On the Order:

Resuming debate on the motion of the Honourable Senator Klyne, seconded by the Honourable Senator Harder, P.C., for the second reading of Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interpovincial Trade Act.

Hon. Senators: Hear, hear!

Hon. Senators: Hear, hear.

Hon. Senators: Hear, hear!

Hon. Marc Gold (Government Representative in the Senate) introduced Bill S-16, An Act respecting the recognition of the Haida Nation and the Council of the Haida Nation.

(Bill read first time.)

The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?

(On motion of Senator Gold, bill placed on the Orders of the Day for second reading two days hence.)

Hon. Pierre J. Dalphond: Honourable senators, Mahatma Gandhi said, “The greatness of a nation and its moral progress can be judged by the way its animals are treated.”

In this spirit, I rise in steadfast support of government Bill S-15, which proposes legal protections for elephants and great apes in captivity in Canada.

Science tells us that these amazing creatures are self-aware, highly social and emotional. In other words, they are sentient animals. Elephants and great apes also share these characteristics and needs with whales and dolphins, which Parliament passed laws to protect from the harms of captivity in 2019.

The time has come to extend that protection to elephants and great apes in captivity. In Ontario, a licence is not even required to possess an elephant or a great ape, meaning a chimpanzee, bonobo, gorilla or orangutan. This is no longer acceptable considering both animal welfare and public safety.

Thank you and congratulations to Minister Guilbeault and Minister Virani for bringing forward this legislation before the Senate. This bill follows the Liberal Party’s 2021 election commitment to legislate the protections of wild animals in captivity.

Thank you also to my colleague Senator Klyne for sponsoring this bill and leading this house towards more humane treatment of captive wildlife.

As said by previous speakers, Bill S-15 will pursue some of the goals of the Jane Goodall act authored by the Honourable Murray Sinclair in 2020. In sponsoring Bill S-15, Senator Klyne is upholding the vision and determination of Senator Sinclair in his tenacity to protect our fellow creatures, whom Indigenous wisdom teaches us to respect as all our relations.

Today, I will comment on four topics: first, the justification for protecting captive elephants and great apes; second, the significant differences between Bill S-15 and Bill S-241, the Jane Goodall act; third, the constitutionality of Bill S-15; and fourth, the road ahead for this bill.

On the first point, as Senator Klyne told us, the situation with elephants is especially concerning. Elephants suffer serious behavioural and health problems in captivity in North America, with two dying for every birth, as well as a record of their use for rides and performances for entertainment at African Lion Safari near Hamilton, Ontario. I was shocked that in 2021 this organization tried to sell elephants to a zoo in Texas, even though that would have broken up two mother-daughter pairs, who normally stay together for life.

Senators, that is not showing respect for sentient animals. I share the view of Dr. Jane Goodall, the Honourable Murray Sinclair, Senator Klyne and independent elephant experts that the time has come to phase out elephant captivity across Canada.

In the case of great apes, senators have heard that a lack of outdoor access was previously a concern for orangutans in Toronto prior to the opening of a new habitat last year. I applaud the Toronto, Calgary and Granby zoos’ embrace of the principle of legal protections for great apes. These zoos’ leadership sends a powerful message to the world about humanity’s shared need to protect our closest living relatives from both unsuitable conditions in captivity and the risk of extinction. The loss of part of our biodiversity is, in the end, a threat to our own survival.

For these reasons, Bill S-15 will prohibit the new captivity — including breeding and importation — of elephants and great apes unless licensed for their best interests, conservation or scientific research. Any such licences may also include conditions to promote their well-being. With Bill S-15, the granting of any licences will depend on the evidence and the judgment of the Minister of Environment or, in the case of breeding, also on the judgment of the relevant provincial government for the same restricted purposes.

In addition, Bill S-15 will prohibit the use of these species in performances for entertainment, ending the elephant shows that have taken place at African Lion Safari.

In addition to preventing animal cruelty, Bill S-15 will also protect public safety. Captive elephants and great apes are very powerful and potentially dangerous, with a record of attacks in North America. In Canada, this has included an elephant attack at African Lion Safari in 2019 that resulted in serious injuries to a trainer, and a fatal attack at the same location in 1989. This public safety aspect is legally significant, which I will return to with my third point.

