Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 6 - Evidence
OTTAWA, Tuesday, February 18, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 1:02 p.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.
[English]
The Chairman: Honourable senators, this is our second meeting to discuss a package of documents 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 was prepared by Senator Donald Oliver and his House of Commons counterpart, Mr. Peter Milliken, now the Speaker of the other place.
Today, we will hear from Mr. Howard Wilson, Ethics Counsellor, and from Ms. Kathy O'Hara, Deputy Secretary to the Cabinet.
Mr. Wilson, please proceed.
Mr. Howard Wilson, Ethics Counsellor, Industry Canada: Thank you, Madam Chair. I prepared some notes that were distributed to you last week and I will touch briefly on them.
I am delighted to appear before the Standing Committee on Rules, Procedures and the Rights of Parliament on this important issue. I have attempted to tailor my brief remarks to the issues that were raised earlier during your debate in the Senate chamber, as well as during the past few days in committee.
I have been a strong supporter of a code of conduct for parliamentarians. I was the first and last witness to the Milliken-Oliver committee, first in 1995 and then in 1997. My support was based on a belief that parliamentarians would be the principal beneficiaries.
However, I did not see it as a question of trying to catch crooks. Rather, I saw it as being beneficial to members by allowing them to not only have guidance through the code on a number of matters, but also to be able — in the earlier case, the jurisconsult, now the ethics commissioner — to seek advice on matters that go beyond the legal. I certainly accept that there is not a major problem in this Parliament, in either House, about parliamentarians. You are not currently dealing with a crisis, which is perhaps one of the better moments to take a look at whether there should be a code of conduct to supplement your other rules.
You should know that, at the final meeting in 1997, when the draft code was well advanced, I said that the only reservation I had with the Milliken-Oliver Report was that I was not convinced that the need for the strong investigative powers to be given to the jurisconsult had, in fact, been demonstrated. There was not a problem, such as had been the case in the U.K, and I was concerned that these powers might create a conflict with the much more important role that I saw for the jurisconsult, now ethics commissioner, to provide confidential advice to members. I was concerned that members would be reticent to seek advice if this official could launch an investigation into their activities.
My experience over the past number of years has been that members of Parliament and senators have frequently called my office for advice on matters that were not necessarily clear cut or exclusively legal. I, of course, have no jurisdiction, but I have been happy to provide my perspective. I see this as one of the major responsibilities of the proposed ethics commissioner.
What we are actually talking about is a code of conduct that will provide for self-regulation by the legislature. I happen to think that this is critically important. It is a question of privilege for the Senate and for the House. The effect of the proposed code, which you see in front of you, would be to remove several offences from the Parliament of Canada Act. This would then ensure that Parliament, not the judiciary, would deal with the discipline of members, should it be necessary. This would re-enforce the question of the legislature being the master of its own two Houses. The separation of powers, which lies at the heart of our Constitution, must always be kept in mind; and I will come back to that point later in respect of the Prime Minister's code.
[Translation]
Let me pick up several issues that have come before the committee, and I will touch briefly on them.
On the question of spouses, I think there has been some misunderstanding of exactly what is necessary here. I happen to believe it would be found by members to be of value to have a disclosure system for spouses. It is what happens in the provinces, but it is also something with which I have had personal experience. Under the Prime Minister's code, since 1994, it has been necessary for spouses of ministers and parliamentary secretaries to make confidential disclosures to my office. I can say I have never, in that period of time, experienced any difficulties with this. In fact, the spouses have all seen the importance of this and the reasons why.
I have pointed out that the spouse is not subject to the code but nonetheless may have separate interests. This is particularly the case when the spouse may be a very active investor or pursuing his or her own career. There thus may arise situations where the minister has to take precautionary steps to avoid the possible appearance of a conflict with his or her spouse's interests. That is how it has been presented, and it has been strongly supported. As I say, I have never had a problem with this since 1994. It was understood as being valuable protection.
[English]
In 1995 and in 1997, I argued the importance of enshrining the code of conduct within a set of principles, which is what Milliken and Oliver did. From these principles, a limited set of rules and procedures could then be derived.
One of the more important procedures will deal with the question of disclosure. The experience of the provinces and of the British House of Commons has been that this procedure has proven to be useful to members in dealing with the inevitable allegations that an individual is in a conflict of interest on some matter before Parliament. As you know, the House of Lords has also rallied to this position.
In the proposal before you, you will see that the last question to arise has been that the ethics commissioner should be responsible for the parliamentary code of conduct as well as for the Prime Minister's code. You may recall that the proposal in June 2002 was that these responsibilities would be handled by two separate individuals. The question raised has been whether it is possible to combine those responsibilities in one person. Perhaps it could be done, but I do not think that the difficulties that will be caused should be underestimated. There should be no confusion on this point. This is an enormous task.
Allow me to provide a brief explanation. There would be two accountabilities for the ethics commissioner. One accountability would be to one or two parliamentary committees, either a joint committee of the Senate and the House of Commons or a committee of the House and a committee of the Senate. This individual would be dealing with 400 parliamentarians.
The other responsibility would be for the administration of the Prime Minister's conflict of interest code. The accountability of the ethics commissioner would then be to the Prime Minister. Again, for constitutional reasons, I think this is absolutely essential. I will come back to this later but it is the Prime Minister who must stand accountable to Parliament for the executive branch.
The number of public office-holders is large: There are about 1,300 full-time public office-holders and about 2,000 part-time Governor-in-Council appointees, for whom we have responsibility in the office of the Ethics Counsellor. It will be a major task, in terms of volume and the split accountability to the legislature and to the Prime Minister.
I would like to return to the constitutional importance of the accountability of the Prime Minister to Parliament for the performance of the government and its ministers. When the British House of Commons established a parliamentary code and created the position of Parliamentary Commissioner for Standards, it was made very clear that this commissioner did not have any responsibility for the ministerial code established by the Prime Minister. This is set out in explicit terms in the guide to the rules relating to the conduct of members of the British House of Commons. The language is in my paper, but it says that the Prime Minister's requirements are not enforced by the House of Commons and so are beyond the scope of this guide.
[Translation]
There is a province in this country where there is a clear understanding of the constitutional separation between the executive branch on the one hand and the legislature on the other. This is the province of Quebec. They have the position of jurisconsult which is established by the Loi sur l'Assemblée nationale. The current incumbent is a former chief of justice in Quebec. He is available to the members of the assembly to give them advice on matters where they may, in their activities, run afoul of the provisions of that Act. He gives advice that is binding on the courts if the facts are correct. The jurisconsult has no role to play with respect to ministers.
Premiers of Quebec, at least as far back as Bourassa and possibly earlier, but through Bouchard, Parizeau, and currently with Landry, have also issued directives that set out the rules that apply to members of their cabinet. It is the premier who is exclusively responsible for the administration of these.
[English]
The last point I wanted to speak on, which is not in my written comments, relates to the application of section 14 of the Parliament of Canada Act. I was able to examine this from my perspective over the course of the weekend and to study the comments made by your law clerk. There is also a proposition that some part of the Criminal Code should be repealed insofar as it applies to senators.
The proposition before you is that sections 14 and 15 of the Parliament of Canada Act be repealed. I agree with that. The history of section 14, which dates from the 1870s, bears no resemblance to the responsibilities of senators at this point in time. The idea of repealing it is to be strongly supported.
I am, however, not convinced that the proposals in your proposed code of conduct for parliamentarians, that is paragraphs 18, 19 and 20, are necessary. I find them to be most complicated. I think they did come from the Oliver- Milliken report, back in 1997, when the issue of section 14 was not what it is today. The section 14 debate, as I recall it in 1997, concerned contracts for Public Works creating a problem in the language.
You now have a legal opinion from your law clerk that suggests it is virtually impossible for any senator to take on the position of director of a commercial or charitable organization that may have some relationship with the Government of Canada without falling foul of section 14.
The great strength of this house, I think, is that members of the Senate should be able to be full participants in their communities. They should be able to practise a profession. They should be able to sit on the boards of commercial and non-commercial organizations. They should be able to engage in charitable activities. I think that would strengthen the experiences they would bring to bear in their parliamentary duties.
I think the repeal of section 14 would achieve that. However, I am not convinced that the rules being proposed in sections 18, 19 and 20 of the code would not make life as complicated as it currently is under section 14. I think circumstances have changed since 1997, and I would urge the committee to seek advice as to whether this is necessary and, if necessary, could it not be found in a much simpler form than this complicated proposed arrangement?
The last issue, however, connected with this is that I think the Senate has to be in a position where, if you repeal section 14, there is adequate protection of the public interest. That is achieved by retaining section 16 of the Parliament of Canada Act and section 119 of the Criminal Code, which your law clerk supports.
Last week you heard testimony that sections 121 and 122 of the Criminal Code clearly did not apply to senators. During that testimony, no reference was made to the unanimous Supreme Court decision in the case of Cogger, which came out in July of 1997, where the Supreme Court, in addressing the actions of a senator, did not seem troubled by the application of that section to the situation at hand. It said that, in fact, section 121(a) of the Criminal Code clearly applied. In the opinion, they said:
The wording of section 121(1)(a)(ii) is quite clear. It is also comprehensive. It is designed to prevent government officials from undertaking, for consideration, to act on another person's behalf in conducting business with the government. This is both a clear and honourable goal. Parliament has indicated that it is unacceptable for government officials to accept consideration from individuals for the purpose of conducting business with government on that party's behalf.
My view, Madam Chair, is that, with the combination of section 16 of the Parliament of Canada Act, plus these two sections of Criminal Code, the Canadian interest is fully protected and you should not have to have these other rules apply to the contractual situation.
The Chairman: Before we start into the questioning I would remind all senators that we will stick to a fairly tight timetable today. We have Mr. Wilson before us between 1 p.m. and 2 p.m. and then the Privy Council official will be before us between 2 p.m. and 3 p.m. We will hear from Mr. Audcent again from 3 p.m. on. I have been requested to end this meeting before the budget presentation in the House of Commons this afternoon, and so at 3:55 p.m. sharp, I shall close this meeting. Please govern yourselves accordingly.
Senator Wiebe: I have two quick questions. Thank you, Mr. Wilson, for being with us today. I am, of course, someone who is a strong believer in rules and an enforceable code of conduct. However, I am also a strong believer that rules and a code must be clear. Those must be written in the kind of language that we can all understand. I think that is key.
One of the concerns I have relates to the process of handling an accusation. You made the statement at the start of your remarks that a code of conduct and rules can be of particular benefit to parliamentarians, and although I agree with you, unfortunately, that is not necessarily always the case, because it is easy to make an accusation. It is quite difficult to prove it. Once an accusation has been made, it becomes the front page headline of every newspaper in the country. Someone like you then disproves the accusation and that, of course, receives a two-inch line at the bottom of page 14 in the newspaper. The damage to the parliamentarian by the accusation has already been done.
Is it conceivable that we could set up a system where the accusation is made to someone like yourself, who investigates it privately, and after investigations, the accusation and the result are made known?
Mr. Wilson: I have raised doubts as to whether or not the ethics commissioner, with respect to his or her responsibilities for parliamentarians should have such an explicit investigative responsibility. I thought that might be in conflict with the more important duty that this person will have, which will be to offer confidential advice to parliamentarians.
This is not a new view. I expressed this concern back in 1997.
The enforcement is relatively easy for a Senate committee to carry out on its own behalf; it certainly has all the powers necessary.
