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

[Patrick Taillon]

Certainly, but that's not entirely accurate: in a majority government, the use of prorogation is less controversial, because it does not tend to be used as a delay tactic, as may be the case in a minority government. Is Parliament seeking a confidence vote, an investigation?

In a majority Parliament, the government is in full control, or just about, of the House's proceedings. Prorogation in that context provides the government with an opportunity to reset its legislative agenda and deliver a throne speech. Although a minority government may prorogue Parliament for the same reasons, the decision tends to arouse more controversy and can be seen as a delay tactic. In a minority Parliament, prorogation is a tool the government can use to protect itself, since the confidence in the government is always more uncertain, if you will.

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

You also said that the government could have done better, that all governments could have done better in every situation. Stephen Harper, who sought two prorogations, could have handled the situation better. The same is true of Jean Chrétien. One way to do better, you said, was to prorogue for a short period of time. You underscored that point.

Do you recall how long the two prorogations sought by the Harper government lasted?

[Patrick Taillon]

Unfortunately, I don't know the time frames off the top of my head, but I'm happy to concede that they may have been long. In 2008, prorogation lasted for a number of months, and accordingly, the controversy was considerable in that case.

I would even concede that proroguing Parliament over the summer months is not the same as doing so in the winter months.

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

I was just getting to that.

[Patrick Taillon]

I have no problem agreeing on that point.

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

It's one thing to compare the number of months, but it's another to compare circumstances when a prorogation occurs in the summer and Parliament returns at more or less the same time it would have. That makes a difference. It's wrong to claim that Parliament would have been hard at work during those six weeks.

You look at procedural issues from a highly theoretical standpoint, examining the differences between a prorogation, a throne speech and an economic statement. We are out there on the ground, however. We have our finger on the pulse of our communities, and it is our job to manage the situation and respond when seniors are in trouble, for example. Have you ever had occasion to do that?

[The Chair, Liberal, Ruby Sahota]

That's all the time we have, MP Lauzon.

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

Thank you.

[The Chair, Liberal, Ruby Sahota]

Next we have Monsieur Therrien for six minutes.

[Alain Therrien, Bloc, La Prairie, QC]

Thank you, Mr. Bratt and Mr. Taillon. Your comments have been very informative. I have countless questions for you, but I'll try to keep them as clear and simple as possible.

Mr. Bratt, you emphasized that prorogation is an opportunity for the government to wipe the slate clean, to reset the agenda. You also said that, after you heard the throne speech, it was clear to you that it did not signal a significant change in direction. Rather, you saw it as more of the same. You listened to the Prime Minister deliver his address to the nation that evening; he told us all to cough into our elbows and to download the contact-tracing app. There was no new information there. You cast considerable doubt on the idea that the government wiped the slate clean to reset its agenda. Nevertheless, let's assume that's what the government meant to do.

Mr. Taillon, you said shutting down Parliament was like taking away the executive branch's toolbox. Given the crisis we were facing, the government denied us access to legislation that could have helped people cope with the circumstances.

Mr. Lauzon said that we weren't exactly working hard during the summer, but I would remind him that four committees were meeting and the House was sitting regularly. Back in March, the opposition parties began working together in a very co-operative way, agreeing to sit as often as possible in order to find solutions to address the pandemic. As the House leader of the Bloc Québécois, I lived it. I had many discussions with the government House Leader to try to come up with effective measures in the face of the extraordinary difficulty of navigating the crisis.

Parliament lost six weeks that it could have been working. If the government had wanted to reset the parliamentary agenda and not take crucial time away from the executive and legislative branches—time they could have been working together—the government would have prorogued Parliament on September 18, the Friday before it was scheduled to come back. On Tuesday, Mr. Booth and Mr. Sutherland told us that that was something the government could have done—and it would have had it been putting the interests of Canadians and Quebeckers ahead of the interests of the Liberal Party. The government, however, had other interests in mind, not those of Quebeckers or Canadians.

On August 17, Mr. Morneau, the government's second in command, resigned during the worst economic crisis since the 1930s. My question is straightforward. Would you say the prorogation of Parliament on August 18 was a move to save the skin of the guy at the top, the Prime Minister?

[Patrick Taillon]

Well, one thing is certain: the duration of the prorogation counts for a lot. I am the most critical of the government on that front. Governments can decide to prorogue Parliament for a combination of reasons, ranging from political and strategic to virtuous. In this case, the situation demanded that the government not close its legislative toolbox for such a long period of time. We were building the plane as we were flying it, to use a popular metaphor.

As it was, we were struggling to cope with the crisis with the tools we had. The powers of the provinces and the executive branch were still available, of course, but for the government to throw out the window tools at its disposal for six weeks is to put its interests ahead of the best interests of the federation.

I'll agree that, under normal circumstances, summer months matter less than winter months, but these aren't normal circumstances. That's why I'm focusing so much on how long Parliament was prorogued during a crisis. That was probably where the government went most wrong in this whole situation.

[Dr. Duane Bratt]

I would add a couple extra points.

Back in the 1980s, the Mulroney government had a one-day prorogation. You can do something like that. You can have a one-day or a two-day prorogation. He didn't need six weeks.

The timing is absolutely important. You cannot divorce Bill Morneau's resignation from his implication in WE. Think of that committee meeting when he announced that he had written a cheque to WE Charity for $45,000 hours before testifying. That's pretty damning.

What happened after the prorogation? What was the coverage? It was about prorogation. It was less about Morneau's resignation for the ostensible reason of seeking this job at the OECD, which has quickly collapsed.

