Good morning, everyone. I call this meeting to order. Welcome to meeting number 24 of the House of Commons Standing Committee on Procedure and House Affairs.
I'm going to go through some of the formal remarks, just because we've had so many changes of membership and perhaps changes in staff, and especially for the benefit of the witnesses we have before us today. Then slowly I'll reduce my introductory remarks once everybody is comfortable with what is happening today,
Today's meeting is taking place in a hybrid format pursuant to the House order of January 25, 2021.
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Today, for the first half of the meeting, from 11:00 to 12:00, we have witnesses.
I'd like to welcome before us today Professor Duane Bratt, a professor of political science at Mount Royal University, and Professor Patrick Taillon, professor in the faculty of law at Université Laval.
Before hearing from the witnesses, who both have opening statements, I'd like to let members know that following the panel of witnesses we will have an election for the first vice-chair position, which fell vacant when Mr. Doherty left the PROC committee. Hopefully we'll be able to do that right after this panel.
We will follow that by going in camera. You've been provided a link by email. We will be continuing with our draft report on the election and COVID-19 study. Once the draft report is completed and approved, we will hopefully move on, if we have some time left, to committee business so that I can update you on the prorogation study.
Professor Bratt, would you start with your opening statement, please.
Thank you to the committee for inviting me. I appreciate doing this by Zoom so I didn't have to fly to Ottawa, as much as I enjoy Ottawa.
I will read my opening statement and then I can flesh it out during the question period.
Prorogation is an important parliamentary tool. It allows for a government reset in between elections. However, it's a tool that can be and has been abused by governments, particularly when they're in a minority situation. Before getting to the matter of August 2020, I will give a short list of recent and controversial prorogations by both Liberal and Conservative governments.
In 2002, Prime Minister Jean Chrétien prorogued Parliament. This allowed Chrétien to avoid tabling a report to the House of Commons public accounts committee regarding the sponsorship scandal. Unusually, this was done by a majority government, not by a minority government.
Then we have the episode in December 2008 with Prime Minister Stephen Harper. This was probably the most controversial case in Canadian history. Harper had won a minority government weeks before, but was facing a non-confidence vote which he would surely lose. The other party leaders, Stéphane Dion, Jack Layton and Monsieur Duceppe, signed agreements signalling their intent to defeat the government. Because it was so close to the previous election, there would likely be no fresh election, and instead Stéphane Dion would be permitted to form a new government. To delay the vote, Harper prorogued Parliament. I will return to this case again.
The third case was January 2010 to March 2010, also by Prime Minister Stephen Harper. The stated reason was to keep Parliament in recess for the duration of the Winter Olympics in Vancouver. However, it was strongly suspected that Harper wanted to avoid ongoing investigations in the Afghan detainees affair. This case was quite similar to the August 2020 prorogation: the minority government facing damaging committee investigations.
This brings us to the August 2020 to September 2020 prorogation.
The reason for the throne speech was prorogation. The official reason for the decision to prorogue Parliament was to allow a government reset to address the COVID-19 pandemic and its economic fallout. Without a doubt, this is a very valid reason and would absolutely have justified proroguing Parliament. Responding to COVID-19 probably did play a role in the decision-making that led to the decision to prorogue.
However, I would argue that a much more important rationale was the WE scandal. The Canadian government had given a sole-source contract to the WE Charity to administer a student volunteer program. However, WE had very close ties to the families of and then finance minister Bill Morneau. The scandal led to Morneau's resignation and increased scrutiny from parliamentary committees into the role of Trudeau, the Prime Minister's Office, other ministers and senior members of the public service. Proroguing suspended those investigations and allowed the Trudeau government six weeks to try to change the channel with Canadians.
There are two key pieces of evidence that I have compiled to justify my argument.
First was the timing of the prorogation. As I said, COVID-19 became an important issue in March 2020. The government responded with a series of health responses and unprecedented economic responses throughout the spring of 2020. If at any time in the spring of 2020, the government had decided to prorogue Parliament in order to give it more time to effectively respond to COVID-19, that would have made perfect sense. Waiting until August, and only after the WE scandal had been percolating for weeks with future bad news for the government, showed what I believe was the real political calculation.
A comparison to Stephen Harper in 2008 is in order.
In the fall of 2008, as the global financial crisis was hitting, that was a legitimate justification to prorogue Parliament, even though we had just had a federal election weeks before. In fact, the new throne speech did respond to the global financial crisis. However, as I argued above, the real reason was to delay an imminent non-confidence vote in the hopes that the Liberal-NDP-BQ coalition would collapse, which is exactly what happened.
