Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 9 - Evidence
OTTAWA, Wednesday, March 26, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:14 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, we have before us the Honourable Herb Gray to give us his position on what should happen with our deliberations about the proposals to amend the Parliament of Canada Act, about the ethics commissioner, about other consequences 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.
The Right Honourable Herb Gray: I will informally offer my comments on some of the major issues you have been dealing with and then I would be delighted to respond to your questions. I will follow the issues as set out in one of the publications from the Library of Parliament.
First, with respect to the matter of whether there should be one ethics commissioner dealing both with the Order in Council appointments and the conduct of members of Parliament, my view is that there should be two separate commissioners.
I propose this on the grounds of practicality. I understand that there are several thousand Order-in-Council appointments if you include both the full-time positions and the part-time members of various boards. For one commissioner to deal both with issues involving members of the House and Senate and the Order in Council appointees would be a job that would be beyond the capacity of a single individual, even though that person would be supported by deputies and staff members.
Second, I strongly believe that the ethics commissioner should be appointed in a way that involves full consultation with both Houses of Parliament. I think the model used for the Privacy Commissioner and the Access to Information Commissioner and the Official Languages Commissioner is a good one. I suggest that is the approach to follow. I note that the current proposal does not call specifically for any formal consultation or formal involvement by way of resolution for the selection of the ethics commissioner. If the person is to be a parliamentary officer, then I would be on the side of those who feel there should be full consultation and approval by resolution of the officer in question.
With respect to the matter of whether there should be a committee, there should be a committee in place as the principal liaison between the ethics commissioner and Parliament, but there should also be in place more with respect to ensuring that the commissioner has appropriate administrative support and is getting sufficient cooperation from all concerned.
I would not recommend that the committee, be it a joint committee or a separate committee for each house, have a role of carrying out investigations into the conduct people who are being investigated by the commissioner. There is a risk of partisanship, which would have to be avoided to make the concept work. There is a risk of a difference of opinion between the ethics commissioner and the committee. There should be a committee for this purpose just as there is a committee that is a liaison with the chief electoral officer. The new committee should play a similar role with respect to the ethics commissioner.
Parliament has had a successful history with joint committees. However, honourable senators may feel that their role is important but is not as directly connected in every case with citizens of the area from which they are appointed. That may give grounds for creating two separate committees. It may be more practical in terms of scheduling and so on.
Finally, with respect to the issue of disclosure of assets of spouses and dependent children, I note that the current legislative proposal does not call for that with respect to MPs. I think that is appropriate, bearing in mind that MPs and senators do not have the authority to make executive decisions and do not have the same executive oversight as ministers or senior appointees of the Order in Council who are running institutions. In the present approach for Order- in-Council appointees, the spouse's assets are disclosed to the commissioner who uses that information as a means of giving appropriate advice to the Order-in-Council appointee. That model should be continued. That information is not made public; the disclosure is to the current ethics commissioner and he makes use of it as he sees fit in terms of advice to the Order-in-Council appointee. We must recognize today that spouses have independent careers; they are not emanations of the other spouse or partner.
My only other comment is that I know the draft code of conduct states that members and senators are expected — I think I am quoting accurately — ``to serve the public interest and to represent their constituents.''
I do not think the phrase ``represent their constituents'' is defined. If it is, I missed it in my review of the material. What does this phrase mean? How does that fit in with the traditional view as expressed in the words of Edmund Burke who said to his electors in Bristol: ``I owe you not just my vote but my judgment?''
What happens if a constituent feels he is not being ``represented'' by the member? Can that be a source of complaint to the ethics commissioner? I would encourage members of this committee and the House of Commons counterpart to develop some clarification. I spent 40 years representing my constituents, apparently to their satisfaction when one looks at the number of elections in which I was successful. I interpreted that in my own way — more along the lines of Edmund Burke.
I did not find any explanation or clarification of the phrase. You may want to take a look at that in terms of your own activities because many senators have their own ways of being in touch with people from their areas — often very interesting and effective ways.