Bill S-15 will achieve the measures I have described through amendments to the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, or WAPPRIITA, which is administered by Environment and Climate Change Canada. In my opinion, this is a straightforward way to achieve the bill’s justified changes, a model closely based on Canada’s whale and dolphin captivity laws in the Criminal Code and the Fisheries Act. This follows the same logic we used with respect to whales and dolphins.

I turn to my second point: the significant differences between Bill S-15 and Bill S-241, the Jane Goodall Act. As Senator Klyne told us, these bills are related but quite distinct. Even the measures that are similar are drafted differently and contain substantial policy differences, such as Bill S-15’s lack of prohibitions on the possession and transport of reproductive materials, its lack of prohibition of elephant rides, its lack of potential provincial licensing of performances for entertainment and the availability of enforcement mechanisms for conditions of licence.

In addition, Bill S-241 is far broader than Bill S-15, covering over 800 wild species, including big cats, bears, wolves, sea lions, certain monkeys and dangerous reptiles, as well as a mechanism to add and remove wild species from the bill’s application. As well, Bill S-241 contains sentencing measures providing for the relocation of wild animals involved in captivity offences, with costs, in a manner analogous to the seizure and disposition of property.

Importantly, Bill S-241 also contains a complex framework for “animal care organizations,” allowing zoos meeting the highest standards and other criteria to breed and import the many wild species contained in Bill S-241 but not Bill S-15.

To illustrate in plainer terms, Bill S-15 is 9 pages long and Bill S-241 is 29 pages long. We would know they are very different just by weighing them.

It is important to consider some of these differences as our debate and committee process proceeds in order to hopefully pass the best possible bill.

I turn now to my third point on Bill S-15: the bill’s constitutionality. Senators, in my view, this bill is a straightforward application of the federal criminal power regarding the prevention of animal cruelty and the protection of public safety, and to a lesser extent, the federal trade and commerce power over international trade.

On this point, I refer senators to a letter commenting on Bill S-241 and Bill S-15 received by the Legal and Constitutional Affairs Committee from six law professors across the country, organized by Professor Angela Fernandez and Krystal-Anne Roussel, Research Associate in Animal Law at the Faculty of Law, University of Toronto. That letter states:

The Supreme Court has repeatedly emphasized that the criminal law power is the most expansive and flexible of Parliament’s legislative powers. In this case, no expansive definition of criminal law is required to support the validity of this law. The Act’s matter – prohibiting and penalizing unethical and dangerous conduct – falls squarely within the traditional scope of the federal criminal law power.

Senators, I am sure that the Legal and Constitutional Affairs Committee will welcome any submissions on this matter. I believe our committee is an appropriate forum, though not the only valid committee, to study a bill to prevent animal cruelty using Canada’s criminal law.

[Translation]

Colleagues, I’ve come to my last point: the road leading to this bill being adopted. As Senator Klyne said in his speech on Bill S-15, the parliamentary process of passing government legislation on wild animals in captivity was slow and difficult, especially when it came to private member’s bills from the Senate or the other place.

The Senate has been studying bills on the captivity of elephants and great apes since the end of 2020. Bill S-241 was the bill that was most debated in the Senate at second reading stage in the previous Parliament with 17 speeches and more than five hours of debate over a period of 14 months. Before that, the passage of the bill on the captivity of whales was the longest legislative process in the history of Parliament; it took three and a half years.

However, despite what appears to be broad support for enhanced protection of wildlife in captivity, senators have not yet had the opportunity to hear testimony from scientists, accredited zoos or non-governmental animal protection organizations about the legislation. I’m talking about Bill S-241. If there are arguments against this bill, let them be studied in committee. As with all bills, the facts must prevail and be taken into account as we proceed with amendments and the final vote.

Colleagues, I would invite you to wrap up second reading of Bill S-15 as soon as possible and refer it to our Legal and Constitutional Affairs Committee for in-depth study as a criminal law measure so this doesn’t drag on for months to come.

Section 36 of the Constitution Act, 1867, requires a majority vote in the Senate. I believe that a majority of senators have heard the calls from Dr. Jane Goodall, the Honourable Murray Sinclair, Senator Klyne and many others and are prepared to send this bill to committee. Thank you.

(On motion of Senator Martin, debate adjourned.)

