Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 2 - Evidence
OTTAWA, Wednesday, March 10, 2004
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill C-4, to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other acts in consequence, to which they desire the concurrence of the Senate, met this day at 12:15 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, this meeting of the Standing Senate Committee on Rules, Procedures and the Rights of Parliament will now begin. We are here to address Bill C-4, an act to amend the Parliament of Canada Act on ethics commissioner and Senate ethics officer and other acts. In consequence, they may desire the concurrence of the Senate. We have before us the Honourable Jack Austin, government leader in the Senate and the Honourable Irwin Cotler, the Minister of Justice.
Congratulations to the two of you and welcome to the Standing Senate Committee on Rules, Procedures and the Rights. I am in your hands. You may proceed as you have agreed.
Hon. Jack Austin, Leader of the Government in the Senate: Madam Chair, I will proceed with my presentation and the Minister of Justice will follow me.
Honourable senators, it is a pleasure for me to appear before you as the sponsor of this bill. I begin by commending the committee for its excellent work over the last two or more years with respect to the issue of ethics and a code of conduct. I look forward to this committee continuing the work on the code of conduct. Honourable senators, I will be brief so that we can proceed as quickly as possible to any questions you may have.
I beg your indulgence if I go over points that are familiar to you, but a number of statements have been made that indicate that misconceptions about this bill are still in the debate and therefore, I will deal with a number of issues about Bill C-4.
The bill will create two new positions to deal with ethics and conflict of interest. There will be an independent commissioner for the House of Commons and for public office-holders and an independent Senate ethics officer for members of the Senate. These offices would be created under the Parliament of Canada Act. The bill sets out how these people would be appointed and dismissed. It provides the terms of office, including how they would be paid, their power to employ others to help their work, and their power to enter into contracts and other arrangements. Of particular note are the safeguards set out in the bill to ensure anything that the Senate ethics officer and staff learn in the course of their work could not be disclosed in court proceedings.
Some of the misconceptions of which I have become aware regarding this bill are concerning the role of the Senate ethics officer and especially, what senators would be compelled to tell the Senate ethics officer by reason of the bill. Honourable senators, these are not matters that are addressed in the bill. The bill very explicitly leaves these issues for the Senate to decide on its own. This is probably in the code of conduct that members of this committee are considering that presumably will be contained in the Rules of the Senate.
Proposed subsection 20.5(1) states:
The Senate Ethics Officer shall perform the duties and functions assigned by the Senate for governing the conduct of the members of the Senate when carrying out the duties and functions of their office as members of the Senate.
There was debate in the Senate in the last session in which some honourable senators argued that the legislation itself would require a senator to open his or her books, files, wallets, and bank accounts to disclose debts and accounts. However, this is not at all correct. It is completely up to the Senate to decide what, if anything, should be disclosed to the Senate ethics officer. If the Senate decides that certain information should be disclosed confidentially to the Senate ethics officer, then it will be up to the Senate to determine what of that that information, if anything, should be disclosed to the public. This bill does not require a senator to disclose anything to anyone.
I want to be clear. This bill enables the appointment of a Senate ethics officer. It leaves it to the Senate to do everything else. The duties and responsibilities of that Senate ethics officer are the responsibility of the Senate and senators, and it is without doubt the work of this committee to define these issues more carefully at the appropriate time. The Senate will decide what the Senate ethics officer will do. Also, it will decide the rules that apply to the members of the Senate.
What is important to us all is that the person who is performing the office of Senate ethics officer is independent — both of the executive and of the senators. The office should be established so that the Senate ethics officer is seen to be truly independent of the Governor in Council and of the Senate. Our rules will be public rules, so that what the Senate ethics officer has to do, in terms of the duties as defined by the Senate, will be rules published in our rule book. The public will know in an open and transparent way what senators have established for themselves as rules of conduct.
This brings me to a key issue, one that has been important to a number of senators and that is the issue of the manner of appointment of the Senate ethics officer. Again, I am going over old ground but concern has been expressed that the Prime Minister would choose the Senate ethics officer, which would imperil the independence of the Senate. As I pointed out in the chamber at second reading, clause 20.1 of the bill provides that the Senate ethics officer would be appointed by the Governor in Council only after that individual would be approved by resolution of the Senate; and that resolution would be put to the Senate only after there has been consultation with all party leaders in the Senate.
I pointed out that nothing in Bill C-4 requires the initiation of a name by the Governor in Council. The bill requires that person to be appointed under the Great Seal of Canada but nothing requires the Governor in Council to send us a name. The bill is silent on the origin of the initiation.
The appointment of key office-holders of Parliament by the Governor in Council is well established in our democratic system since Confederation. In many cases, there is no requirement for any resolution in Parliament when a public office-holder is appointed. The issue has been raised that somehow the process in this bill of appointment under the Great Seal is a novel one; and yet the evidence is entirely to the contrary. For example, the Speaker the Senate and the Clerk of the Senate are Governor-in-Council appointments and no resolution is necessary to confirm those appointments. The Governor in Council appoints the Usher of the Black Rod, as I said at second reading, but not under any legislation. It has been the practice since before Confederation in the legislature of Canada to so appoint the Usher of the Black Rod.
The question is whether the appointment procedure for the positions of Auditor General, Privacy Commissioner, Information Commissioner, and the Chief Electoral Officer are useful precedents. The argument has been made that somehow the Senate ethics officer would have a unique responsibility and, therefore, the precedent for all appointments of officers of Parliament may not or would not apply.