Having said that, I know you called upon me because of the almost 40 years I spent in the House of Commons, the periods during that time in which I was also a public-office-holder as a minister and now still as a public-office-holder as chair of the International Joint Commission. Having said that, I am in your hands.
Senator Grafstein: I am delighted to welcome our old colleague and old personal friend Mr. Gray to this committee. His counsel and wisdom is always well received and is, often in current days, sadly missing. I welcome you here on behalf of the committee and myself.
I am delighted that Mr. Gray raised some very important questions by first suggesting that there should be two separate commissioners — however appointed or dealt with — because of the difference between the executive and Parliament. I wonder whether he would agree with the view of some of us that, in effect, if you take that one step, you jump to the next step, which is to examine carefully the division of powers between the cabinet, the House of Commons — the house of confidence — and the Senate.
You have assisted us further by drawing our attention to the fact that there is some ambiguity in the words ``represent their constituents.'' We in the Senate do not really represent constituents but we represent regions and interests.
Do you agree that, when we examine the question of public conduct, we really should try to parallel as closely as possible the separation of powers and the division of powers under the Constitution?
Mr. Gray: Honourable senators, there is a lot in what the honourable senator says. His words are reflected in part in my own initial comments. Another reason for having two separate commissioners — one reporting to the Prime Minister and the other reporting through a committee or directly to one or both houses — is that the Prime Minister in our Westminster-model parliamentary system is accountable to the House of Commons and, through the House, to the public for the conduct of the ministers who are appointed. That is a fact of our parliamentary model that should be reflected in a code of conduct for Order-in-Council appointees and for members and senators.
With respect to division of powers, I do not think one can come up with a doctrine that as clear as that in the United States Constitution because our Constitution, in effect, says there should not be a total division of powers. The ministers are elected members of Parliament. They are in the house. They not only answer questions for members but they take part in debates; they vote. They are not just called in to testify before committees such as this one as is the case in Congress. Furthermore, in the Senate there is at least one senator who is a member of the cabinet as the government leader. That person participates in the debates in the house, presents legislation, and answers questions. From time to time, there is more than one senator in the cabinet.
We do not have that practice to provide traditionally, as in the British House of Lords, which you have all visited, where several ministers answer questions during their Question Period.
Our doctrine, not just by way of Constitutional convention, does not call for a total separation. There is room for clarification, especially with respect to the matter of the issue of the code of ethics as it applies to members and to Order-in-Council appointees. To say that we need total clarification would require a reconstituting of our parliamentary system.
Senator Grafstein: I agree with you that the Westminster model is one that we should at least look to carefully. Again, the mother Parliament has carefully distinguished exactly what you have said. While it is true that there is a separation of powers, they are not totally separate. While it is true that there is a division of powers, they are not totally divided.
By the same token, another element to this should be added: the checks and balances among the Executive, the House of Commons and the Senate. Blackstone's classic statement of that is clear that there is a separation of powers, division of powers and, added to that, the question of checks and balances.
As you may know, some of us, particularly Senator Joyal, have carefully examined the two Westminster models: ours and that of the United Kingdom. His book will be published shortly about the Senate. I urge all those who are interested in parliamentary democracy to try to obtain an early copy of the book.
When Senator Joyal was asking me questions for his research, it forced me more and more to examine our own model. When it comes to the question of conduct or ethics, the House of Lords have dealt with this in an interesting way, so that it is compatible and genial with the Westminster model. The Westminster model with its division of powers, separation of powers and the checks and balances among the three elements: The House of Commons, the cabinet and the House of Lords. We have an even wider and more different separation in our Constitution than does the House of Lords.
Having said that, they reached the conclusion that the best way to proceed is for each element to have its own officials and its own code of conduct — one for the Orders in Council, one for the House and a separate one for the House of Lords. Would that be incompatible with your view of our parliamentary democracy should we choose to adopt that path?
Mr. Gray: I do not think so, senator. This is what I was suggesting in my introductory remarks. There is a strong case for three ethics counsellors: one for the House of Commons, one for the Senate, and one for Order-in-Council appointees — be they are ministers of the Crown or full-time or part-time heads of or members of agencies or boards.
