Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 7 - Evidence, September 18, 2006 - Morning meeting
OTTAWA, Monday, September 18, 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 10:06 a.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I wish to call this meeting of the Legal and Constitutional Affairs Committee to order. We are meeting today to continue our study of Bill C-2, more commonly known as the federal accountability bill, providing for conflict of interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight and accountability.
As senators, our witnesses, and members of the public both here in the room and across Canada on television 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 the committee will give the bill the extensive, careful and detailed study it deserves. During our hearings in June and earlier this month, the committee has already held almost 35 hours of hearings and heard from 42 witnesses.
This week we will continue to look at various aspects of the bill, including accountability, ethics and conflict of interest, political financing, the parliamentary budget office and access to information and privacy.
Our first witness today will help us consider issues relating to ethics and conflict of interest.
[Translation]
It is my pleasure to welcome Denis Saint-Martin from the Department of Political Sciences at the University of Montreal. Professor Saint-Martin teaches in the field of public policy and administration.
His articles have been published in various specialized journals in these fields and he recently wrote a book entitled Building the New Managerialist State: Consultants and Public Management Reform in Comparative Perspective.
On behalf of the committee, thank you for joining us, Professor Saint-Martin. Without further ado, I will turn the floor over to you, following which we will go to questions and have a discussion which I hope will prove very beneficial to committee members.
Mr. Denis Saint-Martin, Professor, Faculty of Arts and Sciences, University of Montreal: Mr. Chairman, thank you for inviting me to speak about this important bill that will transform in a very radical way the face of the federal public administration as we have known it since the end of World War II.
I have already sent my notes to committee members and I would like to quickly review them with you at this time.
I would like to begin by making two remarks of a more general order and then continue with three specific comments about Bill C-2.
In their testimony before the committee, Mr. Howard Wilson and Mr. Bernard Shapiro observed that Bill C-2 called for a new way of tackling ethical and conflict of interest issues. They pointed out that the proposed legislation called for a regulatory approach, that is an approach based on rules, unlike the previous regime which placed greater emphasis on broad principles and values, and noted that these rules would eventually be entrenched in law.
They also said that on the downside, this approach, which was probably more demanding, was also more constraining, that it had its strengths and weaknesses, and that it was more rigid, mechanical and bureaucratic. It does not provide parameters or broad guidelines to those called upon to interpret conflict of interest rules.
Committee members know as well as I do that ethical questions in politics are not black and white, but always fall into grey areas.
All I can do is reiterate the position of Mr. Shapiro and Mr. Wilson and encourage you to include in the bill a preamble in which Parliament would define the values meant to serve as a framework for interpretation when the rules are applied. One source of inspiration could be the seven principles of public life found on the first page of the code of conduct for British MPs.
[English]
To put it bluntly, ethic rules do not strengthen public confidence in the political process. Understandably, the government has wanted to put the code of conduct for public office-holders into an act to show Canadians that it attaches the highest importance to questions of conflict of interest, ethics and integrity. Of course, when entrenched in such an act, the code will be stronger, credible and much more demanding. In brief, the ethics bar will be raised to an even higher level than it was before. The purpose of using such a rules-based approach to a question of ethics and conflict of interest is to bolster, to strengthen citizens' confidence in their political institution, in their government.
We all know that during the past 20 or 30 years a steady decline in public trust in political institutions has occurred. Stricter ethics rules are adopted in the hope of restoring public confidence. Thus, a cause and effect relationship is established between ethics rules and public confidence in political institutions.
My point is that such a link between ethics rules and public trust in government and political institutions is not empirical and has no scientific basis; it is purely political. From all the research I have consulted over the past 10 years, I published a book a couple of months ago that examines the codes of ethics in five countries. It shows that there is absolutely no link between ethics rules and public confidence in political institutions.
[Translation]
As you know, the United States has more ethics rules than any other country. After the Watergate scandal in the 1970s, the U.S. federal government brought in a host of rules and codes, enacted ethics legislation, created the office of ethics commissioner and so forth. However, the U.S. also rates the lowest in the world among G8 countries in terms of public confidence in political institutions.
[English]
In fact, the research shows that there is an opposite link between ethics rules and public confidence. More ethics rules and other mechanisms in bureaucracy for monitoring ethics leads to greater public cynicism. Why does the rules- based approach to conflict of interest and ethics issues not strengthen public confidence? It is simply because of the politicization of the process of ethics regulation. The regulatory approach creates a situation in which ethics rules become weapons of partisan combat. The more ethics rules there are, the more politicians and parties use those rules to attack and discredit their opponents. An individual does not have to violate the rules to have his or her reputation smeared; simply asking the ethics commissioner to conduct an investigation is sufficient. The damage is done even if the commissioner determines that the person did nothing wrong. In politics, as senators know better than I, there is no presumption of innocence. The politicization of ethics rules discredits any process to regulate ethics in the eyes of the public. When ethics become a battleground for partisanship, citizens lose confidence in politics. When ethics rules are used as a weapon of political combat, they lose their moral authority. Those are the two general comments that I wanted to make as an introduction.
[Translation]
I would now like to discuss with you three specific elements of Bill C-2. The first is the definition of the concept of ``private interest.'' Section 4 of the bill defines the concept of a conflict of interest and stipulates that:
... a public office holder is in a conflict of interest when he or she exercises an official power, duty or function that provides an opportunity to further his or her private interests ...
Section 6 goes on to say that no minister or MP shall debate or vote on a question that would place him or her in a conflict of interest. Therefore, it can be argued that the entire definition of conflict of interest as found in the bill rests on the concept of private interest. Yet, nowhere is this concept defined.
For example, does the concept of private interest include the private interest of an MP who wishes to be re-elected in the next election? For example, should an MP in this situation abstain from voting on a bill that would create a Crown corporation and hence, hundreds of jobs in his or her riding, since this could increase the MP's chances of re-election?
In my opinion, the concept of private interest is much too vague, at least in the French version of the bill. It would be preferable to follow the lead of other countries, come up with a less subjective definition and limit the definition to questions of material or pecuniary interest.
As for my second observation, the bill refers several times to the fact that ministerial advisors will henceforth be subject to the same ethics rules.
Section 2 defines a ministerial advisor as a person, other than a public servant, who occupies a position in the office of a minister of the Crown or a minister of state and who provides policy advice. The bill makes reference several times to ministerial staff, but nowhere is there mention of the Prime Minister's advisors.
The bill clearly defines the duties and rights of the Prime Minister, whereas it makes no reference to the Prime Minister's advisors. This strikes me as a serious omission, particularly in light of what we learned from the Gomery Commission, and I urge you to pay particular attention to this point.
The third point I want to make concerns section 85(b) of the bill which stipulates that the Ethics Commissioner's mandate is also to provide confidential advice to the PM on ethical issues. There is a risk of confounding roles here. You know better than I do that the office of Ethics Commissioner reports to the legislative branch, not to the Executive.
However, section 85(b) assigns to the Commissioner, when the latter is called upon to provide confidential advice to the Prime Minister, a deputy minister's role, hence a position that comes under the Executive. The Commission is being asked to take on the role of ethics police for the Executive and at the same time, to serve as private advisor to the Prime Minister.
Yet, the Prime Minister already has an ethics advisor, namely the Clerk of the Privy Council. Historically, that has been the Clerk's role. Is the Auditor General asked to provide confidential financial advice to the Prime Minister? No. When the Auditor General has advice to give the Prime Minister, she does so publicly, in her reports. I see no reason why such a distinction should be drawn between an officer of Parliament, the Ethics Commissioner, and another office.
In my opinion, this provision is pointless. It could potentially create legitimacy issues for the office of the Ethics Commissioner who will act as both confidential advisor to the Prime Minister and ethics watchdog. This could lead to problems, as I see it, and heaven knows the Commissioner has enough problems to contend with at this time.
[English]
Politics, like the environment, is a public good. We should pay attention to politics, because without it there is no democracy. Politics is the blood that flows through the heart of democracy. Too often, politics is wasted; too often, it is exploited for strategic purposes, to score points against our political adversaries. One can espouse the adoption of stricter ethics rules to show that one has a higher level of public morality than the opponent has. Parties can win elections in this way. The more detailed, formal and legalized ethics rules become, the more the public seems to turn off politics.
