THE STANDING COMMITTEE ON RULES, PROCEDURES AND THE RIGHTS OF PARLIAMENT
EVIDENCE
OTTAWA, Tuesday, March 19, 2019
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:30 a.m., pursuant to rule 12-7(2)(c), for the consideration of 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 members of the general public who are following today’s proceedings of the Standing Committee on Rules, Procedures and Rights of Parliament either live in the Senate of Canada or on the web. I would like to ask my colleagues to introduce themselves.
Senator Sinclair: Murray Sinclair, Manitoba.
Senator Greene: Stephen Greene, Nova Scotia.
[Translation]
Senator Ringuette: Pierrette Ringuette from New Brunswick.
Senator Dupuis: Senator Renée Dupuis from the Laurentians, in Quebec.
[English]
Senator Oh: Victor Oh, Ontario.
[Translation]
Senator Maltais: Senator Maltais from Quebec.
[English]
Senator Woo: Yuen Pau Woo, British Columbia.
[Translation]
Senator Dalphond: Pierre Dalphond from De Lorimier, in Quebec.
[English]
Senator Wells: David Wells, Newfoundland and Labrador.
Senator Seidman: Good morning. Judith G. Seidman, Montreal, Quebec.
[Translation]
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
[English]
Senator Joyal: Serge Joyal, Kennebec, Quebec.
The Chair: I am Senator Leo Housakos, chair of the committee, from Montreal.
We are continuing our study on privilege. In June 2015, in the last session of Parliament, this committee tabled a report entitled A Matter of Privilege: A Discussion Paper on Canadian Parliamentary Privilege in the 21st century. Our committee has agreed to continue that good work and is on its sixth meeting on this study. Parliamentary privilege is an essential component of our parliamentary democracy. It exists to enable Parliament to function effectively and efficiently without undue impediments.
We have the privilege and honour to have before us Mr. Dave Levac, a gentleman who many of you know has had two decades of parliamentary experience at Queen’s Park, a distinguished career, and holds the honour of being the longest-serving Speaker at Queen’s Park. He was elected in 2011 and served until 2018, and he has brought down some historic reports and rulings on the influence and power of parliamentary committees.
Mr. Levac has taken the time to come before us, and I will turn over the floor and let him make a presentation. After that I hope he will take questions.
Dave Levac, Former Speaker, Legislative Assembly of Ontario, as an individual: Thank you very much, Mr. Chair.
[Editors Note: Mr. Levac spoke in other languages.]
For my Polish friends and others.
I took the opportunity to speak to you today because I would like to provide you with some insights I have gained over the years by having informed conversations with many people in Ontario, Canada and around the world with regard to parliamentary privilege.
I’m going to do a preamble and then get into my prepared text. Before I do, I have some housekeeping to do to inform you.
I’d like to give some credit to Meghan Stenson, the table research clerk who prepared the paper; the clerk who I was working under, Deborah Deller; and more so Todd Decker, the Clerk of Ontario, regarding our conversations about this topic when you raised it in your paper in June just before the Ontario election. I was still Speaker for another month before they called the house back. We had some dialogue about the topic itself.
When the opportunity presented itself, the clerk asked me if I would be interested in having this discussion with you, and I said, “More of a discussion than an actual deputation.” I will try to do that as briefly as I can and enter into a dialogue about what is happening.
I leave you with one thought. I don’t think very many people in Canada know what parliamentary privilege is, and they don’t know the capacity or sacredness of it. I honestly believe there is a sacredness to parliamentary privilege for the purpose of keeping itself from the judiciary and from the situation where we may be acquiescing the power of parliamentary privilege to another branch. The question I would ask is why would one do that? If you already have it, why would you lose it and give it away?
I would also like to give my thanks to Todd Decker in his capacity as clerk and the many years’ experience he had getting to the clerk’s table and sharing his wisdom on an ongoing basis. He wrote an awful lot of the things we discussed in private that ended up being some of my rulings; so between Deborah Deller and him, I owe them a great debt of gratitude for providing me with the insight that was necessary for me to speak with some modicum of understanding of parliamentary privilege.
I start with, “I’m retired.” I know you’re all jealous, sitting there, me telling you that I’m retired, but I want to start by giving you the words you deserve and have earned: Thank you. Thank you for your work; thank you for your dedication on serving Canada; thank you for serving the people of the ridings that you come from, the provinces you come from, and indeed the way that your perspective is set, and that is how do we become better Canadians? For that I thank you. I boldly say that on behalf of a large number of Canadians who actually take the time to understand what it is you do. They understand that we need to have people understand who we are, as colleagues and brothers and sisters of the elected mass.
An awful lot of people didn’t realize this, but I’ve only been 1 of 43 people in the entire history of Ontario that has been the Speaker. I take a step back and I’m in awe of that. This little kid from Eagle Place in Brantford, Ontario, was the Speaker of the Province of Ontario.
That’s a testimony not to me; that’s a testimony to our system that allows us to do that. I know that sitting around this table are people who have had the same story in a different context — coming from another part of the world, sitting at the table as a senator. Someone who came from a war-torn area of the world and is now sitting as an MP; someone who is the mayor of a town who grew up in the same town for over 60 years and whose family goes back five generations. It’s a testimony to the system, and it’s precious; and at our peril we play with it. We risk it. We must stand vigilant, and that’s what you’re doing today. So, please allow me to give you thanks and to tell you that this is an important thing you’re doing.
Whether or not people make any changes or are listening is part of the problem, but it is not the destruction of that problem. You are going to continue to move forward, and in years to come there will be another batch of senators sitting here, debating and understanding the next thing that we need to talk about and do.
My last comment to you is an alert: I do not speak for the Ontario legislature presently. I do not speak for the government of the day. I am a retired person, sharing his informed opinion gathered from many people over the years who I have served. I’m sharing my own opinion that has evolved from Meghan, Todd, Deborah and some of you — and I’ve had some interesting conversations with some of you — about where we are and who we are.
Last, but not least, I would offer a small challenge, and that would be to ensure that this is not an isolated exercise. We really do need to get the public to understand the importance of this particular topic of privilege.
At the end, I will reference a couple of emails I received from Todd and comments he has made that I agree with 100 per cent.
The parliamentary privileges of the Legislative Assembly of Ontario, the LAO and its members, are rooted in the Constitution and legislation. Certain elements of the assembly’s privileges are codified in the Legislative Assembly Act, meaning there already are codifications in the privilege for Ontario.
However, the approach to parliamentary privilege that has been taken in Ontario has been to avoid comprehensive codification. Instead, the assembly has opted to selectively advocate for its privileges in the courts and legislate them only when necessary.
The LAA’s parliamentary privilege provisions include the following.
The power of the assembly to command and compel the attendance of witnesses before it and its committees, as well as the production of papers and things as deemed necessary for its proceedings and deliberations. I have made a ruling on that.
The power of the Speaker to issue warrants to direct the attendance of persons before the assembly and its committees, and the production of papers and things as ordered by the assembly. I, too, have issued warrants.
The protection of persons from liability and damages, or otherwise, for any act done under the authority of the assembly. I have witnessed that.
Members’ freedom of speech. That’s codified.
Members’ freedom from arrest in civil actions.
Prohibition of civil process in the legislative building, committee rooms and designated members’ offices. That happened in another province.
The exemption of members, officers and employees of the assembly and of witnesses summoned to appear before the assembly or its committees from serving as jurors.
And the right to inquire into and punish contempts and breaches of privilege. I have found prima facie case of privilege.
The LAA also contains a saving provision, which states, “Except for so far as is provided by section 41,” which relates to corrupt practices, “nothing in this Act shall be construed to deprive the Assembly or a committee or member thereof of any right, immunity, privilege or power that the Assembly, committee or member might otherwise have been entitled to exercise or enjoy.” Nothing shall get in the way of that member’s rights.
This signals that the above LAA provisions were not intended to be a comprehensive codification of privilege, with the exception of the sections related to the service of civil process which were added to the LAA in 1988. All of these provisions were included in the earliest versions of the Legislative Assembly Act which was passed in 1876. That tells me that the people back then knew what they were doing, in my humble opinion.
