Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 15 - Evidence, June 3, 2003
OTTAWA, Tuesday, June 3, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:34 a.m. to examine proposals to amend the Parliament of Canada Act (Ethics Commissioner) and other Acts as a consequence and Proposals to amend the Rules of the Senate and the Standing Orders of the House of Commons to implement the 1997 Milliken-Oliver Report, tabled in the Senate on October 23, 2002.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: This is a meeting of the Standing Committee on Rules, Procedures and the Rights of Parliament. We have before us ``Proposals to amend the Parliament of Canada Act (Ethics Commissioner) and other Acts as a consequence and Proposals to amend the Rules of the Senate of Canada and the Standing Orders of the House of Commons to implement the 1997 Milliken-Oliver Report, tabled in the Senate on October 23, 2002.''
We have before us at very short notice, and we certainly do appreciate his coming, the Honourable Coulter Osborne, who is the Integrity Commissioner of the Province of Ontario. Mr. Osborne, I understand that it has been such short notice that you have not had the opportunity to prepare a presentation. Perhaps you do have some introductory remarks that you would like to make and then we will open it up to the senators to explore some of the problems with you.
The Honourable Coulter Osborne, Integrity Commissioner of Ontario: Honourable senators, that is correct. I heard about this attendance very recently and thus I have no paper to present. I am here to speak to the arrangements that are in place in Ontario with respect to the Office of the Integrity Commissioner.
It is an office that all provinces and territories have in various shapes and forms. It has been working within a statutory framework in Ontario since 1994, when an all- party committee made recommendations as to the act that eventually became the Members' Integrity Act, 1994.
That act provides me with jurisdiction to deal with matters of what might generally be described as conflict of interest and also to provide advice to members from time to time about conduct upon which they are thinking of embarking. Every once in a while, we get an inquiry with respect to conduct that has already occurred. I have suggested that there could be something inappropriate about that, assuming the statutory provisions are intended to change or endorse the proposed conduct.
The system in Ontario is not necessarily transferable to here. Members of the legislature are reasonably happy with the manner in which the system works. We try to make it user friendly. We encourage members to make inquiries of our office. They do that sometimes with inquiries about situations where they do not want to do certain things. It is easier if I say no, in some situations, than if they say no.
The work comes in a steady flow. I am not sure how many actual conduct/conflict complaints are made each year. I would say there are three or four occasions each year where one member will accuse another, usually a minister, of breaching some provision of the Members' Integrity Act.
How far I take it depends on the circumstances. In cases where the facts are not in dispute, I can deal with it on the paper record.
In cases where the facts are, or might be, in dispute, I examine the relevant witnesses. Those cases are relatively rare.
That is all I have to say by way of introduction. I could tell you what the system costs, if anyone wants to know.
The Chairman: You might as well tell us while you are at it.
Mr. Osborne: Our office is a fairly lean operation. I am there with two others. We run the Lobbyists Registration Act out of the same premises. There are really two offices. The sign on the door indicates that it is the Lobbyists Registration Act office. You would not know that it was the Integrity Commissioner's office.
There are three salaries, including mine, charged to the Integrity Commission budget. The total operation last year cost about $665,000. The lobbyist registration part of the office cost $152,000. All lobbyists in the system register on- line, so there is not much need for labour in that end of the business.
The Chairman: What are your total costs for the Integrity Commissioner?
Mr. Osborne: It is $665,000 plus the $152,000.
The Chairman: Do you deal with the civil service in Ontario?
Mr. Osborne: No, we do not deal with the civil service. Every once in a while we hear a rumble that they might ask us to deal with the civil service, with public office-holders, but so far we do not.
Senator Rompkey: How are you appointed?
Mr. Osborne: There is a system in place for interviewing candidates for this office. Eventually, it is done by all-party agreement. Then the legislature itself votes on the appointment. Once the legislature has approved the appointment, the actual mechanics of it are done with an Order in Council.
Senator Rompkey: There is provision in law for the position; is that right?
Mr. Osborne: Yes, it is a statutory position.
Senator Rompkey: The legislature approves and then the government approves. Is that the way it works?
Mr. Osborne: That is right.
Senator Rompkey: You say you have had three or four cases over what period of time?
Mr. Osborne: There have been three or four in each year.
Senator Rompkey: Can you tell us what has happened to those three or four?
Mr. Osborne: Well, it differs. In the last one I dealt with, I found a breach of the Members' Integrity Act in respect of a parliamentary convention. The Members' Integrity Act sets out certain commandments: You cannot do this; you cannot do that. It also provides that acting in a manner that is contrary to parliamentary convention is an offence under the act.
In this particular case that I am thinking about, I found a breach, but I also found that in the circumstances, no penalty was appropriate.
Senator Rompkey: How long have you been there?
Mr. Osborne: I have been there since September 2001. That is the only breach I have found since that time.
Senator Rompkey: Do people come to you often for advice? You said a minute ago that some people found it easier to have you say no than to say it themselves.
Mr. Osborne: That is the part of the business that surprised me. They come in every day. I would say that on average, two or three requests come in per day, sometimes more.
Senator Rompkey: Would you say more of your time was taken up with counselling than investigating?
Mr. Osborne: Oh yes, by far.
Senator Rompkey: What would be the percentage?
Mr. Osborne: It is 80/20, very roughly. Once there is a formal allegation of conflict, we require through a directive — not under the act itself — that the complainant file an affidavit. We want to make it a little more difficult to make a complaint, to have some rigidity in the system. The complainant files an affidavit saying the following: I am accusing so-and-so of breaching the Members' Integrity Act in a specific way.
