Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 10 - Evidence, April 1, 2003
OTTAWA, Tuesday, April 1, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 8:30 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: Honourable senators, for the benefit of those watching the proceedings from home, the Standing Committee on Rules, Procedures and the Rights of Parliament is continuing its hearings into the ethics package tabled by the government last fall. The package includes draft legislation to create an ethics commissioner and a package of suggested changes to the rules of the two Houses of Parliament, dealing with conflict of interest. This package is largely based on the work of Senator Oliver, who co-chaired a committee with Peter Milliken, Speaker of the House of Commons. Their report was first tabled in 1997.
Today we have before us Professor Dale Gibson from the University of Alberta and Professor David Smith from the University of Saskatchewan. Later we will be hearing from a former colleague of ours, the Honourable John Stewart, who is a noted author and authority on parliamentary procedure. Professor Smith, please proceed.
Professor David Smith, University of Saskatchewan: Honourable senators, I wish to thank you for inviting me to appear before you this morning. I have divided my comments on the ethics proposal into three parts: intent, process and effect.
The intent of the code of conduct is to introduce accountability and transparency. You have been told that there is a crisis of confidence in parliamentary institutions among Canadians, and that Canadians want a code. This is a large claim and one that I do not think has been proved. There is no doubt that if you ask Canadians: ``Should there be a code of conduct?'' they will answer, ``Yes.'' I would be surprised if they said anything else. However, as other witnesses and some members of this committee have said, it is far from clear what problem exists to justify a change in practice represented by adoption of a code.
It needs to be said that the subject of a code is directly linked to the matter of trust, that is, the trust Canadians have in their institutions and parliamentarians. The question of trust is now being widely debated, not only in Canada. I would mention two other countries where the subject is of current concern. In the BBC Reith Lectures 2002, Onora O'Neill, principal of Noonan College, Cambridge said that loss of trust is in short a cliché of our times and that the question arises wherever there is a claim to professional knowledge. She went on to say that, attempts to combat it may introduce inappropriate measures.
This culture of suspicion — the phrase is O'Neill's — has helped to create what another British writer, Michael Power, calls ``The Audit Society,'' which is the title of his book, the subtitle of which is ``Rituals of Verification.'' He maintains that the attraction of auditing lies in the vagueness of the idea. Like O'Neil, he maintains that auditing demands social trust in the judgments of its practitioners, that is, auditing must stop somewhere. He says auditing is only superficially empowering to the national publics that it is supposed to serve.
In the United States, a recent Brookings Institution publication, ``Scandal Proof: Do Ethics Laws Make Government Ethical?'' attributes the power of auditing to a post-Watergate mentality whose elements include the belief that public servants are suspect; that laws must protect against all possible breakdowns of public integrity; that the only reliable protection against corrupt instincts of public servants is the law; and that a new core of regulators must be engaged to effect this regime.
The publication also notes that the post-Watergate mentality in the United States has led to the emergence of several powerful public interest groups in Washington whose raison d'être is to scrutinize legislative and governmental compliance with the new regime.
To return to Canada, on the basis of what I have read, I do not see a strong case for a code of conduct or for an ethics commissioner to oversee the behaviour and conduct of senators and members of Parliament. As some honourable senators have said, there is no conduct in respect of a conflict of interest or ethics that is not now covered by the Rules of the Senate, the Commons, the Criminal Code or the Parliament of Canada Act. Thus, the rationale of the intent is open to question.
That being said, I can only echo what a fellow political scientist, Sharon Sutherland, told a Special Joint Committee on a Code of Conduct in 1995 that they would be criticized whatever they did. She told them that, if they did not put a code in place, they would be condemned as blind and deaf to public concern. She told them that, once a code is in place, the media would scrutinize it intently and report that a particular person did not comply with a particular provision, that he or she took a certain amount of money and must now resign. She said, ``There will be artificial scandals. A code might even increase the number of scandals.''
The second section of my presentation concerns process. The process set out in the proposal is to establish a code of conduct and create an official to oversee its operation. I will address my remarks to the administrative provision, the commissioner.
Most of what has been said about the proposed commissioner focuses on his or her being an officer of Parliament. While that designation is frequently used, there is ambiguity as to its meaning. My colleagues at the University of Saskatchewan, John Courtney and Duff Spafford and I organized a conference on the subject of officers of Parliament in November 2001. A number of papers by scholars were presented; and four of what we eventually labelled the ``Conference Five'' officers of Parliament participated. These were the Commissioner of Official Languages, the Freedom of Information Commissioner, the Chief Electoral Officer and the Assistant Auditor General, on behalf of the Auditor General. The Privacy Commissioner declined to attend.
Our usage was in line with the thinking of the Special Committee on the Modernization and Improvement of Procedures of the House of Commons that reported in March 2001. On the Government of Canada Web site in 2001 — and last week, when I checked — our ``Conference Five'' were listed under the heading ``Agents of Parliament.''
As conference organizers, we experienced some difficulty reaching agreement on which officials were officers of Parliament. Part of the problem was that there were individuals who described themselves as officers, but whom we believe did not share the defining characteristics of officers I have already named.
What are those characteristics? First, the persons in question report directly to Parliament; and, second, they are appointed in some way by the House and the Senate. We took ``report directly to Parliament'' to mean not through a minister. We took appointment and reporting as the two litmus tests of independence and accountability. Independence via appointment and accountability via reporting were sufficient conditions for designating an officer of Parliament.
What also interested us was, ``Why these five?'' Why national finance since the 1870s? Why the national elections since the 1920s? Why official languages since 1969, or privacy and information since the 1970s, but not other officers? What do these have in common?
One way to answer that question is to look at their provenance. What were the conditions that gave rise to each office? The Auditor General and the Chief Electoral Officer arose out of controversy. The Auditor General was a creation of the Mackenzie government after it had an opportunity to look at the public accounts as maintained by the first Macdonald government. The Chief Electoral Officer was a product of calm reflection, following manipulation of the franchise in the Military Voters Act and of the electoral system through the Wartime Elections Act in 1917.
In contrast, the Commissioner of Official Languages symbolized Parliament's acceptance of the constitutional significance of Canada's two official languages. The creation of the Privacy and Information Commissioners recognized the importance the Government of Canada accorded these principles in the period following publicized abuses of information by government.
This capsulated history demonstrates that officers of Parliament have one of two lineages — either they arise as a response to controversy, or they appear as a form of recognition. The debate over the creation of the ethics commissioner draws on both. Some proponents argue that there is controversy over ethics in Parliament that the appointment of a commissioner and the adoption of a code will resolve. Others say that existing rules and statutory provisions are sufficient protection, as far as members of Parliament and senators are concerned. This may not extend to cabinet ministers or to prime minister. Nonetheless, the creation of an ethics regime, or the designation of an official with new responsibilities, will signify to those outside these walls the importance that both members of houses attach to the question.
When making the choice, I hope the following comments may be useful. While the five officers of Parliament I have discussed share common features in regard to their appointment and reporting practices, they are by no means duplicates of one another.
I suspect that, when Canadians talk about officers of Parliament, they are basing their comments on the activities of the Auditor General. It is the Auditor General and not the Chief Electoral Officer who receives the most attention in the media. This happens for several reasons. The Auditor General may choose which units of government to investigate and when to release the resulting reports. In other words, the Auditor General is a highly visible official. My colleague, Denis Saint-Martin of the Department of Political Science at the Université de Montréal has written extensively about ethics commissioners. He has concluded, in a paper called ``The Multiple Meanings of Independence in Politics: Ethics Watchdogs in Comparative Perspective'' that was given at our Saskatoon conference, that the Auditor General does not provide a useful model to transform the federal ethics counsellor into an independent officer of Parliament.
The reason, Saint-Martin says, comes from the different nature of the investigations that ethics commissioners undertake. By this, he means that ethics watchdogs investigate the conduct of individuals and cannot disclose confidential information or information that could identify a person in their annual report to the legislature.
Professor Saint-Martin bases his comments on an extensive study of provincial ethics commissioners. I note this because provincial commissioners have been quoted as a practice for a parliamentary ethics regime. Here, as with the Auditor General, models must be treated with care, for the assumptions that underlie one officer may not be easily translated into the practices of another.
This brings me to the third theme of my remarks, which is the effect an appointment of a ethics commissioner would have on the operation of Parliament and, more particularly, on this chamber. Parliament is the only bicameral legislature in Canada. For that reason, reference to unicameral legislatures in the provinces requires close scrutiny.
Honourable senators have already heard testimony that a single commissioner might encounter conflicting responsibilities if he or she were expected to administer a code of conduct applicable to cabinet ministers, senior public office-holders, members of Parliament and senators.
As well, the workload involved, because of the number of persons for whom the commissioner would have responsibility, would be onerous. These are real problems that must be addressed. However, there are others more experienced in the operation of Parliament than I who are qualified to speak to the problem.
I should like to restrict my comments in the matter of the Senate to the subject of bicameralism. That is the subject I have most recently studied. Leaving to one side all other considerations, I believe the draft bill with its provisions for a single ethics commissioner and a statutory code of conduct does not serve the interests of the Senate, by which I mean the interests of the Canadian people. That opinion, I realize, could be misconstrued to suggest that senators were a select group of citizens above reproach and beyond supervision. That is not my meaning.
On the contrary, provisions of the Rules of the Senate, the Criminal Code and the Parliament of Canada Act define unethical conduct and provide direction to act in such matters. To my knowledge, there is no instance of behaviour of this kind that has not or cannot be met under existing rules and laws. At the present time, such a code appears redundant. Worse yet, a statutory code threatens the autonomy of senators, as indeed it does members of the House of Commons. For reasons you have already heard, it opens the doors wider to judicial intrusion into the work of Parliament. The courts have a vital role to play in protecting the rights and freedoms of Canadians, but so do the country's legislators, which in the case of Parliament means both of its houses.
In Donahoe, the Supreme Court has recognized that the legislative branch of the government must recognize a certain autonomy that even the Crown and courts cannot touch. A principal demonstration of that autonomy is that legislative chambers must be masters of their own houses and their own rules. The reason they must have that power is in order to do their job, which means independent scrutiny of the public's business.
It is no secret that legislators receive bad press, nor is that comment necessarily always undeserved. Finding fault with legislators is as much a part of Parliament's context as legislators finding fault with government. Still, the object of the criticism is often misplaced. This is particularly true with regard to the Senate. My late colleague, Norman Ward, Canada's leading scholar of the House of Commons in his day, once said that, where proposals for improving the House of Commons lean heavily toward increasing the role and effectiveness of the individual MP, the Senate is viewed as a whole, with the position of the individual senators a secondary consideration.
This time, in the case of the ethics commissioner and the code of conduct, there is a uniformity of treatment that seems insufficiently sensitive to parliamentarians, as opposed to cabinet ministers, in both chambers. Indeed, there is uniformity piled upon uniformity. Not only is the distinctive work of all parliamentarians ignored, but the difference between the House of Commons and the Senate is also treated as unimportant. Yet, it is as an institution that scrutinizes and investigates that the Senate excels. For this reason, it is vital that its work under any ethics regime be respected.
If there were to be an ethics regime, then I would advise against appointing a single commissioner for reasons I have already indicated. However, the appointment of four commissioners, which I have seen suggested, seems excessive. Three seems more logical, one each for ministers, members of the House of Commons and honourable senators. I appreciate that there is a need to separate the counselling part of the job from the adjudicating part. However, I do not think separation can be achieved through multiplying the number of ethics officials even further.
Dr. Dale Gibson, Professor, University of Alberta: Honourable senators, now that my written presentation has been distributed, I will ask you to ignore it. I have been told that it would be a good idea if I paraphrased and tried to cut it down. I will try to do that, but I also wish to add a few comments at the end that are not in the written paper.
I have no position on the matters that have just been discussed by Dr. Smith. I was asked, honourable senators, to address two questions. The first deals with whether the Charter of Rights and Freedoms, and to what extent the Charter of Rights and Freedoms, might apply to the code of conduct or to the activities of an ethics commissioner. The second is whether it would make any difference if the powers and the position of the ethics commissioner were statutorily embedded or outside the realm of statute.
I deal with those questions in reverse order in the paper that I have distributed. I will now deal with them in the right order, if I may. I will be starting at paragraph 12 on page 5 for those of you who may want to follow.
I have provided as appendices to the presentation two articles that I have written. One of them is about to be published; the other was published some time ago.
The first of these was one in which I tried to endear myself to members of the Senate by referring to parliamentary privilege as a constitutional cockroach. I will come back to that notion later.
It is the second paper to which I wish to refer at this point. That is a paper in which I try to make the point that the Charter does have an area of application to parliamentary privilege, including the things about which you will be talking, but not entirely. The Charter applies in that it cannot be used to deny the existence of parliamentary privileges, but it can be used to restrain the way in which those privileges are exercised.
Suppose that an ethics commissioner summons Dale Gibson to explain himself because there has been an allegation that Gibson has been getting some sweet consulting contracts from the Government of Canada through some improper relationship with a member of Parliament. I come along with my lawyer, and I ask for the usual kinds of fair process protections, if I am to appear. Let's say that I am told that those protections do not apply. I go to the courts. The courts would tell me: ''You cannot prevent yourself from being summonsed, and you cannot refuse to answer questions. However, you can insist that certain of the fundamental protections that are set out in section 7 of the Charter are observed during the proceedings.'' That is the position that I represent at appendix B in the paper.
I will not go through the arguments on which those conclusions are based. I do point out in paragraph 12 that a similar statement can be found in Joseph Maingot's treatise. I will summarize the four basic elements that lead me and others to that conclusion.
The first is simple common sense. We know that in the Nova Scotia (Speaker of the House of Assembly) case, the 1993 Supreme Court ruling, that the privileges of both Houses of Parliament are constitutional. Under section 52.1 of the Constitution Act, 1982, they are part of the supreme law of Canada, and they supervene all lower forms of law.
We also know that the Charter, as part of the same Constitution, has the same status. Thus, we have an immovable object in the form of parliamentary privilege and an irresistible force in the form of the Charter. What happens when they meet? Neither will yield. Each is as potent as the other. Mutual accommodation is logically required. Something must give on both sides. The logical argument is the first argument.
I find support in case law for that position. It is not overwhelming support, I must admit, but there is support in case law.
Madam Justice McLachlin, now the Chief Justice of Canada, wrote the reasons for judgment in the Nova Scotia Speaker case for the majority. In the Harvey case, three years later, she made a statement that seems to express that which I have been trying to say. I will read you a brief paragraph. This paragraph is at page 7, paragraph 16 of my paper. Madam Justice McLaughlin said in Harvey:
Because parliamentary privilege enjoys constitutional status it is not `subject to' the Charter, as are ordinary laws. Both parliamentary privilege and the Charter constitute essential parts of the Constitution of Canada. Neither prevails over the other. While parliamentary privilege and immunity from improper judicial interference in parliamentary processes must be maintained, so must the fundamental democratic guarantees of the Charter. Where apparent conflicts between different constitutional principles arise, the proper approach is not to resolve the conflict by subordinating one principle to the other, but rather to attempt to reconcile them.
The paper goes on with some more quotations from the same case that elaborate on that point. I acknowledge that the passage can be read a different way. I am putting a particular interpretation on it. The paper sets out that there is another way of reading it. However, I believe my interpretation is correct.
My interpretation is consistent with logic, and it is consistent with recent litigation, particularly the Vaid case, with which honourable senators will be familiar and perhaps not totally happy. I understand the Vaid decision is under appeal. It will be a while before we get a final fix on that. My prediction — and they are often wrong — is that Vaid will be fundamentally upheld by the Supreme Court of Canada.
The third factor that leads me to my conclusion about the relationship between the Charter and parliamentary privilege is analogy to other forms of governmental privilege.
This takes me briefly to the cockroach piece. The cockroach piece is an historical exercise that tries to show that parliamentary privilege arises from the same historical origins as the Royal Prerogative on the executive side and contempt of court powers on the judicial side. The Supreme Court of Canada has ruled clearly with respect to the judiciary and with respect to the Royal Prerogative that the Charter applies in the way in which I have stated. My conclusion is that historical and logical consistency would lead you to the same result in the case of parliamentary privilege.
The rule of law is the final principle that takes me to the position that I have expressed. By the way, there is a terrible typo in paragraph 22 where it reads: ``Probably the most unwritten fundamental constitutional principle of all is the rule of law.'' It should read: ``Probably the most fundamental unwritten principle is the rule of law.'' At any rate, it is fundamental in my submission.
Paragraph 24 on page 11 basically states the position that, by reason of the rule of law, everything is within the embrace of law. I quote some sources in support of that position in paragraph 24. One quote is from a well-known British scholar, Dr. D.M. Walker. Other quotes are from the Supreme Court of Canada. I will read the final one from the Manitoba Language Reference, in which the rule of law was clearly established by the Supreme Court. It states: ``...the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power.''
For those reasons, I conclude that the Charter has a role to play with respect to the exercise — though not existence — of parliamentary privileges. I conclude that part of the paper with a passage from the constitutional lawyer's bible, Professor Hogg's book on the Constitution of Canada, in which he says, among other things, that ``...it is surely unacceptable that every exercise of parliamentary-privilege powers by a legislative assembly should be exempt from Charter review.''
The second question I was supposed to address was: Would it make any difference if these powers were not embedded in statute — if they were simply part of the parliamentary common law, if you like, or some other informal source of authority? My answer is, no. It seems to me, from the authorities, that there is clearly a constitutional status to parliamentary privilege, whether it is based in statute or whether it derives from common law. From the perspective of constitutional status, it seems to me that the answer to the question is easy: It does not really matter.
However, that takes me to a brief addendum to the presentation that I have put before you, on two points. First, as yet, I have not addressed the code of conduct, explicitly, but I will do that. Second, I want to say one or two things about the reasonable limits provision found in section 1 of the Charter.
Vis-à-vis the code of conduct, the difficulty that I faced, when I looked at this document and tried to see where it fits in with what I have been talking about, is the vagueness of its current status. If it were embodied in the rules of the Houses of Parliament, as I believe Senator Carstairs suggested in her initial presentation to this committee, I have no doubt that it would have the constitutional status that I have been talking about. Clearly, if it were statutory — incorporated by reference into the legislation, which it is not at the moment — it would have the constitutional status we are talking about. However, if it remains some kind of vague set of guidelines floating through the air — guidelines to assist the ethics commissioner or guidelines whipped up by the Prime Minister — that is not tied down to the rules or to statute, then it is my opinion that it would not have constitutional status. That is the one question.
Then I turned to section 1 of the Charter, as my final point. The mere fact that the Charter applies to the exercise of parliamentary privilege does not necessarily mean, in a given case, that the Charter will trump parliamentary privilege. As you know, section 1 of the Charter permits reasonable limits in a free and democratic society. It may well be that the restrictions placed on rights by an ethics commissioner in holding an investigation may well be a reasonable limit and may be found by the courts to be a reasonable limit in a free and democratic society.
However, section 1 of the Charter states that to be a reasonable limit, the norm in question must be prescribed by law. If the code of conduct is floating in the air and is not tied down to the rules or to a statute then, in my view, it has not been prescribed by law. Therefore, a Charter argument may have greater success than it would if the code of conduct were tied down to a rule or a statute.
The Chairman: Thank you, Professor Gibson.
Senator Stratton: I have a brief question on a point of order. Did the steering committee approve the start of this meeting at 8:30?
The Chairman: Yes, I think we did.
Senator Stratton: Did the whips?
The Chairman: Yes.
Senator Stratton: Did the steering committee approve a second meeting today at 10:45?
The Chairman: Yes, we did.
Senator Stratton: Did the whips?
The Chairman: As far as I know, we did approve that schedule. In that case, I apologize for any confusion but it was a continuance of the same meeting. However, because we could not begin the meeting in the room where video- conferencing is available, we will adjourn to move there for 10:45.
Senator Stratton: I appreciate that but I continue to reinforce, time after time after time, that there is a shortness of availability of personnel to staff committee meetings. I would appreciate very much if we could adhere to the appropriate hours for meetings as agreed to earlier by the leadership on both sides.
The Chairman: I congratulate you on having four people out this morning.
Senator Rompkey: Mr. Smith, would you review your position in light of the fact that we are living in a post- Watergate society and that that fuels the attitudes of the public? I think that, perhaps, we are going through an evolution in public thinking in that attitudes towards ethics and accountability are changing with the times just as attitudes are changing towards mental illness, capital punishment or any other issue. As parliamentarians, we have to be cognizant of those changing attitudes and react to them in some way. After all, we are public servants, whether we are elected or appointed. The argument has been made that those of us who are appointed have to show accountability more so because we are not elected. Parliamentarians cannot ignore the attitudes of society, no matter how they are crafted or influenced or have evolved. The fact is that they exist and they have evolved and we have to be cognizant of that and somehow react to it. Would you comment on whether there is not truly a problem and that we could carry on as we have with the existing rules, although it seems to me that they need revision if we were to go by them in 2003?
Mr. Smith: I suppose my remarks may not be as focused as they ought to be but I did not have to make the decision that senators have had to make. In what I read and now understand, I do not see a pressing need for this. What you say is true and, in a sense, I try to have my cake and eat it too by saying that I understand what the public says because the polls tell us that. One thing that peaks my suspicion or caution is in the work that we have done in respect of officers of Parliament.
Increasingly, officers of Parliament are assuming an authority in the system of Parliament that I do not think was ever fully appreciated at the beginning. I do not quite understand the theory that sustains it. That being said, you are quite right, I think there is wide public support for some form of ethics regime.
If that is the case, you have to decide what that will be, if there is going to be one or a multiple number of commissioners. I suggest three, but you can make an argument for four or two, I suppose. It seems to me that three, to the degree I understand the nature of how this would unfold, would be the reasonable number.