Ethics rules, whatever their number, do not make government more ethical but they make people more cynical. It is my worry, as a citizen, that over the past few years we have been trying to build an ethics regime out of distrust because it seems that every public official is suspect. If a society assumes that its politicians are venal, greedy and self-serving, then it had best take care to ensure that this does not become a self-fulfilling prophecy.
The Chairman: Thank you very much for that excellent overview. There is a lot to think about in your presentation. You raise a number of issues, some of which have been canvassed already. You referred in your remarks to some of the witnesses who have come before us already dealing with these issues. We will take yours into account. We had an excellent presentation from another professor from Montreal, Réné Villemure, an ethicist who also analyzed the use of the word ``ethics'' throughout this bill. He also gave us some valuable advice.
You brought a red book with you. Your main theme is that ethics rules, whatever their number, do not make government more ethical. You have said that several times throughout your presentation. What is your proof of that and what evidence and what empirical research have you done for that? I would have thought that one rule was better than none. In your book, did do you empirical research and does your book show that even one rule will not help?
Mr. Saint-Martin: No. I have relied on research done by colleagues in the United States, where this issue of ethics rules and public integrity and public confidence in politics has been at the centre of political debate for 30 years. The United States is the number one country in terms of the thickness of its ethics and its conflict of interest rules. There is research in the United States showing that there is no link between ethics rules and public trust. It is like saying that there is a link between the Iraq war and 9/11. We know that politicians will like to say there is such a link, and it is totally legitimate to say so, but my role as a researcher is to try to go a bit deeper and to say, no, there is no such link.
The Chairman: Have you done any empirical research in Canada on this subject?
Mr. Saint-Martin: Yes. My colleague André Blais at the University of Montreal is one of the experts in Canada on public opinion. In his latest book, co-authored with Maureen Mancuso, he has proven this. Ethics has become politicized in the past 10 to 15 years and people tend to think that politicians are more dishonest than in the past. When you look over 100 years of history, you see that politics, in fact, has improved. The key paradox is why people think politicians are more dishonest when we have more solid ethics regimes to guarantee honesty.
A survey of public attitudes towards conducts in public life, done for the committee on standards in public life in the United Kingdom just a couple of months ago, posed the following question: ``How do you think standards of public office-holders in Britain today compare to a few years ago?'' The majority of people think they stayed the same; 31 per cent think the standards got worse or a bit worse.
The Chairman: Would you mind if we had a copy of that for our committee?
Mr. Saint-Martin: Absolutely; that could be useful for your deliberations.
Senator Day: We will pay for that; the witness will not have to provide it free of charge.
Mr. Saint-Martin: It can be downloaded free from the Internet.
[Translation]
Senator Joyal: I am tempted to open the discussion by coming back the question raised by our chairman.
These days, it is difficult to imagine a world without ethics rules. I think such rules are here to stay. They have become a given for anyone involved in politics and by that I mean for parliamentarians as well as for government administrators.
The problem, as you have so clearly pinpointed, is that the ethics debate has in your own words been politicized. When a person in public office makes an allegation involving a public good, the media are all over the story. The news ends up making the headlines. As you indicated, once that happens, the damage has already been done and the public's trust is compromised. Should we not be focusing instead on how people in public office deal with ethical questions?
Last year in the House of Commons, a number of stinging allegations were made, to the point where the target of the allegations was no longer any one individual or the person whose credibility was being questioned, but rather the Ethics Commissioner himself. The process had come full circle. When the politicians disagreed with the Ethics Commissioner's findings, that is when a person's guilt was not acknowledged, as the public was demanding, then fingers were pointed at the Commissioner.
Should we not be re-examining how parliamentarians deal with the ethics question? Is this not part of the solution to the problem identified by the Chairman, a problem that you so clearly defined? In other words, should we not be re- examining how the rules of ethics should apply to parliamentarians?
We heard the testimony of Mr. Wilson and Mr. Shapiro and both were in some respects victims of the debate. They were accused of everything under the sun because to some, they had not delivered the findings people had hoped for, namely issuing condemnations and meting out punishments as an example. Should we not be focusing on this point?
Mr. Saint-Martin: I totally agree with you. What needs to change is the behaviour of our elected representatives.
In the social sciences field, we often refer to the ``prisoner's dilemma,'' and politicians seem to be somewhat caught up in this game.
A politician may admit that a scandal occurred, but may decide not to react or to put in place myriad new rules, because he is not convinced that these will result in a government with greater integrity. That might well be the more candid position to take, but opponents would quickly wade in with their take on the situation.
Hence the reference to the ``prisoner's dilemma,'' or who will be the first to react to the situation.
Consider another example. Quebec is the only province in Canada not to have an independent ethics commissioner or a code of ethics entrenched in law for the assembly, unlike other provinces and the federal Parliament. The polls, however, show that Quebecers have a higher level of confidence in the political process in their province than do Canadians elsewhere. Obviously, numbers can be interpreted different ways. However, ethics rules should be judged on the basis of what they can achieve. They cannot boost the public's confidence.
As the Chairman said, we need rules. They provide us with some guidance and help everyone to move in the same direction. However, at some point, there can be too many rules. When the government steps in to regulate the corporate world and the private sector, then over-regulation can become a problem.
[English]
We will then be talking about the need for regulating the economy, having less rules and having smart regulations. I am waiting for the day we have smart regulations for the public sector as well.
[Translation]
I would like to draw your attention to a American publication entitled The Pursuit of Absolute Integrity: How Corruption Control Makes Government Ineffective. The authors of this book examined the situation in the United States and found that when too many regulations are brought in to address conflict of interest and ethical issues, this results in a great deal of bureaucracy. Managers who work for governments end up spending more of their time dealing with paperwork and enforcing the rules instead of serving the public and providing quality services.
An overabundance of regulations is brought in in the hopes of ensuring a government free of corruption.
While this is an entirely laudable objective, the regulatory process in place encourages a dysfunctional bureaucracy where the bureaucrats pay more attention to the rules than they do to the major objectives that they should be pursuing. The end result is a form of alienation where the services delivered to the public are of a poorer quality. It is a vicious circle.
[English]
It is a Catch-22; you're damned if you do, damned if you don't.
[Translation]
When will a politician finally speak up and call for a return to core values, instead of more bureaucracy, ethics commissioners and so forth?
[English]
Senator Joyal: I will use an English expression you mentioned in your presentation this morning — that is, allegation is guilt in politics.
[Translation]
All it takes is for one allegation against a person for public opinion to automatically presume that this individual is guilty. Public life and private life are entirely different. In private life, a person is presumed innocent. There is no such presumption of innocence in public life. Once an allegation has been made, the public immediately presumes the person targeted is guilty, somewhat like we see in the French system.
Mr. Saint-Martin: Exactly.
Senator Joyal: How can we reign in the allegations that politicians direct at one another, to minimize the negativity that you spoke of this morning?
Mr. Saint-Martin: That is an excellent question. I will give you an oblique answer. With respect to the politicization of the process of regulating ethics in the case of elected officials and senior bureaucrats, research has shown that the higher a person's standing, the more politicized the process becomes. An ordinary back-bencher who used his office budget to pay for his children's travel expenses will certainly attract some media attention, but the incident would be more politicized if the member in question was a minister or the Prime Minister. The negative side of the politicization process is directly tied to the status of the individuals under investigation. Bill C-2 will affect all those subject to this regime, namely public office holders, ministers and senior bureaucrats. The bill makes provision for a process whereby a complaint may be lodged if there is sufficient justification or grounds for doing so.
My concern is that the process of initiating an inquiry may become somewhat of a free-for-all or another way of getting to someone, as we sometimes see during Question Period. How do we prevent that from happening? In my opinion, the details of the investigation should remain under wraps until the Ethics Commissioner has ruled on the case. They should not be leaked to the press and that case should not be discussed during Question Period. If an MP has evidence of a minister's wrongdoing, then he should make his case to the Ethics Commissioner and await his ruling. You will tell me that I am expecting a lot, but the process should be a discreet as possible, until the Commissioner has ruled.
Similarly, when the Auditor General audits a department, the details should not be daily fodder for the press. We should wait until the Auditor General has tabled her report. I do not see why it should be any different in this case.
Senator Joyal: My next question concerns the first point you made, namely the inclusion of general guiding principles in the bill. You called to mind certain comments made by Mr. Shapiro, specifically the fact that the bill lists activities or actions that are prohibited, but does not include guidelines. It prohibits certain things, but does not tell a person with public responsibilities how he or she should behave in general. Mr. Shapiro remarked that most cases fall into grey areas and in order to have an enlightened decision, some guiding principles or values should be stated in the proposed legislation.