However, you raise the question of vexatious or frivolous accusations and I think this is a concern. My position was changed last June. If a parliamentarian were to raise a complaint about a minister, then I would be required to deal with the matter. I have had to deal with a couple of situations where there was no substance at all to the complaint, and they were disposed of quickly.
My experience in these circumstances has been that it is better to deal with the accusation in a public way than to try to do it behind closed doors. I do not think, at the end of the day, that this will prove to be in the interest of the member who has been accused. I have made a point of putting the reports that I have done on my Web site. There is a full discussion of these. Usually the result is that the individual does not end up with a damaged reputation.
Senator Wiebe: We are now looking at establishing code of conduct for members of Parliament, senators and cabinet ministers. My feeling is that we will wind up with three different sets of rules. What are the advantages or disadvantages of establishing a single set of rules that apply to everyone?
Mr. Wilson: There would be a serious problem with that. At a minimum, you would have to set the rules at the highest level, which would be the rules that would apply to ministers. I believe that would be too limiting for parliamentarians. There is a case to be made for a single set of rules for all parliamentarians, in both Houses. However, I would argue that there is no jurisdiction that does not establish more onerous rules for members of the executive branch, in recognition of the fact that they are the ones who have executive power and make the decisions. Whether you are looking at the provinces, the U.K., or Australia, there are always more rigid rules for ministers. I would not think that any of these more rigid rules would be justified for senators or members of the House of Commons. I think it would detract from your broader responsibilities as parliamentarians.
Senator Rompkey: To follow that line of questioning, at our last meeting we discussed the standards that should apply to each House. The point was made that, because senators are not elected, they should uphold a higher standard of conduct. The sanction that can be applied against members of the House of Commons is that they will not be re- elected. The power of the electorate can be held over one house but not the other. Would you care to comment on that issue?
Mr. Wilson: I take it that you are talking about very serious behaviour on the part of a senator for which there would be absolutely no public support. It might even border closely on the criminal.
I think that when the Milliken-Oliver committee looked this at in 1997, they came to the conclusion that the same code of conduct could apply to all parliamentarians. I continue to think that the principles enunciated and the simple procedures that have been recommended create a set of rules that will adequately meet any of the needs. We may, from time to time, experience members in either House whose activities will have to be sanctioned. However, I think that should be done on a one-off basis, not in anticipation that it will be a continuing problem.
Senator Rompkey: My second question is with regard to accountability, and whether one commissioner can serve both Houses. I am reminded of two quotes from the Bible, one about no man serving two masters, and the other about the multitude being enjoined to render unto Caesar the things that were Caesar's. Can one commissioner serve both Houses, or should each chamber have its own commissioner? I ask that having served in both Houses, having served on joint committees and chaired one, and knowing the differences in conduct, attitude and appointment between the two chambers. What is your comment on the appropriateness of having one commissioner serve both chambers?
Mr. Wilson: Having attended an earlier meeting of this committee and read the debate in the Senate chamber itself, it seems that some of the concern expressed was about the appointment process. There was a concern that someone appointed by a member of the executive branch might be ill-placed to serve the needs of the Senate or the House of Commons.
Part of that problem was created by the fact that, in June, there were two different jobs. One was going to be the ethics counsellor, the role that I currently have, where the Prime Minister should have a major say in who will be nominated. The other role was that of a commissioner for Parliament. It was foreseen, as I recall, that selection of an individual would be through, presumably, the unanimous agreement of both Houses. I am sure that could be achieved. That was foreseen when Senator Oliver and Mr. Milliken looked at this. Perhaps it cannot be achieved. However, I think that if you remove the executive question, it will become much easier to find a single individual who has the confidence of both Houses.
Senator Oliver: I have three questions. The first relates to the House of Lords, which you referred to in your remarks. Have you looked at the House of Lords regime of disclosure and if so, could you comment on how effective a similar regime would be for our upper chamber?
Second, you spoke strongly about the importance of spousal disclosure. One of the major concerns that a several members have expressed about spousal disclosure relates to confidentiality. Could you tell us something about your personal experience with spousal disclosure? Who finds out? How private it is? How is this information kept confidential?
The third question relates to what you call a conflict. You give advice to members, you investigate and you are involved with enforcement. You have indicated to this committee you find that is a conflict. Are you in a conflict and, if so, how do you get around performing those three functions?
Mr. Wilson: Yes, I have read the House of Lords debate and looked at their code. They differed from the House of Commons on what should be disclosed and they talked about relevant interest. When I reviewed this again on the weekend, it seemed that they had addressed the obvious issues that I would consider important for public disclosure.
That might be a fair model for the Senate.
As to the question of spousal disclosure and confidentiality, my office has been able to protect all of the information that has been given to us. Public office-holders are required to give confidential disclosure of all of their interests. There is no debate about what that is. It includes everything, only some part of which, however, ever comes into the public domain.
The legislative provisions under the Access to Information Act and the Privacy Act have been more than sufficient to ensure that I have been able to guarantee to public office-holders and their spouses that this information will not come out of my office.
Spouses of ministers believe that there is an issue, particularly those who are pursuing their own career interests. A minister cannot pretend that he or she does not know something about a spouse's interests. If they take action in a certain legislative fashion, they could be accused of trying to further their spouse's interest. The result of that has been that spouses have been more than happy to provide that information on a confidential basis. I have made it clear they are not subject to the code, but I may have to ask the minister to retrain from taking action in certain policy areas. They accept that argument, and I have never had a difficulty. I frequently receive calls from a spouse. It has worked satisfactorily, but most importantly, as the spouses of politicians, they seem to have a very quick appreciation of how important this is and where are the points of vulnerability.
That is my experience. My provincial colleagues tell me that this is exactly their experience as well.
Senator Oliver: When you have seen something in a spouse's declaration that you felt might be a problem or constitute a conflict, you have gone to the minister or the spouse and asked them to refrain from saying or doing something.
Mr. Wilson: That is correct. It is not for spouses to dispose of their interest. They are pursuing their own lives, but it may be necessary for the minister to take precautionary steps, much as he or she would do with respect to his or her own interests.
Senator Oliver: How many people in your office would see the spouse's declaration?
Mr. Wilson: We have support staff and officers. The entire office is 22 in number, because of the large number of public office-holders. However, there are only about three people who deal with the files of ministers.
You raised a question about whether I am in a conflict. The power of investigation that I now have, evolved over the course of 10 years. When I was appointed, I was available to the Prime Minister to investigate, at his request, allegations against ministers. As time went on, it evolved so that, if the claim was specific to the conflict of interest rules, I would investigate on my own without direction from the Prime Minister. He and I agreed that it was my responsibility to administer the conflict of interest rules, which is very proactive and, generally, puts the affairs of ministers in such a place that they are immune to the kinds of allegations that may be made. More recently, a parliamentarian can write to me, and several have.
The relationship that I have had over the course of the years has not so far troubled me that I may be in a conflict. I have more than adequate, and quite exuberant, cooperation from the ministers involved.
My view on this position under discussion is that the commissioner must establish a reputation. The commissioner must convince senators and members of the House of Commons that he or she is in a position to give good advice upon which they are prepared to act. That is the priority.
If there is some senator, for example, who refuses to do any disclosure, then the Senate has the powers of enforcement. You may ask that individual to disclose, but I do not see that the case has been made today that gives those investigatory powers to a person dealing with parliamentarians.
It may well be that in three years or four years you will think that you have a case to be made. You could then respond to that.
This position must demonstrate that it will be of value, so that each of you will be more than happy to telephone the individual when you have some issue that may be troubling you, knowing that you will receive quality advice in confidence. That is the priority. In the question of choice, I came down on the side of confidentiality.
Senator Oliver: You do not see yourself now as being in a conflict?
Mr. Wilson: No.
Senator Oliver: However, you would see your successor, who would do the same thing, as being in a conflict.
Mr. Wilson: No parliamentary person has been appointed. If you have a combined position, some part of that position is what I do. If you do not have a combined position, then the part that deals with public office-holders is what I do. That is expressed in the legislation.
My concern regards the investigatory powers related to the responsibilities for parliamentarians. Parliamentarians have not got the same executive authority as members of the executive branch. Questions of conflict are affected by this.
Senator Andreychuk: Mr. Wilson, you have made your case as to why parliamentarians are different from cabinet ministers or others who hold any position delegated by the government. Could you expand on why you believe in today's environment in Canada that the public does not demand that senators restrict themselves in commercial interests, particularly when those interests are before the Senate on a regular basis in one form or another?
Mr. Wilson: The Milliken-Oliver report addressed this issue in 1997 when it cited the following:
It is recognized that maintaining a wide variety of activities outside of Parliament in addition to their parliamentary duties enables Parliamentarians to reflect better the communities from which they come and to maintain their expertise in their chosen fields. Therefore, nothing in this Code is intended to prevent a Parliamentarian who is not a public office holder from:
a. engaging in employment or in the practice of a profession;
b. carrying on a business;
c. being a director, a partner, or holding an office;
That is fundamental. That concept is actually enshrined in the preamble to the Ontario legislation on conflict of interest for parliamentarians.
It is essential that parliamentarians be full members of their community. If a parliamentarian becomes a minister, then we require that he or she cease to be a director. That person cannot manage a business. Severe restrictions are placed on the investments that a minister can hold and manage. A minister cannot practice a profession. We require that because ministers must be focused exclusively on their ministerial responsibilities.
It would be a mistake to claim that that should apply to parliamentarians. The concept of Milliken-Oliver, which is captured somewhat in the draft code, is absolutely essential.
Senator Andreychuk: I understand that you put that out as a philosophical position that you believe is credible and that is supported by the previous report. However, I run into a public that feels somewhat differently. They feel that there is some obligation on senators and members not to be on boards, particularly commercial boards of directors, at the time they are serving in their offices here as senators or members of Parliament. If you believe it is all right, how do we change the perception of the public in that regard?
Mr. Wilson: You do that is by agreeing to a code of conduct for parliamentarians, and you include in that code of conduct a fairly simple disclosure process that allows people who are interested to go to a Web site and find out what the parliamentarian's interests are. When legislation is before a committee or before the chamber and a senator has a direct interest in that because of his or her corporate or non-corporate position — because the senator could be in the same position by belonging to the board of the Red Cross — then that senator should not participate in the debate.
It seems to me you achieve this by agreeing on a code and on a disclosure mechanism. Then you will be in a strong position to argue that you bring more to bear.
It is essential to note that many of you are here because of the work and activities you did before your appointments to the Senate. If we have rules that say that what brought you here can no longer be carried out — and I would not make a distinction between corporate and non-profit boards — I think that we all lose. Parliament loses. Canada loses in this. Therefore, I think that is the essential base upon which this code should be constructed.
The Chairman: I normally do not interrupt during the questioning, but one of the questions I have is a follow up to Senator Andreychuk's, so I will put it now.
When the Senate was first conceived and all these rules that we operate under were laid out, most people who were appointed to the Senate were either wealthy businessmen or wealthy farmers. Increasingly, appointments to the Senate are made to people from a variety of backgrounds, including charitable work, and some from the arts. Given the state of the arts in Canada, there is really no field of the arts that does not depend to a great extent on government support.
We have a senator right now who is appearing on the stage in Montreal. I have no idea if that particular theatre or whatever it is is being supported by government grants.
However, it seems that under this proposed code, many of our present senators, writers, actors, musicians, would be unable to partake at all in their profession, or their calling.
