Proceedings of the Standing Senate Committee on
Privileges, Standing Rules and Orders
Issue 2 - Evidence
OTTAWA, Tuesday, November 23, 1999
The Standing Committee on Privileges, Standing Rules and Orders met this day at 4:35 p.m. to consider the question of privilege raised by the Honourable Senator Andreychuk and to consider matters pursuant to its mandate under rule 86(1)(f) of the Rules of the Senate.
Senator Jack Austin (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum.
We can dispose quickly of the first item. I believe there is no issue with respect to the request from Senator Taylor that the fees normally paid be waived by the Senate with respect to the Moravian Church private bill. You have a letter from Senator Taylor in your documents today. He is asking on behalf of the petitioners of the private bill that rule 106 be suspended. Rule 106(1) states:
Every application$for a private bill shall advertised by notice published in the Canada Gazette....
Further, rule 106(3) requires publication
...in the Canada Gazette, the official gazette of the province concerned, and in a leading news publication...for a period of four weeks...
The estimate of costs is between $500 and $1,000. Those costs were paid once before.
In 1991 the board of elders of the Moravian Church in America initiated the formal process of applying for a private bill. They wish to make three changes to the church's incorporating act. The first is to modify the long title of the French version. The second change is to give the board of elders a name. Third, they wish to remove certain restrictions on the board's investment powers.
French and English notices appeared in the Canada Gazette on March 6, 13, 20 and 27, 1993. Notice appeared in The Edmonton Journal on April 16, 23, 30, and May 7, 1993, and in the Alberta Gazette on March 15 and 31, and April 25 and 29, 1995.
The bill was drafted and was ready for introduction by its sponsor, the late Senator Twinn, who passed away in 1997 before either the petition or the bill was introduced.
The same request to waive the advertising requirements was agreed to last session by this committee. Its recommendation to that effect was adopted by the Senate on May 11, 1999.
Pursuant to rule 108, no motion to suspend the rules for private bills can be made unless it is recommended by this committee. As you see from this record, we are simply trying to reinstate the application and move it forward before the next election takes place. I am sure the Moravian Assembly would like that. We need to agree that the provisions of rule 106 be waived in relation to this private bill. Can I have a motion to that effect?
Senator Robichaud (Saint-Louis-de-Kent): I so move.
The Chairman: Thank you very much. Is there any discussion?
Senator Beaudoin: Do you have any precedent on this? Is this the first time it has happened?
The Chairman: As I said, the Senate had agreed to waive this motion in the last session and the committee had so recommended. It was adopted by the Senate on May 11, 1999. However, Parliament prorogued before the Senate could take action. We are now seeking simply to finish the process in this session.
Senator Robichaud (L'Acadie-Acadia): In provincial legislatures, it is a current and almost automatic practice. A motion must be made in each case but it is automatically accepted that fees are waived for charitable or religious organizations. That is the normal practice.
Senator DeWare: I would agree.
The Chairman: Is it agreed that the provisions of rule 106 be waived in relation to this private bill and that a report be made to the Senate?
Hon. Senators: Agreed.
The Chairman: The second item on today's agenda was to be the report of the working group on the revisions to the Rules of the Senate. Senator Kinsella raised in the Senate the question of the scope of work allowed to this committee while the Senate is in session on Tuesday afternoons. I responded that the report of the working group would not be part of our discussion today. We will deal just with the two questions of privilege. We will ask the Senate for a further order if we decide to address that report on Tuesdays. Otherwise, we would need to meet over the lunch hour on Wednesdays. We may need to reinstate that meeting time for our other business.
We turn now to the question of privilege raised by Senator Andreychuk. This matter was referred to us by the Senate on October 13, 1999. The motion adopted by the Senate stated:
That the question of privilege concerning the unauthorized release of working drafts of a report of the Standing Senate Committee on Aboriginal Peoples be referred to the Standing Committee on Privileges, Standing Rules and Orders.
You should have the background material in your agenda documents. Senator Andreychuk moved the motion in the Senate. She is here with us today and will now review her position and the remedies she is seeking in this instance.
Senator Andreychuk: Honourable senators, as I indicated in the Senate, I have found, since I came into the Senate six years ago, that the issue of confidentiality is extremely important. It is the basis of working and achieving, particularly in committees, the kind of consensus that leads to our good reports. When I came into the Senate, no one spoke to me about confidentiality. I presumed it. I knew about it. Perhaps it was my legal training that made me alert to the issue of confidentiality.
About two years ago, when the committee studying the matter of post-secondary education was meeting, there was a serious breach of confidentiality. At that time, I raised it informally with the chair and with committee members. I did so thinking that rather than going public about it, the best way to deal with it would be to alert everyone in the hope that there would not be another breach.
However, here we were in the Standing Senate Committee on Aboriginal Peoples, in a very difficult area with so many disparate aboriginal groups having different aspirations as to what we were to do. Committee members had different perspectives. Thus, rather quickly, there were first and second drafts. The third draft seemed to start gelling regarding how we would work. There were comments made concerning this third draft, and a fourth draft was produced.
