Hon. Marty Klyne, Chair of the Standing Committee on Audit and Oversight, presented the following report:

Tuesday, April 25, 2023

The Standing Committee on Audit and Oversight has the honour to present its

EIGHTH REPORT

Your committee, which is authorized, on its own initiative, to supervise and report on the Senate’s internal and external audits and related matters, pursuant to rule 12-7(4), respectfully requests supplementary funds for the fiscal year ending March 31, 2024, and requests, for the purpose of such study, that it be empowered:

(a)to travel outside Canada.

Pursuant to Chapter 3:05, section 2(3)(b) of the Senate Administrative Rules, your committee presents herewith its budget report.

Respectfully submitted,

MARTY KLYNE

Chair

(For text of budget, see today’s Journals of the Senate, Appendix B, p. 1435.)

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

(On motion of Senator Klyne, report placed on the Orders of the Day for consideration at the next sitting of the Senate.)

[Translation]

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

(On motion of Senator Klyne, report placed on the Orders of the Day for consideration at the next sitting of the Senate.)

[Translation]

The Hon. the Speaker: The time for Question Period has expired, and I’m certain senators will want to join me in thanking Minister LeBlanc for being with us today.

Hon. Tony Dean: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That, notwithstanding the order of the Senate adopted on Thursday, February 10, 2022, the date for the final report of the Standing Senate Committee on National Security, Defence and Veterans Affairs in relation to its study on:

(a)services and benefits provided to members of the Canadian Forces; to veterans who have served honourably in the Canadian Armed Forces in the past; to members and former members of the Royal Canadian Mounted Police and its antecedents; and all of their families;

(b)commemorative activities undertaken by the Department of Veterans Affairs Canada, to keep alive for all Canadians the memory of Canadian veterans’ achievements and sacrifices; and

(c)continuing implementation of the Veterans Well‑being Act;

be extended from June 30, 2023, to December 31, 2025.

Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): Honourable senators, pursuant to rule 4-13(3), I would like to inform the Senate that as we proceed with Government Business, the Senate will address the items in the following order: consideration of Motion No. 96, followed by all remaining items in the order that they appear on the Order Paper.

Hon. Donald Neil Plett (Leader of the Opposition): Your Honour, I rise on a point of order. Thank you.

Your Honour, my point of order pertains to the notice of motion given by the Leader of the Government in the Senate on April 20, when he notified the Senate that he would be moving time allocation on Bill C-11. At the time, Senator Gold said the following:

Honourable senators, I wish to advise the Senate that I have been unable to reach an agreement with the representatives of the recognized parties to allocate time to 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.

Therefore, I give notice that, at the next sitting of the Senate, I will move:

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.

Your Honour, although it is no secret that this government wishes to ram this bill through as quickly as it can in order to avoid — I’m happy that Senator Lankin finds some humour in this — the continued embarrassment over its unpopularity, Senator Gold’s notice of motion does not correctly apply the Rules of the Senate and, in fact, violates them.

In this regard, there are three things, Your Honour, that I would like to bring to your attention.

First is that Senator Gold’s notice of motion did not follow the prescribed format. As I mentioned, when Senator Gold gave notice of the motion, he stated:

. . . I wish to advise the Senate that I have been unable to reach an agreement with the representatives of the recognized parties to allocate time to the motion . . . .

Yet, section 7-2(1) of the Rules states clearly:

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 . . . .

Your Honour, the prescribed format for the notice of motion under rule 7-2(1) is quite clear. Because the notice of motion by Senator Gold does not respect the required form, it is invalid. As everyone knows, there are precise ways to give a notice of motion, and the table, of course, can provide that script for all of us. Senator Gold deliberately chose not to follow the script — not to follow the language provided for in the Rules. I would then argue that since proper notice was not given, Senator Gold cannot move the motion today.

My second point, Your Honour, is that in addition to not following the form prescribed by the Rules of the Senate, Senator Gold’s motion did not meet the necessary prerequisites. As I already noted, section 7-2(1) of the Rules states:

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 . . . .

Your Honour, I do not wish to use unparliamentary language here. We have people who are quick to jump to that and call points of order on that. Allow me just to say that in making this statement, Senator Gold misled the Senate. Senator Gold never offered, privately or publicly, formally or informally, to meet to discuss a timeline for debate on this motion.

Please allow me to provide some details and context on the discussion I had with Senator Gold on his motion in reply to the House message on Bill C-11.

Your Honour, on Monday, April 17, I had a meeting with Senator Gold along with the leaders of the other recognized groups. He asked us what our plans were on this motion. I made it clear to all present, I think, that I could not give a definitive answer until we had seen the motion. We had just come off a two-week break. The government had lots of time to draft their motion. On Monday night, the motion had not been drafted, and we were told that. We were told that we would have it by midnight.

What Senator Gold was asking us to do was commit how and when we would vote on a motion that we had not seen. I finally received the motion on Tuesday morning. It was sent out the night before to my chief of staff. I think he received it around ten o’clock at night; I’m not sure of the time. I got it in the morning.

Later that day, Senator Gold called about that and other matters and suggested that we should meet sometime to discuss this matter. My first suggestion was that we have a meeting on Monday — yesterday — to discuss this. Senator Gold suggested that was a little late for his preferred time and that he would like to meet earlier. I replied that I could make myself available on Thursday if he wanted to meet, and he indicated that he would get back to me. He never did.

