Madam Speaker, I appreciate the opportunity to add some sanity to a motion that seems to have been put together very poorly today.
The motion before the House suggests that a special committee of the House be appointed to study proposals for restricting the royal power of prorogation. I oppose this motion for many reasons, the first of which is the fact that there is a committee of the House that has already been studying this issue for some months. I chair that committee.
The study is well under way. The committee has heard some 16 witnesses. There have been hundreds of thousands of words of testimony. There have been 10 meetings. I will at some point quote some of the learned scholars who appeared to help us look into the study on prorogation.
I will even compliment the opposition members of that committee and my colleagues on this side for the hard work they have done. At times it has been boring and at other times it has been very exciting. I will speak in a minute about the lecture Professor Russell gave committee members and the chair on how we should listen and learn. I had not been in a lecture hall for a while.
I am going to start by talking about the member for Wascana who moved the motion this morning. I believe he said, “With respect to the study that is under way in the procedure committee, it is unfortunately a rather invisible process. That is not a criticism of that committee”.
I would point out that I have fairly broad shoulders and I am able to take those types of insults, although I do not need to. If the member for Wascana had simply spoken to his whip, deputy whip or deputy House leader, people whom I think he probably meets on a daily basis, although by the way the motion was written and the clown show that went on, perhaps not, he would have been told that this work is already being done. I am not saying the work is complete. The study is ongoing. There has been some hard work, very good witnesses and great questions from all members, including those I have already mentioned.
I am not certain what the point of the motion is. I guess one is that this would create a special committee now chaired by a Liberal member. Somebody needs an extra paycheque over there, I suppose. That may be the answer for this. Other than that, I do not get it because the work is being done.
I will compliment the member for Hamilton Centre, who represents his party on the committee. He has done an excellent job of asking some of the tough questions of some of the scholars who appeared. Do the member for Hamilton Centre and I agree on everything? Absolutely not. As a matter of fact, we have great conversations about the philosophical differences between our two parties. However, as the chair, I try to be as collegial as I can be. I certainly try to give everybody all the time possible at every meeting to discuss these issues. I do my best.
What did the member for Hamilton Centre say this morning? I will paraphrase him, which I am sure he will not mind, but if he does, I will hear about it at the next meeting. He said, “When this was brought to my attention yesterday I was bemused. I understand prorogation is a hot issue with the Liberals and it is with us too”, speaking on behalf of his party, “but this motion calls for a special committee. We already have a committee that has been holding meetings for months. I would like to know why this motion is even in front of us since it does not seem to make an awful lot of sense to me”.
I will explain that the last sentence by the member for Hamilton Centre is one on which we can agree. It does not make a lot of sense to me either.
Some of my colleagues, such as the member for Regina—Lumsden—Lake Centre, have spoken on this issue already today. He is a great member of the committee. He brings great levity to it but also asks very good questions of all of the witnesses, including most of the scholars and some of the citizens.
He said, “Yet, what do we have here? We have an opposition day motion that basically says that the Liberals do not care about the work we have done for the last two and a half to three months”.
The previous speaker from that party talked about shutting things down and shutting out what people have said. Well, I am sorry but this motion does exactly the same thing. This motion talks about shutting down the hard work of a committee and saying “Thanks for your work, but we do not care about it”. I cannot believe that one party in this House expects that is appropriate with respect to the hard work of a committee including members from all parties.
I will carry on. The member for Notre-Dame-de-Grâce—Lachine also serves on the committee. She has become a special friend on the committee. She has worked very hard on the committee. However, today she said, “Our motion is not outdated. Our motion goes beyond the scope of what the procedure and House affairs committee is dealing with. In fact the study that is being conducted as we speak at that committee is a motion that I brought to that committee, and I know very well what is happening”.
If she knows that, then she knows the nature of our committee. She knows the nature of the chair. She certainly knows the nature of the other members on that committee. She knows that there has been no time when a request from a member has not been honoured. She knows there has been no time when a request from any member of any party about a witness coming forward has not been honoured. Whether it is the terms of reference of the committee study, changing them or moving them in other directions, it has been honoured each and every time it has been asked.
As often as not, we will ask the members what they think and should we go a certain way. We work in a very collegial way. I know I sometimes sound large and gruff, but as a chair I tend to have a fairly good time doing it and I have tried to move that committee forward.
