Pursuant to notice of April 2, 2019, moved:

That a Special Committee on Prosecutorial Independence be appointed to examine and report on the independence of the Public Prosecution Service of Canada and of the Attorney General of Canada;

That the committee be composed of six senators from the Independent Senators Group, three Conservative senators and one Independent Liberal senator, to be nominated by the Committee of Selection, and that four members constitute a quorum;

That the committee examine and report on the separation of the functions of the Minister of Justice and those of the Attorney General of Canada, and on other initiatives that promote the integrity of the administration of justice;

That the committee also examine and report on remediation agreements as provided by PART XXII.1 of the Criminal Code, in particular, the appropriate interpretation of the national economic interest mentioned in subsection 715.32(3) of the Criminal Code;

That the committee have the power to send for persons, papers and records; to examine witnesses; and to publish such papers and evidence from day to day as may be ordered by the committee;

That, notwithstanding rule 12-18(1), the committee be authorized to meet even though the Senate may then be sitting;

That, notwithstanding rule 12-18(2)(b)(i), the committee have the power to meet from Monday to Friday, even though the Senate may then be adjourned for a period exceeding one week; and

That the committee be empowered to report from time to time and submit its final report no later than June 1, 2019, and retain all powers necessary to publicize its findings until 30 days after the tabling of the final report.

He said: Honourable senators, I know it’s late, so I promise this may hurt a little bit, but it will be short.

Honourable senators, when I spoke a month ago on Senator Smith’s motion and Senator Harder’s amendment, I said that we in the Senate should seek the truth, and that by seeking the truth, we would be serving Canadians.

Now, with Ms. Jody Wilson-Raybould’s written testimony and recording, and with Mr. Butts’ own written testimony, the truth is pretty well-known in all its details. However, interpretations of this truth vary considerably. These interpretations need to be examined with rigorous objectivity in order for us to draw sound conclusions and find useful solutions.

Most importantly, we need to thoroughly reflect on ways to prevent this type of situation in the future. Such controversies undermine Canadian’s confidence in the administration of justice. This is where the Senate can play a complementary role.

Senator Plett’s motion suffers from many of the same defects as Senator Smith’s motion. It employs exactly the same language. The only difference is that instead of requiring the committee to hear a long list of witnesses, it lists only one, the former Attorney General. Frankly, after all that we have heard and read, I wonder what else we could learn by having Ms. Wilson-Raybould appear, but the hope is obviously to continue to embarrass the government.

On the other hand, the government’s —

Order, please.

On the other hand, the government’s aim is to put an end to the controversy. Our objective, as an independent Senate, should be neither to prolong nor to stifle the scandal but to provide a thorough review of the facts and their possible interpretations through a thorough review and, most of all, we should suggest a way forward.

Colleagues, the facts are now out in the open. The committee I am proposing should not be tasked with investigating what happened. Rather, it should reflect on what it all means and what lessons we should learn from what happened. Was the pressure put on the Attorney General inappropriate or not? What principles can we use to reach a conclusion? How does the Shawcross doctrine apply in the modern context of today’s Canada? In future, is it possible to pinpoint the rare circumstances in which the attorney general can intervene with the Public Prosecution Service?

The relatively new remediation agreements provided for in the Criminal Code also deserve another look. I think a special committee could address certain questions. For example, how can we reconcile the apparent contradiction between one of the purposes of these agreements, which is “to reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others — who did not engage in the wrongdoing,” and the factors that prosecutors must not consider for foreign bribery offences, specifically the national economic interest? Should the Public Prosecution Service be provided with additional guidelines for granting these remediation agreements? The justice committee in the other place heard only five witnesses on these substantive issues and did not come to any conclusions. A Senate committee might do much better.

That is what I am proposing in the motion we are beginning to debate today. Some will say that these are theoretical, legal or technical matters, but there is nothing theoretical about them. These are matters of fundamental principles and public policy on the administration of justice. These questions need answers if we really want to understand the meaning and gravity of what happened and propose ways to prevent this from happening again.