The approaches to codification: In a discussion of codification of privilege, it is necessary to distinguish between comprehensive codification and the pragmatic use of statute — a distinction made in a 2013 report from the U.K. Joint Committee on Parliamentary Privilege. A comprehensive codification of parliamentary privilege would entail exhaustively legislating all aspects of privilege. The “pragmatic use of statute” approach, in contrast, entails the use of statute to clarify and to confirm specific elements of privilege, as required, often in response to decisions by the courts relating to privilege. Again, notice the separation.
The primary arguments in favour of comprehensive codification of privilege tend to focus on clarity and certainty. Parliamentary privilege is a complex, often misunderstood subject, and a comprehensive framework could serve to clarify its meaning and scope, provide guidance for its consideration by the courts, and offer a way for a Parliament to define its own privileges proactively.
In Canada, some of the work of determining the scope and existence of privilege falls to the courts. If there are concerns that future decisions of the courts might limit the scope or application of privilege, a Parliament can assert its privileges in legislation.
The downside of increased certainty is decreased flexibility.
The privileges of Parliament are ancient, but the context in which they are exercised has changed considerably and continues to evolve.
In attempting to codify privilege, it would be very difficult to imagine all possible applications of privilege and how they might change in the future. In evidence submitted to the 2013 United Kingdom Joint Committee on Parliamentary Privilege, the former Clerk of the House of Commons, Robert Rogers, told the committee that it is impossible and undesirable “to have a shopping list that meets every possible development or eventuality” relating to parliamentary privilege. Because future applications of privilege are difficult to predict, it is preferable to maintain a flexible and adaptable framework for its interpretation.
The selective codification approach permits a Parliament to legislate its privileges only as a last resort as a solution to a specific problem or deficiency.
The 2013 U.K. joint committee ultimately advocated for this approach. In evidence given to the committee, the Lord Chief Justice made the following statement:
Parliament has to decide whether it has sufficient privilege to be able to conduct its business in the way that Parliament wishes. If you have reservations about that, you have to produce a system that enables you to have the conditions under which you can perform your responsibilities properly. . . . Unless you are dissatisfied with the way in which your privileges operate, I would leave this well alone.
In the absence of any significant concern about Parliament’s ability to operate, it is unnecessary to codify privilege.
In discussions of codification of privilege, the Parliaments of Australia and New Zealand are frequently cited as examples of Parliaments that have adopted comprehensive privilege codes. Australia’s Parliamentary Privileges Act 1987 and New Zealand’s Parliamentary Privilege Act 2014 both codify the parameters of several elements of privilege and the role of the courts and tribunals in interpreting privilege, as well as set out the punitive powers available to the Parliaments.
However, both Parliaments have signalled that their respective acts are not intended to be comprehensive codes. Both acts contain sections that maintain the privileges of the U.K. House of Commons as the foundation of their respective parliamentary privileges.
New Zealand’s act goes so far as to explicitly state that one of its purposes is to “reaffirm generally in a single Act and clarify the purpose and certain other aspects of, but avoid comprehensive codification of, parliamentary privilege..” So, even those that have indicated that they have codified are gently saying, “but not codified.”
These provisions ensure that the acts are not to be considered comprehensive in their definitions of privilege and that the interpretation and exercises of privilege will not be limited by the acts. It has also been widely acknowledged that the decisions of both Australia’s and New Zealand’s Parliaments to enact privilege legislation were made in direct response to unsatisfactory court decisions. For these reasons, it may be more appropriate to categorize Australia’s and New Zealand’s privilege legislation as “pragmatic use of statute” than it is to say that it is comprehensive codification.
Let’s talk about Ontario’s approach. This section is the way it operates now. It’s not me speaking for the legislature; it’s the knowledge of the legislature’s way of proceeding.
The Legislative Assembly of Ontario takes a pragmatic, selective approach to advocating for its privileges. A number of decisions by courts and tribunals have dealt with issues relating to the assembly’s privileges, particularly since the advent of the Canadian Charter of Rights and Freedoms in 1982. However, since that time, the LAO has not undertaken a comprehensive study of privilege or made any significant amendments to its privilege framework.
Since 1876, when it first successfully legislated some of its privileges, the assembly has amended the LAA’s privilege provisions only once. In 1987, a member of the Public Accounts Committee was formally served with legal process for libel actions during a meeting of that committee. The committee reported the incident to the house, and the matter was in turn referred to the Standing Committee on the Legislative Assembly for further consideration.
The Standing Committee on the Legislative Assembly determined that the incident amounted to a contempt of the house. The committee recommended that the LAA be amended to clarify and reaffirm the prohibition against service of civil process upon any person in the legislative assembly’s building, and suggested wording for clauses to be added to the act. In 1988, the house made the proposed amendments to the LAA.
When the courts consider matters relating to the assembly’s privileges, the assembly retains legal counsel to proactively protect its privileges. This approach is an implicit recognition by the assembly that the courts play a legitimate role in interpreting privilege. To date, the assembly has not introduced any formal measures, legislative or otherwise, in response to court decisions relating to privilege, meaning that the differential between the court and the legislature was understood. This suggests that the assembly has been, for the most part, satisfied with the approach to privilege that has been taken by the courts.
An example of a recent Ontario case in which the court dealt with the matter directly relating to the legislative assembly’s privileges is Marin v. Ontario (Office of the Ombudsman). André Marin was Ontario’s ombudsman and a statutory officer of the legislature, appointed by the Lieutenant Governor in Council on address to the assembly. Following the expiration of his appointment, Mr. Marin sued the assembly, alleging, among other things, that he had been wrongfully dismissed. In response, the assembly contended that the matter was beyond the court’s jurisdiction, as the assembly had exclusive jurisdiction over its own proceedings, including the development and contents of an address to the assembly, and the appointment, reappointment and management of parliamentary officers who assist the assembly in fulfilling its functions, specifically the function of holding the government to account.
In dismissing Marin’s claim, the judge held that if the case proceeded to trial, the court would have to inquire into the assembly’s internal proceedings and motivations with respect to the appointment of an officer of the legislature, and the development of an address. He concluded that these are both constitutionally guaranteed categories of parliamentary privilege, which are beyond the jurisdiction of the court — again, the separation of the two.
The decision in the Marin case was a significant victory for the recognition of the LAO’s privileges. However, decisions of the courts on matters of privilege are not always so favourable to the assembly. It is recognized, for example, that the recent Supreme Court decision in Chagnon v. Syndicat de la fonction publique et parapublique du Québec may ultimately limit the LAO’s privileges with respect to its employees. However, at this time there is a general acceptance by the assembly of the role played, as well as the approach taken, by the courts in determining the existence and scope of assembly privileges. There is no indication of a desire or intention on the part of the assembly or its members to take a different approach to privilege. That is the view of the Ontario legislature at the present moment.
To conclude, there are two main approaches to legislating parliamentary privileges: comprehensive codification and pragmatic use of statutes.
Comprehensive codification can serve to clarify the parameters of privilege and offers a way for a Parliament to proactively assert its privileges. However, this approach may also be unnecessarily restrictive and inflexible. The LAO’s preferred approach includes asserting its privileges in court proceedings and pragmatically clarifying elements of its privilege in statute, as needed. The LAO, for the most part, appears to be content with the approach to privilege taken by the courts in Canada and has no plans at this time to reconsider its privileges framework.
To simplify some of that comment, I’d like to offer you a comment that Todd Decker offered, as Clerk of the Legislative Assembly.
The legislative assembly has not conducted its own detailed review or study of privilege essentially since Confederation, as indicated in your report. Therefore, it’s not known what position the members of the assembly would actually and collectively end up subscribing to. I reinforce one more time that I’m not speaking on behalf of the members; and if this question were to be put to the members, we don’t know what the response would end up being. It’s not as though, after hearing my deputation, that the Senate committee would seek to consider that the Ontario Legislative Assembly make a presentation itself.
Mr. Decker does not personally favour a comprehensive codification of parliamentary privilege in statute because it would, by its very design in enumerating what is and isn’t privilege, work to restrict the application of privilege only to those things that the assembly could claim to be privileged and not those things it forgot about, didn’t see, couldn’t foresee in the future, or that didn’t even exist at the time codification took place. Why would it make sense to do that? You’re tying one hand behind your back before you even know what kind of issue would challenge privilege. It’s better, in my mind, to leave it open and defend yourself using privilege as needed, on a case-by-case basis.
