House of Commons Hansard #39 of the 37th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was provinces.

Topics

Petitions
Routine Proceedings

10:15 a.m.

Independent

Ghislain Lebel Chambly, QC

Mr. Speaker, the third petition urges the government to take strong measures against child pornography.

It is signed by 33 petitioners, who are asking Parliament to be stricter when it comes to protecting our children from all the advertising and pornography that surrounds us, including those on some stores' shelves.

The petitioners therefore ask the government to act to protect our children. I hope that the bill introduced earlier by the Minister of Justice does just that.

Petitions
Routine Proceedings

10:15 a.m.

Canadian Alliance

Jay Hill Prince George—Peace River, BC

Mr. Speaker, pursuant to Standing Order 36, it is my pleasure to rise to present a petition containing 203 signatures of people living in the Montreal area who support my private member's bill that amends the Income Tax Act to permit tax deductions for child adoption expenses.

The petitioners call upon Parliament to pass Bill C-246, which would allow adoptive parents to deduct a portion of the cost they incur when adopting a child.

It is interesting that in today's Globe and Mail there is a story about how adopting a child can be an extremely expensive process. That is why these petitioners believe the government should move immediately to reduce these expenses through allowing tax deductions for those costs.

Petitions
Routine Proceedings

10:15 a.m.

Canadian Alliance

Reed Elley Nanaimo—Cowichan, BC

Mr. Speaker, it is a pleasure, on behalf of over 500 constituents in my riding of Nanaimo—Cowichan, to present four petitions.

Two of the petitions were signed by 378 constituents in which they ask that the government please take all the necessary steps to ensure that all materials which promote or glorify pedophilia or sado-masochistic activities involving children be outlawed.

Petitions
Routine Proceedings

December 5th, 2002 / 10:15 a.m.

Canadian Alliance

Reed Elley Nanaimo—Cowichan, BC

Mr. Speaker, I have two other petitions that have been signed by 138 petitioners who are concerned about private members' bill, Bill C-415. In their opinion it would add sexual orientation to a current list of identifiable groups, that this would then have the capacity under the Criminal Code to brand the Bible and other sacred religious books as hate propaganda, and that this would indeed then be a matter of religious freedom.

The petitioners would ask that Parliament halt the passage of Bill C-415, ensuring that religious freedom remains unfettered in Canada.

Petitions
Routine Proceedings

10:20 a.m.

Liberal

Carmen Provenzano Sault Ste. Marie, ON

Mr. Speaker, it is my honour to present a petition signed by several hundred people in my riding calling upon Parliament to protect our children by taking all necessary steps to ensure that all materials which promote or glorify pedophilia or sado-masochistic activities involving children are outlawed.

Petitions
Routine Proceedings

10:20 a.m.

Canadian Alliance

Rick Casson Lethbridge, AB

Mr. Speaker, I have two petitions here today. The first one has been signed by 70 residents of my riding of Lethbridge.

The petitioners call upon Parliament to protect our youth and oppose legislation that legalizes or decriminalizes the use and abuse of marijuana. They find that the Senate recommendation to wipe clean the records of any person ever convicted of marijuana possession would set a dangerous precedent.

Petitions
Routine Proceedings

10:20 a.m.

Canadian Alliance

Rick Casson Lethbridge, AB

Mr. Speaker, the next petition has been signed by 407 residents of southern Alberta, Medicine Hat, Calgary, Lethbridge and Coaldale. They petition Parliament to protect our children by taking all the necessary steps to ensure that all materials which promote or glorify pedophilia or sado-masochistic activities involving children are outlawed.

Questions on the Order Paper
Routine Proceedings

10:20 a.m.

Halifax West
Nova Scotia

Liberal

Geoff Regan Parliamentary Secretary to the Leader of the Government in the House of Commons

Mr. Speaker, I ask that all questions be allowed to stand.

Questions on the Order Paper
Routine Proceedings

10:20 a.m.

The Speaker

Is that agreed?

Questions on the Order Paper
Routine Proceedings

10:20 a.m.

Some hon. members

Agreed.

Points of Order
Routine Proceedings

10:20 a.m.

The Speaker

Yesterday the Chair heard a point of order from the hon. member for Winnipeg—Transcona, which the Chair put off because the message had not arrived. The message has arrived.

