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

[Dr. Philippe Lagassé, Associate Professor, International Affairs, University of Ottawa, As an Individual]

Thank you, Madam Chair.

Thank you to the members of the committee and the clerk for inviting me to appear before you today.

We have been asked to address the government prorogation this past fall.

To do so, I will first explain what purposes prorogation serves. I will then note how prorogation can be abused, before outlining criteria that I believe are useful for judging the acceptability of particular prorogations. Thirdly, I will apply these criteria to the fall 2020 prorogation.

Lastly, I will conclude with thoughts about how we hold governments to account for improper prorogations. I will ask whether we should encourage Canadian courts to limit the scope of the prorogation power, as they did in the United Kingdom.

Why do we have prorogation? Why is it necessary to end a parliamentary session and begin a new one?

A prorogation may be wise or necessary to serve the following purposes: there may be a change of a ministry within a parliament, requiring a new government to lay out its agenda and clear the slate of legislation, so that it can enact its own bills; Parliament may have been in one session for an extended period of time and the government wishes to start afresh; a significant event leads the government to want to pursue a new slate of legislative measures; or, a government wishes to put forth a new parliamentary agenda in anticipation of a general election.

Of course, given the effects that prorogation has, notably terminating government bills, clearing the order paper, resetting committees, and often erasing sitting days, this power can and has been used as a hardball tactic, one that allows the executive to stifle the opposition's ability to hold it to account.

For example, tactical and/or hardball prorogations can be used to: avoid or delay a vote of no-confidence; reset committees that are mounting an inquiry that is politically harmful to the government; and avoid or delay parliamentary proceedings employed to hold government to account.

We can talk about it in more detail.

When prorogation is used that way, it damages our constitutional norms and democracy. How, then, do we distinguish between acceptable, purposeful prorogations and damaging, tactical ones?

Length is one distinguishing factor. Prorogations should be as short as possible. Although Canadian practice has been to have relatively long prorogations, we should be aiming to shorten them, particularly given the increasing questions that surround this power.

Next is the political environment. Are committees holding inquiries that are embarrassing to the government? Is there a vote of no confidence looming? If the answer is yes to these questions, we can be forgiven for assuming that the prorogation is tactical.

A third factor is the parliamentary setting. Has Parliament been sitting often or sparingly? Has the government been subjected to consistent parliamentary scrutiny or has it been avoiding it? The less active a parliament has been prior to a prorogation, the more suspect the decision to prorogue is.

Based on these criteria, how can we evaluate the fall 2020 prorogation?

Clearly, the pandemic represents a significant event that led the government to want to reset its legislative agenda, budgetary posture, and policy priorities. This suggests that the prorogation had a legitimate purpose.

However, the prorogation was unnecessarily long, it reset committees looking into an issue that was embarrassing to the government, and most importantly, from my perspective, it paused and restarted a Parliament that had already sat for far too little time and that was already poorly placed to hold the government to account since the pandemic began in earnest. These factors weigh in favour of a tactical prorogation.

To conclude, then, how do we hold governments to account for tactical prorogations?

Though it may be an unsatisfactory answer, the reality is that we rely on politics to hold governments accountable here. It is up to the opposition to criticize the tactical nature of a prorogation, for the government to explain why it believes it was purposeful, and ultimately for Canadian voters to decide who they side with.

That said, the United Kingdom provides us with another possibility—that is, asking courts to invalidate prorogations that prevent Parliament from fulfilling its constitutional functions without proper justification. I would strongly caution against Canadian courts following this precedent. The line between a purposeful and tactical prorogation is rarely clear. In some cases, the government will engage in a tactical prorogation in response to equally questionable behaviour on the part of the opposition. The acceptability of a prorogation should, in my view, be viewed as a non-justiciable political question that can only be answered in the political arena.

Thank you, Madam Chair.

[The Chair, Liberal, Ruby Sahota]

Thank you.

Next we have Professor Brock, please.

[Professor Kathy Brock, Professor, School of Policy Studies, Queen’s University, As an Individual]

Hello, everyone. Thank you very much for the invitation to appear.

I am sorry, but I have to express myself in English only, because I don't master French very well and I speak it too slowly.

