Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 2 - Evidence - June 14, 2016
OTTAWA, Tuesday, June 14, 2016
The Standing Senate Committee on Rules, Procedures and the Rights of Parliament met this day at 9:32 a.m., to continue consideration of the case of privilege relating to the leaks of the Auditor General's report on the audit of the Senate.
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Good morning everyone. The Standing Senate Committee on Rules, Procedures and the Rights of Parliament is continuing its study on the case of privilege brought by Senator Hervieux-Payette. Today, we are pleased to hear from a senator who would normally be sitting with us, but who today is a witness. I am referring to the Honorable Senator Serge Joyal, who is not only a senator, but also the deputy chair of the Standing Senate Committee on Ethics and Conflict of Interest for Senators.
[English]
We had an agreement for the chair of the committee, Senator Andreychuk, to appear at the same time so that we would have the chair and the deputy chair. Unfortunately, she has been called away on parliamentary business. However, we have no doubt that Senator Joyal will be able to tell us everything we need to know.
Senators will put whatever questions they want, but the reason we were particularly interested in hearing from the Conflict of Interest Committee is that not long ago they devised a system of sanctions for breaches of the code. As honourable senators know, one topic that has come up as we've been contemplating our study has been the whole matter of sanctions. We were hoping that Senator Joyal would take us through the system that exists under the Conflict of Interest Code for Senators and explain the reasoning that led to the creation of that particular list of sanctions.
[Translation]
Senator Joyal, thank you very much for having agreed to appear. You have the floor.
[English]
Hon. Serge Joyal, P.C.: Thank you for the invitation. My first words would be to repeat what you said in relation to Senator Andreychuk, Chair of the Senate Standing Committee on Ethics and Conflict of Interest.
I discussed the presentation for this morning with Senator Andreychuk, so it's the result of our joint effort and reflections to help the senators in relation to the issue of sanctions.
As one would say in legal proceedings, I would first establish the credibility of the witness. I, like you, Madam Chair, and Senator Andreychuk, was one of the members of the committee who are still serving in the Senate tasked with the responsibility of drafting the first Conflict of Interest Code for Senators in 2003-04. The code was adopted in 2005 and, following that, as provided for in the code, a committee was struck according to very specific ways of forming the committee. I was elected the first chair of that committee in 2006, and I remained in that position up to 2012 when Senator Andreychuk, who was the deputy chair when I was the chair, became the chair and I now sit as the deputy chair.
I've been involved with the issue of the code from its inception to today. I am more or less condemned to serve on that committee for a while, and I take that responsibility very seriously because this responsibility, of course, is based on the trust that other senators put into the system, and it is on that basis that I would walk you through the issue of sanctions in the code.
When the code was first adopted in 2006, there were no specific sanctions in the code. The code provided for sanctions, of course, because when the Senate exercised its privilege power of discipline on its members it was using the general power of discipline that has existed since the beginning of Confederation, since 1867.
The Senate has that privilege through section 18 of the Constitution. Section 18 of the Constitution was a key issue when the federation was formed because it transferred the privileges that were in existence in the parliament at Westminster to the Parliament of Canada.
I think it is important to understand the origin of our privileges of disciplining senators and members of Parliament because the House of Commons has exactly the same privileges as the Senate in relation to discipline.
The origin of these privileges is constitutional in nature; that is an important element. It's not a statute that vested the power in the Senate to discipline its members; it is the Constitution. It is through section 18 of the Constitution, and I will read it for the benefit of the honourable senators, because I think it is important to remind you of that.
Section 18:
The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.
So we tend to forget that, but that's the origin of our privilege to exercise discipline.
This power to exercise discipline was confirmed in the first Parliament of Canada Act immediately after Confederation, and it is on that basis that the code was enacted. In other words, the Ethics and Conflict of Interest Code for Senators stems from our power drawn from the Constitution.
When we were sitting around this table many years ago, almost 15 years ago now, to draft the code, it was with that in mind. When the Senate exercises disciplinary power, that is, imposes a sanction on a senator, it stems from the privileges that the Senate has to rule and govern the conduct of its members.
Just as judges have the privilege to rule the conduct of the justices and we don't have access to the way judges rule their conduct, they don't have access to our way of ruling the conduct of our members. I think this is important, because it will explain an essential element of the procedure that I will outline to you.
The second point I want to put to you is the following: You cannot consider a regime of sanctions without considering the procedure that led to the sanctions. In other words, you can't impose a sanction without due respect for what I call fundamental justice. If you impose sanctions, you impose a limit on the exercise of someone's freedoms. According to the principle of fundamental justice, you don't do that without respecting a certain number of principles.
We were very keen, when we drafted the code, to be sure that the procedure outlined in the code — and you will find it at section 44 of the code under the general title "Enforcement" — respects the principle of fundamental justice.
The first principle that is stated at section 44 is the following:
44. (1) A breach of the Code by any one Senator affects all Senators and the ability of the Senate to carry out its functions, and may lead the Senate to impose sanctions or order remedial measures.