Mr. Wilson: That is one of the reasons that I express misgivings about sections 18, 19 and 20 of the proposed code because I think it unnecessarily complicates things, and it does not solve the critical problems of section 14 of the Parliament of Canada Act.
I urged you to seek advice on this point to see how much of it is necessary.
Senator Stratton: I would like to refer to the question that you have been discussing with Senators Milne and Andreychuk. I want to go back to a question I asked Mr. Audcent our law clerk previously.
If you serve in a voluntary position on a board of a small company that may or may not obtain funds from the federal government, through Western Economic Diversification or wherever, do you think that that is appropriate because you are not receiving remuneration for that? You are serving in a voluntary position, and they want you on the board because of your experience or whatever.
If you served in a voluntary position on a non-profit corporation, such as the United Way, do you think it is appropriate that, despite the fact they receive federal grants, it is all right to sit on those boards? It would appear we are in conflict now.
Mr. Wilson: I think the most serious problem that has been aired in the last several days relates to section 14. This rule was crafted in the 1870s when Canada was a different place, and I guess the members of the Senate were different kinds of people.
Therefore, rather than trying to craft something in a code to deal with this, I ask myself what exactly is the public damage that will be done by having a senator sitting on the board of a company that happens to be in receipt of a grant from the Government of Canada; or sitting on the board of a charitable organization that is involved. I was having a very difficult time trying to persuade myself that there was an issue here, provided that the senator was not the agent who secured the grant. As long as it was being done by the corporation on its own or by the charity, why prevent a senator from bringing his or her perspective and experience to bear on the boards of these organizations? That is why I said, yes, we should repeal section 14, but by enacting sections 18, 19 and 20, you may not have made it easier.
I said then that I thought the public interest on this matter would be adequately represented by section 16 of the Parliament of Canada Act, and sections 119 and 121 of the Criminal Code. If that is the case, I do not know that any of these other rules are necessary. Somebody may make the case that they are, but it has not been made to my satisfaction.
Senator Stratton: With respect to the appointment process, I would advocate that, if you are dealing with a system whereby you will have a series of conflict of interest rules and someone governing the examination of conflicts, that parliamentarians should have a large role to play in the selection of that individual, in that it is affecting their interests. For example, I believe in the province of British Columbia, the members of the legislature select their monitor, as it were.
Senator Carstairs made the case that this is much like the auditor general's appointment, and should be done by the Prime Minister because it is his responsibility to do so.
I could agree with you on the appointment of the Auditor General. However, this is to do with the governance of the rules of how parliamentarians operate, whereby, I believe, that it should be their process. They should be able to have input and make the selection for the Prime Minister to that appointment because it affects them. As you said, they must have faith. That individual must have the confidence of the parliamentarians. What better way to get the confidence of the parliamentarians, than to have them involved in the selection process?
Mr. Wilson: I commented earlier on this subject. The original proposition in June had two separate aspects and this was not an issue, because I do not think that people could fairly argue that the person who would administer the Prime Minister's code for public office holders would say that the Prime Minister should not have some role in that. The proposition is that a name will be presented to all the official parties. That was the process that was used in my appointment. The Prime Minister wrote to Mr. Bouchard and Mr. Manning.
I understood that the other proposal was that Parliament would then decide on who would be the ethics commissioner parliamentarians. That is how these matters proceed in the provinces. Alberta is about to make a selection. They put out an advertisement. An all-party committee is doing that.
The government made it clear that this is a draft code.
Let me not be ambiguous. I do not think anybody would accept the job of parliamentary commissioner unless they had the satisfaction of knowing that they had the strong support of parliamentarians, at least in the first week. They might not maintain that support for the duration of their appointment. My provincial colleagues have told me that they felt that they needed the assurance of full support.
The complication that was created was accidental. It arose by trying to combine these two important and complicated functions into one super person.
Senator Joyal: I wish to return to a point you made in your opening statement in relation to the issue of the separation of powers. On page 3 of your brief, at the bottom of the page, you state:
The separation of powers which lies at the heart of our constitution must always be kept in mind; a point I will come back to later with respect to the Prime Minister's Code.
I am tempted to share the view that the commissioner is responsible for the prime ministerial code of ethics.
You also outline the number of public office holders at page 6 where you state:
The number of public office holders is very large. There are about 1,300 full-time public office holders and about 2,000 part-time governor in council appointees for whom we have responsibility.
This position would seem to be a full-time job. This person holding this position would deal with the executive branch of government. Then we have Parliament, and in Parliament, we have two autonomous, independent legislative branches. My question is: Do you still share the general objective of the Milliken-Oliver report that proposed that the system we are contemplating for each House of Parliament, should be addressed in rules and not in the legislation, considering the point that you raise in your brief? This is a critical point and a question of privilege for the Senate and the House of Commons. It is clear at section 18 of the Constitution that both Houses have their own privileges and manage their own business and affairs.
As much as it is important for senators or members of the House of Commons to get the advice of an independent ethics councillor, who is not in the hands of the executive government, who is totally independent to maintain the autonomy of the legislative branch, it is important to maintain the autonomy of each House. That is the method used by the British in their House of Commons and in the House of Lords. The British have maintained a separation in their system through rules. The British evaluation report was published last November. I believe you are familiar with that report in which they re-evaluated the idea of the appointment of an ethics commissioner through statute. For the time being, they have decided to maintain their current system of the rules of the House of Commons.
Should we not return to the elements of the Milliken-Oliver report and, first, maintain the rules; and, second, maintain the autonomy of the management of ethics in each House of Parliament? Each House is responsible to it own members and each house has its own characteristics, and those are complementary to one another: The elected element versus the appointed one; and the permanent one versus the regenerated one through the electoral process. These elements are important.
You alluded to these points in your brief, but I should like to hear your comments from the perspective you have gained from exercising the responsibility that you have had over the last few years.
Mr. Wilson: We agree on the essential difference between the executive and the legislative branch of government. In regard to the question of whether each House should approach this matter in light of its own unique nature, or whether there can be a common code, as was proposed by the Milliken-Oliver report, I do not believe I am the person to respond to that point. However, I believe the legislature must establish the rules. Whether one set of rules should apply to both Houses, or whether there should be two sets of rules is something that will have to be debated. This process must be done by the legislature.
Senator Joyal: When you say "the legislature,'' that means that each house must clearly state its objectives and the way to implement it; is that correct?
Mr. Wilson: That is correct.
Senator Joyal: Mr. Wilson, did you consider the way that the United Kingdom appoints their ethics commissioner in the person of the Clerk of Parliament, and has that been dealt with in a satisfactory way?
Mr. Wilson: The British experience with the parliamentary commissioner has been unsatisfactory. They are still stumbling as to how they may ultimately resolve this issue. They have a committee on standards in public life, which sits outside, and they have made some recommendations. They did have a problem with one of the commissioners who did not have adequate internal support. He would normally have expected to have been reappointed but he was not reappointed. They have a new individual who seems to have strong support.
However it works out, the important thing is that the legislature should appoint and determine the powers of that individual.
Senator Joyal: In that context, would you support the general approach put forward in the Milliken-Oliver report that the Speaker of each House should put through the nomination after consultation with the various representatives of the parties present in the House? That is the second recommendation under the heading of "Jurisconsult,'' where it states:
After consultations with the leaders of the recognized parties in the Senate and House of Commons and such other persons as the Speakers consider advisable, the Speakers shall table a nomination in the Senate and the House...
Clearly, this would be an initiative taken by the Houses through their Speakers, after proper consultation. Is that your proposed suggestion?
Mr. Wilson: That suggestion deals with the fundamental problem that has been expressed around this table as well as in the House of Commons about the appointment process. One must address the issue of the support that this individual will require, at a minimum, in order to carry out the job. Will they be coming into a hostile position imposed on the legislature? That is hardly an auspicious way to begin an appointment.
I always thought that the proposal of Senator Oliver and Mr. Milliken was a sensible one.
Senator Joyal: An important element in the proposed bill, which will surprise my colleagues, is the right of the opposition. If there is no opposition and no capacity to trust Parliament, I do not think we have a Parliament. We have a Parliament dominated by the majority that sets the rules. I do not think the interests of Canadians are well served when their diversity of opinion is not expressed in Parliament. I do not think we want to establish a commissioner who would be a government appointee who would look after the opposition, especially in the Senate where everyone is equal. We do not distinguish on the basis of status and senators individually must be convinced that they will receive the most objective advice when they want to put their house in order to meet the standards of the code of ethics.
Mr. Wilson: I agree with that.
The Chairman: Mr. Wilson, you do not seem to have a very strong opinion as to whether there should be one commissioner for the two different Houses of Parliament or each House should have its own commissioner. Do you have a personal preference?
Mr. Wilson: If it is possible for both Houses to agree on a single individual, I think there would be some advantages to that. I think the appointment process would create the problem. If you get that out of the way, you may be able to rally to an individual who would be able to benefit from the experience here as well as in the House of Commons in order to be of greater service to all parliamentarians.
That should be your first attempt.
The Chairman: I foresee problems if there are two commissioners, particularly for the one member of the Senate who is also a member of the government and would have to answer to both commissioners. What if they disagreed in their opinion on something?
Mr. Wilson: You are talking about two commissioners for parliamentarians?
The Chairman: That is right.
Mr. Wilson: There is then also the responsibility for the executive branch. The Milliken-Oliver report said that the Prime Minister's code would prevail. That language is found in their report and in the proposed code. The idea, as I understand it, is that all parliamentarians would be subject to whatever Parliament agrees to for parliamentarians.
Those who are members of the cabinet would be subject to additional requirements that would be added to those, but if there were a dispute, the Prime Minister's code would prevail. That language is here and it is in my written statement.
Senator Smith: On this issue of whether there should be one commissioner or two, I will tell you my dilemma and invite your response. My initial reaction would be that each House should have its own for the reasons that Senator Rompkey stated when he quoted the bible with regard to no man being able to serve two masters. That is simple and fairly true.
However, I think we have a responsibility to the public to be cost effective. When you read that no complaint can even be looked at unless it is raised by a fellow member of that House, people will not cross that line too quickly and I am wondering whether one commissioner would be really busy, let alone two.
Based on your knowledge of people in similar positions, do they keep themselves occupied in worthwhile public endeavours when the circumstances under which they can even prepare a report are as restrictive as that?
Mr. Wilson: The person who would look after the Prime Minister's code would have lots to do. I think you should try to have one individual to serve both Houses. With 400 parliamentarians, one individual would have a lot to do. The Parliament of Canada is four times the size of the largest provincial legislature, and I know that my Ontario colleague keeps himself pretty busy.
The other practical thing is that every one of you, if you have an issue, will expect to get a telephone call back from that individual within 15 or 20 minutes, and there are 400 of you. I think the commissioner would be gainfully employed.
The Chairman: Thank you very much, Mr. Wilson for appearing before us today.
Honourable senators, we will now hear from Ms. Kathy O'Hara, Deputy Secretary to the Cabinet. Since we do not know who the other three people at the table are, perhaps Ms. O'Hara will introduce her colleagues.
Ms. Kathy O'Hara, Deputy Secretary to the Cabinet, Privy Council Office: I would like to introduce Linda Gobeil, Assistant Secretary, Machinery of Government, and Mr. Mitch Bloom, who also works in the Machinery of Government Secretariat. Also with us is Mr. Ron Wall, who works in the Legislation and House Planning Secretariat in Privy Council Office.
