THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, February 21, 2019
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, met this day at 10:30 a.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome. We are resuming our study of Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts. We have the privilege this morning to host Mr. Michel Bédard.
Mr. Bédard is here to give his insight on proposed section 71.12 of the act that deals with parliamentary privilege and the security of persons, infrastructure and goods.
The act contains a procedure, and Mr. Bédard will have an opportunity to explain its implications, especially considering that the Speaker of the Senate has a different understanding from the Speaker of the House of Commons. Honourable senators want to ensure that those provisions take into account the special position of the Speaker of the Senate.
The floor is your, Mr. Bédard.
Michel Bédard, Deputy Law Clerk and Parliamentary Counsel (interim), Office of the Law Clerk and Parliamentary Counsel, Senate of Canada: Honourable senators, I’m pleased to participate in the committee’s proceedings this morning to address an issue that had been raised at a previous meeting of this committee in relation to a provision of Bill C-58. The question was communicated to me through the clerk of the committee and I provided a briefing note, which I understand was distributed to the members of this committee. I will now address the issues raised by the briefing note, and then I will be at the will of the committee for oral questions.
The question being asked is whether proposed sections 71.12 and 71.14 of the Access to Information Act in Bill C-58 are consistent with the role played by the Speaker of the Senate under the rules, customs and practices of the Senate.
[Translation]
Bill C-58 would, among other changes, add a new Part 2 to the Access to Information Act. This new part would require parliamentary entities to proactively publish information on their travel, hospitality and contract expenses. These new publication requirements would apply to senators and to the Senate Administration.
Proposed section 71.12 of the Access to Information Act would, however, exempt from publication any information whose disclosure would constitute a breach of parliamentary privilege as determined by the Speaker of the Senate orthe Speaker of the House of Commons. Such a determination by either Speaker would be final underproposed section 71.14 of the act.
[English]
It was suggested that this proposed exemption is ill-adapted to the Senate because any such determination rendered by the Speaker of the Senate is final, while rulings rendered by the Speaker during the Senate proceedings, including those on the prima facie merits of questions of privilege, are subject to appeal to the Senate pursuant to its rules. In my view, the scheme proposed by Bill C-58 is not inconsistent with the rules, customs and practices of the Senate. I’ll explain.
Speakers of legislative assemblies are oftentimes referred to as the guardians or custodians of the parliamentary privileges of their respective assemblies. They are called upon to play different roles in that regard. For example, in that capacity they will control access to the parliamentary precinct and intervene to be a party to court proceedings in order to assert their privileges of their respective assemblies. It is also in that capacity that Speakers in other jurisdictions are called upon to play a similar role to the one contemplated in Bill C-58, and I refer to Prince Edward Island and Newfoundland and Labrador, for example.
[Translation]
While there are differences between the Speaker of the Senate and the Speakers of the other Canadianlegislative assemblies, notably in that the Speaker of the Senate is appointed by the Crown, the role of the Speaker of the Senate is similar to that of his or her counterparts in other jurisdictions. He renders rulings, notably, on points of order raised in the Upper House and on the prima facie merits of questions of privilege.
Canadian legislation has also explicitly and implicitly recognized the role of the Speaker of the Senate as thecustodian of parliamentary privilege. Section 79.52 of the Parliament of Canada Act, which establishes the Parliamentary Protective Service, entrusts to the Speakers of both Houses the responsibility for the Service, and I quote:
[...] as the custodians of the [...] privileges [...] of their respective Houses [...]
[English]
It is true that rulings rendered by the Speaker of the Senate in the chamber on the prima facie merits of questions of privilege are subject of appeal to the Senate, as are any rulings of the Speaker on points of order, for example. This does not, however, change the role of the Speaker as the custodian of the Senate’s privileges. In that respect, I note that prior to 1965, the rulings of Speakers of the House of Commons were also subject to appeal and could be overturned by the House of Commons, and this does not affect the Speaker’s role as custodian of the Commons’ privileges.
It is important to keep in mind that a ruling from the Speaker of the Senate that a question raised in the chamber constitutes a prima facie case of privilege is not conclusive that a breach of privilege has occurred. Such a ruling will pertain to the criteria that must be met so that the question of privilege is accorded priority under the Rules of the Senate. It is the Senate that ultimately determines whether or not any of its privileges were actually breached and what action should be taken.
The process proposed under the Access to Information Act should be distinguished from the process used by the Senate to deal with questions of privilege. The purpose of proposed sections 71.12 and 71.14 is to exempt from disclosure information that would otherwise be disclosed under proposed Part 2. The determination that the Speaker makes that the disclosure would breach parliamentary privilege is pre-emptive. It is aimed at avoiding a breach of privilege. It does not determine whether a breach of privilege has or has not taken place.
[Translation]
In my opinion, the final nature of the ruling made by the Speaker does not undermine parliamentary privilege, but supports it instead, by preventing that ruling from being reviewed by the courts or other bodies external to the Senate.
Whether the role contemplated for the Speaker of the Senate in Bill C-58 should be played by another person or body, e.g. the Clerk of the Senate, is a matter that can be discussed by senators during the legislative process.
That said, I believe there are important considerations that would make it difficult and impractical for the Senate or a committee to make that determination. First, the proactive publication under Part 2 is to be made on a quarterly basis. Parliament could be adjourned,prorogued or even dissolved at the time when the determination must be made, which would render impracticalor even impossible the making of the determination.
Also, asking the Senate to make such a determination would pose challenges. What would the process be? Who would take the initiative? What would be done if the determination were not made at the proper time? Would the privileged information have to be disclosed to all 105 senators before they made their decision?
[English]
To conclude, the role contemplated for the Speaker of the Senate in Bill C-58 is, in my view, consistent with the Speaker’s role as the custodian of Senate privileges. Hence, in my view, Bill C-58 is consistent with Senate rules, customs and practices. There are also practical considerations that make it convenient for the Speaker to make this determination. Thank you.
[Translation]
The Chair: Thank you, Mr. Bédard. I will ask the deputy chair of the committee to begin the first round of questions.
Senator Boisvenu: Mr. Bédard, thank you for being here.
My first question is a bit awkward, and the second is more technical. In your opinion, if we had put the same question to another lawyer, would the opinion have been the same, or would it have been different?
