Journals of the Senate
58 Elizabeth II, A.D. 2009, Canada
Journals of the Senate
2nd Session, 40th Parliament
Issue 64
Wednesday, October 28, 2009
1:30 p.m.
The Honourable Noël A. Kinsella, Speaker
The Members convened were:
The Honourable Senators
Andreychuk, Angus, Brazeau, Brown, Callbeck, Campbell, Carignan, Carstairs, Champagne, Charette-Poulin, Cochrane, Comeau, Cools, Cordy, Cowan, Dallaire, Dawson, Day, Demers, Di Nino, Dickson, Downe, Duffy, Dyck, Eaton, Eggleton, Fairbairn, Fortin-Duplessis, Fox, Fraser, Frum, Furey, Gerstein, Grafstein, Greene, Harb, Hervieux-Payette, Hubley, Jaffer, Johnson, Joyal, Keon, Kinsella, Lang, Lapointe, LeBreton, Losier-Cool, Lovelace Nicholas, MacDonald, Mahovlich, Manning, Martin, Massicotte, McCoy, Meighen, Mercer, Merchant, Milne, Mitchell, Mockler, Moore, Munson, Nancy Ruth, Neufeld, Nolin, Ogilvie, Oliver, Patterson, Pépin, Plett, Poy, Prud'homme, Raine, Ringuette, Rivard, Rivest, Robichaud, Segal, Seidman, Sibbeston, Smith, St. Germain, Stewart Olsen, Stollery, Stratton, Tardif, Tkachuk, Wallace, Wallin, Watt, Zimmer
The Members in attendance to business were:
The Honourable Senators
Andreychuk, Angus, Brazeau, Brown, Callbeck, Campbell, Carignan, Carstairs, Champagne, Charette-Poulin, Cochrane, Comeau, Cools, Cordy, Cowan, Dallaire, Dawson, Day, Demers, Di Nino, Dickson, Downe, Duffy, Dyck, Eaton, Eggleton, Fairbairn, Fortin-Duplessis, Fox, Fraser, Frum, Furey, Gerstein, Grafstein, Greene, Harb, Hervieux-Payette, Hubley, Jaffer, Johnson, Joyal, Keon, Kinsella, Lang, Lapointe, LeBreton, Losier-Cool, Lovelace Nicholas, MacDonald, Mahovlich, Manning, Martin, Massicotte, McCoy, Meighen, Mercer, Merchant, Milne, Mitchell, Mockler, Moore, Munson, Nancy Ruth, Neufeld, Nolin, Ogilvie, Oliver, Patterson, Pépin, Plett, Poy, Prud'homme, Raine, Ringuette, Rivard, Rivest, Robichaud, Segal, Seidman, Sibbeston, Smith, St. Germain, Stewart Olsen, 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:
Annual Report of the Westbank First Nation Self-Government for 2006-2007.—Sessional Paper No. 2/40-813.
Annual Report 2008-2009 of the Indian Claims Commission. —Sessional Paper No. 2/40-814.
Presentation of Reports from Standing or Special Committees
The Honourable Senator Wallace, Joint Chair of the Standing Joint Committee for the Scrutiny of Regulations tabled its fourth report (Report No. 85 — Australia — New Zealand Scrutiny of Legislation Conference, July 2009).—Sessional Paper No. 2/40-815S.
Tabling of Reports from Inter-Parliamentary Delegations
The Honourable Senator Di Nino tabled the following:
Report of the Canadian Delegation of the Canada-Europe Parliamentary Association respecting its participation at the Organization for Security and Co-operation in Europe Parliamentary Assembly's Economic Conference, held in Dublin, Ireland, from May 27 to 29, 2009.—Sessional Paper No. 2/40-816.
Report of the Canadian Delegation of the Canada-Europe Parliamentary Association respecting its participation at the Organization for Security and Co-operation in Europe Parliamentary Assembly's Election Observation Mission in Albania, from June 25 to 29, 2009.—Sessional Paper No. 2/40-817.
Report of the Canadian Delegation of the Canada-Europe Parliamentary Association respecting its participation at the Organization for Security and Co-operation in Europe Parliamentary Assembly's Eighteenth Annual Session, held in Vilnius, Lithuania, from June 29 to July 3, 2009.—Sessional Paper No. 2/40-818.
