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Proceedings of the Committee on 
Rules, Procedures and the Rights of Parliament

Issue 5 - Evidence of February 11, 2003

OTTAWA, Tuesday, February 11, 2003

The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:02 a.m. to examine proposals to amend the Parliament of Canada Act (Ethics Commissioner) and other acts as a consequence and proposals to amend the Rules of the Senate and the Standing Orders of the House of Commons to implement the 1997 Milliken-Oliver report, tabled in the Senate on October 23, 2002.

Senator Lorna Milne (Chairman) in the Chair.


The Chairman: Honourable senators, we are meeting this morning to discuss a package of documents that has been presented to the Senate by the government on new ethics and conflict of interest rules for senators. This package is based on a report that one of our colleagues, Senator Oliver, prepared in conjunction with his House of Commons counterpart, Mr. Milliken, who is now speaker of the other place.

Testifying before us this morning is Senator Carstairs, the Leader of the Government in the Senate. She is the only cabinet minister in the Senate and she is the minister responsible for the ethics package.

Honourable senators, due to the fact that we are covering this important discussion on CPAC and because our committee slot times are so limited in scope, I will not introduce the senators individually. I will ask CPAC to do that when senators first speak. For the benefit of viewers, and since these gentlemen are never introduced, on my left is Mr. Armitage, our committee clerk and on my immediate right is Mr. Robertson, our researcher from the Library of Parliament.

I will note that attendance is much the same as in the previous committee that I chaired. We have always had a tacit agreement that there will be no votes before all the witnesses have been heard. I would like to make that a formal agreement, that there will be no votes until all the witnesses have been heard and all the evidence is before us. At that point, it will be a different kettle of fish, and I will invite the committee itself to decide how it wishes to proceed from that point forward. Is it agreed, honourable senators?

Hon. Senators: Agreed.

The Chairman: Let it clearly be shown that there will be no votes until the witnesses have been heard. In the interests of brevity, I would actively discourage the raising of points of order or privilege. I will guarantee that everyone will have as much time as possible to question the witnesses, and a full discussion of everything will follow.

I will keep a speakers' list and I will follow it closely, based on when I see your hands raised. I will also ask senators to keep their preambles as short as possible, again in the interests of hearing from the witnesses themselves.

Any suggestions to the chair will be much appreciated to expedite the proceedings of the committee.

Hon. Sharon Carstairs (Leader of the Government): Madam chair, honourable senators, I am pleased to have this opportunity to appear before you today to discuss the proposed ethics commissioner and the code of conduct for parliamentarians.


This issue has been studied a number of times by parliamentarians, most recently by the Oliver-Milliken Committee, which tabled its report in 1997.


The government is proposing that the position of the ethics commissioner be an officer of Parliament. Like other officers of Parliament, the ethics commissioner would be established in statute. The draft bill presently before you is a basis for providing remuneration and office resources to that ethics commissioner. It also outlines how the commissioner would administer the conflict of interest code for public office holders.

The basis for this draft bill is, as you know, the Oliver-Milliken report, which was the last report undertaken by parliamentarians. It was chosen because the thoughts expressed represented those of a committee of parliamentarians from both chambers in 1997.

The Oliver-Milliken report recommended that any legislation would be supported by non-statutory rules. One set of rules would cover parliamentarians. The second set of rules, the conflict of interest and post-employment code for public office holders, would set the standards for ministers and other public office holders. That has been tabled in Parliament by the Prime Minister.


The Oliver-Milliken report is a sound and reasonable basis for the development of a code for parliamentarians. This statutory and non-statutory format reflects the Oliver-Milliken Report and the opinion expressed in both Houses that a code of conduct for parliamentarians should be set out in non-statutory rules to the extent possible.


There have been changes to the Oliver-Milliken report; however, the draft bill would enable the ethics commissioner to be under the direction of a Senate committee for Senate issues and a House of Commons committee for issues in that chamber, instead of a joint parliamentary committee on official conduct, as had been initially suggested in the Oliver- Milliken report.


This is consistent with our tradition that each House of Parliament should be responsible for the administration of its own affairs.


Subsection 72.5(3) of the draft bill provides greater certainty that the mandate and powers of the ethics commissioner do not in any way limit the privileges and rights of Parliament or parliamentarians with respect to the implementation of the code for parliamentarians.


Section 10 of the proposed Code of Conduct also clearly states that the Code in no way affects the privileges of Parliament. This is consistent with the intent of the Oliver-Milliken report.


Honourable senators, there are a number of reasons for having a single ethics commissioner for ministers and members of the Senate and House of Commons. A single position would ensure that the same person provides advice on ethics issues to ministers and parliamentarians. This would limit the scope for conflicting opinions on advice and jurisdiction. The government's consultations with parliamentarians last fall showed strong support for a single ethics commissioner position reporting to Parliament, and that is what is in the draft bill before us today. However, I know from speeches in the Senate chamber that some honourable senators believe that the Senate's special circumstances mean that honourable senators should have their own ethics commissioner.

Honourable senators will know that this issue has been studied extensively in the past and a single position for the Senate and House of Commons was recommended by both the Oliver-Milliken committee and the Stanbury-Blenkarn committee of 1992.


This was for purposes of administrative efficiency and to avoid having widely differing ethics approaches between the Houses of Parliament.


While there are matters that are unique to the Senate, there is also much overlap between ethics issues in the Senate and the House of Commons, and there may be ways of responding to interests in the Senate that stop short of having a separate ethics commissioner for the Senate, with all of the costs and administrative burdens that would entail. The Oliver-Milliken report recommended a uniform code of conduct for all members of the Senate and House of Commons. That is also reflected in this proposed draft.

A uniform code for the Senate and the House would assure Canadians that the same high standards of conduct apply to all parliamentarians.

The Oliver-Milliken code would consolidate and update our existing rules, which are spread over many statutes and parliamentary rules. For example, antiquated language in rules concerning government contracts would be updated, and rules concerning pecuniary interests would be consolidated. New rules would apply to both senators and members of the other place, such as on receiving gifts, personal benefits and on sponsored travel.


Of course, the rules of the Senate on pecuniary interests, as they presently exist, would need to be adjusted to reflect the new provisions in the Code.


The Oliver-Milliken report also recommended a disclosure regime for parliamentarians, their spouses and their dependants.

