Senator Don Plett, Leader of the Opposition

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Point of Order

Hon. Donald Neil Plett: Thank you, Your Honour.

I am rising on a point of order regarding the Speaker’s failure to acknowledge a senator and preventing the commencement of debate on a motion. I believe this was out of order for two reasons.

First, I find it unusual and unconventional, to say the least, that the Speaker would recognize a senator who moves a motion that would abruptly halt debate, thereby preventing any discussion or possible amendments to the motion at hand. Clearly, there were senators who wished to speak to this seldom used and controversial motion. It is unreasonable to believe otherwise as, if this chamber were ready for the question on the legislation itself, there would have been no need for a disposition motion and one would not have had to have been brought forward.

As soon as Senator Lankin finished speaking, I rose on debate, following proper protocol. I waited for the honourable senator to be seated before I rose. However, Senator Petitclerc did not wait. Clearly, Senator Petitclerc and Senator Lankin had orchestrated this manoeuvre in which Senator Petitclerc had her hand up, right directly in front of Senator Lankin while she was concluding her comments and was still standing, which clearly manipulated the situation, encouraging the speaker to recognize Senator Petitclerc, a senator who wanted to pre-emptively shut down debate before it began, instead of recognizing a senator who had been prepared to debate this legislation.

This robbed not only me but other senators of the opportunity to add their voices to the debate, or, in fact, to even ask Senator Lankin a question about this unconventional motion.

In addition, page 94 of Senate Procedure in Practice reads:

Usual practice is for the Speaker to recognize senators alternating between the government and the opposition sides.

Clearly, this was not taken into account here.

Secondly, when the Speaker asked if we were ready for the question, Hansard clearly indicates that at least one senator, me, said “No.” Yet, the question was proceeded with. At the very least, debate should have been allowed on Senator Petitclerc’s motion. Of course, I have been offered that this afternoon.

Senate Procedure in Practice, on page 117, on putting the question, states:

The Speaker puts the question on a motion by saying the following at the end of any debate: “It was moved by the Honourable Senator [name], seconded by the Honourable Senator [name], that [text of motion.] Is it your pleasure, honourable senators, to adopt the motion?” If there is no dissenting voice expressed, the Speaker will declare the motion adopted.

Of course, the record shows that there was a dissenting voice.

Your Honour, taking into account the seriousness of the legislation we have before us and the unusual circumstance that took place yesterday, where a senator has moved forward with a motion to immediately cease debate and force a vote, with another senator queued up to move a motion that would prevent senators from even debating the previous motion, I believe that the debate should be reopened.

Senate Procedure in Practice reads, on page 94, that:

“The essential characteristic of debate is that it is a process whereby the senators participating seek to support their own position and to bring others around to it.”

In Chapter 5 of Senate Procedure in Practice, “Rules of Debate,” a ruling by Speaker Molgat on April 2, 1988, is referenced, in which he states:

It is my view that matters are presumed to be in order, except where the contrary is clearly established to be the case. This presumption suggests to me that the best policy for a Speaker is to interpret the rules in favour of debate by Senators, except where the matter to be debated is clearly out of order.

This is a policy and principle that guides the spirit of this chamber and is illustrated in how the Senate typically conducts itself. Take, for instance, the 15 minutes allotted to a senator on a debate or inquiry speech. While the rule is 15 minutes, it is typical practice to allow an extra five minutes, and sometimes even more than that, in order to promote debate, not curtail it. On matters as important as this, we should always be fostering an environment of debate.

I believe that Senator Petitclerc should not have been recognized nor should she have been able to move forward with her motion while debate had not even begun.

For that reason, I believe that Senator Petitclerc’s motion should be withdrawn and that senators should be able to add their voices to the original motion as presented by Senator Lankin.

Colleagues, a disposition motion is literally a closure motion, which should, at the very least, be there only for government, and, even then, we time allocate debate when a government moves a closure motion. Here we are allowing a closure motion to be introduced by an independent senator on a private member’s bill and then not allowing any debate whatsoever.

Our Senate, colleagues, has been set up to allow minorities largely the same rights of those as majorities. If this goes ahead the way it is, it truly opens up the door for debate on future private members’ bills to be cut off any time 50 per cent plus one of the chamber decides that they wish to do so.

