Speech Raising Question of Privilege (Re: Senator Lankin's Letter to Andrew Scheer)
Hon. Donald Neil Plett: Your Honour and honourable colleagues, as was said earlier today, I gave notice that I would be raising a question of privilege with respect to a letter that we all received which publicly calls for House of Commons interference with the Senate as an independent chamber.
As I stated in my oral notice, among the parliamentary privileges guaranteed to all parliamentarians is freedom from obstruction and interference in the performance of their parliamentary functions.
Last week, Senator Lankin wrote a public letter to the Leader of the Opposition in the House of Commons, which I attached to my written notice that I filed with the Clerk and of which you should all have received a copy.
This letter encouraged the Leader of the Opposition, Andrew Scheer, to interfere in the proceedings of the Senate, specifically to instruct our caucus to move forward on a vote that our caucus is not prepared to do at this time. This invitation undermines the independence of this chamber and impedes the ability of senators to carry out their functions independently.
While this may be news to some of the senators in this chamber, the Senate of Canada was independent long before October 19, 2015. In fact, it has been independent since its inception. Inciting a member of the House of Commons to whip members of this independent chamber represents a profound misunderstanding of the role and function of our upper chamber and, more pertinently, a grave and serious breach of privilege.
The irony, of course, is that Senator Lankin has repeatedly praised the idea of an independent Senate. This letter, however, has made it quite clear that she believes in and is happy to promote the independence of some senators but not for others. Of course, some of the independents will try to argue that the difference lies in the fact that we belong to a national political caucus, or as Senator Harder as inaccurately called it, a party-controlled caucus.
To quote our former and well-respected colleague, the Honourable James Cowan, “Independence does not depend on where you sit but on how you act.”
Despite what preconceived notions Senator Lankin may have about those who sit in political caucuses, she should understand that we are not whipped by the Leader of the Opposition in the House of Commons. Our leader does not control how we act, what we think, what we say, how we vote and certainly not when our caucus is ready for a question to be called.
Colleagues, being political or tied to a national party caucus does not diminish a senator’s ability to think and act independently, and it most certainly does not rid a senator of the guaranteed privilege of freedom from obstruction and interference.
Our friend Senator Cowan also stated this with respect to the function of the Senate as a political chamber:
We are not a new layer of the civil service with Senator Harder at our head. We are not a $90-million debating club. We are not a council of elders. We are not some sort of advisory panel . . . .
We are one of the two chambers of Canada’s Parliament, a foundational political institution that is independent of the elected House of Commons and independent of the government.
Colleagues, those who want to do away with the Westminster system are not the only senators who enjoy the freedoms and privileges in this chamber. Senators involved in political caucuses have never suggested that Prime Minister Justin Trudeau should instruct his appointees on how to act or how to vote, although some occasionally think that he might have. This is because we have long understood the importance of the independence of the two chambers in our bicameral system.
With respect to the content of the letter, Senator Lankin has deliberately misrepresented the facts, which is unfortunate, as it misleads the Leader of the Opposition in the other place, but more importantly, colleagues, as it is an open and public letter, it deliberately misleads Canadians.
And while I’m on the topic, I would like to note that I read every single comment on the National Post’s coverage of the letter that evening, and out of 100 comments that had been submitted, 74 per cent of the comments disagreed with changing the national anthem, 10 per cent had no opinion and only 16 per cent wanted the national anthem changed. But I digress.
Let’s take a look at the facts. In May of this year, Senator Lankin had the opportunity to vote for an amendment to this bill, which she said she supported, which would have brought in gender-neutral wording yet also preserved historical, relevant lyrics. With reference to the said amendment, Senator Lankin stated in the Senate Chamber on May 30:
I appreciate the attempt at creating gender-neutral language, which is the intent of the original bill. I also appreciate, personally, the respect for heritage language. It’s a proposition I personally could support.
She then later stated:
I will not be able to support this amendment, even though the language doesn’t offend me and is gender-neutral, which is what we are attempting to achieve.
Her reason, ostensibly, was that she did not wish to see the bill returned to the house. However, had the bill been returned with this amendment at the time, there is every reason to believe that the amendment could have been accepted as a non-partisan solution to the issue.
That, colleagues, was five months ago, and because she and her colleagues refused to accept that compromise, the bill remains stalled.
The senator, in her plea to Andrew Scheer, talks about “the small group of . . . Senators obstructing the vote.”
We have been working with Senator Lankin on reaching an appropriate solution in the spirit of compromise, over and above the aforementioned amendment, and in so doing, we have offered a number of solutions in which Canadians would have a better and more meaningful opportunity to weigh in on the anthem they hold so dear. These ideas were all rejected.
Ultimately, in good faith, we promised Senator Lankin that we would leave the issue of whether we are in fact ready to proceed with the question to our caucus. Our caucus discussed the issue and reached a decision that we are not ready to proceed with the question. Senator Lankin is well aware that this was a caucus decision and not the result of a few unruly senators.
This question of privilege meets the poor criteria set out in rule 13-2(1). Rule 13-2(1)(a) states that the question must “be raised at the earliest opportunity.” Clearly, as this letter was sent and made public during the chamber sitting on the last sitting day of the Senate, on Thursday, October 19, 2017, today marks the first opportunity to provide notice to the Clerk and thereby raise the matter.
Rule 13-2(1)(b) states that the question “be a matter that directly concerns the privileges of the Senate, any of its committees or any Senator.” As clearly demonstrated above, the privilege that was violated is freedom from obstruction and interference in the performance of our parliamentary functions.
Rule 13-2(1)(c) states that this “be raised to correct a grave and serious breach.” Clearly, inviting a member of the other place to interfere with the proceedings in this independent chamber constitutes a grave and serious breach of privilege, and I look forward to an appropriate correction to these actions, if ordered, to attain some level of assurance that this will not occur again.
On this note, colleagues will remember that on a budget vote recently, Liberal MPs, including members of cabinet, stood at the bar of the Senate Chamber, intimidating and putting pressure on senators as they were voting. This incident, colleagues, goes beyond that as the intervention into our affairs was only implicit in the case of the budget vote. In this case, a senator has explicitly called for interference into the proceedings of this chamber.
Rule 13-2(1)(d) states that the question 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. As stated in both my written and oral notice, should there be a ruling that the actions of the senator constitute a prima facie breach of privilege, I am prepared to move the appropriate motion in order to seek such a remedy.
Colleagues, I will close with this: Parliamentary privilege enables parliamentarians to carry out our constitutional functions free from external interference and most certainly free from intimidation. Parliamentary privilege is one of the most sacred safeguards of the constitutional separation of powers. For Senator Lankin to invite the Leader of the Opposition in the House of Commons into the Senate is obviously inappropriate and insulting, but more than that, I maintain that it is a grave and serious breach of our parliamentary privilege to be free from obstruction and intimidation. Thank you.
Some Hon. Senators: Hear, hear!