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House of Commons Emblem

Standing Committee on Procedure and House Affairs


NUMBER 017 
l
2nd SESSION 
l
43rd PARLIAMENT 

EVIDENCE

Thursday, December 10, 2020

[Recorded by Electronic Apparatus]

  (1100)  

[English]

     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.

  (1105)  

     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.

  (1110)  

     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.

  (1115)  

     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.
    Thank you, Dr. Williams. You've given some great recommendations to our committee.
    I know there are so many questions we would probably like to ask Dr. Williams, given he's from the largest province, but we're going to keep our focus on the study at hand of a federal election during a COVID-19 pandemic. We will start with the first questioner for six minutes, please.
    That's Ms. Vecchio.
    Thank you very much, Chair.
    To begin I would like to thank you, Dr. Williams. As a resident of Ontario I imagine during the last 320 days you have probably had no sleep. I would like to commend you for your work. I know I am fortunate to have both Dr. Mackie and Dr. Lock in southwestern Ontario in the London Middlesex area. I recognize what an effort you're putting forward and I greatly appreciate it.
    We've had two federal by-elections in Ontario, one in York and then one in Toronto. Has anything come out of those centres that could be linked to the election? Are there any concerns about holding those by-elections in November?
    We asked our local health unit to document that. We have not seen any impacts related to that. We were pleasantly surprised it went very smoothly and we could not identify any exacerbation of cases related to those events that have been attributed to the locations of the various scrutineers, etc. It was a well-run process.
     That's fantastic to hear. Thank you for that good news.
    What were some of the restrictions? I assume that Elections Canada was speaking to you or to the people in the Toronto area frequently on this. What were some of the suggestions that were made to ensure that voters, the candidates and their teams, as well of course, all the staff who were going to be there were safe? What were some of the guidelines you provided?
    A lot of the guidelines were stipulated by the local medical officer of health from Toronto public health, Dr. Eileen de Villa and her team, to make sure they were following the standards and protocols that were in effect during their time. I think they were in the modified stage two before they moved into the red zone, and now subsequently into the lockdown zone. Even now their standards have shifted a bit, but they were asked to do the proper minimizing of gatherings indoor and outdoor, as well as proper distancing and masking and limiting the access points, and as I noted in my comments already, ongoing cleaning of surfaces and keeping people moving through so there wasn't a congregation of larger numbers in any setting. They would have taken them from their medical officer who was specific to the zone they found themselves in.
    That's excellent.
    When we were going through that, were there any rapid test processes, or anything like that, that Elections Canada established with you to make sure people were safe? Were any available at the time, and if so, would you have been able to use them?
    We didn't use any rapid testing at that time. We still had lots of capacity in our daily testing through our assessment centres in each of those locations, mostly because we were putting our confidence in the PCR test. We've been doing a lot, working through the various models of rapid testing. We're trying to use them in areas where we can't move the test through quickly enough to have adequate turnaround time.
    Those locations are very central so we didn't have to worry about that. As well, we wanted to make sure we had the proper quality checks in those testing methods. If you're in high zones of positivity, to use some of those tests that have less sensitivity you may have a certain rate of false negatives, which would not be what we desire. You have to put in testing protocols that would overcome them. You want to use them in the right areas with the right group at the right time, administered by the proper experts, because some are changing from the nasopharyngeal swab to anterior nasal, buccal and oral. Then we were also testing some saliva mouthwash-type methods. A lot of new technology is coming, but we didn't use it for those by-elections.

  (1120)  

     Excellent, thank you.
     You were talking about long-term care homes. All of the members on this committee are very concerned about long-term care homes and those who are most vulnerable and disabled. We want to make sure they are safe.
    You indicated that we should screen those coming to the long-term care homes. What would that screening look like? Would it be those types of tests that you were just referring to, buccal, and those different things or just a swab of the inside of your cheek, perhaps? Would those be easy to administer?
    Let's start with the long-term care homes, but do you feel that we must ensure that all Elections Canada people are tested or have that type of screening done, and how can we do that in the larger picture as well?
    The tests in our long-term care facilities are of major concern to us. We are continuing to increase the security around the long-term care facilities where we have high levels of transmission in some communities. There are more and more cases coming in, usually through the staff, volunteers and essential visitors.
    We're putting in strident measures to make sure that, first of all with the security guard in some of the lockdown zones, people are asked about a history of signs and symptoms. They have to show proof of having had a test done. It's not just attestation anymore; they have to show that they've had a test in the last week. We're going to weekly testing, and we're talking about whether we would have to go up to even twice weekly tests with some of the rapid tests in there. We have not yet implemented that.
    Regardless of the steps we put in, there still seem to be infections coming into these locations, and once it gets in there, it spreads quite quickly, so we have to put as many barriers around them as we can.
    If people coming in from the outside—who are not staff members or essential visitors who are registered and noted in the log—don't have proof of testing, they will not be allowed to enter the facility.
    In green and yellow zones, it is less stringent. There's a variation across the province, but we're trying to put these measures in. We're going to implement a rapid-test methodology. We're going to have to make sure that it's done with the proper sequential timing to ensure that we rule out any misgivings of the test as in false negatives. Right now you have to get those other tests done.
    Thank you so much, Dr. Williams. I appreciate your time.
    Next up we have Dr. Duncan for six minutes, please.
    Thank you, Madam Chair.
    We thank Dr. Williams for being here. We appreciate your time and effort, especially during the pandemic.
    My focus is on protecting the health and safety of Canadians should there be an election and particularly on protecting the most vulnerable.
    I have limited time, so I will be largely asking for yes or no answers or one-word answers.
    In Ontario, does the impact of the pandemic vary across public health units? Yes or no, please.
    Yes.
    Thank you.
    In Ontario, does the impact of the pandemic vary within public health units? Yes or no.
    Yes.
    Could you tell me how many long-term care homes in Toronto are in outbreak today, please?
    I'd have to look at my sheets. I can't do a yes or no to that.
    Roughly...?
    I will just looked at my data for today. I didn't know you were going into that detail.
    Maybe I can come back to that, because time is limited.
    Right now we have seven long-term care homes in outbreak in Toronto.
    How many in all of Ontario, please?
    In all of Ontario there are 21 long-term care.... When you say outbreak, there can be just one staff member positive, so it's not in full-blown outbreak. We have a very open definition for early warning.
    I understand that. That's for all of Ontario.
    Correct, of our many homes.
    How many long-term care residents have we lost in Ontario during the second wave?
    That's another data metric. Go ahead and ask another question while I look that up for you.

  (1125)  