Finally, one last comment. The question he asks is why would you ever need to cede your own privilege to another institution? He’s saying that if you codify and leave the rest of it to the courts, you’re ceding your own authority to the courts and allowing them to define your privilege, which was not intended when the Constitution was written. It was written with the purpose of keeping them separated, for the very purpose of ensuring that the rights of the individual are protected both by the courts and by the legislature, in particular the members of the legislature. But we don’t seem to have arrived at a situation where Parliament can question their own authority, but they can question and limit Parliament’s. So, we can only tell the courts what to do through legislation, but they can tell us if we codify and leave something out.
The Constitution guarantees parliamentary privilege. It also guarantees the independence of the judiciary — that’s the purpose of its design — but not at the expense of the supremacy of Parliament. And the Charter is not dominant over parliamentary privilege. Privilege prevails. I’d rather defend Parliament’s assertion of privilege in some future ignoble situation than forego it completely in advance. Why agree you’re guilty before the charge is laid?
I rest my case. Thank you very much.
The Chair: Well-pleaded case indeed, Mr. Levac.
I will turn it over to my colleagues for questions. Senator Wells will start.
Senator Wells: Thank you, Speaker, for your excellent presentation. I was struck by a number of things you said. One in particular was testimony to the system; we play with it at our peril. I know the system we have in the Senate of Canada has stood the test of time and it has done so well.
Speaker, I’d like to take you back to 2012. You issued a ruling on the issue of compelled disclosure of documents in relation to the cancellation of the gas plants in Ontario. You ruled that the case of the gas plants documents did establish a prima facie case of privilege and that the government must disclose the documents to the committee through an agreement among respective house leaders. Your ruling highlighted the right to order production of documents is fundamental and necessary to the proper functioning of the assembly.
Can you comment about the role and the power of committees when compelling documents and the importance of that? Or perhaps it may not be important. I shouldn’t assume your answer, despite hearing 20 minutes of confirmation.
Mr. Levac: The ruling was probably the most difficult situation I found myself in in my two careers, not because of the ability to make the decision, but because of the challenge to ensure that I was doing it for the right reason. My responsibility as Speaker was to the rights of every member. Using the Constitution and in our discussions about the ruling, the first thing that came to me was exactly what I spoke of today, which was the right of Parliament, in its privileges, to demand information and issue warrants. That’s pretty serious. That’s a heady kind of responsibility that someone is charged with, namely, to ensure that they are doing it. That’s another reason why I have the utmost respect for judges and those individuals who are challenged with making decisions based on a open and fair-minded response.
In my decision, two things struck me. The first one was the written evidence that information was to be made available. Under the circumstances, I did something a little different and unique. I offered all parties to come together for one week before I passed final decision on whether or not it was a breach. The government’s explanation was that there were private entities that had secrets, and if it was openly discussed, it could cause some private enterprise some problems.
I had to supersede that with the right of the privilege of the members. That kind of got out of the way, but I did provide them with one week — they had about four meetings — to try to come up with an alternative to a complete public exposé of the documents, or maybe taking it to a judge, bringing it to a condensed meeting, a meeting in camera, or bringing experts in to try to codify what would be considered private information. They did not come up with a solution, so I made my ruling based on that.
My ruling was based on the Constitution, in essence, and the explanation of what privilege was. As difficult as it was a challenge for me as an individual, it was not a hard decision to make because it was a breach.
Senator Wells: So you allowed them the privilege, if I may, to set aside or make immune some documents. They were unable to do that, so it continued.
Mr. Levac: Correct.
Senator Wells: Earlier you talked about paper and things. What are “things”? Emails and texts?
Mr. Levac: “Things” is one of those wonderful words that was invented a long time ago to capture almost anything else that comes along. It’s a small, tiny example of implements that come along that we have never heard of. Ask somebody who is 80 years old had they ever heard of — make a litany of things. I spoke to some seniors who didn’t have TVs. They only had radios. So “things,” with an open mind, can be defined inside of what’s coming.
Senator Wells: It’s a non-limiting term.
Mr. Levac: Yes, it is a forgiving term. It forgives your misunderstanding of not realizing that Twitter or Facebook is coming.
Senator Wells: Thank you very much.
Senator Joyal: Welcome, Mr. Levac.
I was particularly struck by your last comment — I will try to requote your words; correct me if I am wrong — that privilege prevails in that there is no supremacy of the Charter rights. That’s not the reading I had from the previous decisions of the Supreme Court, especially regarding the New Brunswick Broadcasting Co. in 1993 and Harvey in 1996. The Supreme Court said that there are two parts of the Constitution. The privileges are recognized at section 18 and there is the Charter. No part of the Constitution should supersede one or the other. There is a famous quote by former Justice Beverly McLachlin that no part of the Constitution prevails on the other part. So, then, the task of the court is to reconcile, to balance the two. When the court does that, the court in fact recognizes that the Charter has some kind of moral obligation on the use of privileges. Otherwise, they would say privileges prevail. That’s not what the court has stated.
We have Supreme Court decisions in relation to privileges, the famous 2005 Vaid decision, which I’m sure that you have read, and the Chagnon decision of this year in which the Speaker of Ontario intervened. I remember it very well because I was also pleading there. What I draw from those two major decisions is that when the court is faced with the exercise of a privilege that would violate the right of a third party — in Vaid, it was the Speaker’s driver; in Chagnon, it was a security guard, so it’s a third party, not a member of Parliament, or a member of the Legislative Assembly of Ontario, or, in Quebec, a member of the National Assembly — the court is challenged with the objective of protecting the rights of the third party while also maintaining the privilege. When they can find a way to recognize the right of the third party, they do it. Hence, the unanimous decision in Vaid, and hence the decision in Chagnon.
We must recognize that, in the world we are living today, when Parliament claims the exercise of a privilege that involves the violation of the right of a third party, the court will not say outright, “No, it’s the privilege of Parliament.” They will try to reconcile the two and find out if there is not a way in the system to allow for the third party rights to be recognized and maintained. That’s my reading of those Supreme Court decisions.
I would qualify your last comment in relation to the challenge we face as a legislative assembly or any other legislative assembly in Canada in maintaining and not codifying our privileges. If the rights of a third party are affected by the exercise of a privilege, we must have a way to deal with that; that is, the system offers an opportunity for the person who feels aggrieved to appeal to a board of the assembly or to a body that would be created whereby a reconciliation of the rights would take place. That’s where I think we are at this stage in Canada, as much in the provinces as at the federal level.
Mr. Levac: I believe you have captured the essence of my comments except when I said, “the supremacy of the Supreme Court.” Earlier I said — and I think that qualifies my comments — that if we find ourselves to be at odds with that, we still have the power of legislatures to legislate as opposed to codify. I’m suggesting that if you chose to do that, you could have that discussion on whether there is a way we can protect the third party. But the rights of the members are what we’re talking about here in the discussion of privilege.
Parliamentary privilege is designed specifically for the elected members, and the Speakers of all of those legislatures are charged with the responsibility of defending the rights of those individuals.
The staff and all of the other individuals that are considered to be third party can be captured in regular judicial law. However, if there is a decision that parliamentary privilege is creating a problem for the third party, then it would behoove the legislature to evaluate and decide whether or not legislation is needed to do a check and a balance against that. But the courts tend to take care of that. The point I was making is that in Ontario, they have yet to do anything that implies that the rights of the members have been removed without even codifying privilege. They are even making statements in their rulings, Marin versus Parliament, that says we don’t want to go there because that’s a privilege and the right of the house. He was a third party, but he was a member of the legislative assembly by the nature of his appointment.
Senator Joyal: The Vaid case was very interesting because it involved the driver of the Speaker, so he was an employee of the Speaker. You have been a Speaker. You know that you have a certain number of employees under your management.
In Chagnon, your former colleague, Mr. Chagnon, claimed that he, as the Speaker, had the responsibility to maintain the privileges of the house. They are the privileges of individual members, like my privileges as a senator and the privileges of any other senator around this table, but there is also the privilege of the institution per se. The privilege of the institution is essentially in the hands of the house and in the hands of the Speaker on behalf of the house.