In other words, the power to impose sanctions stems from that section 44 of the code that invests the Senate with the responsibility of disciplining its members. If you discipline a member, or you have the ability to discipline a member, you have the responsibility to determine a sanction.
When we adopted the code in 2005, it was not felt to be essential to have a list of sanctions but to restate the principle that the Senate had the privilege to impose sanctions. It's limited to that, in other words.
At the time, that was the result of what I would call "the best efforts." In other words, what was the objective of the code? The code was new legislation, we were charting new territories, and at that time we thought that, with time, the need to improve the code would show from the use of the code in practice, the implementation of the code and that, through the years, we would be called upon to refine it.
That's what happened in April 2014 — more than two years ago — when the Senate Committee on Ethics and Conflict of Interest tabled its third report recommending sanctions. We have had a list of sanctions for two years.
As I mentioned earlier, those sanctions cannot be imposed without observing and respecting a very formal procedure, and I will outline that procedure very briefly. That procedure stems from a preliminary review of an allegation of a breach of the code.
The Senate Ethics Officer has the responsibility to be seized of an allegation that a senator has breached the code. This allegation has to be provided to the SEO in writing and has to outline the specific elements or facts through which that senator asked the SEO to conduct an inquiry. The SEO him or herself may initiate an inquiry if, at first sight, he or she is convinced that there are facts that lead to a preliminary investigation.
The preliminary investigation is a procedure that would help the SEO to conclude whether there is a need for a full investigation or inquiry. If the SEO concludes, after studying the allegation with the facts, or her own information on the basis of facts, she will invite the senator who is the object of the allegation to come forward and explain his or her version of the facts contained in the letter of allegation or in the facts that are in front of the SEO.
As you see, there is immediately the opportunity for senators to come forward and explain his or her reasons for such conduct.
On the basis of that preliminary investigation, the SEO will conclude if there is a need for an inquiry. If there is a need for an inquiry, and if the case is public, the SEO will inform the Senate Committee on Ethics that he or she is conducting an inquiry.
So the committee is informed, but the committee has no role in the conduct of the inquiry; it's the sole purview of the SEO. The only "implication" of the committee is to be informed that there is an inquiry that will go on.
It is for the SEO to conduct the inquiry — with the power to call for paper, documents and persons; to provide information; and to, of course, invite the senators to appear, with or without counsel, and to ask questions and have that exchange on the same basis, more or less, as if there would be a trial. It is within the confines of the in camera, of course, of the inquiry because at this stage it is done in the context of an allegation that is not yet proven.
As I stated on different occasions in the Senate, a senator's reputation, I repeat, is his or her biggest asset. As long as there is no conclusion to the inquiry, the inquiry has to be conducted under the sole responsibility of the SEO with, of course, the protection of the presumption of innocence.
As you know, when you are a public figure, if somebody makes an allegation public opinion immediately concludes — you don't have the benefit of doubt — you are presumed guilty. We want to protect, as much as possible, the reputation of the Senate at this stage, because at that stage there is still an allegation that is serious but has not yet been proven.
Once the inquiry is completed, the report of the SEO is immediately tabled in the Senate — the very same day. If the Senate is not in session, it's tabled with the Clerk of the Senate and is made public on the Senate site. If the Senate is in session, then the report is immediately tabled in the chamber.
Once the report is tabled or made public, the report is immediately sent to the Standing Senate Committee on Ethics and Conflict of Interest for Senators. In this report, it's not for the SEO to determine the sanction. The SEO may recommend a sanction on the basis of the facts that she has had an opportunity to review, but the SEO could recommend a sanction, stay mute on the sanction or explain additional circumstances that should be taken into account by the committee when the committee again offers an opportunity to the senator to explain the reason for his or her breach, as well as the sanction that should ensue.
The committee, in so doing, will offer the senator the same opportunity that the senator had with the SEO under the inquiry; that is, the senator will have an opportunity to testify and bring forward any additional elements that he or she would want to add to the report that has been tabled. He or she could be accompanied by counsel and he or she could offer to be examined by the members of the committee, and all of that is in camera. There is no publicity at this stage of the audience or the exchange that takes place between the members of the committee and the senator in question.
Following that, and upon the conclusion of the deliberations of the committee, a sanction might be recommended to the Senate as a whole.
I'll outline it again: It's not the committee that imposes the sanctions; the sanctions are recommended by the committee to the Senate in its report.
Following the tabling of the report by the SEO, the committee will table its report. In that report, there will be a sanction or no sanction, or an explanation of why there should not be any sanctions in relation to the particulars of the situation that has been the object of the preliminary investigation and, of course, the inquiry.
It is on that basis, following the hearings of the senator who is the object of the allegation and the object of the report that the committee will have to choose among a list of sanctions. They are not limited to that list of sanctions.
I will read section 49.4 of the Conflict of Interest Code. It states the following:
Where the Senate Ethics Officer has determined that the senator has breached his or her obligation under the Code, the Committee shall recommend, in a report to the Senate, the appropriate remedial measures or sanctions taking into account section 31 of the Constitution Act, 1867. The recommendations available to the Committee include, —
And I underline —
— but are not limited to, the following:
(a) the return of any gift or other benefit;
(b) any remedial measure;
(c) the reduction or removal of access to Senate resources;
(d) the removal of assignments, duties or powers conferred by the Senate;
(e) a limitation on the right to speak or vote;
(f) an invitation or order to apologize;
(g) a censure, admonition or reprimand; or
(h) a suspension.
