Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 4 - Evidence - June 9, 2015
OTTAWA, Tuesday, June 9, 2015
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill C-518, An Act to amend the Members of Parliament Retiring Allowances Act (withdrawal allowance), met this day at 8:33 a.m. to give consideration to the bill.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: Welcome, everybody, to the Standing Committee on Rules, Procedures and the Rights of Parliament. I apologize for being a few minutes late. I want to thank our witness, member of Parliament John Williamson, for being here today. We'll get going right away so people can ask questions.
John Williamson, Member of Parliament for New Brunswick Southwest, sponsor of the bill, as an individual: Thank you for inviting me here today to discuss my private member's bill, C-518. Quite simply, this bill will penalize politicians who break the law by taking away their parliamentary pensions.
I'd like to begin by highlighting the current law already on the books which is that a member or senator can already be disqualified for their pension after breaking the law if they are forced from office. As we've witnessed, however, a member or senator will be paid a parliamentary pension if he or she quits before being fired by their colleagues. The purpose of my bill is to close that loophole.
Here is what this bill will do. First, it will add a clause to the Members of Parliament Retiring Allowances Act to take into account the situation where a senator or a member of Parliament is convicted of an offence which arose out of conduct that occurred while that individual was in office. It does this by using the same mechanism that is already in place for politicians who become disqualified for their offices.
The law already states that a member or senator will receive only their pension contributions, plus interest, as a lump sum when that parliamentarian ceases to be a member or senator by reason of disqualification and is expelled. The change being proposed is whenever a senator or member of Parliament is found to have committed certain crimes while in office, whether or not that person is still holding that office, that parliamentarian will have their pension revoked.
The second thing I want to accomplish with this bill is to make sure it will be applied to all future convictions of politicians, including for past malfeasance. For this reason, the bill will apply with respect to any person that is or was a member of the Senate or House of Commons and convicted after the date this bill receives Royal Assent and becomes law.
Some wonder if the law can be modified to repeal an entitlement and include a crime that occurred before the bill is law. The answer is yes to both. Yes, we can repeal a parliamentary entitlement and, as I mentioned, the law already provides under what circumstances that can be done.
There is certainly no issue on a go-forward basis. That is when the crime, the criminal charge and conviction all happen after the bill is law. Thus, regarding future convictions, after this bill becomes law, of crimes committed before that date, the answer is yes with certainty.
Colleagues, it can be done, for it has already been done. Legislation passed in 2013 in Nova Scotia strips the pension of any lawmakers convicted of a crime for which the maximum punishment is imprisonment for not less than five years.
In June 2013, an independent MLA lost his pension after pleading guilty to fraud and breach of trust charges arising from an expense scandal. He collected tax dollars after filing 10 false expense claims in 2008 and 2009. Today, this individual is not eligible to receive an MLA pension.
Some have expressed concern that this bill is too harsh or that it unfairly penalizes members of Parliament from both houses. The bar that I set in the original bill would strip the pension away from any MP or senator who commits a crime with a punishment of two or more years, which in debate I later suggested be raised to five years. Yet, I realized it was conceivable that somebody could be found guilty of a crime without the offence being tied to our parliamentary work. I don't believe this should be grounds for losing a pension.
In the example I cite on why the cross-the-board penalty didn't work, take, for example, vehicular manslaughter. A lot of us spend a lot of time driving around Canada, our districts, back home. If we were to hit someone or to run someone over, that would be a serious accident, a terrible tragedy; in my mind that did not meet the threshold. I tried to focus this bill on the misuse of tax dollars, not an accident. The intent of this bill is not to have someone lose a pension for an error or momentary lapse of judgment.
After many thoughtful discussions and debate in and out of the House of Commons, I settled on some two dozen infractions. They are all Criminal Code indictable offences. Each has a maximum sentence of five or more years. These are serious crimes and each one is listed in the bills as passed with multi-party and multi-partisan support in the House of Commons on February 4, 2015.
Thank you very much, Mr. Chair.
The Chair: I have a list already but I'm going to ask a quick question because I had an email sent to me when this bill was announced it was coming to our committee from a police officer referring to Colonel Williams from the military, convicted of homicide and still receiving a pension from the Department of National Defence. In the same way, this bill would not take a pension away from someone who committed a homicide.
Mr. Williamson: That is correct. This bill focuses exclusively on members of Parliament from both houses, the Senate and the House of Commons. It does not cover the public service or members of the Armed Forces.
The Chair: I mean it does not cover a member of Parliament who commits a homicide.
Mr. Williamson: No.
The Chair: That is, unless they do it in the house.
Mr. Williamson: No, you are correct. This bill does not. It focuses on two dozen infractions. It involves the misuse of tax dollars.
I should point out that under the current rules if someone were to commit murder and were to be expelled by the Senate or the House of Commons, they would still lose their pension.
The Chair: But if they took their pension earlier, they wouldn't.
Mr. Williamson: That's right.
Senator Wells: Thank you, Mr. Williamson, for coming and presenting. I have a question, and I'd like to know if you have given it some consideration.
A pension, in many jurisdictions or perhaps throughout Canada, is a matrimonial asset. Have you given consideration to the fact that this bill, if passed, would remove an asset from someone who would be innocent of any crime, for instance — if I committed a crime — my wife, who has rights under our Matrimonial Property Act to half of my pension? Have you given consideration to that aspect?
Mr. Williamson: I have, and that was the subject of numerous debates in the House of Commons. That is, if someone were to behave inappropriately, it would have an impact on the entire household.
At the end of the day, my view — and I think it was the view shared in the House of Commons — is that the strongest deterrent, perhaps the only deterrence against that, is for members of Parliament to behave responsibly so that asset is not lost. That was my first point.
