2nd Session, 41st Parliament

Issue 76 - Appendix

Tuesday, September 16, 2014
2:00 p.m.

The Honourable Noël A. Kinsella, Speaker

Monday, August 25, 2014

The Standing Committee on Conflict of Interest for Senators has the honour to present its

SIXTH REPORT

Your Committee, which has taken into consideration an inquiry report, received on June 25, 2014, from the Senate Ethics Officer pursuant to subsection 46(1) of the Conflict of Interest Code for Senators, reports as follows:

Conflict of Interest Code for Senators

The Conflict of Interest Code for Senators now entitled the Ethics and Conflict of Interest Code for Senators since June 16, 2014, was adopted on May 18, 2005, and was amended on May 29, 2008, May 1, 2012, April 1, 2014, and June 16, 2014.

The Code as amended in 2014:

The Committee notes its role in the inquiry process was recently modified, in April 2014. The role of the Committee is now limited to the recommendation of an appropriate sanction or remedial measure, and it is no longer empowered to conduct its own investigation or refer a matter back to the Senate Ethics Officer.

Further, the Senate recently reaffirmed and strengthened its commitment to the highest standards of conduct when it amended the Code on June 16, 2014, amongst other things, to require senators to adhere to high standards of personal and professional conduct in the discharge of their duties, going beyond a strict conflict of interest regime. The effect of that amendment was to specify that senators are expected to perform their parliamentary duties with dignity, integrity and honour. In this manner, it articulates clearly a senator's obligation to refrain from acting in a manner that could reflect adversely on the position of the senator or on the Senate as an institution.

Your Committee is of the strong view that the Code must continue to evolve to meet the changing needs of the Senate and senators, as well as the expectations of the public we are entrusted to serve. Accordingly, we will continue our commitment to monitoring its effectiveness and to proposing changes to the Code when a need to do so has been identified. By ensuring that the Code is current and effective amidst changing social norms and expectations, we can help to maintain the Senate's ability to discharge its constitutional functions.

The 2012 Code:

In accordance with the Third Report of the Committee, adopted by the Senate on April 1, 2014, the consideration of the Senate Ethics Officer's inquiry report is governed by the Conflict of Interest Code for Senators as adopted by the Senate on May 1, 2012, and in force as of October 1, 2012. Unless otherwise stated, all references to the Conflict of Interest Code for Senators or the Code are to the Conflict of Interest Code for Senators as adopted by the Senate on May 1, 2012.

The Inquiry Report from the Senate Ethics Officer

On June 25, 2014, the Committee received an inquiry report from the Senate Ethics Officer respecting the obligations of the Honourable Senator Pierre-Hugues Boisvenu under the Conflict of Interest Code for Senators. On the same day, the report was transmitted to the Clerk of the Senate and became public pursuant to section 45 of the Code.

The report is the result of an inquiry conducted by the Senate Ethics Officer following a request made by the Honourable Senator Céline Hervieux-Payette in a letter dated June 19, 2013. After a preliminary review of the matter, the Senate Ethics Officer decided to undertake an inquiry; after completion of her inquiry, she reported to your Committee on June 25, 2014.

In her inquiry report, the Senate Ethics Officer concluded that Senator Boisvenu had acted improperly in a way to further a person's private interests by twice renewing the employment contract of an employee with whom he was having or had had a personal relationship. The Senate Ethics Officer further concluded that Senator Boisvenu had attempted to improperly use his position to influence the decision of another person, so as to improperly further a person's private interests when he attempted to negotiate with the Senate Administration favourable terms and conditions for a former employee with whom he was having or had had a personal relationship. As a result of these actions, the Senate Ethics Officer concluded that Senator Boisvenu breached his obligations under sections 8 and 9 of the Conflict of Interest Code for Senators.