    Okay. I will also be looking at the cumulative number since the pandemic began for long-term care, please.
    In the first wave, we were at 1,800.
     We had another 17 deaths in long-term care yesterday, so we're getting close to around 500 for the second wave as compared to the first wave, which was 1,800.
     So, we're at 2,300. Thank you. We're all terribly saddened by this. What is the test positivity rate for Peel, please?
    The test positivity for Peel at the moment is 9.8%.
    Thank you. And for York?
    York Region is 6.1%.
    Thank you. And for Toronto?
    Toronto is 6.1%.
    Do some neighbourhoods, for example, in Toronto, have a higher test positivity rate than the 6.1% you just gave?
    Yes.
    Are different types of housing associated with different types of case growth?
    We're finding that it was more varied where you have high neighbourhood ethnic variation and you have multi-generational families in one residence. That seems to be more of a factor than socio-economic status per se. It does play a part. We see a higher risk in lower SES as well as a much bigger difference, almost, from the quintiles of racial diversity, the lowest being around 15 per 100,000 and the highest at the moment being 170 per 100,000.
    Can you explain the 170 per 100,000, please?
    That means when we take our data and break it down to areas that have certain definitions, from the statisticians who do it, that have quintiles of neighbourhood racial diversity in areas, under postal codes. It goes from the lowest to the highest, and so the highest quintile has a rate, at the moment, that has increased up to 170 per 100,000, from the data we have from testing that, knowing that the testing penetration varies from area to area depending on cultural issues, access to testing facilities, etc.
    Thank you very much.
    Is asymptomatic testing happening in schools?
    Yes.
    In how many school boards is asymptomatic testing taking place, please?
    We're mostly doing it in the different health units or choosing different schools to go in and test. We're undergoing that process at the moment, doing some in different areas like Ottawa, Toronto, Peel—mostly in the hot zones. We're going in where there are no current outbreaks, but cases are coming to the school and they're in neighbourhoods of high transmission.
    Right now, in how many schools is asymptomatic testing taking place, please?
    I'd have to look at our list, because we have a table that deals with that. There have been about eight to 10 so far. They have another eight, 12 or 13 coming up before the Christmas break, so there are different ones moving through elementary and secondary.
    Perhaps you could table that with the committee, please.
    During an election, say, for example, we look at Toronto and we see different neighbourhoods having different test positivity rates. Can mobility affect contacts?
    I'm trying to think where you're going with that question. The students don't move around. They go to the same school.
    No, I'm not going with schools. I'm just asking, can mobility affect the potential for contacts, please?
    Oh, definitely.
    Those are all my questions, and I thank you for being so gracious.
    Thank you.
    Monsieur Therrien, you have six minutes, please.

[Translation]

    If I may, I will make a brief comment first.
    Today, the government introduced the bill to amend the Canada Elections Act. The committee has been working on it for some time. This was done in parallel with our work, and we haven't been notified.
    I think this is disrespectful to the people working on the committee and to the witnesses who have appeared before us and who have been willing to share their knowledge and insights with us. I think it's somewhat unfortunate that this is the way things are. Unfortunately, they do not care about the work of parliamentarians. I cannot but be very disappointed in the government's behaviour.
    Good morning, Dr. Williams. Thank you for joining us today.
     I have some questions about rapid testing in particular.
     You said you did not use rapid testing during the byelection. Did I understand correctly?

  (1130)  

[English]

    That's correct. We didn't utilize them in those locations because we had access to the assessment centres and our PCR testing.

[Translation]

    They are less reliable. Is that correct?

[English]

     The PCR test is very sensitive and very specific, so we have full confidence in it. Some of the rapid tests have some variations and lesser qualities, and therefore we have to put in some processes.

[Translation]

    In Quebec, the situation is different from Ontario.
     I would like to know how it is in Ontario. How long does it take for someone to get the results of the test done by means of a nasopharyngeal swab?

[English]

    This is a continual challenge, especially when you're putting through 55,000 to 60,000 people from 149 testing sites. We are trying to get our turnaround time...definitely we have 80% who are within 48 hours of the test, and we're getting close to 90%.
    We want our turnaround time to be ideally within that time, but some northern areas have a longer time due to transportation issues from the time the sample is taken until it gets to the testing site. We're hoping to use rapid tests and more point-of-care testing to see if we can improve that timeline.

[Translation]

    Given that rapid testing is less reliable, you prefer to use tests that are actually more reliable, even if you have to wait longer for the results. That's my understanding.
     If there is a general election, will you consult with the other provinces to determine what measures to apply, or are you already doing so?
    Clearly, you are responsible for your own area, but suggestions from other provinces can sometimes be helpful.

[English]

    Since the onset, we have been on the special advisory committee with the Public Health Network Council, which is chaired by one of our chief medical officers of health and by Dr. Theresa Tam. We meet sometimes twice a week, three times a week, on various topics. We share on issues of concern. We haven't specifically talked about this one, but we would be discussing it if and when it did occur.

[Translation]

    Are you talking about elections now?

[English]

    We haven't had any specific discussions on that at this time because we do not know of any coming in the near future. We discussed the topics of most pertinence. Right now, we are all tied up with vaccination.

[Translation]

    Yes, I imagine so.
    Like everywhere else, there are hot spots. You talked about Peel and Toronto. Are you going to be using the same processes across the province, or will you be more careful or more cautious in some places?
     Will the measures you are going to propose for polling stations be consistent or will they vary depending on where they are located, with less stringent measures in places where there are fewer cases?

[English]

    Part of the quality of the framework is that it allows some variation of limitations in congregate settings, depending on the per cent positivity in the area, and the number of cases per 100,000, so we can be more more open to that. That will vary, and then the local medical officer of health, who has responsibility in that area, can put in other orders and limitations if there are areas of acute concern in certain settings. We have our provincial framework which allows a baseline, and then the medical officers can add more on if they so wish.

  (1135)  

[Translation]

    So there may be variations.
     Is the pandemic, as it currently stands, serious enough to justify cancelling an election because the timing is not right? Is the situation considered serious enough to come to that?

[English]

    On a pan-Canadian basis, there are some provinces...I'll have to leave that for my counterparts to comment.
    Right now in Ontario, our latest data was 82.4 per 100,000 are active cases, which puts us I think one of the lowest outside the Maritimes so we're still okay at this time. The key is whether it's done over time with use of all the technologies, limited large gatherings, putting all the checks and balances in place and allowing for that to occur. It can still happen at this stage. We haven't yet had to go to total lockdown as in curfews and things like in Melbourne, Australia. We haven't done that, so I would say we're still okay at this time.
     Thank you.
    Next is Mr. Blaikie.
    Thank you very much.
    Following on that theme, when you say that it ought to be done over time, we've heard some discussion here at committee about the length of the writ period or the length of the election itself.
     The elections law allows for some variation. I think it's between 35 days and 51 days. If there were an election, do you think it would be good that the government adopt the longest possible writ period in order to provide additional time for implementing some of the measures you've mentioned in your testimony?
    I think that with the use of virtual-type components and spreading out the people, you can cover a lot of people in a short period of time. We watched what happened down in the U.S. to see what worked and didn't work. We're trying to really discourage large mass gatherings or groups where distancing can't be maintained. I think you can do that through technology. Or if you need to have a number of events over a more prolonged period, the key is to keep those numbers down and keep people spaced, both in time and place, to promote prevention.
     Both could be utilizable. I think we'd have to always monitor them and document that we were careful. We don't want to have outbreaks attributed to any election processes, and we want to try to protect the public as much as possible.
    Each person votes only once, and they do that in either a shorter period of time or a longer period of time. Is it easier to spread people out over a longer period of time than a shorter period of time?
    I would think more the longer period, to allow for advance polling. People could do it electronically or through different processes so they could exercise their full privileges, especially those who have more accessibility problems. They could do so—if you're talking about long-term care—sometimes by having their essential visitor go out to obtain the ballot and then go back out and submit it through mail. That would allow everyone to have the possibility to vote and barriers and protections would not be an impediment to that. Sometimes that may take a bit more time.
    As a public health expert, you know, I'm sure, and I'm seeking some of your wisdom, about the extent to which people's behaviour can depart from public health orders. That can happen when people choose not to respect those orders. It can also be the case that, despite reassurances that a process is safe, people still feel a lot of fear or anxiety and decide not to trust that, preferring to stay home.
     That's relevant, obviously, in the case of an election, because if we do have one during the pandemic, I think there is some concern that, even despite reassurances that it's a safe process, people may elect not to vote because they just don't have that level of confidence. If an election were held during the pandemic, do you think a significant number of people may choose not to vote for fear of contracting COVID-19, even if all the procedures were safe?
    Again, our key from the get-go has always been communication and public education. If they were assured by Elections Canada and then were to ask for input from their local medical officer of health to deal with questions, to persuade them that it is safe and to deal with all their apprehensions, that would be good. Where it is in the vaccination program would also be a big factor; the timing has to be considered in that as well. A number of factors play in there.