When the committee met, we were in the unusual position of dealing with the third and fourth drafts. We were discussing where to go from there. At our last meeting, we were asking ourselves what to do at that point. We agreed to see how we could meld the third and fourth drafts together. Those comments were all in camera. The drafts were clearly marked "Confidential". I had always treated them as such. Then, of course, we saw in the National Post a very particular recommendation, which led me to believe that there had been a leak, if I can call it that. More particularly, one recommendation, which appeared in two of the confidential drafts, was basically lifted. There was no misunderstanding that there had been a breach. That is why I rose to claim the question of privilege. As a committee member I felt that I was compromised. As well, I felt that the Senate had been compromised. We did not have the opportunity to share the report or our perspectives.
The Speaker has ruled that there is a prima facie case of privilege because this appeared in newspapers. It was definitely not from a report that had been filed in the Senate. Nor had it been publicly dealt with in any way in the committee. I do not know whether this committee has to go any further to prove the actual breach of confidentiality. I leave it to you on that basis.
What is done is done. I do not want a repetition of it. It is an important issue. I hope we do not get ourselves into a position where brown envelopes are being delivered to us, something that members of the House of Commons deal with on a daily basis. I thought we were relatively free of that.
I am not here to point fingers, whether it was a senator, a staff person of the Senate or a researcher who did this. The leak taints us all. There is not much point in trying to find out who did it. I feel that the rules were loose to start with.
I am looking for five recommendations from this committee. First, this committee should alert all senators, in writing, of the issue of confidentiality. I ask that you remind them that confidentiality exists and that they are responsible for maintaining it, particularly in the day-to-day work of committees.
Second, new senators should be informed of the issue of confidentiality. Many senators do not have a legal background. They come from varying walks of life and had no reason to work in a confidential atmosphere. They should have explained to them what a confidential draft in committee means.
Third, in regard to its training of staff, policy should require that the Senate undertake an explanation of confidentiality. I leave you that to explore. We have clerks. We have translators. I think some of them know what we mean by "confidentiality". However, there are others who do not.
The fourth matter I wish to address is the issue of researchers. Do the researchers who are employed by committees or individual senators have confidentiality explained to them? Is that part of their contract? Part of the problem in the Standing Committee on Aboriginal Peoples was that we were not using only the services of the Library of Parliament. They know how to work confidentially.
Fifth, we all hire staff on contract. Should confidentiality not be spelled out clearly in the terms of such contracts? Conflict-of-interest guidelines are definitely stated in those contracts. However, there is nothing in them whereby the contractor agrees to work in a confidential manner for the purposes of a particular senator or a group of senators.
I would be satisfied with something along those lines, Mr. Chairman, as a first step to see whether this will do the trick.
The Chairman: Senator Andreychuk raises two questions for our consideration. The first question is this: Was there a breach of privilege based on the unauthorized release of working drafts of a report of the Standing Senate Committee on Aboriginal Peoples? We are obliged to make a finding of fact with respect to that question.
Senator Andreychuk: In no way am I getting into the issue of the newspaper publishing this material and the issue of freedom of the press. They use their own sources and publish what they want. The issue, from our side, is who would put the Senate in such a position. I want that on the record for Senator Fraser who, unfortunately, is not here today.
Senator DeWare: I have with me the third and fourth drafts which are clearly marked "Confidential. Not for distribution."
The Chairman: We will want the record of our consideration here to show that the third and fourth drafts of the Standing Senate Committee on Aboriginal Peoples, under the title "Forging New Relationships: Aboriginal Government in Canada", have marked on them "Confidential. Not for distribution."
If we determine that there was a breach, the question is: What are the remedies? Senator Andreychuk is not asking us to conduct an investigation into who might have released this particular report. She is asking us to take remedial steps directed at the senators themselves, senators' staff, the staff of committees and contracted short-term people who work with committees, to see to it that no one has the excuse that they were not fully apprised. However, I wish to ask Senator Andreychuk the following question: Are you asking us to look at the issue of sanctions if any of those categories of people are in breach of their obligations to the Senate?
Senator Andreychuk: I thought of that. At this point, it seems to me that we were all somewhat at fault for not raising this issue to a higher level in our day-to-day workings. It was never brought to me as an issue when I came here. It has never been raised.
The Chairman: Once we do raise the issue, and it is clear to everyone what the obligation is, then the question is: So what? What action, if any, should the Senate take if there is a provable breach of privilege by any of those categories of people? Would you leave that to the committee to discuss?
Senator Andreychuk: I would think so, and you must then break the question into two categories: senators and others. I believe we are under a public trust to behave in a certain way. I do not know what sanctions there could be, beyond what we collegially have a right to say about each other. We learned from the Thompson issue that we do have a right to comment if we believe that in some way it affects the functioning of the Senate. I believe it would be a case-by-case basis.
As I say, with contracts and with policies, the matter of confidentiality should be raised to a level equal to conflict of interest. The same remedial action that we take for that, in contracts and in employment, should also be for any breach of confidentiality. In fact, it should perhaps be higher.
The Chairman: There are precedents in other legislatures. For example, the British House of Commons, which we will discuss later on, indicates that their practice is to take sanctions of suspension against members who breach their obligations, and there are sanctions in the conditions of employment of staff and others. I should like to suggest, if you agree, that we examine those and consider them as part of our final conclusion. I believe sanctions are an important step.
Honourable senators, I should like to focus on the question of whether a breach of privilege did occur. Can we start there?
