Bill S-229 (Historical)

Underground Infrastructure Safety Enhancement Act

An Act respecting underground infrastructure safety

This enactment creates a federal underground infrastructure notification system that requires, among other things,
(a) operators of underground infrastructure that is federally regulated or that is located on federal land to register that underground infrastructure with a notification centre and provide information on it;
(b) persons planning to undertake a ground disturbance to make a locate request to the relevant notification centres; and
(c) operators of registered underground infrastructure, as a result of the locate request, to mark the location of the underground infrastructure on the ground, provide in writing an accurate and clear description of the location of the underground infrastructure or indicate that the ground disturbance is not likely to cause damage to the underground infrastructure.
Finally, the enactment also provides a mechanism by which reserves and some other lands subject to the Indian Act can become subject to this notification system, after consultation with the council of any band in question.

Private Members' Business—Speaker's Ruling

[The Speaker, Liberal, Geoff Regan]

I am now prepared to rule on the point of order raised on May 12, 2017, by the hon. member for Winnipeg North concerning the possible requirement for a royal recommendation with respect to four private members' bills, two from the House of Commons and two from the Senate.

The Commons bills are Bill C-315, an act to amend the Parks Canada Agency Act, conservation of national historic sites account, standing in the name of the hon. member for Leeds—Grenville—Thousand Islands and Rideau Lakes, and Bill C-343, an act to establish the office of the federal ombudsman for victims of criminal acts and to amend certain acts, standing in the name of the hon. member for Beauport—Côte-de-Beaupré—Île d'Orléans—Charlevoix. Both bills are currently in the order of precedence at second reading.

The two Senate bills are Bill S-205, an act to amend the Canada Border Services Agency Act, Inspector General of the Canada Border Services Agency, and to make consequential amendments to other acts, standing in the name of the hon. member for Toronto—Danforth, and Bill S-229, an act respecting underground infrastructure safety, standing in the name of the hon. member for Guelph. Both of these bills are currently awaiting first reading.

Members will recall that on May 9, 2017, I made a statement in which I invited arguments in relation to these four bills. I would like to thank the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons, the hon. member for Guelph, and the hon. member for Perth—Wellington for their detailed interventions.

Of the four bills, Bill C-315, in proposing to establish a separate account as part of the accounts of Canada from which disbursements could be made, raises most clearly a question about the possible need for a royal recommendation. The other three bills, C-343, S-205, and S-229, are different. While they present schemes that could lead to new spending, all contain coming-into-force provisions designed to make such spending conditional on separate parliamentary appropriations. I will address Bill C-315 first, and then the other three.

Bill C-315 establishes a distinct account for the conservation of national historic sites, called the conservation of national historic sites account. The funds for this account are to be raised exclusively through private donations and from the interest generated from them. I should note that this fund seems to be separate from the pre-existing new parks and historic sites account, which serves a similar purpose and is also based, at least in part, on donations.

Bill C-315 also provides that the funds may be spent for specific purposes in relation to national historic sites. The parliamentary secretary contended that the creation of such a new account, and the authority to spend its funds on national historic sites, would be a new and distinct purpose that is not specifically authorized by any statute, thus clearly requiring a royal recommendation.

In making his case, the parliamentary secretary drew a parallel to the employment insurance fund. While nominally its own account, all amounts received and dispersed from the EI fund are deposited in and drawn from the consolidated revenue fund. Because these monies are part of the consolidated revenue fund, a royal recommendation is necessary to authorize any expenditure from it.

Although the situation with Bill C-315 is not entirely analogous to the EI fund, I believe that a similar principle still applies. Even if the monies are accounted for separately and raised exclusively through donations and interest generated from those donations, once collected, they become public funds deposited into the consolidated revenue fund. Any payments from this fund would also be drawn from the CRF. As the bill authorizes this spending for a specified purpose, it must be accompanied by a royal recommendation. Therefore, I find that the objections raised by the parliamentary secretary are well founded.

However, as is consistent with our practice with respect to Commons bills, Bill C-315 can continue through the legislative process as long as there is a possibility that a royal recommendation could be obtained before the final vote on the bill. Alternatively, the bill could perhaps be amended in such a way as to obviate the need for a royal recommendation. Absent one or other of these options being exercised, the question at third reading of the bill will not be put.

Let me now turn to the issues raised in the three other bills, namely S-205, S-229, and C-343. The parliamentary secretary argued that the bills in question were proposing new and distinct expenditures and that the accompanying coming-into-force provisions did not alter this fact. In support of this argument, he cited a Speaker’s ruling from November 9, 1978 about clauses in bills that seek to elude the requirement for a royal recommendation. Accordingly, it was his contention that the question could not be put at third reading on Bill C-343. Moreover, with respect to Bills S-205 and S-229, which originated in the Senate, both should be removed from the Order Paper since any bills appropriating public funds must originate in the House of Commons.

The member for Guelph argued, on June 20, 2017, that Bill S-229 is in order and should be allowed to proceed. First, he contended that no procedural authority exists to remove Bill S-229 from the Order Paper. To do so, the Chair would be relying exclusively on constitutional principles set out in sections 53 and 54 of the Constitution Act, which, in his view, is contrary to the principle that the Chair does not rule on matters of constitutionality. He also contended that even if a royal recommendation were needed, the Chair should allow the bill to continue until the end of the debate at third reading, as is done for private members' bills first introduced in the House.

