Honourable senators, on May 6, Senator Plett raised a point of order concerning a written notice of a question of privilege, for which there was a request to allow further argument.

Honourable senators, I rise today in response to a point of order raised by the leader of one of the four recognized groups in the Senate on May 6. On that occasion, it took no less than 23 minutes to express his views on leadership, discipline, me and some rules.

Your Honour, you said at the time:

It has been brought to the floor by Senator Plett in what I would consider a very serious and lengthy way. . ..

In that context, I pray for your patience, Your Honour, in allowing me an equal amount of time to respond.

The leader concluded his remarks as follows:

. . . to summarize, Senator Dalphond breached the rules in four different manners. One, he used personal, sharp and taxing speech; two, he impugned motives to me; three, he willfully misled the Senate; and four, he used confidential negotiations to attack me in public thereby jeopardizing the Senate functioning.

I will deal with all of these alleged breaches to show, Your Honour, that the point of order is not only out of order, but baseless.

Starting with procedure, there are three invalidating problems with the point of order. The first is that, under the Rules, a point of order cannot be raised in relation to a motion unless the motion has been moved or in relation to an inquiry until that debate has begun. This principle is expressed in Rule 4-11(1)(b) and discussed in the Senate Procedure in Practice on page 217. In the present case, the written notice was withdrawn, clarifying my intent not to proceed and not to initiate the process with formal oral notice.

A second problem with the point of order is that it seeks to challenge the content of a document that is nothing more than an email. As you know, Your Honour, a written notice of privilege is nothing but a prior notice of intent to raise a question of privilege in the chamber at the next sitting during Senators’ Statements. A withdrawn written notice does not constitute a part of parliamentary proceedings and it is recorded nowhere in the Senate Journals, the Order Paper, the Notice Paper or the debates. Accordingly, it is obvious that my words cannot be taken down, per Rule 6-13(2), because they were not up.

In reality, a withdrawn written notice of a question of privilege is nothing more than a message in senators’ email boxes. Like messages put on Twitter by senators — some of which employ misleading and taxing language to dispute the independence and integrity of senators — email messages sent by a senator to another senator, or on his behalf, are not governed by the Rules because they are not part of the proceedings of the Senate or its committees. Of course, this is also true of comments made by a senator to The Canadian Press.

The third invalidating procedural defect with the so-called point of order is that it was brought too late. As noted, my written notice of a question of privilege was distributed on April 27 and withdrawn on April 30. All the facts to which Senator Plett referred happened before the sitting on April 30 and were then known by him. Yet Senator Plett did not raise his point of order until May 6.

Senate Procedure in Practice states:

While a point of order need not be raised at the first opportunity, it should be raised when the object of the complaint (an event or a proceeding), is still before the Senate, or the issue is still relevant to the question before the Senate.

A relevant excerpt of the House of Commons Procedure and Practice, Second Edition, 2009 confirms this procedural defect:

Since the Speaker must rule on the basis of the context in which language was used, points of order raised in regard to questionable language must be raised as soon as possible after the alleged irregularity has occurred.

For these three distinct procedural reasons, Senator Plett’s point of order is, in fact, out of order.

Your Honour, should you conclude otherwise, let me comment now on the substance of the so-called point of order.

I will address, first, the claim about the use of confidential negotiations. Your Honour, an allegation of this sort should be properly brought as a question of privilege such as contemplated in Appendix IV of the Rules, rather than a point of order. Thus, that specific claim appears to be also out of order.

More to the substance, my letter and the words attributed to me by Ms. Bryden of The Canadian Press do not refer to the discussions between the leaders during a telephone conference held on Monday, April 19. As can be seen in the letter, I referred to the content of three public documents: first, clause 5(4) of Bill C-7, now an act of Parliament, that mandates the review to commence within 30 days of Royal Assent; second, a message from the House of Commons to this chamber dated April 16 in compliance with clause 5(4) of the bill; and third, a motion in reply adopted unanimously by this chamber on April 20.

I also referred to the public fact that despite the motions of the House and the Senate to establish a joint committee and the Senate deadline of April 23 for names of senators to be provided, there were no senators’ names on the public website of the joint committee at the end of the day on April 26, only the names of members of Parliament. Thus, my written notice letter about the question of privilege was sent to the clerk late that evening at 9:27 p.m.

In the preceding days, through personal inquiry, I also learned that, in addition to me, the Canadian Senators Group had nominated Senator Wallin and the Independent Senators Group, Senator Kutcher and Senator Mégie. As for the Conservative group, I was told that no name had been communicated by the leader. Yet the Senate motion was clear. The leaders and facilitator were to file “the names of the senators named as members. . .” “. . . with the Clerk of the Senate no later than the end of the day on April 23.”

The motion also states that the Senate co-chair of the joint committee was to be determined according to Rule 12-13(1), which means at the organizational meeting of the joint committee.

On that point, the Companion to the Rules of the Senate states:

In joint committees, the clerk of the committee conducts the election, first of a Joint Chairman from the Senate, and then of a Joint Chairman from the House of Commons. In both instances all members of the committee, regardless of their House, may vote on each motion.

It was clear from my discussions with many senators that the nominees for the Senate co-chair and deputy chair positions should be based on a consensus between the five members and not on deals between leaders — this approach being coherent with the motions adopted by the Senate on Tuesday.

As Senator Plett said in his speech, the leadership of the Independent Senators Group and the Progressive Senate Group informed him accordingly before Friday, April 23, to avoid any surprises. From there, you didn’t need to be Hercule Poirot to figure out why the name for the single seat available to the Conservative group under the rule of proportionality was not communicated by Senator Plett before the expiry of the deadline fixed by the Senate.

