Proceedings of the Standing Senate Committee on
Privileges, Standing
Rules and Orders
Issue 5 - Evidence
OTTAWA, Tuesday, February 10, 1998
The Standing Committee on Privileges, Standing Rules and Orders met this day at 4:30 p.m. to consider matters pursuant to its mandate under rule 86(1)(f) of the Rules of the Senate.
Senator Shirley Maheu (Chairman) in the Chair.
[English]
The Chairman: Thank you, honourable senators, for appearing here in great numbers. I should like to begin by reading the order of the Senate as it appeared in our Journals of the Senate. It states:
Resuming debate on the motion of the Honourable Senator Kenny, seconded by the Honourable Senator Nolin:
That Senator Andrew Thompson be ordered to attend the Senate in his place when the Senate resumes sitting in February 1998 following the Christmas adjournment;
That, should he fail to attend, the matter of his continuing absence be referred to the Standing Senate Committee on Privileges, Standing Rules and Orders for the purpose of determining whether his absence constitutes a contempt of the Senate;
That, if the Committee is obliged to undertake this study, it be authorized to examine and report upon any and all matters relating to attendance in the Senate and how it specifically applies in the case of Senator Thompson; and
That the Committee report its findings and any possible recommendations within two weeks from the day the matter is referred to the Committee.
After debate, The question being put on the motion, it was adopted.
I should now like to turn the meeting over to the Clerk.
Mr. Paul Bélisle, Clerk of the Senate: Honourable senators, in light of the order that the Chair has just read, perhaps it would be best at this point if I went through the order and specified for the record some of the actions that have been taken.
The first paragraph of the order stipulates that the order be sent to the Honourable Senator Thompson. For the record, the order has been sent. This was done pursuant to a request and discussed at Internal Economy. The following documents have personally been served on the honourable senator: A letter dated December 18, 1997 from myself to Senator Thompson transmitting the order of the Senate adopted on December 16, 1997, requiring the senator's attendance in the chamber when the Senate resumed sitting today, with a true copy of the order attached.
Senator Jessiman: The way I read this, it says "when the Senate resumes sitting in February." Do you think that he could come any day during February? It does not say "immediately when we resume." Was that made clear in the letter? When I read this, I wondered what date he had to attend in February.
The Chairman: Mr. Clerk, do you have something on that?
Senator Jessiman: Someone else may have a different interpretation of that, but if I were acting for him, I would find that unclear.
Senator Gigantès: In the course of his speech, Senator Kenny made it clear that he meant the day the Senate resumes. All legal interpretations of what Parliament says are read in the context in which decisions are made. When we voted on that resolution, Senator Kenny had made it clear that he meant the day the Senate resumes.
Senator Jessiman: We should get a legal opinion on that. Perhaps Mr. Audcent can tell us.
The Chairman: The second paragraph of the documents that were sent to Senator Thompson states he is ordered to return "when the Senate resumes sitting in February." I believe and I understand that "resumes sitting" means the day we open. I stand corrected if our legal advisors feel that I am wrong.
Senator Stollery: That was my understanding of the motion.
Mr. Bélisle: The letter that was sent to the honourable senator read:
Dear Senator Thompson:
Please find attached a certified and true copy of the order of the Senate adopted on December 16.
It is the order that was sent. With that order we sent a second letter, also dated December 18, 1997, from myself to Senator Thompson advising the senator of the adoption and contents of the seventh report of the Standing Committee on Internal Economy, Budgets and Administration.
These letters were served by notary public in Mexico, and we have an affidavit confirming that they have been received.
The other aspect of this is that the second paragraph of the order states what is to happen should the senator fail to attend. I am in receipt of today's attendance and the fact is that Senator Thompson was absent today.
Senator Stollery: Since you sent your letter, have we received any communication from Senator Thompson in which he said that he was too ill to attend or something like that? Has there been any communication from Senator Thompson?
Mr. Bélisle: I have not received any letter to that effect since my letter was sent. I checked the office at 4:00 o'clock or 4:30 today and nothing had been received. My assistant is here and she is indicating that nothing was received this afternoon.
The Chairman: Does that include up until the time the Senate bells rang?
Mr. Bélisle: Yes.
The Chairman: Thank you.
Senator Lewis: Has there been any attempt made to contact his office?
Mr. Bélisle: Today?
Senator Lewis: In the period since the letters were written?
Mr. Bélisle: At one point, I did call the senator in Mexico. I left a message for him. He returned my call in the afternoon and left a message in response to my call.
Senator Nolin: When was that?
Mr. Bélisle: January 23.
Senator Lewis: What was the message?
Mr. Bélisle: I am not sure if I should be divulging conversations between the Clerk and senators. That is up to you to decide. I usually trust that my conversations with senators are confidential, but it is up to the committee.
Senator Lewis: I think we should know whether he gave some explanation that he might be here or would not be here.
Senator Gigantès: I think we should formally do something that frees the Clerk from his quite proper concern of not divulging conversations between himself and senators.
Mr. Bélisle: I can attest that there was no conversation but that he left a message.
Senator Stollery: The Clerk should be able to have conversations with senators without the risk of a committee asking, "What did you say?" We should not put the Clerk in that position. I am not a prosecutor, so I do not know how these things can be phrased. However, we should like to know whether the reply was relevant to our meeting here today.
Mr. Bélisle: The reply?
Senator Stollery: Yes, the reply of Senator Thompson on the telephone.
Mr. Bélisle: It is open to interpretation.
Senator Stollery: Did he suggest that he might be showing up?
Mr. Bélisle: Yes. However, that was a message and I am getting it third-hand.
Senator Jessiman: On voice mail?
Mr. Bélisle: No. I left a message on his voice mail; he returned my call and spoke to my secretary. My secretary then informed me that the senator had returned the call the same day and had left a message.
Senator Kelly: What is the latest information we have on the state of his health?
Mr. Bélisle: There is policy in the Senate on the attendance of senators. If a senator is away due to illness, he or she must submit a certificate. All I can say is that a certificate has been filed.
Senator Kelly: I am not looking for detail. The simple answer is that you have up-to-date information that he was not well.
Mr. Bélisle: That is correct.
Senator Jessiman: Is it just one certificate you received several years ago or has it been renewed from time to time?
Mr. Bélisle: They have all been renewed according to the policy. However, the policy on certificates is loose. There is nothing that specifies when a certificate should be filed.
Senator Stollery: There is a clear motion from the Senate, and that is why we are here. When I read it in detail, I realized that it did not say exactly what date in February. I understand that. The reason for that is that the date that we sit can change. It is not a fixed day. I interpreted it that way.
Clearly, Senator Thompson is contravening this order. He is ordered to attend the Senate in his place. He has not done that today. He has spoken to the Clerk, but we do not want to put the Clerk on the spot.
The fact of the matter is he has not complied with the order, and I realize I am making an assumption that the order means the day the Senate meets, which is today. I have two observations I should like to make, Madam Chairman. First, we probably need some legal advice as to how we proceed. Second, I believe it is incumbent upon Senator Thompson, or a representative of Senator Thompson, to come here within a very short time and tell us what the story is because I do not think second-hand stories through the Clerk are worth anything.
The Chairman: With all due respect, Senator Stollery, I must ask how do you force someone to appear before this committee when he would not appear before the Senate itself?
Senator Stollery: He can be requested. He does not have to attend, but then, of course, there will be consequences.
The Chairman: I should just like to tell all the members here that I have spoken with our legal advisor, who tells me that something resumes one time. We would not be resuming tomorrow, we would not be resuming next week, we are resumed today, when we are speaking of sittings.
Senator Gigantés: As to Senator Stollery's statement that we should hear from Senator Thompson or his representative, I say that it should not be at second-hand. If we hear from Senator Thompson's representative, it is at second-hand. It is at first-hand only if Senator Thompson himself says it.
Senator Stollery: I have a procedure in my mind, Madam Chairman, but before I elaborate, I think we should ask if there are precedents for this situation in which we find ourselves.
[Translation]
Senator Nolin: During your comments earlier, you did say, without revealing all of the message, that Senator Thompson was planning on being here today. That is what you said earlier?
The Chair: More or less.
Mr. Bélisle: Planning to come and what I am reading are two different things; he will try.
Senator Nolin: I understand. A question was asked. Can you conclude from this message that he planned on coming? Your answer was yes.
Mr. Bélisle: I cannot draw any conclusions about his specific intentions.
