Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 4 - Evidence - June 16, 2015
OTTAWA, Tuesday, June 16, 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 9:32 a.m. to give consideration to the bill; and for the consideration of the case of privilege relating to leaks of the Auditor General's report on the audit of senators' expenses.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: Welcome, everyone, to the Standing Committee on Rules, Procedures and the Rights of Parliament.
I want to thank Aaron Wudrick for being here today. As everyone knows, we're here today to hear evidence from Mr. Wudrick, who is Federal Director of the Canadian Taxpayers Federation. This will be in relation to Bill C-518, An Act to amend the Members of Parliament Retiring Allowances Act (withdrawal allowance).
I understand you have a few comments to start, and then well move into questions if that is fine.
Aaron Wudrick, Federal Director, Canadian Taxpayers Federation: Good morning, senators. On behalf of the Canadian Taxpayers Federation, thank you very much for the invitation to speak to Bill C-518.
The CTF is a non-profit, non-partisan advocacy group founded in 1990, with over 84,000 supporters. We have three key principles: lower taxes, less waste, and accountable government. Our support of Bill C-518 focuses largely on the third of these principles, that being accountable government.
Senators, I know that the sponsor of this bill, who is also one of my predecessors at the Canadian Taxpayers Federation, appeared last week to speak to this bill, and I do not want to belabour the many excellent points he made. Suffice to say it is reasonable to suggest that there is, in fact, virtual unanimity when it comes to the principle of accountability. Nobody is against accountability in the abstract. The disagreements arise when we get into the details of what that accountability entails.
I would like to use my remarks this morning to speak to a few of the criticisms of the bill and then briefly make my case about why now, more than ever, it is imperative that this bill be passed into law.
One of the common objections we have heard to this bill is that it holds politicians to a higher standard than others. This is a fair point, but I would suggest the response to it is that that is so because politicians are in a unique position of power. There is a saying that "with great power comes great responsibility,'' but so too there must come great consequences for abusing that responsibility.
More to the point, as has been observed many times already, the notion of taking away pensions has already been contemplated since it can already occur for a member or a senator who has broken the law, but only if they are expelled from office first. They can avoid this punishment by the simple act of quitting. Yet allowing people to quit in order to evade punishment is akin to letting a person convicted of any other crime evade prison time simply by choosing not to appear at a sentencing hearing. This defies common sense. In that sense, this bill is simple aimed at closing this loophole.
Another point we've heard repeatedly is that there is no provision for spouses or families affected by the loss of a pension. Again, this is another fair observation, but it must be compared to the justice system at large. Take the example of a sole breadwinner in a family who is convicted of a crime and incarcerated and, therefore, unable to work. The rest of the family of course suffers as a result, but this does not mean that the crime goes on unpunished. Again, under the current rules for expelled senators and members, there is no such provision for spouses or families. If anything, you could suggest that the harm that could befall spouses or families should provide an additional incentive for individuals to make sure that they follow the rules since it is not only them who will be harmed.
Finally, there is much debate over whether the specific list of offenses enumerated in this bill is appropriate. Is it too broad? Is it too narrow? We note that the original version of this bill set the bar at crimes with a maximum punishment of two or more years. There was then a suggestion, based on a similar Nova Scotia legislation passed in 2013, that the bar be a crime for which the maximum punishment is imprisonment for not less than five years.
The final compromise here, which is designed to address concerns that some crimes have nothing to do with one's role as a parliamentarian, is an enumerated list of Criminal Code offences, each of which has a maximum sentence of five years or more. Our position here is simply that we do not believe it is fruitful to make perfect the enemy of the good. There are strong arguments for and against any range of laws being included, but we believe that the list before you is indeed a reasonable compromise, arrived at by the lower house after much consideration.
In closing, I wanted to make a direct appeal to this committee and, indeed, all senators to ensure this bill becomes law before this chamber rises for the summer. It is no secret that the Canadian Taxpayers Federation has been a harsh critic of the upper chamber for various reasons, but I say to you in good faith and believe in my heart of hearts that passing this bill in this political climate, under all of the public scrutiny you are now facing, would be good for this chamber and one concrete step to show all Canadians that the Senate is serious about change. It would be something tangible for the Senate to be able to point to, as part of a much larger debate, as proof that senators believe, along with their colleagues in the house, that abuse of taxpayers' dollars must have real consequences.
Thank you very much for your time. I'm happy to take questions.
The Chair: Thank you very much, Mr. Wudrick, for being here again, and thanks for your short commentary.
I want to remind everyone that we do have to shut down this section of our session this morning to move into a second piece of work, so try to keep the questions and responses concise. I will start with Senator Frum.
Senator Frum: Thank you for being here. As you probably know, I am the sponsor of this bill in the Senate and I support it. I am, both intellectually and emotionally, in agreement with everything you've said, but I do want to ask you one question about a point you made regarding how this bill addresses this loophole where a parliamentarian, if they quit, can retain a pension but would lose it if they are expelled.
We already have a problem where people who are in compromised positions — we have seen this recently — and really ought to resign don't. You further entrench this loss of honour that we're seeing in Parliament, where people are in compromised positions and who one imagines in another era would have had the honour and dignity to step down. If you impose this new legislation, the incentive to step down is removed.
Mr. Wudrick: If the trigger for the loss of pension is the conviction and that applies regardless whether or not the person is a sitting member or senator, I don't know that it does. If anything, I would say that the way the system works now, it could make someone who is looking to act out of honour do it for the wrong reasons. I think, in effect, it may be the opposite of what you're suggesting.
Senator Frum: I'm just saying we already have a system where people are not standing down and that this will maybe further entrench the impulse to entrench yourself in your position way past the point when it is honourable to do so.
Mr. Wudrick: Yes, I would agree.
Senator Jaffer: Thank you very much for your presentation. I agree with what you have said. I am not fighting that.
I'm assuming you read the transcripts of this committee. My concern is enforceability because there are problems, as I am sure you read in the transcripts. There is one problem with issues of the spouses, but you have addressed that.
My other issue is that I would like to hear from you as to the enforceability. There are definitely issues with this bill, and I am of the opinion that to pass a bill when we know it will be challenged in court and to not stand up is just half the work.
Mr. Wudrick: Is it a constitutional argument that you are concerned about?
Senator Jaffer: No, it's not a constitutional argument but an argument about how to enforce this bill because it is not clear on many issues.
Mr. Wudrick: Is there one particular example?
Senator Jaffer: The hybrid offences.
Mr. Wudrick: All I can say, and as the sponsor of the bill pointed out, is that it was not the original intent. The lower house obviously arrived at this consideration.
We have had some supporters say, "Why support this bill; it's too weak and doesn't cover enough things?'' Others say it's too broad. I appreciate that it's a valid concern with the hybrid offences that have been identified.
That said, we cannot make the enemy the perfidy of the good on the off chance that there is a very narrow circumstance where an individual is convicted of only one of those particular crimes and only on a summary offence. I suppose that is a possibility, but in the broader picture we have many other offences. I simply caution against throwing the baby out with the bathwater or throwing out the entire bill because of what I consider to be a minor defect.
The Chair: I will take the next question because it is in line with this type of questioning.
I know you're a lawyer by trade. We've asked other witnesses questions surrounding a conditional or absolute discharge. Say two individuals are charged with the same offence and one receives probation. That person would be impacted. However, if someone receives a discharge, that person would not be impacted. The bill doesn't speak to that and instead is mute. As a result, I guess it would mean that since no conviction is registered, they would not be subject to this proposed legislation.
