I call this meeting to order.
Good morning, everyone. Welcome to meeting number 17 of the House of Commons Standing on Procedure and House Affairs.
I'd like to start the meeting by providing you with some information following the motion that was adopted in the House on Wednesday, September 23, 2020. The committee is now sitting in hybrid format, meaning that members can participate either in person or by video conference. Witnesses must appear by video conference only.
All members, regardless of their method of participation, will be counted for the purposes of quorum. The committee's power to sit is, however, limited by the priority use of House resources, which is determined by the whips. All questions must be decided by a recorded vote, unless the committee disposes of them with unanimous consent or on division. Finally, the committee may deliberate in camera, provided it takes into account the potential risks to confidentiality inherent to such deliberations with remote participants. Today's proceeding will be made available via the House of Commons website. I will remind you that the webcast will always show the person speaking rather than the entirety of the committee.
To ensure an orderly meeting, I'd like to outline a few rules to follow. For those participating virtually, members and witnesses may speak in the official language of their choice. Interpretation services are available for this meeting. You have the choice, at the bottom of your screen, of the floor in English or French. Before speaking, click on the microphone icon to activate your own mike. When you are done speaking, please put your mike on mute to minimize any interference. All comments by members and witnesses should be addressed through the chair.
Should members need to request the floor outside their designated time for questions, they should activate their mike and state that they have a point of order. If a member wishes to intervene on a point of order that has been raised by another member, they should use the “raise hand” function. This will signal to the chair your interest to speak and create a speakers list. In order to do so, you should click on the “participants” icon at the bottom of your screen. When the list pops up, you will see next to your name that you can click “raise hand”.
When speaking, please speak slowly and clearly. Unless there are exceptional circumstances, the use of headsets with a boom mike is mandatory for everyone participating remotely. Should any technical challenges arise, please advise the chair. Please note that there may be the need to suspend for a few minutes to ensure that all participants can participate fully.
For those participating in person, proceed as you usually would when the whole committee is meeting in person in the committee room. Should you wish to get my attention, signal me with a hand gesture, or at an appropriate time call out my name. Should you wish to raise a point of order, wait for an appropriate time and indicate to me clearly that you wish to raise a point of order. With regard to the speaking list, the committee clerk and I will do our best to keep a consolidated order of speaking for all members, whether they are participating virtually or physically in person.
That being said, I'd like to welcome Dr. David Williams to our committee.
Thank you, Dr. Williams, for allowing us some time out of what we know is an extremely, extremely busy schedule and very challenging time for all of us, federally and provincially. You have been doing some fantastic work as the the chief medical officer of health for the Ministry of Health in Ontario.
Dr. Williams, you have five minutes for your opening remarks, which will be followed by a few rounds of questions by the members.
Thank you for inviting me today to present. I thought I'd start off by just giving you a sense of where we are in Ontario at this time. Since we've been at this now since January 2020, it's day 320 since we had the first case reported in Canada. We have now had a total of 134,783 cases of COVID-19 reported.
Over the spring and into the summer we flattened the curve down to a very low fewer than 100 cases a day, even lower than that, and then they started rising again in September, much as in other provinces, and more recently as in some territories.
Today, on December 10, for example, the numbers keep changing and we have a record high of 1,983 new cases of COVID-19 reported in a single day. Our testing volumes remain high. Today again we did just over 62,000 tests for the day. We continue to be averaging between mid-55,000 and 58,000 tests a day at this time, and we're adding more testing with more rapid access testing components in there. We're also doing some of those, in the 3,000 to 4,000 range, and we're going to be adding more in the near future.
Most of our cases tend to be concentrated in our so-called hot zones in the areas of Toronto, York and Peel, which make up 60% of our cases. They are spread out throughout the health units in the province of Ontario, which I will talk about in a moment.
Long-term care and overall mortality continue to increase. As we see our cases, we have a lag of three weeks and then we start to see hospitalizations and start to see deaths rising. We continue to note that. Now we're thinking we could exceed 25 deaths a day. While this is lower than in the first wave, it is nevertheless an ongoing concern and most unfortunate.
