Hon. Scott Tannas: Honourable senators, pursuant to rule 13-4, I give oral notice of a question of privilege I intend to raise later this day.

When witnesses appear before Senate committees, parliamentary privilege is accorded to them and gives them certain immunities and protections, including protections against threats, intimidation and harassment. I became concerned with the timing and content of an article in The Globe and Mail dated September 27. It spoke of a complaint filed with the Commissioner of Lobbying against a witness who was scheduled to appear the following day before the Standing Senate Committee on Transport and Communications.

Later today, I will present my views, this being a potential question of privilege and contempt of Parliament.

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.

Senator Tannas: Your Honour, there are just a few points I wanted to mention as you take this under advisement.

With respect to the timing of this issue, it is the old chestnut of every single question of privilege — that it was not done on time. Frankly, the committee meeting where the witness said they felt intimidated was held on Wednesday evening. In order to present the question of privilege by Thursday, it had to be in by 11 a.m. As Senator Housakos pointed out, there were more documents to come in support of this issue and those did not arrive in time for 11 a.m.

In addition, we did have some time over the weekend and Monday to talk directly to the witness. I think in an investigation that would come, if Your Honour were to so decide to begin one, it would begin by the appropriate committee bringing in witnesses under oath to get to the bottom of it. We could get to the bottom of it without having to have a journalist in. We could ask others the following: Did you send the letter to the journalist? Who sent the letter to the journalist? When did you send the letter to the journalist? All of those things could come out that would actually help those who want to make a recommendation back to us here as to what really happened.

The job today, as I understood it, was to highlight something that might or could have happened. A number of the folks who spoke against Your Honour considering in the affirmative said, “Well, this may have happened” and “This could have happened.” Yes, that’s right. That’s the point of this particular exercise that we are going through right now.

This is a serious matter. This is a matter that we all know will grow and fester if we leave it unchecked. We need to deal with it. Your Honour, I know you will give it the consideration that it deserves. Thank you.