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Question of Privilege - on government's refusal to appoint a government leader


Hon. Leo Housakos: Honourable senators, pursuant to Senate rule 13-1, 13-2(1), 13-3(1) and 13-3(4), and pursuant to written notice given earlier this day, I rise to give oral notice that I shall raise a question of privilege this day, December 8, 2015, with respect to a question of privilege regarding the government's failure to appoint a government leader in the Senate.

For the first time in 148 years of Confederation, the Senate is without a government leader.

This government's refusal to appoint a government leader is an affront to Canada's parliamentary system and in contempt of the dignity of Parliament, but in particular, it is a violation of all senators' privileges, affecting the ability of the Senate to carry out its functions as stated in Senate rule 13-1.

Perhaps the most obvious breach of our privilege resulting from the government's failure to appoint a government leader is the violation of Senate rule 4-8(1)(a), which says:

. . . a Senator may, without notice, ask a question of:

(a) the Leader of the Government, on a matter relating to public affairs;

Furthermore, without a government leader, the Senate is left to find alternatives to our established rules and procedures in order to conduct the business of the Senate.

This is, as stated in rule 13-2(1)(c), "a grave and serious breach" of the most fundamental privilege of the Senate, the right to regulate our own affairs by establishing our own rules of procedure and enforcing those rules.

With that said, I am prepared to move a motion seeking genuine remedies should there be a ruling that this constitutes a prima facie breach of privilege.



Senator Joyal: Thank you, Mr. Speaker. I would like to wish you success in your new role. I have no doubt that, over the coming years, you will demonstrate the skill, diplomacy and intelligence required to discharge the duties of the Speaker of the Senate. I do wish you every success.

Before I enter into the crux of the question, I want to also thank Senator Housakos for his performance as former Speaker. I want to say to you, Senator Housakos, for the words that you published in your open letter dated December 3, which was the day before you were replaced in the Speaker's chair, are very telling. I suggest that you circulate them to all the senators of this chamber.

I will quote one paragraph, if you don't mind, and it speaks a thousand words. You wrote:

As Canada has evolved, so too has the role of the Senate while remaining as relevant as ever. The Senate improves, suggests, and advises legislation, but understands the critical importance of representative democracy in a modern society.

All of us should reflect on those words during the Christmas recess. There's a lot of food for thought in that open letter.

Again, I want to thank you personally and wholeheartedly for the contribution you made in defence of the institution at a very crucial time of its life. Thank you, senator.

Hon. Senators: Hear, hear!

Senator Joyal: I want to join in on this debate because I feel that we are in a period of change. As in any period of change, there is uncertainty. This chamber today is not the one it was when I entered it as a new senator 18 years ago. I'm supposed to leave in 2020, four years from now, and I'm sure that when I leave this chamber, it might be a totally different chamber than I have known during the 22 years I will have served here.

The question you raise is an essential one. As a senator, do I have the right of having a government leader in the chamber to perform my duty as a senator? This is essentially your question. It is an important one because, as you stated quite eloquently in your presentation, we are a chamber in the model of Westminster. It's enshrined in the preamble of the Constitution: "a Constitution similar in Principle to that of the United Kingdom." In other words, the Westminster model is the way that this chamber is devised: a pro and con side — a government and an opposition or a majority and a minority.

This essential division of minds is based on the principle that it is from debates that truths come out. The Supreme Court recognized this a long time ago.

You will allow me to suggest a quotation from the Supreme Court in a case referenced in the Alberta statutes. In 1938, former Justice Duff, very learned and very well respected among the legal profession as an authority, stated the following with respect to the very question raised by Senator Housakos. He said that the preamble of the Constitution

. . . shows plainly enough that the Constitution of the Dominion is to be similar in principle to that of the United Kingdom.

What does that mean?

The statute contemplates a Parliament working under the influence of public opinion and public discussion. There can be no controversy that such institutions derives their efficacy from the free public discussion of affairs, from criticism and answer and counter-criticism, from attack upon policy and administration and defence and counter-attack; from the freest and fullest analysis and examination from every point of view of political proposals.