Senator Nolin: I understand. In view of the message you have before you, can you conclude that Senator Thompson was going to be here today?
Mr. Bélisle: There was that possibility, yes. But I have to point out something else. I am reading a text given to me by my office. This means that a third party was involved; it is nearly hearsay.
Senator Nolin: I understand.
[English]
Mr. Bélisle: Perhaps I should conclude the opening remarks, honourable senators. The third aspect of the order that the Chairman read indicated that if this committee is now obliged to undertake a study, it be authorized to examine and report. I can assure you, honourable senators, that the Senate administration has been working assiduously during the period of adjournment to prepare and to assist all of you in this matter.
Today we have with us Mr. Mark Audcent, Law Clerk and Parliamentary Counsel of the Senate, who has been advising the Senate on legal matters since 1982 and is well known to all of you. We also have with us Mr. Joseph Maingot, who is well known in parliamentary circles. Last December, Mr. Maingot published a book entitled, Parliamentary Privileges in Canada. This second edition gives the committee an updated canvassing of subjects that it may be examining in the next few weeks.
Perhaps I should give you some biographical history of Mr. Maingot. From 1967 to 1970 he was Assistant Parliamentary Counsel in the House of Commons. From 1971 to 1982, he was Law Clerk and Parliamentary Counsel in the House of Commons. From 1982 to 1989, he was a member of the Law Reform Commission of Canada. In 1982, he published the first edition of Parliamentary Privilege in Canada. In 1987, the French text, Privilège parlementaire au Canada, was published. In 1997, as I just mentioned, he published the second edition of Parliamentary Privilege in Canada.
He was counsel to the Standing Committee of the House of Commons on Privileges in 1996 concerning the Bloc Québécois press release to military in the Province of Quebec; counsel to the Standing Committee on Privileges, Standing Rules and Orders of the Senate regarding a question of privilege concerning Senator Carney in 1993; and has advised the privilege committees of the Legislative Assembly of British Columbia and the House of Assembly of Newfoundland.
[Translation]
Senator Nolin: Mr. Clerk, I would like to come back to the telephone message transmitted by your staff. Does this message mention the state of health of the senator?
Mr. Bélisle: Yes.
[English]
Senator Jessiman: Did we communicate to the senator in writing that the Senate was resuming on this particular date?
The Chairman: I do not believe today's date is in the correspondence that I have seen.
Mr. Bélisle: The letter said, "We require your attendance in the chamber when the Senate resumes this February."
Senator Jessiman: That is the point. The order says "when the Senate resumes." He should have been given notice as to when we were going to resume. Why was he not given notice?
Senator Gigantés: He was given notice that he should be here when the Senate resumes. He communicated with the Clerk's office. Did he ask in this communication when the Senate was going to resume?
Mr. Bélisle: No.
Senator Gigantés: He did not even care.
Senator Jessiman: If we are trying to do something, we certainly should tell him.
Senator DeWare: How did you know, Senator Jessiman?
Senator Jessiman: I do not know how I knew.
Senator DeWare: All senators get notice.
Senator Jessiman: I asked whether we gave him notice and the answer was no.
The Chairman: As the rest of us are here today, we obviously knew what date the Senate was resuming. Were senators advised of when we would be resuming, Mr. Clerk?
Mr. Bélisle: Yes.
Senator Jessiman: Was Senator Thompson advised?
The Chairman: Are not all senators advised, Mr. Clerk?
Mr. Bélisle: Yes.
Senator Jessiman: Was he advised?
Mr. Bélisle: The order specified that I send him the order. I did not specify a date.
Senator Jessiman: I am not asking that question. We all received notice. I assume it went to my office. My secretary told me I had to turn up on a certain date. I understand he does not have an office or a secretary. My question is: Was he sent notice that we would resume on this date? The answer is either "yes" or "no." If it is "no," then I think we have a problem.
Mr. Bélisle: I cannot answer that now because the orders that go out as to when the Senate resumes are usually sent by the Deputy Clerk.
The Deputy Clerk, Richard Greene, is here. I will ask him how the notice that the Senate would resume on such and such a date was sent?
Mr. Richard Greene, Deputy Clerk and Principal Clerk: The practice in our office is that following a normal Senate adjournment, such as the Christmas adjournment, an e-mail is sent to all senators and all staff, giving the date when the Senate will resume.
Senator Kelly: With great respect, that hardly answers the question. Did that notification go to some place where Thompson would have received it?
Mr. Greene: No, sir, not from my office.
The Chairman: Please proceed, Mr. Maingot.
Mr. J.P. Joseph Maingot, Q.C., Advisor to the Committee: The houses of Parliament, each of the 10 provincial houses of assembly and the two territorial assemblies, and their respective members have had certain immunities and parliamentary privileges which have enabled them to carry out their constitutional functions since their creation. These privileges are also legal rights.
Privilege in the legal sense is an exemption from some duty, burden, attendance, or liability to which others are subject. Thus, parliamentary privilege, though part of the general and public law, is an exemption from the ordinary law.
Parliamentary privilege is the necessary immunity that the law provides for Members of Parliament and for members of the legislatures of each of the 10 provinces and two territories in order for these legislators to do their work. It is also a necessary immunity that the law provides for anyone taking part in a proceeding of Parliament or of a legislature. In addition, it is the right, power and authority of each house of Parliament and each legislative assembly to perform their constitutional functions. Finally, it is the authority and power of each house of Parliament to protect its integrity and to enforce its immunity.
Legislative bodies need this legal protection or immunity to perform their functions and to defend and vindicate their authority and dignity. They enjoy these rights and immunities because the legislatures could not perform their legislative functions without the unimpeded service of the members.
The Senate is a constituent element of Parliament. Its constitutional function is to study and pass legislation. Its members have the constitutional function of taking part in proceedings of the Senate. To assist them in fulfilling these constitutional functions, members have certain immunities traditionally called "privileges" and "rights." Similarly, the Senate has certain powers that are necessary to fulfil its constitutional functions. Privileges of members are fairly well defined. A privilege which is particularly well known is the freedom of speech in debate.
Legislation provides that the powers of the Senate are the same as the powers of the British House of Commons. These powers include the right to regulate its internal affairs free from interference, which includes the right to enforce discipline on members and the right to have the attendance of its members. This power also includes the right to administer its affairs within its precincts and the right to administer that part of statute law related to its internal procedure and internal affairs.
The resolution of the Senate on December 16, 1997 refers to contempt. When used in that context, it is a word we usually hear when we refer to a court of law. That is, contempt may be used to constitute any conduct that tends to bring the authority and administration of the law into disrespect or disregard. A court requires that power to uphold its authority and to protect its integrity. Similarly, the Senate needs to uphold its authority and protect its integrity. Accordingly, the Senate may hold someone in contempt for disrespect or for disregarding its orders and authority.
As you know, privilege proceedings commence by raising a question of privilege where it involves someone allegedly breaking a known privilege of members or someone allegedly showing disrespect for the Senate which does not involve any privilege, but rather a power or right of the Senate.
In this case, the procedure is a little different. While the procedure starts as a question of privilege, when the issue, as in this case, does not involve the breach of a member's privileges, such as, for example, threatening him or her to do what was said in debate, you would be otherwise involved in a matter of contempt being alleged.
Contempt may be aptly described as an offence against the Senate's authority, that is, its authority to make legitimate orders and its authority to protect itself from disrespect or disregard. Therefore, it may be seen that while you can define what is a breach of privilege because you can know what these privileges are, since they are known, you cannot really define what acts or omissions constitute contempt. Rather, contempt is what the house says is contempt.
If the Senate finds an act or omission constitutes contempt, what may it do? What power does it have in that regard? Both the Senate and the Canadian House of Commons have the same powers, privileges and rights as the House of Commons of the United Kingdom. That is set out in the Constitution Act and the Parliament of Canada Act.
The United Kingdom and Canadian houses may reprimand and expel, and have reprimanded and expelled, members. If the conduct or omission is such as to compel the Senate to do something because of its right to impose discipline on its members, it may administer a reprimand and suspend a member. The more grave punishment of expulsion is not so much disciplinary as remedial, not so much to punish members as to rid the house of persons who are unfit for membership in the estimation of the house involved.
There are many examples of expulsion in the United Kingdom House of Commons. In 1955, a member was convicted of a felony and expelled. When a member is expelled, his or her seat is declared vacant. In 1975, in the House of Commons of the United Kingdom, a member was absent for over four months and was, in fact, a fugitive from justice in Australia. The committee recommended his expulsion.