Honourable senators on both sides have expressed serious concerns about spousal disclosure, and the government has responded to the view of senators and members of the House of Commons that an effective code is possible with the disclosure regime applying only to parliamentarians.

Conflict of interest rules would require a parliamentarian to disclose his or her interests and those of family members in exceptional circumstances where these interests conflicted with a matter in committee or on the floor. This is already current practice. This approach builds on the existing conflict of interest provisions and parliamentary rules, and is also similar to provincial conflict rules.


The draft rules also include two adjustments which address concerns raised by my colleagues in the Senate and which I wish to highlight to the Standing Committee on Rules, Procedures and the Rights of Parliament.

The first adjustment is about the oversight of the Ethics Commissioner by a joint committee.


My discussions with honourable senators indicate that oversight of the ethics commissioner by a Senate committee for issues regarding senators and by a House committee for issues regarding its members would be more in keeping with our traditions of having each house responsible for its own affairs and much more effective than a joint committee.

The draft bill enables the ethics commissioner to report to separate house and Senate committees. These committees would have expertise on the culture of each chamber and could respond more quickly to questions that, by their nature, are sensitive and require speedy attention.

The second adjustment clarifies that only a parliamentarian from the same house may bring forward a complaint under the parliamentary code about another parliamentarian to the ethics commissioner. Complaints from the public would be brought forward through a submission by a parliamentarian.

Some honourable senators have asked about the particular form a code of conduct could take. One possibility would be for the code to be a stand-alone document that might be referred to in the Senate rules so that the code carries over from session to session. There may be other ways honourable senators feel that this could best be addressed.

The 1997 Oliver-Milliken code is similar in approach to what is taking place in most of our provinces and is an approach that is working well.


The 1997 code is, I believe, a sound basis for moving ahead with a code that would enhance public trust in the institution of Parliament and in parliamentarians themselves.


The Prime Minister has stated very clearly that the government will be open to changes recommended by this committee and the committee in the other place. I wish the committee well in its deliberations, and I would be pleased to assist you in any way that you feel would be helpful. I would be pleased, if there are questions, to provide the answers to the best of my ability.

The Chairman: Thank you, Senator Carstairs.

Senator Stratton: Senator Carstairs, it was a very good presentation, which answered some of my questions. However, I still have a problem with the selection of the ethics commissioner. Could you describe to me how that selection process would take place?

Senator Carstairs: The recommendation in the draft bill — and I would indicate again that it is a draft bill — would be that we use the same process as is in place for the Auditor General. It is a Governor-in-Council appointment after consultation with the leadership in both houses.

Senator Stratton: Is that not the same process that is currently in effect for the appointment of the Ethics Counsellor? We have an Ethics Counsellor who is appointed by the Prime Minister. Is that not essentially the same process? How is it different, if it is?

Senator Carstairs: It is different in the sense that the present Ethics Counsellor is not an officer of Parliament, and the ethics commissioner, as recommended in this proposed legislation, would be an officer of Parliament.

Senator Stratton: The provincial government of British Columbia has a Conflict of Interest Commissioner, and an all-party legislative committee selects the name. The name is then given to the premier, who must take it to the legislative assembly and obtain a two-thirds vote. Would you not think that that is a more appropriate way to select an ethics commissioner than the way that is currently recommended?

Senator Carstairs: The most important aspect is to ensure that there are protections for this ethics commissioner as it relates to the longevity of his or her service and his or her independence from the political process. All of us would agree that the position of the Auditor General has served us well and very effectively. I do not think there is any question that the Auditor General, through several Auditor Generals in my lifetime, has been above reproach.

I do not believe that it is necessarily the process that is of primary concern, I think it is the assurance that this person will have the independence that is necessary to make those kinds of ethical decisions. However, the British Columbia model is an interesting one and certainly worthy of your study and investigation, as are the models used in other provinces.

Senator Kroft: Thank you, Senator Carstairs, for getting us off on a clear start. My preoccupation, and that of many honourable senators, is to proceed, however we will and with whatever rules we will, with perhaps one overarching principle, and that is that whatever we do, we do it by bringing whatever governs these issues for the Senate into the context of the Rules of the Senate in order that the Senate alone will determine what its conduct will be.

That principle seems to be partially emerging. I admit that we have the government proposal, but we also have an interim report of the Commons committee, and they do not necessarily agree on some points. Nowhere do I see concern expressed about or any reference to section 121 of the Criminal Code, which, through judicial decisions, although certainly not the original intent, has had the result of effectively designating parliamentarians as officials or functionaries and thereby bringing parliamentarians in under the provisions of the Criminal Code.

I would urge this committee to start out on the basis that, if we do nothing else, let us get ourselves in the position where whatever rules we are governed by are rules of our own making and rules that we control and are not susceptible to, if you like, the provisions of the courts. This is a matter of more acute interest all the time. In a way, it is what is at play now, using the analogy with the former Speaker's driver. There are a number of issues as to whether the courts should be the final decision-making body. That may not be an ideal or clear case, but certainly in ethics issues, I feel strongly that, whatever we do here, we should seize the opportunity to bring all issues related to a code of conduct and ethics that may affect us within the scope of our own rules. I see that as being covered in section 14 of the Parliament of Canada Act. As I understand it, it is to be repealed and rules will now come under the contracting provisions.

Would you agree that it would be useful to go through everything we do and, as one of our guidelines, seek to remove ourselves from the operation of law and put ourselves under the operation of the rules? Would you also agree that section 121 of the Criminal Code and clarification thereof in respect of parliamentarians now being part of it is a good place to start?

Senator Carstairs: The government decided that, while it would look carefully at the Parliament of Canada Act, and that is why sections 14 and 15 are being amended, they would stay away from the Criminal Code.

However, it is well within the ambit of this particular committee to examine the implications of section 121 of the Criminal Code and to make recommendations to the government, if that is something the committee thinks needs clarification. Certainly, it has been raised a number of times with respect to section 121 and with respect to how this conflicts or does not conflict with the rules. I think it does conflict with the rules. Therefore, I believe it is worthy of your study.

Senator Kroft: For clarification, would you agree with the more general premise that we should try to bring all matters of government conduct and the ethics issues within the ambit of our rules, and seek to take them out of judicial and court processes where we can?

