Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 15 - Evidence, June 4, 2003
OTTAWA, Wednesday, June 4, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:09 p.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: Honourable senators, I see a quorum. This meeting of the Standing Committee on Rules, Procedures and the Rights of Parliament is now convened. I do not believe that we should be in camera today. We are receiving evidence. With your permission, we will change to an open meeting. This is a regular meeting with witnesses appearing before us. The notice went out before we realized that we were having witnesses today.
We have before us Paul Bélisle, Clerk of the Senate, whom we all know, and Mark Audcent, Law Clerk and Parliamentary Counsel to the Senate, whom we also all know and who needs no introduction.
[Translation]
Mr. Paul Bélisle, Clerk of the Senate: Thank you for your invitation to speak to you today on the draft rules of conduct you are considering. I have reviewed the draft rules and the transcripts from your meeting on May 28. As I understand it, you have questions of procedure and law.
I will deal with the procedural aspects, Mr. Audcent will address the legal aspects, and we will welcome any question you may have.
Honourable senators, in my review of the work you have done so far, I noticed that there has been discussion about whether the rules of conduct should form a part of the body of the Rules of the Senate, whether they should be an appendix to the Rules of the Senate or whether they should be implemented as an independent policy.
I want to assure you that whether the rules of conduct are included in the body of the Rules of the Senate, or whether should be an appendix, or an independent policy, it would not affect their status with respect to privilege.
The privileges of the Senate such as freedom of speech and authority to control its proceedings, exist quite apart from the Rules of the Senate. These privileges are sanctioned by section 18 of the Constitution Act of 1867 and exist as part of the statute law through sections 4 and 5 of the Parliament of Canada Act.
If the Senate adopts a code of conduct as a part of how it governs its internal affairs, it would follow that privilege would cover its application. This is no different from the Senate's Attendance Policy, which has been administered as a stand-alone policy since 1990.
[English]
Honourable senators, when I looked at the implications of inserting the rules of conduct into the Rules of the Senate, it occurred to me that we would, in effect, be mixing apples and oranges. The Rules of the Senate, as suggested in Beauchesne's 6th Edition, citation 7, are designed to guide the Senate's proceedings — the way it conducts its business in the chamber and in committee. Specifically, citation 7 states that standing rules, or in the case of the Senate, the Rules of the Senate, ``are the rules and regulations which the House has agreed on for the governance of its own proceedings.''
The proposed rules of conduct have quite a different objective. Their purpose is not to govern proceedings of the chamber and its committees, but to guide the actions and behaviour of senators. Similarly, if the Senate were to follow the example of the House of Commons as proposed in the Parliament of Canada Act and adopt its own regulations — or as the House calls them, ``bylaws'' — these bylaws would govern the conduct of its administration. These are three distinct categories of governance and the committee should be mindful of the differences and avoid any unnecessary confusion by mixing them up.
The proposed rules of conduct clearly describe the authority and role of the Senate ethics officer, whose principal function is to administer these conflict of interest provisions. According to rule 18, the Speaker is clearly responsible for the interpretation of the Rules of the Senate. If these conduct rules are included as part of the Rules of the Senate, senators might feel that appeals directly to the Speaker would be appropriate. However, I think that this would circumvent the intent of the proposal, which is to delegate the administration of the rules of conduct to the Senate ethics officer. I believe it is important to avoid any apparent conflict between the role of the Speaker of the Senate and the Senate ethics officer. By choosing not to embed the rules of conduct into the Rules of the Senate, I believe you will go a long way toward avoiding any conflict.
In suggesting this approach, I am not advocating a subordination of the chamber's right to manage its affairs. To the contrary, the chamber would still be in the same position it currently is, of making the final decision. Allow me to give you an example.
Under rule 65(4):
A Senator is not entitled to vote on any question in which the Senator has pecuniary interest not available to the general public. The vote of any Senator so interested shall be disallowed.
If a senator has reason to believe that another senator has voted improperly, he or she may raise the matter after notice. The chamber itself would make a determination on the merits of this charge and the vote may or may not be disallowed. In the proposed regime, the same issue could be referred to the Senate's ethics officer, who would report to the committee responsible, which would then report to the chamber for a final decision. In both scenarios, the chamber remains the master of its own affairs.
By appending the rules of conduct, or by passing an independent policy, the Senate would allow itself a certain degree of latitude in the form and content of those rules. This would allow the Senate to include elements such as principles or purposes, for example, which would not normally be found in typical rules of procedure, but which currently are in the proposal you are reviewing. The House of Lords, for example, has included a purposes section in its code of conduct that is not part of their rules but is a stand-alone policy adopted by resolution. The end result would be a package that would exist in its own right and could be used as an educational tool that provides context as well as rules.
It is my recommendation, honourable senators, that you not embed the rules of conduct into the Rules of the Senate. Instead, it would be preferable to either append the rules of conduct to the rules or adopt them as an independent policy. In either case, the privileges of the Senate are preserved and the ultimate authority of the Senate over its members remains intact.
In preparing for my appearance today, I took the opportunity to review my files. Yesterday afternoon, I came across a document that shows how different governments of the European Union have dealt with the implementation of codes of conduct in their respective jurisdictions. It may be a little premature at this time to conclude definite findings, but I do believe that a survey of these regimes supports my recommendation.
I did go to the Internet last night and examine a few of those countries. Some of them, because of the language barrier, were not suitable — they were not in either English or French — but the German Bundestag has it as a clear appendix to its rules. It would have been interesting, if I had had a little more time, to call the administrators there to find out why they decided on that and how the implementation is being handled.
If you accept my recommendation, honourable senators, the committee may need to consider some technical procedural issues with respect to any duplication in the Rules of the Senate and the rules of conduct. As I have already mentioned, rule 65(4) provides a mechanism for disallowing a vote based on pecuniary interest. The rules of conduct also prohibit senators from voting in instances where they have a pecuniary interest.
