Procedure and House Affairs Committee on Feb. 18th, 2021

[The Chair, Liberal, Ruby Sahota]

Good morning, everyone. I call this meeting to order. Welcome to meeting number 24 of the House of Commons Standing Committee on Procedure and House Affairs.

I'm going to go through some of the formal remarks, just because we've had so many changes of membership and perhaps changes in staff, and especially for the benefit of the witnesses we have before us today. Then slowly I'll reduce my introductory remarks once everybody is comfortable with what is happening today,

Today's meeting is taking place in a hybrid format pursuant to the House order of January 25, 2021.

Today, we have members and witnesses participating remotely using the Zoom application, and the proceedings will be made available via the House of Commons website.

The webcast will always show the person speaking at the time, not the entirety of the committee. Hopefully, right now you have your screen turned to the grid view so that you can view everyone. That is not how it's going to be webcast, but it is the best format for you to use in real time so that it feels as much as possible like a real committee meeting.

Today's meeting is taking place in the Zoom webinar format. Webinars are for public committee meetings and are available only to members, their staff and witnesses.

Members may have remarked that entry to the meeting was much quicker and that they each immediately entered as an active participant. With the exception of a few technical difficulties that we've had this morning, all functionalities for active participants remain the same. Staff will be non-active participants only and can therefore only view the meeting in gallery view.

I'd like to take this opportunity to remind all participants to this meeting that taking screenshots or photos of your screen is not permitted.

Given the ongoing pandemic situation and in light of the recommendations from health authorities, please remain a healthy and safe distance from all those attending the meeting in person. Since there are no members or witnesses there, this is just a reminder to all of the staff in the room.

As chair, I will be enforcing these measures for the duration of the meeting. I thank everyone in advance for their co-operation.

Since everyone is participating virtually, let me just remind you to unmute and mute yourself. This won't be done for you, so remember to unmute yourself before speaking.

At the bottom you can choose either “floor”, “English” or “French” for interpretation. Apparently you don't need to switch anymore between the two when you change languages.

I will keep a list of those who have a point of order through the “raise hand” function at the bottom of your screen. If there is a point of order, then, please raise your hand using the toolbar.

Today, for the first half of the meeting, from 11:00 to 12:00, we have witnesses.

I'd like to welcome before us today Professor Duane Bratt, a professor of political science at Mount Royal University, and Professor Patrick Taillon, professor in the faculty of law at Université Laval.

Before hearing from the witnesses, who both have opening statements, I'd like to let members know that following the panel of witnesses we will have an election for the first vice-chair position, which fell vacant when Mr. Doherty left the PROC committee. Hopefully we'll be able to do that right after this panel.

We will follow that by going in camera. You've been provided a link by email. We will be continuing with our draft report on the election and COVID-19 study. Once the draft report is completed and approved, we will hopefully move on, if we have some time left, to committee business so that I can update you on the prorogation study.

Professor Bratt, would you start with your opening statement, please.

[Dr. Duane Bratt, Professor, Political Science, Mount Royal University, As an Individual]

Thank you to the committee for inviting me. I appreciate doing this by Zoom so I didn't have to fly to Ottawa, as much as I enjoy Ottawa.

I will read my opening statement and then I can flesh it out during the question period.

Prorogation is an important parliamentary tool. It allows for a government reset in between elections. However, it's a tool that can be and has been abused by governments, particularly when they're in a minority situation. Before getting to the matter of August 2020, I will give a short list of recent and controversial prorogations by both Liberal and Conservative governments.

In 2002, Prime Minister Jean Chrétien prorogued Parliament. This allowed Chrétien to avoid tabling a report to the House of Commons public accounts committee regarding the sponsorship scandal. Unusually, this was done by a majority government, not by a minority government.

