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Speech in Senate Chamber: Senator Cools speaks to second reading of Bill C-4, An Act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence.

Hon. Anne C. Cools: Honourable senators, I rise to join this second reading debate, and my comments shall be, essentially, on the existence of this bill.

Honourable senators, the introduction and prosecution of this bill is deficient. As a proposition, it fails to meet the parliamentary, lawful standards required to seek the advice and consent of the Senate. These deficiencies are its failure to fulfil and comply with the lex parliamenti, the law of Parliament, and the lex prerogativa, the law of the prerogative of the Queen of Canada. These are the two branches of the law, honourable senators, that come into force when Parliament considers a bill.

Honourable senators, a bill is an instrument of the two Houses acting together. Each House has a respective, equal and co-ordinate share of the parliamentary process of passing bills. A bill is a request from the Senate and the House of Commons, acting together and asking Her Majesty to enact a statute per the terms of that request. The Constitution Act, 1867, section 17 tells us that Parliament is composed of the Queen, the Senate and the House of Commons. The Queen is the head of Parliament. She is the caput principium et finis; that means the head, the beginning and the end. As the head of Parliament, her agreement, her Royal Assent, is the enacting power that gives a bill the force of law and makes it a statute. Her additional constitutional royal powers include those of proroguing and dissolving Parliament. These royal powers are the lex prerogativa.

In Canada, these royal powers are exercised by the Queen's representative, the Governor General. Whereas the BNA Act, 1867, section 9, constitutes the Queen the executive authority and section 17 constitutes her as the head of Parliament, in Canada the office of the Governor General, with its royal powers of prorogation and dissolution of Parliament, is not constituted by the BNA Act. They are constituted by the same royal prerogative, by King George VI himself, in 1947. The Letters Patent Constituting the Office of the Governor General of Canada, section VI states:

And We do further authorize and empower Our Governor General to exercise all powers lawfully belonging to Us in respect of summoning, proroguing or dissolving the Parliament of Canada.

Honourable senators, these prerogative powers of the Queen Sovereign are sovereign powers. These commands take the form of royal writs and royal proclamations. The sole authority to prorogue Parliament rests with the sovereign, the Queen. Orders, commands of the Queen, are not subordinate to any other order. The writ of prorogation is sovereign; all other orders are subordinate to it.

Honourable senators, prorogation is a binding act of the sovereign which puts an end to a session of Parliament. It terminates the sittings, the proceedings and bills in both Houses of Parliament. A writ of prorogation is a termination order, issued by the Governor General on the advice of Her Majesty's Cabinet, particularly the Prime Minister. In his Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition, George Bourinot tells of this finality, saying:

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, Blackstone, Hatsell, Redlich and other parliamentary references confirm this finality, this conclusion.

Honourable senators, having explained the prerogative law of Her Majesty, I move now to the law of parliament, the lex, the law that governs the practices, powers, privileges, rules, votes, and proceedings of the two Houses of Parliament and the Houses' relations with the Queen. In 1628, Sir Edward Coke, in his Fourth Part of the Institutes of the Laws of England explained this law, that:

As every court of justice hath laws and customs for its direction, some by the common law, some by the civil and canon law, some by peculiar laws and customs, so the High Court of Parliament hath also its own peculiar law, called the lex et consuetodo Parliamenti.

This law includes the power of adjourning the Houses, the Senate and the Commons. By this law, an adjournment of the House is within the power of that House. It is never to be confused with prorogation, by the prerogative. Each House has authority for its own adjournment, but an adjournment of one is not an adjournment of the other. John Hatsell tells us this. In the 1818 edition of his Precedents of Proceedings in the House of Commons Volume II, John Hatsell said:

The different effects of a prorogation and an adjournment are, that, the first concluding the session, all Bills, or other proceedings, depending in either House of Parliament, in whatever state they are, are entirely put an end to, and must, in the next session be instituted again, as if they had never been begun. Whereas upon an adjournment, every proceeding remains entire, and may at the meeting after the recess, be taken up in the state, and at the period, where it was left.  Further, a writ of prorogation terminates both Houses simultaneously.

Honourable senators, an important part of the law of parliament is the central requirement that bills must have three readings in both Houses to qualify for Royal Assent. No one can deny this well-established law whose existence was already well documented by 1340. William Stubbs wrote this. In his 1890 Constitutional History of England, fourth edition, he said:

The three readings of the bills are traceable as soon as the form of bill is adopted; the committees for framing laws find a precedent as early as 1340 . . .