[English]

Hon. Donald Neil Plett (Leader of the Opposition): I am rising on a point of order with respect to a situation we find ourselves in with the bill that Senator Dalphond was just talking about, Bill S-241, known as the Jane Goodall Act, and Bill S-15, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.

As you may recall, Your Honour, in a second reading speech on Bill S-15, the sponsor of the bill, Senator Klyne, said, “. . . Bill S-15 is essentially a piece of Bill S-241 . . . .” This was not news to anybody in this chamber, but the fact that he acknowledged it was appreciated. He went on to say that Bill S-241 “. . . contains the policies in Bill S-15 . . . .” and:

I understand the government is open to some changes —

— to Bill S-15 —

— with the benefit of evidence presented on this bill and Bill S-241. . . .

And then, later in his speech, Senator Klyne said that, “. . . the government is open to potential amendments with the benefit of evidence presented on Bill S-241.”

Your Honour, that places this chamber in an unusual position, where the same senator has introduced two bills of which the second is a piece of the first, and yet he has not withdrawn the original bill. His reasoning is because this will permit committee testimony on Bill S-241 to inform amendments to Bill S-15.

According to rule 10-9, it is not permissible to introduce a new bill in the Senate with the same object as a bill that has already been passed or rejected during the same session. Bill S-15 and Bill S-241 have the same object as noted by the sponsor when he said in his second reading speech that Bill S-15 is essentially a piece of Bill S-241.

Similarly, rule 5-12 deals with texts of motions that are identical and reads:

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.

Bill S-241 has been adopted at second reading, while Bill S-15 is still at that stage. I understand it is not clear if rule 10-9 and rule 5-12 refer to the decision at third reading when they mention the term “decision of the Senate.” However, I mention these rules because I firmly believe the underlying principles of both of them demonstrate that the situation we have before us should not be permitted.

Rules 5-12 and 10-9 are designed to prevent redundancy in Senate business, uphold the integrity of the legislative process and ensure the orderly conduct of our deliberations.

Rule 5-12 focuses on motions within the Senate and prevents the Senate from revisiting the same issues repeatedly in a single session, ensuring that the Senate’s time and resources are used efficiently and that its proceedings move forward constructively.

Rule 10-9 prevents a new bill with the same objective as one that has been either passed or defeated from being introduced in the Senate again for the same reason. This would be an inefficient use of the Senate’s time and resources.

Even if you would rule that the duplication we find before this chamber today in Bill S-15 and Bill S-241 does not fall within the specific application of rule 5-12 or rule 10-9, I believe they should be governed by the same principles of preventing redundancy, upholding the integrity of the legislative process and ensuring the orderly conduct of our deliberations.

Allow me to briefly explain. Firstly, the strategy of maintaining a focus on Bill S-241 for the sole purpose of informing amendments to Bill S-15 raises significant concerns regarding procedural efficiency and redundancy. The core of the legislative process in any parliamentary system is to deliberate and advance laws that address the immediate needs and interests of society.

When a bill such as Bill S-241 is kept active without any intent of direct advancement, it not only diverts the attention of senators from more pressing matters, but it also misallocates valuable resources. This inefficiency becomes more pronounced when considering that the Senate’s time and capacity of its committees are finite with each bill requiring a considerable investment of time for discussion, testimony and analysis. Consequently, insisting on using Bill S-241’s committee hearings as a mechanism to indirectly amend Bill S-15 will impact the progress of other bills.

While the purpose behind parliamentary scrutiny of every other bill is to determine whether it should become law, that purpose does not exist with Bill S-241. The sponsor has openly admitted that the bill has been superseded by Bill S-15. This, Your Honour, is like an old car which is only good for used parts. The sponsor wants the committee hearings to see if there is anything we can unbolt from Bill S-241 and attach to Bill S-15. This is not acceptable parliamentary practice.

Committee hearings are crucial for scrutinizing the details of legislation, calling upon experts and hearing stakeholder testimonies to ensure the proposed laws serve the public interest effectively. Since both Bill S-241 and Bill S-15 cover similar ground, holding separate hearings for each will unquestionably result in redundancy. Witnesses will be called to testify twice on the same issues, committee work will be duplicated with members needing to review similar evidence twice and staff will spend additional time preparing for hearings and treading familiar territory.

With respect, this is an absurd way for this chamber to conduct its operations. It not only strains the resources of the Senate but also those of the individuals and organizations involved, potentially detracting from the thorough examination of other legislative matters that require our attention.

