The Hon. the Speaker: Honourable senators, earlier this day Senator Tannas gave notice of a question of privilege. I now call upon Senator Tannas.

The Hon. the Speaker: Senator Plett, did you wish to speak before Senator Tannas?

The Hon. the Speaker: Honourable senators, I want to thank Senator Tannas for raising this very important question, and I want to thank all senators who took the time to participate in the debate. I will take the matter under advisement.

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.

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.

Hon. Leo Housakos: Honourable senators, I can tell you that in the 14 years that I have served in this chamber, I have heard a number of questions of privilege. None have gone to the core of what we do here more than this one. I want to thank Senator Tannas for, in a very thoughtful way, bringing up this question of privilege and arguing it factually.

When I first heard of this, it was just before our committee meeting on Wednesday — I believe it was — which I chaired. It raised a number of flags, and I want to address them all.

First, in response to the arguments from the government leader in the Senate, no one is attacking the journalist, their right to maintain their sources or operate and run whatever stories with whatever narrative they feel free to do so.

The story just raised a red flag. It didn’t actually lead to any conclusions — I don’t think — on the part of Senator Tannas hearing his question of privilege, in Senator Plett’s case or in my case. But what that flag did do, it asked questions. And the questions, Senator Gold, it asked were to get some more information from the witness himself, who in testimony before a Senate committee at this chamber said that he felt intimidated and bullied. Those were his words, and he invited us to look at the testimony in the other house in order to confirm that.

Furthermore, your argument, Senator Gold, about questioning the question of privilege on technicality and procedure, about it being brought forward at its earliest opportunity — in itself on an issue so important — is shameful because the government, and you as government leader, should be really concerned about the nefarious nature of these accusations far more than trying to shut them down using some procedural tool.

I will reinforce — because I happen to be the chair of the committee — that, again, in good faith, after the article that raised the flag — after the comments, Your Honour, of the witness before our committee — the committee asked him to table the document that he had from the Commissioner of Lobbying, which he did. That document came to the clerk — at least to my attention — at around quarter to 12 on Thursday. Thus, based on your argument, it was not the earliest opportunity. He wouldn’t be able to make the deadline three hours before that sitting, but, more importantly, the document wasn’t bilingual. I asked the clerk to have it translated, and it was officially tabled with the committee on Monday. I suspect that’s when Senator Tannas saw it, and that in itself raised a lot of questions for me.

That’s in regard to your feeble argument today in defence of this question of privilege.

Now, in terms of my colleague Senator Saint-Germain — I thank you for your arguments, Senator Saint-Germain, because it reinforces how important this question of privilege is. You’re absolutely right; the witness came before us, and he said what he said. You say that in itself shows how he was comfortable; he came before this house of Parliament.

But the truth of the matter is, he was intimidated and bullied to such an extent that as a witness — as an individual Canadian — he felt compelled to go before an officer of Parliament — the Commissioner of Lobbying — a few days or weeks before his testimony to get security of allegations that were made by two parliamentarians. Why were those allegations made? Senator Saint-Germain, when a parliamentarian tells a witness — a Canadian citizen — that they’re a liar and a lobbyist, when they’re before the committee or outside the purview of that committee, that is outrageous.

We have privileges here. We are guardians of this institution, but an individual Canadian citizen who wants to come before a committee and is then attacked by two members of Parliament about lying and being a lobbyist — to the point where he felt compelled to go to the Commissioner of Lobbying to get a letter in order to justify, “Hey, I’m safe,” is inexcusable. That in itself is the argument that there is something deeply nefarious going on here, and we need to get to the bottom of it.

Colleagues, the truth of the matter is that Parliament and the Senate are the custodians of democracy and freedom, and it should be concerning on our part when the executive branch of government overreaches and, at some point in time, feels they can intimidate testimony just because they don’t agree. This is our ultimate job.

Like I said, I don’t want to jump to conclusions, but we have an obligation to get to the bottom of why this individual felt the way he did now more than ever.

Also, if you go to the House testimony, you realize it wasn’t a one-off. There were a couple of people who were bullied to the point where parliamentarians had to be called to order by other colleagues to stop that bullying.

All stakeholders and all individuals need to feel secure when they come before their parliamentary bodies. They need to feel they can come and express themselves without intimidation — without bullying — regardless of which side of the debate they are on. It’s only normal. We expect that courtesy amongst ourselves in this chamber. It doesn’t matter if it’s the opinion of 2 senators versus 103, or whatever the case may be. I think that’s ultimately important.

The fact is that Mr. Benzie, in particular, is not a lobbyist. He is a Canadian content producer who is trying to articulate on behalf of his livelihood and his industry vis-à-vis a bill. The fact that he cannot afford high-priced lobbyists to come to the corridors of power in order to articulate himself is even more reason that we need to make sure these voices are protected more than anyone else’s. We all know the business in this town. High‑priced lobbyists come here — they’re paid to be combative, they send us emails and chase us down the corridors, and they have friends of friends who call us in order to get a hearing. But when, again, a single individual — and that’s what Mr. Benzie is — comes and testifies before our committees, it is incumbent on us to make sure they’re heard.

