Senator Gold: On the point of order.

My apologies, colleagues. Members in the opposition have been heckling speakers — whether it’s me or any members — for years and interrupting us when we try to speak. In this very debate, Senator Plett impugned my integrity. He said that I misled this chamber, which was not true. He said that I moved this for my own personal motives — “self-serving motives” was the term I believe he used. That is speaking very much to motives. It saddens me to have to rise to even remind this chamber of what we all heard.

I think that what happened after the vote is a matter that is something that grown-up parliamentarians can possibly tolerate. I do not think it rises to intimidation, as you have characterized it. In that regard, Your Honour, I hope that you can dispose of this point of order quickly.

This is just yet one other attempt by the opposition to delay proceedings, to deny us as senators our democratic right to pronounce on a bill that has been before us for a very long time. It’s standing in the way of the Senate doing its job on behalf of Canadians. Thank you.

Senator Gold: That, too, fails the test of common sense.

However, I am hopeful, as I expect that, in due course, this chamber will decide that there has been enough waiting. We have much work before us to continue to modernize the Senate of Canada. Let’s get to it.

Thank you, Your Honour, for indulging me.

Senator Gold: Thank you for your question. You have misunderstood the point I was trying to make, so thank you for the opportunity to clarify it.

The context within which we’re debating time allocations — the context is the deliberate campaign to kill this bill. This is not an example of speeches being adjourned or time being taken to prepare a speech in order to make sure the contribution is constructive for the advancement of the bill. I cited your leader’s characterization of you as a “Spartan warrior” to illustrate the point that it is no secret, certainly not to members in this chamber. It is one thing to oppose a bill. It is another thing to enlist this body in an effort to kill a bill that has the democratic approval of the majority of the House of Commons and to do so while pretending to be simply seeking to improve the bill.

With the greatest of respect, you may be happy with the title of “Spartan warrior.” I would rather see myself as a defender of democracy, and time allocation is an appropriate tool to be used to combat dilatory, obstructionist delay tactics for purely partisan reasons. It is an appropriate tool to give this Senate and the senators who are summoned here to do work on behalf of Canadians the ability to pronounce, first, on whether or not they agree with the government’s proposal to add six more hours of debate and then have the question called, and, ultimately, at the end of the day, the senators have the right to pronounce whether or not they will accept my proposal to accept the message from the other house.

We were brought here to do work on behalf of Canadians. We were brought here to exercise judgment, and in that regard this motion that I am urging you to support is one which will give us an opportunity to do the job for which we were summoned here, the privilege to serve Canadians and to stop a never-ending campaign, a campaign that would never end but for the invocation of time allocation for the benefit of Canadians. Thank you.

Senator Gold: I’m very reluctant to not answer questions, but I’m also mindful that we have a finite amount of time. I will take one question out of respect for the senator who has asked me and for the institution. Then, however, with your indulgence, I’m not going to take any further questions to give everyone else who wishes to speak on this time to speak.

Hon. Marc Gold (Government Representative in the Senate), pursuant to notice of April 20, 2023, moved:

That, pursuant to rule 7-2, not more than a further six hours of debate be allocated for the consideration of the motion, as amended, to respond to the message from the House of Commons concerning the Senate’s amendments to Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.

Hon. Marc Gold (Government Representative in the Senate): Thank you, Senator Plett.

Before I begin my substantive comments, I would like to note some of the attributions that Senator Plett made: that I had misrepresented things to the Senate, that I lacked decency and that it was self-serving. I fully expect in my remarks to address the various points that he made. I will dispel those baseless characterizations, and I say this in sadness rather than in anger.

In regard to the first point, the motion that I moved today for which I gave notice yesterday was drafted with the assistance of our able colleagues at the Chamber Operations and Procedure Office. To assert that it was somehow deficient in form is baseless.

Second, Senator Plett’s second point with regard to the statement that no agreement had been reached also is without foundation. I will share with you, honourable senators, what transpired last week.

As Senator Plett correctly notes, we had a leaders’ meeting on Monday. On Monday, I stated to all my leadership colleagues that it was the government’s desire to have the debate on the message conclude by the end of last week. I put that on the table because when we look back at the history of how this Senate has dealt with messages from the House, on average, we have disposed of them in less than two days. At that time, as Senator Plett also mentioned, the leadership had not yet seen a copy of the message that we were proposing to debate and pass by the end of last week. When I asked for input from the leaders, as I always do, as to how many speakers they might have, Senator Plett said, “We haven’t seen the memo; why are you hiding it?” — I will leave all of that aside — “When we see the memo, we will get back to you.” He promised all the leaders on Monday that, upon seeing the memo, he would provide us with the information that I had requested. The memo, as Senator Plett correctly notes, was distributed some hours later that evening.

On Tuesday at scrolls, we asserted again our desire to have the vote conclude by Thursday. There was no commitment on the part of the Conservative Party. At some point during the week — and Senator Plett glosses over this, but I feel duty-bound to tell you — Senator Plett and I had a conversation where Senator Plett advised me that there was no way that this bill would be passed by the end of the week. That was a clear statement. On Wednesday, we repeated to scrolls, which the deputy leaders and legislative deputies attend, that we still held to the view that the Senate ought to dispose of this and vote on this by the end of the week — again, no commitment. On Thursday, we made the same statement to scrolls, again with no response.