The reproduction effect, or the “RE”, that we talk about, is fluctuating just around 1. We're hoping to get that down below 1, to see it start diminishing again to see if we can come down off the peak of the second wave. We're sort of on a high plateau in a precarious state waiting to see if we're going to go back up or come down again.
Our ICU capacity and our hospital capacity continue to be challenged. We have over 200 beds now occupied in intensive care with COVID patients out of our approximately 1,700 to 1,800 beds. The challenge there of course is that, unlike in the first wave, during which we had stopped all elective surgery, we have all our hospitals up and functioning full tilt. That means these beds are pushing in with other cases, including those with elective surgery who are in there for a day or two post-op and are requiring the beds. That is putting stress on our system, a lot of which is at over 90% occupancy. We remain in this precarious position, to which there are a number of aspects.
In order to deal with this in the uniqueness of Ontario—and it probably affects the elections process—we, unlike other provinces, have 34 autonomous municipally incorporated public health units in Ontario. They range in size, with Toronto being the biggest at about 3.4 million, down to small ones of about 38,000 in the north. They cover all the geography in Ontario, including places where there are first nations communities. Each of the medical officers there, 34 of them and their staff, have the authority under boards of health to be responsible for the public health in their respective jurisdictions.
In order to assist with the overall impact of COVID, we moved, after our initial phase of closing and opening up, to putting in Ontario's “COVID-19 response framework: keeping Ontario safe and open”, which we initiated in September-October. It has indicators for each of the levels, with colour zones and names for them.
Green, the lowest, is in prevent mode and most of the things are on an ongoing prevention basis. Those remain low numbers, usually at less than 1%. Yellow is the protect level and has its own percentage parameters and cases per 100,000. Orange is the restrict level. Then we have red, the control level, which is anything above 40 per 100,000 or above 2.5% positivity in the lab tests coming in. This means we have 34 different areas in different colour zones, and they can move. We review the data weekly and then recommend if health units in those areas are moving up to these new zones or moving down. We also have grey, or lockdown, zones. Those are in effect at the moment in Toronto and in Peel.
That is when there are a number of metrics met that indicate that we have to put them into a lockdown mode, knowing that, unlike our first wave, they're not totally the same. Our long-term care is still allowing essential visitors. Our schools are still open, even at this date, up until Christmas. We have a large student body with 2.5 million students and most of our 1,400 schools are open. At the moment, we only have 10 closures in the province. Some of those are not due to outbreaks, but due to administrative reasons where, with staffing situations, they have had to close. There are child care centres as well.
Another difference from wave one is that we haven't stopped elective surgery. We are trying to catch up on that to make sure people are not having increased morbidity or mortality due to the delay in essential investigative and operative procedures. That's how we're structured and that's how we're dealing with it right now.
Also, we're doing some modelling and projecting to see how we will fare as we go through. Then, of course—as you've heard in the news—we are starting into the early stages of vaccination and that process is carrying forward. We're hoping to keep ramping that up into the new year.
In terms of the opportunities or issues related to conducting elections in Ontario, my office has been involved with the discussions with Elections Ontario. We are advising. There's an opportunity to learn from experience. It will be important to document and share these at the federal, provincial and territorial levels.
Ontario supports the committee's acknowledgement that the administration of an election should be executed without creating further barriers to voting, especially in consideration of providing every individual who is legally able to vote with the opportunity to vote, regardless of accessibility needs. That means using assistive voting technology and other types of assistance at the voting location—depending on zones within Ontario and COVID-19 status—and place of residence, such as correctional facilities, long-term care, group homes and other congregate settings.
There is a need to ensure that the election administration plans include contingencies and can be readily adapted to be sufficiently nimble in processes to respond to the changing situation in each jurisdiction. Because this is an ongoing COVID outbreak, it is changing by the day and week. With vaccinations coming in, we'll have further impacts that we're going to have to take into consideration as we continue on this journey. We have to be nimble and deal with the issues as they arise and be responsive.