The Chairman: Please proceed with your presentation.
Ms. O'Hara: Madam Chair, honourable senators, thank you for inviting me to appear before the committee to discuss the draft Ethics Commissioner bill and the draft proposals for a code of conduct for parliamentarians.
[Translation]
As was indicated by Senator Carstairs, a draft of these documents has been handed out to you to get your input. I intend to review briefly the content of these documents, after which I will answer you questions.
[English]
Turning to the draft ethics commissioner bill, the document proposes to amend the Parliament of Canada Act and a number of other acts consequentially.
The first provisions are administration provisions, sections 72.1 through 72.4 and they deal with the position of the ethics commissioner and the administrative elements of his or her office. Key aspects of these provisions includes the fact that the process for appointing the commissioner would be the same as that used for the Auditor General. In addition, under House Standing Order 111.1, the proposed nominee would be referred to a standing committee and then a motion would be brought forward to the House for the nominee's appointment that would be subject to a vote without debate or amendment.
The commissioner would only be appointed to a single, non-renewable, five-year term and could not be removed, except for cause, on address of the Senate and the House. This clause is similar to that used for other agents of Parliament and is intended to help ensure the incumbent's independence.
The office of the ethics commissioner would join the Senate, House of Commons and the Library of Parliament as one of four Parliamentary entities. Moreover, the commissioner would have full control over the management and administration of the office, providing the ethics commissioner with the same organizational powers and latitude as other agents of Parliament.
The next section deals with the commissioner's functions in relation to parliamentarians. Section 72.5 deals with these functions. In particular, you would note that, acting under the auspices of Parliament, the commissioner's duties and function in relation to the conduct of parliamentarians would be assigned by the House and the Senate. Further, those responsibilities would be carried out under the direction of one or more parliamentary committees. Those provisions in that section would allow the commissioner to administer the code of conduct for parliamentarians.
The proposed bill then turns to the commissioner's functions in relation to public office-holders because, in addition to his or her work related to the code for parliamentarians, as you know, the ethics commissioner would take on the responsibilities in relation to public office-holders that are currently being handled by the Ethics Counsellor. This means that, along with supporting over 400 parliamentarians in complying with the parliamentary code, the commissioner would deal with over 3,000 public office-holders who are subject to the Prime Minister's conflict of interest and post-employment code for public office-holders, including ministers, secretaries of state, parliamentary secretaries, deputy ministers and Governor-in-Council appointments.
Key aspects of the ethics commissioner's responsibilities in relation to the public office-holders include the following. They are administering the Prime Minister's code of conduct; providing confidential advice to the Prime Minister on ethical issues and on his code and its application; and providing confidential advice to public office-holders to assist them in complying with the Prime Minister's code.
Section 72.7 provides a mechanism for parliamentarians to file a complaint with the commissioner about a minister or a secretary of state. This process provides that the ethics commissioner must always prepare a report as a result of a request from a parliamentarian, including when the commissioner decides to discontinue his or her examination. That report must be provided at the same time to the Prime Minister, the parliamentarian who made the request, the person who was the subject of the request, and to the public. Finally, the report would set out the facts in question, provide an analysis of the facts and include the ethics commissioner's conclusion.
Section 72.8 lays out the investigative powers of the ethics commissioner, which are exactly the same as those provided to the Auditor General. They include summoning witnesses and compelling them to give evidence orally or in writing; the power to compel someone to produce documents; and the ability to issue and enforce a subpoena.
These powers could be exercised independently and could be called upon in the course of providing advice to the Prime Minister or in looking at ministerial conduct as a result of a request from a parliamentarian.
Section 72.9(1) would require the commissioner to prepare an annual report three months after the end of each fiscal year. That report would be provided to the Speakers who would table it directly in their respective chambers.
I turn now to the parliamentary code of conduct.
[Translation]
I would now like to talk to you about draft rules for an ethics code for parliamentarians. It is essentially the Oliver- Milliken report translated into a series of rules that could be included in the Rules of the Senate or the Standing Orders of the House of Commons.
[English]
In the briefing books provided by the government to the committee you will find under Tab E a document entitled, "Comments on Technical Changes to implement the 1997 Milliken-Oliver Report...'' This document lists the deviations from the Oliver-Milliken code in the proposed parliamentary code. These deviations reflect an updating of definitions to conform with changes since 1997 or provisions in statutes such as the Income Tax Act.
In addition, as the Leader of the Government in the Senate has indicated, three significant modifications have been put forward for the consideration of parliamentarians. One deals with a single ethics commissioner responsible for both ministerial and parliamentary ethics issue; the second relates to spousal disclosure; and the third to the reporting by the House commissioner to separate Senate and House committees rather than a joint committee.
I would like to explain briefly the provisions of the draft code. First, section 3 outlines the principles, which are taken from the Oliver-Milliken code.
Section 5 stipulates that the code is intended to apply to members of the Senate and the House of Commons. This follows the intent of the Milliken-Oliver report that a common base of rules would be important for both Houses. Of course, each House could adopt additional rules specific to its own circumstance.
Section 6 is based on the Oliver-Milliken report's intent to provide basic standards for all parliamentarians, including ministers. As you know, the Oliver-Milliken code also recognized that the Prime Minister would have additional standards for ministers, secretaries of state and parliamentary secretaries, as is the case in the United Kingdom.
Section 9 recognizes that parliamentarians may wish to participate in activities outside Parliament. The only restriction is that these outside activities must not conflict with obligations under the proposed code.
Section 10 addresses the concerns expressed by some parliamentarians concerning judicial intervention. This section specifies that nothing in the code affects Parliament's privileges, immunities and powers. This duplicates a similar provision in the Parliament of Canada Act, section 80(3), where it was also determined to be necessary.
The rules of conduct are outlined in sections 11 to 27. Section 11 is based on the traditional parliamentary conflict of interest practice that a parliamentarian must not profit from their position, and this includes the parliamentarian's family.
Section 12 provides a general rule against using public office to further private interests.
Section 13 prohibits a parliamentarian from personally benefitting or using his or her office to improperly benefit another person. This provision is similar to that found in most Canadian provincial rules.
Section 14 is based on existing House and Senate rules. Parliamentarians who may have a conflict of interest regarding matters before a committee or a House can declare this before and seek the ethics commissioner's advice on whether to participate further in parliamentary consideration of a matter.
The Milliken-Oliver report proposed a provision such as section 15 which would replace House standing order 21 and Senate rules 65(4) and 94 which all deal with voting on questions where a parliamentarian has a pecuniary interest.
Section 16 specifies that gifts and personal benefits must be refused except for those that are normally provided and could not or need not be refused. This provision will ensure transparency.
Section 17 requires the disclosure of sponsored travel exceeding $250 to the ethics commissioner.
Sections 18 to 20 follow the intent of the Oliver-Milliken report which recommended repealing the contract sections of the Parliament of Canada Act and replacing them with provisions in a code. Section 18 prohibits a parliamentarian from knowingly being a party to a contract with the Government of Canada. Section 19 prohibits having an interest in a partnership or private corporation that contracts with the government. Section 20 exempts only previously existing contracts but not extensions.
The Oliver-Milliken code recommended a confidential disclosure statement be filed with the ethics commissioner. Section 21 provides those rules.
A change from the Oliver-Milliken code is the removal of the spousal and dependant disclosure requirement. In 1997, spousal disclosure was a major concern on both sides of both Houses. For this reason, the government decided that spousal disclosure is neither necessary nor desirable at this time.
This is not to say that spouses and dependants can circumvent the code. Section 26 prohibits evasion and sections 11 through 14 of the proposed code deal with conflict of interest, which extends to family members.
Section 22 outlines the type of information to be disclosed in the confidential disclosure statement. The intention of this provision is for parliamentarians to deal on a proactive basis with foreseeable conflicts and to declare others as they arise.
Section 24 adopts the model used in many provinces and provides for the ethics commissioner to prepare a disclosure summary. As in most provinces, the nature but not value of financial interests would be publicly disclosed.
Section 26 prevents a Parliamentarian from transferring an interest, thereby taking it out of the scope of the disclosure regime.
Section 27 allows a parliamentarian to request an opinion from the ethics commissioner in respect of the code. Assuming all facts are disclosed, the opinion would be binding on the commissioner.
Sections 28 to 30 refer to the establishment or designation of a committee of the Senate and a committee of the House of Commons or a joint committee. This proposal would allow each House to be responsible for matters related to the code for its own members, if Parliament so chooses. This would be consistent with the tradition that each House is responsible for its own affairs.
Sections 31 to 34 establish a complaint process. The Milliken-Oliver report had proposed that a complaint could be made by either a Parliamentarian or by a member of the public. The draft code before you proposes that the ethics commissioner would receive a complaint only from a parliamentarian and that complaint could only come from a parliamentarian belonging to the same House. Again, this would be consistent with the tradition that each House would be responsible for its own affairs.
At the end of the code, there are some general provisions. Sections 35 to 39 are all found in the Milliken-Oliver recommendations. Committee proceedings would be held in camera due to the nature of information being presented. The ethics commissioner, with the approval of the committee, could make rules for administering the code. Timelines would be imposed for the retention of documents and files after a parliamentarian's departure from public office. The ethics commissioner and either committee could undertake general educational activities for parliamentarians and the public. The last provision of the code states that it would be permanently referred to the committee.
That concludes my presentation. I am certainly ready to respond to questions. I would note that some of my colleagues here are the technical experts on this issue so, from time to time, I will ask them to respond to your questions.
The Chairman: Thank you, Ms. O'Hara, for that clear walk-through of the proposed changes. It may be particularly valuable for anyone who may be watching this presentation on television and has not had the advantage of seeing the documentation that is before us.
I come back to the part of your presentation that dealt with sections 18 to 20. I believe that you suggested that it is much stronger than it is currently drafted. Is that so? Has it changed? Why are you implying that it would actually be stronger than it is?
Ms. O'Hara: Essentially, we took the provisions of the Milliken-Oliver report. I did not intend to imply that it would be stronger than that. They are exactly the same provisions.
The Chairman: What is the Privy Council Office's intent in respect of the changing nature of the Senate and in view of the fact that we have more senators involved in the arts and the arts community which depends on government support? Do you have any intention to add — or should we add — special provisions so that they may continue to practise their talent?
Ms. O'Hara: As you know, this is a draft and its intent is to allow for changes to any of the provisions, as required, for modification or for update. That would be the intent of this Senate committee.
The Chairman: Do you have any suggestions?
Ms. O'Hara: It is not an issue that we looked closely at when we drafted these proposed changes. Mainly, we looked to the content of the Milliken-Oliver report. I think we would be quite open to ideas from the Senate in respect of amendments that may be required or more precise drafting of the proposed changes.
Senator Joyal: Welcome, Ms. O'Hara. You presented the proposed changes as being "the position of the ethics commissioner who will be responsible for everyone.'' According to your statement, about 3,500 people would be subject to his or her investigation. That means there would be an office containing archives — probably with the Privy Council — that would hold the files of senators, of MPs, of ministers and of all the Governor-in-Council appointees.
Personally, I have reservations about accepting that, as a legislator with the responsibility to give independent advice on government legislation and to scrutinize the government, my file would be in the Privy Council Office. I have great reservations about that. I am a legislator and my peers should judge my ethics on the basis of a set of rules. I would not like to see my files leave the Senate and be sent to the Privy Council Office, which is the department of whoever the Prime Minister of the day may be. It could be a prime minister of my party or it could be a prime minister of another party. I would not like to see that file in the hands of any prime minister. That is my first point.