Honourable senators, those of you who were here or who might have been absent but watching it on SenVu knew full well how the debate did or, maybe more accurately, did not progress once we started debate on the motion. It was adjourned, and very little debate from the Conservative side happened except for the amendments and the subamendments, which we all witnessed, and the bells that accompanied that.

Those are the facts with regard to what actually transpired. If, in fact — and it is not, in fact, the case — it was the case that a motion to allocate time allocation required consultation with other groups and leaders, it certainly had been done and satisfied the rule. There was no feedback, despite promises from Monday, and a clear statement that it would not pass last week, despite our continued insistence that it was our desire and expectation.

Now, I will return to this point in due course, but I want to turn to the broader point, the third point of Senator Plett. If you will allow me this, it is a root-and-branch attack on the ability of the government to ever use the tool of time allocation, apparently on grounds that since we are not a recognized party and we are unaffiliated — and there had been no agreement amongst recognized parties, of which there was only one — my only job is therefore as a passive taker of information. That is the way in which I would like to frame my remarks.

It is unfounded in terms of notice. The notice provision was valid as per the motion drafted by COPO — the Chamber Operations and Procedure Office — and presented in this chamber. The prerequisites that I will explain at greater length, under the rules, had been satisfied. Fundamentally, the position that Senator Plett and the opposition is taking is inconsistent with both the letter and the spirit and intent of the Rules, and is inconsistent with the proper functioning of the Senate.

I’m going to make the case today, honourable senators, that the interpretation of the Rules that has been presented by my colleague opposite is erroneous. As I said, it undermines the true spirit, the true intent and the meaning of Chapter Seven of our Rules. Before I tackle the nuts and bolts of the procedural question, allow me to admit that I’m somewhat perplexed and confused by the case that we’ve heard from Senator Plett.

Ever since the government launched this initiative toward a more independent and less partisan Senate, the Conservative Party in this chamber has fought tooth and nail for the recognition of the role of the opposition. For eight years, we have been told time and time again that the government-opposition dynamic is a fundamental, necessary and foundational feature of the Senate. The Westminster model has been invoked time and time again, as if it answered that point. Time and time again, this argument has been instrumentalized and weaponized to delay, disrupt, stifle and impede reasonable modernization of our Rules. To say that the Senate decided not to modernize the Rules or to leave things in place is rich. Those of us who have been around the Rules Committee table and others have seen how those initiatives were blocked, precisely on the grounds that any modernization failed to privilege the historic and deemed necessary government-opposition dynamic.

Yet today, as part of a long practice in history of delay and obstruction to kill this bill — let us be frank — as part of this publicly stated commitment, the argument is designed to undermine the role of the government by stripping it of the only procedural tools that it has to facilitate the timely review of government business, to countervail delay tactics and to serve Canadians in this chamber. The outcome of this argument would be nothing less than to leave government bills in limbo and the Senate as a whole hostage to tactics that are planned and coordinated by Conservative House of Commons leadership at weekly meetings of their national caucus. Again, those are the facts, colleagues, and those that are listening.

The image of our world here in the Senate and the Canadians whom we serve that we’re presented with through this point of order is one in which the sacrosanct official opposition has all the tools under the sun to prevent a proposed government bill from being passed, but the government has no procedural means of breaking an impasse, even if supported by a large majority in this chamber. A Westminster system for me, but not for thee. That is what the motion really tells us.

That being said, notwithstanding the glaring lack of policy coherence in the position put forward by Senator Plett, the crux of this matter is one of interpretation. This is a matter of interpreting our Rules, and that is perhaps the only thing that Senator Plett and I are going to agree on, although we don’t agree on how the Rules should be interpreted. However, this is about interpretation.

I argue that the interpretation by Senator Plett is erroneous because it will undermine the spirit, intent and meaning of Chapter Seven. It is a thoroughly narrow, overly rigid interpretation of rule 7-2 and Chapter Two. It seeks to remove, as I’ve said — forgive me for repeating myself — the Government of Canada’s ability to seek the dispatch of the nation’s business with time allocation.

The specific and clear intent of rule 7-2 — the entire scheme of Chapter Seven, colleagues — is to confer upon the Government of Canada, not to the leader of a political party, the ability to ensure that government business be decided upon. The point of order that was raised today is based exclusively on a literal, rigid interpretation and approach to rule 7-2.

Now, I don’t believe that’s the way we should interpret our Rules. But I will begin with my remarks on my own literal reading of rule 7-2 because although it is clear that a literal meaning of the Rules is not the approach taken by the courts that apply to Canadians, one might argue that’s fine and we shouldn’t apply it to our legislation or our Constitution, but to the Rules of the Senate, my goodness, that’s different.

Well, in my opinion, that is not a correct approach. If it’s good enough for our Constitution and our statutes, then a sensible approach to interpretation should be good enough for our Rules. The primary point of modern approaches to interpretation is to seek the true intent and the true objective of the Rules.

Let me quote rule 7-2(1). It provides as follows:

At any time during a sitting, the Leader or the Deputy Leader of the Government may state that the representatives of the recognized parties have failed to agree to allocate time to conclude an adjourned debate . . . .

From a literal standpoint, colleagues, the rule does not state that the representatives of the recognized parties have failed to agree “with each other or among themselves.” That’s not what the rule says. In fact, the Rules don’t even allow a leader that’s not the Leader of the Government to invoke time allocation.

[Translation]

The French version of this rule does not provide that the Leader of the Government must announce that the representatives of the recognized parties failed to agree, and I quote, “with each other,” to allocate time.

[English]

As such, the point of order, in effect, seeks to read into the Rules something that is not there: the words “with each other” in English and the words “entre eux” in French. This interpretation is clearly, therefore, incorrect. And to the contrary, it is clearly implied under the plain meaning of the rule that the leaders of the recognized parties must have an agreement with the Leader of the Government. The whole point of Chapter Seven is to provide a tool for the government to break dilatory delays.

Absent that agreement, the Leader of the Government may state that the representatives of recognized parties have failed to agree to allocate time. It is at all times under the plain meaning of rule 7-2 implied that they must disagree with the Leader of the Government. As I said in my opening remarks, there was never an agreement with the government leader at our leaders’ meetings, at one-on-one conversations with Senator Plett or at scrolls to agree that the debate would conclude this week. I remind you that rule 7-2 does not talk about agreement on the motion. It’s on the debate that has been adjourned.

Now, at the very least — although I believe my literal reading is the preferred one — the rule is certainly not as clear as my honourable colleague has implied. If that’s the case, any lingering ambiguity should be resolved in a logical and purposive manner. Indeed, where the language of a rule when applied in a given context creates or generates ambiguity, then it is proper to look at the general purpose and intent to choose among several possible meanings that appear more in tune with the general intent.

Before I get there, colleagues, there is another aspect of the plain meaning of rule 7-2 that would defeat this point of order. The rule does not provide that I, as Leader of the Government, must prove or demonstrate that the representatives of the recognized parties have failed to agree to allocate time. It merely provides that I must state that the representatives of the recognized parties have failed to agree to allocate time.

[Translation]

In French, rule 7-2 states that my only responsibility, before triggering the process for allocating time, is to “state” that the representatives of the recognized parties have failed to agree to allocate time.

[English]

Let me repeat in English. The only requirement that is set out in the Rules is that I state that there has been no agreement. That is my only burden.

On September 20, 2000, as Senator Plett has already invoked, Speaker Molgat had to assess the receivability of a motion to allocate time in which the existence of leadership consultations had been called into question, as they are today. I will quote again from Speaker Molgat and his ruling:

Honourable senators, the deputy leader has stated that an agreement has not been reached. I have no means of knowing whether an agreement will be reached. All I have before me is a motion stating that if they have reached no agreement at this point, the rule has been followed and the terms have been set out.

Hence, colleagues, I must not prove, convince, confirm or explain why, how or if the representatives of the recognized parties — or the representative of the recognized party in this case — have failed to agree to allocate time. So long as I, the Leader of the Government, have stated that the leaders of the recognized parties have failed to agree to allocate time to conclude and adjourn the debate, I have fulfilled the formal requirement of rule 7-2, and I may give notice as I did of the motion to allocate time. Once I’ve done so under a literal reading of the plain meaning interpretation of rule 7-2, the time allocation procedure has been validly triggered.

So if, as was suggested by my colleague, we are to rely on a purely literal reading of the rule, it is clear, in my humble opinion, that I’ve met my burden under the language of the rule.

However, notwithstanding all of that, I am strongly of the view that the analysis of a rule that applies to our parliamentary proceedings should not end with an assessment of its plain meaning, especially, colleagues, where this assessment would lead to an absurd outcome or one that is contrary to the clear and true intent of the rule itself. To do otherwise would be a disservice not only to our Rules, but to the body — the Senate — that the Rules are there to regulate.

Given this, in my view, the first consideration should be to favour a reading of the rule that fulfills its purpose. If you will indulge me, colleagues, I believe that it would be helpful to our Speaker, in the context of this particular point of order, to examine Canada’s laws of statutory and regulatory interpretation. In my humble opinion, these laws are relevant because this is the framework we have chosen to adopt in order to make sense of the laws and regulations that have been adopted by us, by Parliament and by provincial legislatures.

Now, it’s true that these rules are not technically binding on the Rules of the Senate, but they do provide, colleagues, a guide as to how we, as a country, view the interpretation of legal norms. For example, decades ago, Parliament adopted An Act representing the interpretation of statutes and regulations. Section 10 of that act is particularly instructive. It states as follows:

The law shall be considered as always speaking . . . so that effect may be given to the enactment according to its true spirit, intent and meaning.

Section 12 of the act further provides:

Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

The Supreme Court of Canada has also endorsed the purpose of approach as a primary tenet of legal interpretation, making it clear that judges should go beyond the legislative text and consider the object and context of the statute at issue. For example, one of the court’s landmark cases on legal interpretation is Rizzo Shoes, where the court said the following:

. . . Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone.

One might argue that this approach is limited to statute and regulation and it shouldn’t apply to parliamentary rules. To this argument, again, I would say, “Why not?” Why should we limit the interpretation of our Rules to a literal reading where that reading would lead to an absurd result, inconsistent with the object and purpose of the rule?

I would also point those who would argue for such a rigid and inflexible reading of rule 7-2 to existing authorities on the interpretation of parliamentary rules. I concede there is not that much on record in this regard. But there is one ruling delivered by the Speaker in the other place on April 14, 1987, that I believe we ought to follow in this evolving Senate.

At the time, Speaker Fraser reflected on the reconciliation of differences between legislative rules and the evolving nature of the political landscape and he said the following:

When interpreting the rules of procedure, the Speaker must take account not only of their letter but of their spirit and be guided by the most basic rule of all, that of common sense. . . .

