Wednesday 17 April 1996
Legislative Assembly Oath of Allegiance Act, 1995, Bill 22, Mr Agostino / Loi de 1995 sur le serment d'allégeance des députés à l'Assemblée législative, projet de loi 22, M. Agostino
Order and decorum
Conduct of business
STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY
Chair / Président: Arnott, Ted (Wellington PC)
Vice-Chair / Vice-Président: Hastings, John (Etobicoke-Rexdale PC)
*Arnott, Ted (Wellington PC)
*Bartolucci, Rick (Sudbury L)
Boushy, Dave (Sarnia PC)
Cooke, David S. (Windsor-Riverside ND)
DeFaria, Carl (Mississauga East / -Est PC)
Froese, Tom (St Catharines-Brock PC)
*Grimmett, Bill (Muskoka-Georgian Bay / Muskoka-Baie-Georgienne PC)
*Hastings, John (Etobicoke-Rexdale PC)
Johnson, Ron (Brantford PC)
*Miclash, Frank (Kenora L)
Morin, Gilles E. (Carleton East / -Est L)
*O'Toole, John R. (Durham East / -Est PC)
*Silipo, Tony (Dovercourt ND)
*Stewart, R. Gary (Peterborough PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Clement, Tony (Brampton South / -Sud PC) for Mr DeFaria
Gilchrist, Steve (Scarborough East / -Est PC) for Mr Froese
Marland, Margaret (Mississauga South / -Sud PC) for Mr Boushy
Ramsay, David (Timiskaming L) for Mr Morin
Tilson, David (Dufferin-Peel PC) for Mr Johnson
Also taking part / Autres participants et participantes:
Agostino, Dominic (Hamilton East / -Est L)
Clerk / Greffière: Lisa Freedman
Staff / Personnel:
Sybille Filion, legislative counsel
Peter Sibenik, procedural research clerk, Office of the Clerk
The committee met at 1633 in room 228.
LEGISLATIVE ASSEMBLY OATH OF ALLEGIANCE ACT, 1995 / LOI DE 1995 SUR LE SERMENT D'ALLÉGEANCE DES DÉPUTÉS À L'ASSEMBLÉE LÉGISLATIVE
Consideration of Bill 22, An Act to provide for an Oath of Allegiance for the Members of the Legislative Assembly / Projet de loi 22, Loi prévoyant le serment d'allégeance pour les députés à l'Assemblée législative.
The Chair (Mr Ted Arnott): This meeting of the standing committee on the Legislative Assembly will be called to order. When we sat last week, we were dealing with the private member's bill in the name of Mr Agostino, Bill 22, An Act to provide for an Oath of Allegiance for the Members of the Legislative Assembly.
We were considering an amendment that was put forward by Mr Gilchrist verbally; it had not been presented to the clerk through the normal procedure in writing. Mr Gilchrist is not here at the moment to put forward his amendment. Are there any members of the Conservative Party who would like to speak to that amendment? How shall we handle this?
Mr Tony Clement (Brampton South): Can you read out the amendment again, just for the purposes of clarity?
Mr Dominic Agostino (Hamilton East): On a point of order, Mr Chairman: Can you rule on this? The amendment had not been properly put forward. Therefore, it hadn't been properly moved. Therefore, I would argue that it is not in front of this committee to be debated at this point.
The Chair: Technically, I think you're correct. In the absence of Mr Gilchrist at the present time -- I understand he's coming, but I really have no alternative but to agree with you and rule in your favour.
Are there any other amendments any members of the committee would like to put forward to the bill? Seeing none we shall proceed with the vote on the bill.
Mr Clement: Is there any further discussion we would have on this, or is it just on amendments?
The Chair: There are no amendments. We've had extensive discussion.
Mr Clement: On the main motion.
The Chair: Yes.
Shall sections 1, 2 and 3 of the bill carry?
Interjection: Recorded vote.
Grimmett, Ramsay, Silipo, Stewart.
The Chair: The motion is carried.
Shall the title of the bill carry? Carried.
Shall the bill carry? Carried.
Shall I report the bill to the House? Agreed.
The bill is reported to the House.
Congratulations, Mr Agostino.
ORDER AND DECORUM
The Chair: The next item of business is a report of the subcommittee:
"Your subcommittee met on Tuesday, April 16, 1996, and agreed to the following:
"(1) Upon the completion of Bill 22, An Act to provide for an Oath of Allegiance for the Members of the Legislative Assembly, the committee will commence consideration of the issue of order and decorum."
Would someone like to move the adoption of the subcommittee report?
Mr Clement: I would so move. Just for the point of clarity, I would like to also suggest that the reference here about order and decorum is with relation to Mr O'Toole's original motion, so it does encompass all aspects of the original motion that had been discussed by this committee, that was moved by Mr O'Toole.
The Chair: I don't see any problem with your suggestion. You've moved the adoption of the report. All in favour of the adoption of the subcommittee report? The motion is carried.
Mr O'Toole is not here at the present time. Is he coming? Does anyone know? No one knows. I think we should at this time then turn to our researcher, who has presented materials to all members of the committee for help on how we're going to discuss this issue. Mr Peter Sibenik.
Mr Peter Sibenik: If you have your briefing binder before you, it contains a list of materials in a broad subject area of order and decorum. It also contains a little bit of information on naming and suspension of members specifically.
