PROC Committee Report

SUPPLEMENTARY OPINIONS OF THE OFFICIAL OPPOSITION

On August 18, 2020, Prime Minister Justin Trudeau pulled the parliamentary fire alarm.

His Liberal government had quickly become engulfed in a scandal carrying the putrid scent of corruption, and it only threatened to get worse.

Four committees of the House of Commons had started investigations of the Liberal government’s decision to enter into a $543-million contribution agreement with their ideological fellow travellers at WE Charity to deliver the Canada Student Service Grant,[1] a pandemic assistance program for young Canadians which, on the basis of the program design alone, raised a lot of expert eyebrows.

Thousands of heavily-redacted documents had been provided to the Finance Committee, for vetting by the Law Clerk and Parliamentary Counsel, just over a week earlier.  Their circulation to Committee members was imminent.  These records would prompt more questions than they would answer.

The Minister of Diversity and Inclusion and Youth, Bardish Chagger, had made two utterly unsatisfactory appearances before the Finance Committee and the Ethics Committee where, through hours of questioning, she dodged and ducked every question which might have led to facts and genuine answers being given.  Ms. Chagger’s summer performances led the Ethics Committee subsequently to conclude that she had “failed in her obligation to be accurate with a committee”.[2]

The night before, the Minister of Finance, Bill Morneau, announced his immediate resignation from the Cabinet—and his exit from public life—in a hastily organized, mid-evening press conference.  Mr. Morneau’s role in the WE Charity scandal was growing by the week as new revelations kept coming to light.  After more than a week of media leaks from within the Government that Mr. Morneau’s political career was toast,[3] he was, lo and behold, to be an eleventh-hour Canadian candidate to become Secretary-General of the Organisation for Economic Co-operation and Development (OECD).[4]

Meanwhile, Speakers’ Spotlight, the talent agency which represents members of the Prime Minister’s family, was due to deposit with the Ethics Committee, in the following 24 hours, information on the speaking fees and expenses paid to, or on behalf of, the Trudeau family during the Prime Minister’s time as a Member of the House.

For the Liberals, something needed to change—and quickly—to avoid this political disaster turning into a calamity.

It is little wonder that the Prime Minister sought to shut down Parliament—to cancel committee investigations, to block the disclosure of information revealing how much has been, and who has, paid to access the Trudeau family name, and to attempt to turn the political channel through a splashy Speech from the Throne (complete with an American-style evening address to the nation by the Prime Minister)—and reached for the parliamentary equivalent of the fire alarm, prorogation.

Despite all the positive Liberal spin the Government chose to put in its report to Parliament on last summer’s prorogation, which was the starting point for this study by the Standing Committee on Procedure and House Affairs, it was obviously an incomplete, self-serving, one-sided representation of why Parliament was prorogued.

In fact, even the senior government officials who appeared before the Committee declined to vouch for the report being “100% accurate”.[5]  The same senior government officials also confirmed that prorogation was, at least as far as the official machinery of government was concerned, a hasty venture, with the Privy Council Office being put on notice to draw up the paperwork only a few days, during the weekend, prior to the actual prorogation of Parliament.[6]

While the academic witnesses who also appeared before the Committee had divided opinions on the merits of August’s prorogation, there was a general consensus that the WE Charity scandal ranged from the “sole” reason for Parliament’s shutdown to the cancellation of committee investigations into it being an “unfortunate” casualty.[7]

Nonetheless, the Liberals’ approach to this exercise in government accountability made a mockery of the Committee and its reasonable effort to do meaningful work, starting with hearing from the actual decision-maker on prorogation, Mr. Trudeau.

Four-month Liberal filibuster blocked access to evidence and the truth

As much as we appreciated the perspectives shared by the several academics who appeared before this Committee in the course of its study, the simple point remained: we weren’t talking to anyone who had participated in the decision to prorogue Parliament and, therefore, could be held to scrutiny on it.

To quote Dr. Lori Turnbull, a political scientist who has written extensively on prorogation, “If this is going to be a successful reform does it not make more sense to have the Prime Minister come and tell you this?  The reasons are his.”[8]  Conservatives couldn’t agree more.

On February 2, the Committee extended invitations to several witnesses who had actually participated in the decision to prorogue or whose interests were directly implicated by the shutdown of Parliament, moving the Committee beyond hearing from a range of academic observers.

While many of those invitations went ignored, the Government House Leader, Pablo Rodriguez, and his supporting officials from the Privy Council Office, did accept their invitations.  However, their vague, sometimes evasive, answers, coupled with the many unanswered invitations, it was obvious that the Committee had to step up its efforts to get real answers.

On February 23, a Conservative motion was put forward which called for several witnesses to appear before the Committee, with a plan to escalate the situation in the event any declined the renewed invitation, along with obtaining the documents which Mr. Rodriguez and his officials would not voluntarily offer up.

That motion—which would have received the votes of a majority of the Committee—not to mention the entire work of the Committee, was held hostage by a Liberal filibuster, spanning more than 100 days, from February 23 to June 3. 

