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

[Prof. Hugo Cyr, Professor, Faculty of Political Science and Law, Department of Legal Sciences, Université du Québec à Montréal (UQAM), As an Individual]

Thank you very much. I'm delighted to be contributing to the committee's work.

My approach will be rather different from that of the other two witnesses. I'll be coming at the topic from a different standpoint: constitutional law, institutional mechanisms and the issues raised.

I'll start by highlighting aspects of constitutional law related to the exercise of the prerogative to prorogue Parliament. Then, I will suggest a solution or mechanism to prevent the problems being discussed today, problems that could arise in the future as well.

As mentioned, the prerogative to prorogue Parliament lies with the executive branch. The prime minister advises the governor general to prorogue Parliament. As long as the prime minister has the confidence of Parliament, the governor general is bound by that advice.

It was said that, until recently, the request for prorogation had not been problematic. The granting of the request had been virtually automatic. We had an instance where—

[The Chair, Liberal, Ruby Sahota]

Let me pause you for a moment, Professor Cyr. We have an interpretation issue. There's no sound.

[The Clerk]

Madam Chair, if you suspend briefly, we'll try to figure out what the problem is.

[The Chair, Liberal, Ruby Sahota]

Someone from IT will be contacting you, Professor Cyr, to figure it out.

We'll suspend for a minute.

[The Chair, Liberal, Ruby Sahota]

Thank you for everyone's patience, especially to our witness.

Professor Cyr, you have three and a half minutes. Unfortunately, I don't know what the last sentence was that we heard. I hope you have been able to regroup yourself. I don't know if any of the members can perhaps help.

[Prof. Hugo Cyr]

I'll go fairly quickly.

Basically, I was saying that the prime minister advises the governor general to prorogue Parliament, and as long as the prime minister commands the confidence of the House, the governor general is bound by that advice. In 2008, the prime minister, who was facing a confidence vote, requested that Parliament be prorogued. There was a question as to whether the governor general of the day was bound by the prime minister's advice. In the end, she granted the request for prorogation, but not immediately—it was only after several hours of reflection. Some believe that she exercised her power of reservation because she felt it was the right thing to do under the circumstances. Until recently, the request was said to have been granted automatically.

I want to bring a very important case in the United Kingdom to the committee members' attention. The Supreme Court of the United Kingdom was recently called upon to issue a decision on the legality of the prorogation requested by the British prime minister. The court recognized that prorogation is the prerogative of the Crown. However, the court also recognized that it has the jurisdiction to review the exercise of the prerogative power—it being a justiciable issue—just as the court has the jurisdiction to scrutinize other prerogatives, including in foreign affairs.

The test applied by the courts is whether the prorogation is valid in law. The prorogation cannot have the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and the body responsible for holding the government, or the executive, to account.

With respect to judicial review in the United Kingdom, the government had to show that it had reasonable justification to prorogue Parliament. According to Professor Paul Craig, prorogation is indeed a mechanism to end a session of Parliament, but he also says the following:

The use of prorogation to silence a recalcitrant Parliament is an improper purpose.

Therefore, the courts would consider it to be illegal. In the case of Brexit, the Supreme Court ruled that the prorogation was unlawful and void, and Parliament had to reconvene.

Of course, we don't know what impact a similar decision would have in Canada, but there are precedents. In Khadr, the Supreme Court established that the prerogative powers asserted by the Crown, even in foreign affairs, can be subject to judicial review. That means there is a risk. While the reasoning provided afterwards, once Parliament has been recalled, may provide some transparency, it does not solve all the problems.

Now, I'd like to propose to the committee a way to reduce the risk of encountering this type of imbroglio. The proposal is based on the fact that the prime minister's advice is binding on the governor general only if the prime minister has the confidence of the House of Commons. In other words, the House determines whether the prime minister has its confidence, not the other way around. The House is the master of its decisions as to whether its confidence in the government is maintained.

Even the Standing Orders of the House of Commons refer to a confidence vote. According to Standing Order 6, the election of a Speaker shall not be considered to be a question of confidence in the government. It is implicitly recognized that the Standing Orders can determine the conditions in which a confidence vote may be held. In Quebec, the National Assembly sets out these terms in its standing orders and rules of procedure. A set of conditions must be met in order for the National Assembly to be deemed to have maintained its confidence in the government.

To reduce the likelihood of imbroglios, I propose amending the Standing Orders of the House of Commons to provide for the following eventuality: if the prime minister submits an opinion to the governor general to prorogue Parliament without first having passed a resolution to that effect in the House of Commons, the government is deemed to have lost the confidence of the House of Commons. As a result, the governor general would not be bound by the prime minister's advice.

I can speak to the proposal in more detail during the question and answer period.

