Hon. Paula Simons: Honourable senators, I rise to speak to this issue in the bifurcated view of being both a member of the Transport and Communications Committee and a journalist who spent 30 years working in the trenches.

I want to start first by talking about Scott Benzie and the excellent work he has done in highlighting some of the challenges of Bill C-11.

I have been speaking with Scott about this bill on and off in the course of my own research for months now. I have found him to be a thoughtful person with a strong point of view about Bill C-11, not all of which I necessarily share, but I think he is a good-faith witness who speaks passionately and with knowledge about the nature of his industry.

He has been a credible voice because he is not just one single individual. He is the executive director of a lobby group that speaks on behalf of digital creators and he is the artistic director of the successful Buffer Festival.

The issue which arose with Mr. Benzie was a question of whether or not he had revealed soon enough — because he certainly did acknowledge the fact — that his festival and his organization received funding from YouTube and TikTok. They provided cash funding and also goods in kind, providing transportation for artists and filmmakers who were displaying their films at the Buffer Festival.

The question is whether that was a breach of anything. Mr. Benzie has provided us with letters that demonstrate that the lobbyist registry assured him that he was in breach of no protocols. I’ve seen copies of that correspondence.

So whether or not you think Mr. Benzie is correct about Bill C-11, I put it to you that he is a good-faith voice on the issue and that he has not hidden or denied the fact that he has received funding from YouTube and TikTok, nor have YouTube and TikTok denied that they had provided that funding, which was not given to him as a lobbyist but in support of the artistic festival for which they were the underwriters.

The question is not whether Mr. Benzie has done anything wrong, but how suspicious we ought to be about the timing of this leak.

I acknowledge that the timing stinks of what one might call dirty pool, that it is convenient timing that this article came out the day before Mr. Benzie was to testify. Is that, however, a violation of any Senate rules? In the first place, as Senator Lankin has so eloquently said, we have absolutely no idea where this information came from and how it came into the possession of The Globe and Mail reporter.

I want to tell you from — I don’t want to say my vast experience — but from my 30 years of experience as a journalist, you might be surprised how information gets to journalists sometimes, and sometimes it’s not from the most obvious source.

I had a number of scoops in my career in which people had provided me leaks, and people would call and say, “It must have been so-and-so who leaked to her.” “This person should be fired because they must have leaked to her.” I would sort of smirk to myself because that person had not, in fact, been the source of my information.

So although one might induce or intuit where this information came from, we have absolutely no idea what this reporter’s sources were, and it would be a grotesque violation of our whole understanding of freedom of the press to ask the reporter to reveal her sources. Did her sources come from someone in the Department of Canadian Heritage? I don’t know, and neither does anyone else. Did they come from a politician? I don’t know, and neither does anyone else.

So who exactly created this breach?

Then we come to the article itself.

I read it on the day it came out, and I have read it subsequently. It is a perfectly fair and balanced news story. It is not a vicious attack on Mr. Benzie. It quotes Mr. Benzie at length defending himself, and it quotes both TikTok and YouTube defending their funding of Mr. Benzie’s festival.

I grant you that the timing smells fishy. I would also suggest that sometimes our friends in the other place are blissfully ignorant of the timing of what we’re doing here, and we would need to presuppose that somebody plotted knowing precisely when Mr. Benzie was going to be testifying to get this information to The Globe and Mail reporter to have it come out at just the right time.

I worked in newspapers 23 years. They don’t work that way. For all we know, Ms. Woolf could have filed this story a week beforehand, and it was stuck in the queue waiting to be printed.

Journalists can scarcely conspire to hold a staff picnic, much less conspire with the government to attack an artist and creator.

I grant you, when I saw the timing of the article, my back was up because I did not think that Mr. Benzie deserved to be placed in this very awkward situation, but I would caution us: Against whom are we supposing that we would be sanctioning here? We have no idea what the source of the leak was. We have no idea what the timing of the article was meant to be, and we have no evidence that this journalist wrote this piece with any kind of malice. It is a straight-up piece of good journalism that describes this issue and then accurately describes the testimony that we had heard in the committee earlier.

I agree that Mr. Benzie seems to have been the target of perhaps some unfair dealing and I’m grateful to Senator Tannas for raising this issue, but I don’t think you have the prima facie case here.

Senator Woo: You are very kind. Thank you, Senator Mockler, for your speech and your advocacy of this bill. Thank you to Senator Quinn as well and to former Senator Griffin.

I support this bill enthusiastically, in addition to all of the things that you said about the benefits of wood. Wood buildings also look gorgeous and they are very pleasing to the eye.

I wanted to ask you about your citation of research that shows wood buildings have a net reduction in carbon emissions. Maybe this is a bit technical. I certainly need an education on how that works.

Are you saying that the wood that is embedded in a wood building reduces more carbon from the atmosphere than the wood that is embedded in a forest in the trees? I do not know how that works.

Are you saying that the carbon emissions used to build a wood building are less than the carbon emissions from building a non‑wood building — say, a concrete building — and the net savings are what you are referring to? Sorry this is a little bit technical, but it is an important point that you raised and I do not fully understand how it works. Thank you.

