Honourable senators, I rise today to speak to the motion of Senator Saint-Germain stemming from the Speaker’s finding of a prima facie case of privilege concerning events related to November 9, 2023.

As the Speaker stated in her conclusion in Tuesday’s ruling:

. . . this initial review has been to determine whether, at first appearance, a reasonable person could conclude that there may have been a violation of privilege. . . .

Colleagues, “prima facie” means “on the face of it,” so the Speaker found these events may have breached parliamentary privilege. This is not a conclusive finding of an actual breach at this point. That is for a second process to determine, and Senator Saint-Germain suggests a method, one that I submit is improper. I will get to that. But nothing in Senator Saint-Germain’s motion asks the Ethics Committee to determine whether an actual breach of privilege occurred, as should be the case. Instead, this motion already presumes a breach of privilege as fact. Senator Saint-Germain said:

In her decision, the Speaker was clear in establishing a breach of privilege. Hence, neither privilege nor any of our rules in this case need to be studied, interpreted or amended. . . .

Legally, this is extremely troubling. It’s like convicting someone of a crime solely based on a preliminary inquiry without ever having a trial to decide guilt, but instead only handing down their sentence.

I still maintain my actions in this matter did not meet the requirements for a breach of parliamentary privilege, neither on the face of it nor in fact.

There are four criteria required under rule 13-2(1). Only one of these criteria was met, the requirement for written notice at the earliest opportunity.

The Speaker’s 18-page ruling contains almost no facts to substantiate her finding that my case met the other three criteria.

The second requirement is that the matter must directly concern “. . . the privileges of the Senate, any of its committees or any Senator . . . .”

This condition was not met in my case. Social media does not fall under the purview of the Speaker of the Senate. Even Speaker Gagné’s ruling stated:

. . . we must, of course, be most cautious about the risk of unduly limiting freedom of speech, which is a key principle in our society. For this reason, we would not normally deal with social media matters through the route of privilege. Unfortunate comments posted on social media should not rush us into changing this principled approach. . . .

The reason Speakers don’t normally deal with social media matters is because they can’t. Social media is outside the purview of the Speaker and the chamber on privilege matters, as it is not considered a “parliamentary proceeding.” There have been several rulings on this, none of which were quoted in Speaker Gagné’s decision. We have precedent from courts to guide us in this matter as well and, yet, that was similarly not included.

Page 79 of the Third Edition of House of Commons Procedure and Practice states:

The Federal Court specifically determined that communications to constituents are not a proceeding in Parliament nor do they constitute parliamentary papers, and found that they are not protected by parliamentary privilege.

The 2003 case in question involved an MP’s householder, or newsletter, but social media would be the 2023 equivalent of communications to constituents.

The third requirement is that it must be a “. . . grave and serious breach . . . .” Senator Clement herself referred to the tweets as “Careless communication . . .” and said it “. . . lacked nuance . . . .” This does not qualify as a grave and serious breach. Furthermore, neither the post nor the retweet were threatening in any way, nor did they encourage that behaviour.

Speaker Gagné’s ruling states “There was an extremely tight nexus of cause and effect that clearly relates to privilege. . . .” But just saying that doesn’t make it so for my case. There was simply no causal link between my retweet and the threat towards Senator Clement. There was zero evidence that linked the cause of my retweeting a post to the effect of Senator Clement being threatened. No one has shown any link of that.

The post I retweeted told people how to contact two public officials who have publicly funded, publicly advertised contact information so that the public can contact them. The post suggested asking them why they voted as they did on a particular piece of legislation, something which we all are and should be accountable for as parliamentarians. But with that said, I did not and would not encourage anyone to threaten them or harass them.

There is zero evidence that my retweet, one of 796 retweets, in any way caused the threat Senator Clement received. If I had never retweeted that post, the exact same situation could still have happened. Only a few people even engaged with my retweet. We have heard no evidence that the person who threatened Senator Clement even saw my retweet or the original post, or that they even saw her contact information on social media in the first place.

Senator Clement had been named in news reports for several days before that point as the person who moved the adjournment. Finding her Senate contact information takes two seconds through a Google search or the Senate website. Senators Clement and Petitclerc’s Twitter bios still link directly to their contact information on the Senate website, along with the names of their staff members, even though I brought that to their attention in my speech two weeks ago.

The fourth and final criterion for determining a case of privilege is that the request must seek a genuine remedy that the Senate has the power to provide and for which no other parliamentary process is reasonably available.

The Senate does not have dominion over the sphere of social media, and Speaker Gagné’s ruling itself outlined two other available processes on page 10. Clearly, the actions I took in this matter, retweeting a post of two senators publicly available contact information without any comment of my own, do not fit the four criteria to make a case of privilege, prima facie or otherwise.

With that established, I want to directly address the text of Senator Saint-Germain’s motion. First, as I stated, the point of the motion should be to send what the Speaker has found to be a prima facie case of privilege to committee for further investigation, findings and, if necessary, recommendations for an appropriate remedy for the breach. But her motion doesn’t even mention that.

First, it refers the matter to the Ethics Committee for “examination and report.” Normally, such matters are referred to the Rules Committee, of which I am deputy chair, but this is no ordinary motion. It first refers to updating the Ethics and Conflict of Interest Code for Senators, something that happens regularly and doesn’t require a Senate motion to initiate.

Then it refers to “the obligations of senators in the performance of their duties.” I’m not sure what Senator Saint-Germain is seeking with this part of the motion, but it is vague and wide-ranging, which is concerning to me.