Sir Thomas Smith, a famous member of Parliament around 1576, wrote of Parliament's proceedings, in his 1583 book, De Republica Anglorum. Of the law and three readings, Sir Thomas Smith said:

All bills be thrice, in three divers days, read and disputed upon, before they come to the question.

Three readings of a bill, with debate and vote in each house is the undisputed, well-established law of Parliament.

Honourable senators, I come now to the relations between the two Houses, the Senate and the Commons, and their respective shares of the law of Parliament. I quote Josef Redlich on this relationship and its need for agreement.

In his 1908 Procedure of The House of Commons, Volume II, he said:

Inasmuch as Lords and Commons in combination with the Crown form the 'King in Parliament,' the legislative Sovereign, agreement between the decisions of the two Houses is required for the expression of the will of the state in all parliamentary action. This agreement must, in the first place, be perfect . . .

In short, for a bill to obtain the Governor General's Royal Assent, it must have perfect agreement between the Senate and the Commons. That perfect agreement includes agreement on the law of Parliament that bills receive three readings in each House, and agreement that in the law of the prerogative, that a writ of prorogation is a termination of all proceedings on bills.

Honourable senators, the law of parliament, the lex, which includes all the customs, principles, and practices of Parliament, is jointly held and owned by Parliament, jointly held and jointly owned by the Senate, the Commons and the Queen. It is binding on them all. In short, Parliament is conceived as a whole and as the supreme forum, whose usages are the unique source of law for all those powers and privileges that belong to the separate parts of Parliament. The whole Parliament is the sole custodian of the whole joint law of Parliament, which law evolved through centuries of joint, mutual, reciprocal dealings. The goal of the lex is the perfect agreement, the concurrence, necessary to bring forth bills agreeable to Her Majesty for her Royal Assent. This perfect agreement is grounded in the autonomy that each House is master of its own affairs. Josef Redlich tells us of this peculiar independence for mutuality, saying:

Each House is, in theory, therefore, the sole judge of its own action in the interpretation and application of the joint rules which have been evolved through centuries of mutual dealing.

The autonomy of each House, Senate or Commons, is directed and regulated by the joint law of Parliament in their proceedings to bring forth bills for Her Majesty's assent. Erskine May, in his Parliamentary Practice, eleventh edition, also tells that these powers, privileges and independence are actually constitutionally granted by the same joint law of parliament, saying:

They are enjoyed, however, not by any separate right peculiar to each, but solely by virtue of the law and custom of Parliament. There are rights or powers peculiar to each . . . but all privileges . . . appertain equally to both houses. . . . but still it is the law of Parliament that is thus administered.

Honourable senators, independence means the independence of both Houses subject to this joint and mutually held law. In this way, the two Houses mutually keep each other from exceeding their proper constitutional limits and from encroaching on each other's independence. In short, independence of each House bars the one from foisting a corrupt proceeding upon the other.

Honourable senators, the law of Parliament, the lex parliamenti, is the joint law of the Senate and the Commons. It is jointly held and mutually owned. Therefore, an amendment to the law of Parliament is a joint matter requiring mutuality, reciprocity and agreement between the joint operators of the law, the joint proprietors of the law, the Senate, the Commons and the Queen on the amendment. No one House can amend or defeat that law of Parliament unilaterally.

Honourable senators, the Commons unilaterally cannot amend, abrogate or defeat the law of Parliament that every bill requires three readings in each House. No Commons order can unilaterally abolish the duty of a House to do three readings. This law can only be amended by the mutual action of the Senate, the Commons and the Queen because, as I said before, this law is a joint law.

In fact, the bill before us, Bill C-4, has not had three readings in the House of Commons and consequently does not qualify for the Senate's consideration and concurrence. The Senate has no privileges or power to countenance such a claim from the Commons.

Honourable senators, finally, again, no House of Commons order or resolution can amend, overrule or annul the Royal Writ of Prorogation and the Royal Proclamation issued under the royal prerogative power on November 12, 2003, by Her Excellency Governor General Adrienne Clarkson. Neither House of Parliament has any privileges or power to defeat such a proclamation issued under those Letters Patent and the Great Seal of Canada.

