to the matter contesting the proposal that debate on the bill should not continue.
I wish to thank honourable Senators for the views that were expressed on this point of order. I have considered the arguments that were made and have reviewed the matter sufficiently to make a ruling which I am prepared to give now. In making this decision, I am exercising the authority granted to me under rules 11 and 12 of the Rules of the Senate and this authority is no different in its effect and validity than that of the Speaker.
Rule 63 (1) stipulates, in part, that ``a motion shall not be made which is the same in substance as any question which, during the same session, has been resolved in the affirmative or negative ...''
The point of order that has been raised deals with the suggestion that Bill C-259 which deals with the elimination of the excise tax on jewellery is substantially the same as Bill C-43, a budget implementation bill that was enacted by Parliament last June. In order to make the case, it should be possible to identify the subject matter or clauses in both bills that address the same subject.
Bill C-43, which is now Chapter 30 of the Statutes of Canada 2005, contains an amendment to Schedule I of the Excise Tax Act that will phase out the excise tax on jewellery through a series of rate reductions over the next four years. Among the items to be affected by this tax change are articles of all kinds made of various materials including ivory, coral, jade and onyx and semi-precious stones. Other items to benefit from this tax reduction include personal objects made of real or artificial diamonds as well as gold and silver jewellery.
Of particular interest, for purposes of this point of order, is the tax reduction that will be given to clocks. Chapter 30 specifies that the phase-in tax reduction will apply to the following items when their value exceeds fifty dollars:
Clocks and watches adapted to household or personal use, except railway men's watches, and those specially designed for use of the blind.
Bill C-259 is a one clause bill that provides an immediate 10 per cent reduction for:
Clocks adapted to household or personal use, except those specially designed for the use of the blind ...
if their sale price or duty paid value exceeds fifty dollars.
There is little doubt that these two clauses resemble each other, but they are also different in certain critical respects. The question to be determined is whether they are sufficiently the same to disallow further consideration of Bill C-259 or whether they are sufficiently different to allow Bill C-259 to proceed.
In seeking to answer this question, it should be noted that practice has changed over the years to accommodate the reality of extended sessions that can continue through several years. This has had the consequence of requiring a greater degree of similarity between two items before a bill or other business will be ruled out of order on the basis of the ``same question rule''.
With respect to with this issue, I would refer Honourable Senators to page 898 of Marleau and Montpetit. In a ruling by Speaker Fraser made in 1989 dealing with items proposed by Private Members, that is with respect to items not proposed by the Government, the Speaker explained that for two or more items to be substantially the same ``they must have the same purpose and they have to achieve their same purpose by the same means.'' I am prepared to take this approach as a guide to the consideration of similar items whether they are sponsored by the Government or by Senators.
In taking this position, I am also mindful of British practice which is very clear. Erskine May states at page 580 of the 23rd edition: ``There is no rule against the amendment or the repeal of an Act of the same session.''
Bill C-259 amends the application of the excise tax on clocks at an accelerated speed in comparison to the proposal enacted through the budget implementation bill adopted earlier this year. The means, therefore, are not the same. If the Senate adopts this bill and it is made law by royal assent, it will have the effect of changing the rate of tax reduction now in place through the enactment of Bill C-43. I do not regard this measure to be the same, based on the criteria established by the decision of Speaker Fraser. The same end is not achieved by the same means. The two measures are substantially different and I am prepared to rule that debate on Bill C-259 can continue.
Resuming debate on the motion of the Honourable Senator Di Nino, seconded by the Honourable Senator Keon, for the second reading of Bill C-259, An Act to amend the Excise Tax Act (elimination of excise tax on jewellery).
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 LeBreton, 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.
Reports of Committees
Resuming debate on the consideration of the nineteenth report (interim) of the Standing Senate Committee on Human Rights, entitled: Who's in Charge Here? Effective Implementation of Canada's International Obligations with Respect to the Rights of Children, tabled in the Senate on November 3, 2005.
The Honourable Senator Stratton moved, seconded by the Honourable Senator LeBreton, that the nineteenth report of the Standing Senate Committee on Human Rights, tabled in the Senate on November 3, 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 Foreign Affairs, the Minister of Justice and Attorney General of Canada, and the Minister of Canadian Heritage being identified as Ministers responsible for responding to the report.
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 consideration of the seventh report (interim) of the Standing Senate Committee on Agriculture and Forestry, entitled: Cattle Slaughter Capacity in Canada, tabled in the Senate on May 19, 2005.
After debate,
The Honourable Senator Fairbairn, P.C., moved, seconded by the Honourable Senator Mahovlich, that the report be adopted.
The question being put on the motion, it was adopted.
Order No. 5 was called and postponed until the next sitting.
Other
Orders No. 2 (inquiry), 130, 113 (motions), 32 (inquiry) and 119 (motion) were called and postponed until the next sitting.
Resuming debate on the inquiry of the Honourable Senator Léger calling the attention of the Senate to the importance of artistic creation to a nation's vitality and the priority the federal government should give to culture, as defined by UNESCO, in its departments and other agencies under its authority.
After debate,
The Honourable Senator Prud'homme, P.C., moved, seconded by the Honourable Senator Plamondon, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Orders No. 4, 27 (inquiries), 127 (motion), 24 (inquiry), 120 (motion), 21, 22 (inquiries) and 78 (motion) were called and postponed until the next sitting.
Ordered, That notwithstanding rule 27(3), Order No. 14 (inquiry) remain on the Order Paper for another fifteen consecutive sitting days.
Order No. 20 (inquiry) was called and pursuant to rule 27(3) was dropped from the Order Paper.
Ordered, That notwithstanding rule 27(3), Order No. 69 (motion) remain on the Order Paper for another fifteen consecutive sitting days.
INQUIRIES
The Honourable Senator Gill called the attention of the Senate to the National Year of the Veteran and the contribution of Aboriginal Peoples.
After debate,
The Honourable Senator Dallaire moved, seconded by the Honourable Senator Day, that further debate on the inquiry 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):
Management Plan of the Bar U Ranch National Historic Site of Canada, pursuant to the Parks Canada Agency Act, S.C. 1998, c. 31, sbs. 32(1).—Sessional Paper No. 1/38-911.
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 9:40 p.m. the Senate was continued until 1:30 p.m. tomorrow.)
Changes in Membership of Committees Pursuant to Rule 85(4)
Standing Joint Committee on the Library of Parliament
The names of the Honourable Senators Hubley and Cordy substituted for those of the Honourable Senators Poy and Lapointe (November 22).
The names of the Honourable Senators Poy and Lapointe substituted for those of the Honourable Senators Hubley and Cordy (November 23).
Standing Senate Committee on National Finance
The name of the Honourable Senator Smith substituted for that of the Honourable Senator Ringuette (November 22).
Standing Senate Committee on Transport and Communications
The name of the Honourable Senator Dawson removed from the membership (November 23).
The names of the Honourable Senators Mercer, Munson and Phalen substituted for those of the Honourable Senators Cordy, Hubley and Tardif (November 23).
Standing Senate Committee on Banking, Trade and Commerce
The name of the Honourable Senator Zimmer substituted for that of the Honourable Senator Fitzpatrick (November 23).