The Hon. the Acting Speaker: Senator Ringuette, you have 26 seconds left.

The Hon. the Acting Speaker: Senator Tannas, do you have a question?

The Hon. the Speaker: Honourable senators were all deeply saddened and shocked by two recent incidents of killings of police officers on duty. On October 11, South Simcoe Police Service Constables Morgan Russell and Devon Northrup were killed in Innisfil, Ontario, and on October 18, RCMP Constable Shaelyn Yang was killed in Burnaby, British Columbia. We offer our condolences to their families, friends and fellow officers. I would ask you to rise for a minute of silence in their memory.

(Honourable senators then stood in silent tribute.)

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Mr. Andreas Souvaliotis and Mr. Joseph Gisini. They are the guests of the Honourable Senator Omidvar.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Mr. Ben Foster. He is the guest of the Honourable Senator McPhedran.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion in amendment?

The Hon. the Acting Speaker: Senator Dalphond, do you have a question?

The Hon. the Acting Speaker: Is permission granted?

The Hon. the Acting Speaker: Senator Ringuette, your time is up.

The Hon. the Acting Speaker: The agreement for the extension was to answer the question you had on the floor.

The Hon. the Speaker: Honourable senators, on October 4, 2022, Senator Tannas raised a question of privilege about a series of events surrounding the appearance of a witness at a meeting of the Standing Senate Committee on Transport and Communications on September 28. He argued that these events constituted an attempt to intimidate the witness. I am prepared to rule on this serious issue.

Senator Tannas’ written notice indicated that the question of privilege related to a concern that “[t]he timing and content of an article in the Globe and Mail on September 27, 2022, … may constitute intimidation of a witness.” According to the article, a Liberal member of the House of Commons alleged that a witness had failed to disclose funding from YouTube. Senator Tannas argued this may constitute intimidation. His oral notice reflected the content of the written notice. Both notices therefore respected the requirement that they “indicat[e] the substance of the alleged breach” and “identify the subject matter that shall be raised as a question of privilege,” which are from rules 13-3(1) and 13-3(4), respectively.

Many senators participated in consideration of the question of privilege. We were informed that the appearance of the witness before the Senate committee was announced on September 23, 2022. The article in The Globe and Mail of September 27 mentioned a request put to the Commissioner of Lobbying by a member of the other place. We were advised that the request may have been linked, at least in part, to an appearance by the same witness before a committee of the other place earlier in the year.

A number of senators also raised a range of other issues generally relating to this situation. These included, in particular, concerns that events in a committee of the other place had so intimidated witnesses that some individuals might be unwilling to appear before the Senate committee. I wish to thank all honourable senators for their thoughtful reflections on the important issues that were discussed during consideration of the question of privilege.

Before dealing with the substance of the issue, let me remind senators that a question of privilege is raised when there is “[a]n allegation that the privileges of the Senate or its members have been infringed.” Privilege deals with “[t]he rights, powers and immunities 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 and individuals.” Privilege exists so that parliamentary bodies can conduct their critical work in our democratic system with the necessary degree of autonomy and independence. I encourage honourable colleagues to review the 2015 and 2019 reports by our Standing Committee on Rules, Procedures and the Rights of Parliament, which deal with the place of privilege in a modern Canada.

At this stage, my role as Speaker is not to decide whether a breach of privilege has in fact occurred. That decision belongs to the Senate. My role is limited to determining if a concern raised, in relation to privilege, has prima facie merits. That is to say whether, at first impression, there is strong enough concern that a breach has occurred that the Senate should deal with the matter under the special procedures of Chapter 13 of the Rules. In doing this, I am guided by the four criteria set out in rule 13-2(1). All these criteria must be met for the issue to proceed to the next step, which is debate in the Senate on a motion to study the matter or to take other action.

In this case we can begin by considering the nature of the concern raised, a point related to the second and third criteria of rule 13-2(1). The second criterion requires that the question of privilege be directly related to the privileges of the Senate, a committee of the Senate, or a senator. The third criterion requires that a question of privilege be raised to correct a grave and serious breach.

Let me begin by emphasizing that the two houses of Parliament are autonomous self-governing institutions. During debate on the question of privilege, numerous references were made to proceedings in a committee of the other place. Concerns were expressed about how witnesses were treated and the effects this may have had. The Senate has no role in reviewing how the other place chooses to conduct its business. Senators can, and typically do, exhibit respectful behaviour towards witnesses. I also note the importance of being assiduous in continuing to do so. Anything touching on what may have happened in the House of Commons or one of its committees, or as a follow-up to events there, is, however, not for us to consider.

In past cases about possible obstruction of witnesses, the actual or potential actions that may have negatively affected the individuals involved were clearly identified. In a 1999 case involving a witness who appeared before our Agriculture and Forestry Committee, the witness considered that a suspension by his employer was directly related to his appearance. On this basis, a prima facie case of privilege was established. However, during its investigation, the Rules Committee of the Senate found no clear link between the suspension and the appearance.

In a 2013 case involving the RCMP, it was established that a witness who had been invited to appear before our National Security and Defence Committee, and who had accepted, was prevented from appearing because of the actions of officials of the force. A prima facie case of privilege was therefore established. In its report, the Senate’s Rules Committee noted that, while the National Security and Defence Committee had not been able to hear from a particular witness, its work had not been unduly impeded, since it did hear from the witness’ association. Our Rules Committee also stated that the RCMP had indicated that the matter had been rectified for future requests from Parliament.

Finally, reference was made in debate to a 1992 case in the other place, where a witness before a subcommittee of the Standing Committee on Justice and the Solicitor General was threatened with legal action by the CBC because of her testimony. While the Speaker found a prima facie case of privilege, subsequent review determined that there was not sufficient evidence to justify a finding of contempt.

However, in the case before us, no clear indication has been provided as to how the witness before the Senate committee was affected or threatened in relation to that appearance. Indeed, the witness received correspondence from the Office of the Commissioner of Lobbying suggesting that, in relation to at least some of the issues involved, he had respected legal requirements. We therefore seem to be dealing with the fact that a member of the other place requested that the commissioner review certain facts relating to the witness. At least in part, this may have been based on information received during a meeting of a House of Commons committee. These facts were published in a newspaper article, which also included an opportunity for the witness to respond.

There are three significant points to be made here. First, the Lobbying Act makes clear that parliamentarians can provide information to the Commissioner of Lobbying relating to a possible investigation. Second, to the extent parliamentary proceedings were involved, they related to a proceeding of the House of Commons, not the Senate. Finally, this situation relates to information appearing in the media. We thus need to take into consideration the balance between the freedom of Parliament and freedom of the press, which is also a fundamental feature of our constitutional system. The autonomy of the media ought not to be questioned in Parliament except with clear and direct evidence that such a grave and troubling step cannot be avoided. As already noted, nothing in the debate on the question of privilege indicated that the Senate need consider such a step at this time.

Taking all these factors into account, it cannot be concluded that the Senate’s privileges are involved. Nor can it be concluded that any concern is of such seriousness as to require us to consider interfering with the interaction between parliamentary autonomy and that of the media. As such, the second and third criteria of rule 13-2(1), which were outlined earlier, have not been established. We do not therefore need to review the remaining criteria, and the ruling is that a prima facie case of privilege has not been established.

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