SPEAKER'S RULING
On October 6, Senator Fraser raised a question of privilege under rule 43. Her concern related to a meeting of the Standing Senate Committee on Legal and Constitutional Affairs, of which she is chair, held on October 1. To summarize, the committee delayed the planned date for clause-by-clause study of Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody), in order to hear from the Alberta and Manitoba Ministers of Justice and Attorneys General. At the meeting of October 1, just before noon, one of the ministers indicated that they both had to leave to catch planes. This prevented some senators from completing their discussion with the ministers, although they did agree to provide written responses to questions. Senator Fraser explained that, instead of heading directly to the airport, the ministers actually attended a previously scheduled press conference with the federal Minister of Justice and Attorney General. At this conference the federal minister urged the Senate to pass Bill C-25 without delay and without amendment.
Senator Fraser had three concerns about these events. First, she suggested that the committee had been deliberately misled about why the provincial ministers had to leave. Second, she argued that the committee's work had been impeded, since the meeting with the ministers had been cut off earlier than strictly necessary. Finally, she suggested that some statements at the press conference had impugned the committee's work. She expressed concern about the contempt she felt had been shown to the committee and asserted that these events had breached its privileges.
Senator Wallace took a different view. He underscored the serious nature of the allegations, particularly when directed against ministers of the Crown. He noted that the provincial ministers had stayed beyond what they had understood to be the duration of their appearance and had accepted a number of questions for written follow-up. From this, Senator Wallace concluded that the ministers had sought to cooperate with the committee. While they did have planes to catch, they did not mention specific times, and no questions were asked on that point. Senator Wallace did not see these events either as contempt or as an attempt to mislead the committee. He rejected the idea that the ministers had to justify the use of their time after their appearance. The senator also rejected the idea that the federal minister had attempted to interfere with or manipulate the committee's work. Finally, Senator Wallace questioned the process of raising a matter of privilege from a committee. It was his understanding that it can only be done by a committee report, and he made references to Erskine May, Beauchesne, and Marleau and Montpetit justifying this position.
Senator Tardif, when she spoke, expressed the opinion that the ministers had used the excuse of a flight to get to a press conference. In her view this was both disrespectful to the committee and had impaired its ability to properly fulfil its duty to examine and report on Bill C-25. Senator Cools then reviewed a number of extracts from the committee transcripts. She suggested that the committee had acted in good faith, and she detected a sense of disappointment in the way events had unfolded. Senator Brown, for his part, emphasized that the ministers had understood they would appear for an hour, and had structured their time in consequence.
Before considering the substantive points at the heart of this question of privilege, it is appropriate to address the procedural issue raised by Senator Wallace about how a matter of privilege from a committee can be brought before the Senate. Many parliamentary authorities do indeed state that such a matter should only be considered, except in rare instances, upon a report of the committee in question. However, the Rules of the Senate provide, at rule 43(1)(b), that a question of privilege can be raised under the special process for such issues if the "privileges of the Senate, of any committee thereof, or any Senator'' are at issue. Accordingly, rule 43 can be used to raise questions of privilege arising from committee work, although a report of the committee is another vehicle available, as the authorities suggest.
To now turn to the substantive matter, this purported question of privilege involved two broad fundamental issues. One relates to the provincial ministers leaving the committee meeting. The other relates to the comments made at the subsequent press conference and the fundamental issue of the independence of the Senate as a house of Parliament.
To deal with the first of these issues, the problem that arose in the committee meeting on October 1 can be viewed as a misunderstanding about time, albeit a misunderstanding that had vexatious consequences. The witnesses had not been compelled to attend and ordered to remain until dismissed. They came voluntarily, and seem to have arranged their day based on the understanding they would appear for a limited period of time. Once this premise is accepted, the subsequent events do not appear unreasonable.
The second issue in this question of privilege touches on fundamental issues about our structure of governance. Ours is a parliamentary system operating under written and unwritten rules and long-standing traditions. This country enjoys its great measure of freedom and rights in no small part due to an understanding of, and respect for, basic principles and a recognition of the different roles of the executive and of Parliament.
Parliament has three components — the Queen, the Senate, and the House of Commons. Each is distinct and autonomous, although they must all act together to ensure the passage of legislation. To focus on the two houses, communications are properly through the exchange of messages, reflecting decisions taken. Neither house is formally aware of the details of how business is conducted in the other. A respect for the independence of each house by the other is essential. As stated in the fourth report of the Rules Committee, adopted by the Senate on June 23, attempts to place undue pressure on the Senate to act quickly are "at odds with the autonomy and independence of the Senate.'' The report went on to note that "The Senate cannot be coerced to adopt a legislative proposal or to adopt it in a given timeframe.'' This underscores the point that it is not the role of the executive branch to dictate to Parliament, or its component parts, how they are to act.
