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Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament

Issue 13 - Evidence - May 8, 2018


OTTAWA, Tuesday, May 8, 2018

The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:32 a.m., pursuant to rule 12-7(2)(c), to consider the orders and practices of the Senate and the privileges of Parliament.

Senator Leo Housakos (Chair) in the chair.

The Chair: Good morning, colleagues, and good morning to the general public. We are being televised, colleagues, this morning. I’m just letting my colleagues know that.

I would like to start off by having honourable colleagues present themselves.

Senator Batters: Senator Denise Batters, Saskatchewan.

Senator Eggleton: Art Eggleton from Toronto.

Senator Seidman: Judith Seidman from Montreal, Quebec.

Senator Wells: David Wells from Newfoundland and Labrador.

Senator Frum: Linda Frum, Ontario.

Senator Griffin: Diane Griffin, Prince Edward Island.

Senator Woo: Yuen Pau Woo, British Columbia.

Senator Marwah: Sabi Marwah, Ontario.

Senator Gold: Marc Gold, Quebec.

[Translation]

Senator Ringuette: Pierrette Ringuette from New Brunswick.

[English]

Senator Greene: Stephen Greene, Nova Scotia.

Senator Joyal: Serge Joyal from Quebec.

[Translation]

Senator Maltais: Good morning. Ghislain Maltais from Quebec.

[English]

The Chair: I am Senator Leo Housakos from Quebec.

In June 2015, in the last session of Parliament, colleagues, this committee tabled a report, A matter of privilege: a discussion paper on Canadian Parliamentary privilege in the 21st century. Our committee, of course, has agreed to continue to pursue that study.

Today it is my great pleasure to welcome our witness, the Honourable Daniel Hays, to address a number of issues around parliamentary privilege.

Senator Hays was born and raised on a dairy farm on the outskirts of Calgary in what is now a suburb called Haysboro. He has an arts degree from the University of Alberta and then went on to complete a law degree at the University of Toronto.

Senator Hays was appointed to the Senate in 1984. During his parliamentary career, he has served on a number of Senate committees, including the Special Senate Committee on Senate Reform. In his time in the Senate, he also served as Deputy Leader of the Government and later as Leader of the Opposition. From 2001 to 2005 he was Speaker of the Senate.

I thank the former Speaker, Mr. Hays, for being here with us today. He has elicited a full house of senators. We’re here keen to hear your perspective on parliamentary privilege, so I turn over the floor to you.

Hon. Dan Hays, P.C., former Speaker of the Senate, as an individual: Thank you, Mr. Chairman. As I look around the table at a full house —

[Translation]

So, I am scared.

[English]

I am a little apprehensive, but I’ll do my best to deal with the topic at hand. I have a brief opening statement. Because time is precious, I understand, I will proceed to read it — it’s a couple of pages — and then we can get into a discussion. If you get tired of the presentation, feel free to interrupt me and go directly to whatever it is you want to talk about.

To begin, let me confirm that during my time as Speaker, I had limited opportunity to deal with parliamentary privilege. However, I did make 10 rulings on questions of privilege. They involved issues such as written questions, committee meetings, validity of proceedings on a bill, accusation against an Officer of Parliament, tabling of a committee report when the Senate was not sitting, and recognition of the Leader of the Opposition; also, the unequal treatment of senators under the Rules and a news release sent out by a member of the House of Commons. In only one of my rulings did I find a prima facie case of privilege, which dealt with the premature disclosure of a committee report.

During my time as Speaker, and after leaving the Senate to resume a private law practice in Calgary, I have followed you closely. It’s difficult, you’ll find when you retire, not to maintain a big interest in what is going on here. In any event, I’ve reflected on the challenges that the concept of privilege poses — not just for members of Parliament but for the public, the press, the courts and the Parliament as a collective body.

I agree with your committee’s conclusion as expressed in the recent report A matter of privilege that “privilege needs to be adapted to the current environment and modern expectations.”

Like all institutions of government — and, in particular, the Senate, which retains many antiquated constitutional provisions that may no longer serve a public purpose, and on which I have commented in parliamentary publications — there is a constant need to review the nebulous and out-of-date provisions embedded in our instruments of governance to see how they can be made better to better serve the public interest.

Unfortunately, like the question of Senate reform, the question of parliamentary privilege is all too often set aside as not being a priority. Regrettably, the time of Parliament is regarded as too precious to deal with a subject widely seen as not urgent. But, as President Kennedy once said, “the time to fix the roof is when it is not raining.” Like all matters of public policy-making, a review of parliamentary privilege should take place not during a period of crisis but during a time of relative normalcy so as to not be subject to the compromising deadlines and agendas of the moment.

I am in agreement with former member of the house Derek Lee, who wrote an important article in the Canadian Parliamentary Review in 2005, stating that there is a need for the codification of parliamentary privilege. Without a clear written code, Derek Lee said, parliamentary privilege continues to be characterized by “public ignorance, conflict with other laws and conflicts with other institutions.”

The English jurist Sir Edward Coke, in his book Institutes of the Laws of England, from 1629, referred to privilege, as well as to the many other components that constitute the procedures of Parliament, as “asked after by everyone, unknown to many, understood by few” — a truism that continues to this day, in my opinion.

The authoritative proceduralist Sir Erskine May felt there was a need to codify parliamentary privilege. He wrote in his 1844 treatise that:

. . . the present position of privilege is, in the highest degree, unsatisfactory.

Things don’t change.

Assertions of privilege are made in Parliament, and denied in the courts. . . . the privileges of both houses should be secured by a legislative definition; and a mode of enforcing them should be adopted which would be binding upon the courts.