My second, though, also involved standards. I didn't want to put members of Parliament from both houses on a different standard that I see throughout my district, for example. By that I mean if someone in my district is found guilty of a crime and they are the sole breadwinner and they're off to jail, that has an impact on the entire family. Perhaps more to your point, if someone, for example, in my district abuses the EI system, EI is disallowed for that individual for that family on a go-forward basis. There is no carve-out for the spouse and for the other individual. It was a debate and it's one that we reflected on long and hard. I certainly did. In the end, we decided to focus on this bill to repeal the pension and not have a carve-out for a spouse.
I will say this though — it is not like we're leaving the individual with no return on the funds they put in. Not only would our contributions be returned to someone who broke the law and was found guilty in a court of law plus interest, I will point out as well that under the reforms that our government made, our contributions for our annual pension contributions are increasing by a factor of four, I believe. Over say a 10-year period, you're looking at a return of about half a million dollars on the contributions alone.
That number is for the House of Commons; it would be a little lower for the Senate. But it does show there will still be a considerable return to the individual just on that person's own contributions.
Senator Wells: Did you get a legal opinion on the aspect of taking an asset from a person who did not commit a crime?
Mr. Williamson: On that specific point I did not because Parliament's own law already allows that to happen. If we eject a member, that member loses his or her pension and there is no carve-out for a spouse. I'm not creating something new here. I'm not writing a new law. I'm not looking to change the existing law that allows for that pension to be revoked. I'm actually proposing to close that little loophole that says you can avoid that penalty by retiring first. But again, the idea of revoking the pension is not mine. It's already in the laws that govern Parliament, including the provision that there is no carve-out for a spouse.
Senator Frum: Mr. Williamson, you told us about the amendments in the house that were made. Originally you wanted the bill to apply to any conviction over two years and you narrowed it down to specific Criminal Code actions. Were there any other amendments we should know about that were made?
Mr. Williamson: Thank you, senator, particularly as the senator who is sponsoring this bill in the upper chamber. Yes, I suppose there were several which I view as minor, but perhaps I'll share with you. You might take a different view. Initially I had proposed that the bill be made retroactive to the day it was tabled in the House of Commons in June 2013. That raised some legal and constitutional concerns, so it was changed to only come into force on the day the bill receives Royal Assent, so a small but a significant one. We want to make sure that this bill is not subject to a court challenge and is struck down, so there was that modification made to the bill. And the other two you pointed out, raising the threshold and then narrowing it.
I will not win the designation of "Mr. Congeniality'' in the House of Commons for this bill. It has not been a popular bill; it is one we approached with certain angst because of the concerns. We all put in a lot of time and we spend time away from our families to do these jobs, so we did not and I did not want to have a bill that would treat any individual unfairly. I quickly discovered the original threshold of two years I had proposed was not only going to meet opposition in the house, but was one that was frankly too low. We moved it up to the five years across the board, mimicking the Nova Scotia legislation, but even that created some complications.
It was a good process because there were members either in the house or outside the house who would raise concerns with me, asking what about this aspect or what about this law or what if I have a long gun that's not registered. There were lots of good examples. The one that was most powerful was the one I cited, which was the question of vehicular manslaughter. Again, I spend a lot of time in my truck. If I was to kill someone it would be a tragedy. I should be held accountable for that but that constitutes an accident and, again, the purpose of this bill is not to revoke pensions for an error but to focus on the two dozen crimes that I've outlined, which do involve the use or misuse of tax dollars.
Senator Frum: As you alluded to and Senator Wells said, there are concerns on some people's parts about the natural justice of double punishment. Can you talk about this from the perspective of the taxpayer and the public and their sense of natural justice; if a public official commits fraud and could still be enriched by their pension? I'm referring to the perspective of the taxpayer and the public, and their sense of natural justice, and how this bill applies to that.
Mr. Williamson: Look, there was a sense of double punishment, double jeopardy, if you like. At the end of the day, in this room, we have a unique privilege. We are in a privileged position to spend tax dollars. While we might debate that position we're in, the public does see it that way. So for me, the idea of having this bill become law is another very strong deterrent on any individual to break trust with the taxpayer.
Senator Jaffer: Thank you for being here. I have a follow-up on what Senator Wells was asking you, if I understood him, and then I have my own questions.
If parties are separated and one of them is a parliamentarian, they would have a future interest in the pension. You did explain that there are parliamentary rules. Can you expand on that, please?
Mr. Williamson: Sure. The current law governs parliamentarians as it stands now and I'm not making any change to this. If a member of the Senate or the House of Commons is ejected from either chamber by their peers, that individual loses the taxpayer portion of their pension. There's no provision for a spouse, whether or not they're still together, the pension is lost and what is returned to that individual are the contributions they made plus interest, full stop. That's the law today. This bill will just close the loophole that allows a member to retire before either chamber ejects that member after they've been found guilty in a court of law.
Senator Jaffer: My question was to clarify the member's job description; would this include any election fraud?
Mr. Williamson: It includes fraud.
Senator Jaffer: Is it fraud while you're doing your job, not any other fraud?
The Chair: Elections Act offences is what I think the senator is trying to get at.
Senator Jaffer: Thank you.
Mr. Williamson: It does not include Elections Act offences. I stuck to the Criminal Code, indictable offences, serious crimes, where the maximum penalty is five or more years.
Senator Jaffer: Are those just for offences while you're doing your job as a parliamentarian?
Mr. Williamson: Yes, ma'am.
Senator McIntyre: Thank you, John, for your presentation. What was your motivation in bringing this legislation forward? Does it go back to your days with the Canadian Taxpayers Federation? Will this bill act as a deterrent?
