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Date: 1980-11-12
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1980 at 1202-1204.
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SENATE DEBATES — November 12, 1980

[Page 1202]

THE CONSTITUTION

SPECIAL JOINT COMMITTEE—SENATE PROCEDURE FOLLOWING PRESENTATION OF REPORT

Hon. Royce Frith (Deputy Leader of the Government): Honourable senators, this answer may give rise to some further questions. I want to make it clear that I am not bringing this answer forward with a view to inhibiting in any way such further questions. This is an answer which I offer as the result of questions asked by Senator Grosart, Everett and Smith on November 5, 1980, with reference to the procedure for considering the proposed resolution when that matter comes back to us as a result of a report from the special joint committee.

[Page 1203]

I wish to remind honourable senators that there exists a three-stage procedure. The establishment of the special joint committee is the first stage. The second stage is the consideration of the proposed resolution by the special joint committee, which is the stage we are at now; and the third stage is the review and, if considered appropriate, approval of the work of the joint committee by both houses.

There is a possible fourth stage where the government might introduce a final resolution for a Joint Address. However, that depends very much on the report of the special joint committee and the subsequent consideration of its report by both the House of Commons and the Senate.

If there is a motion to return the report to the committee recommending certain amendments, it would have to be approved by both houses, of course, whether it originated in the Senate or in the other place.

The terms of reference of the special joint committee specify that it submit a report, not that it report “from time to time.” It would, however, be possible for the special joint committee in its report to request an extension of its mandate. This, of course, would have to be approved by both houses.

To answer a question put by Senate Everett, the formulation of the resolution for a Joint Address will depend a great deal on the recommendations contained in the report of the special joint committee.

To Senator Smith’s question as to whether it is necessary to have a resolution for a Joint Address carried by the Senate to that effect, I would reply that, of course, it is necessary, but that final resolution, need not necessarily be moved by a separate motion. This, again, depends a great deal on the nature of the report of the special joint committee.

Hon. Jacques Flynn (Leader of the Opposition): Is this reply based on the rules of the House of Commons, the rules of the Senate, or no rules at all, but merely on practice and custom?

Senator Frith: My understanding, honourable senators, is that this answer is based on the rules and practices of this chamber.

Hon. Allister Grosart: As I asked the original question, perhaps I should now ask a supplementary. Would the deputy leader not agree that he has skipped one very important stage in his outline of the three stages? Surely the stages are: the establishment of the committee; the consideration by the committee; the report of the committee, which is entirely separate from what he calls the third stage; and then the consideration of the report in the Senate. One obvious reason for this is that the committee might not report the reference at all. Therefore, I feel that the stages, as he gives them to us, are inadequate and form part of the confusion that is obviously in his mind.

The deputy leader has said that the decision as to whether there will be a resolution passed for a Joint Address to Her Majesty depends on the report of the committee. Of course, it does not. It does not matter what the committee reports because it can only recommend to the Senate what the Senate should do. It cannot be regarded as, or even deemed to be, a decision of the Parliament of Canada to send a Joint Address to Her Majesty. All the committee can do is say to the Senate, “This is what you should do.” Surely the deputy leader will agree that at some point subsequent to discussion—no matter what results from the discussion of the report and whether it is sent back—the Parliament of Canada must decide to do something. Surely it will not be sufficient for the Parliament of Canada to say, “All right, go ahead; we are not going to pass any resolution; we merely say to Her Majesty, ‘By the way, one of our committees brought in a report and the Parliament of Canada has agreed with it.’ ”

Surely the deputy leader would agree that there must be a fifth or even sixth stage when the Parliament of Canada says, “We will do what the committee recommended,” or “We will not do what the committee recommended.” Would he not agree that there must be that stage which is completely separate and subsequent to whatever disposition is made of the report of the joint committee?

Senator Frith: Honourable senators, of course, Senator Grosart is quite right that there is a stage which I think is implied in the answer. If this was not perfectly clear, I am glad that he has given me an opportunity to clarify my answer.

Of course, there is the stage of report. I agree with Senator Grosart that perhaps the words used here are ambiguous or could give rise to misunderstanding. The words used were “approval of the work” and I think it would have been better to use the words “consideration of the report.” He is quite right in underlining that that would be the better way to describe it, although it was included in the language used.

On the second point as to whether it depends on the report of the committee whether there is a resolution, perhaps I ought to have given Senator Grosart a copy of this statement because it is sometimes hard to follow the context of an expression when it is just being given one time orally. What the statement said depended very much on the report of the special joint committee as the possible fourth stage—that is, a separate final resolution being introduced. If the impression was created that the Senate could not make such a move and could not present such a resolution except with the permission of the committee, I entirely agree with him there. Of course, that is not correct.