In his speech nearly three weeks ago, Senator Plett made it abundantly clear why he refused to provide a name on behalf of his group. He wanted assurance that his nominee would be the Senate co-chair as a pre-condition of his agreeing to comply with Bill C-7, the motion of the Senate and the message sent to the House of Commons.

In other words, as I said to the Canadian Press reporter, Senator Plett wanted a blank cheque from me and other nominated senators to the joint committee on the co-chair position, and I wasn’t ready to give it to him.

In conclusion on this point, Your Honour, I did not make public any part of the leaders’ meeting held on Monday, April 19, but regrettably, Senator Plett did reveal the content of such discussions at the last sitting of the Senate and, I will add, in an incomplete and somewhat misleading way. I see Senator Woo nodding.

Therefore, should you consider that you have the power to discipline a senator for disclosing confidential discussions between leaders and other senators — which I don’t think is the case based on previous rulings that you made on May 2 and May 27, 2019 — I ask that Senator Plett should be disciplined. Please consider this observation as my own point of order in connection with the partial disclosure by him of the confidential discussions between the leader and the deputy leaders held on April 19.

While these remarks are also sufficient to respond to the claims about impugned motives and misleading the Senate, let me add a few words about the allegation of contempt.

In his speech at the last sitting, Senator Plett claimed that the Senate’s deadline of April 23 was of no force or effect and that April 23 was not a crucial date; negotiations could continue. In other words, according to him, a statutory deadline is not important and parliamentarians are free to ignore it, even to impede the Senate as a whole from complying with it. Fortunately, this is not what the other place thinks, and it has managed to do its part within the statutory deadline.

The truth is that we as parliamentarians should show the greatest respect for statutory deadlines because we expect nothing less by other people in similar circumstances. For example, the Port of Montreal workers returning to work by the deadline fixed in the bill that we passed on April 30.

Senator Plett also said that the non-effect of the deadline follows from the absence of a remedy for its breach in the motion. But, of course, remedy for such a breach by a parliamentarian exists. It is a question of privilege known as contempt.

Senate Procedure in Practice defines contempt as follows:

Any actions that substantially obstruct Parliament and its members in the performance of their duties are considered contempt of Parliament.

The power to discipline for contempt can be seen as a complementary way for Parliament to assert its privilege. The explanation for this is that the houses of Parliament should be allowed to protect themselves against acts that interfere with their functions, and thus maintain the authority and dignity of Parliament. This ability to address affronts, whether or not they fall within the fairly narrowly defined categories of privilege, is essential to achieve this end. Both breaches of privilege and contempt may be raised as questions of privilege.

These considerations explain the contents of my letter, protected by freedom of expression in criticizing a public office holder in the exercise of his public office, as I will expand on now, dealing with the fourth and last claim made against me by Senator Plett that I have used personal, sharp and taxing speech in violation of rule 6-13(1).

I repeat that such a point of order is out of order for the three distinct procedural reasons discussed previously. However, should you decide, Your Honour, to extend rule 6-13(1) to the content of a withdrawn written notice of a question of privilege, I will refer to comments made on the reserved point of order raised by Senator Lankin and me and December 3, 2020. The context was a speech by a former Speaker who accused the current Prime Minister of many things, including criminal bribery.

Senator Plett did not intervene that day. However, on December 8, 2020, upon further reflection, he asked to reopen debate on the point of order, which you graciously granted. He then said:

Your Honour, you have been in this chamber for quite a few years now. I am sure that last Thursday you said to yourself that, yes, the language used by Senator Housakos to describe the relationship between the Prime Minister and WE Charity was sharp but that you have heard much sharper language before in this Senate Chamber to describe a Prime Minister. I want to reassure you; you are right. You have heard much worse.

Then he went on to say, “Questioning, criticizing and attacking public officials for decisions they have made is the essence of Parliament.”

Colleagues, Senator Plett is a public official. Like it or not, his decisions as leader of a group are subject to public scrutiny and parliamentary criticism, including, according to him, in sharp language in this chamber.

Since the question is still under advisement, I want to say that I disagree with his perspective. That’s why the language in my written notice of privilege, even if not a speech in this chamber or before a committee, was so formal and so descriptive of what was, in my view, a case of contempt that must be raised through a question of privilege as indicated in precedents.

In conclusion, Your Honour and honourable senators, there is no valid point of order here but only an attempt by the leader of the Conservative group to discipline a member of another group. According to him, old practices and discipline must prevail because of necessity to the proper functioning of the Senate. In other words, the rank-and-file senators — the “nobody” senators, to quote him — must implement whatever agreement the leaders have reached. Unfortunately for him, this is not the reality of the current Senate.

Senators, members of three of the four recognized groups have now applied for and chosen those associations. They were not appointed to those groups. They now represent about three quarters of the current membership of the Senate and will soon make up over 80%.

They believe equality and independence are critical to the proper functioning of the Senate as a chamber of sober second thought. They don’t accept being whipped. They don’t accept being told how to vote, and they don’t provide a blank cheque. I will not provide a blank cheque.

Thank you, Your Honour. Meegwetch.

Your Honour, may I just make one point of clarification?

Senator Dalphond has referred to our caucus as one of the four recognized groups. I want to distinguish the three parliamentary groups that are recognized, but that we are the Conservative caucus, Her Majesty’s Loyal Opposition. I want to make that distinction. Thank you.

Thank you, Senator Martin.

Senator Plett, did you wish to reply?

Do any other senators wish to comment or enter the debate?

Seeing none, I thank Senator Dalphond and Senator Plett for their comments, and I will take it under advisement.