Procedure and House Affairs Committee on April 29th, 2010

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

You did mention that in Canadian constitutional history, as opposed to that of, say, Australia in 1975, or elsewhere in the Commonwealth, there is really just the one precedent—I think I'm right—post-Confederation of a Governor General not taking advice from the Prime Minister.

Is that right? Is it just the one time?

[Prof. Errol Mendes]

Well, no; there was the King-Byng affair, but it was a different situation.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Right, but just the one....

What I'm getting at here is that in terms of taking advice from the Speaker, I just wanted to ask you, (a), what the matters are—if you're familiar with this—on which the....not the general thoughts about the House Commons, but where that actually applies, the Speaker offering advice to the Governor General, and it being taken? And (b), if I'm not mistaken, the underlying convention, or the foundational basis, on which the convention of the taking advice from the Prime Minister rests is this: the Governor General, or the Queen, takes advice only from a single source, as opposed to saying, “I can consult, and therefore effectively pick and choose.”

I'm wondering how we deal with having multiple sources. I think that is a real shift, having multiple sources of advice coming to the Governor General, and the Governor General choosing. Perhaps I'm wrong, but does that not seem to you like a very substantial shift in the role of the Governor General to something that hasn't existed for a very long time under our system--having multiple sources of advice on which the executive can choose?

[Prof. Errol Mendes]

It's my opinion that the reason why the Speaker would have that power is that, as we saw just yesterday, he is in effect the guardian, so to speak, at least in terms of principles, of the rights and privilege of you, the elected members of the House of Commons. So that core foundational right of elected members of the House of Commons is actually...as I mentioned, on two occasions the Supreme Court of Canada has said it's part of the Constitution of Canada. And given that, that makes those rights and privileges on equal power to the powers of the Governor General.

Therefore, when the Speaker exercises his duty to uphold the rights and privileges of the elected members of the House of Commons, he's actually acting on the basis of that constitutional power to seek to advise the Governor General. You may call it multiple actors, but it's based on sound constitutional principles.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

I've taken up enough time, so thank you very much.

[Prof. Errol Mendes]

Thank you.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Reid.

Monsieur Paquette.

[Pierre Paquette, Bloc, Joliette, QC]

Thank you very much.

I have already read some of your articles. I will have the occasion to come back to them. What follows is along the lines of Hon. Marlene Jennings' question. When Mr. Walsh testified, he said that the Standing Orders were designed in such a way that, even if we prosecuted the Prime Minister and the government for not following these Standing Orders, a new session would have started by the time the procedure could be followed. What would the legitimacy of the new session be if the court decided that prorogation was illegitimate or illegal? I wonder if you have thought about that.

Second, the question was perhaps asked, but I cannot remember the answer. Several of your proposals could not have been implemented last December 30 because we were not sitting. Did you think about a Plan B?

Third, at the end of your article published in the Ottawa Citizen, there is a call to arms, saying that the opposition parties could foster social and political movements across Canada during a prorogation. Last time, that was done spontaneously through the Internet . Could you comment on your own proposal?

[Prof. Errol Mendes]

I will answer in English, because I can express myself better.

[Pierre Paquette, Bloc, Joliette, QC]

Do you understand French?

[Prof. Errol Mendes]

Yes, yes.

[Pierre Paquette, Bloc, Joliette, QC]

You are better than my mother. She does not understand English, but she speaks it.

[Some hon. members]

Ha, ha!

[Prof. Errol Mendes]

Maybe I am...

eligible to sit on the Supreme Court of Canada?

At any rate, to answer the first part of your question, as I mentioned to Madam Jennings, with regard to the disincentives that were suggested, it's certainly possible. But I think the task for the opposition, and for the other parties too.... It should be in the interests of all parties to set up a system whereby the democratic foundations of our country are observed. Those are only triggered after an act happens that the opposition disagrees with. As I think one of the witnesses said, it is punitive in nature.

What I'm trying to suggest here is to avoid that happening in the first place. In other words, you would put in place structures that would make any future Prime Minister very wary—and make it potentially suicidal for him or her—if he or she tried to do what was attempted in the last few years. That's why I'm suggesting that proactive rather than reactive systems be put in place.

I'll answer your last question next, mainly because I've forgotten what your second question was. One of the reasons I suggested that there be civil society support for what I'm suggesting here is that I was fascinated by how average Canadians, who had never been interested in anything concerning the Parliament of Canada, were so outraged by what had happened. I think it's very important for our democracy that people who normally are not political junkies or part of the chattering classes understand how important it is for our country to keep its system of responsible government. The ability to make this known to their MPs and to make it known to other civil society networks reinforces the creation of a conventional rule.

