---

Proceedings of the Committee on 
Rules, Procedures and the Rights of Parliament

Issue 18 - Evidence, October 30, 2003

---

OTTAWA, Thursday, October 30, 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 10:08 a.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, this meeting of the Standing Committee on Rules, Procedures and the Rights of Parliament is now in session. I would like to give everyone fair notice about our direction on Bill C-34 over the next 48 hours or so.

This morning we will hear from Mr. Robert Marleau, former Clerk of the House of Commons, and Professor Joseph Maingot from the University of Ottawa. So far, everyone else has declined our invitation to appear before the committee. We are waiting to hear back from Professor Jennifer Smith at Dalhousie University and Professor Stephen Scott at McGill University. We have been trying desperately to contact everyone that senators have suggested.

The steering committee has approved that we go to clause-by-clause on this bill on Friday, October 31. A meeting is scheduled for 10 a.m., or when the Senate rises, in room 160S. If anyone is able to bring in witnesses for the time after the Senate rises today or for tomorrow morning at 10 o'clock, I would be absolutely delighted. I want this committee to sit as long as is necessary to hear the witnesses. I will delay clause-by-clause by any number of hours required so that we can hear from everyone.

I do intend, though, to do clause-by-clause sometime tomorrow.

Senator Andreychuk: I do not know whether this is a point of order or point of privilege but I strongly suspect it is both. As Deputy Chair of this committee, I think if you put on the record what the steering committee agreed to, the benefit of the entire steering committee process should be laid out to the senators present today. A steering committee was called rather quickly at the end of our second last meeting, when the need was indicated to move quickly on this. I do not know to what extent I can talk about the steering committee because I do not know whether we are now in camera.

The Chairman: No, we are not in camera.

Senator Andreychuk: Were we in camera in the steering committee?

The Chairman: Yes. The steering committee is always in camera.

Senator Andreychuk: The bottom line then, if that is all I am at liberty to talk about, is that the steering committee, comprising the two members from the government side, voted to proceed. I, on the opposition side, voted against the motion to proceed by calling all witnesses and by going clause-by-clause.

I will put on the record that I made what I hoped was a reasoned appeal for the need to hear witnesses and that the witnesses we have heard to date were in a broad, generic ethics package. We were told at the outset of this process that we would look at code of conduct, at what that means, and at all the methodology that might be applied to a code of conduct. In other words, there are different ways to go about addressing this problem of a code of conduct from saying that we have already been addressing the issue to the fact that we need full legislative capacity.

We did not start with any urgency but with the due diligence that this Senate normally approaches its work. We heard witnesses who were known to have some interest or some expertise in the area. We commenced our work and shortly into it, the Chair of the committee indicated that we must give an interim report. This side — the opposition members of the committee — indicated that we wanted a full report. Members of the government side joined us in saying that a partial report could be misleading and that an interim report could be the inappropriate way for the Senate to proceed. We normally have full deliberation and then we give our best recommendations.

However, we yielded. We wrote in our report that it was not a completed study and that we needed further study. The government has reported, including Mr. Boudria's appearance before the committee, that it accepted all of our recommendations and he dealt with it as a final, complete report.

Again, we tried to dispel that and to indicate that we need to do a great deal of work on this issue because it affects the future of Parliament, the status and the future of the Senate, and the status and the ability of each senator to perform. This is not a small matter; it is a complicated matter. It deserves the due diligence that we said we would give it, and we have not done so.

We are now rushed by Bill C-34. We asked that we hear from witnesses specifically in respect of Bill C-35. Now the devil is in the details. What do the clauses mean? What are the consequences of the bill? What is the consequence of not producing a code of conduct?

There are many, many issues to be dealt with and witnesses to be called. There has been great resistance, I must say, from the government side to hear further witnesses, I am told, and a great enthusiasm from our side to continue with the witnesses.

We indicated that we are not obstructing the government and that we will not obstruct the government but we have to do our job. Our job is to hear witnesses; to hear Canadians. When we expect witnesses to come on 24 hours' notice, it is small wonder we have a "no" as an answer. In fact, I know some of the witnesses said, "Give me a week, and I will attempt to change my schedule." These are people who have committed themselves to teaching schedules. These are people who have jobs and have other things to do. With the greatest of respect, they cannot drop and run here. They have to think about it. They have to prepare, if they are to give us their advice.

I again plead, what is the urgency? No one has told us, except the newspapers, that there is something magic about November 7. Our side has asked the government on the floor and has been told we are sitting according to our Senate calendar. Therefore, we can sit till December 18, we can adjourn, we can come back, and we can continue studying. If we were to sit until December 18, I have every confidence that we could hear the witnesses we need to and that we would do the job we have to.

