Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 16 - Evidence, June 10, 2003
OTTAWA, Tuesday, June 10, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:35 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: Honourable senators, we are fortunate to have before us this morning Professor Hudon from the University of Laval. He sent us a copy of his remarks. When translation services received the presentation they somehow lost four pages. Therefore, the translation into English is not yet complete. We are told those missing four pages will be arriving at about 10:30 this morning.
In the meantime, Professor Hudon, we are in your hands.
[Translation]
Mr. Raymond Hudon, Professor, Université Laval: Madam Chair, it is an honour for me to be with you here this morning to speak about a subject which I feel is extremely important and which has been of great interest to me for some time. Senator Joyal pointed out, a few minutes ago, that this was surely not the first time that I have dealt with this subject. And he is right; I wrote a master's thesis on political patronage. I am particularly interested in the lobbyist issue, something that, had it not been for a last minute cancellation, I would have discussed before the committee on an earlier occasion.
I simply wanted to emphasize the importance of this issue. This morning, I will be dealing with various subtle aspects of some positions that are being expressed at this time.
[English]
If I have been invited as an expert, I would like to make it clear that experts have good answers to their own questions. I will do my best with you this morning. I want to be clear about that.
As you did not receive the paper until late yesterday evening, I will simply make a short opening statement and then have a discussion with you.
The note on the front page is important to read. It states:
In line with the terms of the invitation, this paper approaches the code of conduct for senators in general terms with the aim of defining the conditions and context underlying it. The presentation is couched in the language of university publication rather than political speech. It should be read with these facts in mind. Although it is conceivable that considerations of this kind should have been addressed earlier in the process of drafting and adopting a code, we hope our contribution is both relevant and useful.
I give a general picture as a background for the code you are discussing. Let us refer to the summary, or the abstract: In contemporary democratic society, holders of public office are urgently drafting rules of conduct for the performance of their public duties.
I would say that it is a universal phenomenon, at least in democratic Western societies.
The demand for ethics, or more properly a code of conduct, stems largely from the secularization of public life. People need guidelines. In ancient times, when I was young, priests and the church told us what is good for us and what is good for everybody. Today, people still need guidelines and the demand for ethics must be related to them. The demand for ethics is heightened by democratic practices and aspirations, the latter characterized in the last few years by a greater demand for transparency.
If I may, I would suggest that what has changed in democratic systems over the last 20 to 30 years is the demand for transparency. Let us think of —
[Translation]
... access to information and financing of political parties...
[English]
— which is debated now in the House of Commons.
[Translation]
... that is to say the role and the powers of the Auditor General, the advocates, the ombudsmen.
[English]
Transparency, I think, is the most important development in the Western democracies over the last 20 to 30 years. This code and other codes must be related to that development. However, greater transparency has resulted in some weakening of public authority.
[Translation]
Public office holders, politicians, as I often say, are just human beings. We realize that they have their own weaknesses, which means that authority is no longer automatic and does not stand on its own. It is not derived from, for example, an all-powerful being that some would refer to as God. There are imperfections and politicians, those who hold public office, are as human as anyone else. I am often asked: ``So you do not hold politicians or public office holders to a higher standard?'' I say that I do, but if I were to expect them to be perfect, then they would no longer be able to represent me.
[English]
Even though the debate surrounding progress in political morals sometimes goes too far — it is a point I make in my paper — the public seems able to distinguish between doubtful behaviour and corruption.
[Translation]
They can tell the difference between corruption and conflict of interest, which are two different concepts.
[English]
Similarly, due to heightened awareness of what the real world is like, conflict of interest has moved up on the agenda. At the end of the day, moral and legal methods are not necessarily the best way of dealing with political problems.
[Translation]
Political problems require a political solution. Economic problems cannot always be dealt with in political terms. Legal terms are not the only way to deal with political problems. Political problems are not only described in moral terms.
This is what I highlight in my brief. Politics is a moral activity, but it cannot only be subjected to morality, since, if that were the case, neither its objectives nor its purpose would be met.
[English]
The lack of confidence in public institutions and holders of public office — specifically those elected to it — demand a number of measures. The draft code of conduct for senators can make a valuable contribution to rehabilitating politics in the eyes of the public.
[Translation]
The public, the citizens, also know the difference. They can distinguish between what is sometimes, if not often, said about public office holders and politicians, and what they themselves truly think of them.
Surveys carried out in Canada have clearly demonstrated that citizens are fully aware of exaggerations and caricatures of politicians and public office holders that they read or see in the media.