You mentioned the code of conduct in place at Westminster. Several years ago, a number of senators were entrusted with the task of drafting a code of ethics for senators and for reviewing these particular guiding principles.
In your opinion, what fundamental principles should be set out in the proposed legislation?
Mr. Saint-Martin: That is a very good question. One can always draw on the experience of others. It is not a question of reinventing the wheel, only of acting as expeditiously as possible.
[English]
The British system of ethics regulation is working relatively well. As you may know, unlike here in Canada, the British do not have an Ethics Commissioner. Rather, they have a parliamentary officer, who is the servant of the parliamentary committee, and the parliament officer looks after ethics issues. It is not an independent body. It is under the direction of a committee of parliamentarians. In that sense, it is not at all like the Ethics Commissioner here. One would be hard-pressed to say that ethics in British politics is worse than in Canadian politics. I do not think we can make that argument.
The seven principles that the British use are selflessness, integrity, objectivity, accountability, openness, honesty and leadership. We should be inspired by those principles.
[Translation]
Senator Joyal: I would like to address the scope of the code of ethics. A Montreal newspaper — I will not say which one — reported this morning on its front page that one of the bill's weaknesses was its failure to address the issue of lobbying by parliamentarians, and by MPs in particular. Upon retiring, a former MP can immediately join a private firm, register as a lobbyist and make representations to the government, whereas ministers and their staff are subject to a five-year cooling off period.
On page 2 of your presentation, you talk about private interests. I myself observed that when I was sitting in the House, some MPs acquired expertise in certain areas and became very interested in certain sectors — the forestry industry is one such example — because they represented ridings or regions in which forestry played an important role. I see Senator Comeau and I could just as easily have used the fisheries in the Maritimes as an example.
These MPs perform their duties with great diligence and become spokespersons, whether for the forestry, pharmaceutical research, aeronautics or automobile industry. We could list every sector of the economy.
In my opinion, in order to effectively counter the public's perception that MPs are intent first and foremost on pursuing their private interests, MPs should be added to the exclusion list. As I see it, a member who has served in Parliament for several years acquires as much knowledge about an industry or economic activity as a ministerial aid with minimum responsibilities in a minister's office. Should MPs not be excluded from engaging in lobbying activities for a set period of time, if we are serious about conveying the image that MPs are in office to serve the public interest, not to prepare for their retirement.
Again, I do not want to dwell on allegations and guilt. However, should we not have more specific rules in place that would apply to MPs wishing to join a lobbying firm after leaving public office?
Mr. Saint-Martin: I really cannot comment on that. I was unaware that MPs were not subject to the regulations set out in the Lobbyists Registration Act. If they in fact are not, then I feel parliamentarians should address this oversight because there is no reason why a parliamentary secretary should be excluded, while a backbencher is not.
On the other hand, I would urge you to proceed with caution and to avoid over regulating. A person should not be preventing from earning an honest living. The issue here is whether that person in fact stands to profit from the knowledge acquired during his or her years in Parliament. This is a very subjective, complex matter. By definition, a regulation must apply to as many people as possible and in this case, we are distinguishing between types of MPs. Yet, there is no logical reason for doing that and therefore, some caution is in order.
Senator Joyal: The other point of your brief which struck me was your mention of the definition of the concept of private interest; you were of the opinion that it is too broad and that we should restrict it to material and financial interests. Practically speaking, what events or factual analyses led you to conclude that we should change the definition of private interest and define it, rather, as a matter of material and financial interests?
Mr. Saint-Martin: In what I read of the bill, the notion of private interest — in the French text, of course — is not defined anywhere. So, starting from this poorly defined notion of private interest, the bill then says that a member of Parliament, elected to public office, must abstain from taking part in votes or debates where a conflict could arise between public interest and private interest.
I will give you a not-so-fictional example. Suppose the government intends to create a crown corporation in your riding, and that that will create 600 new jobs there. Your private interest, wanting to be re-elected — one might say that wanting to be re-elected is a matter of private interest — will certainly be furthered by that decision. Should you abstain from voting or taking part in debate? I think we are going too far and almost curtailing the public's right to have a representative who will speak on its behalf.
Being interested in re-election, defined in that manner, does not necessarily involve financial or material interests. One simply likes one's work as a member of Parliament and would like to be re-elected. Generally speaking, politicians are in politics to win; there is nothing wrong with that, it seems to me.
It is from that perspective that in my opinion we need to prove that taking part in debate will enrich the individual MP, will cause his bank account to grow. If that can objectively be proven, there is a problem. But private interest, as it has been defined, appears to me to be a notion which is too broad.
Senator Joyal: Yes, moreover, there are benefits which may not be financial or material but which can nevertheless be very important.
Mr. Saint-Martin: Yes.
Senator Joyal: If you limit the definition of interest to its financial aspects, reprehensible behaviours will not be covered by the regulations, and this could create the impression that the person is seeking to further his or her own private interest. Do you not think that by attempting to be too precise we are involuntarily creating situations that will be difficult to justify?
Mr. Saint-Martin: You certainly are not wrong and your position may be more idealistic than mine; I may be a little more pragmatic on these issues. One of the reasons behind there is this cycle, this politicization of ethics rules I was referring to earlier, a process which deprives them of their moral authority and leads to the loss of confidence in institutions by citizens, is precisely that this is a hyper-subjective area.
When the Auditor General makes a call, her judgment call is underpinned by expertise, scientific disciplines, accounting, financial analyses, techniques, which all leads to a certain objectivity; we know that we are not in a grey area, but that things are black and white.
In matters of ethics, the type of expertise or techniques which would allow us to decide issues as easily as in the area of public finances, do not exist. This is a hyper-subjective area which by definition will always be politicized. On subjective matters you are entitled to your opinion, as I am to mine, and no one can really decide. In this text the objective is to determine something which is difficult to determine. If we choose a notion of private interest which, as you correctly pointed out, may cover a broader range of issues, we may possibly be headed for even greater politicization, because that notion is even more subjective, whereas restricting it to financial and material interests makes things a little more measurable.
Senator Joyal: I have one last question.
[English]
The Chairman: Senator Joyal asked you about the definition of private interest, and you said there is none, and then you referred to section. The interpretation section of this bill, clause 2, gives a definition as follows:
``private interest'' does not include an interest in a decision or matter
(a) that is of general application;
(b) that affects a public office holder as one of a broad class of persons; or
(c) that concerns the remuneration or benefits received by virtue of being a public office holder.
That definition, of ``private interest'' is, in fact, contained in the bill.
Regarding Senator Joyal's second question about allegations, do you agree that one of the tenets of Canada's system of parliamentary democracy is that it is based on political parties, the very nature and essence of same being that one party has a public policy position that is different from that of another political party, and that one of the ways the political parties gain power is to oppose the other political parties?
Given that that is our system in Canada, can you not say that the whole concept will always be politicized?
Mr. Saint-Martin: It will be, absolutely, because of the adversarial nature of our political system.
The Chairman: What would you advise us, as a committee, to do to try to take the politicization out of political parties, given that that is our system in Canada?
Mr. Saint-Martin: You are right. If one wants to go to the bottom of that issue, then you need to go to the root, and the root is in political parties, absolutely.
The Chairman: I need your help on that.
Senator Stratton: Have Gomery reports every year.
The Chairman: With that, I shall now turn to Senator Stratton, please.
Senator Stratton: My question goes to the first point that you make about private interest not being specifically defined. I also wish to discuss the conflict of interest referred to by Senator Joyal.
I should like to put on the record clause 86(3) of Bill C-2, which states that the Commissioner ``shall carry out those duties and functions under the general direction of any committee of the Senate'' with respect to his or her duties and functions related to Senate and its code. In other words, the Senate has a code. I would refer you to pages 46 and 47 of Bill C-2, specifically proposed section 86(3) of the Parliament of Canada Act.
As well, there are similar provisions provided on page 47 of the bill in relation to MPs on the House of Commons side, specifically, proposed section 87(3) of the Parliament of Canada Act. While the bill does not specifically define private interest, in our ethics code, private interest is defined, as Senator Joyal can attest. We were all members of the committee that studied the construction of that code. We had a long discussion on private interest, and it was quite clearly defined. I know they had a similar debate on the House of Commons side.