Senator Joyal: I want to pay my respects to our two expert witnesses. One came with a long document, 12 pages plus three appendices. We were given the document this morning — not because the witness did not prepare his documents ahead of time — and we are now so rushed that we have time to ask only one question since we must adjourn at 9:30 a.m. This is not, in my humble opinion, a senatorial way of working with experts who have travelled from Saskatchewan and Alberta to assist us this morning. I take exception to this way of proceeding.
The Chairman: Thank you very much, Senator Joyal. Unfortunately, we have only 17 minutes before we conclude this part of our meeting. I recall that last time I was given a hard time because those senators who were asking questions at the end were cut off. I will give everyone an equal opportunity to ask questions and, if time permits, you can come back on a second round. Senator Joyal, one question please.
Senator Joyal: I will have one question and make an opening comment. I resent being steamrolled on this, because we have experts before us and we should have time to go through their documentation. They have referred to cases and we need time to read them. We are not a flock of sheep that need to be pushed out of the barn. That is not how I interpreted my status as a senator.
That being said, I would like to ask a question of Professor Smith. The second recommendation of the Milliken- Oliver report was that the rules of the Senate and those of the House of Commons be amended to provide that the ethics commissioner be appointed, after consultation with the leaders of the respective parties, through the speaker of each House. That seems to me to recognize the institutional principle of separation and autonomy of each legislative chamber to be able to accomplish its constitutional duty which, in the case of the Senate, is to study and scrutinize bills and to give its own advice and consent to the Crown before legislation is amended.
Would it not be better to implement that recommendation of the Milliken-Oliver report than take the approach of the model proposed by the government, that is, one commissioner appointed by the Governor in Council for both Houses of Parliament?
Mr. Smith: My view is that, yes, what you suggested at the beginning would be better for the reasons you suggested. It would recognize the equality and autonomy of each chamber. The government proposal is subject to a criticism that it does not do this. In addition, there is the business of the length of the appointment, which, again, seems to not give the Senate its due recognition as an autonomous institution.
Senator Grafstein: I share Senator Joyal's concern. Both witnesses have raised very interesting and important issues about the supremacy of Parliament, and with respect to the separation of powers between the courts and so on. I hope that, if we run out of time today, we will have an opportunity to come back to these witnesses by video conference calls, so that we can explore some very cogent arguments in their briefs.
I would start by saying that I fundamentally disagree with Mr. Gibson's position that Royal Prerogative and privilege should be treated separately. Frankly, they have different origins, they come from different places and, in effect, the privileges were to be a check on the Royal Prerogative.
Having said that, you raised a most interesting prospect here about the rule of law. I do not disagree with the rule of law, but there is more than one rule of law. You seem to have neglected in your paper the law of Parliament, lex parliamenti. There is no reference to that. There is reference to the common law, but not to the law of Parliament. Why is there that absence? If we are to deal with privilege, and privilege is rooted essentially in Parliament — Parliament has its own rules and its own laws and its own conventions — why is there no reference in your paper to lex parliamenti and only reference the common law?
Mr. Gibson: Senator, that was simply the way in which I expressed myself. When I referred to the common law in a general sense, I was referring to the law of Parliament in the sense that you are referring to it.
Senator Grafstein: On a supplementary question, you will accept the fact that when the courts talk about the rule of law — and they are very careful to maintain the separation between Parliament and parliamentary rights and, in effect, the Charter — that the rule of law can be reconciled between the rules of Parliament and the rules emanating from the common law. It is perfectly valid, is it not?
Mr. Gibson: The position I tried to put is, indeed, that they are reconcilable, but only with some give on either side. The lex parliamenti is a fundamental law of the Constitution; so is the Charter a fundamental law of the Constitution. The rule of law is a third fundamental law of the Constitution. The rule of law does not supervene — nothing supervenes — these are all equal imperatives. When you have a number of equal imperatives in competition, my point is that there has to be some accommodation.
I cannot give you a magic formula for exactly how everything is to be accommodated. However, the general principle that I am suggesting arises from the cases and from the authorities and it is that, in the case of the dispute between the Charter and the laws of Parliament, the Charter cannot displace the laws of Parliament and the laws of Parliament cannot displace the Charter. Therefore, the accommodation that seems to me to work and to fit with the authorities, is that the Charter is there to regulate the ways in which the laws of Parliament are exercised.
The Chairman: I will not stop you on an interchange like this if it is along the same line, Senator Grafstein.
Senator Grafstein: I feel constrained about my other colleagues having an opportunity, but I will pursue this.
Therefore, I guess we may be in violent ``agreement'' that, while the Charter is an organizing and fundamental thrust, if you have the common law on the one hand and the common law of Parliament on the other hand, and one operates under the rule of law and the other rules under the rule of law, that may be adequate to satisfy the reconciliation of the Charter. That would be the case if, in fact, there are visible rules and due process and fairness and the fundamental common law principles. The proposal that is made here by some is that, if you have a rules-based code as opposed to a statute-based code, that would satisfy the rule of law if the rules are transparent and fair — different, but fair.
Mr. Gibson: Senator, the only thing that logic drives us to is the fact that there needs to be a reconciliation. What form that reconciliation is to take will clearly be a matter of debate. Logically speaking, the approach that you have suggested for reconciling them is possible. The approach that I have suggested, however, is much more consistent with the authorities that I put before you in my brief.
Senator Grafstein: Some of us believe that Parliament is supreme; others believe that the courts are supreme. Maybe that is where we have a dividing line in terms of our approach to this specific matter.
Mr. Gibson: I do not accept that dichotomy, senator. The fact of the matter is that parliamentary supremacy is another one of those principles that has to be accommodated. The courts are supreme only within their realm of jurisdiction. I do not accept the dichotomy that it is one or the other. It must be both, in my view.
The Chairman: I do not think anyone here believes that the courts are supreme.
Senator Hubley: My question is for Professor Smith. You note that there is an entire ethics regime in various places. Would it be better to have it in one coherent place that would be intellectually consistent?
Mr. Smith: I am sorry. Do you mean my comments that you can find it in the Rules of the Senate and such?
Senator Hubley: Yes.
Mr. Smith: I can see there would be an argument for that. I am always suspicious and doubtful of simplicity. In the whole area of public business, there is a real danger of doing this, because it misleads rather than informs. I can understand that argument, but I am not sympathetic to it.
Senator Smith: I want to probe the same area. The quality of these presentations is excellent and they have been very helpful. We appreciate the time you have spent on them.
I will ask Mr. Gibson and then my perhaps distant cousin, if your Smiths came from Scotland, to comment on it as well.
I am trying to get at what the difference of opinion between the two of you is on this subtle point of judicial intrusions. I ask this question with an open mind, but I think Professor Smith was clear that he prefers not to go down that road, whereas Professor Gibson was saying that, where there is a conflict, you might have a better chance of prevailing over a Charter argument if what you are doing has been prescribed by law.
Is that the gist of it? How would you describe your differences of opinion, which are legitimate differences of opinion, Professor Gibson? Then, I would ask Professor Smith to comment on how he would describe the differences of opinion.
Mr. Gibson: Senator Smith, I think that you have put my point quite well. If you want to have as much leeway in the courts as possible for the privileges of Parliament, it would help to have them rooted in something that could be called ``prescribed by law.'' In my view, the rules of the houses would do that. I have some doubt that it would do that if it were left vague. That was my point.
As to the difference between my friend and myself, it may simply have to do with the fact that you are dealing with a lawyer and a non-lawyer. I would rather not say that I prefer this or I prefer that. It does not matter to me. I am getting on in years, so it will not affect me as an individual. What I am trying to help the committee with is what I think the courts will tell you or others who test these ideas. My prediction is that the courts will take the line between recognizing the existence but controlling the exercise, and allowing a reasonable limit to be effective but only if prescribed by law. The most I am doing, senator, is to try to describe how I think future legal disputes will end up.
Mr. Smith: Professor Gibson is quite right. I am not trained in the law, so that may be the explanation. I am a political scientist who has studied Parliament in this country and elsewhere. I have great respect to for the courts and am in no way opposed to the Charter, but I lean towards Parliament's own autonomy to the degree possible. I do not see an argument for codifying these rules in a way that would be more apt to open them to judicial examination and place some limits on the autonomy of Parliament. It is a matter of disposition.
Senator Smith: I probably lean in the same direction. However, two weeks ago, a witness by the name of Ted Hughes, who is certainly trained in the law as a former Queen's Bench judge from Saskatchewan and who has been deputy Attorney-General and ethics commissioner in B.C., worked on the APEC inquiry and now works in the Northwest Territories, said that based on his practical experience and the B.C. Court of Appeal decision, it was not a real problem. It is rather intriguing that a very small jurisdiction like the Northwest Territories probably has one of the most scholarly ethics commissioners in this country. Do you have a reaction to that?
Mr. Gibson: I have no reaction to that, other than to note my great respect for Mr. Hughes. I do not see it as a problem.
When I say that this code ought to be somehow rooted in the rules, that is not to deny that the traditional and unwritten principles of the Houses of Parliament are already prescribed by what I would call constitutional common law. Senator Grafstein might call it something else. You have something totally new here. This is not the traditional way in which Parliament has done it. It is a new formulation. It will be hard to describe that as part of the traditional laws of Parliament and therefore, if you want it to be prescribed, it would be safe to connect it to the rules.
Senator Oliver: I too wish to ask one question about the apparent dichotomy between the privileges of parliamentarians and the Canadian Charter of Rights and Freedoms. The 1997 code that was drafted and laid before both Houses of Parliament provided that it not become law by way of a statute, but by resolution of each house of Parliament.
If there were a code of conduct for members of the Senate and that code and a commissioner were adopted by a resolution of Parliament, wherein lies the necessity for the reconciliation that Mr. Gibson says is required between privilege and the Charter? Where is the need for that reconciliation if it is adopted by resolution of the house, and becomes a document of the house?
Mr. Gibson: I do not think that there would be a problem. It would be prescribed by law if it were done in that way.
I see a document called ``Rules of Conduct'' or ``Code of Conduct,'' and no one knows where it lives. If it lives in a resolution, then it would be prescribed by law.
Senator Oliver: That is the point that Senator Joyal read to you. You both agreed that that would be an appropriate way to proceed.
The Chairman: Professor Gibson and Professor Smith, thank you for coming such a long way for such a very short period of time.
I would like to say to honourable senators that you all know how I try to bend over backwards to allow everyone to have full and unfettered access to the witnesses and the ability to question. Perhaps Senator Joyal knows that better than most. Unfortunately, we have a proscribed length of our meetings. We have a start time and a finish time, both of which are normally immutable. We have been unable to get any agreement to meet as long as we would like to meet on Mondays.
I am forced to allow everyone a little bit of time to question people and then cut them off. I apologize to you all, because I do not like to do so.
Senator Stratton: On a point of order. I have a suggestion: If we have one witness, as we are having with Senator Stewart now, an hour would seem to suffice. If you have two witnesses appearing at the same time, an hour is not sufficient.
