The Speaker: I am going to take a point of order from the hon. member for St. Albert before we go to orders of the day.
This is not a matter for a public bill but should instead be introduced as a private bill. Now that the other place has passed Bill C-42 as amended, the bill stands as some sort of hybrid public-private bill. Therefore the motion of the Minister of Justice to concur in the bill as amended cannot proceed because it would be a breach of our rules to do so.
I refer to a ruling by the Speaker on October 23, 1975 regarding a bill entitled ``an act for the parole of Dr. Henry Morgentaler''. The Speaker ruled:
The fact of the matter is that the bill before us at the present time is a proposal to exempt or to except from the operation of the general law, one person, namely Dr. Henry Morgentaler. I cannot by any stretch of the imagination be persuaded that this is a subject matter of a public bill, or that it is in any way the alteration of the general law. It is the alteration or the exception for one person of the application of the law, which seems crystal clear to me to be the subject matter of a private bill and not a public bill.The Speaker continued:
-we are left with no other choice than to decide the matter is really a proper subject matter not of a public bill but of a private bill.On October 2, 1996 the Speaker of the other House responded to a question by a senator to rule on whether or not Bill C-42, the bill we are currently discussing, prior to it being amended by this motion, was a public bill or a private bill. The Speaker of the other House said on page 921 of the Senate Debates:
A public bill relates to a matter of public policy while a private bill relates to a matter of particular interest or benefit to a person or persons. A bill containing provisions which are essentially a feature of a private bill cannot be introduced as a public bill. A bill designed to exempt one person from the application of the law is a private bill, not a public bill.Remember he was giving his ruling prior to this particular amendment being tabled. He went on to say:
-while some of the changes may relate at the moment to identifiable individuals, they are designed to have lasting application; consequently, they are not in any way an exemption from the general law, but a change to it. Given this interpretation, it seems clear to me that Bill C-42 is a public bill, and not a private bill.That was before the amendment was introduced and the bill passed in the Senate as amended.
Mr. Speaker, as you are aware the amendments to Bill C-42 delete any vestige of policy that is designed to have lasting application. All public policy in Bill C-42 regarding a judge's ability to accept assignments with international organizations has been removed and substituted by a special exemption to be written into the Judges Act to allow Madam Justice Louise Arbour to accept an assignment with an international organization. One person, one exemption and no lasting application.
Obviously the amendment to Bill C-42 clearly meets the criteria laid out by the Speaker of the other House on what constitutes a private bill.
In addition, citation 1055 of Beauchesne's sixth edition outlines principles for a private bill:
-private bills demand peculiar vigilance, lest public laws be likely set aside for the benefit of particular persons or places.The amendment introduced by the government in the other place sets a public law aside for the benefit of one particular person. I emphasize that the manner in which it is being done fosters less vigilance rather than more. It sets aside section 55 of the Judges Act specifically for Madam Justice Louise Arbour to take a leave from her judicial duties to serve as prosecutor of the international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia and of the international tribunal for Rwanda.
(1010)
One could argue that we are dealing with only one section of the bill and that there are other aspects of public policy contained within the bill. The fact that some provisions of the bill are of a private nature is sufficient grounds to prevent Bill C-42 as amended by the government and the other place from proceeding any further.
Mr. Speaker, I refer you to a ruling from March 12, 1875. The bill under consideration was a bill to rearrange the capital of the Northern Railway Company of Canada to enable the said company to change the gauge of its railway to amalgamate with the Northern Extension Railways Company and for other purposes. It is important to note that only some of the provisions of this bill were of a private nature. When this fact was brought to the attention of the Speaker in 1875, he ruled that the point of order was well taken and that the bill could not be introduced as a public bill.
Bill C-42 as amended contains provisions only appropriate in a private bill. What we now have before us is a motion to retroactively create some sort of hybrid public-private bill. Erskine May's 21st edition, at page 793, gives two reasons for hybrid bills:
-although in part they may be of a private nature, their main object is a public one; and secondly, that there may be no parties able and willing to present a petition.Bill C-42 does not meet this definition because Madam Justice Louise Arbour is able to present a petition.
However, in the Canadian practice, public matters and private matters must be dealt with separately.
Mr. Speaker, I refer you to Beauchesne's sixth edition, citation 623, which states: ``According to Canadian standing orders and practice, there are only two kinds of bills-public and private. The British hybrid bill'', as defined by Erskine May, ``is not recognized in Canadian practice''.