Then we give the target of the complaint 10 days to respond and another 10 days for a reply. Then I have to figure out how to deal with the particular complaint, depending on the circumstances that give rise to it.
Senator Rompkey: Madam Chair, I know a lot of people have a lot of questions. I wanted to ask about spousal disclosure in particular. Is spousal disclosure required?
Mr. Osborne: Yes, it is.
Senator Rompkey: What is required to be disclosed?
Mr. Osborne: The disclosure statement is actually the member's disclosure statement; it is not the spouse's statement. The member has to disclose his or her spouse's balance sheet — assets, liabilities and income. The public disclosure part of that is minimal. It does not disclose the sources of income or the amounts.
Senator Rompkey: What does it disclose?
Mr. Osborne: It discloses bank accounts, shareholdings, that sort of thing, what they are, and mortgage if there is one.
Senator Rompkey: That is what is available to the public?
Mr. Osborne: Yes. It is not particularly intrusive.
Senator Rompkey: Can you give me the rationale behind that, the arguments pro and con? Why was it decided to include spousal disclosure?
Mr. Osborne: I cannot tell you precisely why because the decision was made before my time. From what I have read of the discussions in the all-party committee that came up with the bill, I think the idea was to make the members' financial circumstances completely transparent. It was thought, I believe, that leaving spouses out of the picture would cloud that goal.
We have had very little resistance to it. Members come in every year and discuss their financial circumstances. That is usually in October. I do not know whether it will be this year or not, because there could be an election. Apart from that, they file their statements typically by October 1.
By statute, I have to interview all of them. There are 103 interviews conducted. We try to do them in October and November. Some members bring their spouses to the meetings, and in some cases that is fortunate, because members often do not know everything about their financial circumstances.
Senator Rompkey: You mean the wife still pays all the bills?
Mr. Osborne: Exactly.
Senator Rompkey: He just takes the cheque and puts it in the bank. That sounds familiar.
The Chairman: As a point of clarification, your code is also in statute?
Mr. Osborne: Yes, it is entirely a statutory picture.
Senator Di Nino: This is one of those issues that create interest among all of us because it affects all of us; it affects the people we deal with and our families. There are a myriad of questions that one would like to ask.
One of the things I am grappling with is how one defines ``association,'' ``family members,'' ``relatives'' and so forth. Have you had any experience in that area that could shed some light on this? A brother is not a wife; a sister is not considered a spouse. How is an action that would benefit members of the family, an associate or a partner or so forth, covered in the code?
Mr. Osborne: The family unit that is covered by the disclosure provisions of the act is reasonably easily calibrated. It includes dependent children.
Senator Di Nino: That is for disclosure purposes.
Mr. Osborne: It includes spouses, and that is defined, for purposes of the Members' Integrity Act, in the same way as it is defined in Ontario's Family Law Act. It requires cohabitation for a period of three years.
Senator Di Nino: That is for disclosure purposes. I am talking about for conflict purposes.
Mr. Osborne: For conflict purposes, there is no distinction drawn between members of the family and anybody else who might benefit from a members' conduct or a decision that a member might make. Just as an example, section 2 of the act says that a member of the assembly shall not make a decision or participate in making a decision in the execution of his or her office if the member knows or reasonably should know that in the making of the decision, there is an opportunity to further the member's private interest or improperly to further another person's private interest. That takes into the picture the brother-in-law or the next-door neighbour.
Senator Di Nino: How does that work with the member's responsibility to constituents? There is a corporation that sells widgets, he opens doors to allow the corporation in his constituency to sell its widgets to the legislature and the corporation gives a donation to his campaign or sends its people to put up signs and so forth. Has any issue of that nature been discussed or dealt with in the time that you have been there?
Mr. Osborne: The answer is yes. Before I give you some details of that, section 5 of the act does not prohibit activities in which members of the assembly normally engage on behalf of constituents in accordance with Ontario parliamentary convention. It was not intended to create a barrier between the member and the member's constituents.
To get to the more difficult part of your question, I have a complaint now that is a matter of public record, although I will not name names. One of the opposition parties has complained about the use of public-private partnerships, private sector partnerships, in the construction of two hospitals, one of which is here. Part two of the complaint is that a number of construction companies that would be bidding or maybe have bid — I am not sure, as I just got this — on these construction projects made campaign donations. There is sort of the quid pro quo argument. That is the first one I received in that regard.
I might say that yesterday, I wrote the leader of the party in question and told him that this issue of public-private sector partnerships for major construction projects is a public policy issue. It has nothing to do with the Member's Integrity Act, so that part of the complaint, at least for now, is gone.
Senator Di Nino: In your opinion, could there be a need for us to address that, in that we have seen, practically since politics has been with us, a number of accusations directed at members of Parliament, certainly also members of legislatures, that, ``You are helping your friend because he gave you a large donation.'' Is there any way that we could, in your experience, try to cover that?
Mr. Osborne: I do not know. It deserves some thought. It has come up in British Columbia a few times. It came up a year or so ago, involving the Minister of Health. She was exonerated as part of the commissioner's ruling on the subject. Ted Hughes, who was then the commissioner in British Columbia, dealt with the quid pro quo argument, campaign donations, some action on the part of the member, the cabinet minister, that was viewed as a response to the campaign contribution.
There are constant rumblings of this in Ontario, because not only do you have the election coming up, but there was also a leadership race in which a number of campaign contributions were made. I have not heard anything official about that, but I have heard a lot of unofficial things.
