59 Elizabeth II, A.D. 2010, Canada

Journals of the Senate

3rd Session, 40th Parliament

---

Issue 11

Thursday, March 25, 2010
2:00 p.m.

The Honourable Noël A. Kinsella, Speaker

---

The Members convened were:

The Honourable Senators

Andreychuk, Baker, Boisvenu, Brazeau, Callbeck, Campbell, Carignan, Champagne, Chaput, Charette-Poulin, Cochrane, Comeau, Cools, Cordy, Cowan, Day, Di Nino, Dickson, Downe, Duffy, Eaton, Eggleton, Fairbairn, Finley, Fraser, Frum, Gerstein, Greene, Harb, Housakos, Hubley, Jaffer, Johnson, Joyal, Kinsella, Kochhar, Lapointe, LeBreton, Losier-Cool, MacDonald, Marshall, Martin, Mercer, Mockler, Moore, Munson, Murray, Nancy Ruth, Nolin, Ogilvie, Patterson, Pépin, Plett, Poirier, Raine, Ringuette, Rivard, Rivest, Robichaud, Rompkey, Runciman, Segal, Seidman, 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, Baker, *Banks, Boisvenu, Brazeau, *Brown, Callbeck, Campbell, Carignan, *Carstairs, Champagne, Chaput, Charette-Poulin, Cochrane, Comeau, Cools, Cordy, Cowan, *Dawson, Day, *De Bané, Di Nino, Dickson, Downe, Duffy, Eaton, Eggleton, Fairbairn, Finley, Fraser, Frum, Gerstein, Greene, Harb, Housakos, Hubley, Jaffer, Johnson, Joyal, *Keon, Kinsella, Kochhar, *Lang, Lapointe, LeBreton, Losier-Cool, MacDonald, Marshall, Martin, *Massicotte, *McCoy, *Meighen, Mercer, *Mitchell, Mockler, Moore, Munson, Murray, Nancy Ruth, *Neufeld, Nolin, Ogilvie, Patterson, Pépin, *Peterson, Plett, Poirier, Raine, Ringuette, Rivard, Rivest, Robichaud, Rompkey, Runciman, Segal, Seidman, 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 followings:

Reports on Plans and Priorities, Main Estimates, 2010-2011:

