Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 17 - Evidence
OTTAWA, Tuesday, November 28, 2006
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 5:05 p.m. to give consideration to the motion, together with the message from the House of Commons dated November 21, 2006, concerning Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability; and to give clause-by-clause consideration to Bill S-3, to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, at this meeting we are dealing with a motion together with the message from the House of Commons dated November 21, 2006, concerning Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability. As you know, we do not have before us now the bill; rather, we have the motion and a message. What are not before us tonight are those parts of the bill that were agreed to by both the House of Commons and the Senate. We are now considering those amendments that were not accepted by the other place and those amendments that were accepted by the other place but with changes to them.
Tonight, in order to deal with some of those aspects of the message, we are delighted to have with us Mr. Mark Audcent, Law Clerk and Parliamentary Counsel, and Mr. Michel Patrice, Parliamentary Counsel, both of whom are very well known to this committee.
Honourable senators will know that, by Senate order, we have to report this bill back to the chamber on or before December 7, 2006. The steering committee had a meeting this morning to produce a work plan for dealing with Bill C-2 and other legislation before the committee, and that is being circulated.
After the witnesses make their presentation this evening, and after honourable senators have an opportunity to pose questions to them, we will move to a clause-by-clause consideration of Bill S-3 and then go in camera for consideration of observations.
Senator Andreychuk: The steering committee met and, you said, wanted witnesses. Could we be advised who wished to have witnesses? Did the steering committee take a position as to whether to accept the message from the House, and what is the position? I am a little baffled. We received the amendments and the changes from the other place. We could have accepted and yielded and worked within that framework. We also have the right to change that and send another message. Has the steering committee taken a position on the message that we received? At whose call are we hearing witnesses? We would like that for our information and also for the record.
The Chairman: The steering committee has not taken a position on the message. The Senate committee was directed by the Senate to have the message come here and to conduct hearings. With that mandate, the steering committee met and reviewed names of potential witness. The first of those witnesses that the steering committee wanted to hear in relation to the message are the two gentlemen before us tonight. The steering committee did not take a position, but the steering committee is acting on the directive of the Senate, which directed this committee to hold hearings.
Senator Andreychuk: We have had messages here before, and we have discussed what to do with them before proceeding further. I presumed there was some decision taken to call witnesses at the steering committee.
The Chairman: That decision was taken, yes.
Senator Andreychuk: Was it requested by one of the members, or on behalf of the opposition side, or what?
The Chairman: You have had a lot of experience on this committee, and I have had virtually none. However, the meetings of the steering committee are confidential, so I have to be careful with what I say before the committee.
Senator Andreychuk: It is news to me that steering committee meetings are confidential. I thought you met on behalf of the committee, and we have a right to know what the steering committee does. You act on our behalf. I did not know they were confidential. I will look into this. That is the first I have heard of it. My understanding is that steering committee meetings were never confidential, unless there were a reason related to a particular topic.
Senator Milne: Senator Oliver is correct. Steering committee meetings are confidential, but since I was there and was part of it, I am pleased to tell you that the witnesses suggested were suggested by our side, and we are keeping them to a real minimum.
Senator Day: That does not mean that this committee might not decide to hear additional witnesses.
Senator Milne: That is right.
The Chairman: I should like to call on the witnesses. I understand there is only one presentation and, Mr. Audcent, you will be making it. Following your presentation, honourable senators will pose questions to you both.
Mark A. Audcent, Law Clerk and Parliamentary Counsel, Senate of Canada: Thank you very much, Mr. Chair, and good afternoon, honourable senators.
Your mandate is to review the House of Commons' message concerning the Senate's amendments to Bill C-2, as the chair has told us. I understand I have been invited to assist you in reviewing the amendments that concern the office of the Senate Ethics Officer, the amendments concerning parliamentary privilege and the amendments concerning the role of the Senate. That is what I understood my invitation to be concerned with.
With respect to the office of the Senate Ethics Officer, the issue before you is whether to continue on with the present regime of having a separate Senate Ethics Officer or whether to accept the goal expressed in the message from the House of Commons of a unified conflict of interest and ethics commissioner who could bring a broad perspective to bear on conflict of interest and ethical matters.
In this regard, I note an article that appeared on page 13 of yesterday's The Hill Times written by our Senate Ethics Officer, Mr. Jean T. Fournier. In the article, Mr. Fournier refers to the situation in the United States, the United Kingdom and Australia. He notes that, in each of those countries, each House controls its own ethics regime, including its own code, as does the executive, and that no one officer has jurisdiction over more than one of the bodies. Of course, every country is unique. In Canada, the government has now concluded that the public interest would be best served by a single ethics officer. Mr. Fournier ends his article by asking this question: "Could it be that in ethics, small is smart?" You are left to choose.
In my presentation to you on September 6, I raised several questions that remain on the table as long as the option of a single ethics officer is being considered. We give those questions to you again: What exactly are the attributes of a regime run by a single ethics officer that will enhance accountability and public trust in the integrity of government? Can one officer manage three distinct codes and regimes for three separate institutions that may come into conflict? Are you satisfied with the shared appointment mechanism? Are you satisfied with the shared removal mechanism? Will the Senate and individual senators be better served under a new ethics regime? If there is to be an assistant Senate ethics officer, do you want a guaranteed role in the selection, appointment and removal for cause of that officer? Should there be a clause allowing the Senate, after giving due notice, to unilaterally withdraw from a regime that proves to be unsatisfactory? I believe those are the questions that are left on the table for your debate as you consider the option of moving to a unitary regime.
I now turn to the amendments concerning parliamentary privilege. The classic definition of parliamentary privilege is set out in Erskine' May's treatise The Law, Privileges, Proceedings and Usage of Parliament as set out at page 69 of the twenty-first edition. It reads:
Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.
