Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 2 - Evidence of Proceedings - June 5, 2012
OTTAWA, Tuesday, June 5, 2012
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 10 a.m. for the consideration of other matters and, pursuant to rule 86(1)(d)(i), for the consideration of amendments to the Rules of the Senate.
Senator David P. Smith (Chair) in the chair.
[English]
The Chair: Welcome to Canada, to our Parliament and to the Standing Committee on Rules, Procedures and the Rights of Parliament.
I have a couple of confessions to make. First, I have been to East Africa about five times, mostly Kenya. I was in Tanzania one time, but I was there illegally. I was roaring around up in the Serengeti in a Jeep with a very successful Canadian businessman who came from Mombasa. All of a sudden he says, "We are in Tanzania now, you know; it is too far to go to the border control." This was in 1988. I must get back to Tanzania and I have got to get in there legally.
I want to point out that one of our able members — I felt badly that she lost her seat in the last election — named Yasmin Ratansi was born in Tanzania and was a very hard-working member of Parliament from the Ismaili community. She represented Tanzania very well in our Parliament. I want to recognize that and mention it to you.
I understand you are interested in hearing from Canadian parliamentarians about the work we do. I will make a few opening comments and then we will get into it. The first thing we will refer to is the general mandate of the Standing Committee on Rules, Procedures, and the Rights of Parliament. I will try to keep this brief. First, our mandate is to propose amendments to the Rules of the Senate for consideration by the Senate. Any changes only come in place if they are passed by the Senate.
However, our committee does not require an order of reference from the Senate to make recommendations to the Senate for changes to the Rules. That is our first part of the mandate.
The second part is to examine and report on any question of privilege. For us to do that, the committee requires an order of reference from the Senate to inquire into questions of privilege. On that, we do not freelance.
The last part is to consider the orders and customs of the Senate and privileges of Parliament. Some of our recent work — we are right in the final chapter of it — includes a report recommending a major revision of the Rules of the Senate to make the rules clearer, more coherent and understandable. That is currently before the Senate. The chamber is dealing with it today in Committee of the Whole. I do not know if you will be in attendance, but if you are, you will see that exercise happening. This is one of our jobs that has been going on for some years. We are near the end, within a couple of weeks.
The next point is the overview of parliamentary privilege. It has been suggested that I refer to a quote from Erskine May, who defines "privilege" as:
. . . the sum of the peculiar rights enjoyed by each House collectively. . . 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.
The privileges held by the houses of Parliament and the provincial legislative assemblies in Canada and their members individually: Each house of Parliament and their members individually can exercise parliamentary privilege. The privileges held as against the Crown and the judiciary are one of the means by which the separation of powers between these three branches of government is preserved.
You have the Crown, which is the government, the judiciary, and the legislative houses. The basis on which the privilege exists is that of necessity and only those privileges that are necessary to enable Parliament and parliamentarians to discharge their functions as parliamentarians will be protected and immune from interference by other branches of government.
I have a bit more here, but I will get it on the table and then invite questions and any comments.
A very important one is freedom of speech. Freedom of speech is fundamental, as is immunity from civil liability for defamation for statements made during a parliamentary proceeding. This is quite an ongoing and lively issue here from time to time. Sometimes a member of Parliament — or occasionally a senator — might say something in the house, and someone who is offended or slighted will get up and say, "I challenge you to make that statement outside the chamber." In other words, they are saying if you say that outside the chamber, you will be getting a writ for defamation and slander.
However, we have immunity from civil liability for defamation for statements made during parliamentary proceedings. There is also immunity for civil liability or prosecution for witnesses appearing before committees with respect to testimony. In other words, if they are invited to appear before a parliamentary committee, they have that protection. It is not unheard of for people who have an interest to again challenge them to step outside and make the statement again because they will be getting a writ.
There is another limit on free speech, which is through the application of the sub judice convention. It is this well- accepted practice that parliamentarians refrain from commenting on or debating matters that are before the courts so as to protect the accused person or persons who are subject to court action.
The next point is the right of a house of Parliament to regulate its own affairs, free from outside interference. I will make a couple of points: the right to discipline its members; the right to deliberate behind closed doors; the right to control publication of its proceedings and debates; the right to administer affairs within the precincts, including appointing and managing staff; and the right to develop and administer its own rules of procedure for debates and other proceedings.
I could cite a few cases, but I will just refer to one. In 2005 there was an important Supreme Court of Canada decision called Canada (House of Commons) v. Vaid case. It held that Speakers' rulings are immune from judicial review because without such immunity, external intervention would create delays, disruption, uncertainties and costs which would hold up the nation's business.
The right to regulate our own affairs is a jurisdiction to deal with transgressions against Parliament by its own members. Each Parliament has exclusive jurisdiction to discipline its members when their conduct offends parliament, and each house has the authority to impose a range of discipline, up to and including expulsion and disqualification from serving in the future in the case of particularly egregious conduct. There is quite a famous case on that, but I will not get into it.
Freedom from judicial interference is essential for the dignity and efficiency of both houses to conduct their own affairs. For its part, Parliament respects the jurisdiction of the judiciary through the sub judice convention that I mentioned earlier, but it is only one way that the mutual respect between the two branches is preserved. It also maintains and reinforces the constitutional separation of powers.
I will not spend much time on freedom from arrest. There is no blanket freedom for arrest as a privilege for parliamentarians. Specifically, a parliamentarian in Canada has no immunity from arrest or imprisonment for a criminal or quasi-criminal offence, including criminal contempt of court.
These are just a few comments on some of the overview of the areas that our committee deals with. At this point, I think it would be appropriate to invite our guests to make whatever introductory remarks they want. Then, if they like, they may go ahead and question us on some of these matters I have just referred to, or anything relating to this sphere of activities within our respective chambers.
On behalf of all our members, I want to give you a very warm welcome to Canada.
Hon. Senators: Hear, hear.
Hon. Christopher Olonyokie Ole Sendeka, M.P., Vice-Chair, Tanzanian Parliamentary Committee on Privileges, Ethics and Powers: Mr. Chair and honourable senators, I am Christopher Olonyokie Ole Sendeka, Vice-Chair of the Parliamentary Committee on Privileges, Powers and Ethics, and I lead this delegation. Our Parliamentary Privileges, Powers and Ethics Committee is one of the parliamentary standing committees that has been established by the Standing Orders of the Parliament of Tanzania.
Before explaining more, Mr. Chair, may we first take this opportunity to thank you personally and the Senate of Canada for the cordial reception we received yesterday following our arrival. Thank you for welcoming us here in Canada. Again, it is with much pleasure that we are in the Senate for the purpose of gaining relevant experience, knowledge and skills from your house and later from the House of Commons.
I would like to introduce my colleagues, as well. Maybe I can start my right-hand side and they can do the introductions. It is enough for me to say that we are seven members of Parliament: three from the opposition and four from the ruling party. We have the secretary of the committee together with the gentleman from the Embassy of Tanzania here in Canada.
Hon. Augustino Lyatonga Mrema, M.P., Committee Member, Tanzanian Parliamentary Committee on Privileges, Ethics and Powers: I am Augustino Lyatonga Mrema, Member of Parliament and a member of the committee.
Hon. Said Amour Arfi, M.P., Committee Member, Tanzanian Parliamentary Committee on Privileges, Ethics and Powers: My name is Said Amour Arfi, Member of Parliament and a member of the committee.
Hon. Dr. Christine Ishengoma, M.P., Committee Member, Tanzanian Parliamentary Committee on Privileges, Ethics and Powers: My name is Christine Ishengoma, member of the committee.
Hon. Capt. John Chiligati, M.P., Committee Member, Tanzanian Parliamentary Committee on Privileges, Ethics and Powers: My name is Retired Captain John Chiligati, and I am a member of the committee.
Joseph Sokoine, Minister Plenipotentiary, High Commission of Tanzania: I am Joseph Sokoine, a deputy chief of the mission of the Tanzania High Commission.
Hon. Riziki Omar Juma, M.P., Committee Member, Tanzanian Parliamentary Committee on Privileges, Ethics and Powers: My name is Riziki Omar Juma. I am a Member of Parliament, and I am a member of the committee.
Hon. Gosbert Blandes, M.P., Committee Member, Tanzanian Parliamentary Committee on Privileges, Ethics and Powers: My name is Gosbert Blandes, Member of Parliament, and also a member of the committee. I am pleased to be here.
Yona Kirumbi, Clerk of the Tanzanian Parliamentary Committee on Privileges, Ethics and Powers: My name is Yona Kirumbi, parliamentary assistant and clerk of the committee.
The Chair: Maybe we will take a few minutes and do the same for this side. I am David Smith, chair of this committee. I am an opposition member, a member of the Liberal Party. We always have a handful of committees chaired by opposition members. I am from Toronto and represent Ontario. In my youth, I was a Member of Parliament and a member of Mr. Trudeau's cabinet for a year and a bit, many years ago.
Senator Duffy: I am Mike Duffy from Prince Edward Island, Canada's smallest province. I am a former journalist who went to the political side three years ago.
Senator Stratton: I am Terry Stratton. I am a member of this committee. I am a senator from Manitoba, which is right in the middle of the country. I come from a city of about 650,000 people, and it has been known to be the coldest city of its size on the face of the Earth; it has a reputation for that.
I will be seeing you later, as I am also on the Conflict of Interest Committee.
Senator Fraser: My name is Joan Fraser. I am a senator from Montreal, Quebec. Like Senator Duffy, I am a former journalist, but I made the great crossover 13 years ago.
Senator Joyal: My name is Serge Joyal, and I am a member of the Senate and this committee. I was previously a member of the House of Commons and have been a minister of the Crown. I am a lawyer by profession, specializing in public administration law and constitutional law.
Like Senator Stratton, I am also a member of the ethics committee of the Senate. I participated in the drafting of the Conflict of Interest Code for Senators; it has been in force now for seven years. I am happy to welcome you.
Senator Braley: I am David Braley. I am a senator from Ontario. I am probably the newest senator here; I have been here only about two and a half years. I am a businessman by background and I am on this committee.
Senator Comeau: My name is Senator Comeau. I am from Nova Scotia, the eastern part of the country. I am also formerly a member of the other house, the House of Commons, and formerly a university professor. It is good to have you here.
The Chair: Thank you, colleagues.
Back to you, Mr. Vice-Chair.
Mr. Sendeka: Mr. Chair, I will take this opportunity to invite the Honourable John Chiligati, who is also a former cabinet minister and a member of our committee, to briefly explain the aim of our visit and the role of our committee according to the Standing Orders of the National Assembly of Tanzania.
Mr. Chiligati: With permission from the delegation, let me also say thank you, Mr. Chair and honourable senators, for the warm welcome that we received this morning. You left your duties to receive us; it is a great honour for us. Thank you so much.
Our mission to Canada is to learn as much as possible from your experience. You have a vast experience, since 1867. We had our independence only 50 years ago, so you can see the difference between Tanzania and Canada and the huge experience you have in running parliamentary affairs. In Tanzania we are only 50 years old. We have come to learn from your experiences.
First, in Tanzania, we do not have a second chamber. We only have what you call the House of Commons. To us, for you to have a senate is a new thing that we also need to learn. We think back on the 50 years of our independence, and right now we are debating having a new constitution. For that new constitution, some people are thinking of also having a second chamber, a senate. It is new to us, but we hope we shall learn something from you. We do not have senators or a senate back home, but some people are thinking that it might be a good idea that we also create a second chamber, an upper chamber. During our three-day visit here in Canada, one thing we want to learn is how the Senate works and how it is elected.
Most important, we are coming, as our chairman says, from the Parliamentary Committee on Privileges, Powers and Ethics. Most of us are new to this committee. We have also come to learn something on how you run your committees, especially the committee on privileges and on ethics. This is a new area that we also want to, in these three days, learn something about.
Thank you for the lecture that you have given us this morning. I think now it is our time to ask some questions on areas where we want clarification, because our purpose is to learn as much as possible in a very short time. You will bear with us if we have so many questions.
The Chair: Go ahead; whatever works for you.
Mr. Chiligati: With permission from the leader of our delegation, let me begin by asking two or three questions. One is on the issue of when a member of the Senate or House of Commons says some words and someone who is not a member of the house — yes, a citizen — is offended. What action can that citizen take? Is there any system of right of reply, any system whereby he can send his complaints to the Speaker. I am referring to a citizen in the streets who is offended by words spoken by a senator or a member of the House of Commons during debate.
The Chair: Do you want us to deal with these one at a time, or do you want to put them all out? Which do you prefer?
Mr. Chiligati: Maybe deal with them one at a time.
The Chair: I did mention that when you speak in the house, you cannot be sued, but that does not mean someone who is offended cannot raise a question of privilege. It is not unusual for a question of privilege to be raised, but then you get into these sorts of challenges. A person might say, "I am challenging you or I am daring you. Have you got the guts to say that outside the chamber?" In other words, what they are saying is, you say that outside the chamber and I will sue you.
Senator Stratton: I think the question was in reference to a member of the public being denigrated by a parliamentarian. Is that not the question?
Mr. Chiligati: Yes.
Senator Stratton: The recourse that individual has is the courts, of course, and threatening letters, because despite the fact that the parliamentarian may say that in the chamber where he is protected, they can still or would threaten. I do not think we have, to my knowledge at any rate, a real recourse.
Senator Fraser: That is if it is said in the chamber.
Senator Stratton: If it is said in the chamber, because it is parliamentary privilege that a member of that chamber can virtually say whatever he or she feels.
The Chair: Actually, there was an incident of this category in the last month or so. We have a very famous Canadian known as Conrad Black. He came back to Canada, and the Leader of the NDP, which is the opposition in the House of Commons — they do not have any senators — made statements that Conrad Black challenged him to make outside the house. He was basically saying, "You say that outside the house, and I will sue you."
Senator Stratton: That is the only recourse.
Senator Joyal: Your question is very complex because if a senator or an MP launches an accusation against a private citizen somewhere in the country — not another member of the Senate or another member of Parliament — as my colleagues have said, the senators or the MPs are protected by the freedom of speech that is absolutely within the confinement of the Senate or the House of Commons. In other words, you have to be within the walls of the Senate or the House of Commons. If you are outside in the corridor, you lose that protection.
This is a very ancient right because it dates back to the origin of Parliament when the first MPs were elected. They had to be free to say whatever they thought was right and not be the object of intervention from the King because he would sanction that person, or from the court. A judge would read the debates and then sanction or discipline the members. The freedom of speech within the walls of Parliament must be absolute so that an elected citizen has the freedom to speak his or her mind the way he or she thinks proper.
It goes beyond that. For instance, the Quebec legislature took an initiative some years ago to sanction a citizen for what that citizen had said. The Quebec legislature passed a motion sanctioning a former journalist — as I look at my colleagues Senator Fraser and Senator Duffy — because that former journalist made an accusation about the Jewish community or made comments about the Jewish community that the legislature thought were inappropriate. The legislature moved and adopted a motion condemning the words of the former journalist. By the way, that journalist was also a former member of the legislature.
This is very much questioned by the experts who study procedure because it could be seen as an abuse by the Parliament to sanction the freedom of speech of any citizens. In other words, it is the reverse situation from the one you have mentioned.
You see, it works both ways. If an MP, like you are, has the freedom of speech to say whatever he or she would think proper to say, it should not mean that the legislature should sanction the freedom of speech of its citizens, otherwise you will sit all the time reviewing everything that is said amongst the free citizens, and it will, of course, be seen as an abuse of your power as an MP.
If you are denigrated by a private citizen, you can take an action in defamation in the court, but what you say inside the walls is totally protected, as Senator Smith and Senator Stratton have properly stated.
Your question, in fact, raises a lot of side questions that are part of that principle of total freedom of speech within the walls of Parliament — in other words, within the walls of the room that you have seen or you will see where we sit as senators or where the MPs sit as MPs.
Senator Duffy: It does not work in the hallway.
Senator Joyal: It is not in the hallway.
The Chair: Are there any further comments?
Charles Robert, Clerk of the Committee: There was in fact a minister who was charged with an offence for repeating outside what he had said in the House of Commons. He was taken to court and successfully prosecuted because he had repeated a word that was critical to a corporate interest outside of the walls, which had been said already inside the walls.
Senator Joyal: It was a former colleague of Senator Smith and myself, as a matter of fact.
The Chair: I should point out that Senator Fraser was for some years the editor of one of Canada's largest newspapers, so she was very aware of the laws of slander and defamation before she even came here.
Senator Fraser: Thank you, chair.
Your question was about what a citizen can do. If the offending words are said outside Parliament, as has been discussed, that citizen can sue. Otherwise, that citizen can only appeal to public opinion, or possibly to members of the other party, to raise a fuss within Parliament. Public opinion, letters to the newspaper, calling up journalists, starting petitions, and making a fuss back in the offending parliamentarian's district, those things can be quite effective in terms of disciplining the parliamentarian.
However, as I am sure you know, the insult can never be eradicated completely. It is a very serious matter to attack individual citizens, and I think you will find that in this country, at any rate, we attack each other with vigour, but you will not often see a parliamentarian making insulting or aggressive remarks about an ordinary member of the public.
The Chair: Let us go to the next question.
Mr. Chiligati: During your briefing, you talked about the Senate having a code of ethics. This is also of interest to us because in Tanzania we do not have, so far, a code of ethics.
Does that code only apply to the senators or does it apply to both the House of Commons and the Senate, or does each house have its own code of ethics?
Senator Stratton: Very good timing. Senator Joyal, you take this one.
The Chair: You can speak too, but Senator Joyal first.
Mr. Chiligati: Let me finish. In that code — and it would be very good if you could give us a copy — does it punish senators or MPs who go against the code?
The Chair: What we will do is have a speaker from each side. Senator Joyal is from the opposition and Senator Stratton is from the government. We will start with Senator Joyal.
Senator Joyal: Would you like to start, senator? You are the chair.
Senator Stratton: No. You have a much longer history. I will speak as to the potential future of the two systems here.
Senator Joyal: Nine years ago, when the government thought that it was proper to have an ethics code for parliamentarians, the government decided that the codes should be the same for both houses and that there should be only one ethics officer, who is the person appointed by Parliament to oversee the implementation of the ethics rules established and recognized in the code and to ensure that parliamentarians comply with it.
There was a strong debate at that time that the two houses were independent from one another and that each house has disciplinary power over its members. That is well recognized in the standing rules, as Senator Smith said in his opening remarks.
The House of Commons has the disciplinary power to ensure that MPs conform or adapt their behaviour to the norms set out in the code, just as the Senate has the same power over its members. By merging everything, you would more or less be attaching one house to the other. As the principle of independence of both houses is enshrined in the Constitution, each house has the same power to adopt or refuse the legislation. This was recognized as a fundamental principle in protecting the independence of both houses.
The House of Commons adopted its code of ethics and the Senate adopted its code of ethics. There is a Conflict of Interest and Ethics Commissioner for the House of Commons and there is a Senate Ethics Officer for the Senate. Each one works independently from the other.
Of course, the practical approach is that we read the code of ethics of the House of Commons, just as we follow the debate in the House of Commons that might raise an ethics issue, because we might want to learn from it, or not. However, the House of Commons cannot impose ethics rules on us, just as we cannot, in the reverse, impose ethics rules on the members of the House of Commons.
This system has been in place now for almost seven years and it has worked pretty well. In fact, each year the Senate Ethics Officer publishes an annual report. Maybe you would like a copy of that report, or of the six reports that have been published thus far, so that you can see how the Senate Ethics Officer works, which is different than in the House of Commons. The Senate Ethics Officer, having 105 members to oversee, has much more availability to meet individually with the senators than the commissioner in the House of Commons, because the commissioner in the House of Commons has to deal with 308 members, plus the whole administration; in other words, thousands of people.
There is not the same personal relationship with the Senate Ethics Officer. If you really want ethics to be a daily preoccupation, it is better to have direct access to the Senate officer any time you need it; you just phone the office and he is there at the end of the phone and he answers your question, or he will receive you and give you the proper advice.
In other words, a personal relationship has been established through the years with the Senate Ethics Officer. There is no history of complaints about the operation or functioning of the system. It is a very cheap system in terms of the money involved. We have been able to achieve the objectives that were originally accepted, almost unanimously, by the senators, and to regularly review the code ourselves to ensure it is adapted to the evolution of the situation. It is like a bylaw, a regulation, or a standing order of the Senate. It is easy to adapt to the situation, to consult the senators, and to adopt the proposal of reform that might be needed along the way. It is a system that has proven to work very well so far.
The Chair: Thank you. We will now hear from Senator Stratton, who is from the government side, so that you are hearing both sides.
Senator Stratton: The future of the ethics regime as a whole is to look at where we are going, because it is an ever- evolving process. We just finished adopting six amendments, which you should be able to get from the clerk. Those bring our Conflict of Interest Code up to date, and it is just a normal review that takes place on a regular basis.
There is pressure, to be honest, on the house side to have just one ethics officer. We are resisting that — quietly, but we are resisting that — simply because there are 308 members of Parliament, soon to grow by another 30-odd, and there are 105 senators. The Senate Ethics Officer meets with each senator, each year, to review their requirements in meeting the code. On the house side, I have talked to members of Parliament who have never met or talked to their ethics officer. That is the comparable difference.
On our side, there are four members of the Office of the Senate Ethics Officer, including the Senate Ethics Officer, who works part-time, and I think the budget is around $250,000. On the house side, they have over 50 members working in their ethics office. We have to resist; otherwise, just by their numbers, they would overwhelm us. We have quite a personal relationship with our Senate Ethics Officer. As I have made clear, we want to maintain that distance. As Senator Joyal has said, it is extremely important that the two houses remain separate and distinct because they operate in two different manners entirely. We are hopefully not going to see the bill come forward.
Senator Duffy: Mr. Chair, on the question of ethics, if I could add just one line, we see a strong, robust ethics regime as being critical to the public perception of Parliament as being there to represent the people as opposed to special interests. In terms of respect for Parliament, for democracy and for the institution, we feel that it is important that the public has confidence that when people speak and act in Parliament, they are doing it in the public interest, not in their own private interest. It sometimes seems esoteric, but it is a cornerstone of the public trust in our parliamentary system.
The Chair: That is a relevant point.
Mr. Blandes: Thank you so much. I want to know the situation here in Canada for members of the House of Commons and members of the Senate as far as politics and business are concerned. I hear that here in Canada, for the members of the House of Commons and the Senate, there is a separation between politics and business. I would like to know whether a member is allowed to do business while he is a politician.
The Chair: If you are a minister or a parliamentary secretary, regardless of which house you are in, you have to be totally out of that. If you are a private member, there are things you could do.
I am a lawyer by profession and was chairman of a large law firm with over 500 lawyers. When I came to the Senate — I was in the Commons years ago as well — I withdrew as a partner to avoid conflicts of interest. I, for example, am a director of several places. In a couple of instances, when I was director of a couple of foreign banks, I declared that I would not speak or take part in a piece of legislation. You sit down with the ethics officer for your house, review the facts, do what the interpretation is and play by the rules.
Does anyone else wish to add to that? Senator Braley is a very involved and successful businessman.
Senator Braley: I have business interests in many areas. Whenever there is a touch of conflict of interest, I go to see the Senate Ethics Officer. In one case, he said, "You do not have to say anything, just leave the house while the vote and the discussion occur and prefer not to speak." I worked that out with the Senate Ethics Officer.
In another case, I declared the conflict of interest. In other cases, you do not have to do anything if you are just on the edge of it, but you do not vote.
The Chair: I might also add that my wife is the Chief Justice of the Ontario Superior Court of Justice, so there have been two or three instances where there were matters that could affect her. I would put on the record that I was not participating because of my spouse.
If you have time for a joke, I will tell you one. She does not think it is funny, but I say that I am the only guy in Ontario who could never get a fair divorce because there are 300 judges who issue them, and they all work for her. She does not find that funny, but we have been married 42 years; I think it works out.
Senator Joyal: I would like to add something to the point Senator Braley made, which in my opinion is quite appropriate. Members of the House of Commons or of the Senate are not barred from having professional activities or business activities. In fact, they have to declare it to the ethics officer. Each year, we file a form, and we might give you a form, Senator Stratton —
Senator Stratton: At our next meeting.
Senator Joyal: I will not be able to attend, but I think you should have a copy of the form that each senator is requested to file. In it, he or she files all of the business activities and income that they have, not the amount but the business activities from which he or she draws income. If you work as a lawyer, as my colleague Senator Smith does, you say, "I work for the law firm X, Y, Z." Like Senator Braley, you say, "I own this firm that is active in these kinds of activities," and so on. This is made public annually by the Senate Ethics Officer, and it is online. It is on the Internet. Any citizen can type your name in and have in front of him or her the list of businesses or professional activities that the senator in question has.
As Senator Braley has said, even more appropriately, if there is a debate in the Senate whereby your interests are at stake because you own, for instance, shares or activities that would benefit from that legislation or that government decision, the first thing you do is phone the Senate Ethics Officer and say, "Do you think I could participate in that debate, yes or no?" The Senate Ethics Officer, being at the other end of the line, will say, "Let me review the case, and I will call you back. I will send you a note." It is quick. It does not take months and months because the debate is on.
When you receive the advice of the Senate Ethics Officer, and if he advises you to refrain from participating in the debate, you stand up in the Senate and say, "Mr. Speaker, I want it to be noted in the minutes of the Senate that I will abstain from participating because I might be in a conflict of interest." It is then noted in the minutes of the Senate. Then the public and the senator are protected of wrongdoing allegations because he has already checked with the Senate Ethics Officer as to whether or not he can participate in the debate or in any government contract or activity whereby the government might give him a benefit that other citizens may not have.
The system works pretty well. I know many senators who have done it. Senator Braley has done it. I have done it myself because I have activities in the private sector. We do it regularly. The system is easily accessible. Senators are satisfied with it because they can get an answer as soon as they want.
Mr. Chiligati: I think there is a difference between owning a business and running that business yourself. You are allowed to own that business, but can you run the business, as managing director, if you are an MP or a senator?
The Chair: I will give you an example of that. I mentioned that I was the chairman of a large law firm. When I came here, I withdrew as a partner. I still have an office there. I still have revenue, but it is a fixed amount. It has no bearing on how the firm is doing.
If I were a partner, I would get a certain percentage that could go up or down depending on the hundreds and hundreds of clients and whether I was hitting home runs and stuff like that. You could never follow all the various client cases, so the only practical thing is to withdraw as a partner and have a fixed amount so that nothing affects your revenue.
Senator Braley: I run businesses. I own shares of businesses and I sit on boards of businesses. I would say that about once every three or four months something comes up that involves ethics. I call the man right away and have a chat.
In one case it was about three or four things that did not affect me but affected one of my competitors. He told me if I left the house and did not vote on it, I would not have to say anything. Another time he made it quite clear that I should not say or do anything and not vote.
Every situation is different as to the effects. As long as things are done properly and ethically, you do not want to stop people who are capable of serving your country from helping to build a better community.
The Chair: That is the benefit of getting independent advice from the Senate Ethics Officer.
Senator Joyal: It depends on whether you are a minister of the Crown. For a minister of the Crown, it is different. A minister of the Crown has to put all assets into a blind trust that is managed outside his or her intervention. A minister of the Crown has to spend most of his or her time, if not all of it, on Crown responsibilities.