With reference to the third part of his question—that is, whether there must be an entirely separate stage—I cannot agree that is so. I would be interested in exploring that possibility, and perhaps we are just at odds in the matter of terminology. If he means that a Joint Address must have the assent of the Senate, and in some form, consistent with the rules of the Senate, it must be clear that the Senate has resolved that such an Address go forward, then I agree with him on that also.

Senator Flynn: Does the deputy leader agree, whatever his statement might mean in practice, that it does not bind the Senate or the Speaker? I have another question. Does he not

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agree that the Senate could set its own rules with regard to this resolution and the way to deal with it?

Senator Frith: On the first question, my answer would be yes.

On the second question, I do not think there is any suggestion here, and should not be any suggestion anywhere, that the Senate cannot amend its own rules.

Senator Flynn: So the answer is yes to both questions.

Senator Frith: The only reason the second answer was a little longer was because I wanted to be sure there was not an implication or inference beyond that.

Senator Grosart: You can never be sure.

Hon. G. I. Smith: Honourable senators, I would like to address a question to the deputy leader arising out of his comments and the statement he read. I agree with him, of course, that hearing a statement of that complexity read once may not allow the listener to grasp really what is in it, and I may be in that position as one of the listeners. However, I thought I heard him say, during his reading of the statement, words to the effect that it might be possible that the final resolution containing the loyal address might not have to be separate, but could be part of something else, although it might well be separate. I am rather puzzled as to what it possibly could be part of, and, if it were not separate, perhaps the honourable gentleman would help me with that one.

Senator Frith: The word “separate” was used with reference to the word “stage”, and what I said was that in my opinion there must be something that can be clearly an adoption by the Senate of the Joint Address and a resolution that it go forward consistent with the rules of the Senate. I was only saying that I did not want to be tied down to the question of a stage. I think that Senator Grosart and I understand each other on this, and it is a matter of terminology.

Senator Grosart: With due respect, it is not just a matter of terminology. It is a matter of fundamental principle. I was happy when the deputy leader said that we understood each other, but now it is obvious that we do not. The point I am making is surely there must be a separate stage, absolutely regardless of what this joint committee does. If it is the intention to send an Address to Her Majesty, the government can introduce a resolution that there be an Address regardless of what has gone on before. The government might wish to send it even if the committee recommended against it. There is nothing to stop the government from doing that. So I am asking if there is to be a separate stage when, if it is the wish of the government, the Parliament of Canada will be asked to send an Address worded in the usual way to Her Majesty.

Senator Frith: Honourable senators, I do not want to get into an exchange of opinions on the meaning of the word “stage”, but I do want to underline my understanding that what goes forward with reference to a Joint Address will have to be by a decision by the Senate consistent with its rules and practices, and with precedents that apply to Joint Addresses.

Senator Grosart: If we stick to that, we will have no problems.

Senator Frith: That is subject, of course, to the fact, as the Leader of the Opposition said, that the Senate might amend its rules, But it will be consistent with the rules and practices then existing.

Senator Smith: On that point perhaps I might be permitted to make a further observation, which is partially in the way of a question, and partially, I readily admit, not in the way of a question and, therefore, is not strictly in order. Would the deputy leader be able to recall, or, it not, by having some research done for him, that in the past the form which has been concurred in by the Senate has simply been a resolution resolving that whatever it is be sent to the Sovereign, whether it be Her Majesty the Queen or, as in earlier days, His Majesty the King, and having attached to it the proposed text which the Sovereign was asked to lay before the Parliament at Westminster. It seems to me there are literally dozens of precedents, some of which I have looked at more recently, and I see nothing there which should cause any difficulty. The only difference between those precedents and this situation is that here there has been an intermediate step placed between the two stages which previously followed one another. Once that intermediate stage—that is, consideration by the committee and the report of the committee—is finished, then surely everything else reverts to the same procedure as was always the case.

I would ask the deputy leader if he would perhaps give that problem some thought, and respond later. I find a great deal of difficulty in understanding why, once the report of the joint committee has been received, there should be any difference in procedure from what has hitherto been the case. It has always been straightforward when the matter came properly before either house—that is, putting the resolution, debating it, and amending it or doing whatever the house wanted to do with it.

Senator Frith: Honourable senators, I accept the invitation to study further the previous practices, but I do not want to leave the question without repeating the fact that the intention is to proceed in accordance with the rules and practices of this chamber.

Senator Flynn: Even the new rules.