Document Information

Date: 1988-06-28
By: Canada (Parliament)
Citation: Canada, Senate Debates, 33rd Parl, 2nd Sess, 1988 at 3766-3775.
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EMERGENCIES BILL

CONSIDERATION IN COMMITTEE OF THE WHOLE CONCLUDED

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On the Order:

The Senate again in Committee of the Whole on the Bill C-77, An Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof.

The Senate was accordingly adjourned during pleasure and put into a Committee of the Whole on Bill C-77, to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other acts in consequence thereof, the Honourable Gildas L. Molgat in the Chair.

The Chairman: Honourable senators, the Senate is now in Committee of the Whole.

Honourable senators, the committee will resume consideration of Bill C-77. As far as I know, there are no further witnesses to be heard. Is it your pleasure to proceed now with a clause-by-clause study of the bill?

Hon. Senators: Agreed.

The Chairman: Shall the title be postponed?

Hon. Senators: Agreed.

The Chairman: Shall clause 1, the short title, stand?

Hon. Senators: Agreed.

The Chairman: Shall clause 2 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 3 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 4 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 5 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 6 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 7 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 8 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 9 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 10 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 11 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 12 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 13 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 14 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 15 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 16 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 17 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 18 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 19 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 20 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 21 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 22 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 23 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 24 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 25 carry?

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Hon. Senators: Carried.

The Chairman: Shall clause 26 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 27 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 28 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 29 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 30 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 31 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 32 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 33 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 34 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 35 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 36 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 37 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 38 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 39 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 40 carry?

Senator Stewart (Antigonish-Guysborough): Mr. Chairman, I am sorry to break your momentum. Clause 40, subclause (1), states:

While a declaration of a war emergency is in effect, the Governor in Council may make such orders or regulations as the Governor in Council believes, on reasonable grounds, are necessary or advisable for dealing with the emergency.

The record of the debate on Bill C-77 in the other House and the record of the consideration of that bill by the committee of the other House suggests that the members did not realize that they were delegating to the Governor in Council the authority to conscript Canadians to serve in the armed forces. Certainly, if they did realize that, little or nothing was said about that important delegation of power.

The Minister of National Defence, when he was before this committee, told us that clause 40 would authorize the government to introduce conscription by order in council. Honourable senators will agree that Parliament should not delegate so great a power to the Governor in Council in general and inclusive words. The minister told us that the government is not asking for the power to impose taxes by order in council; yet we are being asked to give the government the power to conscript personnel. “Send men, not money” is hardly a proposition to which senators would wish to subscribe. I hope that such a proposition would not attract the support of members in the other place.

Accordingly, Mr. Chairman, I move:

That clause 40 of Bill C-77, on page 20, be amended by adding, immediately after subclause (1) thereof, the following subclause:

(1.1) The power under subsection (1) to make orders and regulations may not be exercised for the purpose of requiring persons to serve in the Canadian Forces.

The Chairman: It is moved by the Honourable Senator Stewart (Antigonish-Guysborough), seconded by the Honourable Senator Sinclair:

That clause 40 of Bill C-77, on page 20, be amended by adding, immediately after subclause (1) thereof, the following subclause:

(1.1) The power under subsection (1) to make orders and regulations may not be exercised for the purpose of requiring persons to serve in the Canadian Forces.

Is it your wish, honourable senators, to adopt the amendment?

Senator Bonnell: Honourable senators, before you vote on the amendment, does that mean that according to this legislation- this is the first that I have heard of this-the government of the day has passed a bill that is prepared to demand, by order in council, that people put their lives at stake rather than their pockethooks? They will not pass taxes by order in council, but they will ask them to put their lives up by order in council without an act of Parliament?

In this modern day, with airplanes, telex, telephones and Fax machines, Parliament can be convened quickly in order to pass an act of Parliament rather than conscripting people. Surely to goodness we do not need to have orders in council to have people put their lives on the line when we do not ask them for taxes by the same method.