Second, was the throne speech itself. Speeches from the throne are usually a one-day story. There is some buildup, but they are usually vague visions of the future direction of the government. However, the one that the government delivered in September 2020 was supposed to be significantly different.
There was speculation for weeks about its contents. It would be delivered in the midst of the COVID-19 pandemic and record levels of government spending. The speech followed Parliament's prorogation with a looming threat of a non-confidence vote that would plunge Canada into an election. If these stakes were not high enough, Trudeau and the opposition leaders would give separate television addresses to Canadians, timed for the supper-hour news in Ontario and Quebec, but sadly for those in the western provinces like myself, it was in the afternoon, and most people missed it.
Unfortunately, despite the hype, there was not much substance to the Speech from the Throne. If the reason for prorogation was in fact COVID-19, the Speech from the Throne would have been laser-focused on how the government would respond, both through health measures and economic responses. It would have indicated new programs and policies. Instead, the content was a rehash of previous federal programs, such as the Canadian emergency wage subsidy, and promises that had been repeatedly made, such as strengthening child care programs and creating a national pharmacare program.
These could have been refocused as a policy response to COVID-19, but were not really. Instead, it resembled a campaign speech for the next election, which could have arrived soon after.
The television address was even worse. I'll skip over some of this stuff. The television address was really an opportunity for to summarize the throne speech in his own words, and not the Governor General's, that had only been delivered a couple of hours previously. This was a campaign speech.
Ultimately, the Speech from the Throne was not primarily about a reset due to COVID-19. Rather, it was an elaborate effort from the government to distract Canadians from a political scandal.
With that, I will conclude my opening statement, and wait for questions.
I'd like to thank the committee for the opportunity to participate in this discussion on the circumstances surrounding the government's use of prorogation this past summer. I will try to keep my remarks brief.
The first point I would like to make is this: prorogation is a controversial mechanism in our parliamentary law. It can be used as a delay tactic to avoid the usual mechanisms for settling disputes. The strength of the parliamentary system, as compared with the presidential system in the U.S., is that it normally prevents a dispute between the House of Commons and the executive branch from dragging on. There are ways to settle disputes: the dissolution of Parliament and the non-confidence vote. Who decides? Voters.
In certain circumstances, prorogation can be used to pervert the functioning of a parliamentary system, which relies on the use of non-confidence votes and dissolution to settle disputes. Thus, prorogation is used as a tactic to delay and prevent a confidence vote. That's not always the case, but it does happen.
In the summer of 2020, a minority government faced an impending confidence vote and thus a threat. The same thing happened in December 2008, but of course, the threat was more explicit then than it was in the summer of 2020. On top of that, the government was dealing with a parliamentary investigation into the WE Charity scandal and the unpredictable crisis caused by the COVID-19 pandemic.
In the government's defence, these issues are often seen through a glass-half-full or half-empty lens. It could be argued that the and the finance minister had at least co-operated with the investigation by taking the time to appear before the committee prior to the proroguing of Parliament. Be that as it may, prorogation put an end to the investigation. Was that the purpose or just a side effect? One thing is clear: it was one of the results.
That said, beyond the matter of the investigation, the government's use of prorogation in the summer of 2020 strikes me as all the more questionable. After all, it had the effect of putting the government's short-term interests—changing direction, putting an end to the investigation and shutting down the study of bills—ahead of the best interests of the federation, in my view, given the unprecedented crisis the country was facing. If the government had been acting in the best interests of the federation, it would not have deprived itself of the parliamentary process and legislative toolbox in the midst of a crisis.
In the weeks and months when Parliament was shut down, the government may have needed to pass legislation amending the Canada emergency response benefit or administer the Emergencies Act, for example. Thank goodness that wasn't necessary, but given how unpredictable and hard to manage the crisis was, the best interests of the federation demanded that Parliament and the legislative process remain accessible. By shutting them down, the government put all of its eggs in the executive powers basket and sent the message that it could do without legislative tools in the massive undertaking that was the response to the COVID-19 pandemic. I would say the government confused its legitimate interests with the best interests of the federation.
The government could have done better in two ways. First, it could have opted not to prorogue Parliament. By not proroguing, the government would not have taken the risk it did. Second, if it felt so strongly about proroguing Parliament, the government could have handled it better by proroguing for a much shorter period of time. The results would have been the same: terminating the investigation, ending all proceedings before Parliament and providing an opportunity for a throne speech. It would have been sufficient to prorogue Parliament for just a day. In that scenario, the government would not have taken the risk of forgoing the parliamentary toolbox and legislative process in the midst of a crisis.