Senator Carstairs: It is very important to protect the integrity of Parliament and parliamentary privilege. If, after your deliberations, honourable senators see this as a conflict with those privileges, then this should be brought to the attention of the government.

Senator Joyal: Honourable senator, as you are well aware, many of our colleagues in the Senate have spoken on the motion of the government related to the proposal of a code of conduct for parliamentarians. I still have the perception that in the public mind we are confusing two issues. We are confusing the ethics of the ministers of the Crown and the ethics of parliamentarians. In other words, there are two levels of ethical obligations that parliamentarians must meet, depending on whether they act essentially as legislators, as senators and members of the House of Commons must act according to the Constitution. The second level, an additional responsibility, is as Privy Councillors, to give advice to the Crown in the executive duty of the Government of Canada.

My perception is that the problems that were encountered in various governments — and I am not singling out the present government, but previous governments in our history — stem mainly from the exercise of responsibility of minister of the Crown. They have executive powers. They decide about appointments and contracts. They must arbitrate directly between the various competing interests that address the government. Legislators — members of the House of Commons and senators — do not have that executive capacity. This proposal that we are studying in priority addresses essentially the responsibility of parliamentarians as legislators and not as possible ministers of the Crown or Privy Councillors.

Are we not putting the cart before the horse? Should we not concentrate first on the discussion of the additional ethical responsibility or a code of conduct for ministers of the Crown rather than essentially focusing on parliamentarians?

I am not saying that a code of conduct for senators is not essential. We could review this matter. It is timely for the government to raise it. The public might have the impression — and some of us might as well, and I think it was raised in our debate on the motion of the government in the Senate — that we would really be putting all of the emphasis where the problem is not as acute as it is at the cabinet level. How do you address that in terms of establishing the right priority in the right place?

Senator Carstairs: One already exists and the other does not exist. There is already a code of conduct for ministers, as you are well aware. The Prime Minister has tabled that code of conduct for ministers in both Houses of Parliament. What does not exist at this level but what does exist at all of the provincial government levels is a code of conduct for MLAs, MHAs, MNAs, whatever they may be called from place to place. That impacts on the activities of legislators in those particular provinces.

The ethics of ministers is the direct responsibility of the Prime Minister and I believe it should be his direct responsibility. He hires and fires ministers, or tells them he no longer has need of their particular service. Their code is one that should be stricter and is stricter than the one that is being suggested for members of the House of Commons and the Senate.

I do think that it is extremely important for the purposes of accountability and transparency in this nation that members of the House of Commons and the Senate do have a code of conduct that the people of this country can point to and say, ``This is my MP. This is my senator. These are the rules by which that person must respond to me as a taxpayer in this country, clearly identified and clearly defined.''

Senator Joyal: Do you not agree that the major problem and criticism with the code of conduct in relation to the ministers is that the ethics commissioner is responsible to the Prime Minister and not to the House of Commons? It has been voiced from many quarters that the ethics commissioner responsible for the implementation of the code of conduct should be answerable to the House of Commons, even though, as you properly said, the executive privileges are vested with the Prime Minister and he should be the one to decide in the last resort if he still has confidence in one minister or another, depending on the particular circumstances.

The major criticism was centred on the status of the ethics commissioner in relation to the code of conduct of the ministers and not the MPs. The first problem is to recognize that, before we give the impression that there is no code of conduct for parliamentarians. There is a code of conduct for parliamentarians. There are various provisions, as you know, in the rules of the Senate. There are various provisions in the Parliament of Canada Act. There are provisions in the Criminal Code that our colleagues have raised and have invited us to consider. That is welcome.

There are rules that apply to parliamentarians in a much more stringent way than there have ever been to ministers in the past. As you know, the problem was with that code of conduct. It was not published for ministers; it was something that was between the Prime Minister and ministers. Parliament and the public had nothing to do with it. That seems to be the priority problem to address, even though the other could be reviewed. It is timely for Parliament at a certain point to review the ethical obligations of the members of the Senate. That is part of our regular good housekeeping. Should we not address first the very problem that has been the object of criticism and cynicism in public opinion generally, through the various governments that we have known? I am not against focusing on the present government. If we could go through the history of governments in Canada, we will see there have always been problems here and there.

If we want to address the root of that cynicism, should we not concentrate on that first aspect while we do the other? We could do both of them. However, we must understand where the immediate priorities are.

Senator Carstairs: My own priorities are somewhat different from yours. My immediate priority is providing the accountability and transparency for all members who sit in either chamber of this Parliament, whether it be the House of Commons or the Senate.

Remember that ministers are also either members of one chamber or the other, although in our chamber it is generally only one. The fact that the ethics commissioner will now report to Parliament not only on the parliamentary code but also on the ministerial code will go a long way.

The code of conduct for ministers has now been tabled. The public is now aware of what that code entails, that that code sets a higher standard and should always set a higher standard for — for lack of a better word — those who serve as just members of either chamber. All will already address the problems that you have raised.

There is, however, in my view, a much bigger problem. As you know, I have been a member of a provincial legislature, where there was a clearly defined code of conduct. There was disclosure. At the commencement of each session, which happened once a year, within 15 days, I had to disclose my interests and, in the Province of Manitoba, my spousal interests.

I think it is a positive way to say to the public, ``I am here to represent you. I am confident that you should know my assets and liabilities, should they exist. You should know that I am not going to do things which are in my best interest, but perhaps not in the interests of those of you who have elected me to serve.''

Senator Joyal: I personally have no reservations about reviewing the ethical obligations of senators. As I said, it is a process of good housekeeping for a house of Parliament that has a responsibility to legislate to be sure that Canadians can trust the majority of the members. As you know, we might have all kinds of rules, but there is still the possibility that everyone might not respect those rules. There must be a mechanism to ensure the respect of those rules. I think we all agree with that.

My preoccupation is to ensure that when we are devising or reviewing a proposed code, as the government has tabled in this motion, we do recognize the specific characteristics of both Houses of Parliament. I think that the Milliken-Oliver report, as much as it had the right approach in terms of reviewing the rules of both Houses and adapting those rules to include the additional obligations that might be placed on anyone being sworn in as a senator, I think that has to be done in full respect of the separation of both houses to ensure that the Senate maintains its independence from the other place and from the executive government.