Hearing one of the bells on Thursday afternoon — late afternoon — I went across to see Senator Gold in this chamber. His deputy leader was there with him. I asked him if he thought we should have a short meeting. His response — and I don’t want to say this as verbatim — was along the lines of “now is not the time.”

You will also recall, Your Honour, that it was the deputy leader of the de facto government group in the Senate that moved a motion last Thursday to adjourn the debate on Senator MacDonald’s subamendment. It was not the Conservatives. You will further recall that the Conservatives originally opposed the adjournment. We were happy to have the question called on Senator MacDonald’s subamendment. However, it was adjourned, so we could not do that.

Immediately after the adjournment, Senator Gold rose in this place and moved his notice of motion. After only six hours of debate on a bill where we had had 140 witnesses appear at committee and over 70 hours of testimony and without any formal or informal attempt to reach an agreement on the timeline for the debate, Senator Gold rose in this chamber and stated that he could not reach an agreement with me — or recognized parties, of which I am the only one.

Your Honour, on every controversial bill that has come through this place since approximately 2017, I have been at the negotiating table and helped negotiate with the Leader of the Government and to come to mutually acceptable arrangements, and this includes negotiating second reading on Bill C-11, along with the timelines at committee and, indeed, Your Honour, at third reading. This regularly happened as well with Senator Gold’s predecessor, Senator Harder.

However, when the message comes back from the House of Commons on the same bill, Senator Gold does not have the decency to pick up the phone and call me. Instead, he misrepresents the facts to this chamber in an astonishing and self‑serving way.

Senator Gold says we have failed to agree, but I would note that there has been no failure to agree because there have been no discussions on the need to allocate time on the motion in question. Consequently, there has been no opportunity, Your Honour, to either agree or disagree. Although we are becoming quite accustomed to the fact that this government does not take seriously the need to consult, I do not think that diminishes the requirement of this rule for the government to do so.

The Rules do not permit the government to impose time allocation simply because the recognized parties do not adhere to the government’s preferred schedule. The language in the Rules is clear. The government can only use rule 7-2(1) when there is no agreement, Your Honour. In order for agreement not to be reached, there must at least be a discussion that includes a proposed timeline.

On this point, Your Honour, I would like to draw your attention to a number of citations, practices and authorities, although I am certain you have reviewed all of these. If not, I’m sure you will review these yourself. Regardless, I believe it is important to place them on the record.

In commenting on time allocation, the Companion to the Rules of the Senate of Canada quotes the following from page 660 of the House of Commons Procedure and Practice:

While it has become the most frequently used mechanism for curtailing debate, time allocation remains a means of bringing the parties together to negotiate an acceptable distribution of the time of the House.

Although referencing procedure in the House of Commons, it is quite clear by its inclusion in the Companion to the Rules of the Senate of Canada that the same expectation applies to this chamber, Your Honour.

Time allocation is a means of bringing the parties together to negotiate. Your Honour, I regret that no such bringing together of such parties happened, nor were there any negotiations. Instead, we have a unilateral decision by the Government Representative in the Senate to curtail debate on a motion that is of significant interest to many senators of all groups as well as to all Canadians.

This is not only inappropriate, it is against the Rules. Since Senator Gold never proposed nor discussed any timeline for debate on his motion on Bill C-11, he cannot use the provisions of rule 7-2. I suspect, Your Honour, that the government leader in the Senate will object to this argument by suggesting he did not need to make a proposal or have a discussion, but that he merely needed to observe that there is no agreement. That is incorrect, Your Honour.

First of all, it is incorrect in principle — and, again, I draw your attention to page 171 of the Companion to the Rules of the Senate, which quotes Erskine May Parliamentary Practice, 24th Edition, on page 469, which notes the following:

In addition, the impact of allocation of time or programme orders is to some extent mitigated either by consultations between the party representatives informally or in the Business Committee or the Programming Committee in order to establish the greatest possible measure of agreement as to the most satisfactory disposal of the time available.

We see in the paragraph preceding this quote that the spirit of the rule permitting the government to move time allocation is couched in the need to balance the claims of business with the rights of debate. That balance is critical in maintaining societal respect for the role of Parliament, and obligates the government to engage in actual consultations prior to invoking the rule.

I would note, Your Honour, that this principle has been reaffirmed numerous times in practice in this chamber. I would like to draw your attention to two of those. The first one is a reference on page 171 of the Companion to the Rules of the Senate.

On September 20, 2000, Speaker Molgat made the following ruling on a point of order regarding a notice of motion to allocate time. Note that, at that time, rule 7-2 was known as rule 39(1).

In his ruling, Senator Molgat said the following:

Insofar as the point raised by the Honourable Senator Kinsella is concerned, I refer specifically to rule 39(1), which simply states that if “the Deputy Leader of the Government in the Senate, from his or her place in the Senate, may state that the representatives of the parties have failed to agree to allocate a specified number of days or hours,” that allows the deputy leader to give notice.

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. Therefore, I rule that the point of order is not valid.

I raise this citation, Your Honour, because a cursory reading of it seems to indicate that there is no need for the government to engage in consultations, but rather that it must only state that an agreement has not been reached. This, however, is incorrect.

Speaker Molgat was simply noting that he had no way of knowing whether an agreement had been reached, and he did so in the context of knowing full well that the parties had engaged in consultation. This was first acknowledged by the Deputy Leader of the Government earlier in the day on September 20, 2000, when he stated:

. . . my counterpart, the Deputy Leader of the Opposition, and I have been in discussion pursuant to my attempt to reach an agreement on the time to be given for third reading consideration of Bill C-37. We have been unable to reach such an agreement, but we will continue our discussions.

