Procedure and House Affairs Committee on April 29th, 2010

[Prof. Errol Mendes]

It would be the combination of standing orders plus supporting legislation to create a binding conventional rule that would allow the Speaker to basically say to the Governor General: you have the power under your reserve powers to refuse the prorogation. There would be no need for a constitutional amendment in that case.

[David Christopherson, NDP, Hamilton Centre, ON]

Right.

Again, though, the ultimate stoppage is a constitutional amendment. I don't think we're going to go down that road.

[Prof. Errol Mendes]

Yes. It's impossible anyway, because essentially you would need the consent of all the provinces.

[David Christopherson, NDP, Hamilton Centre, ON]

Agreed. I said that to Walsh the other day, and he jumped down my throat. I said it only takes 50%, or is it 50% plus seven, or...? What's the formula?

In a practical sense, it has to be unanimity.

[Prof. Errol Mendes]

There is academic disagreement. The actual constitution talks about the “office of the Governor General”, which would definitely require unanimity under article 41. But I think the Clerk mentioned the possibility of distinguishing the “powers” of the Governor General as opposed to the “office” of the Governor General. That would require less than unanimity.

I don't think we should go down that road. As we've found out in the past, even constitutional amendments requiring less than unanimity are almost impossible.

[David Christopherson, NDP, Hamilton Centre, ON]

How would we send the Speaker to speak on behalf of Parliament if the Prime Minister prorogues the House and you can't get into the House to move the motion?

[The Chair, Conservative, Joe Preston]

Maybe we'll get an answer to that from one of the next questions.

[David Christopherson, NDP, Hamilton Centre, ON]

Maybe we will, Chair.

Thank you.

[The Chair, Conservative, Joe Preston]

That finishes our first round.

We're going to try a second round. I'm going to keep it at five minutes, but if you don't need to use your whole time and would like one of your colleagues to get a chance to ask questions, it would be really good if you did that.

Madam Jennings.

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

Thank you, Chair.

Again, thank you, Professor Mendes. I find that the more questions that are asked of you, the clearer things become.

My understanding, then, would be that going the constitutional route would create major headaches, and there is a very good chance it would not succeed. However, this other route that you are proposing, which is amending the Standing Orders and bringing in supporting legislation in order to create a new conventional rule, could and most likely would be successful, in that it would then provide a way for the House of Commons to express its will, exert its will, and ensure that the Governor General, whose authority to dissolve or to prorogue a session would remain unfettered...but a way to ensure that the Governor General would be informed of this new conventional rule.

I don't have any other questions, but I wanted to ensure that this was very clear.

If my colleague has no questions, then I'll....

[The Chair, Conservative, Joe Preston]

Thank you for sharing. It's good to see it.

Mr. Lukiwski, I think you're sharing with one of your colleagues too.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I didn't know that, but thanks for advising me.

[Voices]

Oh, oh!

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thanks to Marlene for giving up her time.

Here is one quick point and then a question, Professor. Thank you for being here.

The point I would make in respect to David's point about advice from the Speaker to the Governor General—and perhaps at the end, if you have time to comment on this, I'd welcome your comments—is that my understanding from a constitutional perspective is that there's a big difference between “advice” in the constitutional sense and just giving information. To David's point, that the letter may or may not have been read, I don't know, but how does the Speaker give information to the GG that there is a coalition, or an agreement among the opposition parties, that they can do whatever they want to do? That letter is more an informational piece, as I interpret it, than “advice” in the constitutional sense. Before you depart from the meeting, I'd like to hear an answer to that.

My question is something from our previous meeting, with Rob Walsh and Thomas Hall. I'm sure you've seen or listened carefully to the testimony of both of them.

Mr. Hall basically disagreed with you, in an article you had written in the Ottawa Citizen, on whether or not committees could be allowed to meet during prorogation. You argued that they could sit. Mr. Hall argued that it would not--in his opinion at least--be constitutional to do so, because once the House closes down, committees cease to function. In fact, if committees—he was referring to standing committees—continued to sit, then there would be nothing to suggest that a Committee of the Whole would not be able to sit. That would in fact just do an end-run on prorogation.

I'd be interested to hear your interpretation concerning Mr. Hall's point, which disagrees, I think fundamentally, with yours, and whether or not you have a counter-argument to Mr. Hall's point on the unconstitutionality of committees sitting during prorogation.

[Prof. Errol Mendes]

Actually, I don't disagree with him. I think what I was saying in the Ottawa Citizen was misunderstood, and I wish it hadn't been edited the way it was.

Committees can do whatever they want. They can basically sit in between sessions, as the Afghan committee did during the prorogation. The only problem is that the witnesses will not be covered by parliamentary privilege. I know that firsthand, because I appeared before the Afghan committee during the prorogation period and I was acutely aware that I did not have privilege. That's actually the reason I decided—I think I was the first one who said—that there was a clear breach of privilege in the refusal to hand over on the detainees. I knew when I was presenting it that there was no parliamentary privilege on my behalf.

So committees can do basically whatever they want. The only problem is whether or not the witnesses will be covered by parliamentary privilege.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

If you're saying committees can sit, I'm not sure, outside of the lack of immunity, what other weight or powers they may or may not have. His point is that if a smaller committee can sit, then why not a Committee of the Whole—which in effect, then, would mean that Parliament was still sitting?

[Prof. Errol Mendes]

As I said, because there's no parliamentary privilege, the chances of that happening are actually almost zero. In addition, why would the Committee of the Whole sit? If, as happened with the Afghan committee, there was a specific issue that they wanted to deal with.... I was asked to give my opinion on whether there was a clear breach of privilege by the refusal to hand over on the detainee issue, and I felt that I could brave the risks of not having parliamentary privilege and appear before the committee, and I did.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Mr. Hall was saying that he believes—it's his opinion, at least—it's unconstitutional. You're saying committees can sit, that they can do whatever they want. But what about the constitutional argument?

[Prof. Errol Mendes]

It depends what comes out of that committee. As happened with the committee I appeared before, I think there was a general agreement among the people who were there that there was evidence of a clear breach of privilege, and that carried on into the House. Nothing was actually decided at that committee meeting, but there was a very important input, by me and others—I think I appeared with Colonel Drapeau, who reinforced my testimony—and that input was put into the House of Commons and ultimately, I was glad to see, was confirmed by the Speaker yesterday.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I think—

[Prof. Errol Mendes]

I'm sorry; let me answer both questions.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Yes, indeed; there's a bit of time left.

[Prof. Errol Mendes]

I understand the potential catch-22 that you're putting forward, but keep in mind that I don't think there's ever been a prorogation in Canadian history when there was not some notice given—if not formal, then informal notice—at which point, if there is any evidence that the Prime Minister is attempting something that would be trying to avoid a clear vote on confidence or undermining the parliamentary privileges of committees, the Speaker can then advise the Governor General that there is a problem here. Again, as I'm saying, it's not a legal rule, but it gives her the ability to use her reserve powers to do that.

If you can tell me of any prorogation that happened without some type of formal notice, then, I agree, my position would be a problem.

[The Chair, Conservative, Joe Preston]

Monsieur Paquette, you're up.

[Pierre Paquette, Bloc, Joliette, QC]

I just wanted to ask the question I was not able to ask earlier, because I want to understand this clearly.

You are talking about a process leading to a binding conventional rule. This conventional rule would be created around Standing Orders and perhaps some legislation. It would become binding when a government's prime minister breaks it and pays the political price for it. Over time, the prime ministers who follow will understand that, if they do not comply with this rule, which will then be better known, they will pay the political price.

Do I understand the process correctly?