1985-12-16

GOVERNMENT ORDERS


[Stage Direction]
The House resumed from Thursday, December 12, consideration of the motion of Mr. Hnatyshyn:
That, in relation to Bill C-74, an Act to amend the Constitution Act, 1967 and the Electoral Boundaries Readjustment Act and to provide for certain matters in relation to the 1981 decennial census, one sitting day be allotted to the third reading stage of the said Bill; and
That fifteen minutes before the expiry of the time provided for the consideration of government business on the above-mentioned sitting day, any proceedings then before the House shall be interrupted, if necessary, for the purpose of this Order and, in turn, every question necessary to dispose of the said stage of the said Bill shall be put forthwith and successively, without further debate or amendment.
Mr. Speaker:: The Hon. Member for Mission-Port Moody (Mr. St. Germain).


Mr. Foster:: Mr. Speaker, I rise on a point of order. I notice that the Hon. Member for Gander-Twillingate (Mr. Baker) was in his place. I would like to move:
That the Hon. Member for Gander-Twillingate be now heard.


Mr. Hnatyshyn:: You can't make a motion on a point of order.


Mr. Speaker:: With respect, that motion is entirely in order under the circumstances as the Hon. Member had not begun his speech.
The House will know that when there are two people rising at the same time, the Speaker chooses someone to speak. I reviewed the list and there had been a Liberal and New Democrat and now a Conservative. However, it is reasonable to rise on a point of order prior to the commencement of the speech, and our practice is to allow a motion of the kind that has been put.
Therefore, is it the pleasure of the House to adopt the motion?


Some Hon. Members:: Agreed.


Some Hon. Members:: No.


Mr. Speaker:: All those in favour of the motion, please say yea.


Some Hon. Members:: Yea.


Mr. Speaker:: All those opposed, please say nay.


Some Hon. Members:: Nay.


Mr. Speaker:: In my opinion the yeas have it.
And more than five Members having risen:


Mr. Speaker:: Call in the Members.
And the division bells having rung:


Mr. Speaker:: Order, please. The six minutes remaining under Standing Order 84 had expired, but I chose to wait a little longer to see if the Whips would present themselves for the matter on which the bells had begun to ring at 11.05 o'clock.
It seems clear to me that I have no choice in this matter but to interrupt the bells and advise the House that, it being 11.15 a.m., the two hours provided for the consideration of the motion now before the House, under the provisions of Standing Order 84, have expired. Therefore, I believe, 1 must declare the motion under which the bells originally rang lapsed and, under the terms of that Standing Order, 1 interpret it as my duty to interrupt the proceedings and put every question necessary to dispose of the motion.
Accordingly, the question is the following one: Mr. Hnatyshyn, seconded by Mr. Crombie, moves:
That, in relation to Bill C-74, an Act to amend the Constitution Act, 1867 and the Electoral Boundaries Readjustment Act and to provide for certain matters in relation to the 1981 decennial census, one sitting day be allotted to the third reading stage of the said Bill; and
That 15 minutes before the expiry of the time provided for the consideration of government business on the above-mentioned sitting day, any proceedings then before the House shall be interrupted, if necessary, for the purpose of this Order and, in turn, every question necessary to dispose of the said stage of the said Bill shall be put forthwith and successively, without further debate or amendment.
Is it the pleasure of the House to adopt the motion?


Some Hon. Members:: Agreed.


Some Hon. Members:: No.


Mr. Speaker:: All those in favour of the motion will please say yea.


Some Hon. Members:: Yea.


Mr. Speaker:: All those opposed will please say nay.


Some Hon. Members:: Nay.


Time Allocation


Mr. Speaker:: In my opinion the yeas have it.


FAMILY ALLOWANCES ACT, 1973
[Stage Direction]
And more than five Members having risen:
Mr. Speaker:: Call in the Members.
The House divided on the motion (Mr. Hnatyshyn), which was agreed to on the following division:


MEASURE TO AMEND
[Stage Direction]
The House resumed from Wednesday, December 11, 1985, consideration of report stage of Bill C-70, an Act to amend the Family Allowances Act, 1973, as reported (without amendment) from a Legislative Committee; and Motions Nos. 4 and 6 (Ms. Mitchell) Motions Nos. 5 and 7 (Mr. Malepart), and Motion No. 9 (Mr. Redway).
(Division No. 150)
Attewell
Beatty
Belsher
Blais-Grenier
Blenkarn
Bouchard
Bourgault
Brightwell
Brisco
Caldwell
Champagne
(Saint-Hyacinthe-Bagot)
Chartrand
Collins
Cook
Cooper
Cote
(Langelier)
Crofton
Crosbie
(St. John's West)
Darling
Daubney
de Cotret
Desjardins
Dick
Domm
Duplessis
Edwards
Ellis
Elzinga
Epp
(Provencher)
Fennell
Gagnon
Gottselig
++YEAS
Members
Graham
Gray
(Bonaventure-iles-dela-Madeleine)
Greenaway
Hamelin
Hamilton
Hawkes
Hees
Hnatyshyn
Horner
Johnson
(Bonavista-Trinity-
Conception)
Kilgour
King
Ladouceur La Salle Lewis
MacDonald (Kingston and the Islands)
Mailly
Mantha
Masse
Mazankowski
McCain
McDermid
Mclnnes
McKenzie
McKinnon
McKnight
McLean
Merrithew
Minaker
Mitges
Moore
Murta
Nicholson
(Niagara Falls)
Nielsen
Nowlan
Oberle
O'Neil
Paproski
Pcnnock
Pietz
Plourde
Porter
Price
Redway
Reid
St. Germain
St-Julien
Scott
(Hamilton-Wentworth) Scowen Sparrow Speyer Suluk Taylor Thacker Towers Tupper Turner
(Ottawa-Carleton)
Wenman
White
Wilson
(Swift Current-Maple Creek) Winegard Wise-94.
++NAYS
Members
Althouse	Gagliano	LangdonBenjamin	Garneau	ManlyBerger	Gauthier	McCurdyBlackburn	Gray	Mitchell(Brant)	(Windsor West)	MurphyCaccia	Guilbault	NicholsonDeans	(Saint-Jacques)	(Trinity)de Corneille	Henderson	Nystromde Jong	Hopkins	OuelletDingwall	Hovdebo	ParryEpp	Jewett	Penner(Thunder Bay-Nipigon)	Johnston	RompkeyFoster	(Saint-Henri-Westmount)	RossiFulton	Kaplan	Tobin
Waddell-37.
Mr. Speaker:: I declare the motion carried.


