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Standing Committee on Procedure and House Affairs
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EVIDENCE
Thursday, January 28, 2021
[Recorded by Electronic Apparatus]
[English]
Seeing that it's 11 o'clock, I call this meeting to order.
Welcome to meeting number 20 of the House of Commons Standing Committee on Procedure and House Affairs.
Today's meeting is taking place in a hybrid format, pursuant to the House order of January 25, 2021. Therefore, members are attending in person in the room and remotely using the Zoom application. The proceedings will be made available via the House of Commons website. Please be aware the webcast will always show the person speaking, rather than the entirety of the committee.
Today's meeting is also taking place in the new webinar format. Webinars are for public committee meetings and are available only to members, their staff and witnesses. Members may have remarked that the entry to the meeting was much quicker and that they immediately entered as an active participant. All functionalities for active participants remain the same. Staff will be non-active participants only and can therefore only view the meeting in gallery view. I'd like to take this opportunity to remind all the participants of this meeting that screenshots or taking photos of your screen is not permitted.
Given the ongoing pandemic situation and in light of the recommendations from health authorities to remain healthy and safe, all those attending the meeting in person are to maintain a two-metre physical distance and must wear a non-medical mask while circulating in the room. It is highly recommended that the mask be worn at all times, including when seated. You must maintain proper hand hygiene by using the hand sanitizer provided at the entrance of the room. I will be enforcing these measures for the duration of the meeting. I thank the members in advance for their co-operation.
For those participating virtually, I'd like to outline a few rules to follow.
Members and witnesses may speak in the official language of their choice. Interpretation services are available for this meeting. You have the choice at the bottom of your screen of “floor”, “English” or “French”. With the latest Zoom version, you may now speak in the language of your choice without the need to select the corresponding language channel.
You will also notice that the platform's “raise hand” feature is now more easily accessed at the bottom of your screen in the toolbar.
For members participating in person, proceed as you usually would when the whole committee is meeting in person in the committee room. Before speaking, please wait until I recognize you by name. If you are on the video conference please click on your microphone icon to unmute yourself.
I think you guys know the rest of it. There's not really anyone in the room today, so we'll move on and I'll introduce the witnesses that we have for today.
We have three witnesses. We have Professor Ian Brodie, associate professor of political science at the University of Calgary. We have Lori Turnbull, associate professor and director of the school of public administration at Dalhousie University. We also have Professor Hugo Cyr, department of legal science, Université du Québec à Montréal.
We will start with Professor Brodie.
Professor Brodie does have a hard cut-off at 11:20. Seeing as it is 11:03, I was wondering if the committee would like to hear his opening remarks. If there are any specific questions to Professor Brodie, we can have those questions first and then we'll get into our regular rounds of questions with the other two witnesses.
What do you think about that? Would you like to hear from all three witnesses and then start formal rounds?
Madam Chair, speaking on behalf of the CPC, we would love to hear from Dr. Brodie and be able to focus on that, and then we'll go on to part two, if that's okay.
Is that okay with the other witnesses as well? You'll be here for the full time.
Perfect.
Professor Brodie, please go ahead with your introductory remarks for five minutes.
Thank you, Madam Chair.
Thank you for inviting me to testify today and for accommodating my schedule.
Let me get directly to the issues that I think will be of most help to this committee.
On the issue of prorogation, I think the authority to request a prorogation is clear. For centuries, Parliament has met at the call of the sovereign, and since the development of the principles of responsible government in the 1800s, the decision to prorogue has been made solely by the Prime Minister. The Governor General prorogues but does so solely on the advice of the Prime Minister. Therefore, questions regarding prorogation are rightly answered by the prime minister as the decision-maker.
The purpose of prorogation, until 2008, was considered a routine matter. Prime ministers typically prorogued Parliament every year or two. Prorogation obviously clears Parliament's legislative agenda and gives the government an opportunity to present a throne speech.
However, there is no constitutional need for prorogation—of course, during the 42nd Parliament, Mr. Trudeau's government refreshed its agenda several times without proroguing over the four years—nor is prorogation required for the House to be able to demonstrate its confidence in the government of the day. The House holds regular votes on matters of confidence. As members of this committee certainly know, the business of supply and the business of ways and means ensure confidence votes are scheduled every few weeks when the House of Commons is sitting.
Prorogation, instead, is a strictly political act that's done strictly for political reasons.
On the essential elements of prorogation, while the Prime Minister may prorogue Parliament and then recall it days or even months later, leaving a gap between prorogation and the recall of Parliament is not advisable. Once Parliament is prorogued, if there's a sudden need for urgent legislation, then the formalities around a new session of Parliament delay the consideration of that urgent legislation.
It's better, if possible, to prorogue the day before the recall of Parliament, and prime ministers often do this by giving advance notice of their intention to prorogue.
I believe the committee has heard about the prorogation of December 4, 2008. As mentioned, prorogation was a routine matter until that prorogation. The prorogation of December 2008 was turned into a matter of partisan division, and that division gave rise to the reform of Standing Order 32(7) in the 42nd Parliament.
I think the report that has been laid before this committee perpetuates an effort to politicize that prorogation when it falsely claims that the government of the day prorogued to avoid a confidence vote that could potentially have caused its fall. Twelve years have passed since the events of 2008, enough time to allow for a more sober, non-partisan evaluation of those events. I've offered such an account in my book, At the Centre of Government, and I'm going to draw on my remarks in that book for my remarks today.
Committee members will recall that the federal election of 2008 delivered a disappointing result for all three opposition parties: The Liberals under Mr. Dion lost 18 of their seats in the House, the NDP failed to reach the 20% of the popular vote that they had long sought and the Bloc in that election was unable to eliminate the beachhead that the Conservatives had established in Quebec in the previous general election. Mr. Dion announced he would resign as Liberal leader, and the other two opposition leaders faced tough internal questions about their futures.
The November 30, 2008, pact announced by Mr. Dion and the other two leaders was depicted as a reaction to the government's economic update and its proposal to phase out the per-vote subsidy for political parties, but it was later reported in the media that the pact had been under discussion weeks before that economic update was delivered.
In retrospect, I think it's now clear that the November 30 pact was a way for weakened party leaders, particularly Mr. Dion, to protect and extend their own leadership positions against internal party challenges. This view was validated by subsequent events. After the prorogation, the Liberal caucus forced Mr. Dion's immediate resignation. When the House returned a few weeks later, the Liberals, then led by Mr. Ignatieff, voted to keep Mr. Harper's government in office when it presented its budget.
The crisis of 2008, then, was the breakdown of good governance inside the Liberal caucus. The controversy about the 2008 prorogation was an effort to distract attention from that crisis.
Let me compare this to the prorogation that's under study by your committee, the prorogation of August 2020. Your study of last August's prorogation is extremely helpful. You are setting a precedent for how reports on future prorogations will be handled, and you're doing so with help from experts. I hope the Prime Minister will set a useful precedent and appear before you to answer questions about his decision, as it was his decision.
Let me suggest some questions that committee members could helpfully pose to the Prime Minister.
First of all, the August 2020 prorogation came after five months of special orders that had already greatly curtailed all parliamentary proceedings. Parliament had really not had a suitable amount of time for scrutiny, debate or legislation between March of 2020 and the prorogation. Was the Prime Minister worried that in proroguing he would further curtail the legitimate work of the House of Commons and the representatives elected here?
Second, he prorogued Parliament immediately and then recalled it weeks later. If the government had required urgent legislation to respond to the ongoing public health crisis—which it has done several times since March—that urgent legislation would have been delayed. In proroguing, what plans did the Prime Minister have for mitigating the risk of the need for urgent legislation?
Third, the government was already behind schedule in responding to the Truchon decision. Prorogation inevitably put pressure on the House of Commons and the Senate to cut short their debates on the weighty issues in Bill C-7. In short, I would say prorogation showed, in effect if not in intent, a disregard for the legitimate parliamentary debate of a medical assistance in dying bill, and that verges on contempt for Parliament. What would the Prime Minister say about the idea that he showed disregard for a legitimate debate on Bill C-7 by proroguing Parliament?
Fourth, of course thePrime Minister's decision to prorogue ended ongoing committee investigations of what appears to have been a major conflict of interest on the part of the Prime Minister himself and possibly the then finance minister. What steps is the Prime Minister prepared to take to dispel the cloud over this aspect of his decision?
In conclusion, members, the so-called “prorogation crisis” of December 2008 was in fact triggered by a crisis within the Liberal Party caucus. Proroguing the House back then gave the Liberal Party time to resolve its internal governance problems, this is evidenced by the fact that the Liberal Party, after resolving its internal problems, sustained the Harper government in office at the beginning of 2009. I would say the August 2020 prorogation took place in a similar situation, a breakdown of governance within the Liberal Party that was triggered by Mr. Trudeau and the then finance minister when they put themselves in what appears to have been a direct conflict of interest.
