Question of Privilege – Sen. Dalphond

By: The Hon. Pierre Dalphond

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Parliament and the Supreme Court of Canada, Ottawa

Hon. Pierre J. Dalphond: Your Honour, I have a question of privilege.

Honourable senators, I rise to raise a question of privilege without notice, pursuant to rule 13-4. I do so because the motion before us, brought in this way at this time, would breach the privilege of senators not in attendance due to the circumstances of the COVID-19 pandemic. With the amendment defeated, we resume debate, and we are preventing people from participating. Specifically, this motion will deprive these senators of their rights under rule 12-2(3). That rule provides that senators appointed to the standing committees and standing joint committees shall serve for the duration of the session. The motion before us would suspend this long-standing rule of the Senate, established many years ago.

The change contained in this motion would be concerning at any time because it reduces the structural independence of senators, with the effect of centralizing power among leadership. However, under the circumstances of the pandemic, this change brought in this way, at this time, reduces the privilege of senators.

With hybrid sittings not beginning until next week, many senators are unable to attend these sittings due to the very serious — and during travel, potentially unavoidable — risk of COVID-19. These senators find themselves in the situation of being unable to intervene, as their right may be removed by the motion being contemplated now. These senators can neither enter debate nor vote on this motion at this time. Nor can these senators prevent the Senate from sitting, from considering this motion or from voting to remove their individual rights as senators.

To establish a prima facie case of privilege, we must consider whether four criteria have been met, as set out in rule 13-2(1). First, a question of privilege must be raised at the earliest opportunity. In this instance, this condition is satisfied according to rule 4-11(2):

A Senator may raise a question of privilege relating to:

(a) a notice given during Routine Proceedings only at the time the order is first called for consideration . . . .

It was called for consideration for the first time today.

Second, a question of privilege must be “be a matter that directly concerns the privileges of the Senate, any of its committees or any Senator.” As noted on page 223 of Senate Procedure in Practice:

The standard definition of parliamentary privilege, which is still used today, was first formulated in 1946, in the 14th edition of the Treatise on the Law, Privileges, Proceedings and Usage of Parliament of Erskine May, and reads as follows:

Parliamentary privilege is the sum of certain rights enjoyed by each House collectively … and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined by statute.

And, I could add, by the Rules of the Senate.

Further, Senate Procedure in Practice continues:

The purpose of privilege is to enable Parliament and, by extension, its members to fulfill their functions without undue interference or obstruction. Privilege belongs properly to the assembly or house as a collective. Individual members can only claim privilege if “any denial of their rights, or threat made to them, would impede the functioning of the House.” In addition, members cannot claim any privileges rights or immunities that are unrelated to their functions in the house.

In this instance, during the second wave of COVID-19, many senators are unable to attend in Ottawa in compliance with public health advice, emergency measures and necessary precautions. Yet, the Senate will and perhaps must sit in any event, including to play its role in the emergency response such as by passing the COVID relief measures. During this time, many senators are unable to participate in debate, to propose amendments or to vote on amendments or on motions. If the Senate were to debate or vote on this motion at this time — it’s not a government bill or an urgent matter — senators may incur a long-term denial of their individual rights under the Rules without any reasonable ability or opportunity to intervene.

In contrast, next week, when hybrid sittings commence, the situation will be such that dealing with this motion would not be a breach of privilege, as senators may reasonably participate in proceedings unimpeded. There is a broader collective issue of privilege at play. As noted on page 368 in the Companion to the Rules of the Senate, in discussing the second criterion, the matter directly concerns the privilege of the Senate if interfering with “. . . the rights of the Senate to the presence of its members . . . .”

On this point, we now have large numbers of senators who cannot attend in person. If we proceed with this motion at this time, we will compound what may well be this larger issue of privilege through an undermining of individual rights when parliamentarians are trying to make the place function for Canadians, albeit imperfectly. It is not my intention in raising this question of privilege to seek to invalidate Senate proceedings that have taken place under COVID-19 circumstances. Perfection must not be the enemy of governments during an emergency, and COVID sets its own rules. However, I do think that taking away individual rights under these circumstances crosses the line.

With this motion at this time, senators will lose their rights under the Rules for the remainder of the session, potentially for some years — though I’m not sure — impeding the functioning of this house by undermining the independence of senators from leadership as protected by rule 12-2(3). This includes the performance of committee work. As well, committee membership may be called into question with the problematic removal of this rule. The second criterion is therefore met with this matter directly concerning the privileges of the Senate, its committees and individual senators.

The third criteria for a prima facie question of privilege is that it is raised to correct a grave and serious breach. Again, citing the Companion to the Rules of the Senate, this means something that for example “. . . would seriously undermine the ability of committees to function and would even jeopardize the work of the Senate itself.”

If, in the present circumstances, many senators lose their right to hold committee seats for the duration of the session through this motion, the result will seriously undermine the ability of committees to function. We have a recent example of this kind of uncertainty resulting from the suspension of rule 12-2(3) by the March 11 motion of Senator Woo. Unlike in this situation, I will note that the motion that was adopted then created problems.

In May of this year when the Progressive Senate Group gained recognition, Senator Munson was removed from the Social Affairs and Internal Economy Committees despite having been designated as a member of both committees in a specific order of the Senate on April 11 made subsequent to the motion of March 11.

As well, Senator Harder was removed from the Finance Committee. The result was that these senators’ memberships of these committees were subject to interpretation and doubt. For that reason, on June 16 of this year, government representative Senator Gold moved that the motion adopted by the Senate that, for greater certainty, clarified that Senator Munson and Senator Harder continue to hold their seats.

The third condition is met as contested committee membership is a grave and serious matter for the proper functioning of the Senate.

Fourth, the question of privilege must be “. . . be raised to seek a genuine remedy, which is in the Senate’s power to provide, and for which no other parliamentary process is reasonably available.”

In the situation before us, a genuine remedy will be, by agreement or by motion, including pursuant to a prima facie finding of privilege, to hold off any votes on amendments or on the main motion until hybrid sittings commence in less than six days from now. Not only will this be a genuine remedy to this problem of circumstances, but only the Senate can provide such a remedy. Moreover, other parliamentary processes will be unavailable. As noted in the Speaker’s ruling on March 22, 2018, such processions may be “. . . debate, amendments, referral to committee, and, eventually, defeat or adoption of the motion.”

These are the matters at stake now. In this case, these processes are unavailable for senators who are unable to attend the Senate and who cannot participate in this debate, including proposing amendments and voting. The fourth criterion is therefore met.

Honourable senators, with the four criteria satisfied, I submit that we have a prima facie question of privilege, including a suitable remedy easily at hand.

As rule 13-1 states:

A violation of the privileges of any one Senator affects all Senators and the ability of the Senate to carry out its functions. The preservation of the privileges of the Senate is the duty of every Senator and has priority over every other matter before the Senate.

Colleagues, I hope we will find, together, a path that protects the rights of all senators, as well as, perhaps, the collective rights of the Senate to consist of senators with individual rights until all senators may participate in deciding upon the motion which is bearing in consequences for all of them. Thank you.

Please click here to read the full text of this debate.

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