It is unhealthy, I think, absent some legislation — I know it is on the front burner here — that controls campaign contributions. If you are going to have campaign contributions, it should be done in a way that is sufficiently open so that a cabinet minister, for example, is not subject to being ambushed down the road if that construction company or corporation, whatever it is, happens to benefit from some piece of legislation. How you do it, I do not know, short of wholesale reform in the one area.
The Chairman: Following up on that, you mentioned defining an action that properly furthers a constituent's interests. How do you defined ``properly'' versus ``improperly''? How could you possibly define that kind of action? Would it not be better to set out clearly which relationships are prohibited or covered?
Mr. Osborne: I do not think so, because the spectrum of relationships is enormous. I can give you one example. The then-minister of finance in Ontario was accused of being in breach of that section. As you know, politicians seem to like photo opportunities.
Some Hon. Senators: Oh, oh.
Mr. Osborne: Shocking, but true. A few years ago, the government was handing out $100 cheques to families with children. Sears decided, I think with the encouragement of the minister, that if a person having one of these cheques came to that store, they would get a voucher for $115 worth of merchandise. This was at Christmas time. The idea was that announcement would be made from the back of a Sears truck in front of the Sears store with the minister and the vice-president of Sears present. That happened. The next thing you heard was a complaint that the minister was improperly furthering the corporate interests of Sears, as opposed to The Bay or you name it. Fortunately, before he embarked on this cameo venture, he had made the other retailers aware of it and encouraged them to jump on the bandwagon, so there was nothing improper about it. I dealt in that decision with what is meant by ``improperly.'' I think if you get too detailed about it, if the rules are too detailed, you cannot cover the great variety of circumstances that will undoubtedly come up. I think that is why it is dealt with in the way it is.
The Chairman: Thank you. I apologize for interrupting.
Senator Di Nino: Through your personal experience and in your dialogue with colleagues across the country, have you discovered any pearls of wisdom that you could leave with us about any pitfalls that we should try to avoid, areas where we could improve the legislation or holes that we should try to plug?
Mr. Osborne: The public has to have confidence in the process. Reasonably well-informed members of the public have to recognize that the ethics commissioner, by whatever name, is an officer of the Senate or an officer of Parliament, as the case may be, and not beholden to any particular party. The appointment process is important and that is where the problems have arisen.
Senator Di Nino: The independence and integrity of the individual —
Mr. Osborne: He or she has to be independent and be seen as independent, otherwise the public just does not have confidence in rulings that are made. We have seen some of that here, unfortunately. That is the most significant part. You have to be careful about who is selected to fill this office, or these offices, as the case may be. The system should be user friendly and you want those who are affected by the code or the legislation to feel comfortable with it. It should not be an adversarial relationship. Therefore, you want someone who is respected by members and who will recognize that people in public life encounter problems that have be dealt with on a reasonable and not a rigid basis. Politics being what it is, you will have politically motivated complaints; there is no question about that. It is important that the person in that position have some practical instincts about what is right and what is wrong and about what is possible and what is not possible.
Senator Stratton: On the issue of public confidence, you had stated that in Ontario it is by all-party agreement — in essence, all parties within the legislature have agreed to the appointment of that individual.
Mr. Osborne: That is how it works and that is how I came to be there, but I should make a small mea culpa. It is not quite how I got there, but I was contacted about the job when I was still on the Ontario Court of Appeal. I was thinking about retiring so I expressed some interest in it, but I did not feel it appropriate to line up for a series of job interviews. The government and the opposition said that that was fine, but the NDP did not agree. They did not voice any opposition to me, but they thought that the interview system should have been followed. Hence, they voted in the legislature on it and here I am.
Senator Stratton: What does the statute say? Does it require an all-party agreement, or does it simply require a majority of the members to agree to the appointment?
Mr. Osborne: It is not in the statute actually; it is part of the rules.
Senator Stratton: It is part of the rules. What does it say in the rules? We want to be clear about this. Does it require an all-party agreement or is it simply a majority agreement?
Mr. Osborne: It is done by agreement of a majority in the legislature.
Senator Stratton: Therefore, it does not require an all-party agreement.
Mr. Osborne: No, although as a matter of practice, they try to achieve agreement.
Senator Stratton: As a matter of practice, do you think that it would be important to have all-party agreement, where possible, for the sake of public confidence?
Mr. Osborne: Yes, certainly.
Senator Stratton: Thank you. Has reform of electoral financing been looked at by the government or by the parties in Ontario, to your knowledge? Is there anything serious?
Mr. Osborne: As far as I know, there is not. There is a small black hole between our office and that area of business. As far as I know, nothing serious has been undertaken.
Senator Stratton: I have one final question about complaints. You stated that during the time that you have been there, there has been only one case for which one minor charge was laid out of all the cases that you have heard. That would amount to one charge out of the twelve or so cases that you have heard.
Mr. Osborne: Yes.
Senator Stratton: During your tenure, was there no penalty for frivolous complaints? I am curious about that. We automatically think that the world is political and that people will use this as a political football. How do you prevent frivolous complaints?
Mr. Osborne: I have a list of amendments to the act that the legislature might consider and that is one of them. There is no deterrent to a frivolous complaint. However, there is a provision in the act that says that if I determine that there is manifestly no merit in the complaint, then I am able to dismiss it without ``calling upon the respondent,'' to put it in the jargon of the courts. There is no financial penalty for making frivolous complaints, although it is important to recall that in Ontario, unlike some provinces, members of the public cannot make complaints.