I'm going to begin my briefing by giving you a bit of a historical overview on naming in Ontario. The rule we have right now in standing order 15 has been around for quite a while; I'd say it's been there for about 25 years. I'm still checking into changes that might have happened before 1971 and I'll be in a position to report to you by the next time we meet on this particular issue.
The number of members who have been named in the House has increased over the course of that time period. If you turn to tab 7 in the briefing binder, you'll see a breakdown I have over the number of members who have been named in the Legislative Assembly of Ontario in the period from 1970 to 1996, or to the part of 1996 we're at at present. You'll see that in the 1970s there were 11 members who were named, in the next decade 31, and in this decade to date there have been 28. The average number of members named per year has increased, as you see in the figures that are beside the figures I have just mentioned. Looking at the more recent history of the number of members who have been named, you can see what the breakdown is from 1990 to 1996.
In the course of the 1970s, the typical reason for a member being named was the fact that the member refused to resume his seat. However, from the 1980s forward it was more the case that members were named because of their refusal to retract unparliamentary language, and that still is the most common reason why members are named in the House.
Various Speakers have handled the issue of order and decorum in different ways. Standing order 15 represents, for want of a better phrase, the heavy hand. It's usually preceded by a number of warnings, and the Speaker generally likes to use less ominous tools to ensure that order is restored in the House. I think it's fair to say that the Speaker uses the least severe measures to restore order. Typically, a Speaker in previous parliaments has used a warning, a caution, perhaps even an encouragement to a member or to the House generally to use, for example, temperate language or for the member to cooperate in the restoration of order. There are many such instances. When you have some time you can take a look at tab 4; there are any number of examples in that particular tab as to how the Speaker has used warnings and cautions.
Different Speakers have also said that differences between members should be resolved by members through negotiations or perhaps through rule changes. One of the precedents in tab 4 indicates as much. Speakers have said that all members are honourable, and that's one of the cornerstones of our parliamentary system, that a member should not accuse another member of lying. It's, in a sense, the other side of the coin to the privilege of freedom of speech that members enjoy.
Speakers have indicated, with respect to unparliamentary language, that there's no list of parliamentary or unparliamentary terms. It just doesn't go that way. It's in the judgement of the Chair to determine whether something is in or out of order with respect to unparliamentary language or other matters.
The last vehicle a Speaker might use in order to restore order in the chamber is to adjourn the House for grave disorder, and we have a standing order on that.
I should indicate that order and decorum issues have been considered by this standing committee in previous parliaments. With respect to the 35th Parliament, the standing committee on the Legislative Assembly looked into the entire matter of electronic devices being used in the chamber and in committees. It looked into the issue of sexist and demeaning language. It also looked into the issue of the wearing of buttons and ribbons and the dress code. All of these instances are recorded in tab 5 of the briefing materials.
I might indicate that on the occasion of this standing committee's investigation on that particular issue -- that is, with respect to buttons and dress code -- Speaker Warner appeared before that particular committee and indicated at that time that there were several reasons for the elevated level of tensions in the House. First of all, he indicated that there was a large turnover of members in recent parliaments, resulting in a loss of continuity and stability. The second thing he said is that being an MPP these days is now a full-time job, so that members are more completely involved in the parliamentary system than they were a few generations ago. The third thing he indicated is that the presence of television and an audience of perhaps 400,000 may have changed some of the dynamics within the chamber.
He made several other suggestions and observations as well. He indicated that perhaps a member who is named should be required to apologize the next day in the House. Perhaps that's a way of getting around certain difficulties. He indicated that the best discipline is self-discipline as well, and he went so far as to suggest that the caucuses could exercise a little bit more authority in that regard. He indicated that he personally was a little reluctant to name members, and that's because he was afraid of what might happen afterwards: members rising up on a point of order after a certain member had been named, saying: "Look, you forgot about all these other members whose behaviour has been on the same level as the member you named. Why didn't you name those members as well?" He felt it was a bit of a slippery slope and it's better to let the caucuses impose this self-discipline than to engage in wholesale naming of members.
He also indicated that it's perhaps better to address the root problem; that is, how members can be more productive. He suggested that perhaps if the committee system were strengthened, members would feel they were more in tune with what was happening with respect to our parliamentary system.
I might indicate that in the course of the 1980s, we had a fairly active procedural affairs committee. That is the predecessor committee to this particular committee. I'm sure that particular committee had a few investigations it made; however, I'm just beginning to get into that. In a sense, I'm working backwards, and I'll be in a better position to look into that the next time we meet.
I've also got a section in this particular binder on other parliamentary jurisdictions. Different jurisdictions have different approaches to how they handle members who refuse to be brought to order. In some jurisdictions, a Speaker will issue a simple order to withdraw to a particular member, without naming the member. In other jurisdictions, there might be a fine attendant to a member being named. In the course of the committee's discussion on a previous occasion, I understand Saskatchewan was mentioned, that it's $155 a day, that kind of fine. There could also be a suspension for a specified period if the use of force is required. In addition, Westminster and Australia have an interesting system whereby if a member is named on a subsequent occasion, the member receives a longer suspension. I believe in one of these jurisdictions the first suspension is five days; it increases to 20 days and then longer if it's a repeat offence in the same year. There are different approaches there that have been taken in other jurisdictions.
