Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 10 - Evidence, April 2, 2003
OTTAWA, Wednesday, April 2, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 12:00 p.m. to examine proposals to amend the Parliament of Canada Act (Ethics Commissioner) and other acts as a consequence and proposals to amend the Rules of the Senate and the Standing Orders of the House of Commons to implement the 1997 Milliken-Oliver report, tabled in the Senate on October 23, 2002.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, the committee is continuing its study of the ethics package for parliamentarians tabled last fall by the government. This package is based largely on work done by a joint committee co-chaired by our colleague, Senator Donald Oliver. Their report was tabled in the House of Commons in 1997.
Today, we have before us Professor Peter Mercer, who is a professor of law at the University of Western Ontario. Before we hear from our witness, however, we have some housekeeping decisions to make.
Honourable senators, we have been examining this matter for some time. As you probably all know, the House of Commons completed its interim report a month ago. It put out another interim report last week, and it will issue its final report next week. We have had this package under consideration for six months. Thus far, nothing has been said outside this committee on precisely where the committee stands. We know that the government will be drafting a bill over the Easter break and introducing it in early May.
I should like the agreement of members of this committee to issue an interim report which would set out where our deliberations now stand. Should the Senate not be sitting next week, I need a motion from this committee to allow us to prepare that report.
Senator Rompkey: Madam Chairman, I so move.
The Chairman: Is it agreed, honourable senators?
Senator Stratton: Madam Chair, it is important to remember what we are doing and with what issue we are dealing. We want to deal with this matter, not in a rushed manner, but in a comprehensive and studied way, something for which we in this place have a reputation.
I am concerned about what took place yesterday, as are other senators in this room. We had three excellent witnesses who gave a detailed, comprehensive analysis of the ethics package from their point of view. We could have spent the entire two hours hearing from the first two witnesses, but we never had the opportunity to pose a second round of questions. Indeed, some of us never had an opportunity to ask a question on the first round. We had an hour to hear the views of our third witness, but we virtually ran out of time for a comprehensive, in-depth questioning of that witness. I was unable to attend the second meeting in the morning at 10:45 because I just could not fit it in with my schedule.
It is important to realize how critical this is. Around this table, we want to arrive, if at all possible, at a consensus of what we want to say. We are not far away from doing that. However, if we are being prevented from properly carrying out questioning the witnesses to clarify the nuances of their presentations, we are short-changing not only ourselves but also the public. We owe it to them to do that.
I realize that we want to submit an interim report, but we need time for a full discussion of that. Is my understanding correct, Madam Chair, that we will be hearing, by way of teleconference on Monday at 1:00 p.m. from the House of Lords as to their position?
The Chairman: Yes.
Senator Stratton: What is our position with respect to that? Who will prepare the report? Will we not have a discussion so that we can perhaps arrive at a consensus? Perhaps, Madam Chair, we could discuss this after the meeting.
The Chairman: Perhaps we should, Senator Stratton. I must apologize to honourable senators for cutting questions short yesterday. It is always very disturbing to me when I must do that. It is difficult to know how long presentations will take. The two presentations before us in the first session yesterday were exceedingly long.
I would point out that one of the great difficulties that this committee faces is the fact that we have a finite starting time and a finite ending time. In order to have the prolonged discussion that we would all prefer to have, we would require more time, but we have been unable to get agreement to have more meeting times for this committee.
We have a motion before us that, after a discussion next week, we shall allow the committee to present an interim report as to where our discussions now stand.
Senator Rompkey: Essentially, I agree with Senator Stratton.
As well, Madam Chair, I think it is good idea to determine where the committee is in its deliberations. For example, we should determine if a consensus has been reached in relation to any issues. I believe there is a consensus around the table that there should be a separate commissioner for the Senate. My proposal is that we simply identify where we are, on which issues we have reached a consensus view, and then indicate that there are other issues where there is not a consensus and that we need more time. I agree with you that the Senate will have to live with this for a long time. It is not something we should rush to judgment on. Having said that, I do not see why we should not simply tell people what we have heard and what conclusions, few as they may be, we have reached.
Senator Stratton: We on our side do not disagree with that position. We simply want to ensure that as we are going through this, if we have two witnesses, we have two hours to properly hear from those two witnesses. If we have one witness, then an hour is sufficient. That is all I am getting at. Hopefully we can agree on the areas of consensus and disagreement. We need a fulsome discussion over a fair bit of time with respect to that. I do not know what the position is with respect to others around the table, but that is where we stand.
The Chairman: I agree that we want to have more time with the witnesses. Should the Senate not be sitting next week, we will have a significant amount of time.
Senator Joyal: On the question of the draft of the interim report, who will be preparing that draft is important to me.
The Chairman: Our committee staff will prepare that.
Senator Joyal: Will Mr. Robertson be preparing the draft?
The Chairman: Yes.
Senator Joyal: When will we have that draft?
The Chairman: Much will depend on our meeting days next week and whether the Senate is sitting next week. We will have the video-conferencing meeting on Monday. That will be a longer session because we will hear from further witnesses. Then we will have an all-day session on Tuesday for consideration of what might or might not be in a draft report. I would hope that we would then be able to write it up very quickly. I believe that Mr. Robertson has already outlined some pros and cons. He has drawn up the arguments on both sides on some of the issues that were raised.
Senator Stratton: That will all be in order as long as there is no conflict. I know the Standing Senate Committee on Legal and Constitutional Affairs will be meeting next week, and some of our people will be in conflict with the meeting of that committee.
The Chairman: We will do our best to accommodate everyone.
All those in favour of allowing me to bring a motion this afternoon?
Hon. Senators: Agreed.
The Chairman: Professor Mercer, please proceed.
Professor Peter Mercer, University of Western Ontario: Honourable senators, it is a great privilege for me to appear before you to have the opportunity of participating in truly a grand debate, one that is hundreds of years old — that is, the appropriate relationship, ultimately, between the judicial and legislative branches.
I should probably begin with a caveat. It is true that I am a professor of law at the University of Western Ontario, but I was also, formerly, a dean of law. Honourable senators may know the appropriate definition of a former dean is one who has lost his or her faculties. I can assure you that, if you hear from me for an hour, I will be able to tell you, within that period, everything I know.
