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Percy Downe

The Hon. Percy E. Downe, B.A. Senator Percy E. Downe was appointed to the Senate of Canada by the Right Honourable Jean Chrétien. He has served in the Senate representing Charlottetown in the province of Prince Edward Island since June 26, 2003.

Statements & Hansard

Question of Privilege

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Statement made on 27 September 2010 by Senator James Cowan

Hon. James S. Cowan (Leader of the Opposition):

Honourable senators, I rise on a question of privilege — a step I do not take lightly, but I do take very seriously.

Before we adjourned for summer recess, we debated Bill S-4, the family homes on reserves and matrimonial interests or rights bill, a controversial bill that was opposed by many witnesses who appeared before the Senate Human Rights Committee.

My colleague Senator Dyck began her remarks on Bill S-4 by saying it was dangerous legislation that contained the seeds of destruction of two fundamental First Nations rights.

Several senators on this side rose to speak in opposition to the bill. They quoted extensively from the testimony heard in committee — heartfelt, considered testimony from witnesses who took the time to come to present their very serious concerns.

One witness in particular stood out in a long list of distinguished witnesses. This was Dr. Pamela Palmater, a Mi'kmaq lawyer with a doctorate in the science of law from Dalhousie University, and currently a full-time associate professor in the Department of Politics and Public Administration at Ryerson University, where she is also the Chair of the Centre for Study of Indigenous Governance at Ryerson University.

Dr. Palmater was very concerned about Bill S-4. In her third reading speech on June 21, Senator Dyck quoted from her testimony no fewer than three times. She was not the only one to find her testimony particularly persuasive. My colleague Senator Jaffer also made a point of quoting Dr. Palmater in her speech on this bill.

My question of privilege relates to the remarks of Senator Brazeau, who spoke in support of the bill on July 6. Senator Brazeau did not mince his words. At page 976 of the July 6, 2010, Debates of the Senate, he said:

Let me be blunt — many of the witnesses who appeared before the committee who opposed this piece of legislation are also the consultants who would be doing the work on behalf of the First Nations communities at $500 a day or $1,000 a day. They have a vested interest in ensuring that their nest is feathered as well.

However, he did not stop there. Senator Dyck asked him a question. She asked him to tell the chamber what Dr. Pamela Palmater said about this bill. Here is how Senator Brazeau replied, at page 977:

Ms. Palmater is a lawyer and consultant who also works for chiefs. Obviously, she has a vested interest.

Honourable senators, on September 11, Dr. Palmater took the unusual step of writing me, with a copy to the Leader of the Government in the Senate, Senator LeBreton, to put on record her strong objections to these statements by Senator Brazeau.

Let me read to you from her email, a copy of which I tabled earlier this evening when giving notice of this question:

I noted that Senator Patrick Brazeau, in what appears as an attempt to discredit me as a witness, provided the Committee . . .

Honourable senators, I point out that it was not the committee; it was here in this chamber —

. . . with information that was false. On July 6, 2010, Senator Brazeau tried to discredit all the expert witnesses as follows —

— and I repeat what Senator Brazeau said:

Let me be blunt — many of the witnesses who appeared before the committee who opposed this piece of legislation are also the consultants who would be doing the work on behalf of the First Nations communities at $500 a day or $1,000 a day. They have a vested interest in ensuring that their nest is feathered as well.

I continue to quote from Dr. Palmater's email to me, copied to Senator LeBreton:

He painted an awful lot of people with the same brush and looking at the list of witnesses and not seeing "many" consultants, I am quite concerned that he was more than just a little inaccurate.

He was then asked a question by Senator Dyck about what I . . . said about this legislation and whether Bill S-4 should go ahead.

Senator Brazeau's response was as follows: "I will begin with the honourable senator's last question. Ms. Palmater is a lawyer and consultant who also works for chiefs. Obviously, she has a vested interest."

Dr. Palmater further states:

This is 100 per cent false. I have not ever, nor do I currently, work for any Chiefs or First Nations either as an employee or by contract. I work full-time as a professor at Ryerson University as the Chair of the Centre of Indigenous Governance, all of which Senator Brazeau knows very well. I take offense to being accused of trying to feather my nest or offer testimony for the sole purpose of obtaining First Nation contracts. Even my submission stated that I was appearing on my own behalf and not appearing or representing any group or organization.

I can appreciate that leaders and politicians play political games and spin the truth to make a point, but Patrick Brazeau is no longer one of those politicians — he is now a Senator and as such, the public expects that he would adjust his behaviour accordingly. I am not certain as to why he seems to harbor so much anger and resentment towards his own people, but the fact remains that his false allegation against me hurts my professional reputation as he made these false allegations publicly. He could also have hurt my current portion, as new faculty are not permitted to have outside contracts.

Honourable senators, I want to repeat that last point made by Dr. Palmater. In his speech on July 6, Senator Brazeau said of Dr. Palmater that she is a "consultant who also works for chiefs. Obviously, she has a vested interest." That is what Senator Brazeau said publicly in this chamber under the protection of parliamentary privilege. Dr. Palmater has now written to us to say that not only does she not work for the chiefs, but that in her full-time position at Ryerson University, she is not allowed to have outside contracts. She claims that not only has Senator Brazeau's remarks hurt her professional reputation, but that the remarks may have harmed her position on the faculty at Ryerson. This is the price she has now paid for agreeing to appear before our Standing Senate Committee on Human Rights earlier this year.