As I've indicated, quite a bit more briefing material could be assembled on practically every topic in the list of issues I've attached in tab 1 of the briefing binder. Abstaining from voting is of particular interest, I noticed, in the December 13, 1995, motion that was passed in this particular committee, and that is another issue I will be taking a look at.
That is the extent of my briefing here. Are there any questions members have on the materials?
Mr David Tilson (Dufferin-Peel): You mentioned other jurisdictions. If someone is named in this jurisdiction, in Ontario -- I'm looking at standing order 15 -- essentially there are two situations. One is that if a member is named, hopefully that member will voluntarily leave the Legislature, leave the assembly. The second situation, looking at clause (d), is where the Speaker calls "to the attention of the House that force is necessary in order to compel obedience and any member named by the Speaker as having refused to obey his or her direction shall...."
I suppose if the member simply becomes unruly or refuses to do something or refuses to leave, the Speaker could then declare to the attention of the House that force is necessary. Is there any provision in the standing orders that enables a Speaker to order the Sergeant at Arms to physically remove the member from the House? I don't think there is.
Mr Sibenik: In Ontario? No, there is no explicit provision.
Mr Tilson: All the Speaker can do is to make a declaration to the House that force is necessary, but that's it. The declaration is there. What happens then? Is it possible that a motion could be made that the person be physically removed? I don't know whether this has ever occurred, that a member is forcibly removed from the Legislature.
Mr Sibenik: I can't recall in recent memory where that has happened.
Mr Tilson: I can't either. Are there statistics or standing orders from other jurisdictions about where a member becomes unruly, for whatever reason, and simply won't abide by the ruling of the Speaker, either verbally or physically or whatever, or where the member has been named and simply refuses to leave? I'm interested in what other jurisdictions do with that.
Mr Sibenik: I know that in British Columbia there was a situation where the staff of the Sergeant at Arms physically removed a member from the chamber. In that particular incident, I think it was the Deputy Speaker who ordered the member to withdraw from the House for the balance of the day, and when the member refused to leave the Deputy Speaker ordered the sergeant to remove the member, and two of the staff of the sergeant then dragged the member out of the chamber. Because force was needed, the member was automatically suspended for the rest of the session. That happened in 1983.
There are very, very few instances in which this has happened in parliamentary jurisdictions. The difficulty is that their standing orders are phrased in a different way from ours. In Westminster, for example, I know it's happened, and in British Columbia. I believe it happened once in the House of Representatives in Australia, but I'm not sure. We can put together a list of these various instances and attach the standing orders.
Mr Tilson: It would be reprehensible if someone had to be physically removed from the House, for whatever reason. Hopefully that would never happen. I'm asking questions almost knowing the answer. I can't recall anywhere where this has happened in Canada. You told me something I didn't know about British Columbia.
Do you believe the Speaker in the province of Ontario has the jurisdiction to request the Sergeant at Arms to physically remove a member from the Legislature?
Mr Sibenik: I don't know the answer to that. The only person who would know is the Speaker in a proper case. It's difficult trying to interpret the standing orders, given the fact that we don't really have much precedent to work on apart from the December 1995 occurrence. It's a difficult issue to address, there are so few instances on which to work.
Mr Tilson: Unless there's something in Erskine May or I don't know what for the purposes of keeping order, I doubt very much whether the Speaker can order anybody to touch a member. I don't know. It almost may require some sort of legal interpretation. I don't even know whether it's the jurisdiction of this House or this assembly to pass such an order to physically -- I mean, if that's the case, then that ends that.
I'm really interested in whether it has happened in any other jurisdiction, and you've mentioned British Columbia, but more important, can it happen? Can a rule be instituted that says the Speaker can order the Sergeant at Arms and indeed security, if necessary, to physically remove someone from the House?
Mr Sibenik: I can't recall that there is any kind of standing order in the Commonwealth parliamentary jurisdiction that is phrased in the terms in which you have phrased it. Usually it's just a question of a standing order that outlines the duties of the Sergeant at Arms, often in a general way, and outlines the duties of the Speaker to preserve order and decorum in the House, in a general way again. I can only say that in terms of specific wording along the lines you have suggested, I don't think I've come across one case.
Mr Tilson: As to clause (d), which says, "The Speaker shall call to the attention...that force is necessary," has this section ever been imposed by any Speaker in Ontario?
Mr Sibenik: This particular provision has not really been interpreted in recent memory, to my knowledge, before the December 1995 incident. It was a very unusual situation that occurred on that occasion.
Mr Tilson: Do you have any recommendation to this committee from your research about whether there should be a standing order that says a Speaker can physically order the removal of a member?
Mr Sibenik: No, I don't really have any recommendation. It's a sensitive issue, and I'm sure members on both sides will have views with respect to that.
Mr Tilson: Indeed it's a very difficult question.
Mr Sibenik: As I said in the course of the briefing, that is not very often relied upon. The Speaker likes in most cases to rely on the least severe measures to restore order, and when something like this happens it creates a hard case. There's a famous legal expression, "Hard cases make bad law." I don't know if that has any bearing here, but it puts presiding officers in a very difficult position.
Mr Tilson: My final comment is that I interpret clause (d) as that the Speaker is elected to keep order in the House but he or she is coming to the House and saying, "I can't do anything." Obviously, the only way to keep order is to have force, and I don't think any Speaker wants to get into that. It's a tough question.
The Chair: I recognize Mr Clement.
