Journals of the Senate
58 Elizabeth II, A.D. 2009, Canada
Journals of the Senate
2nd Session, 40th Parliament
Issue 11
Tuesday, February 24, 2009
2:00 p.m.
The Honourable Noël A. Kinsella, Speaker
The Members convened were:
The Honourable Senators
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Bacon, Baker, Banks, Brazeau, Bryden, Callbeck, Campbell, Carstairs, Champagne, Chaput, Cochrane, Comeau, Cook, Corbin, Cordy, Cowan, Dallaire, Dawson, Day, De Bané, Di Nino, Dickson, Downe, Duffy, Eaton, Eggleton, Fairbairn, Fortin-Duplessis, Fox, Fraser, Furey, Gerstein, Goldstein, Greene, Harb, Hervieux-Payette, Housakos, Hubley, Jaffer, Kenny, Kinsella, Lang, Lapointe, LeBreton, Losier-Cool, MacDonald, Mahovlich, Manning, Martin, Massicotte, McCoy, Meighen, Mercer, Merchant, Milne, Mitchell, Mockler, Munson, Murray, Nancy Ruth, Neufeld, Nolin, Oliver, Peterson, Phalen, Prud'homme, Raine, Ringuette, Rivard, Rivest, Robichaud, Rompkey, Segal, Sibbeston, Smith, Spivak, St. Germain, Stollery, Stratton, Tardif, Tkachuk, Wallace, Wallin, Watt, Zimmer
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Bacon, Baker, Banks, Brazeau, Bryden, Callbeck, Campbell, Carstairs, Champagne, Chaput, Cochrane, Comeau, Cook, Corbin, Cordy, Cowan, Dallaire, Dawson, Day, De Bané, Di Nino, Dickson, Downe, Duffy, Eaton, Eggleton, Fairbairn, Fortin-Duplessis, Fox, Fraser, Furey, Gerstein, Goldstein, *Grafstein, Greene, Harb, Hervieux-Payette, Housakos, Hubley, Jaffer, *Johnson, Kenny, Kinsella, Lang, Lapointe, LeBreton, Losier-Cool, MacDonald, Mahovlich, Manning, Martin, Massicotte, McCoy, Meighen, Mercer, Merchant, Milne, Mitchell, Mockler, Munson, Murray, Nancy Ruth, Neufeld, Nolin, Oliver, Peterson, Phalen, Prud'homme, Raine, Ringuette, Rivard, Rivest, Robichaud, Rompkey, Segal, Sibbeston, Smith, Spivak, St. Germain, Stollery, Stratton, Tardif, Tkachuk, Wallace, Wallin, Watt, Zimmer
The first list records senators present in the Senate Chamber during the course of the sitting.
An asterisk in the second list indicates a senator who, while not present during the sitting, was in attendance to business, as defined in subsections 8(2) and (3) of the Senators Attendance Policy.
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Tabling of Documents
The Honourable Senator Comeau tabled the following:
Report of the Office of the Correctional Investigator for the fiscal year ended March 31, 2008, pursuant to the Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 192.—Sessional Paper No. 2/40-152.
2007 Annual Report on the RCMP's Use of the Law Enforcement Justification Provisions, pursuant to the Criminal Code, R.S.C. 1985, c. C-46, s. 25.3.—Sessional Paper No. 2/40-153.
Report of the Canadian Wheat Board, together with the Auditors' Report, for the crop year ended July 31, 2008, pursuant to the Canadian Wheat Board Act, R.S.C. 1985, c. C-24, sbs. 9(2). —Sessional Paper No. 2/40-154.
Report of the Implementation Committee on the Gwich'in Comprehensive Land Claim Agreement for the fiscal year 2004-2005.—Sessional Paper No. 2/40-155.
Report of the Nunatsiavut Final Agreement Implementation Coordinating Committee for the period of December 1, 2005 to March 31, 2007.—Sessional Paper No. 2/40-156.
Presentation of Reports from Standing or Special Committees
The Honourable Senator St. Germain, P.C., tabled the following (Sessional Paper No. 2/40-157S):
Tuesday, February 24, 2009
The Standing Senate Committee on Aboriginal Peoples has the honour to table its
FIRST REPORT
Your committee, which was authorized by the Senate to incur expenses for the purpose of its examination and consideration of such matters as were referred to it, reports, pursuant to rule 104(2), that the expenses incurred for that purpose during the Second Session of the Thirty-ninth Parliament are as follows:
1. With respect to its studies of legislation:
Professional and Other Services $ 2,728 Transport and Communications — All other expenditures — Witness Expenses 1,251 TOTAL $ 3,979
2. With respect to its special study on the federal government's constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Metis peoples and on other matters generally relating to the Aboriginal Peoples of Canada:
Professional and Other Services $ 12,700 Transport and Communications 57,367 All other expenditures 28 Witness Expenses 5,060 TOTAL $ 75,155
In addition to the expenses for the examination of legislation and for its special study as set out above, your committee also incurred general postal charges in the amount of $85.
Your committee examined 3 bills, which it reported without amendment:
Bill C-30, An Act to establish the Specific Claims Tribunal and to make consequential amendments to other Acts; Bill C-34, An Act to give effect to the Tsawwassen First Nation Final Agreement and to make consequential amendments to other Acts; and Bill C-292, An Act to implement the Kelowna Accord.