The Senate must maintain its capacity to review legislation. The Senate receives legislation from the other place and must exercise an independent scrutiny of it. To maintain that capacity to exercise independent scrutiny, its internal institutions must be under its own control; otherwise, it would be easy for the other house or the executive government to direct the work of the Senate.

I think one of the major recommendations of the Oliver-Milliken report was to keep the rules of both houses separate, in relation to ethics. That is a fundamental difference between the Milliken report and what the proposed motion contains, and I think if we are to come back to the letter and spirit of the Oliver-Milliken report, we must make it very clear in our discussion that the Senate must remain in control of its own rules. When I say remain in control of its own rules, I mean the Senate should not only have its own code and its own committee to review implementation, but it must remain in control of its ethics commissioner, because we are working in a bicameral Parliament.

The situation at the provincial level is different. There is not a single province in Canada that operates with two chambers. As you will remember, the last one was Quebec, which abolished its legislative council in 1968. That was the end of bicameralism at the provincial level.

At the federal level, we operate under the principle of a bicameral system, as do all the federations in the world. We are not unique; in fact, we are in the institutional line with all major democracies in the world. We have to maintain that separation, in my opinion, between the two houses, so we can continue to exercise our constitutional duty.

Senator Carstairs: I do not think there is any question that the government has recognized that there is definitely a need for Senate business to be conducted in the Senate, and House of Commons business to be conducted in the House of Commons.

With respect to the concept of whether each chamber should have its own ethics commissioner, I hope you will look at the fact that there are instances in which we have feet in both houses, so to speak. My own example is obviously one where I would be subject to the broader powers of the ethics commissioner to investigate ministers. If we had one ethics commissioner dealing with public office holders and members of the House of Commons, and another dealing with senators, I would kind of land somewhere in the middle, because I am both.

I also think of the difficulty that might transpire for someone who comes from the other place to our chamber. The ethic violation that is raised may have actually occurred when the individual was in the other place, but now that individual sits in the Senate. Which ethics commissioner will deal with this particular problem?

That is why, although I listened very carefully to a number of senators who indicated the need for a stand-alone ethics commissioner, I am not yet convinced that we need a stand-alone commissioner. I do think we need a stand- alone committee, and I certainly believe that senators should be responsible for senators and that members of the House of Commons should be responsible for members of the House of Commons. As to whether this cannot come under one umbrella, I am of the view that it can. However, that is exactly the question you must study in your deliberations. You will go into it in more detail. You may come to a different conclusion.

Senator Joyal: On that, I would like to draw your attention to your particular status. You are indeed in a very special position, taking into account that you are not only one among equals, as all senators are, but you have an additional responsibility as a Privy Councillor in the present government and you give advice to the government in that capacity.

I must draw your attention to the fact that you are not responsible in the Senate, because we cannot defeat you in the house, as a minister of the Crown. It did happen, once upon a time, that a senator was a member of cabinet or that a senator was a Privy Councillor. In no way, shape or form does the Senate have the capacity to censure that minister on the basis of his or her estimates, if you happen to have the responsibility for a budget. You could just be a minister of the state and have no specific budgetary responsibility; however, if you are a minister with a budget, the Senate cannot veto or censure you.

It remains the privilege of the executive and the ethics commissioner responsible for the ethics rule pertaining to ministers of the Crown to study any complaints in relation to the exercise of your responsibility. Even though the ethics commissioner came to the conclusion that you were in breach of those ministerial ethics rules or cabinet rules, the Senate would not be in a position to censure you on your budget. You would remain the responsibility of the Prime Minister.

I am laughing because I have no doubt that you are a very honest and fully competent person, but it is the principle that is at stake.

The Chairman: I hesitate to interrupt you but it has been pointed out to me that Senator Kinsella, who is next on the list of questioners, has a scroll meeting in 10 minutes. Could you complete your question quickly now, and perhaps we can hear the answer later?

Senator Joyal: I had finished my question.

Senator Kinsella: Minister, when I look at proposed initiatives, whether legislative or policy, I try to understand what is in the mind of the government, that is, what it believes it is fixing with the given initiative. What is it that the government thinks is broken, and could you give some examples?

Senator Carstairs: I do not think the government thinks anything is broken. I think the government is saying, very clearly, that the time has come in the measure of Canadian politics where there must be greater accountability and greater transparency. That accountability and transparency has been enunciated clearly in the provinces of this country but it has not been enunciated clearly within the House of Commons and the Senate.

This is not the first time that parliamentarians have chosen to examine this issue. If one goes back into the history of this, Allan MacEachen certainly raised it as a point of discussion back in 1973. The Stanbury-Blankhearn committee report came forward at the request of parliamentarians that they study whether some kind of accountability or transparency mechanism should be put in place. The Oliver-Milliken report was the same. Should there be some form of accountability and transparency? I think many of them took their lead from what was happening in the provinces and from the reaction of the public in those provinces who were saying, ``This is a good idea. We like the fact that our parliamentarians have this transparency so that we can examine, should we choose.''

I must say that in my province it was rarely examined. It was available at all times for anyone. I once asked my clerk how many times anyone had gone in and pulled my file, and I think it was two or three times in the eight years I sat there. However, anyone could go ahead and do that examination if they chose to do so.

Senator Kinsella: Minister, I think Senator Joyal is on to something. There are examples of abuse of power by ministers over the years in varying governments. Can you give a concrete example where something is not transparent already? I like to deal with concrete examples. I have no difficulty dealing with the theoretical, but let us be practical. Can you give some examples?

I am not asking you to name names, but in a descriptive sense, I would like to understand what we are attempting to fix. Unless we know what we are trying to fix, we may be coming up with, to use a medical model, the wrong cure. What exactly is the problem we are trying fix?

Senator Carstairs: For many senators, it is the question of whether they are conducting their affairs in a fully ethical and honourable fashion. I will give you a very concrete example, because it pertains to me.

When I first came to the Senate, I was asked to attend a major fundraising engagement to raise funds for a research centre at the University of Manitoba. I put together the Prairie Action Foundation, which has been successful in raising $5 million to maintain research on family violence right across the Prairies. I had the help of a great many other people in achieving this. However, some question was raised because this agency we were funding was also receiving some government funding. Was it appropriate for me to be raising money on the part of this group of people? I believed it was totally acceptable for me to raise monies for this organization. However, others questioned whether it was.

I would have liked to have had a system whereby I could have gone to an ethics commissioner and said, ``This is what I am doing. I would like a statement from you, a letter, a document or something, which indicates to me that my behaviour is absolutely acceptable within the rules and the conduct of the Senate.''

Senator Kinsella: The minister is drawing our attention, honourable senators, to section 14 of the Parliament of Canada Act. In the example she gives, I think any common-sense person would say, ``Of course the senator ought to be doing voluntary work.'' Interpretations of section 14 of the Parliament of Canada Act giving any kind of meaning that that would not be totally acceptable I, quite frankly, would find to be foolish interpretations. That problem can be dealt with directly and upfront in a very surgical manner.

Let me say I am intrigued by the issue Senator Joyal raised. I think it is fundamentally important to us. I find transparency in these things to be somewhat metaphysical in terms, but abuse of power I find concrete and hands on. I think that we want to be careful that we do not mix apples and oranges.

Senator Kroft: I want to touch on a few of points raised in Senator Carstairs' presentation. I do not know if I will have another opportunity to deal with this while she is here.

The provinces have many rules. I do not want to draw any inappropriate comparisons, but I think we would all agree that, if you look at the issue of public confidence as it relates to the conduct of several provincial legislatures in the country as compared to the federal legislature, the fact that there is a code in place has not provided citizens of provinces with any greater protection or relief from cynicism or inappropriate action by members of those legislatures. I would think that the culture and the tradition of conduct in this place stands well above that. I am not speaking of every province, but I can all think of a number of examples where, if there are codes in existence, they have not done anything more than what our processes and culture have done.

You raised the issue of disclosure, and that is something that personally troubles me a great deal. I want to deal with to the fundamental question of disclosure and what we mean by disclosure, that is, what is to be disclosed and the purpose of that disclosure.

My experience has been much longer in the corporate world and the world of non-profits than it has been in this place, but the concept of disclosure, as I have understood it, has been to disclose all of those activities or interests which may give rise to questions of disclosure. Typically, in a corporate setting, you list other directorships or other interests. You do those in textual fashion, not an accounting fashion. Someone is alerted that you have an interest or some sort of connection somewhere else. I find that totally appropriate, and I have conducted myself in that way since I came here. I took advice. I found out what was appropriate, and I put it on record with counsel, but more importantly, on my CV. Whatever I do is there in terms of what interests people own, what directorships they have, what connections they have with profits, non-profits or anything else. It is all on the record.

What it really comes down to in those matters is the convenience of putting this information all in one place. It would take someone about an hour or two at a computer, perhaps with the help of a law office, to compile a complete picture of everyone's interests. We are not dealing with secret information here.

What bothers me is when we get to disclosure. You talked about assets and liabilities, and the whole concept about quantitative disclosure of assets and liabilities. It absolutely defeats me to know the purpose of that information. I can understand if there is an allegation. If there is a problem, a committee of the Senate might require an investigation that, in a specific case, would require questions.

However, what is gained by having a person put down all of his or her assets and liabilities, other than adding to the voyeuristic entertainment of members of the media? We all know you can forget things in this world.

What is the purpose? Do you draw a conclusion if someone has many liabilities and fewer assets? Do you draw a conclusion that someone is a higher risk because he or she is more vulnerable? Is an implication drawn if someone has many more assets than liabilities — that they have some way of being immune to their responsibility, or that there must be something suspicious about them because they have so much?

I have thought about this a great deal. I have looked at it in practice. I have gathered all this information, not in the light of an individual case where there has been an allegation, but from the perspective of considering what you would do with it. What does it tell you? What do you know about that person that you would not know by saying he or she is a director of this or that company, or this or that non-profit organization? I have no problem with knowing that. What will all the numbers add? Who will be judged? How does that particular kind of transparency, which I would consider, as I say, nothing less than voyeuristic, lead to a greater understanding or confidence on the part of the Canadian people?

Senator Carstairs: The quantities would have to be significant to lead to a difference in policy. If we are talking about very small share quantities or very small dollar amounts, the knowledge can be nothing but voyeuristic.

Senator Kroft: The request is that you provide all income sources.

Senator Carstairs: I think that there are some circumstances where a public policy issue is being discussed where it may be of value to know if a conflict of interest exists among those parliamentarians making that decision.

I will give a very specific example. You will recall some years ago the government of the province of Manitoba decided to purchase Inter-City Gas. You also know that my husband was the vice-president and corporate solicitor of Inter-City Gas at that time. It was a very interesting situation. Clearly, I was not going to participate in a debate on the floor of the Manitoba legislature with respect to this particular company, and so declared my conflict of interest.

Interestingly enough, the question then even became whether I should be allowed to participate in Question Period, because most of the questions on any given day were about this particular transaction; and whether I should be allowed to remain in the chamber while those questions were being asked. The decision was ultimately made that I could remain in the chamber, but obviously I could not participate by asking any questions, which of course I did not intend to do.

Senator Kroft: To interrupt, because I think you have specifically not answered my question, I would have no difficulty, if there is spousal inclusion, of having it known that your husband was an official of Inter-City Gas or, indeed, if you had been a director, but not if the question involved your husband's salary from Inter-City Gas or your director's fee from Inter-City Gas. My concern relates to the accounting-based calculations. As presented, there would be disclosure of all income that may come this year, and that may be expected to come next year. My concern relates to all these numbers.

I have no difficulty with the fact of the relationship you describe. I believe that; I have done that; and that is how I have conducted myself. However, I do not think that the public would have been served one bit by knowing what you just described, if there were spousal inclusion. In the case of a senator or a parliamentarian, what would have been added to the public's knowledge and what fairness would there have been to the parties involved to say, ``He is a director or officer of that company, fine, but, by the way, his salary last year was `X' and there was a bonus.'' What would that add to the public's knowledge and to transparency?

The Chairman: Senator Kroft, before you go on too long, I just want to draw your attention to the proposed code on page 9, sections 24 and 25, where it reads that the ethics commissioner must prepare a disclosure summary based on the statement. Each summary will be on file. The summary is subject to the source and nature but not the value of incomes, assets and liabilities.

Senator Kroft: I draw your attention to page 8, section 22. You are talking about the public statement.

The Chairman: Yes.

Senator Kroft: However, in the proposed section 22, it must include income received, and entitled to receive, and all benefits.

The Chairman: It also reads that:

An interest in a partnership or corporation may be qualified in the summary by the word ``nominal'', ``significant'' or ``controlling'' if, in the opinion of the Ethics Commissioner, it is in the public interest to do so.

Senator Kroft: We are working in two different sections, Madam Chair. I am talking about the filings. I am going to the very principle of the provision of the information.

The Chairman: You are also acting on the assumption that it will become public.

Senator Kroft: Absolutely. I am also acting on the principle of what relevance it has, even in the mind of the commissioner. Why should the commissioner have in his or her mind these quantitative issues in making judgments qua commissioner at any given point? It is not just a question of it becoming public. I think it is inappropriate and irrelevant. I think I have made my point.

The Chairman: We are not really getting into discussion at this point, but asking questions of the witness.

Senator Stratton: I would like to go back to Senator Kinsella's question and deal with some grey areas. This is where I have difficulty. You stated that you had served as chair of a voluntary organization and there was a question of ethics as to whether you should participate because government funding was involved. I had a similar experience, although it was with business, a start-up research pharmaceutical company that wanted me to serve in a voluntary position on their board. I immediately checked whether it would be in order for me to sit on that board. The question was asked: Will they now or in the future obtain funds from the federal government? I said, ``Yes, the potential is there to do so.'' The response that came back to me was, ``No, you should not sit on that board.''

Here is another grey area. I was in a voluntary position with a community group, and was asked to sit on a board of a start-up company. I would receive no remuneration whatsoever, but I was advised not to do that. That is the kind of grey area that we need to try to define for all of us, and for the public as well.

Would you not think it appropriate, if we do nothing else, to define what the rules are now? We should be able to inform the public what the rules are and where we stand now so that we are all starting from the same premise. Around this table, in the eye of the Senate and in the public's eye, here is where we are now. What value are we adding by going further?

Senator Carstairs: There are these grey areas, and people are being given conflicting advice. Some people are going along with that advice, and others are not because there is not a clearly defined process by which that advice is given. The person that we often all turn to is the law clerk. He gives us his very best judgment, but he does not have the power and authority that an ethics commissioner would have. That is exactly why we do need an ethics commissioner: so that we can have a individual that can give us a clearer picture of what is acceptable and why it is acceptable; or why it is unacceptable.

As to the definition of the rules, I would recommend, honourable senators, that you look at the interim report of the House of Commons because they have done just what you have suggested, Senator Stratton. They have looked at what exists now in the documentation. Clearly, a similar document produced by this committee would be appropriate.

Senator Smith: I would refer to the response of Senator Carstairs to Senator Kroft's reference to this Inter-City Gas situation. What was the mechanism by which this decision was made? Was this a speaker's ruling? Was there a problem in the Manitoba legislature that was not adequately resolvable?

Senator Carstairs: It was adequately resolved by my being quiet. I went to the clerk who was responsible for all of our disclosure information in the Province of Manitoba. I do not believe that has changed. They did not have an ethics commissioner, per se. The clerk was the one who raised both issues that yes, I was absolutely right to immediately declare a conflict, which I had planned to do in any event. He also raised the issue of Question Period. My understanding is that he went to the leadership on both sides and asked what they thought. They indicated that they thought it was an overreaction that I could not participate in question period at that particular point.

Senator Murray: The minister may comment, or not, on what I have to say. I am inspired by Senator Kroft's intervention and by Senator Kinsella's question as to what we are trying to fix. There is disclosure and disclosure. I tend to be something of a privacy crank. I believe that members of the Senate and House of Commons have as much privacy as anyone else, and that it ought to be protected. However, there is proper and timely disclosure. What are we trying to fix? We should not be too defensive about our virtue.

Spare a thought for the people of Canada. What was a citizen to think when he or she picked up a newspaper last week to see an article quoting Duff Conacher of Democracy Watch, stating that members of the Standing Senate Committee on Banking, Trade and Commerce are ``too close'' to the banks and financial institutions that the federal government regulates? The article I saw did not specify any particular senators; however, it went on to say that, in a previous regime when Senator Kirby had been the chairman of that committee, he had persuaded the members of that committee to voluntarily disclose their interests in chartered banks, federally-regulated financial institutions and the like. The article made the point that this had not been done in the case of the present committee. Why was it not done? It was not done because it is not required to be done, which leads me to my conclusion that we do need a regime. We do need a set of rules that set out the disclosure and that set out what disclosure ought to be made, under what circumstances and to what extent by senators, whether sitting as senators or as Senate committee members. That is one of the things we need here.

Senator Joyal has persuaded me of the need for a separate and autonomous Senate regime on these matters. Senator Sparrow has taken a principled position on this matter. At the same time, it is not a matter of perception, but rather a matter of fact, that we do not, as Senator Carstairs pointed out, have a coherent body of law covering this. We need something more than we have now.

Senator Carstairs: I agree.

Senator Smith: This may be an odd question, but I preface it with the remark that I am sympathetic to the objectives here. I am curious about cost efficiency and what these people can do. Will they require a big staff? The nicest thing would be if everyone were as pure as the driven snow, and the staff were required to do nothing other than sit behind desks for 10 years.

While I agree with the theory that the Senate should have a separate regime from the House, would it not be worse to have two people sitting doing nothing for many years because we are all so pure? Sometimes, when bureaucrats take a position, there is a tendency to justify their raison d'être and do things. Do we have examples of the mechanics of how this can be kept cost-efficient and done in a way so that we do not have a host of people sitting around doing nothing?

Senator Carstairs: That is an interesting question. What we have not talked about are the 3,000 public office holders who would also be covered by this legislation. If you are talking about people sitting around not doing anything, that provides the answer to your question. There are approximately 3,000 public office holders. Yes, there may be only 301 members of the House of Commons and only 105 in the Senate, but we are talking about 3,406 people or more when we speak about the regime. The question to me is whether it is cost-effective to have a separate regime for the Senate and the cost implications involved in that. Would it not make sense to have this as part of this larger group, with an individual or individuals being directly responsible, on occasion, to the Senate committee? That is obviously an issue that will require a certain amount of deliberation.

If one looks at provincial examples, one will see that they do not have large staffs. They are there for the purposes of the chamber. Some of them have, for example, a retired member of the judiciary as their ethics commissioner. That person is on call to deal with a situation when an ethical issue arises. The clerk from the Province of Manitoba deals with these matters; it is part of his or her function in that province. It behoves honourable senators to look at these regimes before coming to a conclusion as to what would be the most effective way to operate this office.

Senator Kroft: If I may make a comment in regard to the Standing Senate Committee on Banking, Trade and Commerce, the report is accurate. I sat on the committee that was mentioned. When the then-chair and the committee were reviewing the Mackay report, we all filed. In my case and others, it may have been redundant with what we had already filed, but we made it clear that the disclosure was for the public record in that case.

We now have in the rules that were drawn around that time — and I am not sure if they were drawn permissively or in a mandatory fashion — that a chair may call on the committee. In other words, the issue is addressed in the rules. I am not sure of the language.

The Chairman: I believe it is permissive.

Senator Kroft: Equally, just so that we do not sit here feeling perfect and pure, we have rules that deal with senators sitting on committees and voting on matters where they have an interest. It is true that the definition of what an interest is may be unclear, but in terms of direct issues, we do have work to do in terms of our present body of rules.

Senator Carstairs: It is clear that is in the rules. It is rule 94, if I am not mistaken, but it is permissive. It is not something that is absolutely required.

Senator Joyal: I will quote the rule, because it is important to have the exact wording. It states:

94(1) A Senator who has any pecuniary interest whatsoever, not held in common with the rest of the Canadian subjects of the Crown, in the matter referred to any select committee, shall not sit on such committee and any question arising in the committee relating to that pecuniary interest may be determined by the committee, subject to an appeal to the Senate.


The wording is clear:

A Senator who has any pecuniary interest whatsoever, not held in common with the rest of the Canadian subjects of the Crown, in the matter referred to any select committee, shall not sit [...]


It is an order: ``shall not.'' If there is a problem, the committee decides. If the honourable senator in question is not happy, there can be an appeal to the Senate. There is a strict procedure. When you read rules 94 (1) to (10), there is full coverage regarding a senator declaring an interest.

I must also mention that no similar rule exists in the House of Commons. As the Leader of the Government in the Senate has said, in the working document that the House of Commons released recently, they compared the rules of both houses, and it is clear that the Senate has a complete rule in that regard and that the House has nothing.

Rule 94 must be read with rule 65(4), which states:

A Senator is not entitled to vote on any question in which the Senator has pecuniary interest not available to the general public. The vote of any Senator so interested shall be disallowed.

It is clear. That is rule 65(4), and this rule is more stringent than the comparable rule in the House of Commons. We must highlight that. It is important not to create the impression, because we are on television, that there is no present rule and it is just for a senator to say something or not. We have the texts of the rules. It is important that we have all of those rules before us when we discuss them.

Senator Kroft: As a point of information, do we not have, as part of the actual reference to this committee, an amendment that calls for a compilation of all existing rules?

The Chairman: I was just about to point that out. We do have that. I will ask the staff to ensure that, before our first meeting next week, all senators have all the rules that apply to the actions of senators before them, whether it be the Criminal Code, the Parliament of Canada Act or our own rules. We should all have those in front of us so we are aware of our starting point.

Senator Murray: We should want to bring this information together not simply for the guidance of honourable senators but for the guidance of those in the private sector who may be associated with senators. I believe that there are many people and companies in the private sector who are not as knowledgeable as we might suppose, nor as sensitive as we might suppose, to the limitations that are on senators with whom they may be associated in a private capacity. I will not elaborate on that; I do not believe I must. However, the transparency is important for the guidance of the private sector as well as ourselves.

The Chairman: Returning to Senator Kroft's original point about courts and whether or not they should have jurisdiction, it has been pointed out by several people that the courts already do have jurisdiction because of the ruling under section 121 in the Criminal Code where they have defined parliamentarians as functionaires.

Are the courts then not limited to judicial review and not to appeal? Do you see any way in which a court could assume jurisdiction over parliamentarians? Has it ever happened?

Senator Carstairs: We must differentiate between this particular package and what is going on at the present moment. There is an appeal being launched by a committee in the other place with respect to a judgment that was made by the Human Rights Commission. That is being made on the basis of privileges of Parliament.

The question that we must put to ourselves on this particular package is: Has this been constructed in a sufficiently clear manner as to avoid judicial interference? I do not have it in front of me, but I believe clause 72 of the proposed draft bill makes a specific reference to parliamentary privilege.

I know that in the drafting of this proposed legislation, the consideration that I and many others had who were listening carefully as we canvassed the issue was that this was of fundamental concern. That is why the ultimate decision as to the penalty or whatever of a parliamentarian had to, we believe, rest with the individual chamber. It could not remain with the ethics commissioner. If it remained with the ethics commissioner, then was there an ability for the courts, in an administrative review of their function, to be able to go further than we would want them to go.

Obviously that is something honourable senators will have to examine carefully. The privileges of Parliament, the Senate and the House of Commons combined, are extremely important if parliamentarians are to conduct their jobs in the most effective manner and on behalf of the people of this country.

I know that the government worked to try to make it right. However, again, if suggestions are made, I know the government will seriously consider them because of the fact that they were hoping that they had avoided this in the draft that they had presented to you.

The Chairman: Going a little further on my own hook, I believe that ministers should be subject to stricter rules than members of Parliament. However, ultimately, members of Parliament will make up their own rules for themselves, and ultimately they are responsible to the electorate. The electorate can throw them out. The electorate cannot throw senators out of office. Do you think that senators should perhaps be held to a stricter rule than members of Parliament?

Senator Carstairs: In that respect, I will give a personal rather than ministerial response. Yes, I do believe that we should be subjected to the highest of possible standards — not perhaps to the ministerial level, but to a very high standard — for the very reason that you have given. There are very limited constitutional reasons why a senator can be forced to leave this place. Therefore, it behoves us to have that high standard. That is very much a personal opinion.

Senator Murray: Is it necessary that the standard be higher? Are we not trying to have a process of reporting or sanctions that will be tougher because we do not have to face the electorate, an internal system of sanctions? It is not that we will have higher standards; we assume that both the Senate and the House of Commons will have equally high standards, but it is a question of sanctions, that is, what we will do when those standards are violated.

Senator Carstairs: I believe ``standards'' is the wrong word and ``sanctions'' is the right word. There is no exterior sanction that can be applied.

Senator Kroft: This is an interesting question. We must not lose sight of the fact that responsibility must also be looked at in terms of proportionality of power. Many of the abuses of power or wrongful action issues applied to ministers are because of the knowledge and powers they have to contract all sorts of things. Our threshold must be appropriate to the powers that we are given. Certainly, the process is critically important. Again, I should like to have that process imposed clearly and internally.

I should like to leave you with a specific question: Is there a reason, in what the government has proposed, that clarification of what I would kindly say is a suspect judicial interpretation arising out of section 121 of the Criminal Code, has not been given? Why has there not been an amendment to remove parliamentarians generally from the definition of ``fonctionaire,'' in the Criminal Code? It seems that it would not be easy to bring in a bill with a Criminal Code amendment for that purpose, but in the context of looking at this entire question and balancing the issues, it seems an appropriate time to examine that subject. It escapes me why the government has not taken that opportunity at this time.

Senator Carstairs: As I indicated earlier, that is a recommendation you can bring forward. I believe they decided to open up the Parliament of Canada Act and introduce some new clauses that had never existed before. They decided not to go further to open up the Criminal Code.

Again, this committee really does have carte blanche in the sense that it can examine all of these issues and come forward with whatever recommendations it wants. We are talking about a draft bill. We are talking about a draft code. The government is open to hearing from you and to what I know will be very valuable suggestions.

Senator Joyal: I should like to add a comment to the question from our chairman to the Leader of the Government in the Senate with regard to the responsibility that pertains to senators who are appointed and not elected.

Rules 65(4) and 95 impose a burden of behaviour on honourable senators that does not exist in the other place. The question we may ask ourselves is: Are we collectively implementing that rule effectively? However, I would not like to create the impression that this is a free-for-all and that we should jump around the way we want. It must be clearly stated that there are rules. We may wish to assess whether we are implementing those rules.

There are rules in relation to attendance. Those rules are very important. We have a system of attendance record that is more stringent than the other place. We may wish to review that system. That may be an element of ethics that is much more important than anything else.

The ethical package of a profession must allow you to be available to perform your job. Only in special circumstances is one able to claim that one is not available to do one's job. That is part of ethics. That is something we may wish to review in relation to the way honourable senators have obligations in that regard.

The second point is in relation to the Criminal Code, sections 119 to 121. As the minister will be aware, the Blenkarn-Stanbury committee recommended in its report that the Criminal Code be amended. That is clearly stated in its report to the committee. The Law Commission of Canada recommended that in its thirty-first report. That is a very important element in relation to what the honourable minister has said in regard to what you can or cannot do in terms of raising money, participation with voluntary organizations or on boards of directors for non-profit organizations. It is related to that.

It is clear that, if we wish to raise the mist in terms of what senators can or cannot do, a review of those Criminal Code section is part of that. Otherwise, we will leave an element of uncertainty. That is my point. I welcome your openness and suggestion that we may wish to include that in our report.

My third point is in relation to the status of the ethics commissioner provided in clause 72(1) of the proposed draft bill. The other place functions on the basis of elections. The term of office of the ethics commissioner will be based on the electoral cycle of five years, on the basis, as you properly said, that the Prime Minister is responsible for his government and he or she should fall according to the confidence that he or she maintains in the other place.

Our institution does not work on electoral cycles. Our institution is the stable element in a bicameral Parliament. It is renewed in the sense that Senators constantly leave. This year, two senators will retire, having attained the age of 75. Next year, 11 senators will retire. We are in a permanent process of continuity of renewal. While in the other place, an election might see two-thirds of the elected members change.

In regard to ethics, the Senate is in a different position. That is why I support the idea that our own ethics commissioner should be answerable to the Senate and be bound by the same constitutional principles that apply as to the way our institution operates. That does not mean that we must have an ethics commission or someone acting as an ethics commissioner, but that function should fall within the purview of our role as an institution. Otherwise, each five years there will be a new person in place starting to review everything again because the person enters his or her job and wants to be stringent in his or her performance. Everyone is then back in the system.

Our institution provides an element of continuity. Officers of Parliament do not change with each government. The Auditor General does not change with each government. The Auditor General changes, but has the longest term possible as a mandate to maintain stability of control.

We should have that element of control of our own affairs and not be subject to someone else's control. This is part of the rights of the opposition to trust the person. There will be a change of government, a change of ethics commissioner and we will start again. That would politicize that position in relation to the Senate and we do not want that.

Senator Carstairs: Senator Joyal, that is exactly the reason for the ethics commissioner being appointed on the same basis as the Auditor General, to get that continuity, that it does not occur with one Parliament and is lost with another Parliament, that it remains in that continuous session.

I agree that sections 119 to 121 are issues that have been raised before. Interestingly enough, they were not raised in the Oliver-Milliken report. Since Oliver-Milliken formed the basis of this proposal, I suspect that is why it has not seen its way into this document.

Finally, there are rules in the Senate that are tougher than rules in the House of Commons. However, there are also rules in the House of Commons that are tougher than rules in the Senate. For example, I acknowledge that they have a necessity to report any travel that they take. We do not have that responsibility at this time. That is why I would hope that, as we evolve, we will have our own regime, but I would hope that our regime would be as close to the regime in the other place as it would be possible, given the nature of the differences between the two institutions.

Senator Joyal: On a point of order, with greatest respect, the Oliver-Milliken report recommended a review of the Criminal Code. I would draw your attention to paragraph 4(c) of the recommendations which reads:

The Government should review the recommendation of the 1992 Special Committee on Conflict of Interest regarding amendments to the Criminal Code regarding the offences of bribery, influence-peddling and breach of trust to clarify the meaning of the word ``official'' in relation to Parliamentarians.

Senator Carstairs: My mistake, I knew that subject was addressed in the Stanbury-Blenkarn report.

The Chairman: Thank you, Senator Carstairs. We appreciate you coming this morning.

I remind committee members that our meeting is not yet completed. We will be continuing in camera to deal with the future business of the committee.

The committee continued in camera.