The Trudeau government's point man in the Senate is trying to thwart efforts by some senators to separate the proposed infrastructure bank from the budget bill by arguing the Red Chamber simply does not have the authority to make the change.
Peter Harder, the government's representative in the Senate, stood on a point of order Wednesday evening asking Speaker George Furey to weigh in on the constitutionality of a money bill originating in the upper house.
Independent Quebec Senator André Pratte, appointed by Prime Minister Justin Trudeau, has been leading the charge to split the bill.
He introduced a motion in the Senate to divide up the bill to allow for more time to study the creation of an infrastructure bank. He told CBC News Tuesday that he has serious concerns about the bank's governance structure, its risk to taxpayers and its possible infringement on provincial jurisdiction.
While the government, and Harder, might be ardently opposed to the move, Pratte said he is comfortable he has enough votes from his fellow Independents, and some Liberal and Conservative senators, to split the bill.
Money bill can't start in the Senate: Harder
Harder pointed to section 53 of the Constitution, which stipulates that any bill that appropriates funds or imposes taxes must originate in the House, and there must be deference to the elected chamber on these matters. He said the creation of the bank is integral to the Liberal government's ambitious infrastructure spending plans.
"A money bill may not commence in the Senate ... This motion [by Pratte], I would therefore submit, is out of order," Harder said.
"Were the present motion accepted as in order, and subsequently adopted, this chamber would, as a result, overstep its constitutional authority by creating a bill appropriating part of the public revenue," the Ontario Independent senator said, contending that two new budget implementation bills would have to be created if Pratte's motion were to pass.
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Harder cited a series of rulings by previous Speakers that found attempts by the Senate to divide bills originating in the House as out of order, pointing to one made by then-speaker Guy Charbonneau in 1988, which ruled that attempts to divide a money bill were beyond the powers of the Red Chamber.
"While the Senate's authority to amend or defeat money bills is not in question, I submit that the Senate cannot alter, through division, the principle of a money bill without the prior consent of the House of Commons," Harder said.
Not without precedent
But Independent Senator Elaine McCoy said splitting a bill and having the House of Commons later approve that split, is not without precedent. In 2002, the Senate divided Bill C-10, separating changes to the Firearms Act from the creation of new animal cruelty provisions in the Criminal Code.
The the bill was divided into two pieces of legislation, were passed by the Senate and later passed the House.
"We are masters of our own powers and we can indeed do that," McCoy said.
Quebec Liberal Senator Joan Fraser cautioned Harder that it might be preferable for him to just agree to split the bill, rather than see the entire budget bill defeated or gutted at committee.
Fraser said she does not believe splitting off the bank provisions will create a separate money bill. "With Bill C-44, we would not be creating two new bills. We would be sending back to the Commons the bill they sent to us, but in a different form."
Fraser, appointed by former Liberal prime minister Jean Chrétien, dismissed Harder's contention that the Senate must first seek approval from the House to divide a bill. "I think it would be an infringement on our duty to maintain our independence as a separate chamber of Parliament to seek prior consent of the House of Commons for anything we do."
If Furey agrees with Harder's argument, Pratte's motion will be dropped from the order paper.
When asked about the possibility of his motion being ruled out of order, Pratte said he was confident that the move to divide the bill was well within the rules.
"There's no case where the Senate has abused its power here. It's doing what's its supposed to do," Pratte said in an interview with CBC News.
But the infrastructure bank isn't the only issue facing the Liberal government's budget bill, which could be further amended at the Senate's finance committee.
The legislation is facing sustained resistance in the Red Chamber from all sides, with a cross-partisan group of senators taking issue with provisions that would automatically raise taxes on alcohol each year in Canada.