Mr. Michel Vastel made an interesting comment last week; this well-known columnist for Le Droit and Le Soleil said, following the resignation of Quebec minister Julie Boulet, who was forced to resign even before taking her seat in the National Assembly — she owns a pharmacy — because drug companies had given her more than $1,500 worth of gifts that she had passed on to her customers. She was forced to resign and Michel Vastel commented in Le Soleil and I quote: ``If journalists were as demanding of themselves as they are of politicians [...]'' Do you understand?
I am not saying that the press should not act as a watchdog. This must absolutely be done. However, we should seek a more moderate approach or a greater sense of responsibility. The greatest threat to our society does not come from any misconduct by some public office holders, but from the cynical attitude that the public has with regard to these people.
[English]
The final point is this. Unless complementary measures designed to improve the relationship between public institutions and civil society are taken, your code — and I am not completely at ease with this translation — ``will probably have little impact.'' What I mean is the code must be adopted, but it must be complemented by a series of other measures.
That is a summary presentation of my paper. I will simply add a few brief comments. After Senator Joyal's call, I sat down and wrote this paper. Only after did I look at your discussions on May 28. I realized that I had dealt with some questions that you were wondering about a few weeks ago. I had not read those discussions, the debate, prior to writing my paper.
From what I read of your discussions of a few weeks ago, you must be aware that rules like this one, the code, have to be applied, designed and thought about in a specific context. I am not aware of what you spoke about yesterday. I realize that you had a guest yesterday who spoke to you about the House of Lords. On that point, I will simply say that we have to think of measures such as the code in a specific context.
[Translation]
Morals and ethics are also cultural issues. Rules of ethics are not seen in the same way in North America as they are in Europe. I was telling your chair earlier that, as you all know, in the British Parliament, members can sit and be paid as lobbyists at the same time. The Blair government, or the previous one, was the first to do so. There were at least 40 members of the House of Lords who were paid lobbyists. In the German Bundestag, in the early 90s I was myself surprised, but you know what it means: other rules for other cultures. Although the Germans are not all that liberal when it comes to public sector morals or ethics, the chairman of a parliamentary housing committee was also president of the builders' association. This is absolutely unheard of in the North American context.
I would like to add one important point to allay any ambiguities relating to public institutions and office holders. I have quoted an Australian study that states that elected office holders — because they have an elected Senate in that country — are less reluctant to adopt a code similar to the one we are discussing today because their experience with institutions has led them to be more comfortable with this type of measure. However, the closer their ties to their political party, the more likely they are to resist. There might be a reason why Canadians, according to available research, tend to trust democratic institutions, while regarding public office holders with suspicion, and heaping criticism on political parties.
[English]
The Chairman: I should tell members of the committee that I think it will be valuable for us to read your paper anyway, even though you believe it is outdated because we have already discussed some of these issues; we have not settled them yet. There is a further paper in your presentation, ``Règles éthiques comparées: fondements et applications,'' that is presently at translation services. As soon as it is translated, everyone will receive a copy of that.
Senator Rompkey: I was interested in two points that you made. You started by saying that the call for ethics was a universal phenomenon. You said there was a demand for transparency and that people need guidelines. I accept that.
I noticed also your quote from Michel Vastel about if reporters had to follow rules to which they hold politicians. I noticed that because over the years, it seems to me that it has been very difficult for us to enter into a dialogue with, let alone change the minds of, journalists. They seem to have a fixed opinion that their editors pass on to them.
Whatever we do, even the correction of facts, does not get into the paper. If the allegation and the charge appear on page 1, the correction, if it appears at all, will appear on page 17. It is almost impossible to engage in dialogue.
On the other hand, the media are the only filter we have — except for polling and other means — in ascertaining what the public thinks. Did anybody in New Brunswick think that the results would be what they were last night? There were certain allusions to that, but no one knew for sure what the public was thinking until the end of the day.
I accept what you say. I agree with what you say about the need for greater transparency and public attitudes. On the other hand, I was also interested in what you had to say about the press, and in particular, Mr. Vastel's quote.
I was more interested in the complementary measures to which you referred. Could you tell us more about those? The code does not operate in a vacuum obviously; other aspects of the institution have to be changed if the code is to be effective.
[Translation]
Mr. Hudon: If I could answer your questions, I could mount a leadership campaign. Would I win? I do not know, but I would at least have a few ideas.
It is hard to imagine a program with specific measures. In my brief I said that a lobbyist's code represents an inevitable and necessary measure. The House of Commons has one, and there are others, including the recent Quebec code which goes even further than the federal one.
