The Members convened were:

The Honourable Senators

AndreychukAtaullahjanBakerBattersBellemareBeyakBlackBoisvenuCampbellCarignanChaputCoolsCordyCowanDagenaisDawsonDayDemersDowneDoyleEggletonEnvergaFraserFrumFureyGreeneHousakosHubleyJafferJohnsonJoyalLangMacDonaldMaltaisManningMarshallMartinMassicotteMcCoyMcInnisMcIntyreMercerMeredithMitchellMooreMunsonNeufeldNgoOgilvieOhPattersonPlettRaineRinguetteRivardRuncimanSeidmanSibbestonSmith (Cobourg)Smith (Saurel)Stewart OlsenTannasTardifTkachukUngerWallaceWallinWattWellsWhite

The Members in attendance to business were:

The Honourable Senators

AndreychukAtaullahjanBakerBattersBellemareBeyakBlackBoisvenuCampbellCarignanChaputCoolsCordyCowanDagenaisDawsonDayDemersDowneDoyleEggletonEnvergaFraserFrumFureyGreeneHousakosHubleyJafferJohnsonJoyalLangMacDonaldMaltaisManningMarshallMartinMassicotteMcCoyMcInnisMcIntyreMercerMeredithMitchellMooreMunsonNeufeldNgoOgilvieOhPattersonPlettRaineRinguetteRivardRuncimanSeidmanSibbestonSmith (Cobourg)Smith (Saurel)Stewart OlsenTannasTardifTkachukUngerWallaceWallinWattWellsWhite

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

Tabling of Documents

The Honourable the Speaker tabled the following:

Case Report of Findings of the Public Sector Integrity Commissioner in the Matter of an Investigation into a Disclosure of Wrongdoing (Correctional Service Canada), pursuant to the Public Servants Disclosure Protection Act, S.C. 2005, c. 46, sbs. 38(3.3).—Sessional Paper No. 1/42-155.

Presenting or Tabling Reports from Committees

The Honourable Senator Andreychuk tabled the following (Sessional Paper No. 1/42-156S):

Thursday, February 4, 2016

The Standing Senate Committee on Foreign Affairs and International Trade has the honour to table its

FIRST REPORT

Your committee, which was authorized by the Senate to incur expenses for the purpose of its examination and consideration of such matters as were referred to it, tables, pursuant to rule 12-26(2), the following report on expenses incurred for that purpose during the Second Session of the Forty-first Parliament:

1. With respect to its examination and consideration of legislation:

2. With respect to its special study to examine such issues as may arise from time to time relating to foreign relations and international trade generally authorized by the Senate on Thursday, November 21, 2013:

3. With respect to its special study on security conditions and economic developments in the Asia-Pacific region, the implications for Canadian policy and interests in the region, and other related matters authorized by the Senate on Thursday, November 21, 2013:

4. With respect to its special study to examine the potential for increased Canada-United States-Mexico trade and investment, including in growth areas in key resource, manufacturing and service sectors; the federal actions needed to realize any identified opportunities in these key sectors; and opportunities for deepening cooperation at the trilateral level authorized by the Senate on Tuesday, September 23, 2014:

In addition to the expenses for its studies as set out above, your committee also incurred general postal charges of $19.

During the session, your committee held 67 meetings (114 hours), heard 298 witnesses and submitted 12 reports in relation to its work. Your committee examined 3 bills (C-6, C-20, C-41) and received a total of 10 orders of reference.

Respectfully submitted,

Question Period

The Senate proceeded to Question Period.

Orders of the Day

Government Business

Motions

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

Other Business

Senate Public Bills – Second Reading

Resuming debate on the motion of the Honourable Senator Stewart Olsen, seconded by the Honourable Senator Johnson, for the second reading of Bill S-214, An Act to amend the Food and Drugs Act (cruelty-free cosmetics).

After debate,

The Honourable Senator Fraser moved, seconded by the Honourable Senator Cowan, that further debate on the motion be adjourned until the next sitting.

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

o o o

Orders No. 2 to 7 were called and postponed until the next sitting.

o o o

Second reading of Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate).

