Bill C-10 (Historical)

An Act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act

Business of the House

[Don Boudria, Liberal, Minister of State and Leader of the Government in the House of Commons]

Mr. Speaker, today we will continue with the business of supply. I understand that the votes are scheduled for a 5:15 p.m. bell, followed by the votes of course.

Tomorrow the House will consider the message from the Senate with regard to Bill C-10, the Criminal Code amendment.

In spite of the fact that we have debated it extensively, the government is prepared to offer yet another day, next Monday, with regard to debating the Kyoto protocol.

On Tuesday and Wednesday we will return if necessary to Bill C-10, and if and when completed, followed by Bill C-4, the nuclear safety bill with the possibility of also doing Bill C-3, Canada pension plan amendments, and Bill C-15, the lobbyists registration bill.

While I am on my feet I might as well give the plan for the rest of next week. Next Thursday and Friday, I will be calling the annual prebudget consultation debate.

Privilege

[Roger Gallaway, Liberal, Sarnia—Lambton, ON]

Mr. Speaker, I will briefly comment on this. I want to characterize it as a point of order. I think the message received from the Senate is disturbing and we must address it in this chamber. I say so for the following reasons.

First, pursuant to the special order made by the House on October 4 of this year, it was said that a minister of the Crown proposing a motion for first reading of a public bill could state the bill was in the same form as a bill introduced by a minister of the Crown in the previous session. If you, Mr. Speaker, are satisfied that the bill indeed is in the same form as at prorogation then, notwithstanding Standing Order 71, the bill shall be deemed in the current session to have been considered and approved at all stages, completed, at the time of prorogation of the previous session.

On October 7 during debate, the government House leader, at page 335 of Hansard stated:

This is an enabling motion to permit the government not to create any new bill but to reintroduce that which has already been discussed at the stage completed prior to where we concluded the debate...in June--

How can a special order purport to revive or reinstate a bill which was not before the House in June. It was in fact before the other place. Surely the House by that order did not contemplate reviving a bill which was not indeed before it at prorogation. Therefore, if the government House leader's statement regarding reintroduction, which I just quoted, is to have meaning, it must be that it foresees that only bills before the House can be revived. Therefore the subsequent ministerial motion to reinstate it was out of order because the bill at prorogation was in the other chamber.

Second, the House by this order sent a bill called Bill C-10 to the other place and you, Mr. Speaker, certified to us that it was in the same form, and I stress form, as it was at prorogation. A printed copy of Bill C-10, as we have heard, bears your certification. In fact, it is one of the few times where the Speaker directly becomes involved with a bill.

As well, on Wednesday, October 9 of this year, the justice minister moved for leave on the basis that Bill C-10 was in the same form as what was then known as Bill C-15B from the first session. Therefore he requested that it be reinstated at the same stage it had reached at the time of prorogation. Your ruling on that date, Mr. Speaker, stated the bill was deemed adopted at all stages and passed by the House because it was in the same form.

As we know, on October 10 it received first reading in the other place and it followed various stages. Now we have this peculiar position where we have received a message from the Senate saying that it is sending part of it back. We are in this new age of a two for one special, it appears, from the Senate.

I would draw your attention, Mr. Speaker, to Citations Nos. 626 to 638 of the 6th edition of Beauchesne's where it lays out what is necessary in a bill and what is discretionary in a bill. What we have now is a bill, which you certified as to form and a minister certified as to form, being returned in a way that this place cannot recognize whatsoever.

I would like to echo what the last speaker opposite had to say and that is, that the minister appeared in the House and certified to you, Mr. Speaker, and you certified to us that this was indeed in the same form. Upon an examination of the minutes of the committee in the other place when it was split, the minister appeared before a committee in the other place and did not object to the splitting of the bill.

I have to ask you then, Mr. Speaker, how can a minister apparently assume two positions, one in this place and be passive in the other place? That is first.

Second, I will conclude by quoting Erskine May, 22nd edition on page 5:

The principal common characteristics of the rules of practice was to provide ample opportunity for debate and for initiative in choosing subjects for debate, and ample safeguards against business being taken without due notice so that decisions could not be reached without opportunities for full consideration being given.

We are now in this very strange and unusual paradigm where you, Mr. Speaker, have certified a bill as being Bill C-10. What has been returned is not an amended bill. We have a two for one special back from the other place. If you would refer to Beauchesne's, one of the necessary components of the bill is the title. We cannot recognize what has been returned because it indeed has a different title. We cannot recognize this bill, we ought not to recognize this bill and it should be deemed that the receipt of this message and the bill attached to it ought to be ruled out of order as it is unrecognizable by this place.