But, honourable senators, I have especially grave and serious concerns about the last two clauses of this motion, which specify rules for the Ethics Committee’s process to handle this crucial matter. The first authorizes the Ethics Committee to “. . . meet in public if it so decides,” and the last clause of the motion stipulates that any senator who is not a member of the Ethics Committee may not attend that committee unless they have been invited by the committee to appear as a witness.

These last two provisions are highly problematic. These Ethics Committee hearings on this fundamental question of privilege significantly impacting the free speech of all senators might be in public if the committee so decides, and whether a senator facing breach allegations even has the opportunity to defend him- or herself before the committee is not a given. It is completely at the whim of the committee “if it so decides.”

It is shocking that this is even being proposed by the Independent Senators Group leader. This is not an open, transparent process in the least. Committee hearings of this nature should not be held in secret. Normally, cases of privilege are sent to the Senate Rules Committee for investigation. I have been on that committee since 2013, and it almost always meets in public.

Instead, Senator Saint-Germain’s motion would send this to the Ethics Committee, which rarely, if ever, meets in public. This lack of openness and transparency is especially problematic in light of the clause that follows, which prohibits any other senator who is not a member of the Ethics Committee from attending unless they are a witness and are invited to attend by the committee.

Honourable senators, this is completely contrary to the most fundamental rules of natural justice. This would be like a criminal trial where the accused is not allowed to attend or even watch the trial resulting in their conviction. Since I am not a member of the Ethics Committee, and even though I need to defend myself in this breach of privilege matter, I would not be allowed to attend these Ethics Committee meetings unless I am there “. . . as a witness and at the invitation of the committee.”

What kind of a Star Chamber is this? This is actually horrendous. And how am I to defend myself when these Ethics Committee meetings could very well be held in private, so I would not even be able to watch or read transcripts of these proceedings? I would be unable to know the case against me that I need to meet, because I’ll tell you there is almost nothing to go on for me in the documents and submissions we’ve seen so far. I regret to say Tuesday’s ruling quoted minimal precedent, cited no senators’ arguments from the debate and presented limited facts.

There was almost no precedent quoted in Speaker Gagné’s 18‑page ruling, except for a small, selected part of Speaker Furey’s May 16 and June 13, 2019, point of order rulings that mention social media, but did not address its relationship to parliamentary privilege.

Furthermore, Speaker Gagné’s ruling failed to cite Speaker Furey’s actual question of privilege ruling from that same time frame on May 2, 2019, which stated clearly:

Privilege does not cover all activities in which senators engage. As explained by the Speaker of the other place on April 11, “the authority of the Speaker is limited to the internal affairs of the House, its own proceedings.” . . . I would also note the statement, at page 74 of the 14th edition of Odgers’ Australian Senate Practice, that privilege does not cover “the content of a document which has come into existence independently of proceedings in Parliament.” Such limits are in line with the point, made in the 2015 report of the Rules Committee on privilege, that stated:

In today’s age of Twitter and social media it is also worth reiterating accepted Canadian law that communications made outside of parliamentary proceedings, for example tweets or blog posts, are not protected by parliamentary privilege.

My earlier speech on the question of privilege cited Speaker Kinsella’s 2009 ruling on claims made in a press release involving Senator Cools, which was very similar to the facts of my case and where the Speaker found no prima facie breach of privilege. It was directly on point, yet never even mentioned in Speaker Gagné’s ruling.

Our 2016 Senate Rules Committee discussion paper on privilege, produced when I was a member of that committee, cited five reforms recommended by the 1999 U.K. joint committee for members accused of contempt or facing a disciplinary process.

The committee recommended that these principles should be a minimum standard for disciplinary processes of procedural rights in Canada’s Parliament. They include a precise statement of the allegations against the member, an opportunity to obtain legal advice, the opportunity to be heard in person, the right to call witnesses and examine witnesses, and the opportunity to attend any meeting at which evidence is given and to receive transcripts of evidence.

Honourable senators, from the text of Senator Saint-Germain’s motion and the process to this point, it seems precious few of these principles would be applied in the adjudication of my case. Potentially private hearings, no certain ability for me to attend or watch and defend myself, no transcripts of meetings — this is fundamentally unfair, and, deep down, I believe you know it.

Frankly, this chamber of Parliament should be better than this. We certainly used to be.

Today, you may figure it’s fine because I’m just a partisan senator. Maybe you’re keen to settle a score, but these unfair rules, once put in place, apply to us all, and while it’s me today, tomorrow it could be just as easily any of you.

Speaker Gagné’s ruling is a major impediment to the free speech of senators, applying parliamentary privilege for the first time to social media. This is contrary to the stated facts, all precedents and directly relevant Speakers’ rulings in a largely unsubstantiated new ruling that doesn’t even mention or distinguish the arguments that were outlined by senators or the Speakers’ rulings senators cited.

Honourable senators, some of you are eager to throw the rules overboard in favour of creating a groundbreaking, new, independent Senate, but I ask you to take a step back and truly apply sober second thought here. The principles underlying our parliamentary processes, the freedom of speech, democratic debate, parliamentary privilege, the very laws of natural justice on which our whole system is founded should not be undone on any given Tuesday afternoon. This is not how we as parliamentarians should establish rules in this place for all Canadians.

Senator Saint-Germain said the decision on this matter will govern us for “decades to come.” She may well be right. I ask you to consider this matter carefully before determining on which side of history you will stand. Thank you.