Senator Kinsella, who was the Deputy Leader of the Opposition at the time, went on to affirm this fact when he said:

The rule envisages some serious discussions to decide on the timeline for proceeding with a piece of government legislation.

Your Honour, in this case, we see that there was no disagreement between the government and the opposition over the fact that an attempt to reach an agreement through discussion and negotiation was first necessary before a notice of motion could be made for time allocation. The only issue at hand during that point of order was whether a notice could be made before such discussions were finished.

In that context, Speaker Molgat’s ruling made perfect sense, as noted by Senator Hays:

To interpret rule 39 as one that is only applicable when the relationship on a particular item of discussion is totally intractable would not be consistent with the spirit of the rules, or rule 39, or the spirit of doing business in this chamber.

He then went on to say:

Honourable senators, I simply say that discussions have taken place and they have not produced a conclusion on this side. In representing the government side, I feel that is adequate.

Your Honour, I would agree that Senator Hays is correct: If discussions had taken place and they had not produced a conclusion, then the conditions of rule 7-2 have been met. But, as I pointed out, that is not what happened with the notice of motion I am addressing today. Senator Gold made little or no attempt to discuss a timeline with me. Consequently, he has not met the prerequisites to invoke rule 7-2.

The second speaker’s ruling that I would like to draw your attention to — since I believe it is germane to this issue, Your Honour — took place on February 19, 2004. In that instance, Speaker Hays was also considering a point of order on a notice of motion for time allocation. Once again, the question at hand was not whether discussions had taken place but whether the discussions were adequate. At the time, the rule — rule 39(1) — read:

. . . the representatives of the parties have failed to agree to allocate a specified number of days or hours for consideration . . . .

The Deputy Leader of the Opposition, Senator Kinsella, was arguing that specific criterion had not been met.

But once again, the question was never whether consultations had taken place but whether they were adequate. In his response, Speaker Hays said the following:

Senator Kinsella’s point underlines the importance of precision in terms of reference to the rules. The presiding officer finds himself in an awkward position of who to believe, which is not an area I want to enter.

I will accept the notice of motion, but I will do it with this caution: Having listened to the exchange between the house leaders, I admonish them and other senators to pay close attention to the rules and to observe their requirements.

Speaker Hays accepted the notice of motion because both parties acknowledged that discussions had taken place. In doing so, he underscored that when referencing the Rules, precision is important.

Your Honour, I am asking that the same close attention be paid to the Rules in this case because, as I have noted, Senator Gold has failed to do this by not consulting, and his Notice of Motion is not in order with the Rules.

I have one final point to make, Your Honour, under our Rules. It is a disagreement between the recognized parties that triggered the use of time allocation. Rule 7-2(1) states:

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 . . . .

The term “recognized party” is defined in “Appendix I: Terminology of the Rules” as follows:

A recognized party in the Senate is composed of at least nine senators who are members of the same political party, which is registered under the Canada Elections Act, or has been registered under the Act within the past 15 years.

Your Honour, the Rules also contain a definition of what a “recognized parliamentary group” is. In fact, these terms are used throughout our Rules, making a clear distinction between a recognized party and a recognized group. Herein lies our dilemma, Your Honour. There is only one recognized party in the Senate, and that, Your Honour — and there are those in this chamber who are not happy with this — is the Conservative Party of Canada. The other three organized caucuses are parliamentary groups.

There cannot be a disagreement between recognized parties if there is only one. That is simple. I argue with myself occasionally, and I win most of those arguments. That is not the case here.

Over the last years, several changes were made to the Rules of the Senate. A lot of them pertain to the new reality of having not only parties, but also groups in the Senate. Yet, no such change was made to rule 7. This, Your Honour, was not an oversight. The Senate decided, in its wisdom, not to change the provision of rule 7, and I urge you, Your Honour, to simply follow the rule — and decide that with only one recognized party in the Senate, there cannot be disagreement. Therefore, on that point, Senator Gold’s motion is out of order.

Secondly, Your Honour, even if there was some convoluted way of interpreting parliamentary groups as the equivalent of recognized parties, Senator Gold’s motion would still be out of order.

There was never a meeting of the four parties or groups to discuss the timelines for the passage of Bill C-11, so there cannot be either agreement or disagreement under this scenario at this point.

Finally, what the government is asking you to do, Your Honour, is to not only rewrite the Rules to read “groups” where the word “parties” is, but to also see the Leader of the Government as one of those parties when this is not how the rule reads.

Senator Gold is a non-affiliated senator. He is neither the leader of a recognized party, nor the leader of a recognized group. He even says that he is not the Leader of the Government — he is a non-affiliated senator.

Non-affiliated senators have no recognized role in discussions pertaining to time allocation, Your Honour. Let me repeat that for all senators here: Non-affiliated senators have no recognized role in discussions pertaining to time allocation.

As mentioned in the sixth edition of Beauchesne’s Parliamentary Rules & Forms, on page 162, and as quoted in the Companion to the Rules of the Senate of Canada, “The wording representatives of the parties . . . does not include independent Members.” As an independent member, when Senator Gold says, “I cannot reach an agreement,” it is entirely irrelevant, as he does not have the standing under rule 7 to be part of any agreement or disagreement.