There is a filtering device such that the complaint has to come from another member of the legislature. As I said earlier, we require the complaint to be in affidavit form, which is a minor control device. It has been made clear in a number of rulings. It took a while, but it is now clear that newspaper accounts of any description do not constitute evidence to support a complaint. There was a barrage of complaints some years ago in which the evidence was an article from the Ottawa Citizen, or whatever. That is, the evidentiary requirements also put a healthy break in the system.
Senator Stratton: Will you actually propose an amendment to control that?
Mr. Osborne: It is on a list, and there are a number of small elements in the act. One, for example, is the restriction on members' charitable activities. That has been changed in rulings. The government did agree with me that that ought to be changed. However, nothing has happened. It went to first reading and stopped — nothing has happened since. There are also a few housekeeping items, and I just wanted to draw that issue to the attention of the government. I have to deal with those matters through the Speaker. One of the disadvantages of being independent is that you do not have a minister to deal with this kind of issue.
Senator Stratton: Would you be willing to share those recommendations for amendments?
Mr. Osborne: Yes, certainly.
Senator Cordy: Thank you, Mr. Osborne. Your comments are most helpful. How do you discourage frivolous complaints? Is it possible to make a rule that would discourage that, or is it part of the game?
Mr. Osborne: You could add rules that would give the commissioner authority to deal with frivolous and vexatious complaints, just as courts are entitled to dismiss actions that are found to be frivolous and vexatious.
To a degree, you have to have confidence that parliamentarians will not make an undue number of frivolous complaints. Inevitably, some complaints will be politically motivated, but that does not necessarily mean they are frivolous. As I say, you might consider a monetary penalty for a complaint that is determined to be egregiously frivolous or some such adverb that you can think of.
Senator Cordy: Getting back to what Senator Rompkey touched on, could you be more specific on what exactly the public sees after a member of the legislature makes financial disclosure to you?
Mr. Osborne: When members come in, we get financial statements that include their own financial circumstances, the spouse's circumstances and the children's, if there are any. At the time of the meeting, if the financial set-up is relatively simple, we pre-prepare the public disclosure statements, show it to the members and ask whether it is right and satisfactory to them. Almost invariably, the answer is ``yes,'' or there is a missing asset or they say they do not own something any more. We change it, fax the new public disclosure statement and ask whether that is okay, and if not, to let us know. Then the public disclosure statements are put on the Web site. The public disclosure statement, section 21, if you want to look at our act in summary form, is as follows:
(2) The public disclosure statement shall,
(a) state the source and nature, but not the value, of the income, assets and liabilities referred to in section 20(2)...
That is the private disclosure statement.
(b) list the names and addresses of all the persons who have an interest in those assets and liabilities;
It brings in disclosure about brothers-in-law who are partners and that sort of thing.
(c) identify any contracts with the Government of Ontario referred to in the private disclosure statement...
(d) list the names of any affiliated companies in the private disclosure statement...
Then it sets out any gifts.
Senator Cordy: For example, if you had two houses, does it give their value?
Mr. Osborne: No.
Senator Cordy: Does it list the real estate?
Mr. Osborne: One matrimonial home, one cottage.
Senator Cordy: If it were stocks, would it list them?
Mr. Osborne: It would not list the value.
Senator Cordy: Would it list the companies?
Mr. Osborne: No.
Senator Cordy: It is pretty vague.
Mr. Osborne: It is pretty uninformative.
Senator Cordy: You said that if people file a complaint, they must file an affidavit. Is the entire affidavit given to the respondents, or to the ``targets'' — the term you used? Do they get a copy of the entire affidavit filed?
Mr. Osborne: Yes, the process is the complainants send us the material, which includes the affidavit and typically some exhibits to the affidavit, and are required to also file that material with the Speaker, so that the allegation becomes a matter of public record. I then get it and immediately send everything to the respondent.
Senator Cordy: The person is aware of exactly who made the complaint?
Mr. Osborne: Yes. One of the problems we have is I not infrequently find that the media seem to know about the complaint before I do, but I guess that is life.
The Chairman: I would point out that the comparison of all the provincial codes is in the draft code that was circulated just last week — I got mine on Monday — at the back of the appendix, and also in the black binder that we all got when we began our study. We all have the comparison. I have an example here of George Smitherman's public disclosure, and things are listed under Income, Assets, Gifts and Personal Benefits, Liabilities, Offers and Directorships.
Mr. Osborne: It is the liabilities I worry about. Not many will be embarrassed by their assets. It is the liabilities.
Senator Cordy: You said it is only members who are able to file complaints, which does, in fact, somewhat discourage frivolous complaints. Should the public have some way of being able to make a complaint?
Mr. Osborne: I think they do. We periodically get an inquiry from the public about what some member has done, and we always tell people that we cannot receive complaints directly from the public, but the way to go about it is to speak to a member, and if no ``wrong'' party is involved in their area of residence or business, whatever, we tell them where the closest member of the opposing party is, and typically, nothing happens. It just does not. We do not cut people off. We tell them how to go about making their complaint if they wish to pursue it.
Senator Hubley: We have a code of conduct for parliamentarians that covers both members of Parliament and the Senate. The Prime Minister has a further code for his ministers of the Crown. Are both private members and ministers of the Crown covered under the same act, or are there additional codes for ministers of the Crown?
