Question of Privilege

Honourable senators, I am prepared to rule on the question of privilege raised by Senator Saint-Germain on November 21, 2023. As outlined in her written notice, the issue concerned “attempts of intimidation of Senators that occurred within the Senate Chamber and within the Senate of Canada Building on Thursday, November 9, 2023.” Exceptionally, further arguments on the issue were heard on November 23, 2023.

In dealing with this matter, I will explain one point relating to proceedings on November 9 and summarize the normal process for raising a question of privilege. I will then address some concerns raised in relation to the notices that were given in this case. Finally, the ruling will provide some observations about specific aspects of this situation and review related issues before evaluating the question of privilege in terms of the four criteria that must be met under rule 13-2(1).

I wish to emphasize that it is, in the end, for the Senate to decide how to proceed on this matter. Honourable senators are, together, responsible for the values that shape the work of our house and for ensuring its proper functioning as a public institution that serves Canadians.

At the outset, a short clarification concerning one aspect of proceedings on November 9 is necessary. Senator Clement was recognized in debate on Bill C-234, since she was, in my opinion, the first person to rise. This respected rule 6-4(1). She moved the adjournment of debate, as is allowed by rule 5-7(c). A point of order was then raised concerning recognition in debate. Rule 6-4 governs disagreements on this point. Uniquely, it limits the Speaker’s role to receiving and putting to the Senate a motion that a senator, who was not recognized but who rose at the same time as the recognized senator, “be now heard” or “do now speak.” The Speaker does not rule on which senator should have the floor. That is a decision for the Senate itself.

The required motion to hear another senator was not, however, forthcoming. In its absence, the motion to adjourn debate had to be put. I indicated that I thought the motion to adjourn debate was defeated on a voice vote. Two senators then rose, and, after bells, the motion was adopted by the Senate.

The fact that several senators were yelling loudly, at the same time, without being recognized, made it impossible to provide clarity about proceedings. Even if some senators disagreed with the course of events, nothing could justify such a disproportionate reaction in a chamber that normally prides itself on its role of sober second thought. The exceptional chaos continued while the bells were ringing, and all these events have contributed to the current question of privilege.

Having explained these events from the perspective of the chair, I will now summarize the process most typically used for dealing with a question of privilege. For full details, I refer colleagues to Chapter 13 of the Rules and to Chapter 11 of Senate Procedure in Practice. The normal process involves multiple steps. First, the senator who intends to raise an issue must, under rule 13-3(1), provide written notice before the sitting, “indicating the substance of the alleged breach.” The senator is then recognized during Senators’ Statements to provide oral notice and, under rule 13-3(4), must:

clearly identify the subject matter that shall be raised as a question of privilege and indicate a readiness to move a motion seeking Senate action … or referring it to the Standing Committee on Rules, Procedures and the Rights of Parliament.

After these notices, arguments are made later in the sitting to assist the Speaker when considering the matter. The Speaker then normally takes the matter under advisement, as I did, to return later with a ruling.

The Speaker’s role is to determine whether there appears to be a prima facie question of privilege. To use the words of Speaker Kinsella on May 29, 2007, prima facie means that “a reasonable person could conclude that there may have been a violation of privilege.” Maingot, in the second edition of Parliamentary Privilege in Canada, at page 221, notes that in parliamentary usage this determination “is one where the evidence on its face as outlined by the Member is sufficiently strong for the House to be asked to debate the matter.” The final determination on the issue, and how to deal with it, thus remains for the Senate to make, in response to the motion moved if a prima facie question of privilege is established, which from that point can be referred to as a case of privilege.

During consideration of the current question of privilege there were some concerns as to whether the written and oral notices respected the requirements in the Rules. These requirements were added after a situation in which the notices for a question of privilege provided no detail at all as to the issue to be raised. These requirements have never been understood as necessitating complete details in the notices themselves. Instead, the notices should outline the key points.

In the current case, the written and oral notices indicated the basic issue of concern, when the original events happened, and the general location. Any colleague who was here on November 9, or who consulted colleagues and then watched the broadcast, or read the transcripts, would have understood the basic issues at play.

The content of the notices was in line with normal practice. In addition, any concerns about some details only coming up during arguments on the matter were more than adequately addressed by the fact that the Senate resumed consideration of the question of privilege at a subsequent sitting, allowing additional time for senators to prepare their remarks.