[Alain Therrien, Bloc, La Prairie, QC]

I want to underscore something: Mr. Morneau resigned on August 17 and Parliament was prorogued on August 18. Clearly, the decision wasn't motivated by the health or economic crisis. The purpose was simply to protect the Prime Minister's interests. Given what you've both told us, I am more convinced than ever.

I have a comment. As the House leader of the Bloc Québécois, I have been in regular contact with the government House Leader and the leaders of the other parties since March. All spring and summer long, we kept in contact to make the government's measures better, to build the plane as we were flying it, as Mr. Taillon put it. We set aside our political views and historical differences to work together so we could make people's lives better. Unfortunately, that's not what the Liberal Party did on August 18. It's shameful, if you ask me.

Now I'd like to revisit Mr. Trudeau's address the day the House returned.

[The Chair, Liberal, Ruby Sahota]

Thank you, Mr. Therrien.

Mr. Blaikie, you have six minutes.

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

Thank you.

We are here today because of a policy adopted by the Liberal government in response to the prorogations sought by former prime minister Stephen Harper. My understanding is that the policy was meant to prevent controversial prorogations and hold the government to account when it decided to prorogue Parliament.

The committee has heard very different opinions as to why the government prorogued Parliament. This study matters to me, and my hope is that we will be able to understand the type of precedent this creates and thereby ensure future governments are less likely to abuse the power of prorogation.

We have repeatedly heard that all roads led to the Prime Minister. Weare well aware that the prime minister is the one with the constitutional power to advise the governor general to prorogue Parliament. What we want to know are the reasons why that advice was given. We still haven't heard from the Prime Minister, himself, or had the opportunity to ask him questions.

Do you think the Prime Minister should appear before the committee as part of this study? Would that set a good precedent?

I'd like Mr. Taillon to answer first, followed by Mr. Bratt.

[Patrick Taillon]

If the committee invites the Prime Minister and he accepts the invitation, it would no doubt be a good thing.

You said that the prime minister had the constitutional power to advise Her Majesty's representative, the governor general. It's not quite that simple, though, because, the prime minister doesn't actually exist in our constitutional documents. His relationship with the governor general is governed by conventions, in other words, those unclear and unwritten rules that cannot be enforced by the courts. That's the point I made at the end of my opening statement. It is indeed important to proceed cautiously, because our greatest asset—our parliamentary democracy—hinges on very delicate rules that can exacerbate a crisis, rather than help resolve it.

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

Monsieur Bratt.

[Dr. Duane Bratt]

There are a couple of things. One is that I'm very pleased this committee was formed to look at the August 2020 prorogation. I wish something similar had been done back in 2008 and 2010, when those occurred.

I like constitutional conventions. I think the unwritten constitution is a great strength of the Canadian system. Maybe that's why I'm not a law professor.

We can look at Boris Johnson. In the fall of 2019, the Supreme Court of Britain did overturn a prorogation, but he was then allowed to bring in a smaller, shorter prorogation. Given the similarities between the British system and the Canadian system and the role of convention, that might be a case to look at and to investigate much further. Maybe bring a British expert to the committee.

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

I think one of the things we've heard is that in the Canadian context, in order to change those conventions, you need a constitutional amendment. Even that strikes me as odd, because at that point you then have to write into the Constitution things that are not already there. It's not a simple case of amendment. It's actually developing a constitutional mechanism to govern prorogation.

As Monsieur Taillon said, you may be able to change these things because they aren't written and there is a fluidity to those rules, but you can do that only if the people in the positions of leadership—either the Prime Minister or the Governor General himself or herself—see fit to begin behaving in ways that don't conform to the established convention.

What are some of the paths for Parliament to assert a larger role in decisions about prorogation?

[Dr. Duane Bratt]

I agree that legislation would not work. I would argue that it would require something stronger than legislation. I think it is oversight. It is investigation into the actual reasons for prorogation.

Then let the Canadian people decide. Ultimately, they are going to be the jurors on whether this was politically motivated or motivated by public policy. That's where I would turn.

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

Mr. Taillon, would you care to comment?

[Patrick Taillon]

I would point to New Zealand and the United Kingdom, both of which developed cabinet manuals. The idea was not to change the conventional rules, but to at least codify them in writing, so that the public and parliamentarians could see and understand them.

That approach does not involve changing the Constitution; the manual merely provides guidance in the form of a non-legal document. We are talking about a manual that is agreed to across the board and debated before being approved. Accordingly, it serves as a beacon of sorts, helping to interpret these very important rules in the midst of a crisis.

The committee heard from my colleague Hugo Cyr, who made a case for strengthening the rules by holding a vote beforehand. Those are options you could adapt and fine-tune through the usual parliamentary procedure, including committees. Ultimately, though, Parliament's ability to undertake reforms is limited.

[The Chair, Liberal, Ruby Sahota]

Thank you, Professor.

We're going to move into the second round. Because we started a little late, I think we're going to go over a bit, but we'll end at the the NDP in the middle of the second round.

Ms. Vecchio, go ahead. You have five minutes.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Thank you very much to our witnesses for coming today.

I want to turn back to some of the questions that my colleague John Nater was asking. I'm just going to start with a bit of a preamble, because, Dr. Bratt, you wrote in the Calgary Herald in September that:

The speech from the throne was not about a reset due to COVID-19. Rather, it was an elaborate effort from the Trudeau government to distract Canadians from a political scandal.

Do you still believe that's the case?

[Dr. Duane Bratt]

Yes.