I dare say, at the risk of being provocative, that with respect to the measures debated by Parliament in Ottawa, the bill on political party financing is probably the one that will attract the greatest amount of public attention. It will have a greater impact. That is my theory, based upon the Quebec experience. The Quebec legislation is extremely important. It was passed in 1977, and although it has not managed to completely restore the confidence of citizens in their governments and politicians, it has gone a long way toward improving their image. The Quebec Political Party Financing Act has long served as a model.
It is no accident that Quebeckers are perhaps less cynical. They are very critical. Politics has long been our national sport, after hockey. But Quebeckers are less cynical when it comes to politicians because of a certain number of statutes including the act relating to the financing of political parties. These measures can be envisioned. There are others that do not specifically relate to moral or ethical concerns. They seek to improve relations with the citizens.
I am fully aware of the fact that the senators do not share the same position as members of Parliament, but I believe that senators can make a contribution by establishing some ties with our citizens. How can that be done? I am not sure. I did give this some thought two years ago. I took a look at the Standards Committee in the Scottish Parliament. They were examining a bill to register lobbyists. They were also working quite diligently on a code of ethics. What struck me most about the new Scottish Parliament were their efforts to relate to the Scottish people.
The Public Petitions Committee came to mind. It may not be an absolute revolution, but I believe that the effort made by Scottish parliamentarians was well received by the public. In some cases it may have been used for venting, but in other cases it led to the adoption of legislation. Three or four acts adopted since 1979 began as public petitions.
This measure is extremely limited and quite imperfect, but it is this type of attitude and process that I have in mind when I think of extra measures. That would allow us, in part, to find a way around the problem relating to the press. I think that public office holders, politicians, whether they are elected or not, must be aware of and convinced that their relations with citizens should not be carried out through the media. That, of course, implies a much greater demand for them to be much more available to the public.
I stated earlier that the general, global crisis in political institutions, the public's loss of faith, relates above all to political parties. This has happened before. The same thing occurred a century ago in the United States. There was a noticeable drop in voter participation, as is the case today. I don't know what the voter turnout was in New Brunswick, yesterday, but the low participation, at least in the western hemisphere, is widespread. Canada, France, the United Kingdom, Manitoba and Quebec have all experienced extremely high as well as very low voter turnouts.
The same thing happened in the United States at the turn of the 19th century. The parties experienced a serious crisis. It was felt, at the time, that the democratic institutions were in turmoil. Relations between the public institutions and civil society were reorganized. This restructuring meant an end to the monopoly held by the parties as they shifted between the civil society and political institutions. More room was made for public interest groups.
Tocqueville, in De la démocratie en Amérique, as early as 1830, spoke of the importance of groups in the United States. But their contribution to public policy really took shape during the crisis to which I will now refer. I have quoted various authors who have written about this. It is interesting to consult these works with hindsight and find some comparisons to our present situation.
We are speaking of generalities; they do have a bearing on what is being discussed here. We are probably experiencing a period of reconfiguration, restructuring of the relationships between political institutions and the civil society. That will affect how we conduct public affairs and define political policy.
[English]
Senator Di Nino: Professor, thank you for some interesting thoughts. You talked about other measures, together with a code. I too wanted to explore that further. One of the thoughts that came to mind is that we as members have a role to play in policing both our own actions and those of our colleagues. I particularly felt that we should include, as one of those other measures, a timely and appropriate response to issues that arise, as opposed to waiting until these actions become scandals, real or perceived. I use as an example a gentleman who was a member of this institution whose attendance was questioned.
Would you not agree that it would be important to create, among ourselves at least, a responsibility to protect the reputation of the institution and its members? We should not wait until we are forced by the media or outside complaints into dealing with these issues. We should take the leadership role and act in a timely and appropriate way. Would you comment on that?
[Translation]
Mr. Hudon: I think we should encourage that type of attitude. Prevention is better than a cure because making up can often be expensive. And sometimes it is too late because the harm has already been done.
One authority on these matters, Mr. Andrew Starck, from the University of Toronto, says that when it comes to conflict of interest you have no choice, you have to strike while the iron is hot. Once the harm has been done, there is no going back.
But I have a serious dilemma when it comes to deciding what should be done. If we go too far, we might create the impression that politicians are so weak, so easily tempted, that they can always be bought. There is such a thing as going too far and having the opposite effect.