I say this because a conventional rule really arises under two conditions. One is where there is usage, and that's why I'm suggesting the standing orders. Secondly, there is a sense that the actors have to be bound by it. There's nothing more powerful than an MP's own constituency telling an elected MP that he or she should be bound by this type of process. So that's part of the ability to reinforce the creation of a binding conventional rule.

I'm sorry, what was your second question?

[Pierre Paquette, Bloc, Joliette, QC]

You did answer partially. Last December 30, at least two of your suggestions could not have been implemented. At the same time, the idea is to create rules that dissuade a prime minister.

If I understand correctly, when you talk about binding conventional rules...

[The Chair, Conservative, Joe Preston]

Monsieur Paquette, I'm sorry, but we are at five minutes.

[Pierre Paquette, Bloc, Joliette, QC]

Already? We will come back to this.

[The Chair, Conservative, Joe Preston]

Time goes fast when you're having fun.

Mr. Lukiwski....

Or no, I'm sorry, it's Mr. Christopherson.

[David Christopherson, NDP, Hamilton Centre, ON]

It's all right, Chair. No problem. Thank you.

Thank you very much, Mr. Mendes, for your attendance. It's been very enlightening. It's been a little bit of a different approach from....

I want to follow up on where Madam Jennings was, because it was after the fact...and I raised this at an earlier meeting here. I was told that the GG did not see the letters that were signed by the party leaders because of the issue of “only the Prime Minister can give advice”.

As to conflicting advice, that's not really a problem. When the GG is consulting with the Privy Council members, they may be getting all kinds of different advice about what to do.

But on the issue of the Speaker being able to...I'm very curious on that. What would the process be for the conveying from Parliament?

I also want to say, to get this out there, that even now the government still has a problem understanding the separation between the executive council and the majority rule of Parliament. The majority rule of Parliament is supreme: you become Prime Minister through a majority vote of the House of Commons. That is why so many of us were upset over the nonsense being spewed by the Prime Minister the last time--about something being undemocratic, and hijacking, and coup, and all of that. I mean, it worked well politically, I'd give you your due there, but it was way the hell off the reality.

The reason we don't normally see that is that with majority governments, the matter of a confidence vote is not even paid any attention to, because you're going to win every vote 10 times out of 10. It only arises with minority governments. Therefore, the notion is absolutely wrong that advice coming from the Speaker—if it were even equal to that of the Prime Minister—is somehow a misrepresentation of fair justice. It seems to me that it makes every sense in the world that the GG would be aware of the advice of the Prime Minister of the day, but if there were a majority opinion from Parliament that's different, then the GG needs to hear that, too.

I'm curious about what the process is. Is it just an ordinary motion passed by a majority that says, “We convey the following to the GG”, and empower the Speaker to do that? Is it that straightforward?

[Prof. Errol Mendes]

The Speaker, as we've seen on several occasions now, has a lot of powers to advise that things be carried out, and this could be one of them. Yes, you could have a formal resolution.

The other thing, which came up in the previous session, is that resolutions, if they're structured properly, can have as much power as standing orders. A resolution properly crafted asking the Speaker to do this could be the way by which it could happen.

[David Christopherson, NDP, Hamilton Centre, ON]

Right. And I think from previous discussions, we've determined that resolutions can either be a part of the standing order document or not, depending on the will of Parliament.

[Prof. Errol Mendes]

Right.

[David Christopherson, NDP, Hamilton Centre, ON]

Okay. Thanks.

Let me pick up on what you said about being proactive rather than reactive. Can you expand on that for me? The point has been made that the suggestions you have put forth here really wouldn't have applied to the situation we had earlier, or late last year.

I'm wondering how it would be beneficial, if we took a proactive rather than a reactive approach. Can you help me understand that?

[Prof. Errol Mendes]

It's essentially to stop future types of prorogation. Absolutely it wouldn't have helped in the last one, because there was no real understanding of how to deal with the situation. Maybe we should have learned after the first one, in 2008, but nothing happened after the first one in 2008. What I'm suggesting is to do a proactive process that will prevent future ones from happening.

I don't disagree with what was suggested in terms of potential disincentives, and maybe you should consider that. But that essentially is saying to go ahead and do it, and we'll try to stop you working for a time period in terms of the prohibition on reintroducing legislation, or I think the other suggestion was opposition days, if I remember correctly.

If a Prime Minister really wants to steam full ahead, he may accept that. What I'm suggesting is to put in place enough powerful supports for a conventional rule that it would be suicide.

[David Christopherson, NDP, Hamilton Centre, ON]

Again, that would be....? Can you break down for me the points of that convention?