However, this is outrageous and shocking. This is the first time in the 10 years that I have been here that we have taken something as important as this and said, "We do not want to really hear from witnesses. We will go through the process. We will get a list. We will ask them if they can come in 24 hours, and then we will go clause-by-clause on a Friday," when in fact now I am hearing we are likely not to sit tomorrow.

When I declined and said that we will not fast track this and avoid what is I think the proper analysis that the Senate would give, I did not receive from the chair that they would proceed in any event. It was simply a decision of two of the steering committee — the government side, saying yes, the opposition saying no — and life went on. We went to have our meeting yesterday. There was nothing mentioned.

There is an agreement that we will sit in the slots provided. In fact, we do that because it is difficult for members to adjust if they have to sit on two committees at the same time. We do have a lot of difficulty. You can appreciate on our side we have more difficulty than you do, although I heard yesterday on the floor of the chamber that you have difficulty getting those committees together and getting the appropriate members. Occasionally, we get what we call "bench warmers." That is not fair to the legislation. That is not fair to the people of Canada.

We have an order from the Senate that we are to be at certain committees. We undertake, from the Selection Committee, to put our names on certain committees and to sit when that committee is called. I think it is extremely important that we follow that, or we are in contempt of the chamber. We are in contempt of the chamber.

We have no proper slot for this committee today. Agriculture is meeting today. Senator Oliver is the chair of that committee. They have some pressing business to deal with. Internal Economy is sitting today, all day, in their regular approved spot, and Senator Stratton and Senator Robertson are there. The government indicates that the budgets of all the committees and all the work in the Senate must be dealt with today, and so they are obliged to be there.

Senator Beaudoin and I are on the Standing Senate Committee on Legal and Constitutional Affairs that starts at 10:45. Yesterday, a reference was given to that committee to deal with Westray, Bill C-45. This bill should have been before the Senate much earlier. This involves the death of Canadian citizens in mines. It has been studied; it has been investigated. Now there is legislation that could preclude that from happening again. We are asked today to deal with that legislation on an emergency basis. There are families in agony that have been waiting for this legislation and we have been asked to deal with it. We received our briefing books on Westray this morning. I should be reading it, because again, no one on our side wants to slow Bill C-45 down. However, we have to do our job. We have to make sure it is constitutionally valid and that the sections say what they intend to. How many senators go around the country saying the job that the Senate does, it look at the bill, administratively, legally, constitutionally, and from regional and minority interests.

This meeting of Rules was called. There is a convention — if not an outright rule — that says that in order to go outside of the normal slots for committees, it has to be with the consent of both whips. Our whip advised Senator Rompkey that we would not agree, for all of the reasons that I have given, but more importantly, because the Westray matter was coming. Despite that, a committee meeting was called for today at 10 o'clock, with one witness at 10 o'clock and at eleven o'clock Mr. Maingot, who is one of the most important people to hear on parliamentary privileges.

Do I choose to go to Westray at 10:45, where the chamber has mandated me to be, or do I be in contempt of not being there and continue to sit here because the government has chosen to ram through legislation that is important, but not emergency, not critical, and we are here till December 18? How outrageous can that be? I do not normally use those words. I do not think anyone has ever heard me use those words about procedure here. I simply cannot agree with it.

I am shocked that we have been told we will sit tomorrow. We might not sit tomorrow, but there are witnesses and we can sit tomorrow. We have enough proper slots to do the job properly if we are interested in listening to these witnesses. Are we calling them simply to be part of a charade, our minds are made up, we are ramming it through clause-by-clause, no amendments, does not matter what the opposition thinks, does not matter what the witnesses say? That is the appearance and I presume that is the reality. No matter what we do, it will not matter. What is the point? Subject to anyone else making a point, I will move an adjournment of this meeting, but I will not do so if it precludes others speaking.

The Chairman: Thank you. There are others on the list. I do not intend to adjourn this meeting. Senator Joyal.

Senator Joyal: Thank you, Madam Chair. In relation to the attendance at this committee, I have tried to always be in attendance and question witnesses and bring forward my own thinking and to share it with my colleagues to the best of my capacity.

I find myself exactly in the same problem with Standing Senate Committee on Legal and Constitutional Affairs this morning. Late yesterday afternoon, we received Bill C-45, the bill dealing with the Westray mines issue, and the chamber even expressed the wish to have the bill voted on clause-by-clause today because of the importance of the issue. It is an important bill. It amends the Criminal Code. Humbly, I pretend I can make a contribution and reflection over the Criminal Code. Moreover, it is not only witnessing, but it is voting on the bill. I am a full member of Standing Senate Committee on Legal and Constitutional Affairs. The house has ordered that bill to be studied in one sitting and to vote on it. My colleague Senator Beaudoin, who sits on the other side, of course has a legal capacity, too, as has Senator Andreychuk.

