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Speech in Senate Chamber: Senator Cools speaks to the seventh Report of the Standing Senate Committee on Foreign Affairs and International Trade entitled 'Overcoming 40 Years Of Failure: A New Road Map For Sub-Saharan Africa'.

Hon. Anne C. Cools: Honourable senators, I rise to speak to this motion. I believe I will need a few extra minutes. I thought it would be a good idea to ask for leave at the outset, earlier than later. Can I be allowed an additional five minutes, honourable senators?

Hon. Senators: Agreed.

Senator Cools: Thank you very much, honourable senators. I speak today to motion 76. This was moved by Senator Di Nino, the newly constituted Chair of the newly constituted Standing Senate Committee on Foreign Affairs and International Trade in this new session, the Second Session of the Thirty-ninth Parliament. The new chairman of a new committee seeks the adoption of this motion to place this old report from the previous session of a now-nonexistent Senate committee also of the previous session on the Orders of the Day for consideration at the next sitting of the Senate.

This motion proposes a parliamentary retroactive action, a constitutionally posthumous proceeding. Such an action is attended by huge problems.

Honourable senators, on November 29, 2007, a senator for whom I have great respect, Senator Stollery, a Toronto senator, moved a related motion on the same seventh report. Senator Stollery asked the Senate to adopt it, even though this report was not then, nor since then, before the Senate. Senator Carstairs questioned this parliamentary irregularity and raised a point of order, to which several senators, myself included, spoke. Senator Carstairs said at page 366 of the Debates of the Senate:

We are asked to approve a motion to approve a report, but the report is not before us.

She continued:

However, although we now have a motion before us, we do not have the report.

A few lines later, Senator Carstairs again said:

. . . I reiterate, the report is not before us.

Honourable senators, when I spoke, I noted that committee reports are usually placed before the Senate by senators presenting them under our rubric, Presentation of Reports. Thereby, the Senate receives the report. I said, at page 368 of the Debates of the Senate:

In addition, the matter is not before this house at all because it has not been introduced or presented. This motion states that "the seventh report . . . be adopted." Before we can adopt a report, honourable senators, we must take it into our possession, into our cognizance.

Honourable senators, on this point of order, Senator Stollery said, at page 368 of the Debates of the Senate:

. . . I consulted at the highest levels here in the Senate as to how to proceed. I did not invent this procedure myself. . . . Those were my instructions. I do not know what else I can do when I am told that by the most senior officers in the Senate.

He continued:

I was told that it was not necessary to reintroduce the report because it is already a public document.

Senator Stollery continued:

. . . I am somewhat surprised, when I follow the recommendation of the officials and do what I am supposed to do, that I find myself in this situation.

I was sorry, honourable senators, that Senator Stollery, my Toronto colleague, found himself in this position.

Honourable senators, the Senate Speaker ruled on the point of order on December 11, 2007. He ruled that Senator Stollery's motion was out of order. He sustained Senator Carstairs' point of order, terminated the debate on the motion, and ordered that it be discharged from the Order Paper. Senator Stollery, the Deputy Chair of the Standing Senate Committee on Foreign Affairs and International Trade, passed the torch to Senator Di Nino, the new chair. After Christmas recess, on February 5, 2008, Senator Di Nino moved this motion, the question now before the Senate.

Honourable senators, the problem remains the same now as then. Senator Di Nino's motion is before us, but the report is not.

Honourable senators, I repeat that. The problem remains the same now as then. Senator Di Nino's motion is before us, but the report is not. We are in exactly the same position. We have a motion, but we still do not have the report. The Senate still does not have possession or cognizance of the seventh report of the Foreign Affairs Committee of the previous session. Consequently, we cannot vote on Senator Di Nino's motion. It is insufficient for the same reasons that Senator Stollery's motion was. The fact is, honourable senators, that there are significant and unavoidable parliamentary obstacles to the persistent and stubborn attempts to employ Senate practice to defeat and oust the law of prorogation. These difficulties are not as easy to overcome as the proponents say. The purpose of a prorogation is to entirely terminate all Senate proceedings. In Senator Di Nino's favour, his wording for his motion was drawn from the Senate Speaker's ruling of December 11, 2007, on Senator Carstairs' point of order.