Senator Flynn: Honourable senators, Senator Stewart has proposed an interesting amendment.

If the generality of the terms of clause 40 has to be limited in the way suggested, it should be limited in many other ways also. Senator Bonnell may be surprised to know that the present legislation, the present War Measures Act, says exactly the same thing, and yet it has never been used to apply conscription; it has never been used to impose a tax; it has never been used in this way.

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I suspect that if any government were to try to take away the discretion of Parliament in these important matters-other than those attempts or experiments in the previous two world wars-Parliament would certainly step in, as it has the right to do because there is a control by Parliament over these decisions. The government has to report to Parliament. and Parliament may intervene, as is provided in some clauses later on.

If we are to give to the terms of clause 40 the meaning suggested by Senator Stewart, we will have to go much further and say that that does not include the power to tax-or the power to do a few other things that do not come to mind at this point.

I do not know if be really wants this amendment to be voted on; if he merely wants to draw the attention of the house to the wide implications of the text of subclause (1) of clause 40, I agree with him. However, if we are to limit this text, we will have to consider many situations other than this one. I certainly would not be prepared to support his amendment without also supporting a host of other amendments that would have to be considered.

Senator Olson: Honourable senators, Senator Flynn has just given the best of reasons for supporting Senator Stewart’s amendment. He said two things:-

Senator Flynn: That is your view, but possibly someone else has something to say.

Senator Olson: Perhaps I could have a few quiet minutes in which to express my views; after all, we granted you the courtesy of silence.

In any event, it seems to me that Senator Flynn has indicated that, while that authority was there, in fact, under the War Measures Act-

Senator Flynn: there is no question. It was there!

Senator Olson: No one is disagreeing with you, but what Senator Stewart said was that it was never used during those two wars. when conscription was asked for, the Prime Minister of the day came to Parliament and sought authority from Parliament to invoke it, whether or not ho bad authority under the War Measures Act to do so. I am not arguing whether or not be did it; I am just assuming that the government bad the authority to do so through the Governor in Council.

Senator Flynn: What I suggested was that, if it was not done, it was because they did not think that they were allowed to do it.

Senator Olson: Well, honourable senators, there may also have been a couple of other reasons, but, in any event, the point that I am raking is that we went through two world wars and approximately 70 years with this provision in the War Measures Act. If it was not used even under the most severe conditions in all of that time, then we should not put it back into law now. If the government intends to impose conscription, as Senator Bonnell has pointed out, and to force people by law to join the armed forces, then surely we should make it a statutory requirement that the government must come and ask Parliament for that authority. Therefore, in my view, that is the very best reason for supporting the amendment that has been moved by Senator Stewart.

Senator Bonnell: Honourable senators, what Senator Flynn has said is probably 100 per cent right; Mackenzie King, in his time, went before Parliament to ask for conscription and would have been given permission by order in council. Of course, in those days we did not have airplanes and other such quick methods to call Parliament together. However, this is 1988. Let us not go back to the old days by giving to a few people the power to conscript our young men and women and ask them to put their lives on the line, when this matter can be dealt with by a Parliament which can now be called together within two days. The members of both houses can be present here in Parliament to consider the matter and Royal Assent can be given, all in one day. But at least the representatives of the people of this country would have an opportunity to have their say.

Imagine a scenario in which the government of the day has the authority to put through an order in council to send our boys and girls overseas to fight in a war. Then, a month later, Parliament is called back and rejects that order in council. What happens then? Must we then bring everyone home again?

Honourable senators, this is 1988; let us be practical about these matters. Surely it should not be left to the whim of a few people in cabinet to make that immediate decision to conscript our Canadian boys and girls into the armed forces without giving the representatives of the people of this country the opportunity to be beard and to speak on their behalf. Senator Flynn: I do not want anyone to believe that I agree with the interpretation put on this clause by Senator Stewart. However, I was sufficiently reminded of the experience during the two world wars to say that, in fact, I would never interpret the text in the way that this amendment would suggest it could be interpreted.

