Document Information

Date: 1980-10-28
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1980 at 977-981.
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SENATE DEBATES — October 28, 1980

THE CONSTITUTION DEBATE

PROCEDURE RESPECTING REPORT OF PROPOSED SPECIAL JOINT COMMITTEE

[Page 977]

Hon. Raymond J. Perrault (Leader of the Government): Honourable senators, yesterday during Question Period I offered to provide a statement respecting the procedures which have been launched by the government with respect to its constitutional proposals. With leave, I would appreciate the opportunity to present that statement at this time.

The Hon. the Speaker: Is it agreed, honourable senators?

The Senators: Agreed.

Senator Perrault: The government had two choices of procedure in seeking the approval of the Senate and of the House of Commons for a Joint Address, the first of which was to proceed directly with a motion for approval by each chamber of the text of the Joint Address. I mentioned that yesterday. This procedure would have involved using the government majorities in both chambers to achieve the passage of a resolution, without the possibility of the general public participating in the process.

The second procedure was a three-stage one, the first stage of which could be the establishment of a joint committee—and that is where we are at the present time. We have received a message from the other place asking us to participate with them in the formation of a joint committee.

The second stage would be consideration of a proposed resolution by that joint committee. That committee, assuming that the traditional ratio prevailed, would be made up of 15 members from the Commons and 10 members from the Senate. The committee would then proceed to invite certain individuals and groups to testify. I suggested yesterday some of the groups which, in my personal view, should be invited. But that is for the committee to decide once it is established.

The third stage of procedure would be the review and, if considered appropriate, approval of the work of the joint committee by both houses. In other words, the joint committee would report back to the Senate and to the House of Commons and ask for approval of its report.

The second option was chosen by the government because, first, it provides greater opportunity for public input and, second, it provides a flexible forum for detailed study. The three-stage proceudre, though longer, is, in the view of the government, fairer to the people, and fairer, as well, to both houses of Parliament.

I mentioned yesterday that at least one provincial premier has indicated a desire to testify before such a joint committee of the Senate and the House of Commons should one be established. I also mentioned yesterday that native organizations, women’s organizations, and human rights organizations have also indicated a desire to appear. In any event, the government believes that opporunity for public input constitutes a procedure that is fairer to both houses of Parliament and to the people of Canada.

[Page 978]

The complex procedures that have caused concern in this chamber arise, I think, from two sources: first, the normal procedire in dealing with a report from a special joint committee; and, second, the fact that the Joint Address can neither be amended nor approved without the concurrence of members of both houses. In the latter respect, the text of the Joint Address is treated no differently from the text of proposed legislation.

These procedures, as complex as they may seem to be to some honourable senators, do not, however, prevent the Senate and the other place from amending the Joint Address. They do not remove in any way the requirement that both chambers explicitly approve a Joint Address before it is sent to Her Majesty. Unless the Senate approves the Joint Address, it cannot be sent to London.

It is felt by the government that this procedure, as involved as it may be, is a small price to pay for the openness and flexibility of committee proceedings. I would remind honourable senators, of course, as is the usual practice, that all parties are going to be represented on that committee, including the official opposition both in the Senate and the other place, and also members of the New Democratic Party. Moreover, the Senate is master of its own procedures, although it must act—

Some Hon. Senators: Hear, hear.

Senator Perrault: I am gratified to hear some applause for something I have said in recent days.

Senator Flynn: It is a change.

Senator Perrault: Moreover the Senate is the matter of its own procedures, though it must act in a way that allows it to act jointly with the House of Commons on this matter, as in the case of any legislation or joint resolution.

A question has been asked as to whether the Senate can amend the proposed resolution. First, the special joint committee can amend the proposed resolution as it sees fit, subject to the rules applying to all committees. I hear a comment from the Leader of the Opposition who has raised an interesting point, and presumably one of his members may wish to speak to that point in the course of the debate. But let me repeat that the special joint committee can amend the proposed resolution as it sees fit, subject to the rules applying to all committees. Senators will be voting members of that committee. Some senators will say, of course, that we do not have a majority on the committee. Well, it is unrealistic to assume that we should have a majority, and the traditional balance for joint committees of this kind is being suggested for this proposed joint committee.