Redlich, in his text The Procedure of the House of Commons, 1908, in volume 1 at page 46, defines the parliamentary privileges of the British House of Commons as:
The sum of the fundamental rights of the House and of its individual Members as against the prerogatives of the Crown, the authority of the ordinary courts of law and the special rights of the House of Lords.
A third useful definition can be found in Hatsell's text, Precedents of Proceedings in the House of Commons, third edition, volume 1, at page 1. He defines the privileges of Parliament as the rights that are "absolutely necessary for the due execution of its power."
[Translation]
With respect to our institution, the privileges of the Senate of Canada are guaranteed by the Constitution and firmly entrenched in the Constitution Act, 1867. In 1993, in the matter of New Brunswick Broadcasting Co. v Nova Scotia (Speaker of the House of Assembly), commonly referred to as the Donahoe case, the Supreme Court of Canada held that every legislative assembly has inherent privileges, by virtue of the fact that it was created.
Furthermore, section 18 of the Constitution Act, 1867, expressly confers parliamentary powers on the houses of the Parliament of Canada as follows:
The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the Members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the Members thereof.
Section 4 of the Parliament of Canada Act completes the legislative description:
4. The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise
(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and
(b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.
[English]
If I can move from the official formulations to a more simple expression of what is at stake, the privileges, immunities and powers of the Senate and of senators are the parliamentary rights that you need to function. At the heart of your parliamentary rights is the right of each individual senator to attend, to speak and to vote, and the corresponding right of the Senate to the attendance, advice and vote of each individual senator. Inextricably intertwined with these rights is the right of the Senate and each individual senator to autonomy and independence from the other place, the executive and the courts in carrying out your parliamentary functions.
Honourable senators, you are the present-day stewards for the Senate and individual senators of your parliamentary rights. While your overriding duty is the public interest, one aspect of that duty is to guard the Senate's rights and to protect the ability of the Senate to serve Canadians and the Canadian public interest by maintaining your autonomy and authority as against the House of Commons, as against the executive government and as against the judiciary. In this regard, rule 43(1) of the Rules of the Senate expresses that duty in the following words:
The preservation of the privileges of the Senate is the duty of every Senator. A violation of the privileges of any one Senator affects those of all Senators and the ability of the Senate to carry out its functions outlined in the Constitution Act, 1867.
Honourable senators, with regard to Bill C-2 and its impact on parliamentary rights, you have now done your due diligence. You have informed yourselves as to the provisions of Bill C-2 that have an impact on your privileges, immunities and powers and those of the other place. You have informed the other place and proposed amendments to the bill that would protect those parliamentary rights. Your amendments that have been refused have been refused, as we say in French, "en connaissance de cause."
You are now left in the position of assessing whether any or all of the proposed derogations from parliamentary rights are acceptable to you. One test available to you for the purposes of that assessment is the test of proportionality: Are the accountability and transparency benefits to be deprived by derogating from privilege sufficient to justify the derogation?
Honourable senators, the last category of amendments on which you may wish to hear from me is that of amendments regarding the role of the Senate. You will remember Bill S-8 — to maintain the principles relating to the role of the Senate as established by the Constitution of Canada — introduced two Parliaments ago by Senator Joyal in the first session of the Thirty-seventh Parliament. It will be up to you to examine the appropriateness of each case in which the Senate has claimed a role that has subsequently been refused by the government and the House of Commons.
Honourable senators, this concludes my opening remarks. Mr. Patrice and I will be pleased to answer your questions. In our review of the engrossed amendments and the message, we determined that the key amendment with respect to Senate Ethics Officer was amendment 54. However, there are over 30 related amendments. As for parliamentary privilege, we thought it would be amendments 2, 6, 19, 29 and 30 that might interest you. As to the role of the Senate, we concluded that amendments 107, 109, 110 and 148 might have attracted your attention.
The Chairman: Thank you, Mr. Audcent, for that wonderful overview. You not only outlined the essence of what you told us when you last appeared, but you reviewed the message and you reviewed what happened in the House of Commons and restated the position with respect to privileges and have now laid before us a very clear set of options that we might want to canvass. Thank you for that clarity.
You said this before and you have said it again today — that is, that at the heart of our parliamentary rights is the right of each senator to attend, to speak and to vote. In those three rights, is any of that taken away in the message that we have before us?
Mr. Audcent: The answer is yes. The example that comes to my mind as you ask me the question is that people who are ministers are required under the Conflict of Interest Act not to vote. Therefore, that would be an example of where there would now be a law that would say that a particular person could not vote and that the house would not be entitled to that vote. I think the impact is much greater in the other place than it is in this place, given the number of ministers in the other place and the number of ministers in this place. Of course, there is an impact wherever there is a minister.
The Chairman: Now we have two.
Senator Joyal: I think there is another amendment in the message that we have received that affected the right to speak. If I read the amendments, it is the one that prevents a senator from raising an issue in the Senate that would have been the object of a complaint to the ethics commissioner. I believe it is clause 44(5), which states, in part:
If a member of the Senate . . . receives information referred to in subsection (4), that member . . . shall not disclose that information to anyone.
Clause 44(6) states in part:
. . . a member of the Senate . . . has failed to comply with the confidentiality provision of subsection (5), the Commissioner may refer the matter . . . to the Speaker of the Senate . . .
In other words, there is a clear statutory prohibition for a senator to raise an issue in the Senate, which is his freedom of speech, certainly the freedom of speech is the most fundamental privilege or right of a member of Parliament or a senator, so his freedom of speech is affected there on a statutory basis. Not only that, but there is even a recourse, if a senator fails to raise the issue in the Senate. To me, it is a reduction of one of the three rights of the senators to attend, to vote and to speak. You talk about the vote but this is about the "speak" part. To me, there is an even greater impact on the privileges of the Senate, because section 16 of the Conflict of Interest Code for Senators already prohibition a senator to vote on an issue whereby he or she has a conflict. We already have a limit in our code to the voting rights of senators.