Mr. Osborne: In Ontario, it is all within the Members' Integrity Act. There are separate parts of the act that deal with ministers of the Crown. When Bob Rae was premier, in addition to the statutory provisions, he further issued a directive that dealt with the conduct of members of his cabinet. It caused trouble because no one knew what was okay and what was not okay, and that approach has since been abandoned.
Senator Hubley: How would it work if a charge is laid and you decide it contravenes the Criminal Code? How does a serious charge move from your department to become a public charge?
Mr. Osborne: There are provisions in the act that deal with that in the following way: If a criminal charge is laid, then my investigation stops. It is, in effect, stayed, and I have never encountered what would happen down the road.
If I determine that there are reasonable and probable grounds to conclude that this activity could be criminal in nature, I am required to stop my investigation and refer it to the appropriate authorities.
Senator Hubley: Has this ever happened?
Mr. Osborne: Not that I am aware of. Certainly it has not happened since I have been there.
Senator Hubley: I will ask you for a comment. The Senate code of conduct will, by necessity, reflect our mandate. Our mandate is to assist and advise the government on any public policy issue or decision. We are dealing with a different group with a different mandate.
Could you advise us of the things of which we should be aware in setting up our code to reflect the fact that we do not have a constituency as such? While we represent all Canadians, our mandate is to advise. Do you see the fact that we do not deal directly with the public or groups of people as problematic in developing our code?
Mr. Osborne: That should be taken into account. It militates in favour of having a separate code or different legislation apply to the Senate and the House.
It seems to me that first a decision has to be made about whether you will take the code fork in the road or the legislation fork in the road. There are some advantages to each, although I do not know whether it would make much difference to the public as long as the code was available and not a secret document. Clearly, the code or legislation should be tailored to fit the purpose and to fit the body that the code or legislation purports to regulate.
Senator Joyal: I am concerned at this point with the legal structure of your act, which I find very judicialized. At the same time, it leaves some grey areas of discretion. I refer in particular to section 34 of the act. It says:
Where the Commissioner conducts an inquiry under subsection 31 (1) or (2) and finds that a member has contravened any of the sections...or has contravened Ontario parliamentary convention...
I am puzzled by what ``Ontario parliamentary convention'' means. In other words, not only do you have the specific mandate to apply the various sections of the act, but also you have the responsibility to make sure that no Ontario parliamentary convention is contravened. What does the act mean by ``parliamentary convention?''
Mr. Osborne: That is a good question. That has come up in recent matters with which I have dealt. What does ``parliamentary convention'' mean?
It is there to expand the scope of the act so that it will not only involve use of insider information, improperly preferring the member's interests or the interests of another. It covers matters where the member is found to have acted in a manner inconsistent with the manner in which parliamentarians normally act.
I use a combined definition out of Black's Law Dictionary in dealing with it. It is intended to cover improper conduct that might not technically fall within the specific sections of the act that set out what members can and cannot do.
Senator Joyal: It did puzzle me, because as you know, a convention, by definition, is not enforceable in court. That might be legitimate to govern behaviour, but is not enforceable in court. The Supreme Court has ruled on this, especially in the patriation case, which was the famous case about what was the binding nature of a convention.
It puzzles me that this is a very open element of the act. On the other hand, the penalties under the act are very important.
The first penalty is a reprimand. The second is that a member's right to sit and vote in the assembly be suspended for a specified period or until the condition imposed by the commission is fulfilled, which is serious, because people are barred from exercising their right and duty to vote, or the member's seat be declared vacant. Therefore, there is a very serious penalty list for a breach under either some sections of the act or a parliamentary convention.
I can understand the philosophy of the act, which is embodied in the preamble. The ethical standards are not mentioned anywhere, except in specific provisions. It gives you a very important power to recommend ultimately that a seat be declared vacant, which as you know is linked to what we regard under the electoral act as being a very serious breach. In the Senate, it is equal to the penalty for being guilty of an infamous crime. There are two very serious Criminal Code links to what the person has been doing.
I am trying to understand the gradation in terms of the penalty and the outcome that the system wants to achieve. Does the system want to put in such a deterrent, with the ultimate penalties, that all members will feel compelled to comply as much as they can? That would seem to be the case with parliamentary convention.
Parliamentary convention is not codified. It is not part of the ethical standards that could be stated in the preamble. It remains a discretionary field of adjudication on your part.
Mr. Osborne: There is some parallel between parliamentary convention and the common law. It is an evolving thing. What is acceptable or unacceptable behaviour by a parliamentarian will change over time. The norms are not constant.
The other aspect that should be noted is that there is a parallel with the notwithstanding clause in the Charter. If I recommend a penalty be imposed, let us say loss of seat, which I have never even come close to considering, the assembly has the last word on this. Subsection 34(3) states that:
If the Commissioner recommends that a penalty be imposed, the Assembly may approve the recommendation and order that the penalty be imposed, or reject the recommendation, in which case no penalty shall be imposed.
The Chairman: However, they cannot modify it.
Mr. Osborne: No, they cannot fool around with it. At that stage there is a finding of guilt, so to speak, to put it in judicial terms, but no penalty is imposed because the legislature saw fit not to agree with my ruling.
Senator Joyal: I know that it is difficult to pronounce on this, but why, in your opinion, is there no financial penalty?
Mr. Osborne: I do not know why there is none. I do not know the thinking on that.
Senator Joyal: The Parliament of Canada Act has financial —
Mr. Osborne: I realize that. I became aware of that in reading some material yesterday when I heard that I was coming here today.
I cannot answer the question. They obviously would have thought of it in dealing with this then-proposed legislation. Why they chose to reject it, I just do not know.