Do some of the minor defects like that one, and there are a number, I would argue, not concern you? Should we not at least be correcting those?
Mr. Wudrick: I think you're correct: If a discharge is granted, it effectively vacates any conviction. Therefore, if the trigger for losing one's publicly funded portion of their pension, they would not be affected because it effectively would not be a conviction.
I don't think this is a perfect bill, and I think I've made that clear. I only caution, as I said, against throwing out the baby with the bathwater. Once this bill becomes law, we would welcome people changing it. I feel we are at a stage now, and let's be honest about the political climate, such that a failure to pass the bill would draw a negative inference for some people, given what is going on right now in political circles.
I agree that it's not a perfect bill, and I don't think anyone is claiming that; but I do not think that the problems with it are so great that it warrants not being passed.
The Chair: You're not concerned that imperfections passed by the Senate wouldn't bring us into disrepute as well? Would not an opportunity to correct the bill be a positive thing?
Mr. Wudrick: It would be if we had more time. We're up against the clock here.
The Chair: It's about the inability of someone to get the bill to us in time.
Mr. Wudrick: That may be a valid point on your part. Certainly, you don't control the timing of it and whether public opinion matters on this. I'm not trying to be overly harsh, but the reality is that there will be other inferences drawn if this bill is not passed.
The Chair: Thank you.
Senator McIntyre: Thank you, Mr. Wudrick, for your presentation.
Your federation has been a vocal supporter of this bill, engaging in campaigns in favour of the bill's passage on the radio and in newspaper commentary. I recall several articles in a variety of Sun newspapers and in the National Post. Have you had any kind of response from the public? What was the public response following those ad campaigns?
Mr. Wudrick: Two things: The first was actual surprise that this was not already the status quo. Some people understood that the status quo — whereby it could be taken away by the house provided that a member or senator doesn't resign — would apply regardless of whether a person resigned. The biggest surprise for us was that people were shocked that this was not already the case.
The second, to be honest with you, was that they think it's fair and just and of course they support the bill, but they thought that frankly there are other issues in the institution of the Senate that we should be talking about. In fact, we would go back to our supporters to say that this is a tangible and achievable concrete step and that we should focus on it. Most of them were amenable to that.
Senator Furey: I want to follow up on the question that the chair was asking. By the way, thank you for coming this morning; I appreciate it.
You readily admit that it's not a perfect bill and that there are some issues with it. Have you or your organization given any thought to the idea that there is no proportionality in the bill either? By that I mean that if a parliamentarian has a 15-year stellar career and on year 16 is charged under section 366(1), which is one of the hybrid offences in the bill, and is convicted summarily, do you think it's proper and right and just that he or she should lose 15 years of pensionable service?
Mr. Wudrick: That's a fair question and the same sort of question that confronts a judge when making a conviction. You may be charged with a particular offence, but the scope of your sentence — the harshness of your punishment — may depend.
The issue arises with this particular bill because the punishment is based on the conviction rather than attached to the conviction from a judicial or legal standpoint. I appreciate that it's a fair point, but the alternative would be to attempt to tie a bill to the length of a sentence because that would give us an indication of the proportionality from a criminal law standpoint. An individual who has no prior record and undertakes a particular criminal act will probably get a more lenient sentence than a repeat offender. If I take what you're suggesting, for an individual with a spotless record who commits one offence, it's disproportionate that they lose the entire pension. I don't know how we —
Senator Furey: Add to that that it's not an indictable conviction under this bill but a summary conviction.
Mr. Wudrick: In those particular instances, yes.
I agree that this is not ideal. If you're suggesting that those are the only things holding up this bill — I don't know if that's what I'm hearing — all I can only say is that in my view we have to defer to the consideration of the lower house. They obviously have made several changes to this with serious consideration. There is no way to encapsulate those particular crimes, some of which are properly included, without splitting the summary or indictable nature of them.
Senator Furey: You've said that it's not a perfect bill. If we extrapolate beyond that comment to the House of Commons, we can assume that they made a mistake here. Don't we have a responsibility to fix that in the Senate for a couple of reasons? First, that's our job; and second, and more importantly, it creates a grave injustice.
Mr. Wudrick: I would dispute the characterization that it's that grave. We can debate the severity of the outcome. I think you're talking about a very narrow circumstance. We have a list of two dozen crimes. The hypothetical being put to me is that there will be an instance where an individual will be convicted of only one of those things and only on summary instance where there is gross disproportionality. I suggest that there will be many other instances, but the overwhelming number of them won't be. By failing to pass this bill now, you leave all those other instances unpunished.
Senator Furey: I respectfully disagree with you in terms of what we have to do here. We should try to fix anything that's a grave injustice.
Can you explain to me again, Mr. Wudrick, why you think it's not a point of discussion for us to consider the interest that a spouse may have in the pension of a parliamentarian?
Mr. Wudrick: I don't think that's the case because, under the existing circumstance, if someone is still sitting, is expelled and loses their pension, there is no provision. We shouldn't compare this to an imaginary standard but to what happens right now in another circumstance when a member is expelled.
As well, as I pointed out, there are all kinds of instances in both criminal and civil law where people are punished and their family is punished ancillary to that.
There are two sides to this: On one side is a genuine concern that innocent people will be punished as a result of something that someone else does, but the flip side is that people who are guilty shouldn't be able to use innocence as a shield to their punishment. I suppose that's the best way I can put it.
Senator Furey: Do you agree that spouses or significant others have an interest in that pension?
Mr. Wudrick: I would assume so.
Senator Furey: I know that the law exists now before we contemplate passing this bill, but should we not take this opportunity to fix that injustice?
Mr. Wudrick: As I said, there would be broader implications across the criminal justice system. That's what I would say.
Senator Batters: Thanks for being here.
I understand your organization has recently suggested that senators should scan their receipts and post them on their websites. I know you have been telling your members, I think as part of your campaign to help this bill pass, to make that suggestion as well.
Are you aware that senators have been posting their itemized travel and hospitality expenses for the last 18 months on their websites as part of our proactive disclosure to be more open and transparent to taxpayers?
Mr. Wudrick: Yes, I am aware of that. I certainly welcome that. I have openly mentioned that many times when asked about reform of expenses and, for example, talking about the Auditor General's recommendations. We think that's a positive step. We welcome it in the House of Commons as well, frankly.
The reason we advocate so strongly on the issue of receipts is we think that whether there is intent or not, when you itemize or simply put line items, you can obscure the specific nature of what those receipts are for.
There is precedent for this. The City of Toronto does this; the Government of Alberta does this. We think it is a relatively simple measure. It doesn't require a lot of extra red tape. Many staffers right now are required to keep a copy of the original receipt to get reimbursement.
It's not going to be a perfect system, but if the intent of a measure is to get people who are using public dollars to always keep front of mind that they are using public dollars, we think it's a relatively effective way to do that.
Senator Batters: You said in your opening statement that, in your view, passing this bill would mean that the Senate is serious about change. I suggest to you that one of the ways we demonstrated that we are serious about change was a few years ago, when we substantially revised our pension contribution system. In fact, with the gradually increasing contributions, our pension contribution within two years, those levels will increase to meet 50 per cent of the current service costs of benefits payable. I know that's a change that the Canadian Taxpayers Federation long advocated for, so I would like you to comment on that part of it, please.