Ms. Eve Samson, a long-time member of the procedural services in the British House of Commons, has written that since Erskine May’s time there has always been tension between the “clarity of codification and the pragmatism of an approach that leaves room for evolution, common sense, and common understanding.” I refer to her article “The Unfolding Debate with the Courts.”

In any event, I get this. I’m sure we all do. However, I agree with the findings of the 1999 joint committee in Britain that a comprehensive Parliamentary Privileges Act is now required if we are to truly modernize Parliament as opposed to stitching it up.

The reasons given by the 1999 joint committee were as follows: an act of Parliament would make it easier for the electorate — that is the public — to understand the importance of parliamentary privilege by presenting a clear, accessible code in modern language. Such a code should maintain flexibility by stating principles. Such a code would not increase the power of the courts which determine the necessity of privilege. To maintain flexibility, principles should be stated with examples, so as not to preclude future developments from being covered by the provisions of a Parliamentary Privileges Act. Finally, a right of reply by citizens who consider they have been defamed in Parliament should be recognized.

As you will be aware, both the Australian and New Zealand Parliaments have codified parliamentary privilege in their statutes. I think their experience with codification requires a full inquiry, as does the experience of the Quebec National Assembly which has also codified many elements of privilege in their act respecting the National Assembly.

Since it may be problematic for the Senate to proceed alone in this area, I would suggest consideration be given to making the case for establishing a joint committee on parliamentary privilege, with the House of Commons to reflect the modern needs of Parliament and the Canadian people.

Thank you.

The Chair: Thank you.

Senator Gold: Welcome to the committee. It’s a real honour and a privilege to have you with us, especially for a relatively new senator like myself.

In a previous meeting of this committee, we heard from an English barrister named Richard Gordon who agreed with you, and indeed I think the sentiment around this table is that it’s time to legislate and consider legislation on parliamentary privilege. With regard to the content of what that legislation might encompass, he suggested that we ought to consider entering into a dialogue, not only with Senate and the House of Commons, but with the courts, who are major players in helping to define the scope of privilege. He wasn’t very precise in exactly how that dialogue might take place, and he acknowledged that there might be resistance on the part of both parties to enter into this, given the separation of powers in our Constitution.

I wonder if you have any thoughts or comments on the general idea that the courts and Parliament should be in this together to modernize our law of privilege?

Mr. Hays: Thank you, senator. No disrespect, but the first thing that comes to mind is: Good luck. It would be difficult to bring the courts into that kind of discussion, and for good reason. They might compromise their independence, which they highly value, and should highly value, in terms of being publicly associated with something like you suggest. On the other hand, it’s worth a try. I think on a selective basis, you would find some jurists who would be interested in participating and who would do a good job in providing foresight in terms of how the courts might deal with what it is you would decide to do in terms of a codification, and what constitutes a matter of privilege.

Senator Gold: At the risk of putting you in a position where you might be uncomfortable answering, what are the areas in the law of privilege where you think the courts may have gone too far and not gone far enough? Are there areas that you think are ripe for modernization?

Mr. Hays: Nothing comes immediately to my mind. I’m sure if I had time to think about it, there would be some examples of the court, perhaps inappropriately, being too interested in what parliamentarians guard as that which happens in Parliament, which is decided by parliamentarians, and the courts would get their chance to deal with it if someone goes to the trouble of getting it before a court.

Personally, I don’t think it’s a good idea to mix up the ultimate arbiter of what should have been done in what is being done.

Senator Gold: Thank you.

Senator Joyal: Welcome Senator Hays. I’m happy to have an opportunity to exchange views with you on this issue which has been a recurring issue for the last 20 years, and more so in the last 15 years, especially in the courts.

There has been a landmark decision in the Vaid case by the Supreme Court in 2005, whereby the issue at stake was an allegation of discrimination based on racism. So it was in fact an allegation that was seeking to implement the section of the Charter based on equality, section 15, even though the allegation was based on the Human Rights Act essentially, it was the same principle. It was a Charter principle.

The second one, which is presently in front of the Supreme Court, involved a Speaker of the Legislative Assembly of Quebec. In that case, it is an allegation on the violation of union rights by an employee who has been fired by the authority of the President without following the grievance procedure that pertains to the employees of the assembly. That case was pleaded in court two months ago, and my point is the same as in the Vaid case, it is an allegation of violation of Charter rights.

There is presently a case in the Quebec court. In the Quebec appeal court, the Singh case, which deals with an allegation of violation of freedom of religion. Again, a Charter principle.

I want to stress two points. The first one is that the major conflict in relation with privileges appears to involve third parties, and you refer to that in the last page of your brief in point five where you say reply by citizens who consider they have been defamed in Parliament should be recognized. So it’s involving what I would call third party rights. Not members of Parliament, per se, but third parties — private citizens who feel aggrieved by a decision of Parliament.

My question to you is, should we not try to address that very issue of trying to reconcile the implementation of the Charter principles with the day-to-day decisions of Parliament, be it by the Speaker or by the assembly itself, so that there will be a mechanism to reconcile the exercise of privileges with the principles of the Charter within Parliament?

Even if we codify the privileges, as you quote in your last one paragraph in your brief, “as does the Quebec National Assembly,” it doesn’t present violations of citizens’ rights as we see in the last two cases I have referred to you — the Chagnon case, which is in front of the Supreme Court and the Singh case, which is in front of the Court of Appeal in Quebec involving privileges that were supposed to be codified in the Legislative Assembly Act. So codification is not an answer to the rights of citizens who feel aggrieved by a decision of Parliament to seek a proper way of finding redress.

