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46 Elizabeth II, A.D. 1997, Canada

Journals of the Senate


Issue 24

Tuesday, December 2, 1997
2:00 p.m.

The Honourable Gildas L. Molgat, Speaker


The Members convened were:

The Honourable Senators

Adams, Andreychuk, Angus, Austin, Bacon, Beaudoin, Berntson, Bolduc, Bonnell, Bryden, Buchanan, Butts, Callbeck, Carstairs, Chalifoux, Cochrane, Cogger, Cohen, Comeau, Cools, Corbin, De Bané, DeWare, Di Nino, Doody, Doyle, Fairbairn, Ferretti Barth, Forest, Forrestall, Ghitter, Gigantès, Grafstein, Graham, Grimard, Gustafson, Hays, Hébert, Hervieux-Payette, Jessiman, Johnson, Joyal, Kelleher, Kelly, Kenny, Keon, Kinsella, Kirby, Lavoie-Roux, Lawson, LeBreton, Losier-Cool, Lucier, Lynch-Staunton, Maheu, Meighen, Mercier, Milne, Molgat, Moore, Murray, Nolin, Oliver, Pearson, Pépin, Perrault, Petten, Phillips, Pitfield, Poulin, Rivest, Roberge, Robertson, Robichaud, (L'Acadie-Acadia), Robichaud, (Saint-Louis-de-Kent), Rompkey, Rossiter, St. Germain, Simard, Sparrow, Spivak, Stewart, Stollery, Stratton, Taylor, Tkachuk, Watt, Whelan, Wood

PRAYERS

INTRODUCTION OF SENATORS

The Honourable the Speaker informed the Senate that the Clerk of the Senate had received certificates from the Registrar General of Canada showing that:-

The Honourable Serge Joyal, P.C., and

Thelma J. Chalifoux,

respectively, had been summoned to the Senate.

The Honourable the Speaker informed the Senate that there were Senators without, waiting to be introduced. The Honourable Senator Joyal, P.C., was introduced between the Honourable Senator Graham, P.C., and the Honourable Senator Hébert, and having presented Her Majesty's Writ of Summons it was read by one of the Clerks at the Table as follows:-

CANADA

Antonio Lamer
(G.S.)

Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories QUEEN, Head of the Commonwealth, Defender of the Faith.

TO

Our Trusty and Well-beloved,

The Honourable

SERGE JOYAL

a Member of Our Privy Council for Canada
and
An Officer of Our Order of Canada,
of the City of Montreal, in the Province of Quebec,

GREETING:

KNOW YOU, that as well for the especial trust and confidence We have manifested in you, as for the purpose of obtaining your advice and assistance in all weighty and arduous affairs which may the State and Defence of Canada concern, We have thought fit to summon you to the Senate of Canada and We do appoint you for the division of Kennebec in Our Province of Quebec.

AND WE do command you that all difficulties and excuses whatsoever laying aside, you be and appear, for the purposes aforesaid, in the Senate of Canada at all times whensoever and wheresoever Our Parliament may be in Canada convoked and holden, and this you are in no wise to omit.

IN TESTIMONY WHEREOF, We have caused these Our Letters to be made Patent and the Great Seal of Canada to be hereunto affixed.

WITNESS:

The Right Honourable Antonio Lamer, Chief Justice of the Supreme Court of Canada and Deputy of Our Right Trusty and Well-beloved Roméo A. LeBlanc, a Member of Our Privy Council for Canada, Chancellor and Principal Companion of Our Order of Canada, Chancellor and Commander of Our Order of Military Merit, Governor General and Commander-in-Chief of Canada.
AT OTTAWA, this twenty-sixth day of November, in the year of Our Lord one thousand nine hundred and ninety-seven and in the forty-sixth year of Our Reign.

BY COMMAND,

JOHN MANLEY

Registrar General of Canada The Honourable Senator Joyal, P.C., came to the Table and took and subscribed the Oath prescribed by law, which was administered by the Clerk of the Senate, the Commissioner appointed for that purpose, and took his seat as a Member of the Senate.

The Honourable Senator Chalifoux was introduced between the Honourable Senator Graham, P.C., and the Honourable Senator Taylor, and having presented Her Majesty's Writ of Summons it was read by one of the Clerks at the Table as follows:-

CANADA

Antonio Lamer
(G.S.)

Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories QUEEN, Head of the Commonwealth, Defender of the Faith.

TO

Our Trusty and Well-beloved,

THELMA J. CHALIFOUX

of Morinville, in the Province of Alberta,

GREETING:

KNOW YOU, that as well for the especial trust and confidence We have manifested in you, as for the purpose of obtaining your advice and assistance in all weighty and arduous affairs which may the State and Defence of Canada concern, We have thought fit to summon you to the Senate of Canada.

AND WE do command you that all difficulties and excuses whatsoever laying aside, you be and appear, for the purposes aforesaid, in the Senate of Canada at all times whensoever and wheresoever Our Parliament may be in Canada convoked and holden, and this you are in no wise to omit.

IN TESTIMONY WHEREOF, We have caused these Our Letters to be made Patent and the Great Seal of Canada to be hereunto affixed.

WITNESS:

The Right Honourable Antonio Lamer, Chief Justice of the Supreme Court of Canada and Deputy of Our Right Trusty and Well-beloved Roméo A. LeBlanc, a Member of Our Privy Council for Canada, Chancellor and Principal Companion of Our Order of Canada, Chancellor and Commander of Our Order of Military Merit, Governor General and Commander-in-Chief of Canada.
AT OTTAWA, this twenty-sixth day of November, in the year of Our Lord one thousand nine hundred and ninety-seven and in the forty-sixth year of Our Reign.

BY COMMAND,

JOHN MANLEY

Registrar General of Canada

The Honourable Senator Chalifoux came to the Table and took and subscribed the Oath prescribed by law, which was administered by the Clerk of the Senate, the Commissioner appointed for that purpose, and took her seat as a Member of the Senate.

The Honourable the Speaker informed the Senate that the Honourable Senators introduced today had made and subscribed the Declaration of Property Qualification required of them by the Constitution Act 1867, in the presence of the Clerk of the Senate, the Commissioner appointed to receive and witness same.

SENATORS' STATEMENTS

Tribute was paid to the memory of the Honourable Daniel A. Lang, former Senator, whose death occurred December 1, 1997. Some Honourable Senators made statements.

DAILY ROUTINE OF BUSINESS

Government Notices of Motions

With leave of the Senate, The Honourable Senator Carstairs moved, seconded by the Honourable Senator Robichaud, P.C. (L'Acadie-Acadia):

That when the Senate adjourns today, it do stand adjourned until tomorrow, Wednesday, December 3, 1997, at 1:30 p.m.

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

Introduction and First Reading of Government Bills

A Message was brought from the House of Commons with a Bill C-10, An Act to implement a convention between Canada and Sweden, a convention between Canada and the Republic of Lithuania, a convention between Canada and the Republic of Kazakhstan, a convention between Canada and the Republic of Iceland and a convention between Canada and the Kingdom of Denmark for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and to amend the Canada-Netherlands Income Tax Convention Act, 1986 and the Canada-United States Tax Convention Act, 1984, to which they desire the concurrence of the Senate.

The Bill was read the first time.

The Honourable Senator Carstairs moved, seconded by the Honourable Senator Adams, that the Bill be placed on the Orders of the Day for a second reading on Thursday next, December 4, 1997.

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

Notices of Motions

With leave of the Senate, The Honourable Senator Stewart moved, seconded by the Honourable Senator Joyal, P.C.:

That the Standing Senate Committee on Foreign Affairs have power to sit at 3:15 p.m. tomorrow, Wednesday, December 3, 1997, even though the Senate may be sitting, and that Rule 95(4) be suspended in relation thereto.

After debate,

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

ANSWERS TO WRITTEN QUESTIONS

Pursuant to Rule 25(2), the Honourable Senator Carstairs tabled the following:

Reply to Question No. 6, dated October 1, 1997, appearing on the Order Paper in the name of the Honourable Senator Kenny, respecting the Alternative Fuels Act-Atomic Energy of Canada Limited.-Sessional Paper No. 1/36-278S.

Reply to Question No. 10, dated October 1, 1997, appearing on the Order Paper in the name of the Honourable Senator Kenny, respecting the Alternative Fuels Act-Cape Breton Development Corporation.-Sessional Paper No. 1/36-279S.