Senator Kroft: The senator was so clear in drawing a line at one point, as Senator Fraser had done, I think, even in the house, and as our chairman concurred, and in stating that the media is not a part of this. However, I have read the material that has been distributed, and every committee that has looked at this has said that it is impossible to separate the media. Those committees have not always come to the same conclusion, but the media has been part of the consideration and, in fact, has been part of the sanction. I found that rather interesting. I can understand Senator Fraser's perspective; however, I am a little concerned, not about what our final answer might be, but that we just leap too quickly to the view that the media is not a part of this.
The Chairman: Let us address, if we may, that question of whether we are taking a look at extending our reach beyond senators and employees of one category or another in the Senate.
In the debate of the Senate on September 14, I made some comments on this question of privilege. That is on page 5 of these notes. Senator Fraser said:
Honourable senators, I have a comment that follows directly on something that Senator Austin said. I suspect it may have been said inadvertently because I know that Senator Austin has good reason to understand the workings of the free press. He suggested, as I understood him, that the story and, indeed, perhaps the editorial in the National Post were a breach of privilege.
I would suggest that if privilege has been breached -- and I think it may have been -- the breach is not the fault of media; rather, it is the fault of those who leaked the draft report. The media have every right to print material that comes into their possession, with very few exceptions. I do not think this draft report would be covered by those exceptions.
Because I am such an agreeable senator, I said:
Honourable senators, I agree totally with Senator Fraser. I had no intention of saying, nor do I believe that I said, that there was any breach of privilege by the media. What I am saying is that the story in the media is a breach of our privilege because it compromises the work of a Senate committee. This is not to say that the media do not have the right to publish this particular story; I believe they do.
Well, on reflection, I think that is quite an arguable point; however, I believe we can dispose of the issue of whether we pursue the National Post by deciding that in this context our focus should be on our own internal workings.
Does any senator wish to pursue the possible breach of privilege by the National Post? That is not part of Senator Andreychuk's specific intention, although the words of the reference from the Senate to this committee are large enough to incorporate it, if we wish to do that.
Senator Andreychuk: Had we had any inkling that the press had acted in any way inappropriately, I might have extended the question of a possible breach of privilege beyond senators and Senate employees. However, my concern was that I did not think we had cleaned up our house sufficiently. That is why I am not sure that I am ready to go the next step that Senator Kroft mentions.
Senator Kroft: I am dealing with this particular case, but I am wondering if, as we explore the subject, it will become artificial not to extend at least our thinking into that area, whatever conclusion we may reach. I would not wish to follow your reference in this particular case to a point that it restricted where our thinking might take us in the consideration of the committee.
The Chairman: The question, Senator Kroft, is whether we wish to consider a media breach of privilege as an issue. Not dealing now with the behaviour of the National Post in publishing our confidential material does not mean we cannot take it up at another time, nor does it mean we concede the point, in my view.
Senator Rossiter: We could not very well go after the media because you could not prove that all care had been taken in-house to prevent something from getting out. That brings to mind another thing, a sixth point to add to Senator Andreychuk's suggestions: We should ensure that all the recording equipment is turned off.
The Chairman: At this committee?
Senator Rossiter: No, when a committee goes in camera.
The Chairman: We are dealing here with a document that was published. It was not a transcript of the Aboriginal Affairs Committee, although releasing an in camera transcript would also be a breach of privilege.
Senator Rossiter: Everyone who might be connected in any way with the report should be made aware of their responsibilities regarding confidentiality, but it is possible that someone could overhear us if the recording devices were thought to be turned off but were left on. I believe Mr. O'Brien agrees with me.
Mr. Gary O'Brien, Principal Clerk, Committees Branch: I see your point.
The Chairman: In other words, privilege could be breached if an unauthorized person deliberately used the electronic means to overhear an in camera session.
Senator Rossiter: Yes, if it was not checked that it was turned off.
Senator DeWare: There are a few points I should like to come back to for a second. Many of us have been in government before and know a bit about confidentiality, but I do not think the senators who came in in a hurry in September 1990 were briefed on anything. We did not have an office and we were not briefed. Nothing happened for about a month or two. Perhaps no one ever briefed us about this particular matter.
I think you have a good point about the researchers as well. We bring people in and they come and go, and although we talk to them personally, perhaps we are not getting one particular point across, which I think we have to put on our agendas. The five or six points here are very important.
There is another thing to consider, and that is that we probably have to be reminded often -- perhaps not all of us -- of our responsibilities as senators and that there is a principle of confidentiality. I think perhaps the time is right. I think this is a good time for this issue to come before our committee, although it is never a good time for a breach to happen. However, if we now make everyone, including the clerks, the researchers and our own personal researchers, aware of the issue, then we can move on. If a breach of confidentiality ever happens again, then we have the opportunity for recourse. We have to ensure that everyone knows the rules.
The Chairman: If this is the case, let us move, then, to agree that in the circumstances before the committee at this time, we will not pursue the issue of the breach of privilege by the National Post.
Senator Robichaud (L'Acadie-Acadia): It may not be a breach of privilege per se, but it certainly is a breach of ethics. It is most unethical on their part not only to print a part of the content of the report but to editorialize on it when they had in front of them a document clearly marked "Confidential". There is a breach of ethics there, if not a breach of privilege. I am not saying that we should exercise sanctions, because we can never win against the press. There is no question about that; it is impossible. However, there is a breach of ethics, and someone should be made aware of that, somehow or other.