I would begin by contextualizing the issues that I understand to be before the committee. I know that some of you have had the opportunity of reading my brief.
Let me go back to first principles, that is, the whole notion of how best to deal with claims of conflict of interest, where the allegation being made is that someone has placed his or her private interest ahead of his or her public duty. We must recognize as well that there is a great deal of public cynicism about the public service generally and a great concern, often overblown, that mechanisms of the state are misused for personal ends. Nonetheless, if a person acts in his or her own interest or in any other private interest when performing a public duty, the almost inevitable inference is that the person is acting, at the very least, with bias, and, beyond that, potentially in a manner that can be said to corrupt public administration.
The question becomes: What is the appropriate choice of instrument in deciding how to deal with conflict of interest claims? I know that committee members have been grappling with the question of whether the appropriate mechanism is best sought internally in the form of what might be described as the Senate's own guidelines, or whether it should be done legislatively. Guidelines have some advantages. They are relatively easy to formulate. They are relatively easy to put in place. For that reason, the Parliament at Westminster has shied away from responding legislatively in its own recent report. Nonetheless, guidelines lack the force of legislative instruments, and they also, in that sense, sometimes are seen as lacking in objectivity.
Certainly, when one looks across the public administration spectrum, the situation is almost as chaotic as it is when one looks across the judicial spectrum. Federally, there appears to be no conflict of interest legislation currently applying to parliamentarians as such. We have the Criminal Code and its applications concerning corruption and public life, and of course there are the guidelines to which cabinet ministers are subject under the monitoring of the federal Ethics Counsellor.
Provincially, there is again what might be described as a lack of consistency. Most legislatures, in some form, have dealt with the question of conflict of interest, and that is even more pronounced when one looks municipally.
At the public service and civil service levels, legislative mechanisms cover those administrations generally, but they are partly legislative and partly by guidelines.
I wish to focus for a moment on the situation of provincial conflict of interest commissioners. I sense, from reading the debates of this committee, that there is some movement towards the idea of creating a commissioner for the Senate who would be a creature of either internal regulation or legislation. The provincial conflict of interest commissioners are officers of the legislature, a point that has been found significant in a number of judicial decisions. Typically, they have extensive investigative powers, and their primary function is to give advice to members of the legislature and to cabinet ministers. They tend not to have decision-making authority. Instead, they report to the legislature annually and also as required in respect of individual investigations that they are called upon to undertake.
In that regard, I should like to deal briefly with a decision of the Supreme Court of Canada in Harvey v. New Brunswick. It has been referred to a number of times in the deliberations of this committee, but I think several distinctions need to be made about it that may be helpful to your committee and its further investigations.
Honourable senators will recall that the Harvey v. New Brunswick case involved a member of the New Brunswick assembly who was expelled under the provincial elections act for illegal election practice. He had induced someone under the age of majority to participate in the election by voting. Under that legislation, he was also disqualified for holding office for five years, which he then alleged was a contravention of section 3 of the Charter, which is the provision in the Canadian Charter of Rights and Freedoms that allows anyone to stand for elective office and to hold it if elected.
The trial division of the New Brunswick courts found that the disqualification for five years did violate section 3 of the Charter and, furthermore, that it was not saved by section 1 of the Charter, the saving provision.
At the appeal court, that trial decision was overturned and the disqualification provision was found to be not unconstitutional. There is now a clear choice to be made at the Supreme Court of Canada level.
Importantly — and this is a distinction that may be of more interest to a law professor than to those of you who actually have to do the work of deciding how to proceed — there was no argument presented in the Harvey case on the question of whether the expulsion and disqualification under the New Brunswick Elections Act were privileges of the legislative assembly. It simply was not raised by either side; it had to be raised by the court itself. Seven of the justices of the Supreme Court — and it was a full panel of nine who decided the case in Harvey — assumed for the purposes of making their decision that the New Brunswick Elections Act was subject to the Charter. They said they would do that because that is the way the matter was argued before them. Therefore, they found that the section 3 right to election was prima facie violated, but that that violation was acceptable under section 1 of the Charter.
Having said that, I would suggest that that is not the most important part of the judgment for your purposes. The most important part of the judgment, and the one that is picked up in later cases such as the Tafler decision, which has been brought to your attention in the materials you have received, is the decision by now Chief Justice McLachlin, concurred in by Madam Justice L'Heureux-Dubé. They both took a different view, and that was that they should address the question of privilege, even though it had not been raised. They make two important points for your purposes. The first was that disqualification from office by the legislative assembly under the New Brunswick Elections Act did fall under the rubric of historical privilege. Therefore, it was immune from judicial review. Because it fell within historical privilege, it was immune.
That position has been departed from recently by the Federal Court of Appeal in the Vaid decision, of which I will speak later. Their view was that it constituted immunity.
That, by the way, is consistent with principles that have been developed in the common law world, not just in Great Britain and in Canada, but in jurisdictions such as the state and federal jurisdictions in the United States. The doctrine of legislative immunity, for example, is alive and well in the Americas.
The second point, though, that I think was equally important, was that disqualification from office created not only immunity from judicial review but also immunity from the Charter. It created immunity from the Charter because privilege itself is a constitutionalized doctrine. In the eyes of Madam Justice McLachlin — and she said the same thing in the New Brunswick Broadcasting case — you cannot take one portion of the Constitution, in this case section 3 of the Charter, and use it to overturn another valid constitutional precept — in this case, the privileges of the New Brunswick legislative assembly.
Both the views of Madam Justice McLachlin and the concurring views of Madam Justice L'Heureux-Dubé identified the basis in privilege in this case as being the legislative assembly's right to regulate its own affairs. Also — and this may be important conceptually, particularly if Vaid goes on to be heard by the Supreme Court of Canada — that under the separation of powers notion that goes back really to Montesquieu, which is that the inherent foundation of privilege is that it is within the legislative purview to regulate its own affairs, it is inappropriate, therefore, for the judiciary to intervene. The separation of powers requires that there be spheres within which the individual branches of government are entitled to operate.