My reaction is not intended to discourage you, not in the least; I believe that we must be careful, that there are ways of explaining things to avoid falling into the trap. When someone says that we should have extremely severe measures for public office holders and politicians, I respond by saying yes, this does present a paradox. We want politicians — and public office holders in general — to be absolutely beyond reproach. By forcing these standards on them, we are, in a way, disqualifying them, because they will then be perceived as being so weak that they are unable to think for themselves, and they will have no moral and ethical autonomy.
I know that, in the present context, this position is not a popular one. But I am not here to try and curry favour with politicians. That is not my job. However, I do believe that politics deserve society's respect. I believe that politics is a noble endeavour. In my first year political science course, the English language book titled In Defense of Politics is required reading in Quebec. I tell them that I would rather be led by the worst politician than come under military rule.
They understand that. At the same time, I must point out that excessive morality can often be counterproductive. It is no accident that the drop in the number of churchgoers in Quebec happened so quickly. This might not have been so obvious in the cities, but in the rural area where I live, I know what it is to experience excessive moral authority.
This presents a dilemma. Yes, rules must be imposed, and they must be stricter than they are for ordinary citizens, because there is a responsibility attached. At the same time, we must know when to stop. In other words, I am against ethical fundamentalism.
[English]
Senator Di Nino: I am glad you framed your response in that manner because in previous testimony I made a similar comment to one I will make now. Some of us wonder why we need a code, why we need this exercise. Frankly, the experience in Canada has been an exceptionally good one. Our elected and appointed public service officials generally, in the provinces and at the federal level, have behaved themselves admirably. I think the exceptions are few and far between. I am one of those who subscribe to that thought. However, I understand why it is important that we go through this exercise and create some vehicle for judgment, if you wish. I believe the offences that have occurred are so few that I am not sure we really need a code, but I think we should have one.
The point I was trying to make is that in my personal opinion, we should be subjected to a higher standard than the average person in the public. Therefore, we may have to give up some of our privacy and some of the rights enjoyed by the general population because of the responsibility and the authority that we have. From my own experiences and those that we have read, heard about or witnessed in this country, I believe it is important for us to address the situation of one bad apple in the barrel. In the past, when one bad apple clouded all of our reputations, we did not act quickly enough to deal with it. I do not mean to be judgmental necessarily, but we should at least commence some appropriate action to assess and evaluate such a situation. It would save us a lot of grief if we responded in a timely way, rather than waiting until we are forced by the media or by public screaming to act. That was my point. I did not want to leave the wrong impression.
[Translation]
Mr. Hudon: I do not think I am the only one to feel this way. All of society is involved, and we must determine just how far we should go.
Some say that politicians are too lax and not hard enough on themselves. However, surveys have shown that the public does not feel that way. What is interesting, when we look more closely, is that citizens can generally tell the difference. That is encouraging.
[English]
Senator Grafstein: Professor, I deeply appreciate the sensitivity and philosophic base of your comments. Like you, I have a dilemma when I approach a code of conduct. I am very concerned, as are you, about what I consider to be the real danger of a perverse effect if we go too far in this mindless search for the limits of transparency.
In looking at polls about public office-holders, I see great loss of confidence in two categories. These are where the overwhelming numbers point to a lack of support for public office-holders. One concerns conflicts with respect to the public purse, essentially on the part of office-holders who have access to the public purse, which we as senators do not. The second has to do with the loss of public confidence on a point that my colleague Senator Di Nino raised, that is, the lack of responsiveness to political institutions. This is not necessarily about derelict behaviour of an individual member, but general unresponsiveness. The public is here, the government is here, the parties are here; the people are in need and in pain. Governments cannot respond. They are not organized to respond properly. Therefore there is a lack of confidence. The results of public polls I have seen show mistrust of public institutions, not because of lack of transparency, but essentially because of lack of responsiveness.
You are a great student of Confederation and have touched on the basic point for me, which is how can a public office-holder engage the citizenry in an active way so as not to lose touch and become unresponsive to their needs. The Fathers of Confederation said to senators, ``We want you to be engaged in your community. We want you to be active in your community. We want you to be active in your businesses in order to be sensitive to the needs of the region you represent. We want you to be interested in the interests of the region. If you are a farmer, we want you to serve on an agricultural committee. If you are an Aboriginal, we want you to serve on an Aboriginal committee.'' In effect, it is not so much a conflict, on one paradigm, but active participation.
Therefore, the question for me is: What is the fair balance between dividing one's private interests from the public interests they serve? Again, the Fathers of Confederation were very clear about this. That is our mandate. When we were summonsed here, we were summonsed to be active as legislators, but also to be actively engaged in our region.