I think while Bill C-2 does not specifically refer to private interest, it does refer to codes in either House with respect to that.
Mr. Saint-Martin: What you are saying, in reality, is it would not make a big difference because of the existing rules and codes.
Senator Stratton: They do exist, and Bill C-2 refers to those two different codes, which specifically define private interests.
Mr. Saint-Martin: I do not know if it is a matter of language. It seems to me that the notion of intérêt personnel, personal interest, is not the same as private interests. Maybe you should ask a linguist about these things.
Private interest, the way we understand it in English, refers to your private business: your bank account, your house, your investment portfolio. Personal interest, on the other hand, encompasses everything. I do not know if it is a matter of language. It could be.
Senator Stratton: I do not want to open that debate again because we had a very long one in our committee with respect to private interest and how it conflicted with personal interest.
Second, when you refer to proposed section 85(b) — confidential advice to the Prime Minister on ethical issues — I believe the intent here is with respect to a case arising with an officer of Parliament, not specifically a member of the House or a member of the Senate, that that advice is taken to the Prime Minister to inform him. No Prime Minister wants to be blindsided. He or she needs to be informed as to what each officer of Parliament is doing if there is a conflict.
My understanding of this rule is that it is more an information thing and not a judgmental thing. I think that is the intent, unless someone disagrees. That is my understanding. Perhaps that would at least in part satisfy you with respect to that.
This is not intended to provide confidential information to the Prime Minister about a public office-holder so he could hold it over his head.
Mr. Saint-Martin: My worry is about appearances. I agree with you. My concern is not that I think the Prime Minister or the commissioner's office will try to use this information in a political way. I do not assume that at all.
My worry is that all people or the opposition will look at the commissioner. That is what I call a conflict of loyalty. The Prime Minister already has such an advisor, being the clerk of the Privy Council. That was the job of Howard Wilson. He will tell you that before he was the Ethics Counsellor to the former Prime Minister the job used to be performed by the clerk of the Privy Council. That is also the practice in the United Kingdom as performed by the secretary of the cabinet.
Senator Stratton: I realize that. The other question I have deals more with the issue of cynicism that we could debate forever. I think we have recognized that ethical rules are necessary. We have found, for example, in the construction of the ethics rules for the Senate that the system, although it has not been in place long, seems to work so far. We had a specific case with respect to that.
I think it is not a matter of imposing more rules. I do not have a solution as I do not think you have a solution. If you do not do anything but the public demands that you do — as they have in this case to a large degree, and it has become part of the Conservative platform to say we would do something — Bill C-2 is the result of that. That is really what the issue is, whether you disagree with it or not.
When I was a kid, I got caught riding double on my bicycle. I was taken to court for that, and my parents had to go with me.
Senator Campbell: A convicted felon.
Senator Stratton: I am a convicted felon for riding double on my bike. Not only that, I did not think anything of it, and I got caught a second time. I was a very slow learner. I kept that hidden my whole life.
Senator Campbell: You need a lawyer here, senator.
Senator Stratton: My point is, today that does not happen. There are no rules.
In other words, a police officer is not going to stop a kid if he is riding double on his bicycle. That is the difference. I think we became a little lax in the enforcement of those rules, or ethics, as you would say. As a result, society has started to reflect that laxity. I think society is trying to now suggest that perhaps we have gone too far with being lax, and it is time to bring back some sense of law and order to the situation. I am a shining example of that, but I got punished for it.
In my view, a certain level of ethical behaviour is mandatory, as we all know. We must define a set of guidelines for someone entering into the Senate or the House to follow. Newcomers are completely green. They do not know necessarily what is right or wrong, so why is there not a set of standards or rules that defines what one can and cannot do?
In doing that, I am not suggesting that the image of politicians will change. I agree with you that it will not. However, at least those rules are there and they can be clearly explained to an individual in either House. Subsequently, if an individual decides to stray from the rules, he or she can be called on an issue. Why would we not want to do that?
Mr. Saint-Martin: My only concern involves knowing when we have enough rules. Earlier, I provided an analogy with respect to the private sector. In terms of government regulating businesses, there comes a point when business people say ``enough regulation,'' because it is hurting the performance and productivity of the economy as a whole.
We could apply the same logic to the public sector and to the political sector. How do we know when we have enough ethics rules and that we have not crossed the threshold of becoming dysfunctional for the political sector as a whole? That is my only worry. I am not saying we have reached that threshold in Canada, but we are certainly close to it.
When you look at public administration reform that has taken place since the 1960s, since the Glasgow era, all reforms sought to decentralize management responsibilities in the federal administration, to create more responsible managers, with more flexibility in their working environment and in the application of the rules, to give tailored services to citizens rather than a one-size-fits-all model that makes everyone look bad. We have had the tendency in the past 40 years to make public management more decentralized, more flexible, but now we are going the reverse way. I am saying yes, it is needed, but we should be very careful not to throw the baby out with the bathwater.
Senator Stratton: I would agree with you. It is a very fine line, but I believe we have to go there.
The last issue is that politics and government — by using democracy as the shining example we all like to talk about — is adversarial. We are going to go at each other. If something comes to the attention of the media, it is there. It is adversarial, it becomes controversial, and it is matter of being able to look at it, deal with it, saying this is what the results are. Prime Minister Martin did that with the Gomery report — hence, the results that really laid the blame where it belonged. It is critical that that happens.
You may say that in essence it heightens the cynicism. Once you realize there is a problem, the best way to go is to deal with it, publicly and transparently. Many people would disagree with that. A former prime minister that we know of would disagree with that, because in the end it hurt politics, it hurt political parties, all political parties.
Mr. Saint-Martin: Yes.
Senator Stratton: It is a Catch-22. You are damned if you do, damned if you do not. In your position, if something like that becomes public in the media, would you not want to deal with it through a set of rules?
Mr. Saint-Martin: One way to answer your question is to look at two responses. Bill C-2 is one response to the sponsorship inquiry, and there is the Gomery second report. I could not say which response is better, frankly. If you are asking whether the Gomery recommendations are more efficient in making sure that another sponsorship scandal will not happen in the future, I do not know. If you are asking whether Bill C-2 is more efficient than the Gomery recommendations in making sure we do not have another one, I do not think so. The big difference is that the Gomery commission made 18 final recommendations, whereas Bill C-2 contains 100 or more rules, is much more bureaucratic as a response, if I can use that term, in the sense that it tries to cover a lot more things.
Of course, politically, it would be naïve of me, if I were an advisor to the Prime Minister, to advise him or her to say nothing, to just ignore it. My point is that if the argument I am trying to make with you is discussed more in the public sphere, the idea that even if we have an ethics rule book that is that thick, this would not guarantee us a more ethical government. This is something about which citizens should be more aware.
Senator Milne: Professor, I am interested in your third point. You say the same commissioner cannot simultaneously be the ethics police for the executive and the Prime Minister's private advisor. Are you recommending two ethics commissioners for the House of Commons then, one for the House of Commons and one for the other public office-holders?
Mr. Saint-Martin: Ideally, yes. Three, as you know, because you senators have had this debate a couple of years ago when the previous government adopted the first ethics law. I would invite you to challenge the government to some extent, because the implicit argument that is made on the part of the government is that, yes, we all recognize these fine, constitutional nuances between the executive, the Senate and the office-holder and parliamentarians, but we want to have economies of scale. Economies of scale is the implicit argument in the government position. In other words, why have three bureaucracies, one for the Senate, one for the House and one for the executive? We will have just one big one. I would invite you to challenge that. I am not so sure that having one big ethics powerhouse rather than a small ethics counsellor for the Prime Minister, a small one for the Senate and another one for the House would be less costly. I have not seen any data on this.
Senator Milne: Do you think Bill C-2 would be improved if clause 43(a) were removed? That clause provides confidential advice to the Prime Minister, including on the request of the Prime Minister, with respect to the application of this proposed act to individual public office-holders.
Mr. Saint-Martin: In the light of what happened when Mr. Howard Wilson was the ethics counsellor to the previous, previous Prime Minister — and as you know, Mr. Wilson had a rough ride; he was accused of being a lap dog and endured all kinds of insults — that clause article still creates that possibility of confusion, of opening the possibility that the Prime Minister could be tempted, himself or herself, to say that they did not fire that minister because after talking with the ethics commissioner they were led to believe that what he did was okay. Then, the opposition could challenge that and then politicize the commissioner's work.