So in the context of the privilege to exercise management over the employees, as Chagnon has stated very clearly, there are very strict limits in relation to that. But it doesn’t mean that the employees of the house should not be protected. They have to be protected also.
I will give the example of sexual harassment. You know, sexual harassment didn’t exist 20 years ago. Nobody thought that any legislature in Canada had to be preoccupied by that. It existed as a problem, but it was a problem nobody wanted to see.
Now we are fronted with the problem. We have to deal with it, and we don’t want the court to meddle in the management of the employees of senators or the Speaker. So, how do we address the exercise of our privileges to remain away from the court’s scrutiny but to protect employees’ rights?
I give the example of sexual harassment, but it is a labour relation problem between a senator and his employees or between the employees of the Senate as a whole. And not all of those employees could be claimed to be under the privilege of the house. That’s where we have to draw the line, which in my opinion is the real challenge we face.
Mr. Levac: Therein lies my comment about the responsibility of legislation, because we didn’t have certain types of legislation for sexual harassment; but we do now. There are other things happening that will tell us and inform us as we move through. But if you codify it and simply say, “This is how it’s read,” the courts will still make decisions. The courts will still have judgments. But if you’re going to plead to the Supreme Court that this is beyond their scope because of privilege, I think legislation is a better stick to use than it would be to say, “We are capturing everything under the privileges.” Courts are still going to tell you. In Quebec’s case, they use the concept of parliamentary privilege, and the court still ruled. But it didn’t have legislation that said “I protect the third party” or defined what that is.
In codification, you can explain that we believe parliamentary privilege, includes staff, includes employees, includes these members. But the Constitution actually did not say that. The Constitution said it was for the members.
I think we’re challenged with coming up with ways in which we want to take those issues and deal with them, because we have seen examples pop up that we never thought of. We didn’t think that would happen, but it did, so you have to then decide how you want to respond to it. In my opinion, and I mentioned it a couple of times, the legislature can put legislation out that helps, and that, to me, represents the codification of the protections you’re looking for. As we have done in the past with sexual harassment, texting, sexting or whatever that is, we never had rules like that before because we never had the implements. Now that we have the implements and people have created ways to become nasty on it, we are now putting rules and regulations on about what you can and can’t say.
The Chair: Senator Joyal, maybe I can put you on round two because the witness has stimulated many questions.
Senator Dalphond: Most of my questions were asked very ably by Senator Joyal, so I’ll go just one note further.
I understand that your office intervened in the Chagnon case, and I understand the logic of what you’re saying is that the courts should be the ultimate decision maker in connection with the extent and scope of parliamentary privileges because this is almost unavoidable to a certain extent. The last word will always be with the judges instead of the legislatures.
May I ask what you thought of the judgment in Chagnon, and what has been done by the Ontario legislature afterwards to adjust to the ruling?
Mr. Levac: As I indicated, June 4 was my last day. I was the caretaker speaker until July. I will say that the disappointment I felt was that from my knowledge of the situation, it looked more like entrapment than it looked in terms of somebody coming in. Because apparently, from what had happened, steps were taken that implied quite clearly that whoever was doing this had no idea what parliamentary privilege was. But they knew enough to pull the person away from the spot where they couldn’t do what they wanted to do.
For me, that should have been the focal point of the privileges of the parliament because they should not be administering papers. As I indicated in the deputation, they shouldn’t be serving court orders. They shouldn’t be doing anything inside of the house because, for simplicity’s sake, it’s a bubble; you’re not allowed to come in. But as we come out, as anyone who has been an elected federal or provincial official knows, the first thing that comes out of the opposition — not the official opposition, just whoever is speaking against the person — is that they stand up and say, “Say that outside.” Because they know that they are protected inside. As soon as they go outside, they are not protected. That’s the essence of what privilege is all about, in a simplistic way.
What disappointed me was that there didn’t seem to be a clear acknowledgment that the privileges were there and needed to be protected. We’re the ones that should be doing that.
I guess what I’m saying is that I’m not sure that codification gives you that answer or that comfort. I am convinced that doing it the way I described Ontario was doing it, and then dealing in the courts with the situation that comes, is the way to go. Ontario has not changed its approach but made it very clear that if anything is happening that you know should not be happening, do not respond. We took that as a practical example of what could happen to you because it did happen in Quebec.
It was used as a vehicle to ensure people understood that if you get kind of set up, think twice or ask somebody who could help you with that.
[Translation]
Senator Maltais: Welcome, Mr. Levac. A person with your expertise is always very useful. Thank you for being here. I was a member of the National Assembly of Quebec for 12 years. The extension of parliamentary privilege is a matter that has never been clarified by the courts.
We agree that parliamentary privilege is found within Parliament, or in the rooms that belong to Parliament and where the members meet. Do you think that a constituency office is an extension of Parliament?
Computer documents and equipment, such as tablets, computers and cell phones, are first and foremost the property of the Parliament assembly. The material is entrusted to a member for work purposes, so this automatically becomes an extension of parliamentary privilege. Do you agree with this principle?
[English]
Mr. Levac: That’s an interesting question. My understanding to date is that it has not been seen as privileged material unless it’s specific to the committee. So if a committee is travelling and they are doing a deputation in northern Ontario or in Windsor, that committee being struck and starting to do the work, that’s privileged inside of that committee meeting but not outside of it.
As far as the materials are concerned, I believe it’s only the materials that would be associated with that committee specifically. So if somebody is doing a deputation and that material becomes the material of the committee or the committee requests an expert in Windsor to come and present in Windsor, that person is bound by the request as if it were a committee in the house.
Other than that, my sergeant-at-arms, Dennis Clark, and the previous clerk, Deb Deller, we had a discussion about protecting the constituency offices through the legislature. It was reviewed at that time. I was not part of that review, by the way. It was a recommendation to me that the constituency offices were not part of the legislature and that the responsibility for protection was that of the local police. Therefore, they would only make recommendations on the safety and the security of people in there. By extension, the assumption was that it was not protected by privilege of the legislature. That’s my understanding of it presently, but I would have to look into it a little more deeply.
My experience was that it was not only when the committee meets as a travelling committee or a travelling opportunity of the legislature. So there have been situations.
Historically, we had celebrated the anniversary and had a house set up in Niagara-on-the-Lake. It was officially a legislature, and it was protected by privilege as well. So wherever the essence of that place is, it is protected by privilege.
With regard to paperwork and constituency offices, I’m not aware. It would be worth evaluating to see if there is a reason we should be doing that. It’s like looking at the future.
[Translation]
Senator Maltais: You’ll agree that the tablet contains all the documents distributed in the committee. As a result, I carry my office with me. If a legal service could seize the tablet for any reason, it would be taking documents not only from me, but from the committees and the Senate. There in lies the issue. We didn’t have this type of issue 50 years ago because there weren’t any computers.
If we look at the Guy Ouellette case, the courts decided to prohibit the computers from being opened and to return the computers to their owner, member Guy Ouellette. This is the case law for the courts on this matter. This guarantee should be given to parliamentarians—and I’m looking at Senator Dalphond, a former judge. It’s very important, not only for the parliamentarian, but for institutional security and by extension state security. These tablets contain a great deal of information used exclusively by parliamentarians. However, they must remain the property of their user, who is a parliamentarian, and the property of the Senate institution.
Did you need to rule on parliamentary privilege as Speaker of the legislative assembly?
[English]
Mr. Levac: Yes, I had a couple of cases where a member complained to me, through the house, that their rights were denied when a party had an event and didn’t allow other party members to attend. It was a slippery slope for me to decide because I wanted to make sure that everyone recognized that every member had a right to be in that building anywhere, save and except security concerns and locked doors. It was a publicized event, but it was not publicized as an open event. Thereby, the party used its own caucus room, which was protected by their right to have a caucus room, and somebody denied that person entry into the caucus room.
In my ruling, I admonished the party that had the caucus party by not being clear enough that it was a party event for the caucus and their invited guests, but I also indicated to the member that his rights were not violated because the event was just that. But I made it clear to them that they — in my rulings, I always took a little bit of the other side and admonished anybody who thought they were playing games with or being cute by a half when they pulled a fast one on somebody. It happened two or three times.