Clause 44(5) and (6) does not have any corresponding limit in our code presently that would affect the right of a senator to speak. This is a statutory prohibition. Therefore, it is in fact a prohibition that is justiciable. It is an important limit to the privilege of one senator — and that is my first question.
My second question is: Do you know of any other Canadian statute whereby the freedom of speech of a senator or a member of Parliament would be so affected, or is this the first instance to our knowledge whereby the right to speak in the Senate or in the House of Commons would be formally affected by a statute?
Mr. Audcent: Honourable senators, with respect to the first amendment that I mentioned, which affected voting, there is also a limitation there on debate. Senator Joyal has raised a very important point, that the prohibitions are being placed in statute law as opposed to being placed in the rules of the two houses, where the houses have the capacity to address them. I acknowledge that point.
With respect to Senator Joyal's main question concerning subsections 44(5) and 44(6) of the proposed conflict of interest act, it is interesting. I agree that there is a limitation on the right of a member to speak in the chamber. This provision is a peculiar construct, because it seems to be triggered by receiving information from a member of the public and then remitting that information to the commissioner.
I do not know how this will work in practice. We can only speculate, and your speculation will be as good as mine. In practice, this provision may have the effect of keeping people from reporting to the commissioner. Why would one take the risk of being responsible for this prohibition? One simply does not go to the commissioner but to the press and to the floor of the chamber with one's information, and in that way subsections (5) and (6) have not been triggered. The advice one would likely receive is not to bother going to the commissioner, because as soon as one does, the person has put himself or herself in a box where they have lost their freedom of speech.
Senator Joyal is right: One's freedom of speech is limited having made the honourable decision to go to the commissioner and give him the information.
Then Senator Joyal asks me if I am aware of any analogy in statute law. I cannot think of any analogy in statute law. Offhand, the closest analogy I can think of is the sub judice role. Once again, the sub judice role is a convention of the chamber. It is not a statute; it is internal to the Senate.
As a house, it is agreed it is best not to discuss things while they are being examined in a forum. The concept of not discussing things while being examined in another forum is not a foreign concept. It is the placing of it in a statute that raises issues, along with the impact and how it will play out. What will the impact of this be on how senators will conduct themselves?
Senator Joyal: On the same point, during your presentation, you referred to the principle of proportionality. In other words, you are saying that if we accept that limitation, we provide a benefit, and is that benefit greater than the limit to our freedom of speech? That is essentially the reasoning you have expressed to us.
The problem I have with this clause in terms of proportionality is that a senator would be barred from raising the issue but the person who would have informed the commissioner and who happens to be free on the street would be totally free to raise the issue with the press, or with anyone, and would have no limit to his or her freedom of speech to speak about the issue that the senator would have been informed of and would be wrestling to make the complaint to the commissioner.
With respect to the sub judice role, if you try to make a parallel, it seems to me there is an incongruity in this one. The person who would have any reason to raise the issue would be the senator in the chamber, and the person who would be limited in raising the issue would be the person who made the complaint. Therefore, the complainant is being treated fairly.
Presently, your practice involves barring the senator from raising the question, but the source of the complaint is left totally free to speak about it. That is where I have problems reconciling both.
I do not see the test of proportionality, as you have outlined, being the measure of acceptability of the limit, satisfied with the fact that it applies only, in effect, to the person who should be free to raise it in the chamber with the protection of the chamber. When we raise an issue in the chamber, we are protected by our privilege.
Mr. Audcent: If you go to the test of proportionality, the price you pay is an infringement of the privileges, immunities and powers, the freedom of speech of a senator, introducing that concept into legislation and setting a precedent. These are all elements of the price that you pay.
You are saying that the benefit you obtain is that the particular member of Parliament or senator cannot speak. However, as you pointed out, all that person must do is ask the person from the public to go to the press.
Senator Joyal: In fact, the privilege under the investigation of the commissioner would not be protected because someone off the street can go to the press and speak about it at any time.
Mr. Audcent: Yes.
Senator Baker: That is an interesting question. I do not want to belabour this issue, but I address the question in a different way.
An offence is being created here that, if the senator breaks this law, the senator will have broken the law if the senator does that which the proposed act states a senator cannot do in this particular instance. Therefore, an offence has been created.
If the offence has been created, then how do you see the offence being prosecuted or a judgment made against the senator for breaking this particular new law — since what would come into play is exactly what Senator Joyal has pointed out, our parliamentary privileges. How do you see that playing out?
Mr. Audcent: Honourable senators, a very salutary provision in this proposed act is clause 63, which provides that section 126 of the Criminal Code does not "apply to or in respect of any contravention or alleged contravention of any provision of this act." To begin with, at least we are not looking at a criminal offence for breaching a statute of Canada. That is a very good beginning.
Then we reach proposed subsection 44(6), which seems to be providing for a follow-up. It states:
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.
Clearly, something is provided to the Speaker.
You are aware, of course, that in the two houses the Speakers have different mandates and different roles, and so each house must look at this provision from its own perspective. It does not say what the Speaker will do with it. That means that the Speaker will have to reach an understanding with the House, or perhaps the House can have a debate and provide instruction to the Speaker as to how these matters are to be dealt with when they are reported to him.
Clearly, we get as far as a report to the Speaker of the Senate, but we do not get beyond that.
Senator Baker: This is a justiciable subject.
Senator Day: As a point of clarification, we are talking here about proposed section 63 of the proposed conflict of interest act, which is on page 32.
Senator Joyal: The other question I have is what I always understood as being the privilege of each house of Parliament individually to exercise discipline over its members respectively.
I will read section 18 of the Constitution, which you have quoted:
The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by their members thereof respectively, shall be such as are from time to time . . .