Honourable senators, I shall quote the Speaker's ruling, but before I do that I wish to state that I have great admiration for the Speaker of the Senate, Senator Kinsella. He is an accomplished senator whom we are honoured to have in that position. Senator Kinsella was very thoughtful. He was most helpful in his ruling but in helping, he, in his ruling, went somewhat beyond the scope of the point of order. This ruling offered extensive advice and suggestions to Senator Stollery as to how best to achieve the objectives of his motion.

In the courts lower than this the High Court of Parliament, such suggestions or voluntary offerings are characterized as obiter dicta. Obiter dicta are words of opinion that are not part of the decision, and are not necessary for the judgment or decision of the case. These words of opinion are not binding as precedent or as law.

This freely offered guidance was given as a series of suggestions and options as to how Senator Stollery could proceed. Senator Kinsella's ruling said, at page 465 of Debates of the Senate:

The motion moved by Senator Stollery paralleled the 2004 example, and, accordingly, it was properly drafted in the light of that ruling.

He continued later:

In light of these problems, it would be more appropriate to find a different approach to reach the objective sought by Senator Stollery in his motion.

The Speaker's ruling was attentive to doing justice for Senator Stollery. The ruling dedicated several pages to prolific descriptions of the different options and different approaches that Senator Stollery could use to bring a new motion to achieve his objective, mainly the Senate's adoption of the seventh report of the Foreign Affairs Committee from the previous session.

Of the several approaches recommended to Senator Stollery in the Speaker's ruling, Senator Di Nino chose to employ the Speaker's ruling's "second approach." The Speaker's ruling stated:

A second approach might be to follow the process outlined in citation 890 of the sixth edition of Beauchesne's. . . . Taking into account the citation and Senate practice, a motion might be moved, on notice, to place a report from a previous session on the orders of the day for consideration at the next sitting.

Honourable senators, this "second approach" we will now see generates a whole new set of difficulties. Senator Di Nino's motion purports to follow the ruling's exact words. This "second approach" from the Speaker's ruling prescribes a two-motion process, being first the motion to place the report on the Orders of the Day for consideration at the next sitting and, that sitting having come, then the second motion, the motion to adopt the report. I repeat: The Speaker's suggestion is a two-motion process.

Honourable senators, the problem is that even though the Speaker's "second approach" with its two-motion process appears to follow Beauchesne's citation 890, it in fact does not. It seems that Beauchesne's citation 890 prescribes a three-motion process, not the two-motion process that the Speaker's ruling suggested and described.

Beauchesne's requires a three-motion process being, first, the motion to obtain the Senate's judgment as to whether the Senate even wishes to entertain, to even consider a report from a previous session in the current session. If such a motion is negatived the matter is ended. If such a motion is adopted, then the second motion is required to place the report on the Orders of the Day for the appointed day for its consideration. If that motion is adopted then yet another motion — the third motion — the motion to adopt the report itself, is required.

Beauchesne's citation 890 says:

If the House is to debate a report from a previous session, a motion, with notice, must first be made in the House that the report of the said committee be considered during the current session, and, if such a motion is carried, the House may appoint a day for the consideration of that report.

Undoubtedly, honourable senators, citation 890 of Beauchesne's prescribes that Senator Di Nino must move another motion prior to his motion that is currently before us today — a motion prior to that. This neglect is sufficient to disable or cripple Senator Di Nino's motion entirely.

Honourable senators, I wish now to say a word about His Honour, the Speaker, Senator Kinsella. The Senate Speaker is one of the high offices of state in Canada and the world. It is currently occupied by Senator Kinsella, a distinguished academic and a person for whom I have great respect and great affection. In addition, he brings to his office many unique capabilities and gifts, including his facility in languages and his knowledge of international affairs. He is respected for his international and domestic efforts, which have been well fortified by his countless years of work and study on issues of social justice. In addition, he is always ably supported by his dedicated, hard-working assistant Janelle Feldstein.

Honourable senators, I move now from the individual incumbent Senator Kinsella, on to the constitutional role of Senate Speakers' rulings.

Constitutionally, the Senate Speaker's ruling is a circumscribed role. The proper role of a Speaker's ruling is to express an opinion, a judgment on the point of order raised. Speakers' rulings cannot anticipate, dictate or direct future actions, future motions or future debate in this place.