If the hon. member for Saskatoon—Rosetown—Biggar wishes to pursue this point. I am prepared to hear from her and other members who may wish to have something to say on this point.

Points of Order
Routine Proceedings

10:20 a.m.

Canadian Alliance

Carol Skelton Saskatoon—Rosetown—Biggar, SK

Mr. Speaker, my point of order is in regard to the Senate message received yesterday. It reads:

That the Clerk do carry this bill back to the House of Commons and acquaint that House that the Senate has divided the bill into two bills, Bill C-10A, an act to amend the Criminal Code (firearms) and the Firearms Act, and Bill C-10B, an act to amend the Criminal Code (cruelty to animals), both of which are attached to this Message as Appendices “A” and “B” respectively; and That the Clerk further acquaint the House that: (a) the Senate desires the concurrence of the House of Commons in the division of Bill C-10; (b) the Senate has passed Bill C-10A without amendment; and (c) the Senate is further considering Bill C-10B.

These are the two issues. First, I will agree that it is not in order for the Senate to divide a bill passed by the House of Commons. Second, the House cannot waive its privileges in this matter. Therefore, the only response would be to decline the concurrence because by agreeing to this message the House would be going beyond the powers conferred upon it by the Constitution.

Bill C-10 received three readings in the House and second reading in the Senate. On November 20, a motion was adopted in the Senate regarding Bill C-10. It read:

That it be an instruction to the Standing Senate Committee on Legal and Constitutional Affairs that it divide Bill C-10, an Act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act, into two Bills, in order that it may deal separately with the provisions relating to firearms and provisions relating to cruelty to animals.

Yesterday a message was received by the House informing members that the Senate had divided Bill C-10 into two bills, Bill C-10A and Bill C-10B, and the Senate is asking for concurrence.

There is only one precedent regarding this issue.

On June 7, 1988, the Senate considered the matter of dividing Bill C-103, an act to increase opportunity for economic development in Atlantic Canada Opportunities Agency and Enterprise Cape Breton Corporation, and to make consequential and related amendments to other acts. Bill C-103 had gone through the normal legislative process, received third reading and was sent to the Senate.

The Senate instructed the finance committee to divide Bill C-103. This was challenged and the Speaker in the Senate made the following ruling:

The main procedural problem, the Chair feels, lies with the nature of Bill C-103 itself. It is a government bill and a money bill, having been recommended by Her Excellency the Governor General. Senator Graham's motion is quite clear that the National Finance Committee will be instructed to divide Bill C-103 into two bills. Erskine May states, on page 564, that, when an instruction has been given to the committee that a bill may be divided into two or more bills, "the separate bills have been separately reported." If it is divided, Bill C-103 will no longer be on the Senate Order Paper but will be superseded by two separate bills.

The Chair has a problem in accepting that these two separate bills are still government bills. Senator Graham's instruction does not deal with amending a government bill, but with dividing a government bill into two bills. These two bills would therefore have found their way before Parliament, not in the House of Commons but in the Senate. Since they would both be bills appropriating public money, it would appear to the Chair that such action would be in contravention of Section 53 of the Constitution Act, 1867. For this very important reason, I must conclude that the motion of the Honourable Senator Graham is not in order.

This ruling was overruled by the Senate and Bill C-103 was divided and part I of the bill was sent to the House of Commons.

On July 11, 1988, the Speaker of the House of Commons ruled that the procedural event concerning Bill C-103 was totally without precedent. He said:

In the case of Bill C-103, it is my opinion, and with great respect of course, that the Senate should have respected the propriety of asking the House of Commons to concur in its action of dividing Bill C-103 and in reporting only part of the Bill back as a fait accompli has infringed the privileges of this place.

Furthermore, Bill C-103 has attached to it, pursuant to our Standing Orders and Section 54 of the Constitution, a financial recommendation of Her Excellency the Governor General. So this Bill is in a very real sense a Financial Bill.

The Speaker then ruled that the privileges of the House had been breached. As you are aware, Mr. Speaker, Bill C-10, also has attached to it a royal recommendation and therefore falls within the same definition as Bill C-103.

In his ruling on Bill C-103, the Speaker stated that he did not have the power to enforce the privileges of the House directly. He said that he could not rule the Message from the Senate out of order for that would leave Bill C-103 in limbo. He said:

The cure in this case is for the House to claim its privileges or to forgo them....

