Speaker of the Senate
Speaker’s Ruling – Point of Order on Amendment to Motion 435
Honourable senators, I am ready to rule on the point of order raised by Senator Plett on March 19, 2019. The point of order concerned an amendment to motion 435 dealing with allegations about interactions between the staff in the Office of the Prime Minister and the former Minister of Justice and Attorney General, which have attracted considerable attention in recent weeks. The original motion, moved by Senator Smith, the Leader of the Opposition, proposes that the Legal and Constitutional Affairs Committee study the issue. The amendment, moved by Senator Harder, the Government Representative, would change the motion so that the Senate takes note of the fact that the Conflict of Interest and Ethics Commissioner is investigating the matter, rather than having the Senate take action by authorizing a committee study.
Senator Plett’s concern is that the amendment is beyond the scope of the original motion. He noted that it would change an order of reference authorizing committee work into a statement of fact. Senator Carignan shared this concern. He argued that the amendment has nothing to do with a committee study. It therefore amounts to the rejection of the original proposal. Both senators noted that Beauchesne and House of Commons Procedure and Practice state that a proposal contrary to the main motion or one that is essentially a new proposal should not come before the Senate by means of an amendment. It requires separate notice.
In dealing with this point of order, let me first address the issue of timing. As explained at page 216 of Senate Procedure in Practice:
While a point of order need not be raised at the first opportunity, it should be raised when the object of the complaint … is still before the Senate, or the issue is still relevant … In particular, a point of order relating to a procedural matter should be raised promptly and before the matter is decided …
While it is preferable that a point of order be raised as soon as possible in proceedings, it is worth remembering that the fact that this did not happen when the amendment was first moved does not render the point of order invalid. Points of order are very different from questions of privilege, where timing is one of the key criteria.
In terms of the specific issue before us, the Senate is often flexible in its procedures. Generally speaking, our practice is that, unless an item is clearly out of order, debate is allowed to continue until a specific concern is raised, and the matter is found to contravene the Rules or practices. When such a concern is raised, however, it is the duty of the Speaker to evaluate the matter in terms of our procedural requirements.
The issue of the receivability of amendments usually arises in terms of proposed changes to bills, where issues of principle, relevancy, and scope have been examined with some regularity. As noted in a ruling of December 9, 2009:
It may generally be helpful to view the principle as the intention underlying a bill. The scope of the bill would then be related to the parameters the bill sets in reaching any goals or objectives that it contains, or the general mechanisms it envisions to fulfil its intentions. Finally, relevancy takes into account how an amendment relates to the scope or principle of the bill under examination.
This general framework can help us when considering amendments to motions. Senate Procedure in Practice¸ at page 90, identifies other factors to be considered, some of which were mentioned in the point of order. Beauchesne, at citation 579(2) of the sixth edition, explains that “An amendment may not raise a new question which can only be considered as a distinct motion after proper notice”. The third edition of House of Commons Procedure and Practice, at page 541, states that an amendment is out of order if it is “completely contrary to the main motion and would produce the same result as the defeat of the main motion.”
In addition, Erskine May, at page 409 of the 24th edition, notes that an expanded negative, striking out all the words in the motion to propose the opposite conclusion, is out of order. Concerns about an amendment being an expanded negative have led to proposed modifications being rejected in the Senate. On March 30, 1915, for example, a subamendment to a motion dealing with bilingual education in Ontario was found out of order because it contradicted the amendment it proposed to change. As another example, on May 31, 1934, an amendment proposing that Canada remain in the League of Nations was found to be out of order, since the motion proposed that the country leave that organization. To the extent that Senator Harder’s amendment is understood as effectively a lengthy rejection of Senator Smith’s motion, it does cause concern.
Even if the amendment is not seen as an expanded negative, however, other Senate precedents show that amendments to add significant new elements to a motion have been found to be out of order. I would, for example, refer honourable colleagues to the decision of September 9, 1999, dealing with an amendment to expand an investigation about actions by the Canadian Forces in Somalia to include Croatia, as well as a decision of September 19, 2000, which would have tacked on to a proposal to establish two new committees elements relating to the size of all committees and the process by which members are chosen.
In the case before us, the content of the amendment would probably not cause concern if it had been moved as a substantive motion after notice. It takes note of certain facts. The point of order only arises because the process used to bring this proposal before the Senate may have circumvented normal notice. This does indeed raise issues, particularly in relation to the scope of the main motion.
Senator Smith’s motion proposes that the Senate take action by authorizing a committee to conduct work. The committee could then come back to the Senate with its conclusions. The amendment proposes to remove the core of the original proposal. As such, it removes the proposed path, without proposing any other action by the Senate, which is simply asked to acknowledge facts. Replacing a proposal for Senate action with a simple recognition of facts is a major change in the basic goal of the motion. As such, the content of the amendment should more appropriately be brought before the Senate as a separate motion, on notice.
For the foregoing reasons, I find that the amendment is out of order and is to be discharged from the Order Paper. Debate on the main motion can proceed when called.