Honourable senators, I rise today to raise a question of privilege in relation to events that transpired today at the Standing Senate Committee on Aboriginal Peoples.

I must tell you, honourable colleagues, that I take no joy in this. I rise today with a heavy heart to express great umbrage and to seek relief about actions taken which I think clearly violated my parliamentary privileges at committee this morning.

I say I rise with a heavy heart because, as I told my committee colleagues this morning, I think we’ve worked together in my 10 years on this committee — and I was privileged to have been chair for a while and served as deputy chair with Senator Dyck — I think we’ve done good work on very difficult issues, but we’ve done so, in my time so far, respectfully.

On a point of order.

Sit down!

On a point of order, we have received no notice of a question of privilege being raised today. The events that Senator Patterson is going to refer to occurred more than three hours ago. He had plenty of time to draft a written complaint about the question of privilege, to file it with the Clerk and have it distributed so we could consider what he’s going to say and prepare a response. A great deal of events occurred at the meeting this morning that I think we have the right to have a chance to consider before we respond.

I’d like to say it’s out of order for him to raise a question of privilege without giving us notice. He can raise his question of privilege tomorrow, having had an opportunity to prepare his document.

Honourable senators will know from a previous question of privilege that pursuant to rule 13-4, if the question of privilege arises between the time of an event and the opening of our session for the day, the rule allows for some flexibility in hearing the question of privilege, particularly if it’s not within the prescribed three-hour notice.

In this case, we will hear from Senator Patterson.

Thank you, Your Honour. I would appreciate the chance to address that point. I intend to address that point in my point of privilege, the point about not being able to give written notice. Thank you, honourable colleagues.

I must begin by stating that in my short time in the Senate — 10 years — and especially in this committee, I have never witnessed actions like I witnessed today. What happened today in the committee was that on seven occasions, my ability to speak on the amendments that I was proposing in relation to private member’s Bill C-262 was interrupted and arbitrarily cut off by the chair and the majority of members on the committee.

On a motion proposed by Senator Sinclair, the very first time I spoke to Bill C-262 in clause by clause and proposed an amendment on clause 2 — I think it was an important amendment — the committee cut me off in the middle of my remarks and moved straight to a vote.

By another motion of the committee, all of the amendments I proposed — there were seven of them, and there were other amendments proposed by another member of the committee — were limited to no more than five minutes of debate, in total. These five minutes included both the time I had to move the amendment, to speak on the amendment, and all the other time allotted to all other senators to speak.

What was so bizarre about the entire episode was that Senator Sinclair was himself on the speaking list to speak on my additional amendment. Then, nevertheless, in the middle of my remarks, he called the question and moved to cut me off in the middle of those remarks. I would have wanted to have heard what he had to say, and I think the record should have reflected those view points even though they may well have been different. But I think Senator Sinclair, whom I greatly respect, evidently believed that we would not finish debate on Bill C-262 and decided that all debate would then be cut off with a five-minute guillotine.

On this I must quote from the Rules of the Senate, specifically rule 12-20(4) which states:

No Senate committee shall adopt procedures inconsistent with the Rules or practices of the Senate.

I respectfully submit, Your Honour, that the committee improperly voted and passed on a motion to limit debate to five minutes per amendment submitted on private member’s Bill C-262 in contravention of this rule. This is, I believe, clearly against the Rules of the Senate. This action constitutes, in my submission, de facto time allocation of debate in committee.

Time allocation of a committee procedure is allowed in the Senate — it is outlined in rule 7 of the Rules of the Senate — but time allocation, I submit, is always a decision of the Senate and not a decision of the committee. I submit that this means the committee has no authority to impose de facto time allocation or timelines on debate at any time.

I made a point of order to that effect that was overruled by the chair, more than once actually, as I recall.

I don’t think the committee has authority to impose de facto time allocation or timelines on debate at any time. It certainly should not do so in the middle of a senator’s remarks. That’s exactly what the committee did, interrupting me when I was speaking to the amendment and calling the question before I had finished my brief explanation and defence of the amendments I had prepared.