The Senate Ethics Officer did not recommend sanctions against Senator Boisvenu for these breaches. She identified some mitigating circumstances in relation to his actions after the end of the employment relationship in his office. First, she stated that the fact that Senator Boisvenu was the former manager was what had prompted him to try to negotiate favourable terms and conditions for his former employee. Second, Senator Boisvenu's intervention was intended to ensure that his understanding of the employee's terms and conditions after she had left his office would be respected. Third, the Senate Ethics Officer noted that Senator Boisvenu had approached the Senate Administration at the suggestion of the then Chair of the Internal Economy Committee, the Honourable Senator David Tkachuk. Thus, she concluded that Senator Boisvenu's contravention of the Code occurred through an error of judgment made in good faith, and she accordingly recommended no sanction.

The Process

As noted above, the process applicable to your Committee's consideration of the Senate Ethics Officer's inquiry report is governed by the Conflict of Interest Code for Senators as adopted by the Senate on May 1, 2012 which reflects the status of the Code at the time when Senator Boisvenu was alleged to breach the Code.

The role of the Committee in that process is to take into consideration an inquiry report received from the Senate Ethics Officer and to report to the Senate (Code, subsections 46(1) and (4)). As part of its consideration, the Committee must afford the Senator who is the subject of the inquiry report an opportunity to be heard (subsection 46(2)). As part of its consideration of the report, the Committee can decide to conduct an investigation or refer the matter back to the Senate Ethics Officer for further inquiry (subsection 46(3)). On completion of its consideration, the Committee must report its findings, reasons and recommendations to the Senate (subsection 46(5)). In its report, the Committee can recommend that the Senator who is the subject of the inquiry be ordered to take specific action or be sanctioned (subsection 46(6)). The final decision remains with the Senate when it disposes of the Committee's report.

The Committee's Consideration

On July 28, 2014, Senator Boisvenu exercised his right to appear before your Committee as provided under subsection 46(2) of the Code. During his appearance, Senator Boisvenu reviewed the events that led to the report and reaffirmed the position he had taken with the Senate Ethics Officer. He informed the Committee that he accepted the facts as outlined in the Inquiry Report. He was disappointed, however, that certain individuals did not remember some discussions or meetings that were, in his opinion, relevant to the inquiry.

Firstly, he stated that, sometime in the spring of 2012 and at his own request, he had met with and sought advice from the previous Senate Ethics Officer, Mr. Jean T. Fournier. Senator Boisvenu stated that Mr. Fournier told him the personal relationship he was having with an employee was not governed by the Conflict of Interest Code for Senators. According to Senator Boisvenu, Mr. Fournier nonetheless advised him to be prudent with the relationship, as it could give rise to the appearance of a conflict of interest. (Senator Boisvenu told the Senate Ethics Officer during the inquiry that Mr. Fournier had told him to end the relationship.) When questioned by the current Senate Ethics Officer, Mr. Fournier stated that he had no recollection of that discussion. Your Committee notes that Senator Boisvenu did not, in any case, request an opinion in writing—something he was entitled to under section 42 of the Code.

Secondly, Senator Boisvenu also expressed regret that Senator Tkachuk did not recall referring him to the Clerk of the Senate when he raised the issue of the terms and conditions of employment for his former employee. Your Committee takes note that, in the inquiry report, it is acknowledged that Senator Tkachuk recognized that he may have made such a suggestion, absent of a direct recollection.

Additionally, referring to informal discussions he had with Senator Tkachuk and the Clerk of the Senate, Senator Boisvenu stated that he wished he had been informed earlier of the impropriety of his conduct by either Senator Tkachuk or the Clerk of the Senate.

Senator Boisvenu stated before your Committee that, for most of the duration of his relationship with his employee, he did not feel he was in a conflict of interest. However, he indicated that he became concerned about the matter in the spring of 2012, and this prompted him to consult the then Senate Ethics Officer, Mr. Fournier. Despite the advice he told us he received from Mr. Fournier, Senator Boisvenu nonetheless renewed the contract of the employee in March 2012. Senator Boisvenu informed the Committee that, in the summer of 2012, he made the decision to resolve the matter by advising his employee that she would have to leave his office, but he found it difficult to take the appropriate action necessary to see it through. Senator Boisvenu recognized that he should have acted more promptly, and he took full responsibility for this error.