One may argue that this could be costly and could cause administrative issues but I think these can all be worked out. For example, let us propose that there are three commissioners. They could share offices, computer systems and even some staff. What you are saying is similar to the thought I was attempting to convey at the opening of the meeting.
Senator Grafstein: If honourable senators will forgive me, I have another short question, or I could leave it for another meeting. This short question deals with another key issue about which I am concerned.
The Chairman: I understand, Senator Grafstein that you wish to attend another committee so I will allow a short question rather than make you wait for another round.
Senator Grafstein: Thank you, honourable senators, for your indulgence.
On the subject of spouses, many of us know the underlying principle of your statement in terms of the separation of spouses and their careers and activities because of the remarkable work that your wife has done in Ottawa. This issue is of concern to many of us. We believe that a spouse should really be free and clear of any entanglement with respect to issues dealing with conduct, should that spouse decide that she or he wishes to pursue a different career path.
I have discovered — to my amazement — that even a spouse who is active in the volunteer sector may be caught indirectly by this overview about what I consider to be the farther reach of the conflict rules where there is no public outcry or concern. Could you give us a few more minutes about your views on that? You touched on that. How do we ensure that a spouse or significant other is kept separate and distinct from the office holder in a fair and equitable way?
Mr. Gray: If you are talking about an MP or senator, the current proposal does not deal with that and I do not disagree with that. I will talk about office holders, briefly, in a second. In spite of the important role that MPs and senators have, that role is not directly of an executive or administrative nature. Rules are in place such that you cannot vote or debate on anything that has a direct pecuniary interest. In addition to that, the current view is that if an issue were before either House pertaining to a whole class of endeavour of which you are a member — if you are a farmer, for example — then you are entitled to debate and vote on it.
With respect to office holders, there must be a more definite provision. The current rule basically covers things.
As far as spouses' careers are concerned, there can be at least two separate categories. The first would include a person who is totally in the private sector and does not come in contact with government any more frequently than any other citizen. The second category would include a person who may be active as professionals or as volunteers in organizations that give advice to governments or carry out functions often on behalf of governments. In the case of the latter, there must be some common sense provisions. For example, I do not think that a minister whose spouse operates directly in the policy area for which the minister is responsible, should have that area of responsibility. Alternatively, there could be a ``Chinese wall'' whereby the minister does not deal directly with decisions involving the spouse's organization in such a situation. That is easier to accomplish if the minister has junior or associate ministers.
In respect of the first category comprising those who work entirely in the private sector, for an organization dealing with governments, there are some practical steps of the kind that I mentioned. In addition, disclosure to the ethics commissioner should be made, so that he or she could deal with relevant situations. I also want to mention that, under our existing law, if a person is acting on behalf of an organization and makes representations to the government, then that person must register under the lobby law.
On the other hand, it is not considered lobbying if the government approaches the person's organization and says, ``Please tell us your views on this.'' That can be dealt with, using a practical, common-sense approach, without depriving the community of the services of one spouse as a minister and the involvement of the other spouse in terms of his or her expertise.
The Chairman: I should point out that the original proposal that is before us does not mention any requirement for spouses or significant others to disclose their financial dealings. However, in the draft proposal that I believe the committee and the House of Commons is putting before the Commons for discussion, they have put it in.
Mr. Gray: I am simply asking the committee to examine — and I think it is dealt with in Mr. Wilson's testimony here — what is done now. The spouse discloses the assets confidentially to the counsellor. The counsellor keeps that information confidential. If the counsellor sees some situation arising, then he or she is in a position to advise the minister.
The Chairman: In advance.
Mr. Gray: Honourable Senators may also wish to look at the fact that the parliamentary secretary — who is, in fact, an Order-in-Council appointee — is not in the same category as the minister. Honourable senators may wish to look at that. Some parliamentary secretaries play a bigger role than others at the behest of their minister.
Mind you, since Mr. Trudeau's time, the parliamentary secretary has only served for a two-year period. Before Mr. Trudeau created the current rotation system, a person was appointed until he or she was defeated, or carried out feet first or appointed to the cabinet.