My office has already had to field a number of inquiries from stakeholders who are confused about what is going on. They do not know if they should be speaking to Bill S-15 or Bill S-241 or both. They don’t understand why they are going to have to make their case twice and what happens if they only testify to one bill and not the other. They don’t understand, and, Your Honour, I don’t understand. It simply makes no sense.

Secondly, the strategy of keeping Bill S-241 active, even though it has been superseded by Bill S-15, poses significant challenges to the integrity of our legislative proceedings. Clarity and transparency are foundational pillars of democratic governance, ensuring that the legislative agenda is understandable and accessible to both members of the legislative body and the public they serve.

When a bill is publicly acknowledged by its sponsor as having been replaced by another bill but is still studied in committee hearings, it introduces ambiguity into the legislative process. This ambiguity creates confusion about the legislative priorities and the status of various proposals, potentially undermining the confidence in the legislative body’s ability to manage its agenda effectively and transparently. Maintaining an active focus on Bill S-241 for the indirect benefit of Bill S-15 complicates the legislative landscape by blurring the lines between the objectives of distinct bills.

This obscures the direct roots of legislative action, making it more difficult to follow the progress of specific legislative initiatives and understand their potential impacts. It leads to a more convoluted legislative process where the direct line of sight between the legislative intent and the legislative action becomes obscured.

Finally, Your Honour, the decision to use Bill S-241’s committee hearings as a platform for influencing amendments to Bill S-15 sets a potentially problematic precedent for future legislative processes. This approach introduces a mythology where the primary function of a bill can extend beyond its direct legislative intentions to serve as a tool for affecting other legislation. In fact, for Bill S-241, this is the only purpose. There is no parliamentary precedent for this, and I find this troubling, Your Honour.

While this strategy might seem tactically advantageous to Senator Klyne right now, it could lead to long-term implications for the Senate’s operational norms. Future senators might see this as a validated tactic and lead to an increase in bills introduced not solely on their own merits but as strategic instruments for other legislative goals. This will inflate the number of bills in committee, further congesting the legislative agenda and complicating the prioritization of genuinely urgent legislation. The cumulative effect would be a legislative environment where the clarity of legislative intent and the directness of legislative action are diminished, as bills could increasingly serve dual purposes and extend beyond their explicit objectives.

Your Honour, it is well known that I am the critic of both Bill S-15 and Bill S-241. However, I trust that you will understand that my point of order is not motivated by my opposition to these bills — although I readily admit that I oppose these bills. It is motivated by my opposition to bad parliamentary practice and precedent, which has become more and more common.

To be clear, Your Honour, I am also not questioning the sponsor’s right to introduce Bill S-15. In fact, after the Parliamentary Budget Officer confirmed that Bill S-241 was going to require the Department of Environment and Climate Change Canada to undertake activities outside of its existing mandate, which would impose additional costs on the public purse, it was clear — and, I’m sure, to Senator Klyne — that Bill S-241 would, in fact, require a Royal Recommendation. The sponsor needed to do something. So he chose to go the route of convincing the government to introduce a government bill — and good on him. I take no quarrel with this decision.

However, permitting Bill S-241 to simultaneously continue as a lame duck piece of legislation — which has no purpose other than to try to influence another bill before the Senate — is a harmful and dangerous precedent. It should not be permitted, Your Honour. It hinders the orderly conduct of Senate business. It introduces redundancy into our deliberations, and erodes the integrity of the legislative process. This is further compounded by the fact that Bill S-241 was referred to three different committees.

While the Senate has not, to my knowledge, faced a similar situation, the House of Commons had to deal with this issue a few times. I refer you to the Speaker’s decision on May 11, 2022, when he said:

Therefore, the question for the Chair is, should Bill C-250 be allowed to proceed further in the legislative process at this time? In the Chair’s opinion, it should not be allowed. The House should not face a situation where the same question can be cited twice within the same session, unless the House’s intention is to rescind or revoke the decision.

Government and private members’ bills belong to different categories of items and are governed by different sets of rules and precedents. Standing Order 94(1) provides the Speaker with the authority to “make all arrangements necessary to ensure the orderly conduct of Private Members’ Business”.