The Chairman: Here is the problem: We do not know what they actually got. They may not have received the page that said it was confidential. They may have been told that this is the report adopted by the committee, and that they just got it a few days early and that it will be released very quickly. It would be a major undertaking by this committee and by the Senate to investigate just exactly what happened with respect to the National Post. I do not think we need to debate it, if we all agree that we are not going to pursue that aspect of the question of privilege.
In other jurisdictions, in cases of a provable breach of privilege -- they had notice, they knew they had a confidential document and they published it -- action has been taken. The British House of Commons, for example, has taken action in such cases.
I will ask the question specifically. Can we agree that, in dealing with this question of privilege, we are not dealing with the issue of whether the National Post is in breach of privilege? We are setting that aside; correct?
Hon. Senators: Agreed.
The Chairman: Then the next question is whether a breach of privilege by some unknown person is established. I want to refer you again to the September 14 Debates of the Senate, where the chairman of the committee, Honourable Charlie Watt, says:
Honourable senators, there is no doubt in my mind, when you read the National Post, that the unauthorized report was leaked. The description given by the National Post cannot help but infer that the report was leaked.
He makes some other comments and then supports Senator Andreychuk's initiative in making the motion.
The facts are that the Standing Senate Committee on Aboriginal Peoples was, over the late spring and summer, considering its recommendations on its study on governmental models for aboriginal governance. It is a matter of record in the committee that no report had been adopted by that committee; in fact, two versions, called version 3 and version 4, were under discussion. At that point, the National Post story of September 11, 1999, appeared. I believe that story represented as facts and as the views of the committee things that are not facts and not views.
We now have two questions. Is more required to establish the breach of privilege? I will ask the clerk, the research adviser and our legal adviser, Mark Audcent, whom I have asked to be here, whether we now have a sufficient basis of fact to conclude that there is a breach of privilege. Would you like to start, Mr. Robertson?
Mr. Jamie Robertson, Researcher, Library of Parliament: I think that is the determination by the committee. In the House of Commons, there have been, over the course of this Parliament -- and it is perhaps a reflection of the fact that there are five parties in the house -- numerous reports that were prematurely released to the media. I think members of all five parties have at different times raised questions of privilege relating to such leaks. In the House of Commons, the Speaker has, on the basis of the precedents of that chamber, taken the position that unless a source for the leak is identified, he cannot find that a question of privilege has been prima facie established and therefore cannot refer it to a committee.
However, clearly, in this case, I think it is accepted by everyone that the report was leaked. Certainly it is a basic premise and principle that reports of committees are not to be released to the public before they have been presented to the chamber so that all members of the chamber have an opportunity to see the report before people outside do. I think the committee, having received the order of reference from the Senate, can make that finding, and then proceed to discuss the implications and the types of issues to be dealt with as outlined by Senator Andreychuk and the members of the committee.
Mr. Mark Audcent, Law Clerk and Parliamentary Counsel: I have noticed, senator, how you have structured it, which is as follows. The first question would be as to whether or not there has been an unidentified leak. Then the next question would be, perhaps, the source.
In terms of the unidentified leak, the copy that I have, and which was in the materials distributed, regarding what was put in the National Post on September 11, reads, in part, as follows:
Excerpts of the committee's recommendations obtained by Southam News...
Mr. Mofina is thus making a representation that Southam News obtained excerpts of the committee recommendations. They might not have had the whole report; I do not know. However, I know that you have a public representation in the press that Southam News had excerpts of the committee's recommendations.
The Chairman: Or they had the report and they only had room for excerpts, so they were not going to publish the whole report, just highlights.
Mr. Audcent: The English is slightly ambiguous. Certainly, you have the core statement that they have excerpts of the committee's recommendations. Southam News had those excerpts. I would think that would be an important fact in the deliberations of your committee.
Mr. O'Brien: The other question, honourable senators, is this: Was the work of the committee affected by the release of this report? That is the key for privilege, that something has occurred outside your chamber by unauthorized people or not by parliamentarians that has somehow had an impact on your work.
I understand from the comments made by Senator Andreychuk and from the debate that followed that there was a feeling that this early draft somehow forced the committee to reconsider or else painted an image in the public's mind of certain recommendations that the committee was thinking about. Perhaps the committee may wish to address that to establish a breach of privilege.
The Chairman: I would address it, if I may, in two ways. First, you can take the unauthorized release of the draft as an attempt to compromise or influence the discretion and judgment of the Senate committee. I think that is a logical and natural argument to make. Second, it suggests that the committee and the Senate as a whole have concluded certain policy questions which we are far from concluding and, therefore, it misrepresents the work of the Senate and the opinion of the Senate with respect to important public policy issues.
I would say, then, that those two realities certainly compromise the ability of the current committee to discuss and resolve the very questions that have been put in the public domain. That would be my view.
We have not yet met to discuss the substance of reports three and four. We did meet earlier today in the Aboriginal Affairs Committee to discuss how we would discuss those reports.
I cannot report to you that anything will be different, but I think it is necessary. There has been an impact on the committee, although not necessarily on the substantive conclusions. The freedom of the committee to debate this issue has been compromised.
Senator Andreychuk: Those of you who have taken the time to read the entire National Post article would agree with me that they have taken and limited what we might have said about a particular issue and recommendation. They have put a particular spin on it. That precludes us dealing with the issue in an open and honest way. They have already prejudged what it means. If you read it, the quotes are there. It certainly limits our freedom.