I would then say that we are now descending into chaos here because we are ending up in an area where we have a bill on which we are going to be asked to concur. There have been no notices. There has been no debate and there is no opportunity for full consideration.

W cannot accept it in the form and content in which it has been returned, particularly when you, Mr. Speaker, and the justice minister have certified it as to the form of the bill.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, far be it from me to try to enlighten such an illustrious student of parliamentary practice, but modeling myself after you, I did spend a significant amount of time, not the entire evening, looking at this issue.

I would submit respectfully to the Chair that there are elements of a request for money in both A and B. However the issue before the House is the splitting and the bringing to the House on two separate occasions, because we can certainly presume that some time henceforth we will be receiving Bill C-10B, that this in and of itself indicates that there is a clear attempt here to distinguish two separate and distinct pieces of legislation, both requiring a royal recommendation, both requiring additional funds.

There is clearly an attachment of funds when one examines the purpose of the firearms legislation. Similarly any implementation of changes to the Criminal Code could rightly be construed as requiring additional funding for the implementation, the education and the administration by the provinces as it pertains to the enforcement of Criminal Code provisions.

I read with great care the message that was received here. It is seeking concurrence, but I believe the other place is seeking concurrence for something it knows it cannot do. We know, and I state uncategorically, that the Minister of Justice took up residence in the other place and watched with great interest to see if this ruse could occur and then scurried off to the Senate committee to see if this could be perpetuated on an unsuspecting Senate.

Let us not be complicit in this exercise. I put to the Chair that the Chair has a responsibility to protect the privileges of all members, to protect the privileges through us of all Canadians who are being completed bamboozled by the government in its effort to further jam down their throats this unprecedented boondoggle of a gun registry that will not work.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Well, Mr. Speaker, I will come to the point. The point is that what is going on here is that we need independent legal advice with respect to what has occurred. The independent legal advice for the House of Commons will, I suggest, contemplate that there is a contempt that has occurred here in a committee, to a committee. Let the committees have a serious look at what has happened in the House of Commons to initiate all money bills and secure independent constitutional legal advice on the propriety of the actions of the Senate.

I want to quote the opposition leader in the other place, the hon. Senator Lynch-Staunton, who spoke on this issue before the other place.

My preoccupation is with the tearing up of a bill that has come to us from the House of Commons for study and, hopefully, support and agreement, and bringing to this chamber what is now identified as a new bill covering only part of the original Bill C-10.

The government House leader is telling us that the House should have great faith in him and the Department of Justice, but I ask the Chair to recognize that there is a clear conflict of interest. The Department of Justice wants this legislation. The Minister of Justice wants this legislation. The government and the Prime Minister clearly want the legislation.

It is time for the government to put its interests behind the interests of the House of Commons, or is this another way that the government House leader is looking at modernizing Parliament? Will we have the Senate carve up omnibus bills after elected members of the House of Commons have taken heat from the electorate for their comprised votes on the omnibus bills?

In brief, the Senate has authored what it says is a House of Commons bill with a new title and which spends money. That is the result. That is a clear breach of privilege as was stated by Speaker Fraser in his ruling on July 11, 1988. The Chair has already received significant commentary on that particular ruling. I would suggest that ruling, in essence, is a precedent that did not happen. The Senate in essence retreated on that particular occasion and can be clearly distinguished from the issue before the House.

That is but one factor. There is also another ruling referred to by the parliamentary secretary that occurred on April 26, 1990. He also referred to a 1997 position, wherein he is essentially saying, “Well, we have done this before so it must be okay”.

All of those situations can be clearly distinguished. I am contending that by tendering a document as a C bill, Bill C-10A, and by voting on that bill in the Senate as if it were a House of Commons bill, the Senate is in contempt of the House. By the use of the royal recommendation that was signed by Her Excellency only for Bill C-10, there is a significant prima facie case and there is significant evidence of a contempt of the House.

I contend that this matter should be referred to a committee for examination and for the commissioning of an independent constitutional opinion. I believe there is also a serious question to be resolved over the misuse, and potential fraudulent use, of the Governor General's royal recommendation and that Her Excellency may want to ask some hard questions of her own ministers.

Mr. Speaker, I suggest that there are remedies available to you and that you may rule this particular bill and the practice that has been attempted to be out of order. As I indicated to you, I am prepared to move a motion should you find in my favour on this point.

[Peter MacKay, Progressive Conservative, Pictou—Antigonish—Guysborough, NS]

Mr. Speaker, I must express my dismay for the order in which we dealt with this. As the Chair would know, a question of privilege trumps a point of order. I gave notice to the Chair of this question of privilege yesterday.