The Chairman: That is obvious.
Senator Stratton: Perhaps we could expand the length of questioning time within the meeting when we have two witnesses. We could have gone on for another half an hour.
The Chairman: You are quite right, Senator Stratton. Unfortunately, that would only have given us a half an hour with Senator Stewart, from whom we all want to hear.
Senator Stratton: We should have had only one witness.
The Chairman: Senator Stewart, welcome back to the Senate of Canada. We are delighted to have you with us again. Please proceed.
Hon. John Stewart, Ph.D., As an individual: Thank you very much, Madam Chairman.
Honourable senators, I worked through the material that I had received and consequently put together a series of paragraphs, and I numbered them so that references would be precise.
In my first three paragraphs, I make the point that it is my view that the proposal now before this committee is primarily designed to accommodate the needs of prime ministers and that the other material relative to the two Houses of Parliament is packed on; it is secondary.
Consistent with the fact that the ethics commissioner would be administering the prime minister's code, the commissioner is to be appointed by the Governor in Council. She or he is to be ranked as a deputy head of a government department. He or she is to receive the remuneration that is set by the executive government. He or she would hold office, and I quote, ``during good behaviour, for a single term of five years.''
I say such a commissioner would be probably quite suitable for the enforcement of the prime minister's code. After all, the prime minister is responsible for the conduct of his or her government. It is reasonable that a new prime minister would not want to endure for too long the ethics commissioner appointed by his or her predecessor, even though they might be of the same party.
What is to be the status of the code? Someone observed in the second report of the Special Joint Committee on a Code of Conduct, the report prepared under the leadership of the Honourable Senator Donald H. Oliver and Mr. Peter Milliken, MP, that the plan the government has put before you would change the rules of the two Houses by introducing a common code.
It is obvious that there ought to be rules. It is also obvious that there already are rules.
What is the status of the rules to be? Section 3 of the proposed code of conduct would have the Parliament of Canada state, and I quote, that it ``...recognizes and declares that parliamentarians are expected...'' to conduct themselves in certain ways. Moreover, this draft code is described as a schedule. That led me to believe that this would be appended to a bill that would be sent for Royal Assent.
However, that is not what the government is proposing. It is not proposing that the code be statutory. This was made clear by the Leader of the Government in the Senate when she stated, ``The proposed code of conduct is being put forward as rules of Parliament rather than legislation, which is consistent with the approach that the Senate and the House of Commons are responsible for their own affairs.'' Those are the words of Senator Carstairs.
It is clear that the code is not to be an element in an act of Parliament.
It is interesting to look at the purpose of the proposed code of conduct. According to section 2 of the draft, the creation of the proposed code would achieve two main purposes. The first relates to the public. In a way it is a PR operation. The code would help to maintain and promote public confidence in the work done by parliamentarians and, thus, in our system of government. That concern was discussed with your two earlier witnesses. The second relates directly to parliamentarians. The code would give them, ``greater certainty and guidance'' in reconciling their private interests with their public duties and functions. It would also help by providing them with ``an independent, non- partisan adviser'' who would foster consensus about proper conduct. I stress the words ``independent'' and ``non- partisan.''
One Liberal prime minister would not endure very long the ethics commissioner appointed by a Liberal predecessor. Canadian Alliance, Progressive Conservative or members of the New Democratic Party will have to endure a commissioner appointed by a Liberal prime minister or any other arrangement the politics of the day might have brought forth.
I wish to emphasize the next point: Neither the Milliken-Oliver Report nor the draft code of conduct states that one of the purposes of the code would be to provide new or more effective prohibitions against private interest offences that are not now prevented by the existing laws, rules and orders. The implication that I draw is that such offences are not taking place or are rare.
Is the code of conduct required for the two purposes that are stated in it? First, there is public opinion. Is it true that any considerable part of the public believes that the private interests of ordinary senators and of ordinary members of the House of Commons — those who do not hold government offices — are frustrating the achievement of good laws, good policies and good administration? Do members of the public really believe that such members and senators frequently, or even occasionally, speak and vote to advance their own private interests? I doubt it. Indeed, the complaint is that ordinary members and senators, especially those who support the government of the day, show little or no independence. They are like trained seals: They follow the leader.
The major complaint that I hear — and I doubt that it is exclusive to my part of Canada — is about what are called ``big interests'' that have far too much influence on the executive government. It is that such interests, by one means or another such as carefully cultivated friendships, campaign contributions, chumminess in clubs and on the greens, and the hiring of well-connected consultants, exert far too much influence on ministers, bureaucrats and boards, both in the making of policies and laws and in the making and application of regulations. Why bother about the local MP? She cannot do anything.
Accordingly, I suggest that the public relations purpose of this plan might be advanced far more effectively if more were done to convince the public that powerful interest groups are not influencing ministers and bureaucrats.
Second, the code of conduct is, as I said, to provide better guidance for senators and members of the House of Commons. I assume that your experts have given you evidence to show that there is a need for some consolidation and clarification. If that is so, then that purpose should be taken seriously.
I will deal now with the whole question of whether there should be one common code and one administration for the two Houses.
Assuming that there is to be work done to clarify and consolidate the code of the Senate and the code of the House of Commons, I asked three questions: First, would one code and one administration committee be proper and suitable for the two Houses? I say, then, that the roles assigned to the Houses by the Constitution are different. The House of Commons is the direct link between the people and the executive government. Consequently, it is to that House that the government is responsible. Without the confidence of the Commons, a government cannot continue in office. That is not true for the Senate. In contrast, the legislative role of the Senate is to review bills that have passed the Commons, and this to the end that a Prime Minister with a majority in the Commons — a majority ordinarily drawn from the most populous provinces — can be checked when this is desirable.
Since their roles are different, the principles underlying membership in the Houses are different. In the case of the Commons, the principle is representation by population. In the Senate, the principle is that the people in each province are to have a specified number of senators. As honourable senators well know, members of the House of Commons are elected and the life of a newly elected House is five years or less. In contrast, senators are summoned and may remain until they are 75. In short, each House is a distinct entity, both formally and substantively.
Obviously, if the evidence shows that the needs of the two Houses are about the same, their rules of conduct ought to be very similar. Yet, there should still be one set of rules for the House of Commons and one set of rules for the Senate. Neither House ought to accept an arrangement that ignores the fact that it is responsible for its own affairs. It should not allow its responsibility to be diluted in any way. If it does so, it is forsaking its constitutional obligation.
Second, how would each of the Houses participate in the administration of the code? The proposal that you have before you opens up the possibility, although it does not recommend or dismiss it, of having one committee. Moreover, the proposed section 28 of the code of conduct would then say ``committees of the Senate and of the House of Commons,'' or ``a committee of both Houses of Parliament,'' must be designated or established for the purposes of this code.
That language — ``must be designated or established for the purpose of this code'' — leads me to ask a third question: Since the proposed code is not to be embodied in an act of Parliament, the imperative language of section 28 leads me to ask: Who is making this command? Each House could make its own order, but in that case there would be two codes: one subject to revision by the Senate; and the other subject to revision by the House of Commons. My guess is that, over the years, there may be, occasionally, needs for revisions.
Is the code to be made binding by a joint order of the two Houses? As honourable senators know, the Houses sometimes make joint resolutions. That is to say, they state an opinion, not an order, but an opinion that they share. This, as I imply, would be a joint order. I should like to know what precedents there are for joint orders of the Houses. I cannot think of any.
When Parliament acts, it does so as a tripartite institution: Her Majesty, the Senate and the House of Commons. I do not know how two of those elements, the Queen and the Senate, let us say, could make a joint order. Clarification may be helpful on that point.
It is interesting to note that the fact that the two Houses are distinct legal entities is respected by the provision that, where the parliamentary code is concerned, only a senator is able to lodge a charge against a senator, and only a member of the House of Commons is able to lodge a complaint against another member of the House of Commons. That is inconsistent: It is proposed that there be a common code, but when it comes to reality, each House is independent. My submission is that each House ought to have its own code. That would mean two committees, not one.
I will continue with what I call, ``The Parliament — Executive Government Overlap.'' The proposals that I have looked at so far follow closely along the lines of the Milliken-Oliver report. In speaking to this, I am heading into an area where the proposal before you does not seem to follow that report.
The Milliken-Oliver report recommended that the Rules of the Senate and the Standing Orders of the House of Commons be amended to prescribe for the appointment of a jurisconsult, who would help administer a common code. It outlined the process by which that jurisconsult would be appointed.
In contrast, the proposed section 72.1 of the Parliament of Canada Act makes no provision for the participation of the House in the process by which the commissioner is to be appointed.
You were told by the Deputy Secretary to the Cabinet that the process of appointing the commissioner would be the same as that now used for the Auditor General, that is, the name of the government's nominee would be submitted to the House of Commons and, subsequently, after consideration by a standing committee of that House, there would be a vote in that House.
I will deal briefly now with the House of Commons. I suggest that the ethics commissioner for the House of Commons ought not to be appointed by the Governor in Council and certainly not by the person selected by the Prime Minister to administer her or his code.
The process used for the Auditor General may be satisfactory for the Auditor General, who has one major task: To audit the government's accounts and financial performance and then to report to the Speaker of the House of Commons.
In contrast, the ethics commissioner has two tasks: First, he is to police or monitor the conduct of the private members. Second, he is to police or monitor the conduct of certain Crown employees. We permit, we even require, that ministers of the Crown be members of one House or the other. Nevertheless, the House of Commons remains a legally distinct entity. This is shown when the House of Commons brings down a government, notwithstanding the views of the government.
In addition, it should be remembered that one of the stated purposes to which I referred earlier would be to give members ``greater certainty and guidance'' in reconciling their private interests with their public duties and functions, by providing an independent, non-partisan adviser.
The Senate also is distinct from the executive government. Indeed, one of the principal tasks assigned to the Senate is to pass or defeat government bills that have passed the House of Commons. It is true, senators are summoned by the Prime Minister of the day but, once summoned, the Constitution provides them with the independence that their role requires. It follows that it would be improper for an appointee of the Prime Minister, even one approved by the House of Commons, to be given a kind of custodial responsibility for the behaviour of senators.
I assume that, so far, the process would be the same as in the case of the Auditor General. If it is, indeed, assumed that a nomination will require the approval of both the Senate and the House of Commons, some provision will be needed to deal with situations where the Houses disagree.
A Progressive Conservative majority in the Senate might not be entirely happy with a New Democratic Party Prime Minister's nominee. There could be a clash there. Legislators should be provident in anticipating these clashes and providing solutions.
It may be said that one commissioner would foster consistency and would make for simplicity. One would ask commissioners to only hold office for a five-year term. As I said, that provision is suitable for the Prime Minister's appointee because each Prime Minister is responsible for the conduct of her or his own ministers, et cetera.