Mr Clement: I have some specific questions. I think the answers will promote more discussion and dialogue from all members of this committee, so I hope I'm not restricting myself today or in the future if I just ask a few preliminary questions relating to this.
The Chair: Not at all.
CONDUCT OF BUSINESS
Mrs Margaret Marland (Mississauga South): Mr Chair, I have a question on a point of order. I was just waiting for Mr Tilson to finish because I thought you had my name down.
The Chair: I'm sorry, Mrs Marland. I had Mr Clement ahead of you.
Mrs Marland: That's fine. Please excuse me a second, Tony. The point of order I would like to raise with you, Mr Chairman, is that I understand you have, as per the agenda for this afternoon, already voted on Bill 22.
The Chair: We have.
Mrs Marland: It's also my understanding that a quorum was not present at that time and that nobody recognized that a quorum wasn't present.
The Chair: No one brought that matter to the attention of the Chair. That's correct.
Mrs Marland: My concern is also that the matter of the standing orders having a provision of 20 minutes to call members was not brought to the attention of the Chair either.
The Chair: That is correct.
Mrs Marland: My point of order is that I know there has been precedent where a vote has been taken a second time in a committee because the first vote was taken without quorum present and it wasn't brought to the attention of the Chair.
The Chair: Does anyone wish to speak to this point of order?
Mr Tony Silipo (Dovercourt): I have to confess that I don't know, first of all, what the provisions are around quorum. Is there a fixed number for committees?
The Chair: I understand eight is a quorum for a committee of this size, since we've got our larger committees. Mrs Marland is quite correct that the Chair was not reminded that a quorum was not present. No member of the committee suggested that a 20-minute recess be taken to allow the absent members to come to the committee, so the vote was held and Mr Agostino's bill carried.
Mr Steve Gilchrist (Scarborough East): Mr Chair, just a clarification on this point of order: Can a meeting be convened without a quorum present?
The Chair: I think the convention is that if three members, one representing each party, are present and the Chair, the meeting can be started. I don't know if that's the letter of the Legislative Assembly Act, but that's the convention around this place. We waited about five minutes after routine proceedings were completed, and there was a request by a member of the Legislature to initiate the meeting, and we started.
Mrs Marland: That's the reason I'm raising the point. I believe that you did not have a quorum, because routine proceedings had not been completed.
Mr Frank Miclash (Kenora): They were.
Mr Silipo: Mr Chair, on this point of order: As you consider your ruling, I'd suggest to you that you really have no choice but to simply let the proceedings continue for a couple of reasons.
First of all, we were clearly beyond routine proceedings. Mr Bartolucci, who now is here in the committee, was actually speaking on Bill 34 at the time that we were dealing with the vote, so we were clearly in the Legislature way beyond routine proceedings; we were into orders of the day. The committee, on a timely basis, was very much within its purview to be meeting and therefore dealing with the business at hand.
Second, there were clearly representatives from each of the three caucuses here including, as I understand it, Mr Clement, who is the government whip on this committee, and there were no objections. I don't know what the number of members here was. I don't know whether or not there was technically a majority of members here, but I would suggest to you that's irrelevant and that we proceeded with all good faith. There was no objection from any members of the committee. A quorum was seen by the Chair, because he called the committee to order and began proceedings. Unless someone objects at the time, you can't go back and undo it.
I would suggest, Mr Chair, that's really the only ruling you could give. We proceeded in good faith, with a quorum being seen by the Chair at the time, no one objected from the three caucuses fully represented here and we dealt with the business that was on the agenda.
Mr Tilson: On the same point of order Mr Chairman: The difficulty, Mr Silipo, is that the Chair has now admitted, it appears, that there was not a quorum, that he didn't see a quorum. I'm saying this with due respect, for whatever reason the proceedings continued, but the Chair is now admitting that there was not a quorum. If there's not a quorum, anything that has happened since that time is null and void, because we can't sit. It's as simple as that.
If the Chair now acknowledges that perhaps there was an error for whatever reason, and I don't intend to get into a debate with the Chairman because I always lose those, that there was not a quorum, and he has -- I believe the Chair has admitted that.
The Chair: I don't believe I said it quite that explicitly, Mr Tilson, although in my recollection, and given the fact that I think we have the names of the people who were here, there may not have been a quorum present -- unfortunately, the convention of this place is that if it is not brought to the attention of the Chair, it is not normal for the Chair to declare a lack of a quorum.
Mr Tilson: That may be but the difficulty is, I believe that you have now admitted it. At least that is my interpretation of what you have just said.
The Chair: The clerk has brought to my attention standing order 117(c):
"If at any time during the meeting of a standing or select committee the Chair of the committee is advised by a member of the committee that a quorum is not present, the Chair shall, upon determining that a quorum is not present, suspend the proceedings of the committee."
So the two conditions are (a) the quorum not being present, and (b) its being brought to the attention of the Chair by a member of the committee.
Mr Tilson: The difficulty is that you know, Mr Chairman, for these proceedings to continue to proceed, there must be a quorum. I believe you have admitted that at the time there was not a quorum and you, in your role of Chair, with due respect, shouldn't call the meeting unless there is a quorum. You have now admitted that you knew there was not a quorum, therefore I would submit to you for your ruling -- I guess the point of order is Mrs Marland's, but I'm supporting her -- that because of that, these proceedings are null and void because you knew at the time there was not a quorum, and if you knew that, we cannot conduct these proceedings.