Following his appearance, Senator Boisvenu sent a letter to the Committee to share his thoughts on the process and to provide additional information.

Findings

As indicated above, upon the completion of its consideration of the inquiry report of the Senate Ethics Officer, your Committee must report findings, reasons and recommendations to the Senate.

The Committee could have decided, as part of its consideration, to conduct its own investigation or refer the matter back to the Senate Ethics Officer for further inquiry. Such an investigation or referral would have been necessary, for example, had any question of facts remained unsettled before your Committee. This, however, is not the case.

The Committee accepts the Senate Ethics Officer findings that Senator Boisvenu breached his obligations under sections 8 and 9 of the Code. The Committee accepts that there are mitigating circumstances, as identified by the Senate Ethics Officer, in respect of the actions of the Senator relating to the employee's terms and conditions in the Senate Administration. However, the Committee notes that no mitigating circumstances for the breach of the Code that resulted from the two renewals of the employment contract have been identified in the inquiry report.

The Committee wishes to state that Senator Boisvenu was forthright during his appearance and answered all questions put to him.

Conclusions

One key objective of the Code is to maintain and enhance public confidence and trust in the integrity of Senators and the Senate (Code, paragraph 1(a)). Senators are expected to fulfil their public duties while upholding the highest standards, so as to avoid conflicts of interests and to maintain and enhance public confidence and trust in the integrity of each Senator and in the Senate (Code, paragraph 2(1)(c)). Senators are responsible not only for their own reputations, but for the reputation of the Senate as an institution. Accordingly, any behaviour that is short of the highest standard of conduct must be addressed.

During his appearance before the Committee, Senator Boisvenu explained that when he arrived at the Senate he had, at best, a very superficial knowledge of the rules with respect to his responsibilities as a manager. He had the perception that the nature of a political institution meant that different standards applied as opposed to what is applicable in a public sector organization. In retrospect Senator Boisvenu told your Committee that now he would handle the situation differently.

As no mitigating circumstances were identified in relation to his breaches of the Code for the employment contract renewals, it is the Committee's views that the absence of actions to resolve or prevent a real or apparent conflict of interest from arising due to the changing nature of the relationship with his former employee must result in appropriate remedial measures.

Moreover, the Committee is concerned that Senator Boisvenu acted to resolve the matter nearly a year after he spoke to Mr. Fournier about the situation. Any person in a position of authority engaged in a personal relationship with a subordinate must take immediate measures to change the direct reporting relationship. In this case, it was only when the matter received media attention in March 2013 that measures were finally taken to change the employment relationship with Senator Boisvenu.

All actions in a modern workplace that could reflect negatively on an organization and its members should be addressed swiftly and promptly in a manner that respects all the rights of the parties involved. While we acknowledge that issues related to employee—employer relations will arise in public or private sector organizations, we must in the public interest lead by example.

Your Committee finds that Senator Boisvenu's breaches of the Code and his failure to take immediate corrective measures should result in remedial action and sanction.

Recommendation

That, on the first sitting day following the adoption of this report, from his place in the Chamber and during the time allotted for Senators' Statements, Senator Boisvenu make an apology for:

• the breaches of the Conflict of Interest Code for Senators identified by the Senate Ethics Officer,

• not having promptly remedied the real or apparent conflict of interest situation, and

• having failed to prevent a real or apparent conflict of interest from arising and the resulting impact on the public confidence and trust in the integrity of each Senator and in the Senate; and

That, within 60 days of the adoption of this report, Senator Boisvenu attend a course, pre-approved by the Committee, at his expense, to ensure a proper understanding of the fundamentals of contemporary management of employer-employee relations in a public institution.