Madam Chair, I am happy to take questions if members have them.
Thank you, Professor Brodie.
Seeing as how we have about 10 minutes, I'll give each party two and a half minutes to ask questions of Professor Brodie.
We'll start with the Conservative Party. Could you just put your hands up? I don't know if you want to go in the regular order. Mr. Lukiwski was up in the regular order.
You have two and a half minutes for this witness. Your questions are only going to be to Mr. Brodie. Afterwards we'll hear from the other two witnesses and go into our regular round.
Thank you very much.
I welcome Mr. Brodie back to this committee. It's good to see you again.
In order to give full transparency, I should also say that I know Mr. Brodie well. I've known him for many years since he was formerly chief of staff to then prime minister Stephen Harper.
Now, colleagues, listen. We are charged with the responsibility of conducting a study on the reasons why this government and the Prime Minister prorogued Parliament. Quite frankly, the reasons are crystal clear, and we all know it.
The Prime Minister prorogued Parliament in August of last year for one simple reason: to shut down the committees that were investigating the WE Charity scandal. It was successful; it was quite successful.
As one of our former witnesses, Professor Kathy Brock, said, it was a good strategy. The reality is that this was the singular reason for the Prime Minister to prorogue Parliament. It wasn't to hit the reset button. The Liberals will argue that prorogation was necessary because of the pandemic and the rapidly changing world order due to the pandemic and that, therefore, the government had to come up with a new throne speech, a new plan and a new agenda.
I suggest that this is absolutely wrong. That argument is weak because there was another option to prorogation. It's called the budget.
The government could have tabled a budget or, at the very least, a very detailed, in-depth and thorough financial and fiscal update, followed very closely by a budget. It did not need to prorogue. That was done for political reasons only: to curtail the political damage that was being done to the Prime Minister and his government. We know this. Every Canadian who has a passing interest in this issue knows it, and my friends on this committee from the Liberal ranks know it as well.
Professor Brodie, since we have limited time, I'll go directly to a question for you.
You reference in your opening remarks that you concur with my observation that this prorogation was done for what you consider to be political reasons, but that it did not have to be so. The Prime Minister could have prorogued literally a day before he recalled Parliament.
Can you expand on those thoughts a little and offer your opinions as to why the Prime Minister might have prorogued a good month prior to the recall of Parliament? Was it necessary to prorogue at that time?
I understand.
Mr. Lukiwski, it's a pleasure to see you again.
All I can say is that prorogation is always a political decision since it's always the decision of the Prime Minister. The argument that there was a need to relaunch, clean out and restart the government's agenda, I think, is disproved by the events of the 42nd Parliament when there was no prorogation. That leaves procedural issues related to committee investigations as the real reason for that prorogation.
Thank you.
Next we have, from the Liberals, Mr. Turnbull.
Would you like to take the two and a half minutes? Okay, go ahead.
Thanks, Madam Chair.
Mr. Brodie, thanks for being here today. I appreciate your opening remarks.
What do you think is a real, legitimate reason for a prime minister to prorogue Parliament?
As I said, prorogation is always a political decision. As a result of my background as a political scientist, I think political reasons for political decisions are perfectly legitimate.
A prime minister might want to have prorogation for any one of many reasons. Nonetheless, the ending of a committee investigation, if that was the purpose of the prorogation—
What about a major shift, an economic crisis or a downturn in the economy, like a recession? You were the chief of staff for Prime Minister Harper, I understand. In 2009 when Stephen Harper prorogued Parliament, what was the reason given for that?
I'm afraid, Mr. Turnbull, that I stepped down as chief of staff at the end of June 2008, so I can't speak about the internal reasons for that. All I can do is speak about the report that's before the committee here.
Thank you for that. That's fine. I understand.
Dimitri Soudas was quoted in the Toronto Star as saying that now “is the time to engage with constituents, stakeholders and businesses in order to listen to Canadians, identify priorities and to set the next stage of our agenda.”
Isn't there a plausible explanation here that in a global pandemic the Prime Minister simply prorogued Parliament for the very good reason that it's had deep economic and social impacts across our society and, in fact, across the globe, and that it was time to recalibrate and reset the agenda? Wouldn't that make sense?
During the 42nd Parliament, this government did not prorogue. It relaunched its agenda and self-managed all of those consultations without prorogation. We need to look a bit more carefully at the political context, and what was going on in the House of Commons at the time of prorogation to understand the thinking.
These are questions best answered by the Prime Minister.
I'm sorry to interrupt.
Madam Chair, it appears that the sound quality for Dr. Brodie isn't sufficient for the interpreters to continue.
Dr. Brodie, please lift your microphone a bit closer to your mouth. That might help.
Thank you, Madam Chair.
My concern is pretty simple.
I think it's intuitive for Canadians that when Prime Minister Harper chose to prorogue Parliament four times in a matter of about six years, which included 181 days when Parliament couldn't sit.... Certainly, the opposition parties at the time, namely the Liberals, put in place a mandatory requirement, a change to the Standing Orders, which asked for an explanation to be tabled, a report, which our government has done.
When I look at that report, it seems like it builds a very strong case and rationale for why Parliament would have been prorogued. The speculation you've made as to why the Prime Minister made that decision doesn't seem to be justified as far as I can tell based on the documentation we have.
[Translation]
Thank you, Madam Chair.
Mr. Brodie, thank you for being here.
My question is straightforward. If I understand correctly, you are saying that Parliament was prorogued simply to stifle the WE Charity scandal.
[English]
We don't have interpretation coming through, so I'll restart the time for that.
Professor Brodie, I hope you're able to stay for just a couple of minutes, because there are a few technical difficulties.
[Translation]
[English]
[Translation]
I'm not quite sure what more there is to say. I think it's obvious to everyone, except our friends opposite.
You said prorogation usually serves as a way to hit the reset button. When the government decided to prorogue Parliament for six weeks, we were under the impression that the government would be putting forward policy changes and a different vision.
Did you detect a change in vision or policy? Was there a clean break or a resetting of the clock, so to speak? Did you feel that was something the government did? I did not. It came back and it was business as usual—same as before, as though nothing had happened.
Did you see a difference?
[English]
I'm not here to testify in a partisan capacity, so I'm going to be careful about passing judgment on the government's broader political agenda.
We're in the same dominating political issue of the day, the ongoing public health crisis, and that hasn't changed since last March.
[Translation]
Was it a mistake to shut down Parliament for six weeks? You said the period between prorogation and the recall of Parliament should be short. In the midst of a pandemic, it is utterly irresponsible to prorogue Parliament.
[English]
Mr. Therrien, on that front, I agree with your assessment. Given the number of times the government has needed urgent legislation to respond to the public health crisis since March 17, it was running an extraordinary risk to leave the House of Commons shuttered for as many weeks as it was. To recall Parliament earlier would have required a Throne Speech and all of the procedural issues around the recall of Parliament, delaying urgent legislation if some had been needed.
At the time that prorogation was executed, it was unclear whether the government might need additional emergency legislation during that period. There was a risk in proroguing Parliament and then calling it back some weeks later.
[Translation]
You mentioned the delay in Parliament's study of the medical assistance in dying legislation, Bill C-7. Briefly, could you comment on the negative consequences caused by the delay in Parliament's study of the bill.
[English]
Members will know that, on the issue of the medical assistance in dying legislation, there is an ongoing controversy and there are ongoing implementation issues across the country on this. It's unclear to me whether Bill C-7, as currently crafted, will resolve all the issues that were identified by the Quebec courts with the Truchon decision, and all the other potential issues that might need to be resolved in settling the medical assistance in dying legislation.
We don't know this for a fact, but would the legislation have been improved by more fulsome debate in the House of Commons? I think that's the question to ask.
Thank you, Madam Chair.
Mr. Brodie, in your opening testimony, you made reference to the fact that this is a first-of-its-kind study here in Parliament, in terms of the government being required to give some reasons for its prorogation. That was something that the Liberals brought in during the last Parliament because they were—ostensibly anyway—concerned with preventing the political abuse of prorogation, yet here we are.
I think it's pretty clear for a lot of us that the prerogative for prorogation was abused and was used to get the government out of a political crisis, which I don't think is the legitimate use of that. Here we are discussing the reasons after the fact, but I'm wondering what can come out of this exercise. It seems that something we haven't talked about yet is the legitimate role of the legislature, or bringing the legislature into decisions about prorogation. I recognize that traditionally it is a prerogative of the Crown, but just because things have been a certain way doesn't mean they must always be a certain way.