However, the Prime Minister is not responsible for the conduct of private members or private senators. What the Senate and the House of Commons need, as was emphasized earlier, are consistency and impartiality. If more than five years would be unsuitable for the Prime Minister, surely less than six years is not suitable for the Senate and the House of Commons.
I could not resist putting in a little backward glance. I wanted to mention that the problem with which you are dealing is not new. It goes back to the end of the 17th century. In the years after the revolution of 1688-89, there were those who sought to severely limit the influence of the Crown on the House of Commons. The Crown was to be a mere executive and would carry out the will of the two Houses of Parliament.
In the year 1701, they had it enacted that no person holding an office of profit under the Crown could be a member of the House of Commons. If that provision had gone into effect, it would have gone a very long way toward establishing a Constitution consistent with the principle of the separation of powers. However, the law passed in 1701 was repealed before it went into effect. In other words, it was decided that England, which was the entity at the time, was to have a mixed Constitution. The representatives of both the Crown and of the people would be in the House of Commons.
Thereafter, there were those who loudly insisted that the Crown was corrupting the House of Commons. This complaint became especially strong after 1716, the year in which the ministers managed, one way or another, to get the House of Commons, which had been elected in the previous year, to agree to a bill extending its own life from three years to seven years.
In the 1730s, 1740s, and 1750s, it was argued that the Prime Minister, by means of corruption in the House of Commons, was well on the way to becoming an absolute monarch, a real monarch, not a king or queen, behind the facade of parliamentary government. This British experience goes a long way to explaining why the authors of the American Constitution rejected the Westminster model of mixed government in favour of one in which the legislative and executive branches would be separate.
There is a question as to the relationship between the two codes: the Prime Minister's code on the one hand and the code of conduct for parliamentarians on the other. The draft parliamentary code states, at clause 5, that it is to apply to all parliamentarians. The next clause, 6(1), would allow the Prime Minister to establish his code, one that would set forth ``additional principles, rules or obligations'' for ministers and the like. At first glance, I thought that the word ``additional'' was meant to imply that these prime ministerial rules and obligations would be in addition to the parliamentary ones, but then I discovered that my assumption was not well-founded.
In clause 6(2) we read, ``The principles, rules or obligations established by the Prime Minister for parliamentarians who are also ministers of the Crown, ministers of state or parliamentary secretaries prevail over the provisions and interpretation of this Code in the case of a conflict.''
We seem to have a contradiction here. On the one hand, we have the general provision that the code of conduct is to apply to all parliamentarians; on the other, we have specific language stating that, in the case of ministers, et cetera, the Prime Minister's code is to prevail over the parliamentary code when there is a conflict.
This language opens up the possibility that the standards that apply to ministers, et cetera, would be less stringent than those that would be applied to other parliamentarians. I doubt that this was intended.
In any case, the parliamentary code ought to be the primary code, not the secondary one. Membership in one or other of the Houses comes first. To remain in office, a minister must be a member of the House of Commons or of the Senate. The Prime Minister's code ought to be additional.
I will now comment on some more assurances given to the public. As you undoubtedly know, clauses 21 and 22 would require each senator and member to file with the ethics commissioner a statement setting forth all his or her more considerable private economic interests and to keep these statements up to date.
Presumably, the rationale behind this proposal is that these statements would make it easier to discover if particular senators or members were violating the code of conduct. It can be contended that, although this proposal would be an invasion of privacy, such an invasion would be reasonable for those who have chosen to take a place in one or other of the houses. One must then ask whether it is worthwhile. One must ask just how helpful these statements would be. The assumption seems to be that those with established interests are more likely to be offenders. I ask: Is this true? A poor member, especially one with little chance of re-election, might be more tempted to break the code for a fee than a rich one. Similarly, a senator short on money might be under more pressure than a rich one.
If one were to argue that this breach of privacy is desirable because it will be helpful in detecting corruption, I would question whether it is indeed going to be helpful in detecting and preventing corruption.
Again, the fact that the commissioner is to be selected by the Prime Minister of the day starts the fear that he or she will leak to the Prime Minister or the PMO. It is true that under section 21(3) of the code the commissioner is to keep the statements confidential, but as Senator Carstairs said, the code is not to be law.
I will make another point about public opinion. The commissioner is to prepare a summary based on the statements he or she has received. However, only a senator is to be able to lodge a complaint against a senator. Similarly, only a member of the House of Commons is to be able to lodge a complaint against a member of the House of Commons. In other words, while the public is to have the right to see the summaries, it is not to have the right to lodge complaints.
I suggest that this is just teasing those who are critics of parliamentarians. There would be much sour muttering in the media and the public about honour among those thieves.
I come to my summary. I think that the beneficial effects of this plan for a code of conduct on public opinion ought not to be overestimated. The main complaints that I hear have nothing to do with the notion that ordinary members of either house are corrupting the law or its administration.
I do hear two complaints. One is that because of the concentration of Canada's population in two provinces, even in a few cities, the interests of people in the other parts of the country are taken far too lightly here in Ottawa. That has given rise to the demand for a Senate in which the provinces would have equal representation, not a system such as the House of Commons, which is biased in favour of Ontario and Quebec.
The other complaint is one that I have already mentioned. It relates to the influence of big interests. I want to emphasize that it is not only the ministers who are accused of being too chummy with big interests, but also, very often, it is the bureaucrats who make the really important decisions down the line.
I question the view that this code of conduct is required insofar as the prevention of corruption by private parliamentarians is concerned. Yet, it may be that each of the Houses ought to modernize its existing rules to achieve greater simplicity and clarity. Each House is a distinct constitutional body and has a responsibility for maintaining its independence. Each is responsible for the conduct of its own members. Consequently, each House should have its own code and should provide for the administration of that code by an officer who is responsible to that House.
The Chairman: Thank you, Senator Stewart. I must say that, over the last few years, I have missed your sarcastic references to TOM — Toronto, Ottawa, Montreal — access in the Senate. It is nice to hear you once again, even if it is in a passing manner, refer again to the interests of the larger provinces.
Senator Joyal: Senator Stewart, you did not touch on the issue of the constitutional base for each House to maintain its capacity to monitor its own members in regards to the privileges of each House as enshrined in the Constitution, section 18. Could you comment on the importance to uphold the letter of the Constitution, based on the specific role of the Senate to embody the federal principle?
You mentioned that, quite clearly, each House has a different role in the Constitution. The House of Commons is based on riding division. Each MP represents the overall interests of a group of citizens within its boundaries. However, according to the Constitution, a senator has a different role. We have a federal system of government with a bicameral Parliament, which means that one House has enshrined the federal principle of protecting minority and regional interests. Furthermore, the Charter has added additional interests to the federal principle, for instance, the interests of Aboriginal peoples and the other minorities that are recognized in the Charter.
Would we not be going overboard by ignoring that essential principle to serve, as you said yourself, a public interest objective to maintain trust in the parliamentary process? In fact, would it not be at the expense of the very principles of our system if we were to accept the proposal as it is drafted?
Mr. Stewart: The short answer is, yes. There is a basic problem in our Constitution. We took the British model — which, itself, is not perfectly clear because of the House of Lords — which gives us responsible government. The ministers are responsible to the Commons; the Commons are responsible to the people. To that, we added federalism. In fact, there would have been no Confederation if we had not brought in a federal system. Logically, there is a problem there.
Some might disagree, but I submit to you that, over the years, the Senate has recognized that the government of the day is not responsible to it; it is responsible to the House of Commons. Senators may deplore the fact that the House of Commons is not doing more to keep the government of the day responsible, but the Senate, itself, does not undertake to act as an agent of responsible government. It is an agent of federalism. I suggest that if you start diluting your responsibility, you will be violating a fundamental understanding behind the British North America Act of 1867, now the Constitution Act.
I speak, of course, as a person from Nova Scotia. There still is a problem, as anyone who has paid any attention to the proposal for a triple-E Senate knows, that people in many parts of the country think that ``TOM-land'' — Toronto, Ottawa and Montreal have far too much influence, particularly because of the increasing concentration of population and industry in those places.
There is also the matter of geography. Ottawa is too central. It is in the East, as they might say in the West. I think you are dealing with a very important matter here. It would be abandoning the whole idea of our federal Constitution if you allow either the House of Commons or the Prime Minister of the day to intrude upon your jurisdiction.
Senator Grafstein: I am delighted John Stewart is back. We shared offices when I first came here and I miss his daily, sage counsel. His very careful document reminds me how much we miss him, because he has been able to articulate many of our concerns much more clearly than we could ourselves.
To try to summarize your evidence, the issue here is public trust. There does not appear to be a clear and present danger that parliamentarians or senators have eroded public confidence; the focus has been that the real issue is the cabinet and the administration. Therefore, it might be counter-productive to allow a code of conduct that spills over into the two Houses and satisfies the prurient interest of the press. If one case is taken out of context, as it always is in the media, rather than enhance public trust, it may erode public trust. We have seen that — one case suddenly spills over on all Houses and on the government and erodes public trust.
You also said something that troubles me even more that I did not think about as clearly as you have, and that is that it might erode the independence of the Senate at the precise time when there is criticism that the Senate is not as independent as it should be.
Finally, you argued that this might dilute the constitutional framework of responsible government, that is, the division of powers between the executive on the one hand and the check and balance that each House is supposed to play on one another and the executive on the other hand.
Is that an extreme version of your views, or does that properly represent them? In your last statement, you questioned whether the code of conduct is even required, and that all that is required is to clean up the rules a bit, a proposition to which no one on this side objects.
Mr. Stewart: I am glad you are making the distinction. I am not saying that the Senate should not have its own code of conduct. I am saying that the code should be its own. The argument that this common code of conduct is required to improve public opinion misses the mark completely. In fact, it diverts attention from the real problem.
I live in a fishing village. The Minister of Fisheries has greater responsibility, more immediate responsibility, than any other minister of the Crown. It is a more detailed, hands-on portfolio — much more than agriculture. What I hear is complaints that the MPs are not speaking out as they ought to, they just follow the whip or the whip follows them, and the problem is at the ministerial level, and perhaps even more at the bureaucratic level. If you have so much time and energy to devote, you could devote it much more effectively, as far as PR is concerned, to what is the real problem as far as the public is concerned.
Senator Grafstein: I take it that the independence of the Senate is crucial to that analysis. In other words, a strong, visible, independent Senate is crucial to that analysis.
Mr. Stewart: Yes, I think that is obvious.
Senator Smith: I want to better understand, so I will try to summarize your position on this. If I stray from the accurate version, please correct me.
You make a strong case that the proposed ethics commissioner, Howard Wilson reincarnate, should be a different person from the parliamentary official. I do not think any of us has a problem with that. In fact, it is my recollection that each submission we have heard is sympathetic to that viewpoint.
You presented a good case on the issue of whether there should be two officials for Parliament — one for the House and one for the Senate — such that each should have its own. I do not have a problem with that as long as it is structured in a cost-effective way so there are not full-time officials sitting idle because no one has complaints, which can only be brought forward by a member of the same house. To that end, some of us have talked about bringing in a well-respected person on a per-diem basis to fill the position.