Senator Kroft: Mr. Gray, it is great to see you here. In a way, your presence is counter to everything we are doing, because one could safely say that, in the 40 years of your service to Parliament, you have demonstrated that we do not need any kind of code whatsoever. The public has always understood that you had your own, and it has served you and Parliament very well.
If I can draw on your years of experience, I should like to go behind the word ``disclosure'' a little. We have talked about disclosure, and have had the opportunity to look at many models. There has been evidence before this committee already, and there are many models in this country and around the world about what disclosure means in a parliamentary sense.
We also have concepts of disclosure in the corporate sense. The banking committee is looking very closely at that now as a result of situations in the North American economy — the ideas of conflicts and cross-benefits and so on.
Let me talk about the corporate model as opposed to the strictest of the models — what I would call the ``accounting model,'' where disclosure means a detailed accounting model. In the corporate sense — and indeed as incorporated in the rules of the Senate as they now stand and in the House of Lords model — it tends to say more. In disclosure, it identifies those situations, be they directorships or major ownerships of companies or other positions that in themselves may inherently give rise to questions of possible conflict and of which parliamentarians and indeed the public should be aware. To me, there are quite distinct approaches here.
As this committee knows, I am skeptical about the merits and the point of the accounting approach. Based on your experience, would you feel that a disclosure that basically reflected the important interests of a member of Parliament —of directorships or otherwise — was not enough? Can you imagine any case where the accounting type of disclosure — the dollar values of holdings or investments, et cetera —would add anything to the process? Would it advance the causes of clarity? Would it do any more for transparency? Would it do anything for the system to go to the accounting model as opposed to what I would call a ``broad-interest approach''?
Mr. Gray: I would be inclined to favour the broad-interest approach. With respect to the accounting model, having to disclose total values may well discourage people from coming forward and offering themselves for public life.
Furthermore, an approach in which people disclose amounts over or under a certain threshold overlooks reality. For someone who has a small business, that is as important to him or her as someone else who controls a very large business. They would be as interested in the impact on that smaller business as the larger one.
With respect to the corporate model, I do not have to say to honourable senators that the corporate model is available to small businesses as much or more as it is to big business. The corner grocery store or barbershop could be organized as a corporation. For a private company, there has to be a board and certain rules followed in the provincial or federal company law.
If you want more transparency, the argument could be in favour of disclosing directorships or executive positions. For example, in Britain, I believe they still have the Register of Members' Interests. Members must register, whether they are on the board of a company, an executive of a union or industry association, or whether they are sponsored by them — which is apparently a practice that is acceptable there, but obviously, as far as I am aware, unknown here.
Some merit could be seen in having a register of interest. We have that partially now with respect to trips outside the country. There is a proposal that this be expanded to domestic-sponsored travel and so on.
There is a case for disclosure of directorships and the like, although honourable senators may argue that there should be a distinction between being a member of the board of a voluntary organization — perhaps one fighting a certain disease — and being a member of a board of a commercial one. However, they both have links with government or are affected by government policy.
I should like to briefly address a comment that Senator Kroft made. To what extent do we examine what the problem is that we — I say ``we'' as a country — are attempting to deal with? Are we dealing with real problems of a kind that have disclosed themselves in other jurisdictions, or are we dealing with the desire to maintain the image at the right level, and therefore dealing with perceptions as much as reality? I presume that you have already done some of that in your work and may well do more.
The Chairman: I would like to follow on Senator Kroft's question. Mr. Gray, your suggestion would be to go to the more informal reporting style, if there is to be reporting. It seems to me that you would have to define terms such as ``nominal,'' ``significant,'' and ``controlling.'' It relates to the size of the company in which the person may be involved.
Mr. Gray: With all due respect, I take issue with that. Family businesses in small communities are as important as vast enterprises to the people who are controlling them.
The Chairman: Precisely.
Mr. Gray: Either way, it is something that they built up.
The Chairman: Definitions become very difficult.