Speakers' rulings cannot be used to found motions that are flawed, defective or insufficient. Speakers' rulings are not tools of advice. They are what they are, rulings. Speakers' rulings can neither defeat the law of Parliament nor the law of the prerogative, particularly the law of prorogation.

Honourable senators, the Senate Speaker has been fair in his ruling. He agreed with Senator Carstairs that Senator Stollery's motion was out of order. Simultaneously, he treated Senator Stollery fairly and justly.

Honourable senators, I believe that there is yet another parliamentary cause for concern in this matter before us. I have not been able to find in the committee record a statement that the seventh report of the Foreign Affairs Committee was adopted by the committee. It may be there; it may have happened. I have not been able to find the record. My concern is that if the Senate were to adopt the seventh report, the Senate would be deciding for the committee. Such a decision is constitutionally objectionable.

Honourable senators, in conclusion, I wish to say that the problems with this motion are too many and too complex that they simply cannot be sorted out here on the Senate floor. We have Senate committees to assist the Senate with these difficult issues.

Honourable senators, I wish to cite from Sir John George Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition, published in 1916, where he says at pages 102 to 103:

The legal effect of a prorogation is to conclude a session; by which all bills and other proceedings of a legislative character depending in either branch, in whatever state they are at the time, are entirely terminated, and must be commenced anew, in the next session, precisely as if they had never been begun.

Honourable senators, in recapitulation, I repeat the difficulties: First, the report in question is not before us. I chose not to raise a point of order on this issue. I did not think it was a wise, prudent or good thing to ask the Speaker to rule on his own ruling of a few weeks ago. Second, the notion of constitutionally posthumous adoptions of reports is inherently problematic. Those problems have to be overcome. Third, the common law eschews retroactivity, and the very fact of this retroactivity in Senate proceedings engages all the risks and uncertainties that parliamentary retroactivity entails. The fourth problem, honourable senators, is the inherent difficulty surrounding these attempts to defeat the law of prorogation. Fifth, and most important for the purpose of this particular issue, is the fact that this motion does not conform to the practice required by Beauchesne 890, as it purports to do.

Honourable senators, the Speaker's suggestions are precisely suggestions, obiter, arising from him, not from the debate, and those suggestions have never been tested.

Honourable senators, no point of order, no Speaker's ruling and no debate here can sort out this now complicated and I would say confounded matter. The question has been deeply confounded. In my view, honourable senators, the only practical solution is that the Standing Senate Committee on Foreign Affairs and International Trade must take possession of this motion before us and come to the Senate with a recommendation as to how properly to move ahead.

Consequently, the Senate must commit Motion No. 76 to the Standing Senate Committee on Foreign Affairs and International Trade, and therefore, honourable senators, I move, pursuant to rule 59(2):

That the question now before the Senate be referred to the Standing Senate Committee on Foreign Affairs and International Trade for examination and report.

Honourable senators, there was another suggestion in the Speaker's ruling to the effect that a motion should or could have been brought to come to the house and ask for a new reference on Africa. Had that been done, the entire situation might have been resolved, because I have no doubt that senators would have agreed. However, to the extent that it is where it is and has become further confounded, I can see no other practical solution other than to ask the committee to look at the motion itself. Senator Di Nino and Senator Stollery are extremely well placed to do that. They are chair and deputy chair of the committee, and they would have ample opportunity to look at the whole situation and report back to the Senate very swiftly as to how to move ahead.

The fact is that this matter before us is extremely disabled and should not be voted on because the report is still not before us. If we were to read with thorough care the first part of the Beauchesne citation 890, where the Senate has to be asked whether or not it wants to look at a report from the previous session, within that, one would understand that obviously, the report would be presented or brought forward to the Senate.

Honourable senators, I thank you for your patience and for your time. These issues are quite often far more complicated than they appear at first blush. There are parliamentary ways to proceed, and there are unparliamentary ways to proceed. The proposal I put forward I believe is the proper way to proceed.

The Hon. the Speaker pro tempore: The time allotted for Senator Cools is over. It was moved by Senator Cools, seconded by Senator McCoy, that pursuant to rule 59(2):

That the question now before the Senate be referred to the Standing Senate Committee on Foreign Affairs and International Trade for examination and report.

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Peter A. Stollery: Honourable senators, this affair has now gone on for more than a year. I remind senators that in this Parliament, this issue has been dealt with twice. It has gone to the committee, and the committee has authorized Senator Di Nino or me to undertake the steps, which we took. We received these instructions twice.

