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The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Bacon, Baker, Banks, Biron, Bryden, Callbeck, Campbell, Chaput, Cochrane, Comeau, Cools, Corbin, Cordy, Cowan, Dallaire, Dawson, Day, De Bané, Downe, Dyck, Eggleton, Eyton, Fairbairn, Fitzpatrick, Fortier, Fox, Fraser, Furey, Goldstein, Grafstein, Harb, Hays, Hubley, Jaffer, Johnson, Joyal, Kinsella, Lavigne, LeBreton, Losier-Cool, Mahovlich, Massicotte, Meighen, Merchant, Milne, Moore, Munson, Murray, Nancy Ruth, Nolin, Oliver, Pépin, Peterson, Phalen, Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, Segal, Smith, Stollery, Stratton, Tardif, Tkachuk, Trenholme Counsell, Watt, Zimmer
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Bacon, Baker, Banks, Biron, Bryden, Callbeck, Campbell, Chaput, Cochrane, Comeau, Cools, Corbin, Cordy, Cowan, Dallaire, Dawson, Day, De Bané, Downe, Dyck, Eggleton, Eyton, Fairbairn, Fitzpatrick, Fortier, Fox, Fraser, Furey, Goldstein, Grafstein, Harb, Hays, Hubley, Jaffer, Johnson, Joyal, Kinsella, Lavigne, LeBreton, Losier-Cool, Mahovlich, Massicotte, Meighen, Merchant, Milne, Moore, Munson, Murray, Nancy Ruth, Nolin, Oliver, Pépin, Peterson, Phalen, Prud'homme, Ringuette, Rivest, Robichaud, Rompkey, Segal, Smith, Stollery, Stratton, Tardif, Tkachuk, Trenholme Counsell, Watt, Zimmer,
PRAYERS
Some Honourable Senators made statements.
Presentation of Reports from Standing or Special Committees
The Honourable Senator Hays, Chair of the Special Senate Committee on Senate Reform, tabled its first report (subject-matter of Bill S-4, An Act to amend the Constitution Act, 1867 (Senate tenure)).—Sessional Paper No. 1/39- 533S.
The Honourable Senator Hays moved, seconded by the Honourable Senator Fraser, that the report be placed on the Orders of the Day for consideration two days hence.
The question being put on the motion, it was adopted.
The Honourable Senator Hays, Chair of the Special Senate Committee on Senate Reform, presented its second report (motion to amend the Constitution of Canada (western regional representation in the Senate), without amendment but with observations.).
(The report is printed as Appendix "A'' )
The Honourable Senator Hays moved, seconded by the Honourable Senator Fraser, that the report be placed on the Orders of the Day for consideration two days hence.
The question being put on the motion, it was adopted.
The Honourable Senator Bacon presented the following:
Thursday, October 26, 2006
The Standing Senate Committee on Transport and Communications has the honour to present its
FIFTH REPORT
Your Committee, to which was referred the document entitled "New Fees for Services Provided by Industry Canada Relating to Telecommunications and Radio Apparatus,'' has, in obedience to the Order of Reference of Tuesday, September 26, 2006, examined the proposed changes to existing user fees and, in accordance with section 5 of the User Fees Act, recommends that they be approved.
Your Committee notes that this is the first time that this process has been used since the adoption of the User Fees Act, and recognizes that it provides important improvements in transparency.
Your Committee further notes that these proposals were reductions to existing user fees, resulting from improved efficiencies. It is hoped that future proposals will be in the same vein.
Respectfully submitted,
LISE BACON
Chair
The Honourable Senator Bacon moved, seconded by the Honourable Senator Robichaud, P.C., 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 Eyton, Joint Chair of the Standing Joint Committee for the Scrutiny of Regulations, tabled its third report (Report No. 77 — Tabling of Statutory Instruments). —Sessional Paper No. 1/39-534S.
The Honourable Senator Eyton moved, seconded by the Honourable Senator Nancy Ruth, 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.
Tabling of Reports from Inter-Parliamentary Delegations
The Honourable Senator Grafstein tabled the following:
Report of the Canadian Delegation of the Canada-United States Inter-Parliamentary Group, respecting its participation at the Southern Governors' Association 2006 Annual Meeting, held in New Orleans, Louisiana, from July 15 to 17, 2006.—Sessional Paper No. 1/39-535.
Report of the Canadian Delegation of the Canada-United States Inter-Parliamentary Group, respecting its participation at the Western Governors' Association 2006 Annual Meeting, held in Sedona, Arizona, from June 11 to 13, 2006.—Sessional Paper No. 1/39-536.
