Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 7 - Evidence
OTTAWA, Tuesday, February 25, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:42 a.m. to examine proposals to amend the Parliament of Canada Act (Ethics Commissioner) and other acts as a consequence and proposals to amend the Rules of the Senate and the Standing Orders of the House of Commons to implement the 1997 Milliken-Oliver Report, tabled in the Senate on October 23, 2002.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: This is our fourth meeting on the ethics package tabled by the government last fall. The package is based on work done by Senator Oliver, who, with Mr. Peter Milliken, co-chaired a joint committee on a code of conduct, which reported in 1997. Before us today is Mr. Conacher, Coordinator, Democracy Watch. Later, we will be hearing from the Parliamentary Spouses Association and their president, Ms. Silverthorn Finlay. Ms. Simms and Dr. Poy, who is the husband of one of our colleagues, Senator Poy, will join her.
Mr. Duff Conacher, Coordinator, Democracy Watch: Honourable senators, Democracy Watch is an independent non-profit, non-partisan, citizen organization and the leading advocacy group in Canada on the issues of democratic reform, government accountability and corporate responsibility.
I am here today representing the Government Ethics Coalition which is a coalition of 32 groups from across Canada. I believe you have in front of you or will soon receive the list of member groups, which includes 12 national groups and 20 located in six provinces and the Northwest Territories.
The coalition has, for the past few years, been active on this issue. Democracy Watch has been active on the issue of government ethics since the spring of 1994, a few months after we were first established.
I testified here in 1995, before the joint committee of the Senate and the House of Commons, which drafted the code. I am happy to be back again, hoping this time that the code will not die on the Order Paper but, instead, be implemented.
I welcome the opportunity in particular because you have the proposed new ethics rules and ethics enforcement system before you in pre-bill form. The government has indicated that they are open to changing the code and the proposed enforcement system.
Having already testified before the House committee, I know that the members of that committee have stated to their colleagues they are in favour of having a code and of having independent enforcement of the code. They were continuing to examine several other issues at their hearings that ended a couple of weeks ago.
Over the past decade, Canadians have shown clearly that they want ethics rules for MPs and senators. In fact, in every poll that has been taken, at least 80 per cent of Canadians want strong ethics rules.
These rules are clearly needed to meet the expectations of Canadians for greater accountability for all members of Parliament. In May of 2002, the Liberals' own polling firm reported that 40 per cent of Canadians believe that the federal government is corrupt. It is definitely a perception problem and a great way to solve the perception problem is to have an effective accountability system.
In fact, the Supreme Court of Canada, in the Hinchey case in 1996 concerning a public servant accused of an ethical breach, stated:
... given the heavy trust and responsibility taken on by the holding of a public office or employ, it is appropriate that government officials are correspondingly held to codes of conduct which, for an ordinary person, would be quite severe.
The Supreme Court of Canada has as well has articulated that such codes are needed and, even if MPs and senators view them as being severe, they are appropriate.
At paragraph 14 of that same case, the majority wrote:
It is hardly necessary for me to expand on the importance of having a government which demonstrates integrity. Suffice it to say that our democratic system would have great difficulty functioning efficiently if its integrity was constantly in question.
Having an independent enforcement system will end many of the question that now hang over politicians when allegations are made about violations of codes of conduct. Those allegations hang over MPs and senators currently, because there is no independent investigation that can be conducted of those allegations. The current system has been revealed to be so entirely biased that it is clear that, when the current ethics counsellor supposedly clears an MP, a minister or a senator of a conflict, it is only the ethics counsellor and the MP or senator who believes that they have been actually cleared, while the rest of Canada continues to disbelieve those findings.
Overall, the Government Ethics Coalition does not have any problem with the proposed ethics rules. However, we do believe that, in order to have an open and effective government ethics system, key loopholes and gaps in the proposed ethics enforcement system must be closed for the following changes and new measures.
First, the appointment of the proposed ethics commissioner must require the approval of opposition parties, instead of, as proposed, approval by the ruling party only.
In addition, we believe it should be an approval that goes through the Senate, because this ethics commissioner will be watching over all MPs and senators. As a result, there should be some say by all MPs and senators in the appointment process.
Second, anyone, instead of just parliamentarians as proposed, must have the right to file a complaint with the ethics commissioner. There has been a right to file complaints with the Ethics Counsellor over the past nine years or so. Our organization is the only non-parliamentarian that has filed complaints. We have only filed 12, so there is no evidence that there would be a flood of complaints. As well, there would need to be a measure that would discourage anyone in the public from filing an inaccurate complaint, because any complaint alleging a violation of an ethics code is immediately slanderous. If it is inaccurate, that person would be subject to a libel lawsuit. We believe that is an effective check on the public filing frivolous or vexatious complaints.
A third gap we see in the proposed system is that, as proposed, the ethics commissioner would keep secret advisory opinions and some rulings. We believe that all advisory opinions and rulings by the ethics commissioner must be made public. This is essential in order to build up a body of standards and interpretations of the rules. There is no need to identify the politician who asks for an advisory opinion, as long as he or she asks for it before doing something, not after the fact. The advisory opinion, however, could indicate that a parliamentarian asked for an advisory opinion on a certain situation, was advised of the rules that apply and was furnished with an interpretation of the rules. This would all come from the ethics commissioner.
As well, all rulings of investigations must be public. As currently proposed, there is one situation in which a ruling would be kept private. That would be when a parliamentarian has violated the code but has agreed to some sort of solution, mitigation or penalty. If there is a violation, then the violation should be made public, whether or not the parliamentarian has agreed to some sort of mitigation.
That is essential to have an effective system. As has been shown with the current Ethics Counsellor, secret rulings are not an effective way of setting ethics standards that will apply across the board; nor are they an effective way of holding someone accountable who has broken the code.
We also believe that the ethics commissioner, in addition to what is proposed, must be empowered to issue public advisory opinions and investigate alleged violations of ethics rules by lobbyists. What is currently proposed is that the Registrar of Lobbyists will replace the Ethics Counsellor as the enforcer of the Lobbyists' Code of Conduct. This does not make sense.
The Lobbyists' Code of Conduct contains rule 8, which states that a lobbyist cannot do anything that puts a politician, MP, senator or minister in a conflict of interest. If a complaint is filed with the registrar, he or she will investigate whether the lobbyist has put the politician in a conflict of interest. The ethics commissioner will investigate whether the politician is in a conflict of interest. What if they rule in opposite ways? What if the Registrar of Lobbyists finds that the minister is in conflict, but the ethics commissioner finds that there was no conflict? You will have conflicting rulings and an irresolvable situation.
There is no reason that we can see why the ethics commissioner should not be given the power to watch over lobbyists and enforce the Lobbyists' Code of Conduct. You will have consistency in rulings and consistent standards will be applied. The wording of much of the rules in the Lobbyists' Code of Conduct and in the proposed ethics code is similar. You will end up with conflicting rulings if you have two different people ruling on these codes.