Mr. Speaker, this is where Speaker Fraser's ruling is somewhat flawed. I agree with the first part that the House must claim its privileges. However I disagree with the suggestion that the House can forgo its privileges in this case. It did not in the case of Bill C-103. In the case of Bill C-103 a motion was introduced and adopted that read:

The Senate has altered the ends, purposes, considerations, limitations and qualifications of the grants of aid and supply set out in this bill, contrary to Standing Order 87, as recommended by Her Excellency the Governor General to this House and has therefore infringed the privileges of the House, and asked that the Senate return Bill C-103 in an undivided form.

A motion upholding the privileges of the House would of course be in order. A motion breaching our rules that are entrenched in that Constitution should not.

With Bill C-103 both the Senate Speaker and the Commons Speaker established that it was out of order for the Senate to divide a Commons bill, particularly a financial bill since it is an infringement of the privileges of the House of Commons.

With respect to Bill C-10, on Tuesday the Senate Speaker ignored any objection to the procedure because he ruled that he would respect the decision of the Senate. The difference between the Bill C-103 situation and the Bill C-10 situation in the Senate is that the objection to the procedure in the case of Bill C-10 was raised after a motion had been adopted and the objection to the procedure in the case of Bill C-103 was raised before the Senate adopted the motion.

The scenario in the House for Bill C-10 is that the objection is being raised before any motion in response to the message is introduced or adopted. Therefore the two rulings for Bill C-103 are still relevant and the Senate ruling for Bill C-10 is not.

The question and the subject of the remainder of my point will focus on who decides or who defends the privileges of the House in this particular manner.

In the case of Bill C-103 the Speaker ruled that the House ought to decide. As I said earlier, I believe that this ruling by Speaker Fraser is flawed and inconsistent with our practices in these matters.

In the case of Bill C-103, there was no harm done because the government's motion defended the privileges of the House. There was no harm done with respect to Bill C-103 but there is potential harm if we do not correct the errors of Speaker Fraser's ruling and allow the House to decide because the government may very well want to agree with the Senate and I believe that the House cannot waive its privileges by simply a majority vote. Since the simple majority of this House cannot override the Constitution, the onus is on the Speaker to rule that the Senate breached our privileges and state that this House cannot concur with the Senate.

Any motion by the government attempting to agree with the message should be ruled out of order. I have two points to make in this regard.

First, Speakers and others have claimed that the Speaker cannot rule on constitutional matters. This causes some confusion because Speakers have ruled on constitutional matters.

In Speaker Fraser's ruling of July 11, 1998, he stated:

Certain questions remain to be answered: by splitting the Bill does the Royal Recommendation still apply? Have the financial privileges of the Commons been breached? As Speaker of the House of Commons, I will not attempt to answer such constitutional questions....

His next statement concludes:

--clearly this House has always considered Standing Order 87...as setting out a special relationship between the Commons, that is, this House of Commons, and the Sovereign. I have ruled that the privileges of the House have been infringed.

When constitutional matters that relate to our standing orders are not in question, the Speaker has the right and the duty to rule. These constitutional requirements that are reflected in our rules are as follows: section 48 of the constitution sets out the quorum requirement of the House and is repeated in our Standing Orders as Standing Order 29; and section 53 and section 54 concerning the procedure for the introduction of money bills is reflected in Standing Order 80. It is these sections of the constitution and this Standing Order that is one of the issues of this point of order.

Section 53 reads:

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

Section 54 provides that:

It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.

Standing Order 80, section 1, reads:

All aids and supplies granted to the Sovereign by the Parliament of Canada are the sole gift of the House of Commons, and all bills for granting such aids and supplies ought to begin with the House, as it is the undoubted right of the House to direct, limit, and appoint in all such bills, the ends, purposes, considerations, conditions, limitations and qualifications of such grants, which are not alterable by the Senate.

Whenever there is a departure from order relating to these particular procedural requirements set out in the constitution, the Speaker has the duty and the authority to bring down a ruling.

As you are aware, Mr. Speaker, Speakers have routinely ruled private members' bills to be out of order because they required royal recommendations. On page 897 of Marleau and Montpetit, it states:

There is a constitutional requirement that bills proposing the expenditure of public funds must be accompanied by a royal recommendation, which can be obtained only by the government and introduced by a Minister. Since a Minister cannot propose items of Private Members' Business, a private Members' bill should therefore not contain provisions for the spending of funds.