A newly elected leader decided to have an event, and security told the person that they weren’t allowed to do what they were doing. One of the staff members came by, stood in front of the security guard and kept them busy while they were doing this event. So I admonished the leader and his staff, and I admonished the individual who played a fast little trick to keep security away from doing their thing. I also said that not only did they insult me and, insult the place, by what they did, but they lessened it. I told them that the next time, or if it happened again, I would be removing some of their privileges because I felt that it was more than simply a cheap trick. It was an insult to the institution. It was an insult into the way in which we operated. Somebody said I took it too far, but I said no, I didn’t take it far enough because the sanctity and the sacredness of that institution has to be protected.
I come back quickly to your other point about documents. That needs clarification and codification, but that’s at the moment. So we should be looking at how are our privileges extended beyond the house? Do we have privileges that extend beyond the house for the house purpose? Tablets weren’t around. You’re absolutely right. But now that they have them, ask any minister who has been removed from cabinet because they left a binder somewhere. That’s sacred material. So I think it needs clarity and a little work to ensure that people understand that.
We have members — I dare to say, not insulting anybody — senators, MPs, MPPs and councillors who don’t know the rules, who don’t know what privilege is, and who don’t know those things. So we use these kinds of events to educate on top of improving or better understanding those things, and that’s why we should be doing the things we’re doing.
Senator Sinclair: I found your presentation very interesting, Speaker. Thank you for being here to share your thoughts with us. I wonder if you would comment upon three specific areas that might give us some guidance with regard to our study of this question. You commented on this to a certain extent, I wondered if you might have some thoughts about the extent to which this committee should address privilege in the context of these three areas.
One is the question of parliamentary privilege and social media. You have commented a bit about it, but maybe you have something further you would like to say.
Another is parliamentary privilege and the broadcasting of proceedings. Recently, of course, the Senate has started to webcast and broadcast the proceedings over television, so the question of the extent to which privilege attaches is an issue.
And I’m curious to know more about your thoughts on the issue of parliamentary privilege and travelling committees, whether there are limitations to the extent to which parliamentary privilege attaches in those proceedings. I recognize that one could argue that parliamentary privilege attaches from the moment that the committee meeting starts to the time the committee meeting ends, but what about in transit and returning and things such as that?
Mr. Levac: Senator, that’s a tougher question, so I will leave that to the end.
I use a phrase when I explain how sometimes seemingly simple things are complex and complex things can be simplified. I call it waltzing gracefully on a moving carpet.
How do you deal with this? Social media has become has been the centre point of so-called free speech. Parliamentary privilege is condensed. Parliamentary privilege only happens because you got elected, and it only happens because this institution is so important that it’s protected and separated from the judiciary and other things. Social media is an avenue that opens the box, so I think it has to be clarified. I think we should be using it to clarify.
If the work of the committee is being — and I include broadcasting in this — used as a vehicle to transmit the rights and privileges of the members and to do their work specifically in a committee, specifically in the house, social media has to be defined enough that it fits into that box.
I will give you some quick verbal rulings I made on the fly. The media were taking pictures with their cameras, not getting the official tags that they’re supposed to have as media, and taking pictures of people playing Pacman or Candy Crush over their shoulder and then posting it. I considered that to be verboten. I said that’s not supposed to be happening, not because the person was playing Candy Crush — which, by the way, kills some time. I took that person aside and said, “You have to pick your moments here.” I call that the “BlackBerry prayer,” when somebody is speaking in front of you, and you put your head down, playing with your BlackBerry, and it looks like you’re praying.
I got accused once of sleeping, not as Speaker but as a sitting member. I would never fall asleep.
In terms of the value of social media and doing work, senator, that would be a consideration for clarity, on whether or not that material would be used as parliamentary privilege. But you also have to come to an understanding that you’re broadcasting it to the world. That’s what social media does. It will go around the world.
How can you govern that? We have laws in Ontario that they don’t follow in Quebec, and there are laws in Quebec that they don’t follow in British Columbia, let alone around the world. Can you imagine the Chinese government getting sued by somebody at the legislative level saying, “You breached parliamentary privilege”?
So we have to come to grips with the reality of how to use social media inside the gambit of parliamentary privilege. There has to be more clarity and discussion around its use as opposed to simply a pad or a laptop being used to hold material so that you can do your work or else write out questions or answers. That’s a lot different than social media, and I think you would be biting the dog’s tail to get control of that.
As far as broadcasting is concerned, the Canadian broadcasting system has particular rules and regulations regarding what you can and can’t put on the broadcast. Quite frankly, they will follow the regular rules that are out there at the Canadian level and the provincial level.
Again, privilege is privilege. Whatever is broadcast is privileged. Let’s say you give a speech and it’s broadcast. Somebody doesn’t like it and they want to sue you. It is not going to happen. It is your privilege. You can still say what you want to say in that place because you’re protected. It doesn’t matter if it’s broadcast or not broadcast. You’re still saying it in the house.
As far as travelling committees are concerned, my understanding is that they are constituted as part of the house. Your observation is the one we need clarity on, which is that when the gavel goes down and the meeting starts, you’re now in committee. When the gavel drops at the end, you’re now out of committee. Once you’re in committee, you’re protected; once you’re out of committee, you’re not. Once I’m out of the house, I’m not. The same rule that applies.
If I say something libellous in the house and they yell “Take it outside,” and if I go outside and say it, I’m inviting a lawsuit because I know I’m breaking the law. Once I’m in the house, I’m protected.
I believe that travelling committees carry the same understanding. That would be my interpretation, but I think it would be worth clarifying because you added that little twist that makes one think, “In preparing for a committee while I’m in a car driving there, and my documents are with me, am I protected as I go into committee?” I would probably say that it is the very same as me walking from my apartment in Toronto to the house. I have to hold on until I get to the house before I can “say” and “do” and get protected. Because if I’m outside the house and jaywalk, I can get ticketed.
That would be my two cents’ worth, senator.
[Translation]
Senator Dupuis: Good morning, Mr. Levac. Thank you for being here today. Are you saying that privilege is directly related to the performance of parliamentary duties, regardless of whether the duties are carried out in the committee or outside the House and whether a computer or another item is used?
[English]
Mr. Levac: Yes, within the definition of it being the work of the house, the work of a committee and the work of a travelling committee.
[Translation]
Senator Dupuis: In the course of your duties as Speaker of the assembly, did you have the opportunity to address the privilege of the assembly as an institution, as opposed to the privilege of a member of the assembly? In other words, are there areas where one type of privilege can conflict with the other type? We talked earlier about third parties. However, when we talk about the privilege of the institution as opposed to the privilege of a member of the institution, the issue arises.
[English]
Mr. Levac: Off the top of my head, what I would probably cite is that in Queen’s Park, in Toronto, right on the site of the legislature, it used to be the property of the University of Toronto. The main campus of the University of Toronto is right across the street, next door. They and the city were working on an extensive plan to rejuvenate a street, the lands that are on their side, and even lands that would imply changes to the legislature, which, by the way, owns the land and bought it outright; so it wasn’t the university. But they were making plans that would have an impact and make changes to the legislature. We had to speak to that and gently nudge both the city and the University of Toronto that the next time you start doing your planning, you better talk to us if you’re included in this.
It would have had a minor impact on the rights of members. It would have changed their parking assignments, and members’ access to certain areas of the legislature would have been closed off while this construction was taking place. But my rulings were more about the legislature. And it wasn’t privilege; it was more about property maintenance. There weren’t any privileges being removed other than the fact that they would stop us from using certain grounds at a certain time.
I honestly can’t think of an example, unless we start moving towards what Canada has done in relocating the Senate and senators. Their rights and privileges of access would have to be diminished, then improved and changed. While that’s going on, the privilege of having the Parliament in place is the decision to spend money to fix it and to add to it.
Those are the only examples I can think of in terms of there being a conflict between legislative rights. When you’re talking about privileges, it’s not about the privilege of the house; it’s about the Constitution bestowing on the legislature its responsibility to protect the rights of the members, so I don’t see a time in which those two would be in conflict. What I would see is that if the members’ rights are diminished by outside agencies, such as the judiciary or the police or something else that’s infringing on what has already been granted to Parliament, the only people that should be diminishing that in any way, if they’re going to diminish, would be the legislature itself. We shouldn’t have courts, the police or anybody diminishing that.