Therefore, yes, if we lived in an ideal world, it should be removed because this is an office that has a tremendous challenge in front of it in terms of building credibility and legitimacy. Again, because this is not the Auditor General, ethics is always a subjective matter in the grey area, and when a decision is made there will always be some people who are displeased.
Senator Milne: Professor, as far as I am aware, all senators now are classified legally as public office-holders. It is not actually what we should be, but that is the way we have been classified and that has not been — in the Criminal Code, yes — challenged, so there we are.
Is there anything anywhere in this bill that you have found that would limit the Prime Minister, if clause 43(a) remains in the bill, to asking for confidential advice about any senator?
We were told by our legal counsel the other day that he assumed that this was just for cabinet ministers within the Senate, but I do not see anything in this bill that would limit a future Prime Minister from asking for advice about any senator.
Mr. Saint-Martin: To the extent, as you said, that your position is defined as a public office-holder, then my answer has to be yes. You would be covered by such confidential advice.
Senator Milne: Good reason to take it out.
Senator Stratton: Professor, the case of us being defined as public office-holders — I could stand to be corrected — was found to be held in a court of law. It is not in the act, defined in the act, but it was found in a court case. That has yet to be challenged, so there is a difference.
As we discussed earlier, when I said public office-holder, if a public office-holder, meaning someone appointed to a public office, not necessarily a cabinet minister but at a senior level, runs into a perceived problem with ethics, that case is then referred to the Prime Minister in confidence. That is the issue that we are defining here. It is the critical one on which we want to focus.
If the Prime Minister asked for and obtained information on the ethics of an individual senator, then there would be a substantial and severe challenge to this chamber with respect to that. Believe me, that would be front and centre and challenged in the courts by the Senate of Canada, or individuals within this chamber. I do not think that is on at all. Neither would it be on for the Prime Minister to ask for information with respect to a member of Parliament, meaning a normal backbencher, for the same reasons.
Mr. Saint-Martin: Absolutely, yes.
Senator Stratton: One can go to extremes with the definitions but one must also recognize the essential intention here. Would you respond to that?
Mr. Saint-Martin: You are right to read that into the bill. When it states that the commissioner has the power to give confidential advice, it is not about some private information regarding the behaviour or alleged misbehaviour of one of the Prime Minister's office-holders. It is more about the process of how to deal with this. I do not think the commissioner is an informant, or spy, for the Prime Minister at all.
Senator Stratton: It states in Bill C-2 under the definition of ``public office holder'' that senators are not public office-holders, unless they are ministers.
Senator Day: Are you referring to the definition of public office-holder at 2(1)(d)(ii)?
Senator Stratton: Yes.
Senator Day: It states, ``officers and staff of the Senate,'' not senators. Who are officers of the Senate?
Senator Stratton: The Clerk of the Senate, for example.
Senator Day: It does not refer to senators.
Senator Stratton: That is right.
Senator Day: That is what is being excluded.
The Chairman: Senators are expressly excluded under this definition.
Senator Day: No. It states that public offers-holders means a Governor-in-Council appointee, other than officers of the Senate. There is a double negative there. Thus, it would include those not excluded.
Mr. Saint-Martin: Because you are Governor-in-Council appointees.
The Chairman: No, we are not.
Senator Stratton: It specifically states public office-holder is a minister of the Crown, a minister of state or a parliamentary secretary. It does not talk about a senator or a member of the House of Commons.
Senator Campbell: If we have been declared a public office-holder by the courts, then that trumps whatever is sitting in the bill until such time as it is challenged in the courts and overturned. I am simply saying that we have been declared as public office-holders by the courts, which trumps all.
Senator Stratton: I do not think it would trump this, but I am not a lawyer.
Senator Campbell: Neither am I.
Senator Stratton: As Senator Oliver has stated, Parliament seems to be supreme when it comes to law.
Senator Day: Unfortunately, Parliament has not said anything about senators.
Senator Campbell: Unfortunately, there is a judicial decision in place which says this is what it is. If we want to trump that, then I suppose we can try.
I am not trying to get into a debate. I am not a lawyer. It is sitting there as a judicial decision. It has not been challenged as of yet. Thus, this whole clause is muddy.
Senator Stratton: Let us not get into splitting hairs too much. Under the definition of public office-holder, as Senator Comeau has pointed out, it states ``a Governor in Council appointee.'' That excludes us.
Senator Campbell: As I said, I am not a lawyer. All I am saying is that if the courts have declared that is who we are, then at some point we will have to bring the act and the court decision into sync.
Senator Stratton: In my view, it is right here.
The Chairman: Senator Campbell, the question you raise is a good one. We can put it to the Minister of Justice when he comes back to the committee. I think what he would say is that it is only for purposes of specific sections of the Criminal Code and not other statutes.
Senator Stratton: My view is that this measure trumps the court case.
Senator Day: My view is that if there is any question as to whether senators are or are not, then this proposed act could easily trump any court case.
Senator Stratton: I would throw in members of the House of Commons, too.
Senator Day: They have their own amendments.
[Translation]
Senator Comeau: I would like to get back to the matter of investigations.
You were concerned that the simple fact of undertaking an investigation on someone creates doubts as to that person's integrity. Does this bill improve the current investigative method used by the House of Commons and the Senate?
Mr. Saint-Martin: I cannot be totally specific, but the procedure proposed in Bill C-2 may go somewhat further than the one which has been around for approximately two years, in that members of the public may also intervene by speaking to a member of Parliament. As a citizen, were I to know that a given politician behaved in a reprehensible manner, I could inform my member of Parliament. The door is being opened a little wider here.
Senator Comeau: I understand that. However, there is no change concerning the ethics officer, whoever that appointee may be. He or she has the right and no doubt also the responsibility of seeing to it that any investigation is carried out confidentially, correct?
Mr. Saint-Martin: You are entirely right, because he must in the first instance determine whether the allegation is founded. If the complaint is frivolous he or she will not follow up on it.
Senator Comeau: Last year we saw an example: an investigation was carried out on an MP. The House of Commons Ethics Commissioner even issued a press release indicating that he was pursuing this investigation. This did not really concern the bill as such, but rather the experience or even the judgment of the ethics commissioner. I am referring to the Deepak Obhrai case. The ethics commissioner, who testified before this committee last week, was even rebuked by one of the committees, where it was stated — and I will use the vernacular — that he did not know how to do his job.
I have a second question. You expressed concerns regarding the matter of private and public interest. You would like a clear definition. However, the fact of having a clear definition in the bill excludes the possibility of having a definition in the ethics codes.
The bill contains less information or fewer definitions so that this type of regulation is not overly specific in the bill. Once regulations are in the bill they become enshrined in law. Do you not think, as I do, that the definition should be removed from the bill?
Mr. Saint-Martin: To get back to your first question on the investigation process, that is in fact a decision to be made by the opposition MP. Reference is made to the investigation process for public office holders, hence of government members; it will often fall to the opposition member to make a judgment call. Do I use this information at a press conference, at question period, to create a huge brouhaha, or should I remain silent, but convey the information to the commissioner so that he can carry out a preliminary inquiry in an objective manner?
If the system allows for those two things to occur together, I think we will see a free-for-all. If I ask the Ethics Commissioner, pursuant to information I obtained, to undertake the investigation of a given person, and if in addition the given person is hammered during question period, the confidential preliminary inquiry which the commissioner should have carried out has just been politicized.
Senator Comeau: I am going to weigh my words in order to be more precise. Is it not a bit naïve to claim that if a member is ready to do such a thing under this bill, he would not be ready to do it without the bill? He will do it because he is protected by parliamentary privilege. So the bill will not prevent it. We are in an adversarial system, a system that involves confidence in the government, and the parliamentarian's objective is sometimes to demonstrate that the system allows and may even encourage that way of doing things. I am not always entirely in agreement with that approach. You may be somewhat naive when you say that if we do not pass this bill that will change something; not at all. With the system we have the member may go to the ethics counsellor and say: Here is the information I have, you may want to take a closer look at the situation. As to the decision concerning whether or not the information will be made public or not, the bill will neither prevent nor facilitate that. These are separate issues. You are a bit naive if you think that this will change the adversarial nature of the Parliament of Canada one way or the other.
