Journals of the Senate
1st Session, 41st Parliament
Issue 141
Thursday, February 28, 2013
1:30 p.m.
The Honourable Noël A. Kinsella, Speaker
The Members convened were:
The Honourable Senators
Andreychuk, Ataullahjan, Batters, Bellemare, Black, Boisvenu, Braley, Brown, Buth, Callbeck, Campbell, Carignan, Champagne, Chaput, Charette-Poulin, Comeau, Cools, Cordy, Cowan, Dagenais, Dallaire, Dawson, De Bané, Demers, Downe, Doyle, Duffy, Dyck, Eaton, Eggleton, Enverga, Finley, Fortin-Duplessis, Fraser, Frum, Furey, Gerstein, Greene, Harb, Housakos, Hubley, Jaffer, Joyal, Kenny, Kinsella, Lang, LeBreton, MacDonald, Maltais, Manning, Marshall, Martin, Massicotte, McCoy, McInnis, McIntyre, Merchant, Meredith, Mitchell, Mockler, Munson, Nancy Ruth, Neufeld, Ngo, Ogilvie, Oh, Oliver, Patterson, Plett, Poirier, Raine, Ringuette, Rivard, Rivest, Robichaud, Runciman, Segal, Seidman, Seth, Smith (Cobourg), Smith (Saurel), Stewart Olsen, Stratton, Tardif, Tkachuk, Verner, Wallace, Wallin, Watt, Wells, White, Zimmer
The Members in attendance to business were:
The Honourable Senators
Andreychuk, Ataullahjan, Batters, Bellemare, Black, Boisvenu, Braley, Brown, Buth, Callbeck, Campbell, Carignan, Champagne, Chaput, Charette-Poulin, Comeau, Cools, Cordy, Cowan, Dagenais, Dallaire, Dawson, *Day, De Bané, Demers, Downe, Doyle, Duffy, Dyck, Eaton, Eggleton, Enverga, Finley, Fortin-Duplessis, Fraser, Frum, Furey, Gerstein, Greene, Harb, Housakos, Hubley, Jaffer, *Johnson, Joyal, Kenny, Kinsella, Lang, LeBreton, MacDonald, Maltais, Manning, Marshall, Martin, Massicotte, McCoy, McInnis, McIntyre, Merchant, Meredith, Mitchell, Mockler, Munson, Nancy Ruth, Neufeld, Ngo, Ogilvie, Oh, Oliver, Patterson, Plett, Poirier, Raine, Ringuette, Rivard, Rivest, Robichaud, Runciman, Segal, Seidman, Seth, Smith (Cobourg), Smith (Saurel), Stewart Olsen, Stratton, Tardif, Tkachuk, Verner, Wallace, Wallin, Watt, Wells, White, 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.
ROUTINE PROCEEDINGS
Presenting or Tabling Reports from Standing or Special Committees
The Honourable Senator Manning, Chair of the Standing Senate Committee on Fisheries and Oceans, presented its eighth report (Bill S-13, An Act to amend the Coastal Fisheries Protection Act, without amendment).
The Honourable Senator MacDonald moved, seconded by the Honourable Senator Carignan, 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.
The Honourable Senator Runciman presented the following:
Thursday, February 28, 2013
The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its
TWENTY-FIRST REPORT
Your committee, to which was referred Bill S-207, An Act to amend the Interpretation Act (non-derogation of aboriginal and treaty rights), has, in obedience to the order of reference of Thursday, June 7, 2012, examined the said Bill and now reports the same with the following amendment:
Clause 1, page 1:
Replace, in the French version, line 6 with the following:
"8.3 Nul texte ne porte atteinte aux droits".
Respectfully submitted,
ROBERT W. RUNCIMAN
Chair
The Honourable Senator Runciman moved, seconded by the Honourable Senator Stewart Olsen, 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 Tkachuk, Chair of the Standing Committee on Internal Economy, Budgets and Administration, presented its nineteenth report (Payment of allowances to senators whose primary residence is more than 100 kilometres from Parliament Hill).
(The report is printed as an appendix at pages 1968-1969 (available in print format PDF).)
With leave of the Senate,
The Honourable Senator Tkachuk moved, seconded by the Honourable Senator Stratton, that the report be placed on the Orders of the Day for consideration later this day.
The question being put on the motion, it was adopted.
The Honourable Senator Neufeld, Chair of the Standing Senate Committee on Energy, the Environment and Natural Resources, presented its seventh report (Bill C-370, An Act to amend the Canada National Parks Act (St. Lawrence Islands National Park of Canada), without amendment).
The Honourable Senator Neufeld moved, seconded by the Honourable Senator Martin, 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.
Tabling of Reports from Inter-Parliamentary Delegations
The Honourable Senator Andreychuk tabled the following:
Report of the Canadian Delegation of the Canada-Africa Parliamentary Association respecting its Bilateral Mission to the Republic of Kenya and the Republic of Malawi, from January 19 to 26, 2013.—Sessional Paper No. 1/41-1498.
SPEAKER'S RULING
I am ready to rule on the question of privilege raised by Senator Cools on February 26. The basic concern relates to actions of the Parliamentary Budget Officer, an officer of the Library of Parliament, that may have brought disrepute on Parliament and undermined the control of the houses over the administration of parliamentary affairs. In particular, the Parliamentary Budget Officer has applied to the Federal Court asking it to define his mandate as part of an on-going disagreement with the executive that he has recently raised at an international conference. The importance of this issue is reflected by the fact that consideration of the question of privilege was, exceptionally, spread over two days, with Senators Carignan, Comeau, Fraser, Mitchell and Tardif all taking part, along with Senator Cools.
Before dealing with the specifics of the issue, it would be helpful to review how the process for dealing with questions of privilege works. The Speaker's role at this initial stage is limited to determining whether there is a prima facie case of privilege, that is to say whether a reasonable person could conclude that there may have been a violation of privilege. This ruling does not deal with the substance of the case. If a prima facie case of privilege is established, the senator who raised the matter can, under rule 13-7(1), move a motion, which is subject to debate and can be amended.
In conducting the initial review the Speaker is guided by the four criteria set out in rule 13-3(1), all of which must be met for a prima facie case of privilege to be established. I shall now review each of the criteria to see how they relate to this question of privilege.
The first criterion is that the question be raised at the earliest opportunity. The international meeting at which the Parliamentary Budget Officer apparently made remarks that are the subject of this question of privilege was only reported last week in the Ottawa Citizen, and Tuesday, February 26 was the first day the Senate sat after that press coverage. Senator Cools therefore raised her question at the earliest opportunity. I also accept Senator Cools' position that when matters escalate, it is necessary and legitimate to look back at the whole picture. As such, I am satisfied that the first criterion has been met.
The second and third criteria can be considered together. They are that the matter "...directly concerns the privileges of the Senate, any of its committees or any Senator" and that it "be raised to correct a grave and serious breach."
The Parliamentary Budget Officer serves in the Library of Parliament, which is under the direct control of the Parliamentary Librarian, reporting to the two Speakers, who are assisted by the Standing Joint Committee on the Library of Parliament. As such, the Parliamentary Budget Officer operates under the authority of the two houses and must act within the framework of this organizational structure. In fact, the Senate already took this position on June 16, 2009, when it adopted a report of the joint committee dealing with the mandate of the Parliamentary Budget Officer. Among other things, the report recommended that the officer should "...respect the provisions of the [Parliament of Canada Act] establishing his position within the Library of Parliament...."
By asking the courts to decide the question of his mandate, the Parliamentary Budget Officer has disregarded the established authority and organizational structure of which he is a part. The question of his mandate is solely for Parliament to determine. The officer's actions run contrary to the constitutional separation of powers between the branches of government. As a consequence, both the second and third criteria have been fulfilled.
The final criterion is that a question of privilege "be raised to seek a genuine remedy that the Senate has the power to provide and for which no other parliamentary process is reasonably available." Senator Cools has indicated that she is ready to move a motion. This criterion has, therefore, also been met.
Before concluding, one other point, identified by Senator Fraser, should be addressed. The senator was concerned about dealing with a matter that is before the court, in effect raising the sub judice convention. As noted at pages 627 and 628 of the second edition of House of Commons Procedure and Practice, "The sub judice convention is first and foremost a voluntary exercise of restraint on the part of the House to protect an accused person, or other party to a court action or judicial inquiry, from any prejudicial effect of public discussion of the issue. Secondly, the convention also exists ... `to maintain a separation and mutual respect between legislative and judicial branches of government'. Thus, the constitutional independence of the judiciary is recognized." Quite importantly, the text then goes on to note that "...the sub judice convention has never stood in the way of the House considering a prima facie matter of privilege vital to the public interest or to the effective operation of the House and its Members." The sub judice convention does not, therefore, prevent the Senate from dealing with this matter.
