Question of Privilege

Speaker’s Ruling Reserved

October 28, 2020


Hon. Pierre J. Dalphond
[18:36]

Your Honour, I have a question of privilege.

Honourable senators, I rise to raise a question of privilege without notice, pursuant to rule 13-4. I do so because the motion before us, brought in this way at this time, would breach the privilege of senators not in attendance due to the circumstances of the COVID-19 pandemic. With the amendment defeated, we resume debate, and we are preventing people from participating. Specifically, this motion will deprive these senators of their rights under rule 12-2(3). That rule provides that senators appointed to the standing committees and standing joint committees shall serve for the duration of the session. The motion before us would suspend this long-standing rule of the Senate, established many years ago.

The change contained in this motion would be concerning at any time because it reduces the structural independence of senators, with the effect of centralizing power among leadership. However, under the circumstances of the pandemic, this change brought in this way, at this time, reduces the privilege of senators.

With hybrid sittings not beginning until next week, many senators are unable to attend these sittings due to the very serious — and during travel, potentially unavoidable — risk of COVID-19. These senators find themselves in the situation of being unable to intervene, as their right may be removed by the motion being contemplated now. These senators can neither enter debate nor vote on this motion at this time. Nor can these senators prevent the Senate from sitting, from considering this motion or from voting to remove their individual rights as senators.

To establish a prima facie case of privilege, we must consider whether four criteria have been met, as set out in rule 13-2(1). First, a question of privilege must be raised at the earliest opportunity. In this instance, this condition is satisfied according to rule 4-11(2):

A Senator may raise a question of privilege relating to:

(a) a notice given during Routine Proceedings only at the time the order is first called for consideration . . . .

It was called for consideration for the first time today.

Second, a question of privilege must be “be a matter that directly concerns the privileges of the Senate, any of its committees or any Senator.” As noted on page 223 of Senate Procedure in Practice:

The standard definition of parliamentary privilege, which is still used today, was first formulated in 1946, in the 14th edition of the Treatise on the Law, Privileges, Proceedings and Usage of Parliament of Erskine May, and reads as follows:

Parliamentary privilege is the sum of certain rights enjoyed by each House collectively … and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined by statute.

And, I could add, by the Rules of the Senate.

Further, Senate Procedure in Practice continues:

The purpose of privilege is to enable Parliament and, by extension, its members to fulfill their functions without undue interference or obstruction. Privilege belongs properly to the assembly or house as a collective. Individual members can only claim privilege if “any denial of their rights, or threat made to them, would impede the functioning of the House.” In addition, members cannot claim any privileges rights or immunities that are unrelated to their functions in the house.

In this instance, during the second wave of COVID-19, many senators are unable to attend in Ottawa in compliance with public health advice, emergency measures and necessary precautions. Yet, the Senate will and perhaps must sit in any event, including to play its role in the emergency response such as by passing the COVID relief measures. During this time, many senators are unable to participate in debate, to propose amendments or to vote on amendments or on motions. If the Senate were to debate or vote on this motion at this time — it’s not a government bill or an urgent matter — senators may incur a long-term denial of their individual rights under the Rules without any reasonable ability or opportunity to intervene.

In contrast, next week, when hybrid sittings commence, the situation will be such that dealing with this motion would not be a breach of privilege, as senators may reasonably participate in proceedings unimpeded. There is a broader collective issue of privilege at play. As noted on page 368 in the Companion to the Rules of the Senate, in discussing the second criterion, the matter directly concerns the privilege of the Senate if interfering with “. . . the rights of the Senate to the presence of its members . . . .”

On this point, we now have large numbers of senators who cannot attend in person. If we proceed with this motion at this time, we will compound what may well be this larger issue of privilege through an undermining of individual rights when parliamentarians are trying to make the place function for Canadians, albeit imperfectly. It is not my intention in raising this question of privilege to seek to invalidate Senate proceedings that have taken place under COVID-19 circumstances. Perfection must not be the enemy of governments during an emergency, and COVID sets its own rules. However, I do think that taking away individual rights under these circumstances crosses the line.

With this motion at this time, senators will lose their rights under the Rules for the remainder of the session, potentially for some years — though I’m not sure — impeding the functioning of this house by undermining the independence of senators from leadership as protected by rule 12-2(3). This includes the performance of committee work. As well, committee membership may be called into question with the problematic removal of this rule. The second criterion is therefore met with this matter directly concerning the privileges of the Senate, its committees and individual senators.

