Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 3 - Evidence - September 23, 2014
OTTAWA, Tuesday, September 23, 2014
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 10:32 a.m., pursuant to rule 12-7(2)(a), for the consideration of amendments to the Rules of the Senate; and for the consideration of a draft agenda (future business).
Senator Vernon White (Chair) in the chair.
[English]
The Chair: I call to order this meeting of the Standing Committee on Rules, Procedures and the Rights of Parliament. It's a fairly short meeting today. We have one agenda item, so we'll jump into it as quickly as we can.
Before we do, I just wanted to welcome Senator Tkachuk as the newest member of the committee. We are supposed to clap, I think. Thank you very much for coming here.
The meeting today specifically refers to consideration of amendments to the rules in relation as a result of amendments to the Conflict of Interest Code for Senators. On April 1 and June 16, 2014, the Senate adopted the third and fifth reports of the Standing Committee on Conflict of Interest for Senators, which has been renamed Ethics and Conflict of Interest Code for Senators. The reports noted consequential amendments would be required to the Rules of the Senate, and it would require them as amendments to the code.
The Standing Committee on Conflict of Interest for Senators, therefore, recommended that this committee undertake a study with a review to recommend the appropriate consequential amendments.
You have now in front of you the changes that are recommended. We have with us Michel Bédard, Parliamentary Counsel, from the law clerk's office who has been involved in the drafting and development of this report. We discussed at steering last week briefly that we would try to bring this forward, and if we could deal with it today, we would. If not, then we would push it forward, but at least we would get it into the room, get in front of everyone, and we could go from there.
So I will allow Mr. Bédard to briefly describe the changes and then you can ask questions if you wish, and we'll try to get finished in the next 30 minutes or so.
Michel Bédard, Parliamentary Counsel, Office of the Law Clerk and Parliamentary Counsel, Senate of Canada: Thank you, sir.
As the chair explained, the purpose of this report is to make consequential changes to the Rules of the Senate forming amendments that were made to the Conflict of Interest Code. This is the established practice when the code is amended. The appropriate changes are also made to the Rules of the Senate, and this practice was followed when the code was amended in 2008. In 2009 the Rules of the Senate were amended.
This time the code was amended in April and June of this year, and some consequential changes are required to the Rules of the Senate. All the amendments that are proposed in this report are just consequential changes; there are no substance or policy decisions. All the policy or substance decisions have already been included in the Ethics and Conflict of Interest Code which was adopted by the Senate, so all the changes in this report are technical and consequential changes.
The title of the code and the title of the committee were changed to Ethics and Conflict of Interest Code for Senators instead of just "conflict of interest." So everywhere in the code or in the rules where "conflict of interest" appears, there will also be the reference to "ethics and conflict of interest."
There are about 14 specific recommendations, and if it is the will of the committee, I could go through all of them, but as I mentioned they are just consequential.
Senator Nolin: I think it's preferable.
The Chair: Go ahead.
Mr. Bédard: On page 2 of the draft report, the first recommendation is to add "Ethics and" everywhere the title of the code appears, so the rules refer to the appropriate title of the code. This is Recommendation 1.
Recommendation 1 is for the code and Recommendation 2 is for the committee.
Recommendation 3 is just to replace a reference to a specific section of the code that has been renumbered in the new code as amended, so just a consequential technical amendment.
Recommendation 4 is to ensure that the Speaker, when he calls a vote on a matter, informs the house that the senator who is the subject of a report from the committee cannot vote on the matter, so he won't call his or her name when the Senate proceeds with the vote.
Recommendation 5 is to have the word "ethics" to a reference in the marginal note, actually, so it's very technical.
It is same thing with respect to Recommendation 6. It's just to replace a marginal note that referred to conflict of interest. Now it's just a reference to the quorum of the committee, so it's a neutral reference.
Recommendation 7 is a change in the terminology of rules 12-28(1) and 12-28(2) because from there on the Ethics and Conflict of Interest Committee will no longer conduct investigation. The previous version of these rules referred to investigation. Again, it's a consequential amendment to the rules.
Recommendation 8 on page 4 is to remove a reference and make a small improvement in the terminology of rule 12-30(1).
Recommendation 9 is to remove references after two subsections that are no longer required as a result of amendment to the code.
Recommendation 10 is to include in the rules a section of the code which clarifies that the Senate, when it deals with a report from the committee, can refer the report to the committee for further study. The second part of Recommendation 10 deals with the right of former senators to appear before a Committee of the Whole during the study of the report by the Senate.
Recommendation 11 is renumbers two rules to take into account that two new rules were included in Recommendation 10, so very technical.
Recommendation 12 is with respect to the right to vote of a senator who's the subject of a report from the committee. There was an amendment in the code making clear that a senator could not vote on such a report, and this amendment will be include the same rule in the Rules of the Senate.