It is within, as you can see, the gradation of the sanction, of the seriousness of the sanction that the committee advises which amongst those sanctions, or any other remedial measure, the committee may want to recommend to the Senate. It is on that basis that the report is tabled in the chamber. Like any report stemming from a committee, it is for the chamber to decide which effect to give to the report.
Of course, when the committee tables its report in the chamber, the senator who was the object of the report and the recommendations of sanctions can stand up. They may want to make a statement or rebut the recommendations of the committee. That is clearly provided for in the code, because the court of last resort is the Senate. As I mentioned, as with any procedure in the court, we try to maintain the same rights for all senators.
There are four different steps, as a matter of fact: preliminary investigation, inquiry, the committee's hearing and then the Senate hearing. It always allows the senator an opportunity to state his or her facts or the reasons why he should not be sanctioned, why the sanctions should not be the ones recommended by the committee, or why the Senate should conclude that there might have been a breach of the code, or there was no breach of the code, or that, on the basis of the breach of the code and all the circumstances surrounding it, the Senate lift any sanction.
So it is at the last step. The Senate has the last word.
I will conclude on that, honourable senators, because it gives you the context into which a sanction may be imposed.
My recommendation to this committee is that if this committee wants to adopt, in the Rules of the Senate, some sanctions, the Rules of the Senate should be very concerned about providing the senator, who might be the object of a leak — because that's what we're talking about — a fair procedure that would parallel or be inspired by what we have in the code.
I think what we have in the code has been proven to be just. Before the code was amended in April 2014 with the list of sanctions, there was a breach of the code that had been the object of an inquiry. The SEO at the time recommended no sanctions. The committee, after having heard the senator who was the object of the report, concluded that some remedial measures were needed. The committee recommended that to the Senate, and the Senate accepted the recommendation. The senator, who was the object of the recommendation, stood up in the Senate and accepted it.
We already have a precedent in the procedures that shows the system works fairly. That's essentially the object of the presentation.
I could come back on the various sanctions, but I thought it was essential to situate the whole perspective of sanctions. A sanction is not something you take in the air and put in the rules and say that it's going to be fine. We have to be an exemplary chamber.
You may ask on which basis we chose that list of sanctions. Honourable senators, we thought that the best way for us to get reliable sources was to look into the disciplinary sanctions that are in effect in The Law Society of Upper Canada, in the Barreau du Québec and in the professional orders of doctors. We wanted to know the structure of sanctions in those professional orders to serve as a point of reference in determining which sanctions and how to graduate them, because the sanctions are very serious.
I mentioned some of them are very serious. A senator may be suspended through such procedures. That has a lot of consequences for the Senate as a whole and for the senator in question. Because of that, we must be very concerned about how we respect the presumption of innocence of any senators, how we respect the reputation of the senator in question and how we protect the institution of the Senate.
This is the overall objective of the code; we should never forget. Fundamentally, the code exists to protect the institution of the Senate, the integrity of the institution of the Senate and, of course, the reputation of individual senators.
Thank you.
The Chair: Thank you very much, Senator Joyal. That was very helpful.
Senator Jaffer: Thank you, Senator Joyal, for coming today. I also want to formally thank you for all the work you've done around the code and also with the conflict.
I have a number of clarification questions. You live this all the time, I don't, on the issue of the code. When you were talking about sanctions, you would only be talking about sanctions for senators, right?
Senator Joyal: Exactly.
Senator Jaffer: Here we are talking about a leak of the Auditor General's report, so it would only be a sanction if we found that it was a senator who released the report. If it was someone else then we would have to have another process. What would that process look like?
Senator Joyal: You're totally right. The code was essentially to sanction the conduct of senators themselves. In the case of a leak, there might be other persons in the institution of the Senate, an employee for instance in a senator's office, or the service of the Senate. Let's imagine the translation service, the printing service, the distribution service. There are many services that enter into the publication of a report.
If that was so, then the Senate might want to instruct Internal Economy, who has the responsibility for the general administration of the Senate, to be in sync with the procedure that the Rules Committee might want to adopt in relation to a senator. The code is essentially centered on the conduct of a senator, even though the code provides that the senator has a responsibility for his spouse or immediate family. There is a responsibility within that group because it's quite clear to avoid, of course, originally financial conflict, and then the general conduct of senators.
In the context of a breach of confidentiality in relation to a document of the Senate, of course the sanctions or the procedure would have to take into account the general responsibility of the Internal Economy Committee over the administration of the Senate. It would be their responsibility to determine a fair procedure. They would be the ones charged with concluding what would be the best for the institution.
Senator Jaffer: Thank you very much, Senator Joyal.
You've said this, but I want to clarify: If there is a complaint it would first go to the Senate Ethics Officer; right?
Senator Joyal: Absolutely.
