Journals of the Senate
57 Elizabeth II, A.D. 2008, Canada
Journals of the Senate
2nd Session, 39th Parliament
Issue 62
Tuesday, May 27, 2008
2:00 p.m.
The Honourable Noël A. Kinsella, Speaker
The Members convened were:
The Honourable Senators
Andreychuk, Angus, Bacon, Baker, Banks, Biron, Brown, Champagne, Cochrane, Comeau, Cook, Cools, Corbin, Cowan, Dallaire, Dawson, Di Nino, Downe, Dyck, Eggleton, Fairbairn, Fortier, Fraser, Furey, Gill, Goldstein, Gustafson, Harb, Hervieux-Payette, Hubley, Johnson, Joyal, Kenny, Keon, Kinsella, Lapointe, LeBreton, Losier-Cool, Mahovlich, Massicotte, McCoy, Meighen, Merchant, Milne, Mitchell, Moore, Munson, Murray, Nancy Ruth, Oliver, Peterson, Phalen, Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, St. Germain, Segal, Sibbeston, Smith, Spivak, Stratton, Tardif, Tkachuk, Trenholme Counsell, Watt, Zimmer
The Members in attendance to business were:
The Honourable Senators
Andreychuk, Angus, Bacon, Baker, Banks, Biron, Brown, Champagne, Cochrane, Comeau, Cook, Cools, Corbin, *Cordy, Cowan, Dallaire, Dawson, *Day, Di Nino, Downe, Dyck, Eggleton, Fairbairn, Fortier, Fraser, Furey, Gill, Goldstein, Gustafson, Harb, Hervieux-Payette, Hubley, Johnson, Joyal, Kenny, Keon, Kinsella, Lapointe, LeBreton, Losier-Cool, Mahovlich, Massicotte, McCoy, Meighen, Merchant, Milne, Mitchell, Moore, Munson, Murray, Nancy Ruth, *Nolin, Oliver, Peterson, Phalen, Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, St. Germain, Segal, Sibbeston, Smith, Spivak, Stratton, Tardif, Tkachuk, Trenholme Counsell, Watt, Zimmer
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Tabling of Documents
The Honourable the Speaker tabled the following:
Report of the Information Commissioner, for the period ending March 31, 2008, pursuant to the Access to Information Act, R.S.C. 1985, c. A-1, s. 40(1).—Sessional Paper No. 2/39-598.
Government Notices of Motions
With leave of the Senate,
The Honourable Senator Comeau moved, seconded by the Honourable Senator Di Nino:
That the Address of His Excellency Victor Yushchenko, President of Ukraine, to Members of both Houses of Parliament, delivered on May 26, 2008, together with the introductory speech by the Right Honourable the Prime Minister of Canada and the speeches delivered by the Speaker of the Senate and the Speaker of the House of Commons, be printed as an Appendix to the Debates of the Senate of this day and form part of the permanent records of this House.
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 St. Germain, P.C., seconded by the Honourable Senator Cochrane, for the second reading of Bill C-30, An Act to establish the Specific Claims Tribunal and to make consequential amendments to other Acts.
After debate,
The question being put on the motion, it was adopted.
The bill was then read the second time.
The Honourable Senator Comeau moved, seconded by the Honourable Senator Di Nino, that the bill be referred to the Standing Senate Committee on Aboriginal Peoples.
The question being put on the motion, it was adopted.
Inquiries
Order No. 1 was called and postponed until the next sitting.
OTHER BUSINESS
Senate Public Bills
Orders No. 1 to 3 were called and postponed until the next sitting.
The Order was called for resuming debate on the motion of the Honourable Senator Gill, seconded by the Honourable Senator Watt, for the second reading of Bill S-234, An Act to establish an assembly of the aboriginal peoples of Canada and an executive council.