I firmly believe there is a point of order here and that Your Honour should have looked around the chamber. I recognize the fact that Your Honour’s vision was clearly toward that of the speaker at the time and that the line of vision had the senator moving the next motion directly in your vision. However, as the Speaker, in my opinion and with the utmost of respect, Your Honour should have looked around the chamber to see if there was somebody wishing to speak. Indeed, there was not only me but other members who wished to speak for the very first time, Your Honour, on a disposition motion — for the very first time — and there was no allowance given to that because there was clearly a game plan here to cut off debate by an independent senator, not a government senator.

I will stop there, and hopefully there might be one or two others who want to add their voice to this. Thank you.

Hon. David M. Wells: Thank you, Your Honour. I stand in support of Senator Plett’s motion. In the just over five years that I’ve been here, every time there have been two senators standing, I have seen the courtesy of the question, “Do you have a question, senator, or is this on debate?” and it’s always ceded to the person who has the question. That is the typical order we have. Of course, that wasn’t followed in this circumstance — another motion versus on debate.

As a member of the leadership team on this side, I was aware that we had notified the table that we had a speaker for the disposition motion, and so I was quite surprised when that senator wasn’t recognized.

Further, I want to point to the possible outcome of this. I look to Senator Day, who mentioned minutes ago in his tribute to Senator Fraser the question of hasty decisions and unintended consequences. If this is the new normal, or if this is the new practice set by this precedent, I think it would be disappointing. All of the debates thus far in our chamber have been based on courtesy. I think in this case that courtesy should be extended to Senator Plett’s desire to speak on the disposition motion.

Hon. Leo Housakos: Thank you, Your Honour. I also rise in support of this point of order, and I rise with a heavy heart from what I saw yesterday in this chamber.

Honourable colleagues, I have been in the Senate now for a decade. This Parliament of Canada, which is modelled after the mother of all Parliaments, Westminster, is designed to allow for minority voices and for democracy to rain down across this country. Yesterday, what I saw here was really unacceptable. I think all of us as senators have to look in the mirror and take responsibility for what transpired yesterday.

The reality of the matter is that democracy is not only casting a vote. That’s a fundamental sovereign principle that all Canadians have, and they get an opportunity to exercise that every few years when they elect a Parliament. This is an appointed legislature, part of the democratic process, and it’s fundamentally rooted on the principle of debate. That’s what makes this place a democratic chamber. It’s rooted on the principle of discourse. When a majority of individuals decide to shut down discourse in this place, democracy dies. Democracy is not rooted in the power of the Prime Minister to exercise his authority as a member of this executive. They have that power in the Constitution and his powers to name senators. He has named right now a large number of senators who have a fiduciary right to respect the fundamental democratic principles of this place.

I took my role seriously when I was summoned to this place. All of you have the responsibility to take it very seriously.

Democracy in this place works when the minority has to find a word in this chamber. That’s how it was rooted when the Fathers of Confederation built the system and created a hybrid based on the Westminster system, and that’s how it has to function. We were all very cognizant that when we were on that side. We were a majority.

I was very cognizant of that when I was in the Speaker’s chair. My Liberal colleagues know very well that at no such time would we ever use such brutal authority to shut down debate. I certainly would not have allowed that when I was sitting in the chair.

In all fairness to His Honour — and I will get to the point soon, Your Honour, because my comments are with no disrespect to the chair yesterday. There were two egregious things that happened yesterday. The first one is the fact that we didn’t follow historical protocol in this place, which is that the Speaker generally never calls into question an issue or a motion before the chair rises and says, “Is there any further debate? Does any senator wish to speak further on the matter?” It could be an inquiry, it could be a private member’s bill, it could be whatever it is. That did not happen yesterday.

Second of all, His Honour did the dignified thing and asked for leave in order to revert to debate. Kudos to His Honour for recognizing that, because we’re all human, and we have all made mistakes. I have done that in that chair.

It was despicable and appalling to find colleagues in this place refusing to grant leave. I have been in this place for 10 years, and I challenge any of you to go to the Debates of the Senate and find that I would get up and not grant leave to a senator who wanted to speak on an issue here. I challenge anybody to go and find one occasion where I would not grant leave to senators who wanted to revert to any form of business on the Orders of the Day here. It’s unbelievable and happening more and more in the last couple of years where people are refusing leave. I have never in my 10 years seen anybody refuse leave to a senator who wanted more time after an additional five, which is not even part of our Rules or convention, but it’s basic dignity and respect.