Senator Jaffer: It is only after she has investigated that it would come to your committee?
Senator Joyal: First of all, let me mention the section of the code in question; it's section 47:
(2) The Senate Ethics Officer shall conduct a preliminary review if he or she:
(a) has reasonable grounds to believe a Senator has not complied with his or her obligations under the Code; or
(b) receives a request to conduct an inquiry from a Senator who has reasonable grounds to believe another Senator has not complied with his or her obligations under the Code.
Those are the only two sources of privilege for the SEO to conduct an inquiry.
Senator Jaffer: That's only within the purview of the Senate Ethics Officer. The committee can't look at prima facie cases. It would be the Senate Ethics Officer who would look at that; is that correct?
Senator Joyal: Absolutely.
Senator Jaffer: You spoke articulately about the protection of the institution. How long does the process take? How long does the Senate Ethics Officer take to look into whether there is a prima facie case? I'm confused about how long that takes.
Senator Joyal: It's a very good question because that's sometimes a source of frustration. There is no provision in the code that limits the time the SEO takes to come to conclusion on an inquiry. In relation to a preliminary investigation, that is what we call — in language you will understand — a prima facie case of a breach of the code. Then, if the elements of fact in the letter of allegation are clear, the SEO will conclude rather quickly on the necessity to launch an inquiry.
The preliminary phase is normally faster than the second. The one that is lengthier is the inquiry, on which there is no specific term or time limit by which the SEO is requested to give his or her conclusion.
When the report is tabled in the Senate, as far as the committee is concerned, it has to act as quickly as possible. If we are not in session, the committee will be called back in the days after. That's what happened in the precedent that I mentioned. It was during the summertime, and I remember coming back on July 27 and staying in Ottawa for three days during our study of the report and the preparation of our recommendations.
In that part of the implementation of the SEO's obligation to conduct an inquiry, we have no control over the time it takes. The committee is very leery about publicly pressing the SEO for a conclusion, even if we are still waiting after six months to a year. As you know, there is pressure from the media, which will follow a case of public allegations, and it is for the SEO alone to control the speed with which he or she conducts the inquiry.
Senator Lankin: Thank you for your presentation. I take from your comments that the ethics committee has given a great deal of thought to, and places a great deal of importance on, principles of fairness, natural justice and due process. Part of that is respecting the right to confidentiality on certain items until there is a threshold met with respect to a case being brought forward to the committee.
It strikes me, then, that one aspect of gravity of the Auditor General's report leaks is the undermining of individuals' rights to due process — or an undermining of rights as a group, as in this case where there are a number of audits going on — which includes some reasonable expectation of privacy during parts of the process.
Could you speak to that issue of the gravity of leaks of confidential documents when they are respecting matters subject to natural justice and due process?
Senator Joyal: The case of the Auditor General is very distinct from a case, for instance, of a report of a committee that might have financial impact and might serve a group in society to benefit from, say, financial privilege or financial information — more or less the same as budget leaks. We understand very well that if the government is to move to impose a tax in a domain or invest in some kind of activities or order equipment of some sort, there might be groups in society that are very much concerned by those actions.
We understand that, in that case, a leak would privilege a certain group of people, and that is totally against what we call fair access to the same information at the same time.
In the case of the Auditor General's report the problem, as I personally saw it and lived it, was that the name of a senator was presented to the public as wanting in terms of reimbursement. Since that senator had already received a letter from the Auditor General, as I had, saying we have no complaint about your use of public funds, and I was committed to refraining from disclosing any information on the audit being conducted by the Auditor General, I could not defend myself. That would have been a breach of a commitment I had given to the Auditor General to maintain confidentiality. The press could then say that I was one of those, but in fact I was not and I could not defend myself.
In other words, for a period of time there was a suspicion that I might have to reimburse, and there are all kinds of unintended consequences along the road. If there is somebody outside the Senate, in your other activities, where it is based on the trust they put in you, and they read in the paper — in that case it was on TV — the journalist mentioning your name, it may cause that person or group to say, "Maybe we should wait before asking him this or that."
I don't want to be too personal, but in my case it was my candidacy to the Royal Society of Canada, which is submitted to a very demanding jury. It was at the very time that the jury was sitting. I was very concerned about that because somebody on the jury might have said, "Let's stand the candidacy of Senator Joyal. We do not know exactly what is going on, so we will wait." Then they pass on your candidacy and it is delayed until the next year.
There is damage that could be inflicted upon a person, a senator, while you're not able to defend yourself. I was not the only one. There were other senators who were exactly in the same position as I was.
In that case, there was no capacity for me to ask the Auditor General to say publicly that I am not. The Auditor General would have said no, because it will be in the final report. For the period of three strategic months I was left hanging, waiting for the final report to make sure there was no reproach. You can see that the damage that can be inflicted on somebody is really serious in relation to that person.
I have explained my case here to show why I insist that the reputation of a senator is so important. When you're a public figure and debate issues that are publicly contested and so forth, the credibility you bring to that debate is essential to convince people that what you propose as elements of public discussion are responsible.