The Honourable Senator Mercer moved, seconded by the Honourable Senator Day, that the bill be read the second time.

After debate,

The Honourable Senator Greene moved, seconded by the Honourable Senator Marshall, that further debate on the motion be adjourned until the next sitting.

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

o o o

Order No. 9 was called and postponed until the next sitting.

o o o

Second reading of Bill S-204, An Act to amend the Financial Administration Act (borrowing of money).

The Honourable Senator Moore moved, seconded by the Honourable Senator Day, that the bill be read the second time.

After debate,

The Honourable Senator Bellemare moved, seconded by the Honourable Senator Patterson, that further debate on the motion be adjourned until the next sitting.

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

o o o

Orders No. 11 to 15 were called and postponed until the next sitting.

Motions

Orders No. 7, 31, 25, 6 and 9 were called and postponed until the next sitting.

Inquiries

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

MOTIONS

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

That, pursuant to section 1(2) of chapter 3:06 of the Senate Administrative Rules, all committees have power, for the remainder of the current session, to engage the services of such counsel and technical, clerical, and other personnel as may be necessary for the purpose of their examination and consideration of such bills, subject-matters of bills and estimates as are referred to them.

After debate,

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

o o o

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

That, pursuant to rule 12-18(2), for the remainder of this session, the Standing Senate Committees on Human Rights, Official Languages, and National Security and Defence be authorized to meet at their approved meeting times as determined by the Opposition Whip and the Senate Liberal Whip on any Monday which immediately precedes a Tuesday when the Senate is scheduled to sit, even though the Senate may then be adjourned for a period exceeding a week.

After debate,

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

o o o

The Honourable Senator Martin moved, seconded by the Honourable Senator Marshall:

That, for the remainder of the current session,

(a)when the Senate sits on a Thursday, it shall sit at 1:30 p.m. notwithstanding rule 3-1(1);

(b)when the Senate sits on a Wednesday, it stand adjourned at 4 p.m., unless it has been suspended for the purpose of taking a deferred vote or has earlier adjourned; and

(c)where a vote is deferred until 5:30 p.m. on a Wednesday, the Speaker shall interrupt the proceedings, immediately prior to any adjournment but no later than 4 p.m., to suspend the sitting until 5:30 p.m. for the taking of the deferred vote, and that committees be authorized to meet during the period that the sitting is suspended.

With leave of the Senate and pursuant to rule 5-10(1), the motion, as modified, was further modified to read as follows:

That, for the remainder of the current session,

(a)when the Senate sits on a Thursday, it shall sit at 1:30 p.m. notwithstanding rule 3-1(1);

(b)when the Senate sits on a Wednesday, it shall stand adjourned at the later of 4 p.m. or the end of Question Period, unless it has been suspended for the purpose of taking a deferred vote or has earlier adjourned; and

(c)where a vote is deferred until 5:30 p.m. on a Wednesday, the Speaker shall interrupt the proceedings, immediately prior to any adjournment but no later than 4 p.m., to suspend the sitting until 5:30 p.m. for the taking of the deferred vote, and that committees be authorized to meet during the period that the sitting is suspended.

After debate,

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

o o o

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

That, notwithstanding rule 12-27(1) and subsections 35(1), (4), (5) and (8) of the Ethics and Conflict of Interest Code for Senators, the Honourable Senators Andreychuk, Cordy, Frum, Joyal, P.C. and Tannas, be appointed to serve on the Standing Committee on Ethics and Conflict of Interest for Senators, until such time as a motion pursuant to rule 12-27(1) is adopted by the Senate; and

That, when a vacancy occurs in the membership of the committee before the establishment of the committee pursuant to rule 12-27(1), the replacement member shall be appointed by order of the Senate.