I never read those privileges, immunities and powers to be exercised jointly. The way the sentence is drafted, is "exercised by the Senate and by the House of Commons." It is clearly written down that the privileges belong to each House and are exercised by each House. There is nothing in there where one can infer that those privileges must be exercised jointly. They might be the same, but they are not exercised in conjunction, together.
Is it not true that the privilege of the discipline over members is a privilege that belongs individually to each House and not a privilege that belongs in common? In other words, each House has its own privileges and each House exercises its privileges as an institution, as a house. I am not talking about the senators individually. Earlier, we were talking about freedom of speech; we were talking about the senators individually at proposed sections 44(5) and 44(6). However, when you merge the commissioner and the SEO, what you do in fact is take the privileges of the Senate to discipline its members and the privileges of the House of Commons to discipline its members, and you put those two privileges individually under the same heading. That is how all the questions you have raised below — how are we involved in appointing, removing, and in determining if there is a dismissal for cause — will be exercised.
Conceptually, in terms of what the Constitution says and the way I have seen the court interpreting it in Canadian law and jurisprudence, those privileges belong en proper. In other words, they are the exclusive ownership of each House independently from one another. That is one of the reasons the code of ethics we have developed in the Senate might be different in a way from that of the House of Commons, because we have a role to exercise in the legislative process that is different from the other one. We are composed differently from the other place. I do not want to go into details.
I want to get your comments about the fundamental distinction between the separation of the two Houses in relation to privileges essentially, because this is the question we are interested in here.
The Chairman: Mr. Audcent, do you think they are mutually exclusive, as suggested?
Mr. Audcent: I am having trouble with the words "mutually exclusive" because they are shorthand and I will have to give my position a little more widely.
To begin with, the Constitution and section 18, I agree with Senator Joyal that the section gives to the Senate the privileges, immunities and powers of the U.K. House of Commons and gives to the House of Commons the privileges, immunities and powers of the U.K. House of Commons. The point was that the Senate was not to get the privileges, immunities and powers of the House of Lords. This is a separate grant to the Senate and a separate grant to the House of Commons of the privileges, immunities and powers of the U.K. House of Commons.
Then what it says is that the Parliament of Canada will decide by statute what the privileges, immunities and powers will be. So you go to the Parliament of Canada Act, and the Parliament of Canada Act picks up the same theme in section 4, where it states:
The Senate and the House of Commons . . .
(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom . . .
We have each House exercising its own privileges, immunities and powers, including the privilege of discipline over its staff. The power to discipline staff belongs to each House separately. The Senate has the power to discipline its members; the House of Commons has the power to discipline its members.
The question then becomes the capacity of the Senate to manage that. It is clear that, if it manages it within the Senate, it is not a problem. The question then becomes: What if it wants to have its own code but is prepared to cede and have a compromise position to share a common officer with the House of Commons, where the two Houses would share a common officer to do the Commons code in the Commons and the Senate code in the Senate, and, as the case is, the Prime Minister's proposed Conflict of Interest Act for the executive?
I do not think it is beyond the power of the Senate to decide that it is prepared to do this, that it is prepared to acquiesce in an act that will allow this to happen. I think it is within the power of the Senate to decide to share a common officer. I think it is within the power of the House of Commons to decide to share a common officer. Whether it is wise, whether you should do it, is up to you. Does it derogate from your privilege? Sure it does. It may or may not be a wise decision, but that is up to you.
I shall return to a theme in both my presentations, the one in September and this one. I should like to suggest that you think about the possibility of an escape hatch, in the event that this arrangement does not work well. I would ask you to think about that.
The way it now stands, it is a permanent arrangement. The House of Commons will not be able to get out of it without your approval, because that will take another law, and you will not be able to get out of it without their approval. As you are going into this arrangement, I would ask you to consider whether there is any desire on your part to consider the possibility of a clause that would allow the arrangement to be terminated on an administrative basis, without returning to Parliament, by either House unilaterally if it feels this new arrangement is not serving the interests of its House.
Senator Joyal: On the basis that the disciplinary function belongs to each House individually in the context of a Constitution similar in principles to that of the U.K. — as you know, the introductory "whereas" clause of the Constitution provides that we will have "a Constitution similar in Principle to that of the United Kingdom."
Do you know of any parliament based on the U.K. system where responsibility to discipline members has been merged into one single officer?
Mr. Audcent: Honourable senators, in my opening remarks, I told you that the Senate Ethics Officer was reported in The Hill Times as saying that in the United Kingdom, the United States and Australia there are separate regimes for the different bodies. That is a partial answer.
Do the Houses sometimes share their right to discipline their members with other bodies? Yes. For example, under the perjury provisions in the Criminal Code, if perjury takes place before the Senate, the matter can be prosecuted as perjury before the judicial courts. Where something goes terribly awry in the institution and a perjury takes place, you have shared the power and allowed the courts to intervene to prosecute the perjury. There are examples, albeit very rare.
Senator Joyal: That is not the overall responsibility. Perjury is a limited criminal offence. It is an offence within the Criminal Code. We would recognize that the Criminal Code applies in the procedure of the Senate or of the House of Commons if perjury were found to have been committed.
Then, of course, that would be a criminal offence, and that is why we have recognized and the procedure has recognized that the court can intervene in such a case. The Senate or the House of Commons would have yielded its responsibility to the court to proceed because it is a criminal offence and of a serious character because it could involve imprisonment. That is the essential context or frame within which, for a specific offence, the Senate or the House of Commons might have yielded its privilege.
