Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 18 - Evidence, October 29, 2003
OTTAWA, Wednesday, October 29, 2003
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill C-34, to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other acts in consequence, met this day at 12:14 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Welcome. We have before us today Mr. Mark Audcent, Law Clerk and Parliamentary Counsel. Mr. Audcent, please proceed.
[Translation]
Mr. Mark Audcent, Law Clerk and Parliamentary Counsel: Honourable senators, it is a pleasure to appear again before this committee to speak about the proposed reform and give you the background information. When I appeared before this committee on February 12, February 18, and June 4, I went through the main themes I want to develop in my presentation today.
The reform proposed to you is two-pronged: reform of the law and adoption of an internal code. Once the structure will be ready, it will be possible to define an internal code.
[English]
Of the two, reform of the law is more serious as reform in this area is hard to accomplish. An internal code should be more responsive to needs for improvements as they manifest themselves.
The policy reason underlying reform is modernization and codification of the regime. Modernization and codification generally applies "out with the old and in with the new." However, the present proposal retains substantial elements of the old regime in addition to bringing in a new regime. I would remind honourable senators of two proposals that I have made to you and that I continue to recommend for your consideration. First, that section 16 of the Parliament of Canada Act be repealed and replaced with a provision in the new internal code. The second one is that the definitions of "official" / "fonctionnaire" in the Criminal Code be amended to clarify the law. In that case, section 119 of the Criminal Code would continue to apply to parliamentarians as it was originally intended. However, sections 121 and 122, which apply to officials / fonctionnaires, would not apply to parliamentarians. It is my contention — which I have made before — that it was never intended by Parliament to apply to parliamentarians.
Having said that, the interaction of the law of parliamentary privilege with whatever regime you might establish has been one of your concerns. It is worth remembering that the privileges, immunities and powers of the Senate and senators are the same as those of the House of Commons and its members, and that the rights of both Houses have their foundation in the rights of the House of Commons at Westminster.
To set the stage for your deliberations, it is worth quoting a passage from a recent English judgment of Mr. Justice Popplewell in a 1990 judgment of the Court of Queen's Bench. Justice Popplewell cited an earlier judgment in his ruling. I quote:
I think that the House of Commons is not subject to the control of Her Majesty's courts in its administration of that part of the statute-law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable. Many authorities might be cited for this principle; but I will quote two only ... Blackstone says, 1 Com. 163: "The whole of the law and custom of Parliament has its origins from this one maxim, `That whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere."'
Honourable senators, the law on parliamentary privilege is most complex and may be in a state of flux at present. The authorities are divided on what the law is, what its scope is and on what is the interrelationship of parliamentary privilege and the Canadian Charter of Rights and Freedoms. This concludes my opening remarks. I would be delighted to assist you further by answering questions.
Senator Beaudoin: I agree that we do not submit to the British courts. However, we have section 18 of the Constitution Act, 1867, which states that we cannot exceed the Parliamentary privileges of the United Kingdom, in the case of an identified privilege before the House of Lords. As you know, we cannot go over section 18 unless we amend that, but that is not the question here. To what extent is the decision of the British court binding?
Mr. Audcent: Honourable senators, section 4 of the Parliament of Canada Act defines what are to be the privileges, immunities and powers of the Canadian Houses. It contains two paragraphs. Paragraph (a) provides that the Senate, House of Commons and their members hold and exercise the privileges, immunities and powers as at the time of the passing of the Constitution Act, 1867, were those held, enjoyed and exercised in the United Kingdom. We look to 1867, and we say if it was in 1867 in the United Kingdom House of Commons, then the Senate, the House of Commons and their members have it.
Paragraph (b) says that the privileges, immunities and powers that may be defined by act of the Parliament of Canada, not exceeding those, at the time of the passing of the act held by the Commons House of Parliament of the United Kingdom. In other words, if you legislate a new privilege with respect to privileges, immunities and powers, if you refer yourself to this section, then you would have to go back to the United Kingdom and say, "this year, in 2003, as we legislate this new privilege, do they have it in the United Kingdom?"
There is a further complication to that, however. The further complication is that section 18 of the Constitution Act is a section that can be amended by the Parliament of Canada.
Senator Beaudoin: No doubt.
Mr. Audcent: If the Parliament of Canada can amend section 18 with a specific amendment, it could presumably do that with an implied amendment. If it does something inconsistent with section 18, you have an implied amendment. That was the reasoning of Mr. Justice Pigeon in a case called Agricultural Products Act, in 1978.
However, in a more recent judgment of the Supreme Court of Canada since the Charter in 1982, in a case called Eurig Estate, the court said that the Constitution is the Supreme Court of the land, and therefore you have to amend it expressly and not impliedly.
We have now those two Supreme Court of Canada authorities speaking to us — the second one favours form over substance, and the first one favours substance over form. The consequences of the analysis are enormous because it was done in the context of money bills. If you cannot amend the Constitution Act impliedly, it means the House of Commons cannot waive its privileges with respect to money bills.