There is a procedure in our rules for private bills and a procedure for public bills. The government cannot go down the middle on this one. It must go back to the drawing board and present a public bill to deal with the provisions of Bill C-42 which are of a public nature and if petitioned, a member can introduce a private bill to exempt Madam Justice Louise Arbour from the public policy.
Mr. Speaker, I suggest that we do not proceed any further with the motion to concur in Bill C-42 as amended until you have made your ruling on this matter of procedure.
Mr. Paul Zed (Parliamentary Secretary to Leader of the Government in the House of Commons, Lib.): Mr. Speaker, I have listened carefully to the point of order raised by my hon. colleague. Frankly and with the greatest of respect I have to say that this is clearly not a private matter. It is a matter of public policy to permit the hon. Madam Justice involved to make the comments which she has made.
The point that is important to remember in the point of order which has been raised is that we do not have a bill before us. We merely have a message from the Senate concerning amendments. Therefore, the 1975 precedent which has been cited by my hon. colleague in my view respectfully is irrelevant. We are dealing with a message from the Senate in exactly the same manner as prescribed by the standing orders and the commentaries in those standing orders.
If the House wishes to reject the amendments, then it is certainly free to vote against the motion. It is not for the Chair, respectfully, to interpose itself between the Houses. It is for the House to be permitted to declare its views on this matter.
That is my respectful submission on the point of order raised by my hon. colleague.
The Speaker: Is the hon. member for St. Albert rising on the same point of order?
Mr. Williams: Mr. Speaker, it is on the same point of order. If I may be permitted a short rebuttal to the-
(1015)
The Speaker: It will have to be very short. I do not want to get into a debate. Everything should be presented to the Chair on your first pass.
Mr. Williams: Mr. Speaker, I did that. However, I would just draw one point to your attention. Bill C-42 as it was passed in the House was ruled by the Speaker of the other place to be a matter of public policy. The Speaker said the wording of the bill was specific in a public policy manner to allow Madam Justice Louise Arbour to be the prosecutor, the position she currently holds.
The point is that the public policy ran into a problem in the other place. The government withdrew the public policy and introduced a specific exception to section 55 of the Judges Act for Madam Justice Louise Arbour.
I would also draw attention to the note on the motion that would amend the Judges Act which is before the House. It starts off by saying: ``Notwithstanding section 55, Madam Justice Louise Arbour may apply for a leave of absence''. That is the point, Mr. Speaker.
We have here two amendments by the Senate for which concurrence of the House is sought. What the member is asking me to do is to rule on the procedural acceptability of changes made by the
Senate. My view is that your Speaker cannot stand as a procedural judge on what is done by the Senate. What they do over there, they do over there.
I would refer members to a ruling made April 26, 1990, at page 10723 of the Commons Debates, where Mr. Speaker Fraser notes:
-the Speaker of the House of Commons cannot unilaterally rule out of order amendments from the other place. I can comment, as I am doing, but the House as a whole must ultimately make the decision to accept or reject amendments from the Senate, whether they be in order according to our rules or not.It comes down to a decision of the House.
(1020)
I am going to reach back just a little further to Erskine May, 20th edition, Parliamentary Practice. I am quoting from page 582. Subsection (2) states:
No objection can be taken to a Lords Amendment--which means a Senate amendment for our purposes-
-on the ground of order.These amendments are sent to us from the Senate. Your Speaker cannot rule procedurally on what the Senate does. That is a matter for the House to decide. The House should rule on these amendments.
I thank both hon. members for their interventions and for bringing this to my attention.
Pursuant to Standing Order 32(5), this report is deemed referred to the Standing Committee on Human Resources Development.
[English]
Pursuant to Standing Order 108(2), your committee has agreed to adopt the report on Bill C-202, an act respecting a National Organ Donor Day in Canada without amendment.
Among other things they ask Parliament to zero rate reading materials under the proposed harmonization sales tax, and ask the Prime Minister to carry out his party's repeated and unequivocal promise to remove the federal sales tax from books, magazines and newspapers.
[Translation]
The text of the petition reads as follows: ``The undersigned residents of Canada call upon the House to note the following: whereas the Senate consists of non-elected individuals who are not accountable for their actions; the Senate has an annual operating budget of $43 million; the Senate refuses to account for its votes to the committees of the House of Commons; the Senate does not fulfil its mandate for regional representation; the Senate duplicates the work done by members in the House of Commons; and considering the need for modern parliamentarian institutions and the motion to abolish the Senate now being debated in the House of
Commons; therefore your petitioners call upon Parliament to take steps to abolish the Senate''.
[English]
The Deputy Speaker: Shall all questions stand?
Some hon. members: Agreed.