During the session under consideration, your committee considered 6 orders of reference, including 3 bills, held 25 meetings, and heard more than 38 hours of testimony from 70 witnesses. In total, your committee produced 7 reports.
Respectfully submitted,
GERRY ST. GERMAIN
Chair
° ° °
The Honourable Senator Oliver tabled the following (Sessional Paper No. 2/40-158S):
Tuesday, February 24, 2009
The Standing Committee on Rules, Procedures and the Rights of Parliament has the honour to table its
FIRST REPORT
Your committee, which was authorized by the Senate to incur expenses for the purpose of its examination and consideration of such matters as were referred to it, reports, pursuant to rule 104(2), that the expenses incurred for that purpose during the Second Session of the Thirty-ninth Parliament were as follows:
1. With respect to its studies of legislation:
Transportation and Communications $ — Professional and Other Services — All Other Expenditures — Witness Expenses — TOTAL $ —
2. With respect to its special study on the use of Aboriginal languages in the Senate Chamber:
Transportation and Communications $ 28,791.68 Professional and Other Services — All Other Expenditures — Witness Expenses —. TOTAL $ 28,791.68
During the session under consideration, your committee considered three orders of reference, including one bill, and held five meetings. In total, your committee produced five reports.
The Second Report of your committee, which was presented to the Senate on November 20, 2007, recommended amendments to the Rules of the Senate to provide for a mechanism for the reinstatement of bills from the previous session of the same Parliament. The report was debated, but was not adopted.
Your committee's third report recommended an amendment to the Rules of the Senate in respect of questions of privilege and points of order. The report was presented on November 20, 2007, and was debated but not adopted by the Senate.
Your committee's fifth report recommended the implementation of a pilot project involving the use of Inuktitut in the Senate Chamber and, eventually, for the proceedings of the Standing Committee on Aboriginal Peoples and the Standing Committee on Fisheries and Oceans. The report was presented on April 9, 2008, and adopted on May 14, 2008.
Respectfully submitted,
DONALD H. OLIVER
Chair
° ° °
The Honourable Senator Chaput tabled the following (Sessional Paper No. 2/40-159S):
Tuesday, February 24, 2009
The Standing Senate Committee on Official Languages has the honour to table its
FIRST REPORT
Your committee, which was authorized by the Senate to incur expenses for the purpose of its examination and consideration of such matters as were referred to it, reports, pursuant to Rule 104(2), that the expenses incurred for that purpose during the Second Session of the Thirty-ninth Parliament are as follows:
With respect to its special study on the application of the Official Languages Act and of the regulations and directives made under it, within those institutions subject to the Act:
Professional and Other Services $ 15,410 Transportation and Communications 28,655 All Other Expenditures 1,953 Witness Expenditures 17,702 TOTAL $ 63,720
In addition to the expenses for its special study as set out above, your committee also incurred general postal charges in the amount of $18.
During the session under consideration, your committee considered 1 order of reference, held 22 meetings and heard 71 testimonies over a total of 38.5 hours. In total, your committee produced 6 reports.
Respectfully submitted,
MARIA CHAPUT
Chair
° ° °
The Honourable Senator Andreychuk tabled the following (Sessional Paper No. 2/40-160S):
Tuesday, February 24, 2009
The Standing Senate Committee on Human Rights has the honour to table its
FIRST REPORT
Your committee, which was authorized by the Senate to incur expenses for the purpose of its examination and consideration of such matters as were referred to it, reports, pursuant to Rule 104(2), that the expenses incurred for that purpose during the Second Session of the Thirty-ninth Parliament are as follows:
1. With respect to its studies of legislation:
Professional and Other Services $ 3,875 Transport and Communications — All other expenditures — Witness Expenses 4,763 TOTAL $ 8,638
Your committee examined 4 bills, 2 of which were reported without amendment:
Bill C-21, An Act to amend the Canadian Human Rights Act;
Bill C-42, An Act to amend the Museums Act and to make consequential amendments to other Acts.
Your committee reported the following bill with amendments:
Bill C-280, An Act to Amend the Immigration and Refugee Protection Act (coming into force of section 110, 111 and 171).
Finally, your committee was referred the following bill, but did not complete its examination prior to the dissolution of the 39th Parliament:
Bill S-218, An Act to amend the Immigration and Refugee Protection Act and to enact certain other measures, in order to provide assistance and protection to victims of human trafficking.
2. With respect to its special study on the employment equity in the federal public service:
Professional and Other Services $ 1,410 Transport and Communications — All other expenditures — Witness Expenses 3,724 TOTAL $ 5,134
3. With respect to monitoring the implementation of recommendations contained in the Committee's report entitled Children: The Silenced Citizens: Effective Implementation of Canada's International Obligations with Respect to the Rights of Children, tabled in the Senate on April 25, 2007:
Professional and Other Services $ 1,021 Transport and Communications 92,994 All other expenditures 28 Witness Expenses 2,185 TOTAL $ 96,228
In addition to the expenses for the examination of legislation and for its special studies as set out above, your committee also incurred general postal charges in the amount of $70.00.