I submit this action taken by the committee is a violation of my privilege as a senator, and, indeed, of the privilege of all senators on the committee. I never was once able to complete my remarks to explain the amendments I proposed in committee this morning which, in some cases, were complex.

A second question of privilege relates to my ability to participate in debate. My right to speak on debate in the committee was repeatedly denied. In my view, illegally limiting debate on amendments in the committee to no more than five minutes per amendment left me with only very limited opportunity to speak either on the bill or, indeed, on any amendment. That includes the amendments which I moved as well as the amendments moved by another senator.

By inappropriately limiting the debate time to five minutes, each senator on the committee — and there are 15 members on that committee — who wished to speak was theoretically given about 20 seconds — 20 seconds — to speak on each amendment. In practice, given the time that was needed to move and properly explain each amendment, I had virtually no time at all to speak on the amendments.

Let me be clear, Your Honour. I submit that the transcripts will clearly show that I was speaking directly to the amendments I proposed. They were not trivial amendments. They addressed what many witnesses stated were flaws, ambiguities, lack of clarity and even questioning the very constitutionality of the bill.

It was that speech, respectful and carefully considered ways to address flaws in the bill, that I was addressing as we examined Bill C-91 earlier in the committee, but I was refused the chance to speak.

I would respectfully ask, Your Honour, that you rule that the bill be sent back to the committee to ensure it has proper consideration and that proper time is allowed to all senators to speak on the bill. This is the only remedy that is open to us. Given the extraordinary circumstances we are confronted with, I believe that we have no option but to send the bill back to the committee so we can do a thorough job.

Colleagues, I believe this is a grave and serious breach of Senate rules and practices. All senators need to understand that if this breach is permitted to stand, it risks being repeated by other committees. I’m also the critic on two very important government bills still before the Aboriginal Peoples Committee, Bill C-91, Indigenous languages; and Bill C-92 on Indigenous child welfare. I have amendments to propose. Will these severe procedures also be imposed on me when I bring other amendments and try to explain them to the committee and to the listening public who are very interested in Bill C-262, Bill C-91 and Bill C-92?

I ask senators to recognize that the violation of the privilege of any senator can subsequently become the violation of the privilege of any and all senators. Such a breach obstructed my ability to discharge my duty at committee and especially my duty as the designated critic for the official opposition on Bill C-262.

I submit this is a most serious matter. I submit it’s a violation of Senate rules. I would like to quickly go over the grounds, Your Honour.

Four basic conditions are required for a question of privilege. First, a senator must raise the question of privilege at the earliest opportunity.

The Aboriginal Committee met this morning and sat past its allotted time. De facto time allocation was improperly imposed at that committee. This is the first time that I’m able to raise this matter that occurred in the committee, which concluded after 11 a.m.

Second, the matter that is raised must directly concern the privilege of a senator. In this case, my ability to debate at committee was totally and completely improperly denied. Surely the ability to speak to a matter properly on the committee agenda is a fundamental parliamentary privilege.

Third, the matter of privilege must seek a genuine remedy. That remedy must be in the power of the Senate to provide.

As stated, I respectfully recommend that Bill C-262 be sent back to the committee to allow us to fully debate the bill and any amendments that are proposed. I believe there were only about nine in total that we tried to move this morning, Your Honour, to give you an idea of the scope of the work. But that was rendered impossible by the improper action taken by the committee and the chair.

And finally, I recommend that a matter be raised to correct a grave and serious breach. The denial of my ability to debate was an obstruction of my ability to discharge my duty at committee, and that is a grave and serious breach. Surely the Senate of Canada does not stand for only hearing one side of any matter under consideration in a committee or, indeed, in this chamber.

I know that while normally written notice is required on such a question of privilege, as I’ve explained, since we sat this morning past 11 a.m. and there were a number of votes, I couldn’t leave the committee. I didn’t want to leave the committee. This was not possible.

In closing, let me express some final concern about this matter. Of course, this is an important bill to many people. In speaking to the bill on second reading, I expressed my hope that our consideration of the bill would hear all viewpoints in a balanced way and we would, of course, hear from witnesses who passionately supported the bill, but also those who had criticisms and serious questions as well. Surely, no one should say that only witnesses who support a bill and only senators who submit friendly amendments should have the right to be heard.