Hon. Rosa Galvez: Will Senator Mockler take a question?

Senator Galvez: The answer to Senator Woo is that he is right. It is not different. Whether it is taking carbon here in the chamber, it is the same amount in the tree outside.

I’m also supportive of this bill because it encourages a circular economy. The part that is missing is that we are going to take more trees to construct more buildings from wood, and wood is cheaper, cleaner and it is less energy, as you said.

But the trick is that we need to plant more trees, and much faster. It is like a rate — if you take more, you have to plant more. Can you please elaborate on this part of the equation of the circular economy? Thank you.

[Translation]

Hon. Jane Cordy: Honourable senators, I acknowledge that I rise to speak today from the unceded territory of the Algonquin and Anishinaabe peoples.

I would like to thank Senator Klyne for bringing forward Bill S-241, and I would like to acknowledge the original author of this legislation, our former Senate colleague Murray Sinclair, for his work on this issue.

Honourable senators, as societal norms and attitudes change and evolve, it is incumbent on us as parliamentarians to ensure that our laws evolve in step to reflect this change.

Over the last 10 to 20 years here in Canada, we have seen a sizable shift in Canadians’ attitudes toward animal protections and treatment, from the food we eat to the products we purchase to the entertainment we enjoy. Canadians are paying attention more than ever to the things we enjoy in life and where they come from. This naturally extends to concerns for how we treat the animals with whom we share the planet. Canadians are demanding better, more ethical treatment of animals while at the same time demanding more transparency and accountability from the people, organizations and businesses profiting from our animals and wildlife.

Bill S-241 will take some of the biggest steps to date toward ensuring protections for captive wild animals in Canada.

Based on our continued and evolving scientific understanding of nature and the animals who call our planet home, along with Indigenous understandings of nature, this bill will create new legal protections for captive wildlife in Canada. Big cats, bears, wolves, seals, sea lions, walruses, certain monkeys and dangerous reptiles such as crocodiles and giant pythons will see new protections come into force.

The bill also contains measures for protecting the public from privately owned exotic and potentially dangerous wild animals. I was particularly alarmed to learn that anywhere from 4,000 to 7,000 big cats can be found in private ownership. Regulations vary from province to province. Some provinces like British Columbia have strict regulations where private ownership of big cats is banned outright, while others, like Ontario, have no provincial licensing requirements for ownership, breeding or trade in big cats.

The Jane Goodall act will also phase out captivity of elephants in Canada. As noted by others, elephants are compassionate and social animals. They suffer needlessly when kept in small enclosures or in isolation. Also, Canada does not have the climate to provide the proper environment for these animals, and it has been shown to be detrimental to their well-being to keep these grand creatures indoors for months at a time.

Honourable senators, Bill S-241 has the potential to establish the strongest legal protections for captive wild animals anywhere in the world. If we examine what is being accomplished as a direct result of the passing of measures contained in our former Senate colleague Wilfred Moore’s Bill S-203, which ended future captivity of whales and dolphins in Canada, Bill S-241 has the potential to do great work here in Canada, and it can also lead to change worldwide.

After an extensive search, the Whale Sanctuary Project chose a bay in Port Hilford, Nova Scotia, to establish the world’s first whale sanctuary. This will be the first permanent seaside sanctuary in the world for beluga whales and orcas. The sanctuary will provide an actual environment for once-captive animals who are incapable of being released into the ocean for their own safety. The bay will provide the whales with about 110 acres of space to roam and explore waters up to 18 metres in depth. The Whale Sanctuary Project’s mission is:

. . . to transform the way people relate to whales and dolphins by bringing an end to their exploitation and by creating seaside sanctuaries, assisting with international marine mammal rescues, and advancing whale and dolphin science.

. . . with your help, we are creating a gold-standard coastal sanctuary in Port Hilford Bay, Nova Scotia, where cetaceans (whales and dolphins) can live in an environment that maximizes well-being and autonomy and is as close as possible to their natural habitat. It is being designed to serve as a model for many more that can then be built all over the world in the coming years.

The sanctuary is gearing up to welcome their first inhabitants in 2023, and they have made it publicly known that their hope is to relocate Kiska the killer whale from Marineland as their first inhabitant.

Colleagues, we have a bill before us that is supported not only by groups representing some of Canada’s largest zoos, leading animal welfare organizations and the Jane Goodall Institute but also by a majority of Canadians. On September 8, in a statement directed to us as parliamentarians, the Jane Goodall act coalition said:

Protecting wildlife is not a partisan issue. It’s a national and international issue — one that should concern everyone. The Jane Goodall Act is Canada’s chance to lead and make a difference for our fellow creatures at this pivotal time for the natural world.

The Minister of Environment and Climate Change has also been charged by the Prime Minister in his mandate letter to specifically introduce legislation to protect animals in captivity. The Honourable Steven Guilbeault has tweeted his interest in Bill S-241 and our work in the Senate on the legislation.

Honourable senators, the principle of this bill is sound, and it should be referred to committee for study. The Jane Goodall act has the potential to establish the world’s strongest legal protections for captive wild animals. I would like to again acknowledge and thank my colleague Senator Klyne for continuing the work initiated by our former colleague Senator Sinclair.