In any event, I hope to present to the House and to you, Mr. Speaker, a cogent and coherent argument which I believe will be compelling and will cause the Speaker to act in such a way that Bill C-10 will not proceed further through the House in this form. The natural result of this would be to save Canadians further expenditures of hundreds of millions of dollars and arguably give law-abiding citizens potential criminal records if the bill were to pass. Quite briefly, this question of privilege, I suggest, should prevent the further passage of Bill C-10.

The arguments presented by the parliamentary secretary suggest that there is a precedent for what is about to occur. He went on to say that the precedent is not really a precedent because we declare it is not. In essence, we are being presented with a nonsensical argument. This is tantamount to pouring whisky into a jar of milk and then attempting to strain it out. If the precedent is there, it is there. He is asking the House to accept that we can waive our privileges somehow.

What that would do in terms of legislation in presenting new powers to the Senate that do not exist is say that we will just acquiesce and give it those powers. We would say to those who seek to rob us, “Please come in our house. We will go away while you help yourself to the cutlery”.

In the Journals yesterday there was a recorded message from the Senate concerning Bill C-10, an act to amend the Criminal Code (cruelty to animals and the Firearms Act). The message, Mr. Speaker, that you have before you, and I will not read it in its entirety, essentially asks for concurrence, something I suggest that the Liberal dominated Senate knows it cannot do. There is no explanation and no reasons given; it is simply asking that this House concur in what it is attempting to do.

This indicates the Senate has taken upon itself to tamper with a House of Commons bill, a bill which carries the royal recommendation and which also is what is generally described as an omnibus bill. Mr. Speaker, you would have a copy of that. On that bill I note on the last page it says, “Published under the authority of the Speaker of the House of Commons”, which makes the Speaker complicit in what the Senate is trying to do.

I first want to say that this message may well represent a sea change to the way in which omnibus bills are considered by Parliament. The precedent cited can only destroy and diminish previous precedents. I suggest quite strongly that any precedent that has been cited already can clearly be distinguished. We gave third reading to something similar to Bill C-10A, but it is completely different, of course.

I ask the Speaker in his consideration of this question of privilege to focus on the form of the bill. My argument is premised on the fact that the action taken by the Liberal dominated Senate is unprecedented, extraparliamentary and a power grab that will result in a bill that is not in its proper form and therefore a bill not properly before Parliament.

If the government is prepared to have unelected senators dismantle omnibus bills, I think it will have a significant rebellion on its hands with respect to the way the House is being asked to approve omnibus legislation. I for one, and I suspect a large number of those sitting on the government side, will not be content to tell our electors that we had to vote for an omnibus bill because of some of the provisions in the bill and then watch the senators cherry-pick the provisions of the same bill.

Let us be clear. What is about to happen is a huge shift in power toward the Senate. None of the senators will have to explain their actions to the voters. There is no precedent for this to occur. It goes beyond the constitution of the Senate. It also offends the notion of the relationship between the two chambers, which would offset the current balance. The other place, I am suggesting strongly, is exceeding its powers. We cannot therefore waive our privilege in this regard.

Let me state something immediately before proceeding with this question of privilege.

Bill C-10 was sent to the Senate. Printed on it was the text of the recommendation of Her Excellency the Governor General. It was a bill originating in the House of Commons, as it must do because it is a money bill.

Bill C-10 incidentally was a portion of Bill C-15 in the last Parliament and similarly resulted in a splitting of the bill after much pressure from the opposition. It died on the Order Paper after prorogation. It died in the Senate.

The bill is now numbered C-10 because it is a House of Commons bill. The Senate message says that it has divided the bill. However, Mr. Speaker, what I strongly urge you to accept is that is not the case. What the Senate has done, I believe, is more than divide the bill. It has rewritten the bill.

I ask the Speaker again, respectfully, to review the precedence with respect to the form of a bill. The Speaker will find that the form of a bill is set out in Beauchesne's sixth edition at section 626. It cites, among other things, the title, the preamble, the enacting clause, the clauses, the schedules, explanatory notes and so on.

Mr. Speaker, you will note that Bill C-10A as it now appears has a different title. It has in fact different numbers attached to the clauses of the bill.

The document sent to us by the Senate contains appendix A and appendix B; two bills with new titles. These are new bills created and written by the Senate. They may contain similar language to part of Bill C-10, but make no mistake, what we have before us are two new bills. I should clarify that we have part of two new bills; one remains of course in the other place.