It is not clear to me how to develop this structure. I will refer to ``the office of Howard Wilson reincarnated.'' I do not know how we can get to that stage without a statutory amendment. Let us just leave that aside for one moment because that does not affect us quite so much. I can understand that it is much more within the prerogative of the Prime Minister.
I have a comment with regard to the official or officials who will be appointed to deal with Parliament. I want to bring my colleague and friend Senator Joyal into the discussion, since I respect his opinion in these matters. From a discussion that I had with him, I know that he believes that the code and the offices for both Houses, certainly for the Senate, could be implemented by a resolution rather than by a statute to avoid the slippery slope of judicial interference. Do you agree with that? What is your view on that point? The crux of what we may have to decide may boil down to this as much as to anything else that we may discuss.
Mr. Stewart: I think I understand the question. I assume that Senator Carstairs' comments, speaking on behalf of the government, are still accurate. I have seen no retraction of the view that there are to be amendments to the Parliament of Canada Act but that the code of conduct, itself, is not to be statutory.
Senator Smith: The establishment of the officers and the process of their selection could be done by resolution of the house as opposed to by a statute. Is that your opinion?
Mr. Stewart: I think you will have to have a legally binding basis for paying that officer. That points toward the conclusion that you are making, I believe, that there would have to be a statutory basis for the powers of the commissioner.
Perhaps the model that would have to be followed is that of the Auditor General, which now applies only in the House of Commons. The government's proposal, as I understand it, is such that, as far as the House of Commons is concerned, the government is, in a sense, to nominate and the House of Commons is to approve or disapprove. However, I read no passage that states that the same is to apply to the Senate. You are to tag along.
Senator Smith: The office of ``Howard Wilson reincarnate,'' as I say, will require statute because the current Ethics Counsellor is paid. Even a part-time, former, respected judge, who would hold the position on a per-diem basis, would have to be paid. I do not want to speak for Senator Joyal, but I think he feels the issue is solvable by a resolution.
Mr. Stewart: This is a matter of means. If we assume that the goal is to have a Senate code of conduct, and that, in my view would imply a Senate code administered by a police person or a monitor, then you will have to tackle the whole question of the practicality and the costs of setting that up. I am implying, senator, that in my world there is no great demand, as far as public relations are concerned, for this code of conduct relative to the Senate.
Senator Smith: Perhaps, keeping the role relatively modest may necessitate the point that you did question, and that is whether members of the public will be allowed to lodge complaints and not only a fellow member of the house. If that occurs, it could be reminiscent of what is done by Democracy Watch. I could see them filing complaints every week or two and then you would require significant staff and the requisite funding.
I have asked the question but I will let Senator Joyal speak for himself.
Mr. Stewart: If members of the public could file complaints against senators and against private members of the House of Commons, it would be a wonderful relief from some of the things we see on television. It would be constantly on television and it would reduce the boredom.
The Chairman: I can only assume that, if there were a valid complaint against a senator or a member of the House of Commons, they could surely find a member of an opposition party to propose it for them, as long as the complaint were valid.
Mr. Stewart: That is why I mentioned ``honour among thieves.''
The Chairman: I would point out that we must leave shortly to continue with the other part of our meeting.
Senator Di Nino: Perhaps we will continue this discussion at another time. For now, I welcome our former Senator Stewart back. He has been both a student and a teacher on these issues for some four decades, plus. The paper that he prepared this morning highlights the fact that he is a man who thoroughly studies the issues and articulates them well. We thank him for that.
A couple of the terms that have been used in the past by those who have come before us are: ``crisis of confidence'' and ``questions of trust.'' Your paper certainly leads me to believe that you do not necessarily agree with that as far as the actions of members of Parliament, and in particular those of senators, are concerned. Am I correct in that?
Mr. Stewart: Absolutely. The complaint I hear, particularly in respect of members of the House of Commons, is that they simply follow the leader. There is no independent action, either corrupt or honest.
Senator Di Nino: Thank you, and I agree with that. I would like to deal with one small issue that needs to be addressed in greater depth. I believe you said, ``It diverts the attention from the real problem.'' I understood that to mean that you believe that the problem is not with members of the House or members of the Senate and that we should be looking at where the problem really exists and trying to deal with that. Could you give us some more thought on that for our deliberations?
Mr. Stewart: Senator, I was simply reporting what I hear. The complaint is a simple one. We have a concentration, as I said earlier, of population and industry in cities that is having a deleterious impact on representation of rural areas. Here, I speak as a person from Atlantic Canada. The complaint is that there is a kind of chumminess among those who, in Scotland in the 18th century, would have been called ``The people above.'' They play golf together; they go fishing together, et cetera. There are also those wonderfully effective consultants, so the attitude is, ``Why bother with the MP? Get an effective consultant and get things done.'' That seems to be the real problem, as far as PR is concerned. There may be reasons for cleaning up your rules; however, do not delude yourself that it will do much for public respect for our institution.
Senator Rompkey: I believe you said there was a need for cleaning up the rules. Do you also see an argument for, once they are cleaned up, bringing them together into one body and one place?
Mr. Stewart: Do you mean within the Senate or in both Houses?
Senator Rompkey: I am referring to the Senate.
Mr. Stewart: I do not know whether there is a need for cleaning up and clarification. I assume that honourable senators have heard evidence that shows that to be true. If so, that is something you should undertake. You should clean up and clarify.
Senator Rompkey: I hesitate to use the word ``codify,'' but is it reasonable and sensible, once you clean them up, to bring them together into one section?
Mr. Stewart: One section of the Rules of the Senate.
The Chairman: Thank you very much, Senator Stewart. It has been a pleasure to have you back with us. I apologize to honourable senators once again for cutting everything short.
I would point out that, if honourable senators have follow-up questions for any of the witnesses and they present them to me, I would be delighted to pass them on and circulate the answers when we get them back.
Senator Grafstein: I had an opportunity to speak to Professor. Gibson just after his testimony and he told me that he would be prepared to return. He has raised a number of fundamental issues, some of which deserve careful scrutiny. He indicated to me that he would be willing to come back because he felt, as I believe we all did, that we did not have a thorough opportunity to examine minutely his viewpoints, which are quite different from mine.
The Chairman: We will now adjourn to reconvene in 10 minutes in the East Block.
The committee adjourned.
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OTTAWA, Tuesday, April 1, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 10:45 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: Honourable senators, we have, via video-conference, Professor Mancuso from the University of Guelph.
Ms. Maureen Mancuso, Professor, University of Guelph: Honourable senators, by way of introduction, I will talk for a minute about expectations, because I think expectations are important from the public's perspective when we talk about codes of conduct. If the history of political scandal in this country teaches us anything, it is that we sometimes run the risk of failing to understand the behavioural expectations to which the Canadian public subjects its official officeholders. Scandals that erode confidence in government, tarnish the reputation of politicians as a class and ultimately give rise to committees like this one are examples of political acts that confound or shatter public expectations.
This is not to say that I think the public has it right. I think that, in some sense, these expectations are rather unrealistic. The public, after all, are political outsiders, and they do not have a familiarity with the day-to-day expectations or requirements of politics. They are quick to discount the demands of the job, and they are hypersensitive to the apparent benefits. No matter, those are still their perceptions, and even if they are unrealistic expectations, they need to be understood and addressed, because it is those expectations on which any sense of public confidence in government is founded.
I will not go into too much detail about that degree of confidence. I think you all know it is low and dropping. As a reminder, I have produced a few tables from a 1999 article that compares the public's perceptions to those of politicians and journalists. Copies of the charts are before you this morning. In table number 1, you can see that the public does not share the politician's high opinion of Parliament. When you look at the Senate, you see the perception gap is much narrower. What is distressing is that when you look at the Senate, even among your colleagues, fellow politicians, those who have little or no confidence in the Senate as an institution stands at about 51 per cent. When you look at the data, you see that fully two out of every five Canadians have no confidence at all in the Senate as an institution, and twice as many have a similarly dismal opinion of Parliament as a whole.
I feel that that is an issue that needs to be addressed. Again, cautioning whether it is realistic or not, I still think there is work to do to address that.
The code is a good first step. This code really does establish some important standards that would apply universally to all parliamentarians, emphasizing the requirements for them to avoid not only real, but even apparent conflicts of interest. The code enshrines the principles of disclosure and transparency, at least with respect to the office of the ethics commissioner, if not the public. It recognizes the importance of providing ethical guidance and advice to parliamentarians, most of whom, as we all know, are willing to do the right thing, but who are often confronted with confusing and conflicting obligations.
Most important, it finally puts the ethics commissioner on a sound institutional footing by making it a position of parliamentary scope and accountability rather than an arm of the Prime Minister's office. That is an important development.
I will stop there. I thank the committee for giving me the chance to meet with you this morning. I would be happy to entertain questions or engage in a dialogue or conversation about the code.
Senator Rompkey: I have looked at the charts that the witness put before us and which she went over with us. Professor Mancuso, you talked about confidence in institutions. However, we have just heard from former Senator Stewart about the attitudes of the public. The case that he put before us was that the public feels that parliamentarians, especially in the case of the House of Commons, have far too little power and influence. The criticism is not that they are using their position to influence policy, but that they are not using their position to influence policy. The case that he put before us was that by instituting a code that parliamentarians must live up to, we are fixing the wrong problem. We should be addressing trying to obtain more influence for members of Parliament.
I wanted to raise that with you, because we are talking about the need for a code. You seemed to indicate that there is a need and that the public demands one. I wanted to lay before you the testimony we just heard from John Stewart, because it seems to me that is relevant to our discussion and to your testimony.
Ms. Mancuso: Yes. I would agree. That came out loud and clear from the politicians in our study. It was very much the politicians, provincial legislators as well as federal legislators, who, in the course of the surveys, spoke about the need for parliamentary reform and increasing the power of backbenchers.
I worked in Parliament as an intern in 1984 on the McGrath Special Committee on Reform of the House of Commons. This was a very important report, in that it talked about what kinds of reforms, both structural and procedural, could be implemented to enhance both the actual and the perceived power of backbenchers. Certainly, the perception that party discipline constrains and limits the influence of parliamentarians is out there. However in our study, we heard that from the members themselves, not from the public.
Senator Rompkey: I wanted to also get at the attitude of the public toward a code of conduct. Is it your position that the public is demanding this? John Stewart, and I hope I am reflecting him fairly, said that he was not hearing that. They were not rising up and saying, ``You must bring in a strict code to restrain these people who are unduly using their influence.'' He is hearing that we should do something to enhance the role of parliamentarians so that they have more influence. Is my question clear?
Ms. Mancuso: Yes. If you look at table 3, senator, where we asked the public what kinds of reform measures they thought would reduce corruption a lot, a little or not at all, the largest percentage of response was to create an independent ethics commission to investigate the public's complaints. A full 61 per cent said that would make a lot of difference in terms of their perceptions of the problem.
Second was to bring in stiffer penalties, with 60 per cent feeling that that would make a lot of difference.