In conclusion, determining whether a decision to prorogue Parliament is controversial and politically expedient depends on the context and political judgments, which ultimately lie in the hands of parliamentarians and voters. It's up to them to decide.
I humbly submit that the use of prorogation in the summer of 2020 was controversial and was a way to evade a possible confidence vote. Above all, it was a way to put an end to an investigation and to face a confidence vote weeks later on the agenda laid out in the throne speech, rather than as a direct result of the investigation findings.
If there is anything I can impress upon you, it is this: a shortcoming of our parliamentary system is that the rules around prorogation, and the powers of the governor general, the prime minister and the House of Commons tend to be unclear, unwritten and not enforced by the courts. They are referred to as constitutional conventions, and rather than mitigate crises, these unclear rules and conventions sometimes have the effect of exacerbating them.
The 2008 prorogation is a perfect example. The rules of the game were not clear, written down or enforceable by the courts. During the period of tension between Stephen Harper's minority government and then governor general Michaëlle Jean, the rules had the effect of exacerbating the crisis instead of alleviating it.
I applaud the committee for taking the time to examine how our institutions work. I encourage parliamentarians to consider codifying our unwritten rules more effectively, as New Zealand and the United Kingdom have done. That may be too bold of a request, but parliamentarians should not fear the taboo of constitutional reform. They must not turn a blind eye to the gaps in our institutions; those institutions deserve better and improving them is not something to shy away from.
Thank you, Madam Chair. I would echo your comments that these were very useful comments from both of the distinguished academics with us today.
Thank you to both of you for joining us.
Professor Bratt, I might start with you. You had made some interesting comments in your opening statements that hark back to comments made by Minister earlier this week. He told this committee that the one and only reason for prorogation was the reset for the COVID-19 crisis.
You rightly noted that it is an important issue and one that would in theory be worthy of a reset, but you made some interesting comments about the speech itself being basically a rehash of previous announcements and not really the grand occasion that might have been envisioned for a reset.
Would I be right in suggesting in your comments on this that the minister might have been putting a bit of a political spin on the one and only reason, and would you agree that the primary reason was a way to get out of the difficult political situation related to WE?
I'll throw open this next question to both you and Professor Taillon.
Are you aware of anything that would have prevented the from announcing at an earlier date, perhaps on August 18, that it was his intention to request prorogation from the Governor General at a future date, closer to September, but not formally requesting until closer to the date?
Professor Taillon, you made some interesting comments about putting the interests of government over the interests of Canadians, taking away the tools of Parliament during that period of time.
Are either of you aware of any blockages that would have prevented the from announcing his intention to seek prorogation at a future date but allowing committees, in particular, to continue their good work during that time period?
Thank you, Mr. Bratt and Mr. Taillon. Your comments have been very informative. I have countless questions for you, but I'll try to keep them as clear and simple as possible.
Mr. Bratt, you emphasized that prorogation is an opportunity for the government to wipe the slate clean, to reset the agenda. You also said that, after you heard the throne speech, it was clear to you that it did not signal a significant change in direction. Rather, you saw it as more of the same. You listened to the deliver his address to the nation that evening; he told us all to cough into our elbows and to download the contact-tracing app. There was no new information there. You cast considerable doubt on the idea that the government wiped the slate clean to reset its agenda. Nevertheless, let's assume that's what the government meant to do.
Mr. Taillon, you said shutting down Parliament was like taking away the executive branch's toolbox. Given the crisis we were facing, the government denied us access to legislation that could have helped people cope with the circumstances.
Mr. Lauzon said that we weren't exactly working hard during the summer, but I would remind him that four committees were meeting and the House was sitting regularly. Back in March, the opposition parties began working together in a very co-operative way, agreeing to sit as often as possible in order to find solutions to address the pandemic. As the House leader of the Bloc Québécois, I lived it. I had many discussions with the government House Leader to try to come up with effective measures in the face of the extraordinary difficulty of navigating the crisis.
Parliament lost six weeks that it could have been working. If the government had wanted to reset the parliamentary agenda and not take crucial time away from the executive and legislative branches—time they could have been working together—the government would have prorogued Parliament on September 18, the Friday before it was scheduled to come back. On Tuesday, Mr. Booth and Mr. Sutherland told us that that was something the government could have done—and it would have had it been putting the interests of Canadians and Quebeckers ahead of the interests of the Liberal Party. The government, however, had other interests in mind, not those of Quebeckers or Canadians.