The member then turned to more substantive arguments about the bill, claiming that the coming-into-force clause ensured that it did not appropriate any part of the public revenue, as such appropriations would have to be granted through subsequent legislation. He further contended that it was not a “money bill”, but, and I quote, “merely contemplates the minister entering into an agreement but does not directly involve any expenditure”.

The hon. member for Perth—Wellington, on September 19, 2017, made a similar argument in relation to Bill C-344. In his view, it was clear that no money could be spent for the purposes set out in the bill unless and until such funds were appropriated by Parliament in a separate measure. He argued that the bill merely established the machinery under which some future expenditure might be made and that for this reason it did not require a royal recommendation.

As Speaker, I am mindful of my responsibility to provide members with the widest amount of latitude possible in bringing forward measures for consideration as long as these conform to our rules and practices. Their proposals may take the form of either motions or bills. The Chair would only intervene to prevent consideration of such items when they are clearly defective in some procedural way. One of the most important tests when it comes to bills that authorize spending is that they must first be introduced in the House of Commons and must be accompanied by a royal recommendation prior to final adoption. The key question in relation to these three bills is whether they authorize any spending. That is to say, would their adoption result in public funds being appropriated for new and distinct purposes?

The Parliamentary Secretary pointed out measures in each bill that he felt required a royal recommendation. Bill C-343 provides for the appointment of a federal ombudsman for victims of crime, with remuneration and associated expenses for the appointee, and the hiring and remuneration of the necessary staff.

As the member for Perth—Wellington mentioned in passing, this office already exists as a program within the Department of Justice and the ombudsman is appointed as a special advisor to the Minister of Justice pursuant to the Public Service Employment Act. What Bill C-343 proposes, I would argue, is different, insofar as it seeks to establish the ombudsman as a separate and independent office outside of the department. In such circumstances, a royal recommendation would be needed to properly implement the creation of this office and authorize spending to this end.

Bill S-205 proposes the appointment of a new inspector general of the Canada Border Services Agency, the appointee's remuneration, and associated employment benefits. These provisions, if implemented, would require new and distinct spending not currently covered by existing appropriations.

Bill S-229 seeks to authorize the designated minister to make regulations allowing for, among other things, the establishment of a funding program to enable notification centres and damage-prevention organizations to exercise the functions assigned to them under this act, potentially involving new expenditures not currently authorized. Excepting that certain clauses of each bill seem to involve potential spending for which a royal recommendation would ordinarily be required, the critical question is the impact of the coming-into-force clause.

The hon. member for Guelph and the hon. member for Perth—Wellington cited certain authorities and precedents to justify why a royal recommendation is not required. Beauchesne’s Parliamentary Rules and Forms, sixth edition, at page 186, citation 613 reads:

A bill, which does not involve a direct expenditure but merely confers upon the government a power for the exercise of which public money will have to be voted by Parliament, is not a money bill, and no royal recommendation is necessary as a condition precedent to its introduction.

The same publication, at page 185, citation 611, addresses the issue of Senate bills containing a clause that states that no money will spent as long as the necessary parliamentary appropriation is not secured. Specifically, it states:

A bill from the Senate, certain clauses of which would necessitate some public expenditure, is in order if it is provided by a clause of the said bill that no such expenditure shall be made unless previously sanctioned by Parliament.

All three bills explicitly provide that they cannot be brought into force until funds are appropriated by a subsequent act of Parliament, which would have to be initiated in the House of Commons and be accompanied by a royal recommendation. The adoption of these bills, then, does not authorize the appropriation of any funds from the consolidated revenue fund. They would establish a framework in law to establish the new offices proposed by Bill C-343 and Bill S-205, or to develop the system proposed by Bill S-229.

However, the crown is in no way obligated to spend money for these purposes. If, in the future, Parliament granted the necessary funds for these purposes, it would be doing so in the full knowledge that it would allow these measures to come into force. Such a granting of funds would have to be done pursuant to our normal financial procedures. This being so, the financial prerogatives of the crown and the privileges of the House of Commons are entirely respected.

It must also be recognized that the House has not had to deal with bills providing for conditional spending in recent years and certainly not since the significant changes to our practices surrounding private members' business made in 1994.

After careful consideration, I am of the view that a royal recommendation is not required, and that these three bills may continue along the usual legislative process. With that said, I believe it might be useful for the Standing Committee on Procedure and House Affairs to consider the matter of private members' bills that contain what I would call, for lack of a better term, non-appropriation clauses. The House would likely welcome any views that the committee would have to offer on this subject.

I thank hon. members for their attention.

Private Members' Business

[John Nater, Conservative, Perth—Wellington, ON]

Mr. Speaker, I rise on a point of order in respect of the Chair's statement on May 9, 2017, concerning Bill C-343, an act to establish the Office of the Federal Ombudsman for Victims of Criminal Acts and to amend certain acts, standing in the name of the hon. member for Beauport—Côte-de-Beaupré—Île d'Orléans—Charlevoix.

Like you, I have spent all summer reflecting on the Speaker's comments at that point, and I am now prepared to offer comments on his provisions at that time.