It’s not a flawless bill, in my opinion, Your Honour. I don’t think it reflects at all well on the Senate and on our reputation for thorough study of all angles of a bill, for being the chamber for sober second thought, that the critic of the bill for the official opposition should have been muzzled and disrespected, as happened this morning.

On a lighter note, Your Honour, some of our newer colleagues in this place may not know of our dear former colleague Senator George Baker. Senator Baker often reminded us of the importance of our debate, how often our debates are quoted in judgments by judges trying to determine the intent of Parliament and the rationale for making or not making amendments.

This is an urgent matter, Your Honour. These are the closing weeks of our session, I understand. I would respectfully ask you to rule on this matter as soon as possible. Thank you.

Senator Sinclair.

I don’t know if the chair or any other member of the committee wishes to respond, so I will respond briefly.

One of the principles of committee work I’ve always been aware of is that committees are masters of their own procedure. Senator Runciman, when he was here, ran the Legal Affairs Committee with a pretty tight hand when it came to allocating time to senators to ask questions and make comments, and I always respected that. I always thought it was an important way for us to get through the heavy work we were all called upon to do during those committee proceedings.

I want to begin by again saying that we had no notice, so this response is based upon what I anticipated Senator Patterson would raise. I want to point out a few things in response to the things that he said.

First, he said that he didn’t have an opportunity to respond or to make presentations with regard to the amendments that he had. He had five minutes. He had the time that he was allocated in order to speak to his amendments. He obviously wanted more time. If he had been given more time, I think we’d probably still be sitting there talking about his amendment number 2, because it was only after he had spoken for 20 minutes on his first amendment that the chair then intervened and advised he was taking too much time.

I want to point out for the record that the committee had decided, because of the direction from the steering committee, that four days would be allocated to the consideration of Bill C-262, and then on the fourth day we would go through it clause by clause. In addition, we had been given no notice of any prior amendments that were being considered by the Conservatives for the debate, and today was the fourth day for the committee to be considering the bill in question.

Obviously, as well, we were limited by the time that we were allocated for today because despite the chair’s efforts to try to get permission to sit during the time the Senate was sitting, and to seek other times for the committee to sit, leave was denied by members opposite. We also pointed out that therefore that limited our time available to consider not only this particular bill but also Bill C-91 and Bill C-92, which we also have to consider.

When Senator Patterson was taking 20 minutes to get partway through his first amendment — and I acknowledge that he never got through all of it — it was at that point that the chair then said to him that he needed to wrap things up.

Following that, a motion was made at the committee by Senator Christmas, which was voted upon, advising that from that point forward all amendments would be limited to five minutes of debate and presentation by each senator who was speaking to an amendment. The chair then allocated five minutes to the presenter for the amendment, and that’s how we proceeded.

It seems to me that any of the amendments that were presented could easily have been explained in the time allocated because the amendments were not that complicated, despite what Senator Patterson is asserting.

The question of whether this was a matter of privilege was raised by Senator Patterson, by Senator Tkachuk as well and others.

Senator Sinclair, we have a senator rising on a point of order.

Senator Sinclair, it was very clear this morning that one of us asked for an explanation of the five minutes, and it was explained to us that five minutes had to include —

I’m sorry. Unless you’re raising a point of order pertaining to something Senator Sinclair has said, explaining what went on in the committee is not a point of order.

I think he’s misleading in what he is saying. That’s why I raised the point of order.

What I would recommend then, Senator Eaton, is that you enter into debate following Senator Sinclair’s remarks.

I did say that the chair did rule that five minutes would be allowed for the presentation of the amendment.

The chair was also asked to rule on numerous points of order, and questions of privilege were also raised and referenced in the course of debate. I would point out that points of order were raised at the committee with regard to the time allocation, among other things. The chair ruled and the rulings were challenged by Senator Tkachuk. The challenges were then upheld by the committee. So the committee had an opportunity to consider all of the points of order raised by the members of the Conservative Party and also to consider the issue of privilege as referenced in the course of debate at that time. There was plenty of opportunity for this issue to be considered adequately.

