Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 5 - Evidence
OTTAWA, Tuesday, September 5, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, met this day at 6 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I am pleased to call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order.
We are continuing our study of Bill C-2, providing for conflict of interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight and accountability.
The bill is more commonly known as the federal accountability bill. As senators, witnesses and members of the public both here in this room and across Canada know, this bill reflects a central portion of the new government's agenda and is one of the most significant pieces of legislation brought before Parliament in recent years. I know that the committee will give the bill the extensive, careful and detailed study it deserves.
The hearings commenced in June, and this week the committee is focusing on more precise aspects of the bill. Subjects that will be covered this week include accountability generally, ethics and conflict of interest, and political financing. Our hearings will continue in the next few weeks on other important aspects of the bill.
This evening we will focus on the question of ethics and conflict of interest. Joining us are Dr. Bernard J Shapiro, who, in May 2004, became the first Ethics Commissioner of Canada. Dr. Shapiro has had a distinguished career, including many years at the deputy minister level in the Ontario public service. In September 1999, Dr. Shapiro was appointed an Officer of the Order of Canada. In 2004, he became a Grand Officer of the Ordre national du Quebec.
Joining him this evening is Howard Wilson, the former Ethics Counsellor, a position that preceded the current Ethics Commissioner. The office of the Ethics Counsellor was accountable to the Prime Minister for the administration of the conflict of interest and post-employment code for public office-holders. Prior to his appointment as Ethics Counsellor, Mr. Wilson spent most of his career in the Canadian foreign service, at home and abroad, primarily in the area of trade policy.
[Translation]
The committee wants to thank you for coming. You may now have the floor for a period of questions and discussion, which I am sure will be very beneficial to the committee members.
[English]
Dr. Bernard Shapiro, Ethics Commissioner, Office of the Ethics Commissioner: Honourable senators, thank you very much for inviting me to participate in your proceedings. I am pleased to be here tonight and I wish the committee my best in its deliberations on this bill. I also wish to add that, within the contents of the conflict of interest portion of the federal accountability bill, it is interesting and perhaps fitting that the committee is chaired by Senator Oliver. Indeed, as one of the co-chairs, along with the current Speaker of the House of Commons, of the special joint committee on the code of conduct of the Senate and the House of Commons, their March 1997 report remains the most important predecessor for today's ethics regime for parliamentarians.
[Translation]
Before I proceed further, I would like to introduce the officials here with me today: Stephen Tsang, Director of Strategy and Policy; André LeVasseur, Director of Executive Affairs, and Micheline Rondeau-Parent, Director of Parliamentary Relations and Communications.
My remarks with respect to Bill C-2 will focus entirely on Part 1 of the bill, the Conflict of Interest Act, which relates to the new Office of the Conflict of Interest and Ethics Commissioner.
[English]
In its current form, the bill does strengthen the role and enlarges the mandate of the future commissioner in a number of ways. It does so mainly by incorporating the Senate's code within its overall compliance mandates, enlarging the public office-holder clientele tell by including 2,400 part-time Governor-in-Council appointees to the investigative powers of the new commissioner, extending the commissioner's inquiry powers to current and former public office-holders, as well as enabling commissioner to self-initiate inquiries of current and former public office-holders, and granting the commissioner powers to issue notice of violations and administer penalties.
I am also pleased to note that some of the proposals included in the bill address some of my own concerns and recommendations raised at the House of Commons at an earlier date. These include the five-year review clause, and that has become increasingly important in my own thinking about the proposed act, simply because there are so many unforeseen contingencies, so many things we do not know, till one begins to practise it. There is a requirement for a timely publication in the public registry, ministerial recusals from cabinet meetings and the adoption of a specific mechanism by which members of Parliament can refer requests for examination from the public to the commissioner.
[Translation]
However, I do have some concerns with respect to the overall approach of the bill. Although I have already outlined these to the House of Commons' legislative committee reviewing the bill, I will repeat them today as I believe that they are important.
[English]
The most significant is that the proposed act represents a fundamental shift in the federal conflict of interest regime for public office-holders, from what I would refer to, and others have referred to as well, from a values regime based on explicit principles to a rules-based regime with those rules enshrined in legislation. This, in some way, strengthens the regime providing perhaps a narrower but a stronger box. It has a number of potentially problematic implications, and I wish to mention two of them.
First, the proposed act does not include any preamble or principles upon which the ethical conduct can be evaluated as is the case in all three of the current codes. There is no mention, for example, of any requirement to conserve and enhance the objectivity and impartiality of government to make decisions in the public interest and to avoid giving preferential treatment to any person.
I would, if I were able, recommend a preamble setting out the ethical principles — not necessarily the ones currently in use, those could be changed and reorganized in different ways — upon which the commissioner could rely. There simply is no set of rules, no matter how comprehensive, that will cover all the contingencies that are likely to arise. In the final analysis, ethics are more a matter of judgment than a matter of rules.
Alternatively, the Senate might consider changing the commissioner's title to the conflict of interest commissioner, making clear to all Canadians the strong but limited role of the office. Ethics is a much, much broader idea than conflict of interest. If one is to focus simply on conflict of interest, one ought to say so; otherwise, it becomes, I believe, somewhat misleading.
Second, although the bill does set out a definition of conflict of interest for the first time, there is no explicit mention of apparent or potential conflict of interest. If the intent of the proposed act is for the commissioner to deal only with situations of real conflict, then the current wording in the bill is probably appropriate. Otherwise, it could lead to ambiguity on the exact role of the commissioner.
There are, I should add, some specific ways in which the bill could be further improved. These are more minor issues, but I will raise a few of them. For example, you might consider a further clarification for parliamentarians who are also public office-holders with respect to their intervention as MPs on behalf of constituents, a tighter definition of what constitutes a friend, a tightening of permissibility of political activities by public office-holders and a need for some declaration of travel by non-commercial, chartered or private aircraft by ministerial advisers and staff, compliance measures including public declarations particularly in relation to recusal in debate and public declaration of compliance and sanctions for breaches in relation to post-employment rules. These are not as significant as the more general two issues I raised in the first place but they are worth some consideration.
For further details on these matters, I would refer honourable senators to my testimony of May 16, 2006, evidence number 008. In addition, I also provided the House of Commons committee with additional comments and proposals with respect to Bill C-2 that relate to the conflict of interest and post-employment code for public office-holders. I have left copies of all of this material with your committee clerk for your reference.
I should now like to address the issue of the separate administration of both the conflict of interest codes for members of the House of Commons and senators within the unified structure that is proposed in the bill for the new office of the conflict of interest and ethics commissioner. We are all very much aware of the previous concerns and debates on this issue and the related question in relation to the independence of the Senate as put forward within the parliamentary review of the current act. The actors in this situation are, in many cases, much the same as they were then. I do not imagine there has been enormous change of opinion on this matter, and I will certainly not comment on the constitutionality of the issue, although it is important to be considered. I do not mean to put it aside, but I am not a constitutional lawyer and I would not want to say things that I have no way to support in the sense that I could not tell you why it would be the case.
I would, however, like to point out that under the proposed act each House of Parliament would retain and fully control its own code and neither code could be changed by or enshrined in legislation. With respect to the appropriateness of the administrative model proposed in the bill, a single unified administration for all parliamentarians and public office-holders, one could easily imagine the value of this approach. After all, all three codes have much in common. Further, such a single office would be in a position to much better capitalize not only on potential administrative efficiencies but also on the policy and procedural synergies that will result from the continuous contact of the people working for the office in these different areas.
On the other hand, administrative efficiencies and policy synergies are not the only values that need to be considered. There are not only the constitutional arguments. Arguments could be made not only for the status quo — one administration for all of these people — but also for not one, not two, but three administrations, one for each House of Parliament and one for public office-holders. The efficiencies and synergies to which I referred would, of course, be diminished, but the confidence of each group generated by having its own special arrangement might be increased. The sense of identity might be increased; the sense that this belongs to us, not something imposed on us, might increase, for example.
The choice, of course, is yours, and the choice you make will in the end depend on the values that you wish to maximize. If you are talking about synergies and efficiencies, that is one thing. If you are talking about constitutional issues or other kinds of identity questions, that is another matter and you will come to quite different conclusions.