However, I am talking here about the overall responsibility of discipline of one House being yielded to the other place because the other place has a greater number of members, because that is the way it would function in the particular context. The other place, of course, exercises its discipline in a different context than the Senate, for obvious reasons. The other place exercises its discipline in conjunction with the principle of responsible government as far as the ministers are concerned. The discipline in the House of Commons is exercised totally differently than in the Senate, because the implications are totally different than in the Senate. That is why I am trying to understand this not only in terms of the principle of separation but in the practical terms of operation. Sometimes in the principle you might not see that there is a fundamental objection but, in the practice of it, you realize that there is a sea of implications if you just accept the principle of merging the two.
Mr. Audcent: I am not sure that I would concede that what is proposed is a complete cession by the Senate of its right to discipline its members. There is the adoption of a common administrative structure, but the right to establish what the code is, the code itself, remains with the Senate. It is the Senate that will determine what the code is. What you are doing is using a common administrative structure for its administration, whatever the reasons are for doing that. An example of a common administrative structure, not in the area of discipline, is the Library of Parliament. It is a joint service that services you both.
Can the two Houses ever get together and decide to share a joint administrative structure? I think the answer is yes. Is it wise to do it in the area of discipline? Is it appropriate where privileges, immunities and powers are affected? That is a question for you to decide. That is where you have to look at the proportionality test.
Senator Joyal: With the greatest respect to you and to Mr. Patrice, there is a sea of difference between the Library of Parliament, which does not carry out a privilege activity, and the privileges of discipline. In one context, it does not affect the privileges of the Senate to organize its work the way it wants. In the other one, it is a clearly stated transfer of privileges to an officer who, by definition, would be under the control of the other place for X, Y, Z reasons.
You asked in your questions the following: Are you involved in suggesting the name? Are you involved in removing the name? Are you involved if the trigger of non-confidence happens to be opened in the other place? The implications are enormous in terms of operation. I think the parallel you have made with the Library of Parliament is not within the confines of section 18 of the Constitution at all, because the privilege over discipline is a stated privilege recognized by the court, and recognized, as you know, since the Bill of Rights, 1689, section 6, if I remember correctly. Senator Baker will correct me if I am wrong. That is essentially what it is.
I think the two are totally different. In the case of discipline, I think it undermines the capacity of the Senate to act as a check on the other place, because it tilts the balance of the relationship between the two Houses. In the case of the Library of Parliament, it does not. There is a complete difference of impact and nature between yielding the initiative to the other place in terms of discipline and maintaining the autonomy or discipline to maintain our capacity to exercise our independent sober second thought, as the Supreme Court has said about the Senate and as everyone recognizes around the room. That is the nature of our institution and our role.
That is essentially why the differences of exercise of privileges have been determined in principle, to maintain that kind of capacity to check the other place. At the very moment that you yield to the other one the chunk of the initiative in exercising the disciplinary function, you really put yourself at bat with the other place, which I think is inimical to the principle of autonomy and independence of the Senate.
Mr. Audcent: If I can summarize our common position: As I said in my presentation here in September, as your Law Clerk and Parliamentary Counsel, I am duty bound to look at this from the position of your privileges, immunities and powers. When you look at what is presented to you from that perspective, I expressed my preference for maintaining a separate Senate Ethics Officer. However, I have also pointed out to you that there are other interests that must be taken into account. There is the public interest and the government's perception of the public interest. There may be cost factors. It really has not been fully explained what the benefits of a unified ethics commissioner are. However, I know that you as senators need to take into account all of these factors in making your decision.
Senator Day: Thank you, Mr. Audcent and Mr. Patrice, for being here. I appreciate the tests that you have helped us understand.
I should like to focus on two or three examples of these different categories that you have told us about. First of all, the numbers that you gave us in each of the categories, parliamentary privilege, SEO, and role of the Senate, those numbers were the amendment numbers; correct?
Michel Patrice, Parliamentary Counsel, Senate of Canada: Yes.
Senator Day: What we have to do when we are applying this test is look at the amendment number and go to the list and find that amendment, and then find our way from that amendment into the proposed act so we can understand it.
First, could we talk about the Senate Ethics Officer, amendment 54, and a number of other related amendments? I am not asking you to go to those in this particular instance, but I would like to ask, because that is a group and a subject all itself, are you treating that as something different from parliamentary privilege?
Mr. Patrice: Yes, we are.
Senator Day: Could you explain to me how that differs from parliamentary privilege? Does the Senate Ethics Officer have a higher constitutional consideration or a lower constitutional consideration?
Mr. Audcent: I think, senator, we just took the SEO as a package because it is such a large package. One key amendment, number 54, does the deed, but there are 30 related amendments. We said: "Okay, this is a discrete package that we can present to you." It is interesting with respect to the SEO amendments that you do not need to go through all the amendments because they are consequentials. If you are not going there, then you do not need to consider all of that, but if you are going there, then you need to do the work that is not yet done, which is to consider all of the questions that I have raised for you about if you were to agree to a unified officer, what are your answers to all of these questions that I have asked.
Senator Day: That test, as I understood it, was the test that we apply in the parliamentary privilege amendments?
Mr. Audcent: I treated the SEO as a separate issue. You can look at that as a separate, self-contained issue.
Senator Day: Can we look at it as part of the group of parliamentary privilege issues?
Mr. Audcent: You could add it in as an additional one in the parliamentary privilege. I just put natural groupings the way I saw them.
Senator Day: It is not merely a policy issue and a balancing of whether we accept this policy or not policy. It has other ramifications to it is the point I am trying to get to.
Mr. Audcent: It certainly has ramifications for privilege.
Mr. Patrice: Yes, and certainly in terms of privilege, the SEO could be seen as a parliamentary privilege issue, since it deals with governing the conduct of the members of the Senate in terms the proceedings of the Senate. So, yes, it could be perceived as a parliamentary privilege issue.
Senator Day: In the grouping that you gave us, I circled one and looked for it, and then I understand there was another one was added, 44(5). I would ask you to turn to amendment 30 — clause 2, page 32. It is replacing lines 29 and 30 on page 32, in clause 2, of proposed section 64.