Let us talk about the work the committee has done. We have discussed at length the expert witnesses. There have been at least 10 meetings and 16 witnesses. A majority of the witnesses were people suggested by opposition members. We have been extremely hard working as a committee, but in every case we have asked each of the members who we need to see or if we have left anybody out we have not yet seen. We have even mentioned a couple of learned scholars who we would like to see and we have been trying to organize our time so that they can come. Let us talk about some of the ones we have seen.
Our own law clerk, Mr. Walsh was our first witness. He gave us a great set of parameters for the committee to use.
Some of the other witnesses included Thomas Hall, a retired clerk from the House of Commons, who meets with some of his other clerk friends at the local Tim Hortons and other coffee shops to discuss procedure and House affairs. He came to our committee to give us his views on prorogation.
Professor Mendes, constitutional and international law, University of Ottawa appeared.
Professor Peter Russell from Toronto appeared. I talked about Peter Russell before, and I would like to say what a great professor Peter Russell was even at the committee. He shared with us his thoughts on this issue. He lectured us and certainly set us straight on two or three issues. I think we all went home that day with a new admiration for a professor of political science.
Professor Benoît Pelletier, University of Ottawa appeared. I have some notes here from him and I will share them later in my speech.
Professor Ned Franks, professor of political studies from Queens University appeared.
Again learned scholars appeared at many committees around this House, not just ours.
Christopher White appeared. What a great story he was. He alone had set up a Facebook group about prorogation during the time of prorogation. We thought that was admirable. I think an opposition party member suggested that he come and speak to us. He shared with us his thoughts and views.
One of the thoughts and views he shared with us is that it was not the same sitting at the committee. He said it was not like watching question period where members are attacking and yelling at each other. He said it was amazing to see members collegially working together towards a common end, and working together as a committee.
I took that with great pride as the chair. I took it as a huge compliment, and so did the other members.
Professor Weinstock, professor of philosophy from the University of Montreal appeared. Professor Weinstock had written a letter about prorogation during the time of prorogation, and had many scholars sign it. We asked him to come forward and talk to us about that.
Professor Eric Adams, faculty of law, University of Alberta appeared.
Professor Nelson Wiseman, department of political science, University of Toronto appeared.
Professor Hugo Cyr, public law and political science and law, University of Quebec in Montreal appeared.
Brian Topp, a former NDP national campaign director, came and spoke too because we thought he had some views he could share with us, and he did. Donald Sproule, an ex-Nortel employee, spoke to us about what we needed to know from his group. Professor Andrew Heard from the Department of Political Science at Simon Fraser University, Professor Monahan from York University and just this last week Professor Bradley Miller, a constitutional law expert from the University of Western Ontario in London, part of my riding, spoke to us.
We have learned a lot. Are we done? No. Have we written our report? No. However, apparently we want to be thrown out with the trash. That is not what I want to see happen. This motion would do that.
Enough about the committee and where it has been. With the time I have left, I will share some of the other reasons why the motion to change prorogation is not correct.
The motion begins from the false premise that there has been some misuse of the prorogation power that needs fixing. I have shared somewhat in my speech already some expert opinions on the use of “gotcha” solutions to constitutional issues. Many of the learned professors told us to watch that we did not use “gotcha” solutions to some of these constitutional issues. We have been careful to watch for that.
The other reason, which is the one I wish to discuss in my remarks today, is the motion seeks to use this false premise to undermine the long-standing constitutional principles and conventions that form the basis of our parliamentary system of government.
Some speakers before me talked about what has happened in previous Parliaments, going back to the 1500s and 1600s. We have studied them all and from time to time it was not as exciting as one would think. We pushed through it because we needed to understand how our system worked.
To put this discussion in context, we need to go back to the first principles, and I ask members to bear with me here because it might get a bit boring, but I hope to come back to some excitement before I finish.
Under our Constitution, there is a separation of powers between the executive, the legislative and the judicial branches of government. Section 9 of the Constitution Act, 1867 affirms that the executive authority is vested in the Queen. Section 17 establishes that the legislative branch, the Parliament of Canada, is comprised of the Queen, the Senate and the House of Commons. The judicial branch is comprised of the courts.
While it might be trite to state this fundamental tenet of our constitutional democracy in the context of today's debate, it serves as a useful reminder to members that under the separation of powers, some functions are vested exclusively in the executive authority and in which the House of Commons is one component of the legislative branch simply plays no part.