How do we do that in a way that establishes guidelines? I have no objection to that because we have stringent guidelines in our rules. Whether we enforce them or not is another question, but we do have guidelines and strong rules. We have a strong Criminal Code. Yet, again going back to Senator Di Nino's comments, perhaps we have not enforced that code that I think exists as effectively as we should.
How do I deal with this dilemma between the mindless need for transparency, which does not solve problems, and ensuring that we in the Senate become engaged?
Let me give you one example and then I will rest my analysis. We are not alone in this. For example, you are a tenured professor. When you become a tenured professor at an institution, it is a life appointment. What is the transparency at the university? None. There is no transparency at the university. Yet professors are actively engaged in activities because they are mandated in their role as professor to be actively engaged in their field. People are less concerned about the so-called transparency than they are to know that that professor is actively engaged by means of publishing, teaching and so on.
Compare the professor to the senator. Both of us are called for life. Both of us are actively engaged in our communities. One has no transparency whatsoever and the other is called upon to have some transparency.
I have raised two or three issues for you to ponder.
Mr. Hudon: Do you think there is no transparency for university professors? I must disagree with you completely.
[Translation]
Universities and university professors, as well as all of the professions, are subject to the same pressures that you feel. It is cumbersome to try and respect all of the codes of ethics that we now have within universities and publicly funded organizations. Take, for example, the Canadian Social Sciences Research Council as well as the Canadian Institutes of Health Research. Their rules are becoming more and more stringent. No one can escape them.
We already have the Criminal Code. I am not a criminologist. I do not think we can simply rely on the Criminal Code for every request. The same would apply to anything that might become redundant. The media, among other institutions, tend to exaggerate and throw things out of proportion. There is a requirement that does involve everyone, no one is exempt.
My experience as a university professor has allowed me to see the changes that have occurred over the past 25 years. I have been teaching for 25 years. I have witnessed an enormous change over the past few years. In the past 5 years, more and more restrictions have been introduced. And that holds true for all of the professions.
Politicians are the most affected because they are in the public eye. However, they are subject to the same pressures as any other professional or social group in our society.
Look at the new requirements for lobbyists. The federal Parliament has introduced something new to Canada in that regard. The 1988 act, which was implemented in 1989, set a precedent. Look at what has been happening in the past two or three years in Ontario, Quebec, British Columbia, and Nova Scotia: there are more and more of these measures because the demand has been created. This demand can be partly justified but I feel that its effects can be perverse. That is all I wanted to point out. It is inevitable, we have no choice but to respond. Even if the type of code that you are now examining might be redundant in terms of the Criminal Code, it is nevertheless important, if only because it will serve to reassure many citizens. You know better than I that often, in politics, it is not what you do but what you appear to do that is important.
[English]
Senator Andreychuk: I want to follow up on something on page 3 of your paper. You indicate that you believe that ethics are now replacing classical religious-based morals. In light of the fact that Canada is becoming more and more a country of diverse immigration, as opposed to European immigration as in the past, is this one more reason why ethics in an institution like this, a political institution, are necessary?
In other words, there is no easy community standard that we can find to apply to our behaviour because we have varying examples of behaviour in the community that are acceptable. I am not talking about theft or receiving funds, et cetera. It seems to me it starts with how I perceive myself as a senator is different from how others in the room perceive a senator. We have a slightly different take on it. We often say that 105 senators makes for 105 expectations, styles and commitments, et cetera.
It was not always that way in this institution. If you go back 100 years and looked at the faces, at least of the senators, they might have reflected a certain status, gender and lifestyle. We are now becoming much more diverse in our political life. Is this not one more reason to try to find some consensus on behaviour for the institution?
[Translation]
Mr. Hudon: I do not know if the relation is as direct as you suggest. It is true that our society is becoming more and more pluralistic. I find it striking that the last census tells us that Toronto is the most ethnically diverse city in the world. That means that additional requirements are in order.
It means that public democratic institutions must be more sensitive to these situations, that public office holders must be aware of it. This may boil down to the dilemma of representing the interests of these constituents while, at the same time, having a broader public mandate — the general interest as opposed to specific interests, if we want to use the philosophical categories. So, in that case, the requirements would be greater.
I do not think there is a direct link between a code of conduct and a code of ethics. When I say that extra measures are necessary, I am referring to the second point that you raised earlier, Senator Grafstein. The ``responsiveness'', receptiveness, and the situation to which you were referring make it even more difficult to be attentive and sensitive to the evolution and change in our societies.