After debate,

In amendment, the Honourable Senator McCoy moved, seconded by the Honourable Senator Wallace:

That the motion be not now adopted, but that it be amended by replacing all words following the words “Ethics and Conflict of Interest Code for Senators,” by the following:

“the Standing Committee on Ethics and Conflict of Interest for Senators be composed of two Conservative senators, two Liberal senators, and one independent senator;

That the Conservative senators select the Conservative members to sit on the committee by means of a secret ballot;

That the Liberal senators select the Liberal members to sit on the committee by means of a secret ballot;

That the independent senators who are authorized to attend the Senate select the independent member to sit on the committee by means of a secret ballot;

That each of the groups of Conservative, Liberal and independent senators select a representative to move a motion in the Senate without notice that the selected senator or senators be a member or members of the committee, which motion shall be deemed seconded and adopted when moved;

That, when a vacancy occurs in the membership of the committee before the establishment of the committee pursuant to rule 12-27(1), the replacement member be appointed by the same process used to name the previous member of the committee; and

That the membership of Standing Committee on Ethics and Conflict of Interest for Senators as established pursuant to this motion remain in effect until such time as a motion pursuant to rule 12-27(1) is adopted by the Senate.”.

After debate,

A point of order was raised with respect to the requirements to amend the Rules of the Senate.

SPEAKER'S RULING

Senator Fraser has already given notice of the motion.  Under rule 5-6(1)(a), two days’ notice is required for a motion to amend the Rules, while under rule 5-5(a) one day’s notice is required to suspend a rule or part of a rule.  So debate can proceed.

The Senate resumed debate on the motion of the Honourable Senator Fraser, seconded by the Honourable Senator Joyal, P.C.:

That, notwithstanding rule 12-27(1) and subsections 35(1), (4), (5) and (8) of the Ethics and Conflict of Interest Code for Senators, the Honourable Senators Andreychuk, Cordy, Frum, Joyal, P.C. and Tannas, be appointed to serve on the Standing Committee on Ethics and Conflict of Interest for Senators, until such time as a motion pursuant to rule 12-27(1) is adopted by the Senate; and

That, when a vacancy occurs in the membership of the committee before the establishment of the committee pursuant to rule 12-27(1), the replacement member shall be appointed by order of the Senate.

And on the motion in amendment of the Honourable Senator McCoy, seconded by the Honourable Senator Wallace:

That the motion be not now adopted, but that it be amended by replacing all words following the words “Ethics and Conflict of Interest Code for Senators,” by the following:

“the Standing Committee on Ethics and Conflict of Interest for Senators be composed of two Conservative senators, two Liberal senators, and one independent senator;

That the Conservative senators select the Conservative members to sit on the committee by means of a secret ballot;

That the Liberal senators select the Liberal members to sit on the committee by means of a secret ballot;

That the independent senators who are authorized to attend the Senate select the independent member to sit on the committee by means of a secret ballot;

That each of the groups of Conservative, Liberal and independent senators select a representative to move a motion in the Senate without notice that the selected senator or senators be a member or members of the committee, which motion shall be deemed seconded and adopted when moved;

That, when a vacancy occurs in the membership of the committee before the establishment of the committee pursuant to rule 12-27(1), the replacement member be appointed by the same process used to name the previous member of the committee; and

That the membership of Standing Committee on Ethics and Conflict of Interest for Senators as established pursuant to this motion remain in effect until such time as a motion pursuant to rule 12-27(1) is adopted by the Senate.”.

After debate,

The Honourable Senator Martin moved, seconded by the Honourable Senator Runciman, that further debate on the motion in amendment be adjourned until the next sitting.

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

SPEAKER'S RULING

I am now prepared to rule on the question of privilege raised by Senator Housakos on December 8, 2015. His basic concern relates to the lack of a Leader of the Government in the Senate.

In his remarks, Senator Housakos noted that the Senate has always had among its senators a representative of the government. He argued that the Prime Minister has not fulfilled an obligation to name a government leader in the Senate, which is an affront to our parliamentary system and contempt to the dignity of Parliament. He went on to state that senators would not have the right to question the leader on matters of public affairs during Question Period, a key component in senators’ role to hold the government to account. Senator Batters supported Senator Housakos’ premise and reasoned that the failure to appoint a leader impeded the Senate’s ability to regulate its own proceedings and deliberations as well as the ability of senators to protect regional interests.