I've been asked to speak about the government's constitutional legal powers in the context of our governing system. I will talk about the foundations and then the legal basis and the constitutional basis, as well as the conventional basis—constitutional—for prorogation and then a little about some parallels with what has actually just transpired this year. Then I'll conclude with some remedies. You have my notes. I will be summarizing them fairly quickly.

To begin, the heart of democracy in Canada is Parliament. It's fashionable to deride Parliament, to downplay its importance, but Parliament has truly stood the test of time in ensuring transparency of government actions and accountability of the government to the people, and in acting as a voice for Canadians, just as the founders envisioned. While prorogation is often derided as a political tool, closer examination I think situates it as an important aspect of the relationship between the executive and legislative branches of government.

As we know from the Supreme Court, Parliament is sovereign, and the executive and the courts should respect Parliament as the primary institution. A core strength of the Canadian political system is that the executive is strong, it's able to execute its agenda and it can act quickly and decisively.

Now, the support of the House of Commons is important to the executive and to ensuring that its agenda gets through. That is one of the first functions that the House of Commons must do: to support the government. But to ensure the government does not become too powerful, Parliament has a second important duty, and that is to hold the government to account, as you are doing by reviewing this report.

By confronting the government directly, the House of Commons shines a light on instances of questionable or poor judgment and offers alternative views or scenarios so that Canadians can decide whether they'll keep or fire the government in the next election. By performing this duty, the opposition parties, but the House of Commons generally, helps ensure governance is not only undisrupted in Canada, but also that it's transparent good governance during both normal times and crises.

Prorogation embodies these fundamental aspects of the relationship between the executive and Parliament. It's a more refined tool than the blunter one of dissolution, which, as you know, dissolves Parliament and forces an election. Prorogation pauses the work of Parliament rather than halting it, so it keeps government working, and that's important. You've heard that prorogation does have two components. It suspends the work of Parliament by ending its current session and it resets the parliamentary agenda with the start of a new session and throne speech.

In Canada, prorogations have been as short as a few hours, and they can go up to the constitutional limit of one year. The norm is usually 40 days, or the Prime Minister requests an extension. Prorogation is derived from the common law prerogative powers of the Crown under the Westminster model of parliamentary government, but we have a uniquely Canadian twist to them. Section 38 of the Constitution Act, 1867 states:

The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon and call together the House of Commons.

This has been interpreted to include prorogation and dissolution. By virtue of the Letters Patent,1947 the Governor General is authorized and empowered to exercise the powers of the Crown with respect to “summoning, proroguing or dissolving the Parliament of Canada”, and, by convention, the power to advise dissolution and prorogation lies with the Prime Minister.

To go on to the power itself, it's complex and it's controversial, in part owing to the fact that it's largely governed by conventions.

Under the conventions of responsible government, the Governor General acts under the direction and advice of ministers who are members of Parliament and who collectively hold the House of Commons. This ensures that the government is beholden to the legislature at all times. If the advice tendered by cabinet is lawful and constitutional, then the Governor General is obliged to accept and follow it. This ensures that the head of state is ultimately accountable to the citizens through the government and Parliament.

The Prime Minister, as head of government, is responsible for the decisions of the Governor General, and this is important because it keeps the Governor General above the political fray and keeps that office impartial. Things become trickier if the advice is unconstitutional or unlawful or if the government does not hold the confidence of the House.

In these cases, the very first responsibility of the Governor General is to advise and warn the Prime Minister of this possibility, and the first remedy rests with the Prime Minister and government. Matters become murkier if the government presses forward. If the remedy is unavailable and the advice contravenes the Constitution or legislation, then the Governor General can refuse the advice or defer action.

In the second case, whereupon the government is unable to proceed with its agenda in a deadlocked Parliament, then the first and preferable remedy is for the government to accept this responsibility and advise the Governor General on the best way out of the deadlock. In this case, prorogation is a less drastic decision and course forward than are dissolution and an election. A pause in the work of the House may allow passions to subside and a reasoned debate to take place after prorogation.

I can cover the rest of my remarks in the question-and-answer period.

[The Chair, Liberal, Ruby Sahota]

Thank you, Professor Brock.

Next we have Professor Messamore.

Go ahead, please.

[Dr. Barbara Messamore, Professor, History Department, University of the Fraser Valley, As an Individual]

Thank you for the invitation to appear.

I'm a historian with an interest in political and constitutional history, particularly the role of the Canadian Crown. Prorogation and dissolution of Parliament are among the Crown’s prerogative powers.