You will note that the Leader of the Government is not mentioned in section 7 of the Senate Rules as a necessary participant in an agreement or disagreement to trigger time allocation. This means that his role in such a Senate with respect to rule 7 would simply be to take note that an agreement has or has not been struck, and to give the notice required.

As I said, the current majority in the Senate has been ruling since 2016, and there has never been an attempt, Your Honour, to change the language of section 7 of the Senate Rules.

Furthermore, it was only a year ago, Your Honour, that the government opened up the Parliament of Canada Act and made amendments, and yet they did not change this part. Why?

Now the government and its senators have the gall to ask you, Your Honour, to make changes to the Rules of the Senate through this Notice of Motion. However, Your Honour — with the absolute, utmost respect — your role as defined in section 2 of the Senate Rules is to rule on points of order. You have no mandate to rewrite the Rules of the Senate simply because the government of the day thinks it might be convenient to pass the buck to you, Your Honour, and ask you to do that.

Frankly, I find this attempt to ask you to rewrite all of section 7 of the Rules quite offensive. It is very unfortunate, Your Honour, that Senator Gold would put you, on the eve of your retirement, in a position where you are being asked to do something which is not within your power to do. They are asking you to do the job of the Rules Committee and, thereafter, the entire Senate. It would not surprise me, Your Honour, if you were currently under a lot of pressure from the government leader here in this Senate — Senator Gold — and the Prime Minister’s Office to follow their wishes on this matter. I urge you, and I plead with you, Your Honour, to not yield to those pressures.

As you know, Your Honour, in 2014, the Liberal leader Justin Trudeau said the following:

If the Senate serves a purpose at all, it is to act as a check on the extraordinary power of the prime minister and his office . . . .

If there is one truly independent senator in this chamber, Your Honour, that is you. You have done a tremendous job, as was stated even earlier today, in being independent, and in making rulings that were clearly thought through and that showed your independence.

You are leaving soon. I urge you, Your Honour, not to mar your excellent reputation and impartial track record by rewriting the Rules of the Senate in the eleventh hour of your tenure — rather than respecting and enforcing them.

I know, Your Honour, that you will do the right thing, and I look forward to your ruling on this matter. Thank you.

Hon. René Cormier: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That, notwithstanding the order of the Senate adopted on Tuesday, December 14, 2021, the date for the final report of the Standing Senate Committee on Official Languages in relation to its study on the application of the Official Languages Act be extended from June 15, 2023, to December 31, 2025.

[English]

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. Pamela Wallin: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That, notwithstanding the order of the Senate adopted on Thursday, December 16, 2021, the date for the final report of the Standing Senate Committee on Banking, Commerce and the Economy in relation to its study on matters relating to banking, trade, commerce and the economy generally, as described in rule 12-7(10), be extended from June 30, 2023, to December 31, 2025.

Hon. Stan Kutcher: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That the Standing Senate Committee on Social Affairs, Science and Technology be authorized to examine and report on the negative impact of health disinformation and misinformation on Canadian society and what effective measures can be implemented to counter this impact; and

That the committee submit its final report on this study to the Senate no later than May 31, 2024, and that the committee retain all powers necessary to publicize its findings for 180 days after the tabling of the final report.

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.

Some Hon. Senators: Hear, hear.

Some Hon. Senators: Oh, oh!

Hon. Leo Housakos: Thank you, Your Honour. Now that we’ve had the very liberal interpretation of the Rules, here come the facts.

Honourable colleagues, now, all of a sudden, Senator Gold has embraced his position of government leader. For seven years, he and his predecessors were running away from that wonderful, powerful position — which is, of course, a legitimate one in the Westminster parliamentary system and legitimate in our own chamber, but he has been running away from it for a variety of reasons.

The truth of the matter is that this chamber has become a majority chamber appointed by the governing party. The reason you have not taken steps over the last eight years to make changes to how time allocation is applied, Senator Gold, is very simple: It is because you have had a very cooperative opposition throughout this time.

Hon. Raymonde Saint-Germain: Honourable senators, I will make my comments complementary to those of Senator Gold, with whom I fully agree.

My first point will be to the last point of Senator Plett, which is that this chamber has no government leader.

I believe that we have passed the stage where this objection is valid. I do believe that it should have been raised at the earliest possibility, which would have been either November 2015, or, at the very least, at the beginning of this current Parliament, because Senator Plett and Senator Housakos and many colleagues here have each and every day called Senator Gold “government leader,” and obviously it is clear that Senator Gold is the Government Representative and that he holds the powers and responsibilities prescribed in our rules to the Leader of the Government. The precedent has been set and it is now part of our parliamentary conventions.

Furthermore, the Parliament of Canada Act — the PCA — which defines the rules, customs and regulations of the Parliament of Canada itself, has been amended and now recognizes on the same level the senator occupying the position of Leader of the Government in the Senate or Government Representative in the Senate. The definition of the Leader of the Government in the Senate in the companion of our Rules is as follows:

The Senator who acts as the head of the Senators belonging to the Government party. In modern practice, the Government Leader is also a member of Cabinet. The full title of the Government Leader is “Leader of the Government in the Senate.”

Senator Gold is regularly treated as the Leader of the Government. He is afforded unlimited speaking time. Senator Gagné regularly exercises powers vested in the government leader and deputy leader position.

There is no doubt that Senator Gold is the head of the senators belonging to the government party. The PCA has been amended. His title is now recognized and the PCA has precedence over the Rules of the Senate and obviously over the website of the Senate.