Senator Beaudoin: To return to the main question, we no doubt have the right to amend, however, your argument is that we have such a right but it cannot be implicit. You have to make a decision. If you really want to amend section 18, you have to do it, okay. If you do not do it, the court, according to Mr. Justice Pigeon, would not accept a parliamentary privilege that would exceed section 18. Is it what he said in that case?
Mr. Audcent: I think it works the opposite way. Mr. Justice Pigeon's position would be that you can impliedly amend the Constitution. Therefore, if you do something inconsistent, it is all right if it is within your power to do it.
It is the newer position of the Supreme Court of Canada that says you must do an express amendment to section 18 before you can do something inconsistent with it. However, there is a great deal of difficulty with that newer position.
Senator Beaudoin: There was a case on section 53 for money bills also, and Mr. Justice Pigeon took the same attitude.
Mr. Audcent: That is the agricultural products reference — that is the case.
Senator Andreychuk: If I understand, the previous case was before the change in the Constitution. Before that, Parliament was supreme, in our opinion; and now we say the Constitution is. The decisions, in my opinion, are not contradictory; they are evolutionary, in the sense that you take into account the change in the Constitution and that makes a dramatic difference to me. That would be the first thing.
My other point is that we were going to amend in 2003, do we look at the privileges the British had in 1867, or can we bring it forward and look at the privileges that they have today? My understanding was that our starting point was 1867, and then it is our prerogative to work within the ambit of the British at that time, not in today's time. I got the other inference from you so I wanted clarification.
Mr. Audcent: With respect to your first question, the evolutionary one, it is a beautiful intervention. It is just like a judgment, and it is exactly what a court might say. A court might say something different because, as you know, judges and lawyers reason in different ways, so you end up with different results.
As I pointed out, I am of the view that Eurig brought with it many difficulties that the court had never heard in the context in which this case presented them. I gave you an example that if you cannot waive indirectly so much for the House of Commons being able to waive its privileges with respect to money bills when the Senate sends one. It will be an illegal act. Therefore, I have huge problems with that change and all the parliamentary procedure that could flow from a decision like that.
I have a problem with an argument that says that you give priority to form over substance. For example, how do we amend the Constitution Act by a bill? Depending on what we put in the bill — if we say in the bill section 18 is amended, it works; if we say and do in the bill the actual amendment, it does not work and it is all in the same bill. That is a form-over-substance result that is difficult to live with.
My answer to your second question is that there are two touchstones. The first is 1867, because it is the privileges, immunities and powers of 1867 that were conferred on us. That is what we have. For anything past that time that is done by statute. We have to look at the British state at that particular time and ask whether we are just catching up. We are allowed to catch up, but we are not allowed to bypass.
Senator Beaudoin: Since 1982, we have had a formula of amendment in Canada entirely. There is absolutely nothing in the Constitution of Canada that cannot be amended because section 38 is a residual clause for the amending formula. We have five facets, and one of them is the first one, 750, and it is residual. Therefore, there is no doubt that we may change by an amendment. However, it may be an amendment under section 44, which is just a federal statute, that may amend the Constitution. Do you agree with that?
Mr. Audcent: Senator, section 44 says, subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive Government of Canada or the Senate and House of Commons.
That is certainly a good argument that privilege fits within that, or the Senate and the House of Commons. If privilege does, then section 18 can be amended by section 44. The importance of that is it means it is amended by a bill, not by the constitutional amending procedure. If it is amended by a bill, you have a bill before you.
Senator Beaudoin: In a case like that I would suggest if ever we want to change something, we may amend it by a constitutional amendment.
Mr. Audcent: I suppose you could also do it by the constitutional amendment involving resolutions and a proclamation of the Governor General, but it does not appear to be necessary. It would appear that a bill of Parliament, Her Majesty and the Senate and the House of Commons would be adequate.
Senator Andreychuk: You are saying that if we present a bill in either the House or the Senate, by implication, it could be tantamount to an amendment. That is the inferential way.
Mr. Audcent: That is correct.
Senator Andreychuk: Would it not also be perhaps within judicial interpretation, that rather than the court inferring that it is an amendment, they could interpret that the bill was beyond the scope and mandate and, therefore, rule that it was ultra vires. In this case, the court would not take the inferential, which seems to me to be the more preferred position if you want to give respect to the Constitution and not tamper with it in any way with either section 44 or section 18, unless we do it expressly.
Mr. Audcent: That is the exactly the point in the Eurig Estate decision, 1998, Supreme Court of Canada. There are two lines of reasoning. I do not think we have heard the final answer on this. The point is that legal reasoning can take different forms.
Senator Ringuette: In my non-legal knowledge and being probably naive, how can we say that this bill brings additional privileges and includes the Constitution?
We are not changing our privileges, but we are extending privileges to the new "officer." We are not requesting additional privileges; there is no change in there. We are only saying, that the officer who will look into our code of conduct and provide us guidance will have the same privileges that we have.
Where is the argument about the Constitution and needing a request from the U.K. to change what we want? Explain to me the realistic argument here? I do not see it. As I said, that may be because I am naive.