Canada has the opportunity with this bill to be a world leader and set more gold standards when it comes to protecting wildlife and conserving nature in Canada. As legislation is not overwhelming Senate committees at this time, I think this would be the ideal time to send Bill S-241 to committee for further study. Thank you.

Senator Omidvar: Senator Cordy, I support the bill. I recognize that all animals on this planet are God’s creatures. From that value base I support the bill, but there is also a question of public safety. I recall — I think it was 10 years ago — when private ownership of dangerous pets resulted in the death of two twin boys in New Brunswick when a 100-pound pet snake came crashing down the ceiling and smothered the seven-year-old boys.

Will your bill regulate private ownership of potentially dangerous animals, or is that a provincial issue?

Senator Cordy: That is a decision that would be made by the Senate. Somebody usually comes forward that the bill be sent to a specific committee, but I’ve been in the Senate when it has actually overturned that. Usually it’s a discussion among leaders. I’m not going to suggest what committee it goes to. I’m not sure that the sponsor of the bill is going to suggest that. He may as we get closer, but that is a decision to be made by the Senate.

Hon. Ratna Omidvar: Will Senator Cordy take a question?

Senator Mockler: That is a fundamental issue that is in the spirit of Bill S-222. I will go back a little and talk about tree planting in North America. Canada was, and still is, the leader in the forestry industry, especially in northwestern New Brunswick, with the large industrial family of the Irving Group of Companies. There are also many other companies across this country that are part of this industry.

I was impressed by the current government’s efforts to create and implement a program to plant 2 billion trees across Canada. Every province, no matter where we live, will reap the benefits. These trees will restore balance to the forest and lead to the development of new wood products, such as laminated lumber. However, we will have to be very careful. In some areas of the country, certain tree species grow better than others.

I will conclude by mentioning that we will have to prove to stakeholders, whether they are industries, small and medium‑sized businesses, or workers in the forestry industry, that Bill S-222 will have major benefits that will lead to a better economy.

Senator Dupuis: Senator Mockler, Senator Woo’s question is extremely important. I don’t want to make this a question of privilege, but would you be willing to share your written response to Senator Woo with the rest of the senators?

Senator Mockler: I must start by saying that that is a very good question and an excellent suggestion.

We can draw on the experience of our experts, including Senator Galvez. I will be sure to send a very thorough answer to Senator Woo, and collectively, we can use all of our experience to ensure that every senator, no matter who they represent in this country, gets the right answer when asked the question. We will be there for our children and grandchildren, to safeguard a very important economic sector in Canada.

[English]

Senator Plett: Senator Cordy, you mentioned in your speech that regulations around this vary from province to province. It is actually quite simple as to why they do. It is because private ownership of exotic animals falls entirely under provincial jurisdiction. Senator Omidvar already asked about part of this.

Do you have any concerns that Bill S-241 may be encroaching on provincial jurisdiction? Have you spoken, Senator Cordy, to any of the provinces to see how they feel about this legislation? Because clearly, we are considering passing legislation here that doesn’t fall under our jurisdiction.

Senator Cordy: I think that you have raised a really good issue that could be discussed at committee. I would hope, as I said in my speech, that this would be an excellent time for this bill to go to committee. The members of whichever committee could certainly invite provinces and territories to appear as witnesses, and there could be a thorough discussion at that time.

To answer your question, no, I have not spoken to provincial ministers responsible for the owning of big cats by private individuals.

Senator Mockler: Thank you, Senator Cordy. I will look to enhance that before you take the adjournment. I will quote the architect Michael Green, whom I quoted earlier. I will say it again, because I think it is worthy, and it is a step in the right direction. He says:

I would love to see our nation move to a sense of ambition, of world leadership —

— and we are —

— and dominance in the way we express wood and the way we build with wood. We are wonderful at cutting down trees . . . .

You are right, we are wonderful at cutting trees. But we need to make it value added. Looking at Bill S-222 is a step in the right direction. Thank you.

(On motion of Senator Cordy, debate adjourned.)

[Translation]

On the Order:

Resuming debate on the motion of the Honourable Senator Carignan, P.C., seconded by the Honourable Senator Plett, for the second reading of Bill S-221, An Act to amend the Governor General’s Act (retiring annuity and other benefits).

Senator Plett: Thank you, Senator Cordy, for that. I guess some of us believe that this would be the tail wagging the dog, so to speak. Maybe we should go to the proper jurisdictions first. Nevertheless, I will leave that, and I will leave it for my speech.

You alluded a fair bit to elephants. Have you visited any establishments that have elephants? Have you seen these elephants crammed into small cages? Have you seen them freeze in wintertime? If you haven’t, are you aware — and I don’t want you to answer for him — whether the sponsor has made some of those trips to these places? Has he informed you that, in fact, these elephants are being mistreated — elephants that have never been in the wild; they have always been in captivity? Most elephants in our country have been bred in captivity and have never been in the wild. Have you collaborated? Is there anyone who has visited any zoos, any wildlife establishments that have elephants?

Hon. Scott Tannas: Honourable senators, I rise today to bring to the Senate’s attention a serious breach of the Senate’s collective rights and privileges, and a possible contempt of Parliament. According to rule 13-1:

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.