During the session under consideration, your committee considered 9 orders of reference, including 4 bills, held 18 meetings and heard more than 40 hours of testimony from 105 witnesses. In total, your committee produced 13 reports.
Respectfully submitted,
A. RAYNELL ANDREYCHUK
Chair
Tabling of Reports from Inter-Parliamentary Delegations
The Honourable Senator Robichaud, P.C., tabled the following:
Report of the Canadian Delegation of the Canada-Japan Inter-Parliamentary Group respecting its participation at the Sixteenth Annual Bilateral Meeting with the Japan-Canada Diet Friendship League, held in Tokyo and Hokkaido, Japan, from July 16 to 23, 2008.—Sessional Paper No. 2/40-161.
° ° °
The Honourable Senator Day tabled the following:
Report of the Canadian Delegation of the Canada-China Legislative Association respecting the Annual Co-chairs' visit to Beijing, the Guangxi Zhuang Autonomous Region (Nanning, Guilin) and Hong Kong, China, from March 17 to 21, 2008. —Sessional Paper No. 2/40-162.
Report of the Canadian Delegation of the Canada-China Legislative Association and the Canada-Japan Inter- Parliamentary Group respecting its participation at the 29th General Assembly of the ASEAN Inter-Parliamentary Assembly, held in Singapore, from August 18 to 22, 2008. —Sessional Paper No. 2/40-163.
Report of the Canadian Delegation of the Canada-China Legislative Association and the Canada-Japan Inter- Parliamentary Group respecting its participation at the Second Parliamentarians' Workshop of the Asia Pacific Parliamentarians' Conference on Environment and Development, held in Seoul, Korea, on November 1 and 2, 2008.—Sessional Paper No. 2/40-164.
The Honourable Senator Tkachuk tabled the following:
Report of the Canadian Delegation of the Canada-Japan Inter-Parliamentary Group respecting the Annual Co- Chair's visit to Tokyo, Japan, from April 21 to 25, 2008.—Sessional Paper No. 2/40-165.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Cochrane, seconded by the Honourable Senator Rivard, for the second reading of Bill S-3, An Act to amend the Energy Efficiency Act.
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 Stratton, that the bill be referred to the Standing Senate Committee on Energy, the Environment and Natural Resources.
The question being put on the motion, it was adopted.
° ° °
Resuming debate on the motion of the Honourable Senator Tkachuk, seconded by the Honourable Senator Raine, for the second reading of Bill S-2, An Act to amend the Customs Act.
After debate,
The Honourable Senator Tardif moved, seconded by the Honourable Senator Rompkey, P.C., that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
° ° °
Second reading of Bill C-12, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2009.
The Honourable Senator Gerstein moved, seconded by the Honourable Senator Martin, that the bill be read the second time.
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 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.
Inquiries
Resuming debate on the inquiry of the Honourable Senator Comeau calling the attention of the Senate to the budget entitled Canada's Economic Action Plan, tabled in the House of Commons on January 27, 2009 by the Minister of Finance, the Honourable James M. Flaherty, P.C., M.P., and in the Senate on January 28, 2009.
After debate,
The Honourable Senator Comeau moved, seconded by the Honourable Senator Andreychuk, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Motions
Resuming debate on the motion of the Honourable Senator Fortin-Duplessis, seconded by the Honourable Senator Gerstein:
That the following Address be presented to Her Excellency the Governor General of Canada:
To Her Excellency the Right Honourable Michaëlle Jean, Chancellor and Principal Companion of the Order of Canada, Chancellor and Commander of the Order of Military Merit, Chancellor and Commander of the Order of Merit of the Police Forces, Governor General and Commander-in-Chief of Canada.
MAY IT PLEASE YOUR EXCELLENCY:
We, Her Majesty's most loyal and dutiful subjects, the Senate of Canada in Parliament assembled, beg leave to offer our humble thanks to Your Excellency for the gracious Speech which Your Excellency has addressed to both Houses of Parliament.
After debate,
The Honourable Senator Andreychuk moved, seconded by the Honourable Senator Brazeau, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
° ° °
The Honourable Senator Comeau moved, seconded by the Honourable Senator Di Nino:
That the Standing Senate Committee on Foreign Affairs and International Trade be empowered to review and report on the 2008 Legislative Review of Export Development Canada, tabled in the Senate on Tuesday, February 10, 2009.
The question being put on the motion, it was adopted.
° ° °
The Honourable Senator Comeau moved, seconded by the Honourable Senator Andreychuk:
That the Standing Senate Committee on National Finance be authorized to examine and report upon the expenditures set out in Supplementary Estimates (C) for the fiscal year ending March 31, 2009, with the exception of Parliament Vote 15.
The question being put on the motion, it was adopted.
The Honourable Senator Comeau moved, seconded by the Honourable Senator Oliver:
That the Standing Joint Committee on the Library of Parliament be authorized to examine and report upon the expenditures set out in Parliament Vote 15 of Supplementary Estimates (C) for the fiscal year ending March 31, 2009; and
That a message be sent to the House of Commons to acquaint that House accordingly.
The question being put on the motion, it was adopted.
