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OTTAWA — Former cabinet minister Jane Philpott rose in the House of Commons Tuesday morning to speak on a point of privilege, asking the Speaker of the House of Commons to consider whether Prime Minister Justin Trudeau violated the law by “unilaterally” removing her and former attorney general Jody Wilson-Raybould from the Liberal Party caucus last week.
She appealed to Speaker Geoff Regan to rule that their rights had been denied and their privileges as members of Parliament breached on the basis of the 2015 Reform Act, which set rules around the administration of party caucuses.
“This matter is urgent. … Procedural fairness and the rule of law demand this. Secret in-camera meetings or private notices should not be a shield to prevent the upholding of the law and members’ rights,” Philpott told the Commons.
“This is very concerning. It speaks to the rule of law at the heart of our democracy,” Conservative MP Michael Chong, who authored the Reform Act, told the National Post in an interview shortly after she made her arguments. So what exactly is this latest foofaraw all about?
How did the ouster from caucus go down last week?
In a brief speech last Tuesday Trudeau announced his decision to remove Philpott and Wilson-Raybould from caucus after both resigned from cabinet in the wake of the SNC-Lavalin scandal. Wilson-Raybould testified that Trudeau and his top officials tried pressuring her, for political reasons, to cut a deal for Montreal engineering firm SNC-Lavalin so it could avoid criminal prosecution for fraud and bribery.
Both initially stayed members of the Liberal caucus, citing their faith in the party’s policies despite a lack of confidence in the prime minister’s handling of the affair.
But Trudeau said last week the caucus has lost “trust” in the two former ministers. “We’ve taken every effort to address their concerns but ultimately if they can’t honestly say that they have confidence in this team despite weeks of testimony, face-to-face conversations and phone calls with myself and other members of caucus, then they cannot be part of this team.”
Trudeau announced the decision as his own, and Philpott argued Tuesday Liberal MPs never had a chance to have their say — even though the Parliament of Canada Act was amended in 2015, with Chong’s Reform Act, so that these types of situations could be avoided.
What exactly does the Reform Act say about this?
The Reform Act, which amended the Canada Elections Act and the Parliament of Canada Act, spells out rules around expulsions and readmissions of caucus members, the election or removal of caucus chairs, leadership reviews and the election of interim leaders.
The act requires caucuses, after each general election, to hold four votes on whether or not a majority of MPs in each party wants to abide by the rules it sets out on its four topics. If they reject the rules, then they do not need to follow them.
On expulsions, here are the rules that parties can opt in to, or not: A member of caucus can only be expelled, according to the Reform Act, if “the caucus chair has received a written notice signed by at least 20 per cent of the members of the caucus requesting that the member’s membership be reviewed” and if “the expulsion of the member is approved by secret ballot by a majority of all caucus members.”
Neither of those things happened in this case. Philpott said if the Reform Act rules were followed, it would have taken a recorded vote in which 90 Liberal MPs voted to expel her and Wilson-Raybould — yet no such vote took place. “We were expelled prior to the commencement of the Liberal caucus meeting,” she argued in the House Tuesday.
Did Liberals ever vote on the provisions in the Reform Act?
The answer to this question would go a long way to settling whether Liberals did anything to violate the law.
If Liberal MPs never had a chance to vote on opting into the Reform Act rules, as Philpott alleged in the House, that would inherently be an “illegal act,” argued Chong. “I’ve been concerned about it for three-and-a-half years,” he said, since the Liberals reportedly held their first caucus meeting without recording votes and reporting results to the Speaker, which the law required them to do. “It’s now come to fruition with the two questionable expulsions last week.”
But Liberals said on Tuesday that they had followed the rules. Kevin Lamoureux, the parliamentary secretary to the government House leader, told the Commons that “over three years ago,” the chair of the national Liberal caucus, Francis Scarpaleggia, sent a letter to the speaker outlining the caucus’s decisions not to have the Reform Act provisions apply.
“Given the fact that the Liberal caucus did not adopt these provisions, the points raised by the honourable Member on this issue are moot,” said Lamoureux.