As I understand it, there is no conflict in this duplication. In fact, 65(4) is curative, while the rules of conduct are both preventive and curative. In other words, if the procedures in the rules of conduct fail to operate satisfactorily, it remains possible to seek a remedy through the Rules of the Senate.
You may also wish to revisit rule 94, which covers pecuniary interest and disclosure for senators sitting on committees.
Honourable senators, this concludes my remarks. As I mentioned earlier, I will ask Mr. Audcent to deal with the issue of law with which you were concerned. We will be in a position to answer questions.
The Chairman: Before we go to Mr. Audcent, since I know Mr. Bélisle has to leave for a meeting at 12:30, if anyone has any questions for him, perhaps we will do that now.
Senator Hubley: I hope I have given you enough time to think about this question. Thank you very much for being here, Mr. Bélisle.
If we attach our code of conduct as an appendix to the Rules of the Senate, as you proposed, what is the authority of the ethics commissioner? Can he administer both the Rules of the Senate and the code of conduct?
Mr. Bélisle: The provisions are in the law itself that is now before you. I could make an analogy with the attendance policy. The Senate has decided that the attendance policy is to be administered by, in this case, the Clerk of the Senate. In the case of the code of conduct, it is to be administered by the ethics officer. Both would be accountable to a committee and, ultimately, to the chamber.
Senator Hubley: I just wanted to clarify that.
Senator Joyal: I have two questions. In your presentation, you mention three possibilities or three options: The rules as we know them, a policy, which would be similar to the attendance policy, and the bylaws. You have elaborated on the first and second options, but what about the bylaws?
Mr. Bélisle: I think the three possibilities in my presentation were the rules themselves, the appendix to the rules and a stand-alone policy. I did mention the bylaws. It could also be within those bylaws. The bylaws are by virtue of the Parliament of Canada Act. The Senate and the House of Commons were asked to produce what we call in the Senate ``regulations,'' what the House calls ``bylaws.'' I have had many discussions with our legal counsel on this issue, and the way that it would be drafted, much of what you have within the proposed conduct rules would fit into the regulations of the Senate.
The bylaws have certain provisions, parts of which deal with the governance of the Senate. There are also sections on conflict of interest that could fit. This could be a fourth proposal.
I want to make it clear that the House of Commons does have their bylaws, but the Senate never proceeded with them.
Senator Joyal: We do not have bylaws per se in the Senate, even though, within the Parliament act, we are recognized as having the authority to do so?
Mr. Bélisle: There are provisions in the Parliament of Canada Act for the Senate to produce bylaws, but the Senate did not go that route.
Senator Joyal: Technically, what would be the differences in adopting a bylaw, a policy or a rule? You have outlined the difficulty of adjusting the present rules to the proposal because there is an overlap of function there. Do the same problems arise with the bylaws? Prior to that, let us establish the nature of the bylaw versus the rule.
Mr. Bélisle: As to the effect of the bylaws, it would depend on the effect that the Senate would want to give them. If you had a clause within the bylaws that says these regulations, as the Senate calls them, are internal administrative rules made exclusively for use in the Senate, then that limits their authority. However, I think Mr. Audcent might want to say something as to the authority. I am saying that the senators themselves could place limitations on the bylaws.
Mr. Mark Audcent, Law Clerk and Parliamentary Counsel, Senate of Canada: Section 8 of the draft code of conduct says:
Nothing in this Code affects the jurisdiction of the Standing Senate Committee on Internal Economy, Budgets and Administration established by the Senate under its rules to determine the propriety of the use of any fund, goods, services or premises made available to Senators for carrying out their parliamentary duties and functions.
The clerk's calling to mind the different models helps us to understand that different documents have different purposes. For example, as he pointed out, the Rules of the Senate has the purpose of regulating proceedings in the Senate and in committees. They are under the jurisdiction of the Speaker. The purpose of a code of conduct is to regulate the conduct of senators, and it is proposed that it be under the supervision of the Senate ethics officer.
The purpose of the bylaws, or in the case of the Senate, the regulations, is to regulate the internal material administration of the House. That would be under the jurisdiction of the Standing Committee on Internal Economy, Budgets and Administration. The code of conduct does not specify which committee the Senate should choose. It could be the Standing Committee on Internal Economy, Budgets and Administration, but it might well be the Standing Committee on Rules, Procedures and the Rights of Parliament, or a special committee, in which case you would have the Internal Economy Committee for the regulations and the committee chosen by the Senate for the code of conduct.
Senator Joyal: The bylaw or regulation approach would be more for administrative purposes of the functioning of the Senate than the rules, which are strictly concentrated on the proceedings of the Senate, the debates and the way that the debates are conducted? The policy, or the annex to the rules, would be a stand-alone kind of document, adopted through a resolution and dealing with other issues that are not directly concerned with either the proceedings or administration of the Senate? Am I right in interpreting or simplifying it in that way?
Mr. Audcent: That would be my understanding, and the clerk is saying it is his understanding as well.
Mr. Bélisle: There was a point I wanted to make earlier. It is true, as Mr. Audcent has said, that the regulations would be for the governance of the administration of the Senate as opposed to the governance of senators or Senate proceedings; but, on the other hand, there could be provisions. In developing the bylaws on governance and on conflict of interest, it would be up to the Senate to put limitations on the authority of those bylaws. You could limit it to being an internal document, or you could make it available to be used by the courts. Is that the case, Mr. Audcent?
Mr. Audcent: I do not think there is any desire that the courts review the Rules of the Senate. There is certainly no desire that this code of conduct be reviewable by the courts, and should the Senate ever adopt regulations along the lines of the bylaws of the House of Commons, I understand that there would probably be no desire that those be reviewable by the courts. As I understand it, they are all internal documents for our internal administration.