Similarly, we believe it is high time for public servants to have an independent ethics watchdog. The proposal is to create a new ethics commissioner's office. We believe also that the ethics commissioner should be given oversight over public servants. They do have ethics rules, but they are enforced internally — and not effectively, as a result. There are secret rulings; there are negotiations; and there is no light shone on what public servants are doing. If all members of Parliament are going to have an ethics code and independent ethics enforcement, so should public servants, given that they are very much involved in the day-to-day operations of government.
We also believe that the ethics commissioner should be given the power to protect public servant whistle-blowers; and that the current Public Service Integrity Office should be folded into this new office of the ethics commissioner. The current Public Service Integrity Officer can only make rulings in secret and lacks key powers to enforce rulings. We believe it would be much more effective to fold that office into the new ethics commissioner's office.
We also believe the penalties, as proposed — which would be possible dismissal from cabinet, or censure, or possible dismissal from Parliament — are not enough. Essentially, they are left to other parliamentarians to enforce. That means that parliamentarians from the ruling party will be protected from those penalties, while parliamentarians from opposition parties will face them.
We believe that the ethics commissioner should have the power to penalize violators of the ethics rules through fines. What Parliament may do, or what the Senate may do, would vary; but at least there would be a clear penalty issued for everyone violating the rules.
Finally, when the code in the proposed bill comes back in the form of a bill, it will be passed and become a law. Then the ethics code for MPs and senators will be law. However, the ministers', lobbyists' and public servants' codes will have a questionable legal status. The lobbyists' code does not have force of a statute, but it has been published in the Canada Gazette. Lobbyists are required to adhere to it, but we are not sure how much they must adhere to it because the Ethics Counsellor refuses to rule on complaints about lobbyists. We believe these minister, lobbyist and public servant codes should be changed into laws in the same way that the code for MPs and senators is proposed to be a law.
To summarize, even if you passed all the proposed rules and changes to ethics enforcement, the ethics commissioner would not be as independent as would be required. Some rulings will likely be kept secret; public servants still will not have an independent ethics watchdog; penalties for unethical behaviour will be too weak; and ethical whistle-blowers will not be adequately protected. These key gaps in the government's ethics proposals must be closed in order to have an open and effective government ethics system.
We also are pushing for changes to Bill C-15. We expect to be back before your committee or another committee of the Senate, because there are similar gaps in Bill C-15, which amends the federal Lobbyists' Registration Act. We are hoping that all of these loopholes will be closed so we that have an open and effective system that will ensure honest and ethical government in the future.
The Chairman: Before I open this up for questions, I would point out that the proposed code for members of Parliament and senators is not proposed to be a law. It would be a motion. It would not be a law passed by Parliament; it would be a motion within Parliament. It would only serve to report to the ethics commissioner within the confines of Parliament itself.
Senator Smith: I am trying to get a better handle on Democracy Watch per se. When you say ``we,'' I am trying to figure out who ``we'' is. Is Democracy Watch a legal entity?
Mr. Conacher: It is.
Senator Smith: You are a non-profit organization. Do you have direct membership?
Mr. Conacher: We have about 1,000 individual supporters across the country.
Senator Smith: Does that mean financial contributors?
Mr. Conacher: We have this coalition and three other nation-wide coalitions which we coordinate. Some funding comes from the groups in the coalitions as well.
Senator Smith: Is the Government Ethics Coalition a legal entity?
Mr. Conacher: No. It is a project.
Senator Smith: Regarding the legal entity — Democracy Watch — do you have annual meetings?
Mr. Conacher: Yes, we do.
Senator Smith: Can anyone become a member? Do you have membership cards?
Mr. Conacher: No, we have a structure of supporters.
Senator Smith: Do you mean financial contributors?
Mr. Conacher: Yes.
Senator Smith: What is your annual budget?
Mr. Conacher: It is about $40,000.
Senator Smith: Is this a full-time position for you?
Mr. Conacher: I also do work for a group called Democracy Education Network. My time is split between the two groups.
Senator Smith: Do you have a board?
Mr. Conacher: Yes.
Senator Smith: How are the board members selected?
Mr. Conacher: We are structured as a collective; so the board members also are doing work for Democracy Watch, along with myself.
Senator Smith: In what way are they doing work for Democracy Watch? As employees?
Mr. Conacher: The structure is like a workers' co-op. There is no management-staff separation.
Senator Smith: Do you have an annual meeting in Ottawa?
Mr. Conacher: Sometimes it is by telephone; sometimes it is an annual meeting.
Senator Smith: When was your last public annual meeting held?
Mr. Conacher: For supporters, do you mean?
Senator Smith: For all these people that you represent when you say ``we.''
Mr. Conacher: When I say ``we,'' I am talking about the coalition. These groups have signed on to the proposals that I have put forward.
Senator Smith: Does everyone in the Canadian Labour Congress agree with these positions?
Mr. Conacher: Given that 80 per cent of Canadians in every poll done in the past decade have said that they want strong ethics rules for politicians and public servants, I believe we are representative, yes, of the Canadian sentiment on this.
Senator Smith: In my youth, over 30 years ago, I was elected to City Council in Toronto. We heard from people who purported to represent huge neighbourhoods, when they did not. They, in fact, represented themselves and a few others. I am not questioning the bona fides of your rationale for being here.
You think everyone should have a right to file complaints.
Mr. Conacher: Yes.
Senator Smith: You also think that all advisory opinions and rulings must be made public.
Mr. Conacher: Yes. How else can you clear the air about an allegation?
Senator Smith: What about situations where it is downright libellous or slanderous, and there is no basis whatsoever for the allegation? Do you think people who make the sacrifices they do to go into public life should have to go through all of that if there is no foundation for the allegation? Do you think that encourages people to get into public life?
Mr. Conacher: If it is libellous or slanderous, you would go through it anyway in filing your libel suit against the person.
Senator Smith: If the person making the slanderous allegation has no assets, where does that get you?
Mr. Conacher: It does not change the current situation. Anyone can say anything about you now. Having a code will not change the situation.
Senator Smith: Anyone can give any speech they want now, but if something forms the basis of a complaint to a body that has been established by Parliament, that tends to give it some degree of legitimacy in the mind of the public. I am wondering whether you think that is reasonable for people who are trying to make our system work by going into public life, when there is really, in many instances, no recourse whatsoever if the allegation is libellous, slanderous and even a pack of lies.
Mr. Conacher: There will be recourse. The ethics commissioner will only be investigating based on a reasonable belief that there has been a violation.
Senator Smith: No ethics commissioner will have the right to fine someone from the general public.
Mr. Conacher: Yes, but they will have the right and power to clear the member of Parliament, which no one has the right or power to do now. It hangs over you now. It will hang over you more without a code than with a code. If you do not have independent enforcement, it will hang over you as well, because the current Ethics Councillor and any structure that would mirror that or continue that is viewed by Canadians and anyone who has examined it seriously as being completely biased in favour of the ruling party.