Some of the overarching challenges include harnessing up front the opportunities for minimizing travel and gatherings, especially in consideration of using mail-in or virtual voting, actual day of voting on weekends or work weeks, and variations in public health measures that are in place in our communities, such as access to large community centres. Settings in lockdown are limited, so how might we have to modify those to allow people to come into buildings at certain times and allow proper space in the lines as well as proper precautions in each of the locations for the administration staff, volunteers, scrutineers and candidates? We need to establish linkages with regional local authorities to support the election process, such as linking in with our health and education sectors primarily.
We want to establish consistent and tailored processes for voting locations. Are they in schools? Remember that our schools are in a certain status situation. We don't allow people into the schools at the moment because of our policies and directions there. The community centres are mostly closed. They could be open, but they have to be established in that line. Also, there are specific processes for long-term care and other types of congregate facilities.
Other considerations might be the processes in place to screen those who are entering a polling station and separating electors who are unmasked or screened positive. How do we do that? If someone is positive and they're in their quarantine period, can they vote or not vote? How would we handle that type of process? Capacity limits and traffic flow need to be established. Of course, there's the ongoing cleaning and disinfecting protocols for all surfaces and equipment.
We would also like to recommend that a comprehensive training program include dry runs through the various scenarios and establishing worker screening processes that take into account the locations of their work the day of the elections, including any movement between locations and mobile voting processes. We don't want people moving from our high lockdown zones into red zones or others. We'd like them to be in that type of setting and to stay in those locations. They're planning ahead where their movements might be and minimizing them, so if there were outbreaks, they would not be attributed to the workers.
That would ensure consistent worker protection across all the voting locations, whether in the different settings we've talked about already, or our varying levels of interactions of electors. Overall these are the general parameters. As I've noted, Ontario is a big province. We have many remote first nations communities and challenges with accessing them. We have a large geography as well as the largest population to work through. We have to work that into our various settings and locations. We hope we can assist and work, if and when that is necessary, in response to the changing COVID situation we continue to experience.
Thank you, Madam Chair.
Welcome back. We're going to get started.
I want to remind everyone to ensure they are in gallery view, so everyone can be seen. To do so, you can click on “view” in the right-hand top corner.
I'd like to make a few comments for the benefit of the new witnesses.
Before speaking, please wait until I recognize you by name. When you are ready to speak, you can click on the microphone icon to activate your mike. I remind you that all comments should be addressed through the chair. I also want to remind you that mikes are not going to be controlled automatically, so please put yourself on mute after speaking.
Interpretation in the video conference will work very much like it does in a regular committee meeting. You have the choice at the bottom of your screen of floor, English or French. “Floor” is for those who are fluent in English and French.
When speaking, please speak slowly and clearly. When you are not speaking, your mike should be on mute.
The use of headsets is strongly encouraged. I'm hopeful you received the authorized headset from the clerk. I see all of you with one. That's great. Thank you for that.
Now I'd like to formally welcome all of our witnesses to today's committee meeting, the first on the prorogation study.
I welcome Professor Daniel Turp, from the Université de Montréal; Professor Philippe Lagassé, from Carleton University; Kathy Brock, professor of policy studies at Queen's University; and Barbara Messamore, professor in the history department at the University of the Fraser Valley.
At the outset, I'd like to apologize, because I know that at least one of the witnesses was sent communications that were only in English. That was definitely an error on our part by our team, and I apologize for that. We will try to do our best to make sure that does not happen again. As I mentioned before, interpretation services are available throughout this meeting, so there should be no problems in the meeting today.
Each of the witnesses will get a five-minute opening statement, and we'll start with Mr. Turp.
Good afternoon, Madam Chair, ladies and gentlemen of the committee.
I'm here with you actually on International Human Rights Day. I'm not sure whether your Parliament will mark this event, but 72 years ago, the United Nations General Assembly adopted the Universal Declaration of Human Rights, which addresses the political rights of democratic societies. So I wanted to point it out.
Thank you for the opportunity to participate in your study. I have read the report entitled “August 2020 Prorogation—COVID-19 Pandemic,” in which the government sets out the reasons for deciding to prorogue Parliament on August 18 and to set the start of the 2nd session of the 43rd Parliament for September 23, 2020.
As a contribution to this debate, I propose to comment on the decision to prorogue by talking about prerogatives, hypocrisy and democracy.