Senator Joyal: If they are adopted under sections 4 and 5 of the Parliament of Canada Act, someone could always claim that they are adopted pursuant to a statute, and as such, could be subject to court revision. A regulation that is adopted pursuant to legislation shares the nature of the legislation; the courts have been quite consistent on that.
Mr. Audcent: I have not seen that argument used to place the Rules of the Senate before the courts.
Senator Joyal: No, but I —
Mr. Audcent: And that is adopted under that section.
Senator Joyal: I agree. We have not tested the court on this. There are now some cases testing the court on privileges. The Vaid case is very well known.
It has not been raised in the past. It relates to the administration of personnel matters. If it is within the context of a bylaw that would be adopted under the Parliament of Canada Act, it could be subject to court revision. The stand- alone policy would probably offer more protection to the privilege of the Senate to remain outside court revision in disciplining its members.
Mr. Audcent: It is a delicate issue, senator, that has to be managed extremely carefully. I think everyone shares your concern to preserve the autonomy of the Senate to manage itself. The question is finding the mechanisms to assure that.
The Chairman: It is beginning to sound to me as if the best approach is as an appendix to the rules. There have been attempts within the Senate for years to bring in bylaws. There have been various and assorted problems that keep arising.
It always seems to get bogged down and never goes anywhere. If we try to go the bylaw route, although it may be in the BNA, we might still be here trying to do the same thing 25 years from now.
Senator Fraser: I come at preservation of privilege from a different angle. I was looking at section 10 of the draft code of conduct, which reads.
Nothing in this Code affects the privileges, immunities or powers referred to in section 4 of the Parliament of Canada Act or those of the Speaker of the Senate or the House of Commons.
Perhaps it would be preferable to delete that and remain silent on the issue, thereby just assuming that everything is covered by privilege rather than raising the question. Do you see what I mean?
I do not know whether I am taking a completely wrong turn in legal terms here. It seems to me that if you start saying in one place that this does not affect privilege, you are opening the door to people saying that it was not said somewhere else. It would be better to be silent, because our assumption, on strong constitutional grounds, is that all of it is covered by privilege and we do not have to say so.
Mr. Bélisle: I think I did make that statement.
Senator Fraser: I am sorry.
Mr. Bélisle: I said that privileges were not being affected.
If the Senate adopts a code of conduct as part of how it governs its own internal affairs, it would follow that privilege could cover its application in the way that you are saying. You would remain silent about it because it is already within the statute, absolutely. When the Senate adopted a Senate attendance policy in 1990, there was no mention of privileges, and the statutes have provisions for those privileges.
Senator Fraser: Would we be better off to strike that reference?
Mr. Bélisle: Yes. However, I gather from reading the transcript that this question was asked and that is why I raised it today.
Senator Fraser: I am grateful to you, Mr. Bélisle. I said it was a supplementary, not a quarrel.
Mr. Bélisle: Absolutely not. Mr. Audcent wants to add something.
Mr. Audcent: You have a policy choice there. I will provide a further piece of information to feed into your policy choice. The draft bill provides that the duties and functions of the Senate ethics officer are carried out within the institution of the Senate. The Senate ethics officer enjoys the privileges and immunities of the Senate and its members when carrying out those duties and functions. Therefore, the bill also contains that suggestion. There are many pointers saying we do not want to be interfered with on internal administration.
The Chairman: I would point out that it is section 10 in the draft code. It says that ``Nothing in this Code affects the privileges, immunities or powers,'' et cetera. The House deleted section 10 as being unnecessary.
Senator Grafstein: I have a general question, but I will raise a specific issue first.
I take it that in dealing with three categories, which are the rules, policies by way of an appendix, or bylaws, the real issue is not that we cannot expand on the existing code of conduct under the rules, but it would be somewhat difficult from a drafting standpoint because of the powers of the Speaker. We are trying to institute another officer to supervise, or regulate, if you will, senators' conduct vis-à-vis the existing rules or the rules as may be appended in a separate document.
You are raising this with us because of the complication with respect to the role of the Speaker in the house, as opposed to the day-to-day regulation of questions of interest or conflict. Is that the problem? I understand the differences are at the other end. It is all the same. It is essentially a drafting problem.
Mr. Bélisle: Under rule 18, the Speaker is clearly responsible for the interpretation of the Rules of the Senate.
Senator Grafstein: That is a matter of drafting.
Mr. Bélisle: Mr. Audcent is the drafter.
Mr. Audcent: I suppose there is a fine line where drafting reflects reality. Many of you may not concede that.
They deal with different subject matter. The purpose of the rules is to govern your meetings, whereas the purpose of this code is to govern your conduct, which is quite beyond the bounds of meetings of the chamber and committees.
The Rules of the Senate does contain a little extrinsic material. There is some financial administration material because there was no other document in which to put it. If there were, it would go there.
Here you are bringing in an entire code that has nothing to do with conducting your proceedings in the Senate and in committee. They seem to be different matters requiring different documents.
Senator Grafstein: Essentially, it is how we address the issue, as opposed to not being able to do it under the rules. We could do it under the rules, through drafting. It might be simpler, in terms of application and clarity, to have it in a different place.
Mr. Bélisle: One of the points I mentioned was that having the form, the purpose, definitions and all of that within the existing rules would be quite difficult. That is why we would suggest putting it somewhere else.
Senator Grafstein: It is essentially a drafting problem and an issue of clarity of intent, as opposed to the impossibility of being able to do it under either rules or policy. I am not too clear about bylaws.
However, bylaws present some different problems as far as I am concerned. I see it clearly as being in rules and policy. A policy is appended to the rules. Bylaws are a somewhat more difficult and complex issue with which I will not belabour the committee.
I want to step back a little and look at the current practice, which includes rules affecting the interests of senators. Mr. Audcent and you have been engaged in this issue for a long time.