My next question has to do with the fact that the ethics commissioner becomes an advisor to the Prime Minister. In your presentation, you stated that Bill C-2 does not include the Prime Minister because he is not specifically mentioned.
Mr. Saint-Martin: The advisors to the Prime Minister.
Senator Comeau:You say that the Prime Minister is not a minister.
Mr. Saint-Martin: Exactly, the Prime Minister does not have a department. The definition of a minister is that he has or does not have a department, the Prime Minister does not have one. In my opinion, and I am not a constitutional law expert, the only issue is to know why ministerial advisors are defined as people who advise a minister or a minister of State and why no mention is made of the advisors to the Prime Minister. It seems to me, and I do not know whether or not it is an oversight, that there might be something there.
Senator Comeau: We will certainly consider this matter. If the fact that the Prime Minister is not a minister, we will make sure that it is a minister of course.
You say in your presentation and I jotted the words in English here:
[English]
Ethics rules do not generate public confidence.
[Translation]
Should we consider this as a reason to have no ethic rules?
Mr. Saint-Martin: No, on the contrary, the only thing I encourage you reflect upon, is that too often, in the political debate, for the reasons you have mentioned, in this adversary system where one is to prove that the other one is not good and that we are better, we always say that we must adopt more severe rules on ethics because we want to bolster public confidence in our political institutions.
We all know that over the past 30 years there has been a steady decline in public confidence in institutions and the reasons for this situation are not due to one scandal or another, but they are sociological. Values are different and people have lost all respect for authority. People are better educated, more informed and more critical. I often say to my students that this idea of the decline in of the public confidence in the political process is a bad thing. We might want to think about it. If citizens are better informed, more critical, that is a plus for democracy. I urge you to think that there is no cause and effect link between the two. Even if we were to have more stricter this codes, that would not renew the faith of the citizens in the system. The causes of this decline are sociological, there is no link between the two.
[English]
Senator Day: Mr. Saint-Martin, Senator Stratton was making a point about essential intention. Is that not the problem when you transform a code with grand principles into statutory rules, that it suddenly becomes a legal exercise of interpretation as opposed to being able to use the grand principles that you talked about earlier?
Mr. Saint-Martin: Certainly, because in the process of translating the values and the principles into rules and law you create a less flexible approach. The bill is all about not doing this and not doing that. A preamble with a set of values would be about doing this and doing that, whereas the rules are about not doing this and not doing that. It is all very negative.
The message that one gets from the bill is that these people cannot be trusted because all we see is that they should not do this and not do that. A more values-based approach to questions of conflict of interest and ethics is different. You have more flexibility, but, of course, politically it is not as efficient as a rules-based approach. It shows the electorate that you are serious about this because you are making it a law, not basing it on a code with no statutory basis or value.
Senator Day: Yet, you say that when you put it into statutory form and do not use the rules-based, more flexible, intention-type approach, it does not enhance public confidence in the process.
Mr. Saint-Martin: No, it does not. That is the Catch-22. That is why I am saying that you are damned if you do and damned if you do not. It is very frustrating because the ethics bar continues to move higher and higher, and no one says that maybe we should stop.
Senator Day: I was looking at Justice Gomery's 18 recommendations and could not quickly find where he recommended going from a values-based process to a statutory-based process.
Mr. Saint-Martin: He did not. I did not mean to imply that. I was saying that Gomery had only 18 recommendations, so it was much more economical, if I can use that term, in terms of what should be done to correct the system, whereas Bill C-2 and the other approach is a bit more robust.
Senator Day: If one were watching this at home on CPAC, one would think that what we have been talking about all morning is a reaction to some recommendation of Gomery, but it is not.
Mr. Saint-Martin: It is not at all because the two are totally in opposite directions; in terms of recommending what needs to be fixed, the two approaches are totally different. For Gomery, the problem was in the strong control of the political executive over the bureaucratic machinery. His recommendation was to try to make the civil service a bit less politically controllable by cabinet and the Prime Minister. It was about creating a more independent civil service, whereas this government's approach is about strengthening the independence of the legislative branch in terms of its ability to control the executive by building a stronger Auditor General, stronger Ethics Commissioner, a public appointments commission and so on.
Senator Day: One of the things that Justice Gomery did say is that parliamentary committees should be strengthened.
Mr. Saint-Martin: Absolutely.
Senator Day: Do you see anything we have discussed here this morning that would help parliamentary committees be strengthened to do their job to hold the government accountable?
Mr. Saint-Martin: That is another issue, but the short answer is no.
Senator Day: That is the answer I was looking for.
Mr. Saint-Martin: That is a debate your colleagues in the lower House have had before. In Canada, we strengthen the independent officers of Parliament — like the Auditor General and all the others, the Information Commissioner and so forth — but this does not mean strengthening the power of MPs to do their job on parliamentary committees.
You give them more resources because they can use the Auditor General's report and follow up on it, but that is not the same thing. We should make the distinction. Saying the ability of parliamentarians on committees to have more means, more resources, to do their accountability function is one thing. Strengthening the power of all the bureaucracy that is attached to Parliament is another thing.
Senator Day: Yet, at page 25 of the bill, clause 44 states that if a member of the Senate receives information referred to in clause 44(4) he or she, while considering whether to bring that information to the attention of the commissioner, must not talk to anyone, absolutely no one, about that information. He cannot disclose that information to anyone until the commissioner has issued a report under the proposed section in respect of that information.
Mr. Saint-Martin: Paragraph 5?
Senator Day: We are at page 25, clause 44(5).
Senator Stratton: I think we have been through this before.
Senator Day: Yes.
Mr. Saint-Martin: That is exactly the point I was making to Senator Comeau earlier.
Senator Day: I understood that.
Mr. Saint-Martin: He said I was naive to think that it would be otherwise.
The Chairman: I want to hear the witness's response. Would you mind repeating it? I wanted to hear what you said about it, please.
Mr. Saint-Martin: Okay. If a parliamentarian has confidential information on an alleged misbehaviour on the part of another parliamentarian, obviously he or she will have to make a decision as to whether we use this information in a public manner, with a press conference, or during Question Period to try to score political points against our political adversaries, or shut up and just bring it to the Ethics Commissioner and wait for the commissioner to produce his report.
If I give the commissioner information about alleged misbehaviour and then two hours after I go into Question Period and I raise it before the House and say I know, dear minister, that you have done something wrong, then automatically you politicize the investigation or the pre-investigation that the commissioner is trying to do. That is totally inefficient, in my view.
I think if you decide to give this information to the commissioner, you should not be talking about it. However, that is naive; I am aware of that.
Senator Day: My line of questioning here might have gotten lost with the various interventions that have occurred. My question was this: Does this proposed act help parliamentarians hold the government — and therefore cabinet ministers — accountable? My suggestion to you is that this proposed section, which, in effect, is a gag order if you decide to go the route of the Ethics Commissioner, prevents the parliamentarian from doing what otherwise that parliamentarian might do.
Mr. Saint-Martin: You are raising a question of privilege; and I think that is legitimate, yes. Once you have decided to give the confidential information to the commissioner so that he can initiate his investigation, if you are required to shut up, then that is certainly a matter that affects your privilege as a parliamentarian who has the right to say whatever he thinks should be said in Parliament.
Senator Day: Let me go further than that.
Mr. Saint-Martin: That is an issue.
Senator Day: It interferes with your responsibility to hold the government accountable.
Mr. Saint-Martin: If I follow your logic, perhaps the clause we are referring to is really not necessary, because if you have that information, you will go public with it in the first place.
Senator Day: Or desirable.
Mr. Saint-Martin: In terms of politicizing the work of the Ethics Commissioner, there is a great danger there, absolutely.
The Chairman: Before you go to your next subject, Senator Stratton has a supplementary on this issue.
Senator Stratton: My question with respect to this is not unlike a court case. If someone gets taken to court and it has to do with the government, the minister responsible for that area cannot talk about it. He is held mute under the law. He should not talk about it; if he does, he will be in a lot of trouble. The parallel here is such that, once this is under review by that commissioner, the person bringing that complaint shall remain mute. That is only appropriate.
If he deigns to go to the commissioner, then there are certain rules by which he should operate. The rules clearly state that if he goes to the commissioner, he cannot then also go public. How can you do both? The point is you cannot play that game. If you are going to play that game, there are rules that will apply.