Agriculture and Agri-Food Canada

Assisted Human Reproduction Canada

Atlantic Canada Opportunities Agency

Canada Border Services Agency

Canada Industrial Relations Board

Canada Revenue Agency

Canada School of Public Service

Canadian Artists and Producers Professional Relations
Tribunal

Canadian Centre for Occupational Health and Safety

Canadian Environmental Assessment Agency

Canadian Food Inspection Agency

Canadian Forces Grievance Board

Canadian Grain Commission

Canadian Heritage

Canadian Human Rights Commission

Canadian Human Rights Tribunal

Canadian Institutes of Health Research

Canadian Intergovernmental Conference Secretariat

Canadian International Development Agency

Canadian International Trade Tribunal

Canadian Northern Economic Development Agency

Canadian Nuclear Safety Commission

Canadian Radio-television and Telecommunications
Commission

Canadian Space Agency

Canadian Transportation Agency

Citizenship and Immigration Canada

Commission for Public Complaints Against
the RCMP

Copyright Board Canada

Correctional Service Canada

Courts Administration Service

Department of Finance Canada

Department of Foreign Affairs and International Trade

Department of Justice Canada

Economic Development Agency of Canada for the
Regions of Quebec

Environment Canada

Federal Economic Development Agency for
Southern Ontario

Financial Transactions and Reports Analysis Centre
of Canada

Fisheries and Oceans Canada

Hazardous Materials Information Review Commission
Canada

Health Canada

Human Resources and Skills Development Canada

Immigration and Refugee Board of Canada

Indian and Northern Affairs Canada and Canadian
Polar Commission

Indian Residential Schools Truth and Reconciliation
Commission Secretariat

Industry Canada

Infrastructure Canada

Library and Archives Canada

Military Police Complaints Commission
of Canada

NAFTA Secretariat — Canadian Section

National Defence

National Energy Board

National Film Board

National Parole Board

National Research Council Canada

National Round Table on the Environment and the Economy

Natural Resources Canada

Natural Sciences and Engineering Research Council of Canada

Northern Pipeline Agency Canada

Office of the Auditor General of Canada

Office of the Chief Electoral Officer

Office of the Commissioner for Federal Judicial Affairs

Office of the Commissioner of Lobbying Canada

Office of the Commissioner of Official Languages

Office of the Communications Security Establishment
Commissioner

Offices of the Information and Privacy Commissioners
of Canada

Office of the Superintendent of Financial Institutions Canada

Parks Canada

Patented Medicine Prices Review Board Canada

Privy Council Office and Public Appointments Commission
Secretariat

Public Health Agency of Canada

Public Prosecution Service of Canada

Public Safety and Emergency Preparedness Canada

Public Sector Integrity Canada

Public Servants Disclosure Protection Tribunal
Canada

Public Service Commission of Canada

Public Service Labour Relations Board

Public Service Staffing Tribunal

Public Works and Government Services Canada

RCMP External Review Committee

Registry of the Competition Tribunal

Registry of the Specific Claims Tribunal of Canada

Royal Canadian Mounted Police

Security Intelligence Review Committee

Social Sciences and Humanities Research Council of Canada

Statistics Canada

Status of Women Canada

Supreme Court of Canada

The Correctional Investigator of Canada

The National Battlefields Commission

Transport Canada

Transportation Appeal Tribunal of Canada

Transportation Safety Board of Canada

Treasury Board of Canada Secretariat

Veterans Affairs Canada

Western Economic Diversification Canada.—Sessional Paper No. 3/40-71.

Presentation of Reports from Standing or Special Committees

The Honourable Senator Day, Chair of the Standing Senate Committee on National Finance, presented its third report (first interim) (2010-2011 Estimates).

(The report is printed as an appendix at pages 172-188 (available in print format PDF).)

The Honourable Senator Day moved, seconded by the Honourable Senator Pépin, 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.

° ° °

The Honourable Senator Martin presented the following:

Thursday, March 25, 2010

The Standing Joint Committee for the Scrutiny of Regulations has the honour to present its

FIRST REPORT

Your committee reports that in relation to its permanent reference, section 19 of the Statutory Instruments Act, R.S.C. 1985, c. S-22, the committee was previously empowered ''to study the means by which Parliament can better oversee the government regulatory process and in particular to enquire into and report upon:

1. the appropriate principles and practices to be observed

(a) in the drafting of powers enabling delegates of Parliament to make subordinate laws;

(b) in the enactment of statutory instruments;

(c) in the use of executive regulation — including delegated powers and subordinate laws;

and the manner in which Parliamentary control should be effected in respect of the same;

2. the role, functions and powers of the Standing Joint Committee for the Scrutiny of Regulations.''

Your committee recommends that the same order of reference, together with the evidence adduced thereon during previous sessions, be again referred to it.

Your committee informs both Houses of Parliament that the criteria it will use for the review and scrutiny of statutory instruments are the following:

Whether any regulation or other statutory instrument within its terms of reference, in the judgment of the committee:

1. is not authorized by the terms of the enabling legislation or has not complied with any condition set forth in the legislation;

2. is not in conformity with the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights;

3. purports to have retroactive effect without express authority having been provided for in the enabling legislation;

4. imposes a charge on the public revenues or requires payment to be made to the Crown or to any other authority, or prescribes the amount of any such charge or payment, without express authority having been provided for in the enabling legislation;

5. imposes a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation;

6. tends directly or indirectly to exclude the jurisdiction of the courts without express authority having been provided for in the enabling legislation;

7. has not complied with the Statutory Instruments Act with respect to transmission, registration or publication;

8. appears for any reason to infringe the rule of law;

9. trespasses unduly on rights and liberties;

10. makes the rights and liberties of the person unduly dependent on administrative discretion or is not consistent with the rules of natural justice;

11. makes some unusual or unexpected use of the powers conferred by the enabling legislation;

12. amounts to the exercise of a substantive legislative power properly the subject of direct parliamentary enactment; or

13. is defective in its drafting or for any other reason requires elucidation as to its form or purport.