There is also, of course, a big difference in this legislation that has to be underlined, and that is that we now have the Charter of Rights and Freedoms, which is applicable to the powers granted to the government and restricts the powers given to the government.

Again, if you say that we must restrict these powers, I think the Senate will have to consider many other areas where it would be as sensible to restrict these powers. If that is absolutely what you want, that would be an entirely new exercise than the one proposed by Senator Stewart.

Senator Stewart (Antigonish-Guysborough): No, Mr. Chairman. I think Senator Flynn is correct in asserting that the power that would be delegated by clause 40 is similar to the power delegated in the War Measures Act. There is no real change in the power delegated.

However, Senator Flynn says that be disagrees with my interpretation. I must tell him that I am not relying on my own

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interpretation. When I spoke at second reading I quoted what the Prime Minister of the day in 1942 and 1944 said, and earlier today I quoted what the Minister of National Defence, Mr. Beatty, said on May 31, 1988. Honourable senators, on this very point, Mr. Beatty said:

With regard to conscription, our advice is that this would be legally possible by order in council under Part IV of Bill C-77.

That is Mr. Beatty’s interpretation, and I think his interpretation is correct. I do not know why Senator Flynn has problems with accepting the interpretation given by the Minister of National Defence.

We then come to the other question: If Parliament, in fact, does delegate this power anew, will it be used? Honourable senators, that is a matter of speculation. Surely we ought not to grant this power simply on the basis that it might not be used. As a matter of fact, although it was not used in World War I, we must recall that the War Measures Act was used to change the provisions with regard to exemptions from military service. Also, during World War II, in the fall of 1944 it was used as one of the two bases for sending some 16,000 Canadians overseas. Thus we see that, although the government of the day felt that for political and not legal reasons it should not use the power that had been delegated to it under the War Measures Act, it did use those powers in closely related situations.

In any case, honourable senators, what I am saying is that the House of Commons did not confront this question. They did not say in express words that they wished to delegate to the Governor in Council the power to introduce conscription. One of the functions of my amendment will be to allow the House of Commons to decide, and declare overtly, whether they wish to delegate to the Governor in Council the power to introduce conscription.

Some Hon. Senators: Hear, hear!

Senator Roblin: Mr. Chairman, I should like to add a word on this point. I must admit it is a matter I have not heard discussed in detail-as to the effect of the large powers conferred by clause 40 which we are now discussing. It strikes me that there are a good many other powers besides the one we are discussing that would probably need to be considered, as Senator Flynn has suggested, if we decided that we were going to modify the powers in this clause.

It seems to me, however, that we have overlooked the fact that these powers are not absolute. The impression I have received from the discussion so far is that these powers are absolute. Honourable senators, I do not think they are, because there is a provision in this bill for parliamentary supervision. In other words, within a short time-I think it is seven days after the declaration of a war emergency-Parliament must be convened to deal with the matter. Surely, if there has been any excess of zeal or excess of authority, or even ill-advised policy on the part of the government at the moment the emergency is declared and measures are taken unto it, the Parliament has an opportunity-and in fact a duty-within a very short period of time to confirm or not to confirm the actions taken by the executive in respect of this matter.

I have to advise the committee at once that I do not pose as an expert on this bill. It may be that I have misinterpreted it. I do not think I have, but it is quite possible I have not given it a correct reading. However, if I have given it a correct reading, it makes me feel a lot better, because it means that the unauthorized or the extra-parliamentary activities of the executive are not free. There is a constraint upon them, and that constraint is the right and duty of Parliament to supervise what is being done.