However, I would like to meet this argument by saying that I cannot understand the differentiation. Each officer of Parliament has a unique responsibility and the highest possible level of probity and accountability. No one at second reading challenged the integrity of the Speaker of the Senate, the Clerk of the Senate or the Auditor General, who is responsible for ensuring that the money of Canadian taxpayers is properly spent.
Indeed, our first responsibility is to the Canadian public. A major purpose of the code of conduct and of this bill is to ensure that the Canadian public see that we put the public interest first. I believe that the precedents have established an appropriate system for the appointment of the Senate ethics officer and, of course the ethics commissioner in the other place.
Bill C-4 sets out the procedure whereby both the Senate and the Governor in Council are needed to approve any appointment of the Senate ethics officer and this also applies to reappointment, which also requires the approval of the Senate and the Governor in Council. Dismissal would be only for cause and would require the concurrence of both the Senate and the Governor in Council.
Honourable senators, without this double-sided approval process, the perceived independence of the Senate ethics officer would be in jeopardy. The current ethics counsellor has long been criticized as not being truly independent because he monitors the activities of the Prime Minister and his ministers but owes his position solely to the Prime Minister. Likewise, if a Senate ethics officer were entirely beholden to senators and appointed only under the Rules of the Senate, he or she would not be seen by the public as a truly independent counsellor on ethical matters faced by those same senators.
I appreciate that a number of senators feel strongly that they should be involved in the initial process of selecting a name to be put forward for the position of Senate ethics officer. I note that Bill C-4 is silent on this process. It refers to the process of consultation with party leaders in the Senate prior to appointment by the Governor in Council but says nothing about who can initiate the name for discussion. I made a commitment in the Senate chamber, which I will repeat now, on behalf of the government. That commitment was recorded in the Debates of the Senate and will be recorded again here today. I said that prior to sending to the Senate the name of any person to be proposed to the Senate as a Senate ethics officer, the Leader of the Government in the Senate will be authorized to consult informally with the leaders of every recognized party in the Senate and with other senators, and shall be authorized to submit to the Governor in Council the names of such persons, who shall, in the opinion of the Leader of the Government in Senate, have the favour of the leaders of every recognized party as well as the support of the majority of the senators on the government side and the majority of the senators on the opposition side.
I will try to be clearer in case I have not been so in the text that I have just given. The undertaking is that the Governor in Council will not send a name but will await the recommendation of the senators in the process I have just proposed. As I said in the Senate chamber, the Governor in Council will make every effort to accommodate the interests of the Senate ensuring that the officer is both seen to be independent and is independent in the discharge of those duties that will be assigned to the Senate ethics officer under the code of conduct that the Senate decides to adopt.
Honourable senators, this undertaking will be observed by every future government. Honourable senators know that the constitutional rule is that each Parliament speaks for itself. Nothing that is given as an undertaking here will bind a future government and none of us can say what changes a future government will or will not make, nor how the Senate may decide to change the role of the Senate ethics officer. A future Parliament can take whatever act it determines under the Constitution that it would wish to take. All we can do is draft legislation that strikes a good balance to ensure an actual and perceived independence of the Senate ethics officer; that upholds our traditional balance of responsibilities in the Canadian parliamentary system; and that establishes effective and appropriate procedures including the ones that I am undertaking for the selection of the appointees name. I have confidence that the system will work and will be followed by future governments.
Honourable senators, I would now ask you to allow the Minister of Justice to address some of the legal concerns that have appeared in the preceding debates.
The Chairman: Mr. Cotler, please proceed.
Hon. Irwin Cotler, Minister of Justice: I am delighted to appear before the Standing Committee on Rules, Procedures and the Rights of Parliament. I am accompanied by my Associate Deputy Minister, Ms. Mary Dawson, and Senior General Counsel, Mr. Henry Molot, both of whom were of great assistance to me during my years as a law professor. I might add that I never did have occasion to consult on matters of privileges and immunities because this was not a high visibility issue — at least not for students — during the years when I was a law professor.
I am delighted by the participation and interest, if not enthusiasm, shown here today. Should I return to the teaching of law, I could make this issue a central concern and invite the students to appreciate its importance and significance.
This is the first Senate committee that I have had the pleasure of addressing in my capacity as Minister of Justice and Attorney General, although I have had the pleasure over the years, as a law professor, of appearing before senators, for example, at the joint House-Senate committee on the Constitution in 1980, which considered the Constitution Act and the Canadian Charter of Rights and Freedoms, and at the Senate Foreign Affairs Committee on the matter of humanitarian intervention.
I appreciate the opportunity to appear here because the concerns respecting Bill C-4 relate to a bill, the underlying raison d'être of which is ethics in governance — itself a fundamental pillar of democracy.
Sometimes in using language of privileges and immunities we tend to appear to be in the abstractions of discourse that make it appear that this is some sort of specialized issue of either interest or understanding only for experts in the matter. However, we are dealing here with a fundamental concern not only to all parliamentarians in both chambers but to the public and to democracy itself.
In the words of Chief Justice Beverley McLachlin in the Harvey v. New Brunswick case, who decided in 1996 in the Supreme Court of Canada, "If democracies are to survive, they must insist upon the integrity of those who seek and hold public office." In an earlier opinion in New Brunswick Broadcasting v. Nova Scotia in 1993, again in the Supreme Court, the Chief Justice set forth a basic proposition pertinent to our discussion in holding that the Houses of Parliament — therefore including the Senate — possess a set of powers and privilege "that are necessary to their capacity to function as legislative bodies." A Senate ethics officer, arguably, is inextricably bound up with that necessary capacity to function as a legislative body as it is inextricably bound up with the ethos of ethics in governance as a pillar of a democracy itself.
