REPORT OF THE COMMITTEE

THURSDAY, April 10, 2003

GOVERNMENT ETHICS INITIATIVE

Interim Report of the Standing Committee on
Rules, Procedures and the Rights of Parliament

Chair: The Honourable Lorna Milne
Deputy Chair: The Honourable Raynell Andreychuk

EIGHTH REPORT

April 2003

The Standing Committee on Rules, Procedures and the Rights of Parliament has the honour to table its

EIGHTH REPORT

1. On February 4, 2003, the Senate adopted the following Order of Reference:

That the documents entitled: “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, be referred to the Standing Committee on Rules, Procedures and the Rights of Parliament;

That the Committee, in conjunction with this review, also take into consideration at the same time the code of conduct in use in the United Kingdom Parliament at Westminster, and consider rules that might embody standards appropriate for appointed members of a House of Parliament who can only be removed for cause;

That the Committee, in conjunction with the review, also take into consideration the present Rules of the Senate, the Parliament of Canada Act, the Criminal Code of Canada, the Canadian Constitution, and the Common Law to determine after a full compilation and review of these provisions whether they do of themselves adequately serve to assure high ethical standards in the actions of Senators in performing their duties, and

That the Committee make recommendations, if required, for the adoption and implementation of a code of conduct for Senators, and concerning such resources as may be needed to administer it, including consequential changes to statute law that may be appropriate.

2. Pursuant to this Order of Reference, your Committee has considered this issue in great detail over the past two months. While considerable work remains to be done, the members of your Committee believe that it would be useful for our colleagues in the Senate and others to have an idea of our current thinking on the issues raised by the documents. We emphasize that this is an interim report and that our ideas may evolve further as we continue our examination of the issues.

3. We begin by highlighting the key areas of agreement at this point in our study:

(a) The Committee has been guided by two fundamental principles:

o The public should have confidence that Parliamentarians conduct themselves with a high standard of ethical behaviour; and

o The Senate, the House of Commons, and the Executive are separate entities.

(b) Each of the Senate, the House of Commons and the Executive should have its own ethics officer.

(c) The duties and functions of the Senate ethics officer shall be defined in the Rules of the Senate, and shall be carried out within the constitutional powers, duties, rights, and obligations of the Senate.

(d) A Senate ethics officer shall be appointed after agreement of the leadership of the recognized parties in the Senate, followed by a confirming vote in the Senate.

(e) A Senate ethics officer shall serve for a term of seven years.

(f) A Senate ethics officer shall have legal experience.

(g) The Rules of Conduct, including those currently in place, shall be incorporated into the Rules of the Senate following a detailed study.

(h) The Senate ethics officer may advise Senators on their obligations and rights under the Rules of Conduct.

(i) The Senate ethics officer shall report and make recommendations to the Senate, or a committee thereof, as set out in the Rules of the Senate, but any final decision shall rest with the Senate.

(j) For greater certainty, the Committee intends to give further consideration to the relevance of the Privacy Act, the Access to Information Act, and the Federal Court Act to the activities of the Senate ethics officer under the Rules of the Senate.

4. Although there are a significant number of areas of agreement, Committee members have not yet reached a consensus on all issues. We believe that this diversity of views is healthy, and is to be expected when discussing issues that go to the heart of the constitutional role of the Senate, the internal governance of a parliamentary institution, and the performance of their offices by individual Senators.

5. Some Senators have pointed to the provisions governing conflict of interest and conduct that exist currently, and have questioned the need for any further rules and, by implication, the need for an ethics officer to administer them. They believe that there is no need to devise other rules and put in place an ethics officer to deal with a non-existent problem. Other Senators have suggested that a register of interests as in the British House of Lords would be sufficient.

6. Your Committee notes that some commentators have stated that Senators have no rules governing conflict of interest. That is simply not the case. The Parliament of Canada Act and other statutes contain numerous provisions that govern our conduct, as do the Rules of the Senate. For reference, we have included these provisions as an Appendix to this report.

7. While your Committee has carefully considered the arguments for the status quo, the consensus of the Committee is that there would be merit in having revised and expanded Rules of Conduct that would be contained in the Rules of the Senate and an ethics officer for Senators. Recognizing that the Senate currently has rules regarding conduct, your Committee nevertheless has concluded that a new approach could prove to be beneficial to individual Senators and the Senate as a whole. The current rules regarding conduct should be consolidated, modernized, clarified, and expanded.

8. The creation of the position of an ethics officer for the Senate is seen as positive. While we are not unanimous in our approach to the status of the ethics officer, there is consensus on the desirability of the office in principle. Any ethics officer should have legal expertise, be appointed by and for the Senate, and carry out the duties and functions set out in the Rules of the Senate. In addition, the opportunity to discuss matters confidentially would be an invaluable resource, and one that would not be available with a register of interests alone.

9. In reaching this conclusion, we are in no way minimizing the role that our Law Clerk and Parliamentary Counsel has played in guiding us though the rocky shoals of the requirements of the Parliament of Canada Act. His role, however, is a strictly legal one. Senators who have wished to explore more general issues of conduct have also had occasion to turn for advice to the current Ethics Counsellor who, while he has no mandate to advise Senators, has nevertheless been helpful.

We believe that a Senate ethics officer could fill both roles in addition to any other duties. We were encouraged that in his testimony before your Committee, the Law Clerk and Parliamentary Counsel supported this view, and referred to the possibility of an ethics officer bringing added value to the Senate’s current practices.

10. A number of your Committee’s witnesses emphasized the importance of the advisory and preventative roles of an ethics officer. If the groundwork is well laid, evidence from other jurisdictions suggests that complaints of contravention of the Rules of Conduct should be few and far between. We have, therefore, concluded that creating the new position of ethics officer would be preferable both to the existing arrangements and to appointing an ethics officer whose sole task in this context would be to maintain a register of interests.

11. With respect to the creation of the position of ethics officer, two basic models present themselves: an in-house, non-statutory model as in the British House of Commons, and the statutory model proposed in the Government’s draft bill. There are arguments for each view. The Committee wishes to stress that proponents of each model believe that the ethics officer must be independent and impartial, and be recognized as such.

12. Some Senators on your Committee believe that the non-statutory model, by which the office of the ethics officer would be created by means of a resolution of the Senate, is the best way of achieving this objective. Their position is grounded in parliamentary privilege and the separation of powers under the Constitution. They emphasize the importance of understanding that the establishment of Rules of Conduct, the appointment of an ethics officer, and everything that flows from those actions arises from the right of the Senate to govern its internal affairs. On this, in fact, all Senators on the Committee agree on the importance of the constitutional separation of powers between the judiciary and legislative branch. Those who support the non-statutory model believe that using a statute would create a significant risk of judicial intervention in the ethics officer’s actions, which would directly conflict with the constitutional independence of the Senate and the rights and obligations of Senators. It should be noted that the recommendation of the Oliver-Milliken Committee was to establish a code of conduct regime entirely within the Rules of the Senate and the Standing Orders of the House of Commons.

13. Senators holding this view are aware that there is Canadian case law that upholds the actions of a statutory officer on the basis of legislative privilege, and, therefore, such actions are not reviewable by the courts. They note, however, that the number of decisions is few, and no case involving the status of a Commissioner has gone to the Supreme Court of Canada. In the most recent decision to discuss these issues, the court interpreted the statute in question and intervened to suggest to a legislature how it should deal with the terms of employment of its Commissioner. Some members of your Committee find this result very troubling, and note that expert testimony before your Committee also confirmed the risk of judicial intervention. Those Senators who believe that the position of a Senate ethics officer should be non-statutory wish to take all possible steps to ensure that the separation of powers between the legislative houses and the judiciary is respected by the courts. A non-statutory ethics officer also asserts the independence of the Senate from the Executive.

14. On the other hand, some Senators on your Committee believe that the establishment of the position of ethics officer in a statute would be the best way to have an officer who will be recognized both within and outside the Senate as an independent person with the necessary stature and mandate to serve all Senators impartially and without fear or favour. Those holding this view note that most Canadian provinces and territories have proceeded by way of legislation, and know of no significant dissatisfaction or difficulties associated with this choice.

They point to the fact that the independent position of those provincial Commissioners is acknowledged and respected, as are their guidance and rulings.

15. Senators supporting a statutory basis for the ethics officer take comfort from the Canadian case law to date that has dealt with the status and activities of provincial or territorial conflict of interest Commissioners. In two cases (involving three decisions), the courts have held that the actions of a Commissioner taken on behalf of the legislature are protected by privilege, and, therefore, are not reviewable by the courts, even though both the position and rules of conduct were established in a statute. One of those decisions was from a provincial Court of Appeal. The Senators supporting a statutory approach feel confident that, on the reasoning of the existing cases, and in view of the importance the Supreme Court of Canada has placed on parliamentary privilege, using a statute to create the position of ethics officer is a reasonable course of action to take.

16. Senators supporting a statutory basis for the office of ethics officer have concluded that the benefits of using a statute outweigh its risks. Moreover, they note that the rest of the proposed regime, including the actual Rules of Conduct, would be made by the Senate, by resolution.

17. In any event, although members of your Committee have some differences as to how the position of the ethics officer should be established, there is consensus about one thing – there must be an ethics officer for the Senate and for the Senate alone. There are numerous reasons for this. It is often overlooked, and so bears repeating, that although both are legislative bodies, the Senate and the House of Commons are separate and distinct institutions. To take only a few examples of these differences: each House manages its own internal affairs free from interference; Members of the House of Commons and Senators have different, separate representational and constitutional duties; we come to Parliament by different routes; and the Senate’s relationship to the executive branch of government is different from that of the House of Commons. Moreover, although the election cycle of the House of Commons does affect our work, the continuity of the Senate’s membership is not similarly affected. The Senate’s timeframe, therefore, is necessarily different from that of the House of Commons.

18. For each chamber of a bicameral legislature to proceed along a separate track is not revolutionary. The British House of Commons and the House of Lords has each developed a distinctive approach to the regulation of conduct. Similarly, it should be noted that all of the provinces in Canada are unicameral, and, therefore, their models are not directly applicable to the federal Parliament.

19. Your Committee understands that the Government intends to establish an ethics commissioner by statute. We acknowledge the right of the Executive and the House of Commons to establish their own ethics regimes and commissioners in whatever manner they choose. If after due consideration of the implications of a statutory approach, the House of Commons opts for this route, that is its choice.

20. Those members of your Committee who believe that the position of ethics officer for the Senate should be non-statutory believe that all references to the Senate should be removed from the draft bill.

If, on the other hand, the position of ethics officer for the Senate is to be established in statute, with the Rules of Conduct and other matters to be established by resolution of the Senate, a number of changes will still be required to the draft bill:

First, as indicated above, there is a consensus in the Committee that the Senate must have an ethics officer who will be occupied solely with the affairs of Senators. The draft bill needs to be changed to reflect this.
Second, it is unacceptable for the Governor in Council to appoint the ethics officer in the manner proposed by the draft bill. There must be agreement of the leaders of the recognized parties in the Senate, followed by a confirming resolution of the Senate itself. Only in this manner can the incoming ethics officer be assured that he or she has Senators’ respect and support.
Third, the proposed five-year term for the ethics officer is inappropriate, as it does not respect the fact that membership in the Senate is not tied to the electoral cycle. Moreover, a term that is relatively short does not sufficiently value the expertise that the ethics officer will build up over that period. We, therefore, recommend that the term of the ethics officer should be seven years.
Fourth, although those who favour a statutory basis for the ethics officer are not convinced that such a choice risks eroding the privileges, rights and immunities of the Senate, they nevertheless recognize the need for caution if there is a bill. That bill, therefore, should contain clear wording to the effect that the ethics officer for the Senate is an Officer of the Senate, and carries on the work assigned to him or her as part of the proceedings of the Senate pursuant to its Rules.

21. In closing, the Senators on your Committee wish to emphasize that they firmly believe that all members of the Senate are motivated by the highest standards of public service and conduct. While a multitude of provisions currently exist to assure these high standards in the actions of Senators in performing their duties, improvements would have the merit of ensuring public confidence in the integrity of Parliament and Parliamentarians. Moreover, it would provide a valuable source of advice and counsel for Senators.

22. In considering how the system should be structured, we have been mindful of the separate constitutional role and functions of the Senate and Senators, and the fundamental importance of Canadian democratic institutions and our parliamentary system of government. These are our primary concerns, now and for the future. Transparency is important if the Senate is to preserve its credibility and independence. Also fundamental is the independence of each House of Parliament – the Senate and the House of Commons – and the further distinction between the legislative and the executive branches of government.

Therefore, it is essential that Rules of Conduct and any ethics officer appointed for the purposes of the Senate be protected under section 18 of the Constitution Act, 1867, and that the ethics officer’s duties and functions be carried out within the constitutional powers, duties, rights, and obligations of the Senate. Final decisions must rest with the full Senate. We believe such a system will best serve the public interest.

Respectfully submitted

LORNA MILNE
Chair

APPENDIX

EXISTING PROVISIONS REGARDING THE CONDUCT OF SENATORS

RULES OF THE SENATE

Pecuniary interest

65(4) 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.

Pecuniary interest

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 a 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.

Sponsoring Senator

94(2) Subject to subsection (1), a Senator on whose motion any bill, petition or other matter is referred to a special committee may, if the Senator so desires, be a member of the committee.

Order to disclose

94(3) Where a select committee considers that it would be in the public interest in respect of its consideration of an order of reference, the committee may order its members to disclose the existence of their private financial interests, whether held directly or indirectly, in respect of the matter.

Limitation

94(4) Subsection (3) does not apply where the order of reference concerns an amendment to the Constitution of Canada or a public bill.

Declaration

94(5) A member may comply with an order made under subsection (3) by signing and filing with the clerk of the committee a declaration or update that discloses the source and nature, but not the value, of the member’s private financial interests in respect of the matter.

Time

94(6) A committee that makes an order under subsection (3) shall also establish time frames for present and future members to file declarations and updates, and members who must file shall do so within the required time.

Deemed declaration

94(7) A member who does not file a declaration or update under subsection (5) within the required time is deemed to declare that the member has no private financial interest and is bound by the deemed declaration until the member files an update.

Deemed compliance

94(8) A member who does not file a declaration under subsection (5) and who has no private financial interest to disclose is deemed to have complied with an order made under subsection (3).

Public disclosure

94(9) The clerk of a committee with whom a declaration or update is filed under subsection (5) shall make it available for public consultation during business hours.

Integrity of proceedings

94(10) The validity of a decision of a committee on a matter is not affected by the fact that a member had a private financial interest, whether or not disclosed in compliance with this rule, unless the Senate or a committee decides otherwise under subsection (1).

PARLIAMENT OF CANADA ACT

Section 14 – Prohibited contractual dealings

(1) No person who is a member of the Senate shall, directly or indirectly, knowingly and wilfully be a party to or be concerned in any contract under which the public money of Canada is to be paid.

Penalty for contravention

(2) Any person who contravenes subsection (1) shall forfeit the sum of two hundred dollars for each day during which the contravention continues.

Recovery of penalty

(3) A sum forfeited by any person under subsection (2) is recoverable from that person by any person who sues for it in any court of competent jurisdiction in Canada.

Exceptions

(4) This section does not render any person liable to forfeiture by reason only that the person

(a) is a shareholder in any corporation having a contract or agreement with the Government of Canada, except any company that undertakes a contract for the building of any public work;

(b) is, or has been, a contractor for the loan of money or of securities for the payment of money to the Government of Canada under the authority of Parliament, after public competition; or

(c) is, or has been, a contractor in respect of the purchase or payment of the public stock or debentures of Canada, on terms common to all persons.

Section 15 – Limitation period

Proceedings for the recovery of any forfeiture imposed by section 14 may be instituted at any time within but not later than one year after the time when the forfeiture was incurred.

Section 16 – Receiving prohibited compensation

(1) No member of the Senate shall receive or agree to receive any compensation, directly or indirectly, for services rendered or to be rendered to any person, either by the member or another person,

(a) in relation to any bill, proceeding, contract, claim, controversy, charge, accusation, arrest or other matter before the Senate or the House of Commons or a committee of either House; or

(b) for the purpose of influencing or attempting to influence any member of either House.

Offence and punishment

(1) Every member of the Senate who contravenes subsection (1) is guilty of an offence and liable to a fine of not less than one thousand dollars and not more than four thousand dollars.

Offering prohibited compensation

(2) Every person who gives, offers or promises to any member of the Senate any compensation for services described in subsection (1), rendered or to be rendered, is guilty of an indictable offence and liable to imprisonment for a term not exceeding one year and to a fine of not less than five hundred dollars and not more than two thousand dollars.

CRIMINAL CODE

Section 118 – Definitions

In this Part,

“evidence” or “statement” means an assertion of fact, opinion, belief or knowledge, whether material or not and whether admissible or not;

“government” means

(a) the Government of Canada,

(b) the government of a province, or

“judicial proceeding” means a proceeding

(a) in or under the authority of a court of justice,

(b) before the Senate or House of Commons or a committee of the Senate or House of Commons, or before a legislative council, legislative assembly or house of assembly or a committee thereof that is authorized by law to administer an oath,

(d) before an arbitrator or umpire, or a person or body of persons authorized by law to make an inquiry and take evidence therein under oath, or

(e) before a tribunal by which a legal right or legal liability may be established, whether or not the proceeding is invalid for want of jurisdiction or for any other reason;

“office” includes

(a) an office or appointment under the government,

(b) a civil or military commission, and

“official” means a person who

(a) holds an office, or

(b) is appointed to discharge a public duty;

“witness” means a person who gives evidence orally under oath or by affidavit in a judicial proceeding, whether or not he is competent to be a witness, and includes a child of tender years who gives evidence but does not give it under oath, because, in the opinion of the person presiding, the child does not understand the nature of an oath.

Section 119 – Bribery of judicial officers, etc.

(1) Every one who

(a) being the holder of a judicial office, or being a member of Parliament or of the legislature of a province, corruptly

(i) accepts or obtains,

(ii) agrees to accept, or

(iii) attempts to obtain,

any money, valuable consideration, office, place or employment for himself or another person in respect of anything done or omitted or to be done or omitted by him in his official capacity, or

(b) gives or offers, corruptly, to a person mentioned in paragraph (a) any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by him in his official capacity for himself or another person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Consent of Attorney General

(2) No proceedings against a person who holds a judicial office shall be instituted under this section without the consent in writing of the Attorney General of Canada.

Section 121 – Frauds on the government

(1) Every one commits an offence who

(a) directly or indirectly

(i) gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or

(ii) being an official, demands, accepts or offers or agrees to accept from any person for himself or another person, a loan, reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with.

(iii) the transaction of business with or any matter of business relating to the government, or

(iv) a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow, whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be;

(b) having dealings of any kind with the government, pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which he deals, or to any member of his family, or to any one for the benefit of the employee or official, with respect to those dealings, unless he has the consent in writing of the head of the branch of government with which he deals, the proof of which lies on him;

(c) being an official or employee of the government, demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind directly or indirectly, by himself or through a member of his family or through any one for his benefit, unless he has the consent in writing of the head of the branch of government that employs him or of which he is an official, the proof of which lies on him;

(d) having or pretending to have influence with the government or with a minister of the government or an official, demands, accepts or offers or agrees to accept for himself or another person a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with

(i) anything mentioned in subparagraph (a)(iii) or (iv), or

(ii) the appointment of any person, including himself, to an office;

(e) gives, offers or agrees to give or offer to a minister of the government or an official a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with

(i) anything mentioned in subparagraph (a)(iii) or (iv), or

(ii) the appointment of any person, including himself, to an office; or

(f) having made a tender to obtain a contract with the government

(i) gives, offers or agrees to give or offer to another person who has made a tender or to a member of his family, or to another person for the benefit of that person, a reward, advantage or benefit of any kind as consideration for the withdrawal of the tender of that person, or

(ii) demands, accepts or offers or agrees to accept from another person who has made a tender a reward, advantage or benefit of any kind as consideration for the withdrawal of his tender.

Punishment

(3) Every one who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Section 122 – Breach of trust by public officer

Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

CONSTITUTION ACT, 1867

Preamble

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:

Privileges, etc., of Houses

18. The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

Qualifications of Senator

23. The Qualifications of a Senator shall be as follows:

1. He shall be of the full age of Thirty Years:

2. He shall be either a natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada after the Union:

3. He shall be legally or equitably seised as of Freehold for his own Use and Benefit of Lands or Tenements held in Free and Common Socage, or seised or possessed for his own Use and Benefit of Lands or Tenements held in Franc-alleu or in Roture, within the Province for which he is appointed, of the Value of Four thousand Dollars, over and above all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out of or charged on or affecting the same:

4. His Real and Personal Property shall be together worth Four thousand Dollars over and above his Debts and Liabilities:

5. He shall be resident in the Province for which he is appointed:

6. In the Case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division.

Disqualification of Senators

31. The Place of a Senator shall become vacant in any of the following Cases:

1. If for Two consecutive Sessions of the Parliament he fails to give his Attendance in the Senate:

2. If he takes an Oath or makes a Declaration or Acknowledgment of Allegiance, Obedience, or Adherence to a Foreign Power, or does an Act whereby he becomes a Subject or Citizen, or entitled to the Rights or Privileges of a Subject or Citizen, of a Foreign Power:

3. If he is adjudged Bankrupt or Insolvent, or applies for the Benefit of any Law relating to Insolvent Debtors, or becomes a public Defaulter:

4. If he is attainted of Treason or convicted of Felony or of any infamous Crime:

5. If he ceases to be qualified in respect of Property or of Residence; provided, that a Senator shall not be deemed to have ceased to be qualified in respect of Residence by reason only of his residing at the Seat of the Government of Canada while holding an Office under that Government requiring his Presence there.

Questions as to Qualifications and Vacancies in Senate

33. If any Question arises respecting the Qualification of a Senator or a Vacancy in the Senate the same shall be heard and determined by the Senate.