In Canada, in 1947, Fred Rose was expelled. He had been convicted of treason and because he was sentenced and was in prison for five years, he could not fulfil his role as a member of the house. His seat was declared vacant.
From time to time members are suspended for the rest of the sitting. When we hypothetically refer to expulsion from the Senate, we are not speaking of the qualification of a senator or a vacancy in the Senate as those issues are described in the sections of the Constitution Act. Rather, it is the issue of what it means when we say that the Senate has the same power as the House of Commons of the United Kingdom.
If the Senate has the same powers as the House of Commons of the United Kingdom and Canadian House of Commons, it has the right to regulate its internal affairs free from interference, including determining whether a person is unfit for membership, in which case the Senate may act accordingly.
You might ask if such a case of expulsion has ever come before the courts. As we all know, it has never been done. Members have been expelled; however, this has never been brought before the courts, as the cases are clear in most instances.
Senator Jessiman: Has contempt of the United Kingdom House of Commons common law been interpreted within the house or is there a statute which provides for it?
Mr. Maingot: It is part of the general public law. There is jurisprudence, case law.
Senator Jessiman: It is part of the common law; it is not in any statute in England?
Mr. Maingot: No. As in Canada, it is part of the jurisprudence, but case law that establishes that.
Senator Jessiman: Are you saying that there is no British statute that gives them the right? The common law is built up. We have assumed the common law of the United Kingdom and that is how we have jurisdiction. Are you satisfied of that?
Mr. Maingot: Yes. Section 18 of the Constitution Act says that the members of the Senate and the House of Commons have the same rights, powers and privileges as members in the British Isles.
Senator Jessiman: I know that very well. That was not my question. My question to you was: Is the right of contempt of the House of Commons and the House of Lords in England set out in a statute anywhere or is it set out in the common law that has been built up over the years?
Mr. Maingot: It is in jurisprudence; it is not in statute law.
Senator Jessiman: I should like to see some cases.
Mr. Maingot: It is a novel matter.
Senator Stollery: We are dealing with someone who never shows up. It is a fairly simple and straightforward question. We have a senator who does not show up. He is supposed to do public business, as we all do, but he does not attend. Apparently, he has not come here for quite some time.
We are dealing with parliamentary practice and procedure, not law per se. If you are appointed to go to Parliament and you do not go, I would think that, at some point, people would feel that you are in contempt of Parliament. On December 11, the Senate referred this to us and asked whether his absence constitutes a contempt of the Senate, which is also a contempt of Parliament, the Senate being one of the two houses of Parliament.
We have talked about this business of "when the Senate resumes sitting." I have been in Parliament for 26 years. If you tell me to attend "when Parliament resumes," I say that means the date when Parliament sits again. That does not mean three days after Parliament resumes. In my 26 years of parliamentary experience, that has a clear meaning.
Senator Jessiman: But you were told when Parliament was resuming. I was told. Everyone else was told.
Senator Stollery: The date could have changed. It happens all the time.
Senator Jessiman: We are all on the same side, but let us get our facts right.
Senator Stollery: The fact is that Senator Thompson has not shown up and he has not done so for quite a long time. At the Internal Economy Committee, for example, we unanimously agreed that until he showed up before the committee he could not have his office or his secretary or his telephones. There is a history to this. It does not just start here.
I should like to hear what our next expert tells us, but I think we are dealing with a relatively straightforward matter.
Senator Nolin: Perhaps the witness is not through.
Senator Jessiman: Our own rule 134 states that:
If for two consecutive sessions of Parliament a Senator has failed to give attendance in the Senate, the Clerk of the Senate shall report the same to the Senate, and the matter of such vacancy shall be heard and determined by the Senate with all convenient speed.
The Chairman: Could we let the witness finish, please?
Senator Gigantès: The learned counsel said to us that contempt is what this house says is contempt. That happens to be the fact. Nothing else counts except that.
Senator Jessiman: If you consider contempt as not turning up today, I suggest he is not in contempt.
Senator Gigantès: There is a history to this, as you were told by Senator Stollery. He has already been docked his office, his secretary, his telephone, his travel points, and his various allowances.
The Chairman: Order, please.
Senator Milne: Before we get into the debate on this, I should like to hear what all the witnesses have to tell us about it so that we can hear everything there is to know. We can then debate this. I should also like to hear a bit more from Mr. Maingot about the difference between expulsion and suspension.
Senator Lewis: I am a little troubled by what we are discussing here. We are talking about contempt. If you look at the motion, you can see there are several parts to it. One is that the Senate has ordered Senator Thompson to attend. The next paragraph orders that, should he fail to attend at that time, the matter of his continuing absence be referred to this committee for the purpose of determining whether his absence is a contempt of the Senate. The contempt there is of his continuing absence, not of his failure to turn up in February. These are two different things. Presumably, the matter of his continuing absence refers to the past, when he was not attending. That is what it appears to be. The order should be whether his failure to obey the order of the Senate and attend today is contempt.
Senator Nolin: It is one absence, namely, today's absence. In the French version, it is one absence. It is about today. We made an order; he is not showing up. It is up to us to decide whether that is contempt of the Senate. If it is, we will report back, period.
Senator Lewis: You then have another problem, namely, the translation.
The Chairman: We have two official languages. One of the two tells us exactly what Senator Nolin just read into the record.
Mr. Maingot, could you continue, please?
Mr. Maingot: With respect to the expulsion from the House of Commons, that has never been debated in the courts because that authority is clear. However, it has been done over the centuries in the U.K. and in Canada -- not frequently, but it has been done. With respect to the Senate, it is a novel point. It has never been raised. Senators have not seen fit to do that since 1867.
These rights, powers and privileges of each house are part of the general public law of Canada. That is set out in the statute. It also sets out that the courts must take judicial notice of these rights, privileges and powers of the houses. One of these rights is to control their own affairs and internal proceedings, free from interference. That is a matter relating to a right exercised within the walls of the house.
You do not exercise a right to sit from outside the house; you exercise it in the house. A matter which is a right to be exercised outside the Senate comes under the protection of the court. The discipline of a member by reprimand, suspension or expulsion is a matter relating to the Senate's internal affairs. That is to say, to sit in the Senate after being summoned thereto is a matter of right. You can argue that it is exercisable in the Senate and not elsewhere, other statutes notwithstanding.
Matters of procedure and discipline are matters that are traditionally considered by the house alone. Thus, if a statute spells out the procedure in the house, unless that statute is constitutionally entrenched, jurisprudence sets out that a house may depart from that procedure and change or supersede the law. In other words, internal matters are under the control of the house alone.
For example, a little over 100 years ago, in England, a member was obstructing the house because he was attempting to declare rather than to swear an oath. They suspended him. He brought that matter to court and the court said that what happens within the chamber with respect to internal matters is none of the court's business.
Beyond that, there was a recent decision in the Supreme Court of Canada, regarding a case in Nova Scotia which dealt with an internal matter, namely, the right to exclude cameras. One reading of that judgment implies that a matter such as the power of the house of Parliament to regulate its internal proceedings and internal affairs may now be part of the constitutional law of Canada. That is because the court said that if you have something that is historically settled as a practice or a privilege or a power, and if it is necessary in the sense that the dignity and efficiency of the house would not be upheld without that privilege, then it is constitutionally inherent. The Constitution says elsewhere that one part of the Constitution cannot abrogate another.
There is another procedure or option which has been started as a result of the action you have already taken with respect to the funds for the senator in question. The Parliament of Canada Act provides that members of each house receive a certain sessional allowance.
There is a section of that act that says that you can make the terms more onerous with respect to attendance and salary. One possibility -- and it has nothing to do with privilege -- is to pass a regulation, but then that regulation has to follow all other regulations. It is a strange thing. I do not think it is necessary. This has never been done by the house. As a matter of fact, you pass other regulations and some of them are exempted from the Statutory Instruments Act. However, traditionally any regulation you would pass would then be sent to the Department of Justice, and then in turn it would be studied by the Joint Committee on Scrutiny of Regulations. Members of the House of Commons and of the Senate would then be studying a regulation passed by the Senate. In my view, I think there was an oversight there, but that is a matter that can be dealt with. I am not sure that includes the expenses though; it might just be for the sessional allowance.
That is one procedure you could use. It could probably be done quickly, but as I say, it does sound a little strange to me that a regulation of the Senate would be scrutinized by Department of Justice and then returned to the joint committee.