At the same time, it must be recognized that members of both houses — whether they are ministers or not — have a great interest in monitoring and encouraging legislative proposals that they sponsor. Parliamentarians do not simply introduce bills and then let them take care of themselves. They monitor developments, urge action, discuss, negotiate, and seek to arrive at satisfactory outcomes. This process is perhaps most visible in committees. If problems are identified with a bill, the sponsoring parliamentarian must often work assiduously to arrive at a successful resolution.
The comments at the press conference of October 1 can be seen as part of this process of trying to move a bill forward. The minister was urging rapid action by the Senate. Of course, the remarks in no way compelled action by the committee. It was free to deal with Bill C-25, within the bounds of our rules and practices. As it happened, the committee did recommend amendments, but the Senate did not accept them and passed the bill without changes. What is important, honourable senators, is that the Senate retained full freedom to accept or reject the bill, with or without amendment. Nothing said at the press conference affected these basic rights and functions of the Senate.
With this understanding of the events of October 1, it is now possible to consider the question of privilege in light of the criteria of rule 43(1). Senator Fraser explained why she could not have raised the matter earlier, thereby satisfying the first criterion. She also indicated that she is ready to move that the matter be referred to the Rules Committee so that the issues can be studied in detail, thereby satisfying the third criterion. With respect to the second criterion — that the matter directly concern privilege — and the fourth — that it seek to correct a grave and serious breach — the points outlined earlier suggest, upon reflection, that the criteria have not been met. The provincial ministers can be seen as having acted reasonably based on their understanding of how their appearance would be managed. Even if the remarks at the press conference caused offence to some senators, they in no way affected how the Senate could deal with Bill C- 25 or limited the role of this house in the parliamentary process.
As such, the ruling is that the criteria of rule 43(1) have not been satisfied, and accordingly a prima facie question of privilege is not established.
SPEAKER'S RULING
On October 20, Senator Comeau, the Deputy Leader of the Government in the Senate, raised a question of privilege challenging the accuracy of a press release from and interviews by Senator Cowan, the Leader of the Opposition in the Senate, as well as statements contained in a blog kept by Senator Mitchell. These materials addressed the Senate's handling of Bill C-25 and Senate procedures. Senator Comeau considered that they had misrepresented decisions taken by the Senate and distorted his own role and position. The result, he argued, was that they constituted a contempt.
The statements challenged by Senator Comeau included one that government senators refused a proposal to consider and vote on the bill itself on October 8. Senator Comeau argued that the record actually indicates that no such proposal was made. He also objected to claims that the government had prevented the Senate from meeting on October 9. The government, he said, does not control the Senate's schedule and that any senator could have denied leave, forcing a Friday sitting. Senator Comeau felt that such statements had resulted in erroneous articles appearing in the press, misrepresenting senators' work and their position, including his own.
Senator Cowan rejected Senator Comeau's interpretation of the events of October 8. He reviewed the press release in detail. The senator insisted that it accurately reflected events and did not affect any senators' rights or privileges. Senator Mitchell, for his part, denied that postings on his blog constituted an impediment to any senator. He characterized them, instead, as a part of a broad public debate not an infringement of privilege. Senator Cools also questioned the idea that there was a prima facie question of privilege, being unable to identify any specific privilege that had been breached.
I wish to thank all honourable senators who contributed to the discussion of the question of privilege for their input. The Speaker's role is now to evaluate the purported question of privilege in terms of the criteria set out in rule 43(1). Before doing so, however, it should be noted that Senator Comeau's complaint broadly respected the requirement of rule 45, that when a senator complains of a statement in "any form of public news media, as a breach of privilege,'' specifics must be provided as to "the matter complained of, the source thereof and the nature of the breach of privilege.''
The first criterion under rule 43(1) is that a purported question of privilege must "be raised at the earliest opportunity.'' Since Senator Comeau raised this issue at the first sitting after the events at issue occurred, he clearly met this criterion. Similarly, in relation to the third criterion, that the matter "be raised to seek a genuine remedy,'' Senator Comeau has indicated his readiness to move a motion to refer the matter to the Rules Committee.
The second and fourth criteria can be considered together. They require that the complaint "be raised to correct a grave and serious breach'' that "directly concern[s] the privileges of the Senate, of any committee thereof, or any Senator.'' In this case a significant difference of opinion as to the course of events on October 8 obviously exists. Some honourable senators understood what happened in one way, others interpreted the situation quite differently.
