Moved second reading of Bill S-232, An Act to amend the Governor General’s Act (retiring annuity and other benefits).

He said: Honourable senators, following the resignation of the Governor General, the Right Honourable Julie Payette, Canadians discovered a glaring inconsistency in the law. When a Governor General does not complete their usual five-year mandate, they are still entitled to a lifetime pension, which includes many financial benefits. On March 30, I introduced a bill to remedy that situation.

Like most Canadians, I was shocked to learn that, after resigning, the Governor General would be entitled to a lifetime pension of $150,000 per year and an annual allowance of $206,000 for hospitality expenses. I took exception to that and so there was no way that I could stand by and do nothing. I had to try to actually do something to remedy this inconsistency as quickly as possible since many Canadians are bothered by it.

The reality is that the average salary in Canada is $48,800, and employees must contribute to a pension fund for many years in order to earn a decent pension.

Just from the standpoint of rigorous public administration, it is inconceivable and unacceptable that a person who didn’t complete their five-year mandate should automatically receive a lifetime pension, regardless of how many years they served in that role.

Receiving a full pension after five years is already an extraordinary and unique privilege in Canada. The Governor General was actually in office for about three years and four months. Under the current Governor General’s Act, an individual can hold office for three years, two years, six months, two weeks, or even two days, and they would automatically be entitled to those financial benefits. It makes no sense. Clearly, the legislator did not anticipate a situation like this one, which led to this incongruity.

If Bill S-232 passes, governors general will only be entitled to their retiring annuity if they complete their term, which is usually five years. In addition, any former governor general who fails to complete a full term of office, except for medical reasons, will have their lifetime pension and office budgets suspended.

This is not the case with Ms. Payette, who held her position for only three years and four months and left for non-medical reasons.

Let’s review the facts. The goal is not to put the former governor general on trial but rather to identify situations where an individual resigns from their position for reasons that are invalid from a legal and common sense perspective and that would not justify that individual continuing to receive benefits after holding office for a very short time.

In July 2017, Ms. Payette was appointed as the twenty-ninth Governor General of Canada. She took office on October 2, 2017. Following a news story published by the CBC on July 21, 2020, which talked about the toxic work environment at Rideau Hall, the Privy Council launched an investigation into the complaints that had been submitted about Ms. Payette’s relationship with her co-workers and subordinates.

The mandate to investigate was given to a private firm that met with a very large number of current and former employees in the fall of 2020. The investigation report was submitted to the Privy Council on January 12, 2021. The report was very damning to Ms. Payette. Despite the fact that the investigation report is very heavily redacted, some excerpts leave very little doubt about what had been happening at Rideau Hall since Ms. Payette took on the role of Governor General of Canada.

On page 7, the report states the following, no doubt with reference to current and former Rideau Hall employees:

The overwhelming majority [of employees and former employees] participated confidentially to raise concerns about the work environment and/or their individual treatment . . . .

Forty-three participants described the general work environment as hostile or negative or used other words to that effect. Twenty-six participants used the words “toxic” or “poisoned” to describe the general work atmosphere at the OSGG during the current mandate.

Here’s what it says on the next page: “Reports included allegations of yelling, screaming, aggressive conduct, demeaning comments and public humiliations.”

One last quote from the report clearly describes the very real consequences of this toxic atmosphere. On page 44, it reads as follows:

It was reported that since 2017 when the current mandate began, many employees have left the OSGG, either permanently, temporarily or on sick leave; this included a number who had worked there for long periods. Participants described that “staff turnover is at record levels”, that “people are leaving in droves”, there were “waves of departures” and an “exodus” of “quite a few competent, accomplished, experienced personnel”. Several participants said that a lot of staff have left during this mandate, initially mainly from the Chancellery of Honours and more recently from Communications. It was stated that some of those who left “adored” the organization but felt they could not stay. Specifically, 17 participants reported that they left the OSGG during the current mandate because of the work environment at the OSGG.

Less than flattering comments like this are found quite frequently throughout this report. For example, the word “toxic” is found 34 different times. I told you that the January 12 inquiry report was scathing. The Governor General tendered her resignation nine days later, on January 21, 2021.