Mr. Gray: Definitions are important. I am not prepared to give you draft definitions. I have come to speak to you informally at your request, which I appreciate very much.
Senator Kroft: Mr. Gray made the helpful observation that we should try to determine the problem that we are trying to solve. It is fair to say that that is a question that at least some of us have been asking ourselves on a consistent basis.
It is well-known to all of us that there have been problems. They tended to be more in the executive branch, perhaps because of the nature of the responsibilities of that branch. I am responding to your invitation to look at the problem we are trying to solve.
In your 40 years' experience, have you seen, in either House of Parliament, any situations that identified or created a problem that now must be addressed? I took your last remarks to query whether we are just doing something because it seems to be what one does these days or is a problem being addressed. I will respond to that with a question to you: In terms of parliamentarians, is there a real problem to be addressed?
Mr. Gray: To use your terminology, I do not recall many situations in either House that would cause great alarm.
I do not want to be misunderstood. The courts have ruled on one situation in recent years involving one senator. I will not go into that.
At the same time, a former distinguished senator, Keith Davey always said, ``Perception is reality.'' While I do not accept that adage 100 per cent, it does have some merit. If a more fully defined code of conduct and rules set out in legislation with respect to a monitor of the code, an ethics commissioner, can assist in maintaining or enhancing the positive image of a parliamentary institution, then it should be done. That is more to enhance or strengthen the public image of our parliamentary institutions.
I might just add this observation: I have found that in their own communities, an individual member of the House of Commons or senator of any party is often more highly regarded than the group by observers of the institution. I will not pursue that. That is almost another topic.
Senator Di Nino: I join my colleagues in applauding Mr. Gray for his exemplary service. It is fair to say, Mr. Gray, that the people of Canada are well served by parliamentarians in both Houses and of all stripes.
It is also fair to put on the record that we have had very few exceptions to the rule of good and honest service. It would be a missed opportunity if I did not put that on the record. I hope that my colleagues opposite agree with me.
I, too, would like to talk about the more practical application of this new code as we struggle to balance the rights of the public to know. We must also balance the rights of the individual members and all parliamentarians. My concern is that if we put unnecessary impediments in the process of attracting appropriate and qualified individuals, we may discourage a number of people from presenting themselves for public service. You alluded to this concern earlier.
My first question is, who should initiate or lodge an inquiry or complaint? We have had a variety of views on that.
Second, I would hope that through your experience you may be able to steer us in the right way to ensure that the application of the legislation that we create is done in an appropriate manner. Are there any pitfalls in looking at this that we should be addressing from the point of interpretation and application?
Mr. Gray: I will respond to your second question first. I believe I have alluded to that subject in answer to some of your colleagues.
You should look at all of the language carefully. I already gave you one instance that puzzled me: How do you define ``represent their constituents''? You could also ask, ``how do you define public interest''? That may be easier than the other phrase. Both phrases represent attractive concepts. That leads to your first question, ``Who should be able to initiate a complaint?'' Provided the commissioner has strong authority to examine complaints and decide without recourse whether they are frivolous, I would not close the door on complaints coming directly, especially if you leave the words, ``represent their constituents.''
I would not like to see the commissioner or an individual member of the House of Commons or a senator fighting off frivolous complaints for what are really partisan reasons.
Without deep reflection, I would say there should be some vehicle for complaints coming directly to the commissioner, especially if the phrase ``represent their constituents'' is there.
On the other hand, as a check and balance, I should say that the commissioner should be able to look and quickly give an answer as to whether something is deserving of an ongoing detailed investigation and report.
Senator Stratton: There has been concern expressed around the table that once you create a statute for an ethics package, the courts feel that they have the right to go into that package if there is any kind of question put forward. Whereas, right now, some individuals here believe that there are sufficient guidelines within the current laws of the land to cover any potential situation.
If you do have a statute with respect to ethics, how would the courts potentially view that?
Mr. Gray: Please correct me if I have not gone into this in sufficient depth. It is my impression that the statutory approach is designed primarily to create the position of ethics commissioner and set out the jurisdiction.