On August 17, Mr. Morneau, the government's second in command, resigned during the worst economic crisis since the 1930s. My question is straightforward. Would you say the prorogation of Parliament on August 18 was a move to save the skin of the guy at the top, the Prime Minister?
We are here today because of a policy adopted by the Liberal government in response to the prorogations sought by former prime minister Stephen Harper. My understanding is that the policy was meant to prevent controversial prorogations and hold the government to account when it decided to prorogue Parliament.
The committee has heard very different opinions as to why the government prorogued Parliament. This study matters to me, and my hope is that we will be able to understand the type of precedent this creates and thereby ensure future governments are less likely to abuse the power of prorogation.
We have repeatedly heard that all roads led to the . Weare well aware that the prime minister is the one with the constitutional power to advise the governor general to prorogue Parliament. What we want to know are the reasons why that advice was given. We still haven't heard from the Prime Minister, himself, or had the opportunity to ask him questions.
Do you think the Prime Minister should appear before the committee as part of this study? Would that set a good precedent?
I'd like Mr. Taillon to answer first, followed by Mr. Bratt.
I certainly recognize that there are jurisdictional challenges, but the point I'm trying to ask you about and make is just that it wasn't in the previous Speech from the Throne because the pandemic actually raised that issue.
In fact, there were—at least in my view—three or four major things in the Speech from the Throne that were not in the previous one that emerged as priorities as a result of the pandemic. The other one I would reference for you is the support for the hardest hit sectors, which is certainly something that was featured in that speech, among many other things.
From my perspective, the speech had a lot of substance to it. Perhaps maybe not from yours, but I think there's evidence to the contrary.
I want to ask you another question about timing. I think the other pointed remark that you made was really creating a causal link between two things that happened in time. I know from studying science and understanding that...timing doesn't necessarily create a causal link. Would you agree with that?
My daughter didn't do her homework last night doesn't mean that's the reason I woke up grumpy this morning.
Thank you, Madam Chair.
It's quite clear that the prorogation sought by the government was politically motivated and tied to the WE Charity situation.
Mr. Turnbull, the honourable Liberal member, tried to tell us that the two throne speeches were different. Other than the part that involves interfering in an area of provincial jurisdiction—which all the provinces and Quebec came out against—I don't really see anything new.
I'd like to hear the views of the two witnesses, since they are both experts on the issue before us, but I don't want to put words in anyone's mouth.
Were there any significant differences in the new throne speech that would lead us to believe the government had a valid reason to prorogue Parliament? Is it clear from the throne speech that the government reset its agenda?
It's necessary to differentiate between the content of the throne speech and the effect of the reset.
The government is claiming that it has taken a new direction. Has it? I don't have an opinion one way or the other. I will say that, ultimately, I don't think that's what matters. If the government wants to deliver a new throne speech, it can use prorogation to do that.
The effect of the prorogation is what really matters. Prorogation has the effect of ending all of the parliamentary proceedings that were under way and resetting the agenda.
It is possible to have a government that wants to deliver a new throne speech and chart a new course without proroguing Parliament. The government is under no obligation to prorogue Parliament in order to pursue a change in policies. That goes to the very essence of our system. Ours is not an imperative mandate system. Members of Parliament and the government are there to serve the public interest, and they are free to change direction when the circumstances warrant such a change.
As I see it, the effect of the government reset is really what matters most, what makes the biggest difference. Why is the government hitting the reset button? What measures does it choose to bring back? What measures does it oppose? What is it shutting the door on once Parliament resumes?
I think all of that matters a whole lot. Obviously, context plays a part. It's not always possible to point to a causal link, in this case, between an ongoing investigation and the decision to reset the agenda. One thing is certain: once the House has returned, if the government does not co-operate with efforts to see the investigation through, it may be a sign that the reset had the intended effect.
I want to come back to my initial question but maybe in a new way.
In 2015, we had a and a party that formed a new government that recognized the problem with abuses of prorogation. Their answer was to require a report to be filed after prorogation. I think we're seeing that this answer comes up short in some ways. It's better than what we had before, but it's not the gold standard.
In your view, in regard to a government that was really keenly determined to prevent future abuses of prorogation, what are some additional steps that such a government could have taken, and could take now, if they were really focused on the question of preventing abuse rather than talking about it after the fact?
Monsieur Taillon, and then Mr. Bratt if we have time left.