To the second point regarding negotiations, I concur with Senator Gold. I have been, as have my other leaders colleagues, participating in the leaders’ meeting and it is clear that there have been offers and attempts to negotiate further to this message. I won’t refer to previous negotiations where all leaders agreed when we signed gentlepersons’ agreements, but this time it was clear there were attempts. I was not witnessing the bilateral meetings between Senator Plett and Senator Gold, obviously, but to that point, I’d like to refer you to a ruling by Speaker Kinsella on September 20, 2000, further to a point of order raised by the then-deputy leader.

Senator Kinsella ruled:

. . . 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. Therefore, I rule that the point of order is not valid.

I do believe, Speaker, that you are in the same type of situation, because as the Speaker of the Senate, you are not part of our negotiations. You are not part of our meetings. It is not your role to read our emails, our texts or to listen to all of our conversations.

Your role is to be given a motion indicating that there has been a failure to agree to allocate time to conclude and adjourn debate, and this is why, on this ruling, I refer you to Speaker Kinsella’s ruling on September 20, 2000.

On another point, it is clear, even from the Leader of the Opposition’s comments, that there have been efforts to modernize the Rules of the Senate of Canada to reflect the practices of the Senate. There are 14 instances of “recognized parties” or “parties” in the Rules of the Senate. The only place this is not followed by the words “recognized parliamentary group” is pertaining to time allocation. I do not believe it is the intent of the Senate to render the entire sections on time allocation entirely inoperable by this inadvertent omission.

Again, I reiterate that the point of order regarding the status of the Government Representative should have been raised sooner, at the first opportunity, which is very far from us, either at the end of the year in 2015 or at the beginning of the next Parliament.

Thank you.

The Hon. the Speaker: Senators, we have now reached 90 minutes of debate on this very important point of order that was raised by Senator Plett. I have four other speakers that we’re going to hear from — Senator Saint-Germain, Senator Batters, Senator Dalphond and Senator Cotter — but I would caution senators that a number of important points have already been made more than once and repetition of those points is not really adding much to the debate.

The Hon. the Speaker: Senators, we have now reached 90 minutes of debate on this very important point of order that was raised by Senator Plett. I have four other speakers that we’re going to hear from — Senator Saint-Germain, Senator Batters, Senator Dalphond and Senator Cotter — but I would caution senators that a number of important points have already been made more than once and repetition of those points is not really adding much to the debate.

Hon. Denise Batters: Your Honour, I rise to speak in support of Senator Plett’s point of order.

As has been mentioned, the employment of the Senate rule in question, rule 7-2, requires two triggers: One, the Leader of the Government must consult with the representatives of the recognized parties; and, two, the “representatives of the recognized parties” must have failed to come to an agreement to allocate time to conclude a debate.

In the case of Senator Gold’s motion of time allocation without agreement, neither of these criteria were fulfilled. “Recognized parties” is not a synonym for “recognized groups.” The Rules of the Senate define “recognized parties,” as we have already heard a couple of times before, as:

. . . composed of at least nine senators who are members of the same political party, which is registered under the Canada Elections Act, or has been registered under the Act within the past 15 years.

Clearly, of the five parliamentary groups currently in the Senate, only the opposition Conservative Party of Canada caucus qualifies as a recognized party under that definition.

As Senator Plett has stated, Senator Gold did not consult the Conservative opposition seeking agreement on a timeline for the conclusion of the debate on the Bill C-11 message. Therefore, the first criterion was not met.

Whether Senator Gold approached other parliamentary groups seeking consent would be immaterial. If he did not seek agreement with our Senate Conservative caucus leader, Senator Gold did not fulfill the clearly prescribed dictates of that Senate rule.

Furthermore, since he did not consult with Senator Plett — the representative of the only “recognized party” in the Senate — Senator Gold cannot correctly state that there is “no agreement on time allocation,” as per rule 7-2(2), and he cannot then, in turn, properly move a motion to allocate time.

Although Speakers in the past have declined to rule on the nature, the quality or quantity of consultations between parties on time allocation, certainly there must still be some sort of an approach to seek agreement before the government leader can announce that the recognized parties have failed to agree, thereby engaging the rule. Otherwise, the rule is completely meaningless. The government could just impose time allocation whenever it wants, without the need for rules governing the process.

In parliamentary terms, time allocation is about as serious as it gets. It drops the guillotine on debate, the most precious of our democratic freedoms in this place. It would be absurd if the rules regarding its usage were meaningless. Clearly, this is not what was intended.

In 2014, in the shadow of the Senate expenses scandal, the then third party Liberal leader Justin Trudeau chose to sever the Senate Liberal caucus’s ties to the Liberal Party of Canada for his political expediency. During the 2015 election, Trudeau proposed his new independent Senate model.

When the Liberals became government after that election, he put that plan into action, with Peter Harder as his transition team head. Since then, the Trudeau government has gone to great lengths to make it clear that Prime Minister Trudeau’s new Senate appointments are not affiliated in any way with the Liberal Party. They are to be “independent” and “non-partisan.”

They frequently claim that the Senate government leader is distanced from any partisan ties. The Government Representative Office, or GRO, now only has a caucus of three.

Given this, I contend that the members of the Government Representative Office, including the Government Representative himself, would also not qualify as “representatives of the recognized parties” and, therefore, that he would be precluded from moving time allocation at all.

It is important to closely consider the wording of rule 7-2(2). The Cambridge Dictionary defines “agreement” as “a decision or arrangement, often formal and written, between two or more groups or people.”