SPEAKER'S RULING
Honourable Senators, on May 8, 2008, Senator Comeau rose on a point of order concerning Bill S-234, An Act to establish an assembly of the aboriginal peoples of Canada and an executive council. He asserted that the Bill infringes the financial prerogatives of the Crown, as embodied in provisions of the Constitution Act, 1867, and in Senate Rule 81. In support of this argument, Senator Comeau cited various clauses of the Bill dealing with specific details of the proposed aboriginal peoples' assembly and the executive council. He particularly quoted clause 25, which would appropriate funds to pay the salaries of members. During his intervention Senator Comeau made reference to Beauchesne's, Bourinot, Erskine May, and a Senate Speaker's Ruling of October 23, 1991.
Senator Fraser expressed the contrary opinion. She emphasized that almost any legislative measure will involve some expenditure of public money. She suggested that, if "the principal purpose of that bill is to achieve a matter of public policy and the expenditure of public money is ancillary to that, it is in order for the Senate to study such a bill.'' Senator Ringuette made a similar point, also noting that many initiatives can have financial consequences.
Finally, Senator Baker remarked upon the considerable recent changes in financial procedures in Parliament. He focused on clause 52(2) of Bill S-234, to which Senator Comeau had also made reference. This clause establishes that no part of the Bill, except one clause that does not involve direct expenditures, can be brought into force "unless the appropriation of moneys for the purposes of this Act has been recommended by the Governor General and such moneys have been appropriated by Parliament.'' This clause was linked, by both Senators Baker and Comeau, to citation 611 of the sixth edition of Beauchesne's. That citation states that "A bill from the Senate, certain clauses of which would necessitate some public expenditure, is in order if it is provided by a clause of the said bill that no such expenditure shall be made unless previously sanctioned by Parliament.''
I thank all Honourable Senators for their helpful interventions on this complex and challenging matter.
Let me begin by remarking that Bill S-234 is a wide-ranging measure. If it continues before the Senate, numerous issues may have to be examined in detail. These could include points such as its potential effects on the fiduciary relationship between Her Majesty and the aboriginal peoples of Canada; on Parliament's power, under section 91 of the Constitution Act, 1867, to legislate on matters relating to aboriginal peoples and the lands reserved for their use; on the way Canadians are represented in Parliament; and on how citizens have input into the legislative and policy- making processes. The clauses of the Bill cover specific matters such as the role of the aboriginal peoples' assembly and the executive council, suffrage, committees, privilege, gender balance, First Ministers' conferences, conflict of interest, and languages. These are all very important issues.
The current point of order is focussed on the narrow, but critical, matter of whether Bill S-234 infringes the financial prerogative of the Crown. As noted at page 709 of Marleau and Montpetit, the financial prerogative means that "Under the Canadian system of government, the Crown alone initiates all public expenditure and Parliament may only authorize spending which has been recommended by the Governor General.'' An examination of Bill S-234 could indeed suggest that it does involve spending. Salaries, benefits, officers, the appropriation of funds, staffing, and the preparation of Estimates are all covered in the Bill. Any of these matters could, individually, make it fall into the class of bills covered by the citation from Marleau and Montpetit.
The key to this issue is, of course, clause 52(2). Under this clause, most of the Bill cannot come into force until funds have been recommended by the Governor General and appropriated by Parliament for the purposes of the Bill. No expenditure whatsoever would thus be incurred by the mere passage of Bill S-234, other than the drafting of the legislation required in clause 51, which should be viewed as a part of the normal operations of government. In particular, this means that clauses such as clause 25 can have no effect until the requisite funding to set up the assembly has been separately appropriated.
In considering the issue of the financial initiative of the Crown as applied in the Senate, Rule 81 is of central importance. This Rule prohibits consideration of "a bill appropriating public money that has not within the knowledge of the Senate been recommended by the Queen's representative.'' This Recommendation can only be given in the House of Commons.
When the term "appropriation'' is used, it is often used quite loosely. It does, however, have a narrower meaning. An appropriation is a sum of money allocated by Parliament for a specific purpose. As seen with supply bills, appropriations quite often fund entities whose legal framework has been separately established.
One must, therefore, consider whether Bill S-234 actually "appropriates'' money within this meaning. As already discussed, funds for the purposes of Bill S-234 will have to be separately appropriated or voted by Parliament, on the Governor General's recommendation, before the Bill can enter into force.