This bill specifically states-and I think it is a distinct improvement over what we had before-that if a state of emergency is declared then the provision for Parliament to exercise its role as the arbiter of policy in the nation is clearly set out within what I think is a reasonable space of time. So I do not feel so bad about the fact that the clause is sweeping in its mandate. In fact, it seems to me that such a proposal is probably appropriate, particularly if you have this restraint of parliamentary supervision that is provided.

If any government was so ill-advised as to tax somebody, as I think they could under this section, or so ill-advised as to conscript somebody, as I think they could do under this section, they would not be immune from parliamentary supervision or from parliamentary approval or disapproval of what they had done-and that in short order; it is not a lengthy period of time. So I would be reluctant to upset the wording of this legislation on the argument we have received.

While in theory the power of the Crown may be as set out here-indeed, as it has been in all legislation of this type that I am aware of, first, that does not mean that the Crown will automatically do these things, and, second, even if the Crown were so ill-advised as to use this clause to justify a policy of the kind I am talking about here, Parliament would have its say. That is the sanction that really counts. So it seems to me that, while the point is interesting, it is not one we should accept without further consideration at this moment.

Senator Frith: Honourable senators, I think the points raised by Senators Flynn and Roblin are well taken, and I think it is important that they were raised. I part company with them only on using those points to support resistance to the adoption of this amendment. On Senator Flynn’s point, there may very well be other areas that would merit amendment, but that does not diminish my support for this one. As to the point raised by Senator Roblin, he is right that this bill does not throw parliamentary review out the window. The difficulty is that parliamentary review only applies after the fact. In the context of political reality, there is quite a difference between requiring the executive, no matter which party may dominate it, to go to Parliament and ask it to do something as important as has been described and requiring the executive to go to Parliament to ask for its imprimatur after the act is done.

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For those reasons I do not cross swords with Senators Flynn and Roblin on the points they have raised, but I argue that they do not diminish my support for this amendment. I think we should carry it anyway.

Senator Roblin: Mr. Chairman, I cannot really sec the force of my friend’s argument that to ask for approval after the fact is different from having to initiate it in the first place. The fact is Parliament will debate the issue, if it wishes to, under either circumstance, and Parliament will get its way under either circumstance. I feel comfortable with that view of parliamentary procedure and, while not having had to exercise such responsibility in the federal legislature, I recognize the weight that rests on the executive to get approval of this measure. Whether it seeks that approval through a review procedure or in advance, it will be the same tough proposition and will have to be well substantiated to be accepted by the people of the nation.

Senator Frith: Perhaps I did not express my point very well. Let me express it in this way: To me there is a great difference between saying to someone, “Come and convince me that I should do something” and coming to me and saying, “Please convince me why I should not have done it.” The burden is quite different.

Senator Roblin: But you do not have to convince just anybody; you have to convince members of Parliament.

Senator Frith: If we pass this amendment, it will put the government in the position that they are normally in; namely, that of having to go to Parliament and say, “This is what we propose, and we ask for your support.” If they go to Parliament after the fact, then they say, “We’ve done it. Now, you review it and tell us why we shouldn’t have.” There is a big difference.

Senator Roblin: You still have to convince the individual members of Parliament that it is a good thing.

Senator Flynn: They could expropriate and do all sorts of things that are not contemplated.

Senator Lang: Mr. Chairman, with respect to the other opinions, I think this discussion is quite academic. In fact, if any executive or cabinet brought in conscription without prior parliamentary consent, it would be doing so under circumstances when our parliamentary institutions had disappeared either through internal revolution or through an external atomic attack, say, on Ottawa. Therefore, I am not concerned about this problem. In fact, if honourable senators look at the history of Germany, they will see that the absolute power of the Nazis was accomplished with prior Reichstag approval. In our system of government, nothing like a unilateral declaration by the cabinet proposing conscription could possibly come about unless our parliamentary institutions had been completely disabled.

Senator Neiman: Honourable senators, I wonder if Senator Roblin would clarify for me a point he just made. I believe he stated that Parliament would have to ratify such a decision within seven days. I am looking at clause 58 and, as I read it, it applies only upon the declaration of a war emergency. Unless I have missed the pertinent part, it does not apply to any order made under the war emergency.