For those of you who are beginning to find that this textual exegesis is interfering with your digestion, I will tell you where I am going.
Section 3 would still operate, according to Madam Justice McLachlin, if a citizen were disqualified from holding office on grounds that fell outside the rules by which Parliament and the legislatures conducted their business. She specifically enumerates race and gender. This is important because it links with a statement made by former Chief Justice Lamer in the New Brunswick Broadcasting case, and I think it is the jumping-off point for Mr. Justice Létorneau's decision in the federal Court of Appeal in Vaid.
The distinction is this: No assembly, no house, can merely assert privilege. There will always be the opportunity for a court to determine whether that claim is validly asserted.
When Madam Justice McLachlin says that the courts may review an act or ruling of the legislature to determine whether it properly falls within the domain of parliamentary privilege, what she is saying is that that initial determination is made. Once it falls within the domain of parliamentary privilege, it is immune, both from judicial review, as it is traditionally known, and also from review under the Charter because privilege itself is a constitutional precept.
However, if it does not, in other words, if the act or ruling of the legislature — and I would ask honourable senators to say to yourselves, "the act or ruling of the ethics commissioner,'' because if the ethics commissioner were a legislative officer you could use those synonymously — does not properly fall within the domain of parliamentary privilege, then the avenue would be, therefore, review of that exercise of power or that activity.
That is the point that is picked up in Vaid. I would refer honourable senators to paragraph 36 of that decision.
Let me back up.
In the New Brunswick Broadcasting case, the decision of the Supreme Court of Canada in which Chief Justice Lamer makes the decision, he says that there is a necessity test. Was what Parliament did necessary for the regulation of its internal affairs? He said:
In my view, the necessity test used to define the scope of the privilege refers to both components of the powers asserted, that is to say their existence and their exercise. In other words, the necessity test is met when the existence of the powers and their exercise are necessary to the House.
That position is a justifiable one.
The problem in Vaid is that the court goes on to say that:
... the necessity test used to define the scope of the privilege goes to both components of the powers asserted, that is to say their existence and their exercise. In other words, the necessity test is met when the existence of the powers and their exercise are necessary to the House. The Courts' review function, in cases like the present where a parliamentary privilege is claimed, I believe, involves two steps: the first one to determine that the powers claimed need to exist and the second, when satisfied as to the necessity of their existence, to determine that their exercise was necessary to ensure the proper functioning of the House and maintain its dignity and integrity.
I think the difficulty that this poses potentially for you as you determine whether to employ a legislative instrument, potentially, in order to create the office, is that the Vaid decision in the Federal Court of Appeal appears to build on the distinction made by Chief Justice Lamer and to actually look at the exercise of privilege, not just whether it exists.
Madam Justice McLachlin would say that, if privilege is found, then the activity or the authority is immune from judicial review. The Vaid decision goes further and says, no, we can still look at the exercise of the power.
I think at that point, Madam Chair, I will stop and ask if members have any comments.
The Chairman: Have you anything to add, Professor Mercer, or can we open it up for questions right now?
Mr. Mercer: I will add one thing. I misquoted Chief Justice Lamer, I think. I read the wrong portion, and I want to emphasize this point because we cannot escape from it. The general rule is that courts will inquire into the existence and extent of privilege but not its exercise. That is the point he makes in the New Brunswick Broadcasting case. It is in Vaid that the Federal Court of Appeal says you have to look at its exercise as well. Those are two component parts.
You might ask why there is such a stark divide if the Supreme Court of Canada has said we do not look into the exercise of privilege but only its existence and extent. I think the answer is that Chief Justice Lamer in the New Brunswick Broadcasting case said that the fundamental rule does not provide a clear guide because the existence, extent and exercise of privilege tend to overlap. He uses the example of freedom of speech. He says:
Courts have, on occasion, inquired into the extent of the privilege of free speech by determining whether various things said outside the Assembly are so closely connected to the work of the Assembly that they too should be immune from review. But is this truly a question of the extent of the privilege of free speech, or is it a question of its exercise?
Senator Joyal: I apologize to you, Madam Chair, and to some of my colleagues because we may be giving the impression that we are in a law seminar at the law faculty, but I will try, with Professor Mercer, to put it simply.
We are in a situation where we have a proposal before us in the form of a draft bill, which has a particular clause in it that reaffirms that Parliament is exercising its rights, powers, privileges and so forth. I have it before me here.
Mr. Mercer: Is it under the "General'' provisions, paragraph 72.9(3)?
Senator Joyal: That is it. That states quite clearly that we are covered within the exercise of our privileges.
You have interpreted the decision in the Donohoe case with Justices Lamer and McLachlin, the decision in Harvey — and as you said, that was obiter — as well as the decision in the Vaid case by the Federal Court of Appeal with Justice Létourneau, and it seems that the issue of determining the existence of the privileges and the extent or limit of the exercise of the privileges was dealt with by Justice Létourneau who maintained that they have to be exercised to maintain the integrity and dignity of Parliament, which are very loose concepts. What is dignity? What is integrity?
It would be preferable, in fact, for us to follow the recommendation of the Milliken report, which says that, if we are to establish the position of an ethics commissioner or jurisconsult as Oliver put it, that we should do that through the Rules of the Senate of Canada. By using the Rules of the Senate, we recognize that there is some kind of a boundary within the institution, that this is internal to the Senate. Once we take the legislative route, we will be open to all the uncertainties that still surround the definition of "privileges'' in relation to monitoring the conduct of senators.
As you have said yourself, the courts will determine if there is a privilege. Even though Parliament may assert that it is a privilege, the courts will, nevertheless, examine if what is alleged is a privilege. The test to determine that may vary from one judgment to the other.
Would it not be preferable, considering the uncertainty that surrounds the determination of the privileges and its constitutional nature before the courts' revision and the Charter revision, that we follow the recommendation of Milliken to keep the proposal of ethics commissioner within the rules, as you have said yourself, as it is done in Westminster?
Mr. Mercer: Thank you for the question. I will answer it in three parts.
