I would like to raise a point of order, Your Honour, with respect to this motion. I would like to suggest that this motion is out of order for the following reasons.

As you know, honourable senators, the Order Paper contains a motion that is substantially the same. In February, Senator Smith moved Motion No. 435, which has been the subject of vigorous debate and now sits on the Order Paper awaiting a separate ruling by the chair. Motion No. 470 is substantially the same as Motion No. 435 and as such cannot coexist on the Order Paper. Because both motions are substantially the same, in order to safeguard the efficiency of proceedings, support the right of the house to manage its business in an orderly way and to prevent the wasting of time of this house, it is out of order to move Motion No. 470. If anything, it is common sense that it not be permitted to pepper the Order Paper with a multitude of motions that are nearly identical and which seek the same substantive outcome. Were it in order to move Motion No. 470, it would then be possible to move hundreds of motions of a substantially similar nature.

Beyond common sense, the conclusion I seek from the chair in this point of order is bolstered by ancient parliamentary principles, procedural authorities and the most recent relevant precedents. Under the ancient rule of anticipation applying to Parliaments of Westminster origin, it is not permissible to move a motion that anticipates a matter that is already on the Order Paper for further discussion.

The spirit of the rule of anticipation is reflected in two explicit Rules of the Senate. Under rule 4-2(5)(b), it is not in order for a senator’s statement to anticipate an existing order of the day. Similarly, under rule 5-2, an inquiry shall not relate to any bill or any other matter that is currently on the Order Paper.

The precise matter at hand, that of a motion that anticipates another motion which already sits on the Order Paper for further discussion, is not provided for or resolved explicitly by the text of the Rules of the Senate. However, the analysis does not end there. One of the cardinal Rules of the Senate and indeed the very first rule in the book establishes the principle governing resolution of unprovided cases, that is to say, cases that are not resolved by the codified rules.

Rule 1-1(2) reads as follows:

In any case not provided for in these Rules, the practices of the Senate, its committees and the House of Commons shall be followed, with such modifications as the circumstances require. The practices of other equivalent bodies may also be followed as necessary.

Hence, when a procedural question is unresolved by the Rules of the Senate, the rules, practices and procedural authorities of the other place and other equivalent bodies, including other legislatures in the Westminster tradition, may be followed as necessary. It is therefore open to us to look beyond the Senate toward the other place and other parliamentary bodies.

Setting aside the Canadian House of Commons for a moment, it’s worth noting that the anticipation rule is widespread among parliaments having a Westminster origin, including the United Kingdom, New Zealand, Australia and India. For example, Standing Order 28 of the United Kingdom acknowledges anticipation as a valid ground to deem an item of business out of order. It reads as follows:

In determining whether a discussion is out of order on the ground of anticipation, regard shall be had by the Speaker to the probability of the matter anticipated being brought before the House within a reasonable time.

In New Zealand, rule 110 provides that a member may not anticipate discussion of any order of the day.

The proceedings of the lower house of India, the Lok Sabha, are also governed by this principle. Rule 343 of the Lok Sabha provides that:

No member shall anticipate the discussion of any subject of which notice has been given provided that in determining whether a discussion is out of order on the ground of anticipation, regard shall be had by the Speaker to the probability of the matter anticipated being brought before the House within a reasonable time.

Closer to home, the sixth edition of Beauchesne’s Rules and Forms of the House of Commons of Canada explains at page 154 that:

. . . a matter must not be anticipated if it is contained in a more effective form of proceeding than the proceedings by which it is sought to be anticipated.

Beauchesne also says that:

In determining whether a discussion is out of order on the grounds of anticipation, the Speaker must have regard to the probability of the matter anticipated being brought before the House within a reasonable time.

The second edition of O’Brien and Bosc House of Commons Procedure and Practice published in 2009 provides clarity on the purpose and operation of the rule of anticipation. Again I quote:

The rule is dependent on the principle which forbids the same question from being decided twice within the same session.

