Procedure and House Affairs Committee on Jan. 28th, 2021

[Prof. Hugo Cyr]

As far as my proposal is concerned, Ms. Turnbull and I may differ in one respect.

A prime minister always has the ability to request the prorogation of Parliament if he or she has the confidence of the House. If the prime minister no longer has the House's confidence, his or her advice is not binding on the governor general. Without amending constitutional acts or other legislation, you would have to establish a mechanism whereby the prime minister would be deemed to have lost the confidence of the House if he or she did not first obtain the House's consent. The governor general would not, in that case, be bound by the prime minister's advice.

Now the issue is finding the mechanism to do that. I propose including in the Standing Orders of the House of Commons—

[Wayne Long, Liberal, Saint John—Rothesay, NB]

On a point of order, Chair, I'm getting both French and English at the same time. It's very difficult to hear our witnesses.

I believe his setting is probably on general as opposed to French.

[The Chair, Liberal, Ruby Sahota]

That's not supposed to be an issue anymore, but yes, let's try that.

Professor, at the interpretation at the bottom of your screen, please switch it to French.

[Prof. Hugo Cyr]

I'm on the French channel. Is that better?

[The Chair, Liberal, Ruby Sahota]

Would you resume? If you want to backtrack by 10 seconds, that would be helpful to committee members, but we understand if you don't remember your spot.

[Prof. Hugo Cyr]

All right.

The Standing Orders could actually set out the conditions for holding a confidence vote or non-confidence vote. If the Standing Orders were amended to provide that, should the prime minister request prorogation without first obtaining the support of the House by way of a motion, the prime minister would be deemed to have lost the confidence of the House and the advice to prorogue would not be binding on the governor general.

[Alain Therrien, Bloc, La Prairie, QC]

Is that what happened with Mr. Harper, in 2008?

[Prof. Hugo Cyr]

In 2008, he did not lose the confidence of the House, but a confidence vote was looming. There was quite a debate among the experts. It was traditionally held that the prime minister could not seek prorogation with a confidence vote pending. Some argued the opposite, meaning, that the prime minister had full freedom to request prorogation and that the request was granted automatically.

We are saying that it isn't automatic. The proof is that the then governor general consulted extensively; she imposed conditions and exercised her power of reservation. She accepted the prime minister's advice, not because she was bound by it, but because she was exercising her power of reservation. Had she denied the request, it would have meant that she had lost confidence in the prime minister and he would have had to resign.

[The Chair, Liberal, Ruby Sahota]

Thank you, Professor.

Mr. Blaikie, you're back. You have two and a half minutes, please.

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

Thank you, Madam Chair.

Mr. Cyr, my apologies for missing your presentation. I was tending to my duties in the House of Commons.

Let's say the majority of members wanted to implement your proposal. We are going to have a new governor general. What can the House of Commons do to establish a similar procedure related to prorogation, as part of the new governor general's mandate? How do we move forward with that change?

[Prof. Hugo Cyr]

I'm proposing that the Standing Orders of the House of Commons be amended to provide that the government would be deemed to have lost the confidence of the House were it to submit an opinion to the governor general that Parliament should be prorogued without first having passed a resolution to that effect in the House. The Standing Orders could state that the resolution must set out the date on which the House would be recalled and the date on which a new throne speech would be delivered.

Apart from an amendment to the Standing Orders, it could take the form of a new practice. Adopting the practice would not require amending the Standing Orders. If the government were to do it on its own, without amending the Standing Orders, it could help establish a new tradition. I think that would be in the government's interests, because it would put an end to questions about its legitimacy.

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

In that case then, would the mechanism be that if the Prime Minister did want prorogation for whatever reason, there would then be a motion to that effect in the House and a vote prior to prorogation? Is that what's envisioned as the new practice?

When you say that practice ought to be instituted, what we would want to see then is changes to the Standing Orders and then a Prime Minister who said, “Let's now have a prorogation. Here's the motion. Let's have the vote.” The House would assent, and then we would have established a new practice.

[The Chair, Liberal, Ruby Sahota]

Be very quick, please.

