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.