OTHER BUSINESS
Ordered, that, notwithstanding Rule 18(4), any appeals relating to the Speaker's rulings with respect to points of order already raised on bills S-201, S-203, S-204, and S-207 be made at the start of Orders of the Day at the sitting following the day on which the rulings are given.
SPEAKER'S RULINGS
(Bill S-204)
On February 3, after Senator Spivak had spoken to her motion for the second reading of Bill S-204, An Act to amend the National Capital Act (establishment and protection of Gatineau Park), Senator Nolin rose on a point of order. Referring to the Constitution Act, 1867, he asserted that the bill requires a Royal Recommendation. As a consequence, he maintained that the bill cannot continue before the Senate.
Senators Fraser and Spivak both urged that the bill does not require a Royal Recommendation. Senator Banks, for his part, referred to Senator Spivak's speech, and noted that the National Capital Commission already acquires and sells property, and this bill would simply set up the park. The commission could, he maintained, act without new appropriation.
This question is one that has come up in the Senate on a number of recent occasions. It may, therefore, be helpful to consider some of the fundamental points at issue. As noted in Marleau and Montpetit, at page 709, the financial prerogative of the Crown means that "Under the Canadian system of government, the Crown alone initiates all public expenditures and Parliament may only authorize spending which has been recommended by the Governor General.'' This principle is reflected in Senate rule 81, which states that "The Senate shall not proceed upon a bill appropriating public money that has not within the knowledge of the Senate been recommended by the Queen's representative.'' The rule itself embodies some of the obligations imposed by sections 53 and 54 of the Constitution Act, 1867.
The Royal Recommendation is the concrete expression of the financial initiative of the Crown and is signalled to the House of Commons. Since the 1970s, the Recommendation has followed a standard form: "Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled...,'' followed by the bill's title. In February 1990, the Standing Senate Committee on National Finance raised questions about this general wording, noting "that the form of the royal recommendation now used does not serve to make clear what, if any, appropriation (s) the ministers are seeking by bills to which royal recommendations are appended.''
The procedural authorities, including Speaker's rulings, Marleau and Montpetit, Beauchesne, and Erskine May, indicate that a number of criteria must be considered when seeking to ascertain whether a bill requires a Royal Recommendation. First, a basic question is whether the bill contains a clause that directly appropriates money. Second, a provision allowing a novel expenditure not already authorized in law would typically require a Royal Recommendation. A third and similar criterion is that a bill to broaden the purpose of an expenditure already authorized will in most cases need a Royal Recommendation. Finally, a measure extending benefits or relaxing qualifying conditions to receive a benefit would usually bring the Royal Recommendation into play.
On the other hand, a bill simply structuring how a department or agency will perform functions already authorized under law, without adding new duties, would most likely not require a Recommendation. In the same way, a bill that would only impose minor administrative expenses on a department or agency would probably not trigger this requirement.
The list of factors enumerated here is not exhaustive, and each bill must be evaluated in light of these points and any others at play. It certainly is not the case that every bill having any monetary implication whatsoever automatically requires a Royal Recommendation. When dealing with such issues, the Speaker's role is to examine the text of the bill itself, sometimes within the context of its parent act. Of course, the Speaker, in making this assessment, seeks to avoid interpreting constitutional issues or questions of law.
The senator raising a point of order has a responsibility to present evidence and explain to the Senate why a Royal Recommendation is required, linking it to what the text before the Senate would actually require, not optional decisions that may or may not be made at some point after a bill is passed. Given the nature of the legislative process, senators may sometimes wish to delay raising a point of order until later stages, since committee hearings will often provide greater clarity on what a bill's provisions will entail and how they will have to operate.
In situations where the analysis is ambiguous, several Senate Speakers have expressed a preference for presuming a matter to be in order, unless and until the contrary position is established. This bias in favour of allowing debate, except where a matter is clearly out of order, is fundamental to maintaining the Senate's role as a chamber of discussion and reflection.
To be clear, however, a bill appropriating public money cannot be initiated in the Senate. To repeat, rule 81 establishes that "The Senate shall not proceed upon'' such a bill. Thus, once it is determined that a Senate bill does infringe rule 81, it is not possible to make amendments that could correct the situation, since the bill cannot be dealt with further. The Royal Recommendation is, therefore, quite different from the Royal Consent, which relates to the requirement for the Governor General to signal agreement to Parliament considering a bill that would affect the prerogative powers of the Crown. As previous rulings have stated, in most instances the Royal Consent can be signalled up to the time a bill receives third reading.
To turn to the specific provisions of the bill before the Senate, the National Capital Commission already has considerable discretion when it comes to acquiring and selling land. As has been noted in some Senate committee hearings in recent years, the commission can buy and sell land in the National Capital Region largely at its own discretion. This power exists in the National Capital Act, specifically in subsection 10(2). That act also indicates that one of the commission's goals is to plan and assist in the development and conservation of the National Capital Region.
A reading of Bill S-204 shows that it would establish Gatineau Park and set its boundaries. The bill also allows for the expansion, but not the contraction, of the park. Of basic importance, the National Capital Commission would also have a right of first refusal on any land sold within the park, but is not compelled to purchase such land.
In relation to the management of the park, clause 4 of the bill states that the "Maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes, shall be the first priority of the Commission.'' Such legislative direction appears to be generally in keeping with the commission's existing goals.