Our societies are becoming more and more pluralistic. This means that public office holders will have the added burden of responding and relating to these societies. I may be wrong, but I do not believe there is a direct link to the rules of conduct as they relate to conflicts of interest. There may be a tenuous link if we refer to the second aspect. The drop in confidence that I referred to earlier, does not relate so much to the institutions as to the people who work there. There may be a greater drop in public confidence, but it is a theory, because our societies are becoming more and more complex. It is becoming increasingly difficult to reconcile all of the interests as they relate to various sectors in our society.
Senator Joyal: I imagine that some people listening to us might feel that we are engaging in esoteric debate this morning. I think that some of what you have to say can lead to some very practical approaches.
I would like to quote a definition of ethics and relate that definition to your text:
[English]
Ethics is about moral choices. What is right, and what is wrong.
[Translation]
Ethics is about moral choices. It must tell us, man or woman, what is right and what is wrong.
Moreover, in your text, I quote page 4 of the French version:
[English]
It says in the English version:
The aim of supervising conduct, especially duty (the specific aim of a code of conduct) works reasonably well, although it is somewhat thrown off course by being combined more or less satisfactorily with rules of ethics based on determining what is good or bad. Strictly speaking, ethics is more prescriptive than a code of conduct.
I will continue in the same language. We have been preoccupied around this table with the determination of the word that we should use. Is it a code of conduct or a code of ethics? We have had that discussion only superficially. This morning, you point out to us quite clearly the important impact of introducing ethics into a code of conduct. It could change the nature of a code of conduct. To me it is a very important approach. We must first ask ourselves if we want a code of ethics or a code of conduct.
In other words, do we want a code that will tell us about our duty, or do we want a code that will contain moral prescriptions. I have my conclusion on that. We live in a secular society and morals are a personal choice. We have fought for that.
In a free and democratic society, as Senator Andreychuk has mentioned, the questions of self-determination of an individual are a matter of his or her own choice. I would resist the introduction of moral content into a code of conduct. That is why I resist using the word ``ethics,'' because if we appoint an ethics officer and we have a code of conduct, it seems to me that we are trying to mix two things.
Would you comment first on that? After which I will have another question, about the system put into place in this proposed code of conduct and the kind of system that could maintain the self-determining approach that we think in a free, democratic and mature society such as Canada's that we could have.
[Translation]
Mr. Hudon: A code of ethics and a code of conduct are not the same thing. I have already referred to this matter in another text. Deontology and ethics do not refer to the same thing. In English, the distinction is clear: ``Code of conduct'', ``duties''. In French the terms are almost interchangeable. We use deontology and ethics without distinction. That is a mistake because a code of conduct (code de déontologie), as it is described here in French, refers to duties rather than to conduct and does not define moral principles, that is what is right or wrong.
In a presentation I made at a seminar last fall, a section deals precisely with the distinction between ethics and deontology. I would be inclined to favour a code of conduct rather than a code of ethics. It is through their acts that people's conduct is assessed, not through pre-established, disembodied principles. That is the problem we face with certain ethical approaches which tend to treat people as if they were not flesh and blood. It is as if they cannot live in a real world in order to be acceptable. In order to live up to the standards they cannot play any role. It does not make sense.
Political leaders do not live outside society, they are a product of society. When they are no longer part of society, then they will be autocrats or technocrats. My position on this subject is clear, even if once again, I do make the point that this is not a discourse that is given much prominence nowadays. Nonetheless, I maintain my stand.
[English]
Senator Joyal: I have another question. It is in relation to that principled approach between ethics and duty.
The role of the ``ethics officer,'' as it is named in this proposal, has to be in synchronization with what we want to achieve. If we want to achieve moral ethics among parliamentarians, then we have to approach the ethics officer as some kind of a — I will use the old concept of your college years and mine — disciplinary officer.
We have norms that we want to impose and ensure that they will be well respected. If we approach it on the basis of duty and conduct, then it is the individuals who have to make the determination of the implementation of the duty according to their own capacity.
I look at the British model versus what we propose here. You mentioned that we are dealing here with political and societal culture. The British approach to individual determination is to let the people decide for themselves. The traditional francophone approach is that there is a system and you have to fit into it. There are safeguards here and there to ensure that you follow the system.
The British model is called ``code of conduct.'' There is no such thing as an ethics officer in the British code. There is a registrar. In other words, the individuals make a statement for themselves. The registrar, on the basis of experience, will give advice, and that remains between the two of them.