What Bill S-234 would actually do is set up a legal framework for subsequent action. Nothing can begin to happen to make this framework effective without a subsequent Royal Recommendation and appropriation by Parliament. The Bill, itself, does not actually authorize the appropriation of any funds. While the passage of the Bill would express a will on the part of Parliament to establish an aboriginal peoples' assembly and an executive council, the Crown would not actually be obliged to give the necessary Recommendation, so its initiative would not be impaired. If the Governor General did recommend the necessary funds, and Parliament appropriated them, that would have the known effect of allowing the Bill to be brought into force, with the resulting consequences.
Bill S-234 thus appears to respect fully the financial initiative of the Crown, since no funds are being or must be appropriated. As such, this Bill differs from Bill S-5, considered during the third Session of the thirty-fourth Parliament, which was ruled out of order in 1991 and to which reference was made in debate on this point of order. Bill S-5 sought to "redress the imbalance...in terms of the benefits accorded by law to Canada's war-time merchant seamen compared with those provided by law to the veterans of Canada's armed forces.'' That Bill, contrary to Bill S-234, would have entered into force upon receiving Royal Assent. As a consequence, it would have probably immediately required new appropriations to fund the expanded access to a benefit that it created. Because of these differences, the Ruling of October 23, 1991, is not entirely relevant to the present case.
The point of order raised special concerns about clause 24, which would authorize the preparation of Estimates for the assembly. Reference was made to Erskine May on this point. The measure in clause 24 seems to fall far short of the class of bills to which Erskine May refers. To repeat, most of Bill S-234 will not enter into force until an order to that effect is made. This cannot happen until the necessary funds have been appropriated from the Consolidated Revenue Fund, which in turn requires a Royal Recommendation. As already noted, passage of the Bill would express Parliament's desire for an aboriginal peoples' assembly and an executive council, but the Crown would not actually be obliged to give the necessary Recommendation, so its initiative would not be impaired.
Honourable Senators, citation 611 of Beauchesne's indicates that there are circumstances in which a Senate bill can deal with matters that might appear to have financial consequences, if the bill is carefully drafted to deal with the real restrictions that apply. Bill S-234 respects the financial initiative of the Crown, while allowing Parliament the opportunity to consider a new proposal. The Bill in no way incurs actual expenditures, it merely sets the stage for such expenditures to be incurred, if the Crown chooses to recommend them, and if Parliament chooses to appropriate these funds.
So, while recognizing the complexities of the issue, there are persuasive reasons for allowing debate on this Bill to continue. We must at all times be vigilant to ensure respect for the financial initiative of the Crown and for the role of the other place in spending and taxation. As I noted earlier, this is a challenging matter, and this point of order has been helpful in allowing a detailed consideration of these issues. In this specific case there is no obligation to appropriate new money imposed upon Her Majesty. Nothing can happen if funds are not properly appropriated following a Royal Recommendation. Preferring to err on the side of allowing Senators the largest opportunity possible to consider proposals, debate on this item can proceed.
The Senate resumed debate on the motion of the Honourable Senator Gill, seconded by the Honourable Senator Watt, for the second reading of Bill S-234.
The Honourable Senator Comeau moved, seconded by the Honourable Senator Oliver, that the debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Orders No. 5 and 6 were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Mitchell, seconded by the Honourable Senator Hubley, for the second reading of Bill S-228, An Act to amend the Canadian Wheat Board Act (board of directors).
The question was put on the motion.
With leave of the Senate, a standing vote was deferred until 3:30 p.m. tomorrow, with the bells to sound at 3:15 p.m. for fifteen minutes.
Resuming debate on the motion of the Honourable Senator Grafstein, seconded by the Honourable Senator Corbin, for the second reading of Bill S-233, An Act to amend the Library and Archives of Canada Act (National Portrait Gallery).
After debate,
The Honourable Senator Di Nino, for the Honourable Senator Stratton, 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.
Orders No. 9 to 15 were called and postponed until the next sitting.