Where a house proposes to impose discipline or otherwise take action against someone, that person usually, in the absence of exceptional circumstances, should be given an opportunity to be heard, or at least show cause why certain actions should not be taken. The exceptional circumstance in the case of Fred Rose was that he was in jail. They did not bother calling him to explain himself. Similarly, in the case in 1955 in the U.K, the fellow was in jail and they did not ask him to come and explain and show cause.
That is more or less all I have to say. With respect to the options, you may want to talk about them later, but I am open to questions, if you like, Madam Chairman.
Senator Nolin: Mr. Maingot, in your book, on page 239, you say:
Disobedience to rules or orders represents an affront to the dignity of the House, and accordingly the House could take action, not simply for satisfaction but to ensure that the House of Commons...
-- and I think that would apply to the Senate,
...is held in the respect necessary for its authority to be vindicated.
Do you see in the order that we gave to Senator Thompson on the 16th day of December, 1997, first, a proper action from the Senate? Was it a proper action taken by us?
Mr. Maingot: I think that would presume I had complete knowledge of what had happened beforehand and why the Senate decided to undertake this. I read the papers like everyone else but you are asking me whether it was correct on the part of the Senate.
Senator Nolin: Yes. And my second question will be: Does this paragraph that I just read regarding disobedience to the rules apply to the action that we took on the 16th of December?
Mr. Maingot: I will deal with the first paragraph first. The first paragraph orders that Senator Andrew Thompson be ordered to attend when the Senate resumes. He did not attend.
Senator Nolin: We gave an order and he did not show up.
Mr. Maingot: So, prima facie, it is contempt. Contempt is disrespect or disregarding an order.
Senator Nolin: It is your testimony that it is contempt of the Senate?
Mr. Maingot: It is clear to me that that represents contempt.
Senator Nolin: Does this paragraph that I just read for the benefit of my colleagues entitle the Senate to say, "We can now take action to make sure that we have the necessary respect and the authority not to be vindicated?" I am trying to paraphrase your paragraph.
Mr. Maingot: Yes. First, there is an order of the institution, of the assembly. That order is not followed or fulfilled. That represents disregarding that order. Contempt is not respecting the house in a variety of ways, not following the order or disregarding the order, so from point of view of definition, that constitutes contempt.
Senator Nolin: In many places in your book you make a parallel between the House of Commons or the Senate and a court, a superior court, let us say, of Quebec, dealing with contempt. So it seems that now that we have come to the conclusion, in light of what we have ordered Senator Thompson to do and the fact that he did not show up today, that we are faced with contempt of the Senate and therefore we can take action. Can you expand on the various actions? You mentioned some options. Are those the only options available to us?
Mr. Maingot: I think it all depends on the enormity of the circumstances, with all due respect. The options are censure or reprimand. The last time someone was reprimanded in Canada was when a member saw fit to abuse the Mace in the House of Commons just a few years ago. He was called to the Bar of the house and the Speaker said things to him representing a reprimand for what he had done. Usually the person would be called to the Bar.
The other option is suspension, which has been done frequently in the past. Members of the House of Commons are suspended, not infrequently, for one reason or another, for the day. Under suspension, you still remain a member but you are suspended for the time designated. Usually the Speaker mentions how long you will be suspended. I believe in the House of Commons the Speaker may suspend for a day; otherwise, it would require an order of the house. That is another form of discipline.
If you are going to go beyond that and expel a person -- and this is in the U.K. and still the thinking here in Canada -- usually it is a serious matter. Of course it is very serious so the circumstances have to be serious. It would have to be something involving moral turpitude such that, at least in the opinion of the members of the assembly, the person is unfit to be a member of that assembly.
Senator Nolin: Can we fine him?
Mr. Maingot: No. The reason why, I would suggest with respect, is that at the time the privileges of the U.K. house came to Canada, the U.K. house did not have the power to fine.
Senator Nolin: Is it because they had it in the past and they just did not use it and, for that reason, they did not have that power any longer?
Mr. Maingot: They had not used it for about 200 years in the U.K. but I think it is clear in Canada that neither house of Parliament can fine. As you know, the National Assembly of Quebec can fine a member because they passed legislation to that effect.
Senator Nolin: Because the National Assembly in Quebec has such a rule, they can fine one of their members?
[Translation]
Mr. Maingot: It is not simply because they have rules, but because they passed the bill.
Senator Nolin: Within the regulatory or legislative framework in Quebec, the National Assembly could fine one of its members in a situation such as this one.
Mr. Maingot: Yes, because the National Assembly cannot change the law. Questions of privilege come under Canada's laws. These laws do not allow for a fine in this case. If you want to change the law, you will have to amend a statute.
Senator Nolin: If we passed a law that allowed us to fine a colleague in a similar situation, we could do so.
Mr. Maingot: Yes.
Senator Nolin: But we cannot do so now because we do not have the necessary legislative framework.
Mr. Maingot: Yes.
[English]
Senator Stollery: As I understand, Mr. Maingot, it states in the order that we have to make any possible recommendations within two weeks from the day the matter is referred to the committee. Given what lawyers call due process, and after listening to what you have said, I assume that there should be an opportunity for Senator Thompson or his representative to come before the committee and explain himself. I do not want to put words in your mouth, but I thought that is something approaching what you have said.
Mr. Maingot: Yes, that is right, senator.
Senator Stollery: In your opinion, it would not be unusual for us to take the next step and say that within a few days Senator Thompson, or his representative, has the opportunity to come to the committee and explain himself before we take action. Does that sound like an appropriate way to go about it?
Mr. Maingot: It does. You do not have to provide that opportunity, because, generally speaking, the technical rules of evidence do not apply in a Senate committee or in the house, period. As I say, normally you give the person an opportunity to be heard.
[Translation]
Senator Grimard: You suggested and explained earlier three possible sanctions: a reprimand, suspension for a specific period, and expulsion.
In the brief which was distributed to the senators, a passage from a lecture given by Mr. Dawson mentions on page 10 that Senate privileges cannot go against the British North America Act, which clearly stipulates the grounds for removing a senator. The Senate could not by itself, under any pretext, do anything to extend or amend these conditions.
That is still where things stand today. There is no doubt that the Senate does not in fact have the absolute power to expel a senator.
What we are told by Mr. Dawson goes directly against your own statement and I would like additional explanations when you say that we have powers to expel Senator Thompson. I add that I in no way agree with what he is doing, but I am a lawyer and I like things to be clear. I see a direct contradiction between what you said earlier and the opinion given by Mr. Dawson, whom I do not know. I would like to hear what you have to say.
[English]
Mr. Maingot: I do not disagree. I read what the eminent professor said.
First of all, this is a novel matter. There is no jurisprudence on it. However, Mr. Dawson does not talk about the fact that the Senate has the same powers as the U.K. Commons and the House of Commons of Canada. If you go through the list of powers of the U.K. Commons, you will se they have that power. Why did they put in the Constitution Act that the Senate could have the same powers as the U.K. Commons, while at the same time spelling it out in two sections, one section with respect to qualification and another with respect to vacancy? That way, one type of vacancy is not the same as the vacancy that arises when you use your privilege to determine who should sit in your house and who should not.
My review of the jurisprudence suggests that there is a very good argument for permitting the Senate, if it has the same powers as the U.K. Commons, to expel a member. However, as I say, there is no jurisprudence because it has not been dealt with. There was a case involving a senator on another matter, but the time limit had passed.
The Supreme Court of Canada dealt with a case from Nova Scotia about excluding cameras from a meeting. They also talked about the deference that courts have towards the legislatures and each house of Parliament. They have a very high deference for what members do inside their houses. One of the reasons for that deference is historic. The other reason is that they are not affecting the rights of anyone outside the house, whom the courts can get at.
In that case before the Supreme Court of Canada -- and I suggested this in my book -- the court said that the houses kept within themselves the ability to resolve their internal procedures and internal matters, so that it is now constitutionally inherent. Mind you, a court would have to look at this situation and ask what you are trying to say here. Is it something that has been done traditionally and historically? Can you base that in history? I say you certainly can.
Then you have to answer this question: Is it necessary for the house to maintain its dignity and authority to determine who should be a member and who should not be a member?
Those are the questions that the courts have been answering over the years. Over the last century and a half, they have said that the House of Commons can decide with respect to its members, procedures and internal management.
