Journals of the Senate
58 Elizabeth II, A.D. 2009, Canada
Journals of the Senate
2nd Session, 40th Parliament
Issue 31
Tuesday, May 5, 2009
2:00 p.m.
The Honourable Noël A. Kinsella, Speaker
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Bacon, Baker, Banks, Brazeau, Brown, Callbeck, Campbell, Champagne, Chaput, Charette-Poulin, Cochrane, Comeau, Cook, Cools, Corbin, Cordy, Cowan, Dawson, Day, Di Nino, Dickson, Downe, Duffy, Eaton, Eggleton, Eyton, Fairbairn, Fortin-Duplessis, Fraser, Furey, Gerstein, Goldstein, Grafstein, Greene, Harb, Hervieux-Payette, Housakos, Hubley, Jaffer, Johnson, Joyal, Kenny, Kinsella, Lang, LeBreton, Losier-Cool, Lovelace Nicholas, MacDonald, Manning, Martin, Massicotte, McCoy, Meighen, Mercer, Milne, Mitchell, Mockler, Moore, Munson, Murray, Nancy Ruth, Nolin, Oliver, Pépin, Peterson, Prud'homme, Raine, Ringuette, Rivest, Robichaud, Rompkey, Sibbeston, Spivak, St. Germain, Stollery, Stratton, Tardif, Tkachuk, Wallace, Wallin, Zimmer
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Bacon, Baker, Banks, Brazeau, Brown, Callbeck, Campbell, Champagne, Chaput, Charette-Poulin, Cochrane, Comeau, Cook, Cools, Corbin, Cordy, Cowan, Dawson, Day, Di Nino, Dickson, Downe, Duffy, Eaton, Eggleton, Eyton, Fairbairn, Fortin-Duplessis, Fraser, Furey, Gerstein, Goldstein, Grafstein, Greene, Harb, Hervieux-Payette, Housakos, Hubley, Jaffer, Johnson, Joyal, Kenny, Kinsella, Lang, LeBreton, Losier-Cool, Lovelace Nicholas, MacDonald, Manning, Martin, Massicotte, McCoy, Meighen, Mercer, Milne, Mitchell, Mockler, Moore, Munson, Murray, Nancy Ruth, Nolin, Oliver, Pépin, Peterson, Prud'homme, Raine, Ringuette, *Rivard, Rivest, Robichaud, Rompkey, Sibbeston, Spivak, St. Germain, Stollery, Stratton, Tardif, Tkachuk, Wallace, Wallin, 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
Presentation of Reports from Standing or Special Committees
The Honourable Senator St. Germain, P.C., Chair of the Standing Senate Committee on Aboriginal Peoples, presented its fourth report (Bill C-5, An Act to amend the Indian Oil and Gas Act, without amendment).
The Honourable Senator St. Germain, P.C., moved, seconded by the Honourable Senator Nolin, 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.
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The Honourable Senator Rompkey, P.C., Chair of the Standing Senate Committee on Fisheries and Oceans, informed the Senate that, pursuant to orders adopted by the Senate on March 12, 2009 and April 29, 2009, the committee had deposited with the Clerk of the Senate on May 4, 2009, its second report entitled: Rising to the Arctic Challenge: Report on the Canadian Coast Guard.—Sessional Paper No. 2/40-347S.
The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Poulin, 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.
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The Honourable Senator Fraser, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, tabled its fifth report entitled: Equal Justice: Reforming Canada's System of Courts Martial.—Sessional Paper No. 2/ 40-353S.
The Honourable Senator Fraser moved, seconded by the Honourable Senator Milne, that the report be placed on the Orders of the Day for consideration at the next sitting.
The question being put on the motion, it was adopted.
Introduction and First Reading of Government Bills
A message was brought from the House of Commons with a Bill C-3, An Act to amend the Arctic Waters Pollution Prevention Act, to which it desires the concurrence of the Senate.
The bill was read the first time.
The Honourable Senator Comeau moved, seconded by the Honourable Senator Meighen, 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.
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A message was brought from the House of Commons with a Bill C-4, An Act respecting not-for-profit corporations and certain other corporations, to which it desires the concurrence of the Senate.
The bill was read the first time.
The Honourable Senator Comeau moved, seconded by the Honourable Senator Greene, 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.
Presentation of Petitions
The Honourable Senator Harb presented a petition:
Of Residents of the Province of Alberta concerning Canada's commercial seal hunt.
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The Honourable Senator Goldstein presented petitions:
Of Residents of the Province of Ontario concerning Bill S-232.