Senator Oliver: That is right.
Mr. Gray: The code of conduct would not be given the statutory basis, but rather would be put into the rules of the House and the Senate. If it were the latter, parliamentary privilege would not allow the courts to play a role. If, however, the code of conduct was written into the words of the statute or added as regulations, then the courts would have a role. There, you get into Senator Grafstein's issue of separation of powers.
I think that it would be very important to have the code of conduct adopted in an appropriate way by the House of Commons and Senate, because it is Parliament governing itself and maintaining the separation of parliamentary institutions and courts, where it is appropriate.
With respect to the statute, yes, the role of the ethics commissioner should be spelled out in the method of choosing, as is the case with the chief electoral officer.
The kind of conduct that that would upset public is already addressed, in my recollection, in the Criminal Code. I did not mention that in my opening remarks; however, the Criminal Code is not silent on certain types of conduct. That is as it should be.
Senator Austin: In respect of your last point, Mr. Gray, it strikes me that the difference between legislating the commissioner and putting the commissioner in the rules comes down to whether you want the commissioner appointed by Order in Council or chosen by the parliamentary body. Is that the distinction, as you understand it?
Mr. Gray: That is right. You have two models before you. In one, the person is appointed by Order in Council, subject to approval by the two chambers. If the person is to be appointed solely by the parliamentary body, then you must have a way of recruiting potential candidates or allowing them to come forward. Would the two speakers do that? Would a parliamentary committee do it? You would have a process, because where you have the appointment by Order in Council — even with parliamentary involvement — at least that process develops and can be a point of reception of names for the position.
Senator Austin: It is really a question of whether someone who, in effect, is an officer of Parliament dealing with behaviour of parliamentarians, should be chosen by the executive or by the parliamentary group itself. This rules committee would normally be designated by the Senate to deal with issues of parliamentary privilege and rights.
Mr. Gray: I understand that officials appointed by Order in Council can be designated or considered officers of Parliament. I am not pushing for that model; I am saying there may be a way of bringing the two together. Let us say this Senate committee is asked to recommend a candidate for ethics commissioner. You would need a way of advertising and vetting the applications. That could be worked out.
The Chairman: Currently, even the officers of Parliament such as the Privacy Commissioner, who are in effect appointed by Parliament, are then actually appointed by Order in Council. Their budgets are approved by Order in Council, so that they may be paid.
Senator Fraser: I have two questions. The first relates to the matter of what we are trying to remedy here and the matter of perception as reality. I certainly do not think perception is the only reality, but I would argue quite strongly that it is a reality. If you used a slightly different word, if you talked about Canadians' confidence in parliamentary institutions or their trust in the democratic system, then you would convey a slightly better feeling of what we are talking about in this context when we refer to perception.
I have the impression that although there are ups and downs, there has been a general trend over the past few decades of a decline in the public's faith in the integrity of their politicians. Clearly, this was not the case for you personally, Mr. Gray. The voters of Windsor obviously trusted you and they were right to do so.
I would like, however, your views on whether or not there has been such a decline in general public confidence. I do not think it would be justified for there to be such a decline, but has it happened?
Mr. Gray: Polls would support what you have said. A lot depends on the question that is asked. I repeat something I said earlier that has always struck me, which is that the individual MP or senator in their region is looked upon more highly than the MPs and senators as a group here on Parliament Hill. You might want to examine why that is. Maybe they see the MP and senator doing constructive work with and for the community in a way that does not come through here. That is my perception.
You may have done this already, but you may have to examine what polling results are showing. They likely support what you have just said, although sometimes I wonder if the question were asked differently whether the results would not be different as well.
Senator Fraser: Someone once said, much like your remark about the public's view of politicians, the same thing about doctors. Everyone trusts their own doctor, but they do not trust doctors as a body. I suppose you could make the same argument about many other occupations.
My second question relates to the matter of spousal disclosure. You made an interesting distinction between spouses being able to make entirely confidential disclosure to the commissioner and public disclosure. I am wondering whether it is altogether appropriate to exclude parliamentarians who are not office-holders.