Presentation of Petitions
The Honourable Senator Peterson presented petitions:
Of Residents of the province of Saskatchewan concerning the CBC film entitled Prairie Giant: the Tommy Douglas Story.
Pursuant to rule 25(2), the Honourable Senator Comeau, tabled the following:
Reply to Question No. 2, dated April 4, 2006, appearing on the Order Paper and Notice Paper in the name of the Honourable Senator Downe, respecting Governor in Council appointments. —Sessional Paper No. 1/39-537S.
SPEAKER'S RULING
Last Tuesday, during the time for Statements, Senator Stratton advised the Senate that he had decided not to proceed with his question of privilege that he had raised last Thursday, October 19.
Honourable Senators will recall that I had reserved my decision on Senator Fraser's point of order which touched on the adequacy of the notice in relation to the alleged breach of privilege claimed by Senator Stratton. This point of order remains outstanding. Senator Stratton's decision with respect to forsaking his intention to pursue the question of privilege does not eliminate my obligation to deal with this point of order.
Let me briefly summarize elements of the exchanges brought up last Thursday with respect to this point of order. Senator Fraser began by objecting that the notices given by Senator Stratton were inadequate because there was too little information about the substance of the privilege complaint. Based on this limited information, she maintained that no senator could know what the question of privilege was about. A number of Senators also contributed their views. For his part, Senator Comeau, while generally empathetic with Senator Fraser's position, explained that rule 43, as it is currently written, requires only that a senator give notice "without in any way having to provide the substance of the motion.'' The Senator stated that the rules do not require more than a simple notice. Senator Cools echoed some of the arguments of Senator Fraser. According to Senator Cools, notice ensures that senators are not caught or taken by total surprise. As she explained, the notice should contain enough information to allow senators to prepare themselves should they want to speak on the question of privilege. Senator Austin was also of the view that the "disclosure of a general nature'' of the question of privilege is necessary. Finally, Senator Banks, without taking a specific position, pointed to an apparent conflict between rule 43(1) and rule 59(10). I wish to thank all Honourable Senators who participated in the exchanges on this point of order.
Since the time when the point of order was first raised, I have taken the opportunity to study the rules, read the authorities and examine recent practices to inform myself as best I can about how rule 43 should be understood and applied. The specific issue at hand is whether Senator Stratton's written and oral notices were sufficient to satisfy the requirements of Rule 43.
In assessing the meaning of notice, which is central to the determination of this point of order, it is essential to look to the purpose of the particular notice required. I feel it appropriate to consider not just rule 43, but other Senate rules as well as current practices that provide a better sense of what notice is meant to be and the purposes that it serves. Part VI of the Rules of the Senate, from rule 56 through 59, is all about notices. Not only do these rules identify the period of a notice, either one or two days when notice is required at all, but they also confirm that the content of the notice must be meaningful. For example, as rule 56(1) states: "when a Senator wishes to give notice of an inquiry or a substantive motion, the Senator shall reduce the notice to writing, sign it, read it during a sitting of the Senate ... and send it forthwith to the Clerk at the Table.'' Similarly, rule 56(2) requires that a Senator seeking to propose an inquiry shall "as part of the notice under this rule give notice that he will call the attention of the Senate to the matter to be inquired into.'' It is not adequate, as a notice, to state simply an intention to move a motion or to propose an inquiry. To suggest otherwise would seriously distort the meaning and intent of the notice. As an example, who would accept as adequate notice a Senator's declaration to move a motion without any indication of its content or to have a committee undertake a study without knowing what it was about? Notice must include some content indicating the subject being proposed for debate and decision.
The merit of this proposition is evident from any review of the authorities that are often used to guide the understanding of Senate procedures. Marleau-Montpetit's House of Commons Procedure and Practice at page 464, explains that the purpose of notice "is to provide Members and the House with some prior warning so that they are not called upon to consider a matter unexpectedly.'' Motions for which notice is routinely required usually seek to solicit a decision of the Senate, either to order something be done or to express a judgment on a particular matter. Such motions are always subject to debate and the notice is required in order to allow parliamentarians to inform themselves of this upcoming debate and to prepare themselves should they wish to participate in the debate. In a ruling of June 21, 1995, Speaker Molgat reiterated the explanation for notice:
The purpose of giving notice is to enable honourable senators to know what is coming so that they can have an opportunity to prepare. Why else would there be notice? They must have an opportunity to get themselves ready for the discussion. It is not meant to delay the work of the Senate. It is simply meant to bring order.