SPEAKER'S RULING
At the beginning of Orders of the Day on April 23, Senator Mercer rose on a point of order relating to the conduct of Question Period held earlier that day and the application of rule 24(1)(a). This provides that an oral question may be addressed to:
(a) The Leader of the Government in the Senate, if it is a question relating to public affairs.
As has been noted in a number of rulings, there is considerable latitude during Question Period in terms of what constitutes "public affairs.'' In the present case, the matter referred to the commission of inquiry being conducted by Mr. Justice Oliphant. The general practice in Parliament has been to avoid discussing matters or proceedings currently before the courts or quasi-judicial inquiries. This is referred to as the sub judice convention.
While the convention has not been codified, procedural literature indicates that, although not binding, parliamentarians should be cautious about making reference to the proceedings, evidence, or findings of a commission before it reports.
Applied to Question Period, parliamentarians should exercise due restraint in terms of the questions they ask and the answers they provide.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Second reading of Bill C-14, An Act to amend the Criminal Code (organized crime and protection of justice system participants).
The Honourable Senator Wallace moved, seconded by the Honourable Senator Angus, that the bill be read the second time.
After debate,
The Honourable Senator Tardif moved, seconded by the Honourable Senator Munson, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
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Second reading of Bill S-6, An Act to amend the Canada Elections Act (accountability with respect to political loans).
The Honourable Senator MacDonald moved, seconded by the Honourable Senator Greene, that the bill be read the second time.
After debate,
The Honourable Senator Hervieux-Payette, P.C., moved, seconded by the Honourable Senator Pépin, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
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Resuming debate on the motion of the Honourable Senator Wallace, seconded by the Honourable Senator St. Germain, P.C., for the second reading of Bill S-4, An Act to amend the Criminal Code (identity theft and related misconduct).
After debate,
The question being put on the motion, it was adopted.
The bill was then read the second time.
The Honourable Senator Wallace moved, seconded by the Honourable Senator Nolin, 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.
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Order No. 4 was called and postponed until the next sitting.
OTHER BUSINESS
Senate Public Bills
Orders No. 1 to 9 were called and postponed until the next sitting.
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The Order was called to resume debate on the motion of the Honourable Senator Goldstein, seconded by the Honourable Senator Zimmer, for the second reading of Bill S-219, An Act to amend the Bankruptcy and Insolvency Act (student loans).
SPEAKER'S RULING
On April 1, when the order was called for resuming debate on the second reading of Bill S-219, An Act to amend the Bankruptcy and Insolvency Act (student loans), the Deputy Leader of the Government, Senator Comeau, rose on a point of order. He argued that the bill requires a Royal Recommendation, and therefore cannot continue before the Senate. Senator Comeau referred to the Constitution Act, 1867, Senate rule 81, and authorities such as Bourinot and Erskine May in explaining how, in his view, the bill violates the financial initiative of the Crown.
Senator Comeau's concern was that the amendments to the Bankruptcy and Insolvency Act proposed in Bill S-219 could possibly increase the government's liabilities under the Canada Student Loans Act. Fundamentally, Bill S-219 seeks to implement two changes. First, a person declaring bankruptcy could seek relief from student loan debts at the end of five years, instead of waiting seven, as is now the case. Second, the bill would allow any former student to apply for changes to the terms of repayment, without having to wait five years as they must currently.
Since the government is the guarantor for loans made under the Canada Student Loans Act, it is liable to the lender if former students are discharged from debts or obligations with respect to such loans. The changes that Bill S-219 proposes would thus have the effect of increasing the contingent liabilities of the government, possibly resulting in additional charges on the Consolidated Revenue Fund.
The sponsor of the bill, Senator Goldstein, challenged the idea that the bill requires a Royal Recommendation. He noted it does not specifically appropriate public money, from which he concluded that rule 81 does not apply. He also mentioned that the bill had been before the Senate in previous sessions, and had been referred to committee, without this issue being raised.
At the outset, it should be noted that a point of order on such issues can be raised at any time while a bill is before the Senate. A point of order in a new session is certainly acceptable, and has occurred on a number of recent occasions.
The question of the relationship between the Crown's liabilities and the Royal Recommendation does not arise often in the Senate. There have, however, been some cases of relevance. On October 23, 1991, Bill S-5 was ruled out of order, since it would have imposed new liabilities on the Crown. In that case reference was made to the 20th edition of Erskine May, which states that both liabilities and contingent liabilities require a Royal Recommendation. Earlier, on February 20, 1990, the same text had been cited, among others, when some amendments proposed to a bill in a committee report were ruled out of order.