What we had proposed was removing the words "subject to subsection (6)2 and sections 21 and 30," and then it says you can exercise your parliamentary privileges without being subject to those other sections of the act.
Mr. Audcent: That is correct.
Senator Day: Could you explain to us how that is an issue of parliamentary privilege?
Mr. Patrice: First, since there was an amendment in the committee to delete proposed subsection 6(2), which was basically the prohibition from debating and voting for a public office-holder, frankly, there was no justification at that time to put in proposed subsection 64(2) that "subject to subsection 6(2) and sections 21 and 30 . . ." Sections 21 and 30 are the consequences of subsection 6(2). One deals with recusal and the other deals with compliance when a public office-holder would be in a conflict of interest. I would say that amendment 30 and amendment 6 are closely interrelated or linked.
That goes back to proposed subsection 6(2) at page 6 of the bill.
Senator Day: Proposed section 64(1) went through a history all its own, which we do not have to deal with now, but can if we like. That was the amendment made in third reading, then it went to the House of Commons and they have introduced again subject to 6(2) and 21 and 30.
Mr. Patrice: That is right; 64(1) I would perceive prior to the amendment as a permissive section in terms of validating activities on behalf of constituents. However, the other place came back with their message with an amendment — "Subject to subsection 6(2) and sections 21 and 30, nothing in this Act prohibits a member of the Senate or the House of Commons who is a public office holder or former public office holder from engaging in those" activities that he or she would normally carry out as a member of the Senate or the House of Commons.
Senator Day: If I could define this the way I am understanding this, it is saying acting as a senator or as a member of the House of Commons you have all your privileges, but you will be subject to certain other restrictions to doing that in this proposed act.
Mr. Audcent: It is an express recognition that you do not have all your privileges, that your privileges are being derogated from by 6(2) and by sections 21 and 30, and it is within your power to do that. It is a policy choice.
Senator Day: We have to decide whether we will apply the test as to whether that is a good idea or a bad idea. I understand that, thank you.
If we could look to the role of the Senate, the last category, amendment number 107 — and I will find that one for you and we will take a look at it.
Mr. Audcent: It is at page 105.
Senator Day: It is page 105 of Bill C-2. It is amendment 107 — "a person named by the leader in the Senate of each recognized party in that House." What we were trying to do here is have a role for the Senate in an activity that the House of Commons was going to have but the Senate was not. Is that correct?
Mr. Patrice: That is correct — in the selection committee that would consider a candidate for the position of director of public prosecutor.
Senator Day: We received a comment back from the government on this one. That comments is as follows:
Amendments 107, 109 and 110 would involve members of the Senate in the appointment and removal process for the Director of Public Prosecutions. As this is a body housed within the Executive branch of the government, the involvement of the Senate in the appointment process is inappropriate;
That is the answer we got. Why could you not apply that answer to involvement of the House of Commons as well? Can you explain why in the House of Commons it is appropriate but in the Senate it is not appropriate?
Mr. Audcent: I am afraid I cannot, honourable senators, because you would be asking me to defend the government's passage and its explanation.
What is interesting about your question, senator, is that it not only applies to the director of public prosecutions but also applies in amendment 148, in relation to the public appointments commission. That triggered an interest on our part and I looked at the Public Service Employment Act.
Senator Day: It is the same argument.
Mr. Audcent: Yes, it is the same argument, so what is good for one is good for the other and their reasoning is applicable to both.
When I went to the Public Service Employment Act, which creates the Public Service Commission, I found that in section 4(5) the following: "The President and other Commissioners shall be appointed by the Governor in Council. The appointment of the President shall be made by commission under the Great Seal, after approval by resolution of the Senate and House of Commons.
Therefore, I thought to myself, why can the Senate be authorized to adopt a resolution for the Public Service Commission but not for a public appointments commission? If it is good for the public appointments commission then why is it not for the DPP — and so you work backwards.
Senator Day: That is very helpful. I could not understand the reply we got back. I was trying to make sense out of it — and I said to myself that I know somebody that might be able to help me on that — and I appreciate your comment.
The final one is the amendment at the bottom of page 105 of the bill — amendment 109. The last two lines, 41 and 42, on page 105 page read: ". . . to a committee designated or established by Parliament for that purpose." That is the same argument for 109, which is that the Senate should not have anything to do with this. How does that argument that the government says the Senate should not have anything to do with something housed in the executive have to do with that amendment to establish by Parliament for that purpose?
Mr. Audcent: The amendment to 4(4) on page 105 — I find it very difficult to understand the language that is being defended. I shall quote 4(4):
The question of the appointment of the selected candidate shall be referred for approval to a committee designated or established by Parliament for that purpose.
Of course, Parliament can only speak through laws. Parliament is the Queen, the Senate and the House of Commons. Hence, that cannot be what they mean, that you would have to pass a law in order to create a commission in order to receive the referral for approval.
Then you ask: What do they mean? You go to the French version, and it says:
[Translation]
(4) Le choix du candidat est soumis à l'examen d'un comité parlementaire désigné ou établi pour la circonstance . . .
[English]
Then I say, that is a committee that is parliamentary in nature. In other words, it is not a committee of the judicial or executive branches. It is a committee in the parliamentary branch. So then I say, the English is badly worded, but at least I can figure out what it means if I look at the French.
Then I relate it to the objectives of whether the Senate is included or not. It seems to me that, if House of Commons committees can be called parliamentary committees, then Senate committees can be called parliamentary committees as well. Now there is a race to the post about which House can get the referral to their committee first. What if the Attorney General happens to be a senator at that particular point?