The Chairman: In the material referred to me, there are three comments on this issue. In July 1999, a member of the British House of Commons was suspended from the service of the House for 10 sitting days for disclosing confidential committee papers of the Foreign Affairs Committee to a minister without the committee's approval. We should consider that standard.
Shortly after, another member was suspended for five sitting days for giving a draft committee report to a parliamentary secretary. That is how seriously the British House of Commons takes the confidentiality of its committees' work.
Beauchesne states as a fundamental principle of our system of parliamentary government that the publication of proceedings of committees conducted with closed doors or of reports of committees before they are available to members constitutes a breach of privilege. The facts are very clear that that is what has happened in this case.
Mr. Robertson points out to me that in the Australian practice, deliberate release of drafts at an early stage of committee deliberations has one purpose alone: to influence the outcome of the deliberations, thereby impairing the integrity of committee proceedings. That point was made a bit earlier.
Unless there is more discussion, I should like to have agreement of the committee that we have made a finding of fact that a breach of privilege has taken place.
Is that agreed, honourable senators?
Senator Kroft: Does that imply an acceptance of "deliberate" as opposed to "accidental" or leaving the package on a bus or on a table or whatever? I wish to know what conclusion you are coming to.
Senator Corbin: That begs the unstated matter of fact. I did not hear it from Senator Andreychuk, but things have been thrown around. Is someone under suspicion at this stage? What are we talking about?
The Chairman: At the beginning of our discussion, Senator Andreychuk said that her question of privilege was not directed at pursuing an investigation of the behaviour of any particular individual but was, rather, directed at creating a set of rules and notice and awareness of those rules which if breached in the future would give rise to sanctions.
Senator Corbin: Then we are not discussing a question of privilege any more.
The Chairman: We are discussing a question of privilege. We do not need to find a person guilty of breaching that privilege in order to find that a privilege has been breached. The question of whether privilege has been breached is a question of objective fact. Our report is in the media. It was a confidential report. It was the work under way of a committee.
Senator Corbin: We have put aside the idea that the breach occurred with the press. The breach occurred at the stage where someone gave the information to the press. I am not sure if we are talking about reports being left on the table after the meeting, being thrown in the wastepaper basket or picked up in the recycling bin.
The Chairman: We are saying that however the breach occurred, a breach did, in fact, occur.
Senator Corbin: Obviously.
The Chairman: We are not intending, unless someone wishes it, to create an investigation by this committee calling witnesses, calling every person who worked in the committee, every person who had documents. We do not intend to do that, nor do we intent to pursue the National Post.
Nonetheless, a breach of our privileges has occurred. We are saying we wish to focus on awareness, notice, clear objective standards from here on. We wish to improve our practice, and we wish to put everyone on notice of what it is. This committee will also discuss whether sanctions should be introduced in the Rules of the Senate of Canada which would apply if in the future there are breaches either by senators or by the staff of committees or the staff of senators. That is where Senator Andreychuk has told us she would like to go.
As a committee, we have agreed that we are prepared not to deal with the newspapers. I think we have agreed that we are not dealing with any individual in this case. What I am now asking is this: Do we agree on the basis of the discussion that we have had that a breach of privilege has taken place? Once we do that, we can look at the next work of the committee. Is it agreed that a breach of privilege has taken place?
Senator Beaudoin: It is one thing to say that there was a breach, and I am inclined to think there was. It is something else to put the finger on the person who may be guilty of that. You have set aside that second question. We are concerned only with whether or not there was a breach of privilege. We do not intend to go further than that. Is that what you have in mind?
The Chairman: That is the request of the person who raised the breach of privilege. I am suggesting that we accept that request.
Senator Beaudoin: I am ready to accept that request as it is, but what if the breach is purely an accident? We do not go further than that. We do not know exactly how it happened. We accept the fact that there was a breach of privilege. I am ready to agree to that, but I am still a bit worried about the possibility of a pure accident.
The Chairman: Even a pure accident is a breach of privilege.
Senator Beaudoin: It is a breach of our privilege as parliamentarians, yes.
The Chairman: I hate to use this example, but it is a current one. CSIS officers who leave highly secure documents in their cars while they see a hockey game are breaching a standard of behaviour that is analogous to a breach of privilege.
Senator Beaudoin: I do not have a problem with that. I am ready to stop there.
The Chairman: In order that we may continue with the rest of our work, I am asking that we agree that this is a breach of privilege. Senator Kroft focuses on the word "deliberate", which is found in the Australian rules but is not in ours.
Senator Kroft: I want to be sure I understand. You are saying, "Let us take notice of the fact that, somehow, there has been a breach of privilege." Senator Andreychuk's request, which you seem prepared to use to create the framework for our work, is to let us treat this as a red light or an alert -- that is to say, as a reminder that we have a problem. That is the sole consequence of this event. Having been awakened to the fact that our practices may be loose and things can happen, we will then ask: What should we be doing to manage our affairs better? That is the sole role that this event will play. Am I correct in that understanding, namely, that there is no investigative element? We are merely saying, "This is a reminder that we could be doing things better. Thank you for blowing the whistle." I understood that to be Senator Andreychuk's position and that is the position you have taken.
The Chairman: That is what I am recommending to the committee. I object to the phrase "somehow a breach of privilege has taken place." I believe a breach of privilege has taken place, and we put the facts of the breach on our record. If you meant to say "a breach of privilege has taken place but we do not know who is responsible for it," then I am happy with that phrase. The suggestion is that we not involve this committee in hours, days or weeks of investigation where everyone denies everything and we do not get any further ahead.
Senator Corbin: I think you should call it a breach of parliamentary ethics at this stage. It is not a breach of privilege.
The Chairman: It is that, too, but under our rules, I believe it is a breach of privilege. Do you not believe, Senator Corbin, that the breach of the work of a committee -- a draft report that has not been released and that is stamped "Confidential" -- is a breach of the privileges of the Senate?
Senator Corbin: I am offended by it, too. As a member of the Senate, the committee is ordered to report to the full house. It is a breach of my privilege as well.
Senator Sparrow: It seems to me there is one breach of privilege, and that is by the press. There is no indication or proof of any other breach of privilege. The press could have stolen the document so that no one else was involved in that breach of privilege. The breach of privilege is with the newspaper report itself.
Basically, that ends the discussion. If that was the only request, we are not looking for anyone else who may have made a breach. It seems to me that we are looking for action in the future, as Senator Kroft has stated. We want to plan for the future so that it does not happen again. We are covering ground again here, which would have been totally unnecessary if we had agreed that it was a breach of privilege by the press and that we would do nothing about it.
Senator Andreychuk: I would answer this way. It was a breach by person or persons unknown. The document was published in the newspaper but I do not know who leaked it. We can go down the road of investigation if we want. My concern, however, is that there are certain ramifications of going that route.
The Chairman: In our earlier discussion, there seemed to be consensus that we would not use the phrase "by the press". We had a discussion about whether we wanted to deal with the press, the National Post, the issues around freedom of the press, and so on. Those would be great and exciting issues to deal with, but we, as a committee, have another agenda.
My suggestion to colleagues is that we make a finding of fact that there was a breach of privilege and stop there, without pointing the finger at staff, senators, the press or anyone else. We should just make the finding and then concentrate our work on improving our rules and improving awareness of the rules to ensure that we have the tools to deal with a breach of privilege in the future, if we should find one. Is that agreed?
Hon. Senators: Agreed.
The Chairman: The question then arises of what to do to improve the rules. I will ask Mr. Robertson to give us some ideas. He has done a bit of research on this. I do not want to keep Mark Audcent tied up here for long, but we have these categories to deal with.
First, what would be the sanction if a senator were proven to have conducted a breach of privilege? Let us set that aside for a moment. What is the sanction with respect to either permanent or contract employees? What is currently in the terms of employment of Senate employees or contract employees or researchers, and what can we henceforth insert with respect to confidentiality that raises their level of responsibility to a contractual responsibility?
Senator DeWare: Could you read the contract for us?
The Chairman: I would ask Mr. Audcent to respond to that question, and then we will let him leave.
Mr. Audcent: Senators, the members of your staff fall into many legal relationships with the institution but there are two principle relationships, and those are the ones we should look at. One is indeterminate and term employees; the other is people whose services you retain under contract. I have a sample of a letter where a position is offered; it includes the statement: "I would like to bring to your attention that persons employed by the Senate are required to observe the Senate Conflict of Interest Code." I also have a sample of an agreement that would be signed with a researcher; it provides that: "The contractor has signed and is bound by the certification relating to compliance with the Senate's Conflict of Interest Code."
The basic principle of the Conflict of Interest Code, which is incorporated by both those documents, states:
Every person governed by this Code shall so conduct himself and so arrange his affairs as to minimize the possibility of a conflict of interest or an apparent conflict of interest arising between that person's duties to the Senate or to a senator and his private interests.
On the question of the use of information, found at 5.2, the code states:
No person governed by this code shall communicate to someone not entitled thereto information that has been acquired in the course of performing that person's duties to the Senate or to a senator that is not available to members of the public.
Everyone signs that they have read this and the statement is clear. You are not to use information that is not available to members of the public.
Penalties for breach of this code may include reprimand, suspension, recommendation for dismissal in the case of persons appointed by the Governor in Council, and the motion of dismissal in the case of persons appointed by the Senate. Penalties may be singular or cumulative. There is an interesting provision which says that a breach of this code can also give rise to proceedings for contempt of Parliament.
The restriction is expressed clearly. This is not exactly dead-on and there is probably room for improvement because we are talking about the use of information. Although the rule is that "you shall not communicate," it is in the context of conflict of interest, whereas you want it in the context of confidentiality.
There is no doubt that the rule and the penalties are there, and there is no doubt that they are enforceable. There are both administrative and parliamentary penalties. Obviously, the matter will be brought to the attention of the Clerk of the Senate. The administration will focus, as a result of your deliberations today, on how to improve issues of confidentiality. However, I do not think we have been anywhere near negligent in this regard.
We do have the basic building blocks in place. People who work for the Senate as employees or researchers have read about their obligation to keep information confidential. They have signed acknowledging that obligation. They know they must keep information confidential.
[Translation]
Senator Robichaud (Saint-Louis-de-Kent): Each senator has certain obligations vis-à-vis staff. I have always thought that contracts were in place to protect people. If there anything in writing pertaining to a code of conduct for senators?
Mr. Audcent: The chairman of the committee indicated that this matter as it pertains to senators would be examined later. Your question concerned staff. You have not made it clear what you mean by breach of confidentiality. In your conversations this afternoon, you take it for granted that your staff are entitled to read these confidential documents. Their right to do so is not a given, not by any means. You should instead be focusing on the following question: do senators have the right to share this information with their staff? If so, with which staff members and under what circumstances? Do you have the right to share this information with a staff member solely for the purposes of drafting the committee report or for other reasons? The question is more complex then it appears at first glance and warrants further consideration. What do you mean by in camera? Is that when information is deemed confidential? With whom do you allow yourself to share this information? Another question that comes to mind is this: who authorizes the release of confidential information under exceptional circumstances? Supposing you want to release a policy statement that is still confidential to a member of the press 24 hours in advance of its general release. Who is authorized to do that? The chairman, the full committee or the senator in question? A number of issues warrant further examination.
[English]
Senator DeWare: When you began to read that article, you referred first to conflict of interest. That could be confusing. Conflict of interest and breach of privilege, as far as confidentiality is concerned, are different. We should divide out that section so that conflict of interest and confidentiality exist separately.
We could discuss this later, but a document could go out stating that because there has been a breach of privilege regarding a confidential document in the Senate, we are, just as a reminder, circulating the text of the obligation to respect confidentiality which was signed by each person as part of their contract or employment terms with the Senate. That could be done. It may scare everyone half to death, though.
The Chairman: That is a very nice suggestion, but my supposition in these factual circumstances is that the individual who supplied the report to the National Post saw that our committee would recommend far different things than that individual wanted to see in the light of day. In such a case, the person does not care that they signed a document. They are looking for anonymity of behaviour.
Senator DeWare: That is true and I see your point. Once the draft report is in the press, the committee members have a very difficult time dealing with the rest of the report.
The Chairman: I do not have a complete answer to your comment, though. The person at fault must be found.
Senator Beaudoin: When we sit in camera, we always ask permission if we want a staff member to sit in. Without that question, an in camera sitting should be for senators only. A request should be made in each case before an exception is granted. That is the tradition. Legally speaking, if a meeting is in camera, then it is in camera. I do not know your reaction to that. Perhaps we can study that later on.
Mr. Audcent: I could respond. I would also put on the record the other provision regarding confidentiality. For researchers, as opposed to regular staff, there is a provision that says that contractors shall treat as confidential during as well as after the rendering of the agreed services any information of a character confidential to the affairs of the Senate of Canada to which the contractor may become privy.
That is the second affirmation of confidentiality in a rather short contract. That gives a fair amount of visibility to the importance the Senate attaches to this issue.
Senator DeWare: Researchers must sign that?
Mr. Audcent: That is a term of their contract.
Senator Beaudoin: It is a contractual obligation.
Senator Kroft: Must they sign that before they have any compensation? Is that where the rubber hits the road?
Mr. Audcent: If they do not sign it, there is no contract under which payments can be made.
To come back to our permanent employees, although I have drawn to your attention what is in their offer, once permanent employees are within the administration, different directorates would have their own confidentiality rules. I cannot cite them chapter and verse, but I am sure the committee's branch must have rules on confidentiality. I have such a small office that I do not have a written policy but I can assure you that all of my employees are aware of the need for confidentiality within the office. There are, at other levels, reinforcements of the importance of confidentiality for permanent staff.
The Chairman: Are there other questions with respect to any categories of staff, permanent employees, researchers, Library of Parliament people, anyone else who would normally have access to the confidential work of the Senate because they are supporting the work of the committee? They may be supporting it at the request of a senator or a senator's staff member. We will come back to Senator Beaudoin's question in a moment.
Senator Kroft: I have one question for clarification. I have a pretty clear mind on the subject of confidentiality and what it means. I am also attracted to the effectiveness with which it can be communicated. It is well understood. When we get to the area of conflict of interest, however, I become confused because that presupposes that the person might have my interest as a senator in mind. Is it theirs or theirs on behalf of someone else? Does it presuppose an adversarial position? I am not sure where the conflict of interest comes in, or why, to put it another way, the concept of confidentiality alone would not be enough. Perhaps you can help me with that.
Mr. Audcent: The Senate's Conflict of Interest Code is in effect for all your staff, senator, whether they are permanent or on contracts. It is a profound document. It is not a narrow document. It is wide-reaching. It borders on being more of a code of ethics than a code of conflict of interest, in spite of the name. It goes back to 1986. I read to you its basic principle. It states that every person governed by the code cannot conduct themselves in a way that is an apparent conflict of interest between that person's duties to the Senate or to a senator and his private interests. The duties to the Senate, if something is in camera, are clear.
Senator Kroft: It is the "private interests" part with which I have trouble. I understand duties of the Senate, or any other interest. If they were agents on behalf of another party, then it might be not their own interest but someone else's interest that they were pursuing.
Mr. Audcent: Some of these principles could be put into an ethics code and be removed from the conflict-of-interest context.
The Chairman: I have to confess to colleagues that I am not terribly interested in the subject of ethics in this particular discussion about the breach of privilege.
Senator Andreychuk: Which contract governs researchers hired by committees as opposed to those hired by senators?
The Chairman: Mr. Audcent read the confidentiality provision of that particular category.
Senator Andreychuk: He read the contract that we sign when we hire researchers. Is that the same contract used by the committees?
Mr. O'Brien: It is somewhat different. The contracts for the staff hired by the Aboriginal Peoples Committee had confidentiality clauses similar to what Mr. Audcent read.
The Chairman: I should like to quote those particular confidentiality paragraphs when we put our report together.
Senator Corbin: May I inquire if that staff also had security clearance?