We find ourselves in the situation whereby we certainly both want to participate in the work of this committee as much as we can. I think we have shown it in the past that we want to approach this in a positive way. Now we are torn with another committee whereby we make contribution to that committee on an issue that is, as Senator Andreychuk has said, urgent. The house has ordered it, and now we are caught with missing Mr. Maingot, as one we recognize has written on the issue of privileges, which is one of the core issues of this bill. I would certainly like to listen to him and maybe question him.

I feel very uncomfortable, as a senator, being in a position whereby I will do something unethical. I will stay here as long as I can, and then I will rush to the Legal Committee meeting to vote on a clause-by-clause. As a senator, I find this totally unethical.

We are talking about ethics. This is ethics. This is not conflict of interest. Ethics is how to behave properly. To behave properly is to exercise a judgment on the basis of legislation that is submitted to us to the best of our capacity.

How can I exercise my senatorial duty to express an opinion, as my oath of office requests me to do, on the bill? I will not have heard any of the presenters. I will be rushing at 12:30 p.m. to move clause-by-clause. This to me is totally unethical.

Before talking about conflict of interest, let us talk about ethics, as Senator Grafstein has said. What is proper, and what is not? This cannot be legislated, but this is the reality. I find myself in a contradictory position by reflecting on ethics and behaving unethically. That being said, I want to raise the issue of witnesses.

I submitted the list of experts as requested by you earlier this week. I have had only the time to reach one — Professor Donald Savoie from Moncton — who most of us know from his recent publication on governance, especially on the specific issue of the relation between executive and Parliament. He has written a book on this that has received Governor General's Award. It is certainly a serious book.

I spoke to Professor Savoie. I expressed my preoccupation with ethics being the core issue of this bill. He expressed an interest to come. He requested that I send the documents to him because he has not read the bill and the testimony. I faxed everything to him. In the meantime, I learned that he is not available.

Madam Chair, if someone said come tomorrow morning at 10:30, otherwise we do not have time to listen to you, I might not be available. I make the same point as Senator Andreychuk made.

Professors or experts come here freely taking time from their schedule. They are experts. They will not rush to express an opinion based on no reflection or no readings of the proceedings. They will want to read previous experts and our interim report and so forth. I tried to reach him this morning to ask if he could come tomorrow or Monday morning, at the latest. I have left him a message. His assistant told me he was in the lecture hall and the call should be returned today.

I did my best to bring witnesses. However, if we give those experts one time slot, which is tomorrow morning or Thursday afternoon, they may not be able to come.

I tried to reach Peter Aucoin as well. He was also in lectures. He is the leading expert on the recent decision of the Supreme Court of Canada on the Figueroa case, which was made public this June. We will need to make decision on legislation based essentially on the testimony of Professor Aucoin. He is from Dalhousie. He is not at the University of Ottawa across the bridge. Experts need time to come here.

I have done my best to try to bring the witnesses. If the time slot is come this morning or never, then no committee will have expert witnesses, especially on complex issues.

I feel, Madam Chair, uncomfortable in this situation. Again, I have done my best to not delay the work of this committee by trying to bring experts to help my colleagues form opinion on those issues. That is our role.

Senator Beaudoin: I am vice-chair of the Standing Senate Committee on Legal and Constitutional Affairs. I must be at that committee in 20 minutes.

I learned at the last moment that the Westray case will be dealt with in the legal committee. I received phone calls from witnesses, including the Canadian Bar Association. They want to appear because Bill C-45 is a very, very important bill, legally speaking. There are constitutional law elements involved in it.

Apparently, we have to finish clause-by-clause today. This is the first time that we would not give an opportunity to the Canadian Bar to appear. They cannot appear with one or two hours' notice. I feel that I am a bit in the same situation as Senators Joyal and Andreychuk. We are on the same side on this.

We have a first duty and a second duty. My first duty today is to Legal Committee. My second duty is to the Rules Committee, which is a very important committee with many legal problems to be addressed.

I will leave because it is my duty to attend Legal Committee as vice-chair, but we should have another system. We are rushing too much. I have no other choice but to leave in the due time.

Senator Smith: Thank you, Madam Chair. I can certainly understand the frustrations of Senators Andreychuk, Senator Beaudoin, and Joyal. I do not want to be critical of anyone's position here whatsoever. We are all frustrated.

When you have two committees — and I am on Legal Committee as well — that meet in conflict, it is not desirable. It is not normal. It should not be a pattern.

The reality is that we are in some unusual circumstances. I just enjoy candour. I would not purport to speak for the government, but it is probable that Parliament will not sit after November 7, until we have a new Prime Minister. That is probable. That decision will not be made by anyone in this room. I do not know if that final decision has been made. I do not mind stating the obvious. There is no point being in denial of facts that are a reality.

Yes, it is frustrating. We cannot turn back the clock. It took a long, long time to get this bill out of the chamber and into committee. That is regrettable, but here we are.