Mr. Bédard: If we all had the same opinions, I think all lawyers would be out of work. So, yes, you might be given different opinions.
Senator Boisvenu: In future, if a different opinion were given, or if a situation occurred where another lawyer or Senate counsel had to take a position, could that position be different?
Mr. Bédard: With respect to the current act, I refer among others to the Parliament of Canada Act, which recognizes the Speaker of the Senate as being the custodian of the privileges. In the document distributed to the committee, other laws are also mentioned that give certain functions to the Senate, as custodian of Senate privileges. It stands to reason that the Speaker should be the one to make that determination. However, as I said in my presentation, if senators would like this to be done by another body, they are free to amend the bill during the legislative process.
As to whether this is inconsistent or contrary to the usual practices and traditions of the Senate, or impractical, I would say that that is not the case, as it rests on legislative precedents.
Senator Boisvenu: Can you tell us more about parliamentary practices and the considerations that formed the basis of your opinion?
Mr. Bédard: With respect to legislation, the Parliament of Canada Act recognizes this role explicitly. There is also other legislation, such as Bill C-65, which was adopted by Parliament recently, which confers certain powers or states that the Speaker will be informed before the executive body enters the Senate. Although it is not always explicit, all of these provisions are always linked to the Speaker in his or her capacity as custodian of the privileges of Parliament.
I reread the transcripts of the committee meetings, and the concerns that were raised were particularly related to the process put in place in the Rules of the Senate to deal with matters of privilege. As I tried to explain in my note and in my presentation, a distinction must be made between a power exercised by the Speaker and the process that is used in the chamber to determine whether a point of privilege must be given priority for debate and referred to the Standing Committee on Rules, Procedures and the Rights of Parliament.
You mentioned the practices and traditions. There are various cases where the Speaker of the Senate intervened before the courts. One of them was the New Brunswick Broadcasting Co. v. Nova Scotia case, which that went as far as the Supreme Court in 1993. The Speaker of the Senate appeared in court; it was a matter of parliamentary privilege.
Does that answer your question, Senator?
Senator Boisvenu: Yes, precisely. Thank you very much.
Senator McIntyre: Thank you for your presentation, Mr. Bédard. I have two questions for you.
This question is about proposed section 71.14 of Bill C-58. You mentioned in your brief that there is an inconsistency between the French and English versions. You suggested that, depending on Parliament’s intention on the matter, either the French or the English version should be retained. Based on your expertise, can you tell us which version is preferable, and if not, why?
Mr. Bédard: Honestly, I think that at this point you do not have to choose between the versions, since the bill is still going through the legislative process and it is the work of parliamentary committees to propose amendments to the bill. There is clearly an inconsistency between the two versions. There would be an issue if the bill were passed as it stands, but since it is still under legislative consideration, the best solution would be to amend the bill to delete the reference to the delegate in the English version, or add it to the French version. If the text were adopted as is, a lawyer would probably adopt the more cautious approach, which would be to ensure that the Speaker always made the determination.
Senator McIntyre: My second question is a request for clarification.
You mentioned in your brief that there are considerations that would make it difficult for the Senate or the Rules Committee to make the determination. I understand the considerations involving a determination by the Senate, but could you explain those that are specifically related to the Rules Committee? Why would a determination by the Rules Committee be difficult or even impossible?
Mr. Bédard: If the decision were made by the Rules Committee, that would certainly be less problematic than if it were made by the Senate. The Rules Committee can sit in camera, which poses far fewer problems.
However, the Rules Committee might be adjourned, or Parliament could be prorogued or dissolved. Since committees do not sit when Parliament dissolves or is prorogued, there could be times when the Rules Committee would not exist. This is the type of problem that could occur.
Senator McIntyre: Thank you.
[English]
Senator Lankin: Thank you very much, Mr. Bédard, for the opinion and for your presence here today.
You’re making a distinction in both your presentation and the written submission about the role of the Speaker in ruling on privilege and the ability to appeal that when the matter arises within a sitting of the Senate Chamber.
I do not quite understand that limitation. Perhaps you can walk me through it. For example, the other day we had a senator raise an issue that occurred in committee. He raised it as a point of privilege, although I think it was more a point of order. Be that as it may, the matter was resolved and didn’t have to go to a ruling. So things that happen outside the chamber but are within the purview of matters that affect senators and the operation of the Senate can seemingly be raised in the chamber. Senators can hear from the Speaker and potentially appeal or challenge that ruling. Are you saying that would not be possible?
I know that the Speaker’s position is to prevent a breach of privilege. However, if a certain number of senators or an individual senator felt that decision was restrictive and the matter should be publicly disclosed for transparency and is not a breach of parliamentary privilege, can that be raised in the Senate? Can the Speaker’s ruling in this case then be appealed and potentially overturned, or are you saying that’s not possible?
Mr. Bédard: We must make the distinction between the role the Speaker is playing in the chamber, and that would cover questions of privilege that arise out of proceedings in the chamber but also outside of the chamber. If you look at questions of privilege that have been raised, a member could be obstructed outside the chamber, which could prevent his or her attendance at the sitting. That would be a breach of the member’s privilege and eventually could be contempt.
The rules provide a process whereby an alleged breach of privilege could be raised in the chamber. The purpose of the Speaker’s ruling is to recognize that the matter raised is a serious matter. Upon such a ruling, the matter is usually referred to the Rules Committee so that it can inquire further into the matter and then report to the Senate. Depending on the recommendation of the Rules Committee, if it concurs and there is a recommendation that there was a breach, then a breach is founded. That is the process.
The role of the Speaker is to determine that the criteria are met and that the matter raised is serious enough to be accorded priority over other debates in the Senate.
If we look at the proposed process under the amendments to the Access to Information Act, we can contemplate the administration bringing to the attention of the Speaker information that if disclosed would breach privileges. We could try to speculate as to what kind of information would breach the privilege, and that would be a disclosure of in camera information.
The Speaker, at that stage, could make a determination that this information not be disclosed, because if it is disclosed, it would breach privilege. The determination that the information not be disclosed would be final.
Senator Lankin: I want to ask the question from the other side, then. If the Speaker, in that case, makes a decision that this would breach privilege and that it is for the protection of our parliamentary privilege, there will be times when senators disagree that it’s a breach or are calling for transparency with the information. Are you saying to us that there is no recourse for senators to then challenge that ruling in the Senate Chamber?
Mr. Bédard: You referred to a ruling.
Senator Lankin: A decision, meaning a determination that it’s a breach. That’s what he would be doing. Can that be brought, in some way, in a process for a senator to challenge that?
Mr. Bédard: It’s difficult to answer in the abstract, so I’ll try to answer using an example.
Let’s say there was information about proceedings of the committee that the Speaker determined should not be disclosed because it relates to in camera proceedings, and the committee sees that such information has not been disclosed. The committee is the master of its own proceedings, and the reason those proceedings were in camera is because the committee decided that they would be in camera. Nothing prevents the committee from deciding that this document or information could be made available.
For example, I understand that the briefing was distributed to committee members, and I gather that it could have been posted on the committee’s website. The committee is the master of its own proceedings, so it could do that.
Senator Lankin: I understand that example. It’s a real one and it’s quite possible that that could occur. It’s kind of black and white: in camera is in camera unless it is decided to be made public.
There are probably grey areas, and I know that that’s difficult, but I’m challenged your interpretation. This is what raised the concern that Senator Batters brought to our attention in the first place. I’m concerned that it would deny a senator an opportunity to probe and push, and for the Senate as a whole, as the master of its proceedings, to determine, in fact, “No, we don’t think that’s a breach, and we want that released for transparency.”
Mr. Bédard: When the Speaker is called upon to make this determination, he or she does not act in a vacuum. Committees have their own proceedings. They decided to go in camera. There are the Rules of the Senate and there are committees’ practices, and the reason why it will constitute a breach of privilege is because the committee, using its power, has decided to go in camera.
I don’t see it as necessarily being incompatible with the bill to contemplate a process whereby the Speaker can notify the authority to which the information belonged so that this issue could be addressed.
Senator Lankin: Now I want to step to another example, solicitor-client privilege. We had discussion here in committee about that last night. Proposed subsection 36(2) provides for a process of the Information Commissioner and the Privacy Commissioner making a determination about information provided by a third party, and it could be something that people might think is solicitor-client privilege. So they may make a determination that they are going to release this, or even the fact that it is being referred from one commissioner to another is a transfer of information for consideration.
The Speaker might determine that that’s privilege with respect to an individual senator or a matter within the Senate, and it may be that senators believe that that is, in fact, something that should be made public, rightly or wrongly, because that’s a complicated area. I’m fearful that the language here restricts what is currently understood — and maybe we’ve all been incorrect — as part of our privileges and the rights of operation of the Senate, that the Senate as a whole has the final say on these things.
Mr. Bédard: Again, we must look at the purpose of the determination made by the Speaker, and it’s not determinative as to whether or not a breach of privilege has occurred.
Let’s take a few steps back. We can look at the information that must be disclosed under Bill C-58, and it’s in the section of proactive disclosure. It’s disclosure about contracts entered into by senators’ travels and also hospitality expenditures. We are not dealing with an access to information request that will disclose draft motions or draft legislation.
We could come up with examples, but it was difficult for us to say that certain areas will be problematic because the information that is disclosed is broad, and it’s not confidential information that will be disclosed.
We can contemplate information that will give a hint or indirectly disclose in camera proceedings — that was the example that was provided — but the administration, in administering the scheme proposed by Bill C-58, could bring to the Speaker’s attention those cases in making the determination. In doing that, the administration will not act in a vacuum. Let’s say the information belongs to the committee. There could be consultation. If it is to a senator, there could be consultation with a senator.
I don’t know if that answers your question.
Senator Lankin: What I understand from you is the Speaker, in making a determination that leads to a course of action one way or another, if an individual senator or a group or the Senate as a whole disagrees with that, we have no right to challenge it, which is different from our current understanding. That’s what you are suggesting would be the result of bill; am I correct?
Mr. Bédard: Let’s say the Speaker makes a determination, and you, as a senator, disagree. You could raise it on the floor of the Senate. The purpose of the determination by the Speaker is for the purpose of Bill C-58.
Senator Lankin: So the determination is still available for us to raise to get a rationale from the Speaker and to challenge that decision within the chamber. I know you’re saying there is nothing wrong with how it’s done, but you are saying it clearly does not impinge on current rights that senators expect and exercise within the Senate Chamber.
Mr. Bédard: In my view, a senator could raise it in the chamber. That said, there would not be an appeal as contemplated in the role of the Senate regarding rulings because it’s not a ruling as per the rules.
Senator Lankin: So we might have to change the rules to say that a determination or a ruling can be challenged by the Senate. Would that make it clearer?
Mr. Bédard: There could be an adjustment contemplated in the rules. Not necessarily this one, but there certainly could be an adjustment in the rules to contemplate the new role of the Speaker.
Senator Gold: I’m following up the line of questioning of Senator Lankin. I’m hoping this will be helpful. There is a question at the end of my statement of understanding.
I want to distinguish a determination for the purposes of Bill C-58 and the ruling by the Speaker that we are used to that a breach has or has not occurred.
I understand your testimony to be as follows. An issue of disclosure — travel expenses, hospitality — is raised in the sense that it’s about to be disclosed under the proactive disclosure rules. The Speaker says he or she thinks this breaches parliamentary privilege. He or she may or may not consult but makes that determination, and, therefore, does not release the information. So far so good.
A senator or senators getting wind of this say, “I don’t think that was a breach of privilege and I think transparency requires . . . .” I take it from your answer and it’s my understanding that, just as now, we can then ask for a ruling in the Senate. We can raise the question in the Senate. The Speaker would have to rule as to whether or not there was a breach of privilege or not in such circumstances.
Senator Lankin: Or whether it met the conditions.
Senator Gold: We could take it to the chamber and there could be a debate. If, in fact, the majority of the Senate disagreed with the Speaker, the Senate would retain its ability to have the final say. The decision, up until that instant, though, is that the information is not yet public. The Speaker made a determination before this was ever discussed, whatever the right terminology is — ruling, deliberation.
What would then happen to the information? In other words, if the Senate as a whole, having disagreed with the determination under Bill C-58 — which might have been made when we weren’t sitting, for example, and we might not become aware of it until after we saw the information absent from the disclosure — when we return to the chamber and raise it in one form or another, and maybe we have to tweak our rules, and if the Speaker’s determination is rejected by the Senate, what then happens to the information under Bill C-58? Or is it just too bad, too late?
Mr. Bédard: In the disclosure contemplated by Bill C-58 is the publication of financial information on the website. It would be, in my opinion, very simple; just pressing a button to add it in the proper column where it should have been disclosed.
I want to add one thing. When you presented the background, you made a direct claim between a determination by the Speaker under Bill C-58 and —
Senator Gold: I tried to distinguish between them.
Mr. Bédard: Currently, there’s no appeal of a determination under Bill C-58 directly to the chamber.
Senator Gold: How would it be raised in the chamber under our current rules? If I understand it, the nub of the concerns expressed is the fear that Bill C-58 would have the effect of giving to the Speaker the final say in matters of privilege that we understood he or she didn’t have.
In your understanding of the rules, how would this determination — it wouldn’t be an appeal — be raised by a senator in the chamber if he or she thought the decision under Bill C-58, the determination, was in error?
An Hon. Senator: It says in —
Senator Gold: It’s final for the purpose of Bill C-58, but is it final for the purposes of determining whether a question of privilege has actually been breached?
An Hon. Senator: Yes.
Senator Gold: With all respect, senator, I’m asking our witness.
It’s final for the purposes of disclosure under Bill C-58. Does that mean that the issue cannot be raised in the chamber? Because you said it could be.
Mr. Bédard: You are a senator, and on a quarterly basis you look at the information disclosed under your name and realize that essential information has not been disclosed that should have been. You inquire and find that out that the Speaker has made a determination that the person you met with should not be disclosed because, in the Speaker’s opinion, it would have breached your privilege as a senator.
In my view, before making a determination, the Speaker would have consulted with you first. If you met someone in a confidential capacity and you disagree with the Speaker, nothing prevents you from disclosing this information and it is no longer confidential. In the first place, you didn’t think it was confidential.
The same thing with committee proceedings. If the Speaker does not disclose information because in his view such a proceeding was in camera, the committee is the master of its own procedures and could say, no, this information is not in camera and it is okay to disclose it. The committee could make that decision. We don’t necessarily have to go to the chamber to have the information disclosed.
The Chair: I think we should stay on this very point. Those senators who want to remain on this issue, I am tempted to recognize them so that we get to the bottom of it.
[Translation]
Senator Carignan: We agree that this changes current practice by granting the Speaker the final determination. Currently, unless I am mistaken, the Senate makes the final determination on any matter. The Constitution, in section 36, provides that issues raised in the Senate will be decided on by a majority vote.
There are two parts to my question. First, does this constitute a precedent whereby the legislator is giving the Speaker an additional power with regard to a final determination? Second, should we not question the constitutionality of this provision, given that in the Senate, determinations are to be made by the majority?
Mr. Bédard: Regarding constitutionality, the Constitution does indeed provide that decisions will be made by Senate majority. However, in this case, we are not talking about a Senate decision, but about an administrative decision made by the Speaker of the Senate.
Senator Carignan: We are talking about matters raised in the chamber, and questions of privilege will be raised in the chamber. If, as a senator, I do not agree with the Speaker’s determination on a matter of privilege, I am going to raise this in the chamber, and not in his office.
Mr. Bédard: If you raise a question of privilege in the chamber, of course, the determination that will be made by the Senate, either on the appeal of the Speaker’s ruling or on the substance of the matter, will be made by a majority Senate vote. That is clear, and Bill C-58 does not change the law in that regard.
To reply to your second question on whether we are changing the current practice under the law, what is being proposed in Bill C-58 is new law. There is no regime currently that provides for proactive disclosure.
Senator Carignan: But neither is there any provision in legislation that indicates that the Speaker’s decision is final and definitive. That is new to us, because the Senate has always been sovereign. This is the first time I see this, and that is why I asked the question; to my mind, this is an erosion of the Senate’s power.
Mr. Bédard: If you look at the text of Bill C-58, the Speaker’s ruling concerns the fact that disclosure would constitute a breach of privilege. It does not say that there is a final decision on that breach of privilege or the lack thereof. There is a lot of insistence on the fact that the Speaker’s decision is final, but you must really, in my opinion, take the Speaker’s decision in context, which is the proactive disclosure of financial information on a quarterly basis, where the objective is to prevent the disclosure of some information because it would breach privilege.
Senator Carignan: If a group of senators want to be more transparent and let the Speaker know that they do not agree with his decision, as the matter does not breach their privileges, and they reverse his decision, which one will apply?
Mr. Bédard: If a committee rules that information is not confidential, but may be public, the committee may make it public. The committee is master of its own deliberations. Nothing prevents the committee from making the information public.
If the Speaker makes a decision, the information will not be disclosed. So there will be no breach of privilege.
I think that the issue that might be raised in the House in connection with Bill C-58 is a case where privileged information is disclosed without the matter being submitted to the Speaker and without any determination having been made. There would be privileged information on the Senate website. That matter could be raised by a senator in the chamber.
Senator Ringuette: Thank you, Mr. Bédard, for being here with us. According to the Parliament of Canada Act, the Speaker of the Senate, like the Speaker of the House of Commons, is the custodian of the rights and privileges of the institution and of its members. Moreover, according to the Parliament of Canada Act, which directly concerns Bill C-58, if Parliament is prorogued, the Speaker of the institution and the Board of Internal Economy maintain their positions and responsibilities. As for Bill C-58 specifically, it discusses the proactive disclosure of senators’ expenses, under the auspices of the Board of Internal Economy.
Let us suppose, for instance, that while Parliament is prorogued, the quarterly disclosures are not suspended, but continue. Let’s say I took part in an activity for which expenses were incurred, and I believe that they are covered by parliamentary privilege. Even while Parliament is prorogued, I could ask the Speaker, as a precautionary measure, to not publish that expense, since I believe that disclosing that expense would breach my parliamentary privilege. The Speaker might make a determination, because a decision must be made while the Senate is not sitting, during a prorogation.
However, once the institution resumes its activities, after an election or a Speech from the Throne, the Senate as a whole, or one senator, could raise this question of privilege and ask that it be reviewed. It’s a matter of practice. If the Senate is not sitting, who will determine if there is a question of privilege, or not? The Parliament of Canada Act states that the Speaker of the Senate is the custodian of our privileges, all the more so during a prorogation.
Mr. Bédard, is my reasoning logical?
Mr. Bédard: With respect to the practical considerations during an adjournment, when Parliament is prorogued or dissolved, I mentioned this in my letter because under Bill C-58, that information is not to be disclosed; that determination must be made every three months. So, indeed, there has to be an individual or a body that will have the power to make that decision, even when Parliament is dissolved.
Now, as to whether non-disclosure may be raised in the Senate subsequently, there is nothing that prevents this. However, if the information was not disclosed, no breach of privilege will have occurred. It will not be a question of privilege that will be raised in the Senate, because the Speaker’s decision will have precluded that.
Earlier I gave some examples of other possible avenues of action, should a senator or committee disagree with the Speaker’s decision and feel that the information should be made public.
Senator Pratte: I have a few questions.
Could other administrative decisions made by the Speaker of the Senate—because this would be a decision protecting privilege but not really a decision on privilege—be reversed by the Senate itself?
My second question concerns proposed section 71.14; what is its purpose in your opinion? Maybe my ignorance of the law is to blame. It is the final decision. Is its objective not precisely to see to it that Parliaments will not be able to reverse it? Or is it a privative provision to prevent the courts from getting involved? I doubt that the courts would want to become involved since this is a matter of parliamentary privilege. What is the objective of that provision?
Finally, what would be the effect on all of the things we have just discussed if we simply removed section 71.14 on the final determination?
Mr. Bédard: First, with regard to section 71.14, you answered your own question. In my opinion, it indeed has the effect of a privative clause, which is to confirm—and it says this in the note—that the courts or other external bodies should not get involved in this decision because it is a decision made by the Speaker to protect parliamentary privileges. It could be argued that parliamentary privileges are the issue in any case, but section 71.14 makes things even clearer.
Now, with respect to other administrative decisions that could be made by the Speaker, all decisions made during Senate deliberations can be appealed. Points of order or questions of privilege raised in the chamber may be subject to an appeal, but the Speaker of the senate has other powers.
For example, the Speaker of the House of Commons is responsible for the Parliamentary Protective Service. In that capacity, he makes administrative decisions. The Speakers also monitor the Senate precinct; they admit people into the precinct, or they may decide not to admit them. Obviously, if the Speaker admits someone into the Senate, it is too late to appeal that decision since the event has occurred. The same thing applies if the Speaker authorizes the execution of a search warrant on the Hill. If the Senate decides that a given person cannot enter its premises, nothing prevents it from tabling a motion in that regard.
Now, if we remove section 71.14, as I was saying earlier, that provision makes the fact that the Speaker’s decision cannot be called into question outside of Parliament clear and unambiguous. If ever that were the case, parliamentary privilege would be invoked; in fact, sections 91 or 92 of the bill state that Part 2 may not be referred to the courts or to the Information Commissioner. So, there are very few remedies against a breach of the Access to Information Act by Part 2. However, I note that section 71.14 concerns not only the Speaker of the Senate, but also the Speaker of the House of Commons. So, if there is an amendment, it will affect both houses.
Senator Pratte: If I understand correctly, according to your understanding of section 71.14, this is a privative clause that does not aim to prevent parliamentarians from acting, which would be ironic. That is not the objective of the section, to say the least.
Mr. Bédard: Agreed.
Senator Pratte: Could we reword the section to make it clearer? I don’t know; I’m asking the question.
Mr. Bédard: Of course, that is possible in the course of the legislative process. If there is an ambiguity in the provisions which the senators would like to change through an amendment, that is the time to do so.
[English]
Senator Batters: I think it’s important to go back and remember how this originally arose.
I raised it at the October 2018 meeting where the Minister of Democratic Institutions, Karina Gould, was here with a senior Privy Council Office official. The reason I was asking her about this particular issue is that I was, frankly, shocked that the Minister of Democratic Institutions had such a limited understanding about the significant differences that exist between the Speaker of the Senate and the Speaker of the House of Commons.
It was pretty clear from their explanations that day that a fundamental misunderstanding went into the drafting of this very section. The view that they expressed that day was the Speaker of the House of Commons and Speaker of the Senate were the same and that both were the final decision maker of their chambers. That is not the case.
The Senate Speaker is one among equals, and the Senate Speaker’s decisions are not final. They are always able to be appealed to the entire Senate.
Also, the method of appointment of the Speakers is a very important distinction here. The House of Commons Speaker is elected by the members of the House of Commons. The Senate Speaker is appointed by the Prime Minister of Canada and has a very important diplomatic role and is very high up in the order of precedence. That always must be remembered here.
Proposed section 71.14 states:
A determination by the Speaker of the Senate, the Speaker of the House of Commons or a delegate of either Speaker that a publication would constitute a breach of parliamentary privilege or could compromise the security of persons, infrastructure or goods is final.
Those last two words — “is final” — are very important. There is always an important rule of statutory interpretation that words need to mean something. To have that particular section talking about how it’s a final determination must be remembered.
If this section stays as is, my major point of contention is that in an access to information appeal, we could have a final decision dealing with a matter for the Senate that would essentially be determined as a final matter by the Government of Canada. Because that is what, in essence, the Speaker is.
Also, there was a fundamental misunderstanding in the role of the different Speakers in that the minister that day and the senior Privy Council official both told me at committee that both Speakers have significant administrative roles regarding the Senate. The Senate Speaker has a significant role regarding the Senate’s financial information. They called it the administrative head.
They had no idea that the House of Commons Speaker and Senate Speaker have major differences. The Standing Committee on Internal Economy, Budgets and Administration is actually the head of all types of administration for the Senate other than security. That’s an important distinction that came out.
Our current Speaker, Senator Furey, is not even on the Internal Economy Committee right now, so he has no real role as administrative head in that respect. Neither the minister nor the Privy Council head knew that.
I don’t think the fact that the Senate Speaker is appointed by the Prime Minister of Canada — it can’t be glossed over here, in looking at this section, for the sake of one of the major factors you put forward in your brief, Mr. Bedard, which is convenience. We could be dealing with a situation of prorogation, adjournment or something like that.
For the Senate to be properly considered an independent body, we can’t have these types of final decisions for the Senate essentially made by the Government of Canada. I think it’s pretty clear that the Government of Canada made an error in drafting this proposed section because they fundamentally misunderstood — those who were drafting it. I mean, you have the minister herself and a senior Privy Council official — that’s who they sent us to answer questions on behalf of the Government of Canada. And they made an error. We are now potentially in a situation where the Senate, as an independent body, would be subject to the Government of Canada’s decisions, which I think is totally inappropriate.
As well, if we are dealing with a situation of prorogation, we haven’t had a prorogation in three years, so it doesn’t necessarily have to happen in that frequent period of time. I have heard a few people say that maybe the Senate will need to change its rules to accommodate part of this bill. Why? Because the Government of Canada messed up the bill in this way? Frankly, we have had many meetings on this bill and we are constantly seeing additional problems with it.
So, I don’t think we need to change our rules to deal with this, or what they might have meant on this for the Senate. We heard from the minister and her senior official what they meant. They didn’t understand it.
I appreciate your opinion. You haven’t convinced me. I don’t think that convenience should be a major factor in this. You talked about committees being masters of their domains; I think the determinative factor should be that the Senate needs to remain master of their domain and not have the Government of Canada be master of their domain.
Also, I’m a little surprised the Government of Canada hasn’t provided us as vigorous of a defence as a lawyer who currently works for the Senate. I’m surprised the Government of Canada hasn’t provided us, one, with more of an explanation. I know we asked you to provide one, but we haven’t heard “word one” from the Government of Canada to try to justify this, and I think it’s because they recognize they made a mistake.
Mr. Bédard: I was not trying to convince you that this committee could not make another decision. I addressed this particular point in my presentation to the committee. If the committee wants another person or entity to make that determination, this is, of course, a change this committee could address in the legislative process.
I read the debates to which you refer. There was some misunderstanding about the administration of the Senate. Indeed, there are differences between the Speaker of the Senate and the Speaker of the other place. You mentioned the fact he is appointed by the Crown and not elected by the members. It is indeed a distinction.
That said, even in the other place, the Speaker’s rulings are not final on questions of privilege. The same process would apply. If a question of privilege is raised in the House of Commons, then the Speaker will rule on the prima facie merit of the question of privilege. They would go through a similar process and, ultimately, it would be for the chamber itself to decide whether or not a breach of privilege has occurred. It’s the same process in the Senate.
The question I was attempting to answer in the briefing and today is whether or not the relevant provisions of C-58 are inconsistent with the Senate’s rules and practices. My conclusion is that they are not inconsistent. That said, there might be other options that honourable senators might want to explore.
Senator Batters: I want to address one final thing. I think you were saying earlier that proactive disclosure would be an issue for the Rules Committee. Is that right? Because it’s actually Internal Economy.
Mr. Bédard: I agree with the fact that it is Internal Economy. If I mentioned the Rules Committee in that respect, it was a mistake. It will come under CIBA.
Senator Batters: Thank you.
[Translation]
Senator Dalphond: Mr. Bédard, thank you for staying with us a bit longer. I know that you will soon leave for the other place. I have really appreciated your comments. Your explanations were always very clear. You express yourself very well.
I will use four points to summarize my interpretation of the act in light of the principles and your opinion, and you will correct me if I’m wrong.
[English]
First, the bill enacts specific obligations, including proactive public disclosure. This is a statutory obligation. This is going to be binding upon senators as well as members of the other place. That might be an infringement of the privileges as they can be described in the past, but the law will now say what they have to do with their budget and what they have to disclose. That will be the statutory obligation.
So if they don’t comply with this statutory obligation, it’s unclear exactly what will happen. The minister referred to what I describe as a code of honour, and she said yes to that, which to me is a deception because it should be more than a code of honour. It should be something that is possible to enforce.
The commissioner said that she would like to maybe have a role in supervising, making sure the departments comply with it. I don’t know if somebody could go to a court and ask for a mandamus against a department that, after a year and a half, has not published one single quarterly report. That is clearly in breach of the law because there must be expenses over a period of time.
There remains a lot of grey area about what if compliance is not done. That is the first point. But this is a statutory obligation, and that changed the law about parliamentarians and the extent of what they have to provide or not. The law speaks and parliamentarians are bound by it.
Second, the Speaker’s decision is only to prevent disclosure. It is not to say there is a privilege at risk here. Disclosure will apply. So the safety valve here is only a way to escape the law. It is very limited. It is an exemption.
Because there is this mechanism to prevent what is otherwise a statutory obligation to disclose, then the law goes further and there is the third point that the decision of the Speaker is final according to the law. It’s final according to the application of Bill C-58. It’s final according to a court that might be asked to look at Bill C-58.
That’s the thing. It’s part of the scheme: the statutory obligation, possible potential exemption, and the final decisions of those who grant the exemption, that being the Speaker of the House of Commons or the Speaker of the Senate. That said, the privileges of this house to conduct its business, to review and to decide how to handle disclosure remains fully with the Senate.
It’s my understanding that the Senate could adopt rules and guidelines about disclosure next week or next month once we have passed Bill C-58 in order to decide what we should be disclosing, in which case the privilege should be raised by the Speaker, and the Speaker will be bound by the honour code again. If the Senate has voted on guidelines, the Speaker will act accordingly.
I assume that when the Speaker is asked to decide whether disclosure should be made or not, it’s not because he is looking at the disclosure reports. It’s because someone is knocking on his door and saying, “Please prevent this disclosure.” I assume the senator will be knocking on his door and saying, “I don’t want this to be disclosed because I think it breaches my privilege as a senator.”
The guidelines should provide that before the Speaker provides such an exemption of the statutory obligation, he shall consult with the person involved or concerned. Maybe he should consult with the committee or other people. It’s up to the Senate to decide that.