Lamoureux said the only requirement, which the caucus met, was for Liberals to inform the speaker of “the results of the caucus decisions.” But the law actually stipulates that they communicate “the outcome of each vote.”
Lamoureux did not address whether individual, recorded votes were held on each element of the Reform Act, nor whether the votes occurred at the Liberals’ first caucus meeting after the election, both required under the law. Philpott is alleging that neither happened.
The House leader’s office referred questions about whether votes were actually held to Scarpaleggia, who told the Post caucus confidentiality means he can’t discuss whether individual votes occurred.
So, does Philpott have a point?
What she’s arguing is that Trudeau breached the privileges of his Liberal MPs by not allowing them to vote on the administration of their own caucus back in November 2015, after the federal election, in accordance with the law. As a result, she is arguing, Philpott’s and Wilson-Raybould’s privileges were breached when Trudeau made a unilateral decision to remove them. And the rights of the entire Liberal caucus were breached because they didn’t have an opportunity to vote on that decision by secret ballot.
Chong said Philpott spoke with him about the topic before going ahead with her arguments on Tuesday morning, and he told the Post he is fully on board with them.
“This point of privilege she has raised is vitally important because if there is no recourse here to enforce the rights of members, there is no other place,” he said. Courts have repeatedly ruled they do not have jurisdiction over matters of parliamentary administration, so he believes this is the only way for it to be enforced. The Reform Act also specifically states that caucus decisions aren’t subject to judicial review.
“The only recourse we have to uphold the rule of law and to ensure that the law is followed in the House of Commons, its parliamentary parties and committees, is in the House of Commons and by appealing to the speaker,” Chong said.
But Philippe Lagassé, a procedure expert at the University of Ottawa, said the whole thing seems more like a question around the legal interpretation of the Parliament of Canada Act rather than a matter of parliamentary privilege.
“I don’t see how this is a point of privilege in the traditional sense,” he said. If Liberal MPs didn’t vote in favour of opting in to the Reform Act rules, then they wouldn’t be bound to them, “and since the courts can’t review, I’m not sure who would enforce this,” he added.
What has the speaker said about this?
Two weeks ago, a Conservative MP raised similar issues when he complained that it seemed MP Celina Caesar-Chavannes had resigned from the Liberal caucus because she was forced out. Had the Reform Act rules been in place, he argued, there would’ve had to have been a vote.
“If you, Mr. Speaker, decline to exercise jurisdiction to entertain breaches of the statute here, then members of caucuses, like the Liberal caucus who flagrantly ignore the law, have no protection and no recourse when their rights are trampled. Because of the lack of judicial recourse, general restraint on speakers interpreting the law and the House’s privilege to manage internal affairs, I respectfully submit that the way forward, indeed the only way forward, is to allow the House to deal with this matter,” John Nater argued.
Caesar-Chavannes ultimately confirmed that she had left of her own accord. And the speaker had come back on Monday, the day before Philpott made her arguments, with a ruling that he didn’t have the jurisdiction anyway.
As relayed by Deputy Speaker Bruce Stanton, Regan’s ruling said asking the House to deal with an expulsion from caucus was “not a proper subject for a question of privilege.” Further, “I as speaker have no role in the interpretation of statute nor in the conduct of these 2015 provisions.”
Philpott acknowledged that ruling on Tuesday morning. “But with respect it is our view that this does not relieve you of your responsibility to ensure that all members are aware of their rights in this place. This is our privilege. Accordingly, a remedy is required for our situation,” she said. Regan responded: “While I am left with the difficulty, as I said in my ruling yesterday, that the speaker does not have power to enforce statutes, I will certainly consider her argument and come back to the House.”
So now what happens?
The House will have to wait for Regan to come back with an opinion on the issue. If he does find a prima facie breach of privilege, which Lagassé found unlikely, Philpott will be able to move that the matter be referred to a parliamentary committee.
Liberals have a majority in the House and on committees — including the two committees that recently decided not to pursue any further investigation of the SNC-Lavalin issue.
Asked whether he’s hopeful that some of them will vote to look at what happened here, Chong said, “We have to try. We can’t give up. … I hope that our House of Commons is strong enough to adjudicate this and to seek justice.”
— with files from The Canadian Press
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