The other point I would make, honourable senators, is that the entire underlying argument is to ensure that senators do not have an opportunity to vote as to whether or not they approve of this report. It is not a question of whether they like or do not like the report. There has been an attempt for the past year to ensure that the issue is not dealt with and that senators do not have the right to vote on the report. That is all the committee has asked since the report was tabled in the last Parliament. I do not think it reflects well on us that we are unable to deal with an item of public business. I think we should be able to deal with an item of public business, which, as I will remind senators tomorrow, has become a report that has been accepted worldwide. It seems the Senate, a committee of which produced the report, is unable to take a decision.

Hon. Consiglio Di Nino: Honourable senators, my intent is to first thank Senator Cools for her intervention. She has raised a number of interesting issues, some of which are complex. Obviously she has done a great deal of work in looking at the laws behind this issue. In thanking her, I would adjourn the debate so that we can look at it and I can respond appropriately, unless someone else wishes to speak.

Point of Order

Hon. Eymard G. Corbin: On a point of order, honourable senators, I had some difficulty in following all the intricacies of Senator Cools' reasoning on this matter. One thing struck me though, and that was comments about the previous Speaker's ruling.

Rule 65(2), under the heading of "Voting in Part VIII" of the Rules of the Senate, reads, "In the absence of a request for a standing vote, the decision of the Speaker is final."

I ask myself: How long is the finality of a Speaker's ruling? Is it at the instant he makes his ruling or, on the other hand, can it be debated in subsequent debate?

I say this with some reservation, because I had difficulty following some of the arguments, but it seems that part of the comments about what was supposed to be a speech were really a larger point of order that Senator Cools raised. Some of the comments sounded to me like a challenge to the Speaker's previous ruling.

Senator Cools: No.

Senator Corbin: The honourable senator says no. I ask for a ruling on that matter.

Hon. Pierre De Bané: Honourable senators, I stand with great sadness to correct some of the statements of my colleague Senator Stollery. He said, as honourable senators have heard, that the whole world agrees with the report.

The Hon. the Speaker pro tempore: I remind Senator De Bané that there is a point of order that has been raised by Senator Corbin. I ask the honourable senator if he wishes to speak on that point of order, which is the finality of the Speaker's ruling — how long that ruling is in effect. Does the honourable senator wish to speak on the point of order?

Senator De Bané: I thank you for your ruling. I will sit, and I hope I will have the chance to comment.

Hon. Joan Fraser: Honourable senators, I am torn because the two speakers in question are among our most careful and thoughtful students of procedure in this place. When in doubt, I tend to think that clarification is usually helpful.

Having listened to Senator Cools, I believe she was at some pains not to quarrel with the Speaker's ruling. I heard her say more than once that she agreed with the ruling and that the Speaker had done a fine job. Clearly, if she had been Speaker, the ruling might not have been identical. Nonetheless, Senator Corbin has a point when he suggests that the overall burden of her remarks was to make us think again about the Speaker's ruling.

I argue, therefore, Your Honour, that narrowly, the Speaker's ruling is final and Senator Cools did not challenge that. However, I think Senator Corbin has done us a service in asking for a ruling on this matter. I ask that you take the point of order under advisement and give us a good, considered, although speedy decision on this matter. I think it would be helpful for us all as we go forward.

Hon. Marcel Prud'homme: Honourable senators, I wish to say that there is no point of order. I have no objection to Senator Fraser's very justified attempt to let the speaker reflect on this question.

I think that the point Senator Cools raised was not to challenge a Speaker's ruling. I was about to take the adjournment of the debate since the points raised by Senator Cools must be taken into consideration, as well as those raised by Senator Corbin and Senator Stollery.

In view of all the points raised by Senator Stollery, Senator Corbin and Senator Cools, the admonishment of Senator Fraser leads me to believe that there are more senators than one may think who have a great interest in this decision.

I know that I was going to take the adjournment, not because I really want to talk about it, but because I know Senator Andreychuk and Senator De Bané, very faithful members of that committee, have much to say and would like to speak on this issue.

In view of this imbroglio, I submit that the Speaker might take under advisement the wise call by some to revise and in due time return to the Senate with further advice as to our conduct.

