Canada's Original Think Tank

Point of Order

Point of Order

Point of Order

Point of Order

Published on 17 June 2016
Hansard and Statements by Senator Claudette Tardif, George Baker (retired), Joan Fraser, Serge Joyal, Wilfred Moore (retired)

[Senators debated a point of order with respect to the amendment tabled by Senator Serge Joyal]

Hon. Serge Joyal:

I don’t agree with the conclusion of the Honourable Leader of the Government that we are bringing a new clause into the bill. My amendment deals essentially with paragraph (2) of 241.2, which is the subject of the message from the House of Commons. When we sent the message to the House of Commons, the House of Commons amended some of the sections that we had previously amended.

For us to return a message that would amend an element that has already been amended by the House of Commons is within our purview in relation to the bill.

We are not adding a new clause. The house has amended that clause, as we see on the report that has been signed by the Acting Clerk of the House of Commons. They amended 2(c)(i), 2(d), 2(e). The subject matter in front of is exactly the subject matter that I deal with in the amendment that I have tabled. I have absolutely no hesitation in concluding that this amendment is totally admissible.

Hon. George Baker:

As I read the amendment, what it does is it takes the section that says “reasonably foreseeable” death, and it stands in abeyance in the bill with no force until a determination is made by the Supreme Court of Canada.

I would argue that that’s the whole purpose of this exchange with the House of Commons: “reasonably foreseeable” death. That has been the impugned section, as they say. This is the section that has been under debate. This is the section that refers to the joint committee recommendation, to one of the motions of the Standing Senate Committee on Legal and Constitutional Affairs, to the entire debate. The government and the House of Commons have said — rejecting it by a vote of 240-52 — that “reasonably foreseeable” death shall not be removed from the legislation. I read out the vote a few moments ago.

Senator Fraser: It’s not on a point of order.

Senator Baker: That is on a point of order because if you are negating the principal portion of a motion, regardless of whether or not you are talking about the entire motion, if you are negating a segment of it, as the Government Representative has said, then I would submit that that is negating the major portion — “the” portion — of the debate we’re having.

It would be the same as rejecting the recommendation from the House of Commons, sending it back and saying that a decision of the Supreme Court of Canada must be made on those words, “reasonably foreseeable” death. That’s what it does.

Your Honour, you have to make the decision, but I would suggest that that principally negates the motion from the House of Commons.


Hon. Joan Fraser (Deputy Leader of the Senate Liberals):

It is not unusual for amendments to be brought, suggested, to a motion that change the direction of the original motion in some way. In fact, that is frequently the point of amendments, and they are receivable, debatable and voteable.

Senator Joyal’s proposed amendment to this motion does, as Senator Baker suggested, go to the heart of the biggest single dispute around this bill. It is, in my view, entirely appropriate, well within our practices and Rules, and I would urge you to rule rapidly that that is the case so that we may return to the debate that we’re all here for.


Hon. Claudette Tardif:

Your Honour, I would point out, as some of my colleagues have mentioned, that the message we have received from the House of Commons contains amendments to the bill.

The Hon. the Speaker: Do any other senators wish to speak to the point of order?

Senator Baker: There is one final point that I forgot to mention, Your Honour. There is a principle that you can’t do by the back door what you can’t do by the front door.

Hon. Wilfred P. Moore:

It sounded to me from the point of order that it’s expected that the Senate would totally agree with the message we receive from the house. That’s what it sounded like to me, and I don’t think that’s right. That’s not our job. If that were the case, what’s the point? We’re not here being dictated to; we’re receiving messages to reflect on the issues at hand. The process is that we look at it, and it goes back and forth, according to our constitutional obligations and rights. We have had exchanges; we have had amendments both ways. Senator Tardif just spoke about that. So I don’t think the point of order is in order.


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