We all vote. Our votes may not be as predictable as is sometimes thought when we are voting in committee, which is where bills often tend to be amended, if they are to be amended. I wonder if there is not some appropriate role for at least confidential disclosure of spousal interests for the very reasons that you outlined in terms of this being useful for office-holders. Do you not think our votes matter?
Mr. Gray: Of course they matter. You can carry some of these ideas to their logical conclusion; everyone owns a home, for example. Everyone owns a car. People have professions; they are accountants, lawyers or doctors. If you want to be 100 per cent consistent and carry some of these arguments to their logical conclusion, it is hard to find anyone who will not have any potential ``conflict.'' Thus, one has to put some reasonable bounds around the concept.
I asked whether you are examining a present, past, or potential problem that you want to address or head off. One of the reasons you should move ahead with a code of conduct and strengthening the position of ethics commissioner is to avoid the decline in perception of image that you talk about, or reverse it.
With respect to disclosure, you could make the argument that spouses should disclose to the House of Commons or Senate commissioner in a private way, or in the same way. I do not think it should be any higher because of the lack of, shall I say, executive decision making on the part of the other spouse. Again, you must bear in mind a principle that has always been accepted: If something comes up involving an activity pertaining to an entire class of people of which you are a member — whether you are a farmer, a veteran or a senior citizen in age — then you do not have to declare that you have reached the age of 65 and perhaps you should sit out on this discussion.
One should look at the matter of disclosure of spouses' assets in the context of how far this takes you away from whether you are dealing with something that is not part of an overall class of activity, whether economic or social.
Senator Fraser: Several members of this committee have, at various times, mentioned assets or interests in the non- pecuniary sense. Many people, including spouses, are involved in voluntary activities. Although there may be no monetary reward, there is very great interest in the success of the various volunteer organizations, which could have an influence, not necessarily an improper one, but an influence nonetheless.
Senator Joyal: Mr. Gray, I have a precautionary reaction to statements that we have to do this because of a perception. There are 10 codes of ethics in various provinces; there is even one in the Northwest Territories. We heard from its ethics commissioner. I do not think that the general attitude of Canadian citizens differs considerably when we ask whether they have more trust in their provincial MLAs or their federal MPs. At one level, there is a code of ethics, while at the other there does not seem to be a formal code of ethics. However, as you properly said, there are rules of ethics. As Sir John A. Macdonald said 100 years ago, I often have second thoughts.
On the other hand, as you said, and I concur, there have not been repeated incidents in the last 130 years that would lead us to conclude that we need something very heavily loaded to balance public interest in one way and rights to privacy of members of Parliament and senators and provincial legislators in another way.
If we are to be effective, we have to ensure that we devise a system that is consistent with the protection of privacy. I am thinking in particular of spousal status in that system. Second, we must devise a system that is faithful to the institutional principles of Parliament.
We are not answering a calamity that Canadians would attribute specifically to the fact that there are politicians at the federal and provincial level who are behaving unethically. As you wisely said, there are different models for devising a proposal. The priority model we have to consider is a model respectful of those two fundamental principles. The first is with regard to privacy and the second concerns a recognition of the way that our system functions. You have been quite eloquent in alluding to both of them. However, I would like to get your more general comments on this.
Mr. Gray: You have offered some very wise words. To the extent that the voters have a perception of their MLAs or MPs, I do not think that perception is based on knowledge of whether codes of conduct are more complete in the legislatures than in the federal House or Senate. I do not think one person out of 100 is aware in general or in detail about whether there are more detailed codes provincially in some ways than there are federally. They are more interested in what they see about the conduct of an individual MLA or MP in terms of their own perception of what is right and fitting for their elected representative.
You have set out a number of considerations that should be examined each time a specific proposal is being considered, whether it is for the statute or for a House of Commons or Senate code.
Senator Joyal: My next question concerns the role of the committee proposed in this legislation to which you alluded. You do not seem to be favourable of the role of a committee based on the fact that it could very quickly turn into a partisan debate. We certainly want to keep ethics out of partisanship. Could you expand on that?