  (1140)  

    One of the things that has changed since we began this study is the promise of a vaccine rolling out in 2021. Obviously, on top of the work and the strain already in the health care system in trying to treat people who have contracted COVID-19, now there's the logistical challenge of trying to administer the vaccine.
    Where do you think the space and the capacity are within the health system right now to do the kind of training on public health measures that would be required for an election? I'm thinking particularly of long-term care facilities. It's going to take somebody's time, somebody who has health care expertise, either to help patients directly with the vote or to train people who normally volunteer there or who are non-medical staff who work there.
     Where do you see the capacity in the health system right now in order to be able to do what it takes to effectively deliver a safe election in the pandemic to all Canadians, including those in long-term care and in indigenous communities and people living with disabilities who face additional barriers? Where do we find that capacity in the system right now when we consider that treatment and vaccine rollout are making incredible demands on the current system?
     One of the challenges we have in Ontario, and one of the benefits we have in Ontario, is that we moved very quickly from the get-go to an all-health approach. As a result, it's not just coming from my desk, but from all the tables, involving all our deputy ministers, our minister, as well as our assistant deputy ministers. All the different portfolios, including the minister of long-term care and minister of seniors for retirement homes, congregate under another ministry, so we have an all-wide government approach.
    We have whole committees, set up by the secretary of the cabinet, which have all the deputy ministers. There are various sectors of staff throughout the whole Ontario public service who can give advice and direction, including intergovernmental affairs. It doesn't all depend on public health people or hospital staff to do that kind of training. We've been trying to improve the knowledge base, guidelines and directions accordingly.
    That's where you have to do the advance training, as I said in my opening comments, to ensure the people involved have received all the adequate training well ahead of time, and it is not left to the health system to do that, because these are well-known processes in place.
    It's just a matter of documenting, scrutinizing, and putting your checklists in place, so every setting has done what they're supposed to do at the right time in the right way to assure us and the public that it's all in place. That's the advance timing and training.
     Thank you.
    Next we have Mr. Tochor, for five minutes.
     Thank you very much, and to Dr. Williams, thank you for the good work you're doing in Ontario on behalf of Ontario residents.
    I represent a riding in Saskatoon, and I know chief medical officers are very busy individuals.
    I'd like to hear a bit about a typical day. What time does your day start? I bring this up to understand how busy you are, and how a snap election might affect the important work you're doing in Ontario.
    My day starts at 4:30. We have our first teleconference at seven o'clock. We have teleconferences and meetings from seven o'clock. That's why this one was juxtaposed, double-booked with two or three others, so I'm taking the time out now. A lot of it is communication. It goes then until six or seven. We sometimes have some follow-up calls and phone calls in the evening. We then review the data, sometimes late at night. At night we get to look at some emails by staff, receiving some things at 2 a.m. We're trying to follow some things on that. It is busy, and there are many people involved.
    I'm very grateful for the good work you're doing. I apologize if we invited you to this committee and you're double-booked. You could be on another call that could actually save lives out there or communicating the rollout plan for the vaccine in your province. We all want this to end, and hopefully, you're not going to be staying up until past two every night for the foreseeable future.
    If there was an election, though, another thing you'd have to do today would be to go vote, perhaps, if the voting day was today. It's another way you would be removed from the important work you're doing.
    If there was a snap election, what role should you have in consulting with the Chief Electoral Officer of Canada, coming from a province where you probably know the best about what's going on. What role do you think you should have in consulting with him?

  (1145)  

    I assume the officer would access us through the Pan-Canadian Public Health Network Special Advisory Committee, and Dr. Theresa Tam, to give us updates, and to deal with some things. We may have the same questions from all the provinces and territories. We would cover those as effectively and efficiently as possible. Communications and updates could flow on that basis. Specific issues could be brought forward.
    We'd look to our internal government affairs office to connect up, as well, to make sure that we were consistent with our communications. There may be times when we would have to have special ones if there were some unique challenges that were deemed to be handled in Ontario as distinct and different from the rest of the provinces and territories. It would be a bit iterative, but using the time as effectively and efficiently as possible is important.
    So the structure would flow up to Health Canada—your input, your concerns—and then Health Canada would interact, if I'm hearing you right. Is that the role you see yourself in?
    That's correct. Health Canada could filter our concerns, and make sure we have the best and most efficient use of time with communications going out accordingly.
     I'd like to get into the challenges of rolling out a vaccination program during a snap election. You'd be fighting for communication and awareness with the public, as candidates would be trying to do the same thing.
    What are some of the challenges you think would happen for the vaccine rollout if a snap election were called?
     People would have some questions in the midst of the process. Who had been vaccinated at that time? Who has evidence or proof of two vaccinations? What is the time period to have immunity? Would they have the same detailed limitation to get access...?
     These are all things we're trying to address now. Even if you have been vaccinated adequately, do you have to go through the same scrutiny to get into a long-term care home? These different points are going to be an evolving question we have to ask ourselves. Even if you've been vaccinated, we are finding some people may be swabbed and still positive. They may not be getting sick, but they may be transmitting. There's much to be determined.
    Elections Canada employees should have the vaccine before we have an election. That seems to make sense. If they are going to be interacting with the public, would that be a smart health policy, that people administering the election have the vaccine so we're not spreading it?
    I wouldn't say they're on our top priority list that we put out by our national advisory committee and by our federal group. Right now, they would not be in the top tranche in that group. They still have their other methods of protection such as masking, distancing, getting tested and all that kind of stuff.
     Whether they are volunteers or members of other groups, we would have to get some further direction. That depends if we're in the first quarter of 2021, second quarter or third quarter. It's all a matter of when we can do that, but they would not be on our list at this moment of top-priority individuals, because we want to decrease morbidity and mortality at this time.
    Thank you for your time. I'll cede the floor, but I want to say thank you for, on your busy day with so many things going on, spending an hour with us. There are probably much more important things you could be doing that would hopefully save some more lives in Ontario. Thank you for all of your long hours. I apologize that we're taking you away from that important work.
    Thank you. If you have to get me out of trouble with General Hillier, I'll let you know.
    We will do our best.
    Ms. Petitpas Taylor.
    I will be sharing my time with MP Turnbull.
    I also want to add my voice in thanking Dr. Williams and all of the public health officials for the tremendous work that you've been doing over the past year. We are really, truly grateful.
    My line of question is going to be very similar to Mr. Tochor's.
    In the area of jurisdiction, during your opening remarks, you indicated that Ontario has 34 public health units. You have indicated that their role and responsibility is the public health in their specific jurisdiction.
    I'm wondering, with respect to that, what their role would be in the midst of an election with respect to providing public health guidance to Elections Canada. We recognize there is a variation across the country when it comes to COVID-19 cases, and we're just trying to wrap our head around the issue of jurisdiction and who would provide that public health information to Elections Canada.
    As committee members, we've had a lot of discussions with respect to that and would like to get your take on that.