Senator Smith: I could go on for a day or two, but I will only ask a few more questions. You talk about having the ethics commissioner do not only all the things that are in this draft but also be the watchdog for public servants. I am not suggesting someone should not have that role, and be a watchdog for whistle-blowers. Do you see all of these roles being carried out by one individual or one individual at the head with whatever staff is required?
Mr. Conacher: The coalition's platform is that, for several reasons, there should be an ethics commission. One is the possible workload. Another is that we think having three people will safeguard the independence of the office, because you would have some back and forth between the three. If you had one person who decided to protect some particular parliamentarian based on partisan or other bases, that would be a danger, so having a three-person commission would be a better way to go, particularly if the lobbyists and public servants are also covered.
Senator Smith: Is the matter of the separation of the administration from the legislative branch an issue that you have considered? I mean by that that whoever holds the position of Howard Wilson revisited is a different person from whoever is advising Parliament, without getting into whether the Senate and Commons would have a separate commissioner. Do you care about that?
Mr. Conacher: No, we think one office can watch over everyone. The penalty of being dismissed from cabinet or demoted would remain with the Prime Minister. The penalty for censure or dismissal from Parliament would remain with the House and the Senate. We still believe that the ethics commissioner should have the power to fine violators, but we do not see a problem with having it be one office. It is one office in most jurisdictions in Canada, watching over the ministers and all the other members of the legislature. We see no problem with that structure.
Senator Smith: We may have a go at that on another round.
Mr. Conacher: Some have raised the issue of whether the ethics commissioner could investigate and make a ruling, and whether that would violate the rules of natural justice. In a few provinces, the Information Commissioner has an investigative division that places the results of its investigation before the commissioner. Again, we think it can be all contained within one office, but you should have an investigation division so that it is not the commissioner doing the investigating but, rather, an investigative branch that then places the conclusion of its report before the commissioner or commissioners — if you had a three-person commission — for a ruling, to have that separation.
The Chairman: Before we go further, I would point out that this is the only bicameral Parliament in Canada.
Mr. Conacher: Yes.
Senator Andreychuk: I want to confirm that you believe that citizens should be able to file complaints, and your basis for that is that you believe if only other senators, for example, could file complaints against their colleagues, public trust would not be built on that. Would you think, if we put in appropriate and adequate rules, and transparency, that it would be sufficient, or do you believe that there should be citizens' complaints?
Mr. Conacher: There is a possibility of all parliamentarians doing something that would be a breach of the ethics rules, based on a reasonable interpretation of the rules, so none of them wants to complain about someone else doing it.
As well, for a member of the public to find a person within Parliament to file the complaint is a hurdle that person must overcome. We believe that a member of the public should have the clear right on his own to file a complaint, but it also makes each complaint a partisan complaint. We see a danger in that in terms of how the whole system works.
Senator Andreychuk: It seems to me you would need to put some safeguards in if you were to have citizen complaints because they could be partisan complaints. Often when I do a radio show, I know who is phoning in during the first five calls, and the announcer usually knows which ones are legitimate citizens' actions and which ones have been put forward as partisan interlocutors. How would you put some safeguards on the public being legitimate public citizens and not part of a political process?
Mr. Conacher: If you wanted to put in a bar against frivolous or vexatious complaints, that would be fine, but I do not think you will get them. Only 12 complaints have been filed in the past nine years. There has not been a flood of complaints against the most public and highest profile politicians, namely ministers, who are the only ones currently covered by a code.
With only 12 complaints in nine years, I do not see a danger in allowing the public to continue to complain to the ethics commissioner. Again, if it is not accurate, you have the check of each complaint being libellous. Many people will be discouraged from making a complaint if they know Parliament will pay the costs of the parliamentarian's libel lawsuit.
Senator Andreychuk: I am not quite sure why you think a commissioner for lobbyists might come to one conclusion and a commissioner for parliamentarians might come to a different conclusion. They are investigating different actions and different people. The fact that a commissioner may clear a senator, for example, and that a lobbyist may not be cleared, is not, on its face, a conflict. Surely, some sort of dispute-resolving resolution could be put in place anyway. Why would you want to concentrate so much power in one office where they would be investigating everyone? With the complexity of the different points of view and different attitudes of the Canadian public, why would you want to build such a strong structure in one place?
Mr. Conacher: Rule 8 of the lobbyists' code crosses over between lobbyists and politicians. The lobbyist does not break rule 8 unless the lobbyist puts the politician in a conflict of interest.
Senator Andreychuk: The lobbyist may attempt to put the parliamentarian in a conflict, but it does not mean, necessarily, that the parliamentarian was in a conflict.
Mr. Conacher: Right. If the allegation is that the lobbyist broke rule 8, and if the registrar of lobbyists finds that the lobbyist broke rule 8, the registrar is then finding that the politician was put in a conflict of interest. If, then, the ethics commissioner finds that the politician was not put in a conflict of interest situation, you would have conflicting rulings. How would you resolve that? You resolve it by bringing the two investigative and ruling bodies together. It makes sense to us to not have conflicting rulings.
If you want an appeal body to resolve the conflict, that would mean bringing the case before one body again. Why not have one body at the start, at the trial level, as opposed to at the appeal level?
Senator Andreychuk: There are many sections in the Criminal Code under which someone who has harassed a witness could be found guilty. That does not necessarily mean the witness violated any rules. That is consistent with a lot of others. You may want to reflect on that.
We have had some discussion here about whether senators should be allowed to sit on commercial boards of directors and also on NGOs, charitable organizations. Do you have a point of view on that?
Mr. Conacher: Do you mean as it relates to the rules?
Senator Andreychuk: Senators are in a different position from members of the House of Commons. Should senators be precluded in the code specifically from sitting on any commercial board of directors or on any non-governmental board? Do you see a difference between the two? Do you feel that preclusion would be an unfair restriction on a senator's livelihood?
Mr. Conacher: As I stated, we are fine with the rules as proposed. The rules as proposed create situational standards depending on what a senator is doing. We think that is the best way to go. A senator who is not sitting on a committee that is reviewing legislation affecting corporations could, as the code states, do those activities as long as they do not conflict with the rules set out in the code. A senator would go to the ethics commissioner and set out the boards and committees in which he or she is involved. The ethics commissioner will say what the senator can and cannot vote on in the full Senate. If that senator joins a committee, the situation will change. We think that is the better way to go.
In other words, we believe in a sliding scale as you move up. A backbencher in the House who is not sitting on any committees is in a different situation in terms of ethical standards from someone who sits on or chairs a committee. The positions of parliamentary secretary and higher are covered by the code as it exists currently. There is already a sliding scale and we believe it should continue to exist. That is why we agree with the rules as proposed.
Senator Joyal: Are you registered with Revenue Canada to issue fiscal receipts for people who contribute to Democracy Watch?
Mr. Conacher: We do not issue charitable receipts, no. We are under the CBCA, Part II.
Senator Joyal: On the issue of ethics generally, Democracy Watch has a very ambitious objective as a group or collective, as you say. How do you define the rights to privacy of people who hold public office versus their public responsibility? How do you balance that?