Give us a sense of the current practice, under the current rules, on declaration of interest or problems with respect to senators, but without getting into detailed cases. For instance, how active are you, as counsel, on this question? What has been the level of activity or correspondence? I talked to several senators who told me that they have had regular correspondence with someone, and I assume it is either Mr. Bélisle or Mr. Audcent. Give us a sense of the current practice and the current level of activity dealing with these issues.
Mr. Bélisle: Senator, in terms of the pecuniary interests, we are looking at 65(4) and its application.
Rule 94 deals particularly with pecuniary interest for senators who are sitting on committees. This one does not present too much of a problem because it requires a member of a committee not to sit with respect to the matter when the committee studies it, but the rules do not require the member to resign from the committee. As you know, usually that is dealt with through the membership change provisions.
Rule 65(4) provides a mechanism to disallow a vote based on pecuniary interest. Personally, I do not have any knowledge of the pecuniary interests of senators. I think Mr. Audcent has managed these provisions at one point in time, or he has a register.
Mr. Audcent: The first form of registration that the clerk receives is your declaration of qualification at the time you become a senator and when you renew those declarations.
As counsel to the individual senators, I receive communications from senators on a regular basis, asking me various conflict of interest questions under the statutes. Sometimes, the senators want to give me the facts of the situation directly. At other times, they ask me, for example, to brief their counsel or accountant so that the other professional can provide them with knowledgeable advice because I can give them an analysis of the relevant provisions.
In the previous Parliament, a committee of the Senate decided that it would be appropriate for senators on that committee to have the opportunity to write to Parliamentary Counsel and disclose their interests, so I opened a register book to accommodate that committee. Anyone who phoned, from the press or whatever, could read the senators' declarations. It was a bit of an uncomfortable situation because I was not necessarily advising senators with respect to what they disclosed; it was just a clerical function. As a result of that, we made amendments to the Rules of the Senate, and the current rule 94 now has additional provisions allowing committees to invoke a disclosure regime when it is appropriate for a special study.
That is as much information as can I give you on the various aspects of dealing with staff that have occurred.
The Chairman: Mr. Bélisle, thank you for coming. Before you leave, I will say that it seems to me that we are in the process of ruling out putting this code within the Rules of the Senate or in a bylaw, because it becomes too complex. Which of the two that you have suggested, appendix to the rules or an independent policy, would you yourself recommend?
Mr. Bélisle: Both of them, senators. Again, I refer to the only other stand-alone policy that was adopted, on attendance. It would be up to you to consider the implications and what you want to do with it.
Mr. Audcent: Madam Chair, thank you. Good afternoon, honourable senators. My opening remarks will take between 10 and 15 minutes. I was pleased to note that the Ontario Integrity Commissioner was able to address you yesterday. An ethics commissioner with experience in administering codes of this kind is probably in a better position than I to advise you on the interpretation of such a document and on issues that might arise out of its application. However, I am delighted to be here to share a legal perspective on the draft code with you.
To begin at the beginning, the current proposal, as I understand it, is to have the Senate adopt the code of conduct for senators alone, by a motion that, upon adoption, will become an order of the Senate. It follows that the code will not be a statute, which requires the concurrence of the three elements of Parliament. Rather, the code of conduct will be of the same nature as the Rules of the Senate of Canada or the attendance policy, which are decisions of the Senate in the form of an order. This will remain true wherever in the Senate authorities the code is actually physically placed.
Turning to your interim report, I note that it advises that you are in agreement that a Senate ethics officer shall have legal experience. In my view, it would be important to follow up on this recommendation by placing in the code of conduct an express provision that requires the officer to give you advice that is not only in compliance with the code but also with the law.
By so doing, you will end the argument that the role of the new ethics officer is limited to interpreting the code of conduct, and that senators, with respect to the same proposed activity, must consult the new ethics officer with respect to compliance with the code of conduct and Parliamentary Counsel with respect to compliance with the law. If a new ethics package is to be adopted, senators should be entitled to one-stop shopping and consistent advice.
I would also recommend that you at least consider integrating into the code of conduct rules that reflect the rules of law that will continue to govern you. This will allow you to not lose sight of the conflict of interest obligations that the law imposes on you and which Parliament presumably considers to be the more important ones. They are certainly the obligations, the breach of which will have the gravest consequences.
The code of conduct already covers the substance of the prohibitions in section 16 of the Parliament of Canada Act and section 119 of the Criminal Code. However, you should consider adding two new provisions that reflect the prohibitions set out in paragraphs 121(1)(a) and (c) of the Criminal Code.
To reflect 121(1)(a), the prohibition would provide that no senator may accept a benefit as consideration for an act or omission in connection with the transaction of business with, or any matter of business relating to, the Government of Canada, or any benefit that Her Majesty in right of Canada can bestow.
To reflect 121(1)(c), the prohibition would provide that no senator may accept a benefit from a person who has dealings with the Government of Canada unless he has legal authority to do so. Since it will be the responsibility of the ethics officer to interpret the code of conduct, it will be up to that officer to determine what legal authority is necessary.
The reason for structuring things this way is that paragraph 121(1)(c) of the Criminal Code prohibits a senator from receiving a benefit from a person who has dealings with the government unless the senator has the consent in writing of the head of the branch of government of which the senator is an official.
The expression ``head of the branch of government'' is not used elsewhere in federal statutes. The Access to Information Act and the Privacy Act define the word ``head'' in respect of a government institution and make it the minister. Although no statutory provision that I know of expressly makes the Speaker the head of the Senate, the Financial Administration Act does identify the Speaker as the appropriate minister with respect to the Senate. For the House of Commons, the act specifies that the appropriate minister is the Board of Internal Economy.
The bottom line is that it would be useful to senators if a mechanism could be devised and adopted by the Senate that would allow senators to access the written consent that the Criminal Code requires from an appropriate source that meets the statutory requirement, without any undue incursion into your independence or privacy.