While this is not without precedent, I must caution honourable senators that it should not be taken as a given that arguments can be spread out over more than one sitting. In this case, however, I sought to give all colleagues the opportunity to speak, even if there was repetition on a few points. There was extensive consideration of the question of privilege on November 21, and the request for further input at a subsequent sitting was fair and equitable. This was a case where fulsome reflection was appropriate, since we were, at some level, considering the very nature of how we want this house to function.

I will not attempt to summarize here the arguments, which were eloquent, nuanced, emotional, heartfelt, and deeply personal. Senators have recognized the importance of the issue and have in some cases offered their sincere apologies, which are matters of public record. I thank honourable colleagues for their input on this difficult issue.

Before considering the four criteria that must be met under rule 13-2(1), I now wish to make some comments about particular aspects of this situation.

Senators told us about troubling effects flowing from the events of November 9. I am sure you were all disturbed to hear of these. We must be assiduous in avoiding contributing to a toxic online environment that risks being destructive to our safety, to our society, and to our democracy.

I am reminded of the advice, given on several occasions by Speaker Furey, about taking the time to reflect carefully before engaging on social media in a way that could be harmful.

As he said on May 16 and June 13, 2019:

If it is something you think will be offensive and you are not really sure whether or not it is something that is appropriate, I suggest you do not send, because it reflects poorly, not just on the people who are doing it, but on the whole chamber.

I urge honourable senators to consider potential real-life consequences on the reputation of the Senate, and impacts on our families, our staff, and each other, before engaging on social media. The fact that inappropriate online content — not only in relation to the events of November 9 — has led some senators and staff to feel under attack points to the significant, even if unintended, consequences of what is posted. In particular, as many senators noted, we must be mindful that social media can be especially harmful towards women, racialized Canadians, and other equity-seeking groups, who are often disproportionately targeted.

The Senate is a chamber that prides itself on its work to protect minority rights. Our membership first opened to women following the Persons Case in 1929. We now better reflect the full ethnic and cultural diversity of our country. As such, we must do our utmost to avoid any action that could be seen as condoning or encouraging personal attacks against any individual, whether we are in the Senate workplace, online or in our personal lives.

This said, 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. But, as we exercise free speech, let us keep in mind that, while we often tend to focus on what is said, we cannot lose track of how words and acts are understood by the recipient, and how they are perceived by other third parties — whether physically present or on social media platforms.

Colleagues have noted that some aspects of what occurred on November 9 may raise issues involving the Senate Harassment and Violence Prevention Policy. The fact that actions happened within the Senate Chamber, in some cases while the bells were ringing for a vote, does not mean they are necessarily exempt from that policy. Others noted possible links to the Ethics and Conflict of Interest Code for Senators, which imposes obligations on all senators to act with the highest standards of dignity inherent in the position of senator. There may therefore be parallel issues relating to ethics and harassment that could be dealt with under other, separate, mechanisms.

The Senate is evolving, and it is not the same institution it was only a few years ago. The composition and culture of the Senate have changed, and several colleagues spoke eloquently about the interweaving of issues of gender, ethnicity, and physical ability in the events of November 9.

I know that changes in organizational culture are challenging and take time. We must adapt to the fact that behaviour that may once have been tolerated is no longer acceptable. The “good old days” were not so good for many people. The Senate is working to reflect this evolving reality.

I remain confident that we can continue to work together to ensure that the Senate remains a place that recognizes the collective rights of senators to participate in passionate but respectful debate on issues that matter to Canadians.

As we now turn to the four criteria of rule 13-2(1), all of which must be met at this stage, the first criterion — that the question of privilege must “be raised at the earliest opportunity” — was clearly fulfilled. Senator Saint-Germain raised the matter at the next sitting after November 9.

The second criterion is that a matter must “directly concern[] the privileges of the Senate, any of its committees or any Senator.” The events of November 9 involved a disproportionate reaction to a motion to adjourn debate. Senators shouted at colleagues who were operating within the framework of the Rules. We heard from senators about the aggressive and menacing tone used toward them. There were threats to penalize them by blocking work in committee or in the chamber if they did not give way and concede to a particular outcome. Insulting and unacceptable remarks were hurled across the Senate Chamber. All these events can be understood as attempts to intimidate colleagues and to unduly constrain, or even to extract retribution against them in the performance of their duties as parliamentarians.

At pages 107-108 of the third edition of House of Commons Procedure and Practice we can read the following:

In order to fulfill their parliamentary duties, Members should be able to go about their parliamentary business undisturbed. Assaulting, threatening, or insulting a Member during a proceeding of Parliament, or while the Member is circulating within the Parliamentary Precinct, is a violation of the rights of Parliament. Any form of intimidation of a Member with respect to the Member’s actions during a proceeding in Parliament could amount to contempt.