As the Supreme Court of Canada stated in the 1997 Judges Reference, “The separation of powers requires, at the very least, that some functions must be exclusively reserved to particular bodies”.
The prerogative to prorogue Parliament is exclusively vested in the Crown. The authorities are unequivocal on this point.
In the 23rd edition of Erskine May on page 274 it states:
The prorogation of Parliament is a prerogative act of the Crown. Just as Parliament can commence its deliberations only at the time appointed by the Queen so it cannot continue them any longer than she pleases. But each House exercises its right to adjourn itself independently of the Crown and of the other House.
In the third edition of An Introduction to the Procedure of the House of Commons, it is observed, at page 103 that:
It is the ancient right of the Crown to call both Houses of Parliament together when it needs their assistance and to put a temporary period to their labours when it pleases. [...] This joint action of ending the old and providing for the new session is the "prorogation" of Parliament.
In Canada the royal prerogatives to summon, prorogue and dissolve Parliament were given to the Governor General to exercise in the Letters Patent of 1947. Under article VI of the Letters Patent, the sovereign authorized the Governor General “to exercise all powers lawfully belonging to Us in respect of summoning, proroguing or dissolving the Parliament of Canada”.
Consistent with our constitutional conventions, the prerogative is exercised on the advice of the prime minister alone.
As O'Brien and Bosc simply state at page 382:
Prorogation of a Parliament, a prerogative act of the Crown taken on the advice of the Prime Minister, results in the termination of the session.
Consistent with our democratic values, the government must hold the confidence of the House and ultimately must answer to the people for its use of those prerogative powers. However, the House itself does not and cannot exercise the royal prerogative. The House can adjourn its proceedings at its discretion, but it cannot prorogue or dissolve Parliament. That is within the discretion of the Crown alone.
Another important feature of our system is that certain matters relating to our Constitution are entrenched and cannot be changed but through special amending procedures. Many of our constitutional scholars who have visited our committee so far suggest that the only way to change the prorogation prerogative of the Crown would be through constitutional changes. It is a tough thing to get to but that is the only way to change it.
One such matter is changes to the office of the Queen or the Governor General. Under section 41 of the Constitution Act, 1982, any such changes must be effected by a royal proclamation having unanimous approval of the House of Commons, the Senate and every provincial legislative assembly.
The procedure and House affairs committee as I have stated is already doing a comprehensive study on prorogation and we have heard from many experts on the topic. Many of these experts are of the view that the changes to limit the royal prerogative on prorogation would affect the office of the Governor General in such a way as to require a unanimous constitutional amendment.
What is more, Professor Benoît Pelletier, a constitutional expert at the University of Ottawa, concluded that prorogation in itself was a constitutional power intertwined with the separation of powers. He stated:
In my opinion, prorogation can be seen as a component of the separation of powers in government. The separation of powers is obviously a pillar of the Canadian state, and there is every reason to believe that the Supreme Court of Canada would recognize that even the principle of the separation of powers is based on the Constitution. In other words, the separation of powers enjoys tacit constitutional protection, and because the power to prorogue is a critical component of the separation of powers, it, too, enjoys that same constitutional protection....I have concluded that the prorogation power is tied to the separation of powers, because it provides for these checks and balances between the legislative branch and the executive branch. It contributes to those checks and balances. Therefore, I do not see how the prorogation power could be dissociated from the very principle of the separation of powers.
It was about that dry at committee but we chose to study it and we chose to look at it.
These checks and balances are at the heart of the principle of the separation of powers and what makes the Westminster parliamentary system function. While it is often more art than science, it has served us well thus far in our country's history.
I stated at the outset in my remarks that I oppose the supply day motion and the debate under way today. At the very least, it would be duplicative of the work already nearing completion by the procedure and House affairs committee and the hard work that it has done. At the very worst, it was start us down the path of undermining the long-standing and basic tenets of our parliamentary system and of constitutional government.
Prorogation, as I have stated, is at the core of the separation of powers. It provides the Crown with a mechanism for responding to changing circumstances, such as the serious global economic crisis of last year. It allows for a new session of Parliament to be launched with the new priorities of the government set out in a throne speech, presented to parliamentarians and to the people of Canada.
It provides the House with an opportunity to respond to the government's recalibrated legislative and policy program through votes of confidence on important matters, such as the recent budget bill here in the House.
In my opinion, this motion goes too far. I would encourage all hon. members and all hard-working committee members in the House to please join me in opposing this motion.