I would begin by saying that, as a general precept, as soon as an office or a power is created legislatively, the courts have a constitutional obligation, when called upon appropriately, to determine the extent of that power.
Theory meets the high point of practice in many respects when we start talking about parliamentary privilege because one would have thought that, if a House of Parliament in particular alleges privilege, then surely that would be the end of the discussion about what Parliament intended.
Yet, theoretically, the court's response is this: When it is enshrined in legislation, Parliament can have intended to grant no greater power than the legislation actually gives. To conclude otherwise would mean that the holder of that legislated power would then be in the position of determining the extent of the power himself, herself or itself, and that would, in effect, create a mini-Parliament in the person who is the repository of the power.
Therefore, what has happened in the past is that legislation has attempted to be extremely expansive and discursive in order to deprive the courts of jurisdiction, and the courts have come back and said — not quite expansive and discursive enough because it is their constitutional responsibility to determine the extent of the power.
To that extent, and as I suggest in the last paragraph of my report to the committee, the only way of guaranteeing that there not be a judicial intervention would be to avoid legislation entirely. I think that is true.
Based on precedent, the other difficulty with attempting to determine the effect of a legislative provision is that the cases themselves are disparate, and even within individual decisions, particularly of the Supreme Court of Canada, you have a multitude of judgments. There are four reasons for decision in the New Brunswick Broadcasting case. In the Harvey case, you have seven justices of the court not even dealing with privilege. From a strict precedent standpoint, it is difficult even to write a brief that says, "Here is what we can reasonably expect the interpretation of the language to be.''
Having said that, I would go back to the point that I made earlier, that is, the general public perception. Frankly, I think you are better able to determine that than I am. There is a widespread feeling that the internal rules of the Senate, if they deal with conflict of interest, would have a certain cozy element about them that legislation would not have, or that they would lack a certain objectivity that legislation would bring. I would refer briefly to the Tafler case, which is the B.C. decision. I know you have seen at least a review of it in documents provided to you. Tafler actually went to the B.C. Court of Appeal. It provides a sort of half-way house in that it suggests how even a legislative regime might insulate significantly against judicial review, depending on the language of the legislation.
This involves the British Columbia Members' Conflict of Interest Act, and section 10 of that act states simply that there shall be a commissioner who is an officer of the assembly, thereby cloaking the commissioner with legislative authority and, ultimately, by derivation, legislative immunity. The British Columbia Court of Appeal found three elements — I think there were four, because one is compound — that were persuasive to their conclusion that, in Tafler, the privilege extended to the activity which was sought to be impugned. Tafler, you may recall, was someone who wished an inquiry to be made public, and the commissioner resisted that on the basis that he had immunity in the exercise of his responsibilities under the conflict of interest legislation.
The British Columbia Court of Appeal agreed with the trial division and found that four points were important. The first was that the commissioner was explicitly made, by section 10, an officer of the assembly. The second was that commissioner's obligation was to report his opinion to the assembly, not to make a decision. There was no exercise of decision-making power, which from a functional standpoint is important to the law of judicial review. Third, and this is really a part of the second one, if he considered it proper, and in this case it was a he, to make a recommendation regarding discipline, then he could make a recommendation, but again, he did not make any decisions that were enforceable. Fourth, a provision in the act said no action would lie against the commissioner. In other words, it was not only a cloaking of the commissioner with legislative authority as an officer, but also looking at the flip side by saying no action would lie against him or her for any activity or action taken.
In the British Columbia Court of Appeal, Mr. Justice Lambert, for a unanimous bench, said that the privileges of the legislative assembly extend to the commissioner who is expressly made an officer of assembly, and decisions made by the commissioner in the carrying out of the commissioner's powers under the act are decisions made within and with respect to the privileges of the legislative assembly and are not reviewable in the courts.
Interestingly, that decision was relied on by the successor to this commissioner in 1999 in dealing with a request by Pacific Press, which owns, I believe, the Vancouver Sun newspaper, which wanted the inquiry into Premier Clark's alleged dealings regarding the gaming licence to be made public. The commissioner relied on Tafler and on Madam Justice McLachlin's decision in the Harvey case and said he did not consider that he was obliged to make it public and would not. It appears that decision was never challenged. It would seem there is a certain insulation created in a Tafler- type situation by provincial legislation which explicitly names the commissioner as an officer of the legislature.
It is ultimately, of course, a decision to be made by you and your colleagues about where to place the appropriate emphasis. I would therefore have to say, in short form, which is clearly something beyond me, first, yes, if you wish to avoid judicial intervention, then using the internal rules of the Senate is the route to go, but if you feel that there are other obligations which militate in favour of a legislative mechanism, there are ways of insulating.
Having said that — and I know lawyers always do this — the Vaid decision does suggest that, to the extent that any authority or power is given to the commissioner to act, managerial responsibility, formal substantive responsibility under the legislation, then not only will the domain of that action or activity be reviewed by the court to see whether it fits within legislative privilege, but also its exercise potential. You may recall that Mr. Justice Létourneau said that when he looked look at this exercise of alleged privilege, it seemed to undermine the dignity of the House. There I think you have a pretty strong confrontation between the judicial branch and the legislative branch.
I would not dismiss Vaid, because it is a judgment of the Federal Court of Appeal, but I also would not suggest that it necessarily highly anomalous. You will recall that that preliminary objection went first to a panel of the Canadian Human Rights Commission, and that panel said, in a vote of two to one, that the objection was not upheld and therefore they could hear the claim by Mr. Vaid. It then went, on motion, to the trial division of the Federal Court, and the motions judge at the trial division agreed with the decision of the tribunal of the Canadian Human Rights Commission, and it then went to the Federal Court of Appeal. At the Federal Court of Appeal, all three justices decided on the merits of the application in the same way, although Justice Linden I think concurs explicitly with Mr. Justice Létourneau and Mr. Justice Rothstein had different reasons for arriving at his conclusion.
There you have a situation in which it has been determined at a number of levels that it was appropriate to go ahead. Consequently I would say that one could not lightly assume that the legislative mechanism, if it was at all expansive, would not become the subject of judicial scrutiny and, in turn, provide a potential fulcrum for judicial intervention.