Your committee recommends that its quorum be fixed at four members, provided that both houses are represented whenever a vote, resolution or other decision is taken, and that the joint chairs be authorized to hold meetings to receive evidence and authorize the printing thereof so long as three members are present, provided that both houses are represented; and, that your committee have power to engage the services of such expert staff, and such stenographic and clerical staff as may be required.

Your committee further recommends to the Senate that it be empowered to sit during sittings and adjournments of the Senate.

Your committee, which was also authorized by the Senate to incur expenses in connection with its permanent reference relating to the review and scrutiny of statutory instruments, reports, pursuant to rule 104(2) of the Rules of the Senate, that the expenses of your committee (Senate portion) during the Second Session of the Fortieth Parliament are as follows:

Professional and Other Services	$ 595
Transport and Communications	13,128
All other expenditures	1,052
Witness Expenses	—
TOTAL	$ 14,775

In addition to the expenses for the examination of legislation as set out above, your committee also incurred general postal charges in the amount of $803.

A copy of the relevant Minutes of Proceedings and Evidence (Issue No. 1, Second Session, Fortieth Parliament) is tabled in the House of Commons.

Respectfully submitted,

YONAH MARTIN

Joint Chair

The Honourable Senator Martin moved, seconded by the Honourable Senator Wallin, 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 Senate Public Bills

The Honourable Senator Eggleton, P.C., presented a Bill S-216, An Act to amend the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act in order to protect beneficiaries of long term disability benefits plans.

The bill was read the first time.

The Honourable Senator Eggleton, P.C., moved, seconded by the Honourable Senator Watt, 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.

Tabling of Reports from Inter-Parliamentary Delegations

The Honourable Senator Losier-Cool tabled the following:

Report of the Canadian Branch of the Assemblée parlementaire de la Francophonie (APF), respecting its participation at the Bureau Meeting of the APF, held in N'Djamena, Chad, from February 2 to 4, 2010.—Sessional Paper No. 3/40-72.

SPEAKER'S RULING

On March 17, 2010, Senator Wallace rose on a question of privilege under rule 59(10) respecting Senator Lavigne's attendance earlier that day. Senator Wallace explained that Senator Lavigne is currently on leave of absence and, having already attended the Senate once this session, rule 136(5) prohibits him from attending again. Senator Wallace referred to Maingot to argue that disobedience to the Rules constitutes contempt. He also indicated that he was ready to move that the matter be referred to the Standing Committee on Rules, Procedures and the Rights of Parliament should the Speaker find a prima facie question of privilege.

Senator Cools then questioned the process being followed. She argued that when invoking rule 59(10) Senator Wallace should have moved a motion, not asked the Speaker to determine whether there was a prima facie question of privilege.

Before turning to the substance of Senator Wallace's complaint, I will address the process used. A question of privilege can be brought before the Senate in at least five ways. First, and most frequently, there is the process under rules 43 and 44, requiring written and oral notice. Second, a motion moved on notice can be used. Third, Appendix III of the Rules outlines a process in cases involving a disclosure of confidential committee documents. Fourth, a committee can bring a possible issue of privilege to the Senate's attention by presenting a report. Finally, rule 59(10) provides that no notice is required to raise a question of privilege.

It was this fifth process that Senator Wallace invoked. I would draw honourable senators' attention to a series of three rulings given during March and April of 2009. They were raised under rule 59(10), and were all assessed by the Speaker in light of the criteria usually used to determine a prima facie question of privilege. In the third ruling, given on April 21, it was noted that:

. . . rule 43 details a process for written and oral notice to properly raise a question of privilege. All of these are imperative, and are meant to be used. Unless the Senate makes a deliberate decision to change rule 43, rule 59(10) will only remain available for questions of privilege that arise out of circumstances that prevent a senator from providing the notices required under rule 43. To do otherwise would render the rule meaningless. Such a reversal of the clear obligations contained in the rules requires a deliberate and positive decision of the Senate.