The proposal, as stated, is just that — it is proposed draft legislation. It is constitutionally confused in respect of the proper separation of the status in our Constitution. The way that it is approached, especially in consideration of your comment on page 15 of your brief, would be consistent with the tradition that each House is responsible for its own affairs.
However, it is not a tradition, it is a constitutional principle. It is not the way of doing things simply because we have always done it that way and it suits our purposes. Rather, it is a constitutional principle that each House remains independent. If you read the statement of the Fathers of Confederation, you would note quite clearly that both Houses have to enjoy the same privileges as the British House of Commons enjoyed in 1867.
It is clearly stated that any legislation to be enacted needs the advice and consent of each House. This is a fundamental principle.
When we draft an ethics code — an ethics system for a House of Parliament — we cannot confuse the two Houses, and we cannot confuse the executive and the legislative functions. As much as I am for the fair implementation of strong ethics rules for legislators and, in particular, for senators, I think that confusing everything — as the draft proposals do — will not serve the purpose of better government. In fact, it will submit to the executive branch of government that we are complaining because it has too much influence over the other House, an additional control over the mechanism of ethics and reliability of each House of Parliament, especially in relation to what we had as a reference to the previous systems of ethics. I think it is wrong to import a provincial government system into the federal Parliament. Not a single provincial government operates on a bicameral basis and that must be reflected in any system we adopt. In listening to you and on reading the proposed bill, I do not feel is an obvious consideration. Would you comment on this?
Ms. O'Hara: Yes. In response to your first point, you will be happy to hear that the files would not be held in the Privy Council Office. In fact, the ethics commissioner would be an officer of Parliament, so the files would be part of an office of Parliament. The files in fact would be with Parliament. This particular officer of Parliament would not be subject to the Access to Information Act. That would not be an issue. These are not PCO files; these are Parliament's files. That is true for all the files, including the files of the public office-holders and parliamentarians.
On your second point, dealing with constitutional distinctions and mixing up the executive and the legislature, the proposal is based on the Milliken-Oliver report, which did not make a distinction between the House and the Senate in its recommendations. We adopted that approach.
There was, however, consideration of the practicalities of administering the same code, the notion of having common standards between the two houses and, in particular, avoiding duplication by having to have separate offices for the House and for the Senate. There was the sense that it was a workable model while recognizing, as you point out, that some important constitutional distinctions would have to be acknowledged. As the ethics commission performed his or her role, the traditions of both the House and Senate would have to be recognized.
With respect to the mixing of the executive and the legislative branches, again, the sense was that both responsibilities could be combined in one role. The bill tries to articulate the very clear differences. In drafting this proposed bill, we were quite conscious of the fact that this person would be wearing two hats, and maybe even three, frankly.
There can always be improvements to the bill has drafted to try to clarify not only what code applies when the commissioner wears a certain hat, but also what the responsibilities are when the commissioner is wearing a particular hat at a particular time. The proposal to combine the two that has been put forward, was largely based on the reading of the Milliken-Oliver report.
Senator Joyal: We heard from Mr. Wilson, the Ethics Counsellor. Without stating it in absolute terms, I would say that he was favouring splitting the two responsibilities. I feel that he is the best witness we can have in that he has had practical experience in the past years. He realizes that the elements of political pressure lie more in the hands of ministers, and of other government appointees rather than in the hands of average members of Parliament and average senators.
As Senator Milne mentioned the Senate is no longer composed of only rich guys, of bankers and of financial institution representatives. The Senate membership is quite diversified and represents all walks of life in Canada. Average senators are like average Canadians. The Senate is no more the exclusive privileges group reserved for affluent and well-to-do people.
On the basis of what Mr. Wilson mentioned, it is important that there be a clear distinction in the duties of the ethics commissioner when dealing with ministerial conduct and the code of ethics. We recognize that, if the government changes after five years, the government can change the appointee.
The Senate, however, is the stable element of Parliament. It undergoes a continuous, permanent element of renewal. We do not want to be subjected to a new ethics commissioner every five years because the government of the day changes and it wants to trust the ethics commissioner. The new government will not want to be subjected to an ethics commissioner who was appointed by the previous government and who may embarrass the Prime Minister. The Prime Minister will not want to be embarrassed by an ethics commissioner not of his stripe.
Senators will want the ethics commissioner to be independently responsible to the Senate. The element of trust is extremely important. Each one of us must feel free to consult that person and to disclose personal and financial details. Our spouses may even come under the proposed code. The consultation process is rather like going to confession. If, in six months, I remarried, I would have to phone the ethics commissioner and report my new circumstances. The commissioner must be over and above any political suspicion. As the duties of the commissioner are currently framed, I do not feel confident that I will be able to completely trust that person. The more we trust the person, the more efficient the system. If we suspect the ethics commissioner might be biased, there will be problems.
Ms. O'Hara: There are advantages and disadvantages to the one-person model, the two-person model, and the three-person model. It is important for this committee to consider those.
The tenure issue, is clearly a disadvantage of the one-person model for the reasons that you have raised, senator.
The Chairman: I wish to ask a follow-up question that particular point. You have said that all these files will be held in the office of the ethics commissioner, who will be an officer of Parliament. How can the files of a high level bureaucrat or Privy Council appointee suddenly become parliamentary? It seems to me that that is not a proper spot for some of these files to be held. It makes no sense because these people are part of the executive branch, not the parliamentary branch. It is completely different, completely separate. Does that mean that we come back, then, to what Mr. Wilson seemed to prefer, namely, to have a separate commissioner for the Prime Minister's code?
Ms. O'Hara: This is similar to the tenure issue. It is another of the disadvantages of trying to combine the two functions into one, namely, that you must then deal with separate registries. As you said, the public office-holders would not physically be in Parliament necessarily, but it would require this person who is wearing two or three hats to be managing two separate registries for separate populations. That is one of the disadvantages. There are administrative advantages to combining things, but there are also practical disadvantages. These are several examples of the disadvantages of this approach.
Senator Smith: When you say "administrative advantages,'' that almost suggests that you have a control freak in charge of everything, which is exactly what we are concerned about. Without even getting into where the files will be kept and whether there will be a separate commissioner for the House and for the Senate, I think the separation between the legislative branch and the administrative branch is so fundamental that it is a hurdle that cannot be overcome. People will not have confidence that you can wear both those hats.
I want to go back for a second to a point Senator Milne touched on. Were you here today when Mr. Wilson made his presentation?
Ms. O'Hara: Just for the last 15 minutes, but I read his presentation, so I am familiar with it.
Senator Smith: He expressed grave reservations about the need for sections 18, 19 and 20. Did you hear that?
Ms. O'Hara: I did not.
Senator Smith: I am sure you will be reviewing the transcript, but were you aware, when this was being put together, of Mr. Wilson's reservations about including those sections?
Ms. O'Hara: No. As I mentioned before, we essentially used what was in the Milliken-Oliver report, so certain reservations may have surfaced since the report was drafted. However, I can certainly follow up on that.
Senator Smith: Senator Milne raised the issue of artists and people who work with various charities. I want to come at it from another angle that is based on some years of experience. I literally spent a year of my life travelling from coast-to-coast during the 1965 election when Keith Davey and I were working together for Mr. Pearson. I was pretty young, needless to say, but ever since then I have been involved in national campaigns and I have chaired a number of them. It is becoming more and more difficult to recruit the best and the brightest, not just from the cultural community, but from the business community, from academe, from the professions, to go into public life and run for office. The more we make it seem like you have to be a Benedictine monk and put on a hair shirt every morning, the more difficult it will become.
Many people have told me that they have a sense of public duty and a desire to see the system work, but the more you put people in straitjackets, the less attractive public life will be to those people. When I read this proposal that is before us I must ask whether the adoption of this code would mean that a professor, who teaches a part-time course at a university that receives government grants, would have a conflict of interest. If that is so, this is idiocy.
I think Mr. Wilson raised a credible point, as has Senator Milne. I am tossing in another angle on the same point. Whether it is the cultural world, the academic world, the professional world or the business world, the key here is transparency — that everyone knows; it is an open book. Ministers are something different. I have lived that life. Nobody puts a bazooka to your head and makes you accept a cabinet position; but if you do, certain duties and responsibilities go with it. This is more of a little sermon — that is too strong a word, but a bearing of the soul — to which I invite to you respond, if you care to. If you do not care to, I can understand that as well.
Ms. O'Hara: As I said before, clearly this is an area where we would expect to see recommendations from this committee. In the meantime, I can follow up with my colleague, Mr. Wilson, and we can look at his concerns about these sections.
[Translation]
Senator Pépin: My question is similar to Senator Joyal's concerning all the problems an ethics commissioner would have if we had to different registers for senators and members of Parliament.
The commissioner would do all this work within a five-year term of office. With all these parliamentarians and two different registers, the commissioner could not be fully efficient in his or her work before the third year in his term, which would last five years and could not be renewed.
Do you not think this term of office is a bit short?
[English]
Ms. O'Hara: You raise two very good points. The intent was, as someone has already mentioned, to try to match the electoral cycle. It has been pointed out why that will not work in this place; and I think you are pointing out another one of the problems with that period of time. This is another area where I would point out that the proposal varies from the Milliken-Oliver proposal, which was for a seven-year term and, as you say, renewable.
The Chairman: That is a valid point, because five years is pretty close to what a term of a Parliament might be. If the commissioner were replaced every five years, you would have a brand new commissioner starting out with a new group of members of Parliament and it would be quite chaotic. The length of the term is important.
Senator Rompkey: I want to raise the issue of spousal disclosure. I remember when John Crosbie was in cabinet, and the question of spousal disclosure arose. Jane Crosbie, his wife, did not exactly quote Sheila Copps who, in another context and another forum, said she was nobody's baby. Jane admitted that she was John's baby but that she was quite an independent baby. She not only had a mind of her own, she had a life and career of her own and there was no way she would be associated with John's disclosure.
You have recommended that spousal disclosure is neither necessary nor desirable, and you will probably tell me that is based on Milliken-Oliver.
Ms. O'Hara: No.
Senator Rompkey: Is it not based on Milliken-Oliver? The House of Commons committee has said that any regime for members of the House of Commons should include a system of spousal disclosure. Mr. Wilson has just finished telling us that a spouse really likes this, that they appreciate having the opportunity to disclose and that it is a benefit for them.
I just wanted to you comment on the pros and cons of spousal disclosure. Should we or should we not have that?
Ms. O'Hara: I will not comment on whether we should or should not. The government has put forward a draft proposal that does not, as you say, include provisions for spousal disclosure. It is one of the rare exceptions in the proposal that is different from the Milliken-Oliver proposals.
Mr. Wilson pointed out that this has not created a problem for him. As I understand it, his counterparts in the provinces make exactly the same point, that it has not created a problem for them either. It has not been an issue.
The expectation was that, when we put forward this draft proposal, this was one of the areas that would probably receive the most intense scrutiny from both the House and the Senate. It sounds like that is exactly what has happened.
From my point of view, I would welcome the recommendations of the House and the Senate in this area.