The Chairman: To follow up on that, would a narrowly constructed statutory base for this legislation solve many of the problems, if it were based along the line, obviously, of the British Columbia legislation, which apparently has insulated the commissioner from this kind of problem?
Mr. Mercer: It provides a degree of insulation, but of course insulation never has completely effective properties.
If one looks at the proposals to amend the Parliament of Canada Act, then certainly they are expansive in the sense that they give the ethics commissioner responsibility for managing an office and performing a range of activities and making decisions; and certainly in light of the Vaid decision, but also I think in light of the general theme of judicial intervention, the possibility for judicial review under those circumstances is reasonably expansive.
It becomes whittled down, as you suggest, as soon as you take away those responsibilities from legislation, and I would suggest, in particular, as soon as you make the commissioner's responsibilities recommendatory, so that they are not making decisions but are actually presenting them probably to a committee of the House or the assembly and potentially then laid before the assembly as a whole in circumstances where that committee deems that appropriate.
The Chairman: Or if we agree to appoint a commissioner, or whatever you want to call them, only for the Senate itself?
Mr. Mercer: Yes.
The Chairman: Would a court touch anything that was clearly within the jurisdiction created? Clearly within parliamentary privilege?
Mr. Mercer: The court would never characterize itself as doing so. The question of jurisdiction, though, is a bit like asking how many sheep make a flock. There are different conclusions depending on the experience of the individual shepherd.
I would say that, whenever the issue of jurisdiction is one that goes to the fundamental question of privilege, if you can keep the debate in that realm, then the attitude of the courts has been largely deferential. You have explicit and articulate rationale created by Madam Chief Justice McLachlin in the New Brunswick Broadcasting case and in the Harvey case. That would mean that you would be unlikely to end up with a conflict between the judicial branch and the legislative branch.
At other times, it is not explicitly a matter of privilege, particularly if the Vaid rationale holds sway. Then it is a question of a particular exercise. I want to go back to Madam Justice McLachlin's own language in Harvey: If it is an act or a ruling or some behaviour of a commissioner that is alleged not properly to fall within the domain of privilege, then it will be reviewable.
Of course, the more powers you give, the more possibilities you allow for a court to determine whether the exercise of those powers fits or does not fit.
Senator Rompkey: I would have thought it would be more appropriate in the circumstances not to ask how many sheep make a flock, but to ask how can the wool be pulled over one's eyes.
Mr. Mercer: I should tell you that I was born in St. John's and I am quite prepared to say how many fish make a school.
Senator Rompkey: The important question in St. John's, though is: Which school did you go to?
As a non-lawyer, I am struggling with this. Let us suppose that there is a commissioner for the Senate who has a clear advisory role and no administrative duties. He advises senators; he investigates complaints; he gives advice to a committee of the Senate and that committee of the Senate makes decisions. Let us assume that that is the case. If you establish that position in law, what is the power of the courts?
My second question is: What are the courts most likely to do? We have heard testimony from Ted Hughes and perhaps from others that no problem is really created in this case. This has happened; there have been such commissioners. They have advised legislatures; and there has been no real interference. You might ask: "So what? That is the past.'' However, we must make adequate provisions here, and we are looking towards doing that. If we appoint a commissioner along the lines that I have suggested, what is the authority of the courts and what are they likely to do?
Mr. Mercer: Without being at all facetious, that is a difficult question to answer. Anticipating what the courts might do would equally involve anticipating what sort of claims might be made to them. If the powers of a commissioner were merely advisory, so that the commissioner was not actually making any decisions and the particular House was making the decisions through a committee and ultimately through ratification, then that would be an example of the House taking care of its own internal affairs, particularly in a conflict-of-interest situation.
We would be essentially talking about disciplining a member who is found to have run afoul. Discipline can take various forms. That seems to fit foursquare within the notion of privilege that is enunciated by Madam Justice McLachlin in Harvey, for example. There the expulsion of the member and the subsequent disqualification were seen as disciplinary exercises.
It would be highly attenuated — and this is why I suspect other witnesses would say to you that it is unlikely there would be judicial intervention. It would be highly attenuated to construct a set of circumstances where the claim was made that this matter really fell outside of privilege because the recommendation was somehow tainted and the determination of the House committee was somehow tainted by criteria that had nothing to do with the regulation of internal affairs. I am not explaining that particularly well, but, again, let me go back to the Harvey decision.
Harvey was about whether the sitting member who had been expelled could claim the protection of section 3 of the Charter by saying: Through disqualifying me for five years under this legislation, you are effectively abrogating my section 3 Charter rights.
Madam Justice McLachlin said: No; it is a matter of privilege in this case, but it is a matter of privilege because you violated the Elections Act. The House has to be able to discipline people who do that, but section 3 would still operate if a citizen were disqualified from holding office on grounds that fall outside the rules by which Parliament and a legislature conduct their business, such as race and gender.
Let me construct a hypothetical — this is partly why law professors are excoriated by their students. It will be unreal for the most part, but we live to be surprised.
Imagine a situation in which a claim is made by a member that the reason for discipline was not because the member had violated the conflict-of-interest provisions but because of that member's ethnicity or gender. That member then goes off to an external tribunal and says, "This is a legislatively proscribed process.'' It may be only a recommendatory power, but that does not matter because, in the Tafler case, Mr. Justice Lambert said: I do not have to deal with that. I will just rely on the fact that it is privileged. I will not worry about whether it was a decision-making power.
Imagine that person then goes to an external body — a court, say — and says: "This is not privileged. It may appear on its face to be an exercise of privilege because Parliament is ostensibly disciplining me for running afoul of its internal processes or rules but, in fact, I am being disciplined for some other ulterior purpose.''
That is a possible scenario primarily in the sense of at least entertaining the application. It is important to understand that, in Vaid, there has been no determination about the merits of the complaint. We have gone to a panel of the Canadian Human Rights Commission, to a motions judge at the trial division of the Federal Court, and to the Federal Court of Appeal strictly on the question of whether the complaint can be heard by the Human Rights Commission. They may hear 10 minutes of the claim and say, "That is ridiculous,'' and throw it out. We must separate the questions when we ask what the courts can do. The courts are quite vigorous about asserting their jurisdiction to hear matters. That will be separate from the question of whether, having heard the matter, it is to be upheld on the merits.