I am sure there are some members who do not support this legislation and who would not mind if it withered on the vine. If that is what happens, then that is what happens. I would like to see us do our best to try to get it back to the chamber. If the chamber defeats it, so be it. If the chamber amends it, so be it. We should at least let people know where we stand on this issue.

This is an issue that is very much in the public arena these days. It is reasonable for us to do our best under difficult circumstances. I had planned to take my wife out tonight for her birthday dinner. I cannot do that. I had to phone to tell her that I would be here all day and that I would not be arriving home tonight. We are meeting tomorrow. I do not mind.

We are doing our best to try to cope with bringing this issue to a vote. People can say where they stand. I accept everyone's position. However, it is desirable that we try to deal with it and return it to the chamber. Whatever happens is what happens. We must do the best that we can under very difficult circumstances. We must be understanding of these conflicts that people have that none of us enjoy.

Senator Kroft: Thank you, chair. You know I am no longer a regular member of this committee and I appreciate the opportunity to speak this morning. I had been hearing overnight various rumours and reports of what might be happening. I came here to try to get a clear understanding for myself because of my intense interest in the subject.

I was sitting in my office from a little after 8:00 this morning until the time I came here. No one should be of view that the concern amongst senators on all sides is confined to those around this table. There is hardly an office connected with our Senate that is not heavily preoccupied with Senate that is not heavily preoccupied with this topic, either because of schedules and the dilemma with committees or, even more so, because of the fundamental principles of the process on this bill. This discussion is a microcosm of a much larger discussion happening hourly as we sit here.

To that, I want to add that I was delighted to arrive in time to hear Senator Andreychuk. In one way, I do not feel I have to say a great deal more because she has correctly, adequately and quite fully expressed most of what I would say. I think that there was much content in what she had to say. I think it was fair, balanced and it was said from the point of view of a senator trying to do his or her job rather than from any particular perspective or bias. I truly thank Senator Andreychuk a great deal for that.

In terms of the final point I was going to touch on that Senator Smith raised, we all know that we are dealing with the spectre of a date and time. Senators, I only ask that we all keep this in perspective. I have a terrible sense that things are blowing out of perspective. This is not a national issue with some great programmatic, economic or social consequence if we do not deal with it by a certain date, even if Parliament does prorogue November 7. This is not a great constitutional issue that must be resolved because the country is at risk. This is not the same as the Westray bill that affects families in need. This is a purely institutional issue that we have to resolve in the best way that we are able for the concerns of this institution. It is nothing more and nothing in the country will turn on this issue.

There is a perception of pressure. If we do not complete it now and if we cannot do it properly now, with full discussion and full consideration, then let us do it when we return. Canada will be here; there will be no difference in the country. All will still be in place. Canadians will be safe in their homes and we will have a chance to think properly on the issue when we return. Let us not skew this out of context that the future of the country will turn on what we do on this issue. However, the future of the Senate will turn on what we do and that is why we should take great care.

Senator Fraser: Thank you, chair. Senator Smith made more cogently than I would be able to do many of the points that I would have made had he not done so. I would like to observe, in addition, that it is, unfortunately, not unusual for senators to face scheduling conflicts among the committees. It is extremely unfortunate but it is a fact of parliamentary life and we all find ourselves in that situation far more frequently than we would like. We have to make the best choices by setting the best priorities so that we are able to deal with the situation.

I do not think it is in any way unethical for this situation to arise. We have two committees considering important legislation. I would beg to differ with Senator Kroft's view that this bill is purely internal and institutional. A purely internal and institutional matter would be, for example, the rules that apply to the scheduling of committees. This matter goes not just to the fact and practice but also to the bolstering of Canadians' faith in the integrity of their Parliament. That is a great national issue of significant importance that has been before us for a long time and, in my view, is important to proceed with.

Senator Rompkey: Thank you, Madam Chair. On the Westray bill, the decision to move it to committee was made late yesterday afternoon but, before the decision was taken, it was agreed by both parties in the chamber at that time that they were in full support of the bill and that they wanted to move it expeditiously. In fact, they were prepared to move it through all three stages yesterday afternoon. That was expressed by Senator Kinsella and by members on our side. There is a disposition to move the Westray bill very quickly and there is no party disagreement. Neither party disagrees with the bill — both support it — without amendment.

I would not say this morning's meeting was simply pro forma but it is being held on the understanding that both parties fully support the bill and would be prepared to let it go through without amendment.

In terms of voting, I do not think there will be much active opposition to the bill, no matter how many people are at the Standing Senate Committee on Legal and Constitutional Affairs this morning. I do not believe that we need a full compliment present to pass the bill. Quite the contrary is true.