Mr. Audcent: I certainly do not think that, senator. I certainly have not said that you are expanding the scope of privileges, immunities and powers. That may be an understanding that you took from the questioning, I do not know. However, I have certainly not made that representation.
Once again, the situation can be analyzed. A lot depends on what you consider to be the existing scope of the privileges, immunities and powers of the Houses of Parliament. There is currently a debate about whether privileges, immunities and powers extend to the internal administration of the house.
My preferred position is that it does. I also realize that I am a counsellor and a lawyer. I am not the judge who will decide this or the house that will respond to the judge.
As long as internal administration of the house is within the privileges, immunities and powers of the house — which is my argument — if you have an officer serving the house and doing the business of the house with respect to setting standards for its members, advising it with respect to its members, and allowing for the discipline of its members, it would fall within the existing privileges, immunities and powers.
Any statement in a statute would be mere codification. Once again, you have to interpret to get to that position.
Senator Ringuette: I want to thank you very much. You have given me the basic information on which I will make my decision on the issue. Thank you.
Senator Grafstein: Mr. Audcent, it is always a delight to listen to you present evidence to us.
I would like to turn to a basic principle of the bill — the word "ethics." This bill is replete with the word "ethics." We have an ethics officer, an ethics commissioner and ethical principles, rules and obligations. We have confidential advice with respect to those ethical principles, rules, obligations and so on.
I want to deal with the word "ethics." In your view, is this a parliamentary notion as it applies to the previous conduct of members of Parliament or members of the House of Lords or senators? I am talking about ethics as opposed to "appropriate conduct."
Mr. Audcent: I would think, honourable senators, that the word "ethics" incorporates appropriate conduct. It might incorporate more. It is clear to me that the word ethics — perhaps because of my perspective — extends beyond law. Clearly, compliance with the law is ethical, but ethical goes beyond compliance with the law. It means doing things that pass what I advise honourable senators is the "headline test" or the "smell test."
There was a headline in the paper two days ago that illustrated this point. The headline indicated that certain people were contending that advice of the ethics commissioner would involve illegal conduct — the repayment of a sum would involve illegal conduct. The question was here you have something that is ethical, but is it legal?
I am using that to tie you back to a recommendation I made to your committee, and that you adopted in your interim report: It is important that any ethics office that you might put in place would have legal experience or be a lawyer. Primarily, you have to pass the legal test and then in addition, you have got to pass the headline or the smell test.
Senator Grafstein: I agree that ethics goes beyond law. Therefore, by calling something "ethical," we raise confusion and expectation.
Let me give you some examples. I am a fisherman. My life is in the fishery. I live for the fishery; my benefit is the fishery, and I am a Member of Parliament. I sit on a fishery committee. Is that ethical?
I will give you another example. I am a doctor. I have been called to the Senate because of my medical and scientific expertise, and I wish to be able to allow my expertise to be used in a committee focusing on the medical profession. Is that ethical?
I will give you another one. I am a lawyer. I am trained to be an officer of the court. I am a constitutional guru and I teach constitutional law. I sit on the Standing Senate Committee on Legal and Constitutional Affairs. Is that ethical?
I will give you another one. I am a farmer and I sit on the Standing Senate Committee on Agriculture and Forestry. My entire life has been in farming, and I have benefited or been injured by the policies of the government. I sit on the agricultural committee, because I am a farmer.
I will give you the final example. I am a francophone. My whole life has been dedicated to promoting the French language across the country — a noble and constitutional imperative. I sit on a committee promoting and directly involved in expanding the reach of the francophone people. Is that ethical?
I raise this in the context of not being jocular but saying that for me, the word "ethical" raises concern. If we agree that it goes beyond the law — and I do — it raises much higher expectations than we can possibly fulfil. Therefore, we might put our institutions knowingly in an area of public disrepute. Who can match "ethical principles, rules and obligations"? Having in mind the nature of the human condition, who can do that?
I thought that it was more appropriate to deal with what we can deal with, which is conduct and conflicts. Conflicts and conduct are understandable. If you have a conflict, you should not participate, or you should declare the conflict and step back. That is understandable. That is within the reach of rules.
I just ask you for your comment on this exegesis which you may or may not agree with. For me, it raises unreasonable expectations in the public mind that nobody can fulfil.
Mr. Audcent: Honourable senators, your illustrations go right to the heart of any kind of ethics regime. There are two public expectations of senators. One is that you be extremely knowledgeable and competent in what you do. The other is that you sit here for 13 years and do not have anything to do with the outside world. The job is to reconcile those two, and that is the point of your illustrations.
I view this regime as proposing to you that the Senate will take a proactive or a lead role. You, amongst colleagues, will adopt the code. The code will establish what is ethical. It can have positive statements, saying, "It is ethical to be a constitutional lawyer, teach law and sit as a senator." You can have positive statements in a code of ethics as well as negative statements. Ultimately, the idea behind this proposal, if the law and a code were put into place, is that your colleagues will set standards. The standards will be written. You will be able to refer to them. The public will be able to refer to them. Those will be the expectations and the rules.