Senator Joyal: The other element that surprises me, and that is peculiar to the Ontario system, is the involvement of the Speaker, which, as far as I can understand it, is not exactly the same in the government proposals. The Speaker of the Ontario Assembly has a role to play because when there is a complaint, the Speaker has to receive a copy of it. Subsection 30(3) indicates that:
The member making the request shall promptly give a copy of it to the Speaker, who shall cause the request to be laid before the Assembly if it is in session or, if not, within 10 days of the beginning of the next session.
When you make a report, you give it to the Speaker. Why the intervention of the Speaker in the Ontario model?
Mr. Osborne: I think they were searching for neutral ground. They had to store these documents somewhere and they did not want to designate a particular ministry or any office of the legislature. I think, by default, they ended up choosing to file documents and that sort of thing with the Speaker.
The same thing applies to the disclosure statements. They are filed with the Speaker so that members of the public can see them, either on-line or, if they choose to look at the hard copy, through the Speaker's office. However, the Speaker's involvement is more symbolic than real. These documents do go through the Speaker. When the seven officers of the legislature, the Environmental Commissioner, the Ombudsman and so on, and I, get together for lunch, which we do two or three times a year, the Speaker usually attends. There is a personal contact. However, the Speaker is not involved in the process in any substantive way.
Senator Joyal: Is it like giving to the Speaker, according to your perception or interpretation, the status of the Clerk of the House?
Mr. Osborne: That is right. It has the benefit that the Speaker is generally perceived to be independent of government.
Senator Joyal: He is elected, in your case, by the members in Ontario.
Mr. Osborne: Yes.
Senator Joyal: The other point is about the confidentiality relationship between a member and your office. Are any communications between you and the members protected under solicitor-client privilege?
Mr. Osborne: No, it is not a solicitor and client privilege, but there is protection from the Freedom of Information Act. There is a specific provision in the act that exempts us from the freedom of information, protection of privacy legislation. Some things are not protected. For example, if we write to a minister, what he sends us is protected, but what we send him is not. There would not be a solicitor and client privilege attached to it.
Senator Joyal: As I understand it, if in the course of your investigation there is a charge laid against a member, the documentation that you have on that member could be made available in criminal court?
Mr. Osborne: I hoped you would ask an easier question. I do not know. I would think it would be subject to subpoena. We have never come close to it.
Senator Joyal: I am trying to get some interpretation of the public disclosure and the exception that is mentioned in the act. If I went to see you and I disclosed everything in the course of my duty as a parliamentarian, and there is a criminal charge against me, all my consultations with you, if I read the act correctly, could be the object of a subpoena.
Mr. Osborne: It could be. It would have to be relevant to the criminal charge in question. They could not just subpoena everything. However, if the member had spoken to me about something that turned out to be criminal in nature, I suppose it would be subject to a subpoena. Looking at matters from the civil side, members come in every once in a while and disclose that they are being sued in connection with some partnership arrangement that existed in the past. We have never done anything about that, except to note it.
That can involve what is referred to in the act as a ``material change in circumstances.'' Members are supposed to disclose if their financial circumstances change during the course of the year.
Senator Joyal: The last point, Madam Chair, is subsection 34(4), the power of the assembly, which is a very important element. I will read the section quickly:
Despite section 46 of the Legislative Assembly Act, the Assembly does not have power to inquire further into the contravention, to impose a penalty if the Commissioner recommended that none be imposed, or to impose a penalty other than the one recommended.
In other words, the member is protected by your recommendation. Once you have investigated and made your recommendation, the assembly cannot inquire further into the allegation.
Mr. Osborne: That is a counterbalance to subsection 3 that I mentioned before. The other aspect is, opinions are sought from my office daily, and if the member seeks an opinion and gets one, it provides a qualified defence under the act if the member acts in accordance with the opinion. It does not mean there is no breach of the act. However, it means, in effect, that no penalty can be imposed.
Senator Joyal: It seems similar to the House of Lords code, which reads that a member who acts on the advice of the registrar — which is the person having a similar or comparable position to yours — in determining what is a relevant interest satisfies fully the requirement of the code of conduct. In other words, if a person goes to you and exposes his or her assets in accordance with the act and you give an opinion, then that person has satisfied or complied with the requirement of the act; this is the end of it?
Mr. Osborne: That is the end of it from the standpoint of what you read. It is not quite the end of it in Ontario. The member could still be found to have breached the act. I could, in effect, find myself wrong. However, no penalty can be imposed. It is a qualified defence. What you read amounted to a total defence, I think. The contact of ministers, for example, with our office is usually first by telephone and by a staff member. We always request, unless there are very serious exigent circumstances, that the question be put in writing, because the answer is in writing, and we try to work to a one-day turnaround period. If they do not do that, it is sometimes difficult to match the question and the answer.
The act specifically provides that the answer — the opinion — is not a defence if the full facts were not disclosed. That is why I have difficulty from time to time, particularly with some ministers who inquire about something: ``Is it okay?'' Then you find out that the question really relates to something the minister has already done. You get the sense that the word is out that this subject is going to come up in Question Period, and they will be waving the letter around. This was supposed to influence conduct, not launder conduct.
Senator Stratton: Can we quote you on that?
Mr. Osborne: No.
Senator Joyal: Do you keep a day-to-day file? In other words, if a member phones your office, do you have an entry that Mr. X or Mrs. X phoned you at 10:30 to inquire about this?
Mr. Osborne: Yes, and the subsequent fax or e-mail that follows will be in the file. Some of the members' files are very thick. Some members use our office a great deal. They want to make sure that what they are doing is right, and that is all to the good.