As to the specific notice requirements for a question of privilege, it must be stressed that the rules are somewhat different as to the process to be followed. As already noted, a senator seeking to raise a question of privilege must deliver a written notice to the Clerk's office three hours before a sitting in order to allow enough time to distribute it to all Senators. In addition, the Senator must provide oral notice during Senators' Statements. This double notice requirement reflects the importance to be accorded any claim to a question of privilege which a Senator wishes to expedite under rule 43. In addition, the requirements were deliberately imposed in order to allow reasonable preparation for consideration of the question of privilege to be raised the same day. This, in fact, is the exceptional aspect of the notice. The written notice alerts Senators of the possibility that a certain question of privilege may be brought to the attention of the Senate. The oral notice confirms that a Senator intends to pursue the matter at the conclusion of business under Orders of the Day. This is why I feel that the proper reading of the rule demands that the notice be sufficiently explanatory and comprehensive. In other words, the notice must clearly identify the matter that will be raised as a question of privilege.
I have reviewed past notices since the inception of rule 43 in 1991. In all cases that I have seen, Senators had provided an indication of the claimed question of privilege. In one case, the Senator did not adequately indicate the nature of the question of the privilege in the oral notice, but the written notice was clear enough about the complaint and no point of order was raised to challenge the oral notice. In another example, I have discovered a situation where the written notice was not followed by the oral notice, presumably because the Senator had decided to abandon the matter as a question of privilege. In all other cases reviewed thus far, both notices indicated the subject of the complaint giving rise to the question of privilege.
In this particular case, neither the written nor the oral notice provided by Senator Stratton dealt with the subject matter of the question of privilege. They simply stated that the Senator was going to raise a question involving "a contempt of Parliament'' that "constitutes an affront to the privileges of every senator and of this place''. These notices were insufficient. Accordingly, the point of order raised by Senator Fraser is well founded and, therefore, it would not have been possible for Senator Stratton to proceed with his question of privilege under rule 43 based on the inadequate notice provided.
Before sitting down, I wish to deal with two other issues associated with this point of order. First, I want to refer to the attempt made by Senator Stratton to present his motion on the question of privilege at the close of last Thursday's sitting. The Senator explained that he was doing this in accordance with rule 59(10) which allows for raising a question of privilege without notice. Senator Fraser immediately intervened to object to the proceeding and I then reminded the Senate of the fact that I had already reserved my decision and that it would be out of order to proceed with the alleged question of privilege at this time.
When Senator Fraser spoke in objection to what Senator Stratton attempted to do, she explained that rule 59(10) was probably designed to deal with circumstances arising in the course of an actual sitting. As she said "That is the only explanation I can find for the fact that rule 59(10) exists...'' As part of my investigation, I looked at the work on the rule changes made in 1991. Before those changes were adopted, there was no mechanism to raise a question of privilege on notice. The old rule simply provided that:
When a matter or question directly concerning the privileges of the Senate, of any committee thereof, or of any Senator, has arisen, a motion calling upon the Senate to take action thereon may be moved without notice and, until decided, shall, unless the debate be adjourned, suspend the consideration of other motions and of the Orders of the Day.
Rule 59(10) is clearly linked to this old rule that has been completely displaced by current rule 43. What I suspect happened is that in making the consequential changes to the rules, this particular change was not properly adjusted, either to delete it entirely or to modify it to explain under what conditions a question of privilege could be raised without notice. I suspect that this is one of perhaps several rules that remain inconsistent with other rules or that are not easy to understand. It might be appropriate at some point to have the Standing Committee on Rules, Procedures and the Rights of Parliament look into this matter and clean up any of the anomalies and inconsistencies still in our rules.
While the Rules Committee is looking at that problem, it might also look at the second issue that I want to mention. Last Thursday, just after Senator Stratton gave oral notice during Senators' Statements, Senator Fraser sought to challenge the notice on a point of order. I responded by explaining that it was not possible to raise a point of order at that time. When I made this statement, I was working under the impression that Senators' Statements are part of the daily Routine of Business and that, in accordance with rule 23(1), points of order or questions of privilege are prohibited until we come to Orders of the Day. This, I think, is a view which is widely accepted and which appears to be reinforced by some of the language of our rules and operating documents, including the Order Paper. As I was preparing this decision, however, I looked more closely at the Rules of the Senate and I have come to a different position. Contrary to what I had previously believed, Senators' Statements are not, in fact, part of the daily Routine of Business. This is evident from a careful reading of rule 23(6). The fifteen minutes allocated to Senators' Statements are not part of the thirty minutes allowed for the Routine of Business which begins with the Tabling of Documents and continues through Presenting Petitions which is called immediately prior to Question Period. My revised understanding as to the proper boundaries of the Routine of Business has been supported by a previous Speaker's ruling made December 11, 1997. Nonetheless, I feel that some of the Rules could be more clearly written and perhaps the Rules Committee might undertake to do this so as to reduce some of the confusion and misunderstanding that sometimes occurs. In this respect, I share some of the sentiments that were expressed by Senator Comeau and Senator Cools during the exchanges on this point of order last Thursday.