Senator Grafstein: I am looking through the bill section by section and we have this one anomaly. Here is an ethical problem. It is in the bill. The ethical problem is this: I am a senator, and this bill gives me the right to say that a public officer has fallen below an ethical standard. I can bring a charge against a public office holder or a cabinet minister — not just the Leader of the Government, but any cabinet minister. I have the right to do that. Yet, our officer will have nothing to do with that. I will have no other way or response to be able to deal with that other than to make that allegation. I then cannot be compelled to substantiate that because I am in a different chamber.
My question to you is: Is that appropriate? Should we have that power, other than to be able to bring to the government, to the Prime Minister's ethics commissioner, I mean the one that he names on the other side, for a public office holder, a cabinet minister on our side? Does that make any sense to you?
Mr. Audcent: Honourable senator, I have not considered that question. I would rather get back to you in writing on that one.
The Chairman: As a supplementary to that, if I remember correctly, the late Lord Williams, when he appeared before us when we were looking at our preliminary draft on this, said that disclosure is the key to steering away from ethical problems. In other words, if the situation were disclosed in public, then whoever had done the disclosure could do just about anything.
Senator Smith: That sort of rings with my question.
The Chairman: Could you give me a quick response on whether that agrees with your recollection of some of his testimony before us? Senator Smith has just said it rings a bell with him, and it does with me as well. However, if you cannot answer right now, you can come back to that.
Senator Fraser: I have one comment. When Senator Grafstein provided his list of categories of people who might be affected, all of them, except one, referred essentially to ways in which we earn our living. The last category — francophones — referred to part of the inherent condition of a class of citizens of Canada. Everyone in Canada is an anglophone or francophone.
Senator Fraser: There are two committees in Parliament designed to further the rights of official languages minorities.
Senator Fraser: The official languages of Canada are English and French. It seems to me that to include members of a minority language community in your list, Senator Grafstein, was a little distorting. You could argue that no man should sit on a committee studying fathers' rights.
Senator Grafstein: I was trying to make a list of examples. I will just withdraw that. I do not think that it strengthens the argument I was trying to make. It weakens it. I will withdraw it.
Senator Fraser: I thank you.
Senator Ringuette: My question has to do with what I find is the core of my being in the Senate. We were talking about all of the examples of fishermen, doctors, lawyers and professors. We are called to make a contribution; we are not called here to receive a contribution from our work — that is, being in a conflict of interest. I have a difficulty with continuing to be part of "the public" and contributing. We could add investment brokers and bankers into the list of professionals. Once that you are into a situation in which you might receive a contribution directly or indirectly as a result of your input on a committee, then I have great difficulty with people who would see no conflict any ethical problems.
Mr. Audcent, perhaps it is my naïveté, but I need to understand what you mean when you say there may be an imbalance that we must look into. A person continues to be a full-fledged member of society just like he or she was prior to being appointed to the Senate. Either they are making a contribution or contributing in order to receive a contribution. From my perspective, there is perhaps a grave distortion in the minds of different people around the table on this issue.
Mr. Audcent: Senator, I think it is very clear that when somebody is privileged enough to be called to serve as a senator, that they are called to the public interest and to serve the public interest, and that is their primary duty.
Senator Joyal would do a better job of giving statistics than I would, but I believe the average senator sits somewhere between 12 and 15 years. The question is, as you carry out those 12 to 15 years of service, and in the case of many senators, it may be more, how do you stay in touch with society? The answer is that you have got to go back; you have got to participate.
You are running all kinds of committees in this house. You run a Banking Committee, a Transport and Communications committee and others. Presumably, one objective is to have people with experience who understand those areas. I can assure you as a former tax lawyer that expertise becomes dated. I could not give a tax opinion these days.
How do you stay in touch with the latest developments in the areas in which you work? I do not know what the answer is. I do know that you cannot be paid for influencing parliamentary business. You can be paid for doing things that have nothing to do with Parliament, because you have personal lives. The question is, senators must reconcile how they stay in the world, stay experienced, and at the same time come up with an ethical regime acceptable to the public.
The Chairman: I should like to turn our attention back to this bill, which is about establishing the position of an ethics officer as far as we are concerned, and away from things that at some point in the future may be in the code.
Senator Joyal: Before addressing a question to our witness today, I would like to draw to your attention and the attention of our colleagues a study that was put together by the Library of Parliament. I take my information from The Ottawa Citizen today, page A4. I quote from the text under the signature of Tim Naumetz. The second paragraph reads that the legal experts from the Library of Parliament
...told an in-camera meeting of the procedure and House affairs committee yesterday that British parliamentary precedent and laws on which Canada's system is based have long ruled out parliamentary privilege for MPs who are being sued.
The legal experts named are Mr. James R. Robertson and Ms. Megan Furi. Mr. Robertson is here. I informed him that I would raise this question. Madam Chair, through you and with your intervention through the proper channel, could we get a copy of that study?
The article further states that, "A copy of the brief to the committee from James R. Robertson and Megan Furi of the Library of Parliament was obtained by CanWest News Service." I raise this because I should like to know if that study contains some explanation of the origins of the privileges of the House of Commons and Senate. I would certainly be interested in reading that. I am sure that some colleagues may be interested as well.