Mr. Gray: I see a role for a committee, but it would be more in terms of ensuring that the commissioner has adequate administrative and financial support to deal with a person's concerns that he or she is not getting a response from a department or from government, and so on. However, I see no point in duplicating what the commissioner is charged to do.
Senator Joyal: You do not see an investigative role for a committee as such?
Mr. Gray: No, I do not.
[Translation]
Senator Ringuette: A member of Parliament is supposed to represent his or her constituents and would be subject to a code of ethics. This responsibility is essential and a priority in the minds of constituents. If, by chance, that member is called upon to serve in the executive branch of government, there would be an additional code, according to what is proposed here.
I have some difficulty with the fact that such a member would first have to act as a lobbyist for his or her constituents and in all matters that he or she deals with in order to fulfill his or her obligations. Within the executive, that member would suddenly be cut off this primary responsibility. How do you deal with such a dilemma?
Mr. Gray: From time to time, this becomes a serious problem but this is not the case in general. Most matters that a minister or a member of Parliament has to deal with are minor problems, relating for example to welfare, employment insurance or local issues. These matters are not really dealt with directly by the minister or member. More often, they are resolved by his or her staff.
In case a matter is more serious, you have to approach it very carefully. The minister or member of Parliament should make sure that his or her representations are very factual. For a local issue, it is better to let a senior staff member make the representations on his or her behalf. But generally, it is possible to reconcile both responsibilities.
[English]
Senator Ringuette: That is the problem. In the proposed code, there is an additional provision that prohibits employees of a minister.
Mr. Gray: I do not think it means that the minister, as a member, cannot look into things or bring forward views of constituents, including commercial or societal interests or whatever.
I may have to invite myself back to go into this in further detail, as the questions are so stimulating. There are ways of doing this that will be accepted by all sides as properly within the ethical structures that one either has formally or one follows as someone who wants to do the right thing.
Senator Sparrow: Mr. Gray, you suggested that in your 40 years of experience you had seen very few issues that would demand an ethics commissioner. I believe you mentioned one incident in the Senate in that period of time.
Have you ever seen an issue arise that affected the ethics of a member of the House of Commons or the Senate — leaving aside cabinet ministers — for which there was no provision to address it? It seems to me that we think there is a bogeyman out there — although I do not believe one exists — that we must destroy. You used the expression ``reality of perception.'' Will we set up an entire structure, with its associated costs, that will interference with the rights of individual members of the Senate and the House of Commons because of perceptions?
Mr. Gray: My own recollection is not sufficiently strong to categorically say yes or no with respect to instances of conduct in the last 40 years. However, there is a case to be made for having additional code provisions and for the creation of the role of an ethics commissioner. The legal maxim is ex abundanti cautela — for additional certainty.
Senator Oliver: You asked what is the evil that we are trying to cure with this proposed legislation? I am not so sure that it is evil because, as you have said, we have the Criminal Code to deal with serious matters.
Mr. Gray: I did not use the word ``evil.'' I said ``problem.''
Senator Oliver: There are several other reasons why a person might want to have an ethics commissioner and a code, and some of those reasons would be consultative and preventive. From time to time, members of the House of Commons and senators would like to have a senior official they could ask whether they should serve on a board, for example. They could go to their lawyers and accountants for this advice, but they would want someone with parliamentary skills and experience to give that kind of counsel and advice.
Would you agree with that as one of the other roles?
Mr. Gray: I very much agree and I apologize to the committee for not mentioning that myself. I want to recognize Senator Oliver's very fine work in this field. He has provided a very useful base, along with his House of Commons colleague, for the discussions you are undertaking.
I appreciate very much that you brought this up. There are times when a member of the House of Commons or a senator might want to be able to go to someone within the parliamentary context to ask for advice.
The Chairman: Mr. Gray, on behalf of the entire committee, I want to thank you for appearing before us today. Your nearly 40 years of experience in politics and your experience now as an Order-in-Council appointment have brought much light to our discussions.
The committee adjourned.