Hence, my comment of saying you’ve already got privileges. You’ve already got parliamentary privilege. Why would you diminish it? The only thing I would do is either improve it or change it. But if you codify it, that limits that, and you’re removing something automatically. Somewhere down the line, something will come along that’s not codified and it will be in someone else’s hands to decide what’s going to happen.
I come full circle back to that, but I don’t think the two are in conflict. I don’t think the Speaker would be challenged by saying the rights of the legislature supersede the rights of the members, because the definition that I was taught was that I’m there to protect the rights of each member. So where we have it doesn’t make any difference.
[Translation]
Senator Dupuis: I want to clarify my question, because your answer leads me to another question. You’re telling us that, as senators, we also have a responsibility to maintain our privileges, including in a codification approach that could jeopardize those privileges, from our perspective, in federal legislation proposed to the Senate?
[English]
Mr. Levac: Correct. My recommendation is don’t do it as a comprehensive codification. Do it as waltzing gracefully on a moving carpet. Give yourself some room to dance.
Senator Ringuette: Thank you very much for presenting us your experience in regard to this issue.
I might be of the old school because I fundamentally believe that the privilege to our institution is the fact that I can speak, and the material I seek in order to make that free speech is central. I wouldn’t I say fear, but sometimes I would say that I am concerned that parliamentarians are maybe taking this freedom of speech too far in a somewhat abusive way, and I relate that to the comments of Senator Joyal earlier in regard to employees.
I did follow from afar the issue of André Marin. To what extent was that the exercise of freedom of speech? I still question that. The parliamentary privilege we have is freedom to speak within the chamber, within committee, which is an extension of the chamber. I consider the material that I gather to enable me to have that freedom of speech, whether it’s a tablet, a written document or a face-to-face discussion with a concerned citizen, that is privilege to me. But I do find that we need to be cautious of abusing privilege. You can have a carpet, but to what extent does that carpet allow for abusing the notion of privilege?
I guess you understand what I’m saying. There has to be a balance in regard to what I need as a parliamentarian to express myself freely without repercussions from the courts, civil proceedings and so forth, and my non-abusive dictatorial action, should I say, in the treatment of employees or other people. For me, that’s beyond the scope of privilege.
Mr. Levac: If I may, other checks and balances are in place that should be taking care of some of those things.
Under the guise of privilege, it was recognized back when the Constitution was formed that we needed to protect these members from outside influences such as the judiciary and even the media, because back then the media had extreme power, as did the police. This bubble had to be created in order to protect them because there needed to be an openness and flow of information, flow of ideas and flow of response.
There are other sources that provide for the protections you’re talking about: the integrity commissioner, the ombudsman. Several entities are built into the system such that if there are problems as a result of what you’re talking about, they can be addressed. That includes the Speaker. Quite frankly, that’s another power of the Speaker.
Here’s something that has not been codified for those interested: The Speaker does not have a list of words that can’t be said in the house, at least not in Ontario. In Ontario, it’s the tone. It’s the inflaming of the house. Somebody could call someone else a duck, and I could call them to order because it created chaos in the house. So we don’t have a codification of the words.
We know that we cannot call someone a liar, in addition to all of the different ways in which creative thesauruses out there can say that. The Speaker has to be nimble and quick on their feet to hear something to make sure they’re not saying “petard,” for example. “Canard” is another one, and “bull squat.” Those are not swear words, but the Speaker can still say it has to be withdrawn, that the person cannot do that.
The Speaker has the responsibility and is culpable for the control of the house to ensure that the members don’t misuse those rights that exist as a result of privilege. The example I would give you is that, in a court of law, would a judge tolerate certain things going on in their courtroom? They’re in control, and if they don’t like the tone, they can bring the tone right down.
There are other institutions available to us to ensure that the protection of those privileges don’t go too far. For my two cents’ worth, the integrity commissioner is a valuable tool. Some parties and staff belong to unions. A union can charge a member with mistreating a staff member.
Here’s the last kicker that really gets people upset, but I have not really been too worried about it: the media. The media know how to spank people. “MPP so and so abuses their staff and there has been an accusation that they did something wrong.” If they did, it will come out. If they didn’t, the story will pass.
So, many checks and balances involved in this. But regarding the talk about codifying privilege, my general comment is that if you start to codify it, you’re going down a slippery slope of confining yourself and not providing yourself with a future need of what was missed in the codes you put together. The only response to that is, “Well, we’ll just keep changing the code.”
The Chair: To your point, very recently here in the Senate, a former colleague had to resign his seat in large part because of a media story. It all started with a media story and ended up with a resignation. You’re right that the power of the media can’t be underestimated.
We’ll go into a round two. It’s been stimulating thus far.
Senator Joyal: My question would be outside the agenda this morning. It would have been to ask what you think of the decision of the Speaker of the House of Commons at Westminster who refused to put some amendments to a vote in the house, claiming the precedents of the 1700 —
Mr. Levac: Dangerous.
Senator Joyal: It’s something that might resonate.
Mr. Levac: Honestly: dangerous.
I have to clarify that this is from my perspective and my understanding of what the role of the Speaker is — the role the Speaker took in that circumstance was a step too far.
Senator Joyal: I want to go back to our issue this morning, which is your interpretation of the Supreme Court criteria, which would partly answer the questions raised by Senators Sinclair and Maltais, and, to a point, Senator Dupuis. The Supreme Court stated that anything directly related to the legislative and deliberative function of the assembly is protected by privilege. On the basis of your experience, what do you define as “directly related to the legislative and deliberative function of the assembly”?
Mr. Levac: This is where I would take that responsibility instead of give it away. If it’s documents, social media or committee travel, take it and then be told you can’t, as opposed to not doing it and not protecting those who have what we consider to be the privilege.
I just think that most of the rulings have been respectful of parliamentary privilege, because most, if not all judges, will do some homework about that. They will discover that the intent was to create that opportunity and that protection.
In Ontario, there have not been examples, and that’s why, toward the end, I basically said that it has proven to be okay so far, because they have not had the interferences or the challenges of the court toward privilege.
Again, to reinforce, I would take it. I would say that when we travel, we’re protected. When we use our tablets, mechanisms and machines for the work of the committee, we’re protected.
But I think the one thing Senator Sinclair brought up for which I think is worth clarity and maybe even getting some advice, legal or constitutional, is in the preparation of or moving to a travelling committee. If I had a driver and was sitting in the back seat of a car — I never had a driver, even as Speaker — preparing for the committee, and we’re in an accident and my tablet goes flying, is it protected? My comment is that I don’t know the answer to that, which means let’s get clarity on that. If it’s to do the work of the house, when does it start and when does it finish? That is where we should be getting some clarity, because we should be taking it before we give it away.
Senator Joyal: The issue of the tablet is rather problematic, because on a tablet, you would have, for instance, the draft report of a committee. As Senator Maltais mentioned, on my tablet, I have the draft report, which is protected by privilege, of course. On the same tablet, I have a conversation with my assistant that might be of a private nature. If I asked him to make a reservation somewhere for dinner tonight, it is not related to the legislative and deliberative function of the house or the committee. It is nevertheless on the same equipment. So if somebody wanted to look into my computer or my tablet, how would you make the distinction between what is directly related, like a draft report, and what is not, such as an outside discussion or exchange of views? That’s where I think it is problematic.
Mr. Levac: You’re right, and that’s where courts help. I’m not a lawyer or judge, but the police have to get a warrant, and the warrant has to describe what they’re looking for. For those people who are lawyers and judges, you can help me with that.
There would be a process alongside and parallel to the privilege that would be able to be identifiable as something being privileged information that cannot be taken or absorbed; we have to lock it down. But the provocative texting that you were doing is not protected.
So the courts would do that for us. That’s what the courts are there for. We would use privilege to protect it, meaning that if the senator was in an accident and somebody took the tablet, the senator would demand the tablet back because it had privileged information in it. Whoever has it — a crook, the police or somebody else — would have to follow the rules of the law.
Senator Joyal: We had the same problem some years ago with the Auditor General when there was the audit of senators’ expenses. The Auditor General wanted to take the whole of the information contained in senators’ computers, not only the information related to expenses.
Mr. Levac: Anything else.