According to the Charter, each and every Canadian has rights to privacy. When one enters public life, one does not forgo privacy rights which are human rights.
Have you ever published a document or a reflection on the balance between the right to privacy and the responsibility of a public figure, such as a parliamentarian? In your opinion, how do we strike a balance? Everyone is for virtue; everyone is for motherhood; but we are dealing with real people who have rights. Just because they are elected, their rights do not disappear. A parliamentarian must swear an oath, just as a doctor takes an oath, and just as a lawyer takes an oath. To me, that is meaningful.
How can we strike a balance? You have made a very detailed presentation on various points, but I have some problem understanding the philosophy behind your position.
Mr. Conacher: If you are talking about the disclosure of assets, we agree with the balance struck in the proposed rules. We believe what is proposed before you is the system that should be enacted.
Some may draw the line elsewhere. You will hear from the spouses' association. In the past, they have generally been against full disclosure of the assets of spouses and dependents, saying that that is an invasion of privacy. The coalition's position is that assets of the public office-holder and the spouses and dependents should be disclosed.
On the general issue beyond that, we have not examined it except to the extent that I quoted the Supreme Court of Canada. Given the heavy trust and responsibility, it is appropriate that government officials are correspondingly held to codes of conduct, which, for an ordinary person, would be quite severe. The issue remains to be explored at the federal level simply because of the absence of a code.
Having not examined the area, we would have to look at it case by case and see where particular situations arise. We are examining the issue generally in the access to information realm. We are also active on that issue.
To state another specific case, we believe that the Prime Minister's meeting log of meetings that he held in his office while on the job is something that should be disclosed under the Access to Information Act because they are not personal meetings. They are meetings held fulfilling his job as a public office-holder. If his family came to visit him, and no business of government was being discussed, then those parts of the log could be deleted before it is disclosed.
To give you another specific case of where we see drawing a line between privacy and public responsibility, we think that accountability is needed for ministers, given the heavy trust and responsibility that is taken on by the holding of a public office.
Senator Joyal: I will try to be more specific. I want to understand the principles of your position.
Have you reviewed Supreme Court decisions that involved the interpretation of the rights to privacy as enshrined in the Charter? Have you reviewed those cases in the context of today's Parliament and what we mean by rights to privacy, on the one hand and, on the other, the constitutional responsibilities of a parliamentarian?
I am trying to go through the mental exercise with you because it is part of your profession, your main day-to-day job, to think about those issues, and we expect some enlightenment from you. We must start by defining the constitutional role of a parliamentarian in the Senate or in the House of Commons and determining the essential elements required for a person to fulfil that role and responsibility. Then, when someone accepts that constitutional role and swears or affirms to fulfill a certain responsibility to the best of their knowledge, talents and honesty, we will understand what that person has sworn to uphold, as much as the person understands what are his or her rights to privacy. If we are to go through this exercise, then we must start by understanding that.
I do not want to put you in a difficult position. I do, however, want to hear your reflections on that so that we can objectively evaluate the government's proposal. What we will do is important not only for us individually but also for all those who will occupy these seats in the years to come.
Mr. Conacher: The role of parliamentarians is not well defined now constitutionally or legally, nor are the powers and the influence. It has not really been examined within the context of what can or cannot be done. I do encourage you to start from that.
We support the way the code has been drafted because it sets out for the future that the ethics commissioner will look at the situation and say, ``You are not on any committees. You are not voting on this matter. You have not taken part in any discussions on this matter. Therefore, what you did was not a problem.'' It would be different, however, for people who are further up the sliding scale, higher up the ladder of power and influence. By sitting on a committee, issuing reports and taking part in discussions, they would be in a different situation and a different standard would be applied to them. We have not looked at every possible situation, but we are generally aware there is a sliding scale.
We agree that the ethics commissioner, as proposed in the code, should be given the discretion to apply a different standard, depending on where on the ladder of power and influence the particular parliamentarian sits.
Senator Joyal: Of the 12 complaints you filed over nine years, how many, in your opinion, were accepted as positive complaints?
Mr. Conacher: We are currently in Federal Court with a judicial review application of the Ethics Counsellor because he has sat on eight of the 12. Two of the 12 are over two years old, three are over one year old, and another three we filed between June and last October. The Ethics Counsellor has simply refused to rule on those outstanding complaints, although he has dealt with many matters that are much more complex than the complaints we filed over two years ago. We are currently before the Federal Court, asking the court to order the Ethics Counsellor to rule because of unjustifiable delay.
Of the eight outstanding complaints, we believe that five are clear violations of the rules. All but one involve situations of lobbyists breaking rule 8 of the Lobbyists' Code of Conduct by putting a politician in a conflict of interest situation. There is one other where a person left government, a minister's staff position, and immediately joined a corporation as the vice-president of government relations but did not register as a lobbyist.
We do not know what happened with the other three outstanding complaints. That is why we believe that there is a need for investigation. Even on those, the Ethics Counsellor has not done anything, as far as we can tell. I had a phone conversation with him in June of 2001 and he promised me there would be rulings. At that time we had five outstanding complaints. He promised me there would be rulings on all five within a month. Here we are, in February 2003, still waiting.
Senator Joyal: How many of those complaints deal with senators, members of Parliament, ministers, and lobbyists?
Mr. Conacher: Since there is no code for senators and MPs, there is only one complaint that deals with an MP, and that involves a lobbyist working with an MP. The Lobbyist Code of Conduct prohibits a lobbyist working with any public office-holder, including an MP and a senator.
The rest are about lobbyists and ministers except the one I mentioned, where it involved a person leaving a minister's office and, we believe, becoming a lobbyist.
Last June, we filed complaints against some senators who are lawyers. Several of the Law Societies across the country have a rule relating to lawyers as public office-holders. For example, the Law Society of Upper Canada says that if you are a public office-holder who is a lawyer, and there is even the whiff of a conflict of interest, you must state it publicly and not take part in any discussions with regard to the matter.
As a result of such inaction by the Ethics Counsellor on several issues, we decided to bring the law societies into play and file complaints against senators who are lawyers and who we believe should be investigated for possibly violating a law society standard of conflict of interest.
Senator Joyal: Where does that complaint stand presently?
Mr. Conacher: We are waiting to hear back from the law societies as to the details of most of the complaints.
The Chairman: How many complaints were there?
Mr. Conacher: We are still waiting for four of the five.
Senator Stratton: For how long?
Mr. Conacher: We filed them last June.
Senator Joyal: Were you called to be heard by the disciplinary panel of the law society?
Mr. Conacher: No, not yet.
Again, there should be a code for MPs and senators. It was introduced back in 1997. It should have been passed by now. We will keep pushing for it.
Senator Rompkey: I must immediately declare a bias as it relates to some of the people who make up the Government Ethics Coalition. I am referring, in particular, to the International Fund for Animal Welfare. Where I come from, Newfoundland and Labrador, they are ``Public Enemy No. 1'' and are, perhaps, one of the most unethical groups in the history of the country which has branded as murderers peaceful fishermen who have made their living from the sea for hundreds of years, people in my province and people in the Magdalene Islands, whose livelihoods have been destroyed. This also includes Inuit in the Arctic whose culture is based on hunting the seal. They hunt the seal for sustenance and it also helps them to raise money.