Mr. Speaker:: Prior to resuming debate, I did indicate that at the earliest possible moment, I would hear procedural arguments with regard to other matters.


Ramon John Hnatyshyn: Mr. Speaker, perhaps I could begin with respect to the procedural arguments. In reviewing the motions to amend Bill C-70, an Act to amend the Family Allowances Act, 1973, you indicated, Mr. Speaker, that you had some procedural reservations with respect to certain motions. I must agree with you that these motions seem to be procedurally defective.
With respect to Motion No. 1, I think you will find that not only is the purpose of the amendment difficult to grasp but it seems to be technically defective inasmuch as it makes reference to the repeal of subsections without-


Mr. Speaker:: Order, please. Could I ask Hon. Members who are sitting beside the President of the Privy Council (Mr. Hnatyshyn) to hold their meeting some place else since their microphones come on at the same time as the microphone of the President of the Privy Council.


Ramon John Hnatyshyn: Mr. Speaker, I thought my voice sounded awfully melodious this morning. It is the voice of my colleague, the Minister of Public Works (Mr. La Salle), that I was hearing.
I think I will repeat the point I was making in case you did not catch it, Mr. Speaker. In Motion No. 1, the purpose of the amendment is difficult to grasp, but in addition I think it is technically defective inasmuch as it makes reference to the repeal of subsections without making reference to the sections themselves. Clearly, if we were to allow such an amendment to be made to the Bill, the Bill would become unintelligible since we would not know which sections to repeal.
I think you will agree, Mr. Speaker, that under the circumstances, the provisions of Citation 773 (4)(6) of Beauchesne's Fifth Edition would apply. That citation reads as follows:
An amendment may not make the clause which is proposed to amend unintelligible or ungrammatical.
It is clear to me that this motion suffers from that very deficiency. However, if I understand the intent of the amendment, it would seem that the intention of the Hon. Member is to restore full indexation of the family allowance, whereas the principle of the Bill, as agreed to at second reading, is to provide for the partial deindexation of the family allowance. Clearly that is contrary to the principle of the Bill, and so it would then seem to me that Citation 773(5) of Beauchesne's Fifth Edition would be applicable in this instance.


With respect to Motion No. 2, I feel I must agree with you again, Mr. Speaker, that the proposed amendment should be found to be out of order inasmuch as it provides for partial indexing for only one year and that is, as I have pointed out with respect to Motion No. 1, contrary to the principle of the Bill which provides for partial indexing without a time limit. Therefore, I think you will find, Mr. Speaker, that Beau-chesne's Fifth Edition, Citation 773(5) applies in this case. That citation reads as follows:
An amendment which is equivalent to a negative of the Bill, or which would reverse the principle of the Bill as agreed to at the second reading stage is not admissable.
In addition, Mr. Speaker, I think you will find that this motion suffers from the same technical defect as Motion No. 1. Obviously, the same citation would apply in this case as applied in the case of Motion No. 1. As well, Mr. Speaker, as you know, it is a long established parliamentary principle that, as explained in Citation 424(5) of Beauchesne's Fifth Edition, if any part of a motion is out of order, the entire motion is out of order. Therefore, I believe that on these three grounds, you would have to find that Motion No. 2 is irregular and thus cannot be received.


Mr. Gauthier:: Mr. Speaker, I rise on a point of order. On Motion No. 2, I thought you had said that the motion would be debated and voted on separately, and that was a ruling the Chair had made. I am just wondering if we are going to start debating all over again these questions on which you have already ruled.


Mr. Speaker:: I think we would be in some difficulty, if that were true, in hearing any of this argument. I received representations from the House Leaders and at the time I specifically indicated what my intentions were on Motions Nos. 1, 2 and 3, but I did not intend that that was final if there were procedural arguments that Members wished to present. That is what I meant by saying that it was my intention to do so. Therefore, I take it that comments with regard to Motions Nos. I, 2 and 3 are entirely in order.
I also received a request from the Hon. Member for Hamilton Mountain (Mr. Deans) to make a procedural argument with regard to the grouping of Motions Nos. 4, 5, 6, 7 and 9, with the indication that Motion No. 8 would not be put. I indicated that I would be willing to hear that procedural argument.


Jean-Robert Gauthier: Mr. Speaker, I am in some difficulty because we have already started debating Motion No. 2. By starting the debate on a ruling-


Mr. Speaker:: Am I confused? I thought we were still on the grouping of Motions Nos. 4 through 9 for debate. I am not aware that we have called Motion No. 2 yet. The argument that is being made to me about the grouping of Motions Nos. 4 through 9 was to be deferred, because if they are found to be within the group, then it is all right because the debate has already started, and if they turn out not to be within the group,
Family Allowances Act, 1973
it is all right also because the debate has started on the group, whatever the group turns out to be.