The basic purpose of Bill C-4 as it relates to the Senate is to provide for the appointment of a Senate ethics officer to perform duties and functions assigned to that officer by the Senate. In particular, in order to ensure that in performing those assigned duties and functions the ethics officer is answerable only to the Senate — and this is an important principle of public accountability that has to be appreciated — the bill would clothe the ethics officer with the privileges and immunities of the Senate and offer protection from the jurisdiction of the courts.
This leads me to a second fundamental principle of relevance, which is the demarcation line between the exclusive jurisdiction of a legislative body to regulate its internal affairs and the supervisory jurisdiction of the courts. Again, the opinion of the Chief Justice is pertinent here. Madam Chief Justice McLachlin acknowledged that while the acts of a legislative body "are subject to judicial review by the courts to determine whether they fall within the protected sphere of parliamentary privilege, the courts have no power to review decisions made within the privilege domain."
With respect to that which falls within the privilege domain, Madam Justice McLachlin stated in an earlier decision, "Canadian legislative bodies properly claim as inherent privileges those rights which are necessary to their capacity to function as legislative bodies" — which, in this instance would include protecting ethics in governance — as I mentioned — and the integrity of those in public office, not only as a pillar of democracy, as the Chief Justice put it, but as integral to the survival of a democracy.
Within this foundational constitutional principle reflecting the relationship of ethics to democracy, and with regard to parliamentary bodies like the Senate having inherent powers and privileges and rights to do this, I would like to address two concerns, having given you this not irrelevant constitutional framework and context, in which this issue must be anchored and perceived. I go directly to two specific concerns that have found expression among senators.
I understand that Senator Joyal has expressed concerns regarding the constitutionality of the bill. The Honourable Senator asked whether, constitutionally, Parliament can confer such privileges and immunities on this Senate ethics officer. As you appreciate, and as Senator Joyal has properly pointed out, Parliament's jurisdiction here is defined by section 18 of the Constitution Act, 1867, which provides that an act of Parliament such as Bill C-4 cannot confer on the Senate or House of Commons privileges, immunities or powers that exceed "those at the passing of such act held, enjoyed and exercised by the Commons House of Parliament in the United Kingdom of Great Britain and Ireland and by the members thereof."
In other words, to be constitutional, therefore, Bill C-4 cannot provide for privileges, immunities and powers that would exceed the privileges, immunities and powers possessed by the British House of Commons and its members in 1867 and now. Therefore, the fundamental questions in relation to the constitutionality of this bill are: What are the privileges and immunities possessed by the British House of Commons, and do the powers conferred by this bill exceed those powers? I will leave aside another argument, that even if the powers did exceed those of the British House of Commons, they would be otherwise nonetheless constitutional having regard to section 44 of the Constitution Act and our own inherent rights and privileges of the Houses of Parliament without having to have recourse to the House of Lords. I will go only to the scenario as projected by Senator Joyal and the need to comport with the privileges and immunities in respect to the British House of Commons.
As a baseline principle, it must be appreciated that the traditional privileges, immunities and powers of the House of Commons do extend to the ethical conduct of its members. Erskine May, in his twenty-first edition in 1989 on parliamentary practice, refers to the examples of a member who accepts money in connection with any matter before the House, including acceptance of fees for professional services in connection with any such matter.
The principles in issues of this kind have been described more fully by Madam Justice McLachlin in the Harvey case, to which I referred. I will now cite the entire fuller expression because it contextualizes everything and is germane to everything we are doing here as one of the two Houses of Parliament protecting the integrity of Parliament and the ethos of democracy.
Chief Justice McLachlin said that, "If democracies are to survive, they must insist upon the integrity of those who seek and hold public office." What she went on to say becomes relevant now in the comparative approach to our House and that of Britain. She said:
They cannot tolerate corrupt practices within the legislature. Nor can they tolerate electoral fraud. If they do, two consequences are apt to result. First, the functioning of the legislature may be impaired. Second, public confidence in the legislature and the government may be undermined. No democracy can afford either.
This would be as true of the House of Commons in Britain as it would be of the two chambers here in Canada. The Chief Justice goes on to say, bearing directly on the question of constitutional authority in the matter of a Senate ethics officer as related to the issue of our responsibility to protect the ethos and the governance of a democracy:
When faced with behaviour that undermines their fundamental integrity, legislators are required to act. That action may range from discipline for minor irregularities to expulsion and disqualification for more serious violations. Expulsion and disqualification assure the public that those who have corruptly taken or abused office are removed. The legislative process is purged and the legislature, now restored, may discharge its duties as it should.
One can necessarily infer the nexus between the powers and privileges of Parliament as I have just described it in Chief Justice McLachlin's opinion, and the importance of protecting the integrity of a democracy through the function of a Senate ethics officer accountable to the Senate.
To the extent that Bill C-4 relates to these forms of ethical conduct by senators, the subject matter of the bill falls within the traditional jurisdiction of the British House of Commons over its members and therefore is in accordance with section 18 of the Constitution Act, 1867. One might also add that it clearly falls within the jurisdiction of the Canadian Parliament, regarding the powers and privileges of its members as set forth under section 44 of the Constitution Act, which confers on the federal Parliament over the House of Commons and the Senate those appropriate powers.