I think that this group is one of the most unethical groups that we have ever come across, and I wanted to state that for the record at the outset.
My question relates to the position of spouses. Do you believe that spouses should have to declare their holdings and that any conflict of interest code should apply to spouses as well as to members of Parliament?
Before you deal with that question, perhaps you could give us a definition of ``spouse''? We sometimes wrestle with that definition.
Mr. Conacher: Starting with your last point, I can understand that you wrestle with the definition. The courts are wrestling with that as well. I think it will subject to ongoing interpretation and change, as there are currently hearings on that very issue before the federal government.
We do support the code as proposed, which does include the disclosure requirement for spouses and dependents. The coalition's position is that that rule should stay in the code.
Senator Smith: I know you are in favour of disclosure, so how much did the International Fund for Animal Welfare contribute to Democracy Watch? Can you disclose that?
Mr. Conacher: They have not contributed. Not all the groups contribute.
Senator Smith: Why are they listed here?
Mr. Conacher: They have endorsed the platform of the Government Ethics Coalition and joined the coalition. We do not require the groups to contribute, although we do request it.
Senator Smith: When was the judicial review request filed?
Mr. Conacher: It was filed on December 11, 2002.
Senator Smith: I was pleasantly surprised by your response to Senator Andreychuk's question regarding boards. That was a fair answer.
However, one of your positions, which continues to surprise me, is that you seem to have no concern about the same person occupying the position of the commissioner for ministerial conduct and for parliamentarians. If we were under the American system, where you have the separation of powers, it might not be such a concern. However, under the British parliamentary system — and it is a matter of opinion as to which one you prefer — it is fair to say that parliamentarians, regardless of the House they are in, think there is an important principle at stake here.
Let us separate who occupies the office of Prime Minister at any given point and who is the ethics commissioner. It is irrelevant, because is it not almost inevitable that you will have an administration point of view emanating from someone who has been nominated for the position by the Prime Minister? That person who is to be in charge of overseeing ministers and parliamentarians will say, ``This is the path that you must walk on. Do not stray.'' Is that not a fundamental contradiction of the separation between the administration and parliamentarians?
Mr. Conacher: If you are structuring these ethics commissioner positions as currently, where there are two Ethics Counsellor positions, and the one for lobbyists has statutory power, which this proposed ethics commissioner will have, he or she, therefore, will have the powers of an inquiry judge and can be reviewed judicially. As I mentioned, we have filed two judicial reviews of the Ethics Counsellor.
If you have that position with statutory power, even if you have two ethics commissioners, one for parliamentarians and one for the executive branch, the ministry, they will both be subject to judicial review. You will have one court ruling on whether their interpretations of the rules are correct or errors in law. As a result, you will end up with one standard.
Senator Smith: That is another area of concern. At the end of the day, at least in the case of the members of the House of Commons, the people who make those decisions are responsible for who they put in there and they have to be elected while, when last I heard, judges are not.
Mr. Conacher: Yes, you could have two different commissioners. We just say change the appointment process to ensure there is sign-off by all parliamentarians on the appointment. Then, you would have a person that should satisfy everyone, not just a person that will represent the Prime Minister. You will then have consistency of interpretation. There is similar wording in some of the rules in the proposed code for MPs and senators as there is in the ministers' code. Do you want different interpretations of those rules? We do not think that makes the most sense, in terms of having a clear, open and effective system where everyone knows the standard of behaviour that is expected and the lines that can and cannot be crossed.
Senator Smith: Could you not have that with different judges as well?
Mr. Conacher: You can, and eventually there would be an appeal. Why not have one judge at the trial level, rather than two or three?
The Chairman: Our time is going on. We do have to move on.
It seems to me Mr. Conacher, that you have proposed that everything should be made public; whatever is exposed is reported to the ethics commissioner and should therefore be made public.
It seems to me that for the system to work properly, there would almost have to be an attorney-client relationship, a building up of trust between members of Parliament and the commissioner and senators and the commissioner, so that they would actually reveal everything that they are supposed to reveal. In order for the system to work and for there to be total disclosure, there must, however, be some measure of privacy and confidence. It seems to me that this is what would allow senators to properly dispose of their own private matters and to properly organize their own lives, so they are not in a position of conflict of interest.
I really would question where you could draw that line between disclosure and non-disclosure. It seems there must be some measure of trust built up between the commissioner and the people who are disclosing to him or it will not work.
Mr. Conacher: These advisory opinions do not have to identify the parliamentarian asking for the advisory opinion. That is where we draw the line on disclosure. If you approached the ethics commissioner and said, ``I have read this rule and someone has invited me to such-and-such an event or to join such-and-such a board, can I do it?'' You have not done it, so you are not being investigated for a violation. You are merely asking for an opinion. The advisory opinion is issued. It does not identify the parliamentarian. It is based on the fact that a parliamentarian approached the commissioner and described a particular situation, and that he or she was referred to the rule that applies and how it is interpreted. Everyone will know the standard, and it will be clearer to other parliamentarians as it may relate to future behaviour. Not that they should not check with the ethics commissioner before going ahead, but they will have more guidance than just the wording of the rule. There will be an interpretation of the rule. You will build up a standard that will become better and better known, and the lines will be more and more clear as time goes on.
The Chairman: You are talking about generic disclosure, not personal disclosure. It seems to me that these are the lines along which the provincial commissioners operate, that is, generic disclosure.
Mr. Conacher: That is right. You would not have to say it was a senator or an MP unless it was a specific situation that might apply to one or the other because of how the rules are written. It would just say that a ``parliamentarian'' has requested guidance, and the situation would be described and the interpretation bulletin of how the rule applies to the situation would be given.
Senator Joyal: I want to bring forward the qualification to the mention you made that a member of Parliament who is the object of an allegation has the resources of Parliament to defend himself or herself. To my knowledge, that is not correct. I was the object of an allegation and I had to take legal action, but the Senate did not assist me with the fees. I am not aware that other senators that are the object of some of your allegations have ever received money from the Senate to defend themselves.
You should qualify that because it is a very important element. To throw anything at anybody and then say, well, you know, there is a dictum of Voltaire that you might want to reflect upon, which is: Lie and lie, there will always be something remaining. If we are to maintain a high ethical standard, the standard must be as much for the one who makes the allegation as the one who is the object of the allegation. To state that you can always accuse somebody because they have the money of Parliament to defend themselves is a lax interpretation of how our Parliament behaves in terms of responsibility for its members. How would you qualify that?
The Chairman: This would have specific connotations for a member of Parliament, if such an accusation were laid just before an election when there was not time to dispose of the matter.