Mr. Williamson: Thank you, senator. I was the head of the Canadian Taxpayers Federation some years ago when former Senator Lavigne was found guilty of fraud, breach of trust, amongst other offences.
The Senate was set to expel this former member from its chamber and, in that case, he resigned first. He later served six months in prison, all the while collecting his parliamentary pension. I recall how I felt about that, and I recall how many Canadian taxpayers felt about that. They thought it was unjust, unfair and not right. That's where the genesis of this bill came from. Years later, elected to the House of Commons, I thought it would be a good loophole to close, so I've moved this bill.
I think it will be a deterrent. My biggest awakening in this job is the demand on my time, whether it is travelling home every weekend, dealing with constituents, dealing with fellow lawmakers, serving on committee or in the House of Commons. We all put a lot of time into our jobs. We value the work we do. We earn a paycheque and, over time, we earn a pension as well. I think, in addition to the current sanctions, this bill will serve as a strong deterrent on any individual who thinks they're going to take a shortcut and fleece taxpayers.
Senator McIntyre: As I understand, the sentence itself does not really matter. What really matters is the charge that the parliamentarian will face and the conviction; is that correct?
Mr. Williamson: That is absolutely correct. For example, in the case I just outlined with the member I mentioned, that individual was found guilty of fraud and breach of trust. These are all indictable offences where the penalty is a maximum of five years. The time in jail is irrelevant. In this case, this individual served only six months in prison. It's not the prison time that matters; it is the conviction and the crime that was committed.
Here maybe I am not being as tough as the public, but I think we have to draw the line at an area that's reasonable. I'm trying to look at crimes that are, in the eyes of the police and society and judges, serious.
Senator Furey: Thank you for being here, Mr. Williamson. I want to follow up on the questions that were asked about spousal rights to pensions. Spousal and significant others, I should say. You indicated clearly that, as the law exists, there are no provisions. I would think that any reasonable person would consider that unfair. You've also stated, and I quote you, that you don't want the bill to treat individuals unfairly. Should your bill not try to make allowances for this?
Mr. Williamson: No, because I begin by the assumption that the best way I can treat my family is to do right here. If I step out of line and if I, over time, deliberately and systematically break trust with taxpayers, break the law and am found guilty, I and my family are going to be held accountable for that. That's tough, but I think it's fair given the positions we hold as parliamentarians in the disbursement and spending decisions when it comes to tax dollars.
I concede that you have an argument. It's one that I heard frequently and one that was subject of much debate in the House of Commons but, at the end of the day, I and those who supported this bill made a choice that maintaining the current law as it stands with respect to the revoking of a pension would stand. There was no desire to change those provisions, and we didn't do that.
Senator Furey: There is one problem with your response, and that is it doesn't have to be systematic and over time. It can be a one-shot deal. The innocent party here is the spouse or significant other. He or she has absolutely no part to play in the offence but, over the years that their significant other or spouse is working as a parliamentarian, they are earning an interest in that pension. It's manifestly unfair to take that away, don't you think?
Mr. Williamson: Again, can you give me an example of a crime that would be committed that was not done on purpose or didn't involve some malfeasance or hiding the truth?
Senator Furey: Are you saying, though, that in every crime that's committed by a parliamentarian, that their spouse or significant other is implicitly involved in that?
Mr. Williamson: Of course not.
Senator Furey: They're innocent parties.
Mr. Williamson: I'm taking issue with you suggesting that somehow a member and their family is going to find themselves without a pension for an error.
Senator Furey: That's not what I'm saying, no. Your response was that the crime had to be committed systematically and over time. I'm saying that's wrong. It can be a one-shot deal towards the end of a person's career, and an innocent party, a spouse or significant other, he or she who has worked hard while their parliamentarian spouse or significant other was working away from the home, worked hard to earn that right, and we're taking that away. We're not using this as an opportunity to fix an already existing inequity. Why wouldn't we do that?
Mr. Williamson: Because that's not my bill. As I said, I disagree with your belief that spouses should be exempt from this. I disagree. As my wife says, don't commit a crime if you're concerned about the well-being of your family. Very simple. As well, and I'm going to reinforce this and I think you understand this, this bill is not looking to change the current provision. I think it's fine the way it is. I wanted to close that loophole that allows people to eject themselves out of here by resigning to avoid a sanction that's already in place and was passed by Parliament.
Senator Furey: I understand the intent, and I don't particularly take issue with it. What I'm taking issue with is the right of an innocent party that we're taking away here. We have an opportunity to fix an existing inequity, and it's passing us by. I think that's patently wrong.
I have one other quick question.
The Chair: Be precise, please.
Senator Furey: If a parliamentarian has a stellar career for 10 years and days or weeks before they leave Parliament they commit one of these egregious offences, is it fair that you take away all of the good work they did? Shouldn't you prorate how you dispense with their right to a pension?
Mr. Williamson: I disagree. They've taken away the good work they've done if they commit a serious crime. We do not allow allowances like that to exist in the private sector. If someone commits a white collar crime at the end of their career, they're held accountable. If someone commits a more egregious crime at the end of their career, they're held accountable. We can point to numerous people who are in prison and did good throughout their lives. They committed a crime and are now serving a sentence and paying the price to society. Lawmakers should be treated the same way.
Senator Furey: I'm not questioning that, but they don't all have their pensions taken away from them and their innocent spouses.
Senator Batters: Welcome to our Senate committee this morning, Mr. Williamson. I know you did struggle with the best way to include the offences you want this bill to target, so finally it seems like you have decided to enumerate those specific offences within the bill. Can you tell us more about what brought you to that decision as the best option and if you have concerns regarding just listing specific offences?