Overall, the bill does not appear to involve any evident novel expenses. Instead, what it does do is establish Gatineau Park, direct priorities in its management, and allow, but not compel, the commission to purchase land if it comes up for sale, as it can already do. When viewed in the context of existing powers, none of these initiatives seem to involve new funding. Instead, Parliament would be guiding how the commission should exercise the discretionary authority it currently has. In particular, nothing in the bill indicates that the commission would be obliged to purchase land in the park. Its discretion in this regard would remain unfettered.
While it is true that the bill does prohibit the sale of public lands within the park, this limitation is not an expenditure, and certainly not an appropriation.
This analysis of Bill S-204 suggests that it does not require expenditures, whether new or distinct, since the direction the bill would give the commission fits within its existing larger powers. Accordingly, the ruling is that this bill does not require a Royal Recommendation, and debate at second reading of this bill can continue.
(Bill S-201)
On February 3, after Senator Grafstein had spoken to his motion for the second reading of Bill S-201, An Act to amend the Library and Archives of Canada Act (National Portrait Gallery), Senator Comeau rose on a point of order. While refraining from commenting on the merits of the bill, he suggested that it incurs increased government spending and should be ruled out of order since it lacks the Royal Recommendation. In making his argument, he referred to the Constitution Act, 1867, Bourinot, Erskine May, Senate rule 81, as well as a previous Speaker's ruling.
Senator Grafstein challenged this interpretation, as did Senators Tardif and Fraser. They noted the need for caution in rejecting any bill so early in the legislative process. Reference was also made to the February 20, 2007, ruling on Bill S-221 when asserting that the fact that a bill has some monetary implications does not automatically mean it needs a Royal Recommendation or that it must be introduced in the other place. Finally, Senator Nolin drew the Senate's attention to specific provisions of the bill, which he saw as requiring expenditures of public funds.
As was noted in the cited ruling on bill S-221, a bill should be examined in terms of what it declares itself to be, that is to say in terms of its actual wording. The text of Bill S-201 appears quite limited: a property already owned by the government must be used by the Library and Archives of Canada to display portraits and other artistic works, and the public must have access to this exhibit. This display is to be called the "National Portrait Gallery.'' Nothing in the bill indicates how large this gallery is to be, or how many portraits are to be displayed. The text of the bill itself does not seem to require a large project of the type envisioned in previous iterations. A major undertaking would be an option, but is not mandated by this bill.
No part of Bill S-201 discusses an appropriation of the public revenue, or the levying of any tax or impost. Are expenditures involved in the actions required by the bill? Almost certainly. Whether these expenditures are new, however, is less clear. Under the Library and Archives of Canada Act, that organization can put on exhibitions that make known the documentary heritage of Canada. In doing this, it can access its rich art collection. The bill thus appears to guide or structure how part of an existing role of the Library and Archives of Canada is to be performed. Consequently, it is far from certain that this bill would incur novel expenditures, as opposed to possibly reallocating existing funds.
During his second reading speech, Senator Grafstein indicated that some expenditures had already been made for the portrait gallery project. To better understand this situation, estimates and supply bills for recent years were reviewed. This confirmed that money was in fact allocated for the purpose of developing a portrait gallery as a program activity of Library and Archives of Canada. Thus, it would seem, these funds were assigned under the ongoing authority of the current Library and Archives of Canada Act. The portrait gallery was encompassed in Library and Archives of Canada's existing mandate and objects, and has not been conceived of as a separate, stand-alone, public institution.
While one might suspect that there will be expenses as the bill is implemented, the bill itself does not require or authorize them. Whether they are incurred would depend on separate decisions as to how the measure is implemented. If new monies are deemed necessary as the project advances, they would be provided by the normal funding process.
Preferring to err on the side of allowing senators the opportunity to consider matters when they are not clearly out of order, the ruling is that this bill is in order, and debate at second reading can continue.
(Bill S-203)
On February 4, during questions following Senator Grafstein's speech on his motion for the second reading of Bill S-203, An Act to amend the Business Development Bank of Canada Act (municipal infrastructure bonds) and to make consequential amendments to another Act, Senator Nolin rose on a point of order. He claimed that the bill appropriates funds from the Consolidated Revenue Fund and is therefore out of order because it does not have a Royal Recommendation.
A number of senators, including Senators Comeau, Tardif, and Fraser, spoke to the matter. It became apparent that two distinct issues could be involved. Senator Nolin's basic concern was that a tax exemption and consequent reduction in government revenue, which the bill provides for, is actually the equivalent of an appropriation of public funds. A second issue, to which mention was also made, although not extensively explored, was that the bill would appear to change the mandate of the Business Development Bank of Canada.
On the first point, as to whether a reduction in a tax is an appropriation, authorities and precedents are clear. Marleau and Montpetit states, at page 711, that "a royal recommendation is not required for an amendment whose effect is to reduce taxes otherwise payable.'' Beauchesne, at citation 603, also notes that tax measures do not require a Royal Recommendation. As the first quote makes clear, this includes reductions in the incidence of a tax. Likewise, Erskine May indicates that "Provisions for the alleviation of taxation are not subject to the rules of financial procedure,'' at page 901 of the 23rd edition.