As the definition of privilege in the Rules notes, “freedom of speech in the Senate and its committees … and, in general, freedom from obstruction and intimidation” are core rights necessary for us to perform our duties as members of this house.

Some argued that the fact that the senators who were the targets of the actions at issue nevertheless voted is proof that they were not intimidated. However, privilege should not be seen as something that only comes into play if there is an actual undesirable outcome. The harm does not actually have to be caused for privilege to be involved.

Senators should not have to fear for their safety or about any retribution for the simple act of moving a motion or voting. It is very possible that, if such behaviour is not stopped, a senator could soon say to themselves “Perhaps I will sit out this vote, or this debate, or this meeting; I can’t keep on being yelled at and threatened.” When people are treated in a demeaning way, it can have lasting effects in ways that may not always be anticipated by others. In brief, intimidation is intimidation when it is attempted; the intimidation does not have to be successful to be unacceptable.

Senators, in the Senate Chamber, felt threatened and insulted and intimidated. That is a violation of the rights of Parliament, of the Senate, and of individual senators. The second criterion has been met.

The third criterion requires that a question of privilege must “be raised to correct a grave and serious breach.” The points already discussed in relation to the second criterion are grave. They are serious. Senators have explained how they felt threatened and intimidated in the performance of their duties, here where we should model the best behaviour for our fellow citizens. We should be able to express deeply held divergent views in a respectful way. Even if senators did not intend to intimidate or threaten in their words or actions that day, that is how these actions were received and how they were understood by others. This situation must be corrected so that we can carry out our responsibilities in Parliament. The third criterion has been met.

According to the final criterion, a question of privilege must “be raised to seek a genuine remedy that the Senate has the power to provide and for which no other parliamentary process is reasonably available.” The events of November 9, and those that flowed from them, involve several overlapping issues. There were failures to consider the full possible effects of actions outside the Senate, including on social media. There were issues of order and decorum during the sitting. There were issues of not maintaining the highest standards of dignity. There were attempts to intimidate.

Among these multiple issues, the key point in this situation, as a question of privilege, is the actions touching on the intimidation of senators relating to the performance of their parliamentary duties. There was an extremely tight nexus of cause and effect that clearly relates to privilege. Senators, acting within the framework of the Rules, were made to feel intimidated.

This is the point that is fundamentally an issue of privilege. The right to vote and decide issues, free of intimidation and threat, is perhaps the most essential privilege afforded to senators, allowing us to collectively reach considered decisions.

While there may be other tools available on some related matters, they cannot deal with the fundamental issues of privilege involved. Only the Senate, in whose interest privilege exists, can properly address this issue, to ensure that it can continue to benefit from the unimpeded service of its members. Only senators can — individually and collectively — ensure the respect and courtesy that are essential in a parliamentary body. The final criterion has been met.

Since all four criteria have been met at this initial stage, a case of privilege has been established. I repeat that 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. There is then the opportunity to propose a motion to seek a remedy or to refer the matter to the Standing Committee on Rules, Procedures and the Rights of Parliament. The matter remains, in the end, in the hands of the Senate to decide.

I will therefore soon recognize Senator Saint-Germain to move her motion relating to this case of privilege. Although the motion will be moved now, debate will only start at 8 p.m., or the end of the Orders of the Day, whichever comes first.

During the debate, the provisions of rule 13-6 govern proceedings. All senators, including the leaders and facilitators, can speak for a maximum of 15 minutes, and there is no right of final reply. The maximum duration of the debate is three hours, after which the Speaker must interrupt proceedings to put all questions necessary to dispose of the motion. On the first day of debate, the Senate will not deal with items on the Notice Paper, and in some situations there may be extensions to the time for considering the Orders of the Day. Debate can generally be adjourned, but if it is still underway at the ordinary time of adjournment on the first day, it must continue without adjournment of the motion or the Senate.

More important than these procedural technicalities, however, I urge colleagues to act with respect and dignity in the upcoming debate, and in all our work. Senators all want the best for our country. The same is true of witnesses, staff, and everyone we deal with. We may disagree strongly, but we must do so with restraint and respect. The work we do matters, but how we do it is also important. Let us consider how the Senate is evolving and where we want it to go, so that, together, we can continue to perform our essential work as a respectful house of sober second thought, which strengthens our Parliament and acts in the interest of all Canadians.