The Chair: Questions? Comments?
Senator Furey: To go back to page 3 for a minute, you referred to senators who have declared a conflict of interest not being called, but it also refers to a senator who's the subject of a report; correct?
Mr. Bédard: That's right.
Senator Furey: One other quick question. On page 4, what's the purpose of No. 8?
Mr. Bédard: The purpose of No. 8, there was a reference at the end of subsection 12-30(1) that had to be removed. As well, the previous terminology in this subsection was a bit ambiguous, so a change was recommended in the terminology, but it does not affect the substance. It just makes it clear that it is a report of the committee concerning a senator. The language is more neutral.
Senator Furey: So that's not a substantive change, the five-day deeming provision?
Mr. Bédard: No, the five-day deeming provision is already in the rules.
Senator Furey: I'm sorry if the question sounds simplistic, but this is the first time we've seen this. Thank you.
Senator Tkachuk: Can I do a follow-up on what Senator Furey asked on No. 8?
The Chair: Sure.
Senator Tkachuk: What does the wording say now?
Charles Robert, Clerk of the Committee: The current text of the rule is:
A motion to adopt a report of the committee on the conduct of an individual Senator shall be deemed moved on the fifth sitting day following its presentation, if the motion is not moved earlier.
So the underline that you see is where the change is being made.
Senator Joyal: This question might sound a bit abstract, but on which constitutional base can we prevent a senator from voting when the commission of a senator is to come and vote and express his consent?
Mr. Bédard: As I said at the beginning —
Senator Joyal: Section 91 of the Constitution is quite clear. It seems to me that there has to be a constitutional base for the chamber to prevent somebody from voting.
The Chair: Conflict of interest.
Senator Joyal: I raise the question. I'm sorry. I don't want to take you by surprise.
Senator Nolin: I hope you reflected on that, the substantive amendment to the code.
Senator Joyal: It's a very fundamental question. Again, I don't want to open a seminar debate type of question, but if we are to approve this, we have to be, I would say, in our right as a chamber to affect the constitutional duty of a senator to vote.
Senator Furey: I'm glad you raised that, Senator Joyal. In the past it was really a decision of an individual senator to clear a conflict and decide not to vote because of that declaration. Now we're saying that that senator's name is not even going to be called, and we're taking away a fundamental right of a sitting senator. I think Senator Joyal is quite correct in saying that this may create some constitutional issues for us.
The Chair: Other comments?
Senator Nolin: I have made my comment.
The Chair: I would like it on the record, if you don't mind.
Senator Nolin: I hope the Conflict of Interest Committee reflected on that very important question when it introduced the amendment, the substantive amendment to the code.
What was your answer, Senator Joyal?
Senator Joyal: It strikes me now that before we invite a senator to not vote, which is something that in my opinion is totally correct, it doesn't raise the constitutional duty of a senator; but once you say you lose your right to vote, that's another thing.
Senator Nolin: Is it similar to when a senator is "suspended"?
Senator Joyal: We have the right to suspend, but the right to suspend is a sanction. It refers to the disciplinary power of the chamber to exercise discipline. In that case, it's not discipline.
Senator Nolin: It's "pre."
Senator Joyal: Yes.
The Chair: If I may, Mr. Bédard believes he has a response that he believes might satisfy the query. And if he doesn't, we'll correct him immediately, I'm sure.
Mr. Bédard: I'm sure I will be corrected if I don't provide a satisfactory answer.
The current rules, as they stand right now, also prohibit senators from voting when they make a declaration of private interest. So if you have a private interest in the matter, you have to make a declaration. Once you make this declaration, you cannot vote on the matter and you cannot participate in debates. This amendment was made in 2008, when the committee was conducting a comprehensive review.
The amendment that was made in the code this time around actually affords greater certainty to the amendment just to clarify that when there is an inquiry report on a senator, the senator has a private interest in the matter. So it is just for greater certainty.
If you look at page 2 of the report at the end of the page, subparagraph (a), the Speaker already announces the names of the senators who have made a declaration and cannot vote and the speaker won't call their names during the vote.
Senator Furey: It doesn't change the basic premise.
Senator Joyal: There is a nuance. I could come forward and I say, as I did in the past, that I have a conflict of interest here because the legislation will affect my financial interests. Suppose it's banking legislation. You will remember, Senator Tkachuk, that you were in the chamber when I rose and said, "I don't want to vote on this."
Senator Tkachuk: Yes.
Senator Joyal: Which I think is to protect the integrity of the institution, because senators should not appear to vote to benefit for themselves; then we protect the public interest.
In this case, it's not the issue. The issue might be that I have been the object of an investigation, and suppose that I challenge the conclusion of the investigation; then I would vote against the report. Of course I challenge the conclusion that I've been responsible for that breach of conflict. I should have the right to stand up and say that I'm against.