In the footnotes of that page are examples of times when the Speaker ruled on the constitutional requirement of royal recommendations. It cites Journals of November 9, 1978; February 20, 1979; June 6, 1980; and Debates on November 1, 1991. How can the case be made that the Speaker does not rule on constitutional matters?

Just recently on October 24, the Speaker ruled on a point of order raised earlier in the day by the government House leader concerning the bill introduced by the hon. member for Winnipeg Centre. The Speaker ruled:

The case before the House is clear. The bill introduced by the hon. member for Winnipeg Centre seeks to remove an existing tax exemption. If adopted, this measure would have the effect of increasing the tax payable by a certain group of taxpayers. Legislation of this sort, however worthy, may only be introduced when preceded by a motion of ways and means provided by a minister of the Crown, as I said earlier.

As the bill in question was not preceded by a ways and means motion, the proceedings this morning were not in acceptable form. I therefore rule them null and void and the order for second reading of the bill be discharged and the bill withdrawn from the Order Paper.

In the last session the Speaker laid out in great detail the financial privileges of this House when he rules on Bill S-13. I will not repeat this excellent overview provided by the Speaker, but instead I will simply point out to those who are interested that they can educate themselves on the topic by referring to the Speaker's ruling from Hansard of December 2, 1998.

On December 2, 1998, the Speaker, laid out the financial privileges of the House. He indicated that those privileges had been breached with the introduction of Bill S-13 and he immediately ordered the bill to be withdrawn.

He said:

The House of Commons has the exclusive right and obligation to legislate financial measures...I am obligated as your Speaker to ensure that these fundamental financial privileges are not compromised.

The Speaker did not ask the House to decide whether it wanted to wave the privileges or to uphold them. The Speaker said that he was obliged to ensure that financial privileges of the House are not compromised.

There are many other examples. I will name a few. In 1969 Mr. Baldwin objected to Senate Bill S-3 which provided for the dissolution of the Dominion Coal Board. Mr. Baldwin argued that the money, although already appropriated by Parliament, was diverted for other purposes. Stanley Knowles supported the argument by pointing out that the appropriation of the money lapsed with the changes made by the bill and therefore to spend these moneys in some other way would be an inappropriation of the bill.

The Speaker's ruling on the matter was:

The provisions of Bill S-3 relating to the appropriation of public moneys infringe on the privileges of the House.

The Speaker ordered that the bill be laid aside and the notice for the first reading be removed from the Order Paper. In a ruling from the Speaker from 1973 regarding Bill S-5, Farm Improvement Loans Act, it was argued that while the bill did not in itself propose a direct expenditure, it did propose substantial additional liabilities on public money. The Speaker ruled that the bill be removed from the Order Paper.

This is what I am asking the Speaker to do with respect to this issue; make a ruling and enforce it. The Senate is asking this House to adopt Bill C-10A. If Bill C-10A is allowed to proceed then its twin sister Bill C-10B will indirectly be legitimized and the Senate will be a proud father of another bouncing baby money bill.

The motion would enable two money bills created by the Senate to exist. It is the Speaker's obligation to rule that this contravenes our practice. There is no way the House by majority vote or by unanimous consent can wave procedures that are provided for in the constitution. This brings me to my second point.

If the House were to agree with the Senate, the House would be adopted procedures which go beyond the power conferred upon it by the constitution. There are similar precedents regarding committees that you should consider, Mr. Speaker.

On June 20, 1994, and November 7, 1996, the Speaker ruled:

While it is a tradition of this House that committees are masters of their own proceedings, they cannot establish procedures which go beyond the powers conferred upon them by the House.

If we are to be consistent, I would point out that while the House is a master of its own proceedings, it could not establish procedures which go beyond the powers conferred on it by the constitution. The Supreme Court of Canada ruled in 1985 that the requirement of section 133 of the Constitution Act, 1867 and of section 23 of the Manitoba Act of 1870, respecting the use of both the English and French languages in the records and journals of the House of Parliament of Canada, are mandatory and must be obeyed.

Accordingly the House can not longer depart from its own code of procedure when considering a procedure entrenched in the constitution.

