44th Parl. 1st Sess.
March 27, 2023 11:00AM
Mr. Speaker, I am rising on a point of order this morning respecting the government's Motion No. 2 concerning the Senate amendments to Bill C-11.
In my view, the notice of motion engages the rule of anticipation and cannot be proposed to the House later today.
Normally such a point of order should be raised when the motion is actually proposed to the House, but given that it is listed on the Projected Order of Business for consideration in an hour's time, the complexity of the issues involved and as a courtesy to you to find some time to prepare a ruling, Mr. Speaker, I wanted to rise as soon as the House opened this morning.
On March 8 and March 9, the House considered a government motion concerning the Senate's amendments, a motion which is now referred to as Motion No. 1 on the Notice Paper, to which my colleague, the hon. member for Lethbridge, has moved an amendment.
Flash forward to Friday evening, when today's Notice Paper was published, we see this new motion, Motion No. 2, from the Liberal government. They are both very long motions, so I will spare the Speaker and the House from hearing them each read out loud.
Suffice it to say, I studied them very closely to see what might be different between them. Lo and behold, the English versions of the motions are absolutely identical. When one refers to the French versions, one spots the difference, which is a single instance of a “1” and a “2”, in Roman numerals, being transposed. That is it.
Let me explain for the House briefly what that means. The Liberal government made a drafting mistake; it got its motion wrong. Now it wants a do-over. If one is a golfer, one might call it a mulligan. All this is on a policy Liberals are mistakenly pursuing on a bill they keep botching and on amendments they keep flubbing, and now a motion they cannot even get right, and those people want to control the Internet.
Setting that aside, I will get back to the procedural concern. The substantive effect of these two motions is identical. Indeed, the text in one official language is identical. The words used in the other official language are all the same. It is just two numbers that are transposed.
Having established these motions are, for all intents and purposes, identical, let me refer to page 568 of House of Commons Procedure and Practice, which explains the rule of anticipation. It reads:
According to this rule, which applied to other proceedings as well as to motions, a motion could not anticipate a matter which was standing on the Order Paper for further discussion, whether as a bill or a motion, and which was contained in a more effective form of proceeding (for example, a bill or any other Order of the Day is more effective than a motion, which in turn has priority over an amendment, which in turn is more effective than a written or oral question). If such a motion were allowed, it could indeed forestall or block a decision from being taken on the matter already on the Order Paper.
It goes on to say:
The rule is dependent on the principle which forbids the same question from being decided twice within the same session. It does not apply, however, to similar or identical motions or bills which appear on the Notice Paper prior to debate. The rule of anticipation becomes operative only when one of two similar motions on the Order Paper is actually proceeded with. For example, two bills similar in substance will be allowed to stand on the Order Paper but only one may be moved and disposed of. If the first bill is withdrawn (by unanimous consent, often after debate has started), the second may be proceeded with.... A point of order regarding anticipation may be raised when the second motion is proposed from the Chair, if the first has already been proposed to the House and has become an Order of the Day.
Though the government House leader might argue that questions about this rule do not come up often, there are a series of precedents through the years that are relevant to the issue before the Chair today.
Mr. Speaker Michener, on March 13, 1959, at page 238 of the Journals, held, in relation to the rule of anticipation concerning nearly identical pieces of legislation:
...I first considered whether the motion should be accepted to stand on the Order Paper at the same time. I am satisfied that this was quite in order, but I came to the conclusion that it would be quite improper to permit a second debate on identically the same subject matter as the subject matter of a debate which was already proceeding. In other words, the House is not going to occupy itself on two separate occasions under two separate headings with exactly the same business. That would not be reasonable, and I can find no support or authority for following such a course. Thus I have come to the conclusion that this bill must stand, as well as the other bill in the same terms, or at least in terms for exactly the same purpose, until the bill which was first moved has been disposed of either by being withdrawn, which would open the door for one of these other bills to proceed, or by way of being approved, which would automatically dispose of these bills because the House would not vote twice on the same subject matter any more than it would debate the same subject matter twice.