Senator Roblin: I take a broad view of the expression “war emergency”. I take the expression to mean what is being done under that particular heading. If a war emergency was declared and conscription was involved, to suggest that Parliament would meet without discussing the issue, I think, is unrealistic.

Senator Neiman: I quite agree, but I would think that the only requirement is to ratify the declaration of war emergency. Parliament may very well choose to do so, but the Governor in Council is then no longer required, at least as I read the legislation, to consult with respect to any order made once that declaration has been ratified.

Senator Roblin: Without being able to put my finger on the exact clause, certain other portions of this bill refer to parliamentary supervision and it may be that they are relevant to this issue; I really cannot say. I take the view, however, that anything done under war emergencies legislation would certainly be grist to the parliamentary mill when it was asked to approve these items. And to think for one moment that, for example, taxation by order in council or conscription by order in council would escape the scrutiny of Parliament in that connection seems to me to be unrealistic. I guess the only case where it would not be unrealistic would be the case described by Senator Lang, who says, “Well, if our parliamentary institutions are not here . . .” If they are not here, there is nothing here.

Senator Neiman: I agree with Senator Roblin’s observations, but for greater certainty why should we not adopt this type of amendment?

Senator Roblin: I have given my reasons for that.

Senator Frith: I do not think we are now going to persuade each other. To me, the argument comes down to saying that they probably will not do it; it is unrealistic to think they will do it, therefore, we might as well let them have the power to do it. That is only my opinion. It is not the opinion of Senator Roblin and it is not the opinion of Senator Flynn. I think our different views have been expressed and that the question should be put.

Senator Roblin: I would not like Senator Frith’s interpretation of my views to stand, because that is not my interpretation. I do not think one should pass a law because no one is going to use it. One always has to assume that it will be used; otherwise why pass the law? Then one has to look at the fall-safe mechanism, and the fall-safe mechanism here is that, if they do something damn silly-if I might use that unparliamentary adjective-we have the supervisory power of Parliament to put things right, and I rely on that.

Senator Hicks: There is one point which perhaps Senators Roblin and Neiman might take into consideration, and in a sense it supports the position that each of them has taken.

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The review provided under clause 58 does, indeed, apply to the declaration of the war emergency only, but the war emergency could be declared in January, let us say, and would be in effect for a stipulated time. Then, in the June following, the actions of the executive to impose conscription could be taken. The review envisaged by clause 58 of the declaration of the war emergency would not apply to that.

I also have to agree with Senator Roblin that it is inconceivable that Parliament would not have, and would not seize, the opportunity to review, comment upon and, if necessary, revise the executive action that displeased them.

The Chairman: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

An Hon. Senator: On division.

The Chairman: We will have to have a division, in that case. The division provides for senators to stand and be counted. Once that begins, there can be no further entry into the chamber. I will now call for the vote and there will be no further entry into the chamber.

Honourable senators, those in favour of the motion in amendment please stand.

Those opposed to the amendment please stand.

Yeas: 25; Nays: 14.

I declare the motion in amendment carried.

Shall clause 40, as amended, carry?

Senator Flynn: Mr. Chairman, I move that the clause be further amended by adding right after the last amendment just adopted “. . . nor for appropriating any part of the public revenue or for imposing any tax or impost.”

The Chairman: It is moved by the Honourable Senator Flynn, seconded by the Honourable Senator Roblin, that clause 40 of Bill C-77, page 20, be further amended by adding immediately after subclause (1.1) the following words: “… nor for appropriating any part of the public revenue or for imposing any tax or impost.”

Senator Olson: May we have an explanation? Does this mean the government may not use any of the moneys in the treasury for any of these purposes?

Senator Flynn: If you want to restrict the powers with respect to conscription, you may as well restrict them for these and any other purposes that may come to mind eventually.