As required under rule 13-3(1), written notice of this question of privilege was given to the Clerk of the Senate this morning and was circulated to all senators. I gave oral notice earlier today during Senators’ Statements, pursuant to rule 13-3(4).

Parliamentary privilege exists to permit Parliament to conduct its duties without interference. According to Senate Procedure in Practice on page 226, senators should fulfill their responsibilities with “freedom from obstruction and intimidation.”

Actions taken by an individual or individuals to impede the work of Parliament can be considered as contempt of Parliament. Again, as defined on page 230 of Senate Procedure in Practice, contempt involves, “Any actions that substantially obstruct Parliament and its members in the performance of their duties . . . .” This statement is supported by numerous parliamentary references and authorities such as Erskine May, House of Commons Procedure and Practice and more than a dozen Senate Speaker’s rulings since 1998.

Witnesses who appear before Senate committees are given the same protections against coercion and intimidation. On page 203 of Senate Procedure in Practice, it says:

Since official meetings of a committee are part of the proceedings of Parliament, any person appearing before a Senate committee is protected by parliamentary privilege.

As such, the protections provided to senators, including freedom of expression and freedom against intimidation, flow to witnesses.

According to section 865 in Beauchesne’s Parliamentary Rules and Forms, sixth edition:

To tamper with a witness in regard to the evidence to be given before either house or any committee of either house or to endeavour directly or indirectly, to deter or hinder any person from appearing or giving evidence is a breach of privilege.

On April 13, 2000, the Standing Committee on Privileges, Standing Rules and Order — now the Standing Committee on Rules, Procedures and the Rights of Parliament — presented a report following allegations of reprisals against a witness. The report says:

The Senate, and all Senators, view with great seriousness any allegations of possible intimidation or harassment of a witness or potential witness before a Senate committee. In order for the Senate to discharge its functions and duties properly, it must be able to call and hear from witnesses without their being threatened or fearing any repercussions. Any interference with a person who has given evidence before a Senate committee, or who is planning to, is an interference with the Senate itself, and cannot be tolerated.

Senators, I am providing this information to show you the seriousness of the issue at hand.

On Wednesday, September 28, 2022, Mr. Scott Benzie appeared before the Standing Committee on Transport and Communications on Bill C-11. Mr. Benzie is the Managing Director of Digital First Canada.

At the beginning of his testimony, he informed the committee of a string of intimidation events that began with his appearance before the House of Commons Standing Committee on Canadian Heritage on May 30, 2022.

Mr. Benzie was accused by the Parliamentary Secretary to the Minister of Canadian Heritage during the public hearing that he had failed to disclose that his group, Digital First Canada, received funding from YouTube and TikTok. Another member of the committee accused Mr. Benzie of violating the Lobbyists’ Code of Conduct. Needless to say, Mr. Benzie was given a very rough ride during his testimony before the House of Commons committee.

I am mentioning this simply for context, with full knowledge that the parliamentary activities of the House of Commons are outside the Senate’s purview for a question of privilege. I am simply stating that events seem to have begun in the other place and then moved outside and led directly to a specific event of intimidation before an appearance before the Senate committee.

In August 2022, the parliamentary secretary sent a letter to the Commissioner of Lobbying requesting an investigation into Mr. Benzie and his organization for failing to disclose the receipt of funding from private organizations.

This complaint is clearly unfounded, and, according to correspondence from the Office of the Commissioner of Lobbying and provided to the Standing Senate Committee on Transport and Communications, there was no requirement to disclose private funding, only government funding. Digital First Canada has not received any government funding for their operations.

Again, I am providing this information for context, but it is important.

Now that I’ve given context, I will share the direct actions taken to intimidate a Senate witness.

Mr. Benzie was invited to appear before the Standing Senate Committee on Transport and Communications on Wednesday, September 28, 2022. The notice of meeting was posted Friday, September 23, indicating Mr. Benzie’s participation in the public hearing on Bill C-11.

Prior to his scheduled appearance before the Senate committee, Mr. Benzie was contacted by a journalist from The Globe and Mail who wanted to publish a story on the complaint presented to the Commissioner of Lobbying. Again, it was after Mr. Benzie was invited to appear before the Senate committee. We should note that the actual complaint to the Commissioner of Lobbying was dated August 3, 2022.

An article outlining the parliamentary secretary’s complaint to the Commissioner of Lobbying, which was sent two months earlier, was published by journalist Marie Woolf of The Globe and Mail on September 27, 2022. That was the day before Mr. Benzie’s testimony.

To be clear, the timing and the sharing of the content of the letter to the Commissioner of Lobbying was intended to attack Mr. Benzie’s credibility before he provided evidence to the Senate’s Transport Committee.

Other than the recipient of the letter, who was the commissioner, the full content was only known to the Parliamentary Secretary to the Minister of Canadian Heritage and Ms. Lisa Hepfner, another member of Parliament. A reasonable person could only come to the conclusion that it was sent by one or both of these individuals or someone working for them under their direction.

Divulging the complaint mentioned in The Globe and Mail article on September 27 is not a coincidence and was deliberately timed to appear before Mr. Benzie’s testimony.