. . . It is, when all is said and done, the profound sense of what is appropriate under certain circumstances and which is acceptable to reasonable people.

If there is any rule of interpretation that we ought to adhere to in this place, colleagues, it is the rule of common sense.

Implicitly, it is this rule of common sense that our own Speaker followed when he ruled on the question of the titles of Senators Bellemare and Mitchell, Legislative Deputy to the Government Representative and government liaison respectively. In his wisdom, the Speaker said:

Although details of practices relating to political affiliation have evolved over time, the basic principle remains that the Senate has shown a level of flexibility to accommodate senators’ reasonable wishes. This can be particularly important at times that the political landscape is evolving at a pace that exceeds the institution’s capacity to make formal changes. A level of accommodation is required to take account of this fact. . . .

. . . formal requirements need not always be rigidly binding. There can, within reason, be a level of adaptability that takes account of specific circumstances. Indeed the Senate has shown such flexibility in the past, and continues to do so. We have benefited from this.

. . . flexibility on such points can be reasonably understood as being in keeping with our parliamentary tradition and practice.

Colleagues, to put it bluntly, the interpretation of rule 7-2 put forward by my esteemed colleague is excessively literal, incredibly narrow and entirely inconsistent with both the coherence of Chapter Seven of the Rules and the purpose of time allocation. More than anything, it fails the test of common sense. It is not an exaggeration, colleagues, to posit that this interpretation, were it to be accepted, would lead to nothing less than a complete perversion of rule 7-2.

Colleagues, I do not believe that there is any doubt in this chamber as to the legal position I occupy. I occupy the position of Leader of the Government in the Senate, proudly styled with the title of Government Representative, to reflect the necessary and positive shift to a less partisan Senate. The two are interchangeable and — I should and would add — are now provided for by law.

As Speaker Furey noted in his ruling on the government deputy leader and Government Whip in the Senate:

In the days since this point of order was raised, Senator Harder has been addressed as both the Government Leader and the Government Representative. Under either title, no one was in any doubt who senators were speaking to.

The Government Representative Office in the Senate has been carrying out a range of other parliamentary functions reserved for the government which have never been disputed. These include the following: Rule 4-13(3), allows for the Leader or the Deputy Leader of the Government to reorder the sequencing of government business, as we did today and have done on so many occasions.

Rule 14-1(1) allows for the Leader or the Deputy Leader of the Government to table documents concerning the “administrative responsibilities of the Government.”

As noted on page 75 of Senate Procedure in Practice:

When the Senate has completed its business for the day as set out on the Order Paper and Notice Paper, the Deputy Leader of the Government usually moves a motion to adjourn the Senate.

Presently, it is the legislative deputy who has been handling adjournment proceedings.

Colleagues, in exercising my responsibilities as “the Leader of the Government” — which is how the opposition had been addressing me for three and a half years, until just recently I’ve been addressed as representative of the government — by participating in Question Period, which is reflected in rule 4-8(1), is it the official opposition’s desire that I not participate in Question Period to answer on behalf of the government?

Under rule 9-10, the Government Whip in the Senate, the government liaison, has the ability to defer a standing vote.

In relation to rule 12-24, the Leader of the Government in the Senate also tables government responses to committee reports where requested.

As noted on pages 67 to 68 of Senate Procedure in Practice, only the Leader or Deputy Leader of the Government can “give notice of a government motion” and are normally responsible for placing government bills on Orders of the Day upon receipt of messages from the House of Commons.

Both the Government Representative and legislative deputy are active participants in the “usual channels,” such as the scroll meetings at which government business is discussed. Not one of these roles has ever been challenged in this chamber.

Yet, we’re now debating whether I have the ability to exercise another government tool, that of time allocation. It is undisputed, colleagues, that time allocation has always been reserved for the government only and for government business only.

Its existence is the product of the fact that a particular category of business, that of government business, is given preferential treatment. Its existence is not a by-product of which recognized party may be in power. It exists for the Government of Canada, which I represent, regardless of its political stripes and regardless of how it chooses to present itself in the Senate, as the government has decided to do in its efforts to create a less partisan and more independent Senate. This is a fact, colleagues, that is overwhelmingly supported by the authorities.

As noted on page 107 of Senate Procedure in Practice, “Only the government can propose time allocation and only for its own business.”

In October 2013, Speaker Kinsella was called upon to rule on the receivability of a “disposition motion” that proposed to establish a process to deal with motions under other business that proposed to suspend three senators. In his ruling, Speaker Kinsella spoke of “the government’s time allocation powers.”

The speaker ruled that it would not be in keeping with the Rules and practices of the Senate to allow a process that could result in the application of the government’s time allocation powers to non-government business.

He added:

It is significant to note that under Chapter 7 of our Rules, the Government has, as already mentioned, the option of initiating the time allocation processes in relation to items in the category of Government Business.

Honourable senators, there is a coherence in our Rules. Government business has priority, and there are mechanisms to facilitate its dispatch. . . .

Given the Government’s important role, it has specific means, already discussed, to secure the dispatch of its business. . . .

These points have similarly been made by our recently departed colleague and procedural expert Senator Joan Fraser. She is the one who had raised the point of order. On debate, Senator Fraser said:

Chapter Seven of our Rules is all about time allocation, and it is very clear from the outset that time allocation is all about the handling of government business. It is very clear: Only the government can propose time allocation and only for its own business — only for government business.