In the Senate, the May 11, 2006, decision on Bill S-212, to which Senator Tardif referred, made clear that a measure to reduce taxes is in order. Although that particular bill was finally determined to be out of order, this was because of other provisions, not the proposal to reduce tax rates. It may also be noted that, since tax relief is clearly not a tax imposition, the issue of the bill having to originate in the House of Commons, under section 53 of the Constitution Act, 1867, does not arise.
From this, it is evident that the first concern in the point of order, that a measure to reduce taxes is an appropriation, is not valid.
The second concern relates to the fact that Bill S-203, in clause 2, expands the purposes of the Business Development Bank of Canada. Be that as it may, the bill does not contain any provisions appropriating money; indeed it is not immediately evident how often the bank receives appropriations. Although the bill may impose some administrative burdens, arguments did not establish that the new responsibilities would automatically incur new public expenditures or could not be accommodated by reallocating existing resources.
On this point, it is helpful to refer to Erskine May and what it says about "Minor administrative expenses,'' which do not need a Royal Recommendation. This is at page 888 of the 23rd edition. As already noted, the actual text of Bill S-203 does not make clear that anything more would be required.
As has been noted in previous rulings by several Senate Speakers, matters should be presumed to be in order unless the opposite is established. In light of the available information, the ruling is that the point of order has not been established, and debate on the motion for second reading of Bill S-203 can continue.
(Bill S-207)
On January 29, after Senator Carstairs had spoken to her motion for the second reading of Bill S-207, An Act to amend the Employment Insurance Act (foreign postings), Senator Comeau rose on a point of order. He argued that the bill needs a Royal Recommendation. While recognizing that the bill may have merits, he cited Beauchesne and rulings from the other place, stating that it could incur expenses not currently authorized by law. This issue arises because the bill would extend access to employment insurance to some individuals who do not now qualify. In keeping with rule 81, Senator Comeau asserted that the bill cannot be considered by the Senate.
By way of response, Senator Carstairs expressed concern that a restrictive approach could hamper senators' ability to introduce bills in the future. She also noted that the bill had been brought forward in several previous sessions without objection. Senator Fraser took up some of these points and suggested that, because this is not a supply bill, it should be given the benefit of the doubt. If amendments are required, she proposed that they could be made before the bill leaves the Senate. Senators Kenny and Tardif also spoke in favour of keeping the bill on the Order Paper. Finally, Senator Nolin drew the Senate's attention to sections 53 and 54 of the Constitution Act, 1867, arguing that the bill does not respect their provisions and is out of order.
Before addressing the merits of the specific case, the matter of when a point of order can be raised requires some clarification. A ruling of February 26, 2008, noted that "A point of order ... can be raised at any point during debate.'' Unlike a question of privilege under rule 43, timing is not always a critical issue. Although it is preferable that a point of order be brought to the Senate's attention as soon as a senator becomes aware of the issue, it is not an absolute requirement that the matter be raised at the first possible instance. This said, the matter must be raised before the question has passed to a stage at which the objection would be out of place—for a bill this would be before a decision at third reading. A point of order certainly can be raised on a bill reintroduced in a new session.
As to the concern that senators could be impeded in bringing in legislation, this must be balanced against the need for a scrupulous respect for the financial prerogative of the Crown, which is reflected in our own rules and cannot be ignored. As the recent rulings demonstrate, each time a point of order like this one is raised, the bill is examined in terms of its potential monetary implications. As senators know, such concerns do not always prove to be valid. The actual merit of a particular bill, however, is not the issue when faced with the possible need for a Royal Recommendation.
As was noted in the ruling a few moments ago on Bill S-204, measures to extend the purposes of payments already authorized by statute or to relax conditions to be met typically require the Royal Recommendation. Marleau and Montpetit, at page 711, states that "An amendment which either increases the amount of an appropriation, or extends its objects, purposes, conditions and qualifications is inadmissible on the grounds that it infringes on the Crown's financial initiative.'' A similar point is made at citation 596 of Beauchesne, to which Senator Comeau referred, and in the 23rd edition of Erskine May, at page 857. This obligation to respect the Royal Recommendation applies not just to amendments, but also to amending bills.
None of the arguments raised challenged the basic point that Bill S-207 would extend employment insurance benefits to some individuals who do not currently qualify for them. The bill would relax the conditions that must be met in order to receive employment insurance benefits for certain individuals who accompany their spouse or common law partner when posted abroad, by allowing them to extend their qualifying period up to a limit set in the bill. Such individuals cannot now have this period overseas discounted when determining whether they qualify for benefits. The proposal in Bill S-207 to extend access to a benefit enlarges the scheme of entitlements in the Employment Insurance Act, and, consequently, it requires a Royal Recommendation.
The ruling is, therefore, that this bill is out of order. Debate at second reading cannot continue, and the bill shall be withdrawn from the Order Paper.
(Accordingly, the Order of the Day for the second reading of Bill S-207, An Act to amend the Employment Insurance Act (foreign postings), was discharged and, by order, the Bill withdrawn.)
Senate Public Bills
Orders No. 1 to 10 were called and postponed until the next sitting.
