Point of Order—Bill S-15 and Bill S-241

By: The Hon. Marty Klyne

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Centennial flame, Ottawa

Hon. Marty Klyne: Honourable senators, I rise to respond to this point of order which proposes to prevent debate, committee study and decision on government Bill S-15. The point of order is highly technical, arguing what is known as the “same question rule,” which prevents proceedings on Bill S-15 due to the prior occurrence of proceedings on Bill S-241, the Jane Goodall Act. As senators know, compared to Bill S-15, Bill S-241 is related but is a very different bill. Absurdly referred to three committees by the critic of June of last year — not of my doing — and after extensive second reading debate, the question of time — it was expensive as well, Senator Wells — and resource allocation, particularly with the heavy debate on everything.

The point of order must not succeed for two reasons. First, Bill S-15 is sufficiently different from Bill S-241, from the standpoint of substantial legalities, to avoid application of the same question rule. Second, even if the Speaker concludes that this is an arguable case, the Senate’s procedural presumption must apply that a matter is in order, allowing debate, study and decisions to take place, which has been a defining feature of our procedure and practice in our deliberative chamber.

Senators, what is the same question rule? The rule is discussed on pages 96 and 97 of Senate Procedure in Practice, and is expressed in two rules of the Senate. As Senator Plett mentioned, rule 5 and rule 10-9. Rule 5-12 states:

Except as otherwise provided, a motion shall not be moved if it is the same in substance as any question that has already been adopted or defeated during the same session, unless the decision has been previously rescinded by motion following a notice of five days.

Rule 10-9 states:

When a bill originating in the Senate has been passed or defeated, no new bill with the same object shall originate in the Senate during the same session.

Senate Procedure in Practice states the following about both these rules:

Various Speaker’s rulings have addressed the meaning of these provisions. Although Senate precedents are not conclusive, the same question rule has sometimes been interpreted in a narrow sense. On November 19, 1998, for example, a ruling noted that “[o]ur parliamentary jurisprudence requires that we have identical texts for rule [5-12] to apply.” Another ruling has also noted that even the passage of time may, in some cases, be sufficient to lead to the conclusion that a motion is not “the same in substance.”

A certain level of flexibility therefore exists in the application of the same question rule. This is supported by reference to international practice. In the modern U.K. Parliament, “[w]hether the second motion is substantially the same as the first is finally a matter for the judgment of the Chair.” Even in the early 19th century, John Hatsell, while advocating strict adherence to the same question rule, had recognized “that this rule is not to be so strictly and verbally observed, as to stop the proceedings of the House: It is rather to be kept in substance than in words; and the good sense of the House must decide, upon every question, how far it comes within the meaning of the rule.”

The Australian Senate also has a narrow interpretation of the same question rule:

[It] is seldom applied, because it seldom occurs that a motion is exactly the same as a motion moved previously. A motion moved in a different context, for example, as part of a different “package” of proposals, is not the same motion even if identical in terms to one already moved. Even if the terms of a motion are the same as one previously determined, because of elapse of time it almost invariably has a different effect because of changed circumstances and therefore is not the same motion. There may also be different grounds for moving the same motion again.

Senators, the takeaway from Senate Procedure in Practice — our primary authority — is that the same question rule generally has a very narrow application in the Senate of Canada, requiring that a second question be extremely similar, and even identical to an earlier question, for the rule to apply. This makes sense because our chamber has a fundamental presumption in favour of allowing debate, which I return to in my second reason as to why this is not a valid point of order.

Before exploring rules 5-12 and 10-9 in greater depth, since we require a case-by-case analysis, let’s consider the substantial differences between Bill S-15 and Bill S-241.

Senators, these bills are related but distinct. Moreover, even the measures that are similar regarding elephants and great apes are drafted very differently and contain substantial policy differences with different practical effects. These include:

Bill S-15’s lack of prohibitions on possession, import and export of reproductive materials of elephants and great apes, with practical consequences for the potential use of such materials in the artificial insemination of Asian elephants;

Bill S-15’s lack of prohibition of elephant rides, which are banned by Bill S-241, with practical consequences for the potential continuation of this practice at African Lion Safari in Hamilton, Ontario;

Bill S-15’s lack of potential provincial licensing for performances for entertainment, which differs from Bill S-241 in this regard;

Bill S-15’s offence for breaches of a condition of a permit, which is not contained in Bill S-241;

Bill S-15’s lack of an allowance for assisting applicable species in a situation of distress without a permit, unlike Bill S-241;

The absence in Bill S-15 of any licensing proposals with respect to great apes unlike in Bill S-241, which would grant conservation and science licences to three accredited zoos; and

Even for the measure that does have some overlap on elephants and great apes, very different wording and drafting beyond the substantial legal differences and practical effects I have noted, including in the case of Bill S-241 that these measures integrate many additional wild species by way of a complex scheme for the designation and removal of wild species for protection, which is absent from Bill S-15.

Senators, these are all substantial legal differences with respect to Bill S-15 and Bill S-241 regarding elephants and great apes, which are essentially the sole subject of Bill S-15.

In the bigger picture, there are more and even bigger differences. These include that Bill S-241 is far broader than Bill S-15, covering over 800 additional wild species not found in Bill S-15, including big cats, bears, wolves, sea lions, certain monkeys and dangerous reptiles, as well as a discretionary mechanism to add and remove wild animals or wild species from the bill’s application according to specific factors.

Bill S-241 contains sentencing measures absent from Bill S-15, providing for the relocation of wild animals involved in captivity offences, with costs, in a manner analogous to seizure and disposition of property.