I did some research to see if there was a code of honour for the Governor General. I did not find anything. However, I did find the Professional Code of Conduct for employees at Rideau Hall. It reads as follows:

It is with honour, humility and dedication that we work together to support the Governor General and serve Canadians with integrity, in a politically neutral manner, putting public interest ahead of our own. We take pride in offering professional high quality services that are respectful of the needs and dignity of all parties. We recognize trust and respect as pre-requisites to all successful interactions. We foster mutual collaboration by promoting a safe and healthy work environment where employees and partners are valued for their diversity and competence. We recognize that professional development enables us to grow and provide better services. We recognize and celebrate achievements and we strive to attain a healthy balance between our work and personal lives.

Esteemed colleagues, that is what is required of employees who work with the Governor General at Rideau Hall.

I remind you that this is our country’s head of state. She must therefore be irreproachable and inspiring in her behaviour. She must meet the highest standards of conduct, at least as high as the standards expected of public servants, her own employees and senators. In studying the inquiry report on her administration, and faced with the extensive testimony from employees and former employees of Rideau Hall, that’s certainly not the kind of service she delivered. She certainly did the Prime Minister a favour in tendering her resignation. It would have been beyond embarrassing to keep her on.

The Canadian public was shaken, and rightly so, to learn of the toxic work environment that existed under the Governor General. The Canadian public wouldn’t have approved if the Prime Minister had wiped the slate clean on Ms. Payette’s time at Rideau Hall, without consequences.

Julie Payette tendered her resignation on January 21, 2021. We were shocked to learn that, even though she didn’t complete her regular mandate of five consecutive years, she would nevertheless be entitled to an annual pension for life of $150,000. To add insult to injury, we learned that she would be entitled to a $206,000 annual allowance for expenses incurred as a result of ongoing responsibilities related to her former office.

Once again, my goal here is not to criticize the Governor General, but to be quite honest, colleagues, I was astounded to learn that the Governor General’s Act does not provide any guidelines on the payment of a lifetime pension to former governors general.

As I said at the outset, an individual could be appointed Governor General, resign after holding the office for just one week, and still receive the lifetime pension and other financial benefits I listed earlier. It makes no sense. This is clearly a mistake in the legislation, and this is a situation that was never envisioned.

Subsection 6(1) in Part II of the Governor General’s Act states, and I quote:

Where a Governor General ceases to hold office as such, there shall be paid to him an annuity equal to the aggregate of

(a) one-third of the salary annexed to the office of Governor General on March 1, 1967; and

(b) such amount, in addition to the amount determined under paragraph (a), as would be paid to him as a supplementary retirement benefit under the Supplementary Retirement Benefits Act in the year in which he ceases to hold office if that benefit were calculated on the basis that he had ceased to hold office on January 1, 1952.

Section 6 of the Governor General’s Act makes no mention of any minimum period of service to qualify for a lifetime annuity. I see that as a serious flaw in the legislation.

In my bill, I propose that section 6 of the Governor General’s Act be amended to read as follows:

Annuity

6 (1) When a Governor General who has held office for at least five consecutive years ceases to hold office as such, there shall be paid to him an annuity equal to the aggregate of

Secondly, the act is amended by adding the following after subsection 6(1):

Medical reasons

(1.1) A Governor General who, in the opinion of the Governor in Council, is unable for medical reasons to serve for five consecutive years is deemed to have served for at least five consecutive years for the purpose of subsection (1).

Then I add the following provision to address the issue of operating budgets and the representation of former governors general:

Other benefits

12 No money shall be paid out of the Consolidated Revenue Fund for the purpose of providing administrative support to or reimbursing expenses incurred by a former Governor General who held office for less than five consecutive years.

Lastly, my bill adds a transitional provision for former governors general.

4 (1) The payment, under Part II of the Governor General’s Act as it read immediately before the day on which this Act comes into force, of an annuity to a former Governor General who held office for less than five consecutive years ceases on the day on which this Act comes into force.

This means that, on the day the bill is passed, the government will cease to pay the lifetime annuity to the Governor General who resigned. She won’t have to pay back what’s been paid to her, but future payments will cease on the day on which the bill receives Royal Assent.