The Senate message indicates that notwithstanding the fact that it has returned Bill C-10 to the House, it is continuing to examine what it is now calling Bill C-10B. What is at work is one portion, dealing with firearms, is running out of time because of the incompetence and poor planning of the government. The other portion is remaining before the Senate because there is still contention, even among Liberal backbenchers and members of both Houses. That is an attempt to make this entire situation more palatable.

I readily admit that the Senate has the right to send to the House bills that originate there, that is, in the Senate. Bills may be written by senators, either in the form of private members' bills or simply S bills. The House receives those bills regularly. Senate bills carry the prefix S to designate their house of origin. It is clear from the Constitution that Senate bills, S bills, cannot, and I underline cannot, be money bills.

I contend that by drafting something that the Senate calls Bill C-10A and Bill C-10B and by telling the House that it is continuing to examine Bill C-10B, the Senate is attempting to create something that only this House can create, namely a C bill. By doing that, it has committed a constructive contempt of the House. We in the House do not create a bill in the House and advertise it as a Senate bill. As the old saying goes, “What is good for the goose is sauce for the gander”.

Without quoting extensively from the standing orders, I refer to Standing Order 80, which states:

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--

Note that it states “the sole gift”. Mr. Speaker, I refer you as well to the Constitution Act, 1867 wherein it speaks of appropriation and tax bills. Section 53 states:

Bills for appropriating any part of the public revenue, or for imposing any tax or impost--

I underline for emphasis:

--shall originate in the House of Commons.

What the Senate has done is to take part of the text of the House of Commons bill, a C bill, chop it up, alter the text of the bill, paste on it what it purports to be a royal recommendation that was signed by the Governor General only in relation to Bill C-10, and send that fraudulent bill in through the back door of the House of Commons, pretending that it is a Commons bill. The Senate sent it with a little note that says, “Hey, let's make a deal. By the way, we are now writing money bills in order to expedite the wishes of the Minister of Justice who will be prepared to say that everything is okay and in accordance with the Constitution”.

We learned yesterday just how far Parliament can depend on the Minister of Justice. It is very shabby, tricky behaviour I suggest. We cannot condone this activity that flagrantly flouts the rules of this place simply because the Minister of Justice now has his toe in the wringer. The Minister of Justice should be the embodiment of justice with respect for the rule of law and an ardent protector of the strict compliance with the rules of this chamber.

I want the House to be able to have independent legal advice concerning the propriety and constitutionality of the proposed actions of the Senate. As it stands, the Department of Justice, and the Minister of Justice as the chief law officer of the Crown, stand condemned by the Auditor General of Canada. Parliament has no reason to trust the advice coming from the Minister of Justice. He and his department are caught in an undeclared conflict of interest.

Points of Order

[Geoff Regan, Liberal, 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.

[Yvon Godin, NDP, 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.

[Carol Skelton, Canadian Alliance, 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.

Criminal Code

[Paddy Torsney, Liberal, Burlington, ON]

Mr. Speaker, I have a couple of things to say with regard to the hon. member's bill. I also want to clarify a couple of things that were said by one of her colleagues, the member for Saanich--Gulf Islands.

It is important for all Canadians to realize that it is not the government that chooses what is votable. It is actually a committee of this Parliament that chooses what is and is not votable.

While he exalted the conservation activities in other countries, which are very deserving of great credit, I think he forgot about some of the important conservation activities taking place here in Canada through organizations like Ducks Unlimited where there is some public and private partnership.

However I was encouraged by some of the things that he mentioned on the endangered species and cruelty to animal legislation that is working its way through the House and through the Senate. I encourage him, given his support, to encourage the senators to pass that bill because there are important issues to be addressed there.

With regard to Bill C-280, I think most members of the House would agree that the goal of discouraging the selling of wildlife and wildlife parts, particularly wildlife that is threatened or endangered, is a laudable one, but the question is, how do we best do that.

The member opposite has raised some very important issues. This should be something discussed through one of the joint ministers' meetings at the federal and provincial level because some of the issues are provincial and some of the issues are federal. Let us figure out what the best tools are. She has raised an issue of great importance to Canadians and to the future of our wildlife.

The member for Northumberland has already identified a number of difficulties with making this a Criminal Code provision, and that perhaps regulatory legislation is more appropriate. There are a number of federal statutes that try to address some of the conduct that is being sought in Bill C-280, such as the Canada Wildlife Act, the Migratory Birds Convention, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, which the member herself recognized, and the species at risk act, Bill C-5, which is currently before the Senate. Some of the things that are being covered will be addressed through that.

The member for Northumberland talked about the difference between criminal law and regulatory provisions. The Supreme Court of Canada has expressly recognized that:

--the common law has long acknowledged a distinction between truly criminal conduct and conduct, otherwise lawful, which is prohibited in the public interest.