Therefore, it is not possible to have an agreement of one representative alone — in this case, Senator Plett. Nor is the term “recognized party” in Senate rule 7-2(2) indicative of an entity who is party to a contractual legal arrangement.

In the political institution of the Senate, “recognized party” states affiliation with a political party, as specifically identified in the Appendix of the Rules of the Senate.

Time and again, the Government’s Representative in the Senate has assured us of the GRO’s lack of partisan attachments. The three members of the GRO caucus identify their political affiliation as “non-affiliated,” including on the Senate website, in the Senate Chamber and committee broadcasts as well as on the Government Representative Office’s web page.

There, among the “Frequently Asked Questions,” a heading asks, “Why are the members of the GRO listed as non-affiliated rather than as members of a party?”

The answer states:

The governing party’s caucus in the House of Commons does not caucus with Senators, a decision that was made to reduce partisanship and increase independence in the Senate.

The government members of the Senate have intentionally not aligned themselves with the Liberal government’s registered party. They can’t turn around and piggyback on it now for the purpose of shutting down debate on the most controversial legislation.

Prime Minister Justin Trudeau established the new Senate appointment system this way intentionally, in an attempt to distance the Liberal Party and his Liberal government from the Senate expenses scandal. When he first appointed senators under this new system, the Prime Minister proclaimed it in his 2016 press release:

The Senate appointments I have announced today will help advance the important objective to transform the Senate into a less partisan and more independent institution . . . by removing the element of partisanship, and ensuring that the interests of Canadians are placed before political allegiances.

Prime Minister Trudeau’s then-government leader in the House of Commons, Dominic LeBlanc, said when announcing the changes to the Senate appointment system in December 2015 — and please forgive the rough translation:

As the Minister noted, the appointment of the first non‑partisan senators will revitalize the Senate and help change the tone in early 2016. More independent senators will join their ranks later in the next year. The government is pleased to facilitate this change by appointing its representative to the Senate from the ranks of new non-partisan recruits.

Minister LeBlanc continued in English:

The government looks forward to leading this change by appointing one of the new independent Senators to be appointed, as my colleague said, hopefully very early in the New Year to be the government representative in the Senate.

When he appeared with the then Minister of Democratic Institutions Maryam Monsef at the Senate Rules Committee in February 2016, House leader LeBlanc reiterated:

We will be appointing a government representative from amongst these first five independent senators appointed under this new process. This senator will act as the government representative in your chamber . . . . However, unlike perhaps a traditional government leader function, this individual will not be bound by party or political ties, as has been the case in the past.

The Trudeau government’s clear intent was that new appointees, including even the individual chosen to fill the role of the Leader of the Government in the Senate, would be divorced from their official Liberal Party of Canada affiliation.

In fact, the very first of the assessment criteria listed on the Trudeau government’s website for Senate appointees under “Merit-based criteria established by the Government” is entitled “Non-partisanship.” It explains:

Individuals must demonstrate to the Advisory Board that they have the ability to bring a perspective and contribution to the work of the Senate that is independent and non-partisan. . . .

Right from the start, and consistently throughout, the Trudeau government has trumpeted non-partisanship as fundamental to its new Senate appointment process.

The first self-styled “Government Representative,” Senator Peter Harder, spoke often of his distance from Liberal partisan ties. When he appeared before the Senate Modernization Committee in September 2016, Senator Harder testified:

I believe that my task is not to be affiliated with a particular party or caucus or partisan identification . . . .

He also said:

. . . I would compliment Prime Minister Trudeau for the initiative that he has taken both . . . in providing an arms‑length independent nomination process . . . and to have removed his party caucus from the national caucus, by underscoring the institutional independence of our chamber versus the other chamber, by appointing a representative, not a leader, who is independent in origin, not partisan . . . .

In his maiden speech in the Senate in April 2016, Senator Harder stated:

Unlike any . . . past Leader of the Government in the Senate, I sit as an independent. I do not belong to any political caucus. . . .

To fulfill my duties, I do not need to be a member of a political party and will not be a member of a national caucus or any political caucus.

When he appeared before the Senate’s Internal Economy Committee in April 2016 to request funding for the Government Representative Office, I asked Senator Harder if he intended to ask the new Trudeau-appointed senators to form a government caucus. This was his answer:

Absolutely not. It’s not my job to form a caucus or to direct independent senators in a particular organized fashion.

Senator Harder further asserted the government’s break with its partisanship in his April 2018 discussion paper.

He wrote:

The current Government’s approach to the Senate seeks, through the removal of a party-affiliated government caucus and the appointment of independent senators who have no personal stake in the election of a political party, to foster the conditions that will allow the Senate to leverage its unique qualities and demonstrate to Canadians its value as a complementary body of sober second thought.

In 2019, the Government Representative Office released a progress report on the new Trudeau Senate. It noted:

A crucial difference between the new and the old system is underscored by the absence of party discipline directed to independent Senators on voting and other legislative matters. Previously, Senators largely accepted direction on how to vote from party leadership. This is still the case with Conservative Senators. In contrast, independent Senators (whether they are unaffiliated, members of the Independent Senators Group or the Independent Senate Liberals) are not directed how to vote and do not coordinate partisan strategy with Members of Parliament. . . .

The Government Representative Office also stated:

Of the three Senate groups — the ISG, the Independent Senate Liberals and the Conservatives — only the 29 Conservative Senators continue to sit as members of a national political caucus, devoted to the election of their House of Commons colleagues. . . .

