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Speech in Senate Chamber: Senator Cools speaks to Senator Di Nino's point of order on Bill C-253, An Act to amend the Income Tax Act (deductibility of RESP contributions).

Hon. Anne C. Cools: Honourable senators, I support Senator Fraser, Senator Carstairs and Senator Moore in their opinions that there is no procedural question here and that there is no point of order here at all. What is here, however, is a good, substantive debate and a good difference of opinions on substantive questions. However, from what I can see, there is no point of order.

Honourable senators, this debate took off on a strange curve. I believe that Dan McTeague, the member for Pickering-Ajax-Uxbridge who brought forth this bill, is an extremely accomplished, able and experienced member of Parliament. When this bill was introduced, it received enormous public support. We all owe him a debt. Time and time again, Mr. McTeague shows what an able member of Parliament he is. He is extremely thorough and he researched all these questions. I wanted to put that on the record so that we are crystal clear that no one here is impugning or questioning Danny McTeague in any fashion.

Honourable senators, what we have here is a most interesting phenomenon that has happened before, namely, a situation where a bill has passed in the House of Commons, supported by the House of Commons, despite the opposition of the ministry. That is the real, substantive question that we have.

To assist His Honour, I have a quotation here from Alpheus Todd that speaks to this particular issue. If I can quote from his book on Parliamentary Government in England: Its Origin, Development and Practical Operation, volume 2, 1892. He said:

But we find no example of any bill being permitted to pass through both Houses to which ministers were persistently opposed. Where the opinion of parliament has been unequivocally expressed in favour of a particular bill, regardless of objections thereto expressed by ministers, it has been the invariable practice for ministers either to relinquish their opposition, in deference to that opinion, and to lend their aid to carry the measure, with such amendments as might be necessary to conform it to their own ideas of public policy, or else to resign.

Honourable senators, there is a plethora of opinion that tells us again and again that the ministry must never find itself in a state of difference, conflict or opposition to the members of the House and that when the ministers discover that the House is determined to express a certain opinion on a measure, it is for the ministers to give way and then to put at the House the disposal of the public treasury and the disposal of the legal minds within the respective departments to assist the members of the House.

I wanted to put that on the record because this fact seems to be no longer well understood. The notion is that Her Majesty's government should never be in conflict with Her Majesty's people or Her Majesty's people's representatives.

I wished to provide that background as an aid to His Honour. I now come to the central point. I, too, had carefully read Senator Di Nino's intervention and carefully highlighted all of his arguments. I think that Senator Fraser and Senator Carstairs have ably articulated those points, so I need not reiterate them. Senator Di Nino says that at every stage, there are problems, but these are not really the problems at all. He says that there is no problem with the major issues being: Rule 81 of the Rules of the Senate of Canada and sections 53 and 54 of the BNA Act. Finally, he said that on November 1, 2006, the Honourable Speaker Milliken ruled that a ways and means motion was not necessary.

Having said all of that, honourable senators, we are in a most interesting position whereby Senator Di Nino is appealing under the rubric of a point of order to the Speaker of the Senate to essentially overcome or to defeat the House of Commons vote and the ruling of the Speaker of the House of Commons.

I do not think that is a good position for our Senate Speaker to be in. I should like to encourage His Honour to decline from going down that road, this or any other day. Honourable senators, the natural state of the equipoise, balance or equilibrium of the Constitution is that the various parts of the system are supposed to be in harmony. However, at all times, Her Majesty's servants, the ministers, must never be in conflict with Her Majesty's representatives.

Having said that — and His Honour knows this, because we have discussed this on several occasions — the Speaker of the Senate is the Queen's representative in this place. It is his bounden duty to ensure that Her Majesty does not come into conflict with Her Majesty's representatives, in the house.

I wanted to express my support for my colleagues on this very important question.

In regard to Senator Di Nino's closing paragraph, I wish to speak about ways and means motions. Other senators have articulated these sentiments. At page 1200 of the Debates of the Senate of April 29, 2008, Senator Di Nino said the following:

Given the situation, I submit, honourable senators, that the absence of any reference to ways and means motions in the Rules of the Senate does not preclude the ability of the Senate Speaker to conclude that the bill does not respect the financial procedures of Parliament.

Honourable senators, the Senate has no cognizance whatsoever of ways and means resolutions, no way of possessing them whatsoever and no way of dealing with points of order on them. If we know anything about Parliament, ways and means resolutions are uniquely and peculiarly creatures of the House of Commons.

I belong to that group of people who remains concerned with the fact that those old committees of supply and ways and means were done away with. I see Senator Stollery looking at me.

The phenomenon of ways and means resolutions, the numerous texts that were cited in support of them and the fact that no minister ever really supported the bill are all red herrings; all of that is totally irrelevant to what is before us. What we have before us is a substantive policy. That is what we have to wrap our minds around.

It is to that substantive discussion that Senator Di Nino should bring these concerns. I think it would be a good debate as well as helpful and instructive in this increasingly arcane business of supply which seems to pass right over most of our heads.

Honourable senators, I close by saying that Senator Di Nino has raised no point of order. He has made a very well-prepared and well-articulated speech, but on substantive questions. His Honour should decline to accept this as a point of order.

Honourable senators, there are many other things that I would like to say, but I think I will leave the matter there. It is crystal clear that a real debate on the proper constitutional roles of the two Houses of Parliament and of the government to the two Houses of Parliament is needed. Our Senate Speaker cannot be asked to do the government's undesirable work of defeating a bill that the government was unable to defeat in the House of Commons.


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