From my point of view in terms of actually managing such an office or managing the current arrangements or ones that might be proposed, it is very hard to get religion about administration. All of these things can be made to work if you want to make them work. If you do not want to make them work, they will all fail. That is a matter for you to discuss amongst yourselves and to deal with in the best way you can.
[Translation]
In closing, I want to remind members of the committee that the implementation of the proposed legislation has substantial resource implications. The legislation envisions an expanded clientele in general and with respect to expanded reporting and monitoring requirements during and post-employment; an expanded public registry and penalties; additional staff, particularly in areas such as legal services; conduct of inquiries; and information technology, et cetera.
[English]
Some of these things are quite easy to manage, and one can imagine implementing them without much fuss once the law had, in whatever form, been passed. Others, I think, would take more time — not so much more resources, simply more time. For example, I am happy to notice that in the current budget arrangements the government has foreseen the need for additional funds for the proposed office. They are there to be used and that is a step forward.
On the other hand, it is not just a question of money; it is also a question of preparing to do it properly. The difficulty we had the last time around, with which I have a lot experience, I must say, is that one had to implement the law the day after it was passed and no preparation had been done, not because people did not know that preparation was needed, but simply because no one expected the law to be passed at that particular time or in that particular session, so they there would be preparation time. It is important, as you examine the law, that you ensure that enough time is provided so that planning can be done and prepared to launch it properly, and to guarantee, to the extent that you can, that it would be a success.
Again, that depends on the parts of the law you are talking about. For example, there is provision in the law for penalties. That takes time. There are regulations and processes to go through in order for this to actually happen. More time is needed for that than for other kinds of things. It is worth some thought as we get ready for the future.
I will turn the floor over to my colleague, Howard Wilson. When he is through, I and my staff will be glad to respond to questions.
The Chairman: Thank you for that comprehensive overview of the conflict of interest provisions in Bill C-2.
Mr. Wilson, please give us your presentation. When you conclude, honourable senators will have questions for both of you.
Howard R. Wilson, former Ethics Counsellor, as an individual: Thank you very much. I am delighted to be here. I was pleased to receive your invitation and to revisit some matters that were much with me for most of the 1990s and early 2000.
I will make some broader points on conflict of interest, on lobbying and, because of the discussion I heard earlier on the accounting officer, I want to make a brief comment on that which may be useful for honourable senators.
On conflict of interest, Mr. Shapiro has made the point correctly that the proposed regime will fundamentally change things. The assumption has been that it will strengthen things and that we will end up with a better conflict of interest regime — more precise, more powerful — than what has existed essentially since the mid-1980s. It is my contention, and it may be counterintuitive, that a code in this area is much stronger in terms of effectiveness than is legislation. There is always a role, obviously, for legislation, but this code has gone beyond the mere legal requirements that we impose on public office-holders.
Mr. Shapiro made the point that it is a principles-based approach, and it was the principles, during my time, that gave life to the code itself because they allowed you to look very clearly at what the obligations were that public office-holders had to accept if they were to continue in office. There were three that highlight this point. The first was that public office-holders shall act with honesty and uphold the highest ethical standards so that public confidence, trust in the integrity, objectivity and impartiality of government are conserved and enhanced. That is a very clear statement as to what the government expects of public office-holders.
The second was that public office-holders have an obligation to perform their official duties and arrange their private affairs in a manner that will bear the closest public scrutiny, an obligation that is not fully discharged by simply acting within the law. In other words, there was recognition that there is a higher standard that Canadians could well expect of those in government.
The last one was that on appointment to office and thereafter public office-holders shall arrange their private affairs in a manner that will prevent real potential or apparent conflicts of interest from arising. That deals fundamentally with the appearance of conflict, which is a reality. I do not think the way it is expressed in the proposed legislation, as I read it, covers this point. It misses the political reality that the appearance of conflict, whether or not there is any substance to it, is a matter that every politician has to address. The great strength of the code for public office-holders was that it recognized that explicitly.
We had and are losing a set of principles upon which some limited rules were derived that were to deal with the avoidance of conflict and what was acceptable in terms of gifts, et cetera. The broader point that I make is that in this area it is certainly my experience that a code has much more force and power than legislation which, by definition, becomes limited.
There was an interesting decision by the Supreme Court of Canada in the middle of July. Since it was the middle of July, it did not get much attention in the media.
The case I am referring to is R. v. Boulanger, and it dealt with a breach of trust. It was a unanimous decision of the Supreme Court written by the Chief Justice. The issue at hand was not an important one; it involved a police chief in a suburb of Quebec. The court wanted to establish very specific rules on the application of section 122 of the Criminal Code, breach of trust. They tightened them up considerably, making it much more difficult for prosecutors to obtain conviction. She went on to note that almost all public office-holders are also subject to codes of ethics and conflict of interest codes, which carry serious disciplinary provisions. In other words, in tightening up the application of the code, she implicitly, if not explicitly, recognized that ethics codes are not an inferior instrument in terms of achieving public goals.
The last point is that in expressing concern about translating the Conflict of Interest Code into legislation, I do not want to leave the impression that I am talking about the powers of the commissioner. That is in legislation now and should remain in legislation. I am talking about the provisions of the code. If they are left as a code, as opposed to legislation, then they do something that I think most Prime Ministers have found very helpful. Specifically, after an election, it is an opportunity for the Prime Minister then to issue a new version of the code that is going to apply to public office-holders, those members of the executive branch for which he is ultimately, himself, accountable. It is a useful reminder that it is his code and that he endorses it.
Three little provisions — just let me pick up on them. In reading the sections on conflict of interest — this may be inadvertent — the provisions on gifts are weakened by exempting gifts from friends. The current code says these have to be close personal friends. The original code of 1985 said personal friends, and that was not good enough. It was my experience, in dealing with politicians — and I do not mean this disrespectfully — that you have a lot of close personal friends. It was interesting to read the proposed text. I do not know why the drafters did not use the existing language, because they have used the language of the existing code invariably throughout. That is one point.
On divestment, it is proposed that a blind management agreement not be permitted. I am a little concerned that this may just be a misunderstanding of what we were attempting to solve with a blind management agreement. Previously, it was always a blind trust, but a blind trust cannot cover private interests. If you have a private company, interests that are not tradable, putting them into a blind trust creates a fiction, and the fiction is that you do not really know where your interests lie. So we created the idea of a blind management agreement to recognize that this may be a private interest that you cannot manage yourself, but it may require recusal. I am not sure what the motivation may have been for the drafters to exclude it; I can guess. It was an attempt seriously made during the 1990s to try to come to grips with the reality of different kinds of business arrangements.
My last point on conflict of interest is the proposal that the commissioner must be a former judge or a member of a quasi-judicial tribunal. I have no personal interest in this, but I would have been excluded because I was in economics and practised trade policy. I do not know, given the complexities, that any advantage is served by trying to limit it. I think Mr. Shapiro made the point that ethical issues are very far-reaching. If you are trying to deal with an issue that is not set out precisely in legislation and trying to analyze it and come to a conclusion, you are not applying law; what you are doing is trying to arrive at a conclusion that is going to make good public sense and protect the public interest. I am not persuaded that there is any need. My provincial colleagues came from a variety of backgrounds; some were lawyers, some were former judges, and some, like me and others, came from an entirely different kind of a background. Knowledge of how government works is absolutely essential, in my view, because of the issues that are before you.
Quickly, on lobbying, the Lobbying Registration Act has not been a neglected statute. It was introduced originally in 1988, then just before the election of 1993 there was an all-party unanimous conclusion to substantially amend it. This happened in 1995, greatly increasing the amount of information that was available, and making it available electronically. The act was then amended again in 2003. In both instances, the legislation was put to a House of Commons committee before second reading, which gave members of the committee substantial opportunity to change the act, and they did take advantage of it.
The big achievement of 2003 was that it made it possible for us to effectively enforce the act. The way it was originally drafted led prosecutors to the view that they could never secure a conviction if someone had not bothered to register the fact that they were a lobbyist. Lobbying was defined as communication in an attempt to influence. The conclusion of Quebec prosecutors in the first instance was that that was too difficult to prove and they chose not to prosecute. So we borrowed American practice, which says that lobbying is simply a communication with a public official with respect to these various lobbying objectives; it is a greatly strengthened document.