The Chairman: Senator Joyal, are you saying that this was included within a report that has been leaked to the press?
Senator Joyal: It is not a report, no. It is a study that was made by those two people, one of whom is here. That was done under the auspices of the Library of Parliament. It is a mandate of the Library of Parliament to prepare studies.
The Chairman: It was prepared for a committee of the House of Commons and it has been leaked to the press.
Senator Joyal: Exactly.
The Chairman: I would be quite willing to see if I could get it, to see if it is proper for us to get a copy of it. I am not sure that it would be, but I will certainly contact the chair of the committee over there. I do not want further leaks into a public meeting here in the Senate. Let us not do that.
Senator Joyal: Of course not. That is why I am addressing myself to you in the presence of Mr. Robertson so that there is no doubt of my intention.
The Chairman: I would remind senators, too, that we also have the ability, of course, to ask for specific information from the Library of Parliament.
Senator Joyal: Exactly.
To return to the issue of privileges, Madam Chair, my first question deals with our witness' approach to the assumption that Parliament could indirectly amend section 18.
I would like to draw the attention of our expert to the fact that in 1871, the Queen's council disallowed an act of the Canadian Parliament passed in June 1868. I am sure you know what the title of the act was: an act to provide for the examination of witnesses on oath by committees of the Senate and House of Commons in certain cases.
That act was adopted immediately after Confederation and allowed our committees to swear in witnesses. That act that was passed by the House of Commons came to the Senate. Some senators raised the issue that it might not be constitutional. The Governor General, nevertheless, sanctioned it. It was reserved by the Queen's council and in fact it was disallowed, because it went beyond the privileges that existed at that time in the U.K. House of Commons.
In other words, there is a precedent whereby an act of Parliament of Canada went beyond what was the privilege at that time to administer oaths and was disallowed. As the precedent is on the record and quite clear in the history books of Canada, does that not indicate that if you approach it that we could amend indirectly section 18, that that act would be considered as amending indirectly section 18 and then would have been valid by the Queen's council?
Mr. Audcent: I would structure my answer by using the words that Senator Andreychuk used — that the law is evolutionary. The particular series of facts you have described would have taken place prior to the enactment of section 91(1) of the Constitution Act, 1867, which was the time at which they gave to the Parliament of Canada the power to amend the internal Constitution. The story that you are telling was in the 19th century. In the 19th century we still had to go to Britain in order to change the Constitution Act, 1867.
Then was enacted section 91(1), which allowed the Parliament of Canada to amend the Constitution. We get to the agriculture products marketing reference case and the comments of Mr. Justice Pigeon in 1978. Then in 1982 we saw our Charter of Rights and Freedoms, and also the Constitution Act, 1982, of which it was part. In 1998, we saw the Eurig decision, which seems to take us back to the situation that you are talking about in the 19th century. We have to do a specific amendment to section 18.
The question is, there is evolution. I am not quite sure whether the final result of this is satisfactory because we have made it more rigid if we have to have an express amendment to section 18.
Senator Joyal: Is it not true that since we have now an amending formula specifically spelled out in the Constitution that there is — if I can use the expression — one "royal way" to address the issue, which is through the amending formula? The Constitution is pretty clear that you cannot do indirectly what you do not want to do directly. Otherwise, we would amend many aspects of the Canadian Constitution — for instance, over the Senate, which would be contrary to what the court has already ruled about the institutions.
I hold the principle that now that we have a specific amending formula that is very detailed according to what we want to touch in the Constitution, we must resort to that formula if we want to amend a specific section of the Constitution — even though it is a section or an issue exclusively reserved to Canadian Parliament because it deals with the Constitution of the Parliament of Canada or the Executive Council of Canada.
Mr. Audcent: I think you are quite right that to amend the Constitution we have to refer to the Constitution Act, 1982 and identify the appropriate formula.
Senator Joyal: My second question is about the issue of the scope of the privileges. You quoted the decision of the Queen's Bench of 1990 in Britain. I would like to bring to your attention the decision of Rost v. Edwards of 1990. I would like to quote the last paragraph because it pertains to what we have to understand by proceedings of Parliament. In the court's opinion, it is within that heading of the privileges of Parliament that the registry of interests comes from. In other words, the declaration and the publication of senators' interests would come under the heading of registry or disclosure, if you want, as the chair properly said.
I quote the last paragraph:
In the result, I conclude that claims for privilege in respect of the Register of Members' Interests does not fall within the definition of "proceedings in Parliament," and accordingly I rule that it is open to the plaintive to give the evidence that he seeks to do in relation to the registration of members' interests and it is open to the defendants to challenge the evidence.
The courts decided in 1990 that "proceedings in Parliament" does not include the registry of interest and the process to go through the registry of interest. In other words, the works of the public standard commissioner, who is the correspondent officer that we would have in the Senate or in the House of Commons.
Is it not where we would have to legislate if we have to make sure that the ethics commissioner would be protected? In fact, it would be within the definition of "proceedings of Parliament" since in the British system a court has excluded that. The U.K. House of Commons could reverse that and adopt legislation that would define the registry within the proceedings of Parliament. We are now stuck with that decision — which I do not think is right — and we have to look into how much we can recognize that reality and how much we can adapt our situation to that reality for the time being.