Mr. Wudrick: Absolutely. For a long time, we have been advocating on pensions not just for senators, of course, but for members of Parliament. We thought that the support provided by taxpayers was grossly disproportionate to what was paid in by parliamentarians. That has largely been brought back into line. We think it's a much fairer system now. Obviously, some of that is still in a phase-out process, but we're pleased with where it is. We think the Senate and the House of Commons deserve credit for that, absolutely.
Senator Joyal: Welcome, Mr. Wudrick.
Before the Canadian Taxpayers Federation embarked on a campaign to support this bill, did you ever consult a legal adviser on the substance of the bill and what could be the weaknesses of the proposals, or did you just embark on the campaign without paying any attention to the legal issues or the criminal implications of the bill?
Mr. Wudrick: We did not embark on a campaign until there was an actual bill, so we need to see the text of the bill.
One of the things I can say that our supporters wanted to see but which we recognized is constitutionally not possible to do was to have it retroactive. We thought that would have been problematic. Obviously, retroactively making something illegal that was previously legal is fraught with constitutional issues. It would probably be unconstitutional. Making the bill on a look-forward basis was definitely an important consideration for us.
In terms of the other implications, I think I covered most of that when I talked about the appropriate scope of the bill. If you make the bill too narrow, then you're going to be missing things that you might consider are equivalent crimes. If you make it too broad, you're capturing things where there might be a disproportionate result. I don't know that there is an objective way to reach a list of crimes that everyone is going to agree on. I think we just need to pick the ones that most of us can agree on and go from there.
Senator Joyal: You didn't consult a legal adviser once the bill was tabled in the House of Commons to check its criminal implications, i.e., its implications regarding the Criminal Code as it has been interpreted by the court on the issue, for instance, of proportionality?
Mr. Wudrick: We did not retain legal counsel, if that's the question.
Senator Joyal: You took at face value the substance of the bill as being acceptable legally. Is that more or less what you are saying?
Mr. Wudrick: We certainly look for further commentary on it. We are a non-profit. We don't traditionally hire legal counsel to vet bills on a regular basis. I know parliamentary counsel has appeared. There was nothing in what they said that struck me as problematic. We just don't make it a regular practice to hire counsel to review legislation.
Senator Joyal: I understand the objective of the Canadian Taxpayers Federation, which is to be concerned about how tax dollars are spent in the public domain. I have absolutely no quarrel with that. I think it's part of the democratic debate. But we are faced with a bill that zeros in only on that aspect, in other words, makes a decision on which crime a parliamentarian can be accused of and found guilty of, and how the sentence and the implication of the sentence should be evaluated. We also have to take into account — and I speak for myself — other crimes in the Criminal Code that could be as horrendous for average Canadians as the fact of receiving a commission, say, on a contract.
I don't mean at all that white-collar crimes are not important.
Mr. Wudrick: I understand.
Senator Joyal: We all recognize that, and in fact this Parliament has been increasing penalties for white-collar crimes. I don't need to go back to that. I'm totally supportive of that.
On the other hand, let me give you an example. If a member of Parliament or a senator would be found guilty of sexual assault, for instance, to me that is more horrendous in terms of shocking public minds than maybe, as my colleague Senator Furey has mentioned, a lapse of judgment at the last minute.
It seems to me that we have to take into account what I would call the recognition of the seriousness of the crime in the overall scale of whether we should also sanction that if we are, as I say, to have a coherent approach to reprehensible behaviour of a parliamentarian. In my opinion, there is a scale of responsibility. That's why the Criminal Code is full of different kinds of sentences — maximum and minimum and so forth — to recognize that principle. That principle is entrenched into a non-listed scale of importance that you see in reading the code but that you don't have on a chart saying this is more horrendous than this, so this will have a longer sentence than that.
That's why, when I read the bill, that's my first reaction: Why this and not that, if we are to be coherent?
Mr. Wudrick: Senator, I appreciate your point. I don't think anyone would seriously dispute that murder is not a more serious crime than fraud. That is the reality.
The point I would make is that what this bill is designed to do is obviously not replace the criminal process. When we talk about crimes, whether it's sexual assault or murder, those people will face the full force of the law. They will be convicted and serve their appropriate sentence.
What this bill is designed to do is to address crimes in which public officials are uniquely placed to commit. A public official is not uniquely placed to be a drunk driver. Anyone can do that, and they will suffer the consequences accordingly.
There are other instances, but largely politicians are unique in this respect in that they have the ability to commit some of these crimes. So the punishment is attached to their duties as a parliamentarian, and the consequence is also attached to their duties as a parliamentarian. It's something they would have derived from fulfilling those duties. That is the distinction I would make.
Senator Joyal: Yes, but there is a nuance to what you said, and it's the recent decision of Hydro One in Ontario to fire one of its employees because that employee made inappropriate comments in public against a CBC reporter. I'm sure you are aware of it. I don't want to go into detail, but here is a clear example of somebody who was not on his job; the person was out at a sporting event. However, the fact was that he was on the air, on TV. It was broadcast and covered by the media.
Mr. Wudrick: You are never off the job, in other words, is what you're saying.
Senator Joyal: I saw that and I saw the implications of that. It raised the bar of what we expect from anyone who works for a government agency, a Crown agency, a member of a legislature, a city council or anyone.
Mr. Wudrick: I would suggest that is a consequence. With the world we live in now, the line between public and private life — and therefore personal and professional — is blurring, so it's a fair point.
But in that case, the enumerated list here should be welcomed because it delineates and still does not cover everything. It means that if you are a public figure or a politician, you do not face additional sanction for crimes you might commit. There are some things one can be convicted of that are out of negligence, not out of malice or there's no mens rea.
As a result, the fact that this list is narrow should be welcomed because it suggests that we are going to draw the line here and not overly punish individuals for other careless things they might do outside the scope of their parliamentary work.
Senator Joyal: Thank you for your answer.
I was wondering if one way to achieve the objective would not be to consider — I'm not making this proposal. I have not reflected long enough to be able to say I am venturing on safe land, but would it not be better to add to the Criminal Code under sentencing principles the fact that a person occupying a public function has the responsibility to maintain public trust in a public institution, being careful about the person's ethics and how the person behaves in relation to the public trust? As much as I am concerned, as I say, it needs additional reflection in relation to that.
Mr. Wudrick: I understand.
Senator Seidman: Thank you, Mr. Wudrick, for being here.
I would like to continue with the list, if I might, because I think there are a lot of questions about the repercussions of the list, proportionality issues and other issues that have been raised. As we all know, this bill started out without a list.
Mr. Wudrick: Yes.
Senator Seidman: Do you feel that the list as it exists has shortcomings? Would the bill be better, if we think about what Senator Joyal has put forward, with maybe some kind of contextual overview about what it means to be a public figure and how you would lose trust as opposed to a list of this nature?
Mr. Wudrick: Again, that is a fair question.
We're obviously searching for a fair standard, but I think in a situation like this there is no objective measure. We started from a situation where the clear bar was set based on the penalty. So if the crime attracts a certain penalty, that's how we gauge it's of sufficient severity for this bill to apply. That was then whittled down because the categories felt too broad. Now there is obvious criticism that this crime is similar to this crime, why is it not covered?
I certainly appreciate it's not a perfect list, but my response would be what would be? It's not obvious to anyone what would be a list where everyone feels comfortable that all of the things that should be covered are covered and nothing that isn't covered isn't. I just think that's the difficulty we get into with this list.
Again, this is not the first version of the bill. I think it has been whittled down. If anything, if you want to err on the side of caution where you would have fewer rather than more, I think that is what has happened with the current example. Rather than set a blunt instrument that covers everything based on sentencing, they've whittled it down to a very specific list.
Senator Seidman: Is there a better alternative than this list? As you've said, there are a lot of issues with it and we've heard about them. Is there a better alternative?
Mr. Wudrick: I would have to go through the code and go through every instance. I think the offences included here are fair ones to include.
Senator Wells: Thank you, Mr. Wudrick, for appearing.
I want to go back to a thread that Senator Furey brought up earlier. In fact, I will quote from Senator Furey. He said that spouses have an interest in this, with the motivation for a parliamentarian not to commit a crime.
In Newfoundland and Labrador, the pension is a matrimonial asset under the law. Do you have a comment on removing a legal matrimonial asset, which is actually more than simply an interest in a spouse's pension? How might this not be challengeable under legislation?
Mr. Wudrick: If a jurisdiction has legislated that that asset is the property of another party as well, that would certainly give rise to a loss. In that situation, depending on how that interest is formulated, you could have a situation where only part of it would be lost, I would suggest. If the law were to state as the base position that half the interest was with the spouse and half was with the individual, nothing would preclude this law from still applying to the individual who was convicted while not affecting the other party.
Senator Wells: But I would say there is no provision in the proposed legislation that would suggest that, so would that be part of a future amendment or something like that?
Mr. Wudrick: It could certainly be challenged on those grounds. That's not something I contemplated until this point. It's a fair point.
Senator Fraser: Welcome to the Senate, Mr. Wudrick.
In terms of the offences covered, I understand that this bill refers only to offences under the Criminal Code. However, if we're concerned about the public's faith in its institutions, why would we deprive somebody of their pension for unauthorized use of a computer but not for stealing an election under the Canada Elections Act? To pick up on Senator Furey's comments, do you not see a serious lack of proportionality in the way this bill is drafted?
Mr. Wudrick: That's a very good point when you talk about the electoral process, which is something that politicians engage in uniquely but is not covered by the bill.
This just goes back to my original point about trying to find a list that covers everything it should and not anything that it doesn't. If you are asking me if there is a bill that covers two crimes and not a third, does that mean we don't pass the one with the two just because the third is not included? Or does it mean we pass it and then someone suggests that we add the third one after the fact? That is certainly something the Canadian Taxpayers Federation would be amenable to.
Senator Martin: Thank you for your presentation today. I can see how you are speaking with great conviction. You are very well prepared, and that's the role you're playing for your members as well as the position you're putting forward.
I wanted to clarify a point that you made that if this bill passes there is an opportunity for the Senate, and if it does not pass, inferences will be made. You quoted "with great power comes great responsibility,'' which I know is from the Spider-Man series, and it may have been said before that. I focus on the word "responsibility'' because I don't think of passing a bill or not as an opportunity but rather a responsibility that we have as the Senate. As I am listening to my colleagues around this table, they are raising key points, and that is the role that we have always played. I have great regard for the work they do.
I wanted to perhaps ask you to clarify what you meant by "inferring.'' With the kinds of pressures we're experiencing, especially the scrutiny we are under, there is added responsibility and weight. Based on that, perhaps it is an opportunity for us to lift some of that, but I just want to assure you that we're doing what we're doing because of the responsibility. I wanted to ask you what you meant by what you would infer.
Mr. Wudrick: Thank you. I certainly appreciate that. I've had the good luck to come to many of these committees. I certainly appreciate the fine work you all do. The criticisms that the CTF makes of the Senate are institutional. They are not personal, and I don't mean them to reflect on the characters of the people around this table.
I think the reason this bill is of particular import is because of its consequences and who they would affect. You have an institution of members who are currently going to trial who may in fact be impacted by this bill, and there may be more for all we know. So for the Senate to reject this bill at this stage, again, fairly or unfairly, I think it will be viewed by many Canadians as, "Are you kidding me?'' It is the fox guarding the henhouse.
That can be an unfair characterization, but regardless of the good intent, if this bill fails to pass, there are going to be many people saying, "So let me get this straight: The House of Commons passed this bill overwhelmingly, it got to the Senate in the middle of all this, and they didn't pass it?'' That is frankly my concern.
Senator Martin: I would definitely say that it is an unfair assessment for you to infer such things, but I would say with legislation and what I have learned, I'm here to listen carefully, and I will do my role regardless of what others may infer or the pressures that are around us.
There was a bill where 1 per cent of the business of small business owners would be impacted by this particular instrument. You talked about blunt instruments and fine-tuning and whittling it down. I know one of the roles of the Senate is to absolutely ensure that it is very specific to what we're trying to get at. That 1 per cent that people talked about loosely, for the small business owners that I worked very closely with, a lot of them being of Korean descent, that 1 per cent would have meant the difference between whether they stayed open or not.
Mr. Wudrick: Right.
Senator Martin: I absolutely want to just clarify that a very fine-tuned instrument, as fine as it may be, our role is to see how much more fine it can become, and that is one thing the Senate does very well.
I just wanted to let you know that I understand the public pressure and what you're saying. I do want to commend Mr. Williamson for the commendable work he has done on this. I am listening very carefully to what we're talking about here, because I do want to do my job and take great responsibility in doing that.
Mr. Wudrick: Thank you.
The Chair: I take it that wasn't a question, senator. Thank you very much.
Senator Martin: I wanted to get clarification.
Senator D. Smith: We are the chamber of sober second thought. Listening to all of these questions, I think that this bill has a lot of flaws in it, so I do not feel motivated to pass it. Assuming the chamber on the other side wants something, they can revisit it when Parliament comes back, have a look at the transcripts and try to address some of the issues. If not, maybe we could work away at amending them. I just feel there are sufficient shortcomings and flaws and areas that have not been addressed. Some of them have been addressed very unfairly, particularly the spousal stuff. That's just mean. So I don't intend to vote for it.
The Chair: Do you have a question, senator?
Senator D. Smith: What do you think of my comment?
Mr. Wudrick: I respectfully disagree, sir.
Senator Furey: I want to go back to the idea that Senator Wells raised again, and that is while I support the bill in principle, I have a real problem passing a bill that is so poorly drafted and manifestly unfair to innocent third parties like spouses, significant others and children. I have a real problem with that.
I want to take up a point that Senator Batters raised. I was happy to hear you give kudos to Parliament with respect to the move on pensions and the move on disclosure. I haven't looked at your website in a long time. What sort of disclosure do you have in terms of your revenue and your expenses?
Mr. Wudrick: That's a very good question.
The reason we are advocates on disclosure is because it's public dollars. All our advocacy is on any individual that attracts public dollars. We receive no public dollars. Just like no one has a right to go into your personal finances because it's yours, we think that the bar for transparency is higher for any public entity that receives public dollars.
There are very good reasons why an entity retains its privacy, one being, quite frankly, retribution. I'll give you a very good example. We have a number of individuals who give us information who live on First Nation reserves. If we were to publicize their name and their information and their donations, there could be repercussions for them from other folks on the reserve. That's just one example.
We spend a lot of time attacking powerful public figures and, indeed, powerful people in the private sector, for example Bombardier and Pratt & Whitney. It's entirely understandable that some of the folks that support us, who are nowhere near as powerful, like the right to their privacy. We respect that. They are free to disclose their names as supporters, but that is the reason that we have considerable privacy around our supporters.
Senator Furey: That's on the income side. What about on the expenses side?
Mr. Wudrick: We actually do disclose a broad line. Last year, we raised about $4 million, mainly from individuals. The average donation is about $100. All of it is non-tax deductible, non-receiptable. It is all a straight donation.
Senator Furey: Thank you very much.
The Chair: I see no other questions, but I want to make a quick point.
I remember when I first came here three and a half years ago, and I was asking about defeating a piece of legislation. I was told the only thing worse than no legislation is bad legislation. So I think that the comments around challenges with this legislation have nothing do with the support for what we're trying to do, for the most part, anyway, from almost everyone I've spoken to, but more for the tool we're using to do it.
Mr. Wudrick: I appreciate that.
The Chair: I want to thank you very much for being here.
Mr. Wudrick: Thank you.
The Chair: I want to thank the Honourable Senator Hervieux-Payette for being here today. We will now deal with a case of privilege relating to leaks of the Auditor General's report on the audit of Senate expenses. We have been asked by the Senate to deal with this, so I want to thank you very much. I know you have a short commentary. As well, we will have questions following.
[Translation]
Hon. Céline Hervieux-Payette, P.C., as an individual: This is a very emotional issue for me. Let me first tell you about my state of mind. I am very disappointed and sad about what is happening to our institution. I must say that I have always been proud of the work I have done here, in Ottawa. I left a very lucrative position to join the referendum battle, in 1995, and much of my adult life has been spent here and in the House of Commons. To my mind, our country's fundamental institutions ensure democracy in Canada.
As the publishing of the report was announced for Tuesday, June 9, at 2:05 p.m., you will understand not only my surprise, both on a personal level and regarding the institution, the Senate, but also my disgust when I realized that, on Friday morning, the front pages of national newspapers had photos of the three main leaders of the Senate — the Leader of the Opposition, the Leader of the Government and the Speaker — while my colleagues and I had not yet received a copy of the Auditor General's report. That was the first media salvo.
However, I have some very startling documents to submit to you, Mr. Clerk. One of those documents comes from the website of the Office of the Auditor General of Canada. There is a PDF document on the website containing the words "Office of the Auditor General of Canada'', the address and the date, "June 4, 2015'', and it states the following:
. . . including Senators' expenses, that the Senate. . .
I find it very strange that the report is dated June 4, while the website of the Office of the Auditor General says the report would be submitted on June 9, five days later.
I took a sample, daily —
[English]
Senator Furey: Do you have copies of that, senator?
Senator Hervieux-Payette: Yes, I will share them with you.
Senator Furey: Okay.
[Translation]
The other document, which is also shocking, says the following:
[English]
CBC News has learned that 50 copies of the Auditor General's report will be handed over to the Senate today as well as to the Prime Minister's Office.
[Translation]
I remind you that this document is dated June 4. I have never heard of 50 copies of a confidential Senate report being distributed. I am trying to understand how such an indiscretion could have occurred. When 50 copies are produced, I would say it would be a miracle not to have one. So I am submitting this document to you, as I have taken some information from it.
The most frustrating aspect of this situation, Mr. Chair, is that, as a senator, I had to wait until Tuesday, June 9, to obtain a copy of the report and that, every day, I would meet people who would ask me questions about what the media were reporting, about the accusations made against various people, and about the way our institution was being ridiculed, not to say held in contempt. I feel that, given the work my colleagues and I do here, it is clear that no one comes here to have fun. I feel that we come here to serve the citizens of our provinces, and that we have a highly specific review mandate for minority clienteles. I have personally done a lot of work for the status of women and for children. I have also done a lot of work on economic issues.
There are also articles. On June 5, the Canadian Press published a fairly important article, which states the following:
[English]
Ferguson's report identifies $976,627 in questionable spending among 30 current and retired senators.
[Translation]
However, we are still talking about a time when no one was supposed to have a copy, aside from those mentioned.
The other thing that amazes me — and this is one of the reasons why it is a question of privilege — is that I was originally told that Mr. Smith, Mr. Furey and Ms. Marshall had to receive the document before the next step is taken. The process has changed along the way. The leaders' response has also changed along the way. In the beginning, they agreed to testify, but they then decided to write a cheque and say that they would not testify. That happened before they even received the report. So decisions were being made at the whim of certain individuals. In the meantime, Senator Boisvenu resigned.
The report was extremely sensitive and potentially damaging for the institution. Experts were hired to manage communications, from what I can see, and they have been working very hard, but certainly not in the direction I was anticipating.
Therefore, I propose that an investigation be conducted to find out who manipulated the information, who was involved in what happened and who obtained copies. We are all tarnished by this situation.
Whenever I receive a committee report before it is published, the clerk sends me a note to say that the document is confidential, and that there would be consequences if it was leaked. This was probably the most sensitive report that could have come out of the Senate; it was passed on left and right, and it was commented on by all the media. So far, I suppose the media must have had the right copies because no information was missing in anything I have seen. Finally, we received a copy of the report.
Esteemed colleagues, Mr. Chair, I insist that an investigation be conducted to ensure that something like this does not happen again. Of course, in good faith, each and every one of us has agreed to participate in the exercise and has voted for the exercise to be carried out.
At this time, there is a great deal of concern and many questions regarding the report of the Auditor General, whose institution has also been tainted. That is why I am asking you to establish an investigation mechanism to report on this incident. When I say, "without delay,'' I do not mean in five years. The investigation should begin with an obligation to report in two months.
[English]
The Chair: Thank you very much, senator, and thanks for being here.
Senator Smith.
Senator D. Smith: Maybe you can explain what you think we'd do. When I finally got that report, there was nothing in it that I didn't already know. There were certain specifics, but as to who was on the list, whether the A or B list, and whether it was clear, I already knew. Who did I know it from? Well not from senators but from the media. It would be interesting to know, but what do you suggest we do to find out? Put them under oath? Give them sodium pentothal? Use a lie detector machine? I just don't know.
[Translation]
Senator Hervieux-Payette: May I answer?
The Chair: Of course.
Senator Hervieux-Payette: No, we do not live in a country where journalists do the impossible to obtain confidential copies. I think that it is part of their job and that they have all the protections they need to keep their sources confidential. It is not a witch hunt for them.
I feel they certainly got a great deal of pleasure from providing the information bit by bit, but that aside, the fact remains that 50 copies of the report have been distributed, according to the media. We know some people received a copy: the three leaders, and the Prime Minister. I think the people who received a copy should be questioned, the evidence should be followed, and it should be determined how many people saw those copies.
Of course, that is not an easy thing to do, but if we cannot control information in the future, it is clear that the notion of confidentiality will lose all credibility.
Senator McIntyre: Madam Senator, thank you for your presentation. As mentioned in the report of the Standing Senate Committee on Rules, Procedures and the Rights of Parliament and in your note we received, parliamentarians must be able to function in a climate free from obstruction, interference and intimidation.
However, we have to distinguish between obstruction through physical means and through non-physical means, as both types of obstruction can give rise to questions of privilege.
That being said, four criteria have to be met for a question of privilege to be accorded priority. Do you feel those four criteria have been met in this case?
Senator Hervieux-Payette: When I delivered my speech on this question of privilege, I did it as soon as possible, as the first day the Senate sat last week was Tuesday.
Senator McIntyre: The first criterion has been met.
Senator Hervieux-Payette: Exactly. I do not know of any other procedures that make it possible to correct the current confidentiality policy. If 50 copies were indeed distributed, from the outset, thinking that no information leaks could have occurred is pure fantasy. There should have been one copy for Mr. Housakos, one for Mr. Cowan and one for Mr. Carignan. From there, a communications management plan was established, since a special agency was given the mandate to handle that aspect.
The second criterion is that the matter must concern the privileges of the Senate. I do not think the Senate, as an institution, came out of this incident as a winner. On the contrary, I would say that the increase in the number of those in favour of abolishing the Senate clearly shows that the release of the Auditor General's report had a very negative impact.
Our colleagues have also been negatively affected, and we must repair the serious damage caused to the institution's reputation. In politics, the number one quality of a parliamentarian is a good reputation. Needless to say, this report has not contributed to senators' good reputations. It had a negative impact, not only on senators in general, but on senators as individuals, and on the Senate as an institution. We have all been tarnished by this procedure.
[English]
Senator Furey: Thank you, senator, for coming and for raising this very important question. I'm trying to categorize your question of privilege in my mind, and I see it as a two-pronged thing. Perhaps you could comment on it or at least correct me if I'm wrong.
The first prong is the issue of the actual release before tabling in the chamber, and the second prong would be the potential harm to individuals named in the actual report. Am I reading that right?
[Translation]
Senator Hervieux-Payette: Yes, for the very simple reason that those senators have not been charged and have no reimbursements to make.
I personally feel connected to the institution and to its reputation. I am like all of you; I have also received very negative messages on the Internet. As a lawyer, I would say that, quite simply, the fundamental right to the presumption of innocence has been violated. Some colleagues are currently being presumed guilty instead of innocent. In reality, it is as if each of us participated in the incident.
However, the incident in question has not yet been examined. Despite the fact that the group of senators has been referred to the RCMP, we have to remember that reference to the RCMP does not automatically lead to legal proceedings. It is one step — an extremely serious one. For example, Senator Wallin has been on the sidelines for nearly two years, while no charges have been laid and her life has been turned upside down.
Will the colleagues who are currently in that situation receive the same treatment? Mr. Chair and esteemed colleagues, I feel that they deserve better than that. We have all worked very hard over the past few months and years in Parliament, and I think the negative effects of this report on our work will be difficult to undo.
[English]
Senator Furey: Senator, you've been here longer than most if not all around this table. I want to ask you to just think back historically.
My recollection for the time I've been here is that the leaking of documents, like committee reports or documents such as the one we're talking about, has always been a matter of grave concern to senators if it happens before they're tabled in the chamber. Have you always found it to be that way?
[Translation]
Senator Hervieux-Payette: I have previously been called to order by clerks for incidents involving issues without a great deal of interest in public opinion. Technical reports have often been leaked, but they were treated in a somewhat cavalier fashion.
The fact still remains that, as senators, we have a responsibility to keep a document confidential, and failure to do so may lead to penalties. As for what the penalties have been, I do not sit on this committee and I never have, but I know that there have been a few confidentiality leaks. I feel that failure to respect confidentiality has always been seen as a serious matter, as it is akin to a violation of professional secrecy.
[English]
Senator Furey: Thank you.
Senator Tkachuk: Thank you for this, senator. I have been interested in this issue for quite some time, actually. During the Duffy investigation we had some of the same issues, with leaks consistently happening, making it at times almost impossible for the committee to do its work. We had an investigation. Nothing was really decided from the investigation.
What should the punishment be? If it leaked out of the Auditor General's office, should he be fired, or should administration officials be fired? Should senators get some kind of censure? What should happen if it's shown in the investigation that there was a leak and that they were responsible?
[Translation]
Senator Hervieux-Payette: I think that a range of penalties could be applied, depending on the subject matter. Some situations give rise to economic consequences. In my opinion, that is very serious. If a confidential prospectus issued in a law firm were to be made public, I can assure you that the penalties would be very heavy.
The report we are discussing may be the most important document the Senate has ever received. If an investigation proved that individuals did this deliberately — it could not have been accidental, as too many journalists were involved — I believe very harsh penalties should be considered. It is up to your committee to decide whether to recommend that those individuals be fired, or fired and fined. Make no mistake; the senators who have been tarnished will have to pay a lot of money in legal fees. I do not know what lawyers charge in your province, but I know that, at home, some of our colleagues will have to pay hundreds of thousands of dollars to defend their reputations. There are economic consequences, as the situation has been made worse and our colleagues' reputations have been tarnished. I believe that they are entitled to a full answer and defence.
[English]
The Chair: I apologize. I actually passed Senator Batters, so I will call on Senator Batters now, please.
Senator Batters: Senator, there was an article in The Hill Times yesterday entitled "Senate Liberals may seek review of Cowan's leadership.'' There were several Liberal Senate sources quoted in that article, but you were the only one actually named in that article as giving a quote. They indicated in the article:
In an interview last week, Liberal Sen. Céline Hervieux-Payette (Bedford, Que.) said that the three Senate leaders should not walk away by just paying back the questioned dollar amount but should face the arbitration process that they put in place to prove their claim that they did not misspend any taxpayer money.
"I would like him [Sen. Cowan] to go and clean up his name. The same thing for Housakos and same thing for Carignan. They should go and make their case that they have not broken any regulation,'' said Sen. Hervieux- Payette.
Then they asked you whether you had confidence in the leadership, and you had a quote about that as well.
Senator, I am sure you would agree that it's fair to say that you were displeased that Senators Cowan, Carignan and Housakos were listed in the AG report under that less serious category listing; correct?
[Translation]
Senator Hervieux-Payette: I came here to talk about the question of privilege, which has nothing to do with your question. You are asking for my opinion on the way our colleagues have behaved since the report was submitted.
[English]
Senator Batters: Give me a little latitude here.
[Translation]
Senator Hervieux-Payette: What I want to know is how the report became public. As for the rest, I will not discuss it here.
[English]
Senator Batters: The fact that those three senators that I just named were listed in the report, you actually became aware of that fact prior to Thursday, June 4, when the report was delivered; correct?
[Translation]
Senator Hervieux-Payette: Yes.
[English]
Senator Batters: And your displeasure about those three senators being listed, did that lead you to disclose that information to the media?
[Translation]
Senator Hervieux-Payette: Are you kidding? I think that, if I am this insulted over how the report was —
[English]
Senator Batters: No, I'm not asking that question. Yes or no?
[Translation]
Senator Hervieux-Payette: I am giving you the answer, Senator Batters, and I am simply saying that, after 20 years in the Senate, I have more respect for this institution than for the individuals who leaked the report.
[English]
Senator Batters: But can you answer my question? Yes or no?
[Translation]
Senator Hervieux-Payette: No, I did not inform the media. In any case, the 9 individuals whose cases have been referred to the RCMP and the 21 others named in the Auditor General's report will have to reimburse money. I did not have a copy.
[English]
Senator Batters: You will recall that earlier that day, though, June 4, the initial leak, the real first salvo that you were earlier referencing regarding the AG report was that those three senators were in that report. Do you recall that?
[Translation]
Senator Hervieux-Payette: Yes, but that was not from the report. I did not have a copy of the report any more than you did. Unless you did have a copy?
[English]
Senator Batters: I'm not saying that it came from the report.
The Chair: I'll put you on the second round.
[Translation]
Senator Fraser: Thank you for being here, Senator Hervieux-Payette. I will ask my question in English, as it may be a bit technical.
[English]
If memory serves, this committee has already established in the past that it is a breach of privilege to leak a report of the Senate — and, more specifically, of a committee of the Senate — before it is tabled in the Senate or presented in the Senate.
Have you done any research and are you aware of any parliamentary authorities on the case of a leak of a report to the Senate? That comes in two subsections, if you will: the leak of a report to the Senate before it is made available to the Senate; and then the leak of a report after it is conveyed to, in this case, the Speaker of the Senate, but has not yet been tabled in the Senate.
Are you aware of any previous cases, authorities, opinions, indications of how we might view these specific cases?
Second, are you aware of any authorities addressing the matter of a report to the Senate being made available to the Prime Minister's Office before it is presented in the Senate or tabled in the Senate? Have you got any information on what parliamentary authorities say about all that kind of thing?
[Translation]
Senator Hervieux-Payette: I expect that those who were supposed to receive the report will rather tell us what the provisions were. According to what our leader and Speaker Housakos, who came to our committee, told us, it was clear that the report should have remained confidential until Tuesday at 2:05 p.m. So I was not questioning the report's legal validity — whether it was produced by the Senate or for the Senate. The report was produced for the Senate. As far as I am concerned, if a legal issue is attached to this, I would like the Senate legal service experts to consider it. That changes nothing in the basis of the breach of my privileges as a senator.
[English]
Senator Fraser: Let me be specific about this. I agree that this incredible series of leaks was a serious breach of privilege, but I'm wondering, chair, if we could get from the table officers a compendium of whatever information exists about those points that I just raised.
The Chair: Thank you very much, senator. Actually, that's what we were discussing, and your point is well taken. Not only is it not a report of the committee or of the Senate at that point in time, it's a report of someone else that was presented to the Senate. I'll ask our Library of Parliament staff to have a look at whether or not we have any supporting case references previously from either here, in the other place or elsewhere.
Senator Fraser: Westminster.
The Chair: That's "elsewhere.''
Senator Joyal: There are three points I would like to make on this issue this morning. The first is that you have referred to the leaks before or after June 4, but in fact there were leaks much earlier than that, in my opinion.
I was questioned by the press in April, like other senators were, when we started receiving letters from the Auditor General. I remember very well when I left a caucus meeting, and there was a journalist from a TV network — not mentioning the name of the person — who asked me if I had received a letter from the Auditor General. In a fraction of a second, I asked myself if I should say yes or no. The answer was yes, I had received a letter, the letter that 80 more of us had received of the same nature. But I refrained from saying that I had received the letter because I was under the conviction that I had signed a document that committed or pledged me to confidentiality as long as the report would not be published.
In other words, I was left personally wanting. I could have rushed to say "yes,'' and then of course the next question would have been, "What is the substance of the letter?'' And then I would have had to deny the answer because I would have broken my commitment to confidentiality. Then by not answering, the journalist in question might have concluded that, in fact, I had received a negative letter saying I had to reimburse money or provide additional explanation on expenses and so forth.
So I answered that I was committed to maintaining a pledge to confidentiality, but I was of course the object of comments in the media wherein there was a doubt about my own status, while in fact the status was pretty clear; I had received a letter and the letter said "your name will be reported but there will be no comment on your expenses.'' I didn't want to start distancing myself from other senators because I thought it was unfair, and I thought it was a trap. So I refused to answer, and I essentially repeated that I was bound by a commitment to confidentiality. I could bring the press article that confirms what I am saying to you.
As much as I was concerned as a senator, I thought the commitment I had made to maintain confidentiality could to a point be at the expense of casting doubt on my own behaviour in relation to expenses. I thought it was unfair, but the journalist seemed to be well aware that the letters were spread and that there were different categories of letters.
So it seems to me there were leaks before the publication of the report, and I think that widened the investigation into the leaks that happened before the report was published. That's my first point.
My second point is in answer to Senator Tkachuk as to what we should do. Mr. Chair, in May 2007, the House of Commons studied a situation that was similar to ours. It's a report of the Standing Committee on Public Accounts dated May 2007 under the chairmanship of Shawn Murphy. The title of the report is The Premature Release or Leaking of Reports of the Auditor General to the Media Before Their Presentation in the House of Commons. It's on the same subject that we are dealing with here. That was eight years ago, not yesterday. There was a recommendation in that report, which I will read. It's four lines, and it addresses specifically the point raised by Senator Tkachuk:
RECOMMENDATION
The Treasury Board of Canada, in consultation with the Auditor General of Canada, adopts a strong policy regarding security requirements for handling draft audit reports of the Auditor General, including, but not limited to, sanctions —
— that's the question of Senator Tkachuk about sanctions —
— such as ethics training, suspension and or dismissal for failing to comply fully with the document controls.
In other words, there were specific recommendations of sanctions in relation to a leak. That report contains seven further paragraphs that comprise the government's answer to the recommendations. That was eight years ago.
In other words, we are certainly in a position to ask the Auditor General, in following the report, which measures have been initiated to answer to those leaks because they have happened in the past. Honourable members could certainly access a copy of this report and read it.
I think that we are certainly in a position to ask the Auditor General how he has complied with the guidelines that were supposed to have been issued by the Treasury Board following the premature release or leaking of the report of the Auditor General. That's my second point.
Third, my memory might serve me well or less well, but I seem to remember that when Madam Fraser was Auditor General, there was a leak in her office — "her office'' meaning her services — and she called in the Mounties to investigate. I would have to go back to the past history of the terms of the mandate of Madam Fraser, but it seems to me that leaks coming out of the Auditor General's office have always been taken very seriously. I would maybe ask the Library of Parliament to check that point because it seems to me a very serious issue in relation to confidentiality.
Finally, there is a question that bothers me. In the days before the report was given to the Speaker and the two leaders, there were many comments coming from the Auditor General's office or from the Auditor General himself about the report. That seems to me to be, as I say, in breach of the confidentiality we were all committed to. We found ourselves in a position where we had our hands tied and mouths zipped because we were individually committed to the report in not being able to comment on anything, even though we had received that letter many months ago, at least seven weeks or so, and we were bound by not saying a thing because we were under the threat that the report is not finalized until it's finalized, so "You guys better behave because you never know what could happen and fall on your head.''
So there was that kind of — I would not say blackmail, but there was that kind of pressure on us, to use a non- political word, while on the other hand there seemed to be some freelance commentary generally and feeding the media and mounting pressure on the report. That seems to me to be unethical.
I think the Auditor General, in my own personal opinion — and I was vice-chair of the Public Accounts Committee in the House of Commons for two years. The Auditor General, never forget, is an officer of Parliament. That is his status. He reports to us. And if he is to maintain the high level of trust that has been provided to exercise his functions, he should be above any suspicion. When we deal with that position, we are dealing in strict confidentiality. But confidentiality and trust is a two-way street; it should not only be us and no commitment from him.
It seems to me that those issues also have to be reviewed because they are linked to the question of privilege. For the sake of the future of this institution and the sake of the thrust of that position, the situation needs to be clear.
As I said, there has already been in the past some other instances where there were leaks or a premature release of an Auditor General's report. It seems to me this is a serious issue, and we should pursue the discussion and investigation.
The Chair: I noted that the library clerk will take that under advisement as well and will gather up the information from 2007.
Senator Hervieux-Payette: I will reply to the last comment about having questions many weeks or months before the report was due to be tabled. I, too, was questioned about the letter, over and over again. I would say that I was harassed by the press, saying "Did you receive your letter?'' and so on. I acted like my colleague. I said, "It's none of your business and I'm not going to reply.''
But I went much further. I was seeing there were some leaks which were of a minor nature, and I actually wrote to the Auditor General on this question. I said that I was quite tired of seeing in the media that he was making comments that, "Well, for a certain person, I will send their file to the RCMP,'' and "No, I'm not making any comments about the report.'' This did not come from heaven. I was reading it in the media, and I even sent a copy of an article, saying, "Auditor General, this is what I have read in the newspaper, and I am not happy, because if I am obliged to act in confidentiality, you have to do the same thing.''
Maybe you witnessed the same thing, but you didn't write. I wrote to the Auditor General on this matter because I was very concerned. On this question, I can tell you that I went further than probably you, so it's not my first preoccupation.
I welcome the information about the House of Commons' conduct in the past.
I also was bogged down by the fact that people were questioning, "Are you on the right side of the issue or the wrong side of the issue? and having some suspicion. The suspicion at that time certainly was not coming from the institution here. It was coming from outside.
As far as I'm concerned, I think we are due. I'm not going tell the committee where to start and what to do, but I think there should be some people that are in charge of framing the inquiry and reporting, as I say, not in two years but in a reasonable time frame.
The Chair: Senator, thank you very much for that. Any of the documents you referred to, if we might have copies of them so we can share them with committee members, I would appreciate that.
Senator Hervieux-Payette: I'll give it to the clerk.
Senator Jaffer: Before I ask a question, chair, on an immediate basis, I would ask, and I hope the committee will support me on this, that we go to the Senate and get permission to sit on this issue while the Senate is not sitting. I am very concerned that we not leave this issue until we come back because we don't know when we're going to come back. I feel that we really owe a responsibility obviously to each senator.
I'll never forget as long as I live that Thursday afternoon when the leader of the Senate had to go and respond. He was put, including the other two leaders, in a terrible situation. I think that there was a real breach, and it is this committee's job to get to the bottom of that breach.
I would also ask, in the work we do, to get all the interviews that the Auditor General did before this report was released.
It was very uncomfortable to hear. We were muzzled. We weren't allowed to say anything. We were told that if we said anything, we would have issues personally because we had signed confidentiality, but where was his responsibility? I think we need to look at all the things he said before the report was released.
The Chair: If I may, senator, our role here is around parliamentary privilege and the leak. I don't know that our role is to look at whether or not five months previous or three months previous —
Senator Jaffer: I'm not talking —
The Chair: — or five minutes previous to us supposedly having the report, whether or not the Auditor General was speaking out of turn. Individually, people may have opinions around that, but I'm not sure that's our role for this committee.
Senator Jaffer: I think that it could be an issue around our privilege, and I want us to look at it, because we do have privileges. I don't know, but I think we should look at it. I don't think we should presuppose that that's not an issue.
The Chair: I will take it under advisement and discuss it with the steering committee. Thank you.
Senator Jaffer: My question to you, senator, is two-pronged. This is something where research needs to be done. You have been here longer than I have. Has there ever been a release to others before a report, like the 50 reports? It's already been stated about a report going to the Prime Minister's Office before us seeing it. Have you in all the years that you have been in both jobs as an MP and here seen any kind — I'm calling this a slow torture release where some get it and some, depending where are you in the totem pole, get it last. The slow release, have you ever seen this before?
Senator Hervieux-Payette: I guess this would be part of the inquiry to see what happened in the past and how it has been dealt with, because I've never heard that whenever we have a report, it's being sent to the PMO before its being tabled in the Senate. I think it's not certainly a practice or a rule that we are reporting to — in fact, it's against the rules. We should manage our own business, and I don't think we have to report to government because Parliament and government are two institutions. They are both a pillar of democracy.
Senator Jaffer: Senator, I'm really disturbed that there was a — I don't know how else to say it, but there was the challenge that maybe you were the leak. I would like you to set here clearly — the person who brings this up is being alleged to have leaked something. For me, this is a very wild allegation, so I would like you to exactly state what you knew. Did you at any time speak to the media?
Senator Hervieux-Payette: Well, I swear I never talked to the media, period.
Senator Jaffer: Thank you.
The Chair: That was clear. Thank you very much, senator.
Senator Batters: Senator, if you attended at the Senate chamber on Thursday, June 4, you will recall that media were perched at basically every possible location a senator may be that entire day, as soon as that initial leak which Senator Jaffer was just speaking about regarding the Senate leadership occurred, in a persistent effort to obtain additional confidential information from us. Do you recall that?
Senator Hervieux-Payette: I don't understand your question.
Senator Batters: Do you recall that media were everywhere on Thursday, June 4, all throughout that day, once that initial leak came out about the Senate leadership? Do you remember that happening?
Senator Hervieux-Payette: Well, I read, like all of you, the newspaper and front page of The Globe and Mail, but I didn't speak to anybody. For me, I was scandalized.
Senator Batters: I'm just asking if you recall the media being around. Were you in attendance at the Senate chamber on Thursday, June 4?
Senator Hervieux-Payette: Yes. I was there every day of the week, yes.
Senator Batters: Okay. And you signed a confidentiality agreement with the Auditor General, as we all did; correct?
Senator Hervieux-Payette: No.
Senator Batters: You did not sign it?
Senator Hervieux-Payette: No.
Senator Batters: Okay. Why was that?
Senator Hervieux-Payette: Because I felt when I — let me explain.
[Translation]
I assured him that, on my honour, I would not reveal any details of the exercise, but that I was keeping my parliamentary privileges. That sentence was the basis for the letter prepared for my signature by the Auditor General. I told him right away that, when I received a letter, I could answer it myself and did not need someone else to write a reply for me. I said that, on my honour, all the information would remain confidential. Later on, I said that I was not giving up my parliamentary privileges in the exercise. I actually have even more reason to claim my privileges.
[English]
Senator Batters: You also said that you've been a senator for many years, and prior to that you were a member of the House of Commons for several years. So you certainly fully understand the importance of maintaining caucus confidentiality; correct?
[Translation]
Senator Hervieux-Payette: You can inquire, but I do not think any people who have sat with you were former Liberals and our official reporters.
[English]
Senator Batters: I'm asking the question about your prior experience.
[Translation]
Senator Hervieux-Payette: I have never been described as someone who — Being a lawyer and knowing what the solicitor-client privilege means is a good preparation. What happens in the Senate should not end up in public, as far as I am concerned.
[English]
Senator Batters: Okay, but can you answer my question, given those significant years of experience in those two roles —
[Translation]
Senator Hervieux-Payette: That changes nothing. Regardless of whether I have been here for 20 years or 25 years, I am telling you that I respect the solicitor-client privilege and the caucus privilege.
[English]
Senator Batters: Thank you.
The Chair: Thank you very much.
I do appreciate your time here, senator. I think a lot of people have some of the same concerns that you have raised, and I think it does give us an opportunity to reflect.
We have gone almost 15 minutes longer than we'd anticipated. I want to thank everyone for being understanding.
I ask for the indulgence of the committee to allow the steering committee to meet later this week to discuss next steps of the committee work in relation specifically to this and some other pieces that we have to conclude.
Senator Jaffer: I have to say — I can only speak for myself; I don't have a leadership role — I don't want this to follow us in the next six months, eight months, however long we are away, so I would urge steering to please find a way that we work on this issue and not have it be sort of a ghost with us for all of these months.
The Chair: Do we have agreement that steering will walk forward, and then we'll report back?
Hon. Senators: Agreed.
The Chair: Thank you very much.
(The committee adjourned.)