Senator Frith: That is not part of the formal amendment: … any others that may come to mind”?

Senator Olson: I do not have a copy of the proposed amendment in front of me, but I hope I misunderstand what Senator Flynn’s intentions are.

Senator Flynn: For Senator Olson’s benefit I will say this:

Since the Senate has decided that it should restrict the powers provided in section 40, I want it to go further. If an amendment is necessary to deal with the problem of conscription, one should also be necessary to prevent the Governor in Council from appropriating any part of the public revenue or imposing any tax or impost by order in council, in the same way that you say conscription could be imposed.

Senator Olson: Honourable senators, I was prepared to support Senator Flynn’s amendment if it was only to deal with the imposition of taxes by Governor in Council, but the wording-and I do not have it in front of me-seems to imply that the Governor in Council would not have the authority to use the revenue from whatever taxation already exists for the pursuit of some of these measures.

Senator Flynn: No.

Senator Olson: That is what he appears to say.

Senator Hicks: Perhaps it should be read again.

Senator Flynn: Section 53 of the British North America Act, 1867 states:

Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.

This is a privilege of the House and it is also a privilege of Parliament.

What I am saying is, if you cannot use the wide powers provided in clause 40, I do not want the government to use these powers to avoid presenting Parliament with appropriation bills or with bills for imposing any tax or impost. If we have to restrict the powers of the government, I want to be clear that this does not grant the government these powers.

Senator Olson: Honourable senators, I am having difficulty, because Senator Flynn says be does not want the government to use an emergency for the purpose of presenting an appropriation bill even to Parliament.

Senator Flynn: No, no, no!

Senator Olson: That is ridiculous.

Senator Flynn: Read clause 40.

The Chairman: It is proposed that the following words be added to the amendment we have already passed:

. . . nor for appropriating any part of the public revenue or for imposing any tax or impost.”

Senator Flynn: How would the whole subclause read?

The Chairman: The new clause would read:

“… to make orders and regulations may not be exercised for the purpose of requiring persons to serve in the Canadian Forces nor for appropriating any part of the public revenue or for imposing any tax or impost.

Senator Stewart (Antigonish-Guysborough): Mr. Chairman, there is much about Senator Flynn’s proposed amendment that is highly attractive; however, I want to make two comments about his amendment.

We know that it is impossible for a government to appropriate by order in council-that is a parliamentary function.

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However, we were told by the spokesmen of the government that they already have the power to withdraw money from the Consolidated Revenue Fund by Governor General’s warrants. That is not appropriation. Therefore, as long as that provision remains there, the first part of Senator Flynn’s proposed amendment does not accomplish anything. The government already can withdraw money from the Consolidated Revenue Fund under the provisions of another statute.

Senator Flynn: Sure, sure, but under the other statute; under this clause they would not.

Senator Stewart (Antigonish-Guysborough): That is correct. They said that they did not interpret this bill as conferring upon them the power to appropriate, and that they did not need to acquire new power because they already had power to obtain money under another statute.

Senator Flynn: In certain circumstances.

Senator Stewart (Antigonish-Guysborough): That is what they said in regard to my question on appropriation.

Now we come to the other point, namely, the imposition of a tax or impost. Senator Flynn here is disagreeing with the government. On May 31, at page 3531 of Hansard, the minister said:

Finally, with regard to taxation, I am pleased to say that I can give a short, unequivocal answer. Taxes cannot be imposed by order in council. The Constitution sets out quite specific procedures for levying taxes and a bill is always required.

Hon. Senators: Hear, hear!

Senator Stewart (Antigonish-Guysborough): Consequently, the second part of Senator Flynn’s proposed amendment runs contrary to the government’s interpretation of the Constitution and, therefore, would seem to accomplish nothing. The minister is saying, “Even if we ask for this power, you could not give it to us, because this cannot be delegated.” Consequently, to reduce the delegation in the way proposed by Senator Flynn, according to the minister, would be to reduce a delegation which had not been made in the first place. Therefore, from the viewpoint of the government, Senator Flynn’s proposed amendment really would accomplish nothing.