Honourable senators, the old adage says, ``Out of sight, out of mind.'' There is a danger that if these wide prohibitions with criminal consequences are not integrated in some way into the code of conduct, senators and the ethics officer alike may lose sight of them.
Leaving the issue of dovetailing the proposed code of conduct with the law, I turn to the code of conduct itself. It seemed to me, honourable senators, that a good starting place for reflecting on the content of the draft code would be a review of just what it is that a senator does.
Actually, this made me think that a useful study could be conducted with a view to finding out just what the full range of activities of all senators is. Given the diversity of interests and talents in the Senate, it is unlikely that any two of you do exactly the same things, and the full range of senators' activities might surprise even senators. No doubt some of your activities are reflected in Senator Joyal's new book, Protecting Canadian Democracy: the Senate You Never Knew. Perhaps Senator Joyal is looking for a new research project.
Obviously, what senators actually do is critical to the development and review of any code of conduct. If conduct is to be regulated, the regulation must be relevant and apply to the conduct. The conduct to be regulated, according to Bill C-34, is your duties and functions of office as members of the Senate.
So what do senators do? The publication The Senate Today offers a brief overview of how senators present their functions to the public. I quote:
[Translation]
Examining and revising legislation, investigating national issues and representing regional, provincial, and minority interests — these are important functions in a modern democracy. They are also the duties of Canada's Senate. Senators represent, investigate, deliberate and legislate. [...]
Follow a senator around for a few days. You will find yourself hurrying from the Senate Chamber to committee rooms to the office, and regularly back to the region of Canada the senator represents as the two of you attend to the varied duties of the job. Part of each week is devoted to debate in the chamber, but most of a senator's work is accomplished in committee. Many senators sit on one or more committees and serve on sub- committees as well. They log long hours in meetings and in preparation, making themselves familiar with bills and pinpointing weaknesses that may need amendment. Caucus meetings and speech writing also fill up those busy days.
Through their committee work and their experience outside the Senate, many senators have developed significant areas of specialization. People identify them with these subjects and turn to them for help or to express their opinions. Senators spend a great deal of their time talking to organizations and individuals, and promoting awareness of the issues of particular concern to them. [...]
Senators boost Canada's profile on the world stage and strengthen its relationships with other countries through their participation in parliamentary associations. They meet with parliamentarians from around the world to discuss such issues as trade, economics, security, culture and human rights. These meetings also add to the senators' owe storehouses of knowledge that will serve them as legislators.
Senators also act as ombudsmen. They handle calls from people looking for information on legislation or help in dealing with the federal government and its bureaucracy.
[English]
More technically, according to the Constitution, you represent your region, your province or territory. The Constitution might be read to imply that each Quebec senator also represents one of 24 electoral divisions.
Your summons as a senator recites that you are summoned ``for the purpose of obtaining your advice and assistance in all weighty and arduous affairs which may the state and defence of Canada concern.'' In order to do so, your right and duty is to attend, to speak and to vote, both in the full Senate and in committees.
The Constitution provides that you are an essential part of the federal law-making process. No bill becomes law without your consent. Writers often inadvertently limit your role to this law-making function, but you also have major roles in financing government, in holding the government accountable, and in developing public policy.
Chamber and committee functions are at the core of a senator's functions and are sometimes referred to as ``official business.'' Other official business would include serving as a minister of the Crown or taking an assignment at the request of a minister of the Crown. In the Senators' attendance policy, these assignments are so closely associated with the Senate that time spent at them is shown as attendance to business in the Journals of the Senate.
In addition, senators also attend to public business. The Parliament of Canada Act provides that a day spent on public business shall be reckoned as a day of attendance if you do not attend the sitting, thus allowing you to be paid for it.
Most senators meet in national caucus weekly, and in other caucuses, too, which is but one example of work within your political parties. Some senators no doubt spend long office hours helping with the internal organizational activities of their parties. You also attend private partisan meetings and participate in leadership campaigns and party conventions.
Back in the office, senators communicate both with the government and with Canadians. You prepare and make interventions to government on all kinds of issues, whether to a minister directly or to the bureaucracy, or to independent agencies, boards, commissions and tribunals. The intervention may concern a matter that is or will be before the Senate, but may also concern matters unlikely ever to come to the Senate's attention.
Senators also interact with Canadians, both publicly and in private. Every time that a senator reaches out to Canadians by speaking at a dinner or attending a public gathering, that senator is on public business.
I hope that this review creates a sufficient record of your roles and functions.
What about your powers? With respect to any matter that comes to the Senate and that needs its consent, such as legislation, you are, as a collectivity, omnipotent. Since every senator holds one of a potential 105 votes, and since votes are often divided on partisan lines, you are each, individually, very powerful.
A question that I cannot answer concerns how much influence individual senators have with the executive government. The answer no doubt varies by senator, by issue and over time.
In her comments made to the Senate on May 1, the Leader of the Government in the Senate noted that, from the public's perspective, senators enjoy a level of access and a potential to exercise quiet influence that is vastly beyond that of ordinary citizens.
Identifying the true range of your potential influence, and what activities lie reasonably within its sphere and what activities are beyond it, is surely important in assessing the potential scope of future rules.
In the other direction, in developing rules one must also consider the power that others can exercise over you. At the core of any conflict of interest code or code of conduct is a duty to exercise your public powers exclusively in the public interest. All senators know that they must not use their office and powers for personal gain. Nor can you afford to appear to do so, whether or not this is in fact the case.
Remember that the original purpose of the present section 14 of the Parliament of Canada Act was to prevent the executive government from being able to buy the votes of parliamentarians with lucrative contracts. Rules can assist in protecting you from undue influence and also in communicating your integrity to Canadians.
Honourable senators, my purpose in reviewing your roles and powers was to address the underlying issue of what are the goals or purposes of a code. It seems to me that facts dictate that the general public, and senators themselves, are the proper audiences of this document.