Other senators questioned which of the Senate’s privileges were being breached by the lack of a Government Leader and noted that historically the Senate has evolved and adapted its Rules and practices to address changes in its organization. Senator Cools indicated that Question Period is only a relatively recent addition to the Senate’s procedure. Senator Joyal remarked that even though the Leader of the Government is recognized in statute, the Senate does not have a corollary right to compel the government to appoint a leader.

Senator Fraser stated that the core function of the Senate is to review, initiate or amend legislation, not to hold the government to account, which she argued is primarily a role for the other place as the confidence chamber. Senator Joyal affirmed that the essence of a senator’s role is to debate and that the lack of a Government Leader does not impede this ability. Both argued that senators can continue to invite ministers to appear in the Senate or before our committees as a means for the government to answer questions relating to its policies or legislation.

Senators McCoy and Maltais also contributed to the debate on this question of privilege. I would like to thank all senators for their contribution to this important question.

The Speaker’s role at this stage is not to decide whether a breach of privilege has in fact occurred, which is a decision that ultimately belongs to the Senate. My role at this initial stage is limited to determining whether the question of privilege raised meets the four criteria listed in rule 13-2(1) and should, therefore, be accorded priority over other proceedings of this house.

The first criterion is that the question “be raised at the earliest opportunity.” The leader in the Senate of a new government has traditionally been appointed when the Cabinet is sworn in. The current government was sworn in on November 4, 2015, and no senator has since been appointed as Government Leader. The first two sitting days of the 42nd Parliament, December 3rd and 4th, were devoted to the traditional ceremonies and procedures related to the opening of a new Parliament. Senator Housakos raised his question of privilege on December 8th, the first normal sitting of the new session and the first sitting at which he could avail himself of the procedure established in Chapter 13 of the Rules. As such, I am satisfied that the first criterion has been met.

The second and third criteria can be, and often have been, considered together in rulings. 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.”

Parliamentary privilege relates to the privileges, immunities and powers enjoyed by the Senate and each of its members without which they could not discharge their legislative and deliberative functions. Senator Housakos argued, in substance, that the Senate and senators cannot discharge their parliamentary functions in the absence of a Leader of the Government in the Senate.

The appointment of a Leader of the Government has always been a prerogative of the executive. Since Confederation there has always been a senator who was designated by the government to manage government business and ensure its dispatch in this chamber. The senator was first chosen among one of the ministers of the Crown in the Senate. Over time, as the number of ministers in this house declined, this responsibility was entrusted to a minister without portfolio designated as the Leader of the Government in the Senate. The position was first recognized in statute in 1947 for the purpose of providing an additional allowance to its holder.

The Senate only explicitly recognized the position of Government Leader over time and integrated the office into its procedure gradually, notably in 1968 – when the Rules were amended and Question Period established – and in 1991 – when a formal distinction was made between Government and Other Business. 

Senator Housakos and Senator Batters stated that the absence of a Leader of the Government would impede the Senate’s ability to regulate its own proceedings and deliberations, and the freedom of speech of senators. They also argued that it would impede senators’ right to hold the government accountable and to represent their constituents. 

The right of this house to regulate its proceedings free from outside interference and senators’ freedom of speech are both authoritatively established parliamentary privileges. The absence of a Leader of the Government does not, in any way, jeopardize these privileges. The Senate still has the unfettered right to establish its procedure and conduct its proceedings as it sees fit, and senators can participate in debate without inhibition and with the full protection of privilege. Furthermore, while this house might not benefit from the government’s perspective as presented by the Leader of the Government in the Senate, this is a political matter rather than one of privilege.

As for the right of the Senate and its members to hold the government to account and for senators to represent their constituents, these do not relate to known parliamentary privileges but are rather aspects of the parliamentary work that freedom of speech already allows each senator to accomplish.