Reply to Question No. 25, dated October 1, 1997, appearing on the Order Paper in the name of the Honourable Senator Kenny, respecting the Alternative Fuels Act- Department of International Financial Institutions.-Sessional Paper No. 1/36-280S.

Reply to Question No. 46, dated October 1, 1997, appearing on the Order Paper in the name of the Honourable Senator Kenny, respecting the Alternative Fuels Act-Department of Status of Women.-Sessional Paper No. 1/36-281S.

Reply to Question No. 62, dated October 21, 1997, appearing on the Order Paper in the name of the Honourable Senator Forrestall, respecting the Canadian Forces.-Sessional Paper No. 1/36-282S.

ORDERS OF THE DAY

GOVERNMENT BUSINESS

Bills

Order No.1 was called and postponed until later this day. Second reading of Bill C-7, An Act to establish the Saguenay-St. Lawrence Marine Park and to make a consequential amendment to another Act.

The Honourable Senator Butts moved, seconded by the Honourable Senator Taylor, that the Bill be read the second time.

After debate,

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

The Bill was then read the second time.

The Honourable Senator Butts moved, seconded by the Honourable Senator Milne, that the Bill be referred to the Standing Senate Committee on Energy, the Environment and Natural Resources.

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

The Order was called to resume debate on the motion of the Honourable Senator Moore, seconded by the Honourable Senator Ferretti Barth, for the second reading of Bill C-16, An Act to amend the Criminal Code and the Interpretation Act (powers to arrest and enter dwellings),

And on the motion in amendment of the Honourable Senator Cools, seconded by the Honourable Senator Sparrow, that the motion be amended by deleting all the words after "That" and substituting the following therefor:

"Bill C-16, An Act to amend the Criminal Code and the Interpretation Act (powers to arrest and enter dwellings), be not now read a second time because
(a) the Senate is opposed to the principle of a bill which has been placed before Parliament as a result of the judgment of the Supreme Court of Canada of May 22, 1997, and of the Court's Orders of June 27 and November 19, 1997;
(b) the Senate finds it repugnant that the Supreme Court is infringing on the sovereign rights of Parliament to enact legislation and is failing to respect the constitutional comity between the courts and Parliament; and
(c) the Court is in effect coercing Parliament by threatening chaotic consequences respecting law enforcement and arrests if Parliament does not pass this bill."

SPEAKER'S RULING

Last Thursday, November 27, during debate on second reading of Bill C-16, an Act to amend the Criminal Code and the Interpretation Act (powers to arrest and enter dwellings), Senator Cools proposed an amendment. The amendment appears to be an alternative to the second reading motion. It declares the opposition of the Senate to the principle of the bill. The amendment also states that the Senate finds the actions of the Supreme Court repugnant because it is infringing the sovereign rights of Parliament and because the Court is in effect coercing Parliament.

When I received this amendment, I indicated to the Senate that I wanted time to consider it in case of any irregularity or any other substantial procedural objection. My action was questioned at the time, but I explained that I felt I had this duty under the broad terms of Rule 18.

In this case, there is no doubt that this amendment is framed in strong language which challenges certain actions taken by the Supreme Court. The amendment is also related to a point of order that Senator Cools raised Thursday, November 20. For these reasons, I felt it prudent to review the amendment. My purpose in doing this is not to restrict the legitimate rights of Senators, but to exercise my responsibilities, as I see them, in order to protect the interests of the Senate as a whole.

When I first saw the amendment and noted its language, I was concerned that it might violate an established rule of debate. This rule found at citation 493(1) of Beauchesne sixth edition states that "all references to judges and courts of justice of the nature of personal attack and censure have always been considered unparliamentary, and the Speaker has always treated them as breaches of order."

However, as is explained in Erskine May at page 380 of the 21st edition, it can be procedurally acceptable to criticize a court and its decisions within certain limits. The most acceptable way to do this is by a substantive motion moved after notice. In this case, because of the particular circumstances of this bill, the motion has been moved as an amendment opposed to the second reading of the bill.

From a procedural point of view, the amendment that has been proposed by Senator Cools must be identified as a reasoned amendment. According to Beauchesne at citation 670 at page 200, a reasoned amendment can be proposed during second reading debate "to place on the record any special reasons for not agreeing to the second reading of a bill." The citation goes on to explain the various possible categories of reasoned amendments. One of them is particularly pertinent to the amendment proposed by Senator Cools. Subsection 5 of the same citation states that a reasoned amendment "may express opinions as to any circumstances connected with the introduction or prosecution of the bill, or otherwise opposed to its progress. It may oppose the principle of the bill but not propose that the bill be withdrawn and a new one introduced."

The effect of a reasoned amendment is to supersede the question for the second reading of the bill. If it is adopted, the motion for the second reading of the Bill C-16 will not be put to the Senate since, by adopting the reasoned amendment, the Senate will have declared its support for a proposition which is contrary to the principle identified with the bill. If the amendment is defeated, however, the motion for the second reading of Bill C-16 will not have been superseded; it will still be before the Senate for further debate and possible amendment.

There can be no doubt that the amendment moved by Senator Cools is clearly opposed to the principle of the bill and it also expresses opinions as to the circumstances related to the bill's introduction and consideration. Furthermore, as I reviewed citation 671 dealing with other procedural criteria that might be used to assess the acceptability of a reasoned amendment, I could only conclude that the amendment is relevant, it is not concerned with the detailed provisions of the bill, it attaches no conditions to the second reading motion and it is more than a direct negation of the principle of the bill. Accordingly, I rule that the amendment is in order.

The Order for resuming the debate on the motion in amendment of the Honourable Senator Cools was postponed until the next sitting in the name of the Honourable Senator Lynch-Staunton. Second reading of Bill C-23, An Act for granting to Her Majesty certain sums of money for the public service of Canada for the financial year ending March 31, 1998.

The Honourable Senator Cools moved, seconded by the Honourable Senator Chalifoux, that the Bill be read the second time.

After debate,

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

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

Motions

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

 ___________________________________________________

Ordered, That Motion No. 34, standing in the name of the Honourable Senator Bacon, be brought forward.

MOTIONS

The Honourable Senator Bacon moved, seconded by the Honourable Senator Pépin:

That the Standing Senate Committee on Transport and Communications have power to sit at 4:00 p.m. on Tuesday December 2, 1997, for its study of Bill S-4, An Act to amend the Canada Shipping Act (maritime liability), 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.

Reports of Committees

Resuming debate on the motion of the Honourable Senator Pépin, seconded by the Honourable Senator Lucier, for the adoption of the Report of the Special Joint Committee to Amend Section 93 of the Constitution Act 1867 concerning the Quebec School System, deposited with the Clerk of the Senate on November 7, 1997.

After debate,

The Honourable Senator Lavoie-Roux moved, seconded by the Honourable Senator DeWare, that further debate on the motion be adjourned until the next sitting.

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

OTHER BUSINESS

Senate Public Bills

Resuming debate on the motion of the Honourable Senator Haidasz, P.C., seconded by the Honourable Senator Corbin, for the second reading of Bill S-7, An Act to amend the Criminal Code to prohibit coercion in medical procedures that offend a person's religion or belief that human life is inviolable.

After debate,

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

The Bill was then read the second time.

The Honourable Senator Carstairs, moved, seconded by the Honourable Senator Hébert, 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.

Order No. 2 was called and postponed until the next sitting.

Reports of Committees

Consideration of the Fourth Report of the Committee of Selection (membership of the Special Joint Committee on Child Custody and Access), presented in the Senate on November 27, 1997.

The Honourable Senator Hébert moved, seconded by the Honourable Senator Maheu, that the Report be adopted.

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

Order No. 2 was called and postponed until the next sitting.

Consideration of the Second Report of the Standing Senate Committee on National Finance (Supplementary Estimates (A) 1997-98), presented in the Senate on November 25, 1997.

The Honourable Senator Stratton moved, seconded by the Honourable Senator Bolduc, that the Report be adopted.

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

Other

Order No. 1 (motion) was called and postponed until the next sitting. Resuming debate on the inquiry of the Honourable Senator Stewart calling the attention of the Senate to the Interim Report of the Standing Senate Committee on Foreign Affairs entitled: "The Importance of the Asia-Pacific Region for Canada".