Further, if the Commons, for reasons known only to itself, adopted some order pretending to do so, such order can have no legal force for the Senate and cannot compel the Senate's agreement because the Senate has no privileges or power to agree with such an order. The Senate is the master of its own affairs. It is the master of its own internal proceedings. The Senate's affairs are not subservient or subordinate to any order, either a true order or pretender order of the Commons. The Senate cannot consider a Commons claim that a Commons unilateral order can nullify Her Majesty's order for prorogation of November 12, 2003.

In fact, I would argue that the Senate cannot countenance such a claim because such a claim is contrary to Parliament's law, and the Senate, being the master of its own proceedings, has a constitutional obligation to deny and condemn such claim because the Senate has a duty to uphold its own independence and its own integrity. The Senate cannot countenance a dishonourable claim, a claim that breaches the privileges of Parliament, dishonours the Queen and subverts the Constitution.

Honourable senators, I have searched hard and long to find a quotation that is able to grasp and to articulate the nature of our Constitution and the nature of the relations between the Houses and the nature of the balance of our constitutional system. I found it in Sir William Blackstone. As honourable senators know, he wrote in the 1700s and is probably one of the most clear-minded writers ever. In 1765, in his Commentaries on the Laws of England, Book I, he wrote about the mutual and independent relations of the Houses of Parliament and the balance of the Constitution, saying —

The Hon. the Speaker: I am sorry to interrupt, but the honourable senator's 15 minutes have expired.

Senator Cools: Could I have leave to continue?

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Cools: Sir William Blackstone wrote:

Thus every branch of our civil polity supports and is supported, regulates and is regulated, by the rest: for the two houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits; while the whole is prevented from separation, and artificially connected together by the mixed nature of the Crown, which is a part of the legislative, and the sole executive magistrate. Like three distinct powers in mechanics they jointly impel the machine of government in a direction different from what either, acting by themselves, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community.

In closing, honourable senators, I submit that the House of Commons orders of February 10 and 11, 2004, for the reinstatement and prosecution of Bill C-34 from the last session, now as Bill C-4 today, despite a prorogation, and deficient of three readings, debate and votes, is a mischief upon the Senate. It is a mischief that subverts the law of Parliament and the constitution of both the Senate and the House of Commons.

I thank honourable senators for their attention.

Hon. Jack Austin (Leader of the Government): Honourable senators, as I am the mover of the bill, may I proceed? It is not a question. I would like to exercise the right of reply.

The Hon. the Speaker: I must caution honourable senators that if I see Senator Austin and he speaks, his speech will have the effect of closing the debate.

Senator Andreychuk: I wish to speak.

Hon. David P. Smith: Honourable senators, I have a question of the previous speaker.

The Hon. the Speaker: Will you take a question, Senator Cools?

Senator Cools: Happily, honourable senators.

Senator Smith: I take it that rather than raising a point of order on which she was seeking a ruling from the Chair as to whether this matter is properly before us, the honourable senator is giving a speech to persuade us —

Senator Cools: Obviously I was speaking to second reading of the bill. I did not raise a point of order. If Senator Smith feels inclined to do so, he can raise it. However, I was not raising a point of order.

Senator Smith: I do not wish to raise a point of order.

I am curious, Senator Cools, in that when the House of Commons adopts a procedure — designed to make it operate more efficiently — so that its members can, by motion, put bills to the stage that they were at when one session ended and another session of the same Parliament is entered into, why do you find it desirable to put Parliament in a straitjacket and redo everything it has already done? How do you find that a desirable modus operandi?

Senator Cools: Senator Smith, I believe that the observance of the law is always a desirable modus operandi. That is the first thing that I would like to say on this matter.

Honourable senators, we have a curious situation whereby the writ of prorogation, as issued, terminated all proceedings in this chamber. However, by some miracle, it did not seem to have terminated their proceedings in the other place. I would submit to honourable senators for their consideration that the powers of adjournment and the powers of prorogation are exactly the same for both Houses of Parliament.

I submit to honourable senators that the House of Commons has no greater power and no greater privilege than the Senate. All the authorities and all the laws as I have read them have said that the House of Commons and the Senate share equal and coordinate powers at all times.

Any attempts to alter what we call the law of Parliament, which Senator Austin referred to yesterday as the high court of Parliament, have to be done by mutual action. The peculiar thing about the balance of our Constitution and our system as it exists is that the two chambers, even though they have independence, in point of fact are running in accordance with the same law.

I would also like to say to honourable senators, if perchance the House of Commons assumes unto itself a power that it does not have, that that power imposes no obligation on this chamber, on this particular house, to agree to that or to accept that. The duty of senators, as members of Parliament, is to keep each other in a phenomenal sense of balance.