The Chair drew the attention of the House to the presence of a provision in Bill C-343, namely clause 26 of the bill:

26(1) Subject to subsection (2), this Act comes into force on a day to be fixed by order of the Governor in Council.

(2) No order may be made under subsection (1) unless the appropriation of moneys for the purposes of this Act has been recommended by the Governor General and the moneys have been appropriated by Parliament.

At the heart of the Chair's concern is section 54 of the Constitution Act, 1867, formerly the British North America Act, 1867, which requires the Governor General's recommendation for appropriations.

That constitutional provision is given procedural effect, and thus, jurisdiction for the Speaker through Standing Order 79(1), which was quoted in the June 20, 2017, intervention by the hon. member for Guelph.

Indeed, as the English constitutional scholar Sir Ivor Jennings once wrote:

In approaching the subject of financial control exercised by the House of Commons, we reach the borders of the realm where law, parliamentary privilege, and parliamentary custom are almost inextricably intertwined.

Over the course of 150 years, a number of procedural precedents concerning the crown's financial prerogatives have been accumulated. This is one area where we can more easily look back over the array of accumulated jurisprudence, because that piece of constitutional law, and the associated procedural rules, have not substantively changed since Confederation.

I draw your attention to Beauchesne's Parliamentary Rules and Forms, 6th edition, at citation 611, which provides that:

A bill from the Senate, certain clauses of which would necessitate some public expenditure, is in order if it is provided by a clause of the said bill that no such expenditure shall be made unless previously sanctioned by Parliament.

Reference is then made to the ruling of Mr. Speaker Cockburn, on April 5, 1870. Page 155 of the Journals records the following:

The last Clause in the first section, provides that nothing in this Act shall give authority to the Minister to cause expenditure, until previously sanctioned by Parliament; and this overrides the eighth section referred to by the Honourable Member. No contract could therefore be entered into under that section, which could bind the Government, and necessitate an expenditure of public moneys, unless it had been previously sanctioned by Parliament. He could not therefore sustain the objection of the Honourable Member for Chateauguay.

To be clear, the statutory language referenced was the proviso in section 1 of An Act to amend the Act relating to Lighthouses, Buoys and Beacons, which was quoted by the hon. member for Guelph.

By its own terms, subclause 26(2) of Bill C-343 would not give the Governor in Council, in this case, the authority to pass an order in council to bring the act into force unless and until such authority for expenditure, an appropriation, has been given by Parliament.

Turning back to Beauchesne's, let me quote citation 613:

A bill, which does not involve a direct expenditure but merely confers upon the government a power for the exercise of which public money will have to be voted by Parliament, is not a money bill, and no Royal Recommendation is necessary as a condition precedent to its introduction.

No reference is noted, but looking back to the fourth edition of Beauchesne's, the citation, there numbered as 277(2), refers to a ruling on February 23, 1912, at page 240 of the Journals.

In responding to Sir Wilfrid Laurier's point of order, the prime minister, Mr. Borden, as he then was, forcefully observed:

It does not appropriate any part of the public revenue, it does not appropriate one dollar of the public revenue for any such purpose. It merely does this: It provides that if parliament shall at any future time appropriate a certain sum of money for that particular purpose, then that money shall be expended by the Governor General in Council under the provisions of this Bill, according to the method now laid down in the Bill before the House. The provisions of this Bill are perfectly simple and plain and not to be misunderstood....

Therefore, it is apparent that before one dollar of public money can be expended under the provisions of this Bill, a resolution must be brought down in parliament, assented to by His Royal Highness the Governor-General, considered in Committee of the Whole, and be the foundation of a Bill which will alone justify any expenditure under this Act.

Therefore, to suggest, as the right hon. gentleman has done, that this is a Bill for the appropriation of any part of the public revenues, seems to me to be entirely a misstatement of the case. The simple answer to it is, that without this Bill, if an appropriation were presented to this House, passed through Committee of the Whole and embodied in an Act of this parliament, the Governor General in Council would be left without any machinery whatever for the expenditure of that money. This Bill is solely designed to furnish machinery for the expenditure of a certain sum of money which may or may not be voted by parliament for that purpose. There is no question of the appropriation of one dollar of the public revenue of this country for this purpose until an appropriation Bill has been brought in founded upon a resolution which shall conform to section 54 of the British North America Act.

Mr. Speaker Sproule ruled in favour of Mr. Borden's argument. He stated:

My attention was drawn to the fact that when parliament could vote any money for that purpose, the resolution must pass through the usual course required for all money resolutions or Bills...That in my judgment seems to be ample guarantee for the House that it would have the full consideration that all money Bills have, and therefore I thought it unnecessary at the time that it should be introduced by a resolution. That was my opinion then, whether it was correct or not, and I still hold the same opinion.

One further passage from Beauchesne's sixth edition to offer, is citation 614, which reads:

A bill, designed to furnish machinery for the expenditure of a certain sum of public money, to be voted subsequently by Parliament, may be introduced in the House without the recommendation of the Crown.