Applying this authority, I am ordering that the status of Bill C-250 remain pending and that it not be called for its second hour of debate. This leaves open the possibility that Bill C-250 could be reinstated in the next session, pursuant to Standing Order 86.1, should by any chance Bill C-19 fail to be enacted in this session.

In a following decision on September 20, 2022, after Bill C-19 was adopted, the Speaker ordered the similar Bill C-250 to be discharged. I believe that Chapter Two of the Rules of the Senate gives you, Your Honour, the same power and authority to make all arrangements necessary to ensure the orderly conduct of Senate proceedings.

Your Honour, I am, therefore, asking — in order to address this unprecedented situation, and ensure that the Senate can perform its work in a straightforward, efficient and productive manner — that you order that either Bill S-241 be discharged from consideration by the committees and withdrawn, or Bill S-15 be withdrawn. Alternatively, if you rule that you do not have the power and authority to order the withdrawal of a bill, I would ask that you suspend all committee work on Bill S-241 until a final decision — at third reading — is taken by the Senate on Bill S-15, and that, should Bill S-15 be adopted, Bill S-241 be discharged and dropped from the Order Paper.

Thank you, Your Honour.

Hon. Marc Gold (Government Representative in the Senate): Thank you, Senator Plett, for raising the point of order. In my respectful view, Your Honour, the two bills are different and, therefore, do not engage either the rules or the principles to which my honourable colleague referred. As has been mentioned on several occasions, Bill S-15 takes a very different legislative approach than Bill S-241 does.

Colleagues, there have been over 80 bills introduced in this chamber that are sponsored by senators since the start of the Forty-fourth Parliament. And there are many good ideas contained in these bills. It would be against our practices to prevent a government bill — that seeks to advance an idea that has been proposed by one of our colleagues — from being properly debated, studied and ultimately voted on in this chamber.

As we know, many senators have introduced bills here with the purpose of encouraging the government to bring forward its own legislation that addresses the important public policy issues that are contained in Senate public bills. For example, Bill C-48, An Act to amend the Criminal Code (bail reform), which received Royal Assent on December 5, 2023, included provisions from Bill S-205, An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders), sponsored by Senator Boisvenu. That has passed the Senate and is now before the House of Commons Standing Committee on the Status of Women.

During the Forty-second Parliament, Bill S-238, sponsored by Senator MacDonald, on the importation and exportation of shark fins, was at the report stage in the other place. The government determined that this merited support, and it was incorporated as part of Bill C-68, which deals with amendments to the Fisheries Act. This amendment essentially copied the exact language from Senator MacDonald’s Bill S-238.

To turn now to the specific procedural question, which is part of what is generally considered the similar question principle, I respectfully submit that Bill S-15 takes a substantially different approach to creating a framework for protecting animals in captivity. Indeed, the government has been working diligently on this for some time now. The Minister of Environment and Climate Change’s mandate letter included a specific commitment to introduce legislation to protect animals in captivity.

As we know, our colleague Senator Plett — in an article published in The Hill Times on October 4, 2023 — expressed his reservations about Bill S-241, and called upon the government to bring forward its own legislation after “. . . proper consultations with zoos, provincial animal welfare authorities, and stakeholders.” I appreciate his comments that he does not take issue with the fact that the government did this.

The Government of Canada closely followed this chamber’s deliberations on Bill S-241. The government has heard some of the concerns that are related to that bill, including from the stakeholder community. As a result, the government responded with a different approach in Bill S-15. Specifically, Bill S-15 addresses the concerns of some senators around the constitutionality of Bill S-241 with respect to the federal government legislating in provincial jurisdiction. Bill S-15 creates a permitting scheme that is delegated to provincial and municipal officials in a manner that reflects the division of powers in our Constitution.

Second, Bill S-15 takes a narrower application of the number of species that are governed under the scheme in order to address the concerns that were addressed by several stakeholders.

This alone, I submit, adequately demonstrates the substantive differences between Bill S-15 as compared to Bill S-241 in terms of the legislative approach that is being taken.

Now, procedurally, the principles to which Senator Plett referred relate to two substantially similar questions being before the chamber at the same time.

A Speaker’s ruling from June 18, 1985, explained that the text of motions must be identical for the same question rule to apply. Referring to rule 5-12, the Speaker ruled that, “Our parliamentary jurisprudence requires that we have in hand identical texts for rule 47 to apply.”