Your Honour, the question of whether you have the authority to send the bill back to committee for further consideration, as is the remedy being sought by Senator Patterson, is a matter I will leave for your consideration. I don’t know of any precedent that allows for that, but I think Your Honour’s jurisdiction on a question of privilege is to determine whether there is a prima facie case and then to leave it for the Senate to make a determination on the remedy. Your Honour’s determination will be influenced by whether or not the remedy being sought is a reasonable remedy, I assume. Therefore, ultimately it will be a decision for the chamber itself to make and the members of this chamber.

I do point out, though, that this question of privilege could have been raised. I think it was adequately dealt with. I think given the time constraints that were being imposed upon the committee for consideration of Bill C-262, considering the fact that Senator Patterson and others who were bringing forward amendments were clearly trying to eat up the time of the committee in order to debate their amendments, and not allow for further debate to be granted to the committee, and considering the fact we only had two hours to complete our entire business with regard to Bill C-262, I think the way the committee decided to proceed this morning was eminently reasonable. Thank you.

Your Honour, I would like to clarify. When Senator Sinclair was asked whether five minutes would apply to everyone, to each person, he said “no.” It was Senator Christmas who made the original motion to limit the time to five minutes. We were told, very clearly, that five minutes had to include everyone who wanted to speak to the amendment.

If you read Senator Patterson’s amendments, you will see he goes to great lengths to give some background and research. He quotes from the witnesses. This was cut off.

The second thing that we were not allowed to do is that we could not extend the five-minute time limit. Several people asked, Senator Tkachuk amongst others, whether we could ask the officials — there were three government officials there — for explanations as to the constitutionality of some of the amendments on some of the clauses. We were also denied that.

I want to make it very clear that five minutes was the limit to the six of us being able to ask questions or talk about the amendment. Thank you.

Thank you, honourable senators. I rise today in support of Senator Patterson’s question of privilege.

As the deputy chair of the Aboriginal Peoples Committee, I was at the committee meeting this morning and witnessed the chair and other senators breach the privilege of Senator Patterson and the rest of the Conservative senators.

As Senator Patterson highlights, section 12-20(4) of the Rules of the Senate reads:

No Senate committee shall adopt procedures inconsistent with the Rules or practices of the Senate.

However, this morning the committee voted and passed a motion to limit debate to five minutes per amendment. This is a de facto time allocation of debate in committee.

Time allocation of a committee procedure is outlined in Chapter Seven of the Rules of the Senate.

Time allocation is always a decision of the Senate and not a decision of the committee itself. Therefore, the committee has no authority to impose timelines on debate without a decision from the Senate.

As a critic of the bill, Senator Patterson has a right to raise concerns, present amendments and defend those amendments. In fact, it is his right to do so. It was under the auspices of this time allocation that the chair cut the senator off.

A second issue of privilege that occurred this morning concerns the fact that our committee sat past 11 a.m. dealing with a private member’s bill. But the first order of business this morning was to reorder the agenda that had been published such that we would deal with a private member’s bill first before we dealt with a government bill. In this case, clause-by-clause consideration of Bill C-91 had actually begun last week and was not completed. In other words, we interrupted the consideration of government business to discuss a private member’s bill. In addition to Bill C-91, a second government bill, Bill C-92, was referred to the committee last night.

Section 4-13(1), reads:

Except as otherwise provided, Government Business shall have priority over all other business before the Senate.

Your Honour, the rules are clear. Government business takes priority in the Senate, yet this morning the Aboriginal Peoples Committee allowed a private member’s bill to move before two separate pieces of government legislation.

Your Honour, for this to be considered a breach of privilege it must meet the four basic conditions. I believe that the proceedings at the committee this morning met each of these conditions, and I will explain why.

First, it must be raised at the earliest opportunity. As Senator Patterson said, the Aboriginal Peoples Committee met this morning and sat past 11 a.m.

This is the earliest possible opportunity and also explains why we were not able to provide written notice for the breach of privilege.