A prima facie case of privilege has been established. The role of the Speaker, as identified at citation 117(2) of the sixth edition of Beauchesne, "... is limited to deciding the formal question, whether the case conforms with the conditions which alone entitle it to take precedence ... and does not extend to deciding the question of substance — whether a breach of privilege has in fact been committed — a question which can only be decided by the House itself."
Under rule 13-7(1), Senator Cools now has the opportunity to move a motion either calling on the Senate to take some action or referring the case of privilege to the Rules Committee. The motion must be moved at this time, although it will only be taken into consideration at the end of Orders of the Day or 8 p.m., whichever comes first. Debate on the motion can last no more than three hours, with each senator limited to speaking once, and for no more than 15 minutes. This debate can be adjourned, and when it concludes the Senate will decide on the motion. The final decision is for the Senate to make.
The ruling is that a prima facie case of privilege has been established.
The Honourable Senator Cools moved, seconded by the Honourable Senator Comeau:
That this case of privilege, relating to the actions of the Parliamentary Budget Officer, be referred to the Standing Committee on Rules, Procedures and the Rights of Parliament for consideration, in particular with respect to the consequences for the Senate, for the Senate Speaker, for the Parliament of Canada and for the country's international relations; and
That the committee present its final report to the Senate no later than March 31, 2013.
Pursuant to rule 13-7(2), consideration of the motion shall commence when the Senate has completed consideration of the Orders of the Day or no later than 8p.m. today.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills — Second Reading
Orders No. 1 to 4 were called and postponed until the next sitting.
OTHER BUSINESS
Senate Public Bills — Third Reading
Order No. 1 was called and postponed until the next sitting.
Commons Public Bills — Third Reading
Orders No. 1 to 3 were called and postponed until the next sitting.
Senate Public Bills — Reports of Committees
Resuming debate on the motion of the Honourable Senator Ogilvie, seconded by the Honourable Senator Wallace, for the adoption of the fifteenth report of the Standing Senate Committee on Social Affairs, Science and Technology (Bill S-204, An Act to establish a national strategy for chronic cerebrospinal venous insufficiency (CCSVI), with a recommendation), presented in the Senate on November 22, 2012.
After debate,
The Honourable Senator Cordy moved, seconded by the Honourable Senator Smith, P.C. (Cobourg), that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Senate Public Bills — Second Reading
Orders No. 1 to 3 were called and postponed until the next sitting.
Commons Public Bills — Second Reading
Orders No. 1 to 4 were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Seth, seconded by the Honourable Senator Doyle, for the second reading of Bill C-314, An Act respecting the awareness of screening among women with dense breast tissue;
And on the motion in amendment of the Honourable Senator Seidman, seconded by the Honourable Senator Eaton, that Bill C-314 be not now read a second time but that the subject matter thereof be referred to the Standing Senate Committee on Social Affairs, Science and Technology; and
That the Order to resume debate on the motion for the second reading of the bill not appear on the Order Paper and Notice Paper until the committee has tabled its report on the subject matter of the bill.
After debate,
The question being put on the motion in amendment, it was adopted.
Order No. 6 was called and postponed until the next sitting.
Second reading of Bill C-383, An Act to amend the International Boundary Waters Treaty Act and the International River Improvements Act.
The Honourable Senator Finley moved, seconded by the Honourable Senator Demers, 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.
Reports of Committees — Other
Orders No. 1 to 4 were called and postponed until the next sitting.
Consideration of the nineteenth report of the Standing Committee on Internal Economy, Budgets and Administration (Payment of allowances to senators whose primary residence is more than 100 kilometres from Parliament Hill), presented in the Senate earlier this day.
The Honourable Senator Tkachuk moved, seconded by the Honourable Senator Nancy Ruth, that the report be adopted.
After debate,
The question being put on the motion, it was adopted.
Motions
Orders No. 75 and 128 were called and postponed until the next sitting.
Inquiries
Orders No. 62, 61 and 22 were called and postponed until the next sitting.