Another Speaker’s ruling from November 19, 1998, further clarified this point when it was decided that the same question rule would be applied because the motion was, “. . . virtually word-for-word identical . . . .”

The precedents clearly shows that a substantially similar question has been defined as accomplishing the same objective in the same manner.

I submit that Bill S-241 and Bill S-15 are not substantially similar, and Bill S-15 should not be found to invoke the rule of anticipation, nor should Bill S-241 be deemed similar — notwithstanding the arguments of Senator Plett — and, indeed, this is a practice that is rarely invoked, as experienced colleagues will know, in the Senate or indeed in the other place. Bill S-15 should clearly be allowed to proceed. A finding otherwise would put a chill on the ability to legislate in this chamber on any matter that is addressed in any of the 80 bills sponsored by senators that are currently before this chamber or in the other place.

As you remind me regularly in Question Period, colleagues, the government does not have a monopoly on all good answers or good ideas. It stands to reason, therefore, that the government should be able to bring forward legislation to address matters sponsored by senators providing that they take a different approach to address the subject matter of a Senate public bill. Any other approach would run counter to our long-standing practice of allowing fulsome debate in this chamber. Therefore, Your Honour, I would submit that Bill S-15 should be allowed to proceed on the Senate Order Paper and that Bill S-241 remain as well. Thank you very much.

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.

[Translation]

Hon. Pierre J. Dalphond: In your deliberations on this important issue of what makes a bill identical to another bill, I invite you to read the speech given by the critic of Bill S-241 in June 2023. You’ll see how he describes Bill S-241, how he talks about the accreditation of zoos across the country and how these accreditations will be based on American standards.

None of this can be found in the bill before us. Three quarters of what I just said in this speech would be irrelevant. If the bill is identical, and you allow Bill S-15 to proceed, I’m sure Senator Plett won’t give the same speech, which proves that it’s not the same bill.

I encourage you to read it. It’s getting late, so I won’t quote you long excerpts about zoo accreditation, but none of that applies here. Thank you.

[English]

The Hon. the Speaker pro tempore: The point of order will be taken under advisement and a ruling will be forthcoming. Thank you.

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate), pursuant to notice of February 7, 2024, moved:

That, when the Senate next adjourns after the adoption of this motion, it do stand adjourned until Tuesday, February 13, 2024, at 2 p.m.

Hon. Senators: Agreed.

(On motion of Senator Martin, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Omidvar, seconded by the Honourable Senator Dasko, for the second reading of Bill S-279, An Act to amend the Income Tax Act (data on registered charities).

An Hon. Senator: Question.

An Hon. Senator: On division.

(Motion in amendment of the Honourable Senator Gold agreed to, on division.)

Some Hon. Senators: Agreed.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Robert Black: Honourable senators, I stand before you today to support the long-term viability of the Canadian produce industry and an issue that directly affects the heart of our nation — our farmers and producers.

I’m proud to rise and speak to Bill C-280, An Act to amend the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act (deemed trust — perishable fruits and vegetables).

This critical piece of legislation holds one of the keys to supporting Canada’s agricultural sector as it works tirelessly to feed not only our nation but also the world.

As an “agvocate,” I’m happy to see such a bill come to us — one that addresses discrepancies that have long left important members of Canada’s agricultural sector financially disproportionate.

At the outset, I would like to state that this is a finance bill. It is about bankruptcy protection. I want to assure my colleagues that I am not an expert on the Bankruptcy and Insolvency Act. However, I rise to speak to the need for this protection for the agriculture industry and this sector.

At the core of this bill lies the protection of perishable fruits and vegetables, which includes fresh and time-sensitive produce that can spoil quickly.

The bill proposes the creation of a deemed trust that ensures farmers and producers are given priority over the proceeds from the perishable goods they supply to buyers or creditors in the supply chain when buyers become insolvent or bankrupt. This essential safeguard proposes to protect our farmers’ interests during times of financial instability.

As we all know, supply chains are the intricate web that connects farmers and producers to consumers. In a vast country like ours, these supply chains play a vital role in sustaining our economy and ensuring the seamless flow of goods from farms to markets and, eventually, to our tables.

Agriculture, being a cornerstone of this network, not only caters to our domestic needs but also upholds our international obligations in the global food market.