I wanted to associate myself with the remarks of Senator Smith. I will not say anything more about that but I support what he said. I also wanted to address the issue that this meeting is not of great consequence and that what we are dealing with now is not of great consequence in the country. I think the contrary is true. I go back to a point that Senator Andreychuk made in her remarks about the view in the country of the Senate. It is true that we have come a long way in the years that I have been here — not because of me but simply in the term that I have been here. I came in during the Thompson era and I remember the great angst and controversy that we went through in those years.

We have come a long way. There may be the view in Canada that the Senate is in some way trying to exempt itself or to not deal with this bill expeditiously — this question of ethics and accountability. The very nature of our institution is that we are not elected and in that sense, we almost need to be more accountable. Some stories are being written already to that effect.

If the view in the country is that somehow this institution — which has given a good account of itself — is now trying not to be as accountable as other chambers might be, then that is to the detriment of this institution. Therefore, it is an issue of some consequence in the country.

We have studied this bill for a long time. The questions that we asked yesterday and the questions that we will probably ask today have been asked before. Some of witnesses we will have we have had before. I certainly would not agree with ramming a bill of this consequence through but I do think there has been adequate discussion. People have, for the most part, made up their minds and it might be best if we go back to the chamber as quickly as we can so that people may take their positions and let the bill stand or fall. From my point of view, I hope it stands because I think it is of consequence for this institution and of consequence for the country.

Senator Grafstein: I want to deal with three points. As I said earlier when we started with what is, essentially, a closure provision that it was an unethical way to proceed with this bill. Now we have de facto closure in this committee. When the opposition tells us that this will stultify their ability not to delay but to participate only. Here we have the "unethical bill" and we are raising an ethical dilemma, as Senator Joyal sets out, that they do not have adequate time. On the face of it — a prima facie case — they do not have adequate time to review the bill.

As to Senator Smith's comments that we have had this bill before us a long time, we have not had this bill before us for a long time. We have had this bill before us for four or five days in the house and now we are into a detailed analysis. As to Senator Rompkey's comments that we have looked at this bill clause-by-clause, we have not looked at it clause-by-clause.

Senator Rompkey: We looked at a similar bill.

Senator Grafstein: We have not looked at this bill in its present detail, clause-by-clause, based on evidence. We have talked about some principles, and they have been focused on one or two issues, but we have not looked at the range of issues in this bill, which are complex.

There are inconsistencies in the drafting of this bill. I do not know how we can deal with them without having external evidence to say whether or not those inconsistencies are valid. I do not understand the rush to judgment on this. On the understanding that nobody here wants to kill the bill, what we want to do is to make sure this bill is totally comprehended and understandable by all members — not just those who are on this committee. Hence the rationale for having a fulsome debate in the Senate, where a lot of senators who had not really focused on this matter began to focus on this matter.

I give you one example. This is just an extraordinary example. Senator Poy introduced a bill several years ago on changing the words to the national anthem. There was tremendous reaction in the Senate to that bill. She has, after debate for a year or two, changed the opinion of the Senate — based on debate and evolving attitudes in the country.

This is a constitutional bill, an internal constitutional bill. I have just started looking at this bill section by section, and I have questions. We have heard from the Prime Minister that he wants to leave on a nice basis and then we have heard from those who support the new leader, that there is no rush to judgment. The consequences on this will not be on the existing leader; the consequences on this — if, in fact, it gets tangled up — will be on the new leader. Let us talk about that as a reality as well.

Senator Smith talked about the reality outside this room that we all know about — November 7. Let us talk about the reality after November 14. We have heard from those who are forceful supporters — proto-leaders, in effect, from the new leader — who say this is a Senate matter.

In effect, nobody wants to challenge public opinion, heaven forbid. I can tell you public opinion can change pretty quickly. However, the government has allowed itself, by raising the word "ethics" over and over again, to fall in the trap of raising expectations beyond any reasonable means. We heard that yesterday clearly from Mr. Audcent, that ethics is beyond law.

There is an expectation there that is higher than we can achieve. Quite frankly, I have gone over those polls that Senator Fraser has talked to us over and over about, about how it is important that we have to sustain ourselves in the public's opinion. I know that provincial members of Parliament across the country have no higher standing in public opinion than senators or members of the House of Commons. It is how you conduct yourself on public policy issues, and where you take the country.

I have read polls and polls — and Senator Smith has not had the benefit of looking at those — but my point here is that nobody will be hurt, chairman, if this clause-by-clause takes another two or three or four days. At the end of the day, the consequences will be that we will deal with it in the normal course. It will take us at least six or eight months to review and set up a code of conduct. That will not go away, one way or the other.

Why are we trying to ram this through when the opposition feels uncomfortable, when they cannot even attend? Why do we push through, when we break every ethical rule we have established? Ethical rule number one was the select committee: To establish committee times so the opposition, which is getting shorter and smaller, can adequately present themselves at committees. Now we have been told by two of their members that they feel in conflict. I have heard what Senator Rompkey says. However, Senator Andreychuk has always said, over and over again, there are no free rides on a bill.