I note that while there might not be a Leader of the Government in this chamber, senators have other avenues to engage the government and question its legislation and policies. I would remind senators of the existence of rule 2-12, which allows for ministers to participate in proceedings in the chamber in certain circumstances, although this provision has been rarely used in recent years.  We also have the very well established practice of ministers appearing before our committees as witnesses.  I also take note of the motion proposed by Senator Carignan, and adopted by the Senate on December 10, 2015, regarding ministers participating in Question Period, which has indeed occurred recently.  The mechanism of written questions to the government is also available to honourable senators. 

Thus, the question raised by Senator Housakos does not concern a serious breach of privilege either of this House or of its members. The second and third criteria have not been met.

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.” While Senator Housakos has indicated that he would be prepared to move a motion seeking genuine remedies should the matter be found to be a prima facie case of privilege, I have already indicated that the appointment of a Leader is the prerogative of the Crown over which the Senate has no power. Therefore, this criterion has also not been met.

Since a question of privilege must meet all the criteria of rule 13-2(1) to be given priority, my ruling must be that there is no prima facie case of privilege.

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With leave,

The Senate reverted to Notices of Motions.

With leave of the Senate,

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

That when the Senate adjourns today, it do stand adjourned until Tuesday, February 16, 2016 at 2 p.m.

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

ADJOURNMENT

The Honourable Senator Martin moved, seconded by the Honourable Senator Fraser:

That the Senate do now adjourn.

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

(Accordingly, at 4:56 p.m., the Senate was continued until Tuesday, February 16, 2016, at 2 p.m.)

DOCUMENTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 14-1(7)

List of Commissions issued for the year 2015, pursuant to the Public Officers Act, R.S.C. 1985, c. P-31, s. 4.—Sessional Paper No. 1/42-146.

Copy of the Directive to the Business Development Bank of Canada, the Canadian Tourism Commission and the Standards Council of Canada regarding travel, hopitality, conference and event expenditures policies (P.C. 2015-1109), pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 89(4).—Sessional Paper No. 1/42-147.

Report of the Northern Pipeline Agency for the fiscal year ended March 31, 2015, pursuant to the Northern Pipeline Act, R.S.C. 1985, c. N-26, ss. 13 and 14.—Sessional Paper No. 1/42-148.

Report of Atomic Energy of Canada Limited, together with the Auditor General’s Report, for the fiscal year ended March 31, 2015, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 150(1).—Sessional Paper No. 1/42-149.

Report on the state of Canada’s forests for the year 2015, pursuant to the Department of Natural Resources Act, S.C. 1994, c. 41, sbs. 7(2).—Sessional Paper No. 1/42-150.

Report of the Canadian Nuclear Safety Commission, together with the Auditor General’s Report, for the fiscal year ended March 31, 2015, pursuant to the Nuclear Safety and Control Act, S.C. 1997, c. 9, s. 72.—Sessional Paper No. 1/42-151.

Copy of the Directive to the Atomic Energy of Canada Limited regarding travel, hospitality, conference and event expenditures policies (P.C. 2015-1111), pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 89(4).—Sessional Paper No. 1/42-152.

Report of the Canadian Centre for Occupational Health and Safety, together with the Auditors’ Report, for the fiscal year ended March 31, 2015, pursuant to the Canadian Centre for Occupational Health and Safety Act, R.S.C. 1985, c. C-13, sbs. 26(2).—Sessional Paper No. 1/42-153.

Reports of the Office of Infrastructure of Canada for the fiscal year ended March 31, 2015, 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. 1/42-154.

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Changes in Membership of Committees Pursuant to Rule 12-5

Standing Senate Committee on Foreign Affairs and International Trade

The Honourable Senator Poirier replaced the Honourable Senator Beyak (February 4, 2016).

The Honourable Senator Beyak replaced the Honourable Senator Poirier (February 4, 2016).

The Honourable Senator Oh replaced the Honourable Senator Beyak (February 4, 2016).

The Honourable Senator Poirier replaced the Honourable Senator Raine (February 4, 2016).

Standing Senate Committee on Legal and Constitutional Affairs

The Honourable Senator Plett replaced the Honourable Senator MacDonald (February 4, 2016).