In those two cases it ends up in court, so we can’t spare the court even though we have codification. So would it not be better to have a system of reconciliation, which is perhaps a committee that would have that responsibility, in the case of the federal Parliament, a joint committee of both houses whereby there would be a procedure for citizens who feel aggrieved to appeal to that committee to have principles of fundamental justice be respected so that he or she can make his case and plead and be represented by an attorney as we have, for instance, in the Conflict of Interest Committee when a senator feels that he is the object of an allegation, he or she has the full right to fair treatment.

Would that not be a way to address the issue that seems to still remain vivid, even though there is, as in the case of Quebec, some kind of codification the legislative assembly has?

Mr. Hays: That is a difficult question, Senator Joyal. I know of your interest in it and I want to be careful because you I think probably spent a lot more time thinking about this than I have.

What we do not have now in our Parliament by way of committees and so on, or for that matter the courts, to address the issue that you highlight is a citizen’s grievance with something that Parliament has done or said. It may well be the short answer to that is Parliament should give consideration to creating a place where a citizen is aggrieved to go to hear the grievance and provide assistance or provide an answer; to provide an answer would have to be a parliamentary committee to the question you pose.

I can’t think — maybe you can help me with this — of an instance. You refer to Vaid. Just from memory, I think this was the dismissal of a driver by the —

Senator Joyal: Speaker of the House of Commons.

Mr. Hays: Did parliamentary privilege cover that? If I remember correctly, no, it does not. The Speaker’s conduct, in that example, was going to be treated as if they were a taxi company or whatever, which I think was the right decision. Where do you go if you don’t have a court or Parliament itself, and it may require Parliament’s attention, and perhaps we need a vehicle — not a vehicle — that might be a way of putting it, but we need a place to go for such a complaint.

Off the top of my head, I don’t think we have one, but if we’re going to have one I think that would be something Parliament could do. I don’t think the courts can, so it’s a parliamentary challenge.

Senator Joyal: My preoccupation is in fact how we reconcile the two parts of the Constitution, the Charter on one side and parliamentary privileges on the other side that are, as you know, covered by section 18 of the Constitution Act, 1867, whereby former Chief Justice McLachlin — she was not Chief Justice in 1998 — in the famous Harvey case of New Brunswick, said quite clearly that one part of the Constitution cannot trump another part of the Constitution. So you cannot allege a Charter violation to negate the privileges that are recognized in section 18. So we are caught with two poles of authority in the Constitution that conflict in some decisions. How do we make sure that Parliament take an initiative to reconcile them if we are not to live the way we live now, that is to leave an aggrieved citizen with the onus to go to court?

When the citizen goes to court, the court might be tempted to say, “Well, yes, you were aggrieved. Yes, there was a violation of your right, but it’s a decision taken by Parliament in its deliberative and legislative function, as Vaid said, and as such we can’t order a redress.” In other words, the citizen is left wanting even though he or she has the personal conviction that they have not seen their rights respected by Parliament.

It seems to me that there should be a way to address that issue, which results from the fact that we have a written Constitution, and having a written Constitution we have to find a way to arbitrate in such cases whereby the citizens will have the conviction that his or her rights are respected by Parliament and there is due process provided to have that alleged violation being addressed and acted upon.

Mr. Hays: What first comes to mind as I listen to how you pose the question is even if you do have a final method of determining such a question, it doesn’t ensure that the aggrieved person is going to be happy with the result.

Senator Joyal: No.

Mr. Hays: And maybe it’s not so bad the way it is, in terms of the role the courts and Parliament have made available to the public to deal with it. It could be streamlined, however, and give greater authority to the courts in some way. I can’t think of what kind of legislation that would call for, but to give the courts a greater role of a final hearing and decision that is not available at the moment either from Parliament or from the courts. In other words, an imaginative legislative initiative might provide a better answer to your question than we have now, which is you’re stuck with what either you end up with in the courts or in Parliament or both.

Senator Joyal: Thank you.

The Chair: I would like to weigh in with a question in this regard. We have heard over the last couple of meetings on this issue about the merits of codification of parliamentary privilege, some arguing that it would provide clarity, others arguing that the moment you codify parliamentary privilege it opens up an opportunity for courts to encroach even further on parliamentary privilege. Can you share your perspective on the merits of codification versus not codification? We have Parliaments around the word that have done both, so I wonder if you can share your point of view on that.

Mr. Hays: Without an attempt to codify, the outcomes are always going to be less certain than, in my view, than they would be if you have done a good job of codifying the procedures that will lead to a remedy for the grievance that is claimed because there is nothing specifically designed in the courts as they are constituted now and the Parliament as it’s constituted now that makes it clearly the responsibility of one or the other.

As is always the case in a judicial or parliamentary matter, you can’t please everyone, so individuals have no guarantee, when they access the resolution methodology, of being happy with the final results of that. I think we just have to live with it.

The committee might find it useful to look around at other legislative frameworks in other countries to see if somebody has dealt with it in a better way than we have, but nothing comes to my mind.

Senator Ringuette: Senator Hays, it’s always a pleasure to see you. The fact that you’re keeping our institution close within your sight and hearing space is welcome.

I’d like for you to be very candid. You stated that during your term as Speaker of the Senate, you made 10 rulings with regard to privilege. Our current Senate Rules — they haven’t changed since you left the institution — for identifying prima facie cases and the subsequent steps, are they adequate? Do we need to investigate that process also?

Mr. Hays: Whether the Senate needs to or not is always up to the number of votes for or against revisiting the circumstance that exists at the moment. I can’t remember, in my time here, whether that ever occurred, and that is if someone with the specific issues that you just recited wanted to, once and for all, find a way for them to be addressed either by the Speaker, some arbiter, or the Senate itself, other than what is in existence. I’m not sure I can help by suggesting a way of cutting through that and replacing it with a better structure than we already have in the House of Commons and the Senate.