I want to make sure we go to a committee and deliberate on that bill. She might raise a problem. Why would we prevent her from doing that? We have broken every ethical consideration in this Senate to pass an ethical bill — and I think that is unethical. My view is that if she has raised the motion to adjourn this until tomorrow, we will sit here then and it is hoped that we will have some time to bring in some witnesses.

Honourable senators, you do not want to make this a charade. If we can get witnesses that can help us in the next two or three days, why not do so? Why not? What are we hiding?

The Chairman: Thank you, Senator Grafstein. I would just, at this point, remark that we are not hiding anything. I have attempted to get witnesses. We are still attempting to get witnesses. If we want to sit tomorrow, we shall do so as long as it takes.

Senator Grafstein: We have heard from Senator Joyal that two legitimate witnesses cannot, in the short-term notice, make it.

Senator Smith: Do you have a problem with hearing the witness we have? He is here.

The Chairman: He is here, and we have also Mr. Maingot coming in 15 minutes.

Senator Grafstein: I have no problem with that. I am here.

Senator Cordy: I understand Senator Andreychuk's dilemma, and certainly there are fewer members on the other side. I am from Nova Scotia. While I am not a member of the Standing Senate Committee on Legal and Constitutional Affairs, I met yesterday with members of the Steelworkers union who are in Ottawa. I would have loved nothing better than to have been at that committee this morning. I am very fortunate that my Standing Senate Committee on Social Affairs, Science and Technology, which normally sits at 11 a.m., is not sitting today.

Having said that, we are here dealing with Bill C-34. I have been on the committee since the spring; and while we have not had the bill before us, we certainly have been dealing in a pre-study. I am not sure what the terminology is — whether it is a pre-study or whether it was the package — but I know we had 22 witnesses at that time. In fact, my understanding yesterday was that some of the individuals who were called to appear before the committee once again have said they have really stated all they have to say on the matter in their previous visit to the committee.

The bill was in the Senate. It is unfortunate that it did not come to this committee earlier, but it did not. It was difficult getting it back to the committee. Certainly, senators had the opportunity in the house to speak, and they will have an opportunity to speak once again when the bill goes back to the Senate.

I think that we should work as quickly as we can to get the bill back. I believe, as Senator Fraser stated earlier, that this is a bill that is of great interest to Canadians.

The Chairman: Thank you, honourable senators. I believe I have heard enough. Senator Andreychuk would like to make a motion to adjourn, but I would point out that we do have witnesses here who are prepared to testify. I do not feel that we should delay them in their testimony before us. After the witnesses are heard, if Senator Andreychuk wishes to make a motion to adjourn, I will certainly hear it.

Senator Andreychuk: Are you saying you would not accept a motion now? I have heard a number of points. I do not go to the Westray meeting in the Standing Senate Committee on Legal and Constitutional Affairs simply to rubber- stamp. I have great respect and great urgency in that bill.

However, there are two reasons I am going to that committee. First, is that I am obliged by the chamber to be there. They have mandated me to be there — not here. Second, the people who will be there deserve to see us supporting that bill, and doing a study on it. What if the bill has a flaw? If we are rubber stamps, we had better shut down the Senate now. You do not need us — if I am simply providing a body, you do not need us. We are there to apply our legal minds, having sat on that committee for a long time, knowing the Criminal Code and ensuring. Lest you think that is a comment on the House of Commons, it is not. However, often we have amended and improved bills here. That is where our good reputation has come from — due diligence. I have to be there on due diligence and respect for the families of Westray.

Why am I here?

The Chairman: You are also mandated to be here, Senator Andreychuk.

Senator Andreychuk: I am not mandated to be here. The government chose — breaking collegiality, if not rules — where two whips would agree if we would sit out of our slots, to simply not make this confusion. Our whip said "no," knowing full well what was going on today and in this week.

I will offer to come back November 12, 13, 14, 15, 16, 17, 18, 19 — any day you wish, to sit full days, to get this bill properly analyzed, with due diligence. This is not due diligence.

With respect, I can avoid my duties and be in contempt of what the chamber asked me to do and sit here and listen to Mr. Marleau, but I think it is a foregone conclusion. You will pro forma hear them, and you will go clause-by-clause and the bill will be returned. You are not looking for my advice. You are not looking for my opinion. I am not sure you are looking for the advice and opinion of witnesses. It is embarrassing and perhaps unethical. I am going to move that we adjourn to our next regular sitting of this committee.

The Chairman: I will call for a voice vote. All those in favour of adjourning and not hearing our witness?

Senator Grafstein: Could I ask a question before the vote?

The Chairman: I have called for vote, Senator Grafstein.

Senator Grafstein: It is a very narrow question.

The Chairman: Make it narrow.

Senator Grafstein: Are the witnesses able to attend tomorrow?