Resuming debate on the inquiry of the Honourable Senator Cowan, calling the attention of the Senate to the many contributions of Canadian universities and other post-secondary institutions, as well as research institutes, to Canadian innovation and research, and in particular, to those activities they undertake in partnership with the private and not-for-profit sectors, with financial support from domestic and international sources, for the benefit of Canadians and others the world over.
After debate,
The Honourable Senator Dawson moved, seconded by the Honourable Senator Eggleton, P.C., that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Orders No. 19, 44, 35, 59, 45, 9, 18, 60, 50, 40, 3 and 56 were called and postponed until the next sitting.
With leave,
The Senate reverted to Government Notices of Motions.
With leave of the Senate,
The Honourable Senator Carignan moved, seconded by the Honourable Senator Marshall:
That when the Senate adjourns today, it do stand adjourned until Tuesday, March 5, 2013, at 2 p.m.
The question being put on the motion, it was adopted.
Ordered, That Motion No. 139 standing in the name of the Honourable Senator Jaffer on the Notice Paper be brought forward.
MOTIONS
The Honourable Senator Jaffer moved, seconded by the Honourable Senator Hubley:
That notwithstanding the Order of the Senate adopted on March 15, 2012, the date for the final report of the Standing Senate Committee on Human Rights on issues pertaining to the human rights of First Nations band members who reside off-reserve be extended from February 28, 2013 to October 3, 2013.
The question being put on the motion, it was adopted.
Pursuant to rule 13-7(2), the Senate proceeded to the consideration of the motion of the Honourable Senator Cools, seconded by the Honourable Senator Comeau:
That this case of privilege, relating to the actions of the Parliamentary Budget Officer, be referred to the Standing Committee on Rules, Procedures and the Rights of Parliament for consideration, in particular with respect to the consequences for the Senate, for the Senate Speaker, for the Parliament of Canada and for the country's international relations; and
That the committee present its final report to the Senate no later than March 31, 2013.
After debate,
The Honourable Senator Segal moved, seconded by the Honourable Senator Lang, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
At 3:54 p.m., pursuant to rule 13-7(9), the Speaker declared the Senate adjourned until Tuesday, March 5, 2013, at 2 p.m.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 14-1(7):
Report on the administration and enforcement of the fish habitat protection and pollution prevention provisions of the Fisheries Act for the fiscal year ended March 31, 2012, pursuant to the Act, R.S.C. 1985, c. F-14, sbs. 42.1(1).—Sessional Paper No. 1/41-1497.
Changes in Membership of Committees Pursuant to Rule 12-5
Standing Senate Committee on Aboriginal Peoples
The Honourable Senator Beyak replaced the Honourable Senator Wallace (February 27, 2013).
Standing Senate Committee on Energy, the Environment and Natural Resources
The Honourable Senator Ogilvie replaced the Honourable Senator Demers (February 27, 2013).
Standing Senate Committee on Fisheries and Oceans
The Honourable Senator Stewart Olsen replaced the Honourable Senator Unger (February 27, 2013).
Standing Senate Committee on Foreign Affairs and International Trade
The Honourable Senator Wells replaced the Honourable Senator Nolin (February 27, 2013).
The Honourable Senator Lang replaced the Honourable Senator Johnson (February 27, 2013).
Standing Senate Committee on Human Rights
The Honourable Senator White replaced the Honourable Senator McIntyre (February 28, 2013).
The Honourable Senator McIntyre replaced the Honourable Senator White (February 27, 2013).
Standing Senate Committee on Legal and Constitutional Affairs
The Honourable Senator Dagenais replaced the Honourable Senator Plett (February 28, 2013).
The Honourable Senator Plett replaced the Honourable Senator Dagenais (February 27, 2013).
Standing Senate Committee on National Finance
The Honourable Senator Finley replaced the Honourable Senator Runciman (February 28, 2013).
The Honourable Senator Buth replaced the Honourable Senator Ogilvie (February 27, 2013).
The Honourable Senator Runciman replaced the Honourable Senator Finley (February 27, 2013).
Standing Senate Committee on Social Affairs, Science and Technology
The Honourable Senator Eaton replaced the Honourable Senator Oh (February 28, 2013).
The Honourable Senator Oh replaced the Honourable Senator Eaton (February 27, 2013).