It seems to me that if a government truly wanted to have politically uncontentious prorogations, or to resolve the political tensions around a prorogation in advance, they would include the legislature in these kinds of decisions.
I wonder if you have any reflections for the committee on that interplay between executive power and the legislative branch and what kinds of reforms we might consider that go beyond asking the government to give a justification after the fact. We can all dispute whether that's an accurate justification or whether there were other reasons that were the real reasons behind it, but what could we recommend or what should we be thinking about in terms of concrete measures to prevent the political abuse of the prorogation power?
Mr. Blaikie, thank you for that question.
In my book on the subject, I tried to outline the many complicated aspects of the relationship between cabinet, the Prime Minister's prerogatives of leadership, the decisions of the cabinet and Parliament as a whole, of which decisions over prorogation and the recall of Parliament are only one of a complicated web of relations between the two. If you want aspects—
I'm sorry to interrupt you again, Dr. Brodie.
The interpreters are indicating that the sound quality still isn't good. I think it was working well when you were holding it up closer to your mouth.
I apologize again. Go ahead.
We've had a lot of injuries, and I think people don't realize that it's very difficult for the interpreters. It has to go through another line in order for them to listen. That is why we're so on top of that.
I have stopped the time, so don't worry. This is not cutting into your time. You have about 15 more seconds to make your point.
Thank you.
Let me say that as part of the negotiations between the parties for a review or revision of the Standing Orders, this is one issue amongst many that would need to be considered. Personally, I would put other issues further ahead in priority in those negotiations, but obviously that's a political decision for parties to make as the Standing Orders are redrafted.
Yes, it is the end of your time, and I think it's the end of Professor Brodie's time with us as well.
Thank you very much. I'm sorry you weren't able to stay with us longer, but we appreciate your coming to testify.
I also apologize to the rest of the committee. This was unexpectedly sprung on all of you, and you had to reassess how to formulate your questions for today because of this. It was a last-minute conflict that was an emergency-type situation. This was the only way I could figure out to accommodate it.
However, we will carry on with our other two fabulous witnesses.
Let me know on the spot if you'd like to change up the questioning order. We are going to now start with our six-minute rounds and carry on into our five-minute rounds, as we would be at a regular meeting, if that's okay with everyone.
We'll hear from Professor Turnbull, please.
Good morning. Thank you so much for inviting me to the committee. I'm very happy to be here.
I'll make a brief opening statement if I can, just to situate myself in the conversation.
As you know, the Parliament of Canada was prorogued from August 18 until September 23, 2020, and in accordance with section 32(7) of the Standing Orders of the House of Commons, the government must provide a report to Parliament outlining the reasons for prorogation.
That report was submitted in October of last year. The reporting requirement was introduced by the Liberal government in 2017. In March of that year the government House leader circulated a document called “Modernization of the Standing Orders of the House of Commons”, the intent of which was to generate discussion about parliamentary reform.
The paper took the view that parliamentary institutions are outdated and must change to meet public demands for greater accountability, transparency and relevance. Among the proposals for reform was a requirement that in the event of a prorogation, the government must issue a report that states the reasons for opting to prorogue. The document also stated that some governments have used the prerogative to prorogue as a political tool to dismiss Parliament early so as to avoid scrutiny and accountability. The motivation behind the reporting requirement is to make governments accountable for the decision to prorogue Parliament and perhaps to deter prorogations that are driven primarily by political opportunism.
As a bit of background on prorogation and what it is as a tool, prorogation is part of the royal prerogative and is exercised in Canada by the Governor General on the advice of the Prime Minister. To prorogue Parliament is to stop the proceedings of Parliament, usually for a specified period of time. Unfinished business dies on the Order Paper. When Parliament is resumed, a new Speech from the Throne is delivered.
The prerogative to prorogue Parliament does not derive from the most noble of intentions. In his essay, “British and Canadian Experience with the Royal Prerogative”, Bruce Hicks explains how the concept of prorogation came into existence in England in 1530. At the time parliaments did not meet for sessions as they do now, but instead were summoned by the king when he needed supply and then dissolved. With every summoning of a new parliament, the membership changed.
Henry VIII invented the concept of prorogation as an alternative to dissolution when he found a parliament whose membership was supportive of him. Rather than dissolving parliament and dismissing its members, proroguing parliament allowed the same members to come back.
In recent years, some prorogations in Canada have been controversial—and Professor Brodie made reference to some of these—because they have seemed motivated by political considerations rather than procedural necessity or completion of mandate.
In December of 2008, then prime minister Stephen Harper sought a prorogation of Parliament less than two months after a general election that had resulted in a Conservative minority government. The government was facing a vote of confidence and opposition parties had indicated publicly that they intended to defeat the government and form a coalition in its place. Prime Minister Harper's decision to seek prorogation was interpreted by many as driven exclusively by the desire to dodge a confidence vote that his government was sure to lose.
A constitutional debate emerged about whether the Governor General holds the discretionary power to refuse a request for prorogation from a prime minister whose mandate from the House of Commons is in question. In the end, the House prorogued and upon return the government held confidence for another two years.
This is not the only controversial prorogation in recent years. In 2012 the Ontario legislature was prorogued upon the resignation of former premier Dalton McGuinty. The government was criticized for silencing the legislature to avoid hearings related to a contempt motion instead of allowing for the appointment of an interim premier and the resumption of legislative business.
More recently, in 2020, the legislature in Nova Scotia was prorogued as Premier Stephen McNeil prepares to exit politics. Nova Scotia's legislature sat only 13 days in 2020 and was the only legislature in Canada not to meet during the COVID-19 period.
The report on the 2020 prorogation offers justification for the decision based on the unprecedented and unanticipated circumstances facing the government at the time. The global pandemic was both a public health and an economic crisis. The Speech from the Throne that was delivered in December of 2019 did not and could not foresee the situation and, therefore, was no longer useful or relevant as a plan for the future. The report spoke to the need for the government to reset itself to develop a bold and comprehensive plan in response to the devastating effects of COVID-19.
A prorogation in the late summer provided an opportunity to work on such a plan and the Speech from the Throne upon the resumption of Parliament in September forced a confidence vote on the government's proposed approach. The report says that the government feels duty-bound and honour-bound to ensure that it holds the confidence of the House before proceeding with these new measures.
The report does not mention another relevant political context at the time. The minority government was under intense criticism because of the decision to give the WE organization the responsibility to administer a $900-million student grant program. The organization had ties with the Prime Minister's family as well as with that of then minister of finance Bill Morneau.
Over the course of the summer, parliamentary committees heard testimony from the Prime Minister, the Clerk of the Privy Council, Marc and Craig Kielburger of the WE organization, the former board chair at WE, as well as several ministers and senior public service executives. Prior to the announcement of the prorogation, the former minister of finance resigned. Like other prorogations mentioned above, this one was criticized for its apparent political motivation.
I have some concluding thoughts.
The power to prorogue Parliament falls under the royal prerogative and, therefore, is exercised by the Governor General on the advice of the Prime Minister. In Canadian history there has never been a case in which a Governor General has refused a request for prorogation, so it's seen in practice as a power that is in the hands of the Prime Minister.
A prime minister's access to the Crown prerogative to use powers to summon, prorogue and dissolve Parliament confers enormous political advantage, and efforts to put limits on these powers are somewhat ineffective and are political rather than constitutional. Even if selection dates have been ignored for political purposes, voters don't always punish strategic or off-cycle election calls.
Standing Order 32(7) can be said to have the intent of deterring the use of prorogation for political purposes, but I would argue that the reporting requirement doesn't necessarily deter politicized prorogation and might actually invite increased political rhetoric that is meant to offer retroactive justification for the decision to prorogue.
Thank you, Professor Turnbull.
I didn't want to ruin your flow, but we're well over time for introductory remarks.
[Translation]
Thank you very much. I'm delighted to be contributing to the committee's work.
My approach will be rather different from that of the other two witnesses. I'll be coming at the topic from a different standpoint: constitutional law, institutional mechanisms and the issues raised.
I'll start by highlighting aspects of constitutional law related to the exercise of the prerogative to prorogue Parliament. Then, I will suggest a solution or mechanism to prevent the problems being discussed today, problems that could arise in the future as well.
As mentioned, the prerogative to prorogue Parliament lies with the executive branch. The prime minister advises the governor general to prorogue Parliament. As long as the prime minister has the confidence of Parliament, the governor general is bound by that advice.
It was said that, until recently, the request for prorogation had not been problematic. The granting of the request had been virtually automatic. We had an instance where—
[English]
Someone from IT will be contacting you, Professor Cyr, to figure it out.
We'll suspend for a minute.