Let's talk about prerogatives first. The prorogation of the 43rd Parliament was decided by the Governor General of Canada on the advice of Prime Minister Justin Trudeau in exercising a prerogative power. This may be the first time the members of the committee hear of this, but the source of this prerogative seems to be in a memorandum outlining some prime-ministerial duties, and adopted on October 25, 1935. I have actually appended to my opening remarks the official version of that memorandum in the English language, available only in the English language, and I therefore hope that my opening statement will be translated.
The interesting part about this declaration, the memorandum, is that it refers to matters that fall within the special prerogative of the prime minister, including the dissolution and convocation of Parliament. Prorogation is not mentioned in the memorandum. So I wanted to bring that to the attention of the committee and invite you to consider whether it really is a prime minister's special prerogative or whether the prerogative exists only for the dissolution and convocation of Parliament. Does the Prime Minister really have the power to recommend the prorogation of Parliament as Prime Minister Trudeau did before him, but as Prime Minister Harper and other prime ministers in Canada's constitutional history also have done?
Let me talk about hypocrisy. I regret that I have to use that word because it is a harsh one. However, in the report before you, which explains the reasons for the recent prorogation, the reasons cited are clearly difficult to identify at first. I personally had great difficulty in identifying them when I read the report. My understanding is that they are revealed in the conclusion, which states the following:
In considering the challenges immediately before us, the experience from the first wave behind us, and the hard work still ahead, it was very clear in August that we needed to reset the agenda and obtain the confidence of the House, in order to move forward.
So there are two reasons, two obligations that the government seems to be imposing on itself: to reset its agenda and to obtain the confidence of the House. In my statement, I confess my hesitation about prorogation being needed to reset the agenda. The government is constantly resetting its agenda and can reset it, of course, in a subsequent Speech from the Throne without having to prorogue Parliament. It can follow the normal parliamentary calendar, the one it has used and shared with other members of the House.
As for the confidence of the House, on August 18, 2020, the government did have the confidence of the House. It did have the confidence of the House, so this is not a reason; it is not a valid reason. We know the real reasons. Some people will have difficulty admitting that the real reason was to shut down the committees and make them lose their mandate to study the WE Charity matter. This is the case for four of your House of Commons committees: the Standing Committee on Finance, the Standing Committee on Government Operations and Estimates, the Standing Committee on Access to Information, Privacy and Ethics, and the Standing Committee on Official Languages. Those reasons are not mentioned in the report. This report is therefore no demonstration of transparency, but a sad example of hypocrisy.
My last point is about democracy. Let me bring to the committee's attention the important ruling of the U.K. Supreme Court, handed down on September 24, 2019, about the right to exercise the power of prorogation.
In a case about Brexit, the U.K. Supreme Court stated that the power of prorogation cannot be exercised without respect for Parliament's ability to exercise its constitutional functions as a legislature. This decision should influence the course of events in Canada. In the future, prorogation should not be exercised as it has been and should not prevent Parliament from continuing the serious consideration of a matter such as the WE Charity.
Madam Chair, members of the committee, thank you for your attention.
Thank you to the members of the committee and the clerk for inviting me to appear before you today.
We have been asked to address the government prorogation this past fall.
To do so, I will first explain what purposes prorogation serves. I will then note how prorogation can be abused, before outlining criteria that I believe are useful for judging the acceptability of particular prorogations. Thirdly, I will apply these criteria to the fall 2020 prorogation.
Lastly, I will conclude with thoughts about how we hold governments to account for improper prorogations. I will ask whether we should encourage Canadian courts to limit the scope of the prorogation power, as they did in the United Kingdom.
Why do we have prorogation? Why is it necessary to end a parliamentary session and begin a new one?
A prorogation may be wise or necessary to serve the following purposes: there may be a change of a ministry within a parliament, requiring a new government to lay out its agenda and clear the slate of legislation, so that it can enact its own bills; Parliament may have been in one session for an extended period of time and the government wishes to start afresh; a significant event leads the government to want to pursue a new slate of legislative measures; or, a government wishes to put forth a new parliamentary agenda in anticipation of a general election.