Again, let me be clear: Divulging the information was to intimidate Mr. Benzie and discredit his testimony and to discourage other digital content creators from appearing before the Senate committee. Digital content providers who are opposed to the bill or wish to highlight changes to the bill are scared to appear before the Senate’s Transport Committee to give their testimony. This is preventing Parliament from hearing dissenting opinions from specific groups.

Mr. Benzie was asked last Wednesday by Senator Housakos, before the Senate Transport and Communications Committee, if he felt intimidated, silenced or bullied. Mr. Benzie responded that he felt attacked because he was providing his views. He went on to say:

Digital creators were attacked in a way that we’ve never seen before, to the point where, I’ll tell you, a lot of digital creators have refused to come forward and speak because they’ve seen the treatment that we’ve received.

This is a truly worrying statement for all of us to consider. For the Senate to properly conduct reviews and investigations into legislation, it must hear from all sides of an issue without its witnesses fearing reprisals to their livelihoods and their personal lives.

Now that I have shown how there was an attempt to intimidate a witness appearing before a Senate committee, let me turn to the criteria needed to raise a question of privilege and determine a breach. Under rule 13-2(1):

In order to be accorded priority, a question of privilege must:

(a) be raised at the earliest opportunity;

(b) be a matter that directly concerns the privileges of the Senate, any of its committees or any Senator;

(c) be raised to correct a grave and serious breach; and

(d) 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.

I will now show how this question of privilege that I’ve raised falls within the criteria.

On the first point, let me start with a short chronology of events. The article in The Globe and Mail entitled “Critic of Bill C-11 should be investigated for failing to disclose funding from YouTube, says Liberal MP” appeared on Tuesday, September 27, 2022.

The Standing Senate Committee on Transport and Communications heard from Mr. Benzie on Wednesday, September 28, 2022, and the chair asked directly if Mr. Benzie felt intimidated by the timing of the article; he responded in the affirmative.

On Thursday, September 29, 2022, I became aware of the testimony and reviewed the transcripts. Since this is a very serious and complicated case of privilege, additional information was gathered.

Mr. Benzie sent further information to the committee after his appearance, which was circulated to the members on Monday, October 3. This was vital to fully understanding this question of privilege.

The Senate did not sit on Friday, September 30, nor Monday, October 3. Therefore, I sent my notice to the Clerk of the Senate today.

As this chronology indicates, today is, in fact, the earliest opportunity to raise this issue.

Second, as it states in the Rules, this matter must “directly concern the privileges of the Senate, any of its committees or any Senator.”

Mr. Benzie appeared before a public hearing of a Senate committee and gave evidence on September 28, 2022.

Here, I would also like to note that committees are not empowered to decide any questions of privilege. Only the Senate can decide if a breach of privilege has occurred.

As I outlined earlier, the intimidation of witnesses constitutes a direct breach of our privileges as legislators to receive true and factual information. Individuals should never fear to appear before a Senate committee to provide their views on the nation’s business.

Next, the question must be raised “to correct a grave and serious breach.” I will briefly expand on this point.

In his decision on May 8, 2013, Speaker Kinsella said:

If there were intent to intimidate the witness, it is clearly a grave and serious breach, therefore meeting the third criterion.

In my view, there was an attempt to intimidate Mr. Benzie. However, this goes beyond only one witness. As Mr. Benzie stated in committee, “A lot of digital creators have refused to come forward and speak.” In essence, the action by representatives of the government has poisoned the well of potential witnesses who can be invited to appear before the Transport and Communications Committee in opposition of the bill or of sections of it.

Honourable senators, the fear of reprisal of speaking against government policy has absolutely no place in a democratic system and goes against our Charter and our values as citizens of Canada.

Finally, the question must “seek a genuine remedy that the Senate has the power to provide and for which no other parliamentary process is reasonably available.”

I will again quote from former Senator Kinsella, since this case mirrors the question of privilege raised by former Senator Cowan in 2013:

. . . the fundamental issue is whether there was a deliberate attempt to prevent a witness from appearing. Were this to be so, it would constitute contempt. The accepted remedy is to treat such issues as cases of privilege. As such, the final criterion has also been fulfilled. This ruling, to be clear, does not establish that there was a deliberate intent to intimidate, which would be a decision for the Senate to eventually make, but rather that there is reason for concern.

It is within the powers of the Senate to deal with affronts to the dignity of Parliament. According to page 249 in Senate Procedure in Practice:

The Senate may punish, as contempt, an action that substantially interferes with or obstructs the performance of its duties or offends against its dignity or authority.

The case I bring before you today fits into the last criterion mentioned.

I raise this question of privilege out of concern for witnesses appearing before our committees. It is in no way to slow down the review of Bill C-11 and the good work that needs to be done by the Transport and Communications Committee.

A line has been crossed by some in relation to this bill. Intimidation and harassment behaviour should never be tolerated in any form.

Before I conclude, I would like to make a final point to my colleagues in this debate. We are asking the Speaker to determine if there is a prima facie case, meaning at first look. In his May 29, 2007, ruling, Speaker Kinsella stated that the role of the Speaker is to determine if “a reasonable person could conclude that there may have been a violation of privilege.”