Honourable senators, I should like to add that the British House of Commons has adopted a code of conduct. We are now talking about the legislative experience to which we are looking as well as the constitutional framework, which I have cited. Their House of Commons has adopted a code of conduct for members and a register of members' interests.
Those who follow this subject, such as Senator Joyal, may be familiar with the case of Ross v. Edwards in the U.K., a trial decision where the court held that neither the register nor the practice and procedures relating thereto fell within the meaning of proceedings in Parliament, referring to Article 9 of the Bill of Rights in 1689, and hence was not protected by parliamentary privilege.
On the other hand, five years later, and of particular importance having regard also to a level of judicial inquiry, the Judicial Committee of the Privy Council in the case of Prebble v. Television New Zealand in 1995 decided, "Proceedings in Parliament are merely a manifestation of a wider principle." Dovetailing here with the words of Chief Justice McLachlin quoted earlier, a wider principle applied by the courts not to allow any challenge to be made to what is said or done within the walls of Parliament in the performance of its legislative functions and the protection of its established privileges, which I have been describing and which are germane to the protection of the integrity of a democracy and the integrity of the members of Parliament in that democracy.
The Privy Council also noted that it was questionable whether Ross v. Edwards was rightly decided. Most important, this broad approach was taken a few years later by the English Court of Appeal, which concluded it lacked jurisdiction to review the parliamentary commissioner for standards saying that the office of the parliamentary commissioner for standards was valid and constitutional and how it functioned was beyond the review of the courts.
British jurisprudence supports the conclusion that the subject of a code of conduct in the private interests of members with respect to members of the House of Commons performing their duties as such fall within the privileges, immunities and powers of the British House of Commons. Consequently, in that respect, Bill C-4 is constitutional legislation under section 18 of the Constitution Act.
I will quickly summarize the second issue. I know that a second Constitution has been that that bill confers immunity on the Senate ethics officer. That has been referred to by some of your colleagues as an absolute immunity, that a Senate ethics officer is above the law and could not be held civilly or criminally liable, and that this runs against the entire principle of the rule of law and the like as established in cases such as Roncarelli v. Duplessis and so on.
However, a reading of the bill will show that there is no absolute immunity that is conferred. The immunity that is conferred is conditional on the Senate ethics officer acting in good faith in the performance of his or her duties. If the Senate ethics officer goes outside the performance of their duties and does not act in good faith, they are held accountable and are held accountable by this Senate body which otherwise has oversight in matters of this kind.
I refer to the Roncarelli v. Duplessis case, which I am certain many honourable senators will remember that case as one of the great cause célèbres in constitutional and administrative law. Duplessis, who was also the Attorney General at the time, ordered the cancellation of a liquor permit of a Jehovah Witness, Frank Roncarelli. He argued, as some senators have argued here, that he had absolute immunity: namely, that no proceeding could be taken against him for an act done in the performance of his duties. He was absolutely immune in that regard. However, the court said that he had gone outside the performance of his duties and acted in bad faith — he cancelled a liquor permit not because the person was selling liquor to minors but because he was a Jehovah Witness. He acted in a manner that was not within the purview of the Attorney General as defined by law.
This would apply in the same way if the Senate ethics counsellor were to act in a way that is not authorized by the Senate because the Senate ethics officer is a creature of the Senate. He or she is responsible to the Senate. Senators determine the parameters and contours of that office of the Senate ethics officer. If that Senate ethics officer should act in bad faith and go outside the performance of his functions to do what he does, then honourable senators have the ways and means to hold that person accountable.
In conclusion, this bill is constitutional, having regard to the powers and privileges that are vested in the Houses of Parliament as they pertain to those vested in the British House of Commons then or now. The immunity concern — while well taken — on the facts and on the law is not sustainable because, by a reading of the bill, if the Senate ethics officer acts in bad faith or goes outside the performance of the duties, they are accountable.
Senator Andreychuk: Senator Austin, you say that you have an undertaking by this Prime Minister that he will not submit names, but will seek and receive names from the Senate.
Would you agree with me that this is not legally binding in any way? This is an undertaking. It may be politically embarrassing if not followed, but it really has no import in law. It may be persuasive to try to encourage the next Prime Minister. However, this bill will be on the books for a long time.
What redeeming value is there to the public of Canada to have an ethics officer supposedly for the Senate who will be controlled by a Prime Minister? How can we tell the public that we care about ethics, that we want to have an independent ethics officer, when we can give the public no assurance that this officer will not be manipulated or influenced by following prime ministers, not necessarily the one in office?
Senator Austin: The practice of constitutional conventions is a long and established one. I have pointed out previously that even patriation was blocked by the Supreme Court of Canada, which found that the federal government did have a legal right, but it had not been the conventional practice and the government gave way to conventional practice in its negotiations with the provinces.
Conventions run parliamentary institutions. We operate on conventions all the time. Those conventions are handed from senators or members of Parliament to their successors as part of the parliamentary culture. When a minister of the Crown gives an undertaking in the chamber, that undertaking has, as a matter of practice, been honoured. I cannot give honourable senators an assurance that this is "legally binding."
This is a situation that relates to the internal governance of the Senate. We do not want the courts dictating to us how we run our internal affairs. We run our internal affairs by rules and conventions. That is the system. The public has all the assurance that the integrity of the chamber and its members can provide it.