The Chairman: Is there anything further?

Senator Flynn: I wanted you to change your mind, but you do not when it does not meet your purposes.

Senator Stewart (Antigonish-Guysborough): Senator Flynn, I happen to think that the minister probably is wrong and that you are right. All I am saying is that you are proposing-I suppose with the support of government senators-

Senator Flynn: No, no.

Senator Stewart (Antigonish-Guysborough): -an amendment which is contrary to the interpretation set forth by the minister speaking for the government.

The Chairman: Is it your wish, honourable senators, to adopt the motion in amendment?

Senator Frith: The further one, no.

Some Hon. Senators: No.

The Chairman: I have not heard any “yeas”.

Senator Flynn: Yea.

Senator Frith: Atta boy, Jacques! Not so fast!

The Chairman: In that case, shall we have a division by the same process?

Senator Roblin: You can call the result, Mr. Chairman.

The Chairman: You are satisfied that I call the result? In my opinion, then, the amendment does not carry. Is that agreed, honourable senators?

Hon. Senators: Agreed.

The Chairman: All right, shall clause 40, as amended, carry?

Hon. Senators: Carried.

The Chairman: Shall clause 41 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 42 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 43 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 44 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 45 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 46 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 47 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 48 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 49 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 50 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 51 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 52 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 53 carry?

Hon. Senators: Carried.

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The Chairman: Shall clause 54 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 55 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 56 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 57 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 58 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 59 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 60 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 61 carry?

Hon. Senators: Carried.

The Chairman: Clause 62?

Senator Stewart (Antigonish-Guysborough): Clause 62 provides for a Parliamentary Review Committee, the purpose of which is to examine what we might call secret orders in council, those which, in the national interest, would not be made public. This Parliamentary Review Committee is to be a committee of both houses of Parliament.

The clause, as it now reads, states:

The Parliamentary Review Committee shall include at least one member from each party that has a recognized membersbip of twelve or more persons in the House of Commons.

there is no provision for party representation from the Senate. Here is what might happen: Let us say that we bad a Liberal government-

An Hon. Senator: Hear, bear!

Senator Stewart (Antigonish-Guyshorough): that was the situation during the Second World War. Let us say a joint committee was to be set up. The joint committee would have to have at least one senator on it for it to be a joint committee. However, the Liberal majority in the Senate might well say, “that one senator will be a Liberal senator,” with the result that there would be no Progressive Conservative senator on the joint committee. Therefore, it seems to me that it would be proper to eliminate that possibility by an amendment. Consequently, I move:

That clause 62 of Bill C-77, on page 32, be amended by striking out lines 3 to 7 and substituting the following: (2) The Parliamentary Review Committee shall include at least one member of the House of Commons from each party that has a recognized membership of twelve or more persons in that House and at least one senator from each party in the Senate that is represented on the committee by a member of the House of Commons.

The effect would be that a joint committee set up with the present Senate would have at least one Progressive Conservative senator on it and at least one Liberal senator on it.

Let us say that we had in the Senate one member of the New Democratic Party. The Parliamentary Review Committee would have one member from the New Democratic Party from the House of Commons and one senator from. the New Democratic Party. That senator would be eligible to sit on that committee as a representative of the Senate.

If, however, we had senators from parties that did not have at least 12 members in the House of Commons, those senators would not be eligible to sit on that committee. The amendment is drawn so as to produce a balance between the representation of the parties in the House of Commons and the Senate on the Parliamentary Review Committee. I have reason to believe that this amendment might be acceptable to the government.