On page 295, 2nd edition of Joseph Maingot's Parliamentary Privilege in Canada , in reference to the 1985 case, he lists those constitutional requirements regarding parliamentary procedure that must be obeyed and includes in that list section 53 and section 54 which deal with the financial privileges of a House of Commons.

Therefore, Mr. Speaker, it is your duty to rule on this matter that any motion that attempts to breach the privileges of the House should be disallowed. You cannot allow the House to even consider waving these privileges. What is the point of having a constitution if the House by a simple majority vote can override it?

It has been established that it is not in order for the Senate to divide a bill that originated from the House of Commons. I have also argued that the House cannot wave these privileges because by doing so the House would be going beyond the powers conferred upon it by the constitution.

Accordingly, it is up to the Speaker to rule on that this matter infringes on the privileges of the House and no further action, except for a message upholding our privileges, can be taken.

Lord Durham, in the 1839 report on the affairs of British North America, was scandalized that there was no rule requiring a royal recommendation either in Upper or Lower Canada. He wrote:

The prerogative of the Crown which is constantly exercised in Great Britain for the real protection of the people, ought never to have been waived in the Colonies; and if the rule of the Imperial Parliament, that no money vote were introduced into these Colonies, it might be wisely employed in protecting the public interests, now frequently sacrificed in that scramble for local appropriations, which chiefly serves to give an undue influence to particular individuals or parties.

In accordance with Durham's wishes, the royal recommendation requirement was made part of the Union Act, 1840.

I want to conclude by commenting on amendments made by the Senate to the money bills. I appreciate that the government may raise this and try to use it as a lame precedent so I would like to get my view of this on the record.

The usual way for the House of Commons to give its consent to Senate amendments on money bills is through the waiving of privileges under protest. For example, in 1939 the Senate amended the income tax bill to eliminate some retroactive features of the legislation. Supported by all sides of the House, the government first contemplated refusal, but in view of the advanced stage of the session it finally moved,

that this House concur in the set amendments, and while so doing it does not think it advisable at this period of the session to insist on its privileges in respect thereto, but that the waiver of said privileges in this case be not however drawn into a precedent...

I mention this because what we are considering here is not an amendment but a creation of two separate bills, Bill C-10A and Bill C-10B. The acceptance of the amendment precedence cannot be used for two reasons. There is much argument that the Senate has the power to amend money bills and any claim by the House is just that, a claim and not anything substantiated by hard and fast rules or convention. The matter of bills originating from the Senate that require a royal recommendation is a rule that is not open for interpretation or debate. The rules of this House and the constitution state that fact very clearly and it has been upheld by speakers for over 100 years.

We cannot consider any precedence regarding Senate amendments to bills. What we are dealing with here are two new bills from the Senate. In cases of bills coming from the Senate, it is the Speaker who rules. It is not a matter of the government waiving or rejecting an amendment.

Points of Order
Routine Proceedings

10:45 a.m.

The Speaker

I will continue with the argument on this point of order first. I will deal with the hon. member's question of privilege, which I know relates to a similar argument a little later.

First I will hear the member for Acadie—Bathurst on the same subject, and then I will hear the Parliamentary Secretary to the Leader of the Government in the House.

Points of Order
Routine Proceedings

10:45 a.m.

NDP

Yvon Godin Acadie—Bathurst, NB

Mr. Speaker, I want to remind the House of what the member for Winnipeg—Transcona said yesterday in the House. Here is what he said, as recorded on page 2267 of Hansard :

I would want to argue, Mr. Speaker, that the House should be very concerned about what has happened in the other place with respect to Bill C-10.

Bill C-10 was accompanied by a royal recommendation which stated:

Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances in the manner and for the purposes set out in a measure entitled “An Act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act”.

On November 20, 2002 the Senate adopteded, on division, the following motion, “That it be an instruction to the Standing Senate Committee on Legal and Constitutional Affairs that it divide Bill C-10, an act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act into two bills in order that it may deal separately with the provisions relating to firearms and provisions relating to cruelty to animals”.

The effect of this motion, Mr. Speaker, has been the creation of two new bills in the Senate, Bill C-10A and Bill C-10B.

The member went on to say:

Last night the hon. Speaker of the Senate upheld the reporting back of the...Bill C-10A, ...and the continued examination of Bill C-10B, which now risks being lost in some procedural maze in the Senate.