Senator Andreychuk: My question was not the integrity vis-à-vis the courts but vis-à-vis the executive and the Prime Minister.
Senator Austin: There is no interference by any proposal that this government is making. We have appointed public office-holders and officers of Parliament for decades now, and I cannot recall a single charge of any government interfering with the due performance of a parliamentary officer at any time. I have referred to privacy commissioners, information officers and the Auditor General, so if Senator Andreychuk has an illustration, I would be happy to hear it.
Senator Andreychuk: With respect to conventional practice, I can give many examples, and I will in a longer speech. It is conventional practice that Parliament would be properly consulted before we embark on any military missions — war or other interventions — and I recall that that was held only to the letter by an eleventh-hour debate.
There are many precedents to point out. Conventions change and are not binding. Perhaps we could ask the Algerian who was being deported yesterday from the church, where we have had a convention of freedom —
Senator Austin: This is not a parliamentary convention you are referring to.
Senator Andreychuk: Conventions around democracy have to be taken as a whole.
Senator Austin: There has been no ministerial assurance that the government police force would not enter a church. I have given a ministerial assurance on the record.
Senator Andreychuk: On the record, and that is what it is, an assurance.
Senator Austin: You can belittle it, but I take it very seriously.
Senator Andreychuk: I think you do take it seriously; so do I. I have no guarantee that you will be in your office 10 years from now. I would wish you to be for your sake, but I am not suggesting that we have any control over future administrations. I make that point. I guess the answer is that it is not legally binding, but you are telling me it is the next best thing.
Senator Austin: I cannot conceive of the next Senate ethics officer, say seven years hence, being appointed in any different manner, given that every senator — and many of the senators here will be senators then, though not me — will be saying, "This is what was done in 2004, and how does the government justify doing it in any other way?" It would be a very difficult day for the government in 2011 to depart from the practice that is being sought here.
Senator Andreychuk: At a time when democracy is so fragile in Canada, with so many questions around Prime Ministerial activity, why would not this government — in a spirit of a new day in Canada — say that there will be a legislated ethics officer and here is the criteria? The public would be assured, the Senate would be assured, and the Prime Minister would be assured — and I think we would be lauded by the people of Canada.
Senator Austin: I know the honourable senator as a person who has long advocated a code of conduct within the rules of the Senate. Because of the right of this chamber to manage its own internal affairs, that was an aspect of Senator Oliver's report, along with Peter Milliken, that the code of conduct would be in the rules and must be governed by the Senate itself. That is one critical feature. I am happy to end my discussion.
Senator Andreychuk: I have a short question for Minister Cotler. Can privilege be delegated, and must it be delegated absolutely or otherwise? You have addressed other issues about the scope of privilege. I want to know whether privilege given in Parliament can be delegated.
Mr. Cotler: In connection to your question to Senator Austin, I think that when one looks at the statute, the statute does contain criteria with respect to the powers and privileges of the Senate in relation to the Senate ethics officer. From a constitutional point of view, the federal Parliament can create this office and clothe it with certain powers, but the particularities of the Senate ethics officer are set forth.
The Senate ethics officer is appointed "during good behaviour," which means he or she can be removed for cause on address of the Senate. Criminal conduct on the part of the commissioner would certainly constitute grounds for removal. The Senate ethics officer becomes and integral part of the institution of the Senate and carries out his or her respective duties under the direction of a committee of the Senate.
The Senate ethics officer is required to report annually to the Senate. In other words, the Senate ethics officer is a creature of the Senate, accountable to the Senate. The Senate establishes the rules and guidelines for the performance. From a constitutional point of view, the power vested in the federal Parliament to enact a law in order to appoint a Senate ethics officer or to have that officer created.
As to the nature of the functions — what you might call the "delegated aspects" of the functions — this is determined by the Senate, not by the act that creates it.
Senator Andreychuk: I will leave it to someone to follow up because my question concerned delegation. Can privilege be delegated?
The Chairman: Before we go to the next questioner on the list, I would draw the attention of the senators to clause 2, sub-clause 20.2(1), where it says basically that the Prime Minister of the day will not be able to dismiss the Senate ethics officer without a resolution of the Senate. Therefore, the officer would have tenure and could not be manipulated by the Prime Minister.
In 20.5(2), still under clause 2, it says, "the duties and functions of the Senate ethics officer are carried out within the institution of the Senate."
Senator Harb: I am intrigued by this notion of undertaking versus including something in the legislation. I want to play the devil's advocate. For example, let us say the executive power puts forward a name and the name is approved. What if the Senate, rather than passing the legislation to set up rules in code of conduct, was to undertake by a resolution of the Senate — rather than legislation of the Senate — using the same argument that you have undertaken to do this, then we are undertaking to do that?
What would happen in a situation like this in terms of the ethics commissioner that is in an office but does not have the necessary keys to conduct his or her job?
Senator Austin: The Senate governs its own behaviour by its rules. Nothing compels the Senate, except public opinion, to produce a code of conduct. There is nothing in the legislation that requires the Senate to take any act whatever. However, it is inconceivable that we would not respond to this legislation by adopting a code of conduct of our own.
There has never been a debate about whether the Senate should meet the highest standards of ethics. All of us in the Senate are unanimous that we have a duty to the public and to our institution to enact a code of conduct. What is in that code of conduct is entirely within the discretion of the Senate.
