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. Brent Cotter: Your Honour, I didn’t have the time that others had to plan their submissions on this matter. I will be brief and focus exclusively on inviting your approach regarding the interpretation of this question.

Senator Plett offered a strongly literal interpretation of the Rules on this question — so literal that he was even charmed by the absurdity of one or two of his own points. I confess that I was charmed as well and chuckled over in this corner.

Senator Gold, as part of his response, offered a literal interpretation as well. It was one literal interpretation duelling another, which suggests, “All I have to do is state a thing.” Now, that might be literally true, but I much prefer the observations of Senator Dalphond that there has to be something reasonable on that basis. Your Honour, I would invite you — on those questions — to reject each of those points.

Your Honour, I think it would not honour the institution of the Senate for you to apply a purely literal interpretation. As I think Senator Dalphond identified, you are an arbiter of the statutory interpretation of this question. I want to quote a passage from the same case that Senator Gold referred to. With the greatest respect, I think it is a better passage that makes this point; it also makes the same point that Senator Dalphond articulated.

This is a quote from a case called Rizzo & Rizzo Shoes Ltd. in the Supreme Court of Canada by a highly respected, not particularly — let me just say a highly respected judge, Justice Iacobucci. This case is often referred to as the leading case of statutory interpretation in Canada on the subject of absurdity. This is what Justice Iacobucci had to say:

It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences.

— in my view, the gutting of Senator Gold’s role on this question —

. . . an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment . . . .

Let me go further in reference to the leading commentator on the subject of statutory interpretation, somebody by the name of Sullivan:

Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile . . . .

I think that is exactly what is being advanced in this case. I think Senator Gold’s main argument, with which I agree, is that the substantive, purposive interpretation is what is called for here. I endorse that point of view, and I urge it upon yourself as Speaker in this ruling. Thank you very much.

Hon. Frances Lankin: A number of the points that are relevant to your decision and your ruling have been made. I won’t repeat those. I will try to set a couple of more points on the record for both context and support for the proposition that Senator Gold has put forward — that your job is to interpret, and that there are some important “spirit of the Senate” rules and existing practices that we need to consider.

First, I would say this to Senator Carignan’s point, and Senator Batters has raised this as well. Both of them have said categorically that there was no consultation and no discussion of when the message on Bill C-11 would come to a vote. I believe that not to be the case. I very specifically heard Senator Gold, in his own words, give us a chronology last week, which included a discussion both at scroll meetings and at leaders’ meetings and a statement from Senator Plett that this will not be done by Friday, when that was clearly the intent put forward by the government at this point in time.

Therefore, I don’t know how Senator Batters or Senator Carignan, other than what they have heard from their leader, would have any first-hand information on that. The information I have is from general discussions within our group on understanding how things are proceeding for the week. I clearly came away with the impression that those discussions were ongoing. I think you’re not in a position to go beyond what the honourable senator has said. He made it very clear how those discussions took place last week.

The next thing I want to speak to is the issue of practices in this chamber. We’ve heard much about the fact that rule 7-2 hasn’t been amended to specifically include, for example, the reference to recognized groups whereas other ones have. I would suggest to you that if you look back — and I think you would know this from rulings that you’ve made in this chamber in the past — that for some considerable months before any of the language was changed, we operated on a basis that had been arrived at as a consensus, let’s say, in this chamber that we would, in fact, recognize the recognized groups, there would be facilitators and there would be people who would speak on rotation on bills and a range of things, which set the practice in place before the actual language was changed. I would ask you to keep this in mind because in the spirit of the Senate that we’re moving towards, it’s important that we can continue to move our understanding of how we operate with each other and what is in the best interest of Canadians in terms of how this Senate operates, and not get tied down at the Rules Committee, which everybody says is the committee where things go to die.

One of the reasons that things perhaps go to die there is because — and I heard it again in Senator Batters’ statement and I heard it from my early days in the Rules Committee from Senator Frum over and over again — this is a consensus committee. Well, consensus does not mean that one group has a veto, and that’s been the way it’s operated. We have moved to practices, and those practices should be understood. The opposition caucus has clearly demonstrated its practice of negotiating with the leader representative of the Senate. They’ve clearly shown their respect for the powers and worked with the powers. Today, although I know they’ve been waiting for this motion to come along for a long time to raise this point of order, they now want to put forward another proposal.