I am very sorry that Senator Smith thinks some of these matters are just an inconvenience. The fact is that, in my view, votes and decisions from proceedings are so important in Parliament that we should treat them in a very treasured way.

Senator Smith: Honourable senators, I will ask a question to which I would invite the honourable senator to reply. Given that the House of Commons has by due process adopted a procedure to allow it to function more efficiently when considering a bill, a procedure by which no one is adversely prejudiced, rather than putting members of the other place in a straitjacket by asking them to go back to "Go" on the Monopoly board and go all the way around the board again, does the honourable senator not think it is a bit much for us to interfere with that? If she is in fact right and this is illegal, there are procedures to address it. I am curious as to whether the honourable senator has thought of that.

Senator Cools: I will find another authority for the Honourable Senator Smith on the effect of a prorogation. I will quote Erskine May, who said in the twenty-second edition of Parliamentary Practice:

The effect of a prorogation is at once to suspend all business, including committee proceedings, until Parliament shall be summoned again . . . Not only are the sittings of Parliament at an end, but all proceedings pending at the time are quashed, except impeachments . . . and judicial proceedings before the House of Lords.

Senator Smith is a lawyer. Quashed means quashed, end means end and over means over.

If members of the House of Commons purport to create an order to reinstate bills, they have not just created an order; they have created a new constitutional power that was never given to them by the BNA Act. That is what I am saying.

I am very impressed by your interest, Senator Smith, because I thought as I was giving this speech that many would yawn.

I want to tell honourable senators the law of Parliament, as is the law of the prerogative, are the two most understudied areas of law in the existence of all the different branches of law. What is crystal clear is that the intention of section 18 of the BNA Act as it was received into Canada — what we call the immunities, powers and privileges section — was to convey the ancient law of Parliament, the law and custom of Parliament, to this particular Parliament, meaning the Senate and the House of Commons.

I am only saying that there are ways, honourable senators, that a House can fast-track measures, especially where there is agreement. For example, any authority will tell you that measures have been speeded up in either House by agreement to move motions that are unopposed and that pass with a minimum of opposition and a minimum of resistance.

In the instance of the reinstatement of private bills, a standing order was created. In the instance of government bills, an omnibus order was created, which gave them the power to overcome a writ of prorogation.

Honourable senators, I was very distressed a year ago when John Manley, then the Deputy Prime Minister, said whatever he had to say about Her Majesty the Queen. The truth is that so many people in this country, particularly on our side, have been saying for so long that the Queen is irrelevant or the Queen is only a ceremony that they have actually forgotten or ignored the fundamental law of our system.

Senator Smith, I am not speaking of any antiquarian curiosity. I am speaking about the constitutional system that vests these authorities in Her Majesty. If you doubt me, I have a copy of the proclamation that states very clearly what we, the Senate and the Commons, were ordered to do.

Honourable senators, I find this to be a very good and interesting debate. I am pleased that you are happy and that you want to consider my words. I am saying that, as members of Parliament, we are quite often a little slipshod. What I am describing to honourable senators is the state of the law as it is, not what I would prefer or what you should prefer. This is the state of the law.

I did not go into a whole set of other areas, which I could have done. If you look at the prorogation, at the writ itself, it says very clearly that the Governor General issued this writ on the advice of the Prime Minister. I did not even go down the road of that particular constitutional involvement.

All I am saying to the Honourable Senator Smith is that the Constitution of this country gave no more power to the House of Commons than it did to the Senate. The powers given to the Senate and to the House of Commons do not include the power to overrule a writ of prorogation or the power to overrule the requirement for three readings of a bill, even though there are two different branches of law.

My point here is that any amendments and changes to those laws will involve and include the Senate. I am not suggesting that everything is totally unchangeable. I am saying that any change involves this Senate chamber. The concept that we are the masters of our own chamber exists precisely to buttress and to protect us from being subordinated and subjugated at any time to the House of Commons. I do not believe for a moment that this house should be subordinate to the other House.

These are not matters of antique interest — and as honourable senators know, I have a bit of the antiquarian in me. I sincerely love this stuff and I believe in it. Nevertheless, I am aware that we are now in a community where most people do not even toast the Queen any more. However, the fact of the matter is that this is our constitutional system, and this is the state of the law. That is the system by which these chambers are supposed to be operating.

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