With respect to the public, the public confidence and trust in Parliament and in the Senate and senators is a legitimate value, one that is already reflected in rule 141(5) of the Rules of the Senate, which addresses the need to ``protect the dignity and reputation of the Senate and the public trust and confidence in Parliament...''
Senators approach the issue of ethics from two perspectives. Individually, some will find comfort in having modern, clearly spelled out rules and a professional adviser to interpret them, apply them to fact situations and give binding answers.
You are in a special position with respect to your colleagues. You are associated with each other and have a great interest in each other's ethical conduct, for the public undoubtedly paints you all, to some extent, with the same brush. Yet you have little control over who is named to the Senate as your colleague, little control over their constitutional qualifications, and little control over the way they choose to carry out their parliamentary functions.
Understandably, if the ethics of one of your colleagues were to be publicly questioned, individual senators would feel great concern and some considerable discomfort, both for the colleague and for themselves. In this context, adoption of a code of conduct for senators could be a way of establishing a group consensus on the ethical standards in office you are prepared to offer each other, and expect from each other in return, and on the appropriate processes for dealing with such issues when they arise.
Honourable senators, at the end of my opening remarks to you on February 12, I noted that while it would be extremely important to get the law right, given the difficulty of changing it, you might derive some comfort in establishing a code of conduct for senators from the knowledge that change in response to situations would be possible.
To provide flexibility, a third improvement that could be considered for the draft code would be a mechanism along the lines of that found in the bylaws of the House of Commons. I refer to the provisions under which a member can submit a fact situation to the Board of Internal Economy, which may then deal with the case as an exception to the bylaws, if necessary.
Rules must not only work technically, but they must be useful and fair. I think that senators could take great comfort in knowing that, if the particular application of a rule to an unanticipated situation were unreasonable and unnecessary, the Senate committee would have the power to dispense with the rule.
Honourable senators, today I have suggested three new provisions that might be added to a code. Your committee now has for your consideration the House of Commons redraft of the code of conduct, now conflict of interest code, being considered by it. I have also prepared a clause-by-clause review of the draft code of conduct for senators, mostly from a drafting perspective. I will deposit it with the clerk of this committee as soon as it exists in both official language versions.
Thank you for your time, honourable senators. I look forward to your questions.
The Chairman: Thank you, Mr. Audcent. A portion of your remarks today has reminded me that quite a few senators have approached me to suggest that a preamble to this code would be an appropriate place, if the code is to be a stand-alone document, to spell out the differences between the House of Commons and the Senate, to describe what the Senate is, the role of senators and our different constitutionally demanded mandates.
If any members of the committee agree with me, perhaps we should get some of our staff working on drawing up some kind of a preamble so that we can look at a document before us and think about whether we want to include that in the code.
Senator Grafstein: First, I want to thank you, Mr. Audcent, for that very comprehensive overview. I think it would be useful, Chairman — because I was trying to follow one idea and he was racing on to another equally important idea — if we could get a printed copy of his text and perhaps have him come back. We do not have it in front of us.
The Chairman: I am sorry, very definitely.
Senator Grafstein: I think it would be useful because a lot of the information he gave was important, particularly his comments about the Criminal Code being out of sight — I am not taking you out of context; I think it is an important statement to be made — and whether or not that has to be replicated in these rules. My own preference may be different, but I want to listen to his arguments as to why it should be replicated in the rules.
However, there is a lot of other information. It would be useful if we could do that. I know I will have further questions after I review that material. If we could do that, obviously, we could call Mr. Audcent back.
The Chairman: I have to say, just in addition to what are you saying, Senator Grafstein, that I would be very hesitant to put something as definitely judiciable as the Criminal Code into our rules.
Senator Grafstein: I think he raised it from a different perspective. I want to see what his text says before I comment on that.
I will reserve my comments on all the issues he has raised and go back to the current practice. I am very interested in the current practice. I know that senators have asked Mr. Audcent from time to time, as he has indicated, about various issues under the Criminal Code, under the rules, under the various constraints that we already have. Many senators are not aware that we do have very stringent rules in different places that, to my mind, are in effect a code of conduct, except it is not pulled together, and we have had a chat about that.
I would like you to talk about the current practice before we get into some of the substantive matters. How much time do you spend and what is the effect of the opinion that you might give to senators, as a solicitor and client, for example? Give us a sense of what you do now in dealing with these various rules, the Criminal Code and the conventions of the Senate.
Mr. Audcent: Honourable senators, perhaps the most important event that occurs in the area of conflict of interest for senators at present is that when people are summoned to the Senate, on that first day, they meet the Clerk of the Senate. When Mr. Bélisle became the Clerk of the Senate, he began a practice by which I am present to advise the new senators of the need to be concerned with conflict of interest and of the fact that assistance is available to them.
A certain attention is drawn to the issue and to the importance of respecting the rules that are in place, and then incoming senators think of their own situations and can assess how much or what kind of advice they need. Depending on the individual, I deal with a variety of situations. I deal with individual senators who will ask questions. I deal with people who ask theoretical questions. I also deal with fact situations that are given to me, to which I will give a legal opinion in response. I also deal, as I said, with the other professionals that assist senators — lawyers and accountants who are the trusted advisers of the individuals who come here. The senator may ask them to talk with me and to get a briefing on the rules that are applicable, what the dangers are and what the jurisprudence says, and then they will brief the senator.
That is fundamentally the role. As I have indicated, I have served as a depository for documents that people want to file with me. That is not an advice function; that is simply serving as a depository of record such that I could say a document was received on a particular date.
You asked me about the amount of time that I spend on it. It is very difficult to assess. I have not done a calculation. I would say that a conflict of interest question is never very far away from being my next project. I either have a question before me, or I will reasonably soon. It is an ongoing business, but it is not overwhelming. It is not my major function as your Law Clerk, but it is an ongoing and regular function, is the best way I could put it.