They proposed to ban contingency payments. That was a debate that did take place in 1995, and we were told by Justice that this was outside the constitutional authority of the federal government, that contracts were in essence a matter of provincial responsibility, that we could control the basis of contracts for the federal government, or grants could be extended, but not more broadly. I take it that Justice's view has changed.
The five-year cooling-off period for senior public office-holders is rather onerous. I think it will not meet the presumed goals that are set out in the legislation.
Finally, the naming of senior public office-holders contacted, plus particulars of the subject matter, is a matter that the committee debated previously, in 1995 and 2002-03, in-depth. The conclusion in both instances was that this information was not necessary. I did a paper for the OECD in 2005, and another early in 2006, and one of the points that I made is that a common practice in OECD countries on lobbying issues is that if some information is good, then more information is better. There is almost a momentum that, every time the act is in front of you, we want to add more details as to what has to be disclosed. I always thought a very powerful argument was made that we do not need to go beyond disclosing which department, what is the purpose, and who is the client. That gave people the ability to say that there is transparency.
Lastly, on the accounting officer, I listened to the discussion. In the mid-1990s, I was in London and met with the then-cabinet secretary, Sir Robin Butler, now Lord Butler. He wanted to talk about what it was we did with respect to ministers. They were having some problems. I asked him a question about accounting officers, where all of their deputy heads, the equivalent of deputy ministers, were designated as accounting officers, and what was the experience.
He was very positive about it, because it had been around for a long time in the U.K, and said that it clarified the relationship between the policy responsibilities of the minister and the administrative responsibilities of the deputy minister. It was mentioned that, if the minister insists, a letter directing the deputy minister could be written. Much media coverage here has suggested that this would lead to confrontation between the minister and the deputy minister. Lord Butler said that has happened but so rarely it has been inconsequential.
From time to time, I had experienced a blurring of the responsibilities between the deputy minister and the minister with, perhaps, a bit too much walking across what should have been a better defined boundary. I am very much in favour of the idea. I do not see any basis in the British experience, over many years, that would lead me to think it might pose the danger that some of you have expressed.
The Chairman: I had an opportunity to meet with Mr. Butler in London one year ago where we had a similar discussion. He was very forthcoming about his experiences. I would begin the questioning with the opposition critic, Senator Day, but he has asked that Senator Joyal, who is an expert in the area, lead the questioning.
Senator Joyal: I must declare that I am in a conflict of interest today because I am the chair of the Senate Standing Committee on Conflict of Interest for Senators.
That being said, it is my pleasure to welcome our two witnesses. Mr. Wilson, we had an opportunity to listen to you when you discussed the ancestors to Bill C-2 — Bills C-34 and C-4. I am certain that Mr. Shapiro has had the benefit of the discussion and debate that took place in the Senate when the original proposal merged the two responsibilities.
The argument put forward in the Senate and agreed to unanimously was based on the way in which the independence and autonomy of the two chambers are necessary to maintain the proper checks and balances that one House exercises over the other and on the fact that the exercise of the disciplinary function, which is intimately linked to the privileges of each House, must be maintained.
We can look into parliamentary jurisdictions abroad to learn how their bicameral systems operate. We can see that they have implemented the same kinds of principles that we have in the Westminster system. Whether in Australia, Westminster or in the United States, each house maintains its autonomy. That does not mean there should be no rules, principles, code or an enforcement mechanism. The principle is such that each house exercises its constitutional duty to check and ensure that the disciplinary function remains within the control of their ambit.
Having seen the way in which you were treated in the other place and how you became a political football — a partisan — does not lead the committee to conclude at this time that we should merge under the same heading. We have observed that ethics has become a political tool way beyond that which the original intent of the bill was to enshrine and to implement.
Unless you were to provide the committee with additional wisdom, apart from the synergy and economy of scale, the committee could not see an obvious benefit from merging the two positions under a single heading on the basis that one House would be in the hands of the other insofar as the status of the commissioner would be concerned.
What would happen if there were a motion in the other place to call upon your resignation and your replacement? It would mean that the trust and confidence held in you by the other House would be called into motion while, in fact, that House would be in a position to be totally satisfied with the professionalism, objectivity, neutrality with which the mandate would be exercised.
Many implications would arise from merging the two on the basis of our observations over the last two years in respect of an officer that is supposed to be above any suspicion. The Auditor General is treated with the greatest respect above any political fray and carries the trust of Canadians. Yet, you, an officer of Parliament, have not been treated in kind. It is a unique position in that I know of no other officer of Parliament becoming the object of such partisan allegations.
Therefore, we are not tempted, on the basis of the experience, to conclude that the bill is right and to revert back to the situation that we analyzed in the first place. Would you care to comment on that?
Mr. Shapiro: As I said in my opening remarks, I do not have any new wisdom to bring to this matter. I understand what you have said and what you have in mind — I have seen it all in previous debates — and I do not have any objection to it. If that is the will of the Senate, then it must act in that way and propose legislation that it believes to be appropriate for the occasion.
Certainly, I will not speak this evening to who did what to whom and why because it is not appropriate and I do not wish to make this a personal issue. The danger in all of these areas related to ethics is that unlike most of the other officers of Parliament, to which you refer, such as the Auditor General, you are talking about the individual careers of politicians. You are not simply talking about what went wrong in the public service, which is always safe, so to speak. If it is effective, it is bound to produce more controversy than would be helpful. It is easy for someone to personalize it if they wish to do so. That could happen, whether you have one, two, three or four regimes. I gave serious thought to the idea that perhaps people would be more comfortable with three, one for each House of Parliament and one for public office-holders, to which I have no objection. The arrangements are a matter of what suits the people creating them. Whether they serve the public interest in the long run, you do not know in advance.
I cannot get excited about which choice is made. Although I recognize the strength of your argument, senator, I have no new ideas in this respect.
Senator Joyal: Mr. Wilson, on the basis of your experience, could you comment?
Mr. Wilson: The idea of how many commissioners we should have was a matter that went through an enormous amount of internal debate within the government, with strong arguments being made for two — one for Parliament, one for the public office-holders. Then there was three. Now we have one where the Senate has their own officer and an amalgamation for the House of Commons with public office-holders.
I am familiar with the Senate operations because from time to time Jean Fournier has called me to ask for comments on matters I may have had experience on. I have the impression that the system seems to be working quite well insofar as senators are concerned.
The broader question I would come to for a personal preference in the light of experience is probably three — one for the House of Commons, for reasons that are not dissimilar to one for the Senate, and one for public office-holders.
The reason I have that view is that this is an enormous task and it is going to become even more enormous, with very serious investigatory powers and an expectation they will be utilized. It will apply mostly to public office-holders but there are 1,500 of them, along with 2,000 part-time, and they are the decision makers. The question of conflict is going to be more apparent there. It is a big job and one I am familiar with, as is Mr. Shapiro.
The question that was always in my mind with respect to Parliament, to MPs on the one hand and senators on the other, was what level of personal service did they expect. As a public office-holder, I did not have to return every telephone call. Clearly, if a minister called me, I would be talking to him or her very soon. My office was able to operate and it was understood we had control over this, and at the end of the day I was the decision maker.
I had always felt there was an expectation that could grow. I got this from my provincial colleagues, that they expect the head honcho to return the calls. I think you are going to be meeting with Mr. Osborne; he has 100-odd people, the same size as the Senate, and gets a lot of calls. They have been increasing over time. As they become familiar with the role and the service that can be provided, they tend to increase.
His parliamentarians feel more comfortable, but my understanding is that they expect to deal with him. I expect that evolution would be quite natural with respect to the House of Commons. I imagine it is a given with respect to the Senate.
If you meet with everybody once a year, 300-odd people in the House of Commons and 100 senators, there is not as much time to do the other things the job may require.
In terms of expected evolution, of how things will change, I suspect the best answer is three. I do not think this is a particularly important issue in terms of the integrity of what the government is trying to achieve. I do not think this is the key upon which the whole accountability bill will be seen to fail. It is a side issue important to the individuals involved, but it is not the fundamental question the accountability bill is attempting to address.
Senator Joyal: I wish to follow up on the points raised by both of you in relation to the clarification for parliamentarians or public office-holders within the framework of the Criminal Code. You have properly referred to the decision of the Supreme Court last summer, R. v. Boulanger, whereby the Supreme Court had an opportunity to review the definition to appoint what has already been decided by the Court in previous decisions, whereby each time we must tackle the responsibility of parliamentarians, we have to consider the implications of sections 119 to 121 of the Criminal Code.