Ramon John Hnatyshyn: Mr. Speaker, I would like to say a few words about Motion No. 3, proposed by the Hon. Member for Montreal-Sainte-Marie (Mr. Malepart). Its purpose is the same as that of Motion No. 1, namely, to reinstate full indexation of family allowances. This is clearly contrary to the principle of the Bill, which is to partially deindex family allowances for an indefinite period.
Mr. Speaker, I think you will agree that if Motion No. 1 is out of order because it is contrary to the principle of the Bill, Motion No. 3 should also be considered out of order, for the same reason.
Thank you, Mr. Speaker, and-

-I will address those three particular items. I will be interested in hearing the arguments with respect to grouping but I subscribe to the grouping of as many orders as possible, obviously.


Mr. Speaker:: I do not want to interrupt proceedings if I can avoid it, but the Hon. Member for Ottawa-Vanier (Mr. Gauthier) raised his point of order precisely at the moment when the Hon. President of the Privy Council (Mr. Hnatyshyn) was saying something about Motion No. 2. For my benefit, could he repeat that, please?


Ramon John Hnatyshyn: Mr. Speaker, it depends upon what you had heard. I think I was just concluding with regard to Motion No. 2. I will simply repeat the last part of my presentation with respect to that item. I quoted Citation 773(5) of Beauchesne's Fifth Edition and in addition to that I said that this particular motion suffers from the same technical defect as I indicated exists in Motion No. 1, and so the same citation that I had quoted for Motion No. 1 would apply.
Also, I referred Your Honour to the long established parliamentary principle set out in Citation No. 424(5) of Beauchesne's Fifth Edition, which states that if any part of a motion is out of order then the entire motion is out of order. Essentially, I believe there were three grounds with respect to that motion which would lead me, and I hope Your Honour as well, to conclude that Motion No. 2 is irregular and, therefore, not valid for the purposes of this debate.


Mr. Deans:: Mr. Speaker, I wish to deal with two matters which you have before you. I had not intended to deal with Motion No. 2 until the Government House Leader indicated some opposition to allowing debate on the motion. I would submit that Citation No. 773(5) of Beauchesne's Fifth Edition is not applicable in this case. It states:
An amendment which is equivalent to a negative of the bill, or which would reverse the principle of the bill as agreed to at the second reading stage is not admissible.


Family Allowances Act, 1973
I respectfully submit that Motion No. 2 does neither of those two things. What it does is to establish a grandfather clause. It says that the principle established in the Bill shall only be in force and effect for one year.


Mr. Speaker:: Do you mean grandfather or sunset?


Ian Deans: I am sorry, I meant to say sunset clause. Thank you, Mr. Speaker.
It establishes a sunset clause. It states clearly that the principle is not negative inasmuch as the Bill we have before us will, in fact, become law, but that this particular law will be in effect for only one year. At the end of one year, if it is the Government's wish to continue with the law, it is its prerogative to bring forward subsequent legislation, which would again put into force the provisions of the legislation which we now have. I submit it does not negative the principle of the Bill in any way. In fact, it allows the Bill to pass in the form in which it was presented to Parliament and in the form in which it was approved at second reading. It simply establishes that this particular law will have to be reviewed again at the end of a one-year period.
I now wish to deal with the grouping of Motions Nos. 4 and 6. I will leave it up to my colleagues in the Official Opposition to deal with the other groupings. I suggest it is not appropriate to debate these motions together inasmuch as although they deal with a related subject matter, they do not deal precisely with the same subject.
I will deal first with Motion No. 6 because I think it is important. In this respect we are dealing with a constitutional question. We are dealing with whether or not it is indeed appropriate for the Minister to have the power to determine in one form or another whether a person who, until that point in time was in receipt of family allowance, will be considered to have died. We are suggesting that the issuance of a certificate to that effect is the prerogative of the province in which the death occurs and that it is not the prerogative of the Minister under this or any other Act to undertake the issuance of a death certificate. We suggest this subject should be debated separately. It concerns a serious question of constitutionality which we believe should be debated in the House of Commons.
I am prepared to concede that we may not win the argument but, nevertheless, I think the argument should be allowed to be made and to stand on its merits separate and apart from Motion No. 4.
Motion No. 4 deals with the question of the Minister having the power, which is a separate matter. If the Minister than has the power to do certain things, what are those things which he could do? I believe the Minister said in committee that this, in fact, is a housekeeping question. He may be right. What we are trying to do in respect of Motion No. 4 is, in essence, to regularize what is happening to the extent that that can be done.
Therefore, I submit you are correct in suggesting that the motions should be voted on separately, Mr. Speaker. I would have thought that, since the principle flows backward in the Bill, if you will, Motion No. 6 should be voted on first,
followed by Motion No. 4. The debate on Motion No. 6 as to whether or not the Minister does have the power to do what he is attempting to do should be heard separately from the issue with respect to what he can use that power for after the law has been passed.
Incidentally, we accept your ruling with respect to Motion No. 1. Your Honour's decision with respect to allowing debate to take place and a vote to occur on Motion No. 2 should stand.
The debate should continue and the vote should take place with respect to whether or not this law should be enforced for one year or until some decision by someone to terminate it takes place. Motion No. 6 should stand separately and be debated separately. Then the question of constitutionality can be dealt with separate and apart from the effect of the legislative change which is being asked for.
Finally, we ask that Motion No. 4 be debated separately because it, in fact, is the motion which will determine how the Minister will use the power if such power is granted.