It is not the role of the Speaker here, today, to adjudicate to resolve this matter or pass a final judgment. That will be the role of senators. We are simply asking the Speaker to, in his opinion, determine if there is some merit to the question to be further reviewed.

I want to reiterate finally that raising this issue does not signal any desire or intent that the legislative process for Bill C-11 be delayed or postponed, but this behaviour must be called out, stopped and can never be accepted as the new normal.

Thank you, colleagues.

Hon. Marc Gold (Government Representative in the Senate): Honourable senators, I rise, albeit briefly, in response to the point of privilege raised by Senator Tannas to offer some perspective that may assist you, Your Honour, as you come to a determination. I have full confidence in your ability to come with sound judgment on this issue.

At this point in the process, we are to address the narrow issue of whether there is a prima facie case of a question of privilege using the four criteria set out in rule 13-2(1). The four criteria listed in rule 13-2(1) begin by underlining the urgency of the matter. It must be raised by a senator at the earliest opportunity.

I respectfully submit that the question was not raised at the earliest opportunity. The article in question was published Tuesday, September 27, with the witness in question scheduled to appear Wednesday, September 28. The Senate sat on both Wednesday, September 28, and on Thursday, September 29. Although I acknowledge Senator Tannas’s claim that more details were required before proceeding, there was an opportunity to raise the question of privilege on any of those two days. In fact, a point of privilege on this matter was, indeed, raised in the other place by the Member of Parliament for Perth—Wellington on Wednesday, September 28.

On September 16, 1994, the Speaker ruled that even a gap of a few days may invalidate the claim for precedence in our proceedings.

Second, rule 13-2(1) provides that the matter must directly concern the privileges of the Senate, any of its committees and must relate to a grave and serious breach, which has been defined as something that “would seriously undermine the ability of committees to function and would even jeopardize the work of the Senate itself.”

Clearly, colleagues, this bar is set very high. I would note in that regard, at least at first blush, that the case brought forward by Senator Tannas involves more than its fair share of conjecture and indeed rests upon a large measure of speculation. To state the obvious, colleagues, it is newspapers who are in control of what they publish and when they publish.

At the crux of Senator Tannas’s argument is the notion that a newspaper report containing information around a complaint to the Commissioner of Lobbying is tantamount to a form of intimidation that has jeopardized the Senate’s work.

Now, assuming for argument’s sake that we accept all of the speculation and conjecture, Senator Tannas seems to be making the case that a journalistic source is engaging in a form of witness intimidation rising to the level of a breach of the Senate’s privileges.

To be frank, there’s something chilling about the idea that the Senate would embark upon inquiries around journalistic sources based upon conjecture alone. Indeed, this chamber has pronounced itself firmly in favour of freedom of the press and the need to protect the confidentiality of journalistic sources.

The point of privilege raised today engages broader questions of principle that, unfortunately, cannot be addressed adequately in this forum today, which I would invite you, Your Honour, to address: How do our privileges interact with freedom of the press in a context such as this? May we rely upon the Senate’s privileges to interfere with the confidentiality of journalistic sources?

I would also submit that, notwithstanding the speculative nature of the point of privilege, the record plainly shows that the committee’s ability to function has not been jeopardized or undermined by media coverage of Bill C-11. Setting aside the conjecture around the content and timing of the news story — which I would again note is entirely within the purview of the news outlet — did this newspaper story impinge upon the ability of parliamentarians to do their jobs properly?

For my part, I fail to see how this story undermined the ability of the committee to receive true and factual evidence from the witness. And, indeed, I would further submit that the individual in question did appear before the committee on Bill C-11 and was able to fully advance his views on the bill, as is, of course, appropriate.

Finally, it strikes me that for Senator Tannas’s argument to be valid, one must necessarily first conclude that the complaint made to the Lobbying Commissioner was, itself, a form of intimidation. However, let us be clear that the Member of Parliament for St. Catharines was perfectly entitled to contact the Office of the Commissioner of Lobbying if he believed that there was a bona fide allegation of conflict of interest with respect to a witness appearing on a bill and having a financial interest in doing so.

Your Honour, I look forward to your ruling on the matter.

Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, I have just a few words in support of Senator Tannas’s question of privilege, but first I wish to address at least two of the issues that Senator Gold raised.

Senator Gold raised the issue of Senator Tannas not raising this at the first available opportunity. The fact of the matter is, Your Honour, that Senator Tannas, although he views the newspaper article as having flagged something, I didn’t hear in his remarks that his question of privilege was based upon the newspaper article. It was something that was flagged. His question of privilege is based upon testimony by a witness at a committee and, indeed, written complaints about that.

We look at newspaper articles, and we say, “This needs to be investigated,” and we investigate. That is what Senator Tannas did and rightfully so.

Senator Gold says that Senator Tannas could have raised the question of privilege a little earlier. The fact of the matter is that the chair of the committee rightfully asked the witness, Mr. Benzie, for written confirmation of what had happened. That was on Wednesday evening. Mr. Benzie sent that information to the clerk on Thursday morning, September 29, and I believe the clerk did not receive it until about 11:30 a.m. First of all, that is a half-hour after the deadline for raising notices.