Senator Grafstein: I want to thank the minister for coming and, hearing again from the Leader of the Government in the Senate, elucidating on this very complex matter.
I want to say at the outset that I do not hold the minister accountable for the drafting of this bill. He received the bill in the form that he presented it, and he has made a spirited defence for approving it. You will forgive me, minister, if I address the bill as if I have not read it for the first time, because there are a number of provisions here that are puzzling and somewhat conflicting with your very spirited and passionate defence of the need for an ethics bill, which none of us disagree with. In principle, we agree, but the devil lurks in the details.
Let us start with clause 1. We have had very little evidence on this. Why were sections 14 and 15 of the Parliament of Canada Act deleted, after we listen to both you and the minister say that it is up to the houses on this side and that side to determine rules? In effect, the underpinnings of conflict of interest for over 100 years since Confederation — or since the enactment of the Parliament of Canada Act — was in section 14. It was the heart of the conflict of interest question, and in effect it has been repealed without an amendment. Why so? By the way, minister, here is a copy.
Mr. Cotler: I have a copy.
Senator Grafstein: You can take notice of this.
Mr. Cotler: I will take notice of this so I can properly respond to you. I have made recourse to our counsel in the past, and I would do so now, since they are familiar with the travaux préparatoires in relation to the bill in a manner that I am not. I would ask counsel to come forward.
The Chairman: Is the committee agreed?
Hon. Senators: Agreed.
Senator Cools: Well, chairman, time is of the essence.
Mr. Cotler: It is a short reply.
Senator Cools: Maybe you can speak to him privately and then you tell us minister.
The Chairman: I believe that since timing is of the essence, we should have him at the table rather than relaying it through someone else.
Mr. Henry L. Molot, Q.C., Senior General Counsel, Constitutional and Administrative Law, Department of Justice: The provisions of sections 14 and 15 of the Parliament of Canada Act and their repeal are mirrored in the part of the bill dealing with the House of Commons. In both cases, the provisions repealed are conflict of interest provisions, in general, and the sense was that since all of this responsibility, in effect, would now be given to the Senate to establish a code of conduct, it would be rather inconsistent with that policy to retain specific conflict of interest provisions in the Parliament of Canada Act.
Senator Grafstein: This is where the inconsistency lies. We have been told, in effect, that we are trying to elevate the standard of conduct by the means of this legislation. Essentially we are taking something in statute law, which cannot be changed, and turning it into a rules-based provision, which may or may not be changed or diminished. I raise that as a particular problem for me.
This is important, because we have not had evidence of this before. The provision is very interesting. It has a deep history. The provision provides that you cannot directly or indirectly, as a member of Parliament, either a senator or a member of the House of Commons, benefit knowingly or wilfully from a government contract. If you do, there is a very unique penalty, which is forfeiture. Let us assume someone took half a million dollars or benefited by that amount. Then the power of the statute allows the Crown or any agency to forfeit that money.
Here is the question. If in fact we change that into a rule, would the Senate therefore have the power to forfeit that money from an offending senator, or, in the House of Commons, could the house in effect seek a remedy of forfeiture under its rules? If you cannot answer, take it as notice.
Mr. Molot: I will take it as notice.
Senator Grafstein: That is a deep and troubling problem.
Let me go back to the other question of independence. Again, the bill, in my view, minister, is flawed, because we all would like to have the principle and the practice to run in parallel. The principle is an independent officer under the surveillance of separation of powers of the Senate. However, what we find is an independent officer who is really not independent, notwithstanding the convention — assuming that we agree that there is a convention.
The thing that troubles me is that he or she is defined as a public office-holder, and that public officer-holder's rules are determined not by the Senate, not by the House of Commons, but by the Prime Minister and the cabinet. You have heard the old saying, "Follow the money," and his pay comes in effect from a standard established not by the Senate not by the House of Commons, but by the Prime Minister.
By the way, I take Senator Andreychuk's point. This is in no way, shape or form being critical of the Prime Minister. We are not talking about the Prime Minister because I think this Prime Minister has high integrity and I admire him. It is not a question of this Prime Minister; it is really a question of practice and the principles as related to this office- holder for this particular position. We say he is independent; yet how can he be independent when he is defined as a officer-holding and is getting his pay and getting his rules from the Prime Minister, who alone, unilaterally, sets out those two provisions?
Mr. Cotler: Senator, as I said earlier, as I read the proposed legislation, the Senate ethics officer is a creature of the Senate. His entire conduct, and the office as he holds it, is accountable to the Senate of which he is a creature and to which he or she would be accountable.
Senator Grafstein: If you look at clause 4, he is an officer holder. If you look at who sets the rules for the officer holder, it is the Prime Minister. The proposed subsections clearly indicate that he is an officer-holder, and his rules of conduct as an office-holder are defined by the Governor in Council.
We are looking for clarity here, minister, and because you were not responsible for the drafting, if you need some time to respond, that is okay, because other senators would like some time to deal with this. Perhaps we can get your response in some different way, such as from the Leader of the Government in the Senate.
Senator Austin: I would like to respond to that point just by observing that public office-holders are paid by standards set by the Governor in Council, not by the Prime Minister as such. They are the subject of a very independent process. The idea that the senators would write the rules of conduct and also determine how the Senate ethics officer would be paid would certainly be a challenge to the independence of that officer.
Senator Fraser: I have two points, Senator Austin. For following the money, the Senate ethics officer has the rank of a deputy head of a department of the Government of Canada. That rather limits the discretion of the government to wander outside those limits for pay and other conditions of employment.