Maybe I didn’t fully understand your question, but I’ll stop there and let you clarify.

Senator Ringuette: From what I gather, you agree that the current process of the Speaker identifying a prima facie case of privilege is adequate.

Now, the second step, when a case has been identified or agreed upon by the Speaker, is up to the senator who has made a question of privilege on the floor of the Senate. Therefore, sometimes the issue would go to the Rules Committee. At another time, the issue would go to another committee.

It seems we don’t have, as a follow-up process, an adequate system and time frame when a case of privilege or a prima facie case has been identified by the Speaker. How should we move with regard to these rules, the second phase after identifying a prima facie case?

Mr. Hays: Identifying a prima facie case is the key. Once it’s found by the Speaker to be a prima facie case, then next steps occur, which is what the objective of the complainer is. It’s not easy to do. It’s not supposed to be easy to do, because it’s an interference in the normal procedures of the day and the business of the Senate.

What would be better than what the Senate has now? My memory isn’t good enough to give you a good answer to your question. If you wanted to codify and make clearer what the steps are to have a question of privilege dealt with more expeditiously, the methodology to get to that result would be biased more to finding privilege being breached than not finding privilege being breached.

My own impression is because it’s a difficult procedure and there are so many subjective points in the process, that it’s now less likely that a breach of privilege will be found than the other result, that privileges have been breached, or maybe it’s okay the way it is.

That was always what we ended up with during my years in the Senate. I can’t ever remember that being changed one way or the other, to make it easier or harder to establish that privileges have been breached.

It’s a hard question to answer, other than if you sat down and spent some time on the examples — a lot of examples exist — and how they might have come to a faster or fairer solution in terms of yes, so and so’s privileges were breached or weren’t.

Senator Ringuette: When a prima facie case has been heard and the process that a senator would review that case is correct, should we look outside of the chamber to a third party group to look at the issue? I find that sometimes it seems that the issue of numbers and politics seems to interfere with the central element of parliamentary privilege.

Mr. Hays: Would an independent arbiter, perhaps the courts or a panel of judges or something, be a good final determiner of whether or not privilege is in breach? My reaction to that is no. I think Parliament has a strong interest in keeping family problems within the family, and the minute you create another parallel process to make a decision, that’s not a good idea.

Senator Ringuette: Thank you.

The Chair: I’m glad to hear the response to the question of my colleague Senator Ringuette, because it’s the crux, in my opinion, of the problem. Over time, we’re constantly looking for some kind of element outside of the parliamentary process to resolve parliamentary privilege, and I think we’ve allowed in our system for the courts, as well, to infringe upon what has been traditionally parliamentary supremacy and authority. As soon as you open that Pandora’s box, you diminish, in large part, the whole privilege behind parliamentary privilege and authority.

Going forward, what are the risks and challenges we face as a Parliament from the growing role of the judiciary system in ruling over what was once upon a time viewed as our supreme authority on legislative matters and matters of privilege?

Our challenge going forward is to find a compatible manner to merge the traditions and objectives of parliamentary privilege with our system of law and the roles the courts play, as well as emulsifying within those two components the Charter of Rights and Freedoms. As Senator Joyal said, the challenge is also now dealing with third-party perceived breaches as well. I know it’s a very broad question.

Mr. Hays: Yes. I’m trying to distill out of that a question to which I can give a comment, answer or provide some sort of help. I’m having difficulty.

Each of the two houses of Parliament — I have always been jealous of letting matters out of the family, which is to say out of the Senate or the House of Commons. There are a few things where the two houses make decisions together, but we don’t like that either, if I’m not mistaken. The last thing we wanted when I was a senator was the House of Commons telling us what to do, and I’m sure that was shared on the other side. There are some joint committees, the parliamentary restaurant and a few things we’re okay with, but not many.

I think it should be kept within the chamber to the greatest degree possible. While the solution or answer to a particular matter may not be the best, it’s easier to live with if it’s the institution’s decision than it is if it’s somebody else’s decision.

[Translation]

Senator Maltais: Welcome, Senator Hays. My colleague Senator Joyal skirted around the issue of the Michaud case, which involves the National Assembly, with all the deftness of a skilled litigator. Since I am not a lawyer, I am going to deal with it more directly. In that case, of which you are surely aware, a unanimous motion against Mr. Michaud was tabled in the National Assembly because of certain remarks he had made outside it. Since that time, about 15 years ago, he has been trying to have a platform to explain the content of his remarks and the value he gave them. The National Assembly has always refused. Mr. Michaud, who is a lawyer by profession, could have gone to court. However, he considered it wise not to do so because his chances of winning were slim.

As a lawyer, Mr. Hays, what do you think about it?

[English]

Mr. Hays: Yes, and I’m not familiar with the Michaud case, which is probably going to make me answer this in a different way than if I were familiar with it.

What I hear you saying is that the National Assembly has made a decision that he objectively would have an objection to, but he’s left without — I assume Mr. Michaud is not a member of the National Assembly. He’s a citizen, and he’s left without a way of answering what he may consider to be unjust claims about his conduct or something he’s done. I’m answering this in the abstract; I don’t know the Michaud case.

As I think about it and as you posed the question, and assuming the National Assembly has no more remedies for this kind of a grievance than provincial structures I’m aware of, it’s a gap; it’s something that’s missing for him.