It is very serious and, in that case, there was no due process. I could not even seek redress. The redress came at the end when the report was published in June.
Senator Ogilvie: Senator, I want to pursue this line started by Senator Jaffer, but to do so specifically with regard to the privilege of Parliament as it reflects or arises from the actions of committees and so on that Parliament strikes to ultimately look into an issue and bring advice on important issues before Parliament.
I'm speaking in an area where there is unlikely to be any damage or benefit, monetarily or to reputation, as you've just described, or anything else, to a leak of the in-camera work of the committees or the bodies struck by Parliament to advise it on an important area.
In my own view, one of the most important and valuable areas of privilege is to ensure that parliamentary discussion, directed by Parliament itself before an established body of Parliament, that the information of in-camera sessions of those bodies, not be released prior to the determined point at which Parliament will receive the information.
I won't use any specific example, but if anything I'm about to say appears to relate to something that you may have been aware of over the last six months, that may be totally coincidental.
If we do value such a privilege of Parliament there must be sanctions when it is violated, and in my experience here there has been no such sanction.
Second, a challenge arises when there is more than one individual character involved and holding different positions. For example, let's suppose there is a committee in which there are both members of Parliament and senators, and let's suppose that there is a deliberate and proven leak — an interview of individuals — prior to an agreed-upon time at which Parliament will receive a report. However, there is identified a member of Parliament and a senator separately involved in a similar action.
How do you see dealing with that? As you have already suggested, we are only dealing with the Senate's ability to act, but here two houses of Parliament implicated. Do you see that the Senate has an opportunity to deal with its part of the breach in the absence of or in spite of whatever is happening on the other side?
Senator Joyal: That's a very interesting question. Let me state first that each house has the same privilege to discipline its members. As I stated in my opening remarks, no outside authority is able to intervene in the exercise of that discipline. The House of Commons could not intervene in the Senate and say, "Could you sanction Senator Ogilvie because he leaked a special joint report on medical assistance in dying?"
Senator Ogilvie: By coincidence.
Senator Joyal: Yes, but you will remember, senator, that I advised the members of the committee in camera, because we have members of Parliament as well, to be very mindful that everything we were saying in camera had to stay in camera. Fortunately, we didn't have to face a situation of a leak.
As I say, the principle is that each house has the sole and exclusive privilege of the discipline of its members. However, it's quite clear in the case that you just described, if the Senate was seized with the clear conclusion that a senator was the one responsible for the leak with a member of Parliament, the Senate, in its intervention, would invite the chamber to impose a sanction on that senator in question. With the details of the situation being made public, there would be strong pressure, not by the Senate but by the public opinion generally, on the other house to intervene also in a similar fashion.
But there is no way that the Senate could, at the same time it was sanctioning the senator, sanction the other member. There is a clear delineation of the exercise of the privileges of discipline that is exclusively within the purview of each chamber. That's written down in section 18 of the Constitution.
Senator Ogilvie: But you would see that the Senate could well move on its own?
Senator Joyal: Oh, absolutely.
Senator Seidman: Based on your experience on the committee and with the code, which is far more than most of us have for sure, my understanding is that you consider a leak of a confidential document to be a breach of the code. Is that right?
Senator Joyal: No.
Senator Seidman: You don't?
Senator Joyal: No. There is a clear distinction between the obligations under the code in section 2 and section 7. It is clearly stated what the obligations are of a senator and a leak. A leak is a question of privilege that is already governed by the Rules of the Senate, section 13 and following.
A procedure is outlined in the Rules of the Senate that takes the Senate to the conclusion through a Speaker's ruling that there is a prima facie case of a breach of privilege on the basis of a leak, and there are ways to remediate the damage. The Rules Committee is charged with the responsibility to conduct an inquiry.
It would be for this committee to determine how the committee wants to establish its procedure if it feels or concludes there should be a more elaborate procedure that would result in sanctions. Of course sanctions are a report to the Senate, because it would be the exercise, in a way, of a privilege that the Senate as a whole exercises in relation to sanction.
Senator Seidman: Would there be advantages and disadvantages, and what would they be, in treating such a disclosure of confidential information as a breach of the code, for example?
Senator Joyal: We would have to amend the code to do that. There is no doubt in my mind, and I would not recommend that. I would not recommend that the SEO be charged with the responsibility of conducting an inquiry in relation to that.
What I would suggest, following the questions of Senator Ogilvie and Senator Lankin, is there is merit to having a list of sanctions, and that is deterrence. If no sanctions are expressed in any way, shape or form, it seems you can do it without consequence. The sanctions, as in the Criminal Code, the ontology code or the ethics code, have an element of education that is important.
When you are a doctor you have the ontology code, which is very stringent. You learn about it, because it's part of the insurance you might want to have to cover your act if you are sued by a patient for negligence or the misconduct of your practice.
In other words, a code is an important factor of education. As I stated here weeks ago, it is very important that there are educational tools or instruments given to new senators to try to understand that. If there is no sanction, it's not a priority. In fact, senators who sit on committees on any day will be in camera with confidential documents or information. It's part of the job of senators to deal with confidential information, but if no one informs you that this is part of the way you perform your duty, no one knows.