Senator Grafstein: Can you give me a percentage of your time?
Mr. Audcent: My best guess would be somewhere around10,20per cent.
Senator Grafstein: You raised a question again and you have not quite answered it. You say you act as a depository for documents that senators wish to table, and you give written opinions based on fact situations.
What is the status of those opinions?
Mr. Audcent: Senator, they are legal opinions. They are subject to solicitor-client privilege. The privilege belongs to the client. Therefore, they are not available to any other senator who might inquire about them.
With respect to the status of a legal opinion, I am always chastened by and love to go back to the words of the Supreme Court of Canada in the Wheeler case. In that case, the poor gentleman who had been the mayor of Moncton sought the advice of the city solicitor and was assured that his conduct was correct. Then he sought the advice of the provincial attorney general because he wanted to make sure that the advice he had received was correct. He was told that, yes, his conduct was all right. Of course, the Supreme Court of Canada said: ``Sorry, your conduct offends against the section and it is too bad, but those were just legal opinions.''
So legal opinions are exactly that. They are opinions. They are informed professionals' best guesses as to what the courts might say.
Senator Grafstein: I understand that. In effect, it is a solicitor-client privilege. For that document to be used in any way, shape or form, it is up to the senator to waive his privilege if he wishes to disclose that publicly or to use it for any purpose other than his internal or his solicitor-client purpose. That is up to him?
Mr. Audcent: The privilege is the senator's. Solicitor-client privilege is absolute.
Senator Grafstein: Does that apply as well to the documents that are tabled with you? Senators have told me — and again I have not asked them — that they have tabled correspondence or documents with you. I want to know the extent of the privilege as it relates to documents that may be tabled with you for whatever purpose.
Let me use an example. The simple statutory example is the one dealing with real estate in a particular province. As you have indicated, that is a precondition of being a senator. That is a statutory requirement and I assume that that document or whatever someone provides with that, other than perhaps an affidavit, may be a public document? Am I correct? I am trying to get a sense of what is public, what is private, what is statutory, what is under solicitor-and-client privilege.
Mr. Audcent: To use your example, senators are required to own real property in the province that they represent. The proof to the Senate is the senator's word. The senator fills in a declaration of qualification. That declaration of qualification is registered in the office of the Clerk of the Senate, Mr. Bélisle. It has occurred in the past that senators came to me to ask whether their possessions qualified them. A quick service note was sent back saying: ``Subject to the information you have given me, yes, you are qualified.'' That was read in the chamber and the issue became what information I was given. Another senator asked for that information. In other words, what information was I given on which I said they were qualified.
My answer to the second senator who asked the question was: ``It is solicitor-client privilege.''
Senator Grafstein: I understand that. Are the documents that you referred to, the documents tabled by a senator for whatever purpose, covered by solicitor-client privilege? Or are those documents essentially for the purposes of the clerk, for example, or whatever other purposes?
Mr. Audcent: It depends on the understanding at the time. It is much like when a senator asks for advice. It is very wise on my part to say, ``Are you asking for this for yourself or for your committee,'' so I know who can be made a party to it if questions come in.
We can take the example of the committee that has specifically said that senators can file documents with me so that the public can access those documents. Obviously the understanding is that I am supposed to make the documents available. That was the regime that was put into place.
However, as far as I am concerned, I am running a lawyer's office. If a senator sends me documents for safekeeping, those documents belong to the senator and are not available to anyone else.
Senator Grafstein: It is important for us to understand the existing role before we move to a new regime. I am asking these questions for the sake of clarity for myself and others.
In conclusion, I take it, therefore, that you will agree with me that you would not be compellable as a witness against a senator in a proceeding in your current role, save that the senator himself would agree? In other words, he could waive his privilege?
The Chairman: Mr. Audcent, I had forgotten that the Senate sits at 1:30 today. Please be quick.
Mr. Audcent: I am in the same position as any other lawyer with respect to my compellability. I am a practicing lawyer; I am a member of the Law Society of Alberta.
The Chairman: Thank you. I apologize, Senator Grafstein.
Senator Andreychuk: My point will be short. We were discussing a preamble, and my inclination is against preambles because they may identify some issues and leave others out, or put in place a nuance that can potentially change our history and our understanding. I am not enamoured of them, especially when I see them in legislation. I think it is a way of getting away from the issues.
If you wish to go ahead, I would be interested to see what might be produced, but that is just a warning. I would certainly be rather strong in my opposition if the preamble were to identify our differences from the House of Commons.
The Chairman: It would have to be a positive document.
Senator Andreychuk: If there were any mention or intent of doing that in a preamble, I would say no, because our role is not just to be different from the House of Commons. I do not think it would even be a good educational tool in that case. I think it would get lost very quickly and could be more damaging than helpful in the long run.
Senator Fraser: I agree absolutely with what Senator Andreychuk just said. The more I think about it, the more dangerous I think it would be. If you would like to have someone try his or her hand at it, one never objects to work being done, but I thought I should say for the record that I am very reluctant to go down that road.
Senator Di Nino: I would hope that we would have Mr. Bélisle and Mr. Audcent back some time. I want to ask questions that will take longer than the few minutes we have left. I will pass.
The Chairman: I am not too sure we will be able to have them back again because time is moving on.
Senator Joyal: I will be quick. You mentioned that you would be tabling today a document that contains your comments on the proposed draft code. In other words, it is an annotated copy. Do I understand that is what you have provided us with today?
Mr. Audcent: Honourable senators, as I said, I prepared a clause-by-clause commentary on the draft code of conduct. It is not an explanatory commentary describing what the sections do. It is done more from a drafting perspective: Do you need this word? Is this concept right? Is the concept in this section aligned with the concept in that section? I was looking at it from a technical point of view to make sure you have a very smooth code. The document raises questions for the committee and its staff to answer.