O’Brien and Bosc clarify that the rule “does not apply . . . to similar or identical motions or bills which appear on the Notice Paper prior to debate.”

In other words, the fact that two similar motions or bills appear on the Notice Paper does not mean that the rule of anticipation is at play. However, the rule is engaged if one of those two has been moved in the subject of the debate.

O’Brien and Bosc make it clear that the rule of anticipation, and again I quote:

. . . becomes operative only when one of two similar motions on the Order Paper is actually proceeded with. For example, two bills similar in substance will be allowed to stand on the Order Paper but only one may be moved . . . .

O’Brien and Bosc continue by stating:

A point of order regarding anticipation may be raised when the second motion is proposed from the Chair, if the first has already been proposed to the House and has become an Order of the Day.

That is exactly the present case, since substantively the identical motion of Senator Smith is an order of the day identified on the Order Paper as Motion No. 435.

I recognize that the rule of anticipation is rarely engaged and that it has rarely been invoked in the Senate of Canada. To my knowledge, it may never have been ruled upon in the Senate in circumstances quite like the case we have before us. To me, this serves to illustrate the extraordinary and, I would argue, inappropriate nature of the strategy adopted by the opposition in this motion.

But even if it has rarely been invoked in the Senate, the existence of a rule of anticipation has been recognized by rulings of previous Speakers of the Senate. The most clear and pertinent ruling of this matter was delivered by Speaker Molgat in 2000 in the context of the Senate’s contentious second reading debates on Bill C-20, the Clarity Act. Specifically, a point of order was raised in objection to a motion to create a special committee to study Bill C-20 on the basis that the motion for a special committee anticipated the motion for second reading of the bill.

Speaker Molgat deemed the motion in order, but while he refused to apply the rule on the facts of the case, he made it very clear that the rule of anticipation is, in fact, a principle of practice applying to the Senate and, furthermore, that the point of order would have been well-founded had the two motions been substantially similar.

Speaker Molgat said:

. . . the rule of anticipation is not an explicit rule of the Senate or of the other place, though it is a principle of practice. Citation 512(1) and (2) in the sixth edition of Beauchesne’s at page 154 notes that the rule of anticipation is dependent on the same principle as the rule on the “same question.”

Later, he continued:

I would be prepared to consider accepting that proposition, if I could be convinced that the two questions are the same, or even substantially similar, but they are not. The motion for the second reading of Bill C-20 involves a decision on the principle of the bill and whether it warrants further study by the Senate. The motion to create a special committee to examine Bill C-20 does not directly address the principle or content of the bill, but rather seeks to provide an alternative to the possibility of referring the bill to another kind of committee. These two motions are not the same in substance, and the rule of anticipation does not apply to their consideration.

Because the motions in the case of the Clarity Act were so different in nature, one for the second reading of the bill and the other to create a special committee, Speaker Molgat decided not to apply the rule of anticipation. By contrast, however, I posit that the present case is distinguishable; that motions 435 and 470 are the same in substance, and that the rule of anticipation must operate to disqualify motion 470 notably to avoid absurd and inefficient outcomes.

Some may argue that motion 470 is in order because it is not identical to motion 435. This is not persuasive. It is not necessary that both motions be identity. The standard is not that of a carbon copy, but rather the crux of the matter is whether they are substantially similar.

The core purpose of the rule of anticipation is to support the right of the house to manage its business in an orderly way and to prevent wasting time. For example, there is a link between the rule of anticipation and the same question, the object being that one decision should be made on a matter. It is plain and obvious that motion 470 and motion 435 are substantially similar. Motion 435 has exactly the same objectives as the new motion; namely, and I quote now from both motions:

That the Standing Senate Committee on Legal and Constitutional Affairs be authorized to examine and report on the serious and disturbing allegations that persons in the Office of the Prime Minister attempted to exert pressure on the former Minister of Justice and Attorney General of Canada, the Honourable Jody Wilson-Raybould, P.C., M.P., and to interfere with her independence, thereby potentially undermining the integrity of the administration of justice. . . .