Mr. Speaker Lamoureux, on July 7, 1969, said, in a ruling found at page 1317 of the Journals, concerning a government motion to amend the Standing Orders, anticipating a motion to concur in a report of the former standing committee on procedure and organization:
I might say, having taken into account the arguments advanced by members of the opposition, that if the honourable Member for Grenville-Carleton had moved his [concurrence] motion I would have recognized that the rule of anticipation would have given his motion precedence...to the motion that is now before the House in the name of the President of the Privy Council. I would have so ruled...
A much more recent predecessor of yours, Mr. Speaker, considered the matter of two committee instruction motions that varied by a difference of just five words. The Chair ruled, on June 11, 2014, at page 6649 of the Debates:
Upon examination of the section of O'Brien and Bosc, upon which both House leaders have relied extensively for their arguments, it seems to the Chair that the key concept is the question of whether or not the motions are substantially the same.
Upon examination of both motions on the notice paper, it does seem that the motions are substantially the same and that the principles cited by the government House leader as to the practice of the House are persuasive to the Chair. Accordingly, we will not be proceeding with the motion at this time.
The rule of anticipation is a concept which is not unheard of in the current Parliament, or to you, Mr. Speaker, for that matter.
On May 11, 2022, the Deputy Speaker, at page 5123 of the Debates, ruled that Bill C-250, the private member's bill proposed by my colleague, the hon. member for Saskatoon—Grasswood, could not be debated and would be rendered pending, following the second reading of Bill C-19, a budget implementation bill that contained clauses similar to my friend's bill, because:
The House should not face a situation where the same question can be cited twice within the same session, unless the House's intention is to rescind or revoke the decision.
After Bill C-19 had received royal assent, you made a further ruling, Mr. Speaker, on September 20, 2022, at page 7341 of the Debates, to discharge Bill C-250. In doing so, you said:
...there is a long-standing principle to keep or avoid having the same question from being decided twice within the same session
A similar case can be found in your June 6, 2021 ruling, at page 6142 of the Debates, whereby Bill C-243, sponsored by the hon. member for Thunder Bay—Rainy River, could not be proceeded with following the second reading of a Senate public bill, Bill S-211. Bill C-243 has been listed on the Order Paper every sitting day since, under the heading “Pending Business”.
To recap the current case, the government's Motion No. 1 concerning the Senate amendments to Bill C-11 was moved, as I mentioned, on March 8, and then became an Order of the Day. Therefore, Motion No. 2 may only be proceeded with if Motion No.1 has been withdrawn, as the various authorities would observe. Otherwise, proceeding with Motion No. 2 would offend the rule of anticipation and cannot be proposed to the House, as forecasted, at noon today.
Mr. Speaker Casgrain's ruling on February 24, 1936, at pages 67 and 68 of the Journals, explains a possible way forward for the government concerning its Motion No. 1:
The adjournment of the debate, last Thursday on the second reading of Bill No. 2...meant that the question shall again be considered at a future sitting when the order for Public Bills will be reached. This is what is called, in parliamentary procedure, appointing a matter for consideration by the House. [Erskine] May...gives many precedents showing that the discussion of an appointed matter cannot be anticipated by a motion...There is sufficient similarity in the Bill and the Motion to confine them to one debate...The difference in details between the two propositions may be dealt with by moving amendments... but it is not sufficient to justify a duplication of the debate. It is a well known principle that the same question cannot be raised twice in the same session.
The difference between the government's Motion No.1 and Motion No. 2 could be addressed by an amendment to Motion No. 1. It is that simple, really.
All the Liberal government needs to do is allow the debate to continue on the amendment moved by the hon. member for Lethbridge. Once that debate has eventually concluded and the vote taken, the government could, in the event that my colleague's thoughtful amendment is not adopted by the House, of course, once debate resumes on the main motion, move its own amendment to achieve the change Motion No. 2 contains, which would be up to the House to discuss and decide.