The Supreme Court of Canada implied that this power to deal with internal affairs may be constitutionally inherent, in which case it is part of the Constitution. No matter what any other part of the Constitution states, the houses have that power.
Senator Milne: Mr. Maingot, I should like your opinion on three things. The first is the matter of contempt. It seems to me that Senator Thompson is in contempt of this house for two reasons. First, he has not shown up when ordered to appear before this house.
Second, he is also in contempt, as Erskine May says on page 125:
by bringing such House into odium, contempt or ridicule or by lowering its authority.
He certainly has brought us into odium, contempt, and ridicule. It seems to me he is guilty of contempt on two aspects here.
Although expulsion is rare, and Dawson seems to think that we should not be doing this, Erskine May indicates that expulsion may be regarded as an example of the house's power to regulate its own constitution. Members of the house have been expelled where the proceedings have been founded upon reports of committees of the house. It seems to me that the Senate itself may have the power to expel a member, depending on the report of this committee.
The third point upon which I would like some clarification is the matter of fines. You say we cannot fine him. However, if we are away for more than 21 days per session, we are docked $60 of our sessional allowance and $60 of our expense allowance for a total of $120. It says quite clearly that we can increase the penalties, if we so desire.
Senator Stollery: Is the sessional allowance the same thing? I did not think they were the same.
Senator Milne: I should like your opinion on that, sir. It may not be defined as a fine, but, in effect, it is, and we can increase that amount if we so wish.
Mr. Maingot: The fine is one thing. As I say, I am of the view that neither the house nor the Senate can impose fines on their members for whatever. With respect to the sessional allowance, I think I mentioned --
Senator Milne: We presently do impose fines.
Mr. Maingot: By docking, yes. That is in legislation, but it is part of the internal management and internal proceedings of the house. I do not know what kind of reply you expect, but with respect to the part of the Parliament of Canada Act that says that they can make it more onerous, I said earlier that I question whether you need to go through. You have, in effect, the regulation of the Senate, and the procedure is that that regulation, because it is not an exception from the Statutory Instruments Act, must then go to the Department of Justice for scrutiny and then eventually to the joint committee of the Senate and House of Commons. It does not quite make sense. I think there was a slight error in putting it that way.
Senator Milne: Error or not, sir, what do you suggest we do? What is your recommendation?
Mr. Maingot: I do not make a recommendation; I simply suggest what powers you have, and then you would make the decisions.
Senator Lucier: I am not a lawyer, and I feel like I am on strange ground here. The last thing I want to do is defend Senator Thompson at this point. He was a friend of mine at one point, but I do not consider him a very good friend of mine any more. I think he has done us some very serious damage.
However, I refer to an Act respecting the Parliament of Canada, Chapter P-1. I assume that that is still law. Section 57(3)(a) reads:
a member of either House of Parliament did not attend a sitting thereof by reason of public or official business
Neither public business or official business are defined. If Senator Thompson were today speaking to a chamber of commerce dinner in Toronto, he would be doing public business and would be excused, it seems to me, from being here, regardless of what we may or may not have said to him.
Mr. Bélisle told us a while ago that he has a valid medical certificate. Should we not deal with that before we deal with the other things? If he has a valid medical certificate saying that he does not have to be here, can you still send him a letter and say, "To hell with the certificate, be here"?
I am not trying to be obnoxious. I really want some answers to these questions. We are talking about contempt, and I have no doubt that Senator Thompson is holding us in contempt, but it seems to me that we have not established at this point that he is required to be here today.
Mr. Maingot: Senator, I do not think it is my role to determine how you find whether someone is in contempt or not. That is the role of the senators themselves. I could not answer that question.
Senator Lucier: It is within the provisions of the statute.
Senator Jessiman: I would think we have to give him notice that he must appear before some committee of the Senate. If this is the committee, then tell him he has to be here, either himself or a representative, to explain that he either cannot be here for proper medical reasons or whatever reason he has for not being here these many years. Explain that if he does not give the proper answers, we will find him in contempt of the Senate and expel him. However, give him that notice and tell him he has so much time to be here to prove his case or otherwise. If he comes and proves his case, we will just have to wait. He only has two years left.
Senator Gigantès: On the question of a proper medical certificate, Mr. Clerk, is there a proper medical certificate? You said earlier that what constitutes a proper medical certificate is a little loosely defined.
Mr. Bélisle: That is not what I said. The policy is not clear as to when a medical certificate should be given. There is nothing specifying that it should be after three days or after six days. We have looked into the records going back to 1976, I believe, and we could not find the requirements to file the certificate. However, I am telling you that there has been a certificate on file.
Senator Gigantès: Can you give us a date for that certificate?
Mr. Bélisle: November 18, 1997.
Senator Gigantès: Do you have the dates of all previous medical certificates submitted by Senator Thompson?
Mr. Bélisle: Yes, I do.
Senator Gigantès: When did they start?
Mr. Bélisle: I have one dated March 6, 1985.
Senator Gigantès: Is that the earliest you have?
Mr. Bélisle: According to my records, yes.
Senator Gigantés: We have a case of long-term disability by Senator Thompson and we have a program of long-term disability in the Senate. It does not apply to people over 65, but we can make it apply over 65 by simply saying to him we will give you 70 per cent of your salary, which is equivalent to his pension, and that is it.
You cannot have more long-term disability than from 1985. This is 12 years of disability. He is in a case of long-term disability, so we declare that he is a case of long-term disability and we pay him long-term disability. I know the regulations are a little difficult on that, but we have the right to change them.
Senator Stollery: I know Mr. Audcent will give us some very important information, but this is not a very complicated problem and I agree with Senator Jessiman. I do not think I need to have a lot more information about Senator Thompson. I do not think anyone in the country needs to have a lot more information about Senator Thompson. I am a member of the committee at this point and I am prepared to move a motion. I agree with my honourable friend opposite that Senator Thompson be requested to appear before this committee on Tuesday next and explain himself.
I do not see a sessional indemnity as a fine. Somehow that does not sound to me like the same thing, or we will be removing his indemnity, however that is described, for this session. You can put that in language that will be appropriate so we will not have any confusion over the date, whether it is the first or the second.
We are starting to go around in circles. We should deal with this matter and get out of here, because the meeting at which we decide what we will do with Senator Thompson will be the next meeting, if he does not appear.
Mr. Mark Audcent, Law Clerk and Parliamentary Counsel: I have been asked to give you an overview of the law governing the attendance of senators. My presentation is about 12 minutes and is divided into two parts. The first is a review of basic concepts and the second is a review of the law today. I begin with basic concepts of attendance.
Each of you was summoned to public service by a writ of summons. The writ recites:
...the purpose of obtaining your advice and assistance in all weighty and arduous affairs which the State and Defence of Canada is concerned.
It commands you that:
...all difficulties and excuses whatsoever laying aside, you be and appear, for the purposes aforesaid, in the Senate of Canada at all times whensoever and wheresoever Our Parliament may be in Canada convoked and holden.
It concludes with the words:
...and this you are in no wise to omit.
Your first predecessors in office were summoned to service in 1867 by an almost identical writ. The basic concept of attendance for senators implicit in these writs of summons has not changed since Confederation. When Parliament is in session, senators are on active service.
What has changed is the length of the period of time covered by the summons. The first senators came to Ottawa for sessions of two or three months in length. Today, senators serve for sessions that are typically two years long. In 1994, the Lapointe commission to review allowances of members of Parliament, while speaking specifically of senators, acknowledged at page 88 of its report that:
...the job of a Member of Parliament has been full-time for at least the past quarter century...
What has also changed is the place of service. In 1867, senators came to and stayed in Ottawa for the length of the session. Today, air travel allows senators from even the furthest regions to commute at need between Ottawa and their provinces of residence.
It is, of course, good constitutional law that the Senate has the right to the attendance of its members and that senators have the right to attend to the affairs of the Senate. In the words of my eminent colleague, Joe Maingot, in Parliamentary Privilege in Canada, second addition, at page 151:
This is because the most important body in the country, the Parliament of Canada, has first call on the services of its Members and, except in the case of criminal matters or breaches of provincial statutes (quasi-criminal) which involve the summary jurisdiction of the Criminal Code, Parliament will not tolerate impediments to Members who are on their way to sittings.
In the footnote to this passage Mr. Maingot notes that the protection extends beyond sitting days. Having established that senators are on active service at all times during a session, and their duty and right to attend, it has never been the rule or expectation that a senator must attend without fail all sittings of the Senate and of committees of which the senator is a member. Proof for this latter proposition is found in the Constitution, as well as the ordinary statute law.