Also, more in keeping with some of the comments that a few others have already made, why have you chosen not to include other criminal offences like murder, sexual assault, distribution of child pornography and drug trafficking offences in this legislation? Wouldn't you think somebody convicted of one those grievous offences shouldn't collect their pension, while someone convicted of fraudulently using a telecommunication service worth $5,000, which is included in your bill, does not?
Mr. Williamson: That's an excellent question, and it's a fair point. The bottom line is that I had to craft a bill that was going to win support in the House of Commons, a bill that was going to achieve its objectives and win approval. As we all know, every time we vote on a piece of legislation in either the House of Commons or the Senate, we are making compromises. We do it every single day. We try to come out with legislation that's going to serve the public interest.
These provisions that I have listed here did two things. It focused really on the use or misuse of tax dollars in our day-to-day duties, and I'm told, and I think you'll hear from witnesses later on from the government, that itemizing this way strengthens the judicial test of this bill should it ever be challenged, having them numbered this way.
With respect to crimes outside of the ones I have listed, I would support that bill. I would support a bill that was broader, and I would support a bill that even applied to the public sector and to Armed Forces personnel. But I wanted to craft a bill that wasn't biting off more than I could chew and that I could put through a bill that was going to get at the root of what I was trying to get at, which is the misuse of dollars.
However, I would have no problem supporting such a bill if one comes forward in the next Parliament. Should I be reelected, I would support that bill. Again, this was designed to focus on the misuse of tax dollars and to win support amongst my colleagues both in the lower house and, I hope, the upper house.
Senator Joyal: It's a pleasure to see you. I read the bill quickly. If I read it well on the basis of criminal law, section 2, the person has to be sentenced. In other words, it is not based on the importance of the sentence — that is, the crime committed — but on the basis of whatever you're accused of, say, unauthorized use of a computer. At paragraph (l), the fact you are charged with unauthorized use of a computer and you are sentenced, say, to three months, you lose it. It is not based on the importance of the sentence; it is based, essentially, on the nature of the alleged crime of which you are found to be guilty.
Mr. Williamson: That's correct.
Senator Joyal: The pension feature is not based on the importance of the crime but on the category of the crime.
Mr. Williamson: That's true.
Senator Joyal: It is not based on the importance of the finding of guilt but on the fact that you have been party to an unauthorized use of a computer.
Mr. Williamson: On two points, you are correct broadly. I would say the importance of the crime does matter. I have not included minor infractions in this bill. These are indictable offences in the Criminal Code, where the penalty is a maximum of five years or more.
In addition, you are either guilty or innocent. This is not before our peers or a House of Commons or a Senate committee, this is in a court of law. You are right. Whether you receive a 2-year sentence, or a 6-month sentence, or a 10-year sentence, it is the guilt that matters, not the time behind bars.
Senator Joyal: What bothers me is section 718 of the Criminal Code, which is the section about sentencing. I know Senator Batters knows this, and my colleagues who are lawyers, such as Senator McIntyre, might know it. When a judge determines a sentence, there's the principle of proportionality. This principle has been reaffirmed by the Supreme Court in relation to gun crime possession. It is a recent decision from three months ago, the R. v. Nur decision. We discussed that decision at the Legal and Constitutional Affairs Committee three weeks ago when the Minister of Justice and the Minister of Public Safety and Emergency Preparedness appeared at committee. My concern is the following in terms of the Charter: The sentence is proportional to the seriousness of the crime. This has an impact on the sentencing. There is no doubt about it. A judge faced with a former parliamentarian will have to take into account that by sentencing the parliamentarian, he will also trigger the application of this section. It will have an impact on the proportionality of the sentence.
Did you take that into account — not you, but the author of the bill? I'm sorry, I don't want to embarrass you.
Mr. Williamson: No. Trust me, I had to consider virtually every possibility in the House of Commons. I recognize the seriousness of this bill and what it would do to individuals should they be found guilty. It is a serious matter to lose part of one's retirement savings.
For that, I relied on two sources. First, working with treasury officials about the constitutionality of this bill and the likelihood that it could survive a challenge, their opinion was that — and I don't want to put words in their mouth; I think you will be hearing from them — it has a good chance of surviving a challenge. Then I looked to a real-life experience, which is the law that is already on the books in Nova Scotia. That law was passed in 2013. It was actually retroactive to the day it was tabled, unlike my bill which takes effect only after it receives Royal Assent. An individual there, an MLA, was found guilty of fraud, breach of trust, for submitting false expenses five and six years before the bill was even tabled. This individual lost his pension as a result of that conviction.
There is a real-world example where it has happened as well. My third point, because you are raising a tough question, is that it is the crimes we're looking at here, not the sentence.
To go back to former Senator Lavigne, he was found guilty of some serious misuse of tax dollars. He only served six months in jail, yet he maintains his pension. I don't think that an individual, whether they serve 6 months, or 12 months, or 2 years, should hold on to a pension once they have been found guilty of some of these serious crimes.
Senator Joyal: I may submit to you very respectfully that it is not because the Nova Scotia legislation has been implemented in one case that it renders the principle involved into this unassailable in a court. I think I am asking you a fair question because if we are to pass this legislation — at least at Legal; this is the Rules Committee — we deal with the legalistic aspects of issues. I only read the bill this morning. I will have to review the case law in relation to the evaluation of the additional impact of sentencing that has been applied previously by justices and that has been appealed in court.
Mr. Williamson: Sure.
Senator Joyal: I think that is a fair reflection to have before saying yes, we vote for this bill — that legally it is soundproof.
Mr. Williamson: Yes.
Senator Joyal: As I said, it will survive a constitutional test based on section 718 of the Criminal Code.
Mr. Williamson: I don't disagree with you. It is a question worth asking. We asked the same questions in Procedures and House Affairs on the House of Commons side. I believe you will hear from a future witness concerning the points you are raising from the government's perspective about the likelihood of this bill surviving a court challenge.