Prorogations throughout Canada’s history have seldom attracted attention, and the term was not really part of the general vocabulary. To the extent that it was, it was more apt to be understood as a routine procedure to end a parliamentary session.

Similarly, in the U.K., annual prorogations have been the norm, although Prime Minister Boris Johnson’s 2019 request amid the Brexit deadline suddenly brought prorogation into controversy.

In majority governments, controversies over prorogation are rare. I’m currently at work on a book on the 1921 federal election. The advent of the Progressive Party gave rise that year to Canada’s first post-Confederation minority government. That's also a link in the chain of events leading to the famous 1926 King-Byng constitutional controversy over the Governor General’s refusal of advice for dissolution.

The fact that Canada had a long run of majority governments from 1979 to 2004 meant that there were fewer opportunities for prorogations to be used in a way that excited controversy. At times, however, it was arguably a tactic to evade probes of wrongdoing. This has been alleged of the 2003 prorogation as details of the sponsorship scandal emerged, although media or opposition attention at the time was seldom directed at prorogation per se.

A new level of scrutiny followed after December 2008, when prorogation was used to stave off a non-confidence vote in a minority government situation. At the time, I wrote that the Governor General was correct in following the Prime Minister’s advice for prorogation. It seemed apparent that the prorogation was indeed intended to derail the planned NDP-Liberal coalition that sought to govern with Bloc Québécois support.

However, for the Governor General to refuse the advice of the Prime Minister, who had not yet lost a confidence vote, would have been a very serious step, used only in the gravest emergency. The opposition was delayed, but not prevented, from having an opportunity to withdraw confidence from the government. When Parliament resumed in January 2009, it chose not to do so.

At the time of the 2008 prorogation, I wrote about another long-ago controversial prorogation. At the height of the Pacific scandal in 1873, with John A. Macdonald rapidly losing support in the House of Commons, he requested that the Governor General prorogue Parliament. While that ended the investigative committee, it didn't end the controversy. Macdonald resigned when Parliament resumed a few weeks later, with Lord Dufferin then calling Liberal leader Alexander Mackenzie to form a government.

The 2008 controversy over prorogation has made any use of this procedure a matter for greater scrutiny. The use of prorogation in December 2009, which had the effect of suspending a committee investigating treatment of Afghan detainees, attracted particular attention as a result. Standing Order 32(7) would seem to make this scrutiny a permanent condition.

Canada’s 42nd Parliament, we know, consisted of only one session, a rather unusual situation given the four-year life of the Parliament, so no prorogations were sought to end sessions in the usual way. In the past, some full-length Parliaments have had only two sessions, although this was unusual, and some have had as many as seven, but about four sessions was more the norm, meaning prorogations would be a regular occurrence.

The most recent prorogation of the 43rd Parliament in August 2020 had the unfortunate effect of interrupting the committee scrutinizing the WE Charity controversy, something that requires further investigation. That said, there is also a strong case that can be made that the unforeseen eruption of the COVID-19 crisis since the start of the 43rd Parliament provides a rationale for a new session, with a new Speech from the Throne setting out a fresh legislative program. For this reason, I think prorogation was entirely justifiable.

Thank you.

[The Chair, Liberal, Ruby Sahota]

Thank you so much, Professor.

Thank you to all of you for your concise and interesting remarks.

We'll start with our first panel. Mr. Doherty, you have six minutes, please.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Thank you, Madam Chair.

Thank you to our witnesses today.

On August 18 Prime Minister Trudeau chose to prorogue Parliament for a term of six weeks. At that time, four parliamentary committees were studying what has been classified as the “WE scandal”. The WE scandal deals with the government awarding an up to $900-million contract to what we all know now, what the public knows, were very close contacts to both the Prime Minister and senior cabinet ministers.

I find very interesting and do appreciate the comments from our witnesses. I think what we saw when we came back was that there was indeed not a reset. We saw that more committees that had tried to study this prorogation continued to be filibustered. This committee was the only one to successfully be able to eventually study this.

I would urge our witnesses today, as we don't know what lies ahead in the future, to be as forthright as possible in their answers. This may be the only time Canadians actually get to hear other perspectives on why this prorogation took place.