It is obvious that the Trudeau government regards the Conservative senators as the only recognized party in the chamber. This did not change once the independent senate liberals morphed into the Progressive Senate Group, or PSG, nor with the birth of the Canadian Senators Group, or CSG, comprised of senators who had come from the Conservative and what used to be the Liberal caucus. As we know, they have since been joined by some Trudeau-appointed independent senators as well, but the CSG proudly proclaims freedom from party affiliation.

Senator Gold, who would later go on to be the second Government Representative, said of partisanship in 2017 that:

. . . it has taken on a particular importance because of the arrival of a new group of senators, of which I am one, who are not affiliated with any political party, who are not members of a political caucus and who define ourselves as non-partisan.

Just last fall, Senator Gold reflected on his distance from partisan ties in the role as the second Government Representative in the Senate. He said during a meeting of our Senate Rules Committee in October 2022 that:

My ability to have unlimited speaking time has been an important tool that I’ve had to use, and my predecessor as well . . . . It’s rather important, even more important than it was, maybe, because I don’t have a caucus to control.

At a November 2022 Senate Rules Committee meeting, Senator Gold reiterated his freedom from political ties to the government. He said:

 . . . this government, which I have the privilege of representing, made a decision and a choice to disconnect the Senate from the control of the government at the time and, in that regard, to seek to establish more independence and less partisanship. Yes, the consequence of that is that I don’t have a caucus and I don’t control votes. That is a decision of this government . . .

The Trudeau government first proposed changing the Parliament of Canada Act to reflect this new non-partisan reality in the Senate via their Bill S-4. In May 2021, when I questioned the Trudeau government house leader Dominic LeBlanc at the Committee of the Whole on why the government neglected to define the new roles in this legislation, he replied:

. . . the Senate is perfectly capable itself to define those roles in their own rules and for the people who are ultimately appointed to those functions to decide in collaboration with different groups in the Senate and their colleagues in a particular group, for example, the kind of roles that they want to undertake and the work that they want to do. We didn’t think it would be particularly prescriptive to have job descriptions or lists of particular functions. . . .

Bill S-4 and its successor, Bill S-2, also aimed to change the Emergencies Act provision regarding the composition of the parliamentary review committee. Under the existing Emergencies Act provisions at the time, the committee was to be comprised of at least one member from each recognized party in the House of Commons and:

 . . . at least one senator from each party in the Senate that is represented on the committee by a member of the House of Commons.

Only the Senate Conservative caucus qualified for a seat on the committee according to this party-affiliated definition. As a result, there is no representation from the Government Representative Office on this committee currently sitting. The Senate leaders had to strike a deal to allow for the inclusion of representation from the Independent Senators Group — ISG — PSG, and CSG when the review committee began its work in March 2022, as these groups were not affiliated with the party leader.

The provision of the Emergencies Act governing review committee membership did not officially change to allow these non-partisan Senate groups until it was passed in the Budget Implementation Act — Bill C-19 — at the end of June 2022. Similarly, the only recognized party in the existing Rules of the Senate is also the Conservative opposition caucus, representing the Conservative Party of Canada, the party of the official opposition in the House of Commons.

Last fall, at Rules Committee in the Senate, Senators carefully considered the rules triggering time allocation. Many of the leaders of the parliamentary groups were present at those meetings, including Government Representative Marc Gold. Some participants pushed hard to change the Rules to also include parliamentary groups in the required agreement for time allocation. However, no consensus on the matter was reached and therefore the existing Senate rule stands, requiring only an agreement of recognized parties.

We can also look to the rules governing time allocation in the House of Commons for further clarification. Standing Order 78(1) is the rule governing a motion for time allocation after reaching agreement with “. . . representatives of all parties. . . .”

Notably, Beauchesne’s Parliamentary Rules and Forms notes at page 162 that, “[t]he wording ’representatives of the parties’ in Standing Order 78 does not include independent Members.” Further, the House can also give us guidance on the requirement for consultation before the government invokes time allocation. I refer to the same House of Commons Procedure and Practice quote that Senator Plett referred to regarding bringing the parties together to negotiate. There would be no “bringing the parties together to negotiate” if the government were not required to consult the other party members first.

In closing, Your Honour, I urge you to find Senator Gold’s motion invoking time allocation on the Bill C-11 message out of order. He did not approach our Conservative Senate leader, the representative of the Senate’s only recognized party, seeking agreement for ending debate, and Senator Gold therefore could not have failed to reach agreement for time allocation as he indicated to the Senate in his motion.

Furthermore, the Senate government leader cannot be the Schrödinger’s cat of the Senate, tied to the governing Liberal Party for the purposes of representing a recognized party under Senate rules while simultaneously claiming independence from all political affiliation. For seven and a half years, the Liberal government and both Senate Government Representatives have been adamant that there is no partisan tie. Therefore, I submit that it is out of order for Senator Gold to bring a motion of time allocation at all.

Thank you.

Hon. Pierre J. Dalphond: Honourable senators, I’m the fourth or fifth one to speak, but I promise I’ll be the shortest one.

I understand that Senator Plett’s point is about the prior right or entitlement to have Senator Gold enter into some negotiation with him before moving motions on rule 7-2(1), and it is his right to have you check if this prior right was complied with. With respect, I disagree with this thesis, and I will briefly explain why, relying on the Rules and the previous ruling made by Senator Molgat that Senator Saint-Germain as well as Senator Plett have referred to.