Then we have the episode in December 2008 with Prime Minister Stephen Harper. This was probably the most controversial case in Canadian history. Harper had won a minority government weeks before, but was facing a non-confidence vote which he would surely lose. The other party leaders, Stéphane Dion, Jack Layton and Monsieur Duceppe, signed agreements signalling their intent to defeat the government. Because it was so close to the previous election, there would likely be no fresh election, and instead Stéphane Dion would be permitted to form a new government. To delay the vote, Harper prorogued Parliament. I will return to this case again.

The third case was January 2010 to March 2010, also by Prime Minister Stephen Harper. The stated reason was to keep Parliament in recess for the duration of the Winter Olympics in Vancouver. However, it was strongly suspected that Harper wanted to avoid ongoing investigations in the Afghan detainees affair. This case was quite similar to the August 2020 prorogation: the minority government facing damaging committee investigations.

This brings us to the August 2020 to September 2020 prorogation.

The reason for the throne speech was prorogation. The official reason for the decision to prorogue Parliament was to allow a government reset to address the COVID-19 pandemic and its economic fallout. Without a doubt, this is a very valid reason and would absolutely have justified proroguing Parliament. Responding to COVID-19 probably did play a role in the decision-making that led to the decision to prorogue.

However, I would argue that a much more important rationale was the WE scandal. The Canadian government had given a sole-source contract to the WE Charity to administer a student volunteer program. However, WE had very close ties to the families of Prime Minister Justin Trudeau and then finance minister Bill Morneau. The scandal led to Morneau's resignation and increased scrutiny from parliamentary committees into the role of Trudeau, the Prime Minister's Office, other ministers and senior members of the public service. Proroguing suspended those investigations and allowed the Trudeau government six weeks to try to change the channel with Canadians.

There are two key pieces of evidence that I have compiled to justify my argument.

First was the timing of the prorogation. As I said, COVID-19 became an important issue in March 2020. The government responded with a series of health responses and unprecedented economic responses throughout the spring of 2020. If at any time in the spring of 2020, the government had decided to prorogue Parliament in order to give it more time to effectively respond to COVID-19, that would have made perfect sense. Waiting until August, and only after the WE scandal had been percolating for weeks with future bad news for the government, showed what I believe was the real political calculation.

A comparison to Stephen Harper in 2008 is in order.

In the fall of 2008, as the global financial crisis was hitting, that was a legitimate justification to prorogue Parliament, even though we had just had a federal election weeks before. In fact, the new throne speech did respond to the global financial crisis. However, as I argued above, the real reason was to delay an imminent non-confidence vote in the hopes that the Liberal-NDP-BQ coalition would collapse, which is exactly what happened.

Second, was the throne speech itself. Speeches from the throne are usually a one-day story. There is some buildup, but they are usually vague visions of the future direction of the government. However, the one that the Justin Trudeau government delivered in September 2020 was supposed to be significantly different.

There was speculation for weeks about its contents. It would be delivered in the midst of the COVID-19 pandemic and record levels of government spending. The speech followed Parliament's prorogation with a looming threat of a non-confidence vote that would plunge Canada into an election. If these stakes were not high enough, Trudeau and the opposition leaders would give separate television addresses to Canadians, timed for the supper-hour news in Ontario and Quebec, but sadly for those in the western provinces like myself, it was in the afternoon, and most people missed it.

Unfortunately, despite the hype, there was not much substance to the Speech from the Throne. If the reason for prorogation was in fact COVID-19, the Speech from the Throne would have been laser-focused on how the government would respond, both through health measures and economic responses. It would have indicated new programs and policies. Instead, the content was a rehash of previous federal programs, such as the Canadian emergency wage subsidy, and promises that had been repeatedly made, such as strengthening child care programs and creating a national pharmacare program.

These could have been refocused as a policy response to COVID-19, but were not really. Instead, it resembled a campaign speech for the next election, which could have arrived soon after.

The television address was even worse. I'll skip over some of this stuff. The television address was really an opportunity for Trudeau to summarize the throne speech in his own words, and not the Governor General's, that had only been delivered a couple of hours previously. This was a campaign speech.

Ultimately, the Speech from the Throne was not primarily about a reset due to COVID-19. Rather, it was an elaborate effort from the Trudeau government to distract Canadians from a political scandal.