Second, the matter directly concerns the privilege of a senator. At the Aboriginal Peoples Committee this morning, my ability and other senators’ abilities to ask questions of witnesses were denied. The committee chair repeatedly shut down debate on amendments, which is unprecedented in my experience. It limited the time for Conservative senators to speak to the amendments to an aggregate of just five minutes. In all but one case, the time restriction voted on and imposed prevented any other senator from speaking other than the senator proposing the amendment. As Senator Patterson said, on seven of those occasions he never got to finish his presentation on the amendment.

Third, that the matter is raised to seek a genuine remedy that is in the power of the Senate to provide.

I am prepared to move a motion that Bill C-262 be sent back to committee to allow others and me to fully debate the bill and receive the answers to my questions and others’ questions from Department of Justice officials who, by the way, sat through the entire meeting unable to answer any questions because we were not allowed to ask them any questions.

Fourth, the matter “be raised to correct a grave and serious breach.” Denial of our ability to debate was an obstruction of all senators’ abilities to discharge our duties at committee.

As senators, our most fundamental duty is to debate legislation, to ask questions, to weigh the implications and to make judgments based on what we were told. My ability to fulfill this role and indeed all senators this morning was denied. The denial of this fundamental rule is as grave and serious a breach as there can be.

Senator Sinclair mentioned that somehow this whole program was devised to make up for time that came as a result of Conservatives not giving leave for extra meetings or times or that Conservatives would eat up time at committee with their pesky amendments.

All of these things are within the Rules. Your Honour, depending on what you consider here, it appears that the justification for breaking the Rules is because somebody didn’t like the Rules and those were who were following the Rules. This is a very slippery slope. Some of us are young enough that we will be here when there is a different majority someday in this place. Some will remember a day like today. For a moment, I thought I was in the Kremlin.

I will leave it there, Your Honour. Thank you.

Your Honour, it is correct I was the senator who moved the motion to limit debate to five minutes per amendment. I would like to provide the context of why that motion was introduced and passed by the committee.

As you may be aware, Bill C-262 has been before the Senate for some time now. On at least three occasions we tried to allow the bill to go to the Senate committee for study as early as February and March. During those times, there were different delays and tactics, and we didn’t get the bill to committee until the end of May.

So we made a work plan within the committee. We established four meetings. The critic requested four to six meetings. We agreed on four. As was mentioned earlier, today was the fourth meeting.

We began to recognize that the likelihood of getting leave from the Senate to have additional time to deal with Bill C-262, Bill C-91 and Bill C-92 was extremely limited. When we arrived at committee this morning, we had two items on the agenda — clause-by-clause consideration on Bill C-91 and Bill C-262. So we put a motion on the floor and asked to reorder the agenda to allow us to deal with Bill C-262.

We started clause-by-clause consideration on Bill C-262. There were at least seven amendments introduced by the Conservatives. The first amendment took more than 20 minutes. We realized at that time that if we continued at that rate we would never complete a review of Bill C-262. It was our belief that if we didn’t complete a review of Bill C-262 within the two-hour time limit that we would not have another opportunity to do so. At that point, Your Honour, I introduced a motion to limit the debate to five minutes per amendment. That was duly passed by the committee, and we proceeded that way.

I’m not a master of the Rules, but it was my understanding from the advice we received that we were operating within the Rules that govern the committee.

So I submit, Your Honour, that we have abided by the Rules, and the context we were operating under necessitated that motion and enabled us to complete the clause-by-clause consideration of Bill C-262 within that time period.

Honourable senators, I rise to speak today in support of Senator Patterson’s question of privilege. I believe that the proceedings at this morning’s Aboriginal Peoples Committee constituted a breach of his privilege as well as that of the rest of the Conservative senators at the committee.

As was referenced already, rule 12-20(4) of the Rules of the Senate read that:

No Senate committee shall adopt procedures inconsistent with the Rules or practices of the Senate.

However, this morning, the committee voted on and passed a motion to limit debate to five minutes per amendment. Setting aside the fact that five minutes is far too short a period of time to consider issues with the magnitude of those in Bill C-262, the very idea of limiting debate in this fashion is contrary to the Rules of the Senate. As was mentioned, this is de facto time allocation of debate in committee.

