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. 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.

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