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Motion to Instruct National Finance Committee to Divide Bill into Two Bills—Point of Order—Speaker's Ruling Reserved


Hon. André Pratte, pursuant to notice of June 13, 2017, moved:

That it be an instruction to the Standing Senate Committee on National Finance that it divide Bill C-44, An Act to implement certain provisions of the budget tabled in Parliament on March 22, 2017 and other measures, into two bills, in order that it may deal separately with the provisions relating to the Canada Infrastructure Bank contained in Division 18 of Part 4 in one bill and with the other provisions of Bill C-44 in the other bill.

Hon. Serge Joyal: If you will allow me, honourable colleagues, I will come to the defence of a former Speaker, Senator Charbonneau. I happened to have succeeded Senator Charbonneau in the Kennebec district in Quebec. Before being appointed in Senator Charbonneau's district, I knew Senator Charbonneau personally, and I may confess today that Senator Charbonneau offered to shepherd me for an appointment in the Senate.

Of course, in those days, it was Prime Minister Mulroney who was the head of the government, and I asked Senator Charbonneau, "Where will I have to sit in the chamber, on the government side — which was, of course, the Progressive Conservative Party — or, on the opposition side, as a Liberal?" Of course, as I look at my friend Senator Plett, I am a noted Liberal. At that time, I was even policy chair of the Liberal Party.

He said to me, "Well, it's going to be difficult for the Prime Minister to appoint a Liberal, so you might sit as an independent." Maybe he had a premature kind of idea or intuition in his head, but I said, "Senator Charbonneau, I cannot sit as an independent. Nobody will believe me if I sit as an independent. Nobody will believe I am independent."

When I heard some comments about Senator Charbonneau's decision as a Speaker, I felt uncomfortable, honourable senators, because he was a gentleman. He was a fine man. He did his utmost in a very difficult period of time of the Senate. Of course, I want to share those personal sentiments because I think it's fair for the memory of somebody who devoted the best of his talents and energy to serve this institution.

That being said, honourable senators, I would like to offer to you, Your Honour, a certain number of points that have not yet been covered, but I want to be very clear. I want to advise you to take very close consideration of your role as a Speaker on issues that might pertain to constitutional matters. If I can quote Senate Procedure in Practice, at page 219:

Furthermore, in keeping with parliamentary tradition and custom, the Speaker does not rule on points of order about constitutional matters, points of law or hypothetical questions of procedure.

We find exactly the same point in Beauchesne, quotation 323. The Speaker:

. . . will not give a decision upon a constitutional question nor decide a question of law, though the same may be raised on a point of order or privilege.

Then, in House of Commons Procedure and Practice, at page 636:

Though raised on a point of order, hypothetical queries on procedure cannot be addressed to the Speaker, nor may constitutional questions or questions of law.

Honourable Speaker, when I heard the Honourable Government Leader, I humbly submit to you that part of his argument treads on a constitutional issue, which is: What are the powers of the Senate in relation to its capacity to decide how the Senate wants to deal with a bill that has been received from the House of Commons?

It is for the privilege of this chamber to decide how the chamber wants to deal with a bill that has been received from the other place with a Royal Recommendation. It is up to this chamber to exercise its privilege of organizing its study, the way it's going to divide a bill, the way it's going to send part of a bill to a committee and, finally, how the Senate, at the end, will send the bill back to the other place.

When there is a Royal Recommendation to the bill, this is not for the Senate — and it's my second point — to be bound, to be handcuffed to look into what is in the bill. As a matter of fact, I was a part of the government whereby the Prime Minister of the day, the Right Honourable Prime Minister Jean Chrétien, decided — and he announced it in the caucus — that each and every government bill would contain a Royal Recommendation, even though there was no appropriation, no taxes, no financial matter in the bill, just in case, to limit the capacity of the house to intervene and to expand the scope of a bill.

I thought, and I'm still of the conviction, that, when we have a Royal Recommendation of a bill, that Royal Recommendation pertains to the section of the bill that deals with taxes and appropriation. That's the essence of the Royal Recommendation. You will understand, Your Honour, that, put in the other extreme, it would mean that, with any bill with Royal Recommendation, we would be handcuffed as a chamber to look into it, and it is for our privilege to decide how we are going to deal with a bill. As the Government Leader mentioned, we can amend a bill. So we can decide to add to a bill, or, as the Government Leader has said, we can delete a bill. In the context of Bill C-44, the Government Leader has contended that, in fact, we could delete the whole Division 18 of the bill, Part 4, and return the bill with no infrastructure bank at all.