Commons Public Bills
Orders No. 1 and 2 were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Comeau, seconded by the Honourable Senator Di Nino, for the second reading of Bill C-299, An Act to amend the Criminal Code (identification information obtained by fraud or false pretence).
The question being put on the motion, it was adopted.
The bill was then read the second time.
The Honourable Senator Comeau moved, seconded by the Honourable Senator Oliver, 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.
Resuming debate on the motion of the Honourable Senator Johnson, seconded by the Honourable Senator Segal, for the second reading of Bill C-428, An Act to amend the Controlled Drugs and Substances Act (methamphetamine).
The question being put on the motion, it was adopted.
The bill was then read the second time.
The Honourable Senator Comeau moved, seconded by the Honourable Senator Johnson, 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.
Reports of Committees
Consideration of the fifth report (interim) of the Standing Senate Committee on Aboriginal Peoples entitled: Honouring the Spirit of Modern Treaties: Closing the Loopholes, tabled in the Senate on May 15, 2008.
The Honourable Senator St. Germain, P.C., moved, seconded by the Honourable Senator Champagne, P.C., that the report be adopted.
The question being put on the motion, it was adopted.
Orders No. 2 to 7 were called and postponed until the next sitting.
Other
Orders No. 69 (motion), 7, 8, 11, 13 (inquiries), 11, 6, 85 (motions), 14 (inquiry), 88, 68 (motions) and 16 (inquiry) were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Dallaire, seconded by the Honourable Senator Day:
That the Senate call on the Government of Canada to negotiate with the Government of the United States of America the immediate repatriation to Canada of Canadian citizen and former child soldier Omar Khadr from the Guantánamo Bay detention facility;
That the Senate urge the Government of Canada to undertake all necessary measures to promote his rehabilitation, in accordance with this country's international obligations on child rights in armed conflicts, namely the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict; and
That a message be sent to the House of Commons to acquaint that House with the above.
After debate,
The Honourable Senator Goldstein moved, seconded by the Honourable Senator Watt, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Orders No. 96, 79, 78 (motions), 4, 12, 9, 3 (inquiries), 76 (motion), 10 (inquiry) and 3 (motion) were called and postponed until the next sitting.
INQUIRIES
The Honourable Senator Hubley called the attention of the Senate to the Oslo Process and efforts to ban the use, production and trade of cluster munitions.
Debate concluded.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Reports of the Canadian International Trade Tribunal for the fiscal year ended March 31, 2008, 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. 2/39- 592.
Reports of the Canadian Air Transport Security Authority for the fiscal year ended March 31, 2008, 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. 2/39- 593.
Reports of the Parc Downsview Park Inc. for the fiscal year ended March 31, 2008, 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. 2/39-594.
Summaries of the Amended Corporate Plan for 2007-2011 and of the Operating and Capital Budgets for 2007 of VIA Rail Canada Inc., pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 125(4).—Sessional Paper No. 2/39-595.
Amended summaries of the Corporate Plan for 2005-2009 and Operating and Capital Budgets for 2005 of the Great Lakes Pilotage Authority, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 125(4).—Sessional Paper No. 2/39-596.
Reports of Farm Credit Canada for the fiscal year ended March 31, 2008, 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. 2/39-597.
ADJOURNMENT
The Honourable Senator Comeau moved, seconded by the Honourable Senator Stratton:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 4:31 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 Banking, Trade and Commerce
The names of the Honourable Senators Cowan and Jaffer substituted for those of the Honourable Senators Jaffer and Cowan (May 15).
Standing Joint Committee on the Library of Parliament
The name of the Honourable Senator Rompkey substituted for that of the Honourable Senator Banks (May 15).
Standing Senate Committee on Official Languages
The name of the Honourable Senator Munson substituted for that of the Honourable Senator Chaput (May 26).
The name of the Honourable Senator Chaput substituted for that of the Honourable Senator Munson (May 27).
Standing Senate Committee on National Finance
The names of the Honourable Senators Dawson and De Bané substituted for those of the Honourable Senators De Bané and Dawson (May 27).