The Chairman: We do not know. The motion is that we not sit until our regular meeting next Tuesday. All those in favour of the motion to adjourn will please say "yea."

Some Hon. Senators: Yea.

The Chairman: All those opposed to the motion to adjourn will please say "nay."

Some Hon. Senators: Nay.

The Chairman: The "nay's" have it. We will continue with the meeting.

Mr. Marleau, I apologize for having kept you sitting here through our proceedings for so long. We are in your hands.

Mr. Robert Marleau, Former Clerk of the House of Commons, As an individual: Thank you, Madam Chairman. No apology necessary.

Senator Joyal: Point of order, Madam Chair, I want the minutes to recognize that there is no opposition member present while we are hearing the witness.

The Chairman: You are quite right in saying so. There is no opposition member here. We can always hear witnesses and receive evidence when there are more than four members of the committee here.

Mr. Marleau.

Mr. Marleau: Thank you. Again, no apology necessary. I am somewhat familiar with the dynamics of parliamentary committees and the energy they must devote to the process of parliamentary debate. It is a bill of a flashback for me, actually.

[Translation]

Since my current incarnation designates me as an officer of Parliament, my time is yours.

[English]

I do not have an opening statement as such. I had relatively little time to focus on your deliberations, although I had focused on this bill earlier when it was before the Commons when I was slated to be a witness there.

My expertise, if I can contribute to your deliberations, should be somewhat limited to the issue of parliamentary privilege in the context of process and entitlements, and perhaps some comment on the debate on whether a legal framework is the correct way to cast such a piece of legislation, and then maybe deal with what I think is one ambiguity that could cause some relationship difficulties between the two Chambers, that is, the House of Commons and the Senate.

[Translation]

I would like to summarize the points I want to make, having read the deliberations of your last two hearings. I feel very humble as I note the expertise around this table. Perhaps I could contribute a little by replying to your questions.

[English]

From the standpoint of parliamentary privilege, your proceedings indicated that there has been some discussion about whether privilege is being extended here through this piece of legislation or whether new privileges may be created through this legislation. You have also asked how that might run counter to section 18 of Constitution, which basically states that Parliament has the privileges that the British Parliament had at the time of Confederation and that it cannot create new privileges. My specific interpretation — not as a legal expert, but as a former parliamentary officer — is that the Senate ethics officer would simply be just another officer of the Senate and therefore at any time he or she would be executing his or her duties would be covered by usual privileges when any officer of the Senate exercises an order of the house or the committee. There you have to make the link, no doubt, as Mr. Maingot will probably tell you later on this morning, with what is a parliamentary proceeding.

Unfortunately, there is no real procedural or legal definition of what a parliamentary proceedings is, or agreed upon with the experts or the courts, for that matter. Those who have written on this — my British colleagues or the Commons procedure manual — define a parliamentary proceeding as anything that flows from an action of the house, a resolution of the house, a decision of the house, or anything that occurs within that process that leads to a decision of the house. Participating in debate is a proceeding, as would be a resolution that stands alone with an order to be executed by an officer of the house.

On the issue of whether we are creating a new privilege, I would opine that, no, this bill does not create a new privilege. It would not be a whole lot different than if you created a new committee of the Senate, hired a new committee clerk, and that committee clerk would be given orders by that committee and covered which by the usual parliamentary immunity.

As to whether the legal framework is adequate and protects parliamentary privilege as we know it in Canada or maybe puts it at risk by putting it within reach of the courts, I think the framework is somewhat benign as it relates to privilege. It is well stated in the legislation that the intention of this bill is not to diminish in any way, shape or form the immunities or privileges of the Senate. It further states that the officer is acting within the context of the privileges and immunities of the Senate, but there is always a risk when you put it in law that the courts will look at it and interpret it against a particular context. It is hard to say in the absolute that a court might not have an opinion that may from that of the legislator at the time that legislation was passed.

As a proceduralist, I have always frowned on parliamentary procedure in statute because it limits the flexibility of the house to deal with an issue in a different fashion at the time the issue is before the house. With unanimous consent, you can modify your rules, and you can probably modify an eventual code of conduct at one single meeting of the house. However, if you have to amend the legislation, you must go through the legislative process, therefore it limits, to some degree, the flexibility of the house. However, then the house makes a choice when it passes legislation, and it should make a choice in full knowledge that that flexibility is somewhat diminished.

The freshest debate that I could find on whether this kind of legislation should be cast in the form of a statute is the New Brunswick debate of last spring. In April 2003, a committee on the legislature was seized with a proposal by Premier Lord for a members' responsibility act, which never really saw a draft bill but a white paper. The Speaker and house leaders there had some concerns about casting the conduct or behaviour of members into law. They have a conflict of interest statute that stands alone. They sought my advice. I gave them my best advice.