In planning for the Senate prior to Confederation, the fathers inserted a clause into the Constitution providing that the place of a senator was to become vacant if for two consecutive sessions of the Parliament the senator fails to give attendance. This test obviously allows leeway for non-attendance, the extent of which expanded as parliamentary sessions have lengthened.
As for ordinary statute law, the Members Indemnity Act, Statutes of Canada 1867, chapter 3, received Royal Assent on December 21, 1867. It provided for sessional indemnities and allowances for senators and members of the House of Commons, and also provided for a deduction for non-attendance. No deduction for non-attendance would have been necessary if perfect attendance were contemplated and expected.
To summarize the five points that I have made so far under this heading: Parliament is the most important public body in the country and its business is the most important public business of the nation; at all times that Parliament is in session senators are on active service; the Senate has the constitutional right to the attendance of its members; senators have the constitutional right to attend to Senate business; and perfect attendance is neither contemplated nor expected.
I now turn to the existing law governing the attendance of senators. Whether well governed or not, attendance in the Senate is hardly under-governed. There are in place two legal regimes, which I shall call the constitutional and pay regimes respectively, and one administrative regime, the policy on senators' attendance register.
Beginning with the attendance register for constitutional purposes, we have already seen section 31 of the Constitution Act 1867, which provides that:
The Place of a Senator shall become vacant in any of the following Cases:
(1) If for Two consecutive Sessions of the Parliament he fails to give his Attendance in the Senate:
The Senate relies on the Journals of the Senate to establish the constitutional right of each member to sit by confirming their attendance on the public record. The Senate also relies on the journals to know when a question of whether a seat has been vacated for non-attendance must be raised. The Rules of the Senate have long contained a rule requiring the Clerk of the Senate to report a senator's failure to attend for two consecutive sessions to the Senate. The rule is currently numbered 134.
Turning to the attendance regime for pay purposes, the rules are set out in the Parliament of Canada Act. The act provides senators with two allowances, both subject to deductions for non-attendance. Although senators are on duty at all times during a session, deductions only operate with respect to days on which sittings of the Senate are missed. More specifically, section 55 provides senators with a sessional allowance at a rate calculated per annum. The allowance is currently $64,800. Subsection 63(3) provides you with an expense allowance as well, currently set at $10,100. As for the deductions, subsection 57(1) of the act provides for a deduction of $60 per day from the sessional allowance for each day of non-attendance in the Senate beyond 21. Subsection 63(4) provides for a deduction from the expense allowance equal to the deduction from the sessional allowance provided in section 57.
I now turn to the exceptions from the deductions. These are the provisions that have the effect of waiving a deduction in respect to the day that a senator does not attend to the chamber for a sitting. Subsection 57(3) provides that days that a member does not attend a Senate sitting, by reason of public or official business because the Senate has adjourned over or because the member is ill, shall be reckoned as a day of attendance. Section 58 provides that days that a member is on military service, although not reckoned as a day of attendance, are not computed in calculating the deduction from a sessional allowance.
The difference in language between these two provisions is most revealing. While military days are not computed in calculating a deduction, public or official business days, adjourned over days and sick days are all to be positively reckoned as a day of attendance.
As for accountability, section 65 requires every member of Parliament to provide the Clerk of the house with a signed statement of attendance for the purposes of the expense allowance. It must state the number of days during the month or session for which the member is entitled to the expense allowance and, in the case of the inclusion of failure to attend by reason of illness, it must set out that fact and that the absence was due to that illness and was unavoidable.
Finally, section 59 allows the Senate to make regulations by rule or order to make more stringent the provisions of the act that relate to the attendance of members or to the deductions to be made from sessional allowances. This power is not worded widely enough to allow the Senate to make regulations to increase the deductions from the expense allowance. No regulations have ever been made under this section. Whether by accident or by design, the making of regulations would be subject to the provisions of the Statutory Instruments Act, which provides for an examination process by the Department of Justice for such things as vires, proper use, consistency with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, and form and draftsmanship.
I now propose to say a few words with respect to each of the classes of authorized absences. The most obvious class is that of days that the Senate is adjourned over. I mention it only to emphasize that sessional days that the Senate does not sit are still working days for senators. Sight can be lost too easily of all the public business accomplished by senators on non-sitting days.
With respect to the class of illness, we have noted that the Parliament of Canada Act provides that a day of illness is reckoned as a day of attendance. In order to claim a day of illness, a senator is required by law to represent in writing that the illness was unavoidable. In the Senate, the practice has long been for senators to file medical certificates with the Clerk of the Senate. Senator Laird refers to the practice in speaking to the Senate on February 25, 1976, as recorded in the Senate debates at page 1790. Related to days of illness is the absence of a long-term disability policy specifically tailored to the needs of senators to which a senator who wishes to resign for health reasons could have resort to remain financially whole.
With respect to public or official business, this class of authorized absence is a new one, having been introduced only in 1963. The expression is undefined in law and it applies to members of the House of Commons as well. That house uses it in by-law 101 of its by-laws as one of the elements making up the definition of "parliamentary functions." Senators, and the Senate administration, have long conducted themselves and based their decisions on an opinion given on November 14, 1974, by one of my predecessors in office, Mr. E. Russell Hopkins. The essence of the opinion is that public or official business clearly excludes private business. "Official business" means the business of the Senate or the Government of Canada; "public business" means public business in the broad sense of the term. For example, public speaking engagements as a senator, or travel to and from Ottawa that is interrupted for weather or other scheduling reasons.
Mention has also been made of the class of military service. The qualifying kinds of service are set out in the act.
The last class of authorized absences are the 21 days of unexplained absences -- grace days, if you will. They are authorized by law but no justification for them is found on the face of the law. I understand them to be in the nature of special leave. They can serve to cover a wide range of special circumstances such as family leave, medical appointments leave, leave for religious observance, marriage leave, management leave, bereavement leave and, most especially, leave simply to cover the basic difficulties associated with working in Ottawa and living in a province of residence that can be half a continent away.
Leaving the attendance regimes for constitutional and pay purposes, honourable senators, there is, finally, the senators' attendance register. Administered under a policy of the Senate adopted in 1990 and used to provide a vehicle for the purpose of section 65 of the act, the register was really created in the interests of transparency to provide information respecting senators' attendance to the public. The Clerk of the Senate has indicated to me that he will be speaking to you about the register.
Honourable senators, you are authorized to examine and report upon any and all matters relating to attendance in the Senate. I trust that this overview of the law governing the attendance of senators will serve as a useful starting point for your study and I am available for your questions.
Senator Stanbury: That was an excellent exposé. Thank you very much. I have known Joe Maingot for many years and I have great respect for his opinion, but from the explanation of the law as you have given it, I wonder whether it applies to a person who has been properly appointed to the Senate and has not broken any statutory rule. The statute says that a day when you are ill is a day of attendance. It does not say how that has to be proved, but our practice has indicated that a certificate from a doctor is sufficient.
We have not examined the doctor or asked for consent to discuss the matter with the doctor to find out what the illness is or how serious it is, or even to ask the doctor's opinion as to whether the illness has been serious enough to cause the absence. I am saying all this because of what Senator Jessiman and Senator Lewis said earlier. I do not want to get into a legal quagmire. I have lost patience with Senator Thompson, too, and I am one of his oldest friends. I cannot find it in my heart to forgive him for what he has been doing to the Senate. Morally, I am mad as heck at him but, on the other hand, legally he has done everything that we are supposed to do, as far as I can tell.
Perhaps I am wrong. If I am, I should like to have it pointed out to me. He has put in the certificates as regularly as he has been asked for them, or as he has felt that they are required. They say he is sick. He says he is sick. At least that was the import of the latest message. That has always been the case. He did come up here a few months ago for a sensitive vote and he told me afterward that the doctor sent him to the hospital for two weeks and told him he must never come back again because it was too hard on him.
He says he is sick; his doctor says he is sick. As far as I can see, we have done nothing to question the validity of the certificate or of his word other than that it is pretty exasperating to see the press pictures of him sitting in Mexico looking perfectly healthy. We have all had enough illnesses and experience with illness to know one can be ill and still look quite well. I do not have any evidence at this point that it has been impossible for Senator Thompson to attend. I am concerned that we may get ourselves into a position where we have egg all over our faces because we make some kind of an order which can be answered quickly -- if only he would come and answer it -- by simply saying, "I have done everything that I was supposed to do."
