Mr. Speaker, I rise on a question of privilege. I have given the necessary one hour notice to the Chair of my intention to rise on such a point.
I rise on a question of privilege today related to the departure from the Liberal caucus of the hon. member for Whitby. At its heart, I believe this is a breach of privilege flowing from a violation of section 49.8 of the Parliament of Canada Act. Allow me to explain.
On Wednesday of this week, just before question period, we learned the news of the hon. member for Whitby becoming an independent, which happened shortly after the weekly caucus meeting of the Liberal Party had broken up.
Later that afternoon, the CBC aired an interview with the hon. member, conducted by Chris Rands, a producer with that network. She told Mr. Rands:
I just think it was important to, you know, I understand that there's a lot of people that supported me that were disappointed in, you know, what I did, doing the interview that I did, and I think that it's important to understand that, you know, while I support the values and principles of the Liberal Party, that it might be good since that message did go out, that I sit as an independent for the rest of the term that I'm here.
There was more, but I will leave it there.
Those are words that I have read to the House, but I do urge the Chair to review the footage of that interview. I say this, and I want to tread delicately here, because it was the demeanour of the member that particularly struck me during that interview. The member seemed disappointed, to put it politely.
What I, and what many who watched that interview, saw was someone who was not just disappointed to part ways with her colleagues, which is understandable, or even a touch of regret with the decision, but that I saw and what I think most people would have seen was a visceral look of shock.
I do not speak about this to put the member for Whitby in an awkward place but because I genuinely believe that her so-called resignation is what some might describe as “a negotiated resignation”.
Picture the ultimatum that may have been put to her as I have perceived it, that she had until the end of the day to resign or she would be kicked out, and that it was her decision. That last part sounds familiar.
My point is that I truly believe the hon. member for Whitby was, or was threatened to be, kicked out of the Liberal caucus, that is to say her departure from caucus was not a free and voluntary action on her part.
That brings me to section 49.2 of the Parliament of Canada Act. This section provides:
A member of a caucus may only be expelled from it if:
(a) the caucus chair has received a written notice signed by at least 20% of the members of the caucus requesting that the member's membership be reviewed; and
(b) the expulsion of the member is approved by secret ballot by a majority of all caucus members.
Next, I want to refer to portions of section 49.8 of the act:
49.8 (1) At its first meeting following a general election, the caucus of every party that has a recognized membership of 12 or more persons in the House of Commons shall conduct a separate vote among the caucus members in respect of each of the following questions:
(a) whether sections 49.2 and 49.3 are to apply in respect of the caucus:
....
(3) The vote of each caucus member, in each vote, is to be recorded.
(4) The provisions referred to in each of paragraphs (l)(a) to (d) apply only if a majority of all caucus members vote in favour of their applicability.
...
(6) The outcome of each vote is binding on the caucus until the next dissolution of Parliament.
These provisions were added to the law in 2015 after the Reform Act, 2014 was enacted, a private member's bill sponsored and championed by the hon. member for Wellington—Halton Hills. It was a bill that was supported by several members of the Liberal caucus who today sit in the House, including the right honourable member for Papineau.
It was reported by the Canadian Press on November 5, 2015, that the Liberal caucus failed to conduct the votes required by section 49.8 of the act. Also at the time, the Ottawa Citizen reported that, “rather than vote yes or no to each of the four provisions, Liberal MPs voted during their first caucus meeting on Thursday to send the issue to the party’s biannual convention in Winnipeg next year.”
As for the vote specifically applying to section 49.2 of the act, the intergovernmental affairs minister, who was then the government House leader, was quoted at the time as saying, “Do you want a discussion in a caucus now of 184 people to reflect on what may be personal, sensitive, family matters? That is something that we weren’t prepared to decide or vote on now.” He went on to say, “I don’t know if in all circumstances it would be appropriate or even desirable…to have a caucus seized of all kinds of this personal and complicated information.”
With all due respect to the member, who is a veteran of this place, that is not what Parliament has, by the act of Parliament, ordered to happen in each parliamentary caucus after each general election. Deferring the mandatory votes to a party convention is also not an available option. Needing to bring party machinery into line is perhaps an argument to vote no to the proposals, but it is not a legitimate reason to avoid voting, which is, to say, to break the law.
After I had finished my prepared notes for this morning, I came across a Toronto Star article from this morning in which the member for Scarborough—Guildwood is quoted in reflecting on those votes that did not happen. The article says, “ Asked if there had been a recorded vote, [the member for Scarborough—Guildwood] shook his head. 'Nothing like that ever happens in caucus, it's very straightforward, it's consensus. Nobody ever really opposed it.'”
That is from yesterday's Toronto Star in an article by Tonda MacCharles. Again, it is further confirmation from a sitting member of the Liberal caucus that those four votes did not happen as required by law.