Secondly, the Senate can act to amend the text that may be reported out of the committee by—and these are the procedures—moving that the special joint committee be revived, and by instructing the special joint committee to consider amending the text in the way the Senate specifies. So when the report of the special joint committee comes back to the Senate, senators will be able to engage in a debate, propose amendments to that report, propose changes in the report, changes in wording, changes in the Address to Her Majesty the Queen, and changes in the draft bill which is an integral part, indeed, the essence of the Address to Her Majesty. These Senate proposals, these amendments, if adopted by the Senate, would be referred back to the special joint committee for consideration. The committee could only be revived in this way and for this purpose, if the other place concurs. Of course, concurrence in any amendment made by the Senate is necessary, where approval of both houses for a measure is required.

The question may be asked: Is the approval of a committee report sufficient authority for asking the Queen to act? The answer depends on the wording of the committee report. If the committee report recommends, and I quote these words: “That a Joint Address be sent to Her Majesty in the following terms,” approval of such a report is felt to be adequate authority to ask Her Majesty the Queen to act. If the words recommend some other course of action, they may not provide sufficient authority, and a fourth stage might become necessary to seek the approval of the Senate and the House for a Joint Address. For example, senators may ask the questioN: What if the words recommend some other course of action? For example, the committee might recommend that the government present motions to the Commons and to the Senate proposing a detailed study of the measure. Before the address is adopted, that process would be somewhat equivalent to a clause-by-clause study and consideration of the Address. But again it is for the joint committee to decide how its report might be framed.

With respect to questions which may arise in the course of this debate, may I make this offer: If honourable senators have questions relating to certain technical details of this Address to Her Majesty, I will be more than pleased to assist them in understanding better those proposals. I am not suggesting that these questions should necessarily be raised in the Senate, although there is no prohibition against that; but if I or my office can be of help in providing information for honourable senators, we will be as helpful as we can. I realize that some of the procedures in this instance are unfamiliar to most senators and, naturally, technical questions may arise.

I should like to deal now with some of the specific questions I was asked yesterday outside the subject areas I have dealt with to this point. In response to a question by the Honourable Senator George McIlraith, I can assure the Senate that the final resolution will not be sent to Westminster without the approval of both houes of Parliament.

In response to Honourable Senator Smith’s question about dealing with amendments now, as I suggested yesterday, that has been discussed with procedural authorities and advisers, and it is impossible because the motion before us does not deal with the substance of the resolution but asks us to concur with the other place in establishing a special joint committee. The Joint Address can, of course, be amdned in committee or during the third stage, which is when the joint committee report comes back to the Senate for consideration.

What is before us now is nothing more than the establishment of a joint committee.

[Page 979]

Senator Flynn: Oh, no, no! No, no! Don’t push!

Senator Perrault: In response to the Hourable Senator Riley’s question, the Right Honourable the Prime Minister’s letter to Mr. Broadbent does indeed constitute a commitement to support an amendment within the limits outlined by the Prime Minister in his letter. Again I suggested that yesterday, and I reiterate it today.

With reference to the questions concerning special joint committees, Senator Buckwold and Guay inquired about representations to be made before the special joint committee. That committee, of course, will be master of its own proceedings, as all of us are aware, subject to the rules that apply to committees in general and to the orders of reference establishing it, which give to it its specific mandate and reporting date. The committee will determine who it will call as its witnesses and who will be invited to make representations.

All honourable senators know, however, that, as is customary in committee proceedings, they are entitled by the rules and by tradition to participate in the committee proceedings, but they cannot, of course, vote or move amendments. Senators who are not members of the committee are invited to participate in the committee’s activities to the extent that they have enjoyed those privileges in the past. Honourable senators may therefore feel assured on this point.

As for Senator Roblin’s suggestion that the report stage be considered in Committee of the Whole, the Senate is master of its own procedure and the government would be willing to consider that possibility down the road.

I believe that most of the matters raised yesterday have been answered. I know that there will still be questions in the minds of certain senators, but I would urge them to accept the sincerity of the government that it welcomes a discussion of all aspects of this historic national initiative.

We hope that honourable senators will see the merit in referring this matter to a joint committee as quickly as possible. Their participation in the debate and dialogue is invited. We are engaged in an important initiative which has historical implications. It should evoke the best efforts of every member of this chamber.

Some Hon. Members: Hear, hear.

Hon. Richard A. Donahoe: Honourable senators, I came into this chamber this afternoon prepared to ask the Leader of the Government a question. He rose in his place to make a statement, in the course of which I felt he had answered my question—no to my satisfaction but at least to my understanding. Then, as he concluded his remarks, he purported to provide an answer to a question posed on another day by Senator McIlraith.

On that occasion, in reply to Senator McIlraith’s question, he said that the resolution would not be sent to Westminster without the approval of both houses. My question was to be: Whereas the government has stated—and the Leader of the Government reiterated this this afternoon—that if the report of the joint committee lookijng into the constitutional resolution is in proper form, then the concurrence motion will constitute the Joint Address itself.