Senator Rompkey: It seems to me, though, it is not a matter of whether it creates a problem or does not create a problem, or whether it is a benefit or not, or whether it is satisfying or not, it is a question of rights. It seems to me that is the basis on which we should be approaching it, on basis of rights. These are the rules. We recently changed the name of this committee to include "Rights.'' We will be talking about the rights of parliamentarians. Presumably, we should be talking about the rights of parliamentary spouses as well.
The Chairman: The draft before us presently excludes spouses, but I understand that the committee in the other place is grappling with this issue and is probably going to include spouses. Perhaps a middle ground would be to have the same sort of disclosure for spouses that apply to ministers' spouses. I understand that ministers' spouses must disclose their holdings to the commissioner, but that list of holdings never comes into the public domain.
Ms. O'Hara: I also understand that the House is looking at the issue and that it is also considering exactly that question, that is, if they were to recommend adding spousal disclosure, how should it be defined? As you say, one option would be to adopt the approach that is used for ministers' spouses.
[Translation]
Senator Pépin: If a spouse makes a statement and the commissioner decides there is a conflict of interests, will her interests be defended by her or by the parliamentarian?
[English]
Ms. O'Hara: No, it would be the parliamentarian. I suspect Mr. Wilson is probably in the best position to describe how he has done this in the past, but the code applies to the parliamentarian.
[Translation]
Senator Pépin: If she is the one having a difficulty, she should at least be able to appear with the parliamentarian, because she is the one involved. If I am married, I would like to be able to state my views, especially if I am the one with a conflict of interests.
[English]
The Chairman: A spouse would not be in a conflict of interest, because he or she would have no relationship to Parliament. It would be the elected person or the appointed person who would be in a conflict of interest situation. I understand the provinces get around this by having the member of the provincial legislature handle the disclosure for his or her spouse.
Are there any further questions?
Senator Stratton: Briefly, I have a problem when we talk about a single commissioner, given the fact that there are 300-odd parliamentarians and 100-odd senators. It appears obvious that the domination of the House would overcome any observations that the Senate may make. For that reason, I have a great concern, because we often approach issues from quite different directions and philosophies.
How would you overcome that perception? Privately, I asked Mr. Wilson that same question, and he did not have a response. He did not know how to deal with that issue of domination by virtually a three-to-one ratio — much like the Senate is now. Would you care to respond to that?
Ms. O'Hara: In terms of domination, it would actually be worse because that same person would be wearing a third hat, with over 3,000 public office-holders. In fact, the Senate would be the smallest of the three populations with which the ethics commissioner would have to deal. I think this discussion has demonstrated that trying to balance all of that would likely create difficulties for the ethics commissioner.
Senator Joyal: I would like to come back to the issue of spousal disclosure because it raises important issues in relation to the Charter. We have changed our approach. The husband, in terms of assets and property, no longer dominates the wife. As you know, this was the underlying concept of the Quebec Civil Code for centuries. That has completely totally and both partners are equal before the law, as long as they are legally married.
However, the Supreme Court came down with a decision in January, a decision that I would like you to review and discuss with us later. In what I believe was a Nova Scotia case, the court ruled that people living in a common-law relationship cannot pretend to have the same rights as people living in a legal marriage relationship. This, to me, is meaningful.
When I decide, as a citizen, to legally marry, I proclaim that the person I am marrying is the person I am uniting with in my life. This commitment is fully sanctioned by law. When I decide to live in a common-law relationship, the situation is different. The Supreme Court has recognized that. I do not have the same rights, and the same obligations, as if I were in a legal relationship. That is pretty clear.
There is a corollary position to that: if you live in a same sex relationship, you cannot go through, for the time being, a legal marriage.
This to me is very important, because in the life of a parliamentarian, status changes. Someone who was married could get divorced and live in a common-law situation; or live in a common-law situation and then get married. Parliamentarians are no different from general Canadian society. They are an exact reflection of Canadian society, in every proportion.
I believe that the issue of spousal disclosure has to reflect that. It is expected that legislators will remain above suspicion. If they try to hide something, I think that the proposal made in the draft code, section 26 and sections 11 to 14, addresses the issue in a more contemporary way. They state that you cannot do indirectly what you should not do directly.
There is no question that, if a member, a senator or a minister tries to hide something or have his partner benefit from something, it is not proper, whatever the obligation to declare spousal assets may or may not be.
I think there is a way to assure the public, recognizing the particular context in which we live. As Senator Pépin has stated, we are now in a different spousal relationship in terms of equality. We have the equality of sexes in the Charter, which must be reflected properly in the way Canadians decide to unite, and the form they will give to that union with another person.
The Chairman: It might be valuable for this committee if Ms. O'Hara could give to us, in written form, some suggestions on this particular matter. It is very important, and I think are you absolutely right, Senator Joyal, that this decision will be very difficult to alter. It is a well-written decision.
Senator Joyal: It might be helpful to include a definition of spouse.
The Chairman: How can we broaden the definition of spouse? There is absolutely no doubt that anyone in a common-law relationship is just as likely to have influence, one way or another, with his or her partner as is someone in what is now called a marriage.
Ms. O'Hara: We would be happy to do that, because this is clearly, as the senator points out, an area we will have to consider in the final bill.
The Chairman: If there are no further questions, I would ask Mr. Audcent, Law Clerk and Parliamentary Counsel, to come forward.
Mr. Mark Audcent, Law Clerk and Parliamentary Counsel, Senate of Canada: Honourable senators, I will begin by reminding you of the essential points I made during our previous discussion. My fundamental use to you is to explain the existing regime. That is the expertise that I have.
I made the point to you that I do support reform of the existing regime. It is no longer serving you well. I also made the point that, if you were to adopt a new regime, you should bring in the new, but you must get rid of the old. I was pleased to hear Mr. Wilson agree with me that we should get rid of sections 14 and 15, as is proposed to you. I was also pleased to hear him follow up on my invitation to you to look at the reproduction of section 14 in the internal code of conduct, which is reproduced in different rules with different terms. He suggested to you that perhaps it is too much. I had invited you to look at that question. I was pleased with that support.
Mr. Wilson did not support my suggestion to you that section 16 be removed from the Parliament of Canada Act, and that parliamentarians be subtracted from sections 121 and 122 of the Criminal Code. That does not in any way affect my recommendation to you that this is what you should do. He said that the public interest required those provisions. I have no problem with the prohibitions, but I do have a problem with the location of the prohibitions. Why do you need that prohibition in the Parliament of Canada Act? If you are to have a new code, why would that prohibition not be put into the code and enforced by the mechanisms in the code? I do not think that Mr. Wilson and I disagree. Perhaps, I had not made clear my concern that it is not the fact that there is a prohibition; it is where the prohibition is placed. You will have two regimes under which you will be answerable to an ethics commissioner and you will be answerable to the courts. I do not see why that is necessary.
My point with respect to sections 121 and 122 of the Criminal Code is that the law has been perverted in the sense that you were never intended to be fonctionnaires or officials. Mr. Wilson made the point that, in the final decision in Cogger, the court made the finding that you are fonctionnaires or officials. It had been implied in Giguère. I would urge you to look at the policy, to look at the history behind the policy, and to look at the language and ask yourselves: "Was that the intention of our predecessor parliamentarians?'' If you agree with me, that it was not the intention of your predecessor parliamentarians and that this is not serving good public policy, then why would you leave those provisions applicable to you? They cause all kinds of problems.
That is a review of my initial presentation.
In the question and answer period on that day, the question of how the existing regime applies to spouses was raised. I refreshed my memory on that question. I would draw your attention to Supreme Court of Canada case of Angrignon v. Bonnier, a 1934 decision of the Supreme Court of Canada. The language governing the city of Montreal was similar to our section 14 of today. Mr. Angrignon was an alderman for the City of Montreal. He proposed leasing a property he owned to the chief of police. He then transferred the property to his daughter, taking back a mortgage for the full purchase price. The daughter entered into a lease with the city, and she used the rental cheques to pay down the mortgage.
The prohibition was, if he was directly or indirectly party to a contract, or directly or indirectly interested in a contract with the city, he would be in a breach. You can recognize the similarity of the language.
The court held that the alderman was disqualified, because he was directly or indirectly interested in the lease between his daughter and the city. The court found that these words did not have a technical meaning. Your language is "concerned in,'' and their language was "interested in,'' but it is much the same.
The courts found that the sale to the daughter was real, it was not a simulation, but the alderman had an interest because, in concert with the daughter, there was an understanding that the rental cheques would pay the mortgage, the debt to him. That was the interest.
We can draw some lessons from that. You can be concerned in or interested in a contract through a daughter or family member, therefore, through a spouse, but you probably need something in addition to just being related. In that particular case, it was not the fact that it was the daughter who was involved; it was the fact it was the daughter plus the understanding, the agreement, the concert. You probably need a little bit more.
That raises the question about a spouse's interest. Property laws vary from province to province. However, one of the general principles seems to be that you have an inchoate interest in your spouse's property, without having a real interest, during the time of the marriage. That raises the question of how far you have an interest in the spouse's interest.
Finally, it raises the question of whether you can have a double indirect. If you are interested in something through your spouse and your spouse is interested in the contracts of a company, are you interested in the contracts of a company?
These are more questions than answers. I cannot point to answers. I can point to the existing jurisprudence and raise the questions about which senators have to use their judgment in the existing regime.
You also raised the issue of parliamentary privilege. There are some authorities I can draw to your attention there. One is a 1990 case called Rost v. Edwards and Others, United Kingdom, Queen's Bench Division. In that particular case, an MP was suing a newspaper, alleging that he had lost his chance to be a committee member and to be a committee chair based on an article that had been written about him. The court held that the appointments were inside Parliament and the court could not look at that, so we know that is privileged. The court also held that the registers of members' interests did not fall within the meanings of the words "proceedings in Parliament.'' Registers, in the absence of doing something about it, do not fall within that meeting.
In the draft proposal before you, there is a line saying that with respect to the parliamentary side of the ethics commissioner's functions, they take place within the institution of Parliament. You will need to ask yourselves if that is adequate language. Keep in mind that the privileges, immunities and powers do not belong to Parliament; they belong to the two Houses. Is saying "within the institution of Parliament'' adequate to make it within the house called the Senate? That is a question.
In the Lane case, which is the second authority that I will draw to your attention, the Federal Court of Appeal was reviewing a human rights tribunal decision concerning handicapped voters. The tribunal had said that the Chief Electoral Officer of Canada was an employee of Parliament and that his actions were protected by the privilege of the House of Commons. The court held that the Chief Electoral Officer is a creature of statute and not of privilege, and it specifically contrasted the position with those of the Speaker or the Sergeant-at-Arms who are associated internally with the House of Commons. Therefore, you have a list of officers of Parliament, which would include the Auditor General and the Chief Electoral Officer, who are well known. However, are these in the same category as the other officers such as the Clerk, the Law Clerk and Parliamentary Counsel, and the Sergeant-at-Arms who are officers of the houses? It comes back to that difference between "Parliament'' and the "House.'' That is another decision your committee will want to look at.
The Tafler case was already drawn to your attention in your materials. That is a British Columbia case. In that case, individuals brought a petition to the court requesting access to an investigation of the premier being conducted by the Conflict of Interest Commissioner. The act provided that the commissioner was an officer of the assembly. Notice the difference between being an officer of the assembly in a unicameral system and an officer of Parliament in a bicameral system, because if you are an officer of the assembly, you are associated with those privileges directly. The act provided a system whereby he reported to the legislative assembly, and that made the actual decision of whether to discipline a member subject to privilege and not reviewable by the courts, according to the court in that case.