Without knowing the details, I think legislative bodies should take note of that grievance and that it has a way of being dealt with by providing a means by which someone who has been dealt with by the legislative body — in this case the National Assembly — that is unanswerable or can’t be raised as a matter, other than a matter to contest, agree with part of or whatever, other than going to the media. Once you do that, it’s a guessing game as to how that will be dealt with, because the motivations behind La Presse or Radio-Canada are coloured by a desire to sell more newspapers or to have more people listening to your program. It’s potentially not objective, and I don’t think there is any vehicle in any province or at the federal level where you have that vehicle.

I may have misunderstood your question; I don’t know. That’s a long and perhaps unhelpful comment on what I hear you to say.

[Translation]

Senator Maltais: I think you have grasped the matter in its entirety. In seven years, a number of legislatures have come and gone, but the National Assembly has not budged.

However, according to the Westminster system and to a number of witnesses who have appeared before our committee, parliamentary privilege applies only within Parliament or its designated committees. Do you have that same perception, Senator Hays?

[English]

Mr. Hays: Yes. To extend it beyond what you’ve described would require a legislative initiative that I don’t think has ever been undertaken. I haven’t canvassed other jurisdictions, but I’m not aware of a legislative initiative to provide that remedy.

If I were a legislator at the moment, I would want to think very carefully before going forward with a way for an aggrieved individual to have extraordinary rights to answer what it is that is his or her grievance. I don’t know what the vehicle would be, other than the ones that exist. If there’s a defamation, there’s a remedy. If clarification is required, it may not be a very good remedy, but you can enter the fray by going to the media and so on.

That’s not very helpful. I’m sorry.

[Translation]

Senator Maltais: Thank you, Mr. Hays.

[English]

Senator Seidman: Welcome, Senator Hays.

In your presentation to us, you referred to Ms. Samson’s article on privilege and the whole issue of the tension between the clarity of codification and, at the same time, the need to be flexible and leave room for evolution. I can see how that could be a challenge. When you write something down, you define it — as you say, it should be defined — and you lose a certain degree of flexibility.

You also put forward to us the principles, the reasons given by the U.K. joint committee, for a comprehensive parliamentary privileges act being required, and you support that, as you stated to us. Item 4 says, to maintain flexibility, principles should be stated with examples so as not to preclude future developments from being covered by the provisions of a parliamentary privileges act.

What I would really appreciate hearing from you is further development of that issue of the tension between the need to codify and the challenge of remaining flexible.

Mr. Hays: It’s a hard task, and the comments I’ve made are an attempt to be definitive to a degree but not so definitive that you preclude something you didn’t have in mind when you suggested the procedures that would be helpful to deal with what you do have in mind in terms of privilege issues.

I think I’ve sort of answered your question. When you attempt to codify to the degree you can or not — and I favour trying to shorten the time frame within which you can address such a grievance — codification helps that. I think you have to leave that open-ended because you cannot think of everything that might be relevant. So a generalization in terms of what it is that constitutes breach of privilege. I think you have to design it to leave that open for something that you just can’t think of at the moment. I don’t know if that helps you or not.

Senator Seidman: It does. If I look again at item 4 in that list, there’s some offer of a way to deal with this so that the principles are stated with examples. Does that make sense to you?

Mr. Hays: Yes.

Senator Seidman: So it defines but it then leaves open other possibilities. Am I understanding that correctly?

Mr. Hays: You are. Yes.

Senator Seidman: Okay. Thank you.

Senator Gold: Senator Hays, I’d like to go back and try to pull together, and see if I understand correctly some comments the chair made and also Senator Joyal. This has to do with the role of the courts in relation to Parliament.

I think we understand what may have been understood as parliamentary supremacy now has to be understood as Parliament being subject to the Constitution. I think this is the point that Senator Joyal made. And that whereas parliamentary privilege originated at a time of great tension between the Crown and the emerging developing Parliament, things have changed dramatically and happily over the last centuries. So in a way, I think it’s wrong to characterize privilege as a clash of adversaries between Parliament and the courts. Each has its role to play, and both Parliament and the courts have an obligation to respect the parameters of the Constitution. I think this was the thrust of Senator Joyal’s point about reconciling the two poles of the Constitution.

That said, I want to make sure I understand the recommendation and see if you would agree. I think the idea is that Parliament should set up some internal rules that reflect fundamental principles of justice, due process and the like, to deal with cases where third parties, citizens believe that their Charter rights are aggrieved, internal rules that would structure how decisions within the Senate are made about whether or not parliamentary privilege has been breached, giving the aggrieved citizen his or her right to appear and to be heard.

And if those mechanisms were in place, would you agree it would still retain the ultimate decision to perhaps defer more regularly or defer appropriately to the Senate’s decision that a parliamentary privilege was or was not breached? In other words, internal mechanisms that reflect Charter values to deal with third parties, if in place, might give the courts reason to defer to the decisions of Parliament, where under current circumstances, without such mechanisms, courts might properly believe their role is to make sure that Charter values are reflected and protected because nobody else is taking account of them.

Would you agree that’s something worth pursuing?

Mr. Hays: As parliamentarians, you’re posing the question; these are always things worth pursuing. But as I understand the issue that you raise, is this an issue I go to Parliament with or is this an issue I go to the courts with?

Senator Gold: I think that’s right, but the image I have in mind is like administrative law, something analogous to administrative law. I don’t want to put the Senate in the role of an independent tribunal, but legislation often provides that a citizen must first exhaust an available remedy.

We’re not suggesting for a moment a privative clause such that they would be barred from going to court, but one first has to take advantage of remedies that are put in place which would be intra-Senate procedures, after which the court might decide whether or not fundamental justice was or was not respected, with all the intended jurisprudence that would accrue.