Senator Joyal: I do not want to insist on this interpretation. The English version cannot be accurate because it would involve the Queen. According to section 17 of the Constitution: "Parliament . . . consisting of the Queen, an Upper House styled the Senate, and the House of Commons."
The French version says "comité parlementaire," parliamentary committee. To be logical with regard to the meaning of parliamentary, you must come back to the English version to recognize it should mean both Houses because Parliament has two Houses. You must go back and forth between the English and French twice to understand what it means.
When we discussed that, we thought we should amend at least the English version to read "established by both Houses of Parliament for that purpose." Then, of course, we know that it is the Houses of Parliament that are talking. However, if we leave it as is, we will have to travel back and forth between the two languages in order to understand what it means.
Senator Day: You cannot forget the Queen in that travelling back and forth.
Senator Joyal: I leave you with that question.
Mr. Audcent: I am not sure I would concede the point that if this statute fell to be interpreted in the future it would have to be a joint committee.
Clearly, a committee designated or established by Parliament, comité parlementaire, would include a joint committee. I am not prepared to concede that it would not be a committee established by the House of Commons alone, which is where it may end up most of the time. However, it could also include, therefore, a committee designated or established by the Senate alone. If one House can do it, so can the other.
The Chairman: It could be that you read only the French translation.
Mr. Audcent: One must read both of them together.
Senator Day: Have we done our due diligence? We have brought this apparent conflict to the attention of the government. We have sent this back to the House of Commons. They are aware of it, they have looked at it and they have written back to us and said forget it. The Senate has no role to play in this because it is something housed in the executive branch.
Even if there is confusion, have we done our due diligence, or do we have a responsibility as a legislative body to do something more than bring this to their attention?
The Chairman: I am not sure that is the role of the law clerk.
Senator Day: He used the term "done your due diligence." I am trying to get to that point. If you are not able to answer, I do not want you to venture into an area you do not feel comfortable.
Mr. Audcent: I should like to find the comments I made on due diligence. I said that with regard to Bill C-2 and its impact on parliamentary rights, you have done your due diligence. I should like to list the things you have done. You have informed yourselves as to the provisions; your duty is to study bills sent to you that have an impact on your privileges, immunities and powers and those of the other place. You have informed the other place; there is a written record that the other place's attention was drawn to these particular provisions. You proposed amendments to the bill that would protect parliamentary rights that you thought were appropriate to propose.
I think that is what I defined as having completed your due diligence: You have studied the bill, identified the provisions and shared the information.
Senator Day: Is part of due diligence bringing to their attention the fact that their answer is meaningless?
Mr. Audcent: I will let the politicians answer that question.
Senator Day: I should like to go through each one of these. I think you will find that in each one of these — but I picked out three at random selection.
Senator Andreychuk: I want to go back to the point of a single ethics officer or two.
If I understand it, the difficulty is not the fact that there is one person. Is that what you are saying? It seems we have our separate codes. We are guided by our own parliamentary privileges, the parliamentary privileges of the Senate and the parliamentary privileges of the House of Commons. It is the methodology of using one person.
The question is, in common language, can one person wear two hats? By wearing two hats, is there a greater tendency to blend the two? Is one hat heavier than the other, as someone has stated? In other words, there are 300 plus members over there and 100 or so senators over here Will there be more activity over there and as such cloud his or her thinking on our side of Parliament?
This to me is a policy choice that we can agree with or not. That person, if they do their job properly, could in fact carry out all the obligations towards the Senate side and the House side while keeping the two separate.
However, there is the feeling that one person inevitably through the administration might blend the two in some way, which would not be to the advantage of one or the other Houses after the fact.
Mr. Audcent: Honourable senators, I think that you have circumscribed the question correctly. You have narrowed it down and recognized that what we are talking about is infrastructure, who the person in the office will be that is running this. I agree with that way of looking at it.
I think when you get to the next step, there are two things: Privileges that will be derogated from, and there are administrative issues. If I think of the privileges that are being derogated from, a clear one would be your inability under the proposed scheme to get rid of your servant. I serve you at pleasure. You do not need the permission of the House of Commons to send me away. Under the proposed scheme, it would be the two Houses that would be removing.
There is the appointing of the two — where you must share your discretion in choosing a person — and the removal, where you must share your discretion. I would call all of that part of your privilege. That is at the constitutional level.
Then you have brought in a series of other arguments. How will this work on the ground, administratively? There are 300-plus members of the House of Commons competing for attention, some 2,000 or more public servants competing for attention and some 105 senators. In your previous hearings, the question was raised as to whether each senator will individually have an opportunity to meet and talk with this ethics commissioner on a regular basis. Will you receive the personal service you are obtaining right now?
One question that I raised for you is this: If it is apparent to you that you will not, then you must foresee that this office would have a subset — an assistant commissioner for the House of Commons, for the Senate and for the executive. Then I ask you, if you go down this road towards a unified office, and if you foresee that there will be an assistant person for the Senate who will be the person you are meeting with, do you want to say, if we accept a unified office, we want to be able to have the exclusive right to participate in the naming and removing of that assistant? That assistant will be very important to you.
These are questions you must ask yourselves once you decide you want to travel down the road of a unified office.
Senator Andreychuk: I do not see where we are veering off the code, which will be the control of the senators. The whole problem comes to a single officer attempting to manage two concepts, one for the House and one for ours. How will it play out operationally?
The key here is that the person who will be hired will have certain capacities. It is in the proposed act. I do know that there are other instances where one is required — particularly judges — to act in one capacity and then clear their mind of everything they know in that capacity and go on into the next phase. If you hear something in camera and your decision rules that that is inadmissible, you can carry on with the case. People are capable of making the distinctions, if they are professionally trained and have a certain understanding of their role.
Of itself, you cannot that say putting the two capacities in one person is difficult. It may when it hits the ground be either too complex or difficult to keep those capacities separate, but for the derogation that you pointed out.