  (1150)  

    Our approach would be to have our general standards nationally. We'd roll those out so that all 34 would have the same messaging coming from my table or from the province. Then, for each health unit, the medical officer of health would have to deal with any outbreaks or concerns in various activities within the elections process, whether it's campaigning or in the selection of sites, and see if there were any issues where the medical officer of health could override that and give out directions to say, "We need to alter it this way and this way" under the umbrella of what we say in Ontario. Then you can go more granular if there's something unique in their respective jurisdictions.
    When you say they could override it, who ultimately has the power to override such decisions?
    They have an umbrella. They can enhance above that, but they can't go below that. They can't say they'll do less than what the province allows. They can say, "In this setting here, because of, for example, access with certain first nations community groups coming in to an urban area, we may want to have some stipulations to protect them or to ensure there are things in place there". They can always make it more protective as long as there's evidence and scientific data to support that step.
    During your testimony, you also indicated that staff, volunteers and family members must undergo testing before they can enter long-term care homes. Would you agree that it would be better to promote alternative voting methods, as opposed to people going into long-term care facilities to provide residents with other voting options? I'm making reference to either mail-in ballots or phone-in ballots.
     I would certainly support that.
    As I said, an essential visitor, who knows the individual, could bring a ballot in, make sure they fill it out and then take it and mail it on their behalf. There are many methods I would prefer rather than having voting take place right in the long-term care home.
    Thank you so much, Dr. Williams.
    Dr. Williams, thanks for being here today, I really appreciate the work that you're doing.
    I have a mother in long-term care here in Ontario, and a major outbreak in a nursing home in my riding. I have deep concerns about our residents in long-term care.
    We also heard from the long-term care association that there was quite a number of outbreaks.
    Could you table the data on the number of cases across Ontario in long-term care, for residents and staff, including private, non-profit and publicly run long-term care facilities?
    I will check with the ministry to see if it can do that. I have the numbers for today. I just don't have them broken down by all those categories. I'll see if the ministry can provide those by the different types of administration of the different institutions.
    Thank you.
    I know rapid testing is often talked about in political spheres as a panacea. However we know, based on the some of the comments you've already made, that it is not: there's a whole testing regime and many aspects to this.
    What is the main risk? Why is rapid testing not a panacea? Is it because of the false negatives that we get?
    Any test has what we call sensitivity and specificity. We have to do the ratings of those tests, and then you look at their positive predictive value, as well as the aspect of false positives and false negatives.
    If we're okay to allow that to occur, then the testing would be fine. If there are settings where we are very concerned and we don't want to miss results, then we'll have to do repeat testing to overcome some of those limitations, and then do backup with the PCR to ensure that.
    We've done some. So far, for example, with the Panbio, if we do repeat testing we find the positive is good. The false negative means we're serial testing to limit that impact.
    Thank you.
    We'll get through the Bloc and NDP questioning, and then we will have to transition into our second panel.
    Mr. Therrien, you have two and a half minutes.

[Translation]

    Thank you, Madam Chair.
     If I understood correctly, Dr. Williams, you said that the byelections did not cause a significant increase in cases. Is that correct?

  (1155)  

[English]

    That is correct. We didn't see any evidence of an attributed increase in cases in those areas by our local health unit that was monitoring the situation.

[Translation]

     I would like to understand. When the byelections were held, were they in the red zone? Was the pandemic already severe in those areas?

[English]

    If I recall the dates correctly, it was in October. I am not sure if there were any in November. The by-elections were in modified stage two areas. They transitioned into the new framework that put them in the red zone.

[Translation]

    So those regions were not in the red zone from the outset. Is that correct?

[English]

    They were not there because we hadn't put the framework in place yet.

[Translation]

    Would things have changed if those areas had been in the red zone?

[English]

    Not really. We were still monitoring the number of cases and the rates and all that.
    It would not significantly change our measures, but the red zone would be brought in earlier. We modified the template even lower, later in November, and that meant the limitations on restaurants' indoor capacity and outdoor capacity might have had some impact if people were having, say, an election campaign meeting, and how many people could be at a group gathering inside versus outside.
    That did get enhanced and even further limited in the grey/lockdown zones.

[Translation]

    Dr. Williams, let me thank you for joining us and congratulate you on the work you are doing. Without you, life would be much more difficult. So I want to thank you for being with us and for being there for our people. What you are doing for us is invaluable.

[English]

     Thank you for that.
    I represent a very large team. Many people are involved and everybody is doing their best.
    Thank you.
    Mr. Blaikie, two and a half minutes, please.
    I want to add my thanks to the course of thanks for all the work that you and your team are doing.
    I wonder if you could help us drill down into this question. Let's imagine a particular long-term care facility that's in outbreak and we want to ensure that everybody who's living there is able to vote during an election if that's their choice. We know that the health care staff there are likely already overburdened and stretched very thin, so helping patients vote, on top of the regular duties, is a real challenge. We know that, in many cases, even the non-medical staff in personal care homes are stretched very thin at this time. We know sometimes long-term care facilities will have a roster of volunteers who in normal times would have been there to help with various tasks. We know many residents would need somebody there alongside them to assist them with the voting process. Even if they were able to procure a mail-in ballot, many might need help filling out that ballot.
    What do you think is the best advice we could give to long-term care facilities and to Elections Canada? In keeping with the best public health advice, where should they be looking to get that staff time or volunteer time, or people who could go in and assist long-term care residents with voting in a way that protects their health and safety so they're not disenfranchised because we left it to medical staff who are already trying to do the impossible just treating patients?
     What's the best way to try to ensure that they have that help if they need it and that the help isn't people who, yes, are trained, but who are then trying to move from facility to facility because we can't replicate that expertise in each facility? That obviously would present some very serious health challenges as well.
    What can we do?
    It's a matter of looking at the demographics and assessing each home. As you've seen in Ontario, what we've tried to do, even in the lockdown zone this time where they're having no visitors, is that we have gone to the process of having essential visitors. We hope every resident has a registered essential visitor or visitors for them, who have gone through the process of logging and being recognized, and they are doing the regular testing as well. However, there might be some cases where there is no essential visitor linked to that individual.
     We'd have to look at how many people in that group are medically and mentally capable of voting, who don't have alternate decision-makers, as in family members who could submit those documents. Then, if there were a large number in some of the large centres, would you want to designate, I don't know what their title could be, a scrutineer or whoever, who would go through the process of documenting, getting tested and being able to go in at a certain time and undertake that and being able to access that? We'd have to think how it might work, but that's when there is no essential—

  (1200)  

    I'm sorry to interrupt, but I know we're short on time.
    Is that a realistic administrative burden for long-term care facilities right now? I'm in Manitoba and we're in full lockdown.
    There's a personal—
    We're out of time, unless you have a quick yes or no in answer to that.
    I'd say it's difficult, and that's why we have the essential visitor program in Ontario.
    Dr. Williams, thank you. Once again, of course, as all of the members of the committee have thanked you, I as chair, and I'm sure everyone who has a part in putting this committee together, thank you for the work you have done.
    The federal government and I'm sure all the provincial governments really do realize that public health needs to be adequately resourced and respected. You have done tremendous work. Thank you for that.
    We will switch to the next panel. We'll suspend for about a minute to do the sound checks and come right back.

  (1200)  


  (1200)  

     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.

  (1205)  

[Translation]

    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.

  (1210)  

    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.

[English]

     Thank you, Professor Turp.
    Next we have Professor Lagassé. Go ahead for five minutes, please.
    Thank you to the members of the committee and the clerk for inviting me to appear before you today.

[Translation]

    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.

[English]

    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.

[Translation]

    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.

  (1215)  

[English]

    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.

[Translation]

    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?

[English]

     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.
    Thank you.
    Next we have Professor Brock, please.
     Hello, everyone. Thank you very much for the invitation to appear.

[Translation]

     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.

[English]

     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.

  (1220)  

     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, Professor Brock.
    Next we have Professor Messamore.
    Go ahead, please.

  (1225)  

    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.

