The Legislative Process / Miscellaneous

January 26, 1987

Debates, pp. 2665-8

On January 23, 1987, the Hon. Herb Gray (Windsor West) rose on a point of order concerning Bill C-37 respecting softwood lumber. Although debate at second reading was already underway, Mr. Gray argued that the Bill should not have been introduced as it was, in that it contravened the Standing Orders which stated that no Bill may be introduced in a blank or imperfect shape. The Bill contained a reference to a document entitled “Memorandum of Understanding” stating that this document was tabled in the House on January 19, 1987, when in fact the document had not yet been tabled. The Bill also contained a blank as it referred to a sessional paper number relating to the document in question, which was not available as the document had not been tabled. Mr. Gray asked the Speaker to declare the debate at second reading a nullity and stated the Government should be required to reintroduce the Bill. Other Members suggested that since the Memorandum of Agreement had not yet been tabled, consequently the Bill was not complete and certain information relating to the content of the Bill not available. Acknowledging that an error had taken place, the Speaker heard comments from various Members and directed them to address the question of what prejudice the public interest or Members had suffered as a result of this error. The debate proceeded at great length and the Speaker eventually took the matter under consideration.^[1] On January 26, the Speaker rendered his ruling which is reproduced in its entirety below.

Decision of the Chair

The Speaker: Before I call Orders of the Day, I have a ruling to make arising out of the debate which occurred on Friday, January 23, 1987. The honourable Member for Windsor West rose on a point of order to argue that violence had been done to Standing Order 108 in Bill C-37, An Act respecting the imposition of a charge on the export of certain softwood lumber products.

Standing Order 108 reads as follows:

No bill may be introduced either in blank or in an imperfect shape.

The honourable Member for Windsor West referred to subclause (3) of clause 2 of the Bill in which the Memorandum of Understanding is clearly mentioned establishing the relationship between this Bill and the Canada-U.S. Agreement. The honourable Member complained particularly of lines 11, 12 and 13 at page 2 of the Bill where reference is made to the tabling of the Canada-U.S. memorandum on softwood products as having been made on January 19, 1987, and recorded as a Sessional Paper, the number of which is omitted in the Bill. He subsequently submitted that debate on the Bill should be deemed a nullity and that the Government should be required to reintroduce the Bill and commence the debate and its proceedings all over again.

The honourable Parliamentary Secretary to the Deputy Prime Minister and President of the Privy Council (Mr. Doug Lewis) admitted that the Memorandum of Understanding had not been tabled as had been originally intended and conceded that a clerical error had been made. He suggested that the correction of the date of the tabling and the insertion of the proper Sessional Paper number in clause 2 could be made by way of amendment at committee stage. The honourable Parliamentary Secretary argued that the date of the tabling of the Memorandum of Understanding and the absence of the Sessional Paper number did not go to the essence of Bill C-37.

The honourable Member for Ottawa—Vanier (Mr. Jean-Robert Gauthier) maintained that because there was a blank in line 12 on page 2 of this Bill, this made the Bill entirely unacceptable, according to Standing Order 108, and that consequently, the Government should withdraw the faulty Bill and present an amended version with the correct date and the correct numbers of related documents.

The honourable Member for Humboldt—Lake Centre (Mr. Vic Althouse) and the honourable Member for Churchill (Mr. Rod Murphy) referred the Chair to a previous Speaker’s ruling on the drug patent Bill which occurred in June 1986 when the Speaker refused to propose the question on the introduction of the said Bill because the Royal Recommendation which was required in that case had not been secured.^[2] They drew the analogy that, not having gone through the proper procedures, Bill C-37 ought to be rejected in the same manner.

The honourable Member for Winnipeg—Fort Garry (Mr. Lloyd Axworthy) and the honourable Member for Spadina (Mr. Dan Heap) claimed that since the Memorandum of Understanding is essential to the functioning of the law, Bill C-37 is defective because the said Memorandum of Understanding is not contained therein. The honourable Deputy Prime Minister and President of the Privy Council (Mr. Don Mazankowski), in his presentation, attempted to define an imperfect Bill. He stated that a blank Bill would be imperfect. He submitted that failure to outline the principles of a Bill or details pertaining to the principles of a Bill could render a Bill void, but that in the present case the House is faced with “simply a slight technicality that can be easily changed”.

The honourable Member for York South—Weston (Mr. John Nunziata) contended that because of the wrong date and the omitted document number, Bill C-37 is flawed, that the flaw is fatal, that the proceedings thus far are irregular and that the Bill and the debate thereon should be ruled void ab initio.

The Parliamentary Secretary to the Minister of Transport (Mr. David Kilgour) countered that no Bill was perfect in itself and that Bill C-37 was sufficiently complete to be adopted on second reading and referred to a committee, where it could be improved. He added that no Members had been prejudiced by this and that the Chair should decide to let the debate continue.

The honourable Member for Western Arctic (Mr. Dave Nickerson) referred to a ruling of the Chair in the previous Parliament which can be found at Hansard, page 5139, of June 26, 1984. At that time there were blanks in copies of the printed Bill in the hands of honourable Members but, as the Deputy Speaker informed the House, there were no blanks in the House copy filed with the Table at the time of introduction. Therefore, that particular case is unfortunately of little guidance since there was in fact a blank in Bill C-37 when it was introduced on January 19 last.

