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]

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.

The Hon. the Speaker: Honourable senators, order, please.

The Hon. the Speaker: Order, please. Honourable senators, the question is as follows:

Shall the Speaker’s ruling be sustained? All those in favour of the Speaker’s ruling will please say “yea.”

The Hon. the Speaker: I see two senators rising. Is there agreement on a bell?

The Hon. the Speaker: In my opinion, the “yeas” have it.

And two honourable senators having risen:

An Hon. Senator: One hour.

Some Hon. Senators: Yea.

Some Hon. Senators: Nay.

The Hon. the Speaker: All those opposed will please say “nay.”

The Hon. the Speaker: The vote will take place at 9:10 p.m. Call in the senators.

Speaker’s ruling adopted on the following division: