Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 4 - Evidence - April 21, 2015
OTTAWA, Tuesday, April 21, 2015
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:34 a.m. for the consideration of a report of the Subcommittee on Parliamentary Privilege.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: Good morning. I want to welcome everyone to the first Rules Committee of the post-break period and thank everyone for being here today. As everyone knows, we are going to be moving into a study period on parliamentary privilege that actually flows from work that's been done by the Subcommittee on Parliamentary Privilege. The subcommittee members are Senator Furey, Senator Nolin, Senator Joyal, Senator McCoy and me. I want to thank everyone for their participation and robust discussions. I'll ask Senator Furey to start off as he was the chair of the subcommittee on our journey.
Senator Furey: Colleagues, my intention this morning is to give a brief overview of the evolution of the report and then invite discussion on how to proceed with respect to an analysis of the report. One year ago in April, the Rules Committee approved the establishment of the Subcommittee on Parliamentary Privilege. The subcommittee met on a number of occasions to discuss parliamentary privilege in Canada. The report that you have received is intended to serve basically as a tool to invite discussion on the future of parliamentary privilege in Canada.
I think everybody knows that parliamentary privilege is an essential component of parliamentary democracy and exists to enable Parliament to function effectively and efficiently without undue impediment. It was originally developed in Westminster as a means of preventing interference by the sovereign in the workings of Parliament and has developed in parliaments throughout the British Commonwealth. In Canada, it's enshrined in the Constitution Act, 1867, at section 18 and through its preamble, and is further confirmed in section 4 of the Parliament of Canada Act.
The need for this study basically is that Parliament has evolved significantly since parliamentary privilege was originally developed to prevent interference by the sovereign in the workings of Parliament. We've learned from a number of judicial decisions, in particular from the Vaid decision, that it's expected that Parliament operate in a contemporary context and, therefore, the concept of parliamentary privilege should be studied and reviewed in a contemporary 21st century context. That's basically the underlying purpose of the study.
The research document we have presented centres on how privilege should be exercised in a rights-based legal system exemplified in Canada by the Charter. We propose and the subcommittee proposes to evaluate the various collective and individual privileges exercised by parliamentarians by analyzing four basic questions: First, is the privilege necessary to protect parliamentarians in the discharge of their legislative and deliberative functions and Parliament's work in holding government to account for the conduct of the country's business? Second, does the contemporary context provide reasonable limits on the scope and exercise of the privilege? Third, how can this privilege be exercised to respect the values and principles expressed in the Canadian Charter of Rights and Freedoms? Fourth, how can the scope and exercise of this privilege be aligned with the standards of transparency and accountability essential to Parliament's public reputation?
I'll ask Senator Joyal to make a couple of quick comments as well; but basically we would like discussion from the committee around how to analyze these questions on a go-forward basis in terms of what witnesses we would call and how we would present information on the exercise of parliamentary privilege in a contemporary context.
Senator Joyal: Thank you, Senator Furey.
It would be fair to mention to the members of the committee that we have had multiple meetings in relation to the report.
I think it is worthwhile to also mention that an initiative taken on the Senate side has an impact on the House of Commons side. That is very important because the privileges in the Senate are exactly the same as the ones that exist in the House of Commons. It's provided for in section 18 of the Constitution Act 1867, as Senator Furey mentioned, and it is also provided for, of course, in the Parliament of Canada Act. In other words, any claim of privileges that we might claim for senators would exist at par on the House of Commons side for the simple reason that we are both comprised of parliamentarians and both legislatures are at the same level in the same legislative initiative.
It is important to remember that this report is the first report that has been produced in the last 30 years in relation to parliamentary privilege. In other words, we on the Senate side cannot resort to studies they would have made or conducted on the House of Commons side to learn their perspective on parliamentary privilege. In fact, in 2003, when the Supreme Court gave its unanimous decision in the Vaid case, it relied more heavily on the Westminster report on parliamentary privilege dating back to 1999 than on any Canadian sources of doctrine or reports or comments or intervention. For obvious reasons, as you will see in section 18, our privileges are modeled on the basis of what exists at Westminster. In other words, we can claim the parliamentary privilege that exists at Westminster, no more and no less.
When we claim a privilege, the Supreme Court determined that the criterion to analyze is the necessity test. In other words, is the privilege claimed by a house or a parliamentarian necessary for the performance of the legislative duty; yes or no. The question is easy to understand. For instance, freedom of speech: It's quite clear that any senator, any member of Parliament, should be able to speak freely on any issue, expressing whatever opinions he or she might have. In other words, freedom of speech is a fundamental requirement for any parliamentarian in the performance of his or her legislative duties.
Once the necessity test has been applied, that is, once the court has come to the conclusion that the privilege exists, then it is up to parliamentarians themselves to determine the limits to the exercise of that privilege. I'll give you an example that is easy to understand: the disciplinary power that exists within each House of Parliament. As you know, we have an ethics and conflict of interest code, and it is the responsibility of senators collectively to adopt those rules and to implement those rules. In doing so, no court of justice can intervene to impose a sanction or to push the Senate to intervene on the conduct of a senator. It is solely within the purview of the Senate or the House of Commons. It is exactly the same for a court of justice. No parliament can, for instance, establish a court of disciplinary function for justices in any of the courts. It is for the court to determine the discipline of the justices, as much as it is for us to determine the conduct of parliamentarians.
Of course, in conducting those investigations, which principles should parliamentarians follow? Which principles should we feel bound to respect? It's quite clear that if any citizen that goes in front of a court of justice is protected by the principle of natural justice or is protected by the principles of the Charter, section 11 of the Charter against cruel and unusual punishment. Any citizen that goes in front of a court will be protected by the Charter, but is a senator protected by the Charter in the context of his or her investigation? It is up to us to determine the principle of natural justice that we will follow in relation to the conduct of a senator in relation either to conflict of interest or to ethics. It is up to us to determine the level of respect of natural justice or the Charter in regard to the principles of transparency and accountability.
When we exercise those functions of discipline, for instance, we are more or less seen by Canadians generally as being a model of professional conduct that would be followed, for instance, in the bar association or in the doctors' association, or by architects or engineers. They are bound by the Charter, they are bound by the Human Rights Act, and they are bound by the principle of natural justice. When we exercise a similar function, we want to appear — I would not say as a role model, but we want to maintain the highest level of credibility in the performance of our privileges.
Those issues are, in my opinion, very important. In fact, there are two points I want to raise to illustrate my assertion. The first one is the decision of the Supreme Court last week in relation to prayers at municipal council meetings. You will notice that the Supreme Court, in its unanimous decision, said it is up to Parliament to decide if they want to pray, yes or no. From then on, in the municipal council, we conclude that the prayer is not admissible. In the context of Parliament, the Supreme Court could not tell us what to do, no more than we could tell the Supreme Court or the courts of justice what to do in their court. They are masters of their court as much as we are masters of our own proceedings. If we want to have a prayer and have it forbidden for all the municipal councils, that's fair. As long as we are aware that in the municipal council it is forbidden, we might want to review or think twice about the prayer and how it should take place either in the House of Commons or in the Senate. It is an important case and parliamentary privilege was mentioned in the court decision.
There is, of course, another issue, and I say it very candidly. You know, when I raise an issue and I say I'm being candid, you know it is an issue that will interest each senator. I refer to the Auditor General's investigation. If the Auditor General comes forward with a conclusion defining the role of a parliamentarian, in my humble opinion, he is moving on the ground of parliamentary privilege because it's up to parliamentarians themselves to determine the scope and the responsibility of a parliamentarian. He might make recommendations to us, but it's certainly not the Auditor General who will decide the scope of the parliamentary privilege and the responsibility of a senator in the performance of his or her duty as a parliamentarian. This issue will certainly, in my opinion, unless I live on another planet, be the object of comment. I don't know what the scope of the comments will be but, frankly, when I read the text that was handed to each of us by the Auditor General when he entered into functions in relation to the investigation of the Senate, I thought it had a very narrow interpretation of the responsibility of what is a parliamentarian. I wrote him a long letter of six pages whereby I explained that the role is much wider. Of course, I got an acknowledgment of receipt, a "thank you'' letter, but when the report comes forward it will be up to us to determine what is admissible and what is the nature of the responsibility that pertains to a senator.
I don't want to discuss that matter. Of course, it's not the object for today, but it is to show you that parliamentary privilege is a very important issue that might confront us at any given time without us wanting to approach it. In those two cases, it's quite clear, as Senator Furey and Senator White have mentioned, that it is very important to have that study now, because it will be helpful in the months to come to have some parameters of reflection in relation to the decision that we are going to be called on to take in relation to the scope of our duties as parliamentarians — what is admissible, what is not, and of course what is the scope of the initiative we want to take and how we can explain it in the forum of public opinion.
If we claim that we have such a privilege, we have to be able to explain it; we have to be accountable for it; we have to be able to be transparent about it; and we have to be able to show how it reflects the other principles of justice, natural justice and the Charter that regular citizens are confronted with if he or she is placed in a similar position outside of parliamentary activities.
I think it is a very important initiative. The report is extensive. Again, I conclude it's the first report that has ever been published in the last 20 years, at least, by either house of the Canadian Parliament. I think it will be helpful to provincial legislatures because they also have privileges. But if you look into the literature of what is the parliamentary privilege in relation to the legislative function of the provinces or of the Canadian federal Parliament, it's very limited. In fact, the Vaid case is about the only real text of reference that we might have. Other court decisions have been handed down since then, but they are very in the air, not consistent in terms of the conclusions reached. I think it is important for the Senate to be able to take a stand on that and further study this issue in relation to the need we will have to address in the very short term.
The Chair: Thank you, Senator Joyal. Interesting to note that no other parliamentary legislative body in Canada has taken this issue on, although other commonwealth jurisdictions — United Kingdom, Australia and New Zealand — have at least started and they have asked us for opinions, so I think it's timely that we do the same and try to help frame it, if we may.
Senator Furey: Just to refresh colleagues' memories, before we open for discussion, the rights and immunities associated with parliamentary privilege include the rights of individual parliamentarians, as well as witnesses at committee hearings, from outside impeachment for anything said during parliamentary proceedings; the collective rights of both houses to regulate their own affairs related to their debates and proceedings; the collective rights of both houses to sanction or discipline for breach of their privilege or for contempt; and a freedom of individual parliamentarians from arrest and civil actions; and related privileges.
So we'll open for discussion, unless Senator White, you as a member of the committee had something to add.
The Chair: I think it is important, although we are moving late into our parliamentary sitting, that we do move this matter forward and try to allow it to gain a foothold. I know some may say that it's a bit late to do this, but I think it is important that we try to start the movement if we can. Whatever happens after the election in the new Parliament, the new committee can decide. They may continue with it, but I think it's important that we not just leave what we have done so far.
Senator Cools: Colleagues, welcome back. As you know, privilege is a large issue in Canada. It has been one of the most neglected questions by parliamentarians, but in the history of the study of privilege, which is right now quite ancient in Canada, we, the Senate, have always had a privileges committee. I opposed when the name of this committee was changed from the committee of privileges to Rules, Procedures and the Rights of Parliament. I did not think that was a wise or good thing to do at the time because it just moved the term "privileges'' away from our view.
I think that we should be proceeding very cautiously on this file. I have concerns with two or three or four senators coming up with some good ideas, running them through in subcommittee, and before you know it, the larger committee has adopted them and all of a sudden they are before the chamber. I have always been told and taught in my years of experience that major changes on major issues and questions like privilege should always begin in the chamber with a debate so that all the members can get acquainted with the issues. I am just wondering if the chair could tell us why this large issue — and I commend Senator Joyal for bringing it forward — did not begin in the chamber as a Senate debate that could go on for a few months and then get a reference from the Senate to this committee, which would allow us to be a lot more focused.
To my mind, yes, some of these issues here are privilege issues. The largest issue of today is not interference from the sovereign; it is interference from the government. Not one of those is mentioned. That issue is not mentioned at all here. Someone once said that it took 700 years to wrest certain powers from the king and 50 years to give it to a prime minister. This is a huge problem in contemporary parliaments. I would like to see it addressed or at least treat it as an issue to be addressed.
Colleagues, when one says here that there have been no problems with freedom of speech, that is not accurate. In this place we have had occasions where some members could not get to speak, being frequently cut off during debate, so that is not the case at all. Freedom of speech in statutory form comes from the Bill of Rights 1689, article 9. This says that proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. Few people seem to understand, and we should do the research on this, that that article has its origin in the fact that the then Speaker of the House of Commons — I think his name was Sir William Williams — was charged and prosecuted in a court. This article 9 was a direct result of that court action.
We should get some ideas and some greater understanding of the origins of these privileges before we rush in with great enthusiasm to make them fit into the 21st century. The 21st century problems that are facing the houses are not as a result of the interference of the king. As a matter of fact, it is the subversion of the principles of the king. I think we should put this right up front, as there are more people being hurt in these institutions by caucuses and ministers' staff than by anything else. Why is it, for example, that certain members cannot get on committees of their choice? Who decides all of this?
Who decided to bring the Auditor General into this place? Do not tell me it was the Senate. This audit is a great breach. That is probably the greatest breach of our privileges we have experienced for a long time. It is huge, and the Auditor General came here on the strength of a government motion, government business taking priority and a government whipped vote, moved by a government minister. That is a huge breach of privilege. I think it is about time that we looked at privilege. I thank Senator Joyal for raising this.
Colleagues, the questions that are before us as pressing issues of the day, we have not even begun to touch in some of these papers. I would very much like us to examine them. To do that, we could have a parallel debate in the chamber. This would allow senators to raise issues, to put opinions forward, but most important of all, to do the research that is required. There are two questions that most members know virtually nothing about. One of them is the whole system of privileges. The other is what I would call the "national finance,'' being the workings of the appropriation acts, the whole supply process, the public revenue and the public expenditure. Few have much comprehension on these. I'm looking at Senator Tkachuk because for years Senator Tkachuk was Chairman of the National Finance Committee, and he knows exactly the kinds of problems that arrive annually in those critical supply periods, especially the March 31 turnaround period.
Colleagues, before we rush to judgment, we should canvass more widely what other people think and have a wider debate in the chamber. I am very respectful of the fact that some senators have done a great body of work. That is very good thing, but I would have loved the opportunity to have been included in that, if we really want to talk about privileges.
The Chair: Thank you, senator. Just so we're clear, the body of work that has been done is strictly one stone in a large foundation.
Senator Cools: I know and you know what the foundation is. You know what the stone is, and some people know where they want to go. I would love to be a part of that discovery.
The Chair: I'm sure you will be part of this discussion.
Senator Cools: Well, I will insist.
Senator McIntyre: First, congratulations to the subcommittee. Senator Furey, you're right: As I recall, it was approximately a year ago that this committee approved the establishment of a subcommittee. I understand that you've met on several occasions; so congratulations. I haven't had a chance to digest the whole report, but I sort of skimmed through it.
As I understand, it's a discussion paper — a framework. From what I understand, we're to use this framework to evaluate various rights and immunities associated with parliamentary privilege. In reviewing the list of rights and immunities associated with parliamentary privilege, I was kind of surprised to learn that freedom of speech included witnesses at committees. I didn't know that. That was a shock to me, which is really interesting.
The only other comment I want to make is that Senator Joyal spoke of the necessity test coming from the Supreme Court of Canada's decision in Vaid. That is the first step, as I understand; but we have to go further. As noted in the report, the greatest challenge facing parliamentarians is determining how those privileges should be exercised.
Senator Furey: Thank you very much for your comments, Senator McIntyre; and I agree with you wholeheartedly. I don't think anybody would argue that freedom of speech is necessary for the functioning of Parliament. To bring it into a contemporary context, we have to start analyzing it and when it bumps into, for example, the Charter of Rights and Freedoms, at what point you can be held accountable for saying something that is not necessary to our functioning as parliamentarians. That's where we want to start focusing.
As Senator Cools said, and I think I stated in my opening remarks, one of the questions that we want to analyze is whether this privilege is necessary to protect parliamentarians in the discharge of their legislative and deliberative functions and Parliament's work in holding government to account, not the sovereign, as Senator Cools rightly pointed out, but holding government to account.