We do not have such a well-delineated model. It borrows from both sides and tries to blend the two. I do not say that it is not a good model. I am trying to understand what we are doing and if what is proposed will meet the overall objective of transparency and higher accountability of politicians to their constituencies, to put it in the broadest terms.
On the basis of your study of other regimes, and you have produced a paper entitled ``Comparative Systems,'' how do we ensure that we have a model in which there would be an obligation for the individual parliamentarians to declare some interests, but in a way that does not impose on the system a disciplinary officer with a stick, who says, ``You did something wrong. You did something right.'' Someone will always be watching.
That is inimical to what I have always thought is one of the great achievements of humankind, that is, freedom of mind, especially for politicians, who are supposed to be mature and responsible.
We are supposed to have — and it is not mentioned often — a certain sense of honour. I believe in that. I think that a society where politicians do not have a sense of honour and do not cultivate that sense of honour is losing one of its fundamental values. As you said yourself, we then enter into a fundamentalism of rules, whereby we need to have rules everywhere because we do not believe that individuals behave correctly. When you call upon the honour of a person, that honour is self-determined. That is an essential element in the structuring of a system and the pervasive values when we propose a code of conduct for parliamentarians, in order to avoid falling into the trap that you have described.
[Translation]
Mr. Hudon: I am much more comfortable with the British model but I am not in your position. The problem that I share with you is that I live in North America. Expectations are not the same. I cannot be satisfied with the British model, even though I am more comfortable with it.
It is interesting that you referred to Quebec. It is true that in francophone culture, and in Quebec in particular, there is a tendency to impose even stricter rules. I do not intend to digress, here but, I think it would be interesting to refer briefly to the code of professional conduct for lobbyists in Quebec and the Quebec Lobbyists Registration Act.
This act on transparency and the practice of lobbying in Quebec is not similar to the Registry Act adopted by the Parliament of Canada. One immediately notes a much more pronounced tendency to moralize. The dilemma now faced by managers is whether they should prosecute people who have not registered. It is a serious dilemma. In any intervention of this type, whether it be a code of conduct for the registry of lobbyists or other similar legislation, the first principle to respect is that people must be dealt with in good faith, otherwise everyone becomes a suspect. It does not require much to reach the stage when everyone can be seen as guilty.
In my presentation in November, I said that when everyone is viewed with suspicion, then there's hardly any room for finding people guilty or innocent. Considering everyone under suspicion is a trap that one can fall into.
I prefer a code of conduct. In my presentation I referred to an article in the newspaper Le Monde. In the French context, they start from a different principle, and I quote:
[English]
A code of honour should be to the politician what the Hippocratic Oath is to the physician...
[Translation]
However, I think we must be careful, the comparison may not be valid, because a code of conduct is not the same thing when we are talking about physicians, lawyers, journalists or university professors. A code of medical ethics is strict. It has disciplinary measures since access to the profession is controlled. Anyone may become a journalist or even be elected or hold public office. There are no exams to pass. We know that in the case of professions, there are very clear distinctions. It is interesting to consult the code of conduct of the Professional Federation of Journalists of Quebec on this point. It has a very long preamble to explain that this code does not contain any disciplinary power. This is understandable since the profession is an open one. The Federation of Journalists cannot exercise discipline in the same way as the College of Physicians or the Bar could do with respect to physicians or lawyers.
A code of honour should be to the politician what the Hippocratic Oath is to the physician, except that the conditions are different. What I am saying makes the issue even more complex and shows that it cannot be dealt with in a superficial or cursory way. Your questions about a code of ethics or conduct are important. They raise issues in terms of institutional arrangements, but I do not know how to solve them. The choice between a code of conduct and a code of ethics is an interesting one. You are contemplating an ethics officer. What would be the role of the ethics officer? A disciplinary officer? If so — it is not for me to make decisions for parliamentarians here — I would have reservations about that.
[English]
The Chairman: Professor Hudon, you speak of the idea of a code of honour in France, the code of conduct in Great Britain, and, as we were speaking before the session began, you said that these are more lax structures than that proposed here before us. We heard from witnesses yesterday that the code should be applied with a light hand. Even though theirs is a more lax structure to begin with, it should be applied with a light hand, something the clerk repeated several times.
It strikes me that perhaps these less onerous structures arise out of the class structure in Europe. There is a very definite system of elites in Europe, and it may be assumed that elites would have the highest possible positions within society. The ideas held by the elites are not necessarily widespread in general European society.