On that basis, would you suggest to us that, in a way to ensure the rules are clear to everyone, amendments be brought to the Criminal Code to better define the status of public office-holder as parliamentarians within the ambit of the Criminal Code?
Mr. Shapiro: I think that is a good idea, without trying to pretend I understand the nature of the legal construct involved. I am not familiar with that and I do not want to say something beyond my capacity to analyze.
When you use the term "better define," that is always a good idea. It can be clearer to the people involved what their responsibilities are and what the limits are. Whether that is a good idea within the much broader philosophy of the Criminal Code, I am not prepared to answer because I do not know.
Mr. Wilson: I am not certain. I think the clarifications that the Supreme Court has made over the last several years to those provisions has provided a clear understanding of where the lines are drawn. Senators are, for example, public office-holders.
The fact you have a code now in effect addresses the problem you might well have experienced. I am not the expert to be able to say whether or not there should be some change to those provisions of the Criminal Code. What I can say, however, is that the code you now have seems to be a particularly effective instrument in dealing with the questions of potential conflicts. In my view, it strikes a rather good balance.
Senator Joyal: My last question is in relation to the remarks Mr. Wilson made as to what should be "legislated" versus what should be left to each House to define in its code, on the basis that once the principles are clearly stated, it is much better to leave it to the appreciation of the body that will have to live with it to adjust it on the basis of experience on a daily basis, especially with the review mechanism entrenched in each code, whereby the code is more flexible and could be adapted more clearly and rapidly than if everything is legislated.
On the other hand, the more you bring those issues in statute, the more you open court intervention. Because they are difficult issues to arbitrate, where should the intervention of courts stop in relation to parliamentary activities? You will remember that we had to wrestle with that issue as principles that are very strategic to the definition of the privileges of Parliament versus the independence of the court system. Those are principles at the root of our system of independence of the three branches of government.
I wonder if, by putting more into legislation — we would like to satisfy that we are achieving a better result — we in fact will create another kind of dynamic in the system, whereby the system will not be as reflexive of its need to adapt, than open the system to the court with all the implications that it will have in the way it will be operated.
Mr. Wilson: I agree. My fundamental point is that by putting what is now the code for public office-holders into statute, it becomes weakened. It also becomes much more rigid. That is clearly the case.
One of the great advantages of the code over the years has been that we could not try to foresee every possible problem, nor did we attempt to. There was a limited number of rules; but if an issue came up, we had a basis through the principles by which we could both analyze and determine. Then it was a relatively straightforward matter, since this was an instrument of the Prime Minister, to seek his approval for a change that could then be applied. I think there is great strength in that. There are some substantial political advantages, but from a sheer effectiveness perspective, it has great benefit. It leaves the courts to deal with matters that are more criminal than perceptual.
Mr. Shapiro: I have the same view. I talked at length about this matter when I appeared before the House of Commons. We are talking about enshrining one code for public office-holders and not the other two. It introduces a dramatic amount of rigidity into the system and makes it difficult to operate. When you put it together with the fact that there are no principles at the beginning against which you can try to judge behaviour as it emerges, the combination is not a good one. However, I gave that testimony. Obviously, it was not very convincing. The House has a different point of view.
Senator Baker: I should like to get back to what two of the witnesses referenced as penalty provisions. Of course, it will take time for these to be identified.
The penalty provisions in this bill, proposed section 62, talk about the penalty imposed on the public office-holder in respect of a violation. It states that the commissioner shall make public the nature of the violation, the name of the public office-holder who committed it and the amount of the penalty imposed. One can imagine, in the case of a politician or a cabinet minister, this would be a penalty where the public would know what this cabinet minister did. That is proposed section 62. When we go further regarding the commissioner, it states at clause 65 that the proceedings under the proposed act may be taken at any time within but not later than five years after the day the commissioner became aware of the subject matter of the proceeding and, in any case, not later than 10 years after the subject matter of the proceeding arose.
The commissioner is there for what, seven years?
Mr. Shapiro: Perhaps.
Senator Baker: Perhaps. The average cabinet minister is there for how many years? Could either of you comment on why such a clause would be put in this bill in that the commissioner knows the subject matter for five years? For five years, he does not have to do anything about it. Proceedings can commence at any time within that 10-year period. Someone in the general public may look at this and say, "My goodness. That is a great way to protect a public office-holder for not being accountable for his or her term in office." Would either of you like to comment on that?
Mr. Shapiro: I do not want to be put in the position of defending the bill as drafted. It is not my bill, I was not consulted about it, so I do not feel that I am in a position to respond to questions about why this instead of two and three or five and 10. I understand the point you are making, but I have nothing helpful to add.
Mr. Wilson: Neither do I.
Senator Baker: There is another way of looking at this, and that is to say: This is put in the bill to protect all of those cabinet ministers who will be identified publicly 10 years after the fact. The other side of looking at it is that it is extremely unfair to penalize someone 10 years after an event took place that was relatively minor in nature but would be considered as something to be proceeded with in a court summarily. The penalty is the final judgment of the commissioner. The other way of looking at it would be to say how unfair it is, 10 years after something happened, for a commissioner to knock on someone's door and say, "We want to interview you about this. If you do not give us the interview, on a balance of probabilities, you are guilty." That is what this bill says. You have to so declare, according to the bill.
Would you care to comment on which one of those two possibilities is more realistic?
Mr. Shapiro: I have absolutely no idea which one is more realistic. One must talk about another issue that is related to what you said, but not what you focused on in particular. The assumption in all of this is that the commissioner, whoever he or she is, will not be dealing as an agent of the government of the day. The independent commissioner is somewhat limited to the extent of what is occurring around him or her.
One must have confidence that the person selected will not be tempted to make a choice of that sort. I am not trying to defend the actual five or 10 business, but that is the assumption of the bill. If it is not that, then the whole thing collapses.
Senator Baker: Right now, for example, you have a time period. What is it?
Mr. Shapiro: Right now, it is 2009.
Senator Baker: I am talking about when you would have to commence proceedings. All of a sudden, we are hit with five years and then 10 years overall in this legislation.
Mr. Shapiro: I understand the point.
Senator Baker: This is nothing strange. We have seen legislation recently introduced into the House that has the same provision in it, namely, five years after the minister became aware of the proceeding and within 10 years of the occurrence of the proceeding.
Let me ask you another question and get back to this business of penalties. Under the bill, when the commissioner interviews a public office-holder, he or she has the power of the Public Inquiries Act, I presume — it is not put in those words, but it is similar to it — and anything that is discovered is not admissible against the public office-holder in any future proceeding. That is what the bill says in clause 48.
When you go to clause 49, however, you discover that the commissioner must notify the relevant authorities, which under this bill would be the proposed new DPP, Director of Public Prosecutions. It says here the commissioner would direct the matter to the director of public prosecutions. In referring the matter to the relevant authorities, being the director of public prosecutions, would you not be violating proposed section 48 of the act, where it says that nothing you say to the commissioner can be used in a proceeding against you? Obviously, that would mean derivative information as well, in your opinion.
Mr. Shapiro: I would imagine that, in order to try to make those two things hang together, the reference to the DPP in this case, or the appropriate authority, would have to be generally informed. I do not want to make up the words right now but one would have to say that it had come to their attention in order to try to make both those things work together.
Senator Baker: It says here, though, the commissioner believes on reasonable grounds; it does not say think or suspect. It says believes on reasonable grounds.
You have some pretty good reasons. Do you mean that the commissioner would not tell the police at that point what those beliefs were? The police would say, "Why are you referring this to me?"
Mr. Shapiro: I do not want to be in the position of defending the way in which this bill was drafted or of being averse to it. That is not my job. To make those things work together, you would have to have reasonable grounds but not share them in any detail.
Senator Baker: In your present position, would it be appropriate for you to have ten years after an event took place to start an investigation? Let us change it to five years, because right now the commissioner has 18 months to begin an investigation after he becomes aware of the event.
Can you give any reason why a commissioner would need five years after something is referred to him or her to do something about it?
Mr. Shapiro: The only reason I can think of is an overload of casework, which may or may not come to pass.
Senator Baker: That is a very good answer.