In the end, the Liberals, in partnership with the New Democratic Party, watered the motion down to the point of being meaningless: a further invitation would go to the Prime Minister and if he didn’t accept—which is what we long saw coming—the Committee would paperclip a note to that effect to this report.

The witnesses we sought to have come before the Committee had much to offer in giving us a complete, 360-degree understanding of how the political events of July and August 2020 influenced the Prime Minister’s decision to prorogue Parliament:

• Justin Trudeau: As the sole decision-maker on prorogation, he possesses the most direct knowledge and immediate reasoning for the Government’s decision.  There are countless questions which could be posed to him to determine, for example, how he reached his decision, what factors influenced his thinking, and how he intended to address or mitigate the consequences of shutting down Parliament.

• Katie Telford: As the Prime Minister’s Chief of Staff, she would be well-placed to speak to the Prime Minister’s thought process in reaching his decision, including what information and events helped to shape his decision, including any lobbying for that outcome, as well as the sequence and timing in reaching that decision.

• Bardish Chagger: The Canada Student Service Grant was her responsibility, officially at least.  She could speak to how she was preparing to face tough questions when the Government’s WE documents would become public and, despite their heavy redactions, pose many doubts about the credibility of her committee testimony.  The former Government House Leader could provide insight as to whether she was pleading with the Prime Minister to give her some reprieve by taking the heat off her and the WE scandal through the prorogation of Parliament.

• Bill Morneau: Given his resignation the night before Parliament was prorogued—and his suddenly unearthed interest in being OECD Secretary-General—he could speak to his conversations with the Prime Minister, whether he actually resigned, whether (and to what extent) his hasty OECD campaign was to give his fellow Liberals a fig leaf of credibility, and how the plans for prorogation figured in the strategic communications planning around the announcement of his departure from Cabinet.

• Chrystia Freeland: As the incoming Minister of Finance, the Deputy Prime Minister played a featured role at the Prime Minister’s press conference announcing prorogation, as he began the process of hitting the reset button on the Liberal government’s political fortunes.  While our Liberal colleagues extolled us, during their many-months filibuster, with various economic policy questions they would have asked, those would have been beside the point.  However, she definitely could have shed light on what strategic communications planning went into the diversion from prorogation which her new ministerial assignment provided.

• Craig and Marc Kielburger / WE Charity documents: At their July 28, 2020, Finance Committee appearance, they made many undertakings to follow up with additional information and evidence.  These were not provided in a timely fashion, and not ahead of prorogation.  They could speak to what insight into the Government’s plans to prorogue Parliament, or encouragement to stall in providing their answers to the Finance Committee, they might have received.  As we later saw from the Government’s WE documents, the Kielburgers were prolific correspondents with many senior Liberals, through e-mails and even LinkedIn direct messages; further correspondence records, had they been disclosed, might have revealed lobbying or encouragement for the Liberals to remove the pressure of committee investigations.

• Martin and Farah Perelmuter: Following media revelations that members of the Trudeau family had been paid a total of hundreds of thousands of dollars in speaking fees and expenses-paid travel, the Ethics Committee, on July 22, 2020, ordered the Perelmuters’ company, Speakers’ Spotlight, to produce, within a week, information on speaking engagements arranged for the Trudeau family, including clients’ names, and the fees and expenses paid.  On July 30, 2020, the Committee, as a gesture of good faith, extended Speakers’ Spotlight’s deadline to August 19, 2020.  That order fell when Parliament was prorogued the day prior to the deadline.[9] 

  The Ethics Committee would later hear from Mr. Perelmuter that he had consulted Trudeaus about the release of this information, and that he was “not able to disclose any other information” during his appearance.[10]  The Perelmuters could shed light on those consultations, the timing of the discussions, whether they were given direction on when to comply with the Ethics Committee’s order or assurances that they wouldn’t need to comply, and whether a draft response to the committee order was shared with their clients, as well as the fuller extent of their clients’ instructions.

• Prime Minister’s Office / Privy Council Office documents: In their February 16 appearances before the Committee, Mr. Rodriguez and senior officials from the Privy Council Office would not freely commit to provide the Committee with the documents which were requested during questioning, simply offering some variation of a glib “if it’s the Committee’s will” response.  These documents, as a contemporaneous record of transactions now almost a year old, could provide insight into what actually happened, help guide the questioning of witnesses, refresh memories cluttered by the events of the intervening year, and generally make for a more efficient use of witnesses’ time.

The Committee must complete this study, beginning with the Prime Minister’s testimony

Given that the Committee’s work is, quite frankly, half-done, Conservatives do not believe that this report should be the end of the story.  The Committee should get to the heart of the truth and hold the Government’s claims for its reasons for prorogation up to the harsh light of questioning in a parliamentary committee.

Our NDP colleague punctuated the Liberal filibuster with several interventions about the importance of hearing from the Prime Minister to make this reform successful, and to be able to write a complete report, such as these comments on the first day of debate:

I think it would be totally unsatisfactory as a precedent if the Prime Minister didn’t appear to speak directly to the issue of prorogation and the government’s reasons for prorogation….[11]

If there is a desire on the part of some members to move to a report, I’m really reticent to do that without hearing from the Prime Minister, as I say, because I think it’s a bad precedent.[12]

We’re disappointed that he resiled from his clear, principled position in voting with the Liberals to water-down the motion to re-invite the Prime Minister and to move onto a report without having heard from him.

