Honourable senators, pursuant to the written notice I provided yesterday to the Clerk of the Senate and the Clerk of the Parliaments, and pursuant further to Rule 13-3(1) of the Rules of the Senate of Canada, I rise today to speak to a question of privilege surrounding the adjournment motion that occurred during our most recent sitting of the Senate.

For context and explanation further to the written notice that was recently circulated to all senators from the Clerk, during the sitting last Thursday, November 28, the adjournment of the Senate was sought during debate on Bill S-218. This occurred a few minutes before 6 p.m., when there were just a handful of items left to be spoken to on the Order Paper. As there was no legitimate need to adjourn at that point in the sitting, and as both myself and Senator McPhedran were still on scroll to speak that day, we both said “no” emphatically when Her Honour put the question of adjournment to senators.

Nevertheless, and despite our objections, the adjournment motion carried on unobstructed. Recognizing this, and immediately prior to the bells ringing, Senator McPhedran rose to address Her Honour, indicating that two senators had said “no” to this adjournment motion. In response to this assertion, Her Honour simply said, “Yes, and so I said it was carried,” referring to the adoption of the adjournment motion, despite this recognition that two senators had said “no.” Not only did the motion then proceed to pass, but it was not even recognized as passing on division.

Honourable senators, pursuant to Rule 13-2(1) of the Rules of the Senate, a question of privilege must meet four criteria to be accorded priority. As I will lay out, I contend this question of privilege meets those four criteria:

Regarding subsection (a), this question of privilege is being raised at the earliest opportunity, as this matter occurred surrounding the adjournment of the most recent Senate sitting, and as I had given written notice prior to the current sitting.

Regarding subsection (b), this is a matter that directly concerns the privileges of several senators, primarily those whose objections were dismissed as well as those who were prepared with speeches that went undelivered as a consequence of the early adjournment.

Regarding subsection (c), this question of privilege is being raised to correct a serious breach of the Senate’s rules, procedures and typical practices, as the failure to properly recognize senators objecting to a motion had cascading effects of disallowing a proper voice vote and, moreover, disallowing a standing vote.

Regarding subsection (d), this question of privilege is being raised to seek a genuine remedy that the Senate has the power to provide, and for which no other parliamentary process is reasonably available to rectify, given the misapplication of both rules and procedures, which resulted in senators being silenced both within the voting process as well as through the preclusion of speeches that could potentially have occurred later during that sitting, pending the outcome of a standing vote.

Colleagues, Rule 9-2(1) of the Rules of the Senate reads:

When a question is put to a vote, the Speaker shall ask for the “yeas” and “nays” and shall decide whether the question is carried or defeated.

This process was not followed correctly for the adjournment motion in question, as the motion was considered carried without acknowledgement of the objections. This decision was then further sustained without due consideration when it was raised by Senator McPhedran that two senators had objected.

Moreover, Rule 9-3 of the Rules of the Senate of Canada stipulates:

After a voice vote, upon the request of at least two Senators made before the Senate takes up other business, the Speaker shall call for a standing vote.

The right for senators to rise on this vote was violated when the recognition of their dissent to the motion was not properly recognized on the voice vote.

Honourable senators, having laid out the facts of the issue at hand, I would now like to appeal to you all to consider the matter, meaning, spirit and intent of the privilege we all allegedly enjoy. The Rules of the Senate defines privilege as:

The rights, powers and immunities enjoyed by each house collectively, and by members of each house individually, without which they could not discharge their functions . . . .

These words carry not only great weight, but also great legitimacy. As some honourable senators may be aware, these words and this definition were first crafted in 1946 by the great parliamentary scholar and expert Erskine May within the fourteenth edition of A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament.

This concept of privilege has also been considered in a 1996 report of the Australian Senate Standing Committee of Privileges. This Australian committee described privilege as follows:

The privileges of Parliament are immunities conferred in order to ensure that the duties of members as representatives of their constituents may be carried out without . . . improper impediment. . . .

Most critically, colleagues, I would like to quote our own guiding document, Senate Procedure in Practice. On page 224, it states:

The purpose of privilege is to enable Parliament and, by extension, its members to fulfill their functions without undue interference or obstruction. . . . Individual members can only claim privilege if “any denial of their rights . . . would impede the functioning of the House.”

Colleagues, we must acknowledge that the denial of several senators’ rights in this instance also impeded the functioning of the house, as the misapplication of the Rules not only shut down debate but closed up shop needlessly early last Thursday.

Honourable senators, Senate Procedure in Practice goes on to state:

. . . the essential purpose of parliamentary privilege is to allow Parliament to control its proceedings without undue interference . . . as well as to allow members to carry out their parliamentary duties. . . .

Within the list of collective rights that senators hold, this guiding document explicitly includes “the regulation of its proceedings or deliberations . . .” In its list of privileges senators hold individually, Senate Procedure in Practice includes “freedom of speech in Parliament and its committees” and “freedom from obstruction . . .”

Honourable senators, I would like to appeal that the view and stance that is often taken as it pertains to the concept of privilege is often too narrow and constrictive to be of practical use. Privilege is often linked to immunity from the ordinary law. However, does this finite limitation not do us all a great disservice? Are we not then permitting and willfully allowing our privilege and rights to be obstructed, interfered with and impeded upon by our own misapplied proceedings, whether they be misapplied intentionally or accidentally? For let us be clear; based on the previous texts I have referred to from Erskine May, the Parliament of Australian and our own Senate Procedure in Practice, they are all clear that privilege is in place to guard against the obstruction, interference and impediment of our parliamentary duties.

Why would we be militant in ensuring protection of privilege from external forces when we ignore the violations of our privilege that occur by our own internal mechanisms?

Our privilege is either a fully guaranteed right to ensure we can perform our duties, or it is a pretense. We must understand which of these two it is and treat it as such. How can I have the right to freedom of speech when I do not have the right to speech itself?

Honourable senators, we all know that time for debate is highly limited in this place due largely to travel considerations and committee responsibilities. We typically meet for no more than two hours on Wednesdays, we typically adjourn relatively early on Thursdays to facilitate travel and we typically do not meet at all on Mondays and Fridays. This leaves Tuesday as the only day we usually sit through the Order Paper. However, when you have 100 senators vying to speak on dozens of items on the Order Paper, time becomes precious. We cannot afford to trample on one another’s privilege by willfully denying some the right to be heard on a vote or speech and then proceed to act as though that decision is somehow less of a violation of our privilege than it would be if it were an external force that resulted in the same outcome.

As such, honourable senators and Your Honour, I strongly urge us all to truly consider the meaning and intent of privilege. Are our rights under privilege — our rights to undertake our parliamentary functions free from impediment, obstruction and interference — alienable or inalienable? Is our privilege guaranteed, or is it conditional?

Colleagues, given the situation raised in this question of privilege and what I contend are a legitimate impediment and restriction in the ability for me and several of my colleagues to perform our senatorial work, I submit that this matter constitutes a prima facie case of privilege and warrants further consideration by the Senate.

As a final point, I also note that the adjournment motion in question last Thursday occurred while Senator Plett was on debate on my Bill S-218, which seeks to implement gender-based analysis more evenly within government.

As such, Senator Plett, I look forward to you concluding your remarks in support of that bill when you use the balance of your time.

Kinanâskomitinawow. Thank you.