There are two final cases also drawn to your attention, and they are both out of the Northwest Territories, the Morin case and the Roberts case, both dealt with by the same judge, curiously enough.
In the Morin case, Mr. Morin sought judicial review to impugn the actions of the conflicts commissioner for breach of natural justice. The commissioner argued that the court had no jurisdiction because her actions were privileged. The court agreed, finding that the role of the commissioner was an extension of the legislature's inherent right to discipline its members. The functions of the commissioner were held to be beyond the reach of the courts. However, in the Roberts case, the question of the appointment of the commissioner came up, and in that case, the court found that the appointment of the commissioner, which was in the statute, was reviewable by the courts, and that the commissioner had a right to natural justice.
I have just touched on those cases. Obviously they must be read and analyzed in all their detail, but I draw all that jurisprudence to the attention of your committee and you can look at that as you go ahead.
Senator Rompkey: Some of us are more acquainted with the Parliament of Canada Act and the Criminal Code than others. Would it be in order for Mr. Audcent to go over again the relevant sections of the Parliament of Canada Act and the Criminal Code that he feels should be retained and deleted and give us a brief description of each one? Would it help the committee at all? He could go through it briefly, verbally, and then follow it up in writing.
Mr. Audcent: Section 14 of the Parliament of Canada Act stops senators from being a party to or concerned in any contract with the government. Section 15 is a related, consequential section. These sections are being repealed, and I agree with the idea that they should be repealed. However, they are being picked up again in slightly altered format in the code of conduct.
There is a policy decision to be made here, and I try not to step over the policy line, but, in the last presentation, I invited you to consider whether you should be barred from participating in all contracts with government. After all, in the 21st century, government is huge. I pointed out to you that you should be barred from all contracts with the Senate, but you might want to look at business with the government and when it might or might not be acceptable. Mr. Wilson suggested that you might want to look at that as well. That is sections 14 and 15 of the Parliament of Canada Act.
Section 16 of the Parliament of Canada Act essentially provides that you shall not sell your services as a parliamentarian. Who could disagree? It is clear that you should not. However, I have suggested to you that the section be repealed. If you were selling your services as a parliamentarian with corrupt intent, that would already be prohibited by section 119 of the Criminal Code. If you were not doing it with corrupt intent, then you should have a provision in your code of conduct stating that you shall not sell your services. What you do not want is to have the Criminal Code, the Parliament of Canada Act, and a code of conduct — three exposures — prohibiting the same thing in three forums with different people using different criteria and values, some people understanding Parliament and others not understanding Parliament. I suggest you take section 16 out and put the prohibited conduct into your new code of conduct.
I agree that section 119 of the Criminal Code should remain. It provides that you must not be corrupt in office. Everyone would agree with that. Section 119 is an appropriate provision.
Sections 121 and 122 of the Criminal Code apply to officials, and I do not think that there is anything wrong with that. They should apply to officials of government. The problem is that the courts went on in a series of cases to come to the conclusion that senators are officials. You are not officials. You are not fonctionnaires, as the first trial judge in Cogger said. The result is that you are caught up in a series of provisions of prohibitions that fit very badly with your functions, and they fit very badly with the proposed code of conduct. I am concerned that you will have the courts running off in one direction interpreting section 121 of the Criminal Code, and the ethics commissioner running off in another direction interpreting your conduct as it relates to the code, and the result will not be the same.
Senator Rompkey: Are you suggesting an amendment to the Criminal Code? If so, should we be the ones to bring that forward?
Mr. Audcent: You have before you a draft bill, so you are not limited by the principle. I would like to see an amendment to the definition of "official'' in section 118 of the Criminal Code that simply says it does not extend to parliamentarians and judges; because that was never the intention.
The Chairman: I would remind senators that this is a draft proposal. We can make any suggestion we please.
Senator Joyal: As Mr. Audcent has said, there could be a conflict of interpretation, thus subjecting senators to two different sets of rules.
If we are to sell this to the public, we must make it clear that the public interest will be well protected if we amend sections 121 and 122 of the Criminal Code to exclude members of Parliament, that is, senators and MPs from the ambit of those two sections. Otherwise, we may appear to be patting ourselves on the back by trying to do something relevant on one side, and then appear to get some kind of privileged position on the other side. We have to be very careful in the way we present it to the public.
The Chairman: We can suggest anything we like. It depends on how persuasive we are whether or not the government listens to us and opens up those sections for amendment.
Mr. Audcent: Here is one example of the preoccupation that crosses my mind: Section 121(1)(c) of the Criminal Code prohibits you as officials from receiving a benefit from anybody who does business with the government. Then it says, unless you have the consent in writing of the head of your branch of government. I pointed out to you, and as the trial judge asked in Cogger: Who is the head of your branch of government to you as senators? You do not have recourse to that. The section provides that you cannot receive any benefit from anybody who has business dealings with the government. Both the majority and minority judges agreed that you could accept a cup of coffee. Some suggested you could accept the occasional lunch, but not a series of lunches.
I go into the draft code of conduct. It says that gifts over $250 have to be registered, implying they can be received. It says that travel has to be registered, implying that you can fly on somebody else's ticket. If these people are doing business with the government, and you are required to register this under the code everyone will know about it. However, to receive the benefit is a criminal offence under the Criminal Code.
I have would trouble with two systems running parallel. I would like you to go to a new system, with new rules that will serve your purpose and keep the institution honourable and speak well to it, but you must get rid of the old.
Senator Joyal: My question is on another issue raised by our law clerk. However, if my colleagues have other questions in relation to sections 121, 122 of the Criminal Code, or section 14 and 15 of the Parliament of Canada Act, perhaps they should ask them first.
The Chairman: Mr. Audcent has suggested the Criminal Code already covers it, so it should be taken out.
Senator Joyal: I would like to come to back to your point related to the issue of privilege.
I think you stated clearly that the ethics commissioner would not be an officer of Parliament. In my opinion, he would not be an officer of Parliament in the traditional sense because the ethics commissioner would not be an officer of the Crown. He would not give advice to the Crown. Section 17 of the Constitution states:
There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.
That is the Parliament of Canada. There are three components to the Parliament of Canada.
An ethics commissioner, in the context of this proposed bill, should not be given the status of being assimilated into the traditional definition of an officer of the Crown. In my opinion, the ethics commissioner in relation to the Senate would be an officer of the Senate, at par with the Clerk of the Senate. He is strictly essential to answer to the Senate. He is not answering to Parliament as a whole. I think that is a very important distinction.
If we want to maintain the position that senators should be run by senators, the status of the ethics commissioner must be clear. It would be easy to say that he or she would be an officer of the Parliament like the Auditor General who is above suspicion, neutral, objective, has investigative powers, and reports to Parliament. However, in my opinion, the ethics commissioner that we should be contemplating should answer to the Senate and not to the other place. I do not want to know the report of the ethics commissioner in relation to the House of Commons. I think that senators should be in control of the ethics of the Senate, just as the other place should have control of their own ethics. That distinction is very important. This is not just a play on words. There are many legal consequences to this.
Mr. Audcent: I do not think I suggested that in the government draft the ethics commissioner would not be an officer of Parliament. The minister advised you that the ethics commissioner would be an officer of Parliament.
I remember I did a word search in the electronic database of the statutes a few years ago for a committee, and the word "officer of Parliament'' did not come up. It is an expression that we use, but it is not an expression that you find in the statute book. It may have been enacted once or twice since, but generally speaking, it did not appear there. It is a question of how you treat it and consider it, and the minister advised you that this person would be considered to be an officer of Parliament.
The question is this: What do you want to have as opposed to what is proposed? The government has made its proposal. Senator Joyal has expressed the opinion that the ethics commissioner should be answerable to the Senate.
Clearly, the report of the ethics commissioner would be presented to both houses. Therefore, the ethics commissioner would be serving the executive, the Senate and the House of Commons. You have to make a choice whether you want to have the officer serving the executive and serving the Houses. That is your first step.
Then you come to your second step. Do you want to have an officer serving both houses? There are choices to be made.
One small part of this proposed code that has not been looked at relates to the educational function of the ethics commissioner. I am reminded of Senator Kinsella's whistle-blowing bill because emphasis was put on the educational function of the proposed officer in that instance. If you have an ethics commissioner whose primary function is to speak to Canadians about ethics in Parliament and whose primary function is to promote and research ethics and whatever, and whose function of looking at the two Houses is delegated to two deputy commissioners, one for the Senate and one for the Commons, administratively you might have something that will work.
However, as an officer of the Senate, I have a clear bias in terms of the internal management of this institution, and what Senator Joyal is proposing is an option that you should consider and that is that each House will have its own, internal, ethics officer. If the appointment is made internally and the commissioner functions internally, then the benefit is that he or she is working for you, and only for you. The commissioner would be working in your interest so that you as a House can make sure that your House is well protected. You know that that person is functioning within a privileged environment and that you have the control of that environment, the same way that you have control of my position.
Senator Joyal: I have another question.
The Chairman: I have a follow-up on this subject, also. Is there any reason that we could not suggest that it is expressly stated in the bill that the ethics commissioner is an officer of Parliament? That would then be more likely to extend the question of privileges to the ethics commissioner, to their activities and their decisions that would protect senators; do you agree?
Mr. Audcent: I know that the draft bill tries to address this issue by saying that in doing his or her work with respect to parliamentarians, the commissioner functions within the institution of Parliament. I read that as code in that section saying that this person is functioning within the institution of Parliament and, therefore, should be considered to be carrying out parliamentary functions.
The Chairman: However, within the institution of Parliament, you have just pointed out to us that the institution of Parliament really does not exist; the two Houses of Parliament do.
Mr. Audcent: That is right. The question, Madam Chair, then becomes what does "within the institution of Parliament'' mean? It is an ambiguous term. Something that happens within the Senate happens within institution of Parliament; but something can happen within the institution of Parliament and not happen within the Senate. What you need to know is that something is happening within the institution of the Senate for the Senate, and within the institution of the Commons for the Commons.
Senator Joyal: In relation with the definition of privileges you have quoted two cases from the Northwest Territories, interpreted by the same justice, the Morin case and the Roberts case. You mentioned that in the Morin case, the judge came to the conclusion that the role of the ethics commissioner, as defined in the rules, was outside the scope of the judicial review, while the appointment of the ethics commissioner, having been entrenched in a statute that is in formal legislation, was reviewable by the court.
This is important. One of the key decisions that we must make as a House of Parliament is where we want to draw the line in terms of the role of the court in reviewing the ethics of senators.
As the Oliver-Milliken report has suggested, the appointment of the ethics commissioner or a jurisconsult could remain within the ambit of both Houses, so that the responsibility would remain in the Senate and the House of Commons.
The moment we legislate in terms of the appointment of the commissioner, then the case of Roberts confirms exactly that point. As long as we legislate internally, through the Rules of the Senate of Canada, we remain the master of the system. What was the date that you gave for the Roberts case that supports this position?
Mr. Audcent: The Roberts case was decided in 2002. The case was based upon language saying that the commissioner could be removed for incapacity or cause. However, the draft bill before you refers to having tenure during good behaviour. They seem to be close. Certainly, Roberts is an indication that the courts might wish to look at that appointment at some time if they were troubled.
The Chairman: Is not the key point in Roberts not that they did not have a statute or they did have a statute, but that they did not follow the statute?