Mr Gilchrist: On the same point of order, Mr Chair: Recounting, in my capacity as Chair of another committee, my clerk has always advised me that I could not start a meeting until a quorum was present. If you can show me that is not the convention, then I certainly will defer, but I must suggest that it is both the practice in public accounts, where I am not the Chair but I am the subcommittee rep, and it has absolutely been the convention on every day that resources development has met, on the explicit undertakings of our clerk, that I could not call the meeting to order until there was a simple majority present. There were many days that, accordingly, the meeting did not start on schedule as a result of the non-attendance of eight members, including myself.
Mrs Marland: Just to continue with my point of order, Mr Chair, I witnessed Mr Silipo coming across the floor of the House this afternoon, but first of all, let me back up. I'm not a regular member of this committee, as you are aware. I don't know if you are, Mr Silipo, but obviously I'm not. I was watching the Chair in terms of when the members in the chamber were going to be leaving to start this committee. I knew that routine proceedings were delayed, as all of us know, because at one point there was a 30-minute bell delay. I said to the Chairman, "We won't be starting until routine proceedings are complete," and at some point I recall you coming to the middle of the aisle in the chamber and saying to the Chairman, "Come on, let's get going," and at that point we were not in routine proceedings, you will agree.
Mr Silipo: Yes, but so what? We were beyond routine proceedings, Mr Chair, when the committee started to meet.
Mrs Marland: Just follow my point. At that point or shortly within that, you walked out the door of the chamber and shortly after the Chairman left too, but because we still were not in routine proceedings and because there was a reason that I was staying there, which was to see Bill Pr56 be introduced as a committee report, which is a bill on graphic designers for Ontario, I wanted to remain in the House. That's why I'm so sure about the timing of this and of the point that I'm making. You may well say that Mr Bartolucci was on the television monitor, but I would like you to know that from the time routine proceedings started, I proceeded directly here because I wanted to be in the House for the graphic designers bill, and I proceeded directly here to find that a vote had taken place.
Mr Chairman, I want to make this point to you because it's going to be your ruling. There is a difference between convention and our standing orders. Convention is how things can be done with agreement of all parties. Convention often is, with committees, that they start without a quorum, but I have never known a vote to be taken without a quorum. The very fact that the clerk has recorded who voted on this motion indicates or confirms that there was not a quorum present. The starting of the meeting without a quorum for the sake of debate or hearing a deputation, which is the more common thing that we're concerned about -- not keeping deputations waiting who are scheduled to appear before our committees -- is entirely different from taking a vote without a quorum. When the clerk records who was present for that vote, and it is confirmed now that there was not a quorum, I suggest to you, Mr Chairman, that the procedure of taking the vote on Bill 22 was out of order and I ask you to retake that vote.
Mr R. Gary Stewart (Peterborough): Just a clarification on the point of order, Mr Chairman: Is the Chairman deemed to be part of this committee?
The Chair: For the purposes of a quorum?
Mr Stewart: Yes.
The Chair: I believe that's correct.
Mr Stewart: Then the number on this committee is 13. Am I right or am I wrong?
The Chair: Apparently 14 at the present time.
Mr Stewart: It is 14, and you must have over 50% to have the quorum? Do I understand that?
The Chair: Eight members of the committee would constitute a quorum.
Mr Stewart: Thank you. I just wanted clarification.
Mr Silipo: On the same point, Mr Chair: I understand the concerns that the government members are expressing. However, I would just make this point in addition to the points I made earlier. I think in a case like this you have no choice but to follow the standing orders.
I am one who has a great deal of respect for the conventions of this place. I've made arguments in favour of those conventions dictating our behaviour in committees and in the Legislature itself, but where there is a specific standing order, I think you would agree that the standing order guides the decisions of the Chair and/or of the Speaker, as the case may be.
The pertinent points in this instance are the provisions of the standing order that you referred to earlier which have two aspects to them. The first is that the Chair sees or doesn't see a quorum and proceeds to have the committee meet if he or she sees a quorum, and secondly, if a member brings to the Chair's attention that a quorum isn't present, then certain things follow; the Chair is supposed to verify whether or not there is a quorum etc.
In this instance, Mr Chair, the first thing happened. You saw a quorum, you proceeded to have the committee go on with its business and no one called it otherwise. Whatever the numbers were, the point is that the meeting proceeded in good faith with no one objecting, all three parties legitimately represented, the whips from each party present, at least from two of the parties -- I don't think Mr Miclash was present -- the government whip present. You could have raised, if you felt that a quorum wasn't present, that a quorum wasn't present.
That wasn't done by him nor by any other members of the committee, and I suggest to you that the committee proceeded in good faith, and legitimately so. You can't undo that now, so I would ask you just to rule that the committee proceeded properly, and let's get on with the business at hand.
The Chair: I will hear all members of the committee who wish to speak to this point of order before ruling.
Mr Clement: I agree with Mr Silipo that the standing orders should trump any conventions. I don't have them in front of me but I can tell you what the confusion was in my mind, just for your benefit. I am a participant in another committee, the standing committee on general government. Their convention seemed to be that the Chair would call the meeting to order when there were members of all three parties represented and that number was in excess of a quorum. That was the rule I was used to, and in my role as whip, as Mr Silipo has termed me, that was the rule under which I thought this committee had also been run. I now know, to my chagrin, that perhaps you have a different convention, but given the clash of conventions on the different committees in which we participate as members, whatever the standing order is, that should trump.