Mr. Audcent: I am aware of that decision. I drew it to the attention of the committee last February. It is a very troublesome decision.
Senator Joyal: It is, indeed, when you read it. It is not a long decision, though, colleagues.
Mr. Audcent: In particular, my understanding is that the register of interests in that case was not in a statute, it was an internal rule of the house. That means there is no point in talking about this; the court is coming in anyway. The way not to get the court in is to not have a code on conflict or interest, which is not a satisfactory result.
I do not mean to say you should have a code, what I meant to say is that it is an unsatisfactory result that your decisions would be dictated by the fact you will not do something merely because the court says, "We are coming in." I have a great deal of difficulty with that.
The Rost v. Edwards case can be read in many ways. One interpretation is that they said that if you a statute it is okay. You are proposing a statute where you are saying, "In our case, we are putting this inside the proceedings of Parliament." You would be following the judge's direction there.
Senator Joyal: We would be caught by section 18 and sections 4(a) and (b) of the Parliament of Canada Act, the very act we intend to amend.
Mr. Audcent: You could be. One of the problems with Rost v. Edwards is that it is based upon a very narrow interpretation of proceedings in Parliament — namely, that privilege begins and ends with proceedings in Parliament. As I indicated earlier, there is another position — namely, that parliamentary privilege extends beyond proceedings in Parliament and includes the internal administration of the House. That certainly was not the decision in the Rost v. Edwards case, but it might be a position that is considered valid elsewhere. These legal arguments have not yet been concluded. I indicated in my opening remarks that the law is in a state of flux and we will have to wait to see how this comes out.
The Chairman: I agree with Senator Joyal that it was absolutely an incorrect decision. In our case, would it not be more related to what is a centuries-old practice of an ability of members of Parliament — whether it is the Senate or the House of Commons — to discipline their own, which is entirely internal?
Mr. Audcent: Completely. A third line of argument, and one that is pertinent, is that surely a code of conduct is the members agreeing amongst themselves what code they expect each other to live by and saying. "If you do not, we will discipline you." I agree with that.
Senator Joyal: On that point, if I can continue, the chairman raised a very valid point. We are almost going in circles here. The definition of "disciplinary power of the House over its members" has been interpreted in the U.K. House of Commons.
I refer my colleagues to the joint committee report of the House of Commons and Lords in 1999. At paragraph 14, chapter 1, it defines the power to discipline its own members. It is clearly circumscribed to "contempt of Parliament." In other words, it does not deal with the previous phase leading to contempt. It is only when there is a formal contempt of Parliament that there is disciplinary power. That is the state of the law.
I was puzzled by that definition because, like you, I was under the impression that "discipline" includes everything. However, we are talking about which aspects constitute "privilege." We are again looking at the same basis. In other words, they are bound by the condition of the law as it is in the U.K. at this point in time. Believe me, honourable senators — and Mr. Audcent, I think, would share my view — no-one would prefer that we be the sole masters of our own privilege more than I. However, this is what it is. We have to abide by the law or make initiative to change it.
The Chairman: Would not breach of a code of conduct be considered contempt?
Senator Joyal: You are right. Let us come back to the case of Senator Thompson. The proviso here is that the senator was not in formal contempt of a resolution of the Senate. However, once we had adopted the resolution, he was in contempt of that resolution ordering him to appear before the Senate. It is only once the decision has been taken that it is privilege.
We have done that in the past, rightly in the case of senator Thompson. However, within the condition of the law now, we are limited to a point with that. I totally recognize that Canada is a mature Parliament and a mature democracy. We are very concerned about being — and, I apologize to Senator Grafstein — very kosher on these things. We try to understand the law as it is now. We want to make things right so they hold for a long period of time. We are limited by that. We try to adjust a situation that is imperfect notwithstanding the constitutional maturity of Canada at the present time.
The Chairman: Unfortunately, the law seems to be all over the place.
Senator Fraser: On this particular point of Rost v. Edwards, which I have gone through twice because it has to do with liable law, it is a peculiar judgment. It seems to me that even this peculiar judgment can be read both ways. The plaintive wanted to bring in various documents in as evidence. The learned judge ended up saying that the register of interests is a public document. Parliament itself makes it public. That is admissible. However, he also said that you may not bring, in evidence, other documents that are more internal to Parliament — letters, for example, from an opposition member to the authorities within the House of Commons that deal with matters concerned with the register of interests. Therefore, it is not black and white saying, if you have a register of interests, all of a sudden everything is admissible before the courts. It is much more narrowly phrased.
Even so, it is a very peculiar decision. I do not know if it went to appeal. If it did, I would like to see what the appeal courts did with it. It is not as horrible as we had thought. Would you agree?
Mr. Audcent: I am advised that it was appealed but the matter was settled before it was heard.
On the issue of contempt, I agree with the chair's comments. If you bring in a code of conduct the clear objective is that the code will be enforced by the house's power of contempt if you do not abide by it.