It was very much in my mind the desire to pass the bill. I don't want to pass a bill that is going to be quickly struck down. I think this bill meets the test. I'm not citing Nova Scotia as the final arbitrator. I'm showing that as one example, where, in the real world, it has actually already been passed, implemented and enforced.
Senator Joyal: The other point is about the spouse. There is an element to it that seems to need additional reflection. We can think of a perfect couple, two loving partners that share a commitment in life. All of us who have been in politics know this, but this is the ideal situation. There are many situations I have known personally — and I'm sure you have known — where, during the term of the parliamentarian, the couple breaks up because the pressure is too much on the couple, the kids and whatnot. The person who is the MP is always absent and it puts strain on their spouse. You know that. I don't want to go into details.
Your bill doesn't seem to take into account that there are situations whereby the parliamentarian has family responsibility even though they might not be living together. A pension judgment is normally the recognition that there has been a problem and the MP has a responsibility to — I don't want to say his ex-wife — the wife he has been separated from and whatnot. The same applies to divorce because a divorce, of course, might compel you to pay a pension, depending on the particular details of the case.
Did you take that into account? The person is not living with the MP, but the MP has a direct legal responsibility to that person.
Mr. Williamson: Again, it was the subject of much debate and reflection. However, I want to stress that that aspect of the bill that you're talking about is currently the law that governs Parliament. If a member is disqualified from a pension currently, he or she loses that pension and there's no allowance for a spouse. My bill doesn't touch the current law. It is just closing that loophole that allows someone to quit before they're sanctioned by either house.
A past Parliament in their wisdom, which I happen to agree with, decided that if a member loses his or her pension there's no provision for a spouse. Perhaps a future Parliament will want to review that. Society, perhaps, has changed. But it is not something I included in my bill. I have left that question silent and I turn to the current law on that question.
Senator Frum: How long has the provision of a member being expelled because they've been convicted of an indictable offence been in place?
Mr. Williamson: That I don't know. I just know it is a law governing parliamentarians.
Senator Frum: In terms of your bill being challenged on that basis, that principle has been established already and has not been challenged?
Mr. Williamson: No, it has not.
Senator Frum: There is a principle embedded in your bill that parliamentarians and those in positions of public trust should be held to a higher standard than other members of the public. Can you address that? Should parliamentarians be held to a higher standard than other people?
Mr. Williamson: I believe they should. That is not perhaps written directly into the bill but it certainly is the backdrop to this piece of legislation. The belief that I hold, and I suspect others around this table do, is that we are in unique positions. We are sent to Ottawa to govern on behalf of 35 million Canadians. Whether or not we want to admit it, we are different. In their eyes we are unique. We are given special responsibilities. I believe, as does the House of Commons in the vote that was passed on this bill with multiparty, multi-partisan broad support, this bill reflects that and ensures that those who break the trust will be held to a higher standard as well.
I think that's fair and just. And I think it's also in line with public expectations.
The Chair: Has the legislation we have in place now ever been tested in the Supreme Court or Federal Court?
Mr. Williamson: Not that I know of, no.
Senator Furey: It's obvious, Mr. Williamson, you've given a lot of thought to this bill and you've had some extensive discussions on it. Some of the offences that are listed are hybrid. Was it your intention in the bill to capture people who were summarily convicted with a hybrid offence?
Mr. Williamson: I don't think there's any hybrid. I think they're just straight-up indictable offences.
Senator Furey: Section 342.01(1)(c) I think is hybrid. I have the code here in front of me.
Mr. Williamson: Just hold on.
Senator Joyal: I think it is hybrid.
Senator Furey: Is there a provision in the bill to prevent somebody who is charged summarily under that section from being exempted? It doesn't look like it.
Mr. Williamson: You've raised a good point. That amendment would have been put in at the Procedure and House Affairs Committee. It is not on the list that I submitted to them to include. Perhaps there is an exception with what I just said with respect to 342.
Senator Furey: I only have the French version here and my French is not up to scratch but I think 366 falls in there too. Would you recommend that we amend the bill to ensure that that doesn't happen?
Mr. Williamson: I would not. If you amend this bill, you kill this bill.
Senator Furey: You would be okay, given the intent that you have stressed here this morning, to be fair, which I very much appreciate, that somebody convicted summarily because of a flaw in the bill could lose their pension?
Mr. Williamson: Hold on. I'm not conceding there's a flaw in the bill. The bill went through numerous debates in the House of Commons. This bill does not reflect my work; it reflects the work of the entire House of Commons, debate in the House of Commons and the committee work there. I'm not responsible for the Procedure and House Affairs Committee. Those are elected members from the three major parties. In their wisdom they made some additions that were inserted into this bill. On the whole, I think it's a very good bill and I would urge the Senate to pass it through committee and then ensure there's a vote before we rise for the summer.
Senator Furey: Mr. Williamson, I very much appreciate the obvious hard work, thought and debate that have gone into this but I respectfully disagree that this is not a flaw.
Mr. Williamson: Very good.
Senator Joyal: Mr. Williamson, I read again the list of the crimes enumerated in clause 2(4). The first one obviously links to the role of a parliamentarian, as the example you gave in Nova Scotia. Somebody commits fraud to falsify his declaration to get more money from the government.
It seems to me there are other crimes mentioned there whereby there's no link with government. It could be in the private business of the parliamentarian. It could be linked to income tax. It could be linked to any other kinds of activities in which any ordinary citizen could find themselves involved.
It seems to me the intention of the bill, the way you have presented it, is you don't want a parliamentarian to use his position to milk the system, to put it in plain words.