Debate concluded.

Order No. 3 (motion) was called and postponed until the next sitting.

INQUIRIES

The Honourable Senator Milne called the attention of the Senate to the Controlled Drugs and Substances Act, in which Parliament expressed its approval of the cultivation of hemp in Canada; to hemp's economic potential for Canadian farmers; and to the fact that sixteen months after Royal Assent, Department of Health officials charged with administering the Controlled Drugs and Substances Act have failed to produce a draft of the regulations required to proclaim the hemp provisions.

After debate,

The Honourable Senator Kinsella for the Honourable Senator Spivak moved, seconded by the Honourable Senator DeWare, that further debate on the inquiry be adjourned until the next sitting.

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

MOTIONS

The Honourable Senator Milne moved, seconded by the Honourable Senator Chalifoux:

That the Standing Senate Committee on Legal and Constitutional Affairs have power to sit at 3:15 p.m., on Wednesday, December 3, 1997, even though the Senate may then be sitting and that Rule 95(4) be suspended in relation thereto.

After debate,

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

Ordered That Order No. 3 (motion) under ORDERS OF THE DAY, OTHER BUSINESS, Other be again called.

Resuming debate on the motion of the Honourable Senator Kelly, seconded by the Honourable Senator Prud'homme, P.C.:

That a Special Committee of the Senate be appointed to hear evidence on and consider matters relating to the security intelligence operations of the Government of Canada;

That the Committee examine and report on the extent to which the recommendations of the Report of the Special Committee on Terrorism and the Public Safety (June 1987) and the Report of the Special Committee on Terrorism and the Public Safety (June 1989) have been addressed thus far by the Government of Canada;

That the Committee examine and make recommendations with respect to the adequacy of the review or oversight of the Government of Canada's security and intelligence apparatus, including each of the organizations in departments of government that conduct security and intelligence operations or that have a security and intelligence mandate;

That the Committee examine and make recommendations with respect to intra-governmental and inter-governmental co-ordination relating to the Government of Canada's security intelligence mandate and operations;

That the Committee examine and make recommendations with respect to the overall mandate and current threat assessment capability of the Government of Canada's security intelligence apparatus and of the individual organizations therein;

That seven Senators, to be designated at a later date, act as members of the Committee;

That the Committee have power to report from time to time, to send for persons, papers and records, and to print such papers and evidence from day to day as may be ordered by the Committee; and

That the Committee present its final report no later than April 15, 1998.

After debate,

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

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

 ___________________________________________________

The Honourable Senator Carstairs moved, seconded by the Honourable Senator Hébert:

That the sitting be now suspended until 10:30 p.m.

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

The sitting resumed.

MESSAGES FROM THE HOUSE OF COMMONS

A Message was brought from the House of Commons with a Bill C-24, An Act to provide for the resumption and continuation of postal services, to which they desire the concurrence of the Senate.

The Bill was read the first time.

With leave of the Senate,

The Honourable Senator Carstairs moved, seconded by the Honourable Senator Graham, P.C., that the Bill be placed on the Orders of the Day for a second reading at the next sitting.

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

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

Report of the Canadian Dairy Commission, including its accounts an financial statements certified by Auditor General of Canada, for the year ended July 31, 1997, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, s. 150(1). -Sessional Paper No. 1/36-275.

Order in Council P.C. 1997-1710 dated November 20, 1997, concerning the supplementary agreement intended to amend the Convention between Canada and Switzerland for the avoidance of double taxation with respect to taxes on income and on capital, pursuant to the Implement Conventions Act between Canada and Morocco, Canada and Pakistan, Canada and Singapore ,Canada and the Philippines, Canada and the Republican Republic, Canada and Switzerland for the avoidance of double taxation with respect to income tax, S.C. 1976-77, c. 29, s. 19.-Sessional Paper No. 1/36-276.

Report of the Auditor General of Canada to the House of Commons, Volume 2, dated December 1997, pursuant to the Auditor General Act, S.C. 1994, c. 32, sbs. 7(5).-Sessional Paper No. 1/36-277.

ADJOURNMENT

The Honourable Senator Carstairs moved, seconded by the Honourable Senator Fairbairn, P.C.:

That the Senate do now adjourn.

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


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