Of course, given the effects that prorogation has, notably terminating government bills, clearing the order paper, resetting committees, and often erasing sitting days, this power can and has been used as a hardball tactic, one that allows the executive to stifle the opposition's ability to hold it to account.
For example, tactical and/or hardball prorogations can be used to: avoid or delay a vote of no-confidence; reset committees that are mounting an inquiry that is politically harmful to the government; and avoid or delay parliamentary proceedings employed to hold government to account.
We can talk about it in more detail.
When prorogation is used that way, it damages our constitutional norms and democracy. How, then, do we distinguish between acceptable, purposeful prorogations and damaging, tactical ones?
Length is one distinguishing factor. Prorogations should be as short as possible. Although Canadian practice has been to have relatively long prorogations, we should be aiming to shorten them, particularly given the increasing questions that surround this power.
Next is the political environment. Are committees holding inquiries that are embarrassing to the government? Is there a vote of no confidence looming? If the answer is yes to these questions, we can be forgiven for assuming that the prorogation is tactical.
A third factor is the parliamentary setting. Has Parliament been sitting often or sparingly? Has the government been subjected to consistent parliamentary scrutiny or has it been avoiding it? The less active a parliament has been prior to a prorogation, the more suspect the decision to prorogue is.
Based on these criteria, how can we evaluate the fall 2020 prorogation?
Clearly, the pandemic represents a significant event that led the government to want to reset its legislative agenda, budgetary posture, and policy priorities. This suggests that the prorogation had a legitimate purpose.
However, the prorogation was unnecessarily long, it reset committees looking into an issue that was embarrassing to the government, and most importantly, from my perspective, it paused and restarted a Parliament that had already sat for far too little time and that was already poorly placed to hold the government to account since the pandemic began in earnest. These factors weigh in favour of a tactical prorogation.
To conclude, then, how do we hold governments to account for tactical prorogations?
Though it may be an unsatisfactory answer, the reality is that we rely on politics to hold governments accountable here. It is up to the opposition to criticize the tactical nature of a prorogation, for the government to explain why it believes it was purposeful, and ultimately for Canadian voters to decide who they side with.
That said, the United Kingdom provides us with another possibility—that is, asking courts to invalidate prorogations that prevent Parliament from fulfilling its constitutional functions without proper justification. I would strongly caution against Canadian courts following this precedent. The line between a purposeful and tactical prorogation is rarely clear. In some cases, the government will engage in a tactical prorogation in response to equally questionable behaviour on the part of the opposition. The acceptability of a prorogation should, in my view, be viewed as a non-justiciable political question that can only be answered in the political arena.
Thank you, Madam Chair.
Hello, everyone. Thank you very much for the invitation to appear.
I am sorry, but I have to express myself in English only, because I don't master French very well and I speak it too slowly.
I've been asked to speak about the government's constitutional legal powers in the context of our governing system. I will talk about the foundations and then the legal basis and the constitutional basis, as well as the conventional basis—constitutional—for prorogation and then a little about some parallels with what has actually just transpired this year. Then I'll conclude with some remedies. You have my notes. I will be summarizing them fairly quickly.
To begin, the heart of democracy in Canada is Parliament. It's fashionable to deride Parliament, to downplay its importance, but Parliament has truly stood the test of time in ensuring transparency of government actions and accountability of the government to the people, and in acting as a voice for Canadians, just as the founders envisioned. While prorogation is often derided as a political tool, closer examination I think situates it as an important aspect of the relationship between the executive and legislative branches of government.
As we know from the Supreme Court, Parliament is sovereign, and the executive and the courts should respect Parliament as the primary institution. A core strength of the Canadian political system is that the executive is strong, it's able to execute its agenda and it can act quickly and decisively.
Now, the support of the House of Commons is important to the executive and to ensuring that its agenda gets through. That is one of the first functions that the House of Commons must do: to support the government. But to ensure the government does not become too powerful, Parliament has a second important duty, and that is to hold the government to account, as you are doing by reviewing this report.