  (1230)  

    Thank you so much, Professor.
    Thank you to all of you for your concise and interesting remarks.
    We'll start with our first panel. Mr. Doherty, you have six minutes, please.
     Thank you, Madam Chair.
    Thank you to our witnesses today.
    On August 18 Prime Minister Trudeau 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, Mr. Gerretsen'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?
    Sure. For me there are two issues here. First of all is the question of the committees. You will see in the notes I've provided that I make a recommendation on what Parliament could do. It cannot actually put restrictions on the Prime Minister or the Governor General with respect to the power of prorogation without a constitutional amendment, but it could look at how it operates when prorogation is called. There have been some exceptions to the business of the House of Commons that have been covered by a prorogation. I am wondering if committees should be one of those things that you consider.
    If we look at 2009, which I thought was much more troublesome than the 2008 prorogation, or the experience of the McGuinty government in Ontario, when a government is seen to be avoiding tough hearings by committees and it prorogues, that really does create disillusionment among the public, and cynicism, and can lower the legitimacy of the government and our political institutions. It also makes Parliament look like it's less effective than it should be.
    The second point is about the budget. I find it very troubling that we have not had a budget. That is one of the best means for Parliament to hold the government to account and to scrutinize what it is doing. It provides stability and continuity. The primary function of Parliament is to approve the funds of government and to check how those funds are spent. Without a budget, it's very difficult to do that. In my work with the public sector, I am also asking people in the public sector how they are affected by there not being a budget, because I think it is an important measure.
    Thank you, Dr. Brock.
    Dr. Lagassé, in an August op-ed, you wrote, “...the fact that the committees holding hearings into the WE Charity will no longer be meeting is significant. Whether this is a fair characterization depends on the government’s ability to show it was necessary....”
    In your opinion, in your view, did the Liberals subsequently show that it was necessary to shut down Parliament?

  (1235)  

    In my honest estimation, I would say, no, I don't believe the reset was effective in communicating the necessity. That isn't to say that it might not be there, but the communication that was put in was not convincing to me.
    In particular, I would say it might have been more convincing had Parliament been sitting on a regular basis throughout the summer and throughout the crisis. It's the compounding of factors that makes it more difficult, to be quite frank, sir.
     You conclude your op-ed with your observation that “preventing improper prorogations depends on making them politically costly.” How, in your view, would that be achieved?
    To be frank, sir, this is really your business not mine. I can point them out in the public domain, but this is a political accountability system. As I mentioned in my remarks, I don't believe we should be relying on the courts to do these types of things, precisely because, as has been noted by some other witnesses, we will arrive at different conclusions about the propriety of this action.
    By the same token, you can make a case, as my colleague Professor Messamore just did, that it was an appropriate reset. It really depends on the eye of the beholder, and ultimately it falls upon yourselves, as members of the opposition, to convince Canadians otherwise.
    Thank you.
    Next, we have Mr. Alghabra, please, for six minutes.
    Thank you very much, Madam Chair.
    Good afternoon and good morning to our witnesses. Thank you for being here today.
    I have a bunch of questions, and because of the limited time I have, maybe I'll ask Dr. Messamore my questions. You might be surprised as some of these questions may not be part of your expertise, but here we go.
    When was the last time we had a global pandemic?
    The one that comes readily to mind was 100 years ago.
    Right. Do you know how many Canadians were infected by COVID?
    By COVID or by the last pandemic?
    By the current pandemic.
    Again, these are not my areas of expertise at all.
    It's about 440,000 so far.
    How many Canadians have died because of COVID, do you know?
    No, I don't know the exact count. It's not within my expertise.
    The latest numbers are over 13,000 Canadians.
    Do you know the decline in the GDP of the Canadian economy?
    Again, it's not my area.
    It's close to 40%. I'll also say that unemployment has more than doubled to almost 14%.
    Do you see the drastic change in the conditions of the country from the first Speech from the Throne after the swearing in of the government in December of 2019 to today?
    Well, yes, and that's kind of my point, really. I was recalling former British prime minister Harold Macmillan's response to a question by a journalist about what blows a government off course. He said, “Events, dear boy. Events”.
    I would say that this is very much a case where events have overtaken the original Speech from the Throne. I absolutely get that the suspension of the investigative committee is a problem, and I think Professor Lagassé's point about there being a political cost is well taken. Since we've had this greater scrutiny of prorogation, people take notice, people who never understood the term or thought anything about it. It has become short of a flashpoint when you hear that word.
    Yes, there is a political cost, but it is unusual to carry on a parliament with one session and—
    Sorry, I have a handful of other questions.
    I agree. Ideally the committees should not have been interrupted, but given the drastic changes of the circumstances and the need for a brand new agenda for the government, one can weigh the pros and cons of this.
    Have you been following the four committees that were studying the WE situation prior to prorogation? Do you know how long they were studying the WE file?

  (1240)  

    No, not specifically.
    Again for your sake and for Canadians' sake, for almost a month and a half these committees held hearings repeatedly. They invited many witnesses, by the way, including the Prime Minister, which was unprecedented.
    Do you know if committees, after prorogation, can still continue those studies if they choose to?
    You mean during the prorogation?
    No, afterwards.
    No. I mean, this is the end of the committees.
     No, I mean, once committees are reconvened, can they choose to—
    I see. Yes. My understanding is that a different committee would have to be formed.
    Okay, so I think you catch my logic here. While there is an unfortunate pause to some studies, even though those committees had been doing their work for a very long time and have interviewed many witnesses, I think that, on balance, perhaps this was necessary.
    The last question for you is this: Has any other government in the past submitted an explanation to the House of Commons for its prorogation?
    My understanding is that the procedure is a comparatively new one, so I think the answer to that would be no.
    I will stop here. Thank you.
    I have a quick point of order, if I may, Madam Chair.
    Mr. Alghabra had a lot of questions outside the subject matter expertise of our witnesses, but he seemed to have the answers. I wonder if Mr. Alghabra would like to be called as a witness for the study.
    I would love that. Thank you, Daniel.
    Okay, we will carry on.
    Madame Normandin, thank you so much for being back with us. We always love it when you pop by.
    Go ahead for six minutes please.

[Translation]

     Thank you very much, Madam Chair. It is always a pleasure to see you again.
    It is also a pleasure to see Professor Daniel Turp, to whom I will address most, if not all, of my questions.
     Professor Turp, I would like to begin by asking you whether there are any other examples of the government using the power of prorogation to escape accountability or parliamentary scrutiny over allegations of corruption.
    My colleague Ms. Messamore cited some very relevant examples from Canada's constitutional history, most notably the prorogation of 1873, when Prime Minister Sir John A. Macdonald tried to evade the inquiry into the Pacific Scandal. It was really an attempt to use prorogation to end parliamentary scrutiny of a case of corruption and misappropriation of public funds.
     It's not very difficult to draw a parallel with what happened a few months ago, because the WE Charity issue has also been the subject of parliamentary investigations by four committees, as the Conservative member who spoke before you mentioned. The committees were studying what happened in that case and what public funds were diverted or whether they were used properly.
     So there are examples. Others are not related to corruption, but to the detention of Afghan detainees in Afghanistan, as has been mentioned as well.
    Thank you very much.
     I will come back a little later to the reasons the government itself gave for requesting prorogation.
    Do other democracies similar to Canada's have examples where the courts have intervened to determine the legality of proroguing Parliament?
    The courts have rarely intervened. In fact, some people have taken the position of my colleague Mr. Lagassé that the courts should not interfere. I disagree with that, particularly in light of the U.K. Supreme Court decision on Brexit. It is sometimes difficult to reach a unanimous decision on complex constitutional issues, but in that case, a court unanimously decided to provide a framework for exercising the power of prorogation and created benchmarks that had never been created by the constituent itself or by a Parliament and that the government had never imposed on itself. I think we should use it as a model.
     Actually, if action had been taken when Parliament was prorogued or the next day, on August 19, this British precedent would have been of great interest. It's hard to tell what the decision of the Supreme Court of Canada would have been, but we can imagine that it might have wanted to apply the same principles and could have declared the prorogation illegal, as the U.K. Supreme Court did.