Mr. Conacher: Yes, and nothing you could ever do, unless you wanted to remove the Charter right to free speech, would deal with that situation. At least having an independent watchdog, whom the public believes actually clears you when they say you are cleared, will help clear things up. That way, it will not be hanging over you in the way any allegation filed with the current Ethics Counsellor will hang over anyone, because he has zero independence and no powers to investigate. He is incapable of investigating or clearing anyone.
If you see a gap in terms of Parliament dealing with the expenses, I would suggest trying to build it into this system. As I said, we would be happy with a bar against frivolous and vexatious complaints. You have the further safeguard of the ethics commissioner having to have a reasonable belief that something has happened in order to launch an investigation, so that people would have to come forward with evidence rather than just speculation before an investigation is carried out. Those are the safeguards.
Overall, I understand the difficulties, but this is the fifth attempt to have a code. Many other professions have had codes for years, if not decades. It is clearly time that you had one.
The Chairman: Thank you, Mr. Conacher.
We have before us for the second part of this meeting this morning, Ms. Finlay, President of the Parliamentary Spouses Association, together with the Administrative and Logistics Officer, Ms. Simms, and Dr. Poy, who is wearing two hats today as a past president and a senatorial spouse.
Ms. Mary Anne Silverthorn Finlay, President, Parliamentary Spouses Association: On behalf of the Parliamentary Spouses Association, PSA, I would thank you for inviting us here today. With me today is Dr. Poy who is a member of our association as well as Ms. Simms who is a member of our staff. Cathy Hayes and Harvey Slack expressed their regrets at not being able to attend this morning.
It is important for committee members to understand who the parliamentary spouses are, so please bear with me while I give you a brief history. The Parliamentary Spouses Association was established in 1950 to provide support among individuals who share common situations and decisions as spouses of parliamentarians; to serve the public by providing non-partisan support for the parliamentary system of government in Canada; and to foster good relations among the spouses of both the members of the Senate and of the House of Commons of Canada.
Our membership totals 314 people for the past year; 71 are spouses of the members of the Senate, and 243 are spouses of members of the House of Commons. We are a complex group. At any meeting, 50 is an average attendance in number. Let me explain.
Our non-partisan organization encompasses members from the Arctic to the Atlantic to the Pacific. Our methods of communication are newsletter, e-mail and telephone. Our association has both male and female members. We have members who are stay-at-home parents, who stay home as individuals or who are working at home. Some are in business; and others are retired. We have professionals such as lawyers, teachers, accountants, medical personnel and others. Travel to Ottawa is almost impossible for some because of distance and home commitments. From this history you can see the diversity of our association.
Why would we be speaking to this committee and the House committee about the proposed disclosure of spousal assets? I refer to a document from the chair of the House committee to the members of the House, dated December 19, 2002, entitled, ``A working document on the code of conduct for members of the House of Commons.'' It also refers to senators on page 3, item 4, No. 2, where it says that members of the House of Commons should include spousal disclosure, although its specific form and details remain to be determined. Spousal disclosure is an important protection for parliamentarians, and it recognizes the reality of the modern family. It is also consistent with the practice in other jurisdictions.
My comments are not as a result of surveys to our members or consultation meetings with others; my remarks are a result of verbal comments to me, the office staff, and data collected from a presentation by a past president of our association to a similar committee of the House of Commons in 1996 when the present Speaker of the House of Commons was chair of that committee, referred to as the Oliver-Milliken committee. The information in the report of that committee expresses the concerns of our members, and those concerns are still current. The concerns are general in nature.
Since 1966 spouses of cabinet ministers and/or parliamentary secretaries are already well aware of and involved in the disclosure process. I am referring to the Prime Minister's code. It is not the process that causes us concerns; it is what is done with and who has access to the information given in the disclosure. Is it available to the public? Let me quote from the past president's presentation to the House of Commons:
We do not object to a listing of assets, but there is a difference of opinion as to how precisely. We do not object to a net worth evaluation and publication. We do find it interesting that some of the prime movers on disclosure are newspaper publishers. We do prefer closed-door disclosure to an intermediary over public notification.
We recognize the need for disclosure, but we have to emphasize our interest in preserving the legitimate privacy interests of our members. It is our desire that a level of disclosure be achieved that satisfies the public without going too far.
I will give you some personal information. My husband has just finished a term as parliamentary secretary. Going into that term, we were asked to put our assets into a blind trust. We went through the procedure and found it to be most interesting and enlightening. Since our assets are mostly all joint, I put mine into the blind trust also. One of my personal holdings was deemed by the Ethics Counsellor to be possibly presenting a problem. Therefore, wanting to be so-called ``squeaky clean,'' I chose to sell that particular set of assets, and amazingly, gleaned quite a bit of income. What happened to my income tax? You can well imagine, and I am still paying for the benefits, so to speak, because of the effect on any income tax.
Another member of our association told me he had exactly the opposite experience. He, in the disclosure process, deemed to sell some shares and took a great loss.
I want to give you another personal example. My husband was and is a shareholder in a major hotel in our town and was deemed to be in a conflict if he remained on the board of directors. He resigned his position as a board member. A few years later, I was asked to become a board member. Knowing the process that we had gone through just previously, I declined the position. When I analyzed that, I had to question if this whole process was doing something to me as an individual. It was as if I could not pursue my own career. Had we sought legal advice, perhaps I would not have declined the position, but at the beginning I thought it necessary to be ``squeaky clean.''
Several spouses are lawyers or are in business for themselves. Let me pose some questions to you. If a lawyer is in a partnership in a firm, does the declaration mean that he or she must declare the assets of the entire firm? What would that do to the rights of the partners of the firm? How does it impact on personal privacy?
Many of us, when we are home in the riding, live by ourselves. If we have to come to the point of a public disclosure, there are people who will be able to find out the value of our worth, so to speak, and then we are faced with a threat to our personal security and privacy. That is how many of us feel. How secure can we be with that information being publicized?
I have read several controversial articles about the method of disclosure. One of the article suggests that immediately upon someone being elected to the House of Commons, there must be disclosure, both by the member and by the spouse. I, and members of our association, wonder if we are limiting the prospective people who want to hold an elected office.
As spouses, we want to be seen as cooperative, but we also want to be informed. We want to be part of the process instead of having a code or a procedure enforced upon us. We choose to be spouses, but we want to be in a position to continue to be individuals, as business people or professionals, without a public declaration. We want you to be well advised that, as spouses, we are an integral part of the big picture.
That concludes my general remarks, and I am confident that the question portion of this committee will garner a great deal more information.
The Chairman: I have to ask you: If you had a sufficient guarantee that no public disclosure would actually mean that and that no values would be disclosed, would that satisfy you?
Ms. Finlay: I can answer that in a negative way by saying that our first choice is very private disclosure. We have no difficulty with that at all. We have difficulty with the public disclosure, and how public it would be is what causes us a lot of concern. If there were some guarantees, we would probably be much more comfortable than we are with the position we are in right now.
The Chairman: I can recall looking at the form that Ontario Members of the Legislative Assembly have to fill out. They not only have to fill out the exact addresses of all their land holdings and their home but the exact value of everything they own. It seems to me you are right. It is setting up the spouses, who are there alone, in the position of potential victims.