° ° °
Second reading of Bill S-223, An Act to amend the Immigration and Refugee Protection Act and to enact certain other measures in order to provide assistance and protection to victims of human trafficking.
The Honourable Senator Phalen moved, seconded by the Honourable Senator Banks, that the bill be read the second time.
After debate,
The Honourable Senator Comeau, for the Honourable Senator Dickson, moved, seconded by the Honourable Senator Di Nino, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
° ° °
Orders No. 12 to 27 were called and postponed until the next sitting.
Other
Orders No. 4, 2, 1 (inquiries), 10, 4 and 3 (motions) were called and postponed until the next sitting.
MOTIONS
The Honourable Senator Fraser moved, seconded by the Honourable Senator Rompkey, P.C.:
That the Standing Senate Committee on Legal and Constitutional Affairs be authorized to examine and report on the provisions and operation of An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act (S.C. 2008, c. 29); and
That the committee submit its final report no later than June 30, 2009.
The question being put on the motion, it was adopted.
° ° °
The Honourable Senator Di Nino moved, seconded by the Honourable Senator Oliver:
That the Standing Senate Committee on Foreign Affairs and International Trade, in accordance with Rule 86(1)(h), be authorized to examine such issues as may arise from time to time relating to foreign relations and international trade generally; and
That the committee report to the Senate no later than June 30, 2010.
The question being put on the motion, it was adopted.
° ° °
The Honourable Senator Di Nino moved, seconded by the Honourable Senator Champagne, P.C.:
That the Standing Senate Committee on Foreign Affairs and International Trade be authorized to examine and report on the rise of China, India and Russia in the global economy and the implications for Canadian policy;
That the papers and evidence received and taken and the work accomplished by the committee on this subject during the Second Session of the Thirty-ninth Parliament be referred to the committee; and
That the committee present its final report no later than June 30, 2010, and retain all powers necessary to publicize its findings until September 30, 2010.
After debate,
The question being put on the motion, it was adopted.
° ° °
The Honourable Senator Eggleton, P.C., moved, seconded by the Honourable Senator Jaffer:
That the Standing Senate Committee on Social Affairs, Science and Technology be authorized to examine the state of early learning and child care in Canada in view of the OECD report Starting Strong II, released on September 21-22, 2006 and rating Canada last among 14 countries on spending on early learning and child care programs, which stated "... national and provincial policy for the early education and care of young children in Canada is still in its initial stages... and coverage is low compared to other OECD countries'';
That the committee study and report on the OECD challenge that "...significant energies and funding will need to be invested in the field to create a universal system in tune with the needs of a full employment economy, with gender equity and with new understandings of how young children develop and learn'';
That the papers and evidence received and taken and work accomplished by the committee on this subject since the beginning of the First Session of the Thirty-Ninth Parliament be referred to the committee; and
That the committee submit its final report no later than June 30, 2009, and that the committee retain all powers necessary to publicize its findings until 180 days after the tabling of the final report.
The question being put on the motion, it was adopted.
° ° °
The Honourable Senator Eggleton, P.C., moved, seconded by the Honourable Senator Fairbairn, P.C.:
That the Standing Senate Committee on Social Affairs, Science and Technology be authorized to examine and report on current social issues pertaining to Canada's largest cities. In particular, the Committee shall be authorized to examine:
(a) poverty, housing and homelessness;
(b) social inclusion and cohesion;
(c) urban economies;
(d) models for collaboration and co-operation among governments;
That the study be national in scope, and include a focus on the largest urban community in each of the provinces;
That the study report include proposed solutions, with an emphasis on collaborative strategies involving federal, provincial and municipal governments;
That the papers and evidence received and taken and work accomplished by the Committee on this subject since the beginning of the First Session of the Thirty-Ninth Parliament be referred to the Committee; and
That the Committee submit its final report no later than October 30, 2011, and that the Committee retain all powers necessary to publicize its findings until 180 days after the tabling of the final report.
The question being put on the motion, it was adopted.
° ° °
The Honourable Senator Eggleton, P.C., moved, seconded by the Honourable Senator Fraser:
That the Standing Senate Committee on Social Affairs, Science and Technology be authorized to examine and report on the impact of the multiple factors and conditions that contribute to the health of Canada's population — known collectively as the determinants of health — including the effects of these determinants on the disparities and inequities in health outcomes that continue to be experienced by identifiable groups or categories of people within the Canadian population;
That the committee examine government policies, programs and practices that regulate or influence the impact of the determinants of health on health outcomes across the different segments of the Canadian population, and that the committee investigate ways in which governments could better coordinate their activities in order to improve these health outcomes, whether these activities involve the different levels of government or various departments and agencies within a single level of government;
That the committee be authorized to study international examples of population health initiatives undertaken either by individual countries, or by multilateral international bodies such as (but not limited to) the World Health Organization;
That the papers and evidence received and taken and work accomplished by the committee on this subject since the beginning of the First Session of the Thirty-Ninth Parliament be referred to the committee; and
That the committee submit its final report no later than June 30, 2009, and that the committee retain all powers necessary to publicize its findings until 180 days after the tabling of the final report.
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 the administration and operation of the Canada Health Act for the fiscal year ended March 31, 2008, pursuant to the Act, R.S.C. 1985, c. C-6, s. 23.—Sessional Paper No. 2/40-135.