That is why I think it would be important that this committee consider that, in the Rules of the Senate, there is specific mention of the breach of that responsibility of senators and the sanctions that might be attached to it, up to suspension. For example, there is the suspension or expulsion of a senator from a committee. It could be a sanction.
Senator Seidman: This leads into my next question, because you mentioned in your presentation that you could expand on the sanctions. In subsection 49(4), it says clearly, "The recommendations available to the Committee include, but are not limited to, the following. . ." and there is a list.
Senator Joyal: Absolutely.
Senator Seidman: Could you expand a bit on the sanctions available and if there are any outside this list, for example? That would be helpful.
Senator Joyal: First of all, there has to be a gradation of sanctions. That's the principle. Normally, the sanction is tailor-cut to the seriousness of the breach you want to recognize and to which you want to attach consequences: the more serious the breach, the more serious the sanction.
Normally you ask "what is the minimum?" and "what is the maximum?" The maximum we have is in section 31 of the Constitution. That's why section 31 is in paragraph 49(4). Section 31 of the Constitution is the disqualification of senators. We cannot venture into that territory, because it is for the Senate itself for very specific reasons. In other words, we could not add a disqualification motive to the list of section 31 of the Constitution. That's the maximum or threshold that we cannot cross.
Below that, there are all kinds of sanctions that one can think of on the basis of the seriousness of the breach:
(a) the return of any gift or other benefit;
(b) any remedial measure;
The committee used the heading "any remedial measure," for instance, in the case we were seized with, to recommend to the Senate that the Senate impose that a senator follow a course of information on how to manage personnel in the context of today's contemporary requirement for any manager of personnel — what are the obligations; what to do and not to do. That exists in the teachings of schools of administration, and they develop some procedures and so on. In that case, we recommended — beyond an apology — that the senator in question commit him or herself to attending those courses, reporting his or her attendance and an understanding of what the implications were.
In other words, the remedial measures have to reflect the particular circumstances of the breach.
Then we have:
(c) the reduction or removal of access to Senate resources;
I think we all understand what it means.
(d) the removal of assignments, duties or powers conferred by the Senate;
If the senator, for instance, is a member or deputy chair of a committee, the Senate might decide to recommend that the person not continue to exercise that responsibility.
(e) a limitation on the right to speak or vote;
This is a very serious one, especially the right to vote. I raised the constitutionality of that recommendation here because, according to the Constitution, the Senate, at section 91, is called to give "Advice and Consent" to Her Majesty before a law is enacted. How can you prevent a senator from giving his consent or advice, which is done by voting? It is a constitutional duty.
As the interpretation that has been given is that, since section 18 of the Constitution provides we have no more privileges than the ones "exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland," we went to the House of Lords. We looked to the treatment or sanction of a lord if a lord were in a serious breach. We found in the House of Lords that the Code of Conduct for Members of the House of Lords at section 141 provides:
. . . that the Member be sanctioned by suspension or that the Member be denied access to the system of financial support . . . .
The suspension is really depriving the person of voting, because if you are suspended you don't take part in the debate and you don't vote when there is a vote. That is the most serious sanction.
Our code continues:
(f) an invitation or order to apologize;
(g) a censure, admonition or reprimand; . . . .
And then, as I mentioned:
(h) a suspension.
The gradation is in sync with the seriousness, but the Senate Committee on Ethics is not limited to that. The Senate can recommend to the Senate as a whole a particular remedial initiative that fits the breach — the conclusion is that it happened and it involved that senator.
In other words, I suggest that there be some kind of correspondence with what there is in the Conflict of Interest Code and what there is in Internal Economy. Then a senator would know that there are different sanctions that are of a similar nature, according to the importance of the seriousness of the breach, either the administrative rules of the Senate or the privileges of the Senate to have first information on the report, on the leak, or about the breach of some sections of the obligation established in the code.
Senator Seidman: That has been very helpful.
The Chair: I have a question of my own. Senator Joyal pointed out earlier that some of us were around at the beginning of the code. I remember in particular the extraordinary resistance of some senators to the very concept of such a code in general and, in particular, to the disclosure provisions — and more generally to the appointment of investigative powers given to the SEO.
I remember chairing one meeting where there were senators screaming. They believed that this new system of disclosure and investigation was a breach of their privileges as senators. It's not that they wanted to go out and commit offences and do disreputable and unethical things, but they truly believed that their privileges as senators were being breached.
I do not think that that is the case anymore. Some of this change in attitude is obviously because, with the passage of time, experience has shown that things work reasonably well. Some of it is because some senators of the real old school have retired.
But I think some of it also has to do with education. That would go straight to what we're talking about here for the future.
Can you tell me, Senator Joyal, whether there are specific introductory lectures, material, explanatory material, particular efforts made to familiarize in particular new senators with their obligations under the code and the way it works?
Senator Joyal: First of all, a quick word about the period before and after the code. The period before the code was essentially a period based on the following principle: my honour is my code. In other words, a commitment to always behave according to the standards expected from an honourable person. The meaning of "honourable" being that you are a public figure, you decide upon the rights and freedoms of peoples and the legislation, and people must have trust in the institution and in its members in order to give credibility and la croyance that what stems from that house of Parliament is of the utmost exemplary nature. That was the concept in the period before the code.