It also bears mentioning that in the debate on that point of order, former Senator Cowan, then-Leader of the Opposition, argued that our Rules make a clear distinction between government and other business, giving the government certain tools to advance its business:

Our Rules legitimately provide to the government a means to facilitate the management of the government’s agenda. Our Rules give to the government a priority for their business. Government business comes first and it must be dealt with appropriately, even though sometimes we don’t like it. The government is given the tools, including time allocation, closure, the “guillotine” and cutting off debate. They have that power and they can use it.

They should use it, in my judgment, more judiciously than they have, but nonetheless, that is a power they possess. That’s a power that is in the rules. It isn’t a power that comes from the sky somewhere. It is a power that this chamber, in its wisdom, has given the government for the purpose of facilitating the management of the government’s business.

Another Speaker’s ruling, issued on June 26, 2015, by our esteemed colleague the Honourable Senator Housakos also speaks to the nature of time allocation.

In that case, Speaker Housakos was called upon to rule on the receivability of a government disposition motion that would apply to a non-government bill, Bill C-377.

In his ruling, which was overturned by this chamber, Speaker Housakos decided that the disposition motion would subject non-government business to “the powerful tools of which the Government can avail itself,” adding that:

The tools that the Government has to facilitate the passage of its business were granted to it by the Senate in 1991. They include, for example, control over the order in which government business will be called and, most significantly, the power to propose time allocation.

On December 8, 2015, former senator Joyal outlined many of the functions carried out by the government leader in the Senate. Specifically, he noted that:

The government leader is the only one who is entitled or has the “privilege” to move allocation of time. If there is no government leader, there is no allocation of time as our rules stand right now. . . .

I would also remind honourable senators of the comments made in this chamber by Senator Housakos on Senator Plett’s point of order relating to Bill C-210:

The only person who has the power of guillotine in this place and the power of time allocation and closure is the government. They own that right, because they won a sovereign election. . . .

As the former chair of the Rules Committee, I thank Senator Housakos for providing us with even further clarity with respect to the true intent of Chapter Seven of our Rules.

Senator Batters made it clear in the past that, in her view, under the current time allocation rules, as Leader of the Government, I can come to an agreement with the opposition on time allocation. This was in the context of a discussion involving the expansion of Chapter Seven to parliamentary groups, which are currently excluded from the process.

I quote Senator Batters:

. . . this time allocation agreement would be between the Leader of the Government and the leader or representative of the opposition party because that’s the only recognized party. To have a time allocation agreement with all the representative parliamentary groups would absolutely be the thing that would dilute the power of the opposition probably the most of anything here. Obviously Senator Gold would like that, but we cannot agree to this in any way, shape or form. . . .

When the government cannot get agreement and feel that they need to resort to time allocation to have a particular bill, which may be very contentious and may already have been debated for a considerable period of time, and they need to move on the legislative agenda to have something brought to a vote, when they are not able to do so in other ways, they can then pay the potential political price for invoking time allocation.

Any senator in the chamber can disagree, cause delays and things like that, within reason. But then, of course, the government then has the ability to proceed on with the time allocation procedure, which is already set out in our Rules.

While I’m in the generous spirit of thanking colleagues, let me thank Senator Plett for the clarity of the perspective that he shared with the media in February 2022 with respect to my ability to propose time allocation. As reported by iPolitics, Senator Plett said:

We can force Sen. Gold to try [to] move time allocation. If the caucuses don’t support his time allocation, then we can continue.

Colleagues, from my standpoint, there is a clear understanding in this place that the government and its designated point person — whether styled as government leader or Government Representative — may invoke the tool of time allocation.

Honourable senators, the Government of Canada has not disappeared from this chamber and the government is not merely a political party. The tools that are set out in our Rules exist for the purpose of allowing the Government of Canada to dispatch the business of Canadians through the chamber.

Finally, I would also note that the Speaker, when faced with conflicting interpretations and authorities, must consider the interests of the Senate. On March 23, 2004, Senator Hays assessed the application of the “same question rule” on bills that deal with similar subject matters, as well as differing interpretations that existed in different parliamentary authorities. His ruling is instructive. He stated:

How can we sort out these conflicting provisions and statements? I am not really sure that we can. It may not be possible to square the circle. The role of the Speaker is to ensure that best practices are followed while at the same time protecting the interests of the Senate. . . .

Our consistent practice in this chamber has been that the Leader of the Government may agree or disagree with other leaders on time allocation on government business, and that is a best practice. I would submit that, if accepted, the point of order would establish a most dangerous precedent. It would neutralize an entire section of our Rules, with the risk of leaving the business of Canadians in limbo in this chamber, with little to no remedy to a government that has the full confidence of the elected House of Commons. This is patently not the true spirit, intent nor meaning of Chapter Seven and, in particular, rule 7-2.

In sum, Your Honour, I submit to you that the clear intent of this point of order is to eliminate the government’s power to invoke time allocation — yet the true intent of rule 7-2 is to confer this power on the government. The interpretation presented to us so eloquently by my colleague fails the test of basic common sense. Therefore, I submit that the point of order is ill-founded.

In conclusion, honourable senators, the debate on this point of order is also an unfortunate reminder — and here I stand in sadness and not in anger — that parliamentary groups, representing more than 80% of the Senate, continue to be completely excluded from important processes under Chapter Seven of our Rules. There is simply no sound policy basis for that exclusion — which is unfair, inequitable and, frankly, discriminatory. On that score, the terms set out in Chapter Seven of our Rules belong to a bygone era.