That citation cross-references to Mr. Speaker Sproule's ruling on January 16, 1912, at page 118 of the Journals, based on an English precedent, which was described as “a motion for leave to bring in a Bill to enable the Government to acquire lands for public purposes, but not providing funds for the same. On objection being taken that the Bill "involved a charge upon the public," answer was made that the Bill only proposed to give the Government power to buy land, but for that power to be of any use an estimate must be voted in committee; that the Bill would not enable the Government to purchase any lands until the House, in Committee, had considered the Estimates and agreed to them; that the Bill did not authorize any public money although the expenditure was contemplated. The Speaker ruled that the object of the Bill was to take ground for certain purposes. It did not give them power to purchase the property.”

What Bill C-343 does is establish a machinery, though one might, more accurately, say that it merely confirms the existing machinery for the Federal Ombudsman for Victims of Crime, who currently works under the auspices of the Minister of Justice, whereby some future additional expenditure might, at a later date, be approved and undertaken to this end. The need for a later parliamentary appropriation to be separately enacted is clearly made out in subclause 26(2) of the bill.

Moreover, to safeguard the financial initiative of the crown, Bill C-343, if passed, will not become law until proclaimed by the Governor General in Council, and then only if the condition precedent of necessary appropriations being made is satisfied, which of course follows a recommendation by the same Governor General, acting on the advice of those same constitutional advisers.

As the Chair's statement noted, this condition precedent for a coming into force order is similar to provisions found in Bill S-205 and Bill S-229. Before the summer adjournment, the hon. member for Guelph tendered submissions on the latter bill.

Without commenting on the merits of those two bills, it does not appear, from a cursory search of Senate proceedings, that this coming into force clause is an entirely novel approach in that House, although it may be the first such provision to make its way to the House of Commons in recent years. To that end, it makes sense to explore how the other place has handled this issue.

Through its Rule 10-7, the Senate gives procedural footing to section 54 of the Constitution Act, 1867. That rule reads, “The Senate shall not proceed with a bill appropriating public money unless the appropriation has been recommended by the Governor General.”

That rule is more trite than our own Standing Order 79(1), but it still applies the same principle. Therefore, how does that rule-addressing the constitutional principle in section 54 intersect with provisions worded like clause 26 of Bill C-343?

Page 155 of Senate Procedure in Practice informs us that:

In addition to the factors outlined in the above quotation, rulings have noted that a bill that would otherwise require the Royal Recommendation can proceed if it clearly provides that it does not come into effect until funds have been separately appropriated by Parliament.

In support of that proposition, footnote 181 references citation 611 of Beauchesne's, which I earlier quoted, as well as two rulings of Mr. Speaker Kinsella. The first ruling, delivered on May 27, 2008, and recorded at page 1086 of the Senate Journals, lays out the Senate Speaker's logic in working through the question. The hon. member for Guelph quoted a portion of it. Allow me to quote further parts of that ruling, which state:

The key to this issue is, of course, clause 52(2). Under this clause, most of the Bill cannot come into force until funds have been recommended by the Governor General and appropriated by Parliament for the purposes of the Bill. No expenditure whatsoever would thus be incurred by the mere passage of Bill S-234...

When the term “appropriation” is used, it is often used quite loosely. It does, however, have a narrower meaning. An appropriation is a sum of money allocated by Parliament for a specific purpose. As seen with supply bills, appropriations quite often fund entities whose legal framework has been separately established.

One must, therefore, consider whether Bill S-234 actually “appropriates” money within this meaning. As already discussed, funds for the purposes of Bill S-234 will have to be separately appropriated or voted by Parliament, on the Governor General's recommendation, before the Bill can enter into force.

Here comes the kicker:

Bill S-234 thus appears to respect fully the financial initiative of the Crown, since no funds are being or must be appropriated.

Later, Speaker Kinsella said:

Bill S-234 respects the financial initiative of the Crown, while allowing Parliament the opportunity to consider a new proposal. The Bill in no way incurs actual expenditures, it merely sets the stage for such expenditures to be incurred, if the Crown chooses to recommend them, and if Parliament chooses to appropriate these funds.

The second ruling, on May 5, 2009, found at page 564 of the Senate Journals, recalls the analysis in the ruling I just quoted and concluded:

The ruling on Bill S-230 is the same. The bill does not require a Royal Recommendation, since nothing can happen following its adoption until and unless funds have been appropriated”.

This line of logic is also followed by former law clerk and parliamentary counsel, Rob Walsh, in his 1994 Canadian Parliamentary Review article entitled, “Some Thoughts on Section 54 and the Financial Initiative of the Crown”, where he quoted from a former chief legislative counsel of the Department of Justice. He stated:

Sometimes bills are passed during a session for which no appropriation is made. In those cases we will usually put an appropriation clause in the bill because there has been no appropriation. In other cases, we do not have to put appropriations in the bill; we presume that Parliament will appropriate the moneys. If they do not appropriate the moneys, effectively the law will not operate.

Finally, I want to address the 1978 ruling of Deputy Speaker Gérald Laniel, cited by the government House leader's parliamentary secretary in his submission and answered by the hon. member for Guelph. Mr. Walsh offered this critical perspective of the decision, in the article I just referenced. He stated:

It is difficult to see why this should be so when passage of the bill, with a non-appropriation clause, would clearly indicate that an expenditure of public funds under the bill is not authorized.