Senator Stratton: I am curious about the five and ten. In the construction industry, the situation is a little different. I know of a particular case of a building whose stone veneer suddenly started to fall off after 20 years. Twenty years later, the architects and engineers are liable if found guilty, and the owners have seven years beyond the date of discovery to take action.
It is not an unusual occurrence to have that kind of lifespan. If you die, for example, you have to maintain liability insurance because your estate is liable, should that veneer decide to fall after you are dead.
Senator Baker: I have to agree that in civil matters Senator Stratton is absolutely correct, but, as Mr. Shapiro would point out, in summary conviction matters under the Criminal Code, the time limit is six months after the event took place. We are talking about minor infractions here.
Senator Day: I have another supplementary point, if I may. I think this will help our process here. Dr. Shapiro, you have said that you do not want to be put in the position of defending the bill, and we understand that, and neither do you want to be put in the position of opposing the bill. You explained that you tried to make points about the bill in the House of Commons committee that were not accepted. However, it is not over. This is your second shot. We would appreciate any comments you can make one way or the other. If you like the bill, say it, and if you do not like it, say it, even though you were not consulted at all.
Mr. Shapiro: That is a fair point, and that is what I tried to do in my opening remarks.
Senator Fraser: I have one comment in reference to your opinions or remarks about the possibility of three commissioners. It would be fair to say that when the present regime was being established, most people in this place thought three commissioners would be the ideal. However, since the House of Commons in its wisdom had chosen to be under the same Ethics Commissioner as public office-holders, we thought it appropriate not to second-guess their view of how they should be governed. Nonetheless, I still think they were wrong.
I am trying to understand this bill, and I think that on these matters you in particular, Dr. Shapiro, will have examined them.
As everyone knows, this bill would abolish the positions of the Senate Ethics Officer and the present Ethics Commissioner. Clause 3 on page 33 outlines transitional provisions that provide that employees in your office and Mr. Fournier's office would immediately be transferred over to the office of the conflict of interest and ethics commissioner, as would budgets and all that good stuff, which makes sense.
Then on page 102 of this bill, we have other transitional provisions. Referring to various officers of Parliament, clause 120 states that a person who holds office just before this section comes into force will continue to hold office for the remainder of the term for which he or she had been appointed. Two of the people who are assured that they will hold office for the remainder of their terms are the Senate Ethics Officer and the present Ethics Commissioner.
An Hon. Senator: Congratulations.
Senator Fraser: Can you tell us what you think that means? Are you going to continue to hold a job and to be paid but not have a staff or a budget?
Mr. Shapiro: I do not know. I certainly noticed the issue you raised, but I have no way of explaining it. I have raised the issue with other people and they do not seem to have any way of explaining it, either.
Senator Fraser: As we proceed, we will try to elucidate it. Moving back a little bit to page 96, clauses 112 and 113 raise a similar question. These clauses are not identified as transitional provisions; rather, they would be new portions of the Parliament of Canada Act. They say that, in the event of the absence or incapacity of either the Senate Ethics Officer or the Ethics Commissioner, the Governor-in-Council may appoint any qualified person to hold that office for a term not exceeding six months and that that person shall be paid.
Again, what are we to conclude? This is a provision for ongoing replacement of the Senate Ethics Officer and the Ethics Commissioner.
Mr. Shapiro: I believe, though I cannot be sure, that they had in mind something that was suitable not only for transitional arrangements but that could also be used in the future — whether a week from now or 20 years from now — as a procedure for filling the office on an interim basis when the it becomes vacant. Otherwise, I cannot make sense of it.
Senator Fraser: I still do not understand why they are setting up such arrangements for the positions of the two commissioners when the one of the purposes of the bill is to abolish those two positions.
Again, I am assuming you have had a chance to examine this bill, probably in far greater detail than any of us.
I am moving now to page 25 of the bill, clause 44(5). The second sentence of the English version says that if a member of the Senate or the House of Commons brings information to the attention of the commissioner, the member shall not disclose that information about wrongdoing of some sort to anyone until the commissioner has issued a report under this section in respect of the information.
I ask you now to look at the second sentence of the French version.
[Translation]
And I quote:
If the member brings that information to the attention of the Commissioner, the member shall not disclose that information to anyone until the Commissioner has issued a report under this section in respect of the information.
[English]
I do not think that is a parchment error. It is very strange. Have you any guidance, Dr. Shapiro, on which of these two versions the legislator would be intending to have operative?
Mr. Shapiro: No.
Senator Fraser: Would you agree with me that there does seem to be a contradiction here?
Mr. Shapiro: Yes.
Senator Fraser: Mr. Wilson, I have been harassing Dr. Shapiro. Did you want to add anything to all of this?
Mr. Wilson: No.
Senator Fraser: Thank you, chair.
[Translation]
Senator Fox: My question is for Dr. Shapiro. On page 3 of your introductory document, you say:
In its current form, the bill does strengthen the role and enlarges the mandate of the future Commissioner in a number of ways. It does so mainly by — and I will go to item 2:
Enlarging the public office holders clientele, by including 2,400 part-time Governor-in-Council appointees;
I presume this means 2,400 people appointed by the Governor-in-Council to positions within the governing council, Crown corporations, et cetera.
On page 6 you suggest certain changes that could improve the bill. You say we could consider:
A tightening of the permissibility of political activities by public office holders.
In some cases public office holders are parliamentarians. I presume you do not want us to limit their political activities. Does your suggestion refer specifically to the 2,400 part-time appointments to Crown corporations and others?
Mr. Shapiro: Yes, exactly.
Senator Fox: Does the Ethics Commissioner currently send a letter every time someone is appointed by order in council?
[English]
Mr. Shapiro: Yes, we do. Sometimes the notice of appointment comes quite late, but when we get it, we do send a letter, along with the code, to each of these people.
[Translation]
Senator Fox: Does this letter indicate to the appointee by order in council that they can no longer make contributions to a political party?
[English]
Mr. Shapiro: No. The part-time members of the group of the public office-holders are not required to do what the full-time members are. The part-time people have to pay attention to the principles of the code, but we do not deal with the part-time people on the specific rules in the code. We really have no further contact with them.
[Translation]
Senator Fox: If I understand correctly, there is absolutely nothing stopping a public office holder — I mean a part-time appointee by order in council — from pursuing political activities.
Mr. Shapiro: Correct.
Senator Fox: Clause 16 of the bill, on page 9, simply states:
No public office holder shall personally solicit...
Clearly, "soliciting" and "contributing" are two different things. You did not explain, but what did you mean on page 6 when you said you would have liked a tightening of the permissibility of political activities?
[English]
Mr. Shapiro: I am very concerned about what would be the legitimate political activities of a public office-holder whom the public must see as impartial and fair-handed in dealing with the various issues that come to his or her attention. We have tried several times, not successfully so far, to come to agreement on what those political activities would be, what is allowed and what is not allowed. We have been unable to outline clearly for the benefit of the public office-holders what is in and what is out. That task remains to be done.
[Translation]
Senator Fox: How would that be done? With a code proposed by the Office of the Ethics Commissioner? It is not in the legislation; how do you propose this be done?
[English]
Mr. Shapiro: Since it is the Prime Minister's code and not the Ethics Commissioner's code, until now our method has been to interact with the people responsible in the Prime Minister's office to try to get changes to the code made and further detail added, et cetera; in this particular area it has not thus far been a successful venture. If the code goes into legislation, of course, an entirely different method will have to be adopted.
[Translation]
Senator Fox: Have you developed a plan of action for the limits you would like to see imposed on public office holders?
[English]
Mr. Shapiro: We have done that, and I would be glad to provide a copy of the last formulation to you.
Senator Milne: Mr. Shapiro, just to follow through on Senator Fraser's statement about the suggestion for three office-holders, when I was chair of the Rules Committee and we were looking at this issue, some of us on Rules Committee went to the House of Commons committee and very strongly, very strenuously argued for the fact that there should be three commissioners. As you say, in their wisdom they ignored us. However, I still think there should be three commissioners.
Beyond the substantial resources implications, which really have nothing to do with the ethics of the situation, one problem I see with having only one office-holder is the difficulty for that person, who will report to a committee, perhaps of the House of Commons, perhaps of the Senate, to maintain the constitutional barrier, the independence of both Houses of Parliament.