Mr Tilson: I don't agree with the issue about calling a meeting when there is no quorum, particularly if the Chair knows that. But assuming that is correct because of convention or other reasons, you then come to the issue of voting on a bill or a resolution. You are then into a different situation. It is one thing to call a meeting knowing that there is no quorum -- I repeat that I don't agree with that, particularly if you know that there is no quorum -- and I'm repeating what Mrs Marland said: It's quite something else to call the vote. My point to you is, supporting Mrs Marland's point of order, that I don't believe you had the jurisdiction as Chair to call the vote, knowing that there was no quorum.
The Chair: Any other comments relating to this point of order?
Mrs Marland: Yes. I have a question, if I may, to the clerk. Could you give me the names of the people who voted on that motion, please?
Clerk of the Committee (Ms Lisa Freedman): I can get it.
The Chair: It would have been recorded by Hansard.
It will take a couple of minutes to get the names.
Mrs Marland: I can wait for that. The other question I have to the clerk is about the variance. I'll wait till you finish because it's hard to listen to two.
We have a very experienced clerk who's been on any number of committees and has observed any number of Chairs. It is true that there are Chairs who at the beginning of hearings will say to members of a committee -- and as I say, I particularly am thinking of committees that are booked every 15 or 20 minutes with deputations; we did that on the finance and economic affairs committee recently -- "Can we have all-party agreement that, because we have such a tight schedule, we will see a quorum and start on time?" We all agreed to that. It was discussed up front and that was established.
Procedurally, that is very different. For one thing, you're not doing clause-by-clause and passing motions, or as has taken place this afternoon, the passage of a bill. If it isn't established up front and if you haven't said to this committee, "Is there agreement that I see a quorum when there isn't?" then I'm suggesting to you that for the passage of a bill, which is essential business of the committee and is the responsibility of the members of that committee, when I see that difference, I think unless you've preset the stage for that to happen, then it is out of order, and that is the reason I raise it.
I'm simply asking that the vote be taken in a procedurally correct way.
Mr Miclash: I go back to Mrs Marland's point. When we first met, was there any discussion about going ahead when all three parties are represented? I know that quite often happens.
Mrs Marland: Not with votes, though, Frank. Never with votes.
Mr Miclash: I can't say that. Still, if I were in that position, I certainly would have called for a 20-minute recess or identified the quorum to the Chair. I really don't know, but that's what I would be interested in finding out.
The Chair: Are there any other comments relating to this point of order? Seeing none, perhaps a way to resolve this impasse would be to see if there is unanimous consent on this committee to revert back to previous to the vote so that we can take the vote again. Is there unanimous consent that that take place?
Mr Silipo: No. Mr Chair, I think you have to give us a ruling.
Mr Clement: Could I just ask a question, Mr Chair? I'm not familiar enough with procedure to know the answer to this, but are any motions in order to reconsider the previous question?
The Chair: We would have to recess to look into that to see whether or not that could happen, instead of something extraordinary.
Mrs Marland: I would move that --
Interjection: How long do they need?
Mrs Marland: Yes. How long do you need to research that?
The Chair: Five minutes in total.
Mrs Marland: I move that on that clock, we reconvene at 5:30.
Interjection: Can I have a point of order?
The Chair: No. There's a motion for a five-minute recess.
The committee recessed from 1720 to 1730.
The Chair: I will call the committee back into session. I've had an opportunity to reflect upon this momentous point of order.
Mr Tilson: Mr Chair, before you make your ruling, could I make one more submission to you?
The Chair: Go ahead.
Mr Tilson: Standing order 117(a), (b), (c) and (d) seem to deal with this whole subject of quorum, and (a) talks about what a quorum is: a majority is a quorum. Clause (b) says, "Any committee may authorize the Chair to hold meetings to receive evidence when a quorum is not present." So, Mr Chairman, there obviously was evidence at the outset, your own evidence, that a quorum was not present, and you did not receive, I would submit, authorization from the committee --
Mr Tilson: Well, that's what the standing order says -- that you did not receive authority from the committee to proceed. Standing order 117(c) -- that's the one that you have been referring to -- talks about something quite different. It talks about suspending the proceeding and that you may then adjourn it. But I would submit that the position you should be looking at is clause (b), and I'll repeat that: "Any committee may authorize the Chair to hold meetings to receive evidence when a quorum is not present." Therefore, Mr Chairman, because the committee did not give you such authorization you therefore did not have the authority to proceed.
Mr Rick Bartolucci (Sudbury): Mr Chair, we took a five-minute recess so that you could ponder the evidence and come back with a ruling. Now when you're about to make the ruling, we hear some more information. Does that mean we're going to have another 15-minute recess?
The Chair: It's not my intention to call another recess.
Mr Bartolucci: You received a five-minute recess to make a ruling. That ruling should have been done immediately upon reconvening the meeting. This last minute -- and that's open subject to very much personal interpretation and I could interpret that completely differently.
The Chair: It may very well be the case and the Chair will rule after he's heard all members of the committee relating to this point of order.
Mr Silipo: Mr Chair, specifically on the point Mr Tilson has made, which is the additional point that he's thrown into this, I would just say to you that standing order 117(b) doesn't apply in this case because it talks about instances where the committee is receiving evidence.