Honourable senators, when I introduced my bill, I made it clear that I was inviting the Prime Minister to use it as the basis for amendments to the Governor General’s Act when he introduced his budget. Unfortunately, Mr. Trudeau did not accept my invitation, so there’s nothing in Bill C-30 about this issue. Surprisingly though, Bill C-30 amends the Judges Act to fix their pension rules.

This amendment follows the case of a former judge who took advantage of certain gaps in the Judges Act to obtain a pension for life, even though he only sat a few years on the bench and was suspended with full pay following a complaint against him. He scandalously drew out the procedures to reach the tenth anniversary of his appointment, thus becoming eligible for a lifetime pension. I am talking about former Justice Michel Girouard.

When Minister LeBlanc appeared in this chamber on May 12 in preparation for the study of Bill C-30, I asked him why his government had not included an amendment to the Governor General’s Act in Bill C-30. The minister had this rather surprising answer to give:

As for Ms. Payette’s situation, you’re absolutely right. I don’t think people understood that the retirement benefits are the same whether you occupy the position for five minutes or five years. I understand the frustration that people felt in Ms. Payette’s case. We’re open to the idea of examining this kind of issue.

I honestly didn’t draw the parallel with the amendments my colleague Minister Lametti brought before you in Judge Girouard’s case. You’re right, however; perhaps that’s something we’ll have to consider.

I understand the concern; we hope it only happens once for the next 154 years. You have to assume we can learn something from this situation. I accept your comment as a suggestion, and I’m quite sensitive to it.

Given the statement by the minister responsible for the Queen’s Privy Council for Canada, who recommends candidates for the position of Governor General, I take it that he believes this bill is seriously worthy of consideration, and I would hope that it was not just empty rhetoric. This bill is simple and clear and effectively responds to a difficult situation criticized by many Canadians. If the government were to set priorities, it could be passed very quickly. The study of Bill S-232 by a Senate committee will give us the opportunity to further reflect on this issue, which raised the ire of Canadians. Therefore, I invite you, honourable senators, to support it at second reading and refer it to one of our Senate standing committees. I thank you.

Would Senator Carignan take a question?

Yes, of course.

Senator Carignan, I have a few questions about the bill. I think you talked about a prospective effect in the bill for future governors general, but there’s also a retroactive effect in subclause 4(1), which goes back and corrects the amounts that could potentially be paid in the future to the Governor General who just resigned.

My question is about potential lawsuits. Since you’re a lawyer, what legal action might be associated with such a situation if the former Governor General decides to challenge the contractual arrangement by which she became Governor General? What are the potential legal and cost implications for Canada?

Obviously, the bill isn’t retroactive. If the bill is passed, the Governor General who resigned will not have to pay back the money that she received from the time she resigned until the bill receives Royal Assent. The bill is retrospective, not retroactive, in every situation, not just for the Governor General but for all future governors general.

With regard to the possibility that the bill will be challenged, every bill we pass could be challenged. I consulted a few constitutional experts before I introduced this bill, which explains why it took me a little longer. I waited for the government to correct this mistake, but it didn’t. However, I also consulted constitutional experts to ensure that no constitutional issues arise from amending a provision related to the Crown, Canada’s head of state. The Governor General’s Act was passed by Parliament and so it can be amended by Parliament. Obviously, the courts have to enforce the laws passed by Parliament as long as they don’t violate the Constitution. I didn’t see anything like that in this bill, and the constitutional experts that I consulted confirmed that nothing in this bill contravenes any part of the Constitution.

What if there is a lawsuit? You didn’t answer that part of my question. I want to know if the former governor general can take the matter to court and, if so, how that would affect our country.

Any interested party has the right to take a given matter to court and give it a try. I believe she would have virtually no chance of success. However, nobody can be prevented from instituting legal proceedings over an administrative, government or individual decision. There is always a risk that someone who was wronged could try taking the matter to court. That’s why we have courts. They have to settle lawsuits justly and in accordance with the law, and that is what they’ll do if the Governor General affected by this bill decides to contest its provisions. No matter what decision we make here, if we were to avoid taking action because someone, someday, might go to court to challenge the provisions of any particular bill, we would never do anything.