I don't see the public interest being served in the same way than I vote for myself a benefit through the banking legislation. There's a nuance between the two.
Senator Furey: Section 4 includes senators who are the subject of a report. Senator Joyal is right to raise that issue, because the only appeal from the committee for a senator is to the full chamber. Now you're going to say you can come in and appeal in the full chamber, but, sorry, you're not allowed to vote?
Senator Tkachuk: I was going to raise the same point. When I volunteer and I say that I have a conflict of interest, it's clear that I'm doing that because I wish to withdraw myself from that vote. But on the question of the report, I may totally disagree with and argue with what's going on in the report. It's not unknown that the Senate may take politics into consideration, so sometimes this report may not be exactly kosher. I think the senator should have a right to defend themselves, and I don't see it as a conflict that they would be voting against a report. Obviously if they disagree with the report, they're voting against the report.
Senator Joyal: I'm sorry to have opened this discussion.
Senator Tkachuk: No, it's a good point.
The Chair: Senator Smith, is it in relation to this, or it was in relation to another comment?
Senator Joyal: It seemed to me when I read it, as I say, to volunteer yourself to withdraw because you don't want to —
The Chair: I want to let Senator Smith finish because I've bypassed him four times. I apologize.
Senator D. Smith: I can't finish until I start.
I think Senator Joyal has raised a point. When he raises a point on a procedural and rules matter, I always listen. I may not always agree, but I think it warrants a review that might take another week or so.
Let me just say that one of the reasons I'm sitting here — and I would like to emphasize this fact — is that the tradition of this committee has been that we don't really have sides. That's been the tradition. The tradition is that we try and work together and come to a consensus.
Recently there was a debate in the chamber, and that debate isn't over yet, when something was kind of rammed through, and that's never been our tradition. We don't have to have unanimity, but we try to get a consensus on both sides.
I'm quite comfortable with the report as a whole, but I think that Senator Joyal has raised something that could have a second look, and we can try and have a comfort level that reflects more or less a consensus of this committee.
The Chair: Maybe we'll have you read on about the consensus thing every meeting, senator, because I think your point was made previously as well about consensus on the committee. I'm not actually overly appreciative of the comments today.
Senator Batters, please?
Senator Batters: I just wanted to make a comment. I don't necessarily agree that a senator who's the subject of that type of report would be able to vote. To me, that's the very essence of a conflict of interest and I think they should be recusing themselves from that vote.
The Chair: Senator Joyal, please?
Senator Joyal: I am the author of my own turpitude in a way because I was part of the discussion. I am looking at Senator Frum. We are both — I am not alone on my island.
When we discussed that at the Conflict of Interest Committee, the point that Senator Batters raised was right. We say, yes, he or she is in conflict of interest because he votes on himself.
But, on the other hand, there is the point that Senator Tkachuk has, in my opinion, put forward well, which is if I disagree, I stand up in the Senate and I say, "I don't agree with it and here are the reasons for it, and that's why I ask you to vote against the report."
Senator Tkachuk: Exactly.
Senator Joyal: That's what I would do if I were to disagree with a report. I would plead my case and I would say, "I ask you to vote to reject the report or to amend the report."
In that case everybody would expect that I would be against the report and I would vote against the report. There's nothing that shocks me that I'm in a conflict of interest because I'm voting against a report where I have been arguing in the chamber the reason why I'm against the report.
Maybe one way to solve this would be to ask for the legal advisers, Mr. Patrice and Mr. Bédard, to review that and see maybe in other jurisdictions what they have been proposing in relation to that, because, again, I'm looking at Senator Frum. We on the Conflict of Interest Committee have been looking into the provincial codes and the codes of Westminster and Australia to see how they have approached this, trying to redo the reasoning around it.
Again, to me, to disenfranchise somebody is not the same as to invite the person to withdraw from the debate or the discussion. When your right as an individual to be sanctioned by a body is at stake, I would be tempted to give more rights than to withdraw them, because you're the object of a disciplinary sanction. There are fallouts from the decision of the Senate.
I would think about it again. Maybe at the next meeting we could review that.
Senator Frum: Senator Joyal reminds people I'm also on the Conflict of Interest Committee, and I was party to these debates we had about this. Frankly, we didn't have as big a debate at the time because I think we all saw the inherent quality of the very clear conflict of interest an individual would have voting on their own case. If it's constitutional to expect and demand a senator to recuse themselves from a vote for financial interests, if that doesn't suspend their constitutional right, then it boils down to this: Do they have a clear conflict of interest voting on their own report? I think the answer is pretty self-evident, that they do.