Senator Joyal: Certainly we will want to read that. Maybe on that basis we will want to ask questions of Mr. Audcent.
My second question is about the solicitor-client relationship that you have with senators presently. In your reading of this draft code, will the ethics officer be in the same position in relation to senators that you are in now?
Mr. Audcent: My understanding, honourable senators, is that the bill does not place any limitation on who might be named; that the code does not talk about the nomination; and that your report says that for now, you would want someone with legal experience. That might be a practising lawyer, but it might be, for example, a retired judge, because ``legal experience'' does not imply an active member of the bar. Therefore, whether you get solicitor-client privilege with a new officer would depend on whether you get someone who can offer that; and then whether that is the understanding, the arrangements that are made.
I should point out that on the issue of solicitor-client privilege, since are you pursuing it, not all counsel to all legislative assemblies take the position I take with respect to the advice they give. There are assemblies where they take the position that the role of house officer is predominant, and that you provide the advice on a confidential basis.
That is not the position I have taken. I think I have left a record in my dealings with senators that until I am instructed differently, I want to deal with you on a solicitor-client basis. Therefore, I would expect that would be respected.
Senator Joyal: I think it is a very important point, Madam Chair. We should not forget that one when we review this proposal. It is in that context that I raise with you section 27(1) of the proposed draft code, which says:
In response to requests in writing from a parliamentarian on any matter respecting the parliamentarian's obligations under the Code, the Ethics Commissioner may provide the parliamentarian with a written opinion containing any recommendation that the Ethics Commissioner considers appropriate.
Then it goes on with ``Confidentiality'' and ``Opinion binding.'' My question is about the opinion binding, and I read it, section 27(3):
An opinion given by the Ethics Commissioner to a parliamentarian is binding on the Ethics Commissioner in relation to any subsequent consideration of the subject-matter of the opinion so long as all the relevant facts that were known to the parliamentarian were disclosed to the Ethics Commissioner.
My question is in relation to the House of Lords code of conduct, and I quote section 18, which says: ``A member who acts on the advice of the registrar in determining what is a relevant interest satisfies fully the requirement of the code of conduct.''
It seems that in this provision we have reversed the approach. It is the ethics officer who is protected but not the senator. I would think that it should be the other way around. That is the way that the House of Lords' code of conduct approached this issue.
We should be protected if, in all trust and confidence, we go to see the proposed ethics officer and, on the basis of a solicitor-client relationship, we disclose everything. Once we have the advice of that person, we should be seen as having complied fully with the code. Here, it is the other way around. It is the ethics officer who is protected and we are still open to any kind of queries and questions as to whether we have complied with the code. That is why I think it is important to revisit that aspect, which to me is on the same basis as the solicitor-client relationship we were talking about.
Mr. Audcent: Honourable senator, having listened to you, I think that the purpose of the two sections would be the same, and the question is how best to word it. However, you are certainly right that the goal is to protect the senator.
Senator Hubley: I will be very quick. It has, of course, to do with an introduction or preamble to the code. I did explain at a previous meeting that because of the uniqueness of the Senate, I think that it is important to have that preamble. I think it also sets the tone of how we would like to see that code interpreted.
Senator Cordy: I am also in favour of a preamble. Of course, I would have to see it before I would agree to it, but again, it would show the uniqueness of the Senate and that the code of conduct has come from what has been determined in the Senate.
I have a quick question, getting back to your suggestion that the rules of law be integrated into the code of conduct. You said, ``Out of sight, out of mind.'' Is that for the officer or the senator or both?
Mr. Audcent: I am challenging the committee to think about how it will ensure that the prohibitions in the Criminal Code — and there has been a decision that those are staying — will be kept front and centre in the minds of senators so that they do not get into trouble.
I suggested that you could put it in the code of conduct. You could decide that it will be printed in the code of conduct, but not be adopted as one of the rules. What is my goal? Since these prohibitions are there, and since they govern you and are dangerous, they should be in a place where you can read them.
The Chairman: They could be in the preamble.
Senator Cordy: Could you just have a statement that senators have to abide by the Criminal Code, rather than integrating them into the code? I am saying this because I am looking at the idea that we have talked about. If the code of conduct is in the Senate rules, we can change them easily; but if we start integrating the rule of law, then it makes it a little more cumbersome.
Mr. Audcent: Senator, you already all know that you are governed by the Criminal Code. If you just make a reference to it, I am wondering whether you are all comfortable that you understand those prohibitions, could elaborate on them and conduct yourselves accordingly tomorrow night if an issue came up. I am not necessarily arguing that they have to be adopted by the Senate, but somehow or other the prohibitions in the Criminal Code have to appear in this code of conduct so that senators do not forget them. They are equally important — in fact, they are more important because the consequences are so devastating.
Senator Rompkey: Before we decide for or against a preamble, we should look at what it says and have another discussion as to what its effect might be. We should look at something and talk about it again.
The Chairman: In that case, I should direct staff to draw something up, perhaps with Mr. Audcent's help.
Mr. Audcent: I would be delighted to help. I wanted to put on the record, because you have had that discussion, that a preamble has a purpose. It is to be a recitation of the facts upon which what follows is based. Therefore, it should not be just sort of airy-fairy; the true nature of a preamble is a recitation of facts on which you are proceeding.
The Chairman: Thank you very much, senators. On Monday, we will be meeting at four o'clock in the afternoon to hear Lord Williams and Mr. Keith from the British House of Lords. The Senate, I believe, is sitting at six o'clock on Monday, but I would like to take Lord Williams and Mr. Keith to dinner and invite any members of the committee who wish to, to come along.
I would just ask the members of the committee who would like to come to get themselves paired across so we are not cutting the Senate short in any way; and to let my office know.
The committee adjourned.