The code didn't happen — I hate to use religious images — by an act of magic. It stemmed from a situation that happened in the Senate, criticism of some senators who have long retired from this chamber. There was a need, since there were higher expectations. It was time to have a code that would reflect the way that public opinion generally, and all other legislatures, have answered to that need of a higher expectation of conduct.
The Senate doesn't sit in a vacuum. There are legislative assemblies like the House of Commons and other parliaments of the Westminster model, such as the House of Lords and the House of Commons in Britain, Australia, New Zealand, et cetera. It was evident that the other houses of parliament of the Westminster model concluded it was appropriate to have a code of conduct.
The implementation of the code of conduct was a process of education, because we went from a system whereby each one determined his or her conduct to a system whereby you would have obligations to disclose. Disclosure to an independent authority of an interest you might have was the essential element at the beginning to avoid any appearance of benefit from the position that you hold, responsible for the public trust of a legislature.
The first years were a period of accommodation with the new system, learning how it works, trusting the person responsible — essentially the Senate Ethics Officer — to maintain the confidentiality of the information you provide. If you disclose your financial assets and financial interests, the first thing is to maintain confidentiality around that and that what would be made public in the annual disclosure statement would be protected by your right to privacy. You still have a right to privacy, even though there is a duty to disclose.
There was a process of evolution, which I think has reached its maturity after 10 years. After 10 years, those who are suspicious have had an opportunity to realize — I say with a smile — that your best friend is the SEO. If there is something you are called upon to decide, if you want to protect yourself and be certain that you will not be the object of an allegation, the best thing to do is seek the opinion, in confidence, from the SEO.
You can do with the opinion what you think is proper. Of course, if the SEO advises you to act in a certain way and you decide not to, and you are found not to have acted in the advised way, it may be so but you run the risk of having a problem.
The SEO is there as an adviser to help you in that regard and to protect you from any kind of unwanted allegations or frivolous allegations.
In other words, the SEO has proved to be helpful to senators in how to conduct their affairs and public life in relation to their responsibilities. That is the sense of the evolution of the system.
As you stated, new senators will be coming. Some were sworn in less than three months ago, and there will be more. I think it would be very helpful for there to be a session with the chair, deputy chair and all the new senators where we explain the way the system works and invite senators to trust the SEO. Their best adviser is the SEO.
The SEO is not a director of conscience. The SEO has very specific responsibilities in relation to the code. He or she could tell senators who want to know about Internal Economy what the purview is of the committee, or the purview of the Rules of the Senate. The SEO has nothing to do with that.
At least it will help direct new senators in the system so that they, as soon as possible, master the essential knowledge of the code and avoid finding him or herself in deeper trouble.
That would be the best way to approach it. The SEO could, of course, hold a session for new senators to introduce him or herself, since the senators will have to meet with him or her at least yearly for their annual declaration. He or she should be introducing him or herself.
They could meet in an in-camera session, with the chair and deputy chair of the committee, to have a briefing on the practicalities of how it works and how it is helpful for senators to rely on that.
The Chair: Thank you.
Senator Cools: I wanted to raise a couple of questions around the initial period of time when the conflict of interest code was created. You mentioned, chairman, some of the concerns and hesitations that many senators had at that time. I think their hesitations were just.
We must remember that it was a different time. We forget what it was like. One of the major concerns was that the Prime Minister was always pushing a single position, commissioner or officer, for both the houses. That, more than anything else, was a major concern for senators because senators did not feel that they should be subjected to any officer of the House of Commons. It is fair to say that senators defeated three different prime ministers on that very issue. We have to be mindful at all times what the centrality to senators was.
There are a couple of other questions. Yes, this thing is called Ethics and Conflict of Interest Code for Senators, but it is not about every ethic in the world or every positive virtue that everybody should possess. It was to follow behaviour in respect of votes. That's why it's called conflict of interest.
I am told that in the United States of America huge problems related to this are developing in their different houses. I don't follow American politics that closely, but every now and again I'm somewhere with a congressman or senator and I learn a bit of information.
I have to be also mindful that those were just concerns for senators.
The point that I want to make — and one that is forgotten — is that any wrong or accused lack of virtue of a senator that is deemed to be serious has always got to be related to an act or an action that that senator took which, in effect, violates his oath of allegiance. So there's that tie, in terms of ethical behavior. The legal profession had to work a lot of this out many, many years ago.
At all times the standard that the person — the offender or the almost offender — has to be measured against is whether that person did anything that violates Her Majesty at the same time.
In the British North America Act, the Fathers of Confederation gave this considerable thought. In section 31 they recorded the reasons they believed at the time — and still do, I think, even though they are now in Constitution heaven — and the kinds of actions we're talking about.
We must be mindful at all times that we're speaking here of very serious actions that border on treason. Everyone forgets, like in section 31(4.):
If he is attainted of Treason or convicted of Felony or of any infamous Crime. . . .