Dr. Brock, in an August interview with the Kingston Whig Standard, Mr. Gerretsen's hometown newspaper, you said, “Although you can understand the delay, the continued state of suspension with respect to a budget is troubling. I find the proroguing of Parliament quite troublesome.”

Dr. Brock, we sit almost two years without a budget still. Can you elaborate on what troubles you the most?

[Prof. Kathy Brock]

Sure. For me there are two issues here. First of all is the question of the committees. You will see in the notes I've provided that I make a recommendation on what Parliament could do. It cannot actually put restrictions on the Prime Minister or the Governor General with respect to the power of prorogation without a constitutional amendment, but it could look at how it operates when prorogation is called. There have been some exceptions to the business of the House of Commons that have been covered by a prorogation. I am wondering if committees should be one of those things that you consider.

If we look at 2009, which I thought was much more troublesome than the 2008 prorogation, or the experience of the McGuinty government in Ontario, when a government is seen to be avoiding tough hearings by committees and it prorogues, that really does create disillusionment among the public, and cynicism, and can lower the legitimacy of the government and our political institutions. It also makes Parliament look like it's less effective than it should be.

The second point is about the budget. I find it very troubling that we have not had a budget. That is one of the best means for Parliament to hold the government to account and to scrutinize what it is doing. It provides stability and continuity. The primary function of Parliament is to approve the funds of government and to check how those funds are spent. Without a budget, it's very difficult to do that. In my work with the public sector, I am also asking people in the public sector how they are affected by there not being a budget, because I think it is an important measure.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Thank you, Dr. Brock.

Dr. Lagassé, in an August op-ed, you wrote, “...the fact that the committees holding hearings into the WE Charity will no longer be meeting is significant. Whether this is a fair characterization depends on the government’s ability to show it was necessary....”

In your opinion, in your view, did the Liberals subsequently show that it was necessary to shut down Parliament?

[Dr. Philippe Lagassé]

In my honest estimation, I would say, no, I don't believe the reset was effective in communicating the necessity. That isn't to say that it might not be there, but the communication that was put in was not convincing to me.

In particular, I would say it might have been more convincing had Parliament been sitting on a regular basis throughout the summer and throughout the crisis. It's the compounding of factors that makes it more difficult, to be quite frank, sir.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

You conclude your op-ed with your observation that “preventing improper prorogations depends on making them politically costly.” How, in your view, would that be achieved?

[Dr. Philippe Lagassé]

To be frank, sir, this is really your business not mine. I can point them out in the public domain, but this is a political accountability system. As I mentioned in my remarks, I don't believe we should be relying on the courts to do these types of things, precisely because, as has been noted by some other witnesses, we will arrive at different conclusions about the propriety of this action.

By the same token, you can make a case, as my colleague Professor Messamore just did, that it was an appropriate reset. It really depends on the eye of the beholder, and ultimately it falls upon yourselves, as members of the opposition, to convince Canadians otherwise.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Thank you.

[The Chair, Liberal, Ruby Sahota]

Next, we have Mr. Alghabra, please, for six minutes.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

Thank you very much, Madam Chair.

Good afternoon and good morning to our witnesses. Thank you for being here today.

I have a bunch of questions, and because of the limited time I have, maybe I'll ask Dr. Messamore my questions. You might be surprised as some of these questions may not be part of your expertise, but here we go.

When was the last time we had a global pandemic?

[Dr. Barbara Messamore]

The one that comes readily to mind was 100 years ago.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

Right. Do you know how many Canadians were infected by COVID?

[Dr. Barbara Messamore]

By COVID or by the last pandemic?

[Omar Alghabra, Liberal, Mississauga Centre, ON]

By the current pandemic.

[Dr. Barbara Messamore]

Again, these are not my areas of expertise at all.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

It's about 440,000 so far.

How many Canadians have died because of COVID, do you know?

[Dr. Barbara Messamore]

No, I don't know the exact count. It's not within my expertise.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

The latest numbers are over 13,000 Canadians.

Do you know the decline in the GDP of the Canadian economy?

[Dr. Barbara Messamore]

Again, it's not my area.

[Omar Alghabra, Liberal, Mississauga Centre, ON]

It's close to 40%. I'll also say that unemployment has more than doubled to almost 14%.

Do you see the drastic change in the conditions of the country from the first Speech from the Throne after the swearing in of the government in December of 2019 to today?