Mr. Audcent: My understanding of the Roberts case was that the person was dismissed, went to the court, and the court said, "Yes, we can consider this, because there is a statute giving you a term.'' They would not have looked at this had the issue been internal to the house.
The Chairman: I have an opinion here from our researcher from the Library of Parliament that that is not quite right.
Senator Joyal: On that point, Madam Chair, I return to our discussion last week. On the issue of privilege, I believe Senator Stratton who pointed out the confusion that exists in the average Canadian mind that when we are talking about privileges we are talking of a privileged position; that is, something we have that other people do not have and, in that way, we are above the law.
It is important for there to be a clear presentation of what we mean by "privileges.'' It is also important for our house to maintain control of its own affairs. This is key to understanding this issue. Our law clerk was to look into this matter and return with his remarks. Could we have his input into that subject?
Mr. Audcent: I do have in front of me a passage from the Roberts decision. The judge said:
It seems to me that I can conveniently address these issues by stating the following questions:
The second question is:
Is the Legislative Assembly's decision protected by privilege?
My response is that the Assembly's position is not protected by privilege. The Legislative Assembly has chosen to circumscribe its area of privilege by statute, specifically, by providing that the Conflict of Interest Commissioner shall be appointed for a term of four years removable only for cause or incapacity.
I digress to point out that this particular project says "good behaviour,'' which could be considered to be similar. That is the phrase I had in mind.
Senator Joyal: That illustrates the point. What must we understand as a House of Parliament, as a Senate, as an autonomous chamber? Section 18 of the Constitution states:
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 and 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.
Could you, for the benefit of our study, explain to us the meaning of privileges? What do we mean when we say the privilege of the Senate in the context of this proposed bill and in the context of the Constitution?
Mr. Audcent: The Constitution Act refers to your privileges, immunities and powers. There are two kinds. First, there are the privileges, immunities and powers of the House, which is the House of Commons and the Senate; and, second, there are the privileges, immunities and powers of the individual members. There are two categories.
It is interesting to note that, in Canada, each of our houses has the privileges, immunities and powers of the House of Commons of the United Kingdom. In other words, the Senate must not look to the House of Lords for its privileges, immunities and powers, it looks to their House of Commons.
The Constitution makes these privileges, immunities and powers constitutional. The court said that they are constitutional in Donohoe. The Constitution states that they are to be identified by the Parliament of Canada in statute law. The statute law repeats the Constitution, essentially. The Parliament of Canada Act has a provision that provides that the privileges, immunities and powers are to be the privileges, immunities and powers of the House of Commons of the United Kingdom.
The language is unfortunate. Often, when statutes are rewritten, we update the language because language changes. What we really mean by "privileges'' are the rights of Parliament. In the 21st century, that is the language that we are used to dealing with. We speak about the rights of handicapped people, people's human rights and our democratic rights.
When you say "the rights of Parliament,'' you immediately understand that these are the powers and rights that you need to have in order to do your job properly, and it makes a lot of sense that you should have those. That is referred to as the test of necessity, and that is how they evolved. They evolved against a background of being compared to a test of necessity.
These are the rights that you need in order to function as parliamentarians, and if you do not have them, you may find it difficult to continue to function. It may affect your performance in one way or another if these rights begin to be absent.
The example that comes to my mind is your right of freedom of speech, which means that you can go into the chamber and say what you want to say without fear that you will be sued, because what you say cannot be questioned in any court or place outside of Parliament. The quality of your debate is ensured by the fact that you can speak without fear.
When we think of rights in those terms, you can see that something that sounds as old-fashioned as the word "privileges'' is quite essential to the functioning of senators when we think of them as rights
Senator Stratton: I have a problem with the Cogger case in that Cogger was caught up under the definition of "fonctionnaire,'' and then later exonerated or forgiven. The courts are very activist and constantly change their interpretations of laws. Here, we want to define our rights and a code of ethics as carefully as possible. I would hate to think that, after we have done all this and achieved what we think is a pretty good solution, the courts will simply walk in, as they did with the definition of "fonctionnaire.'' As the interpretation of language changes, the courts may change their interpretation of our code of ethics. I know there are no absolute guarantees on this.
How does one overcome the unease that one will always have that the courts can decide to march in at any rate, saying they have the right to do so?
Mr. Audcent: Sometimes we look at the small problems and lose the big picture. The big picture is that we have a very good tradition of institutional comity in this country, in our system and in the United Kingdom from which we inherited our system. There is an enormous amount of respect between the judicial system for the independence of the legislature and the legislature for the independence of judicial system. That is the background against which we are looking at this.
The example of parliamentarians being assimilated into the words "official'' or "fonctionnaire'' is the exception to the rule. It happened and it is unfortunate. It goes back to an older decision, Martineau, which involved a member of the legislative council in the Province of Quebec. Later, there was the case of Giguère, who ended up not being convicted, but there was a reference that he, as a senator, was an official. Of course, it culminated in Cogger, who was actually convicted.
However, that is really an exception to the rule. We must realize that, generally speaking, the courts are respectful of the independence of Parliament and, generally speaking, Parliament is respectful of the independence of the courts.
Senator Stratton: I am still not comfortable about Cogger.
Senator Joyal: Do you share the opinion in the judgment of Justices Létourneau and Rothstein on the issue of the definition of privileges and the way the court intervened in that case?
Mr. Audcent: There is no doubt that the Vaid case is another challenge to Parliament. The holding that you could review every exercise of privilege to ensure that it was a correct exercise of privilege goes against 15 or 20 judicial decisions. I would have to count them up and see how many I could get for you. However, once again, it is the exception that makes the point. Institutional comity generally works and Vaid is the exception, so you now have two exceptions on the floor.
Senator Joyal: Exercising discipline in the Senate has been a privilege and responsibility of the Senate since 1867, and the court has to remain outside of that. That is the real definition.
We are now evaluating a proposed bill that would put aspects of that responsibility into the domain of the court. Because we would be legislating, we would be opening the door to the court. Our conscious decision must be, first, whether we want to do this and, second, whether it is essential for the purpose that we want to serve in having a code of ethics for members of the Senate. I believe that that is a very important decision on the basis that, if the Létourneau judgment of last November stands, as you said, the door is wide open for any court in the future to review any decision of the Senate pertaining to privileges. In the judgment of Justice Létourneau, it was not even a statute at stake but rather an administrative decision taken by the Speaker.
Therefore, in the context of a statute, the court will not reserve its role, even though we know that traditionally they want to remain distanced from parliamentary business. The court stated very clearly in Harvey v. the Attorney General of Canada in 1996 that they will review the Charter in relation to parliamentary privileges. In that case, the justices stated very clearly that not only will they review whether there is privilege but also the way the privilege has been exercised. They went a step further.
That is the law of the land. This is a ruling of the Court of Appeal of the Federal Court, made after the draft bill was proposed. We cannot ignore what our own court has stated. This is not a small division of a province somewhere, so we must take that into account, and I think the opinion you are giving us on what regime we want and whether we want to open the door to court review is very important.
Senator Andreychuk: The trend of the court's intrusion, if my colleagues are correct, or the court's appropriate assessment of the parliamentary process, has already happened and appears to be happening with the Charter coming into place and many other things. If we go to a specific statute, will we exacerbate that position? In other words, is it a trend that is a problem and we are making it worse, or has the trend that we are talking about nothing to do with this and it is that the act itself is the problem?
Mr. Audcent: I really like the language that you have used, senator.
There is a natural trend, which is that the courts view things from the court's perspective. Their perspective is always: How can we help?
The Supreme Court of Canada has not spoken in Vaid yet. We have to wait and see whether the Supreme Court of Canada respects the line.
Ultimately, it is an issue of institutional comity. If the court wants to interpret, I suppose it can. If it wants to make declarations, it can. If it starts issuing orders, the Houses can start disobeying them. You would then have a real constitutional problem because where is the power of the Supreme Court to make this house do something?
Senator Andreychuk: We had a round-table discussion in the Human Rights Committee with the former Chief Justice. We were talking, of course, about the Charter of Rights and Freedoms. In a question I put to him I said that I thought parliamentarians were commenting entirely too often on judgments and offering opinions on whether they were right or wrong. I suggested that, at times, these comments were being made not at the appropriate moments. I said that Parliament was more open to scrutinizing and criticizing the Supreme Court as opposed to supporting the independence of the court. He agreed that there was entirely too much dialogue going on.
When I used the term "trend,'' it seems to me we that, as parliamentarians, we have not always been as cautious in supporting the independence of the judiciary, not as an institution of Parliament, but individual parliamentarians, which has, I think, extended a corresponding invitation to the judiciary to comment on us.
Mr. Audcent: I find that parliamentarians are very respectful of the court process in the sub judice role. When matters are in the process of being decided, parliamentarians are wary of saying anything publicly. Once the decision is rendered, it is the new state of the law. The role of parliamentarians is to look at the state of the law and see if it needs changing.
Parliamentarians are very respectful of courts through the sub judice rule while the decision-making process is ongoing.
Senator Andreychuk: Is that your opinion about senators or Parliament in general?
Mr. Audcent: It is my opinion about Parliament in general, from reading the newspapers. Obviously, I know this house a lot better than the other House. However, I do not think there have been too many instances where we have interfered in the court process.
The Chairman: Mr. Audcent, I have some concern when you say that our privileges are based on the House of Commons in Great Britain. Even before Confederation, the privileges of the House of Commons in Great Britain were questioned before the courts. The first occurred, I believe, in 1834 in Stockdale v. Hansard. The courts refused to accept that either House, by resolution, could determine the legal effects of its privileges. Never since that case has the House of Commons refused to admit the jurisdiction of the courts when matters of privilege arise in the course of court proceedings.
I have a quote from the report of the committee in Great Britain. I will copy it and send it to members of the committee. I think this is quite important, if we really do base our definition of rights and privileges on the House of Commons in England.
Mr. Audcent: Yes, Madam Chair, we do. It is in the Constitution and in the Parliament of Canada Act that the privileges of the Senate are referable to the privileges of the U.K. House of Commons. In the 19th century there was a dialogue and debate between the courts and the Houses as to the appropriate roles for each. It is clear that the courts take notice of parliamentary privilege. The courts feel that the Houses cannot, by their own act, extend their privilege. The courts feel that it is their right to say what the limits of privilege are.
However, within the limits of privilege, the tradition has always been that the Houses act in an unreviewed capacity; that the Houses are masters in their own house and, if something is privileged, it is not subject to review.
The Vaid case says an exercise of privilege can now be reviewed, which is the danger of that case.
Senator Joyal: Are you suggesting to us that we should appeal the Vaid case?
Mr. Audcent: Honourable senators, I will let the appropriate and ordinary channels in this house make those decisions.
Senator Joyal: Yes, but you are our legal adviser. You are an officer of the Senate and I am a senator. If I were to ask your advice about whether to appeal the Vaid decision, would you advise me to do so? I know the process very well, but you are our adviser.
Mr. Audcent: Senator, if you do not mind, I would like to advise the parties who will be making that decision on that issue.
The Chairman: Before we rise I would like to point out that some of the senators here may have been left with a mistaken impression, Mr. Audcent, when you said that senators can accept gifts and, if they are valued at more than $250, then they must be publicly disclosed. I believe the code says quite clearly that senators cannot accept gifts that are connected with holding the office of a senator. They can only accept protocol gifts. If those protocol gifts are valued at more than $250, then they must be disclosed.
The committee adjourned.