With respect to the substantive matter of the question of privilege, the Speaker's role is to review the case and determine whether there is a prima facie case for a question of privilege, guided, inter alia, by the four criteria identified in rule 43(1).

The process used by Senator Wallace, who raised an issue that had occurred during the course of the sitting, thus respected current Senate practices. As has been noted in previous rulings, the Senate would benefit if the Rules Committee were to consider the processes for raising questions of privilege.

The specific matter at issue is largely based on rule 136(5), which states:

A Senator on leave of absence, or suspended under rule 141, for more than a full session may nonetheless make an appearance in the Senate once every session to avoid disqualification, but only on the sixth day the Senate sits after the Clerk lays upon the Table a notice of the Senator's intention to be present, signed by the Senator.

By way of background, Senator Lavigne is currently on a mandatory leave of absence. On March 3, 2010, he sent a letter to the Clerk indicating that he would take advantage of his right to be present. Once the letter had been tabled and recorded in the Journals of the Senate, the Clerk wrote to Senator Lavigne advising him that, if the Senate sat on dates identified in the letter, which reflected the normal pattern of sittings, the senator could attend on March 17, expected to be the sixth sitting day following the tabling of his letter. This date would, of course, change if the Senate varied from its normal pattern of sittings, a fact that was noted.

Despite receiving this information, Senator Lavigne attended the Senate on March 10, earlier than allowed, since it was only the third sitting day after the letter was tabled. This led to a point of order on March 11, on which I ruled. Senator Lavigne then wrote to the Clerk seeking clarification. As part of his response the Clerk noted the provision in rule 136(5) that stipulates attendance is allowed ''once every session.'' In the event, on March 17, Senator Lavigne was again present at his desk. The question of privilege was raised as a result of this second attendance.

At this stage, the Speaker's role is to take into account the four criteria of rule 43(1). It is clear that the matter was raised at the earliest opportunity, satisfying the first criterion. It is also clear that Senator Wallace is willing to offer a remedy, referral to the Rules Committee, thereby satisfying the third criterion.

The second and fourth criteria can perhaps be best addressed together. They require that ''. . . a matter directly concern[] the privileges of the Senate . . .'' and that it ''be raised to correct a grave and serious breach.'' Rule 136(5) only allows a senator on leave of absence or who is suspended to attend a sitting once in a session, and only on the sixth sitting day following the tabling of a notice. This notice requirement is useful for the planning of house business and votes.

In this case, Senator Lavigne was correctly informed of the requirements of rule 136(5). While neither of his appearances respected the rule, it is not clear that this constitutes a contempt, an action tending to obstruct or impede the Senate or to offend against its authority or dignity. Instead, it appears to be an unfortunate misunderstanding. The fact that Senator Lavigne withdrew once it became apparent that his presence was a cause of concern supports this conclusion. A breach of the Rules certainly occurred, as addressed in the ruling of March 11, but there is insufficient evidence to determine wilful contempt to the authority of the Senate.

Before concluding, I would like to clarify any confusion that may have arisen about the use of the term ''stranger.'' Since he is on a mandatory leave of absence, Senator Lavigne is not authorized to be on the floor while the Senate is sitting, except in the very narrow circumstances provided under rule 136(5). As such, the word ''stranger'' was used as a means to challenge his presence in the chamber. The term is relevant inasmuch as it provides a framework for dealing with the awkward situation in which a senator who is prohibited from being present is nevertheless in the chamber.

To return to the case at issue, the ruling is that no prima facie case of privilege has been established. There was, instead, a breach of order, which, as noted in the earlier ruling, is now a matter of record.

ORDERS OF THE DAY

GOVERNMENT BUSINESS

Bills

Order No. 1 was called and postponed until the next sitting.

° ° °

Second reading of Bill S-3, An Act to implement conventions and protocols concluded between Canada and Colombia, Greece and Turkey for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income.

The Honourable Senator Greene moved, seconded by the Honourable Senator Dickson, that the bill be read the second time.

After debate,

The Honourable Senator Tardif 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.

° ° °

Second reading of Bill C-6, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2010.