You could construct a possibility under legislative regimes according to which there would be some pretext for judicial intervention. I emphasize "some.''
Senator Rompkey: What about the evidence of the past? As I said, Ted Hughes indicated, as did some other witnesses, I believe, that practice indicates it is really not a problem. Would you comment?
Mr. Mercer: I would agree with that. If you were asking me empirically whether this is a significant issue, I would say that there is not much demonstrated evidence that it is. However, the Vaid rationale may go beyond what Chief Justice Lamer said in the New Brunswick Broadcasting case, what was that the courts do not just look to see whether the privilege exists and its extent, but it also looks at the particular exercise of it. If the argument in Vaid is followed, then I think you have more expansive grounds for judicial intervention. Anything that I say would have to be tempered by the question of whether that decision holds sway.
Senator Rompkey: Would you not have that whether you enshrine a commissioner in law or not?
Mr. Mercer: You have the decision of the Federal Court of Appeal to deal with; that is true. There is no doubt about that.
Senator Rompkey: If the courts wanted to intervene on a decision, they would intervene on a decision of our Internal Economy Committee, for example, and not on the decision of the commissioner. I submit that it would not make much difference whether you put it in law or not. If Internal Economy makes a decision that the courts deem to be not privileged, then the courts can intervene. However, the courts would be intervening with the Committee on Internal Economy and not with the commissioner.
Mr. Mercer: I believe that is true. However, if you are talking about a legislative regime, then you already have a pretext for judicial review. The more expansive a legislative regime, the more justified the courts would be in exercising their initial supervisory power, and once they are there, under Vaid the courts might say, "Well, we are here anywhere, we might as well look at the manner of the exercise.''
There is a fairly stark difference between the position advanced by Vaid and what I understood to be the law leading up to that point. It is not to say it is wrong, but we have the Federal Court of Appeal supported at least in the result by the two previous determiners, so it is an issue.
Senator Bryden: In the situation where the act of Parliament sets out the position of the commissioner, and all of the rules under which he operates and so on are provided for within the Senate's rules, as against the situation where the commissioner's position is established under the Senate rules and the same things apply, what are the implications of that? The only thing different is that the commissioner for the Senate would be set up by amending a parliamentary act in one instance that would be made by the Senate, and by appointment, by motion or whatever the device, in the other. What is the difference as it relates to the Senate of Canada being constitutionally in charge of its own affairs?
Mr. Mercer: If the legislative provision merely created the office, that would be unusual because anyone looking at the amendment to the legislation would say, "Well, what are the powers of the person?''
One would imagine that, at the least, there would be a reference to the Senate's own rules in the legislative amendment that would specify that the powers of the office created are as articulated.
Again, I apologize because we are looking at possibilities no matter how attenuated. I am not suggesting that this would be likely, but there would be some prospect presumably of claiming that, by identifying the Senate's own rules in a legislative amendment, you are in fact incorporating them by reference. Consequently, that would allow a review of not only the substantive content of the Senate's own rules but the question of their exercise following the Vaid rationale.
Senator Stratton: As you can appreciate, there is a certain amount of concern around the table with respect to whether or not the commissioner is enshrined in statute. My concern, to a large degree, is based on the fact that the law is like anything else, it is evolutionary. It moves according to the times and opinions of that particular time. As soon as you enshrine something in statute, the clear intention at that time would be there but it would evolve over time into perhaps another interpretation. Do you support that idea, or do you think I am out to lunch? I have a concern that this would evolve.
Mr. Mercer: When we look at parliamentary intention, it is an interesting feature of judicial determination of what Parliament intended that, for the most part in Canada's judicial history, it was impermissible to bring before the court the history of the debates in Parliament. You could not say, "Well, here is what Parliament intended because we have Hansard that can tell us what was intended.'' The response from the court was, "No, the language has to stand on its own and the intention has to be objectively determined.''
Having said that, of course the development of the law has been highly organic. When one looks at open textured language of the Charter, for example, of most fundamental rights legislation, it is constructed to be so. Far from suggesting that you are off beam by making the claim that the law is evolutionary and organic, it is sometimes purposefully so from its inception, when we are talking about legislation.
That is an important thing, I suspect, when we are talking about fundamental social norms to the extent that they can be reflected in law. As I hear the debates of honourable senators, your question is: "How do we manage the internal affairs of the Senate?'' I gather from what I have read that you are less interested in that becoming an organic process before the courts. You would much prefer that you knew in advance what your responsibilities and rights were as a House to govern your own affairs.
Therefore I must return to the point I made earlier, which is that it is not fundamentally a legal judgment in my view about whether to use a legislative mechanism or whether to use the internal rules of the Senate to create the commissioner's position. It is a different sort of judgment that must be made because there is always the potential complaint that, if it is not done by force of legislation, then it is not as transparent, it is not as open or as objective. That is a judgment that I think can be countered effectively, nonetheless it is one that one might hear.
Senator Rompkey: Is there a case to be made for permanency in the law?
Mr. Mercer: Subject to Senator Stratton's comment that permanence in law is a fleeting concept because it is organic.
Senator Stratton: It does not exist.
Senator Oliver: I practised law for 36 years. I have given a number of opinions, qualified and unqualified. As I understand what you are saying now, it is that, first, you could give an unqualified opinion to a question about whether the courts would have the right and the power to intervene if the commissioner were incorporated by statute. You would say, "By statute, yes, the courts will have the right and the power to intervene.''
Second, if you were asked if the commissioner were not enshrined in statute, but by the Rules of the Senate you would not be able to give an unqualified opinion as to whether or not the courts would have the right and the power to intervene because of the possibility of their saying, under the terms of the privilege, that they have the right to look at the way that that is exercised. Am I right on that?
Mr. Mercer: Let me reflect a moment on the question. I doubt that I would give an unqualified opinion, merely because it would depend very much on the language that was employed, even in legislation.