Further, the hon. member for Wellington—Halton Hills has written to the current Minister of Justice and Attorney General seeking clarity on whether or not the law was applied in that case. He has publicly stated that a letter would be forthcoming, clarifying one way or the other. Again, the House should be seized with the fact that the letter is expected and should have matters of substance in it to the matter at hand.
Going forward to the questions at hand, because of the events this week, these issues have rushed to the foreground and to the matters before the House. Tonda MacCharles of the Toronto Star wrote that, “Who decides who's in and who's out of Liberal caucus? Is it the prime minister? Is it caucus? You can be forgiven for not knowing.”
The article later reminds us that the Prime Minister “suggested it would be his call, telling reporters he was 'reflecting' on their future”, referring both to the member for Vancouver Granville and Markham—Stouffville.
As my colleague, the hon. member for Wellington—Halton Hills, has pointed out, the authority to expel a member of the Liberal caucus is questionable, because the Prime Minister and his leadership team deprived Liberal MPs of being able to exercise their rights at their first caucus meeting following the 2015 election. It is because of that that I believe the hon. member for Whitby has had her own rights disregarded. Her departure from caucus occurred without the safeguards and due process for backbenchers that the Reform Act contemplated. That is why I am raising this question of privilege today, and I believe that it meets the requirements for timeliness. Indeed, this is the first occasion where a consequence of the failure to vote in 2015 has come to a head.
As for the matter of honouring the statute law, I recognize that Speakers in the past have generally declined to intervene on questions of law. However, this is no regular question of law. The collective privileges of the House of Commons include the right to regulate its internal affairs, which is sometimes also known as the privilege of exclusive cognizance.
House of Commons Procedure and Practice, Third Edition, Bosc and Gagnon, observes on page 122 that:
The right to regulate its own internal affairs does not mean that the House is above the law. However, where the application of statute law relates to a proceeding in Parliament or a matter covered by privilege, it is the House itself which decides how the law is to apply and the House's decision cannot be reviewed in the courts.
Reference has been made to this in paragraph 34 of the Supreme Court of Canada's decision in Canada (House of Commons) v. Vaid, which interested members can search out if they are so curious, and I know many members would be curious.
At page 183 of Parliamentary Privilege in Canada, second edition, it states:
The privilege of control over its own affairs and the proceedings is one of the most significant attributes of an independent legislative institution.
The right to regulate its own internal affairs and procedures free from interference includes:
...
4. The right to administer that part of the statute law relating to its internal procedure without interference from the courts.
I would also like to refer the chair to page 102 of Erskine May, 23rd Edition, which states:
Both Houses retain the right to be the sole judge of the lawfulness of their own proceedings, and to settle or depart from their own codes of procedure. This is equally the case where the House in question is dealing with a matter which is finally decided by its sole authority, such as an order or resolution, or whether (like a bill) it is a joint concern of both Houses. The principle holds good even where the procedure of a House or the rights of its Members or officers who take part in its proceedings depends on statute.
Statutory requirements may previously have been adjudicated as matters of privilege in our House in the past. For example, on April 19, 1993, on page 18,105 of the Debates, the Chair held that the failure to produce a document required to be laid upon the table under the terms of the Customs Tariff constituted a prima facie case of privilege. Mr. Speaker Fraser, at the time, said the following:
As the hon. member succinctly stated when this very issue was raised in February 1992: “Subsection 59.5 of the Customs Tariff is a statutory provision and statutes of the highest form of command that can be given by this House. In my view the disregard of that legislative command, even if unintentional, is an affront to the authority and dignity of Parliament as a whole and of this House in particular.
It is an opinion that I share and that I expect to prevail in this Chamber. The statutory laws which have been agreed to by members of this House do serve a purpose and are meant to be respected.
...
The requirements contained in our rules and statutory laws have been agreed upon by this House and constitute an agreement which I think all of us realize must be respected.
More recently, statutory provisions in the Canada Elections Act concerning the right of members to sit and vote were held by the Speaker's immediate predecessor to be matters for the House of Commons to adjudicate. These rulings can be found at pages 18,550 of the Debates for June 18, 2013, and page 9,183 of the Debates for November 4, 2014.
The importance of this House adjudicating requirements of section 49.8 of the Parliament of Canada Act are underscored by section 49.7, a provision which lawyers would refer to as a privative clause because it ousts the jurisdiction of the courts to conduct judicial review.
If you, Mr. Speaker, decline to exercise jurisdiction to entertain breaches of the statute here, then members of caucuses, like the Liberal caucus who flagrantly ignore the law, have no protection and no recourse when their rights are trampled. Because of the lack of judicial recourse, general restraint on Speakers interpreting the law and the House's privilege to manage internal affairs, I respectfully submit that the way forward, indeed the only way forward, is to allow the House to deal with this matter.
Accordingly, I urge you to find a prima facie case of privilege. I would, therefore, be prepared to move a motion to refer the matter to the procedure and House affairs committee so as to allow it to investigate this specific instance and to consider the best way forward to allow for the enforcement of the requirement to conduct votes under section 49.8 of the Parliament of Canada Act.