Mr. Saint-Martin: The ideal situation would be the way you just described it, absolutely, but you know much more than I do that politics is all about backroom manoeuvring. You can have one of your aides disclosing the information. It is not you. Then the decision is, will I get more out of letting this information become public than just having people say he should not have disclosed that information because you are not respecting the due process that the proposed legislation creates?
Senator Milne: Are you saying then that, in that case, this part of the bill would actively discourage a parliamentarian from going to the commissioner with something they knew had happened because they then would be limiting their own freedom of speech, which is a matter of parliamentary privilege, which is a matter of their responsibility to the public?
Mr. Saint-Martin: ``Discouraging'' may be a strong word. Frankly, I do not know, because that is basically a political judgment. If you think you have caught a really big fish — you have something solid on that minister to make him or her look bad — respecting the due process for inquiring with the Ethics Commissioner is a minor thing compared to the big payoff if you can direct some dirt at a minister, right? That is a matter of political judgment. However, will that discourage one person to do this? I really cannot tell.
The Chairman: I think you have in front of you a copy of the bill.
Mr. Saint-Martin: Yes.
The Chairman: Section 44(4) refers to information from the public but not from other members of Parliament. It is from the public only. I just hope that you saw that distinction.
Mr. Saint-Martin: Yes.
The Chairman: The second thing, which you probably do not know, is that in the senators' code, section 10 says that once a request for an inquiry has been made, or approval for an inquiry has been given, senators should respect the process established by this code. So there are other ways of keeping control that are enshrined in the code itself.
Senator Day: The senators' code applies to senators, whereas this applies to public office-holders and holding government to account. My interest was in trying to find out how this legislation helps parliamentarians perform their function of holding the government to account. That is what I was trying to understand.
This subsection illustrates, for the second time this morning, how we can get into semantics, with respect to sections and subsections, and their meaning. It will never be perfect, but if we can, through our discussion, improve it even slightly then we have achieved our goal.
I want to point out subsection 5:
If a member of the Senate or the House of Commons receives information referred to in subsection (4) —
That is, information from the public that some cabinet minister may have done something untoward.
— the member, while considering whether to bring that information to the attention of the Commissioner, shall not disclose that information to anyone.
``While considering,'' is what the subsection says. So the parallel about a court case does not really apply. This means as soon as you hear something, if you are at all considering — and who knows whether you are considering or not whether to go to the commissioner or to bring it up in Question Period. Nevertheless, the wording is pretty draconian. ``While considering,'' you cannot talk to anyone.
Senator Joyal: I wonder, Mr. Chairman, if we should not ask for our legal adviser, Mr. Audcent, to report to us on the implication of parliamentary privilege. As you know, the fundamental parliamentary privilege is freedom of speech. This is the essence of the Bill of Rights. With this provision, a parliamentarian would temporarily lose his freedom of speech; there are implications. Would it not be helpful to get an opinion from our legal adviser on the implication of this proposed section?
The Chairman: Senator Joyal, that is possible. A number of senior government officials and officers will be coming back before the committee later on, and they will have heard your question and it may well be that they will be prepared to respond to the issue of parliamentary privilege for senators arising from that.
Senator Joyal: I will put the question on the table because I think it is a very valid issue.
The Chairman: It is a valid question.
Senator Day: I have a question regarding the principles of Westminster. With respect to those seven principles you talked about for the MPs, have you had a chance to compare those to the principles that appeared in the code before the government decided to make it statutory? If we were to be able to convince the government to put in the principles that were previously in the code, would that satisfy the seven principles that you have referred to, or is there more that must be done?
Mr. Saint-Martin: It would be a very good beginning if you were to introduce those principles in some kind of preamble that could be used by the Ethics Commissioner and his staff as some kind of broad framework with which to use all the detailed rules in the code. My answer is yes.
May I ask one question regarding clause 44, on information from the public? Mr. Chairman, you raised a very important issue, in that this applies when a member receives information from the public and that member needs to keep silent until he decides whether to bring the matter to the Commissioner.
My question to you is this: When or in what type of instance would we consider information not to be coming from the public? If someone from your riding has information and he calls your staff, is that not public? My question is: What would be the opposite case? When would an MP have information that does not, from the very beginning, come from the public somehow? If there is no good answer to that question, then the issue of confidentiality and parliamentary privilege becomes even more important to consider.
The Chairman: You are being a good professor in raising tough questions for the committee.
Senator Stratton: I have a problem when we talk about enshrining a set of principles at the beginning of the proposed legislation, because, as I said before, it is redundant. The Conflict of Interest Code for Senators specifically talks about a set of principles under 2(1). The code specifically talks about a set of principles decided on by our long- time study on ethics in the Senate. If those principles are enshrine it in the proposed legislation, as well as in this code and in the House of Commons, would that not be redundant? The principles are in the code and the proposed act refers to the code.
Mr. Saint-Martin: If you are telling me that the code and the proposed act before us have the same statutory value, then, yes, it would be redundant.
Senator Joyal: I do not want to start an argument, but there is a distinction between the code of the House, the code of the Senate and the public officer code. The distinction is that the code for the public office-holder is in the statute. That is why the issue of principles is raised; the code for the public office-holder will be the statute, while for the senators and the MPs, of course, it is their proper code that states the principles.
In other words, if the code of the Senate and the code of the House of Commons were in a statute, there would be only one set of principles, probably. However, since this code, included in the bill, does not contain principles, the question of the appropriateness of principles is raised for the public office-holder, not being a senator or an MP.
The Chairman: Bill C-2 does not remove the existing Senate code; it leaves it intact.
Senator Day: That only applies to senators. There are two other groups. The House of Commons has their own code; the Senate principles do not apply to the House of Commons. Then there is the one that is being put in statute as my friend has just pointed out. The principles have been dropped as it went into the statute and that is what we are talking about: Should there be some principles in relation to that so we can help interpret it?
We have had witnesses that talked about having three commissioners — one for public office-holders, another for members of the House of Commons and another for senators. Others have suggested that perhaps two would be enough — that is, House of Commons and public office-holders could be together as it is today, and the Senate would have a separate commissioner.
Assuming we have to have commissioners and assuming we will have statutory basis for a commissioner, have you given any thought for the best way to set up the regime, given we have three different groups?
Mr. Saint-Martin: My answer would be this: Small is beautiful. By that, I mean — I think I made that argument earlier to Senator Milne — when the government says we will only have one Ethics Commissioner for the three types of officers — senators, MPs and office-holders — implicitly it is making an argument about economies of scale. Why have three organizations doing basically the same thing? That will cost more money, so have only one that will cover everything.
Implicit in the government's position is an argument about economies of scale. I am not sure I am convinced at all by that argument. That is why I am saying that small is beautiful. Why not have an adviser for the Senate and an adviser for the Prime Minister with regard to public office-holders and an adviser for the House? Of course, politically, it is not as attractive as having only one adviser, with the visibility similar to that of the Auditor General. One powerful bureaucracy is highly visible and is politically much more attractive than three organizations that are much more discreet in their function.
Senators and others doing similar work need to have the confidence of someone who is close to their reality, understands their world, is trustworthy and is capable of providing appropriate advice. Having a smaller office for each of the three ``branches,'' if I may, would not be more costly, I believe, but could be more suitably tailored to the needs of the three actors in the system.
Senator Stratton: I will not go to the business of the three ethics officers because Canadians will have a view on that that we can deal with later.
I will return to the issue of the principles in the bill for public office-holders. The bill has not defined deliberately a set of principles for the code for senators or for members of the House of Commons because we have it. I have been informed that the intent is that the same process will be utilized for public office-holders. Under the proposed federal accountability action plan, a set of principles will be established. While that does not exist yet, it is the intention to implement that. Rather than try to define it in the bill as it is defined under the Senate and the House of Commons codes, they will define it in respect of public office-holders.
Mr. Saint-Martin: That will be a welcome addition.
Senator Day: Is the honourable senator indicating that there will be an amendment put forward by the government to provide for that?
Senator Stratton: I said ``the action plan.''
Senator Day: Proposed sections 86 and 87 under the Parliament of Canada Act apply specifically to the rules for the House of Commons and the Senate commissioners, but I do not see anything with respect to similar rules for public office-holders.
Senator Stratton: I am stating simply the intention of the government to the action plan on implementing. As you know, a set of regulations is brought in with every act. This is part of the action plan by the government to state that set of principles.
Senator Day: Surely, a set of principles used to interpret statutory provisions cannot come in regulation. They have to either come in statute or they do not exist.