The third criteria for a prima facie question of privilege is that it is raised to correct a grave and serious breach. Again, citing the Companion to the Rules of the Senate, this means something that for example “. . . would seriously undermine the ability of committees to function and would even jeopardize the work of the Senate itself.”

If, in the present circumstances, many senators lose their right to hold committee seats for the duration of the session through this motion, the result will seriously undermine the ability of committees to function. We have a recent example of this kind of uncertainty resulting from the suspension of rule 12-2(3) by the March 11 motion of Senator Woo. Unlike in this situation, I will note that the motion that was adopted then created problems.

In May of this year when the Progressive Senate Group gained recognition, Senator Munson was removed from the Social Affairs and Internal Economy Committees despite having been designated as a member of both committees in a specific order of the Senate on April 11 made subsequent to the motion of March 11.

As well, Senator Harder was removed from the Finance Committee. The result was that these senators’ memberships of these committees were subject to interpretation and doubt. For that reason, on June 16 of this year, Government Representative Senator Gold moved that the motion adopted by the Senate that, for greater certainty, clarified that Senator Munson and Senator Harder continue to hold their seats.

The third condition is met as contested committee membership is a grave and serious matter for the proper functioning of the Senate.

Fourth, the question of privilege must be “. . . be raised to seek a genuine remedy, which is in the Senate’s power to provide, and for which no other parliamentary process is reasonably available.”

In the situation before us, a genuine remedy will be, by agreement or by motion, including pursuant to a prima facie finding of privilege, to hold off any votes on amendments or on the main motion until hybrid sittings commence in less than six days from now. Not only will this be a genuine remedy to this problem of circumstances, but only the Senate can provide such a remedy. Moreover, other parliamentary processes will be unavailable. As noted in the Speaker’s ruling on March 22, 2018, such processions may be “. . . debate, amendments, referral to committee, and, eventually, defeat or adoption of the motion.”

These are the matters at stake now. In this case, these processes are unavailable for senators who are unable to attend the Senate and who cannot participate in this debate, including proposing amendments and voting. The fourth criterion is therefore met.

Honourable senators, with the four criteria satisfied, I submit that we have a prima facie question of privilege, including a suitable remedy easily at hand.

As rule 13-1 states:

A violation of the privileges of any one Senator affects all Senators and the ability of the Senate to carry out its functions. The preservation of the privileges of the Senate is the duty of every Senator and has priority over every other matter before the Senate.

Colleagues, I hope we will find, together, a path that protects the rights of all senators, as well as, perhaps, the collective rights of the Senate to consist of senators with individual rights until all senators may participate in deciding upon the motion which is bearing in consequences for all of them. Thank you.

Hon. Donald Neil Plett (Leader of the Opposition)
[18:48]

I will be very brief, and I will let my colleague and legal mind Senator Carignan make some of the arguments. But I do want to say this, Your Honour, and you know this very well. There isn’t any parliamentary privilege taken away from any senator because there may be restrictions on what a senator does when they travel home from here. There is no restriction in a senator coming here, as has been evidenced today by Senator Mercer when he told us how many people were here from Nova Scotia, how many people were here from New Brunswick and how many people were here from Newfoundland and Labrador, including yourself, Your Honour, and we know you have to isolate when you go back home, but you are here today doing your duty as the Speaker.

This is frivolous. We have, since the beginning of the year, passed legislation here to the tune of almost $500 billion. Senator Dalphond must have been asleep during that time, because he never raised the question of privilege when we were restricted to 15 members in the Senate or whatever the number was. I will try not to use the wrong number. It might have been 25. But we were restricted. I think the Conservatives could have six senators here.

Where was the parliamentary privilege for those senators who couldn’t be here to support the legislation we were voting on? Senator Dalphond was quite happy to support hundreds of millions of dollars. Now all of a sudden he’s woken up because of a committee resolution.

Your Honour, this is an unadulterated delay tactic from a senator who has written letters to our leader in the House of Commons, asking him to interfere with our work here because we are delaying things. This is the second letter he has written. He wrote to our previous Speaker because he says we are delaying.