Mr. O'Brien: Our chief of security is with us. I do not know.
Senator Corbin: That ought to be a consideration for the writing of guidelines.
The Chairman: That is an interesting question. What do we consider to be security in the Senate?
Mr. Serge D. Gourgue, Director, Services and Security Directorate, The Senate of Canada: The Senate and the House of Commons are not subject to the government's security policy.
Senator Corbin: We can request it, can we not?
Mr. Gourgue: We cannot do that ourselves. We have to go through a department.
Senator Corbin: If a senator requests security clearance on a staff member, either permanent or on contract, someone has to deliver that security clearance. This has occurred, and Senator Andreychuk very well knows this, in the case of Senator Kelly's committee on security and terrorism. All our staff had to be security cleared. I do not know who did it.
Mr. Gourgue: CSIS did that.
Senator Corbin: There are sensitive subjects and instances where, in my opinion, security clearance ought to be obtained before you let people in.
Mr. Gourgue: All permanent staff and contract employees are subject to a security policy which has recently been approved by the Senate. This entails checks that equate to secret clearance. Basically, the staff has the equivalent of secret clearance. However, the clerk has asked me to prepare a security policy so that employees will know what is confidential, how to protect it and how to mark it properly.
The Chairman: Those comments raise a question for all of us, I am sure. For the purposes of our report, would it be advisable to include the measures you are considering in our recommendation to the Senate, which of course would go to the administration? It might give your work a little more authority with the employees who have raised the profile.
Mr. Gourgue: The Senate as a whole has approved the policy to which I have referred. The same thing is true of the exclusionary security management policy. I believe it will be tabled in the Internal Economy Committee for approval.
The Chairman: It will go to Internal Economy because without a question before the Senate it is an administrative issue. However, with a question before the Senate that impacts on the matter of confidentiality, which raises the issue of the confidentiality of our staff, it seems to me that we at least have a shared jurisdiction here. We should consider how it should be dealt with. I leave the point there.
I should now like to discuss the question of senators and what should be done with respect to their awareness of what their duties are, how we deal with those duties and what sanctions should be applied to senators who are found to be in breach of their confidentiality obligations. I will ask Mr. Robertson to comment on what is done in other jurisdictions, including our House of Commons.
Mr. Robertson: As you mentioned, Mr. Chairman, in recent months, the British house has had occasion to find members in contempt of the House for leaking committee documents that had not been tabled. Suspension of up to 10 days was recommended to the house and has been accepted. The difficulty in other cases has often been that it is impossible to identify the source of the leak. Thus, while they were willing to impose sanctions, they could not decide upon whom the sanction should be imposed.
Certainly there are precedents in the Australian Senate where members have been reprimanded or censured, which is not the most serious sanction although it certainly is a way of expressing the displeasure of the house and ensuring that it does not happen again. Presumably it sets a standard against which future leaks could be assessed.
The sanctions range from a reprimand to a suspension of varying lengths. In theory, the Senate has the power to imprison but that has not been used for many years. There is some question whether it would be still available and whether it would be appropriate in a leaking case, as opposed to some other kind of privilege which is perhaps of a more serious nature.
I do not know if Mr. Audcent has anything to add.
Mr. Audcent: Did we mention apology? Calling for an apology is one thing.
[Translation]
Senator Robichaud (Saint-Louis-de-Kent): Should we not give some thought to moving in the direction suggested by Senator Andreychuk? She pointed out that a red flag had been raised and that we should take certain steps to ensure that senators are well aware of the obligations and understand that their staff is their responsibility. Admittedly, there is no general policy in place and some sanctions may be warranted, but I think that this is a rather complicated issue, one that would take a great deal of time to address properly. Perhaps the committee could consider each case separately, based on the seriousness of the offence and, based on existing precedents, decide the appropriate course of action to take and the sanctions to impose on the persons found guilty of breaching the rules of confidentiality.
[English]
Senator Beaudoin: I would support that. Some of the sanctions that have been imagined in the British tradition, like imprisonment in the Tower of London, are out of date. Today that means nothing at all. Obviously, three centuries ago it made sense, but today it is laughable. Therefore, this subject of sanctions is very important. We must think about this for a few hours before having a discussion, because if is out of date we have that problem. I am sure Mr. Audcent is an expert in that. We must adapt what has been written on the question of sanctions, privileges and crimes committed by parliamentarians, et cetera, to the new millennium. We may study it, but we cannot do that in a few hours.
The Chairman: That raises the question of how to proceed. We have had a very good discussion. I am not intending to cut anyone off; however, if I may, I would suggest that we proceed first by reading the material that has been supplied by the clerk. This document is very exciting reading and deals with recent privilege cases involving leaked documents in the House of Commons, the U.K. and Australia. There are also supporting reports from the Library of Parliament which look at the proper disclosure of committee reports in the British House of Commons and in the Australian Parliament. Finally, there is a report from the Canadian Parliamentary Review, autumn 1999, by Douglas Fisher, a former member of the House of Commons, under the title "The Problem of Confidentiality of Committee Reports."
There is a large amount of material here. In the meantime, before 4:30 p.m. next Tuesday I will meet with Senator Grimard, the deputy, and Senator Pépin, and we will outline a draft report of the committee and put some options in the sanction categories. We will offer a series of options and then, when we meet next Tuesday, we will focus on discussing what options we are prepared to choose.
The committee adjourned.