Chapter Seven of the Rules of the Senate, on time allocation, provides that only the “Leader or the Deputy Leader of the Government” may propose a motion for time allocation. Chapter Seven contemplates two situations: the Leader of the Government or the Deputy Leader of the Government moves the motion with the agreement of the representatives of the recognized parties or groups or without such an agreement. Nowhere in the Rules is there a duty or obligation for the Leader of the Government to attempt to come to an agreement with the representatives of the other groups on the time frame prior to introducing a motion without an agreement.

A government representative may always choose to proceed without an agreement if he or she determines that to obtain one would be impossible. But it comes at a price. A debate might follow that will last for two and a half hours, whereas if the motion is moved further to an agreement, the question has to be put immediately, without debate or amendment, as stated in rule 7-1(3).

When the Government Representative in the Senate chooses to proceed without an agreement, this matter is straightforward — procedurally — as the point at issue is the occurrence of a statement of disagreement, rather than an invitation to conduct a factual inquiry about the likelihood of an agreement, most likely involving the disclosure of confidential discussions.

Your Honour, to state that, I rely upon the ruling on a point of order made by one of your predecessors, Speaker Molgat, on September 20, 2000, referred to by Senator Plett and Senator Saint-Germain, but I will read it again because I don’t think the true meaning is what Senator Plett pretends it is:

Insofar as the point raised by the Honourable Senator Kinsella is concerned, I refer specifically to rule 39(1), which simply states that if “the Deputy Leader of the Government in the Senate, from his or her place in the Senate, may state that the representatives of the parties have failed to agree to allocate a specified number of days or hours,” that allows the deputy leader to give notice.

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. Therefore, I rule that the point of order is not valid.

The validity of that ruling is confirmed by the French text of our rule 7-2(1):

[Translation]

This rule indicates that the leader or deputy leader may “state that the representatives of the recognized parties have failed to agree.” It is a simple statement of fact. The parties could not agree.

[English]

In the alternative, Your Honour, assuming that our Rules require you to enter into an inquiry about the potential of an agreement about time allocation — and I don’t believe they do — let me add that such a prior step doesn’t have to be attempted when an agreement appears impossible. In law, there is this well-known principle: “To the impossible, no one is bound.”

In this present case, Senator Gold, the Government Representative — who is always called the Leader of the Government by the Conservative group — has decided to move a motion for time allocation without the agreement of the representative of the Conservative group, being of the opinion that such agreement is impossible. That conclusion is so reasonable that it cannot be disputed — at least not seriously. The Conservative group had moved an amendment and, a few minutes later, an amendment to that amendment in order to force two additional separate debates on top of the motion of Senator Gold in response to the message from the House of Commons. In addition, there were various votes to adjourn the debate, including a one-hour bell each time rather than a shorter period, which were forced upon us.

In other words, senators of the Conservative group have shown clearly that they want to prolong the debate as much as possible, and no time limit is acceptable in their view. In such a context, Your Honour, it is clear to me that the Government Representative, Senator Gold, can state without any hesitation that the representative of the Conservative Party in the Senate has shown that an agreement to allocate time is not acceptable to them and, therefore, no agreement is possible.

Otherwise, the only way to conclude would be for Senator Plett to stand up today and state that he agrees with the motion to allocate six hours to debate the message from the other place. Then, if the representatives of the other groups were also to agree, the question would be put to an allocation of time, without debate or amendment, as stated in rule 7-1(3).

But, obviously, this is not what the Conservative senators are asking for.

Finally, I will speak about the attempt to distinguish between the Office of the Leader of the Government and the Office of the Government Representative in the Senate. A lot is said about the Appendix to our Rules — that’s interesting, but let’s start with the basic principles of law. First, there is the Constitution, and we cannot derogate from this. Second, there are laws adopted by Parliament; we cannot derogate from those. Our Rules must be read according to the laws that apply to us and the ultimate law: the Constitution.

The Parliament of Canada Act provides, after its amendment in 2022, at section 62.4(1):

Despite section 62.3, beginning on July 1, 2022 there shall be paid to the following senators the following additional annual allowances:

(a) the senator occupying the position of Leader of the Government in the Senate or Government Representative in the Senate, unless he or she is in receipt of a salary under the Salaries Act, $90,500 . . . .

Your Honour, it’s interesting to read that piece of legislation. The first position that is referred to in this provision is in paragraph (a), and it refers to the position of “Leader of the Government in the Senate or Government Representative in the Senate.” For Parliament, this is the same position, and it occurs at the same place in the Parliament of Canada Act. Moreover, it comes with the same salary. Why? It is because it discharges the same functions. It is so clear to me that I don’t even have to quote from Rizzo & Rizzo Shoes Ltd. — the Supreme Court case that says that if an interpretation raised yields to an absurd conclusion, that is an interpretation that the court cannot retain.

That is exactly what we are asked to do today.

I object to that, and I will say that it will not live long in a courthouse. Since we’re talking about an act of Parliament, I submit to you, Your Honour, that you are in the same position as a judge: You must give a proper interpretation, and a reasonable one, to this piece of legislation. What has been proposed is nothing but unreasonable; it is unreasonable all the way.

If it walks like a duck and if it quacks like a duck, it is a duck.

That is what we have before us, Your Honour. This point of order is really against all interpretations of our Rules and cannot be accepted.

Thank you very much, Your Honour. Thank you. Meegwetch.