Here he is creating a frivolous delay. It is of the utmost importance, Your Honour, that you don’t take this under advisement for too long, because then he will have accomplished exactly what he wants. It would be very unfair for one senator to be able to hijack the entire Senate with a frivolous motion with a pure, unadulterated delay tactic, when he has said nothing since March, since we started passing legislation here.

Your Honour, I have the fullest confidence that you will rule on this very quickly. I’m not going to suggest how you should rule. I don’t need to do that. But I do ask that your ruling come down. You may need an hour to discuss, but for you to delay this any longer, Senator Dalphond gets exactly what he has very unfairly tried to obtain here.

Hon. Yuen Pau Woo
[18:52]

Let me add my voice to this point of privilege and echo Senator Plett’s comments that it’s frivolous, unfounded and spurious. With due respect, Your Honour, I hope you can make a quick ruling. It is so patently unfounded that it can be dispensed with, I believe, with haste.

Let me address a few points that Senator Plett has not yet touched on.

On the question of giving notice of a point of privilege as soon as practicable, Senator Dalphond is technically correct that he is giving notice of the point of privilege as soon as the previous amendment was voted down. However, he’s being disingenuous because he has known that there were many votes taking place this week, he has participated in many votes, and he’s chosen not to raise a point of privilege on any of the other votes that have taken place — not just this week but, of course, in the previous weeks and months that we have been sitting in a reduced fashion.

One can only draw the conclusion that Senator Dalphond is raising a point of privilege on this particular issue because he doesn’t like the outcome. That is not a reason for a point of privilege. If you don’t like a motion, you vote against it. You don’t stand by and vote for a whole bunch of other motions — including the one Senator Plett referred to, involving hundreds of millions of dollars — not raise a point of privilege, and then come to a motion that you vote but lost on, and then raise a point of privilege. That, I might suggest, shows a lack of principle and that in itself, Your Honour, should be a reason to discharge this request.

Let me also address his point, where Senator Dalphond tries to create a distinction between the votes we’ve had previously on government bills and the vote that we want to have, that we had just recently on the amendment and that we hope to have on the main motion that is currently being debated.

His basic argument is that there is a hierarchy of privilege, that privilege is more important for senators if it applies to a government bill but less important if it comes to other votes. I’m not a legal scholar, but I don’t think that’s sustainable. Privilege is privilege is privilege; it’s indivisible. How dare you tell me that my privilege in voting on one bill is less than my privilege in voting on another? But that’s essentially what he’s arguing here, because he’s telling us that we can set aside the fact that we violated privilege on billions of dollars of spending. We can set that all aside, but on this one we should ask His Honour to rule that it is a violation of privilege.

Let me finally touch on the assertion that allowing the vote to continue would somehow jeopardize the work of senators and jeopardize the ability of committees to function. He himself gave a colourful example of two senators in the PSG who were removed from their committees because of a sessional order and who were promptly put back on. Why? Because the leaderships discussed it, together with Senator Cordy, and agreed that it should be done. We asked Senator Gold to do exactly what he described, and it happened smoothly and without any disruption.

In fact, as Senator Saint-Germain has mentioned previously, we have been functioning in an environment where the portability rule, 12-2(3), has been suspended, by and large, for the last four years, and we functioned. Can anybody seriously say that it has stopped the ability of the Senate to work properly? Surely not.

Your Honour, I would restate that this is not simply an intellectual discussion or something that needs a huge amount of reflection. With due respect to your decision and how to make the ruling, it is my opinion that it is frivolous and spurious and should be dispensed with as soon as possible.

[18:57]

As our former colleague Senator Baker would say, I will be brief. But in my case it’s going to be true.

If ever there was a case in the last 15 years that I’ve been here in which privilege of senators — this is not a government bill, an institutional bill or an organizational bill. This is a bill that challenges the rights of senators — senators who are not here and who will be available to be here on Tuesday. That’s one point.

Second, there is no haste. There is no timetable that says this has to be done by tomorrow or the day after. There is no haste at all. There is no legislation that needs us. We’ve always said we will cooperate and create any committee that has legislation in front of it. We did it during the summer.

As far as comparing this to what happened during the last few months, that was done in a spirit of cooperation. All the committees, caucuses, leaders and senators agreed that was the best thing to do, including those who were absent, who gave us the power of authority. They did not give us the power of authority to stop them from having the right to vote on something that concerns them directly — not a government bill, not an institutional bill, not a committee bill, but a senator-driven issue.