That would be a step forward, at least, for the Senate and Parliament to recognize that in the modern era, the issues, as Senator Joyal pointed out, are so often about third party rights and not the powers and privileges of parliamentarians under attack from the Crown.

Mr. Hays: What comes to mind is you have the courts, regulatory bodies and Parliament. And sometimes all three might be a legitimate objective or destination to go to, but more often than not, it will be obvious that this is a matter for the courts, this is a matter for labour relations or a regulatory body — courts, regulatory body or Parliament.

If you have an issue, you characterize it. Sometimes all three would be applicable, but for the most part, one of the three would be the wisest choice because you may find if you go to the wrong one, they’re simply going to bounce it and you probably have to go to what is fairly obvious from the beginning: a parliamentary issue, a regulatory issue or a legal issue that the courts can resolve.

I don’t know if there’s any way to close the doors easily on the three options — there may be more I haven’t thought of immediately — or whether you can close the door on one or the other if it’s equally suitable for a matter that you’re going to talk to your senator or member of Parliament about and hope you can get some initiative undertaken or whether you should go to the courts with an application and hire the professional advice you need. I’m not sure.

I like the fact that you have those choices and usually it’s not a very difficult choice to make because it’s obvious where you’re going to go. But sometimes you might want to go directly to the decision-making body that’s responsible for the law — i.e. Parliament — instead of trying to resolve your issue in the other way.

Talking about it in the abstract, however, is very difficult. Do you have a specific example?

Senator Gold: I think it would run across almost any example where the Senate has decided there’s a prima facie case. Let’s start with that procedure. The question is, then, how does the Senate decide? Does the Senate then create an opportunity, in its decision-making, for the legitimate Charter rights of third parties to be considered? If it does so, the argument is that that might, assuming the citizen is unhappy, as citizens often are with decisions that affect them, have an influence on how courts then deal with the issue if the citizen avails him or herself of his or her right to go to court and would, therefore, strike an appropriate balance between the autonomy of the Senate to regulate its own affairs, within the family, as you pointed out, and giving due weight to the Charter values that are increasingly implicated in these questions of privilege.

Mr. Hays: The courts, a regulatory body with jurisdiction, or a legislative body, or the federal Parliament. Which do you go to with your issue, your grievance, shall we say? Usually, I think it’s fairly obvious whether this is a matter that would be proceeded in which of those three choices you have.

The most difficult one is if you want to get it before Parliament. How do you do that? It’s less clear. For a regulatory body or the courts, the procedures are well-established. Getting Parliament’s attention is much more difficult. Even if Parliament has jurisdiction to deal with it and they don’t want to deal with it, you might as well forget it. You’re stuck with the other remedies.

If Parliament refused to take a matter that there was no other remedy for, that would be surprising to me, and that would be a dereliction of parliamentary duty. I don’t know whether or not that helps you. You didn’t give a specific example because they are hard to think of, probably.

Senator Joyal: I want to pursue on that point, Senator Hays, because, as I say, the precedent of the Standing Committee on Conflict of Interest, in my opinion, gives us not a model necessarily, but at least something to reflect upon.

The Standing Committee on Conflict of Interest is, of course, a creation of the chamber, in the exercise of the privilege of discipline on its own members. It’s essentially how the chamber exercises its disciplinary function, and, when a senator is the object of an allegation of a breach of the ethics or conflict of interest Rules of the Senate, there is, of course, as you know, an allegation that is sent to the SEO. There is a preliminary review of whether the case justifies an investigation. That decision is taken by the SEO. If the answer is yes, then the case passes or goes to a second step, which is the investigation, and then a third step, which is the report. The report by the SEO is tabled in the Senate, and sent to the Standing Committee on Conflict of Interest. It is for that committee to conduct the hearing, if the senator who is the object of the report so wishes, to review the report, hear that senator. That senator may be accompanied by a lawyer, and there is a procedure that takes place that respects the principle of due process.

Once the standing committee concludes the hearings, on the basis of the report and on the basis of the proof or the statement or the points raised by that senator, the committee deliberates and makes a report to the Senate. It’s not the committee that decides, but the committee reports to the chamber. It is for the chamber to act upon the report of the standing Senate committee.

I’m not the witness this morning, but I have sat on that committee for the last 15 years and seen how it works, how the procedure works. I think it works fairly because it gives an opportunity to the senator who is the object of the report, a chance to be heard, to have his or her day in court, and to have the conviction that he or she is treated fairly because, otherwise, the Senate could act, essentially, on the basis of public opinion, public pressure and whatnot. We know how it has worked in the last years.

So my thinking is along those lines. In other words, if a third party like your fifth point, if a citizen is considered to have been defamed in Parliament, as happened with Mr. Yves Michaud and as happened, in the other place, in the case of Barbara George — I don’t know if you remember that famous case of Barbara George. She was essentially defamed, as Mr. Michaud has been, but, since it happens in the course of parliamentary proceedings, it’s totally out of reach for the court.

So how do we manage those citizens, those third parties, as they are with Mr. Vaid and the drivers of the Speaker, the Chagnon case, the aggrieved person who lost his job on the decision of the Speaker, and the Singh case, who were refused by Parliament because they are wearing their kirpan on the basis that they were threatening the security of Parliament. How do you address those cases for those citizens who are left wanting? Those cases are multiplying themselves in the last 12 years. Those are not, as we say, school cases. You imagine a case and think, “Okay, how would we react?” Those are real citizens. That happens to have happened in the last years.

So it seems to me that there is a way, in exercising our privilege of deliberative and legislative function, as we do when we exercise the privilege of discipline, to manage the system within our own responsibility to deal with those exercises of privilege in a way where we infringe upon the rights of third parties.