Later in the article, Mr. Walsh argued the following:

In respect of a private member's bill containing a non-appropriation clause, the Speaker need only ask two questions: (a) would the bill, in the absence of the non-appropriation clause, require a royal recommendation? and (b) if so, is the non-appropriation clause sufficient to dispense with requiring a royal recommendation? In respect of the latter, the test should be whether the non-appropriation clause clearly disclaims authorization by Parliament to expend public funds for purposes of the bill. In the absence of an authorization by Parliament, no public funds may be expended: section 26, Financial Administration Act.

Additionally, Mr. Walsh advanced this thought:

It is also argued that such bills constitute an indirect demand for supply and would, if passed, leave the Crown bound to make a demand for supply for purposes of the bill and the Crown ought not to be put in a position where its financial initiative is compromised. In this connection, it is pertinent to note that the Crown has been known to not proclaim...into force an Act that has been passed by Parliament. If the Crown is not obliged—and evidently does not feel itself obliged—to bring into force an Act that Parliament has seen fit to enact, how can it say that enactment of a private member's bill with a non-appropriation clause leaves it obliged to exercise its financial initiative and to make a demand for supply? In short, this argument lacks credibility.

In conclusion, the authorities are clear that the legislative language used by the hon. member for Beauport—Côte-de-Beaupré—Île d'Orléans—Charlevoix is an acceptable manner in which to proceed. It recognizes the government's exclusive rights concerning financial initiatives, while offering something of a turnkey statutory structure for the government to bring into force at a time of its choosing and in a manner entirely respectful of our constitutional rules concerning financial bills.

I may add as a way to sum up, that this is an important bill and if we look at the human side of things, we are looking at an ombudsperson for victims of crime and we need to think of those victims at all times, think of the impact that the legislation like this would have.

I offer this submission to you, Mr. Speaker, to take under advisement when ruling on the royal recommendation of the bill.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I thank the member for Guelph for raising this point of order. I will take the information provided under advisement on Bill S-229. I am sure that it will be of assistance in researching the issue and preparing for a decision.

It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the member for Nanaimo—Ladysmith, Aboriginal Affairs; the member for Cumberland—Colchester, Royal Canadian Mounted Police; the member for Selkirk—Interlake—Eastman, National Defence.

[Lloyd Longfield, Liberal, Guelph, ON]

Mr. Speaker, I rise today on a point of order regarding Bill S-229, an act respecting underground infrastructure safety.

I would like to thank Senator Mitchell for sponsoring this bill from the other place. This bill is a worthwhile act that promotes the safety of Canadians as well as important underground infrastructure. It is my hope that the Chair will seriously consider the merits of the following points of procedure as they pertain to Bill S-229.

Specifically, my point of order is in regard to the Chair's ruling of May 9, 2017, alerting the House to Bill S-229, which at first glance appears to infringe on the financial prerogative of the crown. The Chair stated that if, following an anticipated first reading of Bill S-229, the Chair determined that the bill was contrary to our usual rules and practices regarding money bills, the Chair would be obligated to disallow it being further considered in this House.

The parliamentary secretary to the leader of the government in the House of Commons also made representations and formally raised a point of order on this matter on May 12, 2107.

The rights and privileges of each House of Parliament respecting money bills are provided for in the Constitution. Sections 53 and 54 of the Constitution Act of 1867 state:

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

54. 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.

The Standing Orders of the House of Commons reflect in part those provisions. I refer to Standing Orders 79 and 80. Standing Order 79(1) states:

This House shall not 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 the House by a message from the Governor General in the session in which such vote, resolution, address or bill is proposed.

Standing Order 80(1) 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, 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.

Bill S-229 includes a special coming into force provision that states in clause 33:

(1) Subject to subsection (2), the provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

(2) No order may be made under subsection (1) unless the appropriation of moneys for the purposes of this Act has been recommended by the Governor General and such moneys have been appropriated by Parliament.

I would like to raise a preliminary point respecting the role and the authority of the Speaker of this House. It is a well-established principle of parliamentary law and procedure that our Speaker does not rule on questions of law but rather rules on questions of procedure.

The Speaker indicated in a statement to the House on May 9, 2017, that should he determine that Bill S-229 was:

....contrary to our usual rules and practices regarding money bills, I would be obligated to disallow them to be further considered in the House. Specifically, it would be incumbent on me to order them removed from the Order Paper and any consideration of them ended.

With respect, there is no Standing Order that would allow the Chair to remove Bill S-229 from the Order Paper unless the Chair acted under the sole authority of section 54 of the Constitution Act, 1867, which, in my opinion, would be contrary to the principle stated above that the Chair does not rule on questions of law.

The current situation is different from those you alluded to in your statement. I refer to rulings from your predecessors, Speaker Parent, respecting Bill S-13, on December 2, 1998, and Speaker Milliken, respecting Bill S-15, on June 12, 2001.

In those cases, while the Chair referred to the relevant constitutional provisions, the rulings were based on the requirement for taxation bills to be preceded by a ways and means motion, which is a requirement under our Standing Orders. As no such motion had been adopted, these Senate bills were ruled out of order. However, Bill S-229 is not a taxation bill.