A full eight years into the launch of the reform toward a more independent and less partisan Senate, changes geared toward remedying the inequity in our Rules have consistently been slowed, stymied and brushed aside.

Hon. Marc Gold (Government Representative in the Senate): Your Honour, just a point of clarification. Am I not correct that since your ruling was just upheld, we’re actually now on debate on Motion No. 96? Am I correct?

Hon. Marc Gold (Government Representative in the Senate): Honourable senators, I rise tonight to speak to Government Motion No. 96, which proposes to allocate a further six full hours of debate respecting the motion in response to the House’s message to the Senate on Bill C-11.

Colleagues, I’m moving this motion out of a sense of duty, not one of pleasure, but I also move this motion firm in the conviction that the government has acted properly and with the utmost respect for the Senate’s legislative process; firm in the conviction that we in the Government Representative Office, or GRO, have done so quite literally every step of the way; firm in the conviction that I am not proposing the curtailment of genuine debate; and firm in the conviction that it is necessary now to break through a clearly orchestrated pattern of deliberate obstruction so that we can finally move to a democratic vote.

The decision to apply time allocation to any item of government business is one I do not take lightly. I think I can say this with some credibility given that the GRO has not invoked time allocation before.

However, I am entirely comfortable that this is the responsible course of action before us. Tonight, I’m going to focus my remarks on two aspects of the issue that we in the GRO feel are important to underscore. First, I want to speak to the context and process that has brought us to this motion today. Second, I wish to address the mechanics of the motion and the purpose of Chapter Seven of our Rules, that is the chapter that provides for time allocation.

Let me begin with the context. Colleagues, in doing so, I want to bring you into my confidence. I want to share with you the reasoning behind several strategic decisions that we made in the GRO concerning the process around the study and debate of Bill C-11, including the exhaustive amount of time that this chamber has spent considering this bill.

Quite a long time ago, honourable senators, we in the GRO made the decision that, in dealing with this legislation, we would do our very best to try to shelter the work of the Senate from an overly charged, partisan political arena in the other place, and to try to do whatever we could to allow senators from all groups the opportunity to contribute constructively to the legislative process.

[Translation]

At the very beginning, as soon as the Senate received former Bill C-10, the bill’s sponsor, Senator Dawson, and I were very clear with the government that the Senate was going to take as much time as necessary to study the bill.

Despite what might have been transpiring among the political parties in the House of Commons, we made sure that the Senate took all the time that was necessary — I think we kept our word and then some — as of May 2022, with our proposal to conduct a pre-study in the Senate.

[English]

On May 31, 2022, the Senate adopted a motion authorizing the Standing Senate Committee on Transport and Communications to undertake the pre-study on the subject matter of the bill. The committee was afforded all the necessary procedural authorities, including the ability to meet while the Senate was sitting or adjourned to maximize its time and ensure that a comprehensive work plan could be developed.

The committee did not hold its first meeting with witnesses until June 21, 2022, nearly three weeks after the original motion had been adopted. Having launched the pre-study, the GRO expended significant political capital at the highest level of government to secure the time that the Senate needed based upon a written agreement reached in June of last year with the Leader of the Opposition in this place, which was signed by all leaders, for a final third reading vote in November of 2022.

I have that agreement with me here today, colleagues, for anyone who might wish to confirm its authenticity. Paragraph 5 of the agreement stipulates:

With respect to the Senate’s consideration of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts: [. . .] achievement of a 3rd reading Senate vote no later than Friday, November 18th, unless debate has collapsed earlier.

At the bottom of this agreement, one can see the signatures of Senators Tannas, Cordy, Saint-Germain and myself. It is also signed by Senator Plett, committing the Conservative Senate caucus in his capacity as leader of the official opposition.

As we all know, during the summer adjournment period, the Conservative Party of Canada selected a new leader. With that leadership, it was evident that the terms of the agreement would no longer be respected.

[Translation]

The bill was introduced at first reading in the Senate on June 21, 2022, so about eight months ago, and has been studied and debated extensively.

On September 21, 2022, the bill’s sponsor, Senator Dawson, began the second reading debate, and the bill was either debated or continued for 12 legislative session days after that, finally passing second reading in the Senate on October 25, 2022.

Between the months of June and December 2022, the Standing Senate Committee on Transport and Communications held 31 meetings, including the pre-study and actual study of the bill, along with nine meetings for clause-by-clause study, for a total of 67 hours and 30 minutes.

[English]

The committee heard from nearly 140 witnesses from various backgrounds including traditional broadcasters and newer online platforms, leaders in the arts and cultural communities, academics and researchers, online content creators, Indigenous stakeholders, union leaders and government officials, as well as Canadians with disabilities and those in minority groups.

Throughout this process, I remained optimistic that the terms of the original agreement would be respected. However, while I do not know when the instruction was given to the opposition to break the Bill C-11 agreement, the Conservative leadership did not formally communicate to us that the agreement was no longer valid until very close to the November 18 deadline.

Colleagues, throughout the fall, I had regularly raised Bill C-11’s timeline at the leadership table. For many weeks, we got evasive responses. We had heard rumours and speculations of a potential breach, but we continued to have faith in the signed agreement until the very end. But with no agreement in place in November, we accepted, very reluctantly, to give the Senate more time through December and into the new year.

Following our return from the Christmas break, the Senate adopted Bill C-11 at third reading on February 2, 2023.