Senator Oliver: Is that so even if the commissioner were incorporated by statute?
Mr. Mercer: I say that because there are two senses in which we can talk about judicial intervention. The courts have the constitutional responsibility to determine the appropriate scope of legislation. To the extent that any powers or activities are prescribed by legislation, the courts have the authority and the responsibility to determine, jurisdictionally, whether those have been exceeded, subject of course to the effective prohibitive clauses and so forth, but that is true as a general principle.
If we are talking about merely creating an office by legislation, and it is an office that exercises purely recommendatory responsibilities, and does not have any other management responsibilities or any decision-making powers, then the chances of there being any intervention in the sense of a court stepping in and saying, "You have exceeded your authority,'' I believe is minimal, but not necessarily beyond the pale.
When we go to the question of the internal rules of the Senate, under those rules, because they would not be legislatively forceful, the chances for judicial intervention are slim indeed. Having said that, the question of the content of privilege over the last 350 years has had a significant ebb and flow. I am not trying to hide behind history, but you can see in the judgments in Harvey and in the New Brunswick Broadcasting case some judicial head-scratching about the actual content of legislative privilege in Canada, given the incorporation in the preamble of the British North America Act, now the Constitution Act, 1867, and the reference to privileges that was inherited from the United Kingdom. That, in turn, has been embellished by the laws of both provincial legislatures and Parliament itself.
Given that — and Senator Stratton has made the point about the law being organic — it would be difficult to say that there could be no pretext for judicial intervention, even if we were talking about a purely internal system, except to say that, I think, surely under those circumstances the only circumstances one might postulate for judicial intervention would be those where the behaviour of the chamber was so outlandish that it would be said to have stepped outside any conceivable realm of privileged activity. I would never suggest that could possibly happen. Prima facie, if it is under the internal rules and it is a question of disciplining members, then it must be part of the internal affairs of Parliament. That, pre-eminently, is what the privilege of Parliament is supposed to grant.
Senator Gauthier: I am concerned about this definition of parliamentary privilege, which is used in Vaid and Quigley and many other cases. I have looked back at the documents that I have, and found one from the Parliamentary Joint Committee, British House of Lords, dated March 30, 1999. A paragraph from it states that the right of each house to administer its internal affairs within its precincts should be confined to activities directly and closely related to proceedings in Parliament. It states that Parliament should no longer be a statute-free zone in respect of acts of Parliament relating to matters such as health and safety, and data protection. In future, when Parliament is to be exempt, a reasoned case should be made out and debated as the legislation proceeds through Parliament. Do you agree with that?
Mr. Mercer: Certainly, that complexion on the notion of parliamentary privilege is one that would be supported by the Vaid decision, or by the sorts of arguments that we have seen being made in the other cases to which I have referred. That suggests that the question of dealing with the internal affairs of the House and preserving the dignity of the House is a narrow corridor. Anyone who is claimed to be a legislative officer, but who is exercising other powers that arguably are ancillary to that, may lose the claim of privilege. I think the Vaid case, for example, would say so. Even the judgment of Madam Justice McLachlin in the Harvey case says ultimately it is a question: Are you within the realm of privilege or not? You are quite right, senator, it could be set at different points.
Senator Smith: The area I was going to cover has been pretty well trampled. What I will try to do is indicate where I think the thinking of this committee is headed. If members disagree, I am sure they will not hesitate to say so.
I sense an emerging consensus that we will wind up with a code of conduct. I say that despite the fact that many members already believe we have all the tools we need. However, we will wind up there for a whole bunch of reasons that may have something to do with perception.
The House of Commons, at present, seems to have agreed with the concept that they will share the same ethics commissioner with the administration. This committee has a problem with having the same ethics commissioner for the administrative side as well the parliamentary side. That is without even getting into the bicameral aspect and whether we should have two commissioners. Assuming that is where they remain, they will do it legislatively, by a statute.
With regard to the Senate, it gets down to wanting to avoid judicial intervention as much as possible.
When we heard from Mr. Ted Hughes, who is a respected authority in this area — and I have not looked at his evidence in the last few days as to whether he said this when he was being cross-examined, but I know from chatting with him — he said that he strongly recommended that we go the legislative route.
Senator Joyal: He did not say that.
Senator Smith: Well, he said it to me. I am not saying that he said it here.
Senator Joyal: It is not on the record.
Senator Smith: Under oath, he said it to me. He took great comfort from the Tafler case and the Morin case. It seems to me that we are grappling with this one point. If we are down to grappling with just one point, it means we have made tremendous progress — and I do not purport to speak for Senator Murray — that is, whether we get there by resolution or by a statute. If we go the statute route, the only thing it would do is to create the office. What we are grappling with is whether taking that route, as opposed to the changing the rules route, prejudices our privileges in any meaningful way other than a theoretical way. I think we are almost down to that.
What is your reaction to that?
Mr. Mercer: I would certainly advise you to take the views of Mr. Hughes very seriously. If they differ from mine, I suspect you will give them the appropriate weight. I believe the difference is that he has referred to the actual experience as reflected in case law to this point. I have been asked to speculate on what the possibilities might be, depending on which mechanisms are chosen.
Typically, the language of possibility is the language of attenuation in a way that the language of experience is not. By and large, the relationship between the judicial branch and the legislative branch with respect to the law of privilege has been respectful. We are not back in the 18th century.
Alternatively, if I am asked what is the best safeguard against the Senate ending up having its internal affairs scrutinized judicially, I believe I could give an answer that would probably satisfy both empirical and theoretical tests. Whether, ultimately, the decision is made that the legislative mechanism is a better one because it will be seen as a better one — and that is important — is not a legal question at all.
Senator Hubley: There are many lawyers around here and I will say up front that this question will probably not be framed in that way.
I would like you to comment on the Vaid case. The model that Senator Rompkey has presented to us enshrined in legislation the ethics commissioner, but there is a third-party aspect to the Vaid case. Should we be considering that aspect? The Ethics Counsellor made that finding, and it did touch on the human rights issue. What happens to our privilege at that time? Is it diminished in any way?
Mr. Mercer: Do you mean during the process of determination by the court?