What we saw yesterday was an affront to the basic dignity and respect of the democratic principles of this place, which is debate. We have an obligation to allow debate to go on. 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. When we were in power, you’re right, colleagues, we exercised time allocation, but we were accountable to the public when we did that, because we knew it was part of government legislation.

When it comes to private members’ bills, you can debate them here until the cows come home. That’s how it works. So when Senator Cools, a real independent, would sit up in that corner and she wasn’t ready to move a motion, we all gave her the respect and time. You know what? More often than not, I learned something from listening to Senator Cools, Senator McCoy and the other genuine independents we had in this chamber for a decade.

Colleagues, when we use tools of this nature — and part of the process of debate and procedure is to use the various tools at our disposal — be wary when you are using tools that muzzle debate, and put an end to the opportunity and the right of every single senator to engage in discourse. That is the fundamental right we all have when we were summoned here. It is our right to speak on any piece of legislation, and none of us — it doesn’t matter if you’re a majority today — none of us has a right to take that away from any senator. The moment you do that, you destroy the fundamental process that this place has in democracy.

I urge — not His Honour on this port of order — but I urge colleagues to keep that in mind. The respect of minorities starts with respecting the last senator with the last differing opinion in this place. We all have an obligation to do that.

I took that responsibility very seriously when I was on the government side, and I took it very seriously when I was Speaker. I think my Liberal colleagues saw that in action, not only in words, when I was in the chair, and I think we all have an obligation to respect the dignity and democracy of this place. Thank you very much.

Hon. Anne C. Cools: Honourable senators, I rise to join this debate on Senator Plett’s point of order. To His Honour, Senator Furey, whom I have known for many years and with whom I have served on several Senate committees, I would like to say to you, Your Honour, and to colleagues here, that I am confident that Senator Furey had no malice or ill intention in his mind or in his heart when those events unfolded and occurred last night here in the Senate.

Anyone who is in public life knows that sometimes when one has the floor, one may be a little nervous. Some of us are not as confident as others. They might get a little nervous, a little flustered and distracted and therefore prone to errors. But I just wanted to assure colleagues and our Speaker, Senator Furey, that I have no suspicion or judgment of him in my heart.

Having said that, colleagues, I stand as a fierce opponent of disposition motions, and motions that impair, shorten and abbreviate debate. The objective and the objects of this place are to debate and to exchange views very freely, knowing that there are certain instruments that are explicitly created to limit debate and to end debate. One of those types of motions was deployed and employed yesterday in this place. Senators will know that I come from a family that taught me much about these systems of parliamentary governance. As such, yesterday’s situation shocked and appalled me. I will be ready to oppose this disposition motion, which is what I am doing now.

Honourable senators, having said that, I want to say that the motion that was moved yesterday by a senator is one that we would describe as a disposition motion.

Colleagues, I assert that such motions seek to arrest and terminate debate at all times and at the best of times. It is a two-headed monster. This senator’s disposition motion is a two-headed monster, because simultaneously it breached our free-speech privileges of in this place, privileges that are granted by section 18 of the Constitution Act, 1867. It also breached the order in this place in that it purports to be a species of motion known as the guillotine motion.

The guillotine motion is not a democratic motion. It is not a sensitive, thoughtful motion. It is not a motion that intends extended debate until all concerns are met. It is a motion that is intended to truncate and terminate debate. Make no mistake about that.

This species of motion, called the guillotine, is available for the use only of ministers of the Crown. No private member is ever supposed to move a guillotine motion. Furthermore, when the government uses such a motion, they must use it on government business. It is usually used in times when there has been fierce obstruction and opposition and delay on government bills.

Colleagues, Bill C-210 is not a government bill. It is a private member’s bill. The guillotine motion may not be used by private members or on private members’ business, as Bill C-210 is. The guillotine motion belongs to the family of severe and punitive procedures and motions that are employed in parliamentary assemblies in cases of — listen carefully — willfully prolonged and severe obstruction of business in the houses of Parliament. Bill C-210 could hardly be described as any of these things.

This guillotine family of motions includes time allocation, closure, disposition motions and, of course, the most severe, the guillotine motion itself. It is called a guillotine motion because of its harshness, severity and finality.

Honourable senators, I would like to cite some interesting debates, but I will come to them in a moment. I want to make the point, again, that time allocation and closure motions are rarely used. For centuries, lovers of freedom of speech and of constitutional liberty have abhorred and condemned the use of these rarely to be used motions. There are good reasons for their rare and infrequent use. Most senators here have probably never been exposed to them.