To your earlier point, which I completely agree with, it does not prevent them from making a statement. Speaking to the report is one thing and voting on it is a separate matter. They are two separate things. The senator has the right to do the first.
Senator Joyal, you are a very big defender about the dignity of the Senate, and I think when we discussed this at our Conflict of Interest Committee, that was very much on our minds: How would it look if the senator is entitled to vote on their own innocence or guilt, or their own verdict on their own report? It just doesn't hold up, in any other context, that that is allowed in any other environment. So why here? Why that kind of special privilege here? We're always so sensitive about that.
Anyhow, I do understand the frustration this group might have that we didn't hash this out at Conflict before presenting it here.
The Chair: I'm glad you're here to explain it.
Senator Batters: I have a couple quick points. Yes, I wanted to bring up in response to Senator Joyal that you certainly are allowed to plead your case. There are specific provisions here among the changes, like this new 12-28, even when the committee is meeting in camera, the senator who's the subject of an inquiry report may attend and participate in deliberations, so certainly there are all kinds of opportunity afforded to do that, just not to vote.
I immediately thought of a situation where if you were a bencher of a law society and you were the subject of disciplinary proceedings, you certainly would not be allowed to sit as a bencher on that particular panel and vote on your own disciplinary situation. That's what came to mind.
Senator Furey: There are still two issues here. One is whether or not it's appropriate, and we have heard Senator Frum and Senator Batters on that, but the second one is whether or not it's constitutional. I think Senator Joyal's suggestion that we have somebody look at that particular matter is appropriate.
I just want to go back to page 3, where this occurs. I apologize; I don't have the code in front of me and, as I've said, this is the first time we've seen this, but subsection (b), are the underlined portions the actual changes?
The Chair: Yes.
Senator Furey: And you're telling me that's not a substantive change?
Mr. Bédard: The substantive change was actually made in the Conflict of Interest Code when the code was amended and concurred in by the Senate.
Also, I will refer you to —
Senator Furey: Sorry to interrupt you. Does that mean that (b) is — and again, I apologize, as I don't have the code here in front of me — new, all new?
The Chair: What is it replacing?
Mr. Bédard: Subparagraph (b) was not there before. It is new.
The Chair: That's a substantive change.
Mr. Robert: Here is the new code.
Mr. Bédard: This part of the report is actually just about the procedure when the Senate is about to vote on a matter. If you want to look at the actual —
Senator Furey: Just elaborating on section 5, the new section 5 of the code?
Mr. Bédard: Yes.
Senator Furey: Thank you.
Senator D. Smith: I agree with Senator Furey that we're not leaping to the conclusion about the right to speak there, but I think there's absolutely no downside in inviting the input of our constitutional experts to come back with a report as to whether or not this is a constitutional issue. They may say no, and that may address it. But they might say yes, and there's certainly no downside to doing that. It's not a very timely thing. Maybe do it in a week, but I think that's the appropriate thing to do.
The Chair: So unless there's further discussion, Senator Smith, thank you. If we can agree, we'll send it as suggested and bring it back at the next —
Senator Joyal: I will do my own research also. I'm sorry to have raised it this morning.
The Chair: That's okay. That's what we're doing this morning.
Senator Joyal: I totally concur with Senator Frum. What she said was mentioned. But again, we didn't maybe go a step further and say, "This happens, and this is acceptable for X, Y, Z reasons," on the constitutional aspect of it. What she said is perfectly what was mentioned around the table.
The Chair: I do appreciate the fact. What it feels like it should be and what constitutionally it should be are maybe two different things. It would allow us as well to look at the authority we have to make these changes. We'll bring it back at the next meeting of the Rules Committee if everyone is in agreement.
Hon. Senators: Agreed.
The Chair: Are there any other comments?
Senator Tkachuk: A question on "former senator": Is No. 10 all new? I think it is Item 10.
Mr. Bédard: The provision on a former senator is a right that is provided for a former senator to appear before a Committee of the Whole. The provision is already in the Ethics and Conflict of Interest Code for Senators. The amendment is just to make sure that the right also exists in the Rules of the Senate. Otherwise, the Speaker has no authority over the code and cannot invoke the code in the chamber. That's why it needs to be reproduced in the Rules of the Senate.
The Chair: Okay, senator?
Senator Tkachuk: I think so.
The Chair: If not, I'm sure you'll bring it back next time.
Senator Tkachuk: The way it stands now, it's in the rules of the ethics committee. Is it the same language if a report of the committee deals with the conduct of a former senator? It was done before, even though it has not been part of the rules of committee before.
Mr. Bédard: There is no precedent where a former senator appeared before a Committee of the Whole, but the amendment is to make sure that the appropriate provision of the code is reflected in the Rules of the Senate. This is consequential.
The Chair: Nothing else?
(The committee adjourned.)