Senator Rompkey: I ask my question as the spouse of a parliamentary spouse who is a director of the Parliamentary Spouses Association. I should declare my conflict of interest right at the beginning. My spouse has been a member of that association for 31 years now.
Ms. Finlay: And a very active one.
Senator Rompkey: Having said that, I wanted to ask you to find some ground for me between the two positions of the rights of individuals and the possible benefits of disclosure. We heard from the Ethics Counsellor that parliamentary spouses found some benefit, advantage or value to disclosure. Would you care to comment on that?
Conversely, some people in the past have put forward the argument that spouses are individuals. At the last meeting, I raised the example of Jane Crosbie, the spouse of John. He had to declare his assets because he was in cabinet, but he adamantly maintained that she was an individual in her own right and that she had some rights as an individual.
I wanted you to find some middle ground between those two points of view.
Ms. Finlay: I am not sure I can find a middle ground. On many occasions I have read with interest, and horror — I do not believe everything that is in the media — the Ethics Counsellor's comments.
As you have indicated, the counsellor notes that some members may find themselves in a position of choosing to resign because of a conflict with their spouse's assets. That goes back to my rhetorical question: Are we then in a position to be limiting people who will want to hold public office?
The biggest concern of the spouses' association is our desire to assume and keep our personal identities. I think of one former past president of our association who has indicated this in her written documentation: My husband chose to be a member and I support him. I choose to stay at home, so to speak, and be behind the scenes. I want to maintain that kind of private, personal life.
Where you draw the lines, I have no idea. I have talked to many people in our association who would have no trouble disclosing assets privately, one to one, with an ethics commissioner. The document to which the Chair has referred for the Ontario legislature I find personally very offensive. It takes away all of my private rights. To define where the two separate, where they come together, we need some very definite, clear guidelines. Our concern is our personal lives. People in personal business want to maintain their identity.
Senator Rompkey: Could you comment on the testimony we heard that some spouses somehow found a benefit to them, that they gained something from disclosure? Has that been your experience?
Ms. Finlay: I do not know of any benefit, other than one flippant comment to the effect that a spouse said, ``I found out how much we are actually worth.'' Whether that is a benefit or not, I do not know.
Senator Smith: I have complete empathy with your point of view. I would not even ask this had you not raised the issue. I am mystified about the ruling that you referred to about a hotel investment. I could understand the situation if he had been a PS at the time, but would not a blind trust have solved everything?
Ms. Finlay: He was a PS at the time and a blind trust did solve everything once he removed himself from the position of the board of directors.
Senator Smith: There certainly was no suggestion by anyone that you would not have been eligible to sit on the board, was there? That would trouble me greatly.
Ms. Finlay: No one told me that in so many words. I just found it difficult to take that position. He had removed himself from the position. We are a couple who talk about things at home. I wanted to be so-called ``squeaky clean.''
Senator Smith: He would not even have had a problem as an ordinary MP. You would have been and you would have continued to be as pure as the driven snow.
Ms. Finlay: I sometimes get paranoid about what might become public.
Senator Joyal: I want to come back to the balance between the right to privacy and the right of the public to expect from its representatives dedicated performance to their constitutional duties. In your own terms, what is the definition of a spouse?
Ms. Finlay: Me, personally?
Senator Joyal: In your common understanding, what is a spouse?
The Chairman: I believe, while you are thinking, Ms. Finlay, that the definition in the proposed code is that ``spouse'' is a married person and there is provision for common-law partners of either sex.
Ms. Finlay: I was going to refer to the definition in the document.
Senator Joyal: In your understanding, the definition of spouse is, first, someone who is legally married. There is very clear legal status. Then, second, a common-law partner is included, that is a situation where two persons live in a conjugal relationship for a period of a year. Is this the way you understand it?
Ms. Finlay: Yes.
Senator Joyal: In your opinion, is the legal relationship that monitors the assets of each partner in that relationship of any significance to you? I will be more specific. There are different kinds of legal arrangements between two partners who accept to share life. They can share any assets. It is what we call in the French system ``la communauté de biens.'' Anything that accrues to one member, the other one can claim half of. There are, of course, other legal arrangements whereby each one maintains separate entities of ownership.
Then we have, of course, the common law whereby the middle ground is still true unless there is a clear contract between the two.
Does that have any impact on the definition of disclosure? We are affecting that relationship when we are talking about disclosure of assets. In a case where there is a community of goods, anything that one partner does benefits the other. That might raise some questions. However, if the two have totally separate ownership and independence, recognized by law and sanctioned by law as being an acceptable system, that has an impact, too, in my mind, especially in the year 2000 and on. We are no longer in the twentieth century where the male part of the couple had a dominant position. We have entrenched the equality of the sexes. It should mean something. We should be able to draw some conclusions when we are trying to define a system that affects the equality and autonomy of each of the two partners. That is what we are doing by imposing an obligation on one of the partners who is not party to the obligation, the oath, that is taken on by the member of Parliament or the senator.
I might be too specific, but I am trying to understand what we are doing here. At the end of the day, we are dealing with rights. As you said yourself, we are dealing with your rights and the rights of any other spouse in a similar situation.
I want to try to understand the impact of the legal status that the two partners have chosen for themselves. We are imposing disclosure obligations upon two people who have the right — and that right is totally recognized in law and in the Charter — to decide for themselves on their own legal status.
I am trying to understand that. As you said, everyone is for motherhood. We want to look clean. However, we cannot do that at the expense of giving up the rights and ignoring the decisions taken by people, some of them, prior to entering public life. Would you comment on this?
Ms. Finlay: I am not a lawyer, but I try to follow the law. There are certain situations to which you have alluded that the law would have to decide. For instance, if you enter a common-law relationship, there will be some assets that you choose to keep as an individual and there may be others that you acquire as part of that relationship. Those would be joint assets. If someone becomes a spouse of a parliamentarian, the joint assets would need to be disclosed. Where I become a private individual is in relation to the assets that belonged to me as the other partner, which I would not have to disclose. Having said that, I would need a legal opinion to know, in a common-law relationship, what is determined to be separate and what is determined to be joint.
I am not sure that answers or covers anything you have asked.
Senator Joyal: This is an important element of the decision we will be taking. I raise the issue this morning because I should like us to share the preoccupation that I have with what we are doing when we are compelling one partner who has decided, jointly, to retain the total control of his or her assets, to be then subjected to a system whereby there is a legal obligation to disclose.
This raises an important element of changing the nature of the relationship between the two persons. If we are doing that, I want us to be very conscious about how far we can go on the balance between what you said, namely, the balance between the rights to privacy and the rights of the public, to be sure that the constitutional duty of the person is served according to what are the constitutional duties of a senator or a member of Parliament.
The Chairman: Senator Joyal, surely the issue is not only the legal property rights. The issue that we have to deal with is also the public perception of a parliamentarian helping a spouse. As Ms. Finlay said, she and her husband talk openly with each other, so he would know of her interests and her involvement in other things. Certainly, the public might then reasonably think that the spouse knows and cares about her interests.