I understood the leader to say that that was the fact, that the only chance we were going to have to vote on the resolution was by voting concurrence in the report of the committee—

Senator Perrault: No, no. I am pleased to give the assurance that my reference in the statement I made earlier does not suggest that there is a procedure by which the Senate can effectively be circumvented. If, for example, the report from the committee suggests that there be no change in the Joint Address to Her Majesty, it does not mean that the Senate would not be able to debate the report or to suggest that certain changes or amendments be made. The Senate would have the power and the right to initiate action here and to have the report, with suggested changes, referred back to the joint committee for further consideration and action.

Hon. Andrew Thompson: Honourable senators, I have a question for the Leader of the Government, but before I ask it I would like to say how much I appreciate the comprehensive explanation he was given concerning the questions that have troubled us.

My question—and I do not know if the leader would want to answer it at this time or bring back a reply later—is as follows. As I understand it, after the committee reports back to this house, then, if there is an amendment by the Senate, in order for it to be referred back to the joint committee, it is necessary for the joint committee to be revitalized and there must be concurrence by both houses. If it should be that there were no concurrence from both houses, and we did move an amendment, what would happen to that amendment?

Senator Perrault: Our rules of procedure require concurrence of the other house for the re-establishment of a joint committee for the purpose of considering Senate amendments. Should the other place find itself in a similar situation, in my opinion, in most circumstances the Senate would concur in the re-establishment of the joint committee. If, for example, there were an initiative on the part of members of the Commons to have serious concerns referred back to the joint committee, I think it can be said that the Senate would consent readily to having that joint committee re-established. I can think of no circumstances in which that committee would not be re-established for good reason as a result of a request to the Commons from the Senate and vice versa.

Senator Donahoe: Honourable senators, in the light of what has just been said, I have a supplementary question. Does the Leader of the Government believe that concurrence by the Senate in a committee report concerning a proposed resolution can be taken, under parliamentary law or practice, as being equal to the direct passage of a resolution for a Joint Address?

I may say, before you get to your feet, that I am not asking for a legal opinion, I am asking to know the state of your mind.

Senator Murray: That will take a week of amendments.

[Page 980]

Senator Perrault: Honourable senators, it seems to me that there is a substantial amount of credibility in a procedural and legal action which would see the Joint Address to Her Majesty supported by majorities in both the Senate and the Commons. If the Address to Her Majesty is accorded majority support in the Senate and majority support in the other place, that would be a rather persuasive and convincing indication of the views of Parliament.

Senator Donahoe: A further supplementary, if I may. If I understand what the honourable leader is saying, he is telling us that the indirect process of discussing a document containing a resolution can suddenly become legally binding as an expression of the Senate’s support for the resolution itself.

Senator Perrault: Honourable senators, I think we are getting into the area of disputation. I have presented my statement. I have suggested that another opinion existed, namely, the option of bringing in a motion for debate in the Senate and the other place and, by simple majority vote, passing it without an opporunity for committee study. The route the government has chosen is infinitely more democratic than the alternative.

Senator Donahoe: If that course of action should be followed, is the honourable gentleman undertaking that the members on his side of the chamber will vote in support of that procedure?

Senator Perrault: Honourable senators, in a sense that is a reflections on the integrity of the members who support the government.

Senator Donahoe: Not in the least.

Senator Perrault: I would not want to dignify that suggestion with a long and laboured reply. Those who serve on this side of the house have demonstrated in the past their capacity, their ability and their respect for parliamentary traditions.

Hon. Jacques Flynn (Leader of the Opposition): In the event the government should intend to consider a vote on concurrence in the report as approval of the resolution itself, would the Leader of the Government undertake to tell us so before that vote is taken, and not interpret it as such afterwards?

Senator Roblin: Honourable senators—

Senator Flynn: I should like to get a reply to my question.

Senator Perrault: Honourable senators, I would not anticipate what the committee may wish to do.

Senator Flynn: You don’t understand what I asked. I said that in the event the government intends to consider concurrence in the report as adoption of the resolution itself, would the government tell the Senate and the House of Commons in advance of concurrence in the report being considered that that is how it will be interpreted?

Senator Perrault: Honourable senators, that is a hypothetical question.

Senator Flynn: Not at all.