At this point, it might be desirable to relate what proceedings have transpired so far on Bill C-37.

On January 19, 1987, during Routine Proceedings, the honourable Minister for International Trade (Miss Pat Carney) tabled a notice of Ways and Means motion relating to the Canada-U.S. softwood lumber Memorandum of Understanding and asked that a day be designated for its consideration pursuant to Standing Order 84(1) and 84(2). At three o’clock p.m. the same day, by unanimous consent so as to waive the restrictions of Standing Orders 84(1) which prevent the consideration of such motions on the same day they are tabled, the said motion of Ways and Means was concurred in on recorded division.

Bill C-37, the Softwood Lumber Products Export Charge Act, was introduced and read the first time, again by unanimous consent so as to waive the notice prescriptions of the Standing Orders. A Royal Recommendation duly signed by the Governor General was properly attached to the Bill.

The House gave unanimous consent once again to proceed forthwith with the consideration of the second-reading motion, thereby suspending Standing Order 111(1) which stipulates that the three several readings of a Bill shall occur on separate sitting days. During the debate on the same day, the Right Honourable Leader of the Opposition (Mr. John Turner) moved a six-month hoist amendment to the second-reading motion. On Thursday, January 22, the question was put on the amendment and it was negatived on a recorded division.

The Parliamentary Secretary to the Minister for International Trade (Mr. John McDermid) subsequently moved the previous question, namely: “That the question [be now] put.”

That is where we were after four days of debate on the motion for second reading of Bill C-37, and it was at this point that the honourable Member for Windsor West raised his point of order.

In arriving at a decision, the Chair has reviewed all of the arguments and I will attempt to deal with most of them. I have already told the honourable Member for Western Arctic that the precedent he alluded to, while similar in its content, was of little guidance because the official copy of the Bill he referred to did not contain blanks at the time of introduction in June of 1984. I thank him nevertheless for his comments.

The honourable Member for Churchill and the honourable Member for Humboldt—Lake Centre make reference to the June, 1986 drug patent Bill and I must say that that precedent is not quite on point either. If the Speaker ruled, as he did in June, 1986, it was not because of Standing Order 108 but because of Standing Order 86(2) which requires that the Royal Recommendation be annexed to every Bill which requires one. Bill C-37 had, on January 19, 1987, a Royal Recommendation properly attached to it.

The honourable Member for Winnipeg—Fort Garry and the honourable Member for Spadina made reference to the fact that the Memorandum of Understanding is not contained in the Bill. I refer them to a ruling made on May 17, 1956 which established that it was not necessary to include agreements in Bills providing for the carrying into effect of those agreements.^[3] The Speaker referred the House to chapter 71 of the Statutes of 1948, An Act to provide for the carrying into effect of treaties of peace between Canada and Italy, Romania, Hungary and Finland, in which none of the agreements was inserted in the Bill.

After resolving these two important points, the Chair still has to deal with what was said by the honourable Members for Windsor West, Ottawa—Vanier and York South—Weston with respect to Standing Order 108 and their statement that Bill C-37 was a Bill in blank and in an imperfect shape owing to lines 11 and 12 on page 2 of said Bill.

My predecessors have been very diligent in the past in ruling blank Bills out of order. These Bills were usually Private Members’ Bills introduced and read a first time and subsequently found to have only a title and for which no text existed or had been finalized. I refer honourable Members to a ruling of Speaker Jerome on May 16, 1978, at page 5461 of Hansard, and more particularly to a ruling of Speaker Sauvé who, on December 15, 1980, declared the proceedings relating to Bill C-622 null and void. She said the following and I quote from page 5746 of Hansard:

...while the document with respect to the motion was prepared, the bill itself had not been drafted and, therefore, was not ready for introduction.

Standing Order 69 is very clear:

No bill may be introduced either in blank or in an imperfect shape.

It seems that Standing Order 108 was very clear to Speaker Sauvé and the Bill in blank shape meant simply a Bill with only a title or only partially drafted.

The aforementioned references are cited to establish the difference between a Bill in blank shape and a Bill containing a blank. In the opinion of the Chair, Bill C-37 is not a blank Bill according to our practice and previous Speakers’ rulings, but without doubt, as was so ably demonstrated by the honourable Member for Gander—Twillingate (Mr. George Baker), Bill C-37 does contain a blank. It also contains an error, namely, the reference to the tabling of the Memorandum of Understanding on January 19, 1987. Having come to the conclusion that what we are dealing with are errors or anomalies in this Bill, the Chair must decide whether these errors render the Bill imperfect in relation to Standing Order 108.

On September 24, 1985 the President of the Privy Council (Hon. Ray Hnatyshyn) sought the unanimous consent of the House to correct errors in Bill C-75, An Act to amend the Canada Shipping Act, which had been introduced earlier, and stated that a new Royal Recommendation had been obtained accordingly.^[4] The House gave its consent. While there was no ruling from the Chair, it was obvious at the time that the errors in Bill C-75, which omitted in its title and text as well as in the Royal Recommendation, references to the Oil and Gas Production and Conservation Act, were so grave as to render the Bill imperfect. Because the errors were fundamental to Bill C-75, only two recourses were available to the Minister, either obtain consent to correct the errors or start again.