Senator Joyal: We make the assumption that, because they are in a conjugal relationship, legal or otherwise, each of them has a vested interest so that each of his or her assets increases. If I am in a legally binding relationship with a partner and that person has total control over his or her assets, then there is the inference that, because I am in a conjugal relationship that it is an intimate relationship, I have a shared interest, and his or her assets increase. My position could be used — that is, my duties as a parliamentarian — so that those assets would benefit from that relationship.
However, it does not trump the legal rights of my partner to monitor and manage his or her assets the way she or he wants to do it, as per the contractual link we might have.
The Chairman: Again, we come back to the public perception, which is part of what we are trying to deal with here.
Senator Joyal: That is exactly the point. Where do we strike the balance between the rights to privacy and the rights that accrue to the spouse under a legal bond of marriage or a common law situation, and, as you said, the right to public interest? I think that is the Gordian knot we must deal with.
Ms. Finlay: I do not have an answer. That is a question that must be answered and worked through carefully with the advice of people in those situations and with legal advice. Again, we stress the importance of being able to maintain our individuality and our privacy.
Senator Grafstein: Something arose out of the evidence that we received from our counsel, Mark Audcent, which troubled me. I have been thinking about it since he gave his evidence. This is a question not of disclosure but of legal conflict as it applies to spouses. There is almost a grey cloud over a parliamentarian spouse who is actively engaged in volunteerism. I notice that your organization is actively engaged in women's shelters and breast cancer research. My wife is actively involved in the latter. There is some question as to whether or not that activity, which would directly or indirectly call upon federal funds, might be a form of conflict.
More directly than that — that is, something even more troublesome — under the code and an act of Parliament, if one benefits from a contract for money by the federal government directly or indirectly, one would be in a legal breach, according to the testimony we have heard. In what position does that put a parliamentarian if one's spouse is effectively paid as a public servant? Is that not a direct conflict?
I raise this because it never occurred to me before that the law as it presently stands would cover that. We have been admonished not to participate in volunteer organizations under that same rubric.
My question to you is simple: Have you looked at this question? If you have, are you concerned about it?
Ms. Finlay: Have we looked at it? No. Are we concerned? Now that you bring it to our attention, the answer is yes. Some of those things that you are telling us about are frightening. I have been actively involved in women's shelter work.
The association as a whole, does one major fundraiser a year. Some of you participated in it last year at Christmas time, and we thank you immensely. Those donations we have collected — whatever amount the person wishes to put in as they enter the door — have always been discussed with personnel on the Hill before our decision is finalized.
Concerning what we do privately and personally, I do not think I have ever thought about what I belong to, as a volunteer, when my husband is a parliamentarian. However, if some of the information that you are giving us is accurate, they are all public associations and organizations. However, I have never thought about where they get their funding. The two people beside me have not thought of it either.
Senator Grafstein: Perhaps you could read the testimony of Mark Audcent and get back to us.
The Chairman: I would suggest that you not come back to us but that you send us a letter. I would also point out that in the propose code there is only a problem where the parliamentarian would have a direct interest, not an indirect one. The parliamentarian himself or herself must get a benefit from it. An indirect benefit through the spouses is, I believe, in order.
Senator Grafstein: I am not talking about the proposed code; I am talking about the existing state of the law, as it applies to this. We are here to not only solve some public perceptions, but also to deal with major inconsistencies in the law. We are not here just to deal with a perception, but also to deal with some reality. If this is reality, it is something you might look at. Again, if you can give us the written benefit of your advice, I would be most interested in your response.
Senator Di Nino: Let me first comment on Senator Grafstein's statement. I believe Mr. Mark Audcent was responding to a question I asked. I thought he was absolutely clear. The law as it exists today, as I asked about a number of organizations with which I am and have been involved with through the normal course, receive government grants. I think of one instance this past year, where there was absolutely no personal benefit to myself. I think he was unequivocal when he said, ``You are in breach.'' That gave me concern and, as you know, I asked that this be clarified.
I do not think there is a question there, unless he was wrong, and I do not believe he was.
In the discussion that deals with the involvement of spouses and the code, I agree that there must be some involvement, particularly for the purposes of transparency and perception. I just wanted to clarify a point that you made. I believe you said that, if it were a confidential disclosure that would not be available to the public and would be in the offices of the commissioner, you and your colleagues would not oppose that. Is that correct?
Ms. Finlay: That is correct.
Senator Di Nino: Therefore, your concern is making public the affairs of the spouses, whether they are, as Senator Joyal was saying, between the two spouses or, as is the norm with most assets, held jointly. Your concern is that, to the degree possible, we should not make that list public for those who are curious or those who may have ulterior motives, who would wish to use or abuse that list?
Ms. Finlay: That is correct. A number of us feel that some of the documentation we have read, for instance, the election of an MP and immediate disclosure, is very intrusive. We have been through the process that ensues when someone is elected to the position of parliamentary secretary or cabinet member. Most of us found it very enlightening. I do not think any of us has a problem with private disclosure. It is, as you have alluded to, what happens to that information or into whose hands it goes after it is private.
Senator Joyal: I think this is very important to emphasize that, because it is part of the unintended consequences of what we are being asked to consider today. Once you start disclosing assets, you start measuring someone's level of wealth. From that conclusion to the one that the richer you are, the more disinterested about the plight of the have- nots, will start being spread. It will mean, essentially, that we will try to change a very important element in the fabric of Canadian society. We will be trying to identify who is richer and less rich, and who is more sensitive and less sensitive to the conditions of average Canadians, and we will start determining committee membership by the very determination of their assets.
If we enter into that process, then we would not be serving the public good. That is much more important, even for the spouse. Like it or not, once you are elected or appointed to the Senate, you become the focus of public attention and sometimes public meanness.
Ms. Finlay: You made very interesting observations that I think are absolutely true. Our life is a so-called ``open book,'' and if we have to make a public disclosure it will be even more of an open book.
The Chairman: Thank you. I would point out before we close that I believe the proposed code, Senator Di Nino, would help to clarify some of the problems about whether you can serve on charitable boards. I believe that Mr. Audcent agreed that it would fix this problem.
Senator Di Nino: May I put on the record quickly, I am not concerned only about the disclosure of assets or information that would lead to someone assessing your wealth. That is of concern, obviously, but there are other aspects to this. There may be situations where the parliamentarian or the spouse may find himself or herself in some temporary financial difficulty or a situation of a very private nature, and where certain information could be misused by someone. It may not necessarily be related to wealth, but just a condition of life in which we all find ourselves from time to time.
I think it is important that, while understanding the role that one plays in public life, the private lives of parliamentarians be kept as private as possible, not just the wealthy ones.
Ms. Finlay: I appreciate those comments.
The Chairman: I would also point out that under this proposed code, no values would be made public.
I thank you very much for appearing before us today. I hope we were not too hard on you.
The committee adjourned.