Paragraph 62 of Beauchesne's sixth edition offers some guidance, which honourable senators should bear in mind. It reads: "...in the context of contempt, it seems to me that to amount to contempt, representations or statements about our proceedings or of the participation of members should not only be erroneous or incorrect, but, rather, should be purposely untrue and improper and import a ring of deceit.''
Do differences in how events are interpreted in the present case actually constitute a "grave and serious breach'' of privilege? Was the Senate prevented from dealing with Bill C-25 as it wished? Do senators still exercise their rights and responsibilities unimpeded?
Senator Comeau certainly felt aggrieved by what was said, and not without reason. However, on balance, it does not appear that the tests of the second and fourth criteria have been satisfied. The ruling is therefore that a prima facie question of privilege has not been made out.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Orders No. 1 to 4 were called and postponed until the next sitting.
Inquiries
Order No. 2 was called and postponed until the next sitting.
OTHER BUSINESS
Senate Public Bills
Orders No. 1 to 17 were called and postponed until the next sitting.
° ° °
Resuming debate on the motion of the Honourable Senator Grafstein, seconded by the Honourable Senator Fairbairn, P.C., for the second reading of Bill S-214, An Act to regulate securities and to provide for a single securities commission for Canada.
After debate,
The Honourable Senator Tardif, for the Honourable Senator Hervieux-Payette, P.C., moved, seconded by the Honourable Senator Hubley, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
° ° °
Orders No. 19 to 23 were called and postponed until the next sitting.
° ° °
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 Keon, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Commons Public Bills
Order No. 1 was called and postponed until the next sitting.
Reports of Committees
Orders No. 1 to 6 were called and postponed until the next sitting.
Other
Orders No. 1 (inquiry), 13, 67 (motions), 2, 21 (inquiries), 42, 68, 10, 8, 9, 51 (motions), 10 (inquiry), 7, 25 (motions), 17, 23, 13, 25 (inquiries), 86 (motion), 27 (inquiry) and 58 (motion) were called and postponed until the next sitting.
° ° °
Resuming debate on the motion of the Honourable Senator Eggleton, P.C., seconded by the Honourable Senator Ringuette:
That the Standing Senate Committee on National Finance be authorized to examine the state of the pension system in Canada in view of evidence that approximately five million Canadians may not have enough savings for retirement purposes;
In particular, the Committee shall be authorized to examine:
(a) Old Age Security/Guaranteed Income Supplement;
(b) Canada Pension Plan/Quebec Pension Plan;
(c) Private Savings — includes employer-sponsored pension plans, Registered Retirement Savings Plans (RRSPs), and other investments and savings;
That the study be national in scope, and include proposed solutions, with an emphasis on collaborative strategies involving federal and provincial governments; and
That the committee submit its final report no later than November 30, 2009, and that the committee retain all powers necessary to publicize its findings until 180 days after the tabling of the final report.
After debate,
The Honourable Senator Di Nino moved, seconded by the Honourable Senator Frum, 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):
Interim Order Respecting the Sale of the Vaccine for the Novel Influenza A H1N1 Virus (P.C. 2009-1769 and JUS- 608030), dated October 13, 2009, pursuant to the Food and Drugs Act, R.S.C. 1985, c. F-27, sbs. 30.1(6) and (7).—Sessional Paper No. 2/40-810.
Reports of the Blue Water Bridge Authority for the fiscal year ended August 31, 2009, 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. 2/40-811.
Report on the activities of the Courts Administration Service for the fiscal year ended March 31, 2009, pursuant to the Courts Administration Service Act, S.C. 2002, c. 8, sbs. 12(2).—Sessional Paper No. 2/40-812.
ADJOURNMENT
The Honourable Senator Comeau moved, seconded by the Honourable Senator Demers:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 2:45 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 Martin replaced the Honourable Senator Raine (October 28, 2009).
Standing Senate Committee on Agriculture and Forestry
The Honourable Senator Meighen replaced the Honourable Senator Finley (October 28, 2009).
The Honourable Senator Finley replaced the Honourable Senator Carignan (October 28, 2009).
Standing Senate Committee on Banking, Trade and Commerce
The Honourable Senator Dawson replaced the Honourable Senator Fox, P.C. (October 28, 2009).
Standing Senate Committee on Energy, the Environment and Natural Resources
The Honourable Senator Cowan replaced the Honourable Senator Banks (October 28, 2009).
Standing Senate Committee on Fisheries and Oceans
The Honourable Senator Raine replaced the Honourable Senator Greene (October 28, 2009).
Standing Senate Committee on National Security and Defence
The Honourable Senator Lang replaced the Honourable Senator Tkachuk (October 28, 2009).