Plus, that particular letter was in English only and had to be translated, which only happened as late as yesterday. So, indeed, there is no way that Senator Tannas could have raised this question of privilege earlier than yesterday because that’s when he and the clerk received the translated version of the entire issue.

First of all, Your Honour, I think what Senator Gold has said insofar as timing is concerned is completely out of line and needs to be dismissed.

I do want to support the position of Senator Tannas. I do not want to repeat everything that he has said, but I will try to add some arguments.

As Senator Tannas has said, Mr. Benzie in his testimony at committee clearly stated that potential witnesses refused to appear in front of our Senate committee because of Member of Parliament Bittle’s conduct. Let me quote Mr. Benzie again:

Digital creators were attacked in a way that we’ve never seen before, to the point where, I’ll tell you, a lot of digital creators have refused to come forward and speak because they’ve seen the treatment that we’ve received.

That, colleagues, bears repeating, and that’s why I did that. It is egregious that witnesses are intimidated to the point where they are afraid to appear at our committees.

His testimony is clear. At this stage, this undisputed testimony must be considered on the face of it by you, Your Honour, deciding whether there’s a prima facie case of a breach of privilege.

Second, let me add to the list of cases that Senator Tannas mentioned in support of his arguments. There was a similar incident raised in the House of Commons in 1992. The CBC threatened a lawsuit against a witness because of evidence she presented at the committee. The Speaker ruled the matter to be a prima facie question of privilege, so the threat of legal repercussions made to the witness was considered by the Speaker as an intimidation of the witness.

In the case of Mr. Benzie, we have the Parliamentary Secretary to the Minister of Canadian Heritage, the sponsor of Bill C-11, who did not only make a threat; he actually sent a letter to the Commissioner of Lobbying, and he made sure that this fact would be made public on the day before Mr. Benzie was due to testify in front of our Senate committee.

On page 267 of the twenty-fourth edition of Erskine May it states, “Any conduct calculated to deter prospective witnesses from giving evidence before either House or a committee is a contempt.”

Similar statements are made on page 82 of Bosc and Gagnon, which explains that witnesses are protected from threats or intimidation.

Paragraph 15.23 of Erskine May, twenty-fifth edition, states:

Both Houses will treat the bringing of legal proceedings against any person on account of any evidence which they may have given in the course of any proceedings in the House or before one of its committees as a contempt.

Finally, I must say that this matter causes me considerable concern, largely from what I fear may be a systemic effort on the part of the government to intimidate and shut down not only broader debate on Bill C-11 but also contributions from people and groups we do not often hear from in these debates.

In this regard, let me go back to Mr. Benzie’s testimony when he appeared before our Transport and Communications Committee. Mr. Benzie’s reference to testimony of Mr. Darcy Michael, again, was before the House Heritage Committee but he appeared before that committee on a completely different bill: the Status of the Artist Act.

Mr. Benzie paraphrased Mr. Michael as saying, “I feel like I am being bullied” in the middle of his testimony on the Status of the Artist Act.

When one goes back and examines the specific testimony in question, this testimony occurred on March 21, 2022. What Mr. Michael actually said was, “. . . I’m feeling a little on edge here.”

Why did Mr. Michael say that? It was, again, related to the questioning of witnesses by MP Chris Bittle. What was Mr. Bittle questioning Mr. Michael about? Mr. Bittle specifically questioned Mr. Michael about an answer he had given to another member of the committee about Bill C-11.

Remember that the meeting of the House Heritage Committee on March 21 was on the subject of the Status of the Artist Act. However, Mr. Michael was nevertheless asked about Bill C-11. When he answered that question, expressing his concerns as an online creator about Bill C-11, it apparently triggered Mr. Bittle to go on the attack.

Mr. Bittle demanded to know what section of Bill C-11 Mr. Michael was concerned about. When Mr. Michael’s answer was deemed unsatisfactory, Mr. Bittle became more belligerent, until a point of order by another member of the committee brought an end to this hostile questioning. This was when Mr. Michael stated, “. . . I’m feeling a little on edge here.”

It is hardly surprising he was, since he was not even appearing before the committee to speak about Bill C-11. To quote Mr. Michael’s own words when he appeared before the committee on March 21:

I’m speaking to you as a proud queer digital creator with content that celebrates conversations around mental health, body positivity and human rights. . . .

I’m here in front of you as an artist, as a Canadian, and as a marginalized voice asking all of you not to omit us from this conversation any longer.

Colleagues, what I fear is that the parliamentary secretary for the government’s purpose was ultimately to ensure that, as far as Bill C-11 is concerned, Mr. Michael, and any voices speaking on behalf of digital creators, be excluded from the conversation.

If one considers this incident in the context of the broader pattern, then I submit there is strong evidence that there has been a deliberate attempt to intimidate witnesses from appearing before any parliamentary committee on this matter. Many digital creators were unable or unsuccessful in appearing before the House Heritage Committee on Bill C-11. Fortunately, and despite the efforts of the government, they are now having a much greater voice as they appear before the Senate Transport and Communications Committee on this bill.