Mr. Baker:: Mr. Speaker, I would like to add a word or two to what has already been said. I would also like to bring up a different point completely. It has to do mainly with the grouping of the motions. I am sure all Hon. Members will agree that it us up to Your Honour to make a decision with respect to how the groupings should be made. I believe all Members will also agree that when a grouping takes place it should be in respect of the same subject matter.
I wish to point out that although the previous speaker said the subject matter is related, I differ with his argument. The subject matter is certainly related, especially in respect of Motions Nos. 4 and 5. Although the wording in two or three lines is similar, the clauses which they propose to amend are completely and utterly different. There is absolutely no similarity whatsoever between Clauses 4 and 5. Clause 4 deals with remission of amount owing. Clause 5 deals with the presumption of death. There is not only that to consider, Mr. Speaker, but the remission of so-called amounts owing is an entirely different subject from the matter dealt with in Clause 5. Clause 5 deals with a presumption of death, while Clause 4 deals with amounts paid out to persons who are not dead. In other words, it is certainly a completely different argument which has to be presented. The subject matter is completely and utterly different. Therefore, I respectfully submit that Motions Nos. 4 and 5 cannot be grouped together.
The second question is with respect to what happens then. 1 presume that, if Your Honour agrees with the arguments presented on the groupings, you will determine what will then happen with respect to all Members who have already spoken to the groupings. I presume that you will keep in mind that some of us have simply spoken on the broad principle of one or a portion of one of the motions. Therefore, I submit that those who have already spoken not have their time taken away speaking on the motions but that they be permitted to speak 10 minutes on each of the motions contained in this resolution before the House.


Generally speaking, I disagree that the subject matter of the clauses is related, as the New Democratic Party said. The subject matters of the clauses are not related. Therefore, even if the wording of the motions is similar, the Speaker should not consider whether or not the motions are acceptable as a grouping because the subject matter is entirely different and the amendments have a completely different impact on the clause that is under consideration. But even so, the actual wording of the motions is not similar, either, not to mention the fact that the motions have a completely different impact on the clauses being discussed. As the Speaker said, the Chair simply made a temporary ruling on the groupings to be followed by the hearing of arguments and further examination.


Mr. Speaker:: I thank Hon. Members. Let me be absolutely clear about this procedure for future. I clearly said about Motions Nos. 1, 2 and 3 that I had an intention. I did in fact group Motions Nos. 4 through 9 and then received a request with regard to the right to put some argument with respect to Motion No. 6. I am perfectly willing to hear that argument.
Having now heard argument on Motion No. 4 and Motion No. 5, I am prepared to consider those motions. But I do not want to leave the impression that I wanted to create a practice of temporarily grouping motions in advance of hearing argument.
I will reserve on all the arguments and be back to the House later as soon as I have considered these matters. Therefore, I suggest that we resume debate on the grouping as it currently stands.
When we last considered this matter, the Hon. Member for Hamilton Mountain (Mr. Deans) had the floor. Had the Hon. Member concluded or does he want to conclude now?


Ian Deans: Mr. Speaker, I believe I only have a minute left-oh, four minutes left. That is even better. I might as well use it all up, then. Truthfully, I do not propose to use all that time. I did put before the Minister on the last occasion on which this legislation was before the House, the whole question of the presumption of death. That is an issue, I believe, which should be resolved once and for all. I submitted to the Minister the views of this Party that the presumption of death and, therefore, the issuance of a certificate has been the prerogative of the provincial or territorial jurisdictions within which the death occurred. I suspect, even going beyond that, that in the case of deaths which had occurred, or were presumed to have occurred in jurisdictions outside of Canada, it would be necessary to obtain the death certificate from that jurisdiction before a decision could be made to discontinue the payment of family allowance.
I would submit, if I may, that it would be inappropriate for us to give to the Minister, in legislative form, the power to make a presumption and issue a certificate inasmuch as we would come into conflict, I believe, with a very serious constitutional question. I would ask the Minister that he not proceed
Family Allowances Act, 1973
with that inasmuch as he already has the power now to discontinue payments for any child who it can be proven is not in the custody of the person to whom the payment is normally made. With that power, the Minister is able to achieve all that is required of him at the moment.
I accept his argument and concede that in the case of-and he used this example-the Air-lndian disaster, it could be reasonably assumed that everyone on the plane died when the plane went into the ocean. However, I believe there is still the necessity to ascertain exactly who was on the plane. 1 would respectfully submit that that is not something about which assumptions should be made.
One should not assume the identity of the people. Nothing should be done until, at the very least, a coroner establishes, to the extent it can be done, who was on that particular aircraft. That was done with respect to the Air India crash. Even though the bodies were not all recovered, that was done by looking at the list of passengers and the appropriate documentation which it was necessary to file before the plane embarked upon its fatal journey.
I say to the Minister that we would much prefer that he operate with the power he now has, that he recognize the potentiality for constitutional dispute. Not only is there the Constitution within Canada but there is also a serious question of jurisdictional dispute between the Government of Canada issuing a certificate of death, on the one hand, and a jurisdiction outside of Canada which would have the authority and the requirement to investigate into the facts surrounding any death of any person, and clearly establish for all time who it was that died before any action taken by the federal Government could be considered legal and, therefore, proper.
Having made those few brief remarks in summation, 1 would ask the Minister to give some consideration to my argument. Perhaps he could operate within the laws which now exist without making these changes and running the risk of the problems I anticipate he could have.