Senator Austin: Thank you for adding that to my answer after moments ago. These are objective criteria set by the Governor in Council with respect to pay.
Senator Fraser: In respect of your earlier comment in your exchange with Senator Andreychuk, one Parliament not being able to bind the next is obviously true. Nonetheless, it seems to me, on my plain reading of this bill, in conjunction with your ministerial undertaking, that the Senate would, in effect, be able to block any future government that chose not to continue to abide by your undertaking because the Senate would still have a veto over the appointment of anyone.
The Senate would be able to veto that appointment until the cows came home if it were not satisfied with the procedure. For the government to get around that, it would have to change the legislation, and the Senate could block the change in the legislation. Have you I got the dynamic clear?
Senator Austin: You are absolutely correct. The Senate must act, under the statute, by resolution. If the Senate seeks to not act by resolution, the Senate has an enormous power to have its will heard.
Senator Joyal: I have two sets of questions. One is in relation to the appointment process and the other is in relation to the privileges. My first question is to the government leader.
In this bill as it is drafted, especially in the appointment clause, what would prevent another appointment like that of Mr. Radwanski?
Senator Austin: The Mr. Radwanski appointment had nothing erroneous in terms of the process of vetting by the Governor in Council and the House of Commons or public examination in the Senate. All the steps that were required to discover whether any nomination was appropriate were taken. An individual failed to make proper disclosure. He did not act with the appropriate level of ethics. That is human behaviour. As I said in the chamber in my second reading presentation, there is no guarantee of perfection. We set up procedures that are designed to produce the right result. Sometimes it will not produce the right result, but that is not a criticism of the process that we have undertaken here.
We have a Governor in Council who will have to pass judgment. We have the Senate, which in my undertaking, will have to set up a process under its rules to examine whose names ought to be submitted to the Governor in Council. That is within our authority. That is within the mandate to govern our internal affairs. We are up to the process. If we choose a name, we will decide how to choose the name.
I am not, on behalf of the government, saying to senators this is the way you have to do it. I am not pushing anything on behalf of the executive at all in this respect. I am saying, Senator Joyal, that the government trusts the Senate to send the appropriate person by virtue of the Senate deciding to set up an appropriate process.
Senator Joyal: I certainly do not doubt your intention knowing you for so many years. However, human nature being what it is, and in the context of partisan politics, the Prime Minister submits a name. The majority of the government is told that this is the wish of the Prime Minister. There is a resolution and the majority vote.
I have nothing against the principle that the majority rules. The problem is the protection of the minority rights and the role of the opposition in the democratic process. As we so much like to emphasize, the status and the protection of the minorities are the level of the democracy. In this context, the bill is flawed because there is no requirement to get the approval of the name by the leader of the other parties because, as you know, the resolution endorsing a name is adopted by a simple majority. Therefore, it is a "dictatorship of the majority over the rights of the minority." The minority guarantees the independence of the name of the candidate. The opposition guarantees that the ethics commissioner will enjoy the independence that will give to the public the conviction that that person is acting in a fair and balanced way.
Senator Austin: I agree with every word you have said. That is why the undertaking was given. In your second reading debate, which I read with great care, you made this point. The undertaking is designed to meet that concern. It says that we will not be sent a name by the executive — the Governor in Council. We will be asked to consult our own interests.
The undertaking also says that any recommendation must have the approval of the leader of the official opposition and a majority of the opposition senators. The undertaking seeks to meet every point that you made last November and just now.
Senator Joyal: Is there another way to enshrine that in a more compelling manner for your successor than your undertaking? In other words, are there other means in our system whereby the intention of your undertaking would be enshrined in a way that successors would have to take an initiative to change that undertaking?
Senator Austin: You must have a suggestion in mind when you ask the question. I wonder if I could ask you to go on to the next step that you may have in mind?
Senator Joyal: At one end of the spectrum, there is the possibility of doing nothing and leaving the bill as is. You seem to recognize that there is a reasonable doubt there. You address the reasonable doubt by proposing a consultation and by investing your credibility and integrity to it. No one doubts that.
At the other end the spectrum, there is Senator Bryden's amendment that says that the concurrence of the leaders of the recognized parties in the house has to be sought. There is the legislative termination.
What might exist in between the two? We must have a fair reflection. I commend the government for recognizing that there is a credibility problem for the future status of the commissioner. It is up to our committee and up to us individually to reflect on the implications of the bill not only for the time being but also for the future of the Senate.
Senator Austin: Senator Joyal, you know that there are only three steps that are applicable: the first is legislation, the second is rules, and the third is convention. No doubt your question is focused on the question of rules. That reminds me to say, as Senator Kroft said last November, that one of the major issues that haunts us still is the ghost of the clarity bill.
With respect to the clarity bill, as honourable senators are aware, the Senate was not treated as an equal chamber with the House of Commons in the consultation with respect to a clear question. Bearing in mind the very significant political consequences toward national unity, it would have gave been great if we had not supported the passage of the clarity bill. In spite of our concerns relating to that bill's treatment of the Senate, we passed it. However, it was on your own motion — which I supported — that instead of amending the bill by putting the Senate in by legislation, we agreed to pass the bill and we placed in the rules a system for governing our own conduct. I recall that very well. I do not know whether your question is designed only to have me recite a history lesson or whether you are making some suggestion.