Mr. Shapiro: Depending on how you view this, you could say it is a contradiction in terms, in which case the argument is now over and you get on with some other arrangement. However, I think that if the eventual outcome is that there is one commissioner, it could only work with a great deal of difficulty and care. The situation could be managed, because the codes are similar in many ways although different in others. On the other hand, if separation is a first requirement, then of course there is no point in arguing about anything else.
Senator Milne: It seems to me that the effect of weakening this barrier between the House of Commons and the Senate is actually weakening our tradition of parliamentary privilege, and if we are weakening parliamentary privilege, then we are also weakening the independent ability of senators and members of the House of Commons in committees like this to speak their mind, to speak their mind fully and freely without any fear whatsoever of interference.
Mr. Shapiro: I understand.
Senator Milne: Mr. Wilson, same question.
Mr. Wilson: I think that this proposal has crystallized the issue, perhaps ultimately in a very helpful way. You came to an accommodation which you did not think perfect, but since it affected the House of Commons but not this body, then they can live with that consequence. However, there is no question in my mind about the difficulties of trying, in one person, to accommodate all of these differing pressures. The provinces have a much longer experience than the federal government in dealing with parliamentarians, and in their case the tasking has increased. The codes are not identical. The issues before each House are different. The much greater longevity of tenure of senators versus members of the House of Commons creates a political context that has to be relevant.
The insuperable question is that you can have a public office-holder who may not be a person looking after the public office-holder's code and who may not have the confidence of just about everyone. Remember, that individual is responsible for the Prime Minister's appointees; the situation has a different complexion. In both the Senate and the House of Commons — I said this when I appeared before your committee, in fact — if the office-holders do not start with full confidence of the chamber, then their job probably becomes impossible. However, if they are subject to competing requirements, it may be difficult to maintain that. I think that, given the tasking now and the nature of the proposition, there is an overwhelming case to be made for three commissioners.
Senator Milne: Again this raises the question of what happens if the office-holder loses the confidence of one House but not of the other. That person is in an impossible position and so are both Houses.
Does this proposal in any way agree with the findings of the Milliken-Oliver report? How does it jibe?
Mr. Wilson: The Milliken-Oliver report thought of having one commissioner at the beginning. Was it not one parliamentary commissioner? The institution that was then looking after public office-holders would continue unchanged. A person was to be appointed by the Prime Minister and to be responsible ultimately to the Prime Minister, who in turn was accountable to Parliament.
The debate changed, but I had read Milliken-Oliver as talking about the importance of there being codes, and those codes would be separate from the public office-holder's code.
Senator Milne: The codes would not be enshrined in law.
Mr. Wilson: No, absolutely not.
Senator Campbell: First, I am impressed by people who work without a net, meaning that since you are first in the role every decision you make is new and groundbreaking. I have the same question as Senator Milne. The House says no, the Senate says yes. What does Bill C-2 say about that?
Mr. Shapiro: I am not sure what you mean by the question. What does it say about what?
Senator Campbell: I will give you an example. The House says, "We do not like you," and the Senate says, "We think you are a great guy." Who gets to make the decision on what happens to you? Or have we in fact reached an impasse?
Mr. Shapiro: I believe you have reached an impasse.
Senator Campbell: The second thing I want to talk about here, although I cannot find it in the bill, is the politicization of an officer of Parliament. I am interested in the fact that these positions are appointed with the full support of the House, and then somewhere along the line the House can decide that you are out of favour. I have never seen anything quite like it. Even in British Columbia, where we are known for our entertaining politics, I have never seen anything like for example the Prime Minister's issuing a release saying he is loath to cooperate with Bernard Shapiro's probe because the Ethics Commissioner is a Liberal appointee. The Prime Minister voted in favour of Shapiro's appointment in the Commons. How does this bill protect you or Mr. Wilson from that, or does it?
Mr. Shapiro: It does not, from what I can tell. There is no protection against some things in the world. I am not suggesting that it is a good thing. It is a bad thing.
Senator Campbell: Mr. Wilson just said that you start with the full confidence of the chamber, correct? Then, through whatever political machinations take place, that confidence wanes. What does the bill do? The bill says you are there for seven years.
Mr. Shapiro: Yes.
Senator Campbell: I find it terribly difficult to understand how we could have one person serving two masters. It does not make any sense in this situation. I really worry about the politicization of these officers.
Mr. Shapiro: I understand why you worry, because I worry of course about the same thing and so I accept the comment. However, while having three commissioners might have many advantages, it would not protect you against that, just as having one commissioner does not.
Senator Campbell: I agree. The Senate could do the same thing to you.
Mr. Shapiro: Any group can do it to anyone if they choose. That is the way of the world. Certainly, having one commissioner complicates the matter; there is no doubt about that.
Mr. Wilson: I have one comment on Senator Campbell's remarks. The problem of controversy arises not within the Senate and its members, nor within the House of Commons and its MPs. Experience has shown that when allegations are made against a public office-holder and there is an investigation or a report, frequently the accusation follows that the report was a whitewash, it was exoneration. If there is a political difficulty it will reside with the person who has responsibility for public office-holders, because that is where the political arguments will arise.
Senator Day: I have a couple of short points. First, Dr. Shapiro, you referred to Part 1 of the bill. We need to clarify for the record that Part 1 of Bill C-2 talks about the Conflict of Interest Act. Then the Conflict of Interest Act has five parts. Someone reading the transcript might ask which part you are talking about. We understand that that kind of confusion arises when a bill is put together in six weeks and there is no opportunity to sort out some of these points. Therefore, perhaps you would like to clarify your comment. Were you talking about Part 1 of Bill C-2 or Part 1 of the other bill that is in this bill, the Conflict of Interest Act?
Mr. Shapiro: I meant the entire conflict of interest portion of the bill.
Senator Day: That is Part 1 of Bill C-2, all five parts of it.
Mr. Shapiro: Right, exactly.
Senator Day: In your comments, Dr. Shapiro, you made reference to the fact that in the budget the government has allocated monies for various implementations of the bill. Can you tell us, first, what is the overall budget for the operation of your group?
Mr. Shapiro: The overall budget comes to something between $4 million and $5 million.
Senator Day: Do you know how much was in the budget for implementation of this initiative by the government?
Mr. Shapiro: A very large amount was in the budget, undifferentiated among the various purposes for which it would be allocated, but my understanding is that they have allocated approximately $3 million for this particular office.
Senator Day: Of course they were looking at the savings coming from the cancellation of the Senate officer as well, I suppose.
Mr. Shapiro: No definite decision has been made, but based on general conversation my understanding is that they would not include that. They put together both budgets and added $3 million.
Senator Day: I heard your comments in answer to Senator Joyal's question about the separate Senate Ethics Officer. You did not want to get into that debate, but you understood the position of the Senate and the importance of independence. You indicated that you understood that argument, but you did not object to that argument?
Mr. Shapiro: Absolutely not.
Senator Day: When Bill C-34 went through Parliament, were you aware of how important that issue was to senators?
Mr. Shapiro: Yes.
Senator Day: Presumably other people were aware of that as well.
Mr. Shapiro: I would think so.
Senator Day: I would think so as well. It certainly had a lot of media attention and public attention. In your experience as the Ethics Commissioner, what were you hearing with respect to the importance of bringing these two offices back together?
Mr. Shapiro: No. I had no experience of that at all.
Senator Day: You were hearing nothing?
Mr. Shapiro: Nothing.
Senator Day: Can you speculate for us as to why this initiative was taken, when it was obvious to virtually everyone how important this was to the Senate?
Mr. Shapiro: No.
Senator Day: Thank you for that. Neither can we.
I have one other question, which relates to the obvious amendments that will be necessary with respect to the points raised by Senator Fraser. I know you have three colleagues here with you and you will be contemplating the points raised by Senator Fraser when you have a chance to chat with them. If, in the future, you have some answers that can help us with some of these points and apparent contradictions, we would be pleased to hear from you, even after you leave us this evening. You can correspond with the clerk.
Mr. Shapiro: If I do, I will.
Senator Cools: Thank you, Mr. Chairman. I would like to thank the two witnesses for their testimony.
I have a question for you, and I have been trying to wrap my mind around how to express it. There is a word I have not heard anyone use for a long time. It is malversation. I am sure you know the word.
Mr. Shapiro: I do not.
Senator Cools: It has to do with the misconduct of persons in high office, such as judges, and it involves money. There is another word which has disappeared. It is tergiversation, which means turning your back and becoming a renegade.