But if we divide the bill and study the infrastructure bank and return it amended, then, of course, we would have improved the bill, but the subject and priority of the government would have been addressed. The fact that the government would have asked for our advice and consent on that section of the bill would have been filled, according to section 91 of the Constitution. So there is an illogical element of reasoning to contend that we can amend a bill, we can add to a bill, we can delete a bill, but we cannot divide a bill to return it, amended, to the other place. There is something that shocks the rationale of how this house has the privilege to organize its work and its study in relation to a bill and return the bill to the other place.

When we return the bill to the other place, what do we do? We inform the other place that we have studied the bill, that we have done with the bill what we think is proper in relation to our constitutional duty in relation to regions and sectional interests. If we decide to abandon our power to divide a bill, honourable senators, reflect seriously about the constitutional power that you are abandoning.

I think that I can understand the logic of the government to refuse the division of the bill. What is the logic of the government in relation to the Senate, now that the Senate is "independent"? It is, essentially, to reflect on how the uncertain or questionable procedure could not be redefined in a way that would limit the margin of manoeuvre of the Senate. I think, Your Honour, that this is a very political question, and it's bound to the very nature of the power of this chamber, and it is a constitutional issue that I submit to you very politely and respectfully to think very seriously about before you move on that ground. If there is a political power game with the other place, it is for this chamber to determine how that power will be exercised. And not through an adjudication, through a court process, whereby we address a question to the Supreme Court, as in a reference, and ask the court to determine how far the power goes and how far it should be restricted.

This is, in my opinion, on the basis of three precedents that this institution has lived through. I remember very well Bill C-10. That's why I'm smiling when I look at you. You were part of that debate in those days. You will remember that former Senator Bryden from New Brunswick was an adamant proponent of dividing the bill on the basis that one part of the bill we had no problem with — it is the same with Bill C-44 — and the other part of the bill needed further study, explanation and witnesses because it was touching on the power of the indigenous people with the right to bear arms and the rights of farmers at that time. We were exercising our responsibility to protect the interests of minorities and the interests of the regions.

As with the infrastructure bank, we have to be sure that those powers will be exercised in an objective way to protect the interests of the smaller regions and municipalities, and how that will function in relation to our priorities when we address the study of a bill.

So in my humble opinion, I contend that the motion put forward by Senator Pratte is totally in sync with the procedure we have followed. It is up to the other place to decide if the message that we will return to them will be acceptable or not.

I want to close by submitting an article written by the Honourable Allan McEachern and published in the Canadian Parliamentary Review in the spring of 1988, entitled "Dividing Bills: A View Point from the Senate." And I want to quote Speaker Fraser from the Commons in 1988 because it has been quoted. What did Speaker Fraser say about the constitutional implication of the decision you are called to take today? I quote Speaker Fraser's ruling:

The Speaker of the House of Commons by tradition does not rule on Constitutional matters. It is not for me to decide whether the Senate has the Constitutional power to do what it has done with Bill C-103

I think there is food for thought there because if the Speaker of the House of Commons came to the conclusion that it's not up to the Speaker to decide about the extent and the scope of a constitutional power of this place, I think that we are bound by the rule of the law, which is the power that we have under section 91. We are called to exercise that power of giving our advice and consent on bills that we receive from the other place.

The same with the Ross report that has been quoted by the government leader. There is in the Ross report also a section, Your Honour that I would submit to you. I quote the Ross report:

That Rule 78 [now #87] of the House of Commons of Canada claiming for that body powers and privileges in connection with Money Bills identical with those of the Imperial House of Commons is unwarranted under the provisions of the British North America Act.

And he goes on to say:

The House of Commons cannot by passing Rules add to its powers or diminish those of the Senate. Rule 78 of the House of Commons is quite outside of the powers of that House.

In other words, Your Honour, we assert our power in studying a bill the way we want to study it. We return it to the other place the way we have seen fit to study it. Then it's for the house to determine what it wants to do with it. On the basis of exchange of views from the two houses, we express our views, they express theirs and we decide accordingly. That's the constitutional convention that we have followed. If we go beyond that, we are entering uncharted territory and that could be very encompassing for future decisions and initiatives in this chamber.

Thank you.

Some Hon. Senators: Hear, hear.