Mr. Alan Redway (York East):: Mr. Speaker, when Bill C-70, the Act to amend the Family Allowances Act, came on for second reading in the House, there was a considerable amount of debate which revolved around Clause 5, the whole question of the presumption of death and of the issuing of a death certificate by the Minister. A number of members spoke with respect to this clause and expressed their deep concern about the idea of the issuing of a death certificate. It was not, in the terms that the Hon. Member for Hamilton Mountain (Mr. Deans) expressed today, the constitutional question, but it was in terms of the impact and trauma which the issuing of a death certificate has on the family which is involved in receiving those payments.
Although a number of Hon. Members referred to this problem, I was particularly struck by the comments of the Hon. Member for Thunder Bay-Atikokan (Mr. Angus) when he said in the debate that he had had the experience of having to convince the powers that be that some senior citizens were really alive. Can you imagine the feelings of a lady receiving a


Family Allowances Act, 1973
notice from the Government of Canada, through a bureaucratic mix up, that her husband, who is sitting right beside her, is dead? That is the sort of problem which the Hon. Member pointed out has been occurring, and could occur, under a similar type of legislation to that which already exists in the Old Age Security Act and in the Canada Pension Plan legislation.
There is a provision similar to the existing Clause 5 of Bill C-70 in both of those Acts. The problem, as pointed out by the Hon. Member for Thunder Bay-Atikokan is one which struck me particularly at the time. When the Bill was referred to committee, that problem continued to reoccur. We continued to have people make representations about that aspect of the issuing of a death certificate, and in fact there were representations made to the legislative committees dealing with the subject by a number of organizations and people on that very issue. Particularly, they came from the Child Find Organization in British Columbia, in Saskatchewan, in Manitoba and in Ontario. They all expressed concern about this aspect of the legislation. In addition, the Children's Aid Society expressed similar concerns. As a result, I felt we should try to come up with different wording to achieve the necessary purpose the Minister and his Department had in mind, that of the need for a final determination even though a death certificate had not been issued. That need arises when a child disappears and there is evidence to indicate the child is dead. The Minister and his Department would be in a position then to suspend payment of the family allowance, but they would not be in a position actually to cancel the account and stop paying once and for all. It was with that in mind that the Minister and his Department wanted to introduce this concept in the same way as it exists already in legislation covering old age security and Canadian Pension Plan payments.
An effort was made in committee to come up with new wording. A number of drafts were prepared and discussed with the Minister and his officials. Unfortunately, although I put forward an amendment at that time somewhat similar to Motion No. 8 as it is originally on the Order Paper, there was no agreement as to whether or not this was appropriate wording to solve the problems involved. However, after long negotiations and a total of seven separate drafts put together by myself and the Department, the Minister agreed, as he very kindly indicated in his opening remarks the other day, that Motion No. 9 standing in my name was acceptable as an amendment to the Bill. Therefore, Clause 5 would be amended by Motion No. 9. This is a very commendable action on the part of the Minister. It shows a real willingness to deal with the problems and concerns of the public. It tries to resolve them in a way which will solve the Department's problem while at the same time being sensitive to the concerns of the people of this country. What has been achieved here is a solution which will accomplish both those ends. That is why I put it forward and I hope the House will adopt the motion as indicated with the support of the Minister and the Government.
I would like to address for a moment or two the concerns raised by the Hon. Member for Hamilton Mountain concerning the constitutionality of this issue we are dealing with. It seems to me that his concern and the legal opinion he has obtained rests entirely on the question of the division of powers between the provinces and the Parliament of Canada regarding the issuing of a death certificate; What we are talking about here, of course, is not the final, absolute death certificate. We are talking about a departmental procedure under this legislation which deals strictly with this legislation and not with the final death certificate. We are only talking about a procedural matter here. Even that, and even the concern regarding the death certificate, I submit has been overcome by this amendment, Motion No. 9. We are no longer talking about a death certificate. A death certificate will not be issued by the Minister at any time as a result of this procedure. There will be a determination or fixing of a date by the Department as to when payments will stop. There are provisions to change that date if circumstances warrant. It is not a death certificate, it is only the fixing of a date in order to solve a procedural problem which the Department has. There is no constitutional issue here in any event, even if there was one originally, which in my opinion there was not.
Having said all that, it would be my fervent hope that the House will see fit to adopt Motion No. 9 to accommodate both the concerns of the Government and the families involved, thereby showing that the Government and this Parliament are sensitive to those concerns.


Jean-Robert Gauthier: Mr. Speaker, I think the Hon. Member for York East (Mr. Redway) made a very good point regarding death certificates. Obviously, the Minister of National Health and Welfare (Mr. Epp) cannot issue a death certificate. Under our common law system, the provinces are responsible for declaring that a person is deceased, and 1 think it is then up to the courts to confirm the declaration.
In fact, Mr. Speaker, I have a few comments to make on amendment No. 4, of the grouped amendments Nos. 4, 5, 6, 7, 8 and 9.
Mr. Speaker, Clause 4 is concerned with remission. The explanatory notes tell us that this is a new clause and that the amendment would allow for the remission of amounts in certain circumstances.
Mr. Speaker, if we take a closer look at this clause, we see that its purpose is to tighten up the wording so that the Minister cannot invoke presumption of death of the child as provided in Clause 5, on which 1 would like to comment later on. Otherwise he would have the power to require that parents repay certain family allowance payments made during the previous months.
Mr. Speaker, in speaking to the motion before the House, we cannot ignore the issue of presumption of death of the child. I did not have a chance to go to committee, but I know it