Mr. Williamson: Yes.
Senator Joyal: However, it seems to me that the crime a parliamentarian may commit, using the advantages he has to benefit illegally from the system and the crimes he or she might be committing in his personal capacity, as I mentioned, in his business, for instance, I am not sure that the linkage between the two doesn't go overboard. Do you understand the nuance?
You mentioned Senator Lavigne. We know the circumstances of Senator Lavigne and you probably know better than me about the case you referred to in Nova Scotia, but the way I understood those two cases is that they used their status as parliamentarians to try to get benefits they are not entitled to, as I say, from the system.
It is different than if a parliamentarian, for instance, who has a business is involved in a crime in managing his business. That has nothing to do with his parliamentarian function.
Do you see the nuance? I know your intention; you have described it well. It's the Lavigne example that infuriated people. I can understand that.
Mr. Williamson: Yes.
Senator Joyal: On the other hand, if you go to an additional threshold then you really change something from the mentality and the status of a parliamentarian, and I need some sober second thought on this one.
Mr. Williamson: Very good.
Senator Joyal: You understand my point?
Mr. Williamson: I do.
Senator Joyal: Because there is a nuance between the two.
Mr. Williamson: There is.
Senator Joyal: It is an important nuance, especially considering the impact it might have.
Mr. Williamson: I agree. I will be brief, chairman. That was a discussion both in committee and in the house as well, that the law ought to be focused on our duties as members. I think the bill, the way it is drafted, covers that. I will leave you to reflect and have that sober second thought. That was an issue that was raised time and time again, but these are matters that involve our duties as members of either chamber here on Parliament Hill.
Senator Batters: I have a brief follow-up to Senator Furey's question. Just so we have it on the record, because occasionally courts look to Senate committees to determine legislative intent, it is your clear legislative intent here in drafting this bill and finalizing it that only indictable offences or those types of matters are the ones that you are really intending to capture here. You are not actually intending to capture people who are charged with summary matters.
Mr. Williamson: Well, look, I will put it in reverse a little bit. That was my intent. There have been two provisions pointed out that have been added to the bill. Again, as you know, bills are compromised pieces of work here. This has gone through numerous changes over the last two years, and we have a bill now before us which I believe focuses on our duties as members. I had put forward a number of amendments to focus it. Procedure and House Affairs have, in their wisdom, made additional insertions or amendments. I think it is a good bill, and I think this bill will withstand a court challenge. I think it is focused on our duties as lawmakers. It is one that is the result of compromise in the House of Commons and I hope that spirit will continue in your chamber as well.
The Chair: As a follow-up, the other offences that are listed, in cases where it is an election offence, they actually list the indictable portion of the election. Is it possible that the house committee missed the fact they would have to be by indictment, for example, and would have actually corrected that error?
The second issue I will raise is 426 is identified as secret commissions. My understanding is this legislation only accounts for offences where the penalty is more than five years, correct? Is that what you had said in the beginning?
Mr. Williamson: Yes.
The Chair: Five years or more? The penalty could be more than five years.
Mr. Williamson: Five or more, yes.
The Chair: Section 426 states:
A person who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
In fact, that section alone makes this portion of the legislation actually moot, because they could not be convicted of that offence, sentenced to four years, 11 months, and if it's a February, 27 or 28 days. They wouldn't be able to get five years. They would still get their pension even though having been convicted of a secret commission, as an example.
Mr. Williamson: I'm not following you. Section 426 is indictable, five years.
The Chair: No, it's less than five years. Not exceeding five years. Right? You said if they get an offence more than five years.
Mr. Williamson: No.
The Chair: Are you saying five years or more?
Mr. Williamson: It is where the penalty is —
The Chair: More than five years?
Mr. Williamson: The maximum is listed as five, and then there's some that are 10 or 14 years as well.
The Chair: You had changed it, I thought you said, to more than two years, and then now you said it is more than five years. Is it more than five years or is it five years?
Mr. Williamson: We kept five years. Instead of having it all crimes that are five years, we listed two dozen instead.
The Chair: In the case where they're convicted and receive five years, you are stating that they —
Mr. Williamson: The conviction doesn't matter.
The Chair: Where the potential could be for five years or more, not more than five years.
Mr. Williamson: You are talking about the crime, not the —
The Chair: I am.
Mr. Williamson: Not the conviction. The time in jail.
The Chair: I'm trying to clarify in the beginning whether we talked about whether the offence was five years or more or whether the offence was more than five years. That's all.
Mr. Williamson: Five years and more. For example —
The Chair: Because I don't have access —
Mr. Williamson: For example, fraud on the government, indictable five years; breach of trust, five years. Perjury is 14 years. Falsification of books and documents, five years; false return of public officer, five years; secret commissions, as you just pointed out, five years as well.
Senator Batters: Just on that, in reviewing the bill, the five-year requirement is not in this bill. That was just your guideline in enumerating these offences.
Mr. Williamson: Precisely. That was my broad guideline. Two, initially, was deemed to be too low. It captured too many offences that could result over a momentary lapse of judgment or an error. With five years, we were now talking about more serious crimes, and then they narrow down from that. No, the five years is not actually written in the bill. We have actually gone and listed the 24 provisions. You have correctly pointed out there were two amendments that PROC made to this. That does not conflict with another part of this bill which stipulates here is the threshold. We have listed the individual crimes. Those are the thresholds, not the standard that I had set. In its wisdom, there were amendments made in the house. I personally wanted to keep the retroactivity in place because of the Nova Scotia example, but my betters in the House of Commons suggested we change it and I took their counsel.
The Chair: Are there any other questions before we finish up with this witness? Thank you very much, Mr. Williamson.
Mr. Williamson: Thank you, all. I appreciate it.