The Chair has reviewed the errors at page 2 of Bill C-37 and the arguments surrounding them, including those of the Deputy Prime Minister and his Parliamentary Secretary. I have concluded that the two mistakes do not affect the essence, the principles, the objects, the purposes or the conditions of Bill C-37. The Chair is also satisfied that the terms of the Royal Recommendation are not affected or altered.

However, the matter cannot lie there. This point of order has taken up much of the House’s time, indeed a full sitting day. The House might allow me to add that it has preoccupied your Speaker over the past weekend.

In seeking a solution, I was inspired by the ruling of May 17, 1956, which I referred to earlier. In elaborating on the first reading procedure Speaker Beaudoin said:

[…] at [the] moment the honourable Member cannot raise [a] point of order because he does not have a copy of the bill. The bill has not been printed.... My satisfaction must be made on a very summary basis because honourable Members cannot expect the Speaker to study every bill in an effort to find whether or not something has been omitted. Honourable Members have taken care of that situation themselves by insisting in their procedure that after second reading all bills be referred... to one of their standing committees or to the Committee of the Whole [...]

Beauchesne Fifth Edition at page 79, Citation 238, says:

When a bill is under consideration, points of order should not be raised on matters which could be disposed of by moving amendments.

The errors in Bill C-37 could indeed be corrected by an amendment in committee, but it seems to the Chair a rather cumbersome solution to correct what is essentially a minor error or oversight.

Pursuant to Standing Order No. 1, I have reviewed the practice in the United Kingdom and in the Lok Sabha of India and found the following. At page 493 of the Practice and Procedure of Parliament, Third Edition, edited by Kaul and Shakdher it is stated:

No alteration can be made in a bill as introduced or as reported by a Select or Joint Committee except by way of an amendment adopted in the House. However, the Speaker has the power to correct any obvious printing or clerical error at any stage of a Bill by issue of a corrigendum to the Bill.^[5]

In the Twentieth Edition of Erskine May at pages 377, 383 and 526 the Speaker of the House of Commons at Westminster is given considerable latitude in altering minor errors in motions and bills.

Therefore, I hereby order the Clerk of the House to alter the House copy of Bill C-37 as follows:

lines 11, 12 and 13 shall be struck from the Bill, line 10 shall be altered by adding a period after the words “December 30, 1986” and by striking out the word “and”.

By doing this the incorrect tabling date and blank document number are removed from the Bill. However, that part of subclause 2(3) which allows for recourse to the Memorandum of Understanding in interpreting the schedule remains. The alteration being made is therefore not one of substance but one which will correct the errors complained of. The Law Clerk and Parliamentary Counsel shall also reprint the Bill accordingly, including an explanatory note referring to this ruling and the above-mentioned alterations ordered by the Chair.

This is not an innovation on the part of the Chair, for Speaker Jerome on April 23, 1975 ordered certain amendments made in committee, stripped from a Bill, and ordered a reprint of the Bill. Members may wish to consult [Journals], page 469 of that day.

In closing, I wish to add a few comments on clerical errors and oversights, for I do not necessarily take them to be of little significance. This error has been the subject of a full day’s debate; it has now caused the reprint of a Bill at considerable expense. It has preoccupied Members on both sides of the House for several days and has been of grave concern to your Speaker. No doubt this error will continue to be a point of some controversy. Let not those responsible for it be confident that in the future this ruling may be used to cure their mistakes. It is possible that a clerical error can affect the fundamental principles of fair play that govern parliamentary proceedings and debate. This ruling addresses the clerical error in Bill C-37 only. Future such clerical errors will have to be assessed with regard to their impact on the draft legislation before the House, and the consequences that will flow therefrom.

Let there be no misunderstanding. This kind of error can affect the rules of fair play that govern our proceedings. This ruling corrects only the anomaly in Bill C-37. In future, such errors will have to be considered in terms of their impact on the proposed legislation before the House and the consequences that may result.

Accordingly, debate on the second reading of Bill C-37, as altered by the Speaker, will proceed.

I wish to thank all honourable Members for their contribution to the debate on Friday, which the Chair took as extremely serious. I hope that the comments in this ruling will make it very clear that if mistakes are made this is not a ruling to be looked to with much comfort for the correction of those mistakes, and as a precedent it must be viewed in its most narrow and factual form.

Again, I thank all honourable Members for their conduct during what was a very difficult question, a question that touches on the rights of all Members, and especially what must be accepted and understood in our parliamentary tradition, that the rules of procedure are very important to the conduct of this place.

On January 23, 1987, during the intervening period between discussion on this point of order, the Government tabled, during Routine Proceedings, the Memorandum of Understanding in question. However, the Speaker later ruled that the incorrect tabling date and the sessional paper number be deleted from the Bill. These references were not part of the Bill as assented to on May 28, 1987.

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