Procedure and House Affairs Committee on Dec. 10th, 2020

[Dr. Barbara Messamore]

Well, yes, and that's kind of my point, really. I was recalling former British prime minister Harold Macmillan's response to a question by a journalist about what blows a government off course. He said, “Events, dear boy. Events”.

I would say that this is very much a case where events have overtaken the original Speech from the Throne. I absolutely get that the suspension of the investigative committee is a problem, and I think Professor Lagassé's point about there being a political cost is well taken. Since we've had this greater scrutiny of prorogation, people take notice, people who never understood the term or thought anything about it. It has become short of a flashpoint when you hear that word.

Yes, there is a political cost, but it is unusual to carry on a parliament with one session and—

[Omar Alghabra, Liberal, Mississauga Centre, ON]

Sorry, I have a handful of other questions.

I agree. Ideally the committees should not have been interrupted, but given the drastic changes of the circumstances and the need for a brand new agenda for the government, one can weigh the pros and cons of this.

Have you been following the four committees that were studying the WE situation prior to prorogation? Do you know how long they were studying the WE file?

[Dr. Barbara Messamore]

No, not specifically.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

Again for your sake and for Canadians' sake, for almost a month and a half these committees held hearings repeatedly. They invited many witnesses, by the way, including the Prime Minister, which was unprecedented.

Do you know if committees, after prorogation, can still continue those studies if they choose to?

[Dr. Barbara Messamore]

You mean during the prorogation?

[Omar Alghabra, Liberal, Mississauga Centre, ON]

No, afterwards.

[Dr. Barbara Messamore]

No. I mean, this is the end of the committees.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

No, I mean, once committees are reconvened, can they choose to—

[Dr. Barbara Messamore]

I see. Yes. My understanding is that a different committee would have to be formed.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

Okay, so I think you catch my logic here. While there is an unfortunate pause to some studies, even though those committees had been doing their work for a very long time and have interviewed many witnesses, I think that, on balance, perhaps this was necessary.

The last question for you is this: Has any other government in the past submitted an explanation to the House of Commons for its prorogation?

[Dr. Barbara Messamore]

My understanding is that the procedure is a comparatively new one, so I think the answer to that would be no.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

I will stop here. Thank you.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

I have a quick point of order, if I may, Madam Chair.

Mr. Alghabra had a lot of questions outside the subject matter expertise of our witnesses, but he seemed to have the answers. I wonder if Mr. Alghabra would like to be called as a witness for the study.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

I would love that. Thank you, Daniel.

[The Chair, Liberal, Ruby Sahota]

Okay, we will carry on.

Madame Normandin, thank you so much for being back with us. We always love it when you pop by.

Go ahead for six minutes please.

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you very much, Madam Chair. It is always a pleasure to see you again.

It is also a pleasure to see Professor Daniel Turp, to whom I will address most, if not all, of my questions.

Professor Turp, I would like to begin by asking you whether there are any other examples of the government using the power of prorogation to escape accountability or parliamentary scrutiny over allegations of corruption.

[Daniel Turp]

My colleague Ms. Messamore cited some very relevant examples from Canada's constitutional history, most notably the prorogation of 1873, when Prime Minister Sir John A. Macdonald tried to evade the inquiry into the Pacific Scandal. It was really an attempt to use prorogation to end parliamentary scrutiny of a case of corruption and misappropriation of public funds.

It's not very difficult to draw a parallel with what happened a few months ago, because the WE Charity issue has also been the subject of parliamentary investigations by four committees, as the Conservative member who spoke before you mentioned. The committees were studying what happened in that case and what public funds were diverted or whether they were used properly.

So there are examples. Others are not related to corruption, but to the detention of Afghan detainees in Afghanistan, as has been mentioned as well.

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you very much.

I will come back a little later to the reasons the government itself gave for requesting prorogation.

Do other democracies similar to Canada's have examples where the courts have intervened to determine the legality of proroguing Parliament?

[Daniel Turp]

The courts have rarely intervened. In fact, some people have taken the position of my colleague Mr. Lagassé that the courts should not interfere. I disagree with that, particularly in light of the U.K. Supreme Court decision on Brexit. It is sometimes difficult to reach a unanimous decision on complex constitutional issues, but in that case, a court unanimously decided to provide a framework for exercising the power of prorogation and created benchmarks that had never been created by the constituent itself or by a Parliament and that the government had never imposed on itself. I think we should use it as a model.

Actually, if action had been taken when Parliament was prorogued or the next day, on August 19, this British precedent would have been of great interest. It's hard to tell what the decision of the Supreme Court of Canada would have been, but we can imagine that it might have wanted to apply the same principles and could have declared the prorogation illegal, as the U.K. Supreme Court did.

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you very much.

If I understand correctly, the issue of prorogation can be defined by legislation, but could it be enshrined in constitutional law?