Mr. Audcent: I was not challenging the ability of a properly trained ethics commissioner to carry out the functions. I looked at the workload and the power to delegate, because there is a big power to delegate. I was not saying that it is inconceivable that a single person could be responsible for three codes. I think you are right. People can have different boxes, and I would accept that.
The Chairman: Even Mr. Fournier, when asked if he had made a visit to the 105 senators since he had been in office for a year and a half, said in evidence to this committee that there were seven he had not seen yet. It was not that he did not have the time. He just did not do it. There is no magic in seeing people. It has been almost two years.
Senator Baker: To come back to the spokesperson for this side, I think he is a bit bothered with your answer to his question in which you did state that we have done our due diligence and as to the meaning of that statement. As you know, due diligence is a complete defence in the common law, and it is not — as the chair just said, we are entering a voir dire at this point.
It begs the question. You cannot have half due diligence; you cannot have a quarter due diligence. In stating the fact that we have done due diligence, you were referring to, I presume, our treatment of the bill until we arrive at this particular stage, and you are not projecting that we have done due diligence beyond this particular moment; is that correct?
Mr. Audcent: Honourable senators, it is clear that you are not through the process. You are at a place in the process. I am certainly not in any way suggesting what should happen later on in the process.
I wanted to say that I feel that senators have a duty, and those duties are to study the proposed legislation before them and to learn it, and I think you have done that. Your duty was to make your best efforts at making suggestions, and I think senators have done that. I think you have let the other side know what your concerns are. There was no answer back, "We did not know." Of course, the process will now continue from here. You are legislators, and you must make legislative decisions, and you will be making those decisions.
Senator Ringuette: From my perspective, I saw senators taking a great deal of building a Senate ethics code and the questionnaire. I am talking about, as you mentioned earlier, the infrastructure. There has been a great deal of energy and in that case, too, due diligence from the Senate to put together an infrastructure for the Senate to deal with the code of ethics and the necessary process.
Therefore, if we looked at the current infrastructure that you have witnessed, how it processed and the operation of it, would you say that it is broken and it needs fixing?
Mr. Audcent: Honourable senators, I participated in that process, and I watched the process develop. Perhaps the best way to approach it is that I am not aware of any criticism being made of the current regime. Honourable senators may correct me, but I have not heard criticism of the existing regime, suggesting that it is not working even from the government side. What I have seen is a suggestion that, from the government's perspective and the House of Commons' perspective, is an invitation to a higher good. They have said, "We think it would be even better to have one regime," but I do not think anybody ever said that existing regime is broken.
Senator Ringuette: They are saying we should have one administration.
Mr. Audcent: That is the government and the House of Commons' position. They have suggested something that, from the government's perspective and from the House of Commons' perspective, they believe will be in the public interest for the greater good — something that will be even better. I am not aware of any criticism that has ever been made of the system that was established with the Senate Ethics Officer. I think the Senate Ethics Officer has acquitted himself of his duties. I think there have been no scandals in the Senate. I think the regime had 100 per cent compliance. As far as I know, the suggestion for change is not coming from the concept of fixing what is broken but it is coming from suggesting something that some parties believe will be even better.
Senator Ringuette: That will be perceived.
Mr. Audcent: From their perception. It is a policy choice.
Senator Day: A point of clarification: I am sure you would want me to bring this forward to clarify the record. I am looking at the publication for Legal and Constitutional Affairs, Issue No. 5, Wednesday, September 6. Mr. Chairman, you were questioning Mr. Fournier, and you asked:
With how many senators have you not met?
Mr. Fournier said:
I would say eight or nine, and that was largely because they were not available at that time since there was an election through the winter. It was just not convenient for them to meet with me then. I hope that as part of the next annual review I will meet with all senators.
That is at page 579.
The Chairman: How does that derogate from what I said?
Senator Baker: You said seven, I think.
Senator Day: I am trying to help. He said eight or nine. I am not reading to derogate from something you said. We were going on imperfect recollection, and I just got the perfect recollection for you.
The Chairman: There are no other senators on my list with questions. On behalf of the committee, I thank Mr. Patrice and Mr. Audcent for attending here. You were clear, lucid and helpful. You are lawyers, and you responded to the point. That was refreshing. We thank you very much for that.
Honourable senators, we now have before us Bill S-3, to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act, and the Criminal Records Act.
Under rule 97(7.1), it provides that except with leave of its members present, a committee cannot dispense with clause-by-clause consideration of a bill.
Would there therefore be leave to dispense with clause-by-clause consideration of Bill S-3, to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act, and the Criminal Records Act?
Senator Joyal: Mr. Chairman, I have reservations with respect to clause 4, which proposes to add section 227 to the National Defence Act.
The questions we have had related especially to page 16, 227.16(1)(2) and the following, so it is suggested we go up to clause 5, and after clause 5 we can move on.
The Chairman: Honourable senators, is it agreed that the committee proceed to clause-by-clause consideration of Bill S-3, to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act, and the Criminal Records Act?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 4 carry?
An Hon. Senator: On division.
The Chairman: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chairman: Senator Joyal, are there clauses?
Senator Joyal: No, that is the one I had in particular.
The Chairman: Shall all clauses from clause 7 to 53 carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Shall the bill carry?
An Hon. Senator: On division.
The Chairman: On division.
Honourable senators, does the committee wish to discuss appending observations to the report?
Senator Milne: Yes.
The Chairman: Is it the wish of the committee to go in camera for consideration of the observations?
Senator Andreychuk: In camera.
Senator Milne: We usually go in camera.
Senator Andreychuk: Yes, because it gets out who said what. These are supposed to be committee observations. I think we should have the right to comment on them and come to some compromise.
The Chairman: I hear a consensus, honourable senators, that it will be in camera. We shall now go in camera.
The committee continued in camera.