In other words, the essence of our role is to debate. This is the core, the art, of the democratic principle. It's the debate. We have to be able to debate. Hence the question is raised: Do we need a government leader to be able to debate? Of course, when there is a government leader, there is an additional perspective in the debate. I'm not the government representative. Nonetheless, I certainly have a lot of opinion about the government's proposals in relation to the appointment process of senators. That is not the subject of the day. I hope it will become the subject of the day. I will certainly join the debate on that issue.

I come back to the fundamental point: Do we need a government leader to be able to debate, to perform our duty? It is important to understand that because, as we all know, rule 13-2(1) states very clearly the four essential elements, Your Honour, that you will have to consider in adjudicating on the question of privilege. The four elements that have to be present in any question of privilege include one that is very important: The question of privilege must ". . . be raised to seek a genuine remedy that the Senate has the power to provide and for which no other parliamentary process is reasonably available."

In other words, do we have the power to order the government to appoint a government representative? My humble opinion is no, but we have the means to have the opinion of the government on the floor of this chamber. As my colleague Senator Fraser said earlier, and as the Honourable Senator Carignan proposed in his motion today to summon or invite a minister of the Crown or an officer of Parliament or a president of an agency of government to come and testify and answer our questions, we certainly have the means to keep the government accountable.

I come back. Do we have the power to order the government through a motion today to appoint a government representative or a government leader here? My humble answer to that question is no, we don't have that power. We can express the wish. We can hope. We can solicit. We can send somebody on our behalf to make those representations to a government officer. But the executive doesn't have the right to sit in this chamber, and we don't have the right to request the executive to sit in this chamber. That's not the way we have been framed. That's not the way the Westminster model functions.

It is important to remember that even though the Leader of the Government is recognized in our statute and in our rules, that doesn't give us the corollary right to compel the government to appoint a government leader. The government leader is mentioned in the Parliament of Canada Act. I will provide the quotes. It's mentioned in section 19.1.3 of the Parliament of Canada Act, where it states:

The Leader of the Government in the Senate, or the nominee of the Leader, and the Leader of the Opposition in the Senate, or the nominee of the Leader, may, in accordance with the rules of the Senate, change the membership of the Committee —

Of Internal Economy.

— from time to time . . .

So there is a role for a government leader in our statute. There's no doubt about it. That's why, having a role, there is a special salary attached to it. It's at section 62 of the Parliament of Canada Act. If you look at it, it will give you the amount, $67,800. In other words, there's no doubt that the government leader is recognized, as much as it is recognized in our standing Rules of the Senate.

I will list the various roles that the government leader has in in this chamber. Let me recite them quickly. The government leader is the only one who is entitled or has the "privilege" to move allocation of time. If there is no government leader, there is no allocation of time as our rules stand right now. The second one is the government leader is an ex officio member of committees. If there is no government leader, there is no ex officio member of committees. The government leader can change the committee membership. If there is no government leader, there is nobody to change that. Fourth, the government leader is the only one authorized to table user fee proposals. Fifth, the government leader is the only one able to table responses to requests or government papers. The Leader of the Government can propose the motion of membership on the Conflict of Interest Committee, as you stated in your letter. Finally, and not least, the government leader is the only one to inform us that there is a message for Royal Assent. That's very fundamental. That's the way bills come into force. There's no doubt that in our rules, there are a lot of roles for the government leader. No question about that.

I come back to your question. This is what you have to adjudicate, Your Honour. Do we as individual senators on any side, this side or the other side, have the right to compel the government to appoint a government leader?

Senator Cools: No.

Senator Joyal: My answer is no. I have looked into the jurisprudence of the Supreme Court and the report that was tabled in this chamber in June 2015, chaired by our esteemed colleague Senator White as Chair of the Rules Committee, a report entitled A Matter of Privilege: A Discussion Paper on Canadian Parliamentary Privilege in the 21st Century.

You were, Your Honour, the chair of the subcommittee of the Rules Committee that adopted this report. Of course, when I read that Senator Housakos was raising a question of privilege, I said, "My God, what did we write on this issue?" We have to be consistent with what we said a couple of months ago.