With that, I will conclude my opening statement, and wait for questions.

[The Chair, Liberal, Ruby Sahota]

Thank you, Professor Bratt.

Professor Taillon.

[Patrick Taillon, Professor, Faculty of Law, Laval University, As an Individual]

I'd like to thank the committee for the opportunity to participate in this discussion on the circumstances surrounding the government's use of prorogation this past summer. I will try to keep my remarks brief.

The first point I would like to make is this: prorogation is a controversial mechanism in our parliamentary law. It can be used as a delay tactic to avoid the usual mechanisms for settling disputes. The strength of the parliamentary system, as compared with the presidential system in the U.S., is that it normally prevents a dispute between the House of Commons and the executive branch from dragging on. There are ways to settle disputes: the dissolution of Parliament and the non-confidence vote. Who decides? Voters.

In certain circumstances, prorogation can be used to pervert the functioning of a parliamentary system, which relies on the use of non-confidence votes and dissolution to settle disputes. Thus, prorogation is used as a tactic to delay and prevent a confidence vote. That's not always the case, but it does happen.

In the summer of 2020, a minority government faced an impending confidence vote and thus a threat. The same thing happened in December 2008, but of course, the threat was more explicit then than it was in the summer of 2020. On top of that, the government was dealing with a parliamentary investigation into the WE Charity scandal and the unpredictable crisis caused by the COVID-19 pandemic.

In the government's defence, these issues are often seen through a glass-half-full or half-empty lens. It could be argued that the Prime Minister and the finance minister had at least co-operated with the investigation by taking the time to appear before the committee prior to the proroguing of Parliament. Be that as it may, prorogation put an end to the investigation. Was that the purpose or just a side effect? One thing is clear: it was one of the results.

That said, beyond the matter of the investigation, the government's use of prorogation in the summer of 2020 strikes me as all the more questionable. After all, it had the effect of putting the government's short-term interests—changing direction, putting an end to the investigation and shutting down the study of bills—ahead of the best interests of the federation, in my view, given the unprecedented crisis the country was facing. If the government had been acting in the best interests of the federation, it would not have deprived itself of the parliamentary process and legislative toolbox in the midst of a crisis.

In the weeks and months when Parliament was shut down, the government may have needed to pass legislation amending the Canada emergency response benefit or administer the Emergencies Act, for example. Thank goodness that wasn't necessary, but given how unpredictable and hard to manage the crisis was, the best interests of the federation demanded that Parliament and the legislative process remain accessible. By shutting them down, the government put all of its eggs in the executive powers basket and sent the message that it could do without legislative tools in the massive undertaking that was the response to the COVID-19 pandemic. I would say the government confused its legitimate interests with the best interests of the federation.

The government could have done better in two ways. First, it could have opted not to prorogue Parliament. By not proroguing, the government would not have taken the risk it did. Second, if it felt so strongly about proroguing Parliament, the government could have handled it better by proroguing for a much shorter period of time. The results would have been the same: terminating the investigation, ending all proceedings before Parliament and providing an opportunity for a throne speech. It would have been sufficient to prorogue Parliament for just a day. In that scenario, the government would not have taken the risk of forgoing the parliamentary toolbox and legislative process in the midst of a crisis.

In conclusion, determining whether a decision to prorogue Parliament is controversial and politically expedient depends on the context and political judgments, which ultimately lie in the hands of parliamentarians and voters. It's up to them to decide.

I humbly submit that the use of prorogation in the summer of 2020 was controversial and was a way to evade a possible confidence vote. Above all, it was a way to put an end to an investigation and to face a confidence vote weeks later on the agenda laid out in the throne speech, rather than as a direct result of the investigation findings.

If there is anything I can impress upon you, it is this: a shortcoming of our parliamentary system is that the rules around prorogation, and the powers of the governor general, the prime minister and the House of Commons tend to be unclear, unwritten and not enforced by the courts. They are referred to as constitutional conventions, and rather than mitigate crises, these unclear rules and conventions sometimes have the effect of exacerbating them.