The Chair: We have to move quickly this morning as a number of committees are sitting at 10.
This morning I welcome Michel Patrice, Law Clerk and Parliamentary Counsel and Chief Parliamentary Precinct Services Officer — the busiest of the three, I think; Nicole Proulx, Chief Corporate Services Officer; and France Lagacé, Senators' Pay and Pension Officer, Senate of Canada.
I want to thank the three of you for being here. I don't know if you have something you want to read beforehand. If not, we'll roll right into questions, if that's okay. We'll start with Senator Furey.
Senator Furey: Michel, as the Senate Law Clerk, you've heard the debate about the hybrid offences in the bill. In your opinion as law clerk, do these hybrid offences, 342.1 and 366, create unintended consequences that are patently unfair to individuals?
Michel Patrice, Law Clerk and Parliamentary Counsel and Chief, Parliamentary Precinct Services, Senate of Canada: That's a big question. You heard the witness before you, the sponsor of the bill, state, I believe, that his intent was to touch on indictable offences. Apparently, amendments were made that also included two offences that could be pursued either by indictment or by summary conviction.
Senator Furey: If we pass the bill in its present form, we are certainly moving away from the expressed intent of what the bill should be doing and making it law that somebody could actually have their pension taken away before being convicted of a summary offence.
Mr. Patrice: That would be the effect of the bill as presented before you, yes.
Senator Furey: Thank you.
Senator Jaffer: I'm looking at the proportionality test in this bill. Do you think what is proposed by this bill is reasonable and proportionate? Are there any additional safeguards that can be put in place for members?
I'm really concerned that this is going through quickly, or we have a gun to our heads that if we don't pass it, then it will die. We continue to have bills that have great challenges in them. I'm not disagreeing with the concept, but, again, we are being asked to pass a bad bill. You can't comment on that part, but comment on the proportionality.
Mr. Patrice: In terms of proportionality, that's a big question. Obviously, it will depend on the facts of the case. The proportionality test in 718 applies to the criminal offence or the infraction and the sanction related to that criminal offence. What you're looking at is the effect of that criminal finding of guilt, or that conviction, towards other entitlements as provided in the MPRRA. I'm not certain that the court would look at that impact when handing out the sentence.
Senator Joyal: On that same point, and on the answer of the witness, I don't have the Criminal Code with me, but those with their computers can look at section 718. Senator Batters has left, but there is an open section, which I will quote from memory, which says "and all other relevant elements or factors.''
There is no doubt that if I was the lawyer pleading or representing an accused who had been found guilty at the time of the sentencing representation I would certainly raise legally, on safe ground, the last section of 718 and all the other relevant factors the judge has to take into account to maintain the principle of proportionality that I raised this morning and that Senator Jaffer also raised.
No one will ignore the fact that there is an automatic, additionally important burden there on the status of the person who will be sentenced. We can't ignore that it's going to be part of the sentence; that is, elements of consideration.
Mr. Patrice: It will definitely be an effect of the conviction. There is no doubt about that.
Senator Joyal: There is no doubt about that, in my opinion.
As I said, it will be taken into account in the proportionality test that the court will have to apply in determining the level of the sentence.
The Chair: Is that a question or an answer?
Mr. Patrice: I think it's a comment.
Senator Joyal: Yes or no? Am I right or am I wrong? In your opinion, of course.
Mr. Patrice: These are considerations that are made by the judge at the time of the sentencing hearing. Obviously, I cannot substitute myself in the place of a judge and the discretion of a judge. However, there is no doubt that, with what you're raising, a judge would definitely consider those kinds of elements in terms of deciding on a sentence.
Senator Joyal: It was not my turn, but I think it was complementary to what Senator Jaffer was asking.
Senator Jaffer: We are just starting to study this bill. As with many bills we are studying, we don't have much time to do so.
I listened to the earlier witness. However, because of the unfairness of some provisions in the bill, with plea bargaining the member wouldn't lose his pension if it's so unreasonable or not clear. What does not having clarity in a bill do to a bill?
Mr. Patrice: The vagueness of a crime or the vagueness of the intent of a bill can effectively neuter the effect of that bill in general terms.
Senator Frum: There is some concern when people look at this bill because they believe it has a limited and prescribed list of offences that are included, such as use of a computer, but it does not include such crimes as murder, sexual assault or physical assault.
Can you explain to us what happens now in the case of either a parliamentarian who is convicted of these crimes while suspended from Parliament or a parliamentarian who retires and is found guilty of any of those more serious offences? What happens to their pensions in those cases?
Mr. Patrice: You mean a parliamentarian found guilty of murder, for example?
Senator Frum: For example; yes.
Mr. Patrice: As the sponsor of the bill explained, if that parliamentarian were to resign prior to being either disqualified or expelled, he would maintain his pension.
Senator Frum: There are no measures Parliament could take or enact, current provisions, to take the pension away?
Mr. Patrice: Not if the member or the parliamentarian has resigned prior to an action in terms of disqualification or being expelled by the House of Commons; not in the current state of the law.
Senator Frum: What if they are suspended at the time of conviction?
Mr. Patrice: There is a provision added in PRA in relation to suspension in the recent year. A parliamentarian suspended by a majority decision of his respective house ceases to accumulate pensionable time during that period of suspension. But it does not flow that he or she would lose the pension entitlement. It's just the accumulation of pensionable time during the period of suspension and that period of suspension will end when the house that suspended that member will also, by a majority vote, reinstate that pension right.
The Chair: As a follow-up, in the case of a homicide, this legislation wouldn't change that.
Mr. Patrice: No.
The Chair: If you commit a homicide, you take your pension, you would receive your pension and in fact this legislation allows no change in the fact that you continue drawing down on that pension, correct?