When I was in front of the court two months ago, I’m sure that the court really got the question of: How do you delineate the exercise of parliamentary privileges when the rights of a third party are at stake? This is the key issue, in my opinion, that we have to wrestle with, in a way where we will still keep our capacity, as a chamber, to continue to exercise our deliberative and legislative function, our freedom of thought, our freedom of speech, in a way where we take into account the rights of a third party, as you recognize, yourself, in your paper. This is, to me, really one of the key issues we have to address.

I am not sure that, by codifying privileges, we will solve that issue per se because, as you stated quite clearly in your brief, codification cannot address everything. There will still be a margin of action in any codification of act of privilege. So that’s, in my opinion, where we are wrestling to address what Senator Maltais has raised in the case of Mr. Michaud. I raise the case of Barbara George, almost at the same time as Mr. Michaud, in the other place, and the three other cases that I just referred to that are real. The courts are really wrestling, at this point in time, with this.

So, once we have the decision in the Chagnon case, we might get some principles in which the Supreme Court will delineate what we have to do as Parliament when the rights of a third party are at issue. But it’s not for to us wait until the court orders us to do something. I think we, as a responsible chamber, have to address that point, in my opinion.

Mr. Hays: That’s a difficult question to try to answer. In a way, we are mixing up the roles of the judiciary and the courts and the roles of the lawmakers, Parliament, Internal Economy and individuals like the Speaker, who have certain extraordinary powers because of the positions they hold.

It’s not the right way to say it, but as things stand we muddle through. I mean, we find a way to make a decision using what is available.

If this is something that we feel — and by “we” I mean you and the people you represent — is not satisfactory the way it is, then we may need to create a means by which these kinds of grievances can be brought forward in a formal way and dealt with fairly by either independents like judges or by a representative group of the body which is involved, and I’m thinking of Parliament.

I don’t think we have that now. Maybe you should give it some thought. I can’t suggest a good solution off the top of my head. Maybe there should be an appropriate component of the Internal Economy-type structure in both houses that is dedicated to deal with a Vaid issue in a proper way, where you have the two sides and you have a way for them to be heard or put forward their grievance — or the reason their grievance has not been put forward — and have it decided by someone.

I don’t think we have that. You might want to create it because it is quite possible the courts are not available to the aggrieved party in that situation. I can’t remember Vaid well enough to use it as an example, but I think Vaid was aggrieved by a decision of the Speaker of the House of Commons; a driver or something. Was this for the courts or was this for Parliament? I don’t think he had a clear path to address his grievance. That may take a bit of work to provide that. It might be worth doing.

[Translation]

Senator Maltais: Senator Hays, there has been a lot of talk about people who could be hurt by parliamentary privilege. But there is another side to that. As Speaker of the Senate, you had to make decisions based on the information you had to support them. But, in parliaments derived from the British system, members or senators do not challenge a Speaker’s decision in any way. It is not a good or healthy habit. I feel that, once a Speaker has made a decision, everyone must accept it. That does not mean that all parliamentarians agree with that decision, but the rule is one of “submission.”

Basically, parliamentarians are not as well protected as one might think, if we compare their situation with that of someone outside the Parliament who has suffered as the result of the same decision. Do you see any similarity between the two?

[English]

Mr. Hays: As I listen to your question, I want to go back on a decision of the Speaker being contested. My recollection is that if you disagree with the Speaker, there is a way of bringing that before the whole chamber for a vote. So the Speaker’s decision is subject to review by the chamber if the proper steps are taken and procedures followed that say, “Mr. Speaker made a mistake,” or “I don’t agree,” or “This is wrong because . . . .”

So that is a solution to the problem. It’s an awkward one, but I can’t think of anything else that would suffice other than the whole chamber becoming involved in something the Speaker has done that enough senators are in disagreement with to get a matter on the floor of the chamber. How do you resolve that disagreement one way or the other in favour of what the Speaker did or did not do? As for the senators who are unhappy with the state of affairs, there has to be a way of solving that problem. It is solved by the whole chamber.

[Translation]

Senator Maltais: I understand your explanation very well, and you are right. Except that starting a challenge procedure, as you indicate, is possibly a vote of censure against the Speaker. In the British system, Speakers must enjoy the confidence of a majority of members of the chamber, otherwise, their situation becomes untenable. Few parliamentarians are going to risk challenging a decision by the Speaker. You know from experience, as do I, having sat in two Parliaments, very few parliamentarians are going to run that risk because it involves very difficult procedures and even renders the Parliament temporarily non-functional.

So the British stiff upper lip means that a Speaker’s decision is never challenged —

Mr. Hays: Or very rarely.

Senator Maltais: — or very rarely. I totally agree with that position. But if the only way in which parliamentarians can express disagreement is to challenge the Speaker, they are caught with no way out.

[English]

Mr. Hays: So our tradition, our practice, is that the Prime Minister appoints the Speaker, but the rules do provide for the election of a Speaker and that form of election is usually gone through.

I have often thought about that question: What if the Senate didn’t like the Prime Minister’s choice of Speaker? I think if the Senate doesn’t like the Prime Minister’s choice of Speaker they should elect their own Speaker and say, “No, we don’t accept you.” I think the rules are there to ignore the long-standing tradition of the Prime Minister deciding who the Speaker of one of the two houses of Parliament will be.

I don’t think it’s ever been contested, but I think it could be. I think if it was, I think the legislative body would win that fight. That’s my guess.

Senator Joyal: Can you repeat that?

The Chair: If I could comment on some of the comments and questions from my colleague, Senator Maltais, I think it’s important to keep in mind that in the elected houses in Westminster parliamentary systems across our country, you cannot challenge a Speaker’s ruling.