I also understand that it will be up to the Senate to blame the Speaker if at one point they realize they exempted somebody from disclosing something and then we find out in the media or three months later that something happened, the house as a whole could blame the Speaker. It’s my understanding that CIBA or another committee could decide to release what was not released.
For me, when I read your opinion, and if my understanding of the four items I have described is correct, there is no problem. As a matter of fact, we are just providing a mechanism to prevent automatic application of the law, a mechanism available on a yearly basis, even when Parliament is dissolved or during the summer when everybody will be campaigning, including my colleagues from the other side, across the country. We will be gone, but the Speaker will be here until the next Prime Minister decides who will be the next Speaker of the Senate.
So that is the situation. We need an officer who can prevent the exemption at any time. The house cannot provide it because the house would not be available. This is done on a quarterly basis. For me, this is a fine mechanism that balances well what has to be balanced, statutory obligation to disclose, with mechanisms to prevent a case where it would be a violation of the real privilege of this place.
Is my understanding wrong? Am I misreading your opinion?
Mr. Bédard: You just summarized my opinion more eloquently than it was written or that I presented it.
Respecting the first point, we will refer to it as the shaming power, even though it’s not clear what kind of court action could be taken if there is a breach of Part 2. The matter could be raised during a committee or publicly and there is this shaming power available.
The safety valve is, in my opinion, what the provisions on parliamentary privilege in Bill C-58 are all about. Respecting that the Senate has a final say on all questions of privilege, Bill C-58 does not change that. Let’s say you were to deal with a rogue Speaker, it would only take a few days or, at worst, weeks because the Speaker, even if he is appointed by the Crown, could not operate properly in the chamber if he or she did not have the confidence of senators.
Senator McCoy: Congratulations on your new job, Mr. Bédard. I understand you are joining some of your former colleagues over in the House of Commons. We will happily run into you from time to time in the years to come.
I want to look at section 79.52 of the Parliament of Canada Act, page 3 of your brief. I’m trying to remember what year that was passed. It was about five years ago, I think.
Mr. Bédard: It was just before dissolution, if I recall correctly, in 2015.
Senator McCoy: So it’s quite new.
In looking at the wording, I’m afraid that probably we didn’t proofread this section well enough in English because it says, “as the custodians.” In English, when you say “the,” you tend to mean “exclusively.” It’s specific as opposed to being one of many. That’s certainly the construction you are putting on it here.
Help me on the French. It seems to me that a translation of the French version of this section says, “acting in the capacity of guardians”; it’s plural. It’s meant to qualify how they conduct their business or their purpose of it, in a sense. I think that was a mistake. We let that one go, just to point that out.
In terms of tradition, I was hoping you would go back to the beginning and trace the traditions of the Senate forward from 1867. As you probably well know, the Speaker was not allowed to intervene in proceedings in the chamber, even unless invited by the senators, until 1906.
We have always maintained, as one of the hallmarks of the Senate, that we are equally responsible for the Senate and its privileges. So I put that on the table; it was very limited empowerment of the Speaker.
I understand that it is an administrative question of practical terms, and I agree with that. It just seems to me that there are easy ways to fix this. I don’t think we should be giving delegating power to the Speaker on such an important phrase, especially at the moment when the courts are beginning to define privilege.
I’m sure our chair will know this better than I do, and I think other senators around the table on this committee are probably following the evolving boundaries that the courts are beginning to put on parliamentary privilege. So in that kind of a transition, I would prefer to have many minds. What is that expression? Cognitive diversity.
That’s my intervention, chair.
[Translation]
Senator Ringuette: I would like to come back to the idea of delegates mentioned in the English version of proposed section 71.14 and not in the French version. Does the Parliament of Canada Act contain provisions whereby the Speaker of the House of Commons or the Speaker of the Senate can delegate certain authorities? We have to decide on the issue to determine whether we accept the English version, which makes it possible for either Speaker to appoint a delegate, or whether we accept the French version of the proposed section, which does not mention that power.
Does the Parliament of Canada Act contain provisions whereby the Speaker of either chamber can delegate issues related to security, infrastructure or parliamentary privilege? I assume you have looked into this.
Mr. Bédard: First, regarding the wording of proposed section 71.14, it does say “a delegate”. According to my interpretation of that provision, a public servant, a law clerk or another senator, potentially, would have been delegated by the Speaker specifically to fulfill that duty. In itself, proposed section 71.14 is an enabling provision, the provision that authorizes the Speaker to establish that delegation.
There are other provisions in the Parliament of Canada Act that focus on delegates, including when it comes to the Senate, such as certain provisions on the Acting Speaker. When the Speaker is absent, the Acting Speaker or the Speaker pro tempore can take the Speaker’s place, but only in Senate proceedings.
Senator Ringuette: That does not concern privileges, security or infrastructure. Here is why I’m asking this question. Does the Parliament of Canada Act contain provisions whereby that delegation is possible, like in the English version of proposed section 71.14, yes or no? Basically, is this an error in the English version?
Mr. Bédard: I don’t know whether the lack of other delegation powers means that there is an error in the English version of proposed section 71.14. What is an error is the inconsistency between the two versions.
I was referring to the fact that the law clerk can perform the role related to parliamentary privilege for disclosures, or someone else could be delegated by the Speaker, but there are no other provisions in the act to identify the individual who would have determination power. Does that answer your question?
Senator Ringuette: No, that does not answer my question because your arguments with regard to the responsibilities of each chamber’s Speaker were based on responsibilities established within the Parliament of Canada Act, which is something I completely agree with. However, I am trying to figure out whether, when it comes to parliamentary privileges, security of persons, infrastructure and goods, the Parliament of Canada Act bestows the power on either Speaker to delegate that activity. That is my question. Does the Parliament of Canada Act contain the same wording as this proposed section?
Mr. Bédard: The Parliament of Canada Act certainly does not contain the same style of wording. One of the things the Speaker will be in charge of will be the Library of Parliament with the Speaker of the House of Commons. They can also be in charge of the Parliamentary Protection Service. Once again, when it comes to the Parliamentary Protection Service, the director also has duties under the Parliament of Canada Act. So all the laws or the mechanics or the different government machinery apply because entities and organizations are being implemented. Of course, if we are talking about the Parliamentary Protection Service, the Speaker does not do everything; there is always a set out or implicit delegation power, such as financial delegation.