The importance of a robust agricultural sector to our nation’s food security cannot be overstated. In the context of an increasingly interconnected world, disruptions in the supply chain can have far-reaching consequences.

The collapse of a single link in this chain, caused by a buyer’s or a creditor’s financial troubles, can have severe repercussions. It can lead to financial distress for our farmers, destabilize the market, cause our farmers to bear the burden of others’ bankruptcies without protection and compromise food security, not just within our borders but also for those who rely on our agricultural exports around the world.

Bill C-280 serves as a lifeline for farmers facing financial constraints, which are only amplified by the unpredictable nature of their profession. Our dedicated farmers contend with unpredictable weather patterns, rising production costs and stiff international competition. Amidst these challenges, the COVID-19 pandemic brought forth additional hurdles, like reduced demand, supply chain disruptions and labour shortages.

Supporting this bill is a recognition of their resilience and an affirmation of our commitment to easing their burden during difficult times.

As my honourable colleague sponsoring the bill in the other place noted, the worsening recession, inflationary pressures, increased prices, tax amendments and the lingering impacts of the COVID-19 pandemic have only increased the vulnerability of the produce sector.

This is underlined by the lack of critical financial protections available to Canadian produce growers for the losses they suffer as a result of an insolvent buyer.

While the existing mechanisms within the Bankruptcy and Insolvency Act may be suitable for the wider agriculture industry and other sectors, they do not provide a workable mechanism for when a fresh produce buyer becomes insolvent.

I was delighted to see, after years of requesting this protection, the bipartisan support this bill has garnered in the other place. In a political landscape often marked by division, it is a testament to the understanding that the welfare of our farmers and the security of our food supply transcend politics.

This underscores our collective responsibility as lawmakers to address critical issues that impact the livelihoods of those who put food on our tables three times a day, each and every day.

It is important to emphasize that the passage of Bill C-280 comes at no cost to the Canadian people. Supporting our farmers through this bill is an investment in the sustainability and resilience of our agricultural sector.

Ensuring that perishable goods are protected by a deemed trust is not an impediment to creditors or buyers; instead, it is an assurance that our farmers’ hard work and dedication will not go to waste — pun intended.

Might I add, colleagues, that the sponsor in the other place also noted that:

The financial protection established by Bill C-280 would reduce losses in the sector and lead to increased economic activity in Canada of $200 million to $235 million per year, increased value added in the Canadian economy of $104 million to $122 million per year, increased employment by more than 1,200 full-time jobs, and increased wages for Canadian workers by $59 million to $69 million per year.

What I take from this economic analysis, colleagues, is that Canadians have nothing to lose from this bill and much to gain.

In fact, the sponsor further noted that this bill would in fact save Canadian families and consumers anywhere between 5% and 15%, which could possibly save Canadian families between $300 million and $900 million on their annual fresh fruit and vegetable purchases.

This is good news during this time of rising food costs for all Canadians.

Agriculture is not just an industry; it is a way of life deeply ingrained in the fabric of our nation. The legacy of our farming families spans generations, with the passing down of knowledge and expertise from one era to the next.

By supporting this bill, we are protecting and nurturing this heritage, ensuring that future generations are inspired to carry forward the torch of farming excellence and not the possibility of losses due to others’ insolvency issues.

In conclusion, let us take this moment to demonstrate our unwavering support for Canada’s farmers and producers. The quick passing of Bill C-280 represents an opportunity to show the world that we stand united in our commitment to those who feed our nation and contribute to global food security.

Protecting perishable fruits and vegetables through a deemed trust not only is a practical measure to secure our supply chains and food security but also shows appreciation and support for our farmers’ invaluable contributions.

Supporting Bill C-280 will send a resounding message that here, in this chamber of sober second thought, and in Canada, we again recognize the critical importance of supporting our farmers, our producers and our processors. Their hard work, dedication and sacrifices deserve nothing less. By doing so, we strengthen the foundation of our agricultural sector and sow the seeds of prosperity for Canada’s future.

Thank you, colleagues, for your attention. I urge you to join me in supporting Bill C-280 for the greater good of our farmers, our food security and for Canada!

Thank you. Meegwetch.

(On motion of Senator Clement, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Gerba, seconded by the Honourable Senator Klyne, for the second reading of Bill C-282, An Act to amend the Department of Foreign Affairs, Trade and Development Act (supply management).