Senator Joyal: Yes, anything else. The Auditor General asked senators to sign the waiving of all privileges.
Mr. Levac: I hope every single senator said — well, I won’t say unparliamentary language, but I hope all senators would say, “No, thank you.”
Senator Joyal: That’s very polite. There were senators who refused to waive privileges in the letter that was sent by the Auditor General, and some others accepted. It seems to me that it is a very dangerous course of action whereby there are no criteria to determine the condition in which a senator might be compelled to give access to his or her information on the —
Mr. Levac: I would agree that if you’re indicating items that you can describe, protect or codify, you do that, because they are in need. I referenced in my presentation that there are circumstances in which you want to do that. Identify them, get it done. But my general comment is that a comprehensive codification is something you don’t want to do.
All of those other examples are absolutely bringing clarity to it: giving a page of definitions of what this or that means; codifying specific examples of staff versus a car accident. All of those things are absolutely on the table and should be dealt with to prevent misuse by outside agencies of the privileges of the members. It’s not to diminish them. It’s to explain the depth of them and to help modify what is necessary in a modern age 21st century or 22nd century. Leaving it open for you will allow you to do that.
[Translation]
Senator Maltais: Thank you, Mr. Levac, for giving us so much of your valuable time.
I want to address two points. About 30 years ago, the Lobbying Act came into force at the federal and provincial level.
If I had accepted all requests from lobbyists for meetings today, I wouldn’t be able to attend this meeting in the Senate or my other committee meeting this evening.
The Lobbying Act gives lobbyists the opportunity to request meetings, and we must decide whether to accept or deny the requests. To what extent can we be responsible as parliamentarians, under the Lobbying Act?
[English]
Mr. Levac: I think you captured the essence. You are not bound to take a single meeting; you’re not restricted to take a meeting in your definition. But the definition of you as individuals, in terms of servants of the people, have the meetings. However, if they infringe on your responsibilities, then you have to have somebody — your scheduler, a staff member or even yourself — determine whether or not this is something that you need to have a meeting for.
I have had the same experience. Even as Speaker, I was getting lobbied. Sometimes I got lobbied for Speaker things which I kicked them out of my office for. Most of the time, it was for something that needs to be changed or done. If you, as an individual, are pinpointed as someone who has a very keen interest around agriculture, then you’re going to have the farmers and the farm implement industry. They want your meeting because you’re going to take that up as a passion. There is no defined expectation that an elected member must take a meeting, any meeting, but the very nature of who you are tends to dictate the opposite.
If you took a look at my calendar when I was active — and I’m not bragging, just being honest, and I think more politicians have to be even more honest — we work seven days a week. You work on your birthday. You work on your anniversary. You work even at Christmas. You work because that’s the nature of that beast, and we keep feeding that beast. I defend parliamentarians to the hilt because of the very point you’re making. Your time is gone.
I am of the opinion, though, that you should be able to say, “I’m not taking that meeting.” There were times in which I would advise members not to take a meeting because of the situation the member would be put in. If you were the chairperson of a committee studying legislation X, and they wanted to meet with you to lobby you to say, “No, don’t do that legislation,” I would advise you not to take the meeting but to defer it to somebody else who could take the information and present it to you.
We have to be smarter with that because the public is going to take that information and abuse it. That’s the other thing that happens: Oh, you had a meeting with Mr. So-and-so; you are in the pocket of Mr. So-and-so. Automatically, without even knowing what went on in the meeting. You could have told the guy off. You could have said, “Get out of my office; you’re here to lobby me and I don’t agree, so get out.” But that doesn’t get reported. It was: You met with Mr. So-and-so, so you are in the pocket of Mr. So-and-so. We’re our own worst enemies when it comes to that.
[Translation]
Senator Maltais: That’s an excellent point.
I have one final point.
If we take into account the parliamentary privileges in the British system, which are fairly similar from province to province and at the federal level, as opposed to the Canadian Charter of Rights and Freedoms, which has priority? Does the Canadian Charter of Rights and Freedoms supersede everything, or doesn’t it include parliamentary privileges?
[English]
Mr. Levac: I tend to agree with the comment made earlier by the senator that indicated that the Supreme Court doesn’t hold one above the other. Morally, maybe. I don’t know the minds of the Supreme Court justices, but I would say this: The Charter of Rights and Freedoms has been used as a bogeyman, that it’s protecting too much and allows you to do too much. On the other side, there is another group of people who believe the Charter of Rights and Freedoms needs to be even stronger.
The Supreme Court — over the decades and centuries when you look at supreme courts around the world — has been pretty good at figuring out what the intent was of those kinds of charters. Some people don’t realize that Louis Riel probably had the first human rights code, as a traitor. I say that with tongue in cheek. The reality is that he protected the minority White people with his human rights code and told people that, which didn’t get reported until many years later.
The Charter of Rights and Freedoms should be seen as the civility of one’s country. Where you don’t find charters of rights is where you find most of the abuses.
[Translation]
Senator Maltais: I want to remind you of what happened in Quebec 20 or 25 years ago, following a Supreme Court decision requiring bilingual signs in front of businesses. The business owners referred to the Canadian Charter of Rights and Freedoms, which resulted in the adoption of legislation in the National Assembly with a notwithstanding clause. In other words, it was necessary to move beyond the Canadian Charter of Rights and Freedoms and the Charter of Human Rights and Freedoms to pass legislation that aligned with the Supreme Court decision.
This isn’t common. This type of situation doesn’t happen often. I hope that it won’t happen again, because there are consequence. What you’ve just said is very important. The Supreme Court and the charter don’t necessarily go hand in hand. How should a parliamentarian in good faith act in this type of situation?
[English]
Mr. Levac: They have to speak their heart. They have to speak what they believe in passion, what the intent was of the Supreme Court ruling or what the intent of the Charter of Rights and Freedoms was implying, that everyone is equal under the law. You’ll notice that they have had to add. Ontario has added to theirs, Quebec has added to theirs and Canada has added to its own as more information becomes available that rights and freedoms were not delivered to everybody equally. Therein lies the value of what the Charter of Rights and Freedoms is all about.
In a true democracy, the underlying belief is that everyone’s rights are equal, no matter who, what and how you act. Those rights have to be protected, which is why I believe the Supreme Court does not, on a regular basis, find itself in conflict with the theory of the Charter of Rights and Freedoms, but the Constitution is a living document as well. It needs changing and revision from time to time.
Just ask the Americans how many amendments they have and how many have been misinterpreted. The one that I talk about an awful lot is the right to bear arms. If people actually did their historic homework, they would realize that that was not the intent of their forefathers. As a matter of fact, it was for Minutemen; because they didn’t have an army, they wanted to make sure everyone was armed to fight the British, et cetera.
So both of these are fluid, living documents that need to adjust and come to grips with that because, quite frankly, we live in a world where, in some countries, they kill you if you’re homosexual. That’s a deep, deep contrast. I personally believe that’s wrong; they believe it’s right. The contrast to human rights and what that means is huge. In my opinion, those rights need to be guarded and protected very similarly to what we’re talking about right now, and that is the privileges of elected officials. They are sacred.
[Translation]
Senator Maltais: Thank you, Mr. Levac.
Senator Dupuis: Thank you again, Mr. Levac. I want to follow up on your response regarding lobbying. I think that you’ve provided a good outline of the current situation. There’s a great deal of lobbying. The lobbying is done differently in the Senate now, because a number of senators are independent. Things that used to be funnelled to a leader or whip are now open to each individual. For example, we’ve observed the phenomenon of lobbyists that write in the Registry of Lobbyists that they have lobbied an entire committee. This leads other groups to wrongly believe that, because they registered as lobbyists and stated that they had lobbied all the senators on a committee, they were given a privileged invitation to speak before the committee. As a senator and member of an institution, I have concerns. Isn’t the institution responsible for defending the integrity of its process by, for example, working with the Commissioner of Lobbying to resolve this issue?
[English]
Mr. Levac: The short answer is yes, if there is a belief that there are enough people on the committee who feel they are being used by way of the person’s advertising about being able to lobby an entire committee. If they don’t tell you what the person asked for and they don’t tell you what the response was, because each one of you is an independent thinker on a committee and you have differences of opinions, they are portraying themselves as being able to lobby and talk about a topic. But they never give you enough information saying, for example, “They threw me out,” or comments to say that he shouldn’t even have been there. Then, I think, it behooves the committee to make a decision as to whether or not it wants to receive lobbying.