The term "felony" has disappeared from Canadian usage; Americans still use it. In those days "felony" meant a crime that was so serious that it actually offended the integrity of the Queen.
A felony doesn't mean what it means in the U.S. today; it just means a crime. A felony is a misdemeanour, but in those days a felony meant a crime that was deemed to be a crime against God and the Queen. Let us understand the reality that we're in.
On this matter, Madam Chair, I want to make a suggestion with respect to this absolute jurisdiction over its members. I have open Mr. Maingot's book at page 181, which is what the House of Commons currently relies on. We know Mr. Maingot and the limitations of this book and some of its mistakes.
He says on page 181 that the defining case is Bradlaugh v. Gossett, and I can read it here:
There are many examples to cite respecting to Members, but it is to be noted that the court in Bradlaugh v. Gossett had before it an action for a declaration that the order of the House (directing the Sergeant-at-Arms to exclude the plaintiff Member from the House —
So we have it straight, Gossett is the Sergeant-at-Arms and Bradlaugh is the MP, "— until he undertook to create no further disturbance) — " so he was making disturbances in the house.
— was beyond the power and jurisdiction of the House and void, as well as for an order restraining the Sergeant- at-Arms from preventing Bradlaugh by force from entering the House. The court said that both Burdett v. Abbot and Stockdale v. Hansard are emphatic that "the jurisdiction of the Houses over their own Members, their right to impose discipline within their walls, is absolute and exclusive" and accordingly declined jurisdiction.
I've made it my business to look up those cases and have read them. Maybe we could ask our researchers to take a peek at those cases, but it's not that clear. It's not that straightforward when you look at the case.
One of the judges — one of big names, but I don't remember his name right now — said at the end that members' recourse for injustices done to them by the houses rests with their constituents, or something like that.
It's not that clear that we can just apply that, in the case of the Senate, without studying it further. Maybe this is an appropriate opportunity to bring that forward.
Many of these cases, you will remember, came about as a result of the whole Stockdale v. Hansard case, which was the lead case at the time.
I just wanted to put that out to you.
The Chair: Your question?
Senator Cools: My question is with respect to suspensions. None of these judgments and none of these cases ever contemplated anything like a suspension of a member for three or four years, like what has happened in the Senate quite recently.
The suspension here that they imposed on this gentleman was to get him to correct his behaviour, which he did not correct in a short enough period of time. These matters have to be approached with considerable caution.
The Chair: I am assuming you're asking Senator Joyal about — correct me if I am wrong — constitutional limits on our power to suspend.
Senator Cools: I was just throwing it in for study. Where I am right now, I think members should reach out and see where these parts have come from, and then I would be prepared to question more.
I think it's premature. I think Senator Joyal has done a very good job and he reminded us very much of the temper of the time, and it's very significant. Make no mistake, that was a huge fight, and I don't mind telling you this. Senator Carstairs, in her skill, actually succeeded in persuading Mr. Chrétien to abandon a joint officer for the two houses.
The Chair: And, for that matter, a legislated code.
Senator Cools: Precisely, and, in other words, enacting it in a statute. To that extent, we owe her a great debt.
Senator Joyal: I will say this very quickly, because I see the hour.
The Chair: Time is running out.
Senator Joyal: Thank you, Senator Cools, for reminding me of that epic fight.
Senator Cools: It was epic.
Senator Joyal: I look at Senator Tkachuk when I say that there was no way we could have successfully defeated the bill of the government of the day in the Senate. Maybe I'm looking at Senator Lankin when I make this statement. The Senate defeated a bill of the government of the day with a majority of Liberals, where the chamber was composed of a majority of Liberal senators, on the basis of standing up for the privilege of the Senate to have its own Senate Ethics Officer and not be united under one officer for the whole of Parliament. That was on the basis that the privilege of this exercise of discipline is the sole and exclusive privilege of this chamber, per se.
As Senator Cools mentioned, the government came back in the following session with another similar project that stood again with the support of the opposition. I'm looking at Senator Tkachuk and thinking of Senator Kinsella, who happened to be the Leader of the Opposition at that time, and it was only in the third initiative of Prime Minister Martin, when he succeeded Mr. Chrétien, that it was finally recognized that there would be two different officers and that each house would have its own code.
It is a clear case whereby we exercised our veto, because it was concluded to be essential for the maintenance of the legislative autonomy of the chamber.
It happens that the Senate exercised its veto in a tailor-made situation, wherein the principles at stake were essential for the proper function of the institution.
I use this opportunity to thank Senator Cools, Senator Tkachuk and Senator Fraser, who were here in those days, for facing the pressure put on us to adopt the bill.
I think what stemmed from that decision at the time has been of benefit to the institution.
The Chair: Thank you very much, Senator Joyal.
As usual, there is enormous erudition on display here, and it is very helpful to us.
Colleagues, since we're now into the month of June and we don't know how the parliamentary calendar is going to play out, I make no promises or guarantees about this committee for next week. If we meet next week it will be, I think, for the discussion of draft reports, so it will be an in-camera meeting.
(The committee adjourned.)