The 2008 prorogation is a perfect example. The rules of the game were not clear, written down or enforceable by the courts. During the period of tension between Stephen Harper's minority government and then governor general Michaëlle Jean, the rules had the effect of exacerbating the crisis instead of alleviating it.

I applaud the committee for taking the time to examine how our institutions work. I encourage parliamentarians to consider codifying our unwritten rules more effectively, as New Zealand and the United Kingdom have done. That may be too bold of a request, but parliamentarians should not fear the taboo of constitutional reform. They must not turn a blind eye to the gaps in our institutions; those institutions deserve better and improving them is not something to shy away from.

Thank you.

[The Chair, Liberal, Ruby Sahota]

Thank you, Professor.

We're going to keep the timing tight. Sometimes I give a little leeway, but today I don't think we have enough time. The statements went over a bit, but they were very valuable, and we appreciate having both witnesses here.

Mr. Nater, you have six minutes.

[John Nater, Conservative, Perth—Wellington, ON]

Thank you, Madam Chair. I would echo your comments that these were very useful comments from both of the distinguished academics with us today.

Thank you to both of you for joining us.

Professor Bratt, I might start with you. You had made some interesting comments in your opening statements that hark back to comments made by Minister Rodriguez earlier this week. He told this committee that the one and only reason for prorogation was the reset for the COVID-19 crisis.

You rightly noted that it is an important issue and one that would in theory be worthy of a reset, but you made some interesting comments about the speech itself being basically a rehash of previous announcements and not really the grand occasion that might have been envisioned for a reset.

Would I be right in suggesting in your comments on this that the minister might have been putting a bit of a political spin on the one and only reason, and would you agree that the primary reason was a way to get out of the difficult political situation related to WE?

[Dr. Duane Bratt]

I have no doubt that COVID was part of the decision-making, but I believe it was not the primary driver, for the reasons that I explained. I think the primary driver was to delay and try to change the channel as related to the WE scandal.

On a decision of this importance, there's never one single factor. The question we have to look at is, what is the real driving factor as opposed to other smaller mitigating factors?

[John Nater, Conservative, Perth—Wellington, ON]

Thank you for that.

To that end as well, we know that the advice to the Governor General is given rightly by the Prime Minister of the day, the only person who has the tradition and the constitutional right to provide advice to the Governor General.

In this case, obviously we have not heard directly from the Prime Minister. Would that be an avenue that you think this committee should pursue, hearing from the Prime Minister, as well as some of his senior staff?

[Dr. Duane Bratt]

Absolutely. I did watch when the Prime Minister attended, I believe it was, the finance committee back in July over the WE scandal. I thought that was a valuable testimony.

I think asking him directly about this, about his rationale, not necessarily the conversation he has with the Governor General—I think that is privileged—but what the decision-making around this was and to be able to probe some of those questions.... Absolutely.

[John Nater, Conservative, Perth—Wellington, ON]

I'll throw open this next question to both you and Professor Taillon.

Are you aware of anything that would have prevented the Prime Minister from announcing at an earlier date, perhaps on August 18, that it was his intention to request prorogation from the Governor General at a future date, closer to September, but not formally requesting until closer to the date?

Professor Taillon, you made some interesting comments about putting the interests of government over the interests of Canadians, taking away the tools of Parliament during that period of time.

Are either of you aware of any blockages that would have prevented the Prime Minister from announcing his intention to seek prorogation at a future date but allowing committees, in particular, to continue their good work during that time period?

[Patrick Taillon]

Personally, I can't see anything that would prevent the government from proroguing Parliament for a shorter period, declaring its intention to prorogue or allowing committees to continue their work until prorogation. Once prorogation is over, there is nothing stopping members who support the government from working together to follow through with investigations that were under way before prorogation. To my mind, all of those things are possible.

[John Nater, Conservative, Perth—Wellington, ON]

Professor Bratt, do you have any comments on that same topic?