Last, I want to speak about the context in which this is being raised. Senator Dalphond actually did that for me, so I’ll just add to that. We are in a context of a clear dilatory use of the Rules for some time around trying to defeat this bill or stopping it from coming to a vote for many reasons. I don’t need to become political in my analysis, but there are political reasons that I would warrant that are important to the opposition and I respect their exercise of their view of what’s important. However, that context means that, in fact, this particular point of order — as the one last week that we heard — is, in fact, a dilatory use of the Rules. This is all about delay. It would be more than ironic; it would be, as people have said, an absurd outcome to see a dilatory use of the Rules attempt at delay to bring about an inability of the government to exercise its right to bring debate to a close at the end of time.

In response to Senator Plett’s comment that the government is ramming this through, this is a bill that — let alone what happened in the House of Commons — in the Senate had 138 witnesses, four clause-by-clause considerations, 31 meetings, 67 hours and 30 minutes, pre-study, study and it goes on. The number of amendments that were debated was 73. The number of amendments that were adopted was 26. Those amendments were debated here at third reading, they went to the other place and we have a message back.

We are now at the very end of this process, which is just the message, and you can see the efforts that the opposition are going to, in my contextual argument, for further delay. I would argue that it would completely undermine the role of the Senate and our job to deal with government legislation as a priority. Thank you.

[Translation]

Hon. Claude Carignan: I want to take up Senator Dalphond’s and Senator Cotter’s point. One of them said that if an interpretation yields an absurd conclusion, then it is the wrong conclusion. Senator Cotter talked about absurd interpretations that are illogical or incompatible with the object.

Rule 7-1 provides for two situations: with agreement or without agreement. With agreement, we sit down, we negotiate as is the custom and as often happened when I was leader of the government. The other situation is when there is no agreement. The rule that addresses the absence of agreement states the following:

I repeat, the leader may state “that the representatives of the recognized parties have failed to agree.” The interpretation being given here is that they don’t need to talk to each other, that they don’t even need to attempt a discussion before announcing their lack of agreement. That seems illogical to me. It seems to defeat the purpose of rule 7-2(1), which specifically provides that when the leader stands up, they must state that they have had a discussion, that they have made an attempt to come to an agreement — in this case with the Leader of the Opposition because that is the only recognized party — and that they haven’t been able to reach an agreement. That’s the very basis of rule 7-2.

As you know, the Rules of the Senate, we know them well, you know them well, I know them rather well having written them from start to finish in the French version — You surely remember the revision work we did to rewrite the rules. I was on the committee with Senator Joan Fraser and we reviewed the Rules section by section, ruling by ruling. In each situation, we talked about negotiating in good faith, and the Rules are there for the parties to talk to one another.

In fact, that’s why, for private bills, we must negotiate. We must negotiate to move them forward. This part of the Rules was drafted in such a way as to promote negotiation. The way it is currently being interpreted, when there was no attempt to negotiate, that is called taking the other side by surprise. Indeed, when the notice was given, no one on this side expected it because there was no attempt at negotiation or discussion, which is essential if we want to follow the letter of rule 7-2 and the spirit of the Rules, according to which senators must try to conclude agreements and talk to one another. By all accounts, that’s not what happened here.

I read the ruling by Speaker Molgat that Senator Kinsella raised, but there was at least some negotiation there. That is not the case here. This is the first day of debate and, quite frankly, when the debate was adjourned and Senator Gold gave notice, we were extremely surprised because there had been no discussion. In fact, I asked my leader if he’d been part of a discussion in that regard and he said that he hadn’t.

Senators can’t stand up and announce that there’s no agreement if there hasn’t been any discussion at all. That is essential for enforcing the Rules. Otherwise, we’re giving the leader permission to lie. I know that’s not a parliamentary word, but we’re just having a discussion here. The leader could say that there was no agreement with the recognized parties and that would trigger the guillotine or time allocation motion. That is not the spirit of the Rules and that is not the custom and practice of the Senate.

That was previously my job, and that of Marjorie LeBreton before me, and I never saw notices of time allocation without any exchanges or any discussion. I documented these discussions and ensured that I had notes about the exchanges. These are the customs and practices that have governed the leaders of the government and the other recognized parties. There must have been exchanges before making such a statement. They cannot suddenly, the first day of the debate, make that kind of statement.

I submit this respectfully, Your Honour. I apologize for being late. I had some problems on the way here that delayed my arrival. I didn’t hear all the other arguments, but I wanted to express my own this evening. Thank you.