We recently passed special back-to-work legislation for workers at the Port of Montreal. We passed it even though it’s likely to end up in court. A lawsuit was filed a week after the special legislation was passed. Under our justice system, that’s the prerogative of anyone who lives in a free democratic society.

Senator, I’m not sure I share your view that the legislation is not retroactive. As distasteful as we may find the pension going to the former governor general, it’s not her fault that when she accepted the terms and conditions of the position, those were the terms and conditions.

So I am not in favour of any retroactive provision of your bill, but I do accept the spirit of your bill, that we can correct this on a go-forward basis, not only for the pension, but for this additional remuneration for other expenses incurred after individuals are no longer Governor General.

I’m not sure why that provision is in there. I know it’s not available to former prime ministers. It’s not available, for example, to the former chief justice of the Supreme Court or a similar package. I’m not sure why former Governors General would be in such demand after their term is up that they would require this additional funding. It’s as if senators would require funding after they leave the Senate to carry on some public responsibility. We have none. Our term is over, the term is over. Have you considered dropping the clause for the most recent Governor General and just proceeding with other initiatives in your bill? Thank you.

Thank you, Senator Downe, for your question. I have thought about it. However, it is the nature of a bill to encourage debate, discussions and reflection. I introduced this bill because of the situation in Governor General Julie Payette’s office. That is why I decided to make it a retrospective, rather than retroactive, piece of legislation. We could argue this position but, in my view, we must rely on a retrospective effect. Clearly, it is up to this chamber to debate the bill and propose amendments. My position is simply that we correct what I call a mistake. In my opinion, no legislator foresaw that a governor general could hold office for two weeks and receive a pension for life. It should be a priority to correct this mistake, especially since a new Governor General may be appointed in a few days, according to what we heard from Minister LeBlanc. It would be best to adopt future working conditions immediately so they are clear to the person who accepts the position.

Once again, the objective of this bill is to give the Senate the opportunity to debate this matter, to hear from witnesses and to propose amendments. I have absolutely nothing against amendments. My objective is to correct the situation. If amendments are proposed and adopted by a majority of senators, I will, as I usually do, respect the will of the chamber.

Yes, of course.

I thought about it a little bit, but the pension for the Governor General or the position of Governor General is unique to Canada. It doesn’t exist in any other pension system. Provincial lieutenant governors have to contribute to their pension fund in order to be entitled to a pension. They have to contribute to it. The system for lieutenant governors is therefore completely different than the one for the Governor General of Canada. That pension doesn’t come from the individual’s contributions. It is a sort of inherent right that arises from the legislation, and the Governor General doesn’t make any contribution to the pension fund. That’s why I didn’t want to get into determining benefits based on the length of time the person served in the role. If the person had contributed to the pension fund, then I might have been more open to your proposal or suggestion. I would have thought about it. However, since the person is not contributing to the pension fund, I don’t see how that could be taken into account.

If I may, when you speak of “all or nothing,” it calls to mind certain aspects of the parliamentarian pension plans. For example, we have to sit for six years. Unfortunately, if we sit five years and two months, even if we contribute, it’s all or nothing. It takes six years to be eligible for a pension. It’s a question of eligibility. I think the eligibility criteria should be set at five years.

Would Senator Carignan take a question?

Yes, with pleasure.

Canada is not the only country that has a Governor General. We are members of the Commonwealth. There are Governors General in Antigua, Barbados, Australia, Belize, Grenada, Jamaica, New Zealand, et cetera. What do they do? Can you shed some light on some best practices from other jurisdictions?

Actually, no. It is my understanding that some Governor General positions in other countries are unpaid and honorary, for example. The Bloc Québécois has actually introduced a bill in the other place calling for the salary to be zero. It would simply be an honorary position, without a salary, but I don’t support that idea. I haven’t done a comparative analysis of the laws around the world. I haven’t put any resources into it. It might be interesting to do just that. I think the idea was to focus on Canada. I think we need to listen to Canadians. Clearly, when the current legislation was drafted, the early departure of someone who would occupy the office of Governor General for three days was not anticipated, and that flaw needs to be corrected. That is the solution I have proposed. As with any bill I introduce in this place, my goal is to build consensus in order to reach a solution.