However, the committee reported in April. You will find that report on their Web site, if you wish to refer to it. They decided to recommend to the House that it not be cast in a bill; that, instead, it would be a code of responsibilities and behaviour that would flow from the standing orders of the legislature. Therefore, it would stay within the reach of the legislature in order to amend and pronounce thereon.

To see the pros and cons, you have only to read the white paper from the house leader and the report of the committee. They are well laid out there in terms of the risks of one; and, again, the desirability of the other, if you wish to make in statute a profound statement about an ethics code.

The other link you must make to parliamentary privilege is the issue of the code and the law, which gives the Senate, outside the statute, the ability to craft its code, to manage its code, and to let it evolve with the Senate in control of it without having to go through the statutory process. I would advise you to stick to that.

That is fundamentally important for privilege. You can put it in your standing orders. It could be in one standing order with an appendix containing your complete code. That is a resolution of the house. The full coverage of privilege will be attendant to that code, even though the law might also say so. It is important to have both. An administrative code would have to probably rely on the legislation. A code that is crafted in the form of a resolution supported by the house would have that blanket coverage through our traditional parliamentary practice.

There is one ambiguity to which I wish to draw your attention. You may already have an answer to it. I do not know because I have not been able to read all of your prior proceedings.

[Translation]

The conflict arises in the designation of those who hold public office. I note that in English the term used is "officer of the Senate", while in French we say conseiller du Sénat (counsellor of the Senate). Both languages have force of law before the court. It seems to me that there is a nuance in the choice of vocabulary. On the House of Commons side, concerning the responsibility to be entrusted to the ethics commissioner by the Prime Minister, they use the word "commissioner".

The conflict is that the ethics counsellor, the professional ethics counsellor at the Senate, appointed by the Governor in Council, holds public office according to the definition in the law. The person who will be authorized to deal with complaints addressed to the holder of that public office will be the ethics commissioner who reports to the Prime Minister, in the context of public office holders, and he also has the responsibility for the code that will eventually apply to MPs.

I see here a potential for jurisdictional debates, if not for outright legal conflicts before the courts, because the person involved, the member of Parliament or the senator, should the senator be a minister, will not only be subject to the Prime Minister's code, but to the oversight of the ethics commissioner who is also responsible for the House of Commons.

At that point, a senator would no doubt prefer to deal with Senate officials rather than officials appointed by the Other Place or by the Governor in Council with the support of the House of Commons. Since the codes will reflect the political and parliamentary culture of each of the two Houses, they will not necessarily be identical; there will be grey areas and ambiguities that will lead to questions about where the Senate ethics counsellor's mandate ends and where the Prime Minister's ethics commissoner's mandate begins.

I think that we should at least attempt to make the distinction and to raise the question in order to determine why the Senate ethics counsellor is subject to the oversight or is subordinate to the Prime Minister's ethics commissioner.

I think I will limit my comments to these four points.

[English]

I am happy to answer any questions that honourable senators might have.

Senator Rompkey: I wanted to clarify the last point about the jurisdictional conflict. Could you go over that for us again, please?

Mr. Marleau: There are two issues relating to the potential for jurisdictional conflict. First, because both codes of conduct, or codes of conflict of interest — whatever you choose to call them — would be drafted independently by each House, they will not necessarily be the same, both in vocabulary and probably in scope. They will certainly be different in their parliamentary culture as well in their spirit, mirroring the culture of each House. The potential conflict comes when a code, which applies strictly to senators, might have a certain scope, and a senator who is a public office-holder, such as a minister, will have another code, and the two may overlap or there may be a gap. One officer on the Senate side might have a view as might the commissioner on the other side have a view. You might find that that difference of view might find its way into the courts in terms of interpretation.

Senator Rompkey: The only possible conflict would be if a senator were also an office-holder?

Mr. Marleau: Yes. There is another ambiguity I pointed out, senator. In my reading of the legislation, the Senate ethics officer would be subject to review in his role as a public office-holder by the ethics commissioner as mandated by the Prime Minister.

Another small ambiguity, but related to this, is that if you read the French text, which exempts officers of the Senate as public office-holders, then that might capture the Senate ethics officer. If you read the French —

[Translation]

We talk about senior officers and staff. They do not exactly have the same status as what I would call an officer or an agent of Parliament, such as the Clerk or the Gentleman Usher or the Sergeant at Arms of the House of Commons. I recommend that you clarify this distinction.

[English]

Senator Rompkey: I want to go back to the legal framework for the bill. Of course, our code will be not by statute, but by order of the Senate. However, the ethics officer — or whatever the name is that is applied — will be in statute.

I want you to comment on that, in the context of the two chambers, the House of Commons and the Senate. The House of Commons officer will be in statute. My understanding is that most other similar officers, in Canada, in legislatures, are in statute.

I have heard the debate and the testimony on both sides