From the most recent edition of Erskine May, the 23rd edition, it is evident that a Royal Recommendation is still required for proposals that would incur a liability or a contingent liability. Page 884 specifically indicates that this includes charges that "might arise from a Treasury guarantee.'' While page 888 does state that the Royal Recommendation may not be required if the "liability arises as an incidental consequence of a proposal to apply or modify the general law,'' this does not save Bill S-219, since the changes proposed to the student loans regime are not merely incidental to the bill, but its primary purpose.
While there is a general preference in the Senate to favour debate in uncertain situations, this must be balanced against the need for a scrupulous respect for the financial initiative of the Crown, a basic principle of our parliamentary system. The passage of Bill S-219 would expand the range of conditions under which the government would have to make good its guarantee of loans under the Canada Student Loans Act. This would change the existing scheme, since payments from the Consolidated Revenue Fund might increase due to the change in possible obligations. As such, the bill should have a Royal Recommendation, and would have to originate in the other place.
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-219, An Act to amend the Bankruptcy and Insolvency Act (student loans), was discharged and, by order, the Bill withdrawn.)
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Order No. 11 was called and postponed until the next sitting.
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The Order was called to resume debate on the motion of the Honourable Senator Grafstein, seconded by the Honourable Senator Pépin, for the second reading of Bill S-230, An Act to amend the Bank of Canada Act (credit rating agency).
SPEAKER'S RULING
On March 31, after Senator Grafstein had spoken to his motion for the second reading of Bill S-230, An Act to amend the Bank of Canada Act (credit rating agency), Senator Nolin rose on a point of order. He noted that, under clause 2, the bill cannot be brought into force before funds have been appropriated, based on a Royal Recommendation, for the purpose of the bill. On this basis, he was of the view that the Senate cannot proceed with the study of the bill.
The effect of the type of clause challenged by Senator Nolin was addressed in some detail in a ruling given on May 27, 2008, concerning Bill S-234, introduced by our retired colleague Senator Gill. That bill contained a virtually identical provision. The ruling is published at pages 1086 to 1088 of the Journals of the Senate, and is directly applicable to the current point of order. The final paragraph, which summarized the effect of this type of clause, applies equally to Bill S-230. It suggests that the bill has no real effect without a separate appropriation of the necessary funds. As stated in the ruling of May 27, 2008:
[T]here 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 ruling on Bill S-230 is the same. The bill does not require a Royal Recommendation, since nothing can happen following its adoption until and unless funds have been appropriated. Debate can therefore continue.
Resuming debate on the motion of the Honourable Senator Grafstein, seconded by the Honourable Senator Pépin, for the second reading of Bill S-230, An Act to amend the Bank of Canada Act (credit rating agency).
The Honourable Senator Comeau moved, seconded by the Honourable Senator Stratton, that debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
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Order No. 13 was called and postponed until the next sitting.
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Resuming debate on the motion of the Honourable Senator Grafstein, seconded by the Honourable Senator Hubley, for the second reading of Bill S-217, An Act respecting a National Philanthropy Day.
After debate,
The question being put on the motion, it was adopted.
The bill was then read the second time.
The Honourable Senator Tardif moved, seconded by the Honourable Senator Fraser, that the bill be referred to the Standing Senate Committee on Social Affairs, Science and Technology.
The question being put on the motion, it was adopted.
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Orders No. 15 to 24 were called and postponed until the next sitting.
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Resuming debate on the motion of the Honourable Senator Murray, P.C., seconded by the Honourable Senator Banks, for the second reading of Bill S-221, An Act to amend the Financial Administration Act (borrowing of money).
After debate,
The Honourable Senator Comeau moved, seconded by the Honourable Senator Andreychuk, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Reports of Committees
Order No. 1 was called and postponed until the next sitting.
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Consideration of the third report of the Standing Senate Committee on Aboriginal Peoples (budget—study on matters generally relating to the Aboriginal Peoples of Canada—power to hire staff and to travel) presented in the Senate on April 28, 2009.
The Honourable Senator St. Germain, P.C., moved, seconded by the Honourable Senator Gerstein, that the report be adopted.
The question being put on the motion, it was adopted.
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Orders No. 3 to 5 were called and postponed until the next sitting.
Other
Orders No. 57, 6, 51, 50, 13, 12 (motions), 12, 2, 10 (inquiries) and 46 (motion) were called and postponed until the next sitting.