Would Senator Carignan take a question?

Yes, of course. I believe we still have time.

It is a short question. Senator Carignan, how did you come to the decision to provide for either a five-year term or a term of less than five years? With the other parliamentarians, it’s a six-year term. Could you explain the logic behind your decision?

According to the wording of the current legislation, a Governor General’s term is five years. It was logical to complete the original term of five years, which is the duration of the position or duties.

Since the focus is on completing the term, why not clearly state that in the bill since it’s possible for the term to be less than five years in some circumstances?

I specified five years in the bill. An exception was included for people who might step down for health reasons. To my knowledge, this has happened once in the past, in the case of Minister LeBlanc’s father, who left his position for medical reasons before the end of his term. The only situation where this currently applies involves the wife of Roméo LeBlanc, who is receiving a pension following the death of her husband. The purpose of the provision is to ensure that she is not affected by this retrospective effect.

Will Senator Carignan take a few questions?

Of course.

Regarding what you just said about survivors’ rights, in the transitional provision, you indicate in the bill that the payment started under Part II of the Governor General’s Act would continue to be paid in the case of a survivor. Does this mean that if Ms. Payette were to die before the bill came into force, for instance if the House of Commons were to pass the bill in the fall, her pension would continue to be paid to the person designated as her survivor, but not to her?

I’m not sure I quite understood your question.

In fact, there’s only one case, that of Roméo LeBlanc, who left his position for medical reasons before he could hold office for a period of five full years. He passed away, and part of his pension is payable to his widow, who continues to receive it — as far as I know, she is still alive. For the future, and for people who did not carry out their duties for a period of five years, we did not want them to be affected by this retrospective effect of the cancellation. Since Roméo LeBlanc left his position for health reasons, that is how we applied the transitional provision.

During your speech or in response to a question you made an analogy with the situation of Justice Girouard. I very much like your bill because it also draws an analogy with early retirement for reasons that are beneficial to the country or for health reasons, which the Judges Act also provides for. However, in the case of Justice Girouard, before amending the Judges Act, the Attorney General sought the opinion of the quadrennial Judicial Compensation and Benefits Commission to determine the impact on judges’ pensions. The quadrennial commission deemed it unacceptable to apply the change immediately and determined that the legislation applies to Justice Girouard, stating that it should only apply to subsequent judges and those who end up in a similar situation to that of Justice Girouard in future.

The difference between your bill and the judges’ situation is that the application is immediate. There is no retroactivity and as soon as the legislation comes into force, it applies immediately.

Don’t you think that you are changing the Governor General’s working conditions, which are not the same as those that were in place at the time the position was accepted, when there were conditions that applied? You are changing them for the future, but she accepted the ones in place when she was appointed and knew that the position entailed certain benefits. Consequently, you are taking away some benefits she was to enjoy in the future.

Yes, that is right. It is a matter of opinion. It is the opinion of the committee; I, too, have my own opinion. I don’t think that the committee’s opinion was based on an issue of constitutional law, but perhaps on the independence of judges. Indeed, there may be questions about the independence of judges, because that touches on remuneration and the judge still made contributions to his pension during this period, which is not the case for the Governor General.

Senator Carignan, I don’t know if you read what some constitutional law professors said about your bill requiring a constitutional amendment, since it affects the duties of the Governor General. I don’t know if you read that and if you have a response.

I know that there was also an article in the National Post saying that the bill is a good idea but, ultimately, a bad idea.

Yes, but they were obviously not the constitutional experts I consulted, who told me the opposite. Once again, we can ask the question. I could argue, but this is why we have judges, and cases go to the Supreme Court precisely because lawyers do not agree. There is an old joke about how the only lawyer in town is always poor, but once you bring in a second lawyer, the two become the wealthiest in town. There can be as many opinions as there are constitutional experts, but the ones I consulted said that the Governor General Act is an act of Parliament that can be amended by Parliament.