[English]

Hon. Frances Lankin: A number of the points that are relevant to your decision and your ruling have been made. I won’t repeat those. I will try to set a couple of more points on the record for both context and support for the proposition that Senator Gold has put forward — that your job is to interpret, and that there are some important “spirit of the Senate” rules and existing practices that we need to consider.

First, I would say this to Senator Carignan’s point, and Senator Batters has raised this as well. Both of them have said categorically that there was no consultation and no discussion of when the message on Bill C-11 would come to a vote. I believe that not to be the case. I very specifically heard Senator Gold, in his own words, give us a chronology last week, which included a discussion both at scroll meetings and at leaders’ meetings and a statement from Senator Plett that this will not be done by Friday, when that was clearly the intent put forward by the government at this point in time.

Therefore, I don’t know how Senator Batters or Senator Carignan, other than what they have heard from their leader, would have any first-hand information on that. The information I have is from general discussions within our group on understanding how things are proceeding for the week. I clearly came away with the impression that those discussions were ongoing. I think you’re not in a position to go beyond what the honourable senator has said. He made it very clear how those discussions took place last week.

The next thing I want to speak to is the issue of practices in this chamber. We’ve heard much about the fact that rule 7-2 hasn’t been amended to specifically include, for example, the reference to recognized groups whereas other ones have. I would suggest to you that if you look back — and I think you would know this from rulings that you’ve made in this chamber in the past — that for some considerable months before any of the language was changed, we operated on a basis that had been arrived at as a consensus, let’s say, in this chamber that we would, in fact, recognize the recognized groups, there would be facilitators and there would be people who would speak on rotation on bills and a range of things, which set the practice in place before the actual language was changed. I would ask you to keep that this mind because in the spirit of the Senate that we’re moving towards, it’s important that we can continue to move our understanding of how we operate with each other and what is in the best interest of Canadians in terms of how this Senate operates, and not get tied down at the Rules Committee, which everybody says is the committee where things go to die.

One of the reasons that things perhaps go to die there is because — and I heard it again in Senator Batters’ statement and I heard it from my early days in the Rules Committee from Senator Frum over and over again — this is a consensus committee. Well, consensus does not mean that one group has a veto, and that’s been the way it’s operated. We have moved to practices, and those practices should be understood. The opposition caucus has clearly demonstrated its practice of negotiating with the leader representative of the Senate. They’ve clearly shown their respect for the powers and worked with the powers. Today, although I know they’ve been waiting for this motion to come along for a long time to raise this point of order, they now want to put forward another proposal.

Last, I want to speak about the context in which this is being raised. Senator Dalphond actually did that for me, so I’ll just add to that. We are in a context of a clear dilatory use of the Rules for some time around trying to defeat this bill or stopping it from coming to a vote for many reasons. I don’t need to become political in my analysis, but there are political reasons that I would warrant that are important to the opposition and I respect their exercise of their view of what’s important. However, that context means that, in fact, this particular point of order — as the one last week that we heard — is, in fact, a dilatory use of the Rules. This is all about delay. It would be more than ironic; it would be, as people have said, an absurd outcome to see a dilatory use of the Rules attempt at delay to bring about an inability of the government to exercise its right to bring debate to a close at the end of time.

In response to Senator Plett’s comment that the government is ramming this through, this is a bill that — let alone what happened in the House of Commons — in the Senate had 138 witnesses, four clause-by-clause considerations, 31 meetings, 67 hours and 30 minutes, pre-study, study and it goes on. The number of amendments that were debated was 73. The number of amendments that were adopted was 26. Those amendments were debated here at third reading, they went to the other place and we have a message back.

We are now at the very end of this process, which is just the message, and you can see the efforts that the opposition are going to, in my contextual argument, for further delay. I would argue that it would completely undermine the role of the Senate and our job to deal with government legislation as a priority. Thank you.

[Translation]

The Hon. the Speaker: Honourable senators, I thank Senator Plett for raising this point of order. I thank all senators who have participated. It has been quite a lengthy and extensive debate. I understand from the table and from the scroll meeting this morning that there will not be an agreement not to see the clock. I’m wondering if we could have the consent of the Senate to suspend now until eight o’clock, which will give me some time to put together a lot of what I have heard today.

Is it agreed, honourable senators?

The Hon. the Speaker: Agreed. The Senate will suspend until 8 p.m.

(The sitting of the Senate was suspended.)

(The sitting of the Senate was resumed.)