Mr. Audcent: Senator, you have raised many issues seriatim. I shall try to address them all. The first issue relates to the facts concerning Senator Thompson. Senator Thompson deals with the Clerk and files his information with the register. This committee should be sensitive to a fine line here between what is the public information for the register and what is private and personal information that anybody would care to have discussed in a public meeting. I do not know where that fine line is. However, I certainly know that you are all conscious of it as you ask your questions. What is filed on the public register is one thing and the additional information that may have been provided to the Clerk's office is another. The facts of the case are something that you must work out with the Clerk.
With respect to the law, all laws have purposes. They must be read within the purpose for which they are created. The law says that for pay purses -- not using those words but that is what we are talking about -- a day of illness is reckoned as a day of attendance.
For purposes of pay, the law provides that if you are sick, you are in attendance. I do not want to judge the facts of the case but that does add a further problem in that if Senator Thompson is not outside the law, then you must examine the purposes of that reference. However, this does not mean that the issue of contempt is not raised. Contempt is undefined and something that brings the dignity of this house into disrepute, irrespective of whether there is a breach of the law. Not all acts of contempt would be breaches of law, but they would still be acts of contempt. Irrespective of the law of how we count attendance and deduction is the issue of contempt that is also referred to you and that you must weigh in your minds.
I wish to add to the debate on expulsion. I have just heard Mr. Maingot's presentation and I look forward to reading the transcripts and reflecting on it. It concerns me, because we are all aware of what Senator Dawson wrote many years ago.
Another factor that you might want to take into account is the wording of section 29 of the Constitution Act, 1867, which says:
(1) Subject to subsection (2), a Senator shall, subject to the provisions of this Act, hold his place in the Senate for life.
Even though the provisions of this act are wide enough that they may include not only the vacancy but the privileges and powers section, the tenor of section 29 raises a serious question.
Senator Gigantès: There is a document sent to us each year by Mr. Pierre Renaud of the finance directorate which describes our insurables. It contains a section addressing long-term disability. Am I to understand that this section, which is addressed to senators, does not apply to senators?
Mr. Audcent: Senator, subject to confirmation of the exact details of what I say by the director of finance, who administers that program, let me give you my understanding of the situation.
Senators are entitled to the long-term disability program or policy that is available to public servants in the public service of Canada. The problem is that you are not entitled to become eligible at any time after age 65. Senators retire at age 75, so there is a 10-year gap there. More important, I understand that there are problems for anyone appointed to the Senate after age 40 in terms of the contributions they have made in order to be entitled.
Senator Lewis: As I understand it, under this motion we are to investigate and report back to the Senate with recommendations.
I am inclined to agree with Senator Stanbury on this matter. Without knowing more facts, Senator Thompson appears to be within the statutes. We must then make recommendations. We cannot take steps ourselves.
As Senator Stanbury has said, we would report that Senator Thompson has acted within the statutes. However, that leaves the other question of the order that the Senate made that he attend today; the question is whether he is in contempt of the Senate in disobeying that order and not attending. There may be a good reason or excuse, I do not know. However, that seems to me to be the question we are faced with.
From what we have heard and read, if we made such an order, his failure to obey it could be described as contempt. On the face of it, he appears to be in contempt of that order. However, it might be that we need to determine whether there was sufficient notice to Senator Thompson.
[Translation]
Senator Nolin: Mr. Audcent, you heard the entire debate this afternoon. You are familiar with the facts at hand. Do you have any comments about the suggestion of Senator Stollery to require the presence either of Senator Thompson to explain the reasons of his absence today, or of his advisor or agent if it is impossible for him to appear before this committee? Second, a week's notice might not be quite enough in view of the distance involved.
Mr. Audcent: In reply to the first question, I cannot give you the reference, but I have read texts stating that it did happen once that a committee reported to the House and that the House decided to invite the senator to come and present his case. You are not the final level. You will be reporting to the Senate and the Senate will decide what happens next. It may decide to invite Senator Thompson to provide some explanations based on your report.
You could invite Senator Thompson to appear before your committee and have him appear before the Senate after you submit your report.
As for your second question, a delivery through Federal Express takes about four days, which means that you can settle on six days to be sure.
Senator Nolin: In civil courts, witnesses have at least five days between the date when they receive a subpoena and the date when they must appear. We should at least give him these five days.
[English]
Senator Stollery: We have already been asked to go backward, I guess. We have already, in our order, asked him to show up in the chamber, which he has not done, so the chamber has asked this committee to look into it. I would, of course, stick to the motion which I will put, if someone else does not have an appropriate one, that Senator Thompson must appear before this committee on whatever a reasonable day would be, and I would suggest Tuesday next.
To respond to Senators Stanbury and Lewis, it is true that technically we could say that he has met the conditions of the certificate, et cetera. However there is a history to this. We cannot ignore the history. As one newspaper article stated, when Senator Thompson was last seen in Mexico he was talking about Senate reform. There is a history that we have dealt with at Internal Economy. This is not something that suddenly arrived because of this motion. This motion itself is part of a sequence of events that was set off by the global budgets. There is a history that we may not want to discuss here, because it would be boring to people who are not aware of it.
I do not think that we can say today that Senator Thompson is in contempt and in our opinion is not going to show up, without hearing from Senator Thompson, or at least making ourselves available for Senator Thompson to make his case. I am not opposed to that. I think that is a reasonable procedure. I do not think we can do anything until we do that, but I do not think that should take place next month.
I like Senator Thompson. I have an opinion of him similar to that of some of my colleagues. However, this has gone way too far and we have to deal with it. We cannot continue to fool around. When we had the discussions on office budgets we spoke to Senator Thompson personally. We have received personal assurances from Senator Thompson. It has not been only by mail.
There have also been attempts by the Clerk and the Whip to contact Senator Thompson. There has been a motion in existence since December 16. It is reasonable to assume that Senator Thompson is aware of this motion. There has been contact. Therefore, I do not think we should go a great deal further on this matter today. We have heard some excellent testimony and the next step is clearly to invite Senator Thompson here to explain himself, and I would suggest that that be done next week.
Senator Nolin: I think we should recommend that he come with his own witnesses whom we can cross-examine. We are now to the point that we will question his medical certificate. We have received various documents stating various kinds of illnesses. We need to be focused to know exactly what we are dealing with.
Senator Lewis: My only observation is that the motion states that he report within two weeks of the day the matter is referred to the committee.
The other issue is that we cannot order him to come. Only the Senate could do that. You first said "order" and then later said "request" him to come. I am wondering whether we might have to report to the Senate.
Senator Stollery: We are a committee of the Senate.
Senator Lewis: Do we have inherent powers to summons people?
Senator Stollery: Let us put it this way: If he does not want to obey our request to come before us, that is his decision and then of course we continue to the next step. However, it seems to me that in legal terms you have the right to be heard -- due process. I think that we must proceed on the principle of due process. Whether he wants to take up the offer is entirely up to him.
Senator Lewis: I have no objection to that. I just want to ensure that we can get it within two weeks.
Senator DeWare: I agree with the motion. I was just want to clarify something that was brought up at the very beginning of this meeting about the date. Today's Journals of the Senate indicate that when Senator Carstairs moved that the Senate adjourn on December 18, she said that the Senate would adjourn today and stand adjourned until Tuesday, February 10 at 2 p.m. She said it that day and it was public knowledge. When the Clerk told him that he had to be here, all he had to do was pick up the phone. That should clarify the fact that we all knew what day we were coming back.
Mr. Bélisle: On the question of the date, that is usually the public notice. A while ago it was explained to you that a notice was sent. There is no obligation in the rules to do that. It is just an internal matter that we send an e-mail informing the staff and the senators that we are resuming on such and such a date.
The only provision in the rules is rule 17 which talks of a recall. That means that if the Senate had resumed on February 1 instead of February 10, there is a question of recall. That rule reads:
During any adjournment of the Senate, if the Speaker is satisfied that the public interest requires that the Senate meet at an earlier time...communication to each Senator at the address last filed by the Senator with the Clerk of the Senate and to the Senator's office...
That is for a recall. At the end of this, there is the part dealing with non-receipt of notices, which states:
Non-receipt by a Senator of the notices referred to in subsections (1) and (2) does not affect the validity of the notice.
That is for recall. For a resumption of the Senate, it is the Journals and senators calling my office and finding out when the Senate is to resume, if they were not there on that last date. There is no rule that obliges me to send a notice, and the order itself did not oblige me to do anything other than send the order.