Senator Tkachuk: Thank you very much, Senator Furey. I've just a couple of comments, and maybe you can comment on them. I agree with Senator Cools that parliamentary privilege should be looked at seriously on a number of issues, one of which is Officers of Parliament, like the Auditor General.
Senator Cools: That's huge.
Senator Tkachuk: That is a huge issue. I'm not sure whether you looked at the sort of difference. Today, when someone abuses the right of freedom of speech it's not isolated, as you well know. It's now extremely public. In the House of Commons, they have the best kind of punishment. If the electors don't like the MP, they throw them out. In the Senate, we have a more serious problem in the sense that we're here and you can't throw us out.
I shouldn't say it's easier, but the final punishment of being thrown out is not available to the electorate, not available to the public. We should look at the differences of how we approach parliamentary privilege for both an elected body and an appointed body like the Senate.
I was surprised about the question of the limits on provincial legislatures. In the federal system, according to our Constitution, they're responsible for health care, social services and the administration of justice. They have their own supreme powers apart from ours. I think they'd be very interested in cooperating in any study that we would undertake.
It's important, again to Senator Cools' point if we are going to continue on this, and I think we should, that there are plenty of people we could ask to come before us. I think we should see if it's possible to have a Committee of the Whole on this for at least one or two sessions so that all senators can be involved in the discussion. I think we'd learn a lot and I think they'd learn a lot. I'm a big advocate of using more Committees of the Whole. I keep talking to my leadership and other senators about it. I think it's a way for us to do business. It's the way the Senate used to do business. Those are the points I'd like to make and go from there.
The Chair: Thank you very much, senator. Do you see such a Committee of the Whole starting now or do you see those as, for example, when we return?
Senator Tkachuk: I think it would be a good way for us to start the discussion, in Committee of the Whole, and to bring witnesses who would provide a comprehensive, academic look at this whole question — a historical piece that we could have from witnesses, and have debate on it. We as a committee could gain some direction from other senators as to who we should invite and where we should go on this matter. I think it would be really important. It would be a great debate and really interesting.
The Chair: Senator Furey, do you have a response?
Senator Furey: It's a very interesting point you're making, Senator Tkachuk; and it's something we have to consider.
The Chair: My only concern would be timeliness. Otherwise, I'm of the same mind.
Senator Joyal: One of the objectives this morning is to try to determine the follow-up to this report. Which initiative should we take after we have this document? What would be the most effective way to enlist the Senate, as Senator Tkachuk has said, in my opinion, quite appropriately? There is an element of education in the objective that we should be serving because it is an issue that remains vague for many senators, but not because senators are not informed. As we said earlier, there is very little literature on this subject and there have been very few debates on it in past years. It would be helpful for us to start with how we should approach the next step in relation to this report, taking into account what Senator Cools and Senator Tkachuk have suggested and how we can reach the level of an open discussion on the floor of the chamber but, before that, how the members of this committee feel they should be able to grasp the issue in a comprehensive horizon. In my opinion, that is what we should try to understand to come up with some suggestions.
Senator Jaffer: I want to thank Senator Furey and the subcommittee for the extensive work they've done on this matter. This is a very big piece of work that will be with us for a long time.
I like Senator Tkachuk's suggestion of Committee of the Whole. A lot of work was done on this report, but not all of us are completely versed on the subject. Before we look at Committee of the Whole, maybe we should have one or two meetings to really get a handle on this.
Second, and I haven't talked to anybody about this, maybe we could take it to our respective caucuses and have a bit of a discussion because this is so important; and then look at Committee of the Whole.
The Chair: Senator Furey, we can share this report now, I take it, with all senators. Right?
Senator Furey: Yes.
Senator Cools: It is not a report; it's a discussion paper.
The Chair: Yes. It's a discussion paper, not a report. I agree. If we're okay with that path, and nobody has other comments, we can look at setting up a meeting next week to allow everyone to process some of this. If Senator Furey brings this to his leadership, I'll bring it to mine about a discussion in Committee of the Whole as well, if that's okay. Then, we'll return next week with our next steps. Is that agreed?
Hon. Senators: Agreed.
The Chair: Thank you very much. We're adjourned.
(The committee adjourned.)