Senator Joyal: And once a person's term is over, the files are destroyed?
Mr. Osborne: Yes, there is a provision in the act that says that files will not be destroyed, I believe, for 10 years. There is document retention for a substantial period of time.
The Chairman: What would be the reasoning behind that?
Mr. Osborne: I suppose, in political life, old sins can be resurrected. I do not know how they came up with the specific number. Is it 10?
Senator Joyal: Yes, subsection 22(1) states that:
The Commissioner shall destroy any record in his or her possession that relates to a member or former member of the Assembly, or a person who belongs to his or her household during the 12-month period that follows the tenth anniversary of the creation of the record.
Mr. Osborne: Yes, that is what I thought.
Senator Joyal: So you keep the record for a decade.
Mr. Osborne: Yes.
The Chairman: I note that in the proposed code it is retained for 12 months, but then we are unlikely to return to the Senate once we leave it.
Senator Grafstein: I welcome Mr. Osborne to the committee. I want to declare a conflict of interest. Mr. Osborne and I were once on the same team. I was cut, but he continued on to become a star at the University of Western Ontario. I want to make sure that the record is clear that we have a long relationship, and therefore anything I may say should be considered through that prism.
Your presentation has been enlightening. I have a concern that I articulated to our colleagues and that our colleagues in the House of Lords shared. That is, that our rules should be transparent as they apply to conduct, but they should be purely rules.
The House of Lords' rationale for that, which I accept, is that there is a separation of powers, and if there is a statute involved in the surveillance of conduct, it could be reviewable by the judiciary and therefore impinge on that separation of powers. Have you any views about that?
Mr. Osborne: I think those concerns are well taken.
Some critics take the position that following the rules route effectively eliminates the courts from judicially reviewing the commissioner's decision. If, on policy or other grounds that is thought to be desirable, then the way to go is not to have a statute.
I have an open mind on the subject. I can see where you are coming from and I know the system in England, which is quite different from the one we have here, both with respect to the Lords and the House of Commons.
Senator Grafstein: Again, if you look at the bicameral system in the U.K., which is not the Ontario system — Ontario has a unicameral system — there is a very sensitive differentiation among the roles of the ministers of the Crown, members of the House of Commons and the Lords. There is a careful demarcation to preserve the constitutional separation of powers. If I take your evidence correctly, if we decide to go that route, provided we do it in a way that demonstrates to the public that we are concerned about the public interest, and the process of appointment, for example, of the regulator is taken into account, that would not be objectionable?
Mr. Osborne: No, I have no basic objection to it. If, on policy or constitutional grounds, you choose to go that way, the important things are the manner in which the appointment evolves and the total transparency of the rules of the game.
Senator Grafstein: If I might move to the role of the commissioner in Ontario. A concern that I have raised, and Senator Joyal touched on it — and I say this in a very gentle way — is the implicit conflict of interest between a commissioner who is concerned with integrity and overseeing a code of conduct and also providing advice in a way that sounds and smells like a solicitor and client situation, but really is not. He therefore finds himself in a position of using information that was given to him on a ``confidential'' basis to determine whether there was a breach of the Criminal Code, for example. He finds himself in a position of having obtained that information on a pseudo- confidential basis, and then being obliged, if he feels that conduct may impinge on criminal conduct or a breach of a statute, to refer it to authorities. Does that trouble you?
Mr. Osborne: Not really. The information we get falls into two categories. Apart from the private disclosure statements, these opinions that are sought are not confidential. Members frequently wave them around to justify what they have done, or they are used, as I said in my introductory remarks, to get out of something members do not want to do. Where there could be some sensitivity to information I receive is when there is an actual allegation of a conflict. You get right into it, and suddenly, when you lift up a rock, you find there is more to this than anybody thought, or most thought. I have never encountered that, but in that case, if the Crown should be involved, then as you pointed out earlier, subpoena issues could arise. I would think only the documentation referable to the complaint issue, the conflict issue, would be subject to subpoena.
Senator Grafstein: I have not thought this through, but as I listen to you, does not that process impinge upon the rule against self-incrimination? In other words, I am a member of the legislature and I come to you and say that I think I have a problem with some past conduct, but I am not sure. You disclose that, and I have a disagreement with you on whether, on the reading of the statute, it is a conflict.
You then find yourself in a position where, after I come to you for advice and counsel, that past conduct may be compellable. Therefore, my protection against self-incrimination may dissolve.
Mr. Osborne: My solution to that problem is to make section 28, the one that deals with opinions, exclude past acts from that consideration, because there you have a valid concern. It is very rare that something that has already happened is the subject matter of an inquiry. Almost all of them deal with something that is proposed in the future.
However, you could run into that problem if the member or the minister is inquiring about something that has already happened. Then, I suppose, I myself could be subject to a subpoena compellable.
Senator Grafstein: Yes, exactly. That was my next question. At the end of the day, clearly you would be subject to the court processes yourself.
Mr. Osborne: At that level, there is nothing compelling members to speak to me. They are doing it on their own initiative.
Senator Grafstein: May I conclude with this, Chairman. Again, if you follow the House of Lords model, which I find attractive, the registrar of interests can give an opinion, either verbally or in writing, and in effect, that becomes an absolute defence on those facts.
Again, your statute leaves the door open a little here.
Mr. Osborne: Yes, it is a qualified defence.