Time allocation of a committee procedure is outlined under chapter 7 of the Senate rules. Time allocation is always a decision of the Senate and not a decision of the committee itself. Therefore, the committee has no authority to impose timelines on debate without a decision from the Senate.

Your Honour, as you know, for this to be considered a breach of privilege, it must meet four basic conditions. I believe that the proceedings of the Standing Senate Committee on Aboriginal Peoples this morning meet each of those conditions, and I will explain why.

First, the matter must be raised at the earliest opportunity. The Aboriginal Peoples Committee met this morning and sat past 11 a.m. This is the earliest possible opportunity, and it also explains why I was unable to provide written notice for the breach of privilege.

Second, that the matter directly concerns the privilege of a senator. This morning at the Aboriginal Peoples Committee, my ability to debate amendments and to ask questions of witnesses was denied. The committee chair repeatedly shut down debate on amendments, which is unprecedented in my experience, and limited the time for Conservative senators to speak to the amendments to just five minutes.

On a point of order, the senator is repeating what Senator Tannas just said.

Honourable senators will know that, pursuant to rule 2-5(1), the Speaker can take as much time as the Speaker feels is appropriate in order to hear debate on any point of order or question of privilege. After a certain amount of repetition, I have said in the past “I think I’ve heard enough on this,” but so far, I think I will continue.

Thank you, Your Honour. These points are very serious and have to be reinforced, with respect.

In my particular case, I had several serious and legitimate questions about the constitutional implications of passing this bill without consulting the provinces and territories. Officials from the Department of Justice had been invited to the committee for the purpose of answering technical questions that senators may have had. I asked the chair to allow me to direct my questions to the witnesses, who were sitting right at the head of the table, but each time I did so, she ruled that my questions were out of order. Imagine that — that we would involve the provinces and territories with respect to constitutional matters that may have an effect on section 35 of the Constitution. Imagine. What did we invite the witnesses for?

When senators are blocked from asking clarifying technical questions of officials and are instead told we need to vote immediately, I believe it is a clear breach of my privilege as a senator.

Third, the matter is raised to seek a genuine remedy that is within the power of the Senate to provide. I am prepared, as is Senator Tannas, to move a motion that Bill C-262 be sent back to the committee to allow me to fully debate the bill and receive answers to my questions from the Justice officials.

Fourth, that the matter be raised to correct a grave and serious breach. The denial of my ability to debate was an obstruction of my ability to discharge my duty at committee. As senators, our most fundamental duty is to debate legislation, to ask questions, to weigh the implications and to make judgments based on what we are told. My ability to fulfill this role, as well as the ability of the senators at the committee this morning, was denied. The denial of this fundamental role is as grave and serious a breach as can be.

Your Honour, thank you for this opportunity to speak on this important matter. I trust that you will deliberate and rule on this matter at the earliest possible time.

Honourable senators will know that when the Speaker stands, senators will take their seats.

I will to continue with the debate. However, I would just ask honourable senators to comment on the point of privilege that was raised by Senator Patterson. Senator McInnis was almost to the point where he was raising a point of privilege himself, which is fair enough, but if you have comments that pertain to you that you think are relevant to the point of privilege that was raised by Senator Patterson, by all means raise them, but raise them in that context, not in the context of raising another separate, independent point of privilege.

Honourable senators, as I mentioned, pursuant to rule 2-5(1), the Speaker can entertain debate on a matter of privilege or point of order for as long as the Speaker feels appropriate.

As well, pursuant to rule 13-5(2) as well as a ruling of a previous Speaker in 2012, which can be found, I believe, at page 243 of Senate Procedure in Practice, the Speaker can, as well, defer any further debate on a matter of a question of privilege or a point of order until the end of Orders of the Day, or 8 p.m., whichever comes first.

I’m going to defer the matter now until the end of Orders of the Day or 8 p.m. so that I can hear from the long list of other senators who wish to speak. This will hopefully give you time to review what already has been said to avoid unnecessary repetition and help you keep comments as brief as possible.