A few weeks ago, when the Minister of Crown-Indigenous Relations, Marc Miller, appeared before the Senate, Senator Housakos asked him a question about why, in the context of the promises made in relation to the United Nations Declaration on the Rights of Indigenous Peoples, the government had failed to consult adequately with Indigenous people who might be impacted by Bill C-11. The minister responded at that time by stating, “. . . I know you’ll appreciate that the government doesn’t dictate who appears at committees, and who doesn’t.”

However, I believe that, contrary to the minister’s assertion, there is considerable evidence that, when it comes to Bill C-11, the government has been seeking to do precisely that. Not only has it sought to stage-manage proceedings in the House of Commons and to ignore any witness who might cause a problem for the government’s agenda, it has also sought to deter opponents of the bill from speaking. The fact that many of these witnesses speak for marginalized communities should be particularly concerning for all senators. The Senate exists, in large measure, to speak for political minorities.

In that regard, I believe that it is essential that you, Your Honour, put your foot down and say enough is enough. If the Senate is to be independent from the government, the first thing to do is to make sure that our committees can hear witnesses who come here freely and speak their truth. We need to have witnesses other than government-approved ones who come here to repeat government talking points.

[Translation]

Hon. Raymonde Saint-Germain: The issues Senator Tannas raised are serious and extremely important. Anyone in this chamber who takes these allegations seriously could not possibly condone such an attitude were it to be displayed. What you’re talking about is contempt of Parliament, which is very serious and has consequences.

Having said that, given the seriousness of the matter raised, I reviewed the September 28 meeting of the Standing Senate Committee on Transport and Communications at which Mr. Benzie appeared. I noted that Senator Housakos asked Mr. Benzie questions that gave him an opportunity to say he felt intimidated in the other place. However, during his testimony before the Standing Senate Committee on Transport and Communications, he clearly felt quite confident.

Senator Tannas, to prove that you brought this question of privilege before this chamber by the deadline, you referred to a letter that Mr. Benzie provided to the clerk on September 29, the day after the Transport Committee meeting. I have the letter here. Mr. Benzie received it at 11:26 on the morning of September 28, which was before his appearance at the committee. The letter is from the Office of the Commissioner of Lobbying. It confirms that he has no obligation to disclose any funding received from parties other than a government. I will read it in English:

[English]

“. . . from any domestic or foreign government, at any level – federal, provincial/territorial/state, or local.”

[Translation]

At the time of his appearance, Mr. Benzie knew that he had not violated the Lobbying Act. He knew this when he was appearing before the committee, and the committee had no reason to question it.

The connection you are making with receiving this letter the next day and even later, because it had not been translated, does not, in my opinion, justify the notion that this complaint could have been filed immediately, on September 28. In my opinion, you therefore did not meet the deadline.

Something else that seems important to me is to separate what falls under the privileges and Rules of this chamber, and therefore falls within the purview of our Speaker regarding potential violations of the Parliament of Canada Act or the Rules of the Senate, from what falls within the purview of the other place.

The alleged elements are the responsibility of the other place and have been for some time. After all, Mr. Benzie’s appearance before the House of Commons committee took place four months before his appearance last week before the Senate committee. By his second appearance, he knew what this question was about and what to expect.

You also alluded to the allegation that witnesses who testified before the House of Commons on this same issue were intimidated, and that allegation was made by Mr. Benzie. Now, the important thing is to determine whether these witnesses were intimidated to the point of refusing to come testify before the Senate.

The Clerk of the Transport and Communications Committee has confirmed that no content creator who may have been intimidated at the House of Commons withdrew or declined an invitation issued by the Clerk on behalf of the Transport and Communications Committee. This information, in my opinion, has therefore not been documented.

What concerns me most about this question of privilege is not only the allegations, but the conflation being made between an MP, members of a House of Commons committee who are doing their job and questioning witnesses — rightly or wrongly, I don’t want to be the judge — and the fact that a member of Parliament was able to file a complaint with an officer of Parliament. To me, this is a fundamental issue.

Filing a complaint with an officer is not in itself an act of intimidation and certainly does not mean that the commissioner or officer of Parliament will complete the investigation in a non‑objective manner. If there are legitimate grounds, the officer of Parliament will investigate and come to a conclusion in an objective manner. We have confidence in those officers, whose appointment is endorsed by both houses of Parliament.

The other point that really concerns me is the fact that, once again, there is confusion between the Speaker’s authority over our work and the conflation with what may have happened in the House of Commons. I think that we all care about respecting the independence of both chambers. In my opinion, this misconception fails to respect that independence.

My last point — and I do not want to dwell on it because Senator Gold stressed this point — is that it is also a misconception to assume that any media outlet would cater to the government, an MP or anyone, and that it would choose to publish a news article on a particular day of the parliamentary calendar that would make it possible to somehow influence a witness or even abuse or harass them. It is a misconception to state that the situation is being created by members of Parliament or their employees.

Let me say that it has been stated with great certainty that a complaint filed with an officer of Parliament would be known to only a few people. With my six years of Senate experience, I could comment at length on the breaches of confidentiality that occur in the hallways and even in this chamber.

For all these reasons, I am of the opinion that the conditions for finding that the question of privilege is in order have not been fulfilled. Thank you.