Report of the Hazardous Materials Information Review Commission for the fiscal year ended March 31, 2008, pursuant to the Hazardous Materials Information Review Act, R.S.C. 1985, c. 24 (3rd Supp.), Part III, sbs. 45(2).—Sessional Paper No. 2/40-136.
Report on the administration of student financial assistance programs for the loan year 2006-2007, pursuant to the Canada Student Financial Assistance Act, S.C. 1994, c. 28, sbs. 20(1). —Sessional Paper No. 2/40-137.
Report of Ridley Terminals Inc. for the fiscal year ended March 31, 2008, pursuant to the Alternative Fuels Act, S.C. 1995, c. 20, s. 8.—Sessional Paper No. 2/40-138.
Report of Ridley Terminals Inc. for the fiscal year ended March 31, 2009, pursuant to the Alternative Fuels Act, S.C. 1995, c. 20, s. 8.—Sessional Paper No. 2/40-139.
Summaries of the Corporate Plan and the Capital and Operating Budgets for the period 2008-2009 to 2012-2013 of the Canadian Air Transport Security Authority, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 125(4). —Sessional Paper No. 2/40-140.
Report of the State of Protected Heritage Areas for 2007, pursuant to the Parks Canada Agency Act, S.C. 1998, c. 31, s. 31. —Sessional Paper No. 2/40-141.
Report on the administration of the Species at Risk Act for the year 2007, pursuant to the Species at Risk Act, S.C. 2002, c. 29, s. 126.—Sessional Paper No. 2/40-142.
Reports of the Northern Pipeline Agency for the fiscal year ended March 31, 2008, pursuant to the Access to Information Act and the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2). —Sessional Paper No. 2/40-143.
Report of Statistics Canada on corporations for the year 2006, pursuant to the Corporations Returns Act, R.S.C. 1985, c. C-43, sbs. 22(1).—Sessional Paper No. 2/40-144.
Report of the Public Service Staffing Tribunal for the fiscal year ended March 31, 2008, pursuant to the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 "110(2)'' and 13. —Sessional Paper No. 2/40-145.
Report of the First Nations Lands Advisory Board for the fiscal year ended March 31, 2008, pursuant to the section 41.2 of the Framework Agreement on First Nation Land Management, as ratified by the First Nations Land Management Act, S.C. 1999, c. 24, sbs. 4(1).—Sessional Paper No. 2/40-146.
Report on the status of wild species in Canada for the period 2003-2008, pursuant to the Species at Risk Act, S.C. 2002, c. 29, s. 128.—Sessional Paper No. 2/40-147.
Report of the Northern Pipeline Agency, together with the Auditor General's Report, for the fiscal year ended March 31, 2008, pursuant to the Northern Pipeline Act, R.S.C. 1985, c. N-26, ss. 13 and 14.—Sessional Paper No. 2/40- 148.
Report on the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act for the fiscal year ended March 31, 2008, pursuant to the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, S.C. 1988, c. 28, ss. 231 and 238.—Sessional Paper No. 2/40-149.
Report on the Canada-Newfoundland Atlantic Accord Implementation Act for the fiscal year ended March 31, 2008, pursuant to the Act, S.C. 1987, c. 3, s. 226.—Sessional Paper No. 2/40-150.
Summaries of the Corporate Plan for 2008-2009 to 2012-2013 and of the Operating Budget for 2008-2009 of the Cape Breton Development Corporation, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 125(4).—Sessional Paper No. 2/40-151.
DECLARATIONS OF PRIVATE INTERESTS
Pursuant to subsection 12(1) of the Conflict of Interest Code for Senators, a declaration of private interest was made as follows:
—By written declaration, February 23, 2009, the Honourable Senator Massicotte (Bill S-226).
ADJOURNMENT
The Honourable Senator Comeau moved, seconded by the Honourable Senator Nolin:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 5:34 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 Aboriginal Peoples
The Honourable Senator Munson replaced the Honourable Senator Lovelace Nicholas (February 23, 2009).
The Honourable Senator Fairbairn, P.C., replaced the Honourable Senator Hubley (February 23, 2009).
Standing Senate Committee on Agriculture and Forestry
The Honourable Senator Lovelace Nicholas replaced the Honourable Senator Munson (February 23, 2009).
The Honourable Senator Rompkey, P.C., replaced the Honourable Senator Milne (February 16, 2009).
Standing Senate Committee on Banking, Trade and Commerce
The Honourable Senator Banks replaced the Honourable Senator Moore (February 23, 2009).
Standing Senate Committee on National Finance
The Honourable Senator Banks replaced the Honourable Senator Dawson (February 23, 2009).
The Honourable Senator Rivard replaced the Honourable Senator Stratton (February 23, 2009).
The Honourable Senator Dawson replaced the Honourable Senator Mitchell (February 19, 2009).
Standing Senate Committee on National Security and Defence
The Honourable Senator Mitchell replaced the Honourable Senator Zimmer (February 19, 2009).
Standing Committee on Rules, Procedures and the Rights of Parliament
The Honourable Senator Milne replaced the Honourable Senator Fraser (February 23, 2009).