Of course, with the Senate being a hybrid of the Westminster model we have that unique authority where, on rare occasions, Speaker’s rulings have been challenged. That also speaks to the fact that our body has been created to be such a rigid spokesperson for minority voices, probably more so than any other parliamentary body.

To your comment about the chamber challenging a prime minister’s choice for Speaker, many obviously share that view. I also have a view that it’s very difficult for an appointed body to be engaging in an elected process to elect a Speaker of the chamber.

Furthermore, given the unique role that the Speaker has in diplomatic areas and presentation on behalf of the Crown or the government on a diplomacy front, as you know full well, Senator Hays, being fourth in line in terms of parliamentary protocol, it creates a touchy situation where you can quite conceivably have a democratically elected prime minister being represented on the international front by a Speaker of the Senate who doesn’t share that government’s foreign policy view. I was wondering how you would coalesce those two diametrically challenged positions.

Mr. Hays: I don’t think they are easily reconciled. I will add that I am from Alberta where we have a form of election that we have gone through or we go through to indicate who we Albertans think — if you want to pay service to the procedures they provided — should represent the province in the upper house. Most of the Alberta senators now, I think, are in fact ones who have gone through a form of election. It’s a bit messy and not something that has caught on in other provinces and probably won’t because I think the Senate acquits itself with distinction and wisdom and does a good enough job that we really like it the way it is. But, I say that as an Albertan, which is the exception to the rule. I don’t know whether or not that helps you.

I think at some point we will have to deal with the issue as a country, but it will probably be a first minister’s issue that triggers that consideration. I do not see that happening anytime soon.

The Chair: Senator Joyal, you will have the final word.

Senator Joyal: I would never dare to have the final word. I respect freedom of speech too much for that.

Senator Hays, are you aware of the recommendation that the Modernization Committee made in relation to the appointment of the Speaker that we made in this session?

Mr. Hays: Could you remind me?

Senator Joyal: Yes. Essentially, it is that the Senate would conduct, before the appointment of the Speaker — that is, when there is a new Parliament — an election within its ranks to determine three or five candidates that would be submitted to the Prime Minister. In other words, the Prime Minister will still retain the discretionary power to recommend to the Governor General a candidate, as he or she does in relation to Senate appointments, but he would be invited to select from within a pool of names of senators who would have received some support from the chamber.

It seems to me that we would have there a medium term that would respect the letter of the Constitution because it’s a privilege of the Crown to appoint the Senate Speaker, but, on the other hand, nothing in the Constitution prevents the capacity of the chamber to identify among itself who they would consider being an appropriate name for the Prime Minister to consider.

Mr. Hays: The question really is: What would a prime minister do in the face of a Senate that — let’s put it in a more stark way — had elected a Speaker, as the House of Commons does, and then said to the Prime Minister, “There is no constitutional authority other than the long-standing precedent of always respecting the Prime Minister’s decision on who should be the presiding officer of the Senate.”

Legally, I think the Senate would prevail. The Senate’s never tested that. But if it did, would the Prime Minister win that or would the senators, who had a different choice for their Speaker, win that? It could well go to the court. If it did, I think the Senate would win. That’s not perhaps an answer to your question. It’s just speculation on my part.

Senator Joyal: Yes, of course. But if it is the will of the chamber to express itself in identifying three or five senators — and I would expect that in such a case there would be senators from different groups proposed to the Prime Minister — then we protect the privilege of the Crown to select whoever the Crown feels appropriate to be represented by.

On the other hand, the will of the chamber will also have an opportunity to express itself; that is, to express the trust of the chamber in a certain number of names of persons. It seems to me that that would be a fair compromise to protect the exercise of the power of the Crown, and, on the other hand, to allow the independence principle in the chamber to also be taken into consideration.

We would be more or less in the same situation as before, between the two parts of the Constitution. There are two wills there. There is the will of the Prime Minister; then there is the will of the chamber. How do we find a common ground between the two to be reconciled in the exercise of the power of appointment of the Crown, which takes into account the will of the chamber?

Mr. Hays: That’s a good way of the Senate having a role of who is the Senate Speaker, namely, narrowing it down to five as opposed to saying, “We have actually had an election and we want so-and-so to be the Speaker, Mr. Prime Minister,” and challenging the Prime Minister, by saying, “I dare you not to appoint who the Senate, by vote, wants as their Speaker,” which is comparable to what the House of Commons did. I think if the Senate did that, which is a more extreme example than yours, that would put the cat among the pigeons. I think the Prime Minister would have a hard time sticking to the tradition going back to 1867 in the face of a Senate that said, “We don’t want an appointed Speaker. We want an elected Speaker.”

I will add — and I say this as a former Speaker — Prime Ministers have always chosen very well.

Senator Joyal: Of course.

The Chair: I would agree with that sentiment.

Senator Joyal: I support that whole-heartedly.

Mr. Hays: That being the case, it’s working quite well.

Senator Joyal: You know my sentiments about the Hays family, senator.

Mr. Hays: I know. You and my father had one of the biggest jobs of any parliamentary committee in our history.

Senator Joyal: I remind him promptly.

Mr. Hays: Thank you.

The Chair: This current prime minister is quite safe because there isn’t a big propensity on the part of senators to challenge his decisions these days.

On behalf of this committee, I would like to thank Senator Hays for coming before us and sharing his views with us. It is very appreciated.

Colleagues, the next meeting will be May 22. We will have as our witness former Supreme Court Justice Ian Binnie with us.

Mr. Hays: Thank you chairman and former colleagues.

(The committee adjourned.)