[Dr. Duane Bratt]

Yes. There's nothing stopping you from announcing in a press conference that you intend to prorogue two weeks hence or three weeks hence. There's nothing stopping you from doing that. In fact, there's nothing to prevent you from reversing that three weeks later, saying, “We don't need to do this now.” There's nothing wrong with that, but I would agree with my colleague. A six-week prorogation is quite unusual. It was a significant length of time.

[John Nater, Conservative, Perth—Wellington, ON]

Great, thank you for that.

To that end as well, there's been a fair bit of stock put on the importance of holding a confidence vote by the Prime Minister on the return after the Speech from the Throne. I think the official quote—and I'll read it—was “duty-bound and honour-bound to ensure we had the continued confidence of the House”.

To both of you as well, some have suggested that this was almost a way of fishing for an election before the second wave hit. Would you agree that there are other procedural tools that would have been available to the government, without prorogation, to have a confidence vote to ensure that it was clear they had the confidence of the House of Commons? Would you suggest there are other tools outside of prorogation to have gone that route?

[Dr. Duane Bratt]

They could have simply put in a resolution to the House asking for confidence. They didn't need to prorogue. They didn't need a Speech from the Throne. The government can declare that this item is a matter of confidence and have a vote on it. Yes, there are other reasons they could have done that besides proroguing. That didn't require a confidence vote.

[John Nater, Conservative, Perth—Wellington, ON]

Given the speculation of the timing of the prorogation and the documents that were to be tabled almost immediately, the next day, would you suggest we look at some of the conversations held between the government and those entities that were to table documents to see what information they had prior to prorogation?

[The Chair, Liberal, Ruby Sahota]

Maybe give just a yes or no, please.

[Dr. Duane Bratt]

Yes.

[John Nater, Conservative, Perth—Wellington, ON]

Thank you.

[The Chair, Liberal, Ruby Sahota]

Monsieur Lauzon.

[Stéphane Lauzon, Liberal, Argenteuil—La Petite-Nation, QC]

Thank you, Madam Chair.

I'd like to start by thanking the witnesses for providing us with a theoretical overview. It's clear from their thorough explanations just how passionate they are about the subject.

My question is for Mr. Bratt.

Mr. Bratt, you said in your statement that addressing the COVID-19 pandemic was a valid reason for the government to prorogue Parliament, but then you quickly went on to say what you felt was the reason the government chose to prorogue Parliament.

Can you explain why you think the government had a valid reason to prorogue Parliament in the midst of a pandemic?

[Dr. Duane Bratt]

I think something of this importance, which led to hundreds of billions of dollars in additional government spending for an unknown health pandemic that we didn't know how bad would be, would obviously justify a reset of government to prepare for something like that, just as a global financial crisis, a depression or a war would involve similar activities.

[Stéphane Lauzon, Liberal, Argenteuil—La Petite-Nation, QC]

You also said that it would have been better to prorogue Parliament in March, when we learned about the pandemic. Instead, the government prorogued in August. How would you have the government conduct a thorough analysis of the data collected between March and August, and all of the cases in the community? We knew at that point that there would be a second wave. The country was heading towards a $300-billion-plus deficit. It was time to step back and take stock of the situation.

Why was it more important to prorogue in March than in August, when the government didn't have any data or evidence at that point? In August, we were truly facing an emergency. People were tired and fed up. They wanted to be done with the pandemic.

[Dr. Duane Bratt]

On the issue of timing I never said it had to be in March. It could have been April, May or June. I think the reason it occurred in August was that other political events like the WE scandal had emerged. It didn't need to be the first day, the second day or the first week. If it really was about COVID, if they felt they needed to do it in August they could have done it in June, in May. I think by doing it in August you need to look at the timing of the other events that were circulating at that moment.

[Stéphane Lauzon, Liberal, Argenteuil—La Petite-Nation, QC]

My next question is for both witnesses.

Both of you said that prorogation was controversial. In the country's history, has there ever been a prorogation that did not arouse controversy among the opposition parties?