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Resuming debate on the motion of the Honourable Senator Grafstein, seconded by the Honourable Senator Fairbairn, P.C.:
That the Senate endorse the following Resolution, adopted by the OSCE Parliamentary Assembly at its 17th Annual Session, held at Astana, Kazakhstan, from June 29 to July 3, 2008:
RESOLUTION ON EXPANDING TRADE BETWEEN NORTH AMERICA AND EUROPE
1. Reaffirming the importance of trade for economic growth, political stability and international peace,
2. Recalling the fundamental importance of the economic and environmental dimension in the OSCE's comprehensive approach to security,
3. Considering that expanded free trade between North American and European markets will benefit all OSCE participating States politically as well as economically,
4. Recalling the commitments made by the participating States at the Maastricht Ministerial Council in December 2003 regarding the liberalization of trade and the elimination of barriers limiting market access,
5. Recalling the recommendations of the 2006 OSCE Best Practice Guide for a Positive Business and Investment Climate, published by the Office of the Co-ordinator of OSCE Economic and Environmental Activities, which advocate stronger international trade policies and conditions favourable to the circulation of international capital,
6. Concurring with the conclusions of the Co-ordinator of OSCE Economic and Environmental Activities that free trade agreements and the reduction of tariffs are vital to a strong trade policy,
7. Recalling the importance that the OSCE Parliamentary Assembly accords to the development of international trade as underlined by the Assembly's Fifth Economic Conference on the theme of "Strengthening Stability and Co-operation through International Trade'' held in Andorra in May 2007,
8. Recalling the deep historical and cultural ties between the peoples and states of North America and Europe which shaped their common values, on which the OSCE is based, and which are reinforced by the strength of their economic links,
9. Recognizing the considerable impact that the economies of North America and Europe have on international trade,
10. Considering the increasingly interdependent nature of the economic links between North America and Europe,
11. Noting the scope and depth of trade between North America and Europe which benefits public accounts and the private sector in addition to generating opportunities for employment,
12. Welcoming recently signed agreements that promote greater and freer trade between a limited number of markets in North America and Europe, such as the January 2008 Free Trade Agreement between Canada and the European Free Trade Association,
13. Acknowledging the appeal of the emerging markets in Asia and South America, whose growth will generate new levels of competition and economic efficiencies for trade between North America and Europe,
14. Concerned with the persistence of trade barriers in the economic relations between North America and Europe which limit opportunities for greater economic growth and human development,
15. Concerned with the state of the Doha Round of negotiations at the World Trade Organization which is affecting inter-regional trade negotiations such as the Canada-European Union Trade and Investment Enhancement Agreement suspended since 2006,
The OSCE Parliamentary Assembly:
16. Resolves that seminars and conferences to raise awareness of the opportunities and shared benefits of trade liberalization should be considered;
17. Calls on the parliaments of the OSCE participating States to vigorously support and accelerate all multilateral, inter-institutional and bilateral initiatives that promote the liberalization of trade between North America and Europe, including the harmonization of standards and the elimination of regulatory barriers;
18. Calls on the parliaments of the OSCE participating States to sustain the political will of their governments as members of existing economic agreements, including the North American Free Trade Agreement, the European Union, the European Free Trade Association and the Central European Free Trade Agreement, to develop transatlantic partnership agreements that expand and liberalise trade between and among them;
19. Recommends that current and future initiatives that target expanded trade between the economies of North America and Europe consider greater involvement where appropriate of regional and subregional governments and groupings;
20. Recommends that current and future initiatives that target expanded trade between the economies of North America and Europe reflect the principles and standards of the OSCE, particularly human rights, environmental protection, sustainable development and economic and social rights, including workers' rights, as agreed to in the 1990 Document of the Bonn Conference on Economic Co-operation in Europe, the 1990 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE and the 1990 Charter of Paris for a New Europe.
The question being put on the motion, it was adopted.
Orders No. 1 (inquiry), 42, 10 (motions), 6, 8 (inquiries), 23, 7, 8, 9 and 25 (motions) were called and postponed until the next sitting.
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Order No. 7 (inquiry) was called and pursuant to rule 27(3) was dropped from the Order Paper.
INQUIRIES
The Honourable Senator Chaput called the attention of the Senate to the discontinuance of the Interdepartmental Partnership with the Official-Language Communities (IPOLC) and its damaging consequences for official bilingualism in this country.