By confronting the government directly, the House of Commons shines a light on instances of questionable or poor judgment and offers alternative views or scenarios so that Canadians can decide whether they'll keep or fire the government in the next election. By performing this duty, the opposition parties, but the House of Commons generally, helps ensure governance is not only undisrupted in Canada, but also that it's transparent good governance during both normal times and crises.
Prorogation embodies these fundamental aspects of the relationship between the executive and Parliament. It's a more refined tool than the blunter one of dissolution, which, as you know, dissolves Parliament and forces an election. Prorogation pauses the work of Parliament rather than halting it, so it keeps government working, and that's important. You've heard that prorogation does have two components. It suspends the work of Parliament by ending its current session and it resets the parliamentary agenda with the start of a new session and throne speech.
In Canada, prorogations have been as short as a few hours, and they can go up to the constitutional limit of one year. The norm is usually 40 days, or the Prime Minister requests an extension. Prorogation is derived from the common law prerogative powers of the Crown under the Westminster model of parliamentary government, but we have a uniquely Canadian twist to them. Section 38 of the Constitution Act, 1867 states:
The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon and call together the House of Commons.
This has been interpreted to include prorogation and dissolution. By virtue of the Letters Patent,1947 the Governor General is authorized and empowered to exercise the powers of the Crown with respect to “summoning, proroguing or dissolving the Parliament of Canada”, and, by convention, the power to advise dissolution and prorogation lies with the Prime Minister.
To go on to the power itself, it's complex and it's controversial, in part owing to the fact that it's largely governed by conventions.
Under the conventions of responsible government, the Governor General acts under the direction and advice of ministers who are members of Parliament and who collectively hold the House of Commons. This ensures that the government is beholden to the legislature at all times. If the advice tendered by cabinet is lawful and constitutional, then the Governor General is obliged to accept and follow it. This ensures that the head of state is ultimately accountable to the citizens through the government and Parliament.
The Prime Minister, as head of government, is responsible for the decisions of the Governor General, and this is important because it keeps the Governor General above the political fray and keeps that office impartial. Things become trickier if the advice is unconstitutional or unlawful or if the government does not hold the confidence of the House.
In these cases, the very first responsibility of the Governor General is to advise and warn the Prime Minister of this possibility, and the first remedy rests with the Prime Minister and government. Matters become murkier if the government presses forward. If the remedy is unavailable and the advice contravenes the Constitution or legislation, then the Governor General can refuse the advice or defer action.
In the second case, whereupon the government is unable to proceed with its agenda in a deadlocked Parliament, then the first and preferable remedy is for the government to accept this responsibility and advise the Governor General on the best way out of the deadlock. In this case, prorogation is a less drastic decision and course forward than are dissolution and an election. A pause in the work of the House may allow passions to subside and a reasoned debate to take place after prorogation.
I can cover the rest of my remarks in the question-and-answer period.
Thank you for the invitation to appear.
I'm a historian with an interest in political and constitutional history, particularly the role of the Canadian Crown. Prorogation and dissolution of Parliament are among the Crown’s prerogative powers.
Prorogations throughout Canada’s history have seldom attracted attention, and the term was not really part of the general vocabulary. To the extent that it was, it was more apt to be understood as a routine procedure to end a parliamentary session.
Similarly, in the U.K., annual prorogations have been the norm, although Prime Minister Boris Johnson’s 2019 request amid the Brexit deadline suddenly brought prorogation into controversy.
In majority governments, controversies over prorogation are rare. I’m currently at work on a book on the 1921 federal election. The advent of the Progressive Party gave rise that year to Canada’s first post-Confederation minority government. That's also a link in the chain of events leading to the famous 1926 King-Byng constitutional controversy over the Governor General’s refusal of advice for dissolution.
The fact that Canada had a long run of majority governments from 1979 to 2004 meant that there were fewer opportunities for prorogations to be used in a way that excited controversy. At times, however, it was arguably a tactic to evade probes of wrongdoing. This has been alleged of the 2003 prorogation as details of the sponsorship scandal emerged, although media or opposition attention at the time was seldom directed at prorogation per se.
A new level of scrutiny followed after December 2008, when prorogation was used to stave off a non-confidence vote in a minority government situation. At the time, I wrote that the Governor General was correct in following the Prime Minister’s advice for prorogation. It seemed apparent that the prorogation was indeed intended to derail the planned NDP-Liberal coalition that sought to govern with Bloc Québécois support.