[Translation]
Senator Dupuis: In this case, I can confirm that I wasn’t approached. I don’t mean to say that there were bad intentions. An overly cautious person may be afraid to face lobbying accusations as a result of their efforts to secure an appearance before the committee. The person may err on the side of caution and indicate that they lobbied. If no attempt is made to meet with the individual, as in my case—and I can’t speak for the other committee members—I was wondering whether, in your view, the institution also had a responsibility that extended beyond each individual?
[English]
Mr. Levac: Yes and no. Again, I think from the floor, any senator can stand up in debate or even in recommendation or motion to study this and to analyze whether or not the Senate wants to have its committees to be designated in somebody’s lobbying efforts. You have the authority and the power to design what you want to have happen with lobbyists.
If I’m sitting here as a lobbyist making a presentation about a certain topic, that’s different than lobbying. If I’m a lobbyist and I’m saying, “I presented in front of the committee and I lobbied them all to do this,” that’s a huge difference between giving a deputation.
I will be characterized as making a deputation and answering questions from this Senate committee. I won’t be categorized as someone who lobbied the Senate to not codify. That’s the difference between the two. So if a lobbyist is running around saying, “I lobbied the committee to do this,” you have every right to define what that is. I would probably say, either through the committee, all the various committees or the Senate itself, define what that lobbyist can or can’t say. Then, if it’s said on their website that they lobbied the committee, someone sends a letter, does a post or notifies the person that the verbiage was incorrect — you made a presentation to the committee.
It’s only truth unless you fight it. I can build myself up as a lobbyist who created this great thing and I’m the guy who solved the world’s problems, when all that happened was I made a deputation to the committee.
[Translation]
Senator Dupuis: When you said “I would take it,” in other words, that I have the privilege and that I’m being told again by a court that I don’t have the privilege, have you considered a way to specify privilege through this term? For example, rather than amending the Rules of the Senate, could we publish a directive or guide for how the Senate should interpret its privilege?
[English]
Mr. Levac: Yes, a compendium to what privilege means. As I said before, with no disrespect intended — including myself, by the way, because I don’t know all the rules — I might not have a complete understanding of privilege. It’s better to explain it and provide a compendium that says this is why we’re doing what we’re doing, hence my comment about waltzing gracefully on a moving carpet instead of saying, “Well, section 12.3(a) says I have to do this.”
If you go through a comprehensive codification, (a), you won’t catch it all; (b), you’re going to regret that you didn’t say something that happened six weeks from now that you don’t have in your code and all of a sudden you’re scrambling.
Senator Dupuis: Privilege.
Mr. Levac: Yes, that’s what I meant when I said you should take it. It’s yours. It’s already defined. It’s there for you.
[Translation]
Senator Dalphond: I may follow up on Senator Maltais’ comments. First, I want to make a small clarification. The Supreme Court never required bilingual signs in Quebec. Instead, the Supreme Court said that it was unconstitutional to prohibit the use of a language other than French on signs. English could be used, but French had to be predominant.
He asked an important question and raised a good point regarding the tablet or computer belonging to the senator or member. On that note, I would say that perhaps the committee should look at the issue and draw inspiration from what’s being done with respect to solicitor-client privilege. It’s not prohibited to seize a lawyer’s file or tablet or computer. However, a procedure must be followed. Obviously, the judge must authorize the seizure, and the syndic du barreau or the professional order must be informed of the upcoming seizure. A representative of the order may be present. The police may not be able to access the entire file until the judge decides what’s covered by solicitor-client privilege.
As part of parliamentary privilege, perhaps we could ensure that the Speaker of the assembly concerned, either the Speaker of the Senate or the Speaker of the Legislative Assembly, is informed and is able to help uphold the parliamentary rights concerning the fact that the seized documents must be set aside until a judge hears the arguments on what’s covered by parliamentary privilege.
[English]
Mr. Levac: And I think you’re on to something that says it’s another step in the process of protecting and acknowledging that privileges exist. Parliamentary privilege already exists. It is protected. The courts have, over time, continually indicated that they understand that there is parliamentary privilege.
Ongoing review and clarification would make it better. It doesn’t change it. It doesn’t shrink it. If it does anything, it’s going to improve it. The Speaker’s involvement should only be to clarify for the member, and that member’s taken property, that this is under privilege. After that, the court decides if it’s protected or not. There could be some things in there that they are actually looking for, that we are not aware of, that they need to discover. So we have to be respectful of the court as much as we want the court to be respectful of us. In Ontario, there have been no examples of the courts not understanding that or not working with us, so we should do the same in the other direction.
Your point is a strong one: We need to extend that understanding by saying that the Speaker may be responsible for assisting a member in the protection of his or her privilege in a taken piece of material. That’s the new thing that is happening. At one time, it was simply file folders filled with paper in a filing cabinet. Now there is more information and there is more power in this thing than there was in the first 20 years of computers.
Senator Dalphond: That may require some minimal codification, at least of the procedures to follow.
Mr. Levac: Absolutely, and that’s what I’m supporting. I think that is a very logical and a frequently misunderstood tool that should be used, but this categorizing and complete codification is something else. It’s one of those old sayings: Be careful of what you want because you might get it.
[Translation]
Senator Maltais: Mr. Chair, my honourable colleague mentioned me, so I have the right to respond. My comments aren’t for Mr. Levac, but for Justice Dalphond. I want to remind him that Bill 101 was declared unconstitutional. We had to pass Bill 178 to ensure that part of the signs were in French. My insight was excellent. You may have been a lawyer at the time, but I’m just reminding you for the sake of clarity.
[English]
The Chair: Now I will exercise my right as chair to ask one last question of the witness.
Of course, you were Speaker for such a long time at Queen’s Park but you are also an educator. I have been troubled over the last while for the Canadian public and very often even for parliamentarians. We listen to the media, at times in panels, as they discuss the importance of the separation of the executive, legislative and judiciary branches. You referred to that often in your presentation. That essential element in our system seems to be eroding. What can we do, former Speaker Levac, to educate the public, the media and new parliamentarians?
Mr. Levac: First of all, you’re doing it now just by this exercise and making sure it gets shared. You have said that broadcasts are starting to happen. The more we talk about this, the more we engage in the dialogue that is necessary. It’s too condensed; it has to get out there.
The same thing keeps coming up year after year, decade after decade: In the education system, we need to modify, to continue to change and evolve, and to make it more fluid with new information. Quite frankly, the accusation that this is not taught is wrong. There are courses being taught; I know that for a fact. The kids are engaged — except sometimes the information is not as healthy as it should be. Telling someone to know that there are municipal, provincial and federal governments, that’s not good enough. Kindergarten kids can figure that out; we can teach them. We need to be more extensive in our studies with that.
In terms of engagement, we need exercises; we need to make sure that people are participating in mock Parliaments, mock Senates, mock UNs. We need participation from schools across the board. The idea is that people don’t know this thing, but it’s not that the information is not available. There is more information available right now, accessible on all our tools, than ever was accumulated in a library. What is in there? That is really the question.
By the way, for those who need to know this or are dying to find out, Elvis is alive somewhere in the United States — because someone says so on social media, right? So critical thinking is the cap on top of all of this. Allow people to think critically about why privilege exists. Couple that with the information on why the three levels of government are separated. We see examples of it in the world today: police, judges, politicians — corruption. People get a bad impression. They get the bad news first. They assume everything is bad and corrupted and that we’re pigs at the trough. Nothing could be further from the truth. Are you going to cite me one example? Sure, you are. You’re going to cite me one example. I’m going to cite you hundreds of thousands of examples of good politicians over the decades who have done nothing but good public service — but we’re afraid to say that. So let’s not be afraid to say it.
The Chair: Former Speaker Levac, on behalf of the committee, I want to thank you for your generosity, first of all. We ran longer than we expected because your presentation was very stimulating. We thank you very much for participating in this vital study on privilege. We wish you all the best, of course, in your retirement.
Mr. Levac: Thank you very much.
(The committee adjourned.)