is a matter that raised considerable debate. The legal advisers had a chance to explain, and the Minister's legal advisers also commented on the subject, and they all said, as far as I know, that of course the Minister does not have the right to make the presumption of death of a child. As I said before, under our common law, this right belongs to the provinces, and we on this side of the House believe that if the question is not dealt with by the province it should be dealt with by the courts, in other words, not the provinces but a judge in a province should be authorized to do so.
Mr. Speaker, I would like to refer to the Conference on Conformity and Uniformity in Canadian Law. Section 13 of the Uniform Vital Statistics Act defines the conditions for registration of deaths and requires that the decease of any person occurring within the province be recorded as provided under the Act. Here again, according to the legal experts I consulted, it is clear that presumption of death is a matter of provincial jurisdiction.
In my experience as a Member, Mr. Speaker, I often came across similar cases, for example respecting old age security pensions, where cheques were still being addressed to the names of retired people after death. The province failed to tell the federal Government about such deaths-and it is the province's responsibility to do that-so the payments continued. There have been cases of fraud. Some of the circumstances are unbelievable, and I remember a case in my constituency which cost thousands of dollars to a person who did not know that he was actually carrying out a fraudulent operation when selling food to an institution for retired people, because the cheque deposited to pay for the food was made out to the name of someone who had been dead for almost a year. The Minister of National Health and Welfare could not say that someone had died, she did not even know about it. It is up to the province. Under provincial common law the province is responsible for dealing with such matters. I would not want anybody to think we want or wish the Minister would assume that right.
Mr. Speaker, I would also like to remind you that, in the opinion of the Joint Standing Committee of the Senate and the House of Commons, as it is specified in the proposed amendment, a judge must issue the death certificate and this procedure should not come under ministerial responsibility. This is further support to the argument whereby the Minister should not have the right to presume death, but that ought to be done by the judge of a court.
Mr. Speaker, the Bill also has constitutional implications and in my opinion, is subject to certain sections of the Constitution. For instance, I have in mind Clause 5 of the Bill, the clause which concerns the presumption that a child is dead and which reads as follows next to the heading "Presumption as to death of child":
Clause 5: New. This amendment would allow the Minister to presume a child to be dead where the Minister has reasonable grounds to believe that the child is dead.
Family Allowances Act, 1973
Mr. Speaker, we on this side of the House are particularly concerned about Clause 5 which deals, as I said, with a provincial jurisdication. I suggest it is up to the courts to rule whether a person, even a child, is deceased or not. I do not think that we on this side would want to leave things as they stand now in Clause 5 and allow the Minister to declare that such a person is presumed to be dead and, consequently, to take away from the parents any family allowance to which they were entitled.
We feel, therefore, that it is important to keep on paying family allowances when a child has disappeared. On this, I feel it is normal to appeal to the Minister and tell him: When a child has been lost or absent from his home for a long time, any parent would continue searching for him. As parents, there are things we must do, for instance, cooperate with the police in their efforts to find the child. Also, incur legal and travelling expenses to hasten the return of the disappeared child and ensure a serious and thorough search. The bereaved parents have to pay for a great many things, including photos, telegrams, telephone calls, fees to people who specialize in these things.
Having been involved for 11 years in education, Mr. Speaker, I remember the great many phone calls I received from concerned parents who find that, at 6 o'clock in the evening- it gets dark very early in January-their child had not yet returned from school. What do they do in such a case? Generally, they call the police, the school board or the school principal, and a great many other people. They anxiously look everywhere and face various problems. I suggest, therefore, that the expenses they must incur searching for their children could be reduced somewhat if they continued receiving family allowances.
Mr. Speaker, I do not want to deal any further with this motion. I should like to return later to amendments 6, 7 and 9 and submit arguments concerning them.


Mr. Ian Waddell (Vancouver-Kingsway):: Mr. Speaker, my remarks in this debate will concern the groupings and certain sections of the Act. The Hon. Member for York East (Mr. Redway) stated that we are only talking about a procedural matter in giving the Minister of National Health and Welfare (Mr. Epp) the authority to declare a missing child dead. I do not believe it is a procedural matter but a question that the Government should consider in more detail because it is on a very slippery constitutional slope.
I have looked at some Acts and Law Reform Commissions reports. Perhaps my friends to my right could let me hear myself think.


The Acting Speaker (Mr. Paproski):: Order, please. The Hon. Member who is having a conversation is well aware that he is creating a disturbance by crossing back and forth be-


Family Allowances Act, 1973
tween the Chair and the Hon. Member who is speaking. The Hon. Member for Vancouver East.


Ian Gardiner Waddell: Thank you, Mr. Speaker. I would ask my friends in the Liberal Party to conduct their conversation behind the scene.
There are a number of matters that the Government should take into account with respect to the legal argument. It should read The Uniform Law Conference of Canada on Vital Statistics. It should read The Canadian Encyclopedia Digest of Ontario with respect to Vital Statistics, Title 146 as well as Title 57 on Life and Death. The evidence section of that specifically shows that the usual practice in our law is that the provincial court must declare someone dead. It is a serious procedure and the person asking for that declaration of death has a burden of proof to show that the person has been missing and has not made any contact with anyone else.
The old common law required a period of seven years to expire before someone could be declared dead. However, someone could be declared dead sooner if the proper evidence were presented. This required a preponderance of evidence, not evidence beyond a reasonable doubt as in a criminal case.
This Bill essentially gives the Minister divine power to declare a missing child dead as a procedural matter, according to my friend from York East. I believe that this is an emotional matter for the parents of missing children. If the Minister of National Health and Welfare can declare a child dead according to an administrative act, it may mean that the police will stop looking for that child. Rather than being an administrative procedure, it could be an emotional blow to parents whose children have been declared dead by the federal Government.
It appears, from a review of the evidence from the committee, that this provision was slipped into this Bill dealing with the deindexation of family benefits. One group, namely Child Find Quebec, was able to express its concern only in a minimal way. Our critic in this area, the Hon. Member for Vancouver East (Ms. Mitchell) tells me that other groups who are interested in this problem never had an opportunity to respond to this question.
I caution the House that when the Minister says that this is a procedural matter, it means that the federal bureaucracy wants to proceed quickly without perhaps considering the human cost and constitutional consequences.
Let me draw to the attention of the Minister the Uniform Presumption of Death Act which was drawn up by the Uniform Law Conference of Canada in 1976. That Act includes a section dealing with the making of an application by originating a notice of motion and states that the court must be satisfied that a person is missing and appears to be dead.
I understand that the bureaucracy is interested in having a fast procedure. For instance, it could very easily cut off the child allowances for those children who died in the Air India crash. I can understand the bureaucratic urge to be able to cut off easily the allowances of other missing children. On the other hand, we must consider the effect of this on the parents. The Hon. Member for Ottawa-Vanier (Mr. Gauthier) talked
about the use of the family allowance by parents to pay for the costs of searches, telephone calls and so on.
I suggest that the Government could delay this and make the proper applications to a provincial court, as has been the tradition in our law.
Let me cite the Quebec Civil Code. Article 70 of the Quebec Civil Code states:
Any death which has occurred in the Province of Quebec may be judicially declared in cases where, in the opinion of the court-

