Point of Order—Time Allocation Motion

By: The Hon. Pierre Dalphond

Share this post:

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):

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.

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.

Share this post: