Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 1 - Evidence - December 10, 2013
OTTAWA, Tuesday, December 10, 2013
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:30 a.m. for the consideration of a draft agenda (future business).
Senator Vernon White (Chair) in the chair.
[English]
The Chair: I thank everyone for being here today. I will start with a quick announcement. Senator Smith and I have met and have come to an agreement that Senator Batters will be the third person on the steering committee. We'll try to set up a half-hour quick meeting this week to talk about the new year.
Senator D. Smith: I guess we should do that by motion, so I'm happy to move it.
The Chair: Any other motions? All in agreement?
Hon. Senators: Agreed.
The Chair: Carried.
As per our discussion last week, we will continue looking at future business. We had discussed last week the four reports tabled in the Senate last year that had not been passed in the Senate. I've asked that all four reports, as we discussed last week, be shared with members of the committee.
You have those four reports with you. If agreed, we will set those aside as our first order of business in the new year to allow people to walk through them. We have interest from some senators on reviewing the material and hopefully bringing them back into the Senate again.
Senator D. Smith: We could have a briefing on them, if there's consensus. Senator Fraser would be very helpful if she could come because she chaired most of those meetings. I think everybody should have a brief summary of the contents of each of the four reports.
The Chair: Sure.
Senator D. Smith: And the clerk, too.
The Chair: We can walk through that maybe in our steering committee meeting this week. It's important for us to get some closure to these reports. As I said, we have had some interest, in particular from new members. Senator Cools raised the matter of looking at these reports again and hopefully put some closure to them.
We had asked that someone from the Library of Parliament look at developing information for us on a code of conduct. They have brought a report forward, which we have just received, if we can share with members of the committee. It looks at the United Kingdom code of conduct for members of the House of Lords. I will wait until you receive it to continue. Thanks to staff for sharing that.
We have the United Kingdom, United States and Australia. I'll leave that with you — I don't expect you to run through it at this moment — so you can see what's in three of the other jurisdictions we had discussed. At least you'll see some interesting points, in particular with the House of Lords, which we had discussed last week as well.
Senator Batters, so you know, you were placed on steering while you were out. You should try to get here earlier in the future.
Senator Enverga: That's why I don't come late.
Senator Nolin: The steering committee has probably already taken those decisions, and I am sure you will understand the importance of consultation and coordination with the ethics committee. To what extent are you working together to develop some kind of coordinated effort on that front?
The Chair: Actually, I had a request for a quick meeting last week with Senator Andreychuk from the ethics committee. They've done pretty extensive work, and I think we'll be trying to set up a meeting with our steering committee and a group of members from that committee to ensure that we don't duplicate. Possibly, we may be the wrong committee to do this. They may be at the point where they could do it. Senator Andreychuk identified areas where she felt that the Rules Committee may want to be more engaged. Certainly, the last thing I want to do is duplicate their effort or do the work they're already doing.
Senator Nolin: Definitely my point is to not stall the effort. We want some kind of code of conduct, but I want to make sure we will have it and that it's the proper way to do it.
Senator D. Smith: Some of you know that my plane was grounded last week, which may have been good news for some, but in any event here I am.
There's one other item I want to throw into the loop, chair. I did read the transcript. No time was spent on it, but we should have staff prepare a really good package for us when it comes back: It's this whole issue of TV coverage. Let me just give you a bit of background on it because this item has come up before the committee several times, and we could even have a chronology of how many times.
The philosophy of our committee has always been that you don't make major decisions unless you have consensus on both sides. We never required total unanimity, but we wanted to have consensus on both sides. There wasn't a partisan split, but there were people on both sides who, for whatever reason, were uncomfortable with it.
The first time we reviewed it, we authorized a study as to what would have to be done in terms of cost. At that point, it was the traditional way and they would have to have almost a mini studio somewhere at the back of the Senate and several cameras. It was seven figures. The clerk will remember that.
The Chair: It was $2.7 million.
Senator D. Smith: Yes, $2.7 million.
Another problem was that some people wondered whether we could rationalize that unless we knew it would be carried. We did have some dialogue with CPAC, but they wouldn't give us any assurance that they'd carry it because if they're just reporting ``stand, stand,'' that's almost a cure for insomnia. As to how much time we'd have on TV, they would give us no assurance. Quite frankly, if some people are going to watch Question Period, it's going to be in the other place, including me.
Grant Mitchell was quite involved with this and he had the idea that you could do it much cheaper in another way, but I don't remember the terminology.
My view is that it's inevitable. Part of the rationale for that conclusion is all the controversy about this place, and I think it is inevitable. I think it would be worth having a motion authorizing staff that they have all this background material for us and a summary as to exactly where we are when we come back. If the committee wants to deal with this pretty early on, to the extent that the public are aware of what we're doing in here, that's one issue on the horizon. I just toss that out and invite other members to convey their conclusions.
Senator Unger: Senator Smith, I'm wondering if there is any determination right now about the numbers of people who actually watch the Senate committees that are being televised. I know a few people who do. Before I was appointed to this place, I sat and watched a few. They are very good. To me, if there is to be an example of good Senate work, that would be it, and I would really wonder what the numbers would be.
Senator D. Smith: You have a valid point, and this is a point that, quite frankly, I've made a number of times over the years. When you look at the pluses and minuses, to the extent there are some minuses for the Senate, probably one of the strongest pluses is the committee work. I've sat in both houses, and some others here have too, and the committee work here is stronger. People tend to be on the committee longer. They develop more expertise. They're not rushing back and forth in the same way that MPs are. It's one of our strongest things.
In terms of CPAC, for example, they will carry it. CPAC, even if we have this on the other format, they may never carry it if they think it's boring, but when the controversy was on over the three senators, you did hear every time. They would just have the sound and you would see a photo of whoever they were talking about. If that can be done fairly inexpensively because of the new technology, I think we should have a discussion about it because, to the extent that's an issue, it would put it to bed. We might even have a dialogue with CPAC again. I would be surprised if they weren't going to continue and do the committee stuff over other stuff from the Senate, except when there's a lively debate about some controversial matter.
Senator Batters: I'm surprised by how many people constantly tell me that they see me on committee on CPAC.
The Chair: Other than relatives?
Senator Batters: Other than relatives, yes: friends, lawyers from Regina, people I see around. I'm surprised how many people do watch the committees. I think lots of times they're flipping channels and they stop when they see something interesting that we might be dealing with at Legal Affairs, for example. I think there is also a possibility that CPAC could put it on a delayed showing. They probably wouldn't supplant the House of Commons Question Period, but they may well put it on later in the night. There's lots of time. They are trying to fill 24 hours, so they may have a slot to put our proceedings on later.
To me, this is absolutely needed for accountability. The $90 million or $100 million cost of the Senate has been talked about for so long, and Canadians don't have a clue what we do. This is really needed to show Canadians a big part of what we do. Some amazing debates take place in the Senate chamber and I really think people need to see that. For me, it has to be done. The question I'm wondering about is when was the $2.7 million figure arrived at?
The Chair: I sit on Internal Economy as well, and in camera we had a similar discussion, so I think this has already been discussed by Internal Economy, Senator Furey, I believe.
Senator D. Smith: Even before four years, I think.
The Chair: I've only been Internal Economy for a month.
Senator D. Smith: Oh, really?
The Chair: However, I think it is important that we also have a discussion around the importance, because I agree with you. I had a number of reporters mention that one of the greatest debates they have seen yet on the Hill actually came about as a result of the suspension debate, not glorifying the actual debate but actually thoughtful, educated and legalistic. A number of people mentioned how interesting the debate was, and I've said the same. Sitting there, sometimes I was actually caught up in the moment.
Senator D. Smith: The thing is it may never have gone to Internal Economy because we never approved it.
Senator Furey: It has been discussed. It is listed as a future project for Internal Economy, but it is not included in the mains for this year.
The Chair: But the finances have been exposed as well.
Senator Furey: It is very topical right now.
Senator Batters: What year was the $2.7 million?
Senator Furey: That was more of a guesstimate than anything else, and that was estimated for current.
The Chair: It gives multiple stages, from full-blown TV coverage all the way down to web cam technology as well, different numbers.
[Translation]
Senator Nolin: My question also had to do with the interrelation between our responsibilities and Internal Economy's responsibilities in terms of rules. You referred to this, Mr. Chair. I think an effective relationship between the two committees should be articulated. This should be more than an approximation. I think that both we and Internal Economy have a responsibility when it comes to costs.
An effective relationship between the two committees should be articulated immediately. I must tell you that this has been a long process for those of us who have been here for a number of years. This is not the first time we are thinking about this possibility, and several of us have come to the conclusion that we need to start publicizing better. Video is definitely one of the tools we can use to make our business public.
Recent debates have convinced us that we are on the right path. I would not want this initiative to fall through because it is a financial matter that is not deemed to be a priority by Internal Economy, but is a priority for us. Or the opposite may be true. Internal Economy may find that the expenditure would be acceptable, but we may be late in accepting the principle. Is our privilege affected? If so, do we acquiesce to the analysis?
Excellent coordination must be established between the two committees, and we must know who is doing what and within what time frames.
[English]
Senator Furey: You're perfectly right, Senator Nolin. Finance has taken it as a project on a go-forward basis to make significant determinations about this. It became a topical issue just this year. Prior to this year, people talked about TV in the chamber, but nobody really cared a whole lot about it.
Senator Nolin: That's what I'm afraid of.
Senator Furey: Because no one thought it would get anywhere near the theatre that it got this year, but it is something on a go-forward basis that Internal and Finance are looking at seriously. You're spot on when you say it has to be coordinated with this committee.
Senator McCoy: First of all, let me say I've never been a fan of this action, but the consensus has been growing slowly over the years and I think it's best to bow gracefully to the groundswell here. I would like to put forward a couple of thoughts, perhaps three, and maybe even go so far as to call them caveats.
First, has anyone done any audience research or are we just working on anecdotal evidence? I myself have had people say, ``Oh, I saw you the other night on TV.'' Thank you very much, but that's 1 out of 33 million. Do we know who our audience is or how the Canadian audience works these days?
Second, I have some under-30-year-olds volunteering in the office. I asked them last night, as a matter of fact, when we had a Christmas get-together amongst ourselves: ``Tell me, do any of you watch CPAC?'' They all said, no, they don't even have cable. They take their laptops and dial into the website of whatever organization it is that they're interested in, and then they view whatever they're interested in. Young people don't have land lines anymore. I think we need to be acutely aware of the marketplace before we make any decisions as to how we proceed.
Three, one of the reasons that the ``Great Debate'' was riveting, apart from the drama and emotion, was that it was all done at once. There was one speaker and then another. We were all on the same topic, so you got to see the interchange, if you will, and the dynamics were interesting. The way we normally proceed on the Order Paper is that somebody will speak to an issue today, and two or four or six weeks later somebody else.
Senator Nolin: Within 15 sitting days.
Senator McCoy: Within 15 sitting days somebody else will speak. Most people are reading speeches often written by ``short-pants'' somewhere in some office off the Hill. It's not even as good as reality TV. I mean this is boring stuff.
Another observation I would make — and it was Senator Hays who first pointed this out to me a few years ago — is that the French Senate would be one to take a look at because they do a very good job of packaging their debates on their website so people can go and look at them. They actually bundle them together into a product that has some coherence. If we were able to put that kind of entertainment value to it, we could perhaps teach ourselves not to read speeches. Even if we're speaking two or three or five weeks apart, we could start to have a little more camaraderie between speakers and so on.
My last observation is that we senators are almost all over 60 years old. Our staff, as good as they are, have no experience with being entertainment moguls on the creative side, so please put a huge piece of the budget into getting top-notch consultants who can advise us. Make sure that they are the hottest thing since sliced bread. Let's do it and do it right; then I would be all for it.
The Chair: That's a great point. I don't know that Internal Economy has given much thought to the bundling of debates and putting them on our websites rather than looking for someone to carry the debates or that show.
Senator Furey: There has been some discussion on that, but the most important discussion right now is to make it user friendly so that people can actually go to a site and look for a topic or a debate. That's the thing that's most current.
Senator Cools: Good morning, colleagues. I apologize for being a few minutes late, but I'm sure we could see that the weather was a little bad.
I would like to make a couple of points. I think this committee, if it wanted to study the issue of televising the debates, must seek a mandate from the Senate chamber. That having been done, I want to address a few of the major points.
I would like to begin with the fact that this committee undertook a good deal of study on this very question within the last few years. I believe it was at the initiative of a motion moved by Senator Segal in the chamber. This committee had many meetings into the study. At the time I thought it was doing a pretty good job. Many good witnesses appeared, including a woman whose name was Martha Fusca, the sole female producer in public broadcasting. She gave some very good testimony. This committee has been seized of the question in the past. Perhaps what we could do is have a healthy debate on the floor. Maybe Senator Segal could resuscitate his interest, and so on.
I want to make a point: I have been here for many years. I'm probably the oldest person sitting at the table. The only competition might be Senator Smith.
Senator D. Smith: I'm older than you by a couple of days.
Senator Cools: Fine, you're still my senior.
I would like to say with some emphasis that I can recall several major debates when the public hung on every word coming out of the Senate for days and weeks. For example, on the Meech Lake Accord, the Senate took a slightly different approach from the House of Commons at the time. A task force of the Senate travelled to the Northwest Territories and Yukon. This was big news, and the debates were followed very closely at all times. As a matter of fact, one of our witnesses was Mr. Trudeau. He came to a Committee of the Whole convened by the Senate and testified for five hours — five hours of riveting testimony.
I can cite other debates. Free trade was another case where the public was hanging on every word. There was the GST debate, the abortion bill, and the marriage bill. As a matter of fact, the abortion bill was defeated in the Senate. If you recall, the free trade debate was a huge issue because senators had resolved that they would not pass the free trade bill without the then prime minister asking the opinion of the public.
There are large issues. I would submit to colleagues that quite often the debates that touch the public and are articulated, however complex or technical they may be in terms that the public can understand, we will always find a ready and willing public response to follow those issues. That has been my experience.
The Chair: The analyst advised that a fair amount of information was collected previously and, if the committee agrees, I can have that distributed.
Senator Cools: Actually, I would support that right now.
The Chair: Thank you.
Senator Cools: Some of these issues here are very difficult, but it is possible, with a little bit of effort, to articulate the most difficult and complex subject matter if one would take the time and put it in terms that ordinary human beings can understand.
Having said all that, colleagues, I would be very willing to support an initiative to study — it is a study, and we're talking about a study — to televise Senate proceedings. I think my opinion is already on the record here in this committee.
I would also like to remind colleagues that there was a time when every single newspaper and CBC and all these networks followed the Senate proceedings and House of Commons debates on a regular and daily basis. It was when those practices of report and following on reporting regularly were abandoned that we found the birth of an organization like CPAC. That's a tiny little bit of history.
I agree with Senator McCoy. Modernity and contemporary society demand that the public could go to their television sets and turn on —
Senator McCoy: Computers, laptops.
Senator Cools: — their computers and laptops. They are instruments. I think they now call it information technology. Whatever these instruments are, I think that the public should have ready access to Senate debates on a daily basis.
Colleagues, we should face the facts as they are. The reason that we have never reached agreement to televise the Senate is that the government of the day has consistently opposed the efforts. The difficulty has never come from senators. The difficulty has arisen from governments.
The Chair: Maybe we could replace the NHL with the CBC, starting in 2014.
Senator Cools: You know more about sports than I do. This is something that is very important.
A couple of days ago, I was reading one of the old masters, and that master had a whole paragraph on the importance of members of Parliament and the institutions constantly instructing the public, almost educating the public, in the means and the systems of Parliament. This is the first generation of Canadians who have no concept or knowledge whatsoever of the lexicon or the vocabulary of Parliament. That is a serious problem when people no longer have a knowledge of the language of governance.
I would support all those who have been on the side of moving into such a study. I would support that this committee lead on the study, and I would support that we do it in a very appropriate way. I would support that a motion be moved on the floor of the Senate and have a debate there as well.
Senator Unger: Further to Senator Cools' list of things that have engaged Canadians, I would like to suggest that there's one coming down the pipe right now, and that is the fact that the Supreme Court is making a decision on the government's proposals for Senate reform. We also know that Canadians have been very engaged in a dialogue about what to do with the Senate. That's another one that is coming that perhaps would be of great interest to Canadians.
Senator Cools: I think there's wide agreement, chairman, for you to move a motion.
The Chair: Senator Cools.
Senator Cools: I think maybe I'm a little enthusiastic.
The Chair: You are enthusiastic.
Senator Cools: But I only joined the enthusiasm that I heard here before. I was listening as I was taking off my boots. I really think there's a large public interest, a large public good, at issue.
Senator Enverga: With regard to the discussion about video, I was thinking that hopefully, if ever we're going to be deciding this, we should not encourage showboating like in the baseball when they jump and run. We shouldn't be a source of entertainment. At least at the end of the day, we should be able to have a ready transcript or video whenever it is needed.
The Chair: We could have a ``no hot dog'' rule.
Senator Enverga: No hot dogging, is what I'm saying.
Senator Martin: Good morning, colleagues. I apologize, but I'm going to be regularly late to committees due to the scroll meeting, which can't be scheduled at any other time. That's why I'm late each day.
I wonder if anyone has raised this, because I was late and I missed what was said earlier. I know when we have visitors in the gallery, they often ask why Senator Carignan is the only one answering during Question Period. That can be confusing to those visiting the gallery and those watching.
He speaks on behalf of the Government of Canada. People see various senators — independent senators, opposition members — rise to ask questions, and perhaps say something before their question in a preamble, but it is always the one senator on the government side. That confuses some visitors in the gallery. If it were televised, people would wonder, ``Why are my senators representing my province not saying anything on this particular topic?'' That's a very important point and a question of how we conduct Question Period and whether we keep it in the same format if it were televised.
The Chair: Thank you, senator.
Senator D. Smith: You can ask questions of committee chairs, and that I invite more.
I'm glad I raised this subject this morning because if we do nothing, I think it invites even more criticism. I think there's a consensus that we need to do certain things.
With regard to Senator McCoy's point about audience research, I understand that, and down the road we might look into it. That would be expensive. It is very meaningful, and I think we should keep that in the back of our minds. I find over 90 per cent of what's on TV boring. Some of them have spent a fortune doing audience research, and I find most of it boring. I watch news channels mainly.
Senator McCoy: You are going to be competitive.
Senator D. Smith: I will let you figure out who in the chamber might be inclined to ham it up a bit if they know they're on TV. I wouldn't qualify, but there might be one or two.
It is also possible that it would make more sense that, if there is stuff, it is something with highlights, but then who does the highlighting? You get into highlighting, and that becomes more costly regarding staff and stuff like that.
I think there's a consensus that we do have to be looking at it. We don't have to rush, rush, rush on everything, but I don't think we should be slow. We might consider whether we want to have a motion authorizing someone — perhaps you, Mr. Chair, and maybe the clerk — to reopen the dialogue with CPAC and hear what they have to say.
Then there is the francophone equivalent of CPAC. Senator Nolin's point is correct, of course, that whatever we're doing has to be equal.
I think that we have to start going down this road. We don't have to rush to conclusions, but that's why I brought it up. I think if we do nothing, we will get more criticism.
Maybe we should speak a bit to whether anyone has a problem with us authorizing our chair and our clerk to get a dialogue going with CPAC and the francophone equivalent.
I think Senator Mitchell's point was that if it's available on the web, then whoever wants to do editing and have highlights, can do it. Maybe we start by doing something like that.
The Chair: I think Senator Mitchell and I have had this discussion. My only concern about web access is that we still would have a requirement to be in bilingual format. I'm not sure that the work done around costing looked at the translation and things like that, because you would have to provide both.
Senator D. Smith: We already had translation for the senators.
The Chair: No, but I mean you'd still have to provide both levels of language. I guess that's my point, but I don't disagree with us continuing the dialogue.
Senator D. Smith: Yes.
The Chair: In fact, in my two years here, I've actually changed my opinion about the fact that we need to be publicized. I'm not sure that I believed in it in the beginning, until I watched a number of what I consider to be very good debates in relation to some issues.
Senator D. Smith: Well, the recent controversy has also exacerbated that.
The Chair: Agreed.
Is there agreement that myself and the clerk speak at least to CPAC and the French equivalent?
Hon. Senators: Agreed.
Senator Cools: Speak to CPAC about what?
The Chair: About whether they would give consideration to carrying —
Senator Cools: No. I think that's premature.
The Chair: You think it's premature?
Senator Cools: Yes. I think that the word in the business out there is that CPAC has a lot of history to it and that there are many newer and faster and better players on the scene. I think before we enter into any conversation with any one of them that could possibly build up expectations of us, I think we should include that in our study.
The Chair: But any good marketing scheme would look whether or not there's actually an audience to purchase versus an audience to sell to.
Senator Cools: I think we should give no organization any advantage. I think we should begin with a clean board.
Senator Batters: I wouldn't view that as necessarily giving them an advantage. I think it's just doing a bit of research to find out what the appetite is, whether that's even a possibility. This is the network that carries many of our committees and promotes itself as 24/7 politics on TV, so I think it's good knowledge and research to have.
The Chair: CPAC may have other venues other than TV.
Senator D. Smith: I was going to make the same point. It's not really giving somebody an advantage, when they're already carrying you, just to have a dialogue about the ongoing path that we're going to wind up doing. I think it's only courteous because they're already carrying us.
Senator Cools: Then bring them to the committee as a witness and all of us can hear them, not just the chairman.
The Chair: Thank you, Senator Cools. I'm sure that may occur in the future. But at this point, do we have an agreement that myself and Charles and possibly our communications director have a meeting with CPAC?
Hon. Senators: Agreed.
The Chair: Thank you very much.
On other future business, Senator McCoy, the floor is yours.
Senator McCoy: At the last meeting — and I'm sorry I missed it — there was an excellent discussion about framing what I would call a road map for a procedure that we would use in the event that it appeared there had been a breach of one of our standards.
As you know from my motion, which I spoke to last night, I have a great interest in this subject. I am pleased to see what I consider to be quite a few senators also interested and looking to move down this path, so I would greatly encourage that momentum to continue.
But I also came with an offer. As you might expect, of course I've been doing some research around this project and have looked at, at least initially, a sample of self-governing entities, some upper chambers and some others. There are many similarities across the board, but there are interesting differences between each of them. I think we might learn much by comparing and contrasting a handful of examples.
So what I've started doing is I've started putting the procedures from each of these different bodies into a flow chart, just to see how they run their process. It's like a road map.
Chair, may I distribute this? Thank you.
This is actually a generic flow chart, French on one side, English on the other. It represents a typical process that is followed when a self-governing body is looking at the question of whether its standards have been met?
So what I would propose to do is to have a similar chart. A half-dozen other bodies — the House of Lords, of course, the U.S. Senate. I looked very quickly at the French Senate. It doesn't look as if it's going to be too helpful. But we reach out to Australia. They have a proposal on the books. With annotations, bring this information back to the committee in January. So we can circulate it while we're on the break, if you like, and that could then help to inform our discussions.
One thing I would like to point out about this flow chart is the box at the top, which is numbered 1, which talks about established standards. What my motion is addressing, and what I'm hoping this committee will undertake, is mapping out the process for everything that's in colour underneath that. Those are the procedural steps that one would follow.
The little black box at the top refers to established standards, and, for example, Code of Conduct, which is the House of Lords, or in our case there's the Conflict of Interest Code; administrative rules, and in our case it's the Senate Administrative Rules. There are also, for example, the constitutional statutes that we have. All of those standards are established, and in this proposed project I am not talking about addressing any of those.
If we want to change some of our standards — and I think there are some that we should be looking at — that's a whole other project, some of which may be better discussed at the Conflict of Interest Committee, some better discussed at Internal, and some might be discussed here.
In that black box, I'm not proposing, in this particular research, to change any of the standards that we've already got. It's purely a road map as to how we would proceed in the event that a question is raised as to whether a given activity of a senator meets a required standard.
The Chair: Discussion? Senator Nolin.
[Translation]
Senator Nolin: That is a very nice initiative. Once again, I would like the executive committee to have a serious discussion with the ethics committee because I have a sneaking suspicion that this is exactly where they are headed. Instead of repeating a debate or an analysis that committee has already conducted, I would rather wait for you to have a discussion with Senator Andreychuk and come back to us.
The document Senator McCoy just suggested assuredly contains some interesting insights. I would not want us to do the work twice. I would like to know how much work the ethics committee has done when it comes to this issue.
[English]
Senator Joyal: I happen to be deputy chair of the Senate ethics committee.
The Chair: Excellent.
Senator Joyal: I think Senator Nolin raised an important point, and I would widen it. If we are to consider, and I think we should, the approach to a better system of disciplinary exercise of the prerogative of the Senate, it would also involve Internal Economy, because some of the breaches might happen presently under the jurisdiction of Internal Economy.
If there is any discussion among our Chair of the Rules Committee and other committee chairs, I think it should involve Internal Economy because we would be moving on their territory presently as things stand now.
On the other hand, it is totally right that the Senate ethics committee is re-considering the procedure. As a matter of fact, that's why I was late this morning. I was in a meeting with Senator Andreychuk on it and how we're going to be involving our respective caucuses, and so on.
There is no doubt that it also involved, of course, the Senate Committee on Conflict of Interest for Senators, because we already have a procedure, namely sections 44, 45 and following, and we want to improve on it to make sure that, especially on the issue of sanctions, there is a clearer procedure. In fact, we are studying that aspect also.
If we are to benefit from what is already in the Rules of the Senate in terms of what pertains to conflict of interest, I think that the two chairs, Senator Andreychuk and the Speaker, who happens now to be Chair of Internal Economy, should be consulted, not simultaneously but in the same initiative, so that there is a common understanding that we are not trying to invade the territory, or what I call the privileged territory up to now, of Internal Economy — we have seen it, of course, in recent weeks — and what the Conflict Of Interest Code is contemplating at this stage, so that we have a synchronized approach to the initiative.
I think that Senator McCoy certainly had that in mind when she was reflecting on it. Looking at the chart that she has given us this morning, it is a very interesting beginning, but there are many aspects that should be complemented.
In looking at it I notice that nothing addresses the issue of the presumption of innocence; nothing talks about the preponderance of proof. There is no mention of the possibility to be assisted either by counsel or to be represented by another party. There is also nothing under representation on sanction, which is a very important element of due process.
What she proposes is a very good step because it deals with the procedure of appeals, which is an essential element of due process. However, there are many other elements that we are contemplating at the Conflict of Interest Code review that we are conducting presently to be sure that we have a system that, as you said in your motion, respects the principles of natural justice and the principle containing the Charter and the Bill of Rights.
I would suggest to you, Mr. Chair, that you initiate that consultation so that there is a common understanding among the two committees regarding the rules so that the Rules Committee would be tasked with the responsibility of reviewing that in sync with what we have already in the Conflict of Interest Code. As I mentioned, the code contains a procedure that is certainly a good start to achieve the objective that Senator McCoy is pursuing and that is shared by many senators around the table.
Senator McCoy: Those are very good points. Thanks both to Senators Nolin and Joyal.
First of all, let me extend my offer further, not just to this committee but to all who are involved. I think it is absolutely critical to figure out which box everyone is playing in and what is being addressed, 100 per cent.
I'm only halfway through, but I will say this, Senator Joyal: This would be annotated. I have annotated, for example, the House of Lords, so that the details you are alluding to in terms of burden of proof and other rules, natural justice, fairness, and so forth, are also outlined in the annotations that would accompany each of these charts. So not only do you get a visual as to where you are — it's a GPS of sorts — but you also get an explanation of what is going on at that stage with these key points outlined.
What I'm offering to do, though, is research to bring back to share with everyone that will help to identify what options there may be in putting a process, a road map, together.
Senator David P. Smith (Deputy Chair) in the chair.
The Deputy Chair: Are there other speakers on this point?
Senator Cools: I am a little concerned. I think Senator Fraser used the expression last week ``developing a framework,'' and I do not think that the Senate was lacking frameworks for dealing with these problems. I really do not believe that. I do not believe that dealing with these problems in a better way was outside of the reach of the Senate.
The Senate put a lot of time many years ago, whether we like them or not, into developing a set of rules around what they call leave of absences, and so there was, very clearly, a lot of rules available to be used. I lived through that whole period of time when that whole set of rules — that whole bundle, that whole pocket of rules — was developed, so I remember very clearly the discussions in caucus and outside of caucus, and the work that was done.
We cannot really say that something did not exist. The problem that has to be looked at by somebody at some point in time is the fact that when action was defined by someone to be necessary and required, those actions stepped outside of the framework and the rules that were available. We should talk about this elephant which sits in the room.
We must understand those suspension motions in question moved on the premise that every other rule of the Senate had to be dispensed with, had to be abandoned. So if every single rule is abandoned, or rejected, or not withstood, then anything is possible. But there was a very clear framework. It may have been not as perfect as some might want, but it could have been perfected to handle the problem.
Chair, I think we should be forthright and take a look at that, too. Why was the existing framework not resorted to?
A lot of people, I have to tell you, back in 2001, I think it was, put a lot of work into that at the time, but when you begin a system by rejecting every single rule that exists — all rules that exist — well, then you end up in this position.
So I think wrapping ourselves into knots and pretzels because we don't have a framework is not a really useful or helpful fact. And if we really wanted to be helpful, we should begin by establishing again what the powers are; that we have to do those actions. I understand that we look at other jurisdictions, but the Senate does not have the power of judgment over its peers that the House of Lords has. So it begins with a whole set of powers that the Senate does not have and has never had, and I'm not saying that we shouldn't —
He always does this. Yes, I lost my train of thought. I really don't like it, chair, when we're speaking to you and other people at the table decide to speak to you. It's not nice.
The Chair: I asked the clerk a question.
Senator Cools: I don't care.
The Chair: I understand you don't care, senator.
Senator Cools: But he does it a lot. He does it in the chamber, and he does it a lot.
The Chair: Excuse me, senator. I asked the clerk a question; he responded with an answer.
Senator Cools: Okay, good.
The Chair: I would like to go back to Senator Joyal's comments, if I may.
Senator Cools: I want some response on the point that I'm making. It is not fair or true to say that we had no framework or that we had no rules or that we had no system. A lot of thought went into developing systems of response.
The Chair: And you see no opportunity to improve upon that framework, senator?
Senator Cools: I see ample opportunity.
The Chair: Okay, so that's really what we're talking about.
Senator Cools: As a matter of fact, what happened is proof that we have to do something. But we're not groping in the dark.
The Chair: Senator, I don't think anyone here said that we had no framework; I think they said we have an opportunity to improve upon a framework.
Senator Cools: That's not what I understood from last week. What I understood last week was that the first thing we have to do is develop a framework.
Senator Martin: I want to build on what Senator Cools was saying in that — and you just made that point, Mr. Chair — it's not that there was this absence of rules or no framework whatsoever, but rather that these were very challenging and, at times, unprecedented times.
When I got the flow chart I wanted to commend Senator McCoy because I know these take hours upon hours. So thank you for this visual.
I wish to say in this part of the discussion that I think it's important not to reinvent anything but to look at what we do have, because we do have very clear sets of rules and certain frameworks that have been applied and have been used very effectively.
So what can we do now at this point to continue to strengthen and improve what we have? I just wanted to add those comments, and thank Senator McCoy for preparing this very clear visual.
Senator Furey: I agree with Senator Martin. Thank you, Senator McCoy. It's an excellent starting point for us.
Senator Cools, I believe, is making an excellent point. She can obviously speak for herself, but what she's getting at is that we have to find some way of corralling the use of ``notwithstanding the rules.'' The constitution, unfortunately, won't allow us to use super-majorities or things like that. But we have to address this issue: When can a government leader come in and say ``notwithstanding all of the rules, we're going to do A, B, C, and D''? That's the issue that she's trying to get at, and that's what we have to try and address as a Rules Committee.
The Chair: Thank you, Senator McCoy. To be fair, we discussed it last night. I know how much goes into these, as well, and I appreciate you putting the time in. I think it will be helpful in particular when we are talking about the fact that we have three different committees potentially involved in some of this work.
Following up on Senator Joyal's comments, if it's appropriate that I meet with Senator Kinsella and Senator Andreychuk to figure out what the map looks like and who moves forward on what parts of this, I would suggest that that's maybe what it ends up being: people moving forward on parts of this rather than any one driving it all.
Senator D. Smith: I agree, but I don't think you should have a committee of three people, all from one side.
The Chair: In that case, I would welcome Senator Smith to be in that meeting with me.
Senator D. Smith: Okay.
The Chair: If I can share the pain, I will share that pain. Thank you very much. I never thought about that.
Senator D. Smith: You get my point.
The Chair: Great point, actually.
Senator Cools: With all the different chairs and deputy chairs, make sure at least two parties are —
The Chair: I will leave that to the other committees to determine whether it is one or both, but certainly I welcome Senator Smith's participation.
Is everyone in agreement here?
Some Hon. Senators: Agreed.
Senator Cools: One point might have been misunderstood. I'm a great supporter of Senator McCoy, and I think her submission is outstanding, as is everything else she does. I don't know how, in the course of any discussion, it might have even appeared that I was being critical.
The Chair: I certainly didn't take it as —
Senator Cools: As long as —
The Chair: I didn't take it as a critique.
Senator Cools: Good. Clarity is always desirable, and this piece of work that she has done represents a huge amount of energy.
The Chair: I was involved in many investigations in which I would have loved to have had Senator McCoy mapping out my investigation for me, trust me.
Senator Cools: The whole point is that this Rules Committee has a duty to study the use of the phenomenon of ``notwithstanding,'' and I don't think we can escape that.
Also, chair, I hope that from the previous discussion — I know you're going off to meet with CPAC — but I was hoping that we were going to arrive at some consensus here that you should be contemplating a motion in the Senate with respect to the committee's study. It would be nice if, when you were undertaking to meet with these people, you had that protection.
The Chair: I don't think I would be meeting with them as part of a study at this point in time, unless I misunderstood the direction.
Senator Cools: That motion may take a year or two in the Senate; you never know.
The Chair: On other potential future business, were there other discussions to be had? Nothing?
I've asked for a steering committee meeting for this week, so I would ask both Senator Batters and Senator Smith to find at least 45 minutes. My EA will reach out to your EAs, as well.
Senator D. Smith: We can discuss it when we adjourn.
The Chair: Perfect.
(The committee adjourned.)