In the opinion of the court.

-it may be held to be certain and it is impossible to draw an act of burial.
The same applies when the death has occurred outside the Province of Quebec or when it is impossible to establish the place where it occurred, if the deceased had his domicile in the Province of Quebec.

Clause 71 goes on to talk about fixing a date of death taking into account the presumptions drawn from the circumstances, and so on. That is the law of Quebec. The traditional law in Canada is that the provincial courts declare death.
It is not good enough to say, "Well, the provincial law is talking about a death certificate". That is getting out of the matter on a technicality. I do not think that will hold up in court if it is constitutionally challenged. I know the Department has said: "Well, we have been doing this in the Canada Pension Plan". We have the right to declare ages and so on, which normally one would think would be provincial law. I say that is apples and oranges. One might argue that that has never been challenged.
Has the Minister consulted the provinces? I note from debates in committee that the Member for Vancouver East, considering that this is a possible constitutional question and considering it changes fundamentally the law of Canada, asked whether there had been any consultations with the provinces. At page 15:24 of the committee hearing for November 21, 1985, Mr. Fortier said:
I think I can answer some of your general concern here. I was just consulting with my legal advisor, who tells me that there has been no consultation with provincial authorities. They feel that they are fully within their authority to legislate in this matter and there is no need to consult at this level.
I think that is irresponsible. If you are walking into a provincial domain, which is so set in Canadian law, both in Quebec civil law and English common law, you should at least consult with the provinces.
I refer to the Standing Joint Committee of the Senate and of the House of Commons on Regulations and Other Statutory Instruments, on which I have the privilege to serve, which has a check-list of things to scrutinize when studying regulations. I know this is not a regulation but a Bill, nevertheless I think it is worth looking at.


Check No. 6(b) says that the regulation:
-makes the rights and liberties of the subject dependent on administrative discretion rather than on the judicial process.
This Minister, and I say this advisedly, who is a man of God, a religious and a good man, is now trying to play God in this Bill. He is declaring kids dead on his own whim without showing a court or a third party any particular evidence. 1 think that is dangerous. I think it is bad law and I think the Government could run into constitutional problems with this. The Government should take another look at it.


Hon. John Wise (Minister of Agriculture):: Mr. Speaker, this has been a very interesting debate. We should recognize that the language in Bill C-70 relating to certificates of presumption of death is currently in two other federal Acts, the Canada Pension Plan and the Old Age Security Act. The Canada Pension Plan Act deals with children's benefits for orphans and the children of persons receiving disability benefits. The language has been in the Canada Pension Act since its inception in the mid 1960s, 1 believe, in 1965 and 1966. It is interesting, Mr. Speaker, that no province has ever considered this an intrusion into its jurisdiction, nor has any other foreign country.
Therefore, I wish to inform the House that there have been consultations among the representatives of the Parties in this House and that it has not been possible to reach an agreement pursuant to Standing Order 82 or Standing Order 83 with regard to the allocation of time to the report stage and third reading stage of Bill C-70, an Act to amend the Family Allowances Act, 1973.
Therefore, at the next sitting of the House it is my intention to propose the following motion pursuant to the provisions of Standing Order 84:
That, in relation to Bill C-70, an Act to amend the Family Allowances Act, 1973, one sitting day be allotted to the consideration of the report stage of the said Bill; and one further sitting day be allotted to the consideration of the Bill at the third reading stage; and
That fifteen minutes before the expiry of the time provided for the consideration of Government business on the above-mentioned sitting days, any proceedings then before the House shall be interrupted, if necessary, for the purpose of this Order and, in turn, every question necessary to dispose of the said stage of the said Bill shall be put forthwith and successively, without further debate or amendment, Mr. Speaker.


Jean-Robert Gauthier: Shame!


Mr. Ouellet:: Once more.


The Acting Speaker (Mr. Paproski):: Debate. The Hon. Member for Saint-Leonard-Anjou (Mr. Gagliano).


Mr. Alfonso Gagliano (Saint-Leonard-Anjou):: Mr. Speaker, I would like to say a few words this morning during this debate on the motion moved by my colleague for Montreal-Sainte-Marie (Mr. Malepart) concerning the clause under which the Minister has the power to decide that a child who had disappeared has died and to stop sending family allowance cheques. This power which the Minister wants to give himself is, in my
Family Allowances Act, 1973
opinion, very important and it not only could, but will, in my opinion, create total confusion in our confederative system. First, the power to declare a person dead comes under provincial jurisdiction. If the Minister were to declare someone, in this case a child, dead when the province has not done so, whose decision will take precedence? Which will be the right one? Would the child be considered dead or not?
If I may, Mr. Speaker, I would like to refer for a moment to my experience in education. In Quebec, the school boards receive subsidies from the provincial Government for each child. Every year, a statement has to be prepared and a statistical report sent to the provincial Department of Education to determine how much the school board is entitled to receive.
In such a case, especially in the education system and for school age children, in the eyes of the school board, the Department of Education has authority, which would create incredible confusion for the parents and people in general. Would the child be considered living or dead since the Minister can sign this certificate and declare immediately that the child is considered dead and stop the cheques.
The second thing which might cause confusion is the cashing of the cheque. Here also, I refer to my own experience as an accountant. My customers have often had serious problems in the past.


Mr. Tobin:: Mr. Speaker, I rise on a point of order. I believe the comments being made by the Hon. Member are some of the most relevant comments we have heard this morning and extremely important if we are to devise in this House good legislation to serve all the people of Canada. It is for that reason that I would humbly-although I know he is listening well-ask the Minister of National Health and Welfare (Mr. Epp) to pay particular attention during this debate. It is extremely important-


The Acting Speaker (Mr. Paproski):: I appreciate what the Hon. Member is saying. I know the Hon. Minister pays attention to most of the speeches here and I know, now that the Hon. Member for Humber-Port au Port-St. Barbe (Mr. Tobin) has brought it to his attention, that he will be listening.


Brian Vincent Tobin: Mr. Speaker, on a point of order-


The Acting Speaker (Mr. Paproski):: That is not a point of order-


Brian Vincent Tobin: Another point of order, Mr. Speaker-


The Acting Speaker (Mr. Paproski):: This is debate. The Hon. Member is wasting the time of the Hon. Member for Saint-Leonard-Anjou (Mr. Gagliano). Is there another point of order?


Brian Vincent Tobin: No, thank you very much, Mr. Speaker.


Family Allowances Act, 1973


Alfonso Gagliano: Mr. Speaker, I was just speaking about the problem that cashing the family allowance cheques could create, especially for the small corner stores. Months often go by before someone realizes that a child has disappeared or has died.
Under the legislation, if the Minister decides after a certain time, such as one year, to issue a certificate declaring the child dead, stop the cheques and ask for repayment, when the store owner tries to get his money back from his customer, he will be told: "Well no, my child is not considered dead because no court in this land has declared him dead." You can imagine the fight there would be before the courts. The parents of this child would have to hire lawyers and spend more money. Not only will their child have disappeared, but they will also face additional expenses and other very unpleasant problems.
Mr. Speaker, this is why I support the motion of my colleague which adds a new element to the legislation, namely a waiting period of at least five years during which time the search can continue and all these aspects can be considered.
Mr. Speaker, we are trying to debate this issue in this House and to try to find a perfect solution, but the Hon. Minister of Agriculture (Mr. Wise) has just imposed closure.
Mr. Speaker, I object to this procedure which is unfair and undemocratic. For my part, Mr. Speaker, I move:
That the debate be now adjourned.


The Acting Speaker (Mr. Paproski):: Is the House ready for the question?


Some Hon. Members:: Question.


Alfonso Gagliano: Mr. Speaker, I have just moved immediate adjournment of the debate to protest against the proposal of the Minister of Agriculture (Mr. Wise).


The Acting Speaker (Mr. Paproski):: Could I have the motion, please, and I need a seconder for it? Is it the Hon. Member for Ottawa-Vanier (Mr. Gauthier)?


Jean-Robert Gauthier: Sure.


The Acting Speaker (Mr. Paproski):: It has been moved by the Hon. Member for Saint-Leonard-Anjou, seconded by the Hon. Member for Ottawa-Vanier, that this House do now adjourn-


Jean-Robert Gauthier: No. That the debate-


The Acting Speaker (Mr. Paproski):: That the debate do now adjourn.


Jean-Robert Gauthier: That the debate be now adjourned.


The Acting Speaker (Mr. Paproski):: The next time, would you please write it out fully so that I know exactly what it is. Is the House ready for the question?


Mr. Epp (Provencher):: Mr. Speaker, I rise on a point of order. There seems to be some question in the your mind as to exactly which word is being used. Could we have a clear example of what in fact has been submitted?


Brian Vincent Tobin: Mr. Speaker, I rise on a point of order. The Hon. Minister of National Health and Welfare (Mr. Epp) knows that the Speaker in the chair is one of the most competent men who could possibly be in the chair. He has heard the words of the Member being shouted to the Speaker. Clearly everyone in the House has heard it. The motion is that the debate be now adjourned. The Minister of Health is not helping his cause by engaging in these kinds of delaying tactics.


Jean-Robert Gauthier: I wrote it down.


The Acting Speaker (Mr. Paproski):: May I read it again, please? It is moved by Mr. Gagliano, seconded by Mr. Gauthier, that the debate be adjourned. Is the House ready for the question?


Some Hon. Members:: Question.


The Acting Speaker (Mr. Paproski):: All those in favour of the motion please say yea.


Some Hon. Members:: Yea.


The Acting Speaker (Mr. Paproski):: All those against please say nay.


Some Hon. Members:: Nay.


The Acting Speaker (Mr. Paproski):: In my opinion the nays have it.
And more than five Members having risen:


The Acting Speaker (Mr. Paproski):: Call in the Members.
And the division bells having rung:


Mr. Speaker:: It being six o'clock p.m., the motion before the House has lapsed in terms of Standing Order 9(1), and the House stands adjourned until tomorrow at eleven o'clock a.m. pursuant to Standing Order 3( 1).


[Stage Direction]
The House adjourned at 6.01 p.m.
[Stage Direction]
Tuesday, December 17, 1985