[Prof. Hugo Cyr]

Precisely.

[The Chair, Liberal, Ruby Sahota]

Okay.

Mr. Tochor, you have five minutes, please.

[Corey Tochor, Conservative, Saskatoon—University, SK]

Thank you very much.

Thank you to our witnesses for being here today.

We're here mostly because of poor judgment from the Prime Minister. At the heart of this scandal is an almost billion-dollar sole-sourced contract to WE Charity, which had ties to the Prime Minister and former minister of finance. It was poor judgment to get involved in an outfit that had paid over half a million dollars to the Prime Minister's mother. The poor judgment demonstrated by that transaction ultimately led to the proroguing of Parliament.

We talked about the Governor General's role in this. This is another poor judgment by the Prime Minister, getting involved and personally vouching for the Governor General so that she would not go through the proper vetting process. Now the taxpayers are on the hook for $140,000 at minimum for the rest of her life, which is also poor judgment by Prime Minister.

We had a Governor General who was indebted to the Prime Minister for vouching for her as much as she was the wrong choice, but was indebted nevertheless to the Prime Minister. We talked about the role of the Governor General, who in the past has granted proroguing rights to the situation but it isn't automatic. It still could be that in the future—although it would be precedent setting—it could be declined.

I would like to get the professor's view on this. In what situations would the Governor General not grant a proroguing of Parliament?

[Dr. Lori Turnbull]

The only justification for that would be if there was a question about whether the Prime Minister had the confidence of the House. I think if the confidence is there, then the advice would be seen as binding, whereas if confidence is lost or about to be lost.... That's why 2008 was an issue, because there was a question about whether the confidence was there.

[Prof. Hugo Cyr]

I agree with Ms. Turnbull.

The governor general is bound by the prime minister's advice if he or she has the confidence of the House.

[Corey Tochor, Conservative, Saskatoon—University, SK]

Switching gears a little, Professor Turnbull, you talked about an alternate or different narrative that wasn't in the report. Can you unpack that a little? What you think that narrative might be?

[Dr. Lori Turnbull]

At the time, in the months before the prorogation, the government was facing intense committee investigation and media scrutiny because of the decision to give the WE organization the opportunity to administer a $900-million student grant program. The processes that unpacked over the summer were in two different committees. Very high-profile witnesses, including the Prime Minister, the Kielburgers, the Clerk of the Privy Council, ministers and other senior public service executives, were coming to committee to give different pieces of the story. It was a pretty intense time for the government.

[Corey Tochor, Conservative, Saskatoon—University, SK]

Would you say those actors you outlined should be the ones we might want to call to this committee?

[Dr. Lori Turnbull]

There's nothing in the Standing Orders that says what the government's answer has to be. The government is free to offer its narrative on why it prorogued, but I don't think it's possible to look at the situation and ignore the other narrative that was dominant at the time.

[Corey Tochor, Conservative, Saskatoon—University, SK]

Some shenanigans were going on with the almost billion-dollar contract to a children's charity, which in itself is disgusting, that it would get involved in this so it would funnel money back to other people. This is disturbing when we look at the context. We're in a pandemic and you would think the government would want to be doing everything possible to protect Canadians, versus throwing ourselves into perhaps a constitutional crisis or definitely a confidence crisis in how they've been handling things.

To our other witness, what are the other—

[The Chair, Liberal, Ruby Sahota]

That's your time.

Next, we have Dr. Duncan for five minutes, please.

[Kirsty Duncan, Liberal, Etobicoke North, ON]

Thank you, Madam Chair.

Thank you to our witnesses for coming. We appreciate your expertise very much. It's nice to meet you both virtually. I have limited time, so for some of my questions, I'll be looking for a yes-or-no answer.

This is a really important discussion, but I'm going to concentrate on the fact that we are in the middle of fighting a pandemic, that we have a tragedy occurring in long-term care and that we have new variants of concern.

Professor Turnbull, would you agree that with a novel virus like COVID-19 that we have much to learn? I'm looking for a yes or no, please.