However, for the Governor General to refuse the advice of the Prime Minister, who had not yet lost a confidence vote, would have been a very serious step, used only in the gravest emergency. The opposition was delayed, but not prevented, from having an opportunity to withdraw confidence from the government. When Parliament resumed in January 2009, it chose not to do so.
At the time of the 2008 prorogation, I wrote about another long-ago controversial prorogation. At the height of the Pacific scandal in 1873, with John A. Macdonald rapidly losing support in the House of Commons, he requested that the Governor General prorogue Parliament. While that ended the investigative committee, it didn't end the controversy. Macdonald resigned when Parliament resumed a few weeks later, with Lord Dufferin then calling Liberal leader Alexander Mackenzie to form a government.
The 2008 controversy over prorogation has made any use of this procedure a matter for greater scrutiny. The use of prorogation in December 2009, which had the effect of suspending a committee investigating treatment of Afghan detainees, attracted particular attention as a result. Standing Order 32(7) would seem to make this scrutiny a permanent condition.
Canada’s 42nd Parliament, we know, consisted of only one session, a rather unusual situation given the four-year life of the Parliament, so no prorogations were sought to end sessions in the usual way. In the past, some full-length Parliaments have had only two sessions, although this was unusual, and some have had as many as seven, but about four sessions was more the norm, meaning prorogations would be a regular occurrence.
The most recent prorogation of the 43rd Parliament in August 2020 had the unfortunate effect of interrupting the committee scrutinizing the WE Charity controversy, something that requires further investigation. That said, there is also a strong case that can be made that the unforeseen eruption of the COVID-19 crisis since the start of the 43rd Parliament provides a rationale for a new session, with a new Speech from the Throne setting out a fresh legislative program. For this reason, I think prorogation was entirely justifiable.
Thank you, Madam Chair.
Thank you to our witnesses today.
On August 18 chose to prorogue Parliament for a term of six weeks. At that time, four parliamentary committees were studying what has been classified as the “WE scandal”. The WE scandal deals with the government awarding an up to $900-million contract to what we all know now, what the public knows, were very close contacts to both the Prime Minister and senior cabinet ministers.
I find very interesting and do appreciate the comments from our witnesses. I think what we saw when we came back was that there was indeed not a reset. We saw that more committees that had tried to study this prorogation continued to be filibustered. This committee was the only one to successfully be able to eventually study this.
I would urge our witnesses today, as we don't know what lies ahead in the future, to be as forthright as possible in their answers. This may be the only time Canadians actually get to hear other perspectives on why this prorogation took place.
Dr. Brock, in an August interview with the Kingston Whig Standard, 's hometown newspaper, you said, “Although you can understand the delay, the continued state of suspension with respect to a budget is troubling. I find the proroguing of Parliament quite troublesome.”
Dr. Brock, we sit almost two years without a budget still. Can you elaborate on what troubles you the most?
I'm going to start by providing some comments.
One of the things that I personally find frustrating about the nature of this prorogation and some of the prorogations under the Harper government was that.... As we've heard some witnesses say already, there is an important routine function of prorogation, and it can be used properly. I found it odd that we never saw the end of a parliamentary session in the last Parliament and I felt that that was based on, frankly, just a kind of ignorance of what prorogation really meant. I think that ignorance persists, and what we saw was a government that, not understanding the proper function of prorogation, earlier this year decided to use it and abuse it as a tool.
Not only did it mean that an important investigation into the WE Charity scandal was prematurely terminated, not only did it mean, and has continued to mean in spite of prorogation, that we're not getting a budget, which I think is important, and we saw that the government is able to speak to its fiscal situation notwithstanding the challenges of the pandemic and therefore, I think, could present a more fulsome budget, but it also meant that in that period of time....