Senator Robertson: Are all the medical certificates from the same physician, or is that confidential?
Mr. Bélisle: I would have to look. There are more than one since 1985.
Senator Robertson: Mr. Audcent, does this committee have the authority to subpoena witnesses?
Mr. Audcent: You can call witnesses, senator. I am not sure if you can order them to appear, but I do know that in order to enforce an order you have to go back to the chamber.
Senator Robertson: So we could go back to the chamber and ask for approval.
Mr. Audcent: But he has already been ordered to appear.
Senator Robertson: I am thinking of doctors. We may have to have doctors as witnesses.
Mr. Bélisle: I would have to verify whether you can summon one of your own members. I am not sure about that. You can subpoena a witness.
Senator Stollery: It is in the motion.
Senator Robertson: I know it is, but I do not know if it is proper.
Senator Stollery: What if the doctor will not give evidence? This subject has come up in Internal Economy in camera so I do not want to say too much, but we have gone through this and found that the route that we followed was the better one. We considered some options. I do not want to go into them, because it was an in camera discussion, but the route we are taking is the one that we thought was, on balance, the best.
I do not really want to get into the doctor's certificate and call the doctor. Who gives out these certificates? It is a fair question.
Senator Gigantès: On this issue the doctors would invoke patient-physician privilege and would not answer our questions, as they should not.
Why do we not ask the Senate tomorrow to order him personally to appear -- personally, not a representative.
The Chairman: I think a representative may involve hearsay again. I leave that with you, just to think about.
Senator Lewis: As far as the certificate to cover his absence, I take it the administration was satisfied with the medical certificate received, which would permit his absence not to be treated as an absence for pay purposes? In other words, the administration was satisfied with that certificate and did not make any deductions from his remuneration?
The Chairman: Before the clerk responds, I did understood him to say there were several certificates signed by different doctors. Is that true?
Mr. Bélisle: Yes, over the years.
The Chairman: Thank you.
Senator Stollery: Can we deal with the motion?
Senator Lewis: The administration has been satisfied with the certificate that has been filed, so while Senator Thompson was absent there was no deduction from his salary?
Mr. Bélisle: Senator, we do not pass judgment on medical certificates. Usually medical certificates from doctors will indicate that the senator was unable to attend and will give reasons. There is a signature; it is on letterhead of the doctor; it is an original. We do not pass judgment on whether a senator is ill or is in good health.
Senator Lewis: I was not asking whether you pass judgment on the reasons. You were satisfied on the face of it that these certificates covered the situation?
Mr. Bélisle: Yes.
Senator Stollery: Can we deal with the motion, Madam Chairman? Does next Tuesday seem reasonable, at four o'clock?
The Chairman: Next Tuesday, the NATO group is meeting. The chair of the Internal Economy Committee, which was in the first order from the Senate, will not be here until Tuesday evening at 6:30 or so, and I will not be here until Tuesday evening at around 6:30. I wonder if we could make it Wednesday evening at seven o'clock?
Do you want to send another letter? If you want to go back to the Senate first, we cannot do anything about it tonight, but if you want to send another letter, I have a possible draft which reads:
Dear Senator Thompson:
As you are aware, on December 16, 1997, the Senate adopted a motion requiring your attendance in the Senate when it resumed sitting in February 1998. You were notified in writing of this resolution by the Law Clerk and Parliamentary Counsel of the Senate.
The Senate resumed sitting at 2:00 p.m. on Tuesday, February 10, 1998 following the Christmas adjournment. The attendance record of the Senate for that date indicates that you were not present in your place.
Pursuant to the motion of Senator Kenny adopted by the Senate on December 16, 1997, in the event that you failed to attend on this day, the matter of your continuing absence is referred to the Standing Senate Committee on Privileges, Standing Rules and Orders for the purposes of determining whether your absence constitutes a contempt of the Senate. The Committee is to report its findings and any possible recommendations within two weeks from the day the matter is referred to it -- that is, no later than Tuesday, February 24, 1998.
There is a prima facie case that you have disobeyed an order of the Senate, which, as such, constitutes contempt of Parliament. The Committee, therefore, asks that you...
-- and I could, if you wish, add "or your representative."
Senator Stollery: No.
The Chairman: No representative.
Senator Stollery: What do the legal people think?
Senator Nolin: Everyone has a right to counsel.
The Chairman:
The Committee, therefore, asks that you or your representative...
Senator Gigantès: You can put "and your representative" if you want, but this is a witness. We do not accept a lawyer instead of a witness, do we? If I were summoned to appear before a court, would the court accept my lawyer to testify instead of me?
Senator Nolin: No.
Senator Stollery: He may not be able to attend. You have to get it from somewhere.
The Chairman:
The Committee, therefore, asks that you appear before it on Wednesday, February 18, 1998, at 7:00 p.m. to provide an explanation or any relevant information regarding this matter, and arguments as to why your actions do not constitute contempt of the Senate. This invitation is being extended out of fairness, and is based on the traditions of the Senate. Unless we hear from you by this day, we shall have no alternative but to draw adverse inferences and to report to the Senate accordingly.
Senator Rossiter: But we do not know if there is anything we can do.
The Chairman: Actually, there were questions about the date that the Senate resumed sitting and I think this at least covers that. It is another request that he appear.
Senator Stollery: That is fine with me.
Mr. Gary O'Brien, Clerk of the Committee: Honourable senators, a question arose as to whether we can summon a senator to appear before this committee. Erskine May's 21st Edition, at page 629, states that only an order of the house itself can require a member to attend a committee.
Is this in the context of an invitation?
The Chairman: It is asked that he appear. This is not an order of the Senate.
Senator Gigantès: If I understand correctly, we invite him to come. If he does not come, then we go back to the Senate to issue a second order. That is what Senator Lewis just said.
The Chairman: What we can do is present this letter as a report from this committee to the Senate tomorrow and ask that it be approved. Then we can send it off.
Senator Gigantès: Send it off as an order by the Senate, not an invitation.
The Chairman: If it has been approved in the Senate, we will have another attachment as a resolution.
Senator Robertson: I understand that we need a directive from the Senate. It is not contempt if he does not show up in response to that letter. Why do we not ask the house tomorrow to order him to attend? Let us stop wasting time.
The Chairman: On February 18.
Senator Robertson: On a specific day. Let us go back to the chamber tomorrow and get specific direction.
The Chairman: This rectifies the preoccupation of some senators with the fact that we were not specific at the time and place of today's resumption of the sitting. I am in your hands.
Senator DeWare: The place to do it was in the Senate.
Senator Stollery: What are we doing now?
The Chairman: We are preparing this letter in the form of a report to the Senate tomorrow asking permission.
Senator Stollery: Do you mean that we now have to get permission to send this letter?
Senator Gigantès: We will send it as an order that Senator Thompson appear on February 18.
Senator Stollery: I think it would be fine to send it as an invitation. I think it is called due process. As far as I am concerned, we could send the letter out. Senator Thompson is quite aware of what is taking place.
An order; an invitation; what difference does it make? The fact is that if he shows up and makes an explanation, it will be very interesting. We hope he does. However, if he does not show up, we will presumably make an order to the Senate for something to be decided at the meeting when he does not show up.
The Chairman: Senators, I am in your hands.
Senator Robertson: As I understand this letter or document, he will not be in contempt unless we get a directive from the Senate to send this. We are spinning our wheels for two weeks.
The Chairman: We have already said he is in contempt.
Senator Robertson: We want to reaffirm it.
Senator Stollery: It is a stronger message, of course, but it is also very important that we have two weeks to do this. We do not want time to go by because the Senate is busy tomorrow. Let us ensure that this goes out of here as quickly as possible and that the date next Wednesday can be met. That is the key to it all. We do not want to get tangled up in any way.
The Chairman: May I assume that you do not want me to ask for leave of the Senate to have this referred to as an order?
Senator Gigantès: No. On the contrary, we do want you to do that.
Senator Stollery: As long as it can be done in plenty of time for him to get the message so that he can show up next Wednesday.
Senator Gigantès: It can be done tomorrow. We should have the leadership to do it.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: If leave is granted in the Senate, it can be done tomorrow.
Senator Gigantès: If leave is not granted, it can be done Thursday.
The Chairman: I would accept a motion to adjourn if there is nothing else.
Senator Lewis: So moved.
The committee adjourned.