Senator Grafstein: Senator Joyal raised the question of the parliamentary convention argument in the statute, and I thought this was very confusing. I say that because part of the parliamentary convention, or the lex parliamentarius, relates to members' privileges. On the face of it, members' privileges, rather than being protected, are assailed by this statutory incursion. By that I mean that it could be taken to read that members' privileges are outweighed by a rule that may impinge upon their right to vote on a particular matter, subject to disclosure. Is that a concern to you?
Mr. Osborne: No. I view members' privileges as part of the broader issue of parliamentary convention, not in conflict with it.
Senator Grafstein: Not in conflict with the convention?
Mr. Osborne: No.
Senator Grafstein: Let us assume for the moment a situation where there would be a direct conflict between the convention, which reduces members' privileges in some fashion, and a member's privileges. Would you be concerned about that?
Mr. Osborne: I do not think so. I would have to think about it anecdotally, but I do not think you could ever get to that point. If the member's privileges were justified, there would be no breach of parliamentary convention. The member's privileges would trump — that is not an eloquent way to put it — parliamentary convention, looked at narrowly.
Senator Grafstein: I agree with that and I am delighted you came to the same conclusion.
The Chairman: Perhaps it is a good thing that the proposed code that we are studying does not use that phraseology.
Senator Joyal: Madam Chair, that is why it is such a difficult issue. The last judgment that I read was released, I think a month ago, by the Court of Appeal of B.C. on the case of Ainsworth v. Paul Martin and dealt with the privilege of a member to be absent from a court proceeding 40 days before a sitting. There was a similar judgment in the Court of Appeal of Ontario. I do not have the text in front of me so I will quote from memory. It says quite clearly that privileges can stem either from statute or convention. It is clear that privileges of parliamentarians exist in lex parliamentaria through convention. Theoretically, if we submit the parliamentary convention to your own appraisal and it is in conformity with what is proper or improper, then we end up questioning the very nature of a parliamentary privilege. That is why I feel this is a difficult issue constitutionally, and it is still, as you know, pending in front of our Canadian court. There is a decision of the Supreme Court pending in the Vaid case. This issue of the definition of privileges and separation of powers is still fluid, especially when it is contained in a statute, as it is in the Ontario integrity act.
I know that it is not in our proposed code, but I would have second thoughts about putting this in a code because of the difficulty of adjudicating on it and immediately inviting the courts to look into it.
Mr. Osborne: I think you have to be concerned on both sides of the equation. Where are you if you put it in the code, and where are you if you do not? You have a set of commandments that is too rigid. One of the advantages that I have in dealing with all of these issues is members have a certain respect for me as a result of my authority under the MPPs compensation act to determine what their salaries will be.
Senator Grafstein: That is another conflict of interest.
Mr. Osborne: That is more than parliamentary convention.
Senator Joyal: Absolutely.
Senator Sparrow: Is your position full time?
Mr. Osborne: Yes, it is. I am entitled to do things that do not affect the proper discharge of my responsibilities. It is not full time in the sense of eight hours a day. I have to be there or be accessible regularly because I do not control the flow of business. The inbox is out of my control.
Senator Sparrow: Is your salary public knowledge?
Mr. Osborne: Yes.
Senator Sparrow: What is it?
Mr. Osborne: $140,000.
Senator Sparrow: On a yearly basis?
Mr. Osborne: Yes.
Senator Sparrow: The $665,000 that you referred to, how is that broken down?
Mr. Osborne: There is my salary, my senior executive assistant's salary, and that of a woman who acts as a receptionist and does secretarial-assistant kind of work. There are three of us, and I would guess the labour component would account for about 40 per cent of it. Then there are the usual rent and telephone expenses, that sort of thing. We have a budget for outside legal services that we have never actually used since I have been there. However, that is how you get to $665,000. We just moved to larger quarters because last fall, the government gave me authority to review the expenses of cabinet ministers, parliamentary assistants, opposition leaders and all their staff. These expense claims are now coming in and we are trying to regulate the flow of paper.
Senator Sparrow: This is beyond the integrity issue then?
Mr. Osborne: That is quite apart. They keep giving me additional duties, and that is one of them. As I said, there is also the lobbyist registration part of the business, operated out of the same premises.
Senator Sparrow: In response to a question asked — Was there any concrete action taken? — I think you said there was one case. How would that case have been resolved?
Mr. Osborne: I found that there was a breach of parliamentary convention, but I recommended that in the circumstances, no penalty be imposed.
Senator Sparrow: If your position did not exist, could those issues be handled, as they were at one time, within the legislature itself, under the legislative act, the Constitution and common law? Could they still be handled that way?
Mr. Osborne: I think they could be, but they would not be handled in a manner that the public would conclude was an open, non-partisan way.
Senator Sparrow: You are saying that really, public perception is the main concern?
Mr. Osborne: Public perception and efficiency are the concerns. Handling complaints of conflicts in a legislative committee setting, or worse, in a legislature, is not an efficient way to address those issues. Also, you would strip away from our office the giving of opinions as a function. That would not be duplicated in a legislative committee.
There is no one else from whom to get those opinions, the way it is set up.
Senator Sparrow: There must be a law clerk in the legislature.
Mr. Osborne: I would guess that that is with whom they dealt in the past. However, I think it was problems attendant upon that arrangement that caused all three parties in Ontario to conclude that there had to be a better way. It is not entirely public perception, but that has much to do with it.
The Chairman: If there are no further questions, I want to thank you very much for making this trip to Ottawa today. We greatly appreciate it, and your advice has been well worthwhile.
The committee adjourned.