A senator is entitled to have his business, but as was mentioned by the chair and by Senator Braley, he cannot manage this business to the point that he would never come to the Senate. We have public attendance records. At each Senate sitting and committee sitting someone notes our presence and it is printed in the Journals of the Senate. Anyone can check how many days I have been absent from the Senate each year. I am paid by public funds, so people who pay me are expecting me to be at my job.
You can run your business, but your first priority must be your Senate work. Your attendance is recorded and it is public.
Senator Fraser: For total clarity, everyone apart from ministers is allowed to have all kinds of business activities, but if you do, you must not participate in debate or votes on things that affect those businesses particularly. This is not just a matter of judgment and discussion with the Ethics Officer it is also part of the rules. The Ethics Officer will explain to you whether the rule applies in your case or whether it is appropriate, if not required by the rules, for you to withdraw.
The rules are clear. If you have a conflict of interest, you do not get to participate in the business of the Senate on that topic.
Mr. Sendeka: In Tanzania, the members of the parliamentary standing committees are appointed by the Speaker of the national assembly based on political party representation, union, gender and experience in political or parliamentary affairs. What is the situation in the Senate and in the House of Representatives? Who appoints the members of the standing parliamentary committees?
The Chair: It is basically done by the leadership of the party. When people have a particular expertise, it is obvious which committee they should be on. We have a leader of each party in the house as well as a whip and a management team. Senators give their preferences and it usually works out.
Are there any further comments?
Senator Stratton: Every new session, the leadership asks senators to give three preferences for serving on committees. That goes to the leadership of each party, who discuss it among themselves. Each political party develops its own list of members for committees. That goes to the Committee of Selection, which formalizes who will sit on each committee. Once that is adopted by the Committee of Selection, it is taken to the Senate chamber for approval, and it is usually adopted unanimously without debate.
Senator Joyal: Perhaps we could provide a copy of the Rules of the Senate. Rule 85 deals with that. You will see the procedure there.
The Chair: I think that the people who are in the position of choosing four people from seven who have indicated a preference for one committee might look at attendance records and things like that.
Senator Stratton: I did not say that.
The Chair: You did not say it, but we are human.
Senator Fraser: You have asked about an area where practice is very different from what appears on paper. As you have heard, it is the party leaderships that end up deciding who will represent the party on each committee.
On paper, the members of the committee will then elect their chair. In practice, that, too, is decided by the party leaderships. The chair will belong to one party and the deputy chair to the other party.
There is a continuing little bubble of current opinion among senators that the election of a committee chair should be a real election and not just a form that we go through. That has not yet carried the day. I am not sure it ever will. I am not sure that I think it should because, as was suggested, people here, as well as in Tanzania, want to be sure that regions, men and women, minorities and language groups are represented. If you turn it loose to free elections in each committee, that probably will not happen.
Senator Duffy: Picking up on Senator Fraser's point, the Speaker of the House of Commons is elected by members of the House of Commons in a series of votes. We have seen it go to five secret ballots. That did not used to be the case. The Speaker used to be essentially appointed by the Prime Minister and the appointment was then endorsed by the house.
In the Senate, the Speaker is not elected by the members. There is a difference there, and some of that is for the reasons that Senator Fraser has mentioned.
Ms. Ishengoma: In Tanzania, the issues to be discussed by our committee normally are to be determined by the Speaker, and they give the issues to the committee. What approach do you use here to decide what issues will be discussed by the committee?
For example, if someone has done something that is not in the best interests of Parliament, has not exhibited good conduct, or has done something to the government, the Speaker is the one who raises that issue and sends it to committee to be discussed.
The Chair: If it falls under the rules, the Speaker interprets them as to how they should be applied. If it relates more to management of a particular side of the house, that can be decided by the leadership team of the political party. You get situations in both categories.
Senator Fraser: As the chair said in his introductory remarks, this committee does not need instructions from the Senate, and certainly not from the Speaker. The Speaker cannot instruct us, of his own right, to do anything. The Senate could, but we do not need an instruction in order to study something or in order to report to the Senate.
The one area where you could say that the Speaker does refer stuff to us is when a question of privilege has been raised. The Speaker will then rule whether there is a prima facie case of privilege and at that point, usually, the Senate will refer the matter to us. You can say that the Speaker is indirectly referring something to us, but I am not aware of any case where the Speaker has been able to instruct this committee to do anything about anything, no.
The Chair: Generally, Speakers do not try to do that. Does that clarify it for you?
Senator Fraser: He can make a suggestion; and we will listen to his suggestion.