  (1245)  

    Thank you very much.
     If I understand correctly, the issue of prorogation can be defined by legislation, but could it be enshrined in constitutional law?
     Should constitutional law be reviewed to provide a framework for prorogation?
    Of course Canada's constitutional law should be reviewed. No one today can conclude that governments have not abused this power of prorogation since the Canadian Confederation was created in 1867. It happened in 1873. This is 2020. There are too many examples of this power being abused to evade investigations or to try to prevent a confidence vote.
     If our democracy is to be healthier and to protect Parliament, its sovereignty and the democratic accountability of its members, like you and your colleagues on this committee, we need reforms.
     Is it really a constitutional reform, as my colleague suggested? Could other reforms be made to define this power? In any case, it can be done, because the constitutional prerogatives and conventions can be repealed. They can be replaced by new constitutional norms, and this would be highly desirable in light of this latest prorogation, which, in my opinion, was totally unacceptable for reasons that have not been presented in this report. This is the first report, and some people want to boast that they have prepared a fine report, but it does not provide the real reasons. We all know the real reasons.
    This report was mandatory according to the internal rules of procedure.
    The report mentions the reasons for prorogation, to reset the approach and to ensure confidence in the House, but was it necessary to prorogue Parliament for six weeks? A one-day prorogation would have been sufficient, if we want to just talk about the length of the prorogation.
    I agree with others, including my colleague Mr. Lagassé, that this prorogation lasted far too long. It was not necessary, because we could have continued to operate the program. We know how the Speech from the Throne is prepared. It is done quickly. It can be done overnight.
     In this case, prorogation was not necessary or desirable. The only reason for prorogation was to circumvent the work that four parliamentary committees had done. That reason is not mentioned in the report, which is supposed to provide the reasons for prorogation. I am sorry to tell the member who suggested that one month and a half is like an eternity in the life of a Parliament, that no, one month and a half is not an eternity in the life of a Parliament.

[English]

     Thank you, Professor Turp.
    We now have Mr. Blaikie, for six minutes.
     Thank you very much.
    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.

  (1250)  

    You have approximately two minutes.
    We have two minutes, so perhaps we could start with Professor Messamore on that point, and others can jump in as they see fit.
    I agree that there are other Westminster system jurisdictions that have looked at ways to put in place some sort of rules. I think it's also important to understand that, when we start looking at reasons, this is always going to be politicized. The report that some found unsatisfactory because it failed to address some of the things...this is one of the things that when we attempt to make things more transparent often it really doesn't have that effect. This is the question of the prerogative of the Crown. There's some debate about whether or not prorogation, while we know it's a prerogative power, is a reserve power. I think most people agree that it is, in other words, that the representative of the Crown does have some leeway in refusing in extreme circumstances a request or perhaps not refusing the prorogation but insisting on a shorter period of time. That's one consideration, too, that prerogative of the Crown.
    I think since time is so short I shouldn't take all the time.

  (1255)  

[Translation]

    Mr. Blaikie, I would add that it is essential to come up with a solution, which may be unconstitutional, because amending the Constitution of Canada is complex.
     However, I believe that every responsible member of this Parliament should undertake an initiative to restrict this power, the prerogative that has been abused. In addition, your committee should conduct a comparative research study of solutions adopted elsewhere to see what is needed. The Prime Minister, who already has so much power in this country, really needs to be restricted in how he exercises that power.

[English]

     Thank you, Professor Turp.
    Next we have Mrs. Vecchio, for five minutes.
    Thanks very much, Chair.
    We've commented a lot about WE, and the fact that these committees were sitting, but I also want to indicate there was a lot of other great work done in other committees. I happened to be the chair of the status of women committee at the time, and we were studying the impact of COVID-19 on women. We talked a lot about racism. In the committee on public safety, members were talking about policing and racism. There are so many committees. We talked about the four, but we should recognize that all committees were doing great work. It seemed the public did catch on to the WE scandal, because this was something that was impacting Parliament.
    We talk about all the work that was stopped. We have come back to Parliament having to rush pieces of legislation through. This time frame was changed by the government, so it could adjust whatever policies it may have had, although I've seen similar bills tabled each and every day.
    I want to start off with a question for Dr. Brock. You said:
As a political scientist, I’m fascinated by the strategy. I have to concede I would probably advise them to do what they’re doing.
     Your choice of the word “strategy” is very interesting. Could you elaborate on the choice of that word?
    Sure, and just to preface my remarks, I've advised four of the parties that are currently in the House of Commons now at different levels of government, so I am non-partisan on this.
    Quite frankly, in 2008-09 or 2020, if I had been a strategist or an adviser to those governments, I would have suggested prorogation.
    Is that because of the need to set a reset, or is that basically the strategy, seeing the temperature of where we were in Parliament in August?
    Two reasons.
    First, yes, to reset, but also to emphasize what the government priorities are in a changed circumstance, or if it's getting lost in a political debate that is starting to go ahead....
    Second, if you look at 2020, this was a government that was tired. This was a government that was under a lot of pressure. This is when a government makes very serious mistakes, and they are exposed to the public as failures of government, malfeasance or misdemeanours of some type, when in fact they're due to errors of exhaustion.
    This gave the government and the public sector time to regain their energy.
    Their strength. Thank you.
    Those are some concerns I had, because we had only been sitting for 37 days in the first session of the 43rd Parliament.
    Innovation around the new session of Parliament was addressed by the Prime Minister on national television on the evening of the throne speech. Dr. Lagassé, you're a connoisseur of Westminster traditions. What was your take on the Prime Minister's televised address?
    To be quite frank, I wasn't much of a fan, but not so much for the content, I should stress. To my mind, it was something that was very similar to the Speech from the Throne, and I would have preferred a different type of procedure and path, namely, emulating what we see in the National Assembly of Québec, whereby you would have the Governor General open the session, but have the Prime Minister read the government's agenda, which would avoid the need to repeat both.
    More fundamentally, it's the question of this being a presidentialization of the office, which I believe is to be avoided. That is the purpose of the Speech from the Throne, as it exists. Having the Prime Minister speak directly to the nation, as opposed to in the proceedings of Parliament, is not something I would encourage.
    Professor Turp, the House was scheduled to begin its regular autumn sitting on September 21. Is there anything that would have prevented Parliament from being prorogued on September 20, or even on the morning of September 21, to redo this? Was there any reason that we needed to prorogue for six weeks, and not have committees sitting or doing work in Parliament?

  (1300)  

     My answer is no, and I've made my reasons clear in my opening statement.

[Translation]

     The reality is that there is no framework for the discretionary powers, and our governors general have never really wanted to exercise them. It is therefore possible to prorogue at any time because it is the Prime Minister's absolute power, a power that has been reviewed by the U.K. Supreme Court.

[English]

    I only have five seconds left, Mr. Turp.
    Do you believe it was an abuse of prerogative or an abuse of power?

[Translation]

    I believe so, yes.