It seems to me, Mr. Speaker, that it is this House that should decide what pieces of legislation are divided up and in what way they are dealt with. I say this without prejudice to the fact that I can quite understand the desire of the Senate to deal with these matters separately. I share... a concern that a lot of members of Parliament have and obviously a lot of senators have with respect to the nature of omnibus legislation.

Nevertheless, it should be up to the House of Commons to do this, because the way in which the Senate has dealt with Bill C-10 has infringed on the financial initiative of the Crown and on the privileges of the House of Commons.

By inventing the new Bill C-10B, I would argue that the Senate has violated our privilege by creating a new bill that requires the expenditure of public funds, which it has no authority to do, procedurally or constitutionally.

Indeed, the new so-called Bill C-10A should really be called Bill S-something or other, because it is not a creation of the House but rather some bill that the Senate invented based on legislation referred to it by the House. Bill C-10A does involve the expenditure of public funds. For example, it creates a position of commissioner appointed by the governor in council.

At a very minimum, given the proclivity of the Minister of Justice's department for omnibus bills, if we allow this to go forward we are only bound to get into this problem again. For example, on yesterday's Order Paper the government gave notice that it intended to introduce a bill: December 3, 2002--The Minister of Justice--Bill entitled “An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act”. We could very well find ourselves here again in six months.

Mr. Speaker, if you are tempted to accept the argument that the Senate has not violated a 'money bill' or toyed with the royal recommendation, which is the right of this House alone, I would like to cite Erskine May, 21st edition, at page 753, which talks about the limitation imposed by the U.K. Parliament Act of 1911 on the role of the House of Lords that debars them from amending or rejecting 'money bills'. Section 6 of the Parliament Act provides that:

...'nothing in this Act shall diminish or qualify the existing rights and privileges of the House of Commons.' This in practice gives the Commons a choice of proceeding upon Lords amendments under their privileges or according to the procedure laid down by the Act, and consequently they are free to consider, and, if they choose, accept amendments made by the Lords to a certified bill.

In conclusion, Mr. Speaker, I appeal to you with the words of hon. Speaker Fraser of July 11, 1988, wherein he cautioned that if it can happen with a government bill:

...the same situation could arise under our reformed rules for a Private Members' Bill. It is in the better interests of this place to request Their Honours in the Senate to first consult with this House before they report to us such unilateral action.

We will leave it in your hands, Mr. Speaker, for a decision. We believe it to be a very important decision.

Points of Order
Routine Proceedings

10:50 a.m.

Halifax West
Nova Scotia

Liberal

Geoff Regan Parliamentary Secretary to the Leader of the Government in the House of Commons

Mr. Speaker, I would like to respond to the point of order raised by the member for Winnipeg—Transcona.

The other place has reported to this House that it has divided Bill C-10 into two bills and has designated the part dealing with firearms as Bill C-10A and has sent it to this House without amendment.

Standing Order 80 states that money bills are not alterable by the Senate. That said, the House may choose to waive its privileges to accept Senate amendments to money bills.

Beauchesne's 6th edition, on page 187, states:

When the House receives a Message from the Senate stating that it has amended a tax bill, the House may concur in the amendments but disapprove of any infraction of its privileges or rights by the other House. In this case, the House waives its claim to insist upon such rights and privileges, but the waiver of the said rights and privileges is not to be constituted as a precedent.

Beauchesne's goes on to state:

It involves a question of the privileges of the House which have been enshrined in Standing Order 80.

The most recent example of the House accepting Senate amendments to a financial bill was in 1997 when the Senate amended Bill C-70 respecting changes to the GST. In concurring in the Senate amendments, the House indicated that it was waiving its privileges with respect to financial bills.

There are two precedents which are particularly relevant in the matter of Bill C-10. First, in 1941 the Senate amended a war revenue bill and incorporated a separate bill into the revenue bill, in effect creating an omnibus money bill. The Senate specifically requested the concurrence of the House for these amendments. The House chose to waive its privileges and accepted the Senate's amendments. Second, in 1988 the Senate divided Bill C-103 establishing ACOA and the Enterprise Cape Breton Corporation. Initially the Senate had included in its message to the House a request for the concurrence of the House for the division, but this request was deleted from the final Senate message to the House.