Thank you for everyone's patience, especially to our witness.
Professor Cyr, you have three and a half minutes. Unfortunately, I don't know what the last sentence was that we heard. I hope you have been able to regroup yourself. I don't know if any of the members can perhaps help.
[Translation]
I'll go fairly quickly.
Basically, I was saying that the prime minister advises the governor general to prorogue Parliament, and as long as the prime minister commands the confidence of the House, the governor general is bound by that advice. In 2008, the prime minister, who was facing a confidence vote, requested that Parliament be prorogued. There was a question as to whether the governor general of the day was bound by the prime minister's advice. In the end, she granted the request for prorogation, but not immediately—it was only after several hours of reflection. Some believe that she exercised her power of reservation because she felt it was the right thing to do under the circumstances. Until recently, the request was said to have been granted automatically.
I want to bring a very important case in the United Kingdom to the committee members' attention. The Supreme Court of the United Kingdom was recently called upon to issue a decision on the legality of the prorogation requested by the British prime minister. The court recognized that prorogation is the prerogative of the Crown. However, the court also recognized that it has the jurisdiction to review the exercise of the prerogative power—it being a justiciable issue—just as the court has the jurisdiction to scrutinize other prerogatives, including in foreign affairs.
The test applied by the courts is whether the prorogation is valid in law. The prorogation cannot have the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and the body responsible for holding the government, or the executive, to account.
With respect to judicial review in the United Kingdom, the government had to show that it had reasonable justification to prorogue Parliament. According to Professor Paul Craig, prorogation is indeed a mechanism to end a session of Parliament, but he also says the following:
[English]
The use of prorogation to silence a recalcitrant Parliament is an improper purpose.
[Translation]
Therefore, the courts would consider it to be illegal. In the case of Brexit, the Supreme Court ruled that the prorogation was unlawful and void, and Parliament had to reconvene.
Of course, we don't know what impact a similar decision would have in Canada, but there are precedents. In Khadr, the Supreme Court established that the prerogative powers asserted by the Crown, even in foreign affairs, can be subject to judicial review. That means there is a risk. While the reasoning provided afterwards, once Parliament has been recalled, may provide some transparency, it does not solve all the problems.
Now, I'd like to propose to the committee a way to reduce the risk of encountering this type of imbroglio. The proposal is based on the fact that the prime minister's advice is binding on the governor general only if the prime minister has the confidence of the House of Commons. In other words, the House determines whether the prime minister has its confidence, not the other way around. The House is the master of its decisions as to whether its confidence in the government is maintained.
Even the Standing Orders of the House of Commons refer to a confidence vote. According to Standing Order 6, the election of a Speaker shall not be considered to be a question of confidence in the government. It is implicitly recognized that the Standing Orders can determine the conditions in which a confidence vote may be held. In Quebec, the National Assembly sets out these terms in its standing orders and rules of procedure. A set of conditions must be met in order for the National Assembly to be deemed to have maintained its confidence in the government.
To reduce the likelihood of imbroglios, I propose amending the Standing Orders of the House of Commons to provide for the following eventuality: if the prime minister submits an opinion to the governor general to prorogue Parliament without first having passed a resolution to that effect in the House of Commons, the government is deemed to have lost the confidence of the House of Commons. As a result, the governor general would not be bound by the prime minister's advice.
I can speak to the proposal in more detail during the question and answer period.
[English]
Thank you, Professor Cyr.
We will start our formal six-minute round with Mr. Lukiwski.
You have six minutes, please.
Thank you, Chair. I believe internally we had a situation where our first speaker was going to be Mr. Doherty.
You can go ahead with whatever you guys decide. I have paused the time. You can figure it out. If you want to share the time, you can share it.
We'll see how it goes. I spoke for about two and a half minutes with Professor Brodie. If I get an additional six minutes, while I'm grateful for it, I don't want to take time away from my other colleagues.
Professor Cyr and Madam Turnbull, welcome.
Professor Cyr, it's good to see you back at committee. The last time I had an opportunity to converse with you was 10 years ago, when you appeared before this very committee. I don't know if that says more about your longevity or mine, but it is good to see you back here once again.
I will continue with the train of thought I had with Professor Brodie, which is simply this. In my opinion, the decision to prorogue by the Prime Minister this previous August was made strictly for political reasons and not for anything else. The Liberals will argue, as Mr. Turnbull has done, that prorogation was necessary because the world order in effect had changed due to the pandemic. We needed to do a complete reset, and hence the need for a throne speech. I argue once again that this reasoning is flawed, for the very reason that the throne speech, when it did come down, was mainly fiscal in nature. In other words, it talked about fiscal measures that the government wished to take, monetary changes and that type of thing. We didn't need a throne speech for that. It didn't fundamentally change the agenda of the government. What we needed was a budget.
Parliament could have continued in its present form, or at least at the time in its present form, but the Prime Minister made the decision to prorogue to avoid a very serious political problem he was facing. Because of the WE Charity scandal, the government was facing very uncomfortable questions on a daily basis. Media was reporting on a daily basis about the WE Charity scandal. Social media was ablaze with commentary about the political scandal. The Prime Minister did what he thought he needed to do to avert a political crisis, and that was to prorogue, to end the discussion about the WE Charity.
I should also point out that the date the Prime Minister prorogued, August 18, was exactly one day prior to the Speakers' Spotlight being required to table a report on fees paid to the Prime Minister's family. That as much as anything, in my opinion, prompted the Prime Minister and his staff to prorogue.
Professor Cyr and Madam Turnbull, with the greatest of respect, I don't believe that your appearance here...are the people we need to have before this committee testifying. The people who need to be here providing testimony are the Prime Minister and people like Katie Telford, the House leader of the government and other political sorts, perhaps, in the PMO, who would advise the Prime Minister to prorogue. We need to be able to question them on their thinking behind prorogation. We know that the reasons are clear. As I have said many times before, it was to avoid a political scandal, to avoid political embarrassment, but we need them to answer questions. Canadians know, as everyone on this committee knows, the reason for the prorogation. It was for political reasons, for political gain.
Madam Turnbull, you mentioned that you felt, at least in your opinion, there was some rationale for prorogation.
Professor Cyr, you issued, as you have done in years past, various options that the government could be looking at to change legislation, perhaps, to give further options to the current method of prorogation.
I would ask both of you a very simple question: Do you believe that in this case, when the Prime Minister prorogued Parliament on August 18, it was out of necessity, or could the Parliament have not prorogued and let the committees continue their work? If a prorogation was deemed necessary, it could have been done literally one day before the recall of Parliament. We have had previous witnesses, academics, testify at this committee that they did not feel prorogation was necessary, but it was out of political convenience. I would like to hear your thoughts on the necessity of prorogation, because that is the reason the government is saying they prorogued.
Professor Cyr, perhaps we can start with you first.
[Translation]
I first want to say that my answer will be limited to my area of expertise, which is constitutional law. That means I can't answer your question directly, except to say this.
I'm going to cite an excerpt from the Supreme Court of the United Kingdom's decision because it's important to understand the two types of explanations that the government can provide.
[English]
It says, “The next question is whether there is a reasonable justification for taking action which had such an extreme effect”. Here they were talking about proroguing just before Brexit so that Parliament could not negotiate and discuss and deliberate things. The court goes on, saying, “Of course, the Government must be accorded a great deal of latitude in making decisions of this nature. We are not concerned with the Prime Minister's motive in doing what he did. We are concerned with whether there was a reason for him to do it.”
[Translation]
The court makes a distinction when it comes to a subjective reason. My colleague Mr. Brodie said that prorogation was strictly a political decision, one made for political reasons.
From a constitutional law standpoint, however, was there a reason to prorogue? That's what the government provided in its report. It's up to parliamentarians to determine whether the justification is sufficient.
[English]
Thank you, Professor Cyr. That's all the time we have for the six minutes.
Next is Mr. Turnbull. You have six minutes, please.
First, I'd like to start off by thanking the two witnesses for being here. It's really great to hear your testimony, and I appreciate the expertise that you bring to this study.
Dr. Turnbull, perhaps some of my questions will be aimed at you. Please, committee members, assume no affiliation between us. Despite the fact that we share the same Scottish clan name, we've never met.
Ms. Turnbull, in your opening remarks you talked about previous prorogations at different levels of government in Canada and throughout history. You cited a few examples, and it sounded like those were often controversial and most of the time criticized. Would you say that's the norm, that any time a government prorogues there are different perspectives on this and there's speculation about motives, as Mr. Cyr was talking about?
I think that is fair, to be honest. Even to move into the previous question, I think it's very difficult to ever say that a prorogation meets a threshold of being necessary in a constitutional sense or in a legal sense. Therefore, when it happens, there is going to be a lens put on that where people are saying, “Why are they silencing Parliament? What is it this time?”