Colleagues, let’s keep in mind that in 2015, this government promised more transparency, accountability and democracy than ever before. Tampering with a witness and tampering with testimony, either through media or at committee itself, should raise a lot of red flags.

Unlike Senator Saint-Germain, I can tell you — as the chair of a committee who is in constant contact with the clerk — there are a number of witnesses who expressed an interest, at the beginning of our study back in June, in appearing before our committee but who are currently not answering our calls. It’s one thing for witnesses to say, “Sorry, we heard enough testimony, our issues have been addressed and we don’t want to come before the committee.” It’s a whole other situation where I know of a couple of witnesses who were vociferous about coming before our committee in June and are currently no longer responding.

Honourable senators, I will terminate by saying that I think the remedy in the past was to send this to the Rules Committee for review and to have a thorough inquiry, but now, as a chair, I am very uncomfortable, and I question — we should all question — the contamination of this study. We know what happened on the House side. We took measures to make sure it doesn’t happen on this side — that every witness is heard and that we take the time to do a thorough study. But when I start hearing witnesses say they’ve been intimidated, I think there is nothing scarier than that. Our judicial and parliamentary systems have to be transparent, clear and fair.

Your Honour, I leave this to your wisdom to determine.

[Translation]

Hon. Fabian Manning: Honourable senators, I rise to speak on the very important question of privilege that has been raised by Senator Tannas today.

Let me begin by noting that I have served in the Senate for a considerable period of time — now in my fourteenth year. I have also had the privilege to serve as a member of Parliament for Newfoundland and Labrador and to serve in the provincial house of assembly. I have to say that, after nearly 30 years in politics, I have rarely witnessed a more blatant attempt by a member of the government to intimidate a witness appearing before a legislative committee or, more broadly, to potentially deter other witnesses from coming forward.

I believe that is what we are witnessing in this case. The facts that my colleague referenced are compelling, in my view. For one, my colleague has confirmed what the witness, Mr. Benzie, told our Senate Transportation and Communications Committee, which I am a member of. Mr. Benzie was very clear in stating that he felt personally attacked in the House of Commons Heritage Committee because of the views he had expressed before that same committee on Bill C-11 this past spring.

Mr. Benzie went on to state that the effect of this attack in the House of Commons Heritage Committee has led other digital creators to conclude that they too were being singled out in a manner that made it inadvisable for them to appear before any parliamentary committees that might be examining Bill C-11.

If one goes back and examines the exchange that took place between Mr. Benzie and Chris Bittle, Parliamentary Secretary to the Minister of Canadian Heritage, I believe it is difficult not to conclude that Mr. Benzie was gratuitously attacked. I would like to quote from part of that exchange. At the May 30, 2022, meeting of the House Committee for Canadian Heritage where Mr. Benzie appeared, as soon as it was his turn to raise questions, Mr. Bittle began as follows:

Mr. Benzie, when you appeared before our committee a little while ago, a couple months ago, you were asked if you had received any money from tech companies. You denied that allegation. Today when you appeared you said, “we have received some funding from our industry partners, including platforms and private industry involved in the success of digital creators.”

Was that statement untrue when you testified before us the first time, Mr. Benzie?

After several attempts by Mr. Benzie to point out that what Mr. Bittle was alleging was misleading, Mr. Benzie was finally able to state the following about the allegation made by Mr. Bittle:

I have had conversations with your department, with the minister’s department, with Canadian Heritage, and I have been very open about the fact that we received some funding from our platform partners. . . . Eighty per cent of the revenue in Digital First Canada comes from Buffer Festival, which is our money.

Mr. Bittle responds to that very accusatorially with the demanding question “Which tech companies are you receiving money from?”

Mr. Benzie reiterated what he already apparently told the Department of Canadian Heritage: that he received funding specifically in relation to the Buffer Festival. Mr. Bittle feigns dissatisfaction with that answer and says, “This is really shocking to me.” He then immediately asked, “. . . were you lying to this committee when you first appeared?”

Colleagues, I submit that, for people who rarely interact with government or with a parliamentary committee, this level of hostility from a member of the government is clearly designed to have a chilling effect. However, what is more damning is the fact that Mr. Bittle follows up on these attacks by formally asking the Commissioner of Lobbying to launch an investigation into Digital First Canada, the very organization Mr. Benzie is the executive director of.

Mr. Benzie has since received written confirmation from the Office of the Commissioner of Lobbying that he was not in any way in violation of the Lobbying Act, illustrating how groundless the accusation really was. Colleagues, we need to ask what the purpose was of Mr. Bittle’s actions.

One can only conclude that the action was designed not only to intimidate Mr. Benzie but also to deter other creators who might be thinking of presenting their views on Bill C-11 to a parliamentary committee. In my view, this was an attempt at intimidation, and if we permit it to go unchecked, it will be repeated. If this becomes systemic, then our parliamentary committees will cease to be an effective voice for the public. For that reason, we must hold those who attempt this blatant intimidation to full account.

Thank you.

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.