Our Rules of the Senate, at pages 41 and 42, has an entire section headed “Time Allocation,” with its related rules 7-1, 7-2 and 7-3. I further note that these time allocation motions ought only to be actuated and moved by the Senate Government Leader, who is expected to be and has always been, until recently, a minister of the Crown and a member of Her Majesty’s Government of Canada.

Honourable senators, I repeat: This family of motions, guillotine motions, should be rarely employed. If we look at chapter 7 of our Rules, it says very clearly in rule 7-1(1), on the agreements to allocate time, 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 agreed to allocate a specified number . . . .

Here it is clear that guillotine motions are moved as government initiatives, not as initiatives arbitrarily used by individual senators. Unfortunately, it is hard to believe that most senators in this place have not been exposed to the severity and harshness of these guillotine motions.

Colleagues, I want to share some authoritative explanations and definitions of guillotine motions. I shall begin with Sir Gilbert Campion, later Lord Campion. He was the Clerk of the British House of Commons from 1937 to 1948. In his 1958 book, An Introduction to the Procedure of the House of Commons, Lord Campion wrote at page 129:

’Guillotine’ Motions are a form of closure by compartments applied to the discussion of Bills. . . . . Their purpose is to ensure the completion of the debate on a capital Bill in a certain number of days, and to distribute the days allotted proportionately over the various stages of the Bill. . . . . They are sometimes not put down until a Bill has been so long in committee with so little progress made as to provide a case for the application by the Government of special measures.

In other words, the delays in the bill’s progress would have to be so extreme and so protracted that they invited the harsh response, that is a guillotine motion. I continue with Lord Campion saying, at page 129:

The expedition of business secured by this method has generally to be paid for by the loss of a day in the discussion of the Motion itself. It is thus only for the purpose of securing the passage of important Bills that a Government finds it worth while to resort to these measures. The detailed arrangements, by which the various parts of the Bill are examined by a certain time, can be laid down by the ’Guillotine’ motion itself;

Honourable senators, Lord Campion is clear that the guillotine motion is rarely used, and when used it should be to secure important government business. Governments only resort to these unusual and harsh measures in strained and difficult circumstances such as the unceasing Irish obstruction that confronted the great Prime Minister William Gladstone in the British House of Commons in 1881, which led to the creation of the guillotine motion.

Honourable senators, I shall cite Norman Wilding and Philip Laundy in their 1972 fourth edition of An Encyclopedia of Parliament. They define “guillotine” thus, at pages 335 and 336:

A development of the closure . . . which is applied to the various stages of Bills and is also known as the ’closure by compartments.’ It can only be called into operation if a motion for the purpose has been agreed to by the House. Unlike a closure motion which has to be passed when a question is actually before the House, an allocation of time or ’guillotine’ motion is passed in advance of the debate it is proposed to limit.

Therein lies part of the problem. I continue with Wilding and Laundy saying, at pages 335 and 336:

A ’guillotine’ motion is designed to expedite the passage of a Bill, and seeks to do so by means of a time-table allotting a certain number of days proportionately to each stage and, in respect of the committee and report stages, stipulating the number of clauses which must be considered on each day or portion of a day. At the end of the allotted time the question under consideration must be put, followed by any further questions necessary to conclude the business which has been assigned to that day or period, opportunity for any further discussion being now lost. ’Guillotine’ motions usually contain other provisions such as the prohibition of dilatory motions and the postponement of other business.

The ’guillotine’ is unpopular on all sides of the House.

The Hon. the Speaker: Excuse me, Senator Cools.

Honourable senators, it’s now four o’clock, and pursuant to the order adopted on February 4, 2016, and the order adopted yesterday, January 30, 2018, I am obliged to suspend the Senate until 5:30 p.m. when we reassemble to call a vote. However, this is a very serious debate, and I know a number of other senators would like to speak to it, so with the consent of the chamber, we can go beyond four o’clock. Is it agreed, honourable senators?

Some Hon. Senators: Agreed.

The Hon. the Speaker: It requires unanimous consent.

An Hon. Senator: No.

The Hon. the Speaker: It requires unanimous consent. I hear a “no,” which means that we’ll have to interrupt the debate.

We are still under an order of the house to come back at 5:30 for the vote.