If there's what people see as an obvious reason, then it's very hard to unpack that narrative. Just because there is a narrative that is political doesn't mean there's not one that can exist at the same time that is more about policy planning. They're not mutually exclusive.
I think at this point it would be not totally impossible, but the only kind of prorogation that's not going to be controversial, I think, is if you get, literally, a “We're going to prorogue on Friday”, and then they reopen within a week with a Speech from the Throne.
Following from that, for almost all prorogations there are different perspectives. There's some amount of criticism and proving that it was entirely necessary is probably difficult. There are always different perspectives, but in terms of history, my understanding is that this current government is actually the only one that's ever tabled a rationale or a report to document its reasons for proroguing. Is that not correct?
Let's look at the merits of that report. As Mr. Cyr was saying, even the courts are recognizing the difference between a subjective motive and actually having reasons. In fact, as long as you have reasons for this, I think you, Dr. Turnbull, in your opening testimony said there is a rationale for doing this. Sure, some people may argue. Mr. Lukiwski thinks that there was some other thing that was driving that decision, but that's speculation, at best, on his part.
What we have before us is a report. In your view, looking at that report, does that provide a rationale for proroguing?
It does provide a rationale for proroguing. The narrative in the report is quite consistent with that of the fiscal update that we saw in November and the fiscal snapshot we saw in July. Of course, there is a narrative there. As I said, as well, there's another narrative that's not there.
Would you expect a narrative that's not there....? If the reasons the government had for proroguing are in the report, it's really only speculation to say that some other reasons.... The government has tabled the report, so this study at this committee is about that report and the legitimacy of that report. I have read that report, and I've looked at the throne speech. I really feel it reflects a change and a shift in the context.
There was a lot of work put into it, a lot of internal consultation, I might add. I had three meetings with stakeholders in my riding and attended close to 15 sessions leading into the new Speech from the Throne. In my view, it is pretty unheard of that a government is actually consulting extensively before formulating a Speech from the Throne.
When you look at the reasons in that report and the way it's structured, we talk about protecting Canadians from COVID-19, helping Canadians and businesses through the pandemic, building back better and standing up for who we are as Canadians. Those seem to me to be pretty relevant themes, and there are many specifics that we could reference there. Even the structure of it seems to provide a good rationale and a good argument for why the government prorogued.
Would you not agree with that?
I think it certainly provides a narrative.
To go back to the previous question, there is always going to be an acknowledgement of any other political narrative that's relevant.
To be honest, in my view, even though the Standing Orders have created a reporting requirement, the Prime Minister, as the person who holds the power to advise prorogation, from a constitutional perspective, does not have to have good reasons. It's the way it is. You can prorogue. People can get angry with you about it, but you can still do it.
[Translation]
Thank you, Madam Chair.
To our two witnesses, I say welcome and thank you for being here. We certainly appreciate it.
I want to piggyback on what Mr. Lukiwski said. When the announcement to prorogue Parliament was made, Parliament wasn't sitting. Only four committees were sitting, and they were all focused exclusively on the WE Charity issue. The experts we heard from told us that, in their opinions, the only reason to prorogue Parliament was to disrupt the committees, which were discussing the circumstances surrounding WE Charity. The finance minister had just resigned, which was no small thing.
Experts told the committee that was the main reason behind the prorogation. Do you agree, yes or no?
Mr. Cyr will say that he isn't here to answer partisan or political questions, but the fact remains that Parliament was prorogued and we are trying to figure out why. Expert after expert, or just about, pointed to the scandal as the most likely reason for the prorogation, since only the proceedings of the committees, which were meeting to examine the WE Charity issue, were interrupted. There is no other reason.
I'd like to hear your thoughts on that.
You partly guessed what I was going to say, but I actually think this committee is demonstrating the ineffectiveness of the rules. It is attempting to figure out the reason for the game after the game was played.
As elected representatives, you hold the government to account, and now you are trying to ascertain whether the reason for proroguing Parliament was appropriate, but I think the time to ask questions was before Parliament was prorogued. That's what I would suggest. The time to ask these questions was before prorogation, not after. Otherwise, it's simply a matter of interpretation and speculation.
[English]
The concept of providing the justifications in advance as opposed to retroactively is interesting. I think when a prime minister makes an announcement around prorogation, in fact he—in this case it's a he, that's why I'm saying “he”—does provide some sort of justification and rationale for that. It's not written up as a report to Parliament, but he does usually offer some sort of justification for why he's doing it. I think the comments Prime Minister Trudeau made at the time were in fact consistent with what we see in the report.
It speaks to another issue of where accountability comes in here. Again, a prime minister does not have to give reasons for prorogation. He does now because standing order changed, but constitutionally he does not. There is a public accountability as well. It's largely a public response and whether the public accepts the version that's in the report or whether they think there's something else going on. I think that's an important part of the conversation we're having.
[Translation]
That wasn't my question.
I asked whether the main reason for the government's decision to prorogue Parliament was to stifle the WE Charity scandal, so as not to lose the confidence of Canadians.
[English]
I think avoiding or silencing committee investigations into the WE Charity situation was a major reason for the prorogation, yes.
I had translation throughout that.
Go ahead, Monsieur Therrien. You still have almost two minutes. I've paused when there have been interruptions.
[Translation]
Thank you for your answer.
Mr. Cyr, what you said was quite compelling. We could put in place what you suggest.
Had we adopted your suggestion on August 18 of last year, how would it have worked? Parliament would not be sitting, but committees would be meeting.
In light of your suggestion, how should we have proceeded?
The Prime Minister would have had to propose a motion to agree to prorogation. A debate would have ensued, and members would have discussed the issue. Had the motion been adopted, it would have confirmed that the Prime Minister had the confidence of the House and there would have been no questions asked. All the partisan debate could have taken place.
Had the motion been defeated, it would have meant that the Prime Minister could not go to the governor general with the request. Were he to have done it anyway, it would have been assumed that he did not have the confidence of the House.
That means he would have had to recall the House precisely so that members could vote on the motion.
I listened to Mr. Turnbull, my friend in the Liberal Party. According to him, when the government came back, there was a major change in the agenda put forward, thereby justifying the proroguing of Parliament. Supposedly, there was a clean break in terms of what we saw before and after prorogation. However, absolutely every political analyst I've heard has said that there was no difference in the government's approach—it was like two sides of the same coin. I don't think, then, that his claims match the reality.
Nevertheless, let's assume that was the case. If I were Mr. Trudeau and I had wanted to make a clean break without hindering Parliament, given that we were in the midst of a pandemic, my reflex would have been to prorogue Parliament the Friday before the House was recalled. That way, Parliament would have lost as little time as possible in tending to its work, so as not to impede efforts to respond to the pandemic.
Would that be a responsible position to take?
The question is for both of you.
[English]
[Translation]
A reasonable prorogation doesn't last very long so that Parliament can carry on its role and functions.
[English]
Thank you, Madam Chair.
I'm very honoured to be here at the committee.
Let's put this in perspective. We were in the midst of the biggest medical and economic crisis in the century. The role of Parliament in that crisis was to reassure Canadians that we were there for them, that we were putting their interests first. That got all blown out of the water when the Prime Minister signed off on the $912-million WE scandal.
The decision to prorogue was not about the best interests of Canadians. It was done in the summer, when two key committees were starting to raise very serious questions about getting access to documents. The Liberals tell us it was so important to tell Canadians we were shutting down Parliament so we could.... I think Mr. Turnbull said he had three meetings with stakeholders in that time. What an important reason to shut down Parliament. Mr. Turnbull would have been home in his riding anyway.
What was happening was that Parliament was trying to get answers on what happened, where the WE group, the Kielburger brothers, were able to call right in to Bill Morneau's office. In the email we got on the eve of prorogation, we were given the 5,000 pages of documents, but we were unable to use them in our report. That is obstruction of the work of Parliament.
Contrary to my learned witnesses, I think the problem with prorogation is that it toxifies trust. I remember in 2008, when Stephen Harper prorogued. His relationship with the Canadian people was never the same after that. As someone who's been permanently in opposition, I watch governments come and go. They come in and they're idealistic and then they decide power works for them. I see it in the Liberals. I see the arrogance of the Liberals because they got away with it. What did they get away with? They learned they couldn't shut down Parliament entirely. It's an old political trick. If you can punt a problem down the road, and you punt it far enough, you feel you've won. That's what the Liberals think they've done.
As it was the same with Stephen Harper's government, the Prime Minister, Mr. Trudeau, has toxified his relationships with Canadians. He might get by this time, but it creates—
I want to put this in context because they didn't just prorogue Parliament and shut down the work of the committee. They came back and the Prime Minister threatened an election over the effort to get the committee restructured. He made it a confidence vote.