After debate,
The Honourable Senator Comeau moved, seconded by the Honourable Senator Martin, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
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The Honourable Senator Mitchell called the attention of the Senate to the high environmental and financial costs of providing bottled water within the parliamentary precinct and federal government buildings.
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
The Honourable Senator Hervieux-Payette, P.C., moved, seconded by the Honourable Senator Joyal, P.C.:
That,
Whereas the Honourable Senators note the European Union's interest in addressing the animal welfare aspects of seal hunting and presumably all hunting activities;
Whereas the Honourable Senators recognize the needs and traditional livelihoods of Inuit and other coastal communities;
Whereas the Honourable Senators recognize the positive conservation role that seal harvesters and other hunters play in the sustainable management of both prey and predator populations; and
Whereas the Honourable Senators re-affirm our shared moral obligation to treat all wild species humanely and with respect, and our shared commitment to the conservation principles of the Convention on Biological Diversity and the IUCN's (International Union for Conservation of Nature) "wise use'' philosophy;
The Senate of Canada call on the European Union not to proceed with its proposal to ban seal imports, as such a trade restriction would be contrary to international trade rules and would do nothing to encourage either sustainable use or humane sealing practices;
The Senate of Canada call on the EU Member States who manage sealing operations within their national waters, and other Member States who are responsible for the management of major wildlife harvesting regimes within their territories, to join with Canada in the development of a Universal Declaration which will promote sustainable, respectful hunting practices and professionalism amongst all hunters; and
That a message be sent to the House of Commons requesting that House to unite with the Senate for the above purpose.
After debate,
The Honourable Senator Comeau moved, seconded by the Honourable Senator Andreychuk, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Employment Insurance Monitoring and Assessment Report for the fiscal year ended March 31, 2008, pursuant to the Employment Insurance Act, S.C. 1996, c. 23, sbs. 3(3).—Sessional Paper No. 2/40-348.
Report of Export Development Canada, together with the Auditor General's Report, for the year ended December 31, 2008, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 150(1).—Sessional Paper No. 2/40- 349.
Report of the Military Police Complaints Commission for the year 2008, pursuant to the National Defence Act, R.S.C. 1985, c. N-5, s. 250.17.—Sessional Paper No. 2/40-350.
Summaries of the Corporate Plan for the period 2009-2010 to 2013-2014 and of the Operating and Capital Budgets and Borrowing Plan for 2009-2010 of Farm Credit Canada, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 125(4).—Sessional Paper No. 2/40-351.
Statutes of the Northwest Territories for October 2008, pursuant to the Northwest Territories Act, R.S.C. 1985, c. N-27, sbs. 21(1).—Sessional Paper No. 2/40-352.
ADJOURNMENT
The Honourable Senator Comeau moved, seconded by the Honourable Senator Cochrane:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 5:16 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 Fairbairn, P.C., replaced the Honourable Senator Carstairs, P.C. (April 29, 2009).
Standing Senate Committee on Fisheries and Oceans
The Honourable Senator Manning replaced the Honourable Senator Segal (April 29, 2009).
Standing Senate Committee on Foreign Affairs and International Trade
The Honourable Senator Zimmer replaced the Honourable Senator Mahovlich (May 5, 2009).
The Honourable Senator Oliver replaced the Honourable Senator Fortin-Duplessis (May 4, 2009).
The Honourable Senator Dawson replaced the Honourable Senator Zimmer (April 29, 2009).
Standing Senate Committee on Legal and Constitutional Affairs
The Honourable Senator Rompkey, P.C., replaced the Honourable Senator Cook (May 5, 2009).
Standing Senate Committee on National Finance
The Honourable Senator Banks replaced the Honourable Senator De Bané, P.C. (May 5, 2009).
The Honourable Senator Oliver replaced the Honourable Senator Neufeld (May 1, 2009).
The Honourable Senator Nolin replaced the Honourable Senator Rivard (May 1, 2009).
Standing Senate Committee on National Security and Defence
The Honourable Senator Moore replaced the Honourable Senator Mitchell (May 5, 2009).
The Honourable Senator Mitchell replaced the Honourable Senator Moore (May 4, 2009).
Standing Senate Committee on Official Languages
The Honourable Senator Jaffer replaced the Honourable Senator Robichaud, P.C. (May 5, 2009).
The Honourable Senator Robichaud, P.C., replaced the Honourable Senator Jaffer (May 4, 2009).
Standing Committee on Rules, Procedures and the Rights of Parliament
The Honourable Senator Nolin replaced the Honourable Senator MacDonald (April 29, 2009).