[The Chair, Liberal, Ruby Sahota]

Thank you, Professor Cyr.

We will start our formal six-minute round with Mr. Lukiwski.

You have six minutes, please.

[Tom Lukiwski, Conservative, Moose Jaw—Lake Centre—Lanigan, SK]

Thank you, Chair. I believe internally we had a situation where our first speaker was going to be Mr. Doherty.

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

Go ahead, Tom.

[The Chair, Liberal, Ruby Sahota]

You can go ahead with whatever you guys decide. I have paused the time. You can figure it out. If you want to share the time, you can share it.

[Tom Lukiwski, Conservative, Moose Jaw—Lake Centre—Lanigan, SK]

We'll see how it goes. I spoke for about two and a half minutes with Professor Brodie. If I get an additional six minutes, while I'm grateful for it, I don't want to take time away from my other colleagues.

Professor Cyr and Madam Turnbull, welcome.

Professor Cyr, it's good to see you back at committee. The last time I had an opportunity to converse with you was 10 years ago, when you appeared before this very committee. I don't know if that says more about your longevity or mine, but it is good to see you back here once again.

I will continue with the train of thought I had with Professor Brodie, which is simply this. In my opinion, the decision to prorogue by the Prime Minister this previous August was made strictly for political reasons and not for anything else. The Liberals will argue, as Mr. Turnbull has done, that prorogation was necessary because the world order in effect had changed due to the pandemic. We needed to do a complete reset, and hence the need for a throne speech. I argue once again that this reasoning is flawed, for the very reason that the throne speech, when it did come down, was mainly fiscal in nature. In other words, it talked about fiscal measures that the government wished to take, monetary changes and that type of thing. We didn't need a throne speech for that. It didn't fundamentally change the agenda of the government. What we needed was a budget.

Parliament could have continued in its present form, or at least at the time in its present form, but the Prime Minister made the decision to prorogue to avoid a very serious political problem he was facing. Because of the WE Charity scandal, the government was facing very uncomfortable questions on a daily basis. Media was reporting on a daily basis about the WE Charity scandal. Social media was ablaze with commentary about the political scandal. The Prime Minister did what he thought he needed to do to avert a political crisis, and that was to prorogue, to end the discussion about the WE Charity.

I should also point out that the date the Prime Minister prorogued, August 18, was exactly one day prior to the Speakers' Spotlight being required to table a report on fees paid to the Prime Minister's family. That as much as anything, in my opinion, prompted the Prime Minister and his staff to prorogue.

Professor Cyr and Madam Turnbull, with the greatest of respect, I don't believe that your appearance here...are the people we need to have before this committee testifying. The people who need to be here providing testimony are the Prime Minister and people like Katie Telford, the House leader of the government and other political sorts, perhaps, in the PMO, who would advise the Prime Minister to prorogue. We need to be able to question them on their thinking behind prorogation. We know that the reasons are clear. As I have said many times before, it was to avoid a political scandal, to avoid political embarrassment, but we need them to answer questions. Canadians know, as everyone on this committee knows, the reason for the prorogation. It was for political reasons, for political gain.

Madam Turnbull, you mentioned that you felt, at least in your opinion, there was some rationale for prorogation.

Professor Cyr, you issued, as you have done in years past, various options that the government could be looking at to change legislation, perhaps, to give further options to the current method of prorogation.

I would ask both of you a very simple question: Do you believe that in this case, when the Prime Minister prorogued Parliament on August 18, it was out of necessity, or could the Parliament have not prorogued and let the committees continue their work? If a prorogation was deemed necessary, it could have been done literally one day before the recall of Parliament. We have had previous witnesses, academics, testify at this committee that they did not feel prorogation was necessary, but it was out of political convenience. I would like to hear your thoughts on the necessity of prorogation, because that is the reason the government is saying they prorogued.

Professor Cyr, perhaps we can start with you first.

[Prof. Hugo Cyr]

I first want to say that my answer will be limited to my area of expertise, which is constitutional law. That means I can't answer your question directly, except to say this.

I'm going to cite an excerpt from the Supreme Court of the United Kingdom's decision because it's important to understand the two types of explanations that the government can provide.

It says, “The next question is whether there is a reasonable justification for taking action which had such an extreme effect”. Here they were talking about proroguing just before Brexit so that Parliament could not negotiate and discuss and deliberate things. The court goes on, saying, “Of course, the Government must be accorded a great deal of latitude in making decisions of this nature. We are not concerned with the Prime Minister's motive in doing what he did. We are concerned with whether there was a reason for him to do it.”

The court makes a distinction when it comes to a subjective reason. My colleague Mr. Brodie said that prorogation was strictly a political decision, one made for political reasons.