Bill S-241 contains a complex framework for animal care organizations absent from Bill S-15, allowing zoos meeting the high standards and other criteria to breed and import the many wild species contained in Bill S-241, a focus of the debate on that bill. Bill S-241 does not contain a coordinated amendment with Bill S-6, unlike Bill S-15.

At a higher level, Bill S-15 is nine pages long, as we heard from Senator Dalphond, whereas Bill S-241 is 29 pages long. We would know they are very different by weighing them.

All of this is to say, senators, that from a legal and substantial point of view, Bill S-15 and Bill S-241 are very different. I invite the Speaker to reach such a conclusion and decline this point of order, particularly considering we are talking about a rarely invoked rule with a narrow application, even to the point of requiring identical texts, as well as our presumption that a matter is in order. I will return to this point.

First, I wish to highlight additional authorities in support of the conclusion that the same question rule does not apply in this case. The Speaker’s ruling of November 23, 2005, stated:

. . . it should be noted that practice has changed over the years to accommodate the reality of extended sessions that can continue through several years. This has had the consequence of requiring a greater degree of similarity between two items before a bill or other business will be ruled out of order on the basis of the “same question rule’’.

. . . In a ruling by Speaker Fraser made in 1989 . . . the Speaker explained that for two or more items to be substantially the same “they must have the same purpose and they have to achieve their same purpose by the same means.’’

In that case, the Speaker found that two bills were sufficiently different based on differential speed of application of an excise tax on clocks.

Certainly, senators, the changes I have outlined above are much greater in their differences than in this case, where the same question rule did not apply. With respect to rule 10-9, the Companion to the Rules of the Senate states:

When pertaining to bills, it is not always clear when the “same question rule” applies, especially when identical clauses are in question.

As I have noted above, we are not dealing with any identical clauses, so this should not be a close case.

Erskine May states:

Objection to a bill related to, but not identical with, another bill being considered by the House of Lords has been overruled.

As we have seen from the above analysis, this is clearly the case with Bill S-15 and Bill S-241 — that they are related, but very far from identical.

A Speaker’s ruling of March 23, 2004, notes that there is tension in the authorities regarding the degree of similarity required between bills for the same question rule to apply. That authority states:

How can we sort out these conflicting provisions and statements? I am not really sure that we can. It may not be possible to square the circle. The role of the Speaker is to ensure that best practices are followed while at the same time protecting the interests of the Senate. This is what the Speaker strives to do through rulings. If, at any time, the Senate disagrees with that judgment, with a decision, any Senator can challenge the ruling and the Senate itself will decide what the outcome will be by either accepting or overturning that ruling. In any case, it might be prudent to follow the advice of Hatsell also cited in the Companion at page 190, which explains that it is “the good sense of the House that must decide, upon every question, how far it comes within the meaning of the [same question] rule.”

The ruling goes on to say:

In the end, the boundaries of the same question rule can only be drawn when the Senate is confronted with a concrete event. . . .

Senators, this passage is an acknowledgement that it is truly up to us as a chamber to determine whether we will prevent debate, evidence and decisions according to sharp interpretations of technical rules.

A Speaker’s ruling of October 29, 2003, confirms that it is not sufficient for even part of a bill to be identical for the same question rule to apply:

Essentially, I am being asked to rule Bill C-41, or a part of it, out of order because it contains a provision, clause 30, that is identical to a third reading amendment to Bill C-25 that was moved and defeated. . . .

. . . There is little doubt that the defeated amendment to Bill C-25 is identical to clause 30. This fact alone does not fully meet the requirements of the same question rule. It is not sufficient in itself to oblige me to rule all or part of Bill C-41 out of order. . . .

. . . The same question rule cannot be used this way. It would be too restrictive and would prevent the Senate from properly carrying out its work. . . .

Senators, we see a theme here that the ability of the Senate to debate, study and decide upon legislation is the pre-eminent concern. This brings me to my final point. Even if the Speaker finds this case to be an arguable one, notwithstanding all the substantial differences between the bills that I have identified, the Senate would still need to follow its presumption that a matter is in order unless this is clearly not the case.

On this point, Senate Procedure in Practice states:

The Senate is often flexible in the application of the various rules and practices governing debates. As stated by Speaker Molgat in a ruling on April 2, 1998:

It is my view that matters are presumed to be in order, except where the contrary is clearly established to be the case. This presumption suggests to me that the best policy for a Speaker is to interpret the rules in favour of debate by Senators, except where the matter to be debated is clearly out of order.

This authority goes on to quote from Speaker’s ruling of February 24, 2009:

. . . several Senate Speakers have expressed a preference for presuming a matter to be in order, unless and until the contrary position is established. This bias in favour of allowing debate, except where a matter is clearly out of order, is fundamental to maintaining the Senate’s role as a chamber of discussion and reflection.

Senators, I could not agree more that the Senate’s ability to debate, study and decide upon bills is fundamental to our procedure, our practices, our constitutional role and our collegial culture. It is our ideal. In considering the point of order, our Speaker and we as a chamber have the opportunity to uphold this ideal and preserve our honoured practices.

This point of order must fail because of the substantial legal differences between Bill S-15 and Bill S-241, which I have outlined in detail. Moreover, this point of order must fail because even if the Speaker concludes that this case is an arguable one, we have a presumption in favour of debate in the Senate of Canada.

In short, this point of order is not valid, and to find it as such would not uphold the practices, procedures and ideals of our august chamber of sober second thought. Thank you. Hiy kitatamihin.

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