Senator Cools: However, a breach of the code would not be contempt. In other words, a decision would have to be taken that that act was contempt. You simply could not have a situation where any breach of the house rules would be construed contempt. The fact of the matter is that a decision has to be taken — every contempt is based on a decision. That is the funny thing: the decision on the accusation and finding are one in the same.
The Chairman: All the decisions on the proposed code of conduct will be decisions of the house or of a committee of the house presented to the house.
Senator Cools: — but not breaches of them.
Senator Joyal: I draw the attention of honourable senators to the matter of members' correspondence, as raised by Senator Fraser in the same joint committee report. I do not advise you to read it because it is two inches thick, unlike the other decision that we talked about.
In chapter 2 of the report, paragraph 103 deals with members' correspondence and which aspect is privilege and which is not. I wish to speak to that but those of us interested in the matter of privilege should read that report because it is full of important information, although we may not like it.
My last question is about proposed section 20.2(1) of the act concerns the removal of the ethics officer. It says that, "The Senate Ethics Officer holds office during good behaviour for a term of seven years and may be removed for cause by the Governor in Council on address of the Senate."
Roberts v. Commissioner of the NWT et al. concerned a decision in the Northwest Territories whereby the assembly removed the commissioner. The commissioner went to court and the court decided that the house exceeded its privileges or had no privileges in exercising its power to remove the commissioner. Would you share the opinion that section 20.2 is not covered by privilege?
Mr. Audcent: Once again, there are two results possible: that the courts would say that looking at it as a package, Parliament intended it to belong to the house and none of it is before the house. However, I have to admit that that decision exists and it is possible that it would allow the courts to review the removal of someone who was not in accordance with these terms. In other words, if the person were removed and alleged that there was no resolution of the Senate, the matter could go before the courts with the claim that the Governor in Council acted illegally — that the removal occurred by the Governor in Council without the senators' concurrence.
Senator Rompkey: In the exchange with Senator Grafstein, you said that "ethical" goes beyond the law. Then, you used two other phrases, "the headline test" and "the smell test." What are they?
Mr. Audcent: I hope someone else knows those expressions besides me. Another way of wording that would be "the headline in the Globe and Mail test." It means that the rules are fine, but if a reporter runs this up on the front page of the paper, are you comfortable when it is about you? When they say, "you did this..." can you say "yes, I did."? Would it problematic for you that all of a sudden your name is being associated with the conduct in question.
My position is legal and generally, I advise senators on what the law is. In the context of advising, I say that there is a headline test or a "smell test" and your best place to consult for that is with your leadership and your colleagues. Your leadership and your experienced colleagues will tell you where there the water is dangerous and where the water is safe. It is beyond law and is a public mores test.
Senator Rompkey: I raised this because the appointment of the Senate ethics officer is in statute. One of our questions for discussion is whether the ethics officer should be in statute or by resolution. We discussed this at length yesterday and Senator Beaudoin took part in the exchange. At the end of that exchange, it was my understanding that an application to the courts could happen in either case.
How does it reflect on the Senate whether the appointment of the ethics officer is in statute or in resolution? What do you think the headline test and the smell test would be in the case of each?
Mr. Audcent: I will give you the answer that I give to honourable senators all the time on the headline test and on the smell test: Speak to your leadership and speak to your colleagues. It is a purely political question.
Senator Rompkey: I was hoping you would make a comment on that because it is an important consideration for us. If every legislature in the country has an ethics officer position appointed in statute and we have one appointed by resolution it could matter.
We also discussed why we are doing this, who we are, to whom we are accountable, what officers are, and what public servants are. We are clearly servants of the Canadian public and Canadians expect certain conduct and certain standards from us, and we should expect that from ourselves in 2003. Bearing that in mind, perhaps you do not want to go beyond your last answer but I want on the record how the headline test and the smell test would apply to senators in respect of whether the ethics officer should be in statute or by resolution?
Mr. Audcent: I read the Debates of the Senate, and some senators have taken the position that putting this in statute involves a risk. Therefore, that involves an exercise of risk assessment. There are other senators who believe that having the officer in statute — having an independent officer — could have huge benefits and therefore, it is a benefit assessment. That is a political question and you are involved in risk and benefit assessments.
Senator Cools: I would challenge the witness on the propriety and the constitutionality of using sections 42 and 44 of the Constitution Act, 1982 to amend section 18. I would say that is wrong. I would refer Mr. Audcent to the lead-up to the adoption of section 18 and to make the distinction between a legislative assembly and a Parliament.
It was a huge debate that led up to Confederation and section 18 was put there for very good reasons. That is not so easily amended by itself, as you suggest. However, I have no doubt that the way these systems operate is that someone will come in and say it can be done, and before we know it we have something moving before us and we are told that we can not touch it — but that is another matter.
I would like to come to the clauses of the bill that are creating the Senate ethics officer and the House of Commons ethics commissioner. I do not know if you have wrapped your mind around what I am about to put a question to — you may have given it no thought at all, and if that is the case, I would understand that and accept that.