The Chair: Today, if you are sitting listening to us on this recent report on clarifying the rules, you have heard some controversy led by one particular senator. A question of privilege was raised and the Speaker said, "I might suggest that this matter be dealt with by the Committee of the Whole," which, of course, we unanimously agreed to do; and we are in the process of doing that. He suggested it, but he did not order it; and he could not order it.
Senator Joyal: It would be helpful to provide the delegates the power this committee has in the Rules of the Senate and the way it is labeled.
The Chair: I am sure our clerk will make sure that they have a package. I have suggested that our clerk make sure they receive a package of the relevant material. Yes?
Mr. Blandes: I want to know about the matter of the judiciary. In our Parliament, we are not allowed to debate matters that are pending in courts because we might influence the judgment in court. What is the position here on that?
The Chair: It is the same.
Senator Joyal: It is not written in the Rules of the Senate, per se, or in the Constitution, but the principle of independence of the judiciary from Parliament and Parliament from the judiciary means that Parliament would abstain from commenting or expressing an opinion when there is an issue before a court.
As my colleagues have said, it is a common law convention that we follow because we do not want judges to pronounce on things that are debated in Parliament any more than we want to tell judges what to do with issues before the court. The fundamental principle of the independence of the judiciary is enshrined in the Constitution.
Senator Fraser: We can say what we want, but there may be consequences if we comment, which is why we do not.
There was a case in Quebec maybe 30 years ago in the National Assembly, which is protected by parliamentary privilege, where the then premier made a rather inflammatory comment about a case that was before the courts and the judge declared a mistrial. There was no penalty to the premier, but the course of justice obviously was dramatically affected. The judge said that what the premier had said was so prejudicial that it could not be repaired, so there was a mistrial. That is the most flagrant example that I am aware of why we do not comment.
Senator Duffy: I have a small, final point. There is continuing tension between the courts and Parliament that ebbs and flows and reaches a peak around a time that their pay is up for review. Parliament gets an independent arbitrator to say that the judges deserve this kind of a raise. The view of the judges is that Parliament should not interfere and that the independent arbitrator gets to set their pay. That is one point where we have to sign off on how much money they get. Anyway, it is an interesting time every three or four years.
The Chair: Given my wife's position, I never vote or speak on that subject.
We have a final question and then closing remarks.
Mr. Chiligati: On the relationship between the House of Commons and the Senate, do you have in-house fighting between the two houses?
Senator Stratton: Oh, yes.
The Chair: It is between the two main parties, not the NDP. The two main parties all sit in the same caucus to the extent that you sometimes have to sort things out. That process usually works. Did you have a specific further question on that?
Mr. Chiligati: In the House of Commons on a certain bill, they will make their decision and it comes to the Senate. Do you quash that decision? What happens between the two houses?
Senator Fraser: For a bill originating in the House of Commons, we can amend it. If we amend it, it will go back to the House of Commons. The House of Commons may agree or disagree with our amendments. If they agree with our amendments, okay, the bill will pass as amended. If they disagree with our amendments, they will send the bill back to us. A prolonged disagreement is quite rare, but it does happen. Sometimes you can see a bill going back and forth and back and forth because there is no formal dispute resolution mechanism.
The other thing we can do, of course, is simply to refuse to pass the bill, in which case it dies.
The Chair: I might point out too that the current official opposition in the House of Commons, the NDP, has been on the record for some years as being against the existence of the Senate. Their view is that it should be abolished.
Some years ago, a new, very impressive senator from Saskatchewan, who had been an NDPer, came to the Senate and wanted to join their caucus but they would not let her. She sat as an independent for a few years and then decided to join our party; and we were happy to have her.
This might result in an incident at some point down the road. It has not yet, but it might, so we will wait and see.
Are there closing remarks?
Ms. Ishengoma: Honourable senators and chair, on behalf of the delegation of members of the Parliament of Tanzania, I take this opportunity to thank you all for taking your time and the explanations you have given us. I am very grateful to say that we have more training from you. It has been a lively discussion.
Thank you very much for your warm welcome. I extend greetings from our country, Tanzania, our President, our Speaker and other members of Parliament. You are warmly welcome in Tanzania.
The Chair: Thank you. On behalf of our group, we have enjoyed this very much; it has been a nice exchange.
I probably should not tell this story, but I will tell it anyway. Pierre Trudeau was one of our great prime ministers, in my opinion. You may get a range of views from other members on that. Way back in the early 1980s, I remember him referring to three most impressive Commonwealth prime ministers, and Julius Nyerere was in there. Some of you may have a range of views on him, but I thought I would mention that. I will not say who the other two were, but he was in there.
Thank you very much. I hope our paths will cross again. The next time I go to Tanzania, I will go legally and not through the desert.
We will say goodbye at this point and have the members of the Rules Committee stay for a brief discussion on other matters.
(The committee continued in camera.)