I respectfully submit that should you decide that Bill S-229 is not a money bill, without a procedural rule to that effect, it belongs to this House, and not the Chair, to decide whether it will insist on its rights and privileges as provided for in sections 53 and 54 of the Constitution Act, 1867.

I recognize, however, that Standing Order 79(1) requires that you do not put the question at third reading if you decide that Bill S-229 is a money bill. Letting Bill S-229 go through the legislative process in this House would also allow for the consideration of the provisions of this bill and would provide an opportunity to amend or remove any provisions that may appear contrary to the financial initiative of the House and the crown.

The Parliamentary Secretary to the Leader of the Government in the House of Commons, in his remarks of May 12, referred to page 769 of the second edition of House of Commons Procedure and Practice, which states:

An amendment intended to alter the coming into force clause of a bill, making it conditional, is out of order

With due respect to my colleague, this is not such a case. Bill S-229 already contains a coming into force clause that is conditional. This House is not seized with an amendment that would render an already existing coming into force clause conditional.

The Parliamentary Secretary to the Leader of the Government in the House of Commons also referred to a ruling rendered by the Chair on November 9, 1978, to assert that the use of a provision in the bill to elude the requirement for a royal recommendation had been ruled unacceptable. In that case, a bill, Bill C-204, contained a provision that read, “nothing in the present Act shall be interpreted as requiring” an appropriation of any part of the public revenue.

The Chair, however, did not rule this practice to be unacceptable but instead stated that such a clause “will not be given any consideration in determining whether or not there is any infringement of the financial initiative of the Crown.”

I would note that the Chair, in this particular case, allowed the consideration of Bill C-204 to be continued.

Standing Order 79(1) states:

This House shall not adopt or pass any...bill for the appropriation of any part of the public revenue...to any purpose that has not been first recommended to the House by a message from the Governor General in the session in which such...bill is proposed.

The effect of the coming into force clause included in Bill S-229 would be that this bill would not appropriate any part of the public revenue. Another legislative enactment would be necessary to appropriate the required funds.

There have been two rulings rendered by the Speaker of the Senate respecting the effect of the coming into force clause included in Bill S-229, one respecting Bill S-234, on May 27, 2008, and another respecting Bill S-230, on May 5, 2009. I refer you to page 1087 of the Journals of the Senate of May 27, 2008, where Speaker Kinsella stated:

What Bill S-234 would actually do is set up a legal framework for subsequent action. Nothing can begin to happen to make this framework effective without a subsequent Royal Recommendation and appropriation by Parliament.

The Bill, itself, does not actually authorize the appropriation of any funds. While the passage of the Bill would express a will on the part of Parliament to establish an aboriginal peoples' assembly and an executive council, the Crown would not actually be obliged to give the necessary Recommendation, so its initiative would not be impaired. If the Governor General did recommend the necessary funds, and Parliament appropriated them, that would have the known effect of allowing the Bill to be brought into force, with the resulting consequences.

Bill S-234 thus appears to respect fully the financial initiative of the Crown, since no funds are being or must be appropriated.

Our own procedural authorities are to the same effect and were relied upon by the Speaker of the other place in his ruling.

Citation 611 of Beauchesne's, Sixth Edition states:

A bill from the Senate, certain clauses of which would necessitate some public expenditure, is in order if it is provided by a clause of the said bill that no such expenditure shall be made unless previously sanctioned by Parliament.

Beauchesne also referred to a ruling rendered on April 5, 1870, by Speaker Cockburn, which is highly relevant to the present case. The last clause in the first section of the bill provides:

That nothing in this Act shall give the authority to the Minister to cause expenditure until previously sanctioned by Parliament.

This overrides the eighth section referred to by the hon. member. No contract could therefore be entered into under that section, which could bind government and necessitate an expenditure of public money unless it had previously been sanctioned by Parliament.

With respect to Bill S-229, the proposal is not even a money bill, as it merely contemplates the minister entering into an agreement but does not directly involve any expenditure.

In his remarks, the Parliamentary Secretary to the Leader of the Government in the House of Commons stated:

Clause 17 of Bill S-229, an act respecting underground infrastructure safety, authorizes the minister to enter into agreements, including funding agreements, that the minister considers necessary for carrying out the purposes of the act. Subclause 17(2) provides greater detail around the operation of such funding agreements between the federal government and the provincial governments. These specific purposes are not authorized by any statute or appropriation.

Citation 613 of Beauchesne's, Sixth Edition reads:

A bill, which does not involve a direct expenditure but merely confers upon the government a power for the exercise of which public money will have to be voted [on] by Parliament, is not a money bill, and no Royal Recommendation is necessary as a condition precedent to its introduction.

In support of this, I refer to the ruling of Speaker Sproule, rendered on January 16, 1912, respecting the Inquiries Act, authorizing the Governor in Council to establish commissions of inquiries by orders in council. Neither the 1912 Inquiries Act, which was a consolidation of two statutes, nor its 1868 or 1880 predecessors, had received a royal recommendation. I note that the 1868 act had also been introduced in the Senate.

Bill S-229 is no different from those precedents.

In many cases, a separate appropriation bill, based on the main or supplementary estimates, is necessary, otherwise the new organization cannot undertake its activities.