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.
Senate Public Bills
Orders No. 1 to 9 were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator St. Germain, P.C., seconded by the Honourable Senator Segal, for the second reading of Bill S-216, An Act providing for the Crown's recognition of self-governing First Nations of Canada.
After debate,
The Honourable Senator Fraser, for the Honourable Senator Austin, P.C., moved, seconded by the Honourable Senator Milne, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Orders No. 11 and 12 were called and postponed until the next sitting.
Private Bills
Resuming debate on the motion of the Honourable Senator Di Nino, seconded by the Honourable Senator Cochrane, for the second reading of Bill S-1001, An Act respecting Scouts Canada.
After debate,
The question being put on the motion, it was adopted.
The bill was then read the second time.
The Honourable Senator Comeau moved, seconded by the Honourable Senator Banks, that the bill be referred to the Standing Senate Committee on Legal and Constitutional Affairs.
The question being put on the motion, it was adopted.
Reports of Committees
Orders No. 1 to 7 were called and postponed until the next sitting.
Other
Orders No. 14, 17 (inquiries), 101 (motion), 9 and 7 (inquiries) were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Segal, seconded by the Honourable Senator Di Nino:
That the Senate calls upon the Government of Canada:
(a) to cause the bringing into force of section 80 of the Public Safety Act, 2002, Chapter 15 of the Statutes of Canada 2004, assented to on May 6, 2004, which amends the National Defence Act by adding a new Part VII dealing with the reinstatement in civil employment of officers and non-commissioned members of the reserve force;
(b) to consult with the provincial governments as provided in paragraph 285.13(a) of the new Part VII with respect the implementation of that Part; and
(c) to take appropriate measures in order for the provisions under the new Part VII to apply to all reservists who voluntarily participate in a military exercise or an overseas operation, and not to limit the provisions to those reservists who are called out on service in respect of an emergency.
After debate,
The Honourable Senator Fraser moved, seconded by the Honourable Senator Fox, P.C., that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
With leave,
The Senate reverted to Notices of Motions.
With leave of the Senate,
The Honourable Senator Andreychuk moved, seconded by the Honourable Senator Stratton:
That the Standing Senate Committee on Human Rights have the power to sit on Monday, October 30, 2006, even though the Senate may then be sitting, and that Rule 95(4) be suspended in relation thereto.
The question being put on the motion, it was adopted.
Other
Orders No. 15, 3, 5, 6, 8 (inquiries), 5, 10 (motions) and 11 (inquiry) were called and postponed until the next sitting.
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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, October 30, 2006, at 6 p.m. and that rule 13(1) be suspended in relation thereto.
The question being put on the motion, it was adopted.
With leave of the Senate,
The Honourable Senator Comeau moved, seconded by the Honourable Senator Stratton:
That the Senate do now adjourn during pleasure to reassemble at the call of the chair with a fifteen minute bell.
After debate,
The question being put on the motion, it was adopted.
(Accordingly, at 3:37 p.m. the sitting was adjourned during pleasure.)
At 8:32 p.m. the sitting resumed.
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With leave,
The Senate reverted to Presentation of Reports From Standing or Special Committees.
The Honourable Senator Stratton, for the Honourable Senator Oliver, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, presented its fourth report (Bill C-2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, with amendments and observations).
(The report is printed as Appendix "B'')
The Honourable Senator Stratton moved, seconded by the Honourable Senator Nolin, 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.
Ordered, That the observations of the fourth report of the Standing Senate Committee on Legal and Constitutional Affairs be printed as an Appendix to the Debates of the Senate of this day.
Report of the Nisga'a Final Agreement: Implementation Report for 2004-2005.—Sessional Paper No. 1/39-532.
The Honourable Senator Comeau moved, seconded by the Honourable Senator Oliver:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 8:35 p.m. the Senate was continued until Monday, October 30, 2006 at 6:00 p.m.)
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Changes in Membership of Committees Pursuant to Rule 85(4)
Standing Senate Committee on Agriculture and Forestry
The name of the Honourable Senator Mercer substituted for that of the Honourable Senator Downe (October 25).
Special Senate Committee on Senate Reform
The name of the Honourable Senator Dawson substituted for that of the Honourable Senator Fraser (October 25).
Standing Senate Committee on Social Affairs, Science and Technology
The name of the Honourable Senator Carstairs substituted for that of the Honourable Senator Cowan (October 25).