This bill is pressuring senators to become renegades. In other words, it is pressuring senators to reverse a position that they took barely two years ago. I was always led to understand that it is a very serious matter to ask a House of Parliament to change its mind, to reverse a position.
I assume that both of you followed the situation in the Senate. The Senate spoke twice quite strenuously on this issue, once under Mr. Chrétien and once under Mr. Martin. Now the Senate is being asked to reverse itself. Considerable pressure is being applied to change its position with no explanation and no reasons given.
Do either of you have any thoughts on that? Is this an ethical problem, a political problem or a parliamentary problem?
It is a serious matter to ask individuals to change their minds and to vote a different way. Some can change their minds easily, but I am not that mercurial.
Mr. Shapiro: Of course it is a serious matter.
Senator Cools: Is it an ethical matter?
Mr. Shapiro: I would not think of it as an ethical matter because one does not have to change one's mind. You have been asked to do so but you do not have to. Defining this as an ethical matter presents it as a moralization of politics, in which political issues, which ought to be decided by people such as senators, members of the House and other elected people, are suddenly dumped into the lap of someone like me, unelected and inappropriate to deal with those issues. As Ethics Commissioner, I worry about that danger from time to time.
I would define it rather as a political matter that you need to consider carefully. Make whatever judgment you come to as a result of that consideration.
Senator Cools: Mr. Wilson, do you have anything to say?
Mr. Wilson: I do not know why the drafters have come back to a model of one commissioner. There has not been that much public argument about it. I am familiar with statements made in the House of Commons committee and also in your earlier hearings before the summer break.
Quite frankly, this is a particularly important issue for what I understand to be the government's objectives for this accountability measure, which I fully support. The bill brings together a lot of good material, and it has a certain political force. It makes dealing with legislation more complicated.
Should there be one commissioner or three? How will this affect the goals the government has set out? I think there will be no effect at all, except that by complicating the responsibilities of one they make it more difficult to achieve the purposes they so clearly hope to achieve for public office-holders.
Senator Cools: I understand the position that you gentlemen are in. However, I was raised to believe that once a Parliament has spoken, it does not change its mind. It is an unwise person who asks it to change its mind too quickly. That is how I was raised, but we are dinosaurs now.
You said Bill C-2 will apply to 300 members of Parliament, about 105 senators and 1,500 office-holders. By my reckoning that is about 1,900 people.
Mr. Shapiro: There are part-time people to be considered as well.
Senator Cools: The number is increasing. We are up to nearly 4,000 individuals. Based on your experience in the business, how much time in a year will the commissioner be able to give to these individuals?
Mr. Shapiro: In the model proposed, with a single commissioner over all those people, the amount of time the commissioner will be able to give to any individual will be extremely limited.
Senator Cools: Give me a number. Will it be an hour a year? Will it be two hours a year?
Mr. Shapiro: I think it will depend on the person involved. I do not mean the commissioner involved. There would tend to be, perhaps, more focus on full-time people as opposed to part-time people. There would probably be more focus on ministers. There are many issues.
Senator Cools: We are talking about 1,900 full-time people.
Mr. Shapiro: I understand. Other than the ministers themselves, I doubt if any of those people would see the commissioner on an annual basis or during a given year.
Senator Cools: Should I be concerned, then, that the commissioner position will be bureaucratized by virtue of the number of people with whom he will have to deal? Commissioner staff rather than the commissioner himself will end up dealing with members. I would find that anathema.
Mr. Shapiro: Right, but that is the current state of affairs in my office. It is not possible for me to see everyone every year. It just does not work out. I understand the value of doing it; I do not have to be convinced that it would be a good thing to do, but it is not be possible.
Senator Cools: You are currently having difficulty seeing 300 people.
Mr. Shapiro: I do not even make the attempt. It usually takes about six to seven months to get an appointment with each minister.
Senator Cools: If you are having difficulty with 300 members only, this new person will be in terrible straits with 1,900 people to see.
Mr. Shapiro: It will be terrible straits if the standard is to see each of those people each year for a significant amount of time. At the moment, I do have staff dealing constantly with all of those people and their offices. I am not the only point of contact; with that many people it simply has not been feasible.
Senator Cools: We are dealing with extremely personal matters of deep personal interest to members and, therefore, we are immediately dealing with questions of confidentiality.
I would like to ask you a question. Have you communicated to anyone your difficulties in dealing with 300 members? Is that widely known or understood?
Mr. Shapiro: I have certainly spoken to the House committees that deal with me on this issue. Since I know in advance that it is not possible, I have not made it a priority to deal personally with each person. Rather, we have had to adopt a different method.
In fairness to my staff, I have to say that we have not had a single leak of confidential information, not one.
Senator Cools: That is a very worthy and commendable thing to say.
Mr. Wilson, do you have any comments to make about the member to office-holder ratio?
Mr. Wilson: I think the task of the commissioner insofar as senators and members of Parliament are concerned is advisory. Individuals will look for advice on dealing with issues that come about as a result of their personal interests. I imagine that most senators would expect to be able to deal directly with the commissioner.
This committee will meet this week with Mr. Osborne, the Ontario Integrity Commissioner, and Mr. Oliver, who deals with conflict of interest in British Columbia. It will be interesting for the committee to hear their perspectives on how important the personal contact that they have with members of their respective legislatures has been and how they see their responsibilities.
Senator Cools: Certainly. Thank you very much, gentlemen.
Mr. Shapiro: I would like to add one thing on this issue. The Ontario legislature and the B.C. legislature have much smaller numbers that the Senate or the House of Commons. B.C. has about 70 members and Ontario about 100 members. Those numbers are easily manageable, but when the number of members increases, whether you have one commissioner or three or seven other commissioners involved, the contact with members will not be as personal as we would like, especially given the other responsibilities.
Senator Cools: Given the number of people this proposed ethics commissioner will have to be deal with and respond to, how many staff members do you think he will need to begin with?
Mr. Shapiro: I am not sure. I currently have 35 staff in my office.
Senator Cools: You have 35 staff members?
Mr. Shapiro: That is correct. The Senate has about four or five ethics staff. I do not know for sure.
Senator Cools: We like it small.
Mr. Shapiro: You are small in that sense.
Senator Cools: We like to talk to our Ethics Officer face to face.
Mr. Shapiro: There are several important points. One is the increased reporting requirements. There are vastly increased reporting and data requirements, as well as a greatly increased public registry. As a result of the bill, there will be considerably more inquiries taking place simply because it will be easier to start inquiries in a variety of ways. Five years down the road, we would be talking about 50 or 60 ethics staff.
Senator Cools: You are saying you have 35 staff now for 300 members.
Mr. Shapiro: For 300 members plus the public office-holders.
Senator Cools: Right. Then we are dealing with a position and a number of staff that are expanding exponentially. In five years the ethics office will be a huge bureaucracy.
Mr. Shapiro: I would not call it huge. That is a drop in the bucket.
Senator Cools: By nature, bureaucracies grow like Topsy.
Senator Hays: I have a question regarding the public perception of the commissioner, which you mentioned earlier. I am particularly interested in how those members of the public who are politicians perceive the commissioner, given that politicians have a tendency to politicize things.
There are very different cultures for the executive branch of government and the appointees, and you have to take into account the sheer numbers, the 1500 public office-holders, the 2000 part-time people and the parliamentary secretaries and ministers.
If there were a separate commissioner to deal specifically with parliamentarians and their code of conduct, whether legislative or non-legislative — and I understand your preference for a non-legislative code of conduct — is there any likelihood that three commissioners would be superior to one in terms of the different cultures and in terms of the tendency to politicize, to in some way compartmentalized the problems that are encountered in breaches of the code, whether legislative or non-legislative, in each of these three elements? Is there an argument to be made that having three commissioners might reduce the likelihood of politicizing a decision to carry out an investigation or a report? We have heard about the ability to relate to and service the people in each of these three cultures; the cultures are different and call for different approaches. We have experienced different elements in the short time we have had a commissioner at the parliamentary level. We are aware of the tendency for a report to be seen to be taking a political position. Is there less likelihood of that happening with three commissioners rather than one?
Mr. Shapiro: I think the political controversy has to do with whose ox is being gored at any particular time. Not to use the Senate as an example, one could imagine that if there were a separate arrangement for members of the House of Commons, the members of the House might feel a greater sense of ownership and therefore feel obliged to respect what is supposed to be the independence of the ethics commissioner or commissioners. It is possible to imagine that as one of the outcomes.