I refer, for example, to the Law Commission of Canada. While the Law Commission of Canada Act was passed by Parliament in 1996, the activities of the commission were always dependent on appropriations voted every year by Parliament. In 2006, when the government did not seek appropriations from Parliament and appropriations were, accordingly, not granted for the operations of the commission, the commission had to cease its activities, and all the while the Law Commission of Canada Act remained, and in fact still remains, in the law books.

For these reasons, I respectfully submit that Bill S-229 is admissible and should not be ruled out of order.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I rise on a point of order. I would ask for your patience in that I hope to get through two issues dealing with points of order raised earlier.

First, I am rising on a point of order respecting four bills on the order of precedence that require a royal recommendation. These bills include Bill C-315, respecting the conservation of national historic sites account; Bill C-343 , an act to establish the office of the federal ombudsman for victims of criminal acts; Bill S-205, to appoint an inspector general of the Canada Border Service Agency; and Bill S-229, an act respecting underground infrastructure safety.

Without commenting on the merits of these bills, I submit that these bills contain provisions that infringe upon the financial prerogative of the crown.

Members will note that section 53 of the Constitution states that:

Bills for appropriating any Part of the Public Revenue...shall originate in the House of Commons.

Section 54 of the Constitution requires that bills that appropriate any part of the public revenue must be recommended to the House by the Governor General.

Standing Order 79(1) states that:

This House shall not 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 the House by a message from the Governor General in the session in which such vote, resolution, address or bill is proposed.

I submit that all four bills stand in contravention to the Constitution and, more important for you, Mr. Speaker, to Standing Order 79(1).

Additionally, I would cite page 769 of the second edition of House of Commons Procedure and Practice, which states, “An amendment intended to alter the coming into force clause of a bill, making it conditional, is out of order...”.

Bourninot, fourth edition, page 407, refers to the financial initiative of the crown as a constitutional obligation and states that “No principle is better understood than the constitutional obligation that rests upon the executive government, of alone initiating financial measures...”.

Erskine May, 21st edition, page 691, defines the financial initiative of the crown as the “long established and strictly observed rule of procedures, which expresses a principle of the highest constitutional importance, that no public charge can be incurred except on the initiative of the Crown...”.

The procedural authorities are clear. Bills that seek to appropriate monies for a new and distinct purpose must originate in the House and must be recommended to the House by the Governor General through a minister of the crown.

I therefore submit that the two aforementioned Senate public bills should be ruled out of order and the two private member's business bills should not be put to a vote at third reading absent a royal recommendation.

Both Senate public bills in question, as well as Bill C-343, contain a provision that prohibits the coming into force of the bill unless the appropriation of monies for the purposes of the act has been recommended by the Governor General and such monies have been appropriated by Parliament.

By including such a provision, it is an explicit acknowledgement that the bills require a royal recommendation.

Let me quickly review the provisions in each of these bills that would result in a new and distinct spending request.

Bill S-205 provides for the appointment of an inspector general of the Canada Border Services Agency.

Subclause 15.12(3) provides for the salary and expenses for the inspector general. Subclauses 15.12(4) and (5) provide for the pension benefits and other benefits under the Government Employees Compensation Act and regulations. These proposals are not authorized by any statute or appropriation.

Clause 17 of Bill S-229, an act respecting underground infrastructure safety, authorizes the minister to enter into agreements, including funding agreements, that the minister considers necessary for carrying out the purposes of the act. Subclause 17(2) provides greater detail around the operation of such funding agreements between the federal government and the provincial governments. These specific purposes are not authorized by any statute or appropriation.

Bill C-343, An Act to establish the Office of the Federal Ombudsman for Victims of Criminal Acts and to amend certain Acts, would provide for an appointment of a federal ombudsman for victims of criminal acts. The bill would also provide for remuneration, the payment of expenses related to duties and functions, and the hiring and remuneration of staff to assist the ombudsman in the discharge of his or her duties. These purposes are not authorized by any statute or appropriation.

Precedents clearly state that the establishment of a new body requires a royal recommendation. For example, the Speaker ruled on July 11, 1988, on the report stage amendments for Bill C-93, an act for the preservation and enhancement of multiculturalism in Canada, that two report stage motions were inadmissible because they would have established a new government department, which in turn would have resulted in significant new spending.

Precedents also show that a royal recommendation is required for the establishment of a new office. The Speaker ruled on February 11, 2008, on Bill C-474, respecting the Federal Sustainable Development Act, that:

Clause 7 of the bill provides for the governor in council to appoint 25 representatives to the advisory council. Section 23 of the Interpretation Act makes it clear that the power to appoint includes the power to pay. As the provision in Bill C-474 is such that the governor in council could choose to pay a salary to these representatives, this involves an appropriation of a part of the public revenue and should be accompanied by a royal recommendation.

With respect to the use of a provision in the bill to elude the requirement for a royal recommendation, the Speaker has ruled that this approach is unacceptable. On November 9, 1978, the Speaker ruled on Bill C-204, which included a clause stating:

Nothing in this act shall be construed as requiring an appropriation of any part of the public revenue.

The Speaker ruled that:

...the House should be cautioned that the Chair could not interpret the incorporation of such a clause in a private member's public bill as an acceptable way of eluding the requirement for a royal recommendation where such a recommendation is required.