Mr. Cyr, have you ever heard of Parliament being forced into a potential election over the structuring of a committee? Is that within precedent?
[Translation]
When a prime minister claims that a vote on a particular matter will be a confidence vote, it's often just posturing. The executive branch cannot decide whether a matter will be a question of confidence; only the House can.
Here's the example I sometimes give my students. When a person cheats on their spouse, who do you ask whether the person who was cheated on still trusts their partner? Do you ask the cheater or the person who was cheated on?
The point is that it is up to the House to determine whether a matter is a question of confidence. In a majority government, the prime minister commands a majority of members, and that's why a prime minister often calls an issue a question of confidence. If a prime minister wants to call an election, all he or she has to do is request that Parliament be dissolved.
[English]
I guess the issue here is that we had the Prime Minister once again not putting Canadians first but threatening an election as the COVID numbers were rising. That shows how much he didn't care about the Canadian people. It was about shutting down the WE scandal. Then what did he do? He obstructed the work of the finance committee in the midst of the biggest economic crisis in a century, and he shut down the ethics committee through the ridiculous and disgraceful behaviour of Liberals for the equivalent of 40 straight meetings. I've been in Parliament for 17 years, and I've never seen a government obstruct committees.
Mr. Cyr, in terms of ethics in particular, which is an opposition-chaired committee about accountability, to have a government obstruct it, shut it down and make it impossible for it to do its work, does that not speak to something that raises a level of toxic disdain for democracy that makes the Canadian people distrust why these decisions were being made?
[Translation]
I think Parliament has the mechanisms to determine whether an obstruction constitutes contempt of Parliament. I will just say this. The House of Commons is the master of its own decisions on the subject. Clearly, Parliament's role is to hold the government accountable for its actions.
[English]
Thank you, Madam Chair.
Thank you to our guests for being here.
I want to echo the comments of both Mr. Angus as well as Mr. Lukiwski. While we appreciate your expertise being here, the real witnesses who we should have here, the people who we should have before the committee, are the Prime Minister and the senior officials who were around him during the course of prorogation to get their views as to why they prorogued Parliament right in the middle of when things were starting to heat up for them.
It has been widely said already and reported as to what started to take place in March. Canadians found out that their Prime Minister entered into an agreement with an organization that he not only had professional ties to but also had familial ties to, where his wife was a speaker, his mother was a speaker and his brother was engaged with them as well.
Then we found out that the finance minister had ties to WE as well, subsequently paid for a trip that he somehow forgot and then abruptly resigned. Things were starting to crumble around the Prime Minister and this government—just another ethical scandal. My Liberal colleagues—and I have the deepest respect for them—can point fingers, bring up other issues and bring up all the other times that Parliament had been prorogued. They say that Mr. Harper did it, so if it was okay for him to do it, then it was okay this time.
I want to bring us back to why we are here: the study of proroguing Parliament during the deepest global pandemic. Right in the middle of the darkest times of our nation, right when programs for Canadians were about to expire, when Canadians needed us the most, our Prime Minister decided, on the eve of when all these documents were coming out about just how close his family ties to the WE organization really were—and there were two committees that were reporting on this and were trying to study this—he chose to hit the reset, so to speak.
Ms. Turnbull, I really appreciated your comments, because you have given us balance where you said it was not a great reset, but a reset. If only that were true. Those of us around this, in all honesty, if the intentions truly were altruistic and true, could probably say that it was for the best, but it wasn't. When we got back, we got a Speech from the Throne that was more of the same as what we'd seen before. There was nothing really new in it. It was the same old, same old. Then what we saw was more Liberal filibusters in committees that absolutely stonewalled Parliament from doing its job.
I have a question to ask you, Ms. Turnbull, and I'll get off my soapbox for a little bit, because I sit here and say this all the time with respect to committees: We do our best when we're not as partisan as possible. But this is really what we need to do.
I understand our Liberal colleagues have a job to do, but if Parliament is really truly to hold the government to account, and if this committee is charged with reviewing the reasons for prorogation, doesn't it make sense that we should have the Prime Minister and those senior officials around him at the time of prorogation report to committee and provide testimony?
[Translation]
That's the type of evidence put forward in the Supreme Court case in the United Kingdom. Yes, that's very useful.
[English]
Thank you. I was worried you weren't going to make it but you did, with seconds left.
We'll hear from Mr. Long, for five minutes please.
Thank you, Madam Chair.
Good afternoon to my colleagues and thank you to our witnesses this afternoon for their very interesting testimony.
Greetings, Professor Turnbull, from across the Bay of Fundy in Saint John, New Brunswick. I enjoy watching your political commentary on TV and in other media.
[Translation]
I have a point of order, Madam Chair.
The interpreter is signalling that she can't interpret because of poor sound quality.
[English]
We've paused. Let's fix this for the interpreters and start again, or at least start back 10 or 20 seconds.
Please resume.
My questions will be for you, Professor Turnbull. As an advocate for democratic reform, I was pleased when our government amended the Standing Orders to create section 32(7) to try to address the abuse of the prorogation power that took place under the Harper government. I've also been quite interested in your arguments in favour of democratizing the use of royal prerogative to prorogue, as you have mentioned today and outlined in your and your colleagues' excellent book, Democratizing the Constitution.
Do you believe that Standing Order 32(7) represents a significant step in the direction of democratizing the royal prerogative to prorogue?
This is why we could never make Democratizing the Constitution a movie, because the title just sucks.
I think the most that we can do in terms of trying to put some parameters around something like prorogation.... I think there are democratic justifications for doing that. It's hard for people to accept that a prime minister makes the decision—on the basis of advice but really it's his decision—unilaterally to summon, dissolve and prorogue Parliament. Given the politicization of these things, understandably people get annoyed with that. There's a gap between the royal prerogative in an unchecked sense and what we expect of democracy today.
I think that Standing Order 32(7) and the requirement for a report has the potential to be a step in the right direction in terms of democratic reform. However, I am not quite sure that it wouldn't be better to have something like this earlier in the process rather than later. I'm not so sure that the retroactive justification is going to be as helpful. I hear everyone else's comments today and I wonder: If this is going to be a successful reform does it not make more sense to have the Prime Minister come and tell you this? The reasons are his.
That's fair. Can you elaborate on the accountability mechanisms? Can you compare them to other Westminster systems?
I don't know of any system that has a fantastic accountability mechanism around prorogation, to be honest. Some Westminster systems use what we call a cabinet manual. A cabinet manual is a non-binding document but it is something that a government can issue, usually in close collaboration with a Privy Council officer-equivalent. It is something that can lay out how the royal prerogative works. For instance, it's not going to bind the hand of the Prime Minister in terms of giving advice to the Governor General, but it can be something that lays out expectations. A prorogation occurs for a maximum of 30 days, for instance, or the Prime Minister should seek consensus in the House before advising prorogation. You can put that kind of language in a document like that to give a sense of how we use these things.
Did the opportunity for a confidence vote on the throne speech, which was created by our government's brief prorogation, not provide an opportunity for democratic accountability for the decision to prorogue?
Can you elaborate on the limitations on the enforceability of an amendment to the Standing Orders to require a vote in the House in order to prorogue?
Yes. It's limited in the sense that it is political rather than constitutional.
Nothing in the Standing Orders can override the Prime Minister's right to advise the Governor General. It's the same as with fixed election dates. Even though it's legislative, it says right there in the act—I am obviously paraphrasing—that nothing overrides a Governor General's decision to dissolve Parliament on the advice of the Prime Minister, so these things are not going to supersede the Constitution.
The previous government did not have any such requirement to justify the reasons—nothing that I know of—whereas this government has put that requirement in the Standing Orders.
[Translation]
Former Parti Québécois minister Jean Garon used to say that changing a comma in the Canadian Constitution was about as easy as scratching your forehead with your front teeth.
Mr. Cyr, as I understand it, your proposal is to make obtaining the consent of all parliamentarians a requirement for proroguing Parliament. That's something Ms. Turnbull supports, in fact.
What would we need to do to put that in the Constitution? Would it be extremely complicated?
As far as my proposal is concerned, Ms. Turnbull and I may differ in one respect.
A prime minister always has the ability to request the prorogation of Parliament if he or she has the confidence of the House. If the prime minister no longer has the House's confidence, his or her advice is not binding on the governor general. Without amending constitutional acts or other legislation, you would have to establish a mechanism whereby the prime minister would be deemed to have lost the confidence of the House if he or she did not first obtain the House's consent. The governor general would not, in that case, be bound by the prime minister's advice.