Honourable colleagues, I want to be clear and unequivocal with you. I did not accept the additional time for the benefit of the official opposition who, by November, were engaging in a full-out filibuster at the committee.

We chose to come to the terms of a new agreement because that was the only pathway that would ensure that senators operating independently of partisan objectives, and with a genuine desire to seek improvements to the bill, would have a genuine opportunity to do so at the clause-by-clause stage. Time allocation would have punished not only the filibustering senators, but also those senators working constructively. We simply were not prepared to do that. We did not wish to do that and we did not do that.

As I said, our goal from the beginning on Bill C-11 was to ensure that the process itself could unfold in as non-partisan a way as is possible, and that senators would be able to do their jobs, the jobs for which we were summoned here to do. We delivered on this. With a new agreement in place, amendments and subamendments were pulled. We managed to complete the process properly. The amended bill was sent back to the other place on February 2, 2023.

After a month, colleagues, of careful consideration and due diligence by the government, it provided its response to the Senate’s work by accepting 20 of the 26 amendments in total. It was sent back to this chamber with the support of the New Democratic Party and the Bloc Québécois.

That now brings us to the message before us. I want to stress, upon receipt of the message and in keeping with my role as Government Representative, I consulted with the leadership of all groups in good faith to try to implement a constructive timetable to consider Bill C-11 at the message stage.

Upon receipt of the message from the other place, I made my expectations very clear that the Senate ought to have a thorough debate that would have had us vote on the motion by the end of last week. That has been in line with the Senate’s customary approach to the disposition of messages from the other place in a timely fashion.

Colleagues, let me put this in perspective for you. During the Forty-second and Forty-third Parliaments, the Senate spent an average of less than two sitting days debating messages from the House of Commons. That statistic includes several substantial and controversial bills, like Bill C-45, the Cannabis Act; Bill C-69 on environmental assessments; Bill C-48 on the oil tanker moratorium; Bill C-14 and Bill C-7 on medical assistance in dying and Bill C-6, which implemented immigration reforms, to name but a few.

Regrettably, despite this and the very strong precedent that has existed in terms of the times that we’ve devoted to messages at this stage of our process, I was neither able to yield an agreement on a vote by the end of last week, nor was I even provided with a hint of a signal on what the intentions were of the opposition, or on the numbers of speakers or amendments.

As I mentioned in an earlier speech today, colleagues, I raised this bilaterally with the Leader of the Opposition last week. It was made clear that there would be no agreement to get this resolved by the end of last week.

We also sought, as I mentioned as well, to have assurances on a similar timeline at our scroll discussions — again, radio silence, to no avail.

Instead, debate was adjourned by the opposition for two consecutive days last week without any speaker taking the floor. This is despite a full two-week break to prepare for debate, and the message from the House being public knowledge for more than a month.

It also is despite the fact that the Government Representative Office, or GRO, shared its procedural intentions in an open and transparent fashion with all Senate groups, including the text of the motion in response to the message and the text of a motion in amendment that was drafted in collaboration with Senator Tannas.

On Thursday, colleagues, we were treated to the all-too-familiar merry-go-round of amendment and subamendment, followed by another adjournment motion and a motion to adjourn the Senate, which took us into the night and disrupted other items of business that senators might have wished to address.

Had we decided to do nothing, colleagues, I suspect we would all be here today rinsing and repeating this sad, sorry state of affairs and sequence of events.

Colleagues, while I have tried to remain optimistic that common sense would prevail at this stage of the message, I’m not naive. I am not surprised given the public statements by the Leader of the Conservative Party urging senators to prevent this bill from passing.

The Leader of the Conservative Party in the other place in a video posted to Twitter on March 30 stated the following in relation to Bill C-11, after its adoption in the House of Commons:

We have some real free speech warriors there, led by Leo Housakos, the great Spartan warrior, who held the thing up in the Senate for almost a year — a good part of the year. It’s going back to the Senate right now. He’s going to fight like hell to stop it from passing it.

This is in addition to an active website entitled KillBillC11.ca, authorized in the name of Conservative Member of Parliament Rachael Thomas which calls upon the Senate to defeat the bill despite being duly passed by the elected House of Commons.

Let us not be naive about the context before us. There is an ongoing effort to kill this bill and to prolong this process for as long as possible for the sole purpose of partisan advantage.

As the context I have described shows, the GRO has been constructive. The record will show that the Senate conducted a considerably thorough study and successfully made numerous amendments to the bill. We have done nothing to curtail debate.

As the context also shows, we have also been on the receiving end of broken promises and deliberate procedural gamesmanship. This is where Chapter Seven of our Rules comes in, and this is where I turn our attention now.

With respect to the time allocation motion before us, it is important that we understand and that Canadians who are watching us understand exactly what it is that I am proposing.

The motion would provide for an additional six hours of debate, after which the Senate will be able to vote democratically on the subamendment by Senator MacDonald, the amendment by Senator Plett and the main motion that I spoke to last week. I don’t think there’s anything abusive about this proposition. In practice, there is ample time for every senator in the opposition caucus to speak up to their maximum allotted time, with the Leader of the Opposition receiving up to 30 minutes to speak under this motion.

Under this motion, every member of the opposition, and all senators, have 10 minutes to speak to this phase of the process, and the Leader of the Opposition has 30 minutes. The time that we now have to debate gives ample opportunity for each and every opposition senator, and others, to speak. Now, during the time-allocated order — the six-hour debate — normal speaking times will apply as part of the six-hour debate.