Hon. Senators: Agreed.

Hon. Renée Dupuis: Your Honour, I’d like to raise a point that hasn’t been addressed so far. In your consideration of the point of order raised earlier today, I draw your attention to the fact that there is a discrepancy between the English and French versions of rule 7-2(1) of the Rules of the Senate.

In your consideration of this point of order, I’d like you to clarify this matter. In your interpretation of the question, I would like you to examine in particular the two different versions. The English version, which reads “have failed to agree,” doesn’t mean the same thing as the French version, which reads “n’ont pu se mettre d’accord pour fixer un délai.”

I wanted to bring this to your attention. I don’t want to take up any more of your time. Thank you.

[English]

Hon. Donald Neil Plett (Leader of the Opposition): This is truly a dark day for the Senate of Canada.

With respect, Your Honour, you said that the government leader says — or you refer to belonging to the government party. Senator Gold, of course, does not belong to the government party. By his own admission, he doesn’t belong to the government party.

I am extremely disappointed that this ruling would have come down without it being in writing. Clearly, this was — please, senators. I respect your right to your opinion. Have respect for mine. Except for yours, possibly. I’m getting a little tired.

Your Honour, I have the utmost respect for you, even though I may struggle with respect for others, but I want to have the utmost respect for this chamber and everybody here. And just because we, as the opposition, have a role to play as the opposition, which Senator Lankin has been a part of and, when she was a member of the opposition, did what this opposition party does, and she has a very short memory.

Senator Lankin: I never said —

The Hon. the Speaker: Honourable senators, I am ready to rule on Senator Plett’s point of order. Let me start by thanking all of you for your input on this important matter. Since this notice was given last Thursday, I have been reviewing a range of issues relating to our time allocation process, and my ruling is the result of my own reflection and your arguments.

I believe that there are, in essence, two issues involved in the point of order: first, the procedural requirement to indicate a lack of agreement; and, second, the fundamental issue of whether Senator Gold, as Government Representative, can initiate this process at all.

On the first point — the matter of agreement and consultations — rule 7-2(1) states that, “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 …” on an item of Government Business.

In terms of any requirements for consultations or agreement, the wording of rule 7-2(1) is quite specific. The test is whether there has been a failure to agree to allocate time. A ruling of September 20, 2000, dealt with this concern. Speaker Molgat noted that the senator making the statement must be taken at their word. The Speaker went on to say: “All I have before me is a motion stating that they have reached no agreement at this point, the rule has been followed and the terms have been set out.” This was sufficient for debate on the time allocation motion to go ahead. The same analysis applies in the current case.

Having dealt with this initial issue, I will turn to the second concern in the point of order, which is the basic issue of whether Senator Gold can even initiate — or has a role in — the processes under Chapter 7 of the Rules.

As made clear in a ruling of May 19, 2016, regarding government positions in the Senate, Senator Gold, as Government Representative, is indeed Government Leader. The Government Representative routinely exercises the rights and responsibilities of that position.

Appendix I of the Rules defines the Government Leader as “The Senator who acts as the head of the Senators belonging to the Government party.” The very definition of the Government Leader thus makes clear that the senator occupying that position has a role that is analogous to, if not equivalent of, that of a party leader.

Appendix I recognizes that the definitions it contains are inherently flexible and depend on context, specifically stating that the definitions are to be interpreted in light of circumstances. The procedures for time allocation, which were introduced into the Rules in 1991, exist to allow the government the option of requesting, when it thinks appropriate, that the Senate agree to set limits to the duration of debate on an item of Government Business.

In light of the basic objective of the time allocation process, and the definitions in the Rules, it is appropriate that Senator Gold can play the role envisioned in Chapter 7 for the Government Leader.

It is also important to underscore that the government is not able to unilaterally impose time allocation on the Senate. Time allocation is proposed by the government, and the Senate itself must agree, or not, to the motion. Allowing the motion to go forward can, therefore, be understood as broadening the range of options open to the Senate. The government would have to explain and defend its proposal, which senators can then accept or reject. If senators reject the government’s proposal, debate continues according to normal practices.

In summary, honourable senators, the intent of Chapter 7 favours allowing debate on Senator Gold’s proposal to continue, which would widen the range of choices available to the Senate, and fits within the definitions contained in our Rules. The ruling is, therefore, that the motion is in order and debate can continue.

Some Hon. Senators: Shame on you.

An Hon. Senator: Shame.