However, in the specific case of proposed sections 71.12, 71.13 and 71.14, that decision would be made by the Speaker or, if I look at the English version of section 71.14, an individual who would have been delegated specifically by the Speaker to make such a decision. The reason the term “delegate” is mentioned in proposed section 71.14 is specifically to give weight to the decision, so that it could not be questioned outside Parliament.
Senator Ringuette: Let’s talk about security of persons. If the group or individual in charge of Senate security makes a decision on the security of senators, if we pursue this line of reasoning, could that decision be disputed before a court?
Mr. Bédard: In part 2, section 71.14, it is strictly a question of proactive disclosure. The rest of activities could not be brought before courts, unless parliamentary privilege applied.
Senator Ringuette: Thank you. I now understand very well.
Senator Pratte: As we are talking about the Parliamentary Protection Service that, in the Parliament of Canada Act, is clearly placed under the responsibility of the Speakers of the two chambers, could a decision made by the Speaker of the Senate or by the two Speakers be appealed in Parliament itself? For example, if parliamentarians decided that too many identity card readers are installed in a building—that’s just an idea I got—could Parliament overrule a decision made by the Speakers with regard to the Parliamentary Protection Service?
Mr. Bédard: You are bringing me into unchartered territory, and that has been the case over the past 90 minutes.
The bill does not provide for appeal, and the responsibility for the service belongs to the Speakers. The director of the service also has responsibilities when it comes to the Parliamentary Protection Service. Those are decisions that cannot be appealed before the chambers or the Board of Internal Economy, for example. There is no right to appeal. However, you know about the power of consultation on the Hill. Of course, anything done on the Hill is always preceded by consultations. The Speakers will exercise their power for senators, as well. If something illegal was done within the service—and I’m not necessarily talking about the Speaker—be it a grievance or something else, common law would apply, as is the case for all other entities created by the law.
Senator Pratte: Okay, thank you.
[English]
Senator McCoy: Mr. Bédard, with regard to your reference to the security of persons and the decisions being final, I was struggling to find a section that gives the Speaker that authority. Maybe you can elucidate that for a moment.
It’s more or less your question, I think, Senator Pratte. In other words, if in the hypothetical case it was determined that there are not enough locks on the doors in the new building — I have discovered three that are not locked — and the Speaker made that determination, we would have no authority to overturn that decision.
Mr. Bédard: The Speakers are jointly in charge of the service. That being said, within the jurisdiction of the Standing Committee on Internal Economy, Budgets and Administration the premises are made available to the senators under the jurisdiction of the Internal Economy Committee. The fact that the Speaker is in charge of PPS, in my opinion, does not mean that he can decide everything that is taking place within the parliamentary precinct. He is in charge of the service. They have responsibility over the service and the security on the Hill and within the precinct. It is different from deciding how many locks do we put on a given door or how many times we have to scan. Those are different issues.
Senator McCoy: It’s interesting, when talking about the security services, that the Speaker is enjoined by section 71.1(3) to consult, after receiving the advice of the PPS or any administrative unit of the Senate or the House of Commons. Again, it is just cutting out the senators totally. These are major decisions. Would you agree?
Mr. Bédard: There is indeed no reference to senators in 71.1(3). I have the same understanding of that reference.
Senator McCoy: It completely cuts out any input from senators or from the administrative body which given status is under the Parliament of Canada Act which is the Standing Committee on Internal Economy, Budgets and Administration.
Senator Gold: I didn’t want to make my comments to interrupt the flow of analysis, but I wanted to return to something said earlier by Senator Batters. We are grateful to you for raising the issue because it’s an important one as we can tell from the length and depth of this conversation.
You have a deserved reputation for choosing your words carefully and with clear intent, but I want to invite you to reconsider some of the words you used when you were describing the Speaker. On a number of occasions after correctly noting that the Speaker is selected by the Prime Minister, you described the rulings of the Speaker as rulings of Government of Canada. Respectfully I want to suggest that you may not have intended to characterize the Speaker as the government, because I think it’s incorrect and misleading. Frankly I think it’s disrespectful to the current Speaker and future Speakers. I don’t want to assume that is what you intended. I want to give you the opportunity to clarify the record.
Senator Batters: Thank you. As I indicated in that October meeting, I never in any way indicated that the rulings of the Speaker of the Senate are rulings of the Government of Canada. However, it’s incontrovertible that the Speaker of the Senate is named by the Prime Minister of Canada and he plays a very important diplomatic role because he is a representative of the Government of Canada. It doesn’t diminish his or her role in any way. But that is a fact that the Speaker of the House of Commons is elected by their peers and other members of the House of Commons and the Speaker of the Senate is a government appointment. It doesn’t diminish their rulings in any way, it is just a fact.
I didn’t say what you indicated. I said earlier that this would be essentially a situation where that particular decision, on an important matter concerning the Senate, would then be essentially made by the Government of Canada meaning that a Government of Canada appointment. That’s what I precisely meant by that. In no way did I mean any disrespect. I’m just pointing out the facts. It doesn’t matter who the Speaker is or what government appointed that person, but to give up any matter of independence for the Senate to have the Government of Canada to make a final determination is dangerous no matter who the Speaker is or the government. It’s an important issue.
It is required by the Constitution that the Speaker be appointed by the Government of Canada. So we want to make sure that the laws that we are putting into place properly reflect the distinctions that have been made for 150 years in this country.
Senator Gold: Thank you for clarifying that because I did not want to assume you meant any disrespect. But I do stand by my point that the decisions made by the Speaker are not decisions by the Government of Canada. They are decisions by the Speaker, an independent senator as we are all fond of saying. It’s an important distinction certainly for Canadians who are watching.
[Translation]
The Chair: Thank you for being here, Mr. Bédard. This may be the last time you will appear before our committee as the law clerk of the House. I would like to thank you on behalf of all my colleagues around the table for your availability, your cooperation and your kindness. I would especially like to thank you for the quality of your professional services. On behalf of all my colleagues, thank you for appearing before us this morning, and I wish you every success in tackling the other place in a context that is definitely not as friendly as the one you have experienced this morning.
(The committee adjourned.)