Conservatives believe that the study of the government’s reasons for prorogation must be completed, which includes hearing from the Prime Minister and other key figures, within three months of the House concurring in the report.

The Committee’s decision to send the Prime Minister a third invitation earns marks for persistence—but, we all know it’s a pointless gesture because it will be ignored, like the first two invitations.  If a majority of the Committee was serious about hearing from the Prime Minister, it would have recommended that the House order his attendance at the Committee.

To support completing this study efficiently, Conservatives recommend:

• the Committee be empowered to order the Prime Minister’s attendance as a witness; and
• the House order, for the benefit of the Committee, the production of the Prime Minister’s Office and Privy Council Office’s records, from June 25, 2020,[13] to August 19, 2020, concerning options, polling, plans and preparations for the prorogation of Parliament.

The Liberals’ prorogation reform must be strengthened, lest it be written off as a cynical farce

When the Government proposed the addition of Standing Order 32(7) to the House’s rule book, Conservatives cynically surmised that a government would just table the press release it used to announce prorogation.  Well, that turned out to be the case, more or less.

Now that this new accountability mechanism on prorogations has practical experience, there are some ideas which immediately spring to mind if it is to become a more meaningful exercise in accountability.

To start, we are pleased to support the Committee’s recommendations that future prorogation reports must be tabled by the Prime Minister, in acknowledgement of that office-holder’s personal responsibility for the decision to shut down Parliament.

During the study, we heard suggestions that a prime minister should be required to appear before the Committee to defend his or her decision to prorogue Parliament.  As a general matter of political accountability, it makes perfect sense that a prime minister should want to appear before the Committee.    Certainly, in the present case, the inability to get answers from any source at all has made it necessary to compel the Prime Minister’s appearance.

However, making it a permanent procedural obligation, with its implications for both the collective privileges of the House to have and direct the service of its Members and the individual privileges of those Members to be free to engage in the proceedings of Parliament as they see fit, is something which should not be rushed into on a mere whim, without the benefit of expert evidence before the Committee.  Therefore, we are pleased that the Committee has recommended that it consider the matter further when it takes up a review of the Standing Orders.

Effectively requiring the government to table a press release can not alone put political abuses of prorogation in check

Looking to prorogations in the future, there are some initial conclusions we can draw from the circumstances confronted this summer.  As the Committee heard, most occasion of prorogation were natural, uncontroversial transactions in the ordinary course of parliamentary business; however, in some cases—such as last summer’s—they stepped outside of the ordinary experience.

It does not necessarily follow that the solution for when politicians with bad judgment make bad choices is to rip up countless decades or centuries of practices and procedures.  Sometimes, it just comes down to putting good people, capable of sound judgment, into high office.

There are many pressing policy issues which federal and provincial governments and legislatures across Canada must tackle as we prepare to exit, and in the inevitable aftermath of, the COVID-19 pandemic.  Entering protracted constitutional negotiations over recalibrating one politician’s power relative to another politician’s does not meet the urgent and pressing needs of everyday Canadians.  Therefore, we are pleased to support the recommendation advising against pursuing constitutional amendments.

That doesn’t mean, however, that the House’s toolbox is completely empty when it comes to devising means to keep political abuse of prorogation better in check.

Bearing in mind that parliamentary time is a government’s scarcest—and, therefore, most precious—resource, as one of the Committee’s academic witnesses has written elsewhere,[14] one real way to discourage abusive use of prorogation is to introduce procedural “disincentives” to deny the Government the use of some House time when Parliament reassembles following the prorogation.[15]  Doing so will require a prime minister to see the political “incentives” and “disincentives” in a different light, striking a different balance, and possibly reconsidering the instinct to prorogue in some cases.

Therefore, we are pleased to support the recommendation that the Committee, as part of its forthcoming review of the Standing Orders and parliamentary procedure, give consideration to procedural “disincentives” for a government which prorogues Parliament. 

The only natural conclusion to draw is that Parliament was prorogued to protect Liberals from the WE Charity scandal

We regret the rushed nature of this report such that we did not even have the benefit of seeing the final draft of the report, reflecting all of the Committee’s changes, before it was approved or before these supplementary opinions were completed.  We empathize with our hard-working clerk, analysts and translators who did their level best to keep up with the newfound urgency created by the deadline imposed by the Liberal and New Democratic members.

While we appreciate the time taken by our academic witnesses who shared their thoughtful and learned perspectives with us, we regret that they contributed to a half-finished, abruptly-halted study because the Liberal members engaged in a sustained effort to protect Mr. Trudeau and other senior Liberals from having to answer any tough questions or from having any information surface which would have conflicted with the Prime Minister’s Office’s carefully-crafted narrative.

When Parliament was prorogued last summer, the circumstances of the day made it evident that shutting down the WE Charity scandal—including four committee investigations—was the Government’s true, primary motivation in doing so.  The subsequent actions of Liberals in approaching the Committee’s study have done nothing to persuade us otherwise; if anything, it has underscored our conclusion.