I submit that the approach of eluding the requirement for a royal recommendation by tying it to a coming-into-force clause is a clear attempt to accomplish something indirectly that cannot be accomplished directly.

With respect to Bill C-315, respecting the conservation of national historic sites account, I submit that the bill's proposal to create a conservation of national historic sites account requires a royal recommendation.

Proposed subsection 22.1(4) would authorize that payments may be made out of the account. The creation of an account within the consolidated revenue fund requires a royal recommendation. The royal recommendation for such a fund would cover the purposes of the fund and the authority to make credits to the account as well as the authority to make payments out of the account.

The member may be attempting to assert that the fund would be separate from the consolidated revenue fund, but precedents demonstrate that all separate accounts are only notionally separate and are in fact part of the consolidated revenue fund. For example, the employment insurance operating account was established in accounts of Canada by the act. All amounts received under the act are deposited in the consolidated revenue fund and credited to the account. The benefits and the costs of administration of the act are paid out of the consolidated revenue fund and charged to the account.

On June 13, 2005, the Speaker ruled on Bill C-280, An Act to amend the Employment Insurance Act (Employment Insurance Account and premium rate setting) and another Act in consequence. He said:

I have carefully reviewed the submissions to determine whether Bill C-280 in clause 2 does anything more than rearrange the method of accounting for public funds.... On close examination, it seems to the Chair that clause 2 in Bill C-280 involves more than accounting methodology.

...Bill C-280 effects an appropriation by spending or authorizing the spending of public funds by transfer of the funds from the Consolidated Revenue Fund to a separate EI Fund with the result that these monies are no longer available for other appropriations Parliament may make.

What Bill C-315 contemplates is the creation of a fund within the accounts of Canada for the purposes of spending to maintain national historic sites. The creation of such a fund and the authority to spend to preserve such historic sites would be a new and distinct purpose that is not specifically authorized in any statute or appropriation. Therefore, without a royal recommendation attached to the bill, it should not be put to a vote at third reading.

The procedural authorities and the precedents are clear that bills that seek to appropriate monies for a new and distinct purpose must originate in the House and must be recommended to the House by the Governor General through a minister of the crown.

[The Speaker, Liberal, Geoff Regan]

The Chair would like to take a moment to provide some information to the House regarding the management of private members' business.

As members know, after the order of precedence is replenished, the Chair reviews the new items so as to alert the House to bills which at first glance appear to infringe on the financial prerogative of the crown. This allows members the opportunity to intervene in a timely fashion to present their views about the need for those bills to be accompanied by a royal recommendation.

Accordingly, following the April 10, 2017 replenishment of the order of precedence with 15 new items, I wish to inform the House that there are two bills that give the Chair some concern as to the spending provisions they contemplate. They are Bill C-315, an act to amend the Parks Canada Agency Act (Conservation of National Historic Sites Account), standing in the name of the member for Leeds—Grenville—Thousand Islands and Rideau Lakes, and Bill C-343, an act to establish the Office of the Federal Ombudsman for Victims of Criminal Acts and to amend certain acts, standing in the name of the member for Beauport—Côte-de-Beaupré—Île d'Orléans—Charlevoix.

Additionally, on an exceptional basis, I would like to raise concerns regarding Bill S-205, an act to amend the Canada Border Services Agency Act (Inspector General of the Canada Border Services Agency) and to make consequential amendments to other acts, and Bill S-229, an act respecting underground infrastructure safety. Both bills have been sent to the House of Commons for consideration. The Chair expects that in due course they will be given first reading in the House, as is usually the case with bills sent to the House by the other place.

As members know, certain constitutional and procedural principles inform the Chair with respect to bills containing spending provisions that would require a royal recommendation, which are also known as “money bills”.

A fundamental requirement for bills of this nature is that they must originate in the House of Commons. Standing Order 80(1) embodies this important principle, stating:

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.

This stipulation explicitly prohibits “money bills” from originating in the Senate. In the past, if a bill requiring a royal recommendation was passed by the Senate and sent to the House, the Chair has seen fit to interrupt all further consideration of the bill.

The Chair has specific concerns about the unusual manner in which Bill S-205 and Bill S-229 are structured. Essentially, they appear to contain spending provisions that would require a royal recommendation, but they both conclude with coming into force provisions that suggest otherwise.

Receiving such bills from the Senate is exceptional and rare. Indeed it may well be the first time the House is seized with such legislative measures. Parenthetically, Bill C-343, which I referenced earlier, contains a similar provision.

If, following an anticipated first reading of Bill S-205 and Bill S-229, the Chair determines that the bills are contrary to our usual rules and practices regarding money bills, I would be obligated to disallow them to be further considered in the House. Specifically, it would be incumbent on me to order them removed from the Order Paper and any consideration of them ended. This is distinct from the process for bills first introduced in the House that require a royal recommendation, which are allowed to continue to the end of third reading before the Chair interrupts their consideration. Such would be the case for Bill C-315 and Bill C-343, should the Chair conclude that they do indeed require a royal recommendation.

In view of these considerations, I would encourage hon. members who would like to make arguments regarding the concerns about these bills that I have raised today, or any of the other bills now on the order of precedence, to do so at the earliest opportunity.

I thank hon. members for their attention.