However, the advantage of having three commissioners would not lie in that area. The advantage of three lies in vastly reducing the complexities of both dealing with different cultures and dealing with impasses between the various groups.
Mr. Wilson: I agree with that. At the end of the day, that is the fundamental question. They are three different cultures. The role for public office-holders is by far the most complex because they are the decision makers. The possibility of a conflict with private interests can arise very rapidly. There is less likelihood of that with this institution or with of the House of Commons. It would be difficult for one individual to get their mind successfully around all three situations. This actually simplifies matters.
If you look at other jurisdictions, the House of Lords does not have a commissioner, it has a committee. The House of Commons has an official and a committee. I do not think there would have been any debate whatsoever that this was a matter on which they might want to exchange experiences and share an individual. Such a suggestion would have been thrown out.
Finally, the Prime Minister issued his own ministerial guidance for ministers. He now has an official who will take responsibility for investigating allegations that may be made against ministers. Again, there are three separate institutions. The person chosen is their equivalent of an auditor general, but their position is not in that capacity. The individual is available to the Prime Minister when allegations are made that his code is not being respected.
The three institutions — the executive branch and the two legislative branches — have their own control.
Senator Austin: I very much appreciate the evidence both of you have given with respect to the conflict of interest code and its various issues. For one who believes that the values regime works best, this is a difficult statute. I had quite a bit to do with Mr. Martin's values regime, although I did not think it was perfect either. All committees sometimes come to different conclusions than I want.
I have a specific question. I was fascinated when I read clause 43 on page 24 of Bill C-2:
...the Commissioner shall
(a) provide confidential advice to the Prime Minister, including on the request of the Prime Minister, with respect to the application of this Act to individual public office holders...
What is the public policy that requires that information to be given to the Prime Minister, given that the Prime Minister is the ultimate political person in our parliamentary system and may learn things about an investigation — not necessarily a conclusion or even the results of a process, but simply the reporting of an accusation —that are otherwise confidential? You have already referred to clause 44(5) and the restraint imposed on a member providing disclosure. The words are clear: "shall not disclose that information to anyone." That is repeated twice. However, I can find no legal constraint on the Prime Minister against using any information given. Has that point been drawn to your attention?
Mr. Shapiro: It has not. As I am looking at it now I am trying to imagine what the Prime Minister would ask. Until now, in my experience, interactions with the Prime Minister's Office have always been on general issues, never on personal issues, never about any particular public office-holder or anything like that. I understand your point, but that has been my experience until now. I will take your point under advisement.
Senator Austin: Thank you.
I should like to return to a point that Senator Joyal made clearly, a point that is perhaps of some concern to those of us who have legal and constitutional backgrounds. It is the right of the courts to intervene in the processes and procedures of Parliament. In my opinion, the phrase "reasonable grounds" sets up the right of the court to examine, on the application of any individual, whether in fact the grounds were reasonable. Therefore, your office now becomes subject to procedure, but you are not compellable. How do you square that?
Mr. Shapiro: That has been brought to my attention.
Senator Austin: I am referring to clause 50.
Mr. Shapiro: I cannot square that. That is one of the great difficulties in trying to figure out how to get ready to implement this proposed federal accountability act. We are in the difficult position of trying to get ready to implement a proposed act that may or may not pass in one form or another. One hopes that if the bill passes, in whatever form, care will be taken to stage the implementation of the act in such a way as to make it doable. I understand the point.
Senator Austin: There are these imperfections and many others in the bill, in my view. I wonder that the House of Commons did not have addressed some of these issues. It is our classic role to make legislation work better.
Mr. Wilson: I thought clause 43 regarding confidential advice to the Prime Minister was nothing other than the situation that has been in existence for quite a number of years — namely, it is the Prime Minister's code that public office-holders have to abide by. In my experience, there were two kinds of questions, one dealing with allegations made that the Prime Minister wanted examined, and the other determining whether a particular public office-holder was in compliance with the obligations under the code. In the latter case it was not the details that were of interest but rather the mere fact of whether the individual was now in compliance with the code. The Prime Minister was always advised of that.
Mr. Shapiro: I have been trying to imagine other possibilities as I think about this. One occurs to me: When the Prime Minister's Office or the Prime Minister himself is considering an appointment and has a candidate who might be appropriate, the candidate may want to know what he would have to do to come into compliance with the code, which is helpful information to have. The candidate decides after receiving that information whether he wishes to be appointed. That situation arises from time to time.
Senator Austin: The language is very general but we also have subclause 7, which is not hypothetical.
We frequently look to the U.S. practice, where they have disclosure by a member of the administration contrary to a code to protect agents of the CIA from public disclosure. The law is clear as to the sanction and the argument is that the President could make the announcement citing reasons of national security. There is a lacuna that should be looked at in this respect.
Senator Hays: Senator Austin's question also relates to disclosure of the results of the investigation carried out. In the case of its being at the Prime Minister's request, an exemption that the commissioner finds, if it falls under clause 43, is not subject to the disclosure requirements of clause 48 by virtue of subclause (5). Your comment explains why this is so: it may well be that the Prime Minister has requested an investigation for a prospective public office-holder, but it might not be. In your view, should that not be clarified to ensure that it covers the point that they likely wanted to cover rather than a potentially broader situation?
Mr. Shapiro: I do not want to impute their motives. I do not know what they wanted to cover, but it would be a good idea to clarify the bill to ensure that this is what they wish to propose.
Senator Austin: Could I add one point? The language in clause 43 is so wide it applies to members of Parliament and to senators. It does not apply to public office-holders only. We are asking questions about whether we should appoint officers but it applies to parliamentarians and that is a matter of serious concern to me.
Senator Stratton: I have a point of clarification. Clause 43 states:
In addition to carrying out his or her other duties and functions under this Act, the Commissioner shall
(a) provide confidential advice to the Prime Minister, including on the request of the Prime Minister, with respect to the application of this Act to individual public office holders; and
(b) provide confidential advice to individual public office holders with respect to their obligations under this Act.
This corresponds in part to the current sections 72.07(b) and (c) of the Parliament of Canada Act. These paragraphs are repealed by clause 27 of the bill. Section 72.07 of the Parliament of Canada Act states:
The mandate of the Ethics Commissioner in relation to public office holders is
(a) to administer any ethical principles, rules or obligations established by the Prime Minister for public office holders;
(b) to provide confidential advice to the Prime Minister with respect to those ethical principles, rules or obligations and ethical issues in general; and
(c) to provide confidential advice to a public office holder with respect to the application to him or her of those ethical principles, rules or obligations.
I ask, gentlemen, is that true? I would think that it is.
Mr. Shapiro: Yes, it is true.
Senator Stratton: If that is the case, how does the proposed new act differ substantially from what is contained in the Parliament of Canada Act?
Mr. Shapiro: Again, as I said to Senator Austin in the first place, this issue had not been brought to my attention. I do not want to keep talking about something that I have not thought about. It is not generally a good idea to do that. At first blush, the difference seems to be that the Parliament of Canada Act talks about confidential advice that I could give to any public office holder who asked for it or general advice to the Prime Minister about a variety of different issues. That happened regularly and was very helpful.
After the first look at the language, the focus seems to be more on a specific individual in whom the Prime Minister might be interested. My example had to do with prospective office holders but there are, of course, many others. I will have to think about it more carefully. I do not want to go further than that.
Mr. Wilson: I would agree with that comment.
Senator Milne: I have a supplementary on this issue. Clause 44 states:
(6) Where the commissioner is of the opinion that a member of the Senate or House of Commons has failed to comply with the confidentiality provision of subsection (5), the Commissioner may refer the matter, in confidence, to the Speaker of the Senate or House of Commons.
(7) The Commissioner shall provide the Prime Minister with a report setting out the facts in question as well as the Commissioner's analysis and conclusions in relation to the request. The report shall be provided even if the Commissioner determines that the request was frivolous or vexatious...
Therefore, the commissioner reports on the Senate to the Prime Minister. What then about the constitutional division between the two Houses?
Mr. Shapiro: Indeed.
The Chairman: With that rhetorical question, I thank Mr. Wilson and Dr. Shapiro for accommodating the committee this evening.
The committee adjourned.