I think there is a sense, at least from a perceptual point of view, that it would be seen as providing some degree of rules, or — I do not even like the word ``rules'' — a framework from which they could evaluate behaviour, as well as what we heard from members themselves, that they are looking for concrete guidance on how to handle certain situations. A code is a win-win for both the public and parliamentarians on that score.
Senator Grafstein: Thank you, Ms. Mancuso. Public polls are always very interesting, and sometimes they can be misleading.
Ms. Mancuso: Yes.
Senator Grafstein: Let me start with your table 3. This seems to me to be a proposition that begs the answer. You start by saying, ``Do you think the proposals would reduce corruption?'' The question, in effect, assumes that the public believes that politicians are corrupt. Have you asked a series of other, more careful questions with respect to trying to evoke what public attitudes might be on the question of corruption? When you say, ``do you think it would reduce corruption,'' there is an assumption there. Frankly, if I were a member of the public, I would say, ``Here is a way to do it.'' However, the preliminary question contains the word ``corruption'' as well, and where is the evidence for that?
Let me make it a bit more complex for you. You have put provincial politicians, federal politicians and cabinet ministers all in one bundle. Frankly, our concern here is to try to differentiate between the cabinet, Parliament, lobbyists and senators.
I wonder whether you have, in your questions, gone through each of those categories to determine whether your conclusions apply?
Let me give you one further example, because I assume all honourable senators would like to get at this.
In table number 2, you indicate that civil servants have the lowest rating in terms of, I suppose, ethical conduct. Is that correct?
Ms. Mancuso: Respondents were asked whether they think civil servants are higher, lower or about the same; 11 per cent of the public said civil servants were higher and 17 per cent said lower.
Senator Grafstein: Perhaps you could just address this question, because it is very important for us to differentiate between public awareness and concern. All of the press, as you know, has been focused not on parliamentarians or senators, but on cabinet ministers and lobbyists.
Ms. Mancuso: On the first point, that is just a note. You are looking at the tables out of context. This is part of a large study intended to gauge the state of political ethics and people's attitudes toward questions of corruption. For example, respondents were told, ``Political corruption is a widespread problem in this country,'' to which 74 per cent of the public strongly agreed. We also said, ``No matter what we do, we can never put an end to political corruption in this country.'' Seventy-one per cent of the public strongly agreed with that statement.
I will be the first to admit that polls have limits in terms of their value and what you can extrapolate from them, but I would also caution that it is a mistake to look at the tables out of the context of the whole study, which was very well developed.
To get to your other point, we would like to make distinctions between the various categories of officeholders, but the public does look at you as a class on some level. We did try to gauge how people's reactions varied by having as a core part of the survey a set of hypothetical questions or scenarios in which we changed the officeholders. We wanted to see if there was a different response when we did that. We used ministers, senators and MPs.
The interesting swing occurred when a member of the media was inserted into the question. When politicians were being asked something intrusive about their private lives, the public reacted negatively, but towards the journalist. Every time the media entered the question, we got a reaction.
I think you would be surprised by the results of the survey. There is a larger reservoir of support for public officials and politicians in this country than many of you may recognize or appreciate at times. I know we only hear about the negative. We focus on scandals and what are perceived to be negative events. We do not hear about all of the good work. Certainly the study reveals that there is a large reservoir of support for what you do.
Senator Grafstein: I am looking at table 3 and I just speak as a senator from Ontario. We have three levels of government, municipal, provincial and federal, which includes cabinet ministers, members of the House and senators. When you ask a respondent in Toronto about ``politicians'' at a time when there is some large public grievance in that city with respect to politicians at the municipal level, would that not distort your conclusions?
Ms. Mancuso: That is what I am telling you. We did not do that. The group in the table labelled ``politicians'' are respondents, that is, MPs, senators and provincial MPPs. On the table, you see only questions about Parliament and the Senate. On table 2, question 2, we only asked about members of Parliament and civil servants.
Senator Grafstein: Again, even if you say ``members of Parliament,'' many people in Ontario do not know the difference between a member of Parliament and a member of their Ontario legislature and they group them together. As an example, in Ontario we have a very thorough system of an ethics commissioner and a code, as we have heard. Yet the numbers do not seem to vary, with or without the code. What are we to draw from that?
Ms. Mancuso: If you want to see the regional differences, I could send you that breakdown. There were no obvious regional differences to speak of, except for Quebec, which was an outlier; it was the reverse of what public expectations would have been. Quebec respondents were the most intolerant of all the examples described in the sample survey. That runs counter to what had previously been written in the literature.
Senator Grafstein: Madam Chairman, I think it would be useful to get the entire study. I reserve further questions until I have had a chance to ensure our conclusions are not unfairly distorted from the work that Ms. Mancuso has done.
The Chairman: We will ask for the entire study and see that it is circulated. We do have the questions from one of the professor's studies, but not the answers.
Senator Joyal: I appreciate your contribution, Ms. Mancuso. In relation to table 4 and the appreciation by the public of the Senate, as you said, about 49 per cent of the public said they have little confidence in the Senate. I think that is a fantastic figure. The Senate has been criticized, vilified and nailed in Canadian public opinion for the last 20 years, regularly and repeatedly. We have been nailed repeatedly through the editorial pages of Canadian national and regional newspapers. Yet we still maintain the trust of 50 per cent of the Canadian population. If you look up how many Canadian governments have been elected with less than 50 per cent of the vote, you will be astonished to find that most, provincial and federal, are elected with less than 50 per cent of the support and confidence of Canadians.
The Chairman: I would point out that the response of the public to the question about the Senate was only 34 per cent.
Senator Joyal: Even at 34 per cent, look at the way the Senate has been treated. This is not a problem essentially linked to the behaviour of senators. In table 3 of your data, you propose, at question 58, bringing in stiffer penalties for corrupt behaviour. To me, corruption is a criminal offence. The package in front of us has no amendment to the Criminal Code. I have made that point repeatedly. I think it should be revised. This proposal does not touch that area.
Second, you suggest requiring all politicians to publicly reveal their tax returns. The draft bill in front of us does not ask politicians of any stripe to reveal their tax returns. To me, that would be an intrusion into private life.
Third, politicians should be made to take a course on public ethics. That is worthwhile, but we do not need an ethics package for that. We already have rules about which we can inform senators and politicians.
Fourth, you suggest creating an independent ethics commission to investigate public complaints. I am sorry, but the present package does not allow for that. It allows members of Parliament in the House of Commons or the Senate to file a complaint.
Finally, screen those seeking public office for gaps in their personal ethics. That duty belongs to the party; it does not belong to the Senate or House of Commons once an MP is elected or a senator is appointed.
I respectfully submit to you that all the questions you have asked in table 3 have no immediate bearing on the bill we are discussing because none of them includes any of those proposals. Therefore, that tells me that we are pedaling, to use a common expression, in whipped cream. None of the proposals that we are trying to understand are specifically dealt with in your questions. I am not very impressed by the fact that you ask people, ``Do you trust your politicians?'' I do not know of any Western democracy where politicians are on the same footing as judges. It is like comparing the fireman with the priest and asking, ``Whom do you trust more?'' It depends on the context.
When you approach an issue as complex as public trust with that kind of limited strategy, you do not put your finger on the real problem. The real problem is more party financing. I hope that we will have upcoming legislation on this. The issue of the lobbyist is the most important point, and the behaviour of ministers who take executive decisions on the rights of citizens. This is the most important element, not at the level where the first mandate of a member is to speak his or her mind, as Edmund Burke said, about a government proposal. We do not decide anything to do with the executive government. Those are the privileges of the executive government. We are there to speak for public, regional and minority interests. Then you can testify, ``I am performing my duty responsibly and constitutionally.''
To say that someone is unethical and so forth and we should focus on this is to concentrate on limited and narrow problems. All the provinces have an ethics code and a commissioner, and when you look into this, it does reflect on the trust that people have in their provincial politicians as much as their federal politicians. We are really confusing everything here.
As much as I agree with your statement that the Prime Minister's code of ethics must be clearly published and implemented, because that is where the problem is, the rest of it is a minor element in the trust of the people. I would hope that your data would have helped us to understand that.
The Chairman: Thank you, Senator Joyal. I must say that we did ask Ms. Mancuso to tell us what her studies — this one was done in 1999 — showed about Canadian public opinion. These are not proposals, as you have clearly pointed out. I am sure Professor Mancuso will also point that out.
Professor Mancuso, do you wish to take on Senator Joyal?
Ms. Mancuso: I think it goes back to where I began, which was with expectations. Parliament has a public relations problem, part of which could be addressed by a code, for the reasons that I laid out at the beginning. I feel that expectations, when they are laid out or made visible in a code, give the public some understanding of what is a reasonable standard of behaviour to which to hold their members.
At the same time, it is important that, internal to the chamber, there should be established guidelines that help people to resolve the day-to-day ethical dilemmas inherent in public life. I have heard that loud and clear from the members I have interviewed in Canada, Britain and the United States. People appreciate having those standards clearly articulated. That does not mean that discretion or good judgment is no longer in play, but it does help to establish broad parameters in which both the public and parliamentarians will play.
Senator Di Nino: Ms. Mancuso, I share some of the frustration of my two colleagues, in that I believe it will be helpful to get the full report and take a look at the rest of the information. That may give us a better idea.
Our purpose, in chatting with you, is to ask for your opinions and guidance in our deliberations in dealing with this proposal to create a code of conduct for parliamentarians.
The witnesses whom we have heard so far have shed light on a number of things. One of the telling comments that former Senator John Stewart made this morning was that the discussion that we are having diverts attention from the real problem. The real problem, in his opinion, is principally with the executive and senior bureaucrats. The problems that come about are usually in the relationship between those two segments of the government and big interests, those with whom you play golf or who have the ability to influence the system.
Could you comment on that? Did you discover that in your study of this subject?
Ms. Mancuso: That is a standard point of view in all studies that have been done on parliamentary systems, in both Britain and in Canada. There certainly is a feeling that backbench MPs and senators are not within the same scope because they do not have the same degree of executive influence as cabinet minister.
There are areas that we did probe in our study to which MPs and senators are open. A large part of that has to do with access to and influence on things that you may perceive to be germane to the job, but that the public would want to know about. That may be people with whom you play golf or people with whom you interact or who have outside connections that may or may not influence what you say inside a committee room or the chamber.
If you look at the British House of Lords, what is attractive about their code is that it puts right up front a no-paid- advocacy rule. It is enshrined clearly in their code. The code that is on the table here eventually gets to the same point, but not in the clear, upfront kind of way that the code for the British House of Lords does. That is something people would understand: Do not use your position to get access and influence. That rule, as it is articulated in the House of Lords code, is clearly understood.
Senator Di Nino: I wonder if we are all being painted with a broad brush here. Most of us in the system do not have influence or authority over power. I wonder if you have discovered that in your study at all?
Ms. Mancuso: I do not believe that people would say that this issue is not worth addressing for MPs and senators. I agree that is not always realistic, but they do see you as a group.