Senator Perrault: Yes, it is hypothetical. The Leader of the Opposition asked if the government would regard concurrence in the joint committee report as adoption of the resolution. The government has stated that the report would be reported back to the Senate and to the Commons for consideration, debate and a vote. The majority in Parliament would decide whether that report was adequate or that changes should be made. This is the way it is suggested that we proceed.

Senator Flynn: Tomorrow, once the Leader of the Government has had an opportunity to look at the record of what I have said, he may be able to understand my question and give an appropriate answer.

Hon. Duff Roblin (Deputy Leader of the Opposition): Honourable senators, I listened to my honourable friend’s statement of intention, and I am not entirely sure that I completely grasped it.

Senator Flynn: He himself did not.

Senator Roblin: I was encouraged when he started out by saying that the Joint Address would be treated no differently from regular legislation. That sounded fine. Then he went on to tell us that it would. I really do not know if he meant what he said in the first place or if he was not quite sure how he should express it.

Senator Flynn: He speaks out of both sides of his mouth.

Senator Roblin: My point is this: He has left me with the impression that it is possible for the committee to report its work in such a way to this house that it would not provide an opporunity for a clause-by-clause discussion of the items contained in the report in Committee of the Whole, a procedure that I have been advocating in this chamber. Do I understand that correctly? If I am wrong, will my honourable friend give me the assurance that no matter in what form the report comes here, we will have a chance, in a sense, to dissect it?

Senator Perrault: The opporunity to dissect this joint report will be available to the Senate. I believe that was part of my statement. I can conceive of no report issuing from the committee which would suggest that the House of Commons and the Senate shall not have right to make any detailed critique or criticism of the report or the contents of the proposed Joint Address to Her Majesty the Queen. To my mind, that would be an inconceivable circumstance.

I would expect members of the opposition to feel free to speak about the resolution and the Joint Address in some detail when we come to the third stage. I do not anticipate proposing any motion on behalf of the government to restrict the honourable senator’s right to say as much about the Joint Address as he may wish to say.

Senator Roblin: I am sorry that I am so obtuse. I tried to make my point clear, and I tried to make the same point clear yesterday, but obviously without success. I know I will be able to deal with amendments to specific portions of the resolution in the same way as is done in Committee of the Whole?

[Page 981]

I shoud like to get an undertaking from my honourable friend that in whatever form the report appears on our desks, when there is one, we will have an opportunity to amend the resolution in the same style as we do in Committee of the Whole and in the same style as can be done in regular legislation as the minister said would be the case.

Senator Perrault: Honourable senators, if there is a request by the honourable senator that there be a Committee of the Whole stage where clause by clause we can consider the Address to Her Majesty, which includes proposed constitutional amendments, I do not believe that at this time I can give assurances of formal Committee of the Whole consideration— but equivalent opportunities, I suggest, will be provided. In other words, if any honourable senator wishes to amend a certain section, that senator would have the right to rise in his place and make a motion to amend. The Senate then would have the right and the opportunity to debate such a motion and to discuss that proposal to change the Address to Her Majesty. The motion would be subject to voting procedures in the house. There would be no barrier to that kind of procedure. It would be the Senate acting, as it has in the past, as master of its own rules. If the senator wishes to launch that kind of endeavour, I want to assure him that he will enjoy the full co-operation of the government.

Senator Roblin: I am never very comfortable with the ad hoc procedures that are invented by my honourable friend on the spur of the moment, as I rather suspect he has been doing for the last little while. However, I guess I am not going to get much out of him today so I will have to be content with the observation that maybe he has moved a little way in my direction, so I appreciate that. I would like him, however, to deal a little more with the question of the revival of the committee. He has told us that he would regard it as a matter of courtesy that the other house would agree to a revival of the committee if it were recommended by this chamber. Would it be the policy of the government to advise the other house and this chamber to agree to a revival of the committee should either house request it? There is a difference between policy and my honourable friend’s opinion.

Senator Perrault: Honourable senators, that question will be taken as notice, but as I said earlier, I would regard it as a courtesy that this place would extend to the House of Commons should a similar circumstance occur over there.

Senator Roblin: I should hope so.

Hon. John M. Godfrey: Honourable senators, I direct a question to the Leader of the Government. He referred to the greater opportunity the public will have for input by having the matter referred to a committee. I recieved representations from one organization pointing out that in one respect the public will not be able to participate as much because the proceedings will not be televised as are the debates in the House of Commons. My question is: Is the government considering the possibility of televising the committee’s proceedings? If the proceedings are not to be televised, will they at least be videotaped? This is a very historic occasion and there should be a videotape made of the proceedings.

Senator Perrault: Consideration is being given to the possibility of telecasting the proceedings in living colour.