The Chairman: Honourable senators, it is moved by the Honourable Senator Stewart (Antigonisb-Guysborough), seconded by the Honourable Senator Marsden:

That clause 62 of Bill C-77, on page 32, be amended by striking out lines 3 to 7 and substituting the following: (2) The Parliamentary Review Committee shall include at least one member of the House of Commons from each party that has a recognized membership of twelve or more persons in that House and at least one senator from each party in the Senate that is represented on the committee by a member of the House of Commons.

Is it your pleasure, honourable senators, to adopt the motion?

Senator Barootes: Mr. Chairman, the way Senator Stewart’s amendment reads, if the New Democratic Party has no representatives in the Senate, bearing in mind that last lie, we are in a bit of trouble, are we not, in assuming that every party in the House of Commons shall have a representative in the Senate? That is the way I read it.

Senator Stewart (Antigonish-Guyshorough): It says “at least one senator from each party in the Senate”, but that provision is limited by the words, “that is represented on the committee by a member of the House of Commons.” It does not say that each party that is represented on the committee from the House of Commons shall be represented by a senator.

The Chairman: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chairman: Shall Clause 62, as amended, carry?

Hon. Senators: Carried.

The Chairman: Shall clause 63 carry?

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Hon. Senators: Carried.

The Chairman: Shall clause 64 carry?

Hon. Senators: Carried

The Chairman: Shall clause 65 carry?

Hon. Senators: Carried

The Chairman: Shall clause 66 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 67 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 68 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 69 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 70 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 71 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 72 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 73 carry?

Hon. Senators: Carried.

The Chairman Shall clause 74 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 75 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 76 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 77 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 78 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 79 carry?

Hon. Senators: Carried.

The Chairman: Shall clause 80 carry?

Hon. Senators: Carried.

The Chairman: Shall the schedule carry?

Hon. Senators: Carried.

The Chairman: Shall the tithe carry?

Hon. Senators: Carried.

The Chairman: Shall clause 1, the short tithe, carry?

Hon. Senators: Carried.

The Chairman: Shall I report the bill, as amended?

Hon. Senators: Agreed.

The Hon. the Speaker: Honourable senators, the sitting is resumed.

REPORT OF COMMITTEE OF THE WHOLE ADOPTED

Hon. Gildas L. Molgat: Honourable senators, the Committee of the Whole, to which was referred Bill C-77, to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof, has examined the said bill and has directed me to report the same to the Senate with two amendments.

A Clerk at the Table: The first amendment reads as follows: That clause 40 of Bill C-77, on page 20, be amended by adding, immediately after subclause (1) thereof, the following subclause:

(1.1) The power under subsection (1) to make orders and regulations may not be exercised for the purpose of requiring persons to serve in the Canadian Forces.”

[Translation]

The second amendment reads as follows:

That clause 62 of Bill C-77, on page 32, be amended by striking out lines 3 to 7 and substituting the following: “(2) The Parliamentary Review Committee shall include at least one member of the House of Commons from each party that has a recognized membership of twelve or more persons in that House and at least one senator from each party in the Senate that is represented on the committee by a member of the House of Commons.”

[English]

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

Senator Molgat: With leave, now.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Motion agreed to and report adopted.

THIRD READING

The Hon. the Speaker: Honourable senators, when shall this bill, as amended, be read the third time?

Hon. C. William Doody (Deputy Leader of the Government): With leave, now.

The Hon. the Speaker: Is leave granted, honourable senators?

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Hon. Royce Frith (Deputy Leader of the Opposition): Honourable senators, this time we are abridging the one day’s notice requirement, but for another reason-because there is a chance that without other work for the Senate itself, apart from the committees, the Senate might not sit the rest of this week. So why not send it back to the House of Commons while we are not sitting?

The Hon. the Speaker: Honourable senators, it is moved by the Honourable Senator Doody, seconded by the Honourable Senator Roblin, with leave of the Senate and notwithstanding rule 45(1)(b), that this bill, as amended, be read the third time now.

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to and bill, as amended, read third time and passed.