Now the issue is finding the mechanism to do that. I propose including in the Standing Orders of the House of Commons—
[English]
On a point of order, Chair, I'm getting both French and English at the same time. It's very difficult to hear our witnesses.
I believe his setting is probably on general as opposed to French.
That's not supposed to be an issue anymore, but yes, let's try that.
Professor, at the interpretation at the bottom of your screen, please switch it to French.
[Translation]
[English]
Would you resume? If you want to backtrack by 10 seconds, that would be helpful to committee members, but we understand if you don't remember your spot.
[Translation]
All right.
The Standing Orders could actually set out the conditions for holding a confidence vote or non-confidence vote. If the Standing Orders were amended to provide that, should the prime minister request prorogation without first obtaining the support of the House by way of a motion, the prime minister would be deemed to have lost the confidence of the House and the advice to prorogue would not be binding on the governor general.
In 2008, he did not lose the confidence of the House, but a confidence vote was looming. There was quite a debate among the experts. It was traditionally held that the prime minister could not seek prorogation with a confidence vote pending. Some argued the opposite, meaning, that the prime minister had full freedom to request prorogation and that the request was granted automatically.
We are saying that it isn't automatic. The proof is that the then governor general consulted extensively; she imposed conditions and exercised her power of reservation. She accepted the prime minister's advice, not because she was bound by it, but because she was exercising her power of reservation. Had she denied the request, it would have meant that she had lost confidence in the prime minister and he would have had to resign.
[English]
[Translation]
Thank you, Madam Chair.
Mr. Cyr, my apologies for missing your presentation. I was tending to my duties in the House of Commons.
Let's say the majority of members wanted to implement your proposal. We are going to have a new governor general. What can the House of Commons do to establish a similar procedure related to prorogation, as part of the new governor general's mandate? How do we move forward with that change?
I'm proposing that the Standing Orders of the House of Commons be amended to provide that the government would be deemed to have lost the confidence of the House were it to submit an opinion to the governor general that Parliament should be prorogued without first having passed a resolution to that effect in the House. The Standing Orders could state that the resolution must set out the date on which the House would be recalled and the date on which a new throne speech would be delivered.
Apart from an amendment to the Standing Orders, it could take the form of a new practice. Adopting the practice would not require amending the Standing Orders. If the government were to do it on its own, without amending the Standing Orders, it could help establish a new tradition. I think that would be in the government's interests, because it would put an end to questions about its legitimacy.
[English]
In that case then, would the mechanism be that if the Prime Minister did want prorogation for whatever reason, there would then be a motion to that effect in the House and a vote prior to prorogation? Is that what's envisioned as the new practice?
When you say that practice ought to be instituted, what we would want to see then is changes to the Standing Orders and then a Prime Minister who said, “Let's now have a prorogation. Here's the motion. Let's have the vote.” The House would assent, and then we would have established a new practice.
[Translation]
[English]
Thank you very much.
Thank you to our witnesses for being here today.
We're here mostly because of poor judgment from the Prime Minister. At the heart of this scandal is an almost billion-dollar sole-sourced contract to WE Charity, which had ties to the Prime Minister and former minister of finance. It was poor judgment to get involved in an outfit that had paid over half a million dollars to the Prime Minister's mother. The poor judgment demonstrated by that transaction ultimately led to the proroguing of Parliament.
We talked about the Governor General's role in this. This is another poor judgment by the Prime Minister, getting involved and personally vouching for the Governor General so that she would not go through the proper vetting process. Now the taxpayers are on the hook for $140,000 at minimum for the rest of her life, which is also poor judgment by Prime Minister.
We had a Governor General who was indebted to the Prime Minister for vouching for her as much as she was the wrong choice, but was indebted nevertheless to the Prime Minister. We talked about the role of the Governor General, who in the past has granted proroguing rights to the situation but it isn't automatic. It still could be that in the future—although it would be precedent setting—it could be declined.
I would like to get the professor's view on this. In what situations would the Governor General not grant a proroguing of Parliament?
The only justification for that would be if there was a question about whether the Prime Minister had the confidence of the House. I think if the confidence is there, then the advice would be seen as binding, whereas if confidence is lost or about to be lost.... That's why 2008 was an issue, because there was a question about whether the confidence was there.
[Translation]
I agree with Ms. Turnbull.
The governor general is bound by the prime minister's advice if he or she has the confidence of the House.
[English]
Switching gears a little, Professor Turnbull, you talked about an alternate or different narrative that wasn't in the report. Can you unpack that a little? What you think that narrative might be?
At the time, in the months before the prorogation, the government was facing intense committee investigation and media scrutiny because of the decision to give the WE organization the opportunity to administer a $900-million student grant program. The processes that unpacked over the summer were in two different committees. Very high-profile witnesses, including the Prime Minister, the Kielburgers, the Clerk of the Privy Council, ministers and other senior public service executives, were coming to committee to give different pieces of the story. It was a pretty intense time for the government.
There's nothing in the Standing Orders that says what the government's answer has to be. The government is free to offer its narrative on why it prorogued, but I don't think it's possible to look at the situation and ignore the other narrative that was dominant at the time.
Some shenanigans were going on with the almost billion-dollar contract to a children's charity, which in itself is disgusting, that it would get involved in this so it would funnel money back to other people. This is disturbing when we look at the context. We're in a pandemic and you would think the government would want to be doing everything possible to protect Canadians, versus throwing ourselves into perhaps a constitutional crisis or definitely a confidence crisis in how they've been handling things.
To our other witness, what are the other—
Thank you, Madam Chair.
Thank you to our witnesses for coming. We appreciate your expertise very much. It's nice to meet you both virtually. I have limited time, so for some of my questions, I'll be looking for a yes-or-no answer.
This is a really important discussion, but I'm going to concentrate on the fact that we are in the middle of fighting a pandemic, that we have a tragedy occurring in long-term care and that we have new variants of concern.
Professor Turnbull, would you agree that with a novel virus like COVID-19 that we have much to learn? I'm looking for a yes or no, please.
Thank you.
Would you agree that when there is a novel virus, our researchers, our doctors, our health practitioners become the front line, working as hard and as quickly as possible to get answers to provide scientific and medical information?
[Translation]
I have a point of order, Madam Chair.
Once again, the interpretation is not coming through.
I'm really sorry, Ms. Duncan.
[English]
I think we've lost interpretation.
I'm sorry for all the disruption today. Usually it's right at the beginning or at one point, but we've had consistent disruption throughout.
Madam Chair, you all do a very good job of keeping us going.
Do let me know when I can start back and what time I actually have, please.
We can extend by five minutes, but I don't think we can extend any more than that. I did talk to the clerk and we have a tight switchover that has to happen in the room.
Go ahead, Dr. Duncan. You can begin your second question again. I'm sure that even if it was heard, it may have been forgotten.
Professor Turnbull, would you agree that with the novel virus, our researchers, doctors and health professionals become the front line, working as hard and as quickly as possible to get answers so as to provide scientific and medical information?
That's a yes or no, please.
Thank you.
Do you accept that the science, the data and the information we have changes over time?
That's a yes or no, please.
I strongly believe that science advice should be made available to decision-makers. Do you agree?
That's a yes or no, please.
I also believe that science, research and public health matter and that they are fundamental building blocks of the country, not just when we are in crisis. Do you agree?
That's a yes or no, please.
Thank you.
I'm going to look back to the 1918 flu. We heard a lot about the 1918 flu at the beginning. It was known as the forgotten pandemic. For almost a century it remained a medical mystery. I think there are lessons to be learned. The people matter. The story of the people matters. The doctors, nurses, front-line workers, survivors, family members and communities, everyone's voices must be included.
Would you agree?
When people live through trauma, it is important that they have the opportunity to talk about their experiences to be heard and to heal.
Would you agree with that?
I think we heard that again this morning. We are hearing about the steady data on mental health challenges facing health care workers during the pandemic. People are exhausted. They've been fighting this for a year now. I think it is really important that the government listens to Canadians.
The last thing I'll say is that in 1918 and 2020, poverty, hunger, good health, well-being, gender equality and economic status play a role in who gets sick, who gets treated and who survives. I'm wondering if you have comments on how we can do a better job of protecting our most vulnerable.
That's a very important question.
I think it's really difficult at this point. We're still in the eye of this thing. With increasing variants, it's scary to think about how long we're going to be locked down. I think we've already seen evidence of the fact that there are vulnerable populations whose challenges have only become worse.
To some of your previous points, I think a really important part of this is proper data collection, which we don't always do a great job of. We have to think about how we're compiling information and make sure that not only are we getting the right voices in the conversation, but we're getting the right data in the conversation so that, going forward, we have a really informed picture of how to fix programs, change programs and figure out what people's plights are.