My understanding of the evolution of the Parliament and the evolution of the law of Parliament — and I encourage senators at all times not to treat the law of Parliament and just the rules of Houses, because there has been a great effort afoot over the years to reduce the grand law of the Parliament to nothing other than the rules, but that is another discussion — is that that the Houses have been very jealous and hostile to the introduction of servants of the Crown into the precincts of Parliament, and the creation of offices for parliamentarians.
If you will recall, up until quite recently in the history of Canada — and it had been part of the parliamentary tradition for 300 years — if a member of Parliament became a minister, the first test that minister had to do was to resign as a member of Parliament and then submit himself or herself to his riding again for re-election. So jealous was Parliament of this that no officer, no office, could hold a seat in Parliament.
For those who do not have it come to mind immediately, that was a big feature between Arthur Meighen and William Lyon Mackenzie King. Mackenzie King was able to entrap Meighen at one point in a vote, that his members could either be members of Parliament or ministers, but they could not be both. To do one or to do the other was certain defeat.
I have not looked at this for a while, but the fact of the matter is that Parliament is very jealous of offices around it, because there is a constitutional concern about divisions of loyalties. I wonder, in looking at these clauses of the bill, if you have given any thought to the violation of a several hundred-year-old tradition in terms of creating new offices that will have the effect essentially of subjugating parliamentarians to them?
Perhaps you have not given this any thought. However, if you look at those clauses, the terms of the appointment are "during good behaviour." Then they qualify "during good behaviour by cause" — which, in itself, is a constitutional anomaly. It is very clear that these are offices and not advisers to us. It does not matter how the government tries to couch this fact, these are offices of Her Majesty; these are servants of the Crown. Have you given that any thought?
Mr. Audcent: Perhaps I can start off by sharing a common understanding with you of the historical context. A very interesting read is the very first report of the Internal Economy Committee of the Senate back in 1867. It says, "We affirm our right to name all of our staff with the exception of the ones known to be named by the governor," which included the Clerk and the Gentleman Usher at the time. Is the Senate jealous of its officers? Absolutely. It began by saying two things — we affirm our right but we recognize the exception.
With respect to the issue of members serving as officers of the government, you will find an amendment where it was proposed to put that prohibition in place for senators, the way it was in place for the House of Commons. That amendment was removed from the bill. Senators were not to be disallowed from serving within the government as well; so the lines are not necessarily that clear.
As we can see, your general principle is right; also, the principle that there are exceptions is right. Then we get to the document that is before you. It is a very interesting proposal that you have before you, because you are setting up an office that is independent of the Senate, in a certain sense. It has its own sets of estimates — it is persons running their own office with their own staff, and that is the appearance of independence that you need to communicate to the public. On the other hand, it is very clear that the role of this person is to do the will of senators. Senators will decide what the code of conduct is, what the role of this officer will be, and that person will carry that out. It is a very delicate balancing act that you have before you.
The Chairman: It is also a balancing act that presumably both sides of the Senate absolutely must agree on who this person will be.
Senator Cools: The matter has nothing to do with who the person will be. The question will be the political relationship between a servant of the Crown and members of Parliament. Right now, we know that ministers of the Crown who are office-holders are supposed to be in a relationship of responsibility to the Houses of Parliament, but there is no such tradition for this kind of position.
I would submit to you, in a very legal and constitutional way, that this is totally novel and totally unheard of as a parliamentary device. That is why I am of the opinion that we should approach this with caution, if not fear and trembling.
I want to clarify one point that you made. The only offices, as Mr. Audcent said, that are appointed by Her Majesty are those two; but their appointment is qualified somehow or the other in that process. It was a long history to determining some of this. They are — within their appointment, somehow or the other — pledged by Her Majesty to be the servants of the Houses. Therefore, it is a unique and distinct feature. However, the fact is — and I hope honourable senators take it up — Parliament has been reluctant and hostile to the introduction of offices and servants of the Crown into its midst. The discussion you were talking about with the Senate was whether or not senators could be ministers, not whether or not ministers would have to be subjected to resignation before they could accept the appointment.
The Chairman: Senator Cools, we must stop at 1:30.
Senator Cools: What I am trying to impress upon us, honourable senators, is that we are now in a state where our own history is alienated and separated from us, and where we even view the authorities as non-members of Parliament. I am trying to say that the history of Parliament and the privileges of Parliament were intended to secure the protection of Parliament and parliamentarians from Her Majesty's servants. That is why responsible government was developed.
The only office-holders that are valid in Parliament now are ministers of the Crown. Three or four hundred years ago, there were dozens of other kinds of office-holders in the system; but Parliament has been very jealous and a variety of statutes have been passed. The compulsion that ministers in the House of Commons — it was not so for the House of Lords, obviously — members of the House of Commons becoming ministers had to resign immediately, because no profit could be taken from Her Majesty which would allow them to continue to be members.
The Chairman: Senator Cools, I thank you very much. It is fortunate that was not a question, because there is no time for an answer.
Senator Cools: Well, you can put me on earlier.
The Chairman: I must end. I put you on as I recognized every single person as they put up their hand, Senator Cools. This meeting is now adjourned.
The committee adjourned.