Senator Di Nino: In your third table, you talk about the creation of an independent ethics commissioner to investigate the public's complaints. As you heard, the proposed code does not envision the public being able to initiate complaints; would you care to comment on that?
Ms. Mancuso: I understood that that was in the previous bill, and in the Milliken-Oliver report. People know about that, and that would be perceived as a gaping hole, something that was watered down or taken out of the proposed code. I do think the public will suspect the worst. They will think there was an internal closing of ranks to take that out.
You have to work out what the concern is. If the concern is that the public will make frivolous or vexatious allegations or accusations, then address that problem by establishing a threshold. It may be that you have to swear an affidavit to make a complaint. Make it mean something, make it have consequences, so that it cannot be frivolous, mean-spirited or without any real basis.
If that is the concern, address it, but I really think it insulates politicians even further if a member of the public has to go through a member of either chamber to bring a complaint forward.
Senator Di Nino: Senator Oliver may wish to comment on that specific point.
Senator Oliver: I will pass on that, but that is not what the Oliver-Milliken report said.
Senator Di Nino: That is precisely the point I wanted to make. I do not recall that that provision was in the previous code, and I was a member of that committee. I make that point just for clarification.
Senator Fraser: Ms. Mancuso, I found your tables quite devastating. When only 34 per cent of the public say they have any confidence at all in the Senate, we have a problem. It may not be the only problem, but I think it is a serious one. When, oddly, the same number, 34 per cent, of members of the public say that they think members of Parliament are less ethical than the average person, again we have a problem — and again, it may not be the only problem, but it is a problem.
Based on your work, have you a sense of how these attitudes have been evolving over time? Is it getting better or worse? Similarly, how do the attitudes of Canadians compare to the attitudes of people in other countries with which you may be familiar?
Ms. Mancuso: I do not think Canada is alone. The situation is getting worse for all Western democracies. We have seen a decline in levels of confidence in public institutions throughout the 1990s. These numbers are nothing new. They are certainly consistent, and if anything, we have seen a decrease in levels of support expressed. Again, it is not exclusive to Canada. These numbers are similar in the United States, Britain and Australia.
Senator Fraser: Has any work been done to indicate the point at which attitudes like this start to have a damaging effect on the functioning of the democratic process? One can envision a point at which people say, ``I do not believe they are honest. I think they are corrupt. Why should I vote for them,'' and just opt out of the whole process. Democracy depends on participation by as many people as possible and on the faith of the citizens in the integrity of the system. Is there any scientific or theoretical work to back up that assertion of what sounds like common sense?
Ms. Mancuso: That assertion is very much in existence and in the literature. I refer you to a study by Joseph Nye, from Harvard, about why people in the United States do not trust their government. It was a very large-scale project addressing exactly the question you are posing: What are the ramifications or repercussions of low levels of trust for democratic government? That study looks at how that plays out in the American setting.
Senator Fraser: Can you give us a short indication of its conclusion? I would love to see the study.
Ms. Mancuso: There is a sense that it has a deleterious effect on levels of electoral turnout and participation in political parties. All of the democratic mechanisms are affected by levels and perceptions of trust.
Senator Sparrow: Other witnesses, particularly Herb Gray, former Senator Stewart and David Smith, did not appear to see the issues that you are reporting. Mr. Gray stressed that the average senator or member of Parliament is well respected in his own area. Former Senator Stewart and Professor Smith did not directly state that, but that was the inference.
Herb Gray said that the institution itself is being questioned rather than individual senators. If that is the case, there is a misconception that the Senate only operates on the basis of individual members. If individual members are respected in their own communities, why is the institution so downgraded? Is it because of the press? Is it because we are considered to be part of the government?
It seems to me that the proposal to have an ethics commissioner is an effort to put out a fire that does not exist. Why would we be doing this if individual senators are in fact respected within their own communities and the nucleus of the Senate itself is the problem?
You mentioned corruption. I have not seen corruption in the activities of the Senate for the last 35 years, although perhaps I cannot go back much further. If you ask people what they think about corruption, they automatically answer that it must exist. If you ask whether they are opposed to corruption, of course they will say they are.
If no corruption exists, what are we to do?
The perception of the public may be due to the opinions of some on overspending by government in some departments, be it with regard to gun control or whatever. Sometimes the inference is that there was corruption, but in turn, no one has called that corruption. They have called it misspending, mismanagement or whatever, but not corruption. As that is pursued through the press, the public suddenly begins to think that there is theft or corruption in the system.
If senators and members of the House of Commons are highly respected in their communities, why should we make a change in the Senate rules?
Ms. Mancuso: It has been demonstrated that people have respect for, or a higher level of trust in, their own member. That has to do with the fact that the number of people who have had direct contact with a member is increasing. The more frequently they interact with their member on an individual basis, be it to ask for advice or assistance, or even just seeing them at a civic event, the more positive are their feelings for that member. However, we are not seeing a translation of that level of support to the institution as a whole.
The feeling is very much, my member is great, but I am not so sure about the rest. We have not worked out why that does not translate to the institution as a whole.
It is attributed to a number of things you mentioned. Certainly, part of it is the role of the media, in that they focus only on the misdeeds, and not the good deeds that are done daily on Parliament Hill. Second, the public's view is clouded by everyone being tarred with the ``government'' brush, and negative response directed at government in general — big government, government that is not responsive, does not care about people like me, does not care about what I think or what I say. There is a tendency to lump everybody under that ``government'' label, which somehow has become a bad label. You are exactly right. How do you translate, or capitalize on extending, that goodwill that exists for the individual member to the institution as a whole?
Senator Sparrow: Did you say just now that the public is concerned, or you are concerned, or someone is concerned about the daily misdeeds on Parliament Hill or on the part of parliamentarians?
Ms. Mancuso: No, I said the media too often focuses on those rare incidents. They portray them as being regular, routine misdeeds, which is what colours people's perceptions. That is what they read in the newspaper.
Senator Sparrow: Did you say the misdeeds of Parliament or the perception of the press of misdeeds?
Ms. Mancuso: That is what I said, the press.
Senator Sparrow: You are not suggesting that there are misdeeds?
Ms. Mancuso: No.
Senator Hubley: Senator Sparrow has addressed the concern that I had, which is the difference in the public's perception of their individual regional or community representative and the larger body. Did I hear that that is something you have addressed in the document that will be coming to the Senate?
Ms. Mancuso: We only asked if there was a difference in attitude if you had frequent contact with your member, or any contact with your member at all. At the end of the day, it did not make a difference. However, there is information that the number who self-reported some kind of interaction with their member has gone up. Nevertheless, there was no impact on how they felt about the issues they were being asked about in the survey.
Senator Hubley: Were they asked the reasons for that, what had influenced them? Was it the media?
Ms. Mancuso: We did do companion focus groups that were meant to probe for the reasons why they gave the answers they did. As I alluded to at the beginning, the media are a big player in all this. People are trying to get their heads around how the media impacts their perceptions of government, of members and of Parliament. I think it is fair to say that they are aware that the media play a negative role in shaping those attitudes and perceptions.
Senator Grafstein: I was taken with your conclusion that there is some perception that senators and members of Parliament have too much influence and abuse their access. Would you comment on the view that I have heard, which is quite contrary to that? The only time I receive positive comments is when I am not influential enough. In other words, the argument that has been made to me is, ``How come you are not more influential and powerful and how come you do not do more things?'' The only time I get a strong positive reaction is when I stand up to the House of Commons, or on a bill, or am perceived to be contrary to the government view. That is when I get the most positive response in my community.
That is inconsistent with the view that some members of the public think we have too much access and too much influence.
Ms. Mancuso: I was talking about in relation to outsiders, to external agents or actors such as lobbyists, consultants and the like. A big part of the study used hypothetical situations. When you see the full study, you will get the full results.
For example, we described a situation in which a senator who has no other outside employment agrees to serve as a corporate director for a small fee. When we looked at the results, only 21 per cent of the public sample deemed that to be acceptable to any degree. A full 30 per cent considered that to be totally unacceptable.
As you can see, there was not a lot of information given. There was no further suggestion of anything questionable. It was just a stark, unvarnished situation; and the public pronounced a very harsh judgment. It says to me that the burden of proof is on the Senate and the senators to demonstrate that that type of remuneration is compatible with autonomous and non-conflicted participation in legislative deliberation. I was talking about the relationship to outsiders in terms of influence and access, not inside.
Senator Grafstein: I will conclude with this. Under the Constitution — and perhaps there is a misunderstanding among the public about the Constitution — the role of the senator is to be deeply involved in all aspects of his community, and to be very proactive. This is not to exclude business or the private sector or the volunteer sector, but to represent, as best he can, the regions by being independent and totally involved. There seems to be a misconception, perhaps because of lack of communication about our constitutional role.
Ms. Mancuso: As an example, all I can point to is the British House of Lords; that would not happen because they must declare it if they have that kind of paid directorship, even if it is a small honorarium. They do not have to state the amount, but they list it. The public knows that there is a relationship, and that it may or may not have an impact on their dealings.
I would say it does not. However, it is obvious, transparent and helps to reassure the public that the member has taken the steps to file it and make it known. It is hard to believe that the register in the House of Lords is updated weekly when the chamber is sitting, but in fact, as many as 30 and 40 changes are made every week to the members of the House of Lords' registration forms.
Senator Smith: I do not have a question, other than to reinforce what Senator Grafstein said earlier, that it is important for us to see the full survey. I have been looking at political polls for 40 years. My experience is, when they tell you what you want to hear, you embrace them and hug them to death. When they tell you what you do not want to hear, you try to explain them away.
I do not try to explain them away. I accept them as the answers to that question, assuming they are professionally and competently asked, on a given day. I am happy to see the ``Full Monty'' survey and absorb as much of it as I can. It will influence my mind, which is always open in a proper way.
The Chairman: Professor Mancuso, I will not ask you to answer this now, but perhaps you could provide the committee with a short, written response to my question. Could you compare the House of Lords system with that which has been proposed here? I am aware that you know it well because you have studied it. You may have an opinion about which system is better.
Ms. Mancuso: I certainly think the current House of Lords system is preferred. One of the biggest attractions is their paid advocacy rule, which is front and centre in their code. That helps to address issues from the public's perspective. The other thing that I certainly think is lacking in the proposed legislation here is how non-compliance will be addressed. The code of the House of Lords presents a step-by-step process for a member who chooses not to comply. The British case was sparked mainly by the refusal of Mr. Enoch Powell to register his interests when that code was first introduced. I certainly think that is important.
The House of Lords has a much more stringent standard than the one we are proposing. They use what I call ``a reasonable man test,'' which actually bases the whole code on the issue of public perception. They are saying that certain classifications must be registered at all times, if a reasonable person could assume that those classifications would affect one's decision making. That is a tough test.
The Chairman: Thank you, Professor Mancuso, for taking the time to participate in today's committee deliberations.
The committee adjourned.