There are those who argue that the functions of Minister of Justice and Attorney General should be separated, with only the Minister of Justice attending cabinet meetings. In the Canadian context, this would be a major change that the special committee could and should study. I note that in the United Kingdom, where this has been the practice for decades, there nonetheless have been controversies around the independence of the Attorney General.

Some will say that this special committee’s mandate would resemble the task given by the Prime Minister to former Attorney General Anne McLellan. This is true, although there is nothing in Ms. McLellan’s mandate regarding remediation agreements. More importantly, Ms. McLellan is not Parliament. Her advice to the Prime Minister will undoubtedly be very valuable, but many heads are better than one. Moreover, she will not do her work in public as a Senate committee would do, thereby educating both the public and parliamentarians on these complex issues.

Colleagues, this controversy, however you interpret it, cannot be ignored. Many of us, I know, feel that they are in a bind. On one hand, adopting either of Senator Smith’s or Senator Plett’s motions would have us play the opposition game; on the other hand, doing nothing would have us apparently favour the government.

This is why I try to suggest a different, more neutral, senatorial approach. If this motion is adopted, a special committee would be formed. This is Senator Dalphond’s idea and it’s a good one because all the other committees, including the Legal Affairs Committee, are overloaded with work.

The mandate of the committee is set out in the motion. It is to examine and report on the independence of the Public Prosecution Service of Canada and of the Attorney General of Canada, to report on the separation of the functions of Minister of Justice and of Attorney General of Canada, and on other initiatives that could promote the integrity of the administration of justice, and to study remediation agreements, notably the provision that excludes the consideration of the national economic interest.

This special Senate committee would be composed of six ISG senators, three Conservative senators and one independent Liberal senator, therefore each group would be represented in the same proportion as in the Senate. The committee would report back on June 1 at the latest. Because time is short, it would be allowed to meet while the Senate is sitting and during break weeks.

Honourable senators, I believe this is a balanced, rigorous and moderate approach, that allows us to avoid either a political circus or political paralysis. Yes, there is a real risk that some senators will use this forum for partisan purposes. However, I am confident that most Canadians would prefer an independent, thoughtful examination of the issues and will not look kindly on senators whose only interest is it to score political points.

I move this motion so that the Senate does not sit on the sidelines while fundamental questions on the administration of justice in this country are being asked. I move this motion in the hope that this Senate will have the opportunity to do what it does best: Delve into the issues, review them with rigour and objectivity and suggest solutions. I move this motion in the hope, perhaps naive, that even in the most difficult of circumstances the Senate can find a nonpartisan path forward for doing its work for carrying out its duty.

It may be that the only way to counter partisanship is partisanship in return. I hope this is not the case. This is why I’m moving this motion.

Will the committee hear from Jody Wilson-Raybould? Will it invite PMO officials who have not been heard yet? It will be for the committee to decide if such appearances are necessary for it to fulfill its mandate.

Honourable senators, let us continue to show Canadians that there is a different way of doing politics. Let us show them what sober second thought really means even in the difficult context of this controversy.

Dear colleagues, the Senate must rise to the challenge in the present circumstances. It must not hide. It must not be paralyzed with fear of controversy or failure. As has happened often in my career, I see that everyone is against me, but for different reasons. No matter. While there are risks associated with creating this special committee, I’m looking for a non-partisan, independent, objective approach that is more than simply opposition to opposition.

Doing something carries risk, but so does doing nothing. We could be seen as a chamber that lacks courage and relevance. When we are asked where we were while this massive crisis was unfolding, what will we say?

It is so hard to listen.

Order.

Why don’t you just try to listen for once? You might learn something.

I’d love to be able to say that we were here, that we studied the matter carefully, objectively and diligently, and that we proposed solutions. I’d like to be able to say that this is what today’s independent Senate looks like. Thank you for listening.

Honourable senators, I have recognized Senator Housakos on debate. He’s not building up to a question. He’s actually on debate.