Honourable senators will recall that the third reading vote took place immediately after the debate that day, on July 6. The bill was opposed by many senators. The final tally was 45 in favour, 32 opposed.

According to Dr. Palmater, Senator Brazeau made serious misrepresentations that day in this chamber about her — this witness whose testimony was clearly important to a number of senators who heard her in committee and who relied on that testimony in the debate here. Were some senators influenced by these alleged misrepresentations when they voted in favour of the bill? We will never know.

I do not rise today to object to the passage of Bill S-4, although we will never know whether any senators' votes would have been different if we were not told immediately prior to the vote that this witness had vested interests that she says she does not have. I rise today because I am concerned about how this incident will affect our ability to do our work in the future. According to Dr. Palmater, these alleged misstatements by Senator Brazeau were deliberate and apparently made in an attempt to discredit her as a witness.

Honourable senators, Senator Brazeau's behaviour toward witnesses that appear before our committees affect my ability to perform my duties because it has a chilling effect upon all potential witnesses. We in this chamber take justifiable pride in the legislative work of our committees.

Let me quote from Professor David Smith's book, The Canadian Senate in Bicameral Perspective: "Even the sternest critics compliment the senators for their work in the scrutiny, investigation, and revision of legislation." One of the roles that he — reflecting the views of many Canadians — singles out is our role as "an acute listener." We take the time to listen to Canadians who come before us. We all have heard witness after witness thank us for providing them with that opportunity to be heard, but who will come forward and dare to express contrary views that some of us may not agree with if they fear that they will be misrepresented or maligned later in this chamber; that their testimony will be discredited not with fact but with falsehood? As Dr. Palmater said in her letter, these misrepresentations could also hurt her professionally.

If what Dr. Palmater alleges is true, then these actions violate my privileges, by impeding my ability to perform my duties. Honourable senators, they violate the privileges of all of us, of the Senate as a whole. Erskine May is clear:

Any conduct calculated to deter prospective witnesses from giving evidence before either House or a committee is a contempt.

I repeat: "Any conduct," colleagues. That is strong language.

Dr. Palmater, according to her email of September 11, believes that Senator Brazeau deliberately attempted to discredit her as an expert witness by giving us all misinformation about her and alleging a business relationship with the chiefs, which Dr. Palmater claims is "100 per cent false." I also need to point out that she is making this charge about Senator Brazeau's comments without the parliamentary immunity that he enjoys.

The critical point here is that if what Dr. Palmater says is true, and it is not dealt with, do any of us believe that, in the words of Erskine May, this will not "deter prospective witnesses from giving evidence" to us in the future? If future witnesses are deterred from sharing their knowledge with us, how can we perform our constitutionally prescribed duties as members of this legislative body?

Honourable senators, I believe this email from Dr. Palmater provides prima facie evidence that the privileges of the Senate and of all its members have been breached. According to Dr. Palmater, these allegations by Senator Brazeau have not only damaged her personal reputation, but they may have a negative effect upon her career as a full-time professor at Ryerson. As we all know, she has no remedy in the courts because Senator Brazeau is protected, as all of us are, by parliamentary privilege for what he says in this chamber. The only place where she can look is here. This chamber is the only place with the power — and I suggest the responsibility — to call members to account for their words in this place.

We all may be protected by parliamentary privilege for what we say in this chamber, but none of us are above the law, because the law of privilege is not absolute. The parliamentary privilege that we enjoy is an important attribute of our parliamentary democracy, but it is not — and should not be — absolute. We should critically examine testimony given before our committees without fear of legal attack, but we should never allow ourselves to step over the line and attack witnesses themselves, particularly if those attacks are founded upon incorrect and potentially damaging allegations of fact. Our personal parliamentary privileges are no defence to a charge of contempt for what Erskine May called "conduct calculated to deter prospective witnesses from giving evidence." In my view, what Senator Brazeau said about Dr. Palmater was deliberately calculated to achieve this result as far as any future witnesses who might disagree with him are concerned.

I raise this question of privilege to ensure that similar incidents do not occur in the future, and so that Canadians who contemplate coming here to testify before our committees may have confidence that they can do so without fear and in full confidence that any attempt to misrepresent, malign or discredit them with false statements will not be countenanced but will be addressed quickly and forcefully by this chamber. If Your Honour finds that a prima facie case of privilege has been established, I am of course prepared to move the motion necessary to refer this matter to our Rules Committee.

In closing, I want to emphasize that if we conclude that there is no prima facie question of privilege and that there is nothing for our Rules Committee to examine, we will be telling Dr. Palmater and all other potential witnesses who are invited or who wish to appear before our committees that they will be doing so at their own risk. We will be telling them that even if they are publicly defamed by any of us, they have no avenue for redress, either in the courts or in Parliament. Is this the message the Senate of Canada wants to send to Canadians?

Some Hon. Senators: Hear, hear.

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