There could be some challenges here.

According to Justice Cory:

Regulatory legislation involves a shift of emphasis from the protection of individual interests and deterrence and punishment of acts involving moral fault, to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.

I think this is where the member is trying to punish acts and also to prevent future acts, and we need to get the right measures in place.

The member for Northumberland has already identified that there is a problem because of the exceptions that would be covered in this act and that the criminal law does not really have exemptions. It is extremely rare for the Criminal Code to specify exemptions for criminal liability in respect of particular offences.

The other challenge, which I am not sure he had a chance to discuss, was the issue of relative proportionality in terms of sentencing. Clearly, there is a need to make sure that sentences are proportionate with the seriousness of other offences that may carry the same or lesser penalties. It is not an exact science but I would argue that it has evolved over time as Canadians have placed greater emphasis or expressed their desire to stop certain offences or their abhorrence of certain offences. We have increased penalties in certain areas. We have sent a strong message to those who would choose to conduct them. However it would be disproportionate that a second offence under Bill C-280, in relation to a threatened or endangered species, would carry a maximum penalty of eight years when the maximum penalty right now for assault on indictment is five years.

Currently the maximum penalty for cruelty to animals is six months and that is why Bill C-10B, which is currently before the Senate, would raise that maximum to five years. Cruelty to animals would have a five year maximum sentence and that is for someone who is torturing an animal, which I think all of us in the House and in Canadian society would agree is absolutely abhorrent. We need to see how that would relate to what is being proposed in the member's bill, which is a maximum of eight years.

I mentioned that there are a variety of statutes that regulate the kind of behaviour that is dealt with in Bill C-280. I think the member has raised a very important issue. It is something we need to discuss at the federal-provincial level to see if the provinces should be doing more in terms of their regulatory authority. We should work through and develop the issue a little more before necessarily making a change to the Criminal Code.

I definitely support the protection of animals. The member's colleague mentioned organized crime rings. We need to make sure that those laws are in place to stop that kind of activity and to punish it very severely should it occur. I think there are a number of ways we could beef up things through the current bills and acts that are in place. We do not want to inadvertently create even more confusion out there so that people do not do their utmost to protect our species and wildlife in Canada.

At this point I will not be supporting the bill but I commend the member opposite on her excellent work.

Points of Order

[Bill Blaikie, NDP, Winnipeg—Transcona, MB]

Mr. Speaker, I do not want to argue an earlier point of order on a second point of order, but if I did I would say that the matter is hardly academic. There has been an event in the Senate.

However, given that the event in the Senate, an empirical procedural event I might add, has happened, and given your suggestion, Mr. Speaker, just minutes ago, I would seek the unanimous consent of the House to send a message to the Senate asking it to reverse the decision taken yesterday to split Bill C-10 into two different bills.

[Bill Blaikie, NDP, Winnipeg—Transcona, MB]

Mr. Speaker, I almost rose on a point of order as to why points of order could not have been heard earlier, but we will leave that for another day.

My point of order has to do with the fate of a particular piece of legislation in the other place that was passed by the House. I am referring to Bill C-15B which in this session became Bill C-10 and was passed by order of the House on October 9, 2002 and received by the other place subsequent to that.

Ironically Bill C-15B which became Bill C-10 has now been broken up into two bills in the Senate. Bill C-15B itself was the product of fragmenting of an earlier piece of omnibus legislation. We might want to have a debate sometime in the House about the advisability of omnibus legislation given the fact that the House itself, and now the other place although illegitimately in my view, have chosen to fragment further omnibus legislation.

Mr. Speaker, I know that you may want to argue that we should not be having a point of order on this until we receive word from the other place with respect to the bill. It seems to me that if that is the case, then we could have another point of order about whether or not we should take preventive action and whether the House should send a message to the other place before the other place sends a message to us, suggesting that the other place should not behave in the way that it has.

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 passed, 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 seen the creation of two new bills in the Senate, Bill C-10A and Bill C-10B.

Last night the hon. Speaker of the Senate upheld the reporting back of the so-called Bill C-10A, which I realize we have not received, 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, as I have already indicated, 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.

An act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act

[Martin Cauchon, Liberal, Minister of Justice and Attorney General of Canada]

moved for leave to introduce Bill C-10, an act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act.

Mr. Speaker, this bill is in the same form as Bill C-15B from the first session of this Parliament and it is in accordance with the special order of the House of October 7, 2002. Therefore, I request that it be reinstated at the same stage that it had reached at the time of prorogation.

(Motions deemed adopted, bill read the first time and printed)