Hon. Anne C. Cools: Honourable senators, I may not have spoken clearly enough. I wish to take a few minutes to explain what I meant so that there will be no misunderstanding about what I did not mean.

I would like to begin with the Senate rule that Senator Corbin has cited, rule 65(2). Rule 65(2) is that the Speaker's decision is final:

In the absence of a request for a standing vote, the decision of the Speaker is final.

Honourable senators, the Speaker's decision has not been questioned in any form or fashion in this debate. The Speaker's decision has not been questioned by me.

Let us be crystal clear that in any statement in jurisprudence, there are many statements made that are not part of the decision. I was crystal clear to say that what I was citing came not from the decision; it came out of the ruling, but it was around his suggestions. I explained the definition of obiter dicta. They were three suggestions that the Speaker freely offered to assist Senator Stollery. It would take a wild imagination to define those suggestions as part of the decision. I want to be crystal clear on this, honourable senators; I have not questioned then and I am not questioning now the decision of the Speaker.

The decision, as the Speaker gave it, was essentially a few words, because I recited it. He declared the motion out of order and he declared the item struck from the Order Paper. That is the decision.

The other parts of the ruling describing events and the narrative are not the decision. When the Speaker says Senator Cools took part in the discussion, and Senators Carstairs and many others joined, all that is narrative. The scope and intention of this rule 65(2) is extremely circumspect, honourable senators. The rule does not say the Speaker's ruling. It does not say every word uttered out of the Speaker's mouth. It is very circumspect and limited to the decision.

The margin note for rule 65(2) says "Speaker's decision final." In the absence of a request for a standing vote, the decision of the Speaker is final. Honourable senators, the finality is decided by that fact. That particular rule is directed solely to the question as to whether or not honourable senators wish to appeal the Speaker's ruling by a vote of the Senate.

Honourable senators, I was very circumspect; I was extremely careful and I chose my remarks very carefully.

I want to proceed to the other point. The Speaker, as I said, went to great pains to describe options, called "approaches," for Senator Stollery. This motion by Senator Di Nino is based on one. I do not believe, honourable senators, that anyone can say here, in any judicious way, that a motion which happens to borrow the words from the Speaker's ruling cannot properly be debated here. I do not think anyone could possibly assert that.

As soon as anything comes onto this floor in the form of a motion, asking for a conclusion or adoption and a judgment of the house, that of itself is a debatable action. One cannot say that those parts of the Speaker's ruling, the narrative, are not open to debate. If they are not open to debate, to me this motion is even more out of order because it was quoted from the narrative in the Speaker's ruling.

Honourable senators, there is so much confusion on so many parliamentary points that I despair sometimes that any of this will ever be sorted out. That was why I chose to ask the committee to look at this motion; I did not ask for the Speaker's ruling to be referred to the committee. That is an open option. I did not do that.

I was trying to make the point that, if the committee is so interested in the report, it should submit it to the right process. The right process was to come here and ask for a reference to study Africa again. Having received that reference, the committee may then include and adopt the old report.

One simply cannot circumvent parliamentary process by asserting or adopting the posture that you cannot question it because it comes out of a Speaker's ruling. In my mind, that impugns the Speaker because you are raising the question whether he should be making suggestions in his rulings.

However, that is not my point. My point is it is inherent in this situation — the first motion and now the second motion — are difficult problems which simply can not be overcome in such a simplistic way. It has now reached a confounded situation, as I said before.

Honourable senators, I do not want any embarrassment whatsoever to the Speaker. The Speaker knows what I think of him; the Speaker knows of the high regard I hold for him.

The best way to proceed is to take this motion completely away from the Speaker's ruling. Let the committee look at it and let a judgment be formed in the committee as to how best the Senate should proceed. If there was ever a situation where the Senate clearly needs the advice of its committee, it is now.

On a very personal point, I want to say I am a great defender of these institutions and I really believe in the system of Parliament. I do not think the Senate, the Speaker or any of these institutions have a greater defender than me, honourable senators. I take Senator Corbin's point. I believe there is no negative intention. However, the rule that he is speaking about is confined to that one part of the Speaker's statement called the decision. I looked at that very carefully, honourable senators.

The Hon. the Speaker pro tempore: Honourable senators, I want to thank you for all your observations, your points and thank those who have spoken to the point of order. The Speaker has heard your words. I will seek advice and return with a decision.


The remainder of this day's Senate Debates are available here.