Senator Stratton: I think we did that in our code.
Senator Day: Proposed sections 86 and 87 specifically provide for it in the statute, but that is only for the Senate and the House of Commons and not for public office-holders.
Senator Stratton: Then let us give the government the opportunity to bring forward its action plan.
Senator Day: Would that be its amendment to the bill?
Senator Stratton: We will look at it then. I would expect the action plan to come forward after the bill is passed.
Senator Day: Mr. Chairman, we are being told that things will happen to affect this bill but that we will not see them until after we, in good faith, pass the bill. That is not the way we should handle this.
Senator Stratton: With respect, we do that all the time with regulations. What happens with a bill once it is passed and the regulations are brought forward? What committee does it go to?
Senator Day: Regulations cannot change the statute but can embellish it. Proposed sections 86 and 87 under the Parliament of Canada Act specifically provide for codes with respect to the House of Commons and the Senate. There is no provision for anything similar for public office-holders.
Senator Stratton: When a set of regulations comes down that describes the set of principles, it goes to the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations.
Senator Day: I understand that. Mr. Chairman, having heard this statement from Senator Stratton, it is my belief that this is another point to be looked at by legal counsel before we are asked to say yes or no to Bill C-2.
The Chairman: As you know, Senator Day, at least two cabinet ministers will be brought back before this committee — namely, the President of Treasury Board and the Minister of Justice. We will ensure that your concerns are put to them so that they will be prepared to address them directly when they reappear.
Senator Day: Thank you.
The Chairman: Mr. Saint-Martin, after your initial remarks, I asked a question arising from your principal argument. You said that ethics rules, whatever their number, do not make government more ethical but that they make people more cynical.
That is your overriding thesis for the major section of your paper. My question is this: Is it better to have rumours and allegations swirling around with no rules or no method of resolving them or to have a regime in place that will deal with issues objectively? My point is that ethics is always a political matter and is not caused by the rules. I believe that in response to Senator Joyal and Senator Stratton, you said that you agree that it does help to have some rules but that the real question is where to draw the line? I would like you to help the committee by telling senators where you recommend that the line be drawn.
Mr. Saint-Martin: That is asking for a great deal of wisdom on my part and I am not sure that I have it.
I was a bit provocative in my remarks because I am certain that the committee will hear from many people that government needs more rules in order to strengthen public confidence in the political process. I was playing devil's advocate based on empirical research as well. Ethics rules might be counterproductive when they become politicized and used as political weapons in a partisan combat. We can have a good ethics regime on paper, but once it becomes politicized, the rules lose their moral authority. That is the problem.
The Chairman: Do you have any recommendations for consideration by the committee? Given the dilemma that you have put carefully to the committee, what would you recommend?
Mr. Saint-Martin: Let us presume senators have an independent ethics commissioner. The message to the public is that this creation of an independent watchdog to look after political ethics in government is truly important. However, when that commissioner's work becomes politicized and people criticize him or her, that is the eye-opener to the fact that despite the objective independence of the office, it has become political. That makes people cynical.
Why not do it in the British way? They have never claimed that their ethics commissioner is independent but rather that he is a servant of the parliamentary committee and is not independent. If the findings of the commissioner are politically used, then, at the very least, Canadians are not being sent a mixed message about an independent and objective system that includes playing politics. Mixed messages create public cynicism.
The Chairman: Thank you for your response to my question.
[Translation]
Mr. Saint-Martin, you said that the decline in public confidence in the political process is sociological rather than ethical. Could you explain that further?
You mentioned a few elements but rather quickly. I think that it is important for us to understand this element clearly because great emphasis has been put on the fact that once this bill is passed, there will be no more problem, everything will be solved. But in practice, when you say that the causes of the decline in public confidence are of another kind, could you please define the kind you are talking about?
The most important argument to take into consideration, if we want to use indicators to measure the efficiency of the regulatory control systems to monitor ethics, is the argument to the effect that we should not use the indicators in use at the moment with regard to public confidence. One is not a measure of the other because there is no link between the two. They should be judged on their own merit but not on the basis of their capacity to bolster public confidence in political institutions. The decline is linked to sociological causes. Mention is made of the decline of deference to the authorities, the fact that religion has lost its influence on the catholic and protestant community, the rise of new values, whether it is feminism, environmentalism, pacifism. All the values which are called post-materialistic values. People want something else from public and political life. All this results in an tremendous growth in people's educational levels, the general enhancement of the middle class since the end of the Second World War. Research shows that there are a number of causes that you could call sociological which explain why people show less blind trust than they did 70 years ago. Therefore, whatever number of ethics rules we adopt, the situation will remain the same. To keep on saying that there is link, in my opinion, is not productive either for politicians, the political class on the one hand, nor for the public confidence in public confidence in institutions because the two are unrelated. Therefore, if we want to adopt stricter ethical rules, let us do it but let us not judge their efficiency based on the fact that they are going to increase or not public confidence. This has nothing to do with it.
Senator Joyal: To paraphrase Pierre Viens, would now be the worst time to adopt ethic rules?
Mr. Saint-Martin: Yes, it is always the case. There is a scandal and then we adopt stricter rules, and each time we do so, we must remember that these rules apply to an increasingly larger area of political activity, in the sense that there are still more links in the net. It is not logical to pretend that we catch more fish with a larger net. As I was saying earlier, now that we have more rules, just the fact that someone conducted an investigation, based on someone's allegations, because the rule makes it possible even if the person in question three weeks later is deemed to have done nothing wrong then, it is too late, the damage is done because the rule has made it possible. In that sense, it is the rule that breeds cynicism.
[English]
Senator Zimmer: Thank you for your presentation today; it has been very enlightening. Several senators have raised this question, and Senator Joyal touched on it also. I should like to go one step further. In law, an individual is innocent until proven guilty. In politics, the reverse is usually true: An individual is guilty until he or she is proven innocent. The problem with that is that even when proven innocent, in many ways, the public and the media often maintain the individual is still not innocent.
We are in an adversarial system. I agree that we need rules, and the simpler, the better. However, there are two other elements out there — namely, the media and the public. We have one issue with the rules, but then we are dealing with the media and the public and the translation from them. There is a further element out there that we must deal with. Senator Stratton this morning confessed he was a double-convicted felon.
Senator Stratton: Senator Zimmer, would you like to clarify that it involved riding a bicycle double.
Senator Zimmer: When we draft this legislation, we must be mindful of the changing times. Case in point: Nowadays, adults drive illegally in different directions, go through stop signs on bicycles, and so on. Today, that is not addressed. We must address changing attitudes within both the public and the media.
In addition to what Senator Joyal said, where would you draw the line or what would you recommend when doing this legislation? How would we do it in a way that the public and the media would not be as cynical as they are today? Are there any suggestions you have today to try to deal with that beyond legislation?
Mr. Saint-Martin: If I had a simple answer, I would probably be a rich person; I would be selling my ideas all over the world. That is the key question. Perhaps it is best to be candid and say, ``We are adopting this bill but we are not sure that there would not be a sponsorship scandal.'' We have raised the bar so high that the public's expectation for the bill will always be disappointing. At the level of political rhetoric, perhaps we could have a more modest approach saying that this was needed but we cannot guarantee that it will make our government 100 per cent clean in the future. I do not expect the Prime Minister to say this — that would be naive — but in an ideal world, he would say that and the other politicians would rally around him. I am not criticizing this government; they all do it — for example, in France and in England. However, when you have an electoral campaign or a political contest where the key issue is ``I am cleaner than you are,'' the public gets turned off. They want to hear about where we are going with respect to the environment, to poverty and to economic productivity. The public wants real policy positions, but we are wasting a lot of good political time accusing each other of things that are not even founded. That does not help people to get reengaged in the political process.
Senator Zimmer: Professor, would you agree that, sometimes, with good intentions, we have set the bar so high that we can never achieve it?
Mr. Saint-Martin: Absolutely. It is the law of unintended consequences. You want to do something better, but five years later this causes another unanticipated effect. That is why we need to keep ourselves modest, because people expect so much of government. We need to remind people that government is made of people like them. Government cannot do it all the time.
Senator Zimmer: Thank you, professor.
The Chairman: Mr. Saint-Martin, thank you very much. This has been a wonderful session, and I appreciate your candour in answering a variety of questions from senators.
Honourable senators, this concludes our morning session.
The committee adjourned.