Here in Canada, as in all of North America, we are a more egalitarian society. We perhaps know ourselves to be fallible. We are equal with all other citizens and we assume that other citizens are fallible. Perhaps the need for a more stringent code in North America arises out of that basic difference between our societies.
Mr. Hudon: You are right. On the other hand, I think it is changing in Europe.
The Chairman: Is it becoming more egalitarian?
Mr. Hudon: What was asked for in Le Monde a couple of weeks ago is new, but it will become more widespread in Europe, in France in particular.
[Translation]
It is true that when society consisted of the elite and the masses, or the elite and the general public, that was so. You could see it in the schools. Authority still meant something at school. But that is less and less so. The gap between European and North American societies is narrowing. One important factor that contributes to these changes in Europe is the European Union. The European Parliament is changing the political culture significantly in Europe, old Europe, as George Bush said. The arrival of Scandinavians in the European Parliament is transforming European political culture. The British are a bit more distant, but the French can't get away from it. They are in the heart of Europe, it affects them.
I was saying that you were right, but at the same time, it is less and less so. I think that the trend is toward a convergence of our European and North American political cultures.
Senator Ringuette: You seem to have a pretty good idea of what the public thinks and expects of the political apparatus. Given that the House of Commons and the Senate are different institutions, in terms of their make-up, responsibilities and accountability requirements, do you think that we could have two codes of ethics with two separate mechanisms for public perception? What do you think about that?
Mr. Hudon: Two codes of ethics — yes, that would be possible and defensible. As a matter of fact, that is the trend elsewhere. If you look at the Australian Parliament, they have two different codes. In the British Parliament, there are two different codes. There is no objection in principle. How the public will react, I cannot say. I know a thing or two about Canadian public opinion, as may you. I have just had more time to read. That is the difference between you and me. Otherwise, I do not know how Canadians would react. I do not think it is a fundamental issue. It might be better to have codes that reflect the unique features of each institution, the Senate and the House of Commons.
When you ask Canadians if they trust these institutions, we know that politicians get a very low score and rank behind journalists. But when you look at the institutions themselves, Canadians distinguish between the Senate and the House of Commons. They trust the Senate less, because the Senate is not accountable. It is accountable, but not directly to the Canadian public. People know what goes on there, but being elected is important to a certain number of Canadians. That is not what we are here to discuss today, but it is a distinguishing feature between the two institutions. There is no objection in principle to having two codes. That is clear.
[English]
Senator Grafstein: One of the things I was taken by in the professor's paper is that experience is very important. In other words, let us take concrete experience and build on that. I have been here for close to 20 years and there have been 2 examples of misconduct. We corrected one. The other was corrected by the courts, which found that the complaints made against a particular senator were not well founded. There was a third answered by the court. Essentially, in 20 years there have been 3 examples. That is important.
The British have said, which I think is not really a British thesis but a French thesis, that experience should precede activity. They say, ``Let us proceed cautiously and carefully with this code and then take a look at experience. If experience requires additional or stronger measures, let us take them.''
This code is something that has been presented to us. It has not evolved out of this committee. It is a top-down as opposed to a bottom-up code, which is fine, because we are where we are.
Is it not better for the public interest in the long term to base our practices and our codes of conduct on experience, as opposed to confusing perceptions that may not answer any problems and may even accelerate them, as you say?
That is a long, difficult question. Perhaps you can respond more succinctly.
[Translation]
Mr. Hudon: It is impossible to answer your question in a few words. Yes, experience is important and it is interesting to see that people with more experience within institutions have different attitudes from other people. The views I am presenting are from the outside.
[English]
I am speaking from the outside. I am aware of that and I must remain aware. I am not telling you, you should or should not. I am not in a position to do that.
[Translation]
All I did was simply mention a few ideas and some theoretical and practical principles taken from some studies that may, I hope, be useful and provide you with food for thought.
I will not go any further. My intention is definitely not to dictate anything to you.
For example, I would be uncomfortable telling you to review the terminology used in a particular section of your code. That is up to you. You have your own perceptions and experience and they must inform the process in which you are involved at the moment. I will stop there. It is not within my power or my intention to tell you what to do or how to do it.
[English]
The Chairman: I thank you very much, Professor Hudon, for spending time with us this morning. We have had an interesting and intriguing conversation around this table.
The committee will move in camera for consideration of a report on a completely different matter, and we will give people a few minutes to clear the room. I believe we should carry on with just the committee staff, rather than everyone else.
The committee continued in camera.