I would just go back to the two points I made before, and I believe you reiterated, which were that the Chair is able to see a quorum present and unless there is an objection raised by members of the committee to point out otherwise and determine otherwise, there is deemed to be a quorum. I would suggest to you there is deemed to have been a quorum at the time we dealt with the bill and at the time we voted, and nothing can change that. You can't go back in time and change what happened because what happened was done under a quorum being deemed to be present, both by you as the Chair and by no members of the committee raising any points to the contrary.
The Chair: Thank you, Mr Silipo. All members have had sufficient opportunity to present their concerns related to this point of order, so I will now rule. I am absolutely certain that routine proceedings had been completed. We waited here for approximately five minutes. A member of the Legislature requested that the committee start its proceedings. There was representation from each of the three caucuses present at that time.
The lack of the quorum was not brought to the attention of the Chair, although it may very well be correct that there was not a sufficient quorum in the committee room at the time, but my experience as a member of the Legislature for the last six years tells me that committee meetings are often called to order and the committee meeting started when there's representation from all three parties.
It is not up to the Chair to determine whether or not a quorum is present, call that to the attention of the committee, stop the committee's proceedings without a member of the committee bringing it to the attention of the Chair. There was no request for a 20-minute recess, which is also the option that members of the committee may have if they wish to delay a vote until all members of the committee can be present for that vote. I therefore rule that the vote on Mr Agostino's private member's bill was in fact in order.
Now we move back to what we were doing, which is a discussion of --
Mr Gilchrist: On a separate point of order, Mr Chairman.
The Chair: Mr Clement.
Mr Clement: I think I was next on the questions list.
The Chair: Is it a point of order or what were you asking?
Mr Clement: No, I think I had the floor once this discussion was over. It's not a point of order, it's a motion to reconsider.
The Chair: A motion for me to reconsider my ruling?
Mr Clement: No, a motion to reconsider the vote on Bill 22.
The Chair: The only way to reconsider, which I already tried to ascertain, is if there was unanimous consent to have that vote over again.
I'll ask again: Is there unanimous consent? There is no unanimous consent. The vote stands.
Mr Clement: Can I proceed then with my comments respecting --
Mr Gilchrist: I have a point.
The Chair: On a new point of order or the same point of order?
Mr Gilchrist: New point of order, Mr Chair: I'd just like to draw to your attention that it is a fact that amendments can be introduced orally or in writing, and it is my understanding that they must, though, be in writing prior to the vote. Any check of Hansard will show that 20 minutes prior to the end of --
The Chair: What exactly are you referring to, Mr Gilchrist?
Mr Gilchrist: I was just about to say -- 20 minutes prior to the end of our last meeting, I introduced an amendment, top of page M-133, "I would amend by deleting the word `schedule,' and put in the words `Constitution Act, 1967, as amended.'"
We then spent 20 minutes debating that amendment. If it was out of order, I would submit that is the time someone should have ruled on that. The amendment was handed in, in writing, to the clerk at 3:30 today, well before the committee actually started hearing, as we have heard. I am then at a loss to understand why that question would not have been put before a vote on the bill itself. It is not up to either the clerk or the Chair, I would submit, to arbitrarily decide at the end of the debate that somehow because of the fact it wasn't in writing last Wednesday, on April 10, that this is now not worthy of being put to a vote. I would submit to you that the failure to vote on the amendment which is right there in Hansard means that you cannot proceed to a vote on the bill itself, and there is no doubt --
The Chair: I'm sorry. Mr Gilchrist, I think you're speaking to the ruling that I've made.
Mr Gilchrist: No, sir. That ruling had to do with quorum, and this has nothing to do with quorum. This has to do with --
The Chair: My ruling was that the vote on Mr Agostino's bill was in fact in order.
Mr Gilchrist: I think I am introducing something totally different. Obviously, no point of discussion raised by Ms Marland in subsequent comments dealt with the amendment, so I would submit this is a new point of order. You may in fact have the same ruling. I'm quite prepared if that is the case, but I would like to know on what basis that amendment, which was in writing prior to the vote and submitted to the clerk, would not have been considered a valid amendment and the question put on that amendment before the vote on the bill itself, which is of course the normal procedure.
The Chair: By way of response, Mr Gilchrist, I would remind you, I believe all members of the committee received a memo dated April 11, requesting that all amendments to Bill 22 be submitted to the clerk by Wednesday April 17, at 3:30 pm, in writing, and --
Clerk of the Committee: By Tuesday, at 12 noon.
The Chair: I'm sorry, Tuesday at 12 noon, which was yesterday at 12 noon, and --
Mr Gilchrist: It is my understanding it was faxed to the clerk's office on Monday afternoon. The clerk tells me she personally did not see it. I would be pleased to go down and see if we have a fax -- if you want to stand in recess again, and I will get the fax transmission record showing that it was sent Monday afternoon. But I'm not going to dwell on that. Even then, whether or not the Chair has asked for that, it is the convention and it is the standing orders, I believe, that it just has to be in writing prior to the vote. It obviously was here. There's no dispute that it wasn't handed to the clerk at 3:30 this afternoon, and the meeting didn't start for a full hour after that, so I don't see how we can be debating whether it was not in writing prior to the vote.