The Honourable Senator Gerstein moved, seconded by the Honourable Senator Stewart Olsen, that the bill be read the second time.

After debate,

The Honourable Senator Day moved, seconded by the Honourable Senator Losier-Cool, 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-7, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2011.

The Honourable Senator Gerstein moved, seconded by the Honourable Senator Kochhar, that the bill be read the second time.

After debate,

The Honourable Senator Day 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.

Inquiries

Order No. 1 was called and postponed until the next sitting.

Motions

Order No. 1 was called and postponed until the next sitting.

Reports of Committees

Consideration of the second report of the Standing Senate Committee on National Finance (Supplementary estimates (C), 2009-2010), presented in the Senate on March 24, 2010.

The Honourable Senator Day moved, seconded by the Honourable Senator Hubley, that the report be adopted.

After debate,

The question being put on the motion, it was adopted.

OTHER BUSINESS

Senate Public Bills

Orders No. 1 to 11 were called and postponed until the next sitting.

Commons Public Bills

Orders No. 1 and 2 were called and postponed until the next sitting.

Reports of Committees

Order No. 1 was called and postponed until the next sitting.

Other

Orders No. 3, 1, 5 and 4 (inquiries) were called and postponed until the next sitting.

MOTIONS

The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Fraser:

That the Standing Senate Committee on Fisheries and Oceans be authorized to examine and to report on issues relating to the federal government's current and evolving policy framework for managing Canada's fisheries and oceans;

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 report from time to time to the Senate but no later than June 30, 2011, and that the Committee retain all powers necessary to publicize its findings until December 31, 2011.

The question being put on the motion, it was adopted.

—————

With leave,

The Senate reverted to Government Notices of Motions.

With leave of the Senate,

The Honourable Senator Comeau moved, seconded by the Honourable Senator Tkachuk:

That when the Senate adjourns today, it do stand adjourned until Monday, March 29, 2010, at 8 p.m.

The question being put on the motion, it was adopted.

REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):

Report of the Royal Canadian Mint, together with the Auditor General's Report, for the year 2008, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 150(1).—Sessional Paper No. 3/40-68.

Reports of the Laurentian Pilotage Authority for the year ended December 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. 3/40-69.

Reports of Ridley Terminals Inc. for the year ended December 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. 3/40-70.

ADJOURNMENT

The Honourable Senator Comeau moved, seconded by the Honourable Senator Wallace:

That the Senate do now adjourn.

The question being put on the motion, it was adopted.

(Accordingly, at 3:57 p.m. the Senate was continued until Monday, March 29, 2010 at 8 p.m.)

Changes in Membership of Committees Pursuant to Rule 85(4)

Standing Senate Committee on Aboriginal Peoples

The Honourable Senator Sibbeston replaced the Honourable Senator Fairbairn, P.C. (March 25, 2010).

Standing Senate Committee on Foreign Affairs and International Trade

The Honourable Senator Zimmer replaced the Honourable Senator Mahovlich (March 25, 2010).

The Honourable Senator Johnson replaced the Honourable Senator Fortin-Duplessis (March 25, 2010).

The Honourable Senator Segal replaced the Honourable Senator Frum (March 25, 2010).

Standing Committee on Internal Economy, Budgets and Administration

The Honourable Senator Furey replaced the Honourable Senator Chaput (March 25, 2010).

The Honourable Senator Fox, P.C., replaced the Honourable Senator Tardif (March 25, 2010).

The Honourable Senator Tardif replaced the Honourable Senator Fox, P.C. (March 24, 2010).

Standing Senate Committee on Legal and Constitutional Affairs

The Honourable Senator Carstairs, P.C., replaced the Honourable Senator Mercer (March 25, 2010).

The Honourable Senator Mercer replaced the Honourable Senator Robichaud, P.C. (March 25, 2010).

The Honourable Senator Angus replaced the Honourable Senator Raine (March 25, 2010).

Standing Senate Committee on National Finance

The Honourable Senator Plett replaced the Honourable Senator Neufeld (March 25, 2010).

The Honourable Senator Neufeld replaced the Honourable Senator MacDonald (March 25, 2010).