In 1988, the then Speaker of the House, drawing on the 1941 precedent I mentioned earlier, concluded that because the Senate did not seek the concurrence of the House on the division of Bill C-103, the Senate's actions were inconsistent with established precedents and infringed upon the privileges of the House.

The Speaker at the time stated:

In the case of Bill C-103, it is my opinion, and with great respect of course, that the Senate should have respected the propriety of asking the House of Commons to concur in its action of dividing Bill C-103 and in reporting only part of the bill back as a fait accompli has infringed the privileges of this place.

I would like to address considerations related to the division by the Senate of a money bill. All financial legislation must first receive a royal recommendation as set out in section 54 of the Constitution Act, 1867 and Standing Order 79 of the House.

The House, in dividing money bills, including the precursor of Bill C-10, does not require a new recommendation. Since the recommendation is a message to the House, it is within the House's privileges to divide a money bill without altering the fundamental authorization for spending under the different parts of the bill.

In the same way, the division of a bill in the Senate would not affect the constitutional or legal validity and application of the initial royal recommendation given for the larger bill.

Members will also know that financial legislation must “originate” in the House of Commons. This principle is set out in section 54 of the Constitution Act, 1867 and Standing Order 80 of the House.

Some observers have wondered whether the division into separate bills would result in two separate bills which originated in the Senate, not the House. Given that the Senate's division of the bill does not result in an origination of two new bills, each bill could still be considered to have originated in the House with the original royal recommendation. As a result, both parts of a divided Bill C-10 would meet the constitutional requirement of origination in the House of Commons.

Under Standing Order 80, this House asserts that financial legislation may not be amended by the Senate, which is an extension of sections 53 and 54 of the Constitution Act, 1867. This extension is not a necessary result of the Constitution, but rather an assertion by the House of its privileges with respect to financial legislation.

The House traditionally asserts the principle that Senate amendment of financial legislation is a breach of the privileges of the House of Commons.The House enacted the standing order in 1867 and it has remained unchanged since. It provides that the Senate may not alter financial legislation, although as I have indicated, the House may choose to waive its privileges in this area.

It is significant that there have been many cases where the Senate has not requested the concurrence of the House for amendments to financial bills, and the House has concurred in the Senate's amendments.

There have also been many cases where the House concurred in Senate amendments to financial bills without specifically stating in the concurrence motion that it was waiving its privileges with respect to financial bills.

This suggests Senate amendments to financial bills may be viewed on at least two levels. First, the 1988 ruling of the Speaker suggests that the Senate's division of a money bill, or the 1941 omnibusing of a money bill, may be of a level of significance that this should be accompanied by a Senate request for House concurrence and a House waiver of its privileges with respect to financial bills.

On the other hand, other Senate amendments to money bills covers may be seen by this House as less significant, and not necessarily requiring a Senate request for the concurrence of the House and a specific statement by the House waiving its privileges with respect to financial bills.

The Senate's division of Bill C-10 is different from the 1988 division of Bill C-103 in two very important ways. First, both parts of Bill C-103 were money bills requiring royal recommendations. However, I understand that the only provision of Bill C-10 that requires a royal recommendation is the provision that establishes the commissioner of firearms. This proposal originated in the House of Commons with a royal recommendation. The Senate has passed this provision, and indeed all of Bill C-10A, without amendment. The second difference between the 1988 precedent and Bill C-10 is that the Senate has sought the concurrence of the House for the division of Bill C-10 and the amendments respect Bill C-10A.

This addresses a concern expressed in the then Speaker's ruling with respect to the Senate's division of a money bill. In keeping with that ruling, as Beauchesne's indicates, the House may therefore choose to waive its privileges, consistent with the precedents, and concur in Bill C-10A.

In conclusion, while there is no specific precedent for the House accepting the division of a money bill by the Senate, the Speaker's 1988 ruling, the 1941 precedent of the Senate omnibusing a money bill, and the established practices of the House indicate that it would be acceptable for the House to waive its privileges and agree to the Senate's division of Bill C-10.

The government has given notice of a motion to agree to the Senate's division of Bill C-10, while at the same time indicating to the Senate that we do not waive our privileges in this respect, nor should this action be considered a precedent.

Subject to your ruling, Mr. Speaker, it would be the government's intention to proceed with this item as soon as possible.