The Chair: Mr Gilchrist, as you know, amendments must be put in writing to be effective and to be reasonable in terms of discussion on the bill. Your amendment was out of order because it was not in writing and it was not in the proper format. It was also out of order because it was contrary to the principle of the bill, which makes it out of order anyway. I fail to see how -- I know what you're getting at. I think you're suggesting that you disagree with my initial ruling. I would put to you, are you suggesting that my ruling is inaccurate or incorrect?
Mr Gilchrist: I think it is an extremely dangerous precedent, Mr Chair, to suggest that because we had not voted -- and I had not introduced amendments 2, 3 and 4. To look at an amendment that says delete the word "schedule" and add the words "Constitution Act, 1867, as amended" -- all the discussion, including that from Mr Agostino, had recognized that the existing oath will continue to be an oath.
I really do fail to see how the Chair would have the authority to decide at that point -- forget anything else that may be following in my proposed amendments; amendments are voted on one at a time. I really believe it is an extremely dangerous precedent for the Chair to prejudge the import and the significance of something that minor. I have never seen that in all of the submissions that have been made before committees in the nine months I've been here, but I defer to your authority in this meeting. I believe you are also trying to establish a new precedent that amendments should be in writing prior to debate. I do not believe that is either the convention or the rule in this House.
The Chair: On what exactly do you want the Chair to rule?
Mr Gilchrist: On whether it was appropriate for there not to have been a vote on the amendment, which had been introduced prior to a vote on the bill. If you rule that there had to be a vote on the amendment, obviously you cannot have proceeded to the vote on the entire bill.
Mr Bartolucci: You've already ruled on it.
The Chair: We were in the stage of a vote, and that was not in writing for us here, in a formal sense, Mr Gilchrist.
Mr Gilchrist: My final comment to that is, you are suggesting this was not handed to the clerk prior to the vote?
The Chair: While the committee was sitting, that's -- the committee was not sitting. I understand you've suggested you handed it to -- it was sent up here at 3:30?
Mr Gilchrist: It was handed to the clerk; it was in her possession. I took it back five minutes after the vote. This pile of 14 copies of my amendments was in the hands of the clerk. It is obviously the clerk who hands things out. It would be totally inappropriate for me to have dropped it at every spot. It was in the hands of the clerk, and I absolutely recognize there would have been a problem when we got to amendment number 2, based on a typo in preparing this. But there was no comment made about typos in section 1, and I have a great difficulty in being prejudged on amendments that aren't even on the floor yet. Only that one amendment, and there was no contrary position taken by the Chair last Wednesday about the appropriateness of making an oral amendment.
The Chair: Mr Gilchrist, I have already ruled that the vote was in order. You appear to be trying to establish that the vote was not in order; I think that's what you're getting at.
Mr Gilchrist: No, I'm trying to establish that there should have been a vote on this amendment. What flows from that is up to someone else to decide, Mr Chair.
Mr Bartolucci: It has already been decided.
Mrs Marland: On the same point --
Mr Gilchrist: It may very well ultimately turn out that way, Mr Bartolucci.
The Chair: This is a different point of order. Mrs Marland.
Mrs Marland: On the same point that Mr Gilchrist has raised -- and I recognize we are dealing with a different point of order -- I was not at this committee last week when he placed his amendment, but obviously his amendment was placed with sufficient time and has been supplemented with it in writing. The clerk had it in writing before you started voting on this bill earlier today, but you voted on the bill without voting on an amendment that you had -- not you technically, but that the committee had technically, because the clerk had it. So you voted on the bill, which is actually out of order if you had an amendment which you hadn't taken the vote on first.
Mr John Hastings (Etobicoke-Rexdale): Mr Chairman, my concern relates to the situation --
Mr Silipo: You ruled on this.
Mr Hastings: My point of order relates to the concern that, now that this is the situation that stands, I would like to receive a research analysis from the clerks' office as to whether this kind of decision, made in these sets of circumstances, in the future, can be applied as a precedent for other committees, select or standing, of this Legislature. I would like to receive that when we meet next time, whenever that is, because this situation has some very pervasive implications for other committees that we deal with -- public accounts for one, I would think. I can see a set of circumstances evolving in which certain people were out of the room, somebody went to get something, and they ended up making a decision about a particular item in public accounts -- using that as an example. I would request, at the next meeting, that we get a full analysis on whether this sets a precedent or not and can be utilized as a precedent.
The Chair: Are there any other comments?
Mr Tilson: Mr Chairman, you commented that you have ruled on this, but I emphasize to you that you've ruled on issues --
The Chair: I ruled that Mr Agostino's vote was in order, based on the points of order that have been raised and that the members have put forward, yes.
Mr Tilson: With respect, I believe you ruled against Mrs Marland's point of order.
The Chair: That's right.
Mr Tilson: That's what you did.
The Chair: Yes.
Mr Tilson: But there is obviously now a new point of order dealing with an amendment.
The Chair: That's why I'm listening to it, Mr Tilson.
Mr Tilson: I just wanted to clarify.
Mr Silipo: Mr Chair, I suggest to you that really this is not another point of order, because you have dealt with the question of --
The Chair: Mr Silipo, I have already ruled that it is another point of order.
Mr Silipo: Fine. I'm suggesting to you, sir, that therefore, if you want to take that interpretation, your ruling can be no different on this point than it was on the previous one, because this was part and parcel of the issue surrounding the bill we were dealing with.
The Chair: It may very well be, but it's a different point of order. As I said last week, lacking the wisdom of Solomon, I will need some time to consider this ruling.
The committee adjourned at 1748.