Mr. Patrice: Unless you've been disqualified or expelled by your house.
The Chair: But if you resign or retire, go to your pension prior that occurring?
Mr. Patrice: That's right.
Senator Batters: I would like you to explain the major changes we have recently made to the senators' pension benefits that we accrue.
Nicole Proulx, Chief Corporate Services Officer, Senate of Canada: As you know, there were some major changes following the Pension Reform Act. The biggest change is that in terms of pension contributions starting in 2017 the pensioners and the government will be sharing at 50 per cent.
Senator Batters: That's quite an increase to the amount that senators pay into it, isn't it?
Ms. Proulx: Yes, it is. Actually we have the numbers here.
France Lagacé, Financial Officer, Senators' Pay, Pensions and Benefits, Finance and Procurement Directorate, Senate of Canada: Starting in 2016, the contribution will be $1,870 per month. Then after that, in 2017, the contribution will be up to 21.59 per cent.
Senator Batters: There is also a change to how early a senator could start to receive their pension, correct?
Ms. Proulx: Yes.
Senator Batters: And what is that change? It used to be and what would it go up to.
Ms. Proulx: From 55 to 65.
Senator Batters: From age 55 to age 65?
Ms. Proulx: Yes.
Senator McIntyre: I want to raise with you the issue of expulsion. As I understand, under the current law in either house if you quit before you are expelled you can hang on to your pension, which is precisely what Senator Lavigne did. My understanding is that this bill would close this loophole; in other words, if you're found guilty, whether or not you're expelled, whether or not you resign, you would lose your pension; is that in fact correct?
Mr. Patrice: That's the effect of this bill in relation to the listed offences, yes.
Senator McIntyre: That's the logic behind this bill.
Mr. Patrice: That's right, as I understand it.
Senator Frum: As a follow-up to Senator Batters' questions, it is true though that if a person is convicted of one of the offences enumerated in the bill they do receive back their contributions that they have made to the pension. That part is returned to them and they don't get the government portion of the pension; is that correct?
Mr. Patrice: That's correct.
Senator Joyal: Am I right in saying that a member can be expelled from the house, either in the House of Commons or in the Senate, if that person, for instance — and I take the example that I think Senator Batters has mentioned — were found guilty of possession of child pornography? Would that person be expelled from either of the houses if a member of Parliament or a senator had been found guilty of that?
Mr. Patrice: You're talking about a question of whether each house has that power to expel?
Senator Joyal: On the basis of a sentence for a serious crime — sexual assault or something like that.
Mr. Patrice: One would suggest that they have that privilege in terms of their disciplinary power.
Senator Joyal: In other words, a senator or a member of Parliament could be expelled in the exercise of the disciplinary power that each house retains in terms of parliamentary privilege, and in that specific case the parliamentarian will still be entitled to hold his or her pension.
Mr. Patrice: No, if they're expelled by the House of Commons and disqualified by the Senate, the MPRA also provides a return of contributions in the same fashion that the sponsor of this bill provided, so then they will lose their entitlement of pension.
Senator Joyal: If that person is found guilty of one of the offences listed in the bill, do I presume that they will also lose their pension?
Mr. Patrice: Yes.
Senator Joyal: And be reimbursed?
Mr. Patrice: The contribution that they made to the pension plan, yes.
Senator Joyal: In other words, at first sight there is no distinct regime for a parliamentarian who has been found guilty of a serious crime and who is the object of an expulsion?
Mr. Patrice: I believe the distinction that has been made by the sponsor of this bill is that regardless if that parliamentarian had retired or resigned before the finding of guilt, he or she would also lose his or her right to the pension.
In terms of the disciplinary power that we're talking about, in the current state of the law, if the parliamentarian resigned before the decision is made by either house to disqualify or expel the member, he or she would retain the pension.
Senator Joyal: In other words, there would be two regimes in a specific situation?
Mr. Patrice: If you compare, for example, murder versus the list of offences.
Senator Joyal: Let's use sexual assault, which could be more common than murder.
Mr. Patrice: If you compare a listed offence versus a non-listed offence under the Criminal Code, you're right, there will be two effects.
Senator Joyal: Two regimes — two different sets of consequences.
Mr. Patrice: That's right; you can say that, yes.
Senator Joyal: It's up to us to decide if this is fair or not?
Mr. Patrice: That's a policy question, yes.
The Chair: I have a question surrounding discharge. Some would argue that you're found guilty but not convicted, you receive an absolute discharge. What is your perspective — since we don't have Justice officials here — around someone who receives an absolute discharge in relation to some of these offences and whether or not they would be captured under 518?
Mr. Patrice: That's a very good question. In terms of the absolute discharge, I believe section 730 of the Criminal Code provides that somebody who receives a discharge is not convicted.
The Chair: They would not be captured under 518?
Mr. Patrice: They would not be captured because it's based on conviction.
The Chair: Certainly, it's a concern. In my former role when police officers were in trouble, courts would make those types of decisions to allow the officer to maintain their employment. We were seeing, as somebody mentioned earlier, the courts would take into account the secondary type of penalty they might receive as a result. So that's always a concern.
Senator Frum: To boil it down in simple language, the debate we've been having about whether or not it's fair to take away a parliamentarian's pension because they have been found guilty of committing an indictable offence, that debate has already been settled by the parliamentary act. We do take away pensions from people. If they are sitting members, we take away their pensions now. But this bill is addressing if that member is clever enough to resign first then they can keep their pension. Isn't that it in a nutshell?
Mr. Patrice: In a nutshell, it could be characterized that way.
The Chair: I want to thank everyone for today's meeting and thanks to Senator Seidman for sitting in for Senator Housakos.
(The committee adjourned.)