Conceptually, it is important to be clear about the purpose of time allocation, because it is a tool that may be used abusively but that may also be used very legitimately in context where a chamber is prevented from reaching a decision.

Colleagues, I would argue that Chapter Seven of the Rules of the Senate was created for cases just like this one: cases where there is a history of dilatory tactics, cases where the objective has become delay for delay’s sake, cases where the procedural intentions of a party are being withheld from colleagues and cases where there is an effort to kill legislation through procedural delay.

It’s true: Time allocation gets a bad rap, and that’s largely because of its heavy-handed use by successive majority governments to stifle genuine debate, including in this chamber. It is important to remind ourselves that the original purpose of time allocation was not only to allow a government majority to manage the finite time of a legislative chamber, but also for the legislative body itself to overcome the use of tactics deliberately geared at delaying the progress of government legislation.

In a paper entitled Sober Second Thinking: How the Senate Deliberates and Decides, Senator Harder explains:

. . . if excessive time allocation is to be reviled, so too should tactics of delay that stifle substantive policy debates. Time allocation and dilatory obstruction are two sides of the same coin. Unfortunately, under current Senate rules, absent time allocation, obstructionist senators can postpone votes by adjourning debate virtually indefinitely. Attempts to call for an immediate vote to move legislation forward can be filibustered, leading to stare-downs that can last for many days and monopolize the Chamber’s time.

Having been here for some years now, colleagues, I know exactly what that looks like. To name just a few examples, one needs only to think back to our debates around bills like Bill C-16 on transgender rights, Bill C-45 on cannabis legislation, Bill C-210 on a gender-neutral national anthem, Bill C-262 on the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, and Bill S-203 on ending the captivity of whales and dolphins.

In the same paper, Senator Harder further notes:

Ultimately, to use such delay tactics to impede legislative review is not sober second thinking. Senators engaging in such practice do not showcase the “complementary” legislative role that the Canadian Constitution requires the Senate to perform. At a pivotal time in the Senate’s history, such practice is also damaging to the institution’s culture, encouraging needless conflict and distracting the Chamber from its public purpose.

In a nutshell, colleagues, time allocation can be either curative or abusive, and context is everything. Now, I don’t know about you, but I do not feel like last Thursday’s round of bells was a particularly efficient use of the Senate’s time and publicly funded resources.

Moreover, colleagues, as precedent demonstrates, there is nothing extraordinary about time allocation. In fact, it has been regularly applied to various stages of government business — and in many instances under the previous government after little or no actual debate. However, since the Forty-second Parliament, both under myself and my predecessor, Senator Harder, time allocation has not been invoked once — not once on a single item of government business. I believe this has been a testament to our desire to find collaboration and consensus on moving the government’s legislative agenda forward in a timely manner. Regrettably, sadly, this is no longer the case with respect to Bill C-11.

Colleagues, you are undoubtedly going to hear from some in this chamber that invoking time allocation on a bill of this magnitude is paramount to stifling debate and not in keeping with the Senate’s role of sober second thought. Let me put this in historical perspective. The previous government, represented by the members opposite me, invoked time allocation on 22 separate occasions alone during the Forty-first Parliament — in some cases after only a single day of debate at a particular stage of a government bill.

In the case of Bill C-19, a bill which had sought to eliminate the long-gun registry and reflected an electoral commitment of the former government, Senator Carignan, then Deputy Leader of the Government, gave notice of a motion to allocate time after only a single day of debate at third reading, even before the critic was afforded an opportunity to speak. In justifying the need for time allocation, Senator Carignan outlined his perspective on April 3, 2012, as follows:

I believe that it was important to set a time limit, a sufficient amount of time in which senators could debate and express their opinions, as they were able to do previously at second reading. There have been many debates on both sides of this issue, but we should be able to end this debate, once and for all, within the time allocated so that we can pass this bill, ensure that the will of Canadians is translated into a reasonable and effective bill, and move on to other bills that are just as important to Canadian society.

Therefore, if we are to apply Senator Carignan’s logic, given the considerable debate this chamber has had on Bill C-11, the Senate ought to have the right in the face of procedural obstacles to have this bill adopted in a timely way to reflect the will of the elected house.

Indeed, our colleague Senator Plett made a very strong point that the time allocation process does indeed provide a window for senators to debate legislation in the face of apparent delay. On June 11, 2014, Senator Plett noted the following on a motion to time-allocate Bill C-23, known as Fair Elections Act, after only one day of debate at third reading. Senator Plett said:

I would like to say that in fact time allocation opens debate. We are now debating. We are debating time allocation. We will debate the motion. In fact, adjourning debate is stifling debate. That is what the opposition tries time and time again if they don’t have any other avenue — let’s adjourn this.

In the same speech, he later said, “When you can’t reach an agreement, you have to do something.”

Colleagues, for all these reasons, I believe now is the time to do something. The Government Representative Office, or GRO, has supported the Senate during Bill C-11’s legislative journey every step of the way. The GRO ensured that the senators operating in good faith could get their work done properly, and this was demonstrated time and time again, as I outlined earlier. Now, colleagues, I’m asking your support to bring this to a conclusion with six additional hours of debate and a democratic vote on the message from the House of Commons, a message supported by the government, the New Democratic Party and the Bloc Québécois, all of whom campaigned on a platform to reform the Broadcasting Act, which is the subject of the message before us.

Colleagues, it is time to do something. Thank you for your kind attention.