Senator Joyal: It is good to have the opportunity to have you here to share with us the background and the overall context in which the Governor in Council makes those decisions. Generally, both the way in which decisions have been made in previous Parliaments — especially in relation to officers of Parliament — and the way in which the initiative have been presented to Parliament has been limited.
While they are officers of the Parliament, they are not executive government officers. They are deemed to be parliamentary officers but the capacity of the Parliament to control those officers is limited. We should reflect upon this to consider how we can put together a better system that ensures that Parliament has what it needs in terms of the independence and in terms of the protections of the minorities. This is necessary because one day the majority will be the minority and vice versa. This is the democratic system that Mr. Cotler was describing.
Senator Austin: Given the shortness of time I would simply say I look forward to continuing this discussion with you.
Senator Joyal: My next question to Mr. Cotler relates to section 18 of the Constitution. It says quite clearly that the privileges, immunities and powers are to be held, enjoyed and exercised by the Senate, the House of Commons, and by the members thereof respectively. So, the privileges are invested in the institutions. They are institutional privileges and member's privileges. Is it your contention that that being a constitutional provision, we can, through an act of Parliament extend constitutional privileges to other people who are not members thereof?
Mr. Cotler: We are talking the whole issue of parliamentary privilege. The basic proposition here is that the Houses of Parliament and the provincial legislative assemblies possess a set of powers and privileges that are, and I quote again Chief Justice McLachlin, "necessary to their capacity to function as legislative bodies." That is the generic principle with respect to what is meant by parliamentary privilege. In other words, these powers and rights are collectively known as parliamentary privileges.
When you look at Parliament privilege, one of the problems is that it should probably be seen as a branch of federal, common, and constitutional law because it is not contained in any statute or written instrument. In effect, the courts determine their existence and extent. I have referred to a series of decisions in Canada and the U.K. at the highest judicial level, which speak to the inherent right of the Senate to make the determination with regard to those rights and privileges.
Therefore, Bill C-4 effectively intends to provide for the appointment of a Senate ethics officer, who performs duties and functions assigned by the Senate, and to ensure that in performing those assigned duties and functions the ethics officer is answerable only to the Senate. The bill endows that officer with the privileges and immunities of the Senate as determined by the Senate, as the courts have said is their prerogative. The bill also offers protection from the jurisdiction of the courts.
We have had an evolving constitutional framework here with respect to what constitutes the privileges and rights and powers of the Senate. One cannot simply look to the text of the language in section 18 of the Constitution. One must also look to the interpretation and application that this section has found in the United Kingdom and in the judgments of the Supreme Court of Canada. The more compelling judgements have been those that have connected the ethics and governance as a pillar of democracy and anchored that in the privileges and immunities of the Senate and its inherent power thereby, through the Senate ethics official to protect the ethos of a democracy.
There is a connection between a reading of the Constitution of Canada — which is where the Chief Justice McLachlin said that the privileges and immunities belong — and the reading of the jurisprudence. It is necessary to have a comparative appreciation in order to interpret section 18 when studying what has happened in Britain and what has happened in Canada.
A reading of the text of the Constitution and jurisprudence leads to no other conclusion than the constitutional authority to establish such a Senate ethics official exists and once established, the privileges, immunities, and powers of the Senate begin in terms of determining the nature, scope and accountability of that office, all for the purpose of protecting the democratic principle.
Senator Cools: I just wanted to tell you that you keep calling it "privileges" but the real term is the law of Parliament. I am very pleased to see that you are taking an interest in it. If you ever get back to being a professor, I hope that you will begin to teach your students something about the law of Parliament.
The two areas of law, minister, the law of Parliament and the law of prerogative, are supposed to balance each other and each keep the other in a state of balance. However, section 18 of the BNA Act was a long time in coming and was a great issue as it was formed in this country. Now you keep maintaining that this ethics officer in the Senate is a creature of the Senate. I would like you to reconsider that because this bill, as written, indicates that this position is very clearly a creature of the Crown. We do not have sufficient time but maybe we could come back, minister, to this. The sections about the removal are written quite differently from some of the historical sections of a similar nature.
Section 18 is supposed to receive into Canada the ancient law of Parliament from the U.K. What it is supposed to receive as well is the notion of the independence of Parliament and the independence of both chambers.
The Chairman: I am going to ask the ministers to take this as notice of question and try to respond with a written reply. Please carry on, Senator Cools.
Senator Cools: This cannot be taken as a question. It is too complex.
Let me go at it another way. You and Senator Austin keep asserting that this appointment is just like any other Governor in Council appointment and that you stand on solid ground because for years these positions have been appointed. I would like to challenge that. The notion is that servants of the Crown were banished from Parliament beginning around 1600. By 1702, that is why for example in the U.S. —
The Chairman: I need to interrupt.
Senator Austin: Jurisdiction to sit is gone.
Mr. Cotler: I will refer you to text.
Senator Cools: You cannot refer me to text.
Mr. Cotler: If you wish to listen, I can refer you to text. I do not maintain that the Senate ethics officer serve as a creature of the Senate, it is the bill itself. I refer you to proposed subsection 20.5 where it states: "The Senate ethics officer shall perform the duties and functions assigned by the Senate for governing the conduct of the members of the Senate..." and it continues. It is set forth in the bill; it is not my representation.
The Chairman: Now that our time is up I would like to thank the ministers for coming. Perhaps they could reply in writing to Senator Grafstein's question as well.
The committee adjourned.