From a constitutional law standpoint, however, was there a reason to prorogue? That's what the government provided in its report. It's up to parliamentarians to determine whether the justification is sufficient.

[The Chair, Liberal, Ruby Sahota]

Thank you, Professor Cyr. That's all the time we have for the six minutes.

Next is Mr. Turnbull. You have six minutes, please.

[Ryan Turnbull, Liberal, Whitby, ON]

First, I'd like to start off by thanking the two witnesses for being here. It's really great to hear your testimony, and I appreciate the expertise that you bring to this study.

Dr. Turnbull, perhaps some of my questions will be aimed at you. Please, committee members, assume no affiliation between us. Despite the fact that we share the same Scottish clan name, we've never met.

Ms. Turnbull, in your opening remarks you talked about previous prorogations at different levels of government in Canada and throughout history. You cited a few examples, and it sounded like those were often controversial and most of the time criticized. Would you say that's the norm, that any time a government prorogues there are different perspectives on this and there's speculation about motives, as Mr. Cyr was talking about?

[Dr. Lori Turnbull]

I think that is fair, to be honest. Even to move into the previous question, I think it's very difficult to ever say that a prorogation meets a threshold of being necessary in a constitutional sense or in a legal sense. Therefore, when it happens, there is going to be a lens put on that where people are saying, “Why are they silencing Parliament? What is it this time?”

If there's what people see as an obvious reason, then it's very hard to unpack that narrative. Just because there is a narrative that is political doesn't mean there's not one that can exist at the same time that is more about policy planning. They're not mutually exclusive.

[Ryan Turnbull, Liberal, Whitby, ON]

Thank you for—

[Dr. Lori Turnbull]

I think at this point it would be not totally impossible, but the only kind of prorogation that's not going to be controversial, I think, is if you get, literally, a “We're going to prorogue on Friday”, and then they reopen within a week with a Speech from the Throne.

[Ryan Turnbull, Liberal, Whitby, ON]

Following from that, for almost all prorogations there are different perspectives. There's some amount of criticism and proving that it was entirely necessary is probably difficult. There are always different perspectives, but in terms of history, my understanding is that this current government is actually the only one that's ever tabled a rationale or a report to document its reasons for proroguing. Is that not correct?

[Dr. Lori Turnbull]

To my knowledge that is correct.

[Ryan Turnbull, Liberal, Whitby, ON]

Okay, great.

Have you read that report?

[Dr. Lori Turnbull]

Yes.

[Ryan Turnbull, Liberal, Whitby, ON]

Let's look at the merits of that report. As Mr. Cyr was saying, even the courts are recognizing the difference between a subjective motive and actually having reasons. In fact, as long as you have reasons for this, I think you, Dr. Turnbull, in your opening testimony said there is a rationale for doing this. Sure, some people may argue. Mr. Lukiwski thinks that there was some other thing that was driving that decision, but that's speculation, at best, on his part.

What we have before us is a report. In your view, looking at that report, does that provide a rationale for proroguing?

[Dr. Lori Turnbull]

It does provide a rationale for proroguing. The narrative in the report is quite consistent with that of the fiscal update that we saw in November and the fiscal snapshot we saw in July. Of course, there is a narrative there. As I said, as well, there's another narrative that's not there.

[Ryan Turnbull, Liberal, Whitby, ON]

Would you expect a narrative that's not there....? If the reasons the government had for proroguing are in the report, it's really only speculation to say that some other reasons.... The government has tabled the report, so this study at this committee is about that report and the legitimacy of that report. I have read that report, and I've looked at the throne speech. I really feel it reflects a change and a shift in the context.

There was a lot of work put into it, a lot of internal consultation, I might add. I had three meetings with stakeholders in my riding and attended close to 15 sessions leading into the new Speech from the Throne. In my view, it is pretty unheard of that a government is actually consulting extensively before formulating a Speech from the Throne.

When you look at the reasons in that report and the way it's structured, we talk about protecting Canadians from COVID-19, helping Canadians and businesses through the pandemic, building back better and standing up for who we are as Canadians. Those seem to me to be pretty relevant themes, and there are many specifics that we could reference there. Even the structure of it seems to provide a good rationale and a good argument for why the government prorogued.

Would you not agree with that?

[Dr. Lori Turnbull]

I think it certainly provides a narrative.

To go back to the previous question, there is always going to be an acknowledgement of any other political narrative that's relevant.

To be honest, in my view, even though the Standing Orders have created a reporting requirement, the Prime Minister, as the person who holds the power to advise prorogation, from a constitutional perspective, does not have to have good reasons. It's the way it is. You can prorogue. People can get angry with you about it, but you can still do it.