I found this in the report. Very interesting. I think we were good, as much as I can read the report again. I will quote page 11 and page 23 of the report.

Page 11: A report from the U.K. Parliament of 2013 quoting a decision of our Supreme Court in Vaid. I know that some members will remember the Vaid case in 2005. I will come back to it. What does our report state?

Absolute privilege attaches to those matters which, either because they are part of proceedings in Parliament or because they are necessarily connected to those proceedings, are subject to Parliament's sole jurisdiction.

One of the advantages of the "doctrine of necessity" is that it ensures a degree of flexibility. The working practices of Parliament change, and our understanding of what is or is not subject to Parliament's sole jurisdiction needs to adapt and evolve accordingly.

Our friend Senator Cools stated that Question Period is not something that is linked to the very nature of this institution. We can have no Question Period.

There were days there was no Question Period and we were totally able to perform when, for x, y, z reasons, the government leader at the time, Senator Carignan, was not in his seat for all kinds of reasons. There were days when the leader on our side, when we were the opposition, didn't want to have questions, and we skipped Question Period. What we did that day was not presumed illegal or null and void.

It shows that our practices evolve. Now we have nine independent senators —

Senator Cools: And growing.

Senator Joyal: According to what we were told on December 3, 22 more independent senators will come into this chamber in the next 12 months. That will change something in this chamber. There will be something changing, there's no doubt in my mind. We will have to find a way to accommodate those new senators to have them working on committee, while now they have to have permission to take the seat of one party or the other. We know how it works, but that will change.

Does it mean that my privilege as a senator will be breached because that will happen? My answer is no. I have no right to say, "Enough independent senators" because, as a member of the independent Liberals, I will be overwhelmed by independent senators. They will be greater in number than the Liberals, because that's what will happen. Just take your calculation and you'll see that what I'm telling you is the future.

We have to live in that context. We can fight it. Of course, we can. We can say, "Well, this is against the way we have functioned traditionally over 147 years." That's what I told you at the beginning. The way I entered the chamber 18 years ago and the way I will leave it 4 years from now, it will be a different chamber. Will that mean that my privileges will have been breached? Because that will be a fundamental change of the nature of this institution, with nothing much more than not going to court, not even having legislation to be adopted. Of course, we will have to look in front of one another and read our standing order and reflect that in the standing order. The standing order, as my colleague Senator Andreychuk would say, is an evolving document. We adapt our rules to our practices, and our practices evolve slowly, but they evolve in respect to our right to debate.

I come back to your very fundamental point. We have the right to debate. This is the Bill of Rights of 1689. That's the fundamental right of Parliament. Inasmuch as this right is not impinged upon, there is no breach of privilege.

I thank you for having raised this question, Senator Housakos, at this stage because it gives us the signal; it rings the bells that we have to think about what's looming ahead. Of course, what's looming ahead will displace the seats. It will displace the furniture. We will have to think of how we proceed. As I say, we can resist that. There is no doubt about it. We can stick our heels in the sand and say no to anything but, nevertheless, they will come. Those 22 will come. Those five will come. Among the five, as was announced on December 3, there will be a senator who will be the government representative. I reacted much as you did, Senator Housakos. My goodness, I read English; "government representative" is not the leader of the government. It's not the same.

But I saw Senator Carignan being a government representative without being a member of cabinet. I know that it changes status because he was not part of cabinet decision making and, with his not being part of cabinet decision making, we could not expect, on that side, that he would be able to answer all of the questions because he didn't participate in all of the steps leading to a government bill on very difficult issues, like Bill C-51, for instance, that we had in this chamber and that was debated and studied and so forth. It changed. It impacted on our work, but it did not prevent us from exercising our right to debate. That is essential.

Humbly said, Your Honour, and, again, thanks to Senator Housakos. I don't think that the four conditions to establish a case of prima facie allegation of breach of privilege, according to rule 13-3, have been demonstrated, but there is no doubt that it was a good exercise for us at the opening of this session to try to reflect on where we are heading and how we're going to cope with the changes that are looming ahead.