Procedure and House Affairs Committee on April 29th, 2010

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Let us suppose that a motion is introduced at the Standing Committee on Procedure and House Affairs, that it is adopted by a unanimous or majority vote, and that we then report to the House to amend the Standing Orders in order to define the principles of prorogation. You seem to say that this would be progress and that it would become a constitutional convention. You go even further by saying that Mr. Layton's motion is the starting point for amending the constitutional convention.

If the Standing Orders of the House are amended to include the prorogation procedures, would the Prime Minister have no other choice but to comply with the Standing Orders of the House or he would be found in contempt of Parliament?

[Prof. Peter Russell]

Yes; I think the country would be better off, though, if you could reach a unanimous decision.

I read the debate very carefully on the Layton motion on March 17. I read the government comments on it. I read them very carefully. I didn't see anything put forward by the government on what they thought the rule should be, other than possibly—they never stated it as crudely, or rudely, maybe, as I did, or as straightforwardly as I did—to have any requests for prorogation, of any length of time, no time limit at all, it doesn't matter. If, unlike Mr. Harper's request, a Prime Minister said, “Shut down the House; just shut it down, and I'll let you know, Madam, when it can come back”, I haven't heard from the government--Canada hasn't heard, your committee hasn't heard, as far as I know the House of Commons hasn't heard--on what is the government's position on the rule that should govern requests of the Prime Minister.

Until you have a good discussion of that, I don't think we're going to get very far, other than perhaps laying the groundwork for another crisis--a standing order change, opposed by the government; a new standing order, violated by the Prime Minister; and then we're into a crisis.

You may say, “Well, the Prime Minister is just wrong, and we'll defeat him and we'll fight an election on it.” Okay--but I don't think that's the way most Canadians want parliamentary government to be conducted in Canada, to have elections fought over vital rules, be they on the access of a committee to security documents or on the rules governing prorogation.

You have a responsibility, you members of Parliament, to try to work it out here. Can you imagine an election over these matters? You know what an election is all about—TV advertising, spin doctors. Do you think that's a good way of resolving fundamental rules of how you operate parliamentary democracy? I do not.

I'm sorry to go on here, but I'm trying to put all your feet to the fire. You've got a job to do--not to just go back to the Canadian people with parliamentary democracy in Canada in disarray because there's not an agreement on fundamental rules because you haven't even worked at it.

[The Chair, Conservative, Joe Preston]

Sorry, Mr. Guimond; but I don't even know how you could look at me, assuming there was more time still.

[Voices]

Oh, oh!

[An hon. member]

All that from one question.

[The Chair, Conservative, Joe Preston]

Mr. Christopherson.

[David Christopherson, NDP, Hamilton Centre, ON]

Well, on my way back from the woodshed--

[Some hon. members]

Oh, oh!

[David Christopherson, NDP, Hamilton Centre, ON]

--I would muster up the courage to ask a couple of questions.

First of all, I want to thank you, Professor. I envy those who were your students. I'm sure they got the message, whatever it was you were conveying. You're an excellent teacher. Thank you for that.

I have two questions, if I have time.

First, I'm surprised no one has gotten back to this. The previous speaker, Professor Mendes, was putting forward the notion—his opinion—that under our Constitution, the Speaker has the right to provide advice to the GG on behalf of a majority of Parliament where the Speaker, or that majority, would believe the advice is contrary to that of the Prime Minister.

It took us all by surprise, because there were letters signed by the leaders, in the one crisis we got into, that, should the GG not allow the prorogation, there was a good chance of a majority to be found.

To our understanding--we don't know for sure yet, because a lot of this happens in the dark--we don't think that letter ever got in front of the GG. It could have changed history if it had. Therefore, the question of whether or not our Speaker would have the constitutional right, upon a motion of the House, to convey an opinion to the GG, where a decision is being put in front of him or her by the Prime Minister, that may be contrary, would be allowed. Had that happened and the letter been forwarded, who knows how history would have turned out?

Could you give us your thoughts on Professor Mendes' contention that this constitutional right exists for the majority of Parliament and the Speaker?

[Prof. Peter Russell]

There is not, to my knowledge, either convention or written law on who can speak and advise the Governor General. I've advised the Governor General, and I'm sure as hell, as a professor, not mentioned in any law or convention. The Governor General gets advice, seeks advice, from a number of sources. I'm not even a lawyer.

As to whether it would be proper for the Governor General to hear advice from the Speaker, in my view, it's just fine. I think the Speaker has to think carefully about it, because if the Speaker is getting into a hot political issue and the Speaker's legitimacy.... We know that we've evolved the office of the Speaker so the legitimacy is based on the consent of the various parties of Parliament, and it's seen to be a position that's independent of any partisan affiliation. So I think the Speaker would have to think very carefully about going out.

Anybody who thinks letters addressed to the Governor General don't arrive and get read should be very careful about asserting that unless they have very strong evidence. The premise of your question, that the famous letter, which millions of Canadians actually saw in their newspapers and on television, never got the eye of the Governor General, to me is a pretty outlandish kind of possibility.

But if you want to assert that, then I think you should check it out.

[David Christopherson, NDP, Hamilton Centre, ON]

Well, if I can--

[Prof. Peter Russell]

Oh, I think you can. I think the Governor General's staff might give you an answer as to whether she saw the letter or not.

[David Christopherson, NDP, Hamilton Centre, ON]

Yes. And the issue, of course, becomes not whether she as an ordinary person might have seen it in the media and things like that; it's a matter of whether, under legal process, she can actually consider that as part of her judgment.

[Prof. Peter Russell]

Oh, heavens, yes. A letter is a letter. We all know what was in that letter. We all even know the order of the names.

Good Lord; I mean, these people are active. They get up, and they just soak everything up—including the Governor General, and her staff, and her advisers—every day, just like you.

[David Christopherson, NDP, Hamilton Centre, ON]

Professor, would it be in order for us to send a letter to the GG asking for clarification? Because we really don't know, sir.

[Prof. Peter Russell]

Sure. You can write anything to the Governor General.

[Some hon. members]

Oh, oh!

[Prof. Peter Russell]

Certainly you can.

[An hon. member]

You have my permission too.

[David Christopherson, NDP, Hamilton Centre, ON]

If the clowns are finished, we'll carry on. Don't worry about them.

Thanks.

[The Chair, Conservative, Joe Preston]

Great.

Madam Jennings.

Oh, I think we'll do quick little questions, if we can.

I can just imagine how that's going to look, but go ahead.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I actually have no further questions.

I simply want to state, on behalf of my Liberal colleagues—I hope I can speak for the other colleagues around this table—thank you so much, Professor Russell. Your presentation here has been a mini course, intense and condensed, on constitutional parliamentary democracy, on the issue of constitutional conventions, and on the roles, authority, and prerogative of the different branches.

I just want to thank you for that.

[Some hon. members]

Hear, hear!

[The Chair, Conservative, Joe Preston]

With the permission of the committee, the chair would love to ask a question.

[Some hon. members]

Agreed.