Should constitutional law be reviewed to provide a framework for prorogation?

[Daniel Turp]

Of course Canada's constitutional law should be reviewed. No one today can conclude that governments have not abused this power of prorogation since the Canadian Confederation was created in 1867. It happened in 1873. This is 2020. There are too many examples of this power being abused to evade investigations or to try to prevent a confidence vote.

If our democracy is to be healthier and to protect Parliament, its sovereignty and the democratic accountability of its members, like you and your colleagues on this committee, we need reforms.

Is it really a constitutional reform, as my colleague suggested? Could other reforms be made to define this power? In any case, it can be done, because the constitutional prerogatives and conventions can be repealed. They can be replaced by new constitutional norms, and this would be highly desirable in light of this latest prorogation, which, in my opinion, was totally unacceptable for reasons that have not been presented in this report. This is the first report, and some people want to boast that they have prepared a fine report, but it does not provide the real reasons. We all know the real reasons.

[Christine Normandin, Bloc, Saint-Jean, QC]

This report was mandatory according to the internal rules of procedure.

The report mentions the reasons for prorogation, to reset the approach and to ensure confidence in the House, but was it necessary to prorogue Parliament for six weeks? A one-day prorogation would have been sufficient, if we want to just talk about the length of the prorogation.

[Daniel Turp]

I agree with others, including my colleague Mr. Lagassé, that this prorogation lasted far too long. It was not necessary, because we could have continued to operate the program. We know how the Speech from the Throne is prepared. It is done quickly. It can be done overnight.

In this case, prorogation was not necessary or desirable. The only reason for prorogation was to circumvent the work that four parliamentary committees had done. That reason is not mentioned in the report, which is supposed to provide the reasons for prorogation. I am sorry to tell the member who suggested that one month and a half is like an eternity in the life of a Parliament, that no, one month and a half is not an eternity in the life of a Parliament.

[The Chair, Liberal, Ruby Sahota]

Thank you, Professor Turp.

We now have Mr. Blaikie, for six minutes.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Thank you very much.

I'm going to start by providing some comments.

One of the things that I personally find frustrating about the nature of this prorogation and some of the prorogations under the Harper government was that.... As we've heard some witnesses say already, there is an important routine function of prorogation, and it can be used properly. I found it odd that we never saw the end of a parliamentary session in the last Parliament and I felt that that was based on, frankly, just a kind of ignorance of what prorogation really meant. I think that ignorance persists, and what we saw was a government that, not understanding the proper function of prorogation, earlier this year decided to use it and abuse it as a tool.

Not only did it mean that an important investigation into the WE Charity scandal was prematurely terminated, not only did it mean, and has continued to mean in spite of prorogation, that we're not getting a budget, which I think is important, and we saw that the government is able to speak to its fiscal situation notwithstanding the challenges of the pandemic and therefore, I think, could present a more fulsome budget, but it also meant that in that period of time....

I would say this perhaps to Mr. Turp's point, a month in a half, in some ways, is not a long time, and in other ways it's a very long time. That was a long time for Canadians who were on the Canada emergency response benefit and were waiting to see legislation tabled in the House, to get a sense of what was coming for them at the end of September. The fact that we weren't able to make progress on that issue and that the whole thing was decided within the space of a few days, because the government hadn't left time for them to table legislation to allow a proper conversation to happen, meant a lot of stress and anxiety for Canadians, who knew that the deadline for CERB was coming up and didn't know what was going to replace it. That's the truth. People didn't know. It came right down to the wire. That was another, as far as I'm concerned, shameful aspect of this prorogation, which was not a proper use of it. That's my opinion. Let there be no doubt about it.

I take the point that this is an exercise of political judgment, but I also think it's important, when we talk about the various divisions of power within Canadian society, that we recognize the importance of the legislature, which is far too often passed over in the context of the Canadian system. I find it frustrating that we would need a constitutional amendment to do what some other countries do, and rightly do, which is to require a two-thirds vote of the legislature in order to dissolve. I think it should also be applied to prorogation.

Now, in other fora, not here today but if you look at some of the testimony from the Special Committee on Electoral Reform, one of the subject experts, Professor Hugo Cyr, provided a brief that talks a bit about the power of prorogation and proposes that, although we can't actually make it binding that there should be a parliamentary vote for dissolution or prorogation, one of the things that might be within the purview of the House would be to put in the Standing Orders that if a Prime Minister recommends prorogation or dissolution without having a vote and the consent of the House of Commons, that Prime Minister would be deemed to have lost the confidence of the House.

We have four experts on the matter here today. I'm wondering if we could get a little bit of feedback on that idea or on what other mechanisms which would not require a constitutional amendment, would allow Parliament to assert its authority and demand that it be consulted on questions of either prorogation or dissolution.