Senator Hubley: Yes, and in the final result.
Mr. Mercer: In the final result, if the courts determine that a particular activity or exercise of legislative power falls outside the ambit of parliamentary privilege, you are left with that. You can assume that anyone who would be subject to a similar exercise of power, who wished to seek judicial redress, would get it, unless the circumstances allowed for a subsequent court to create an exception. That is not unheard of. Courts are capable of making fine distinctions sometimes.
In the Vaid case, it is true that the fact that there was public service legislation in place, and that that seemed to deal with some of the issues that were presented by the larger realm of considerations in Vaid, did influence the Federal Court of Appeal. However, that does not qualify the statement, for example, made by the Federal Court of Appeal in paragraph 36, at least not on its face.
The concern that one might have, based on Vaid now, would be that, in effect, parliamentary privilege as it has been known in this country is almost suspended. You do not know until the actual exercise whether the courts have vetted it, even in respect of something that is nominally parliamentary privilege.
The Chairman: That applies even though the Vaid case deals with a third party, and not just parliamentarians within Parliament. Is that correct?
Mr. Mercer: The problem with Vaid, from my perspective, is that it is difficult to know its import. It is a situation in which we are talking about an employment relationship where the Speaker and the House both said, "We are privileged, and consequently you cannot review us.''
You might say, "Those circumstances are such that they would be highly unlikely to apply to the operations of the Senate and, therefore, we should not be concerned.'' I would agree if you were simply looking at it factually. My concern would be to what extent can the language of Vaid be employed in other circumstances because it is not terribly circumscribed. It is rather expansive language.
Senator Joyal: I certainly do not wish to have an argument with our colleague, Senator Smith.
The Chairman: The next word is "however.''
Senator Joyal: I have here the transcript of the testimony of Mr. Hughes. I refer to page 30. I could read it. I think it would be helpful.
Senator Smith: We will not quarrel.
Senator Joyal: I shall read the relevant section.
I know as well that in the materials that were made available to you, and the law clerk discussed this issue with you, was the Roberts case in the Northwest Territories, Roberts being my predecessor in the office there. There were two judgments. There was the Morin case, which in effect said the same thing as the Tafler case. As well, the Roberts case 2002 came along, where there was a decision about Mr. Justice Vertes that allowed or directed that the legislature look at the severance package, if you like, of the departed commissioner.
I think the law clerk hit this on the head as to the explanation and why that was peculiar to its own facts in the hearing that you held on February 18. Mr. Audcent is reported as saying this:
My understanding of the Roberts case was that the person was dismissed, went to the court, and the court said, "Yes, we can consider this, because there is a statute giving you a term.'' They would not have looked at this had the issue been internal to the house.
That last statement is in accordance with what the Court of Appeal said in the Tafler case. I hope that is of some assistance to you, senator.
In other words, Mr. Hughes said that when there is a statute that fixes a term, and the court can determine if the term has been respected or not. That is clearly what is at stake. He did not say that a statute would not cause a problem. He is of the opinion that a statute would not be a problem. However, he recognized that when there is a statute, there is an invitation to the court to look into it — no more and no less.
The Chairman: In this case, a statute created a term. He also recommended quite strongly that the position be created in statute.
Senator Joyal: That, Madam Chair, is not on the record.
The Chairman: Yes.
Senator Joyal: Give me the record.
The Chairman: That is what I heard him say.
Senator Joyal: We are spinning around the table an interpretation of witnesses. I submitted politely to you. I read the testimony. If we are to reference that which witnesses said, show me the text.
The Chairman: I will.
Senator Joyal: Thank you.
Senator Murray: Mr. Mercer, your analysis is clear and helpful. I wish to know what you think of this as a citizen. What if we were to dig in our heels and decide that we will not have any part of incorporating the commissioner into legislation but, rather, we would do it within the rules of the Senate? Following the slice of public opinion that is represented among the Faculty of the University of Western Ontario, for example, do you think the public will they say, "Good for those senators for standing up for the ancient prerogatives of Parliament,'' or will they say "There they go again, setting themselves up against the law?'' Where would you stand?
Mr. Mercer: That is a very fair question. If I can prevaricate for four minutes, I could avoid answering it.
To my mind, the whole issue is significantly overblown. The notion that people seek or accept appointment to the Senate in order that they may then advance their private interests is, from any informed perspective, close to being laughable.
When you ask me, to what extent will public opinion look at either of these choices as being acceptable or not, I would have to say that there is a kind of voyeuristic element to public opinion about the whole question of conflict of interest that is unreal.
Having said that, there is always open to a commentator the claim that the Senate's decision, if it goes this way, to create a mechanism entirely through its own rules in order to avoid judicial review, is an example of a subjective and relatively opaque attempt to prevent examination of genuine conflict of interest situations. It is very difficult to come forward publicly to explain that, in light of the determinations that have been made about the extent of parliamentary privilege, or in light of the simple efficiency and necessity tests that are articulated by the courts, this is the most appropriate mechanism. I do not think that you will sell many copies of newspapers with that argument.
Having said that, I do not think that is what true leadership is about. Honourable senators should make the decision about what the most effective mechanism is for the Senate.
I do not think I am representative of public opinion any more so the majority of my colleagues on university faculties. That is not our job.
There are legitimate concerns raised on the basis of the judicial intervention that onehas seen so far. Even those judgments of the Supreme Court of Canada that articulate the breadth and dimension of parliamentary privilege are not the majority judgments in their cases. They do not have the imprimatur of the entire Supreme Court. Perhaps I would have a different view if Vaid goes to the Supreme Court of Canada and we have a full articulation, in its context, of the dimensions of parliamentary privilege.
At this time, it is entirely appropriate for the Senate, as one of the determining criteria, to say, "What is the effective mechanism for regulating our internal affairs, and to include under the rubric of "effictiveness'' mechanisms that avoids us from getting entangled in protracted procedures that do nothing but create uncertainty for us and potentially a high degree of complexity where one does not need to exist.''
The Chairman: We are approaching 1:30. I thank our witness very much for his paper and for appearing before us today.
The committee adjourned.