Hon. Claude Carignan
[18:58]

To answer my friend from Joliette, Senator Dalphond, I’m having trouble understanding his argument that he’s raising the issue at the earliest opportunity.

Based on his argument that it was because of COVID-19 that not all senators could be present in the chamber pursuant to your request, by order of the Senate and under the Rules, the earliest opportunity was when the Speech from the Throne was delivered. That was the earliest opportunity.

In response to his argument that the issue wasn’t raised at the earliest opportunity because it was impossible for some senators to travel here because of the pandemic, I would say that the matter should have been raised immediately after the Speech from the Throne, during the sitting we had at that time.

His argument that absent senators are having their rights undermined has nothing to do with how to solve the problem, which is really about finding a solution to how committees are organized. That’s a decision the Senate will have to make, as other senators have pointed out. The Senate has made a number of decisions since the Throne Speech, even though some senators were absent. These decisions were always in accordance with the Rules of the Senate, we had quorum, and you, Mr. Speaker, sent out notices of the meetings.

The Senate’s sittings are not invalid just because some senators are not here because they are afraid of COVID-19 or because they have an illness that is keeping them confined at home. People have different reasons for not being able to be here in the Senate.

I would remind you that, in accordance with the motion on hybrid sittings, you will decide when these sittings will be held. The motion states that it is up to you to determine the date, since the Senate has granted you the power. Until then, all of the sessions that have been held are valid, they have respected senators’ rights and privileges, and they have also satisfied the obligation for senators to be present in the chamber.

I was not expecting my colleague from Joliette, a former judge at the Quebec Court of Appeal, to use dilatory measures in an attempt to delay our work here in the Senate.

Hon. Leo Housakos
[19:02]

Your Honour, I have to say, as usual, your level of benevolence is appreciated because I’m actually surprised at the extent of flexibility in listening to this question of privilege.

At the end of the day, Your Honour, we all know a question of privilege can be called upon when a senator is somehow impeded from exercising his obligations, rights and privileges in this chamber. There’s nothing in the debate, nothing in the process that was done, nothing leading up to it in terms of the convocation of the issues they’re obviously finding problematic that impeded any senator from being here. We all know that over the last few days and weeks that our leadership had engaged in a negotiation. I assume, like our caucus was, we were brief. All of us now for a number of weeks have been carrying on with Zoom and Teams caucus virtual meetings.

If any senator, in any way, shape or form, thought it vitally important to be here for this debate, they could have been. Clearly what we’re seeing here is a poor utilization of the question of privilege to try to delay. The question of privilege was never put in place as a process in order to be used as an instrument for delay of the work of this chamber. It’s really inappropriate to be using it in that manner and setting up a terrible precedent.

At the end of the day, as my colleague Senator Carignan appropriately pointed out, if somebody falls sick and can’t show up, is that a question of privilege? Do we have to stop a vote? That would certainly be unheard of.

In this particular instance, like I said, Your Honour, I’m surprised you have even shown the benevolence in hearing out this question of privilege.

Hon. Yonah Martin (Deputy Leader of the Opposition)
[19:03]

Honourable senators, just a few points to add. I’ve been listening very carefully to the interventions of my colleagues, and I guess the timing of this question of privilege raised by our colleague is a little bit curious and suspicious. If he were truly concerned about the question of privilege, it could have been at the start of the debate, and he could have risen to raise his point. But after having faced several votes that he lost, he raises it at this point.

The other thing I was thinking about is how important committee work is to the chamber. I remember when I first arrived in 2009, I was told that committee work is the meat and potatoes of the Senate, that that’s where the substantive work gets done. It has been quite some time since we have been able to do the committee work. We have done some on Zoom, but we know the work that has been done and will continue to be done and the incredible time and process that has been undertaken to actually even come to this motion. It was agreed upon by the leadership, who consulted and informed their respective caucuses and groups. So it’s not just happening in this moment. I think about the privilege of the majority of senators to be at risk of potentially being further delayed by this question of privilege if we don’t get to the main motion, as we should, as soon as we can. I believe that my colleagues have already stated their position. Those are two additional points I wanted to add, Your Honour.

The Hon. the Speaker
[19:05]

Honourable senators, I want to thank all senators who participated in the debate. I understand the importance and sensitivity around timing. I will take the matter under advisement, but I will inform the Senate that I will have a ruling as quickly as possible.