That is going to be a huge undertaking for politicians, researchers, the public service and corporations. We all have a role to play.
Thank you.
That's all the time we have. We're going to go until 1:05, upon Mr. Doherty's request.
Mrs. Vecchio, go ahead for five minutes.
Thank you very much.
I was just looking at some of the information that was provided to us earlier.
Ms. Turnbull, I really appreciate your being here. I just want to get your opinion on this. This is a quote you made back in 2012. I just want to know if, nine years later, you still believe this is relevant. This has to do with the premier of Ontario. In this statement you said:
This is an unnecessary abuse [of power] of the Premier's prerogative to advise the Lieutenant-Governor to prorogue; the surprise adjournment serves no democratic purpose whatsoever and it prevents the legislature from fulfilling its fundamental purpose—to hold the government to account.
Do you believe that same statement you made in 2013 would be relevant to the 2020 prorogation?
I think the circumstances were different in the sense that the premier, Premier McGuinty at the time.... What really made me angry about that one was that he prorogued until the party chose a new leader, which I thought was completely unnecessary. There wasn't a particular time frame. Going back to some comments my colleague and I both made around the timing, it seemed to be an open-ended kind of prorogation, the timing of which was determined by the Liberal Party as opposed to any concern of the legislature.
Also, the investigations around contempt at the time were quite serious, so I was more angry that time than I was this time.
Yes. It does seem very similar, though, because you're talking about contempt. We are talking about abuse of power and the fact that we can look at this.... We have had other academics indicate that this was an abuse of power. Do you believe this was an abuse of power in 2020?
I don't know if this is a yes-or-no thing. I don't think the prorogation in 2020 was necessary.
Where I get willing to use the word “abuse” is when there are clear questions, and it seems to me that a first minister has a confidence crisis.
I really appreciate that, and I do believe that, as we saw during these committees, there was a confidence crisis specifically in this.
Because of that, Ms. Turnbull, you mentioned that the only way we're going to find out is by having the Prime Minister here.
Ms. Chair, I would like to move the following motion, please. I would ask that our staff send this to the clerk so it can be distributed.
I move:
That the committee invite the following witnesses for its study on the Government’s Reasons for Proroguing Parliament in August 2020 and that these witnesses appear individually for a minimum of one hour each: Prime Minister Justin Trudeau; MP Pablo Rodriguez, Leader of the Government in the House of Commons; Katie Telford, Chief of Staff to the Prime Minister; Bill Morneau, former Minister of Finance.
That these witnesses appear before the committee within 14 days of the approval of this motion, and that the committee reserve the right to invite more witnesses as the study continues.
I just wanted to put that out there. Absolutely, after we've heard from all of our witnesses, we know the only answer is going to come, truly, from the Prime Minister. I therefore think it's extraordinarily important that he actually comes to committee to answer this. Regardless, he is put through this.... Yes, he has been very consistent in his media and all of his conversations, but being consistent doesn't always mean the truth has come out. I would like to move this motion and have discussion from there.
Thank you.
Ms. Vecchio, you still have one minute if you want to wrap up your questions. The motion is on notice.
Justin has just received the motion. He will send it around to everybody right now.
Mr. Doherty, you're on the speakers list.
Thank you.
I just offer this. With full respect to all of the colleagues who are here, repeatedly we've had both Liberal colleagues...and I think Mr. Turnbull even said that it was his reason, the Prime Minister's reason to prorogue. We can all sit here and speculate as to what others have said. It's only speculation until you hear it directly from the Prime Minister and those who were around him. I think that Canadians as well as this committee deserve to know why the prorogation happened.
We can have a number of different academics, like the great witnesses we've had today: Ms. Turnbull, Mr. Brodie and Mr. Cyr. Truly, until we hear from the Prime Minister and those who are around him, speculation will run rampant.
I think the best course for this committee is to call for those four witnesses to come forward. We reserve the right to call future witnesses after we hear from them. I think again, we can point fingers and do everything to look at all the reasons that it was done in the past, but we're studying the prorogation in 2020 and a number of academics and witnesses have already said that it is the Prime Minister's prerogative to prorogue. Truly, if we were to move forward with this without actually hearing from those four individuals, it would all just be speculation. We'd be doing a disservice not only to Parliament but to Canadians writ large.
I just wanted to make a few comments. I appreciate that other members of the committee want to call other witnesses. I think in terms of process, it would be great if we had an opportunity for all parties to submit witnesses and perhaps the subcommittee could discuss that. I don't think we have any time today. I know I have other things in my calendar that are pressing, although this is obviously important. I think perhaps this discussion can wait until the next meeting or perhaps there is a subcommittee meeting in between that could deal with this. That would be my suggestion.
Madam Chair, there's nothing in this motion that precludes any other witnesses coming before or that handcuffs the committee. What I'm asking you to do is to call the vote.
There is a subcommittee meeting on Monday on it, just to answer Mr. Turnbull's question. It is on Monday evening at 6:30 on witnesses and the prorogation study.
Maybe I bring an outsider's perspective to this and perhaps that's needed from time to time, particularly today. We've had witnesses give testimony this afternoon and late morning. We have had witnesses, I think it was in mid-December—I was sitting in that day as I am today for Mr. Gerretsen—give testimony. This is an important issue. It's an important question. The matter is being looked at. I'm not sure why the Conservatives have tried to politicize this further. It makes no sense—
Excuse me, I have a point of order.
I just need to do a point of order because I've been trying to raise my hand for three minutes. I'm just letting you know that the “raise hand” function has not been working. I tried back when Todd was speaking, and that's why I want to let you know that I have not been able to use the “raise hand” function.
Can I speak to that point of order, Madam Chair? I believe that we are all experiencing the same problem. It's just that the “raise hand” function is not showing on our screen. It is working, because I've raised my hand several times and the chair has kept the order quite well. For some reason, for members who are participating, it doesn't show on our screens, so I think that might be the issue.
I was just going to echo the point of Ms. Vecchio. I've been trying to raise my hand as well. I guess I can just hope to be added to the list. I know we're running short on time, but if that can be done, I would greatly appreciate it.
I know that a number of colleagues want to speak, Madam Chair, so I'll stop there. I know that the “raise hand” function hasn't been working for them, but I sense that they want to speak.
It's a little difficult for me to tell whether Mr. Turnbull is next or whether Mr. Bittle is. I don't know when you attempted to raise your hand—
I don't know. It's difficult. I didn't even see your physical hands go up, so I'm going to have to....
Mr. Clerk, Justin, were you able to tell?
Madam Chair, I did note Ms. Vecchio's hand rising.
According to my list, I think it would be Ms. Vecchio next.
Thanks very much.
By no means do we want to filibuster today. This is a conversation that we have to have. As was indicated by both of the academics on at this very time, everybody has indicated that the only person who has the answer is the Prime Minister. We have done one day of prorogation study on this, so we have actually only heard from a few others.
Rather than get deep into a study and bring in a whole bunch of academics, let's just get to the bottom of it. Then we'd be able to finish the study, if we actually get the answers. Rather than bring in 20 to 30 different witnesses who are going to say very similar things, let's just get to the bottom of it. It's not that we need to have a vote today. I believe, if you look at many members of the committee today, specifically opposition members, we want to hear from the Prime Minister. He has the answer.
Thank you.
That's understood.
Would the committee be okay with adjourning now? We have to clear the room for private members' business, but we will be discussing this on Monday evening.
Your motion is basically what's going to be discussed there. Then it can come back to the regular committee at the next meeting, if you wish, as well.
Madam Chair, we've seen what has happened in the past. When we adjourn this to another time and we go behind closed doors, Canadians don't get to see what really takes place. In fairness to Canadians, I think they should hear the outcome of this.
We have many people on the speakers list. The thing is that you're not going to hear the outcome of this today, but you can have it in a public meeting, for sure.
I was just going to indicate that the motion that has been moved would still be up for consideration at the next full meeting of the committee. The meeting on Monday night isn't of the full committee. It's the subcommittee. If there is no resolution at the subcommittee, the issue can always be brought back and the discussion picked up again at the next full committee meeting, or whenever the committee would like to do it.
We can absolutely have the discussion in public, if that's the wish, but we have to clear the room for the private members' business committee now. That was all they told me, that we had a few extra minutes, and we've gone past them.
We're going to be discussing this—that's for sure—on Monday and then maybe even into the future, if needed.
Thank you.
Thank you to our witnesses. Thank you for your patience through all the troubles today, the technical difficulties. We really appreciate your patience. It's important for us to try to make sure we have interpretation in both official languages.
Thank you to the interpreters as well. I know that your jobs are not easy, and all these technical difficulties make it more so.
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