If one of those two motions were adopted, the other would be of no purpose and serve no object. If one of the two motions were defeated, the other would be out of order on another ground by operation of the same question rule. This is because the order of reference for the study contemplated by the two motions is identical, and they both engage the Standing Senate Committee on Legal and Constitutional Affairs. The pith and substance of motion 435 — indeed, its heart — is to authorize the Standing Senate Committee on Legal and Constitutional Affairs to conduct a study on the subject identified, a subject that is identical in motions 435 and 470.

The rule of anticipation would serve no purpose if it were possible to circumvent it by a simple tweak of a witness list or the shifting of a reporting date back by a few days. If motion 470 is to be found in in order, it would be open to Senator Plett and his colleagues to move dozens of substantially similar motions, each with a different reporting date or combination of witnesses. The Senate as a whole would then have a debate on each of these every sitting day, notwithstanding the principle that members have only one opportunity to speak on a given matter and despite the fact that they are substantially the same proposal.

Should it now be open for Senator Housakos to move a third motion that would change the reporting date of the motion to June 7? Should it now be possible for Senator Carignan to move a fourth motion that would simply add former Minister Philpott to the witness list? Should it now be open for Senator Martin to move a fifth motion that would simply change the reporting date of the motion to June 21? Under such a scenario, the Senate would soon become a theatre for the absurd. This is precisely what the rule of anticipation seeks to deter.

In addition, by ruling this motion out of order, Senator Plett does not lose any procedural right. The procedurally appropriate vehicle to change the date of motion 435 or to strike out some of its witnesses would be a motion to amend motion 435. Instead, motion 470 seeks to circumvent the appropriate procedural amendment and to indirectly circumvent the principle that members have only one opportunity to speak on a matter. However, should motion 435 be withdrawn, then this motion could be reintroduced and would be in order.

But at least and most crucially, there is a recent precedent from the other place that is quite relevant to the case before us. On June 11, 2014, the Speaker of the other place ruled a motion out of order precisely because another motion that was substantially similar was already on the Order Paper. The NDP Opposition Member for New Westminster—Burnaby moved a motion that he had put on the Order Paper, instructing the Standing Committee of Justice and Human Rights to split Bill C-13. However, two weeks prior, the NDP Member for Gatineau had already moved a similar motion of instruction, which was adjourned and sat on the Order Paper. The difference between the first and the second motion was five words.

The government house leader at the time, Peter Van Loan, argued that the two motions were substantially similar and that by operation of the rule of anticipation, it was out of order for the Member of New Westminster—Burnaby to move the new motion. The speaker of the other place said:

I appreciate the points raised by both the government House leader and the opposition House leader. Upon examination of the section of O’Brien and Bosc, upon which both House leaders have relied extensively for their arguments, it seems to the Chair that the key concept is the question of whether or not the motions are substantially the same.

Upon examination of both motions on the notice paper, it does seem that the motions are substantially the same and that the principles cited by the government House leader as to the practice of the House are persuasive to the Chair. Accordingly, we will not be proceeding with the motion at this time.

I believe the clarity of this ruling resolves the issue before us. After all, how can we doubt the wisdom of the Member for Regina—Qu’Appelle, Speaker Andrew Scheer? I have no doubt that the senators opposite would consider a ruling of Mr. Scheer to be quite authoritative.

In brief, a point of order regarding the anticipation may be raised here because this second motion, motion 470, is being moved while the first motion, motion 435, has already been moved and has become an order of the day, and the motions are substantially similar. For these reasons, and with particular emphasis on the learned findings of the former Speaker Andrew Scheer, I submit that the motion that has just been moved should be ruled out of order.

Of course.

Well, the situation in the house involved the exact same motion as I referenced in the debate. The motions were viewed by the Speaker of the day as absolutely similar. That doesn’t speak to whether or not those motions were amended or subject to amendment or there were amendments on the table. It is with regard to the motion itself, and that’s the heart of the matter.