If you were to find my point of order to be well taken, Mr. Speaker, it would not be the first major procedural error the government has made in pursuing its flawed policy to control the Internet. On June 15, 2021, you ruled out of order many committee amendments made to Bill C-11's predecessor in the previous Parliament because the Liberals on the Canadian heritage committee had run roughshod over the rules and broke several of them in trying to rush the bill through Parliament before the opportunistic and unnecessary early election the Prime Minister called that August.
Now it seems that the Liberals are equally hasty in ramming their Internet control bill through the House once again. It is almost as if the government is in a rush to clear the decks for something to come.
I hope you will find in favour of my point of order, Mr. Speaker, and I look forward to your response.
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Mr. Speaker, I rise on a point of order.
I want to beg your indulgence, because I know there is normally not debate on motions. I just want to make sure something is very clear, because this morning I raised a point of order on the admissibility of the motion, and Conservatives will agree to this motion as long as the Chair views it as the scheduling of debate and as long as it will in no way prejudice your ruling on the admissibility of Motion No. 2.
Because the phrase “notwithstanding any Standing Order or usual practice of the House” is in this motion, I just want to make sure the Chair views this very clearly as a scheduling motion and not as something that would touch in any way on the point of order I raised earlier today.
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I would like to address the point of order raised earlier today, concerning government Motion No. 2 to concur in Senate amendments to Bill C‑11, an act to amend the Broadcasting Act and to make related and consequential amendments to other acts.
The House leader of the official opposition has raised concerns as the procedural admissibility of the government's new motion claiming that it is substantially identical to the motion that the House has been seized with since March 8, citing the ruling of anticipation. He contended that two motions cannot both be before the House at the same time, as stated in House of Commons Procedure and Practice, third edition at page 568, that the rule of anticipation is:
dependent on the principle which forbids the same question from being decided twice within the same session. It does not apply, however, to similar or identical motions or bills which appear on the Notice Paper prior to debate. The rule of anticipation becomes operative only when one of two similar motions on the Order Paper is actually proceeded with. For example, two bills similar in substance will be allowed to stand on the Order Paper but only one may be moved and disposed of. If a decision is taken on the first bill (for example, to defeat the bill or advance it through a stage in the legislative process), then the other may not be proceeded with. If the first bill is withdrawn (by unanimous consent, often after debate has started), then the second may be proceeded with.
In a ruling on November 2, 1989, Speaker Fraser, at page 5474 of the Debates, provided this helpful observation: “in the view of the Chair, two or more items are substantially the same if...they have the same purpose”.
This is the test to be applied when determining if an item of business is so similar that it cannot coexist with another item of business. In this case, while the difference between the two motions may appear to be minor, adopting the second motion would bring about a different outcome than adopting the first, in that it would result in a different amendment being accepted by the House in the French version of the bill. This means that the second motion is indeed substantively different than the first motion, and therefore, the concern over similarity is not present.
It should also be noted that, according to House of Commons Procedure and Practice, the rule of anticipation has never been part of our Standing Orders and, furthermore, is no longer strictly observed. Invoking the rule stating that a decision once made must stand, which is detailed on pages 590 and 591 of the third edition, is often more relevant than the rule of anticipation. Indeed, there are several examples, including some cited by the opposition House leader, of two items proceeding simultaneously until a decision is made on one of them. I would point out that the House has not yet made a decision on the first motion.
As I understand it, the objective of the second motion is to correct an error found in the first, an error that arose because the numbering of the amendments is not the same in English and in French. Allowing such an error to stand runs the risk that the English and French versions of the bill would be different, with different definitions being kept in each language, therefore making the will of the House unclear.
The opposition House leader argues that the appropriate course of action should be to make this correction by way of an amendment, which could be moved once the current amendment to motion 1 has been disposed of. While that is indeed one way of addressing the issue, the Chair does not believe it is the only way. Instead, the government has proposed to bring forward a new motion with the necessary correction.
Given that the substantive effect of the two motions is different and given that no decision has been made on the first motion, I am prepared to allow debate on Motion No. 2 to proceed.
I thank the members for their attention.
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