I would say this perhaps to Mr. Turp's point, a month in a half, in some ways, is not a long time, and in other ways it's a very long time. That was a long time for Canadians who were on the Canada emergency response benefit and were waiting to see legislation tabled in the House, to get a sense of what was coming for them at the end of September. The fact that we weren't able to make progress on that issue and that the whole thing was decided within the space of a few days, because the government hadn't left time for them to table legislation to allow a proper conversation to happen, meant a lot of stress and anxiety for Canadians, who knew that the deadline for CERB was coming up and didn't know what was going to replace it. That's the truth. People didn't know. It came right down to the wire. That was another, as far as I'm concerned, shameful aspect of this prorogation, which was not a proper use of it. That's my opinion. Let there be no doubt about it.
I take the point that this is an exercise of political judgment, but I also think it's important, when we talk about the various divisions of power within Canadian society, that we recognize the importance of the legislature, which is far too often passed over in the context of the Canadian system. I find it frustrating that we would need a constitutional amendment to do what some other countries do, and rightly do, which is to require a two-thirds vote of the legislature in order to dissolve. I think it should also be applied to prorogation.
Now, in other fora, not here today but if you look at some of the testimony from the Special Committee on Electoral Reform, one of the subject experts, Professor Hugo Cyr, provided a brief that talks a bit about the power of prorogation and proposes that, although we can't actually make it binding that there should be a parliamentary vote for dissolution or prorogation, one of the things that might be within the purview of the House would be to put in the Standing Orders that if a Prime Minister recommends prorogation or dissolution without having a vote and the consent of the House of Commons, that Prime Minister would be deemed to have lost the confidence of the House.
We have four experts on the matter here today. I'm wondering if we could get a little bit of feedback on that idea or on what other mechanisms which would not require a constitutional amendment, would allow Parliament to assert its authority and demand that it be consulted on questions of either prorogation or dissolution.
There was a question, Madam Chair, I believe it was our colleague from the Bloc, about the period of the most recent prorogation and they had concerns about that. A CBC report makes clear that the average prorogation period since 1867 in Canada is 151 days. I would note for the committee that the most recent prorogation lasted from August 18 to September 23. I just bring that to colleagues' attention. I'm only an associate member of the committee, but I think that point is an important one to consider because without context, without historical reflection, we're missing an important aspect of the debate and discussion here. Again, the average prorogation period since 1867 is 151 days. I leave that to the committee to consider.
Another point was raised by Mr. Lagassé. Professor, you said that it depends on the eye of the beholder. In other words, one's position on prorogation is a matter of perspective. On the most recent prorogation, whether it was warranted or unwarranted, is really a matter, not of objectivity per se, but one of pure perspective.
Mr. Turp, it would be very easy for me to put to the committee that you served as a Bloc MP from 1997 to 2000, but I'll leave that aside. I respect you and see you as a constitutional legal scholar, so I won't ask you about your previous work as a Bloc MP and as a member of the Parti Québécois shortly thereafter.
Are you aware of the work that was taken up by the committee on finance and the committee on ethics post-prorogation, or in other words, when Parliament reconvened in the latter part of September?
Thank you very much to our witnesses today.
What we're discussing here—let's get to the root of it—is the WE scandal, where a half a billion dollars of taxpayers' money went to a kids' charity that paid off the 's mother, as we know, half a million dollars. That's the root or the cause of why we're here today.
This is a prime minister who has been ethically challenged. He's the only prime minister who has ever been visited by the Ethics Commissioner this many times. There is no other prime minister who has been found guilty of this, so that's the root of why we're here today.
To the witnesses, we have the deputy House leader, deputy whip and some of the leading Liberal leadership with us today. On these ethically challenged decisions that were made to prorogue.... It was done on the day that we were supposed to get evidence that was redacted, and now we have learned that it has been destroyed, so there are some additional ethical issues that arise from that.
I come from western Canada, and there has never been a time when we have been more disillusioned with our country, our leadership and the direction of this country. In the last nine months, we went into billions and now over a trillion dollars in debt that is going to affect future generations, who will have less opportunity because of the decisions of this government.
We've all been paying attention, but Canadians haven't, because we have a pandemic that we're dealing with, and they're not realizing how much peril we are in as a country. I guess my question to Mr. Lagassé is this: Do you think the current media landscape and the current population of Canada are paying attention to these issues?