[English]

    That's an effective use of your time, Ms. Vecchio, for sure. Thank you so much.
    Next, we welcome Peter Fragiskatos.
    Thank you for being here. You have five minutes.
    It's great to join colleagues and hear interesting discussion on prorogation. I'm sitting in today for our colleague, Mark Gerretsen.
    I want to begin with Professor Messamore. Professor, you said—and I wrote down the quote from the testimony—that a strong case could be made that the pandemic made the decision to prorogue entirely justifiable.
    I wonder if you could expand on that.
    I wanted to make a clear statement on it. I think that my point really is that prorogation is not in and of itself a problematic procedure. It's a regular procedure. I think the Speech from the Throne is meant to set out an agenda for the government. When that agenda is overtaken by other events, I think it's necessary to begin a new session with a new Speech from the Throne.
    That was essentially my point.
    The onset of a pandemic would be a shock to the system, so to speak—to the economic system and the political system that hadn't dealt with something like this in over 100 years.
    Just so I'm crystal clear, you're saying that because of that monumental event, the decision to press the reset button was not completely unwarranted. Is that a fair interpretation?
    Yes, it is.
    Thank you very much.
    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?

  (1305)  

    No, I must admit I'm not aware. I am aware that some work has been done and the committees could have, to some extent, looked into the WE Charity issue.
    Let me just read something to all of you. I'll read it in English because it's in English. It's the decision of the House, of the Supreme Court of the—
     Professor, I have less than a minute—
    I think it's so important that all of you listen to this. It's paragraph 55. This is the judges who are speaking. They say, “Let us remind ourselves of the foundations of our constitution. We live in a representative democracy. The House of Commons exists because the people have elected its members. The Government is not directly elected by the people”—
    Professor, I'm sorry to interrupt, but I need to also make clear—
    —“(unlike the position in some other democracies).”
    I hope you can all read that case. I make the case that you read all that—
    Professor.
    Sorry.
    Those two committees studied the WE issue. I know from experience with finance that that was the issue we looked at.
    That's all the time we have, to both of you.
    Thank you very much.
    Madame Normandin, you have two and a half minutes.

[Translation]

    My questions are for you, Professor Turp.
    Let me refer you to the 2019 ruling of the U.K. Supreme Court. To your knowledge, was the ruling purely declaratory or was it binding? Was it more of a tool to guide people in their future electoral choices?
     Could this ruling be useful here? For example, could the Governor General obtain an opinion from the court on whether or not to authorize the prorogation?
    That's very interesting, because this is a binding decision, not a reference or an opinion of the Supreme Court. In fact, the appeal to the Supreme Court was initiated by one woman, whom even the Attorney General of Scotland supported.
     The U.K. Minister of Justice immediately recognized the authority of the decision, and concrete steps were taken in the U.K. to overturn the decision.
    Since you are letting me talk about this ruling, I will read the remainder of paragraph 55. I will do so in English, since that is the original language.

[English]

     It says, “(unlike the position in some other democracies)”.
    The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that. This means that it is accountable to the House of Commons—and indeed to the House of Lords—for its actions, remembering always that the actual task of governing is for the executive and not for Parliament or the courts. The first question, therefore, is whether the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account.

[Translation]

     It is very difficult to think that this role was not frustrated in the case of the August 18 prorogation.
     If the Constitution were to be amended, would I be correct in saying that it would probably be through section 44? It would be done in Parliament, without having to enter into very lengthy negotiations with the provinces.

[English]

    Maybe a yes or no?

[Translation]

    It's not as clear-cut as that.

[English]

    The answer is difficult.

[Translation]

     It may possibly be done by section 44, but there are other views on this issue.
    Thank you very much.

[English]

    Mr. Blaikie, please go ahead for two and a half minutes.
    Thank you.
    I'd like to come back to my previous question and ask Professor Lagassé to weigh in on what kinds of options might be available to Parliament to assert a greater influence for itself on the question of when and how Parliament either prorogues or dissolves.

  (1310)  

    Sir, I would simply point out that a number of reforms have been proposed, some of them trying to create a wedge between the Prime Minister and the Governor General. That may be one avenue that we could pursue. Constitutionally, I suspect that would fall apart before the courts.
    More fundamentally, I would also make the point that if we look at the United Kingdom, recent efforts to remove the dissolution prerogative and to give it to the House of Commons was one effort, but that is now being repealed given the unintended consequences that it had. Similarly, we need to bear in mind that we've even lauded the U.K. Supreme Court quite a bit here today, but this has led to a pushback on the part of the government in the United Kingdom to reduce its powers precisely in this area. We need to be mindful of the types of reforms we pursue.
    Fundamentally, I would say this is a question of norms. This is a question of how we use power. That can only be changed by a change in how political actors operate and think about what is legitimate and what is not. You cannot change it through constitutional conventions necessarily. You cannot necessarily change it through codification because there will always be gaps, there will always be measures and efforts to use powers in ways that may be disagreeable. There's no clear solution here, other than changing the political norms of what is acceptable around the use of power. That is fundamentally what I point to, because, as we've seen in the United Kingdom, efforts to simply remove these powers or transfer them to the House of Commons come with their own problems.
     I do hear that. I think sometimes those efforts to box in those powers are part and parcel of driving changes in the norms, however. If you don't have concrete proposals about how you might change things or prerogatives the government might lose if they don't use them respectfully, then it's hard to change the culture and to change those norms.
    Would Professor Brock like to weigh in on this question with the balance of my time?
    You have just a few seconds, really.
    The role of Parliament is very important. One evolution that we've seen coming out of 2008 is for Parliament to provide information to the Governor General. You could make a requirement that, if there's a prorogation, information also goes from Parliament to the office of the Governor General.
    Thank you.
    Mr. Tochor, you have five minutes, please.
    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 Prime Minister'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?
    Sir, it's interesting that you ask that.
    In my last class, yesterday, on Canadian government 101, this is exactly what we discussed. The fact of the matter is, for most people, their concern and their focus is on their immediate situation economically. Politically, I think it's fair to say that the proceedings in Parliament, as interesting as they may be to those of us in this room, are not front and centre in terms of what people are focused on, and I think that's a fair assessment.
    Quite simply I would say that, no, I believe—and we see the public polling here—that Canadians are supportive of their governments and focused on the executive and its actions at this point in time. As much as it may be regrettable to somebody like myself, who is focused on Parliament, I don't believe that it is front and centre in their thinking at this point.

  (1315)  

    Is that the pandemic, or do you think it's the changing landscape in media, such that people aren't consuming news like they used to, where this is going to get swept under the rug, or this is the desire of the leadership of the Liberals who are in the committee today that we're going to forget about this?
    I think you can certainly run out the clock. I would simply point out that there's an interesting facet here. If you recall, in the last Parliament efforts to shut down the justice committee around another controversy were seen by the government as a means of getting out of a problem.
    Ultimately, I would submit to you that it maybe didn't work out that well. Those of us who are in academia were saying that you may want to simply let these committees go. If there is no problem here, show it, get it over with and don't try to obfuscate, because it can have a blowback effect. Ultimately, I would submit to you that it did. It resulted in the government being reduced to a minority of seats or a plurality of seats in the House of Commons.
    These efforts can ultimately come back to haunt governments if they're not careful, including around committees, so they may gather more attention than we realize.
    What would you say they would risk their government over, then? This has got to be pretty terrible if they go to these lengths. Would you agree?
     I would say fundamentally that this is what's of interest. Political parties have an interest, I would say, in this. I suspect it should be in the government's interests to simply allow the committees to do their work because, whatever is there, for transparency sunlight is often the best disinfectant. As we saw in the last Parliament, it turns out that there may not have been the controversy there to which some are alluding. Therefore, it is often best to simply go ahead and allow these committees to do their work. I believe short-term political considerations oftentimes take the forefront, and long-term considerations should perhaps be taken into greater consideration.
    Sir, I just don't know enough about...and I can't speculate about what may or may not be within the documents, so I'll stick to my institutional knowledge.
    It seems as though the documents have been destroyed, so, as Canadians, we're not going to find out just how bad it was that they would risk their government over this, and risk Canadian lives as well in the middle of a pandemic, which is disrespectful to all of the people who have been working so hard to counteract the effects of this pandemic. To prorogue during this time period is very challenging.
    The Westminster style of democracy relies on a functioning media so that the public can be informed, good or bad, of the tools that we provide the government to conduct itself in a functioning—
    Thank you.
    Next we have Mr. Turnbull for five minutes.
    Thanks, Madam Chair.
    While I appreciate this discussion very much and I think it's an important one, I totally disagree with some of the assertions of the member who came before me.
    I think this is a conversation about how you prove the motive or intent behind prorogation. I would ask Ms. Brock this.
     To your knowledge, who introduced Standing Order 32(7)?
    The Liberal government did.
    Right. It requires that reasons be provided. That's exactly why we have tabled a document that outlines extensively the reasons the Prime Minister used this prerogative that he had. Is that your understanding?
    Yes. It's very important committee work, and that Standing Order is also important, I believe.
    Who ultimately decides whether or not those reasons are justified?
    Ultimately, it's the public.
    Thank you for that.
    Mr Lagassé, in your remarks you talked about prorogation being used to clear the slate and start afresh, often citing significant events. Would you consider a global pandemic to be a significant event?

  (1320)  

    Certainly, if one were trying to identify the clearest reason for prorogation, a significant event such as a pandemic could be, and probably in this case would be, offered as the most legitimate reason.
    Could that shift the agenda of the executive branch of government significantly?
    Yes, absolutely.
    Does that seem reasonable?
    It does.
    Great. Thank you.
    When you talked about tactical or hardball prorogations—
    There is a problem with your mike, Mr. Turnbull. We'll just pause for a minute.
    Mr. Turnbull, it's Justin here in the committee room. You might want to unplug your mike and plug it back in. That sometimes addresses the issue.
    Madam Chair, we'll have to suspend while we try to fix this.
    Okay.

  (1320)  


  (1320)  

    Mr. Turnbull, you are sounding better. I will resume the time and you can carry on.
    Thank you.
    My apologies. I was beginning to ask about tactical or hardball prorogations, which is a term that Mr. Lagassé used. I wonder if you could comment on whether the prorogation of 2008 by Prime Minister Stephen Harper would be, in your view, a tactical or hardball prorogation. It was said, in many cases, to have avoided a confidence vote. Would you agree with that?
     I would say it was hardball, but as you'll see at the end of my remarks, I also point out that there may be a justification where the government feels that the Commons or parties in the Commons are engaged in an equal degree of hardball. You can ask, was that effort to oust the government immediately after a confidence vote an equal measure? But yes, sir, I will say that in that case I would qualify it as such.
    Thanks.
    Were you aware that Stephen Harper's government also prorogued for 32 days in 2007?
    Yes, sir. Or in 2009, you mean, sir?
    No, in 2007 for 32 days, in 2008 for—
    Prorogations as a routine procedure, you mean, in a non-controversial setting, correct?
    Yes, in 2008 for 53 days, in 2009 for 63 days and 2013 for 33 days. Were you aware of those over six years, those four prorogations?
    Yes, I'm aware of prorogation.
     I would point out, though, I think an interesting facet. A number of people have raised the number of days in Canadian prorogations. We should also look to the United Kingdom, where they are oftentimes about a week long. We should do a comparative Westminster perspective as well.

  (1325)  

    Thanks.
    On that point, were you aware, Mr. Lagassé, that prorogation delayed the restart of Parliament by only two days?
    Yes, I was, but I would point out as well, though, that the number of sitting days that Parliament lost overall was cause for concern. Just the general propensity in the pandemic of the inability of Parliament to sit as often as it might want to was an issue.
    Were you aware of this committee, PROC, doing the hard work of trying to figure out how to operate virtually and have the House of Commons actually sit throughout the pandemic? Did you know that we had to fight hard with opposition parties for changes to the Standing Orders to actually co-operate to allow us to operate virtually?
    Yes. I was following quite closely. My concern, though, is that—
    Thank you for that.
    What about voting virtually? Were you aware that voting is such a key aspect of our parliamentary proceedings? Were you aware that we had to fight tooth and nail and debate at length to get opposition parties to agree to allow us to vote by video?
    [Technical difficulty—Editor]
    We weren't able to get your answer, but it will have to be a short one.
    Because they were seeking in-person sessions, I believe.
    Yes, which would have put people's health and safety at risk. The—
    That is all the time we have.
    We will carry on with Mr. Lukiwski, please, for five minutes.
    Thank you very much, and thank you all to our witnesses for being here.
    I want to go back to a question that Professor Turp answered earlier. The same question will be posed to all of our witnesses.
     When Ms. Vecchio asked Mr. Turp, given this particular circumstance of prorogation—not in the normal sense but in this particular situation where the government prorogued, and whether in Professor Turp's opinion, they did so for political or tactical reasons—he considered it to be an abuse of power.
    I would ask Professor Lagassé, Ms. Brock and Ms. Messamore the same question. Given the particular circumstances of this government proroguing, which effectively shut down committee work for over a month, and the necessity of prorogation being questioned by all of our witnesses, would you consider this to be an abuse of power?
    Professor Lagassé, I'll go with you first.
    I would say that it was regrettable, but not necessarily abusive.
    Problematic, but not abusive.
    I would again say, no, that it's not an abuse of power. I think the Crown is there to protect, in a true case of abuse of power, as a kind of constitutional fire extinguisher, and I don't think, given the circumstances, that it fit that criteria, despite what we've all agreed are regrettable circumstances.
    Thank you.
    I'd like to go back, then, to the discussion we had about the necessity of this prorogation. Despite the fact that the government has submitted a report, which I find lacking in detail and rationale, I would like to ask the four of you again whether you think this particular prorogation, given all that has happened since, was absolutely necessary, in your opinion.
    I will start with Professor Turp.

[Translation]

    Anyone who claims that it is abusive logically also thinks that it was not necessary. I respect my colleagues' points of view, but I believe that it was both abusive and unnecessary.
     I would be curious to find out the public opinion in Canada and whether people found prorogation to be abusive, both this time and under previous governments. I think Conservative governments abused this prerogative in 2008 and 2009.

[English]

    No, I don't believe it was absolutely necessary—not in terms of the procedure itself, nor in terms of the length.

  (1330)  

    No, it was not absolutely necessary, but ultimately that is the call of the Prime Minister.
    It most certainly is, and let me make a comment on that. That's why I asked the question previously about whether, in your opinion, you consider this to be an abuse of power. Certainly it is within the Prime Minister's prerogative to prorogue whenever he feels he should for either political reasons or other reasons of an emergency nature. However, given that the Prime Minister exercised his prerogative to prorogue on the eve of several committees receiving information that could have further implicated the government in the WE scandal, I find the timing of the prorogation was curious, to say the least.
    Dr. Messamore, do you think the prorogation in this specific instance was necessary?
    Again, if it is to be understood, as I think it should be, as a routine procedure to set out a government agenda, then I would say it was necessary in that sense, in the light of changed events.
    I have one minor point. I don't think the term “Prime Minister's prerogative” is accurate here. It is the prerogative of the Crown, exercised on the advice of the Prime Minister. That is a minor but important point.
    You're quite right. I apologize for that.
     I know we're running over time right now and we have question period coming up, so I'll conclude my questions.
    Thank you. I wanted you to get your round in. We did have a bit of a technical difficulty there.
    That brings us to the conclusion of today's testimony. I would like to thank all of the witnesses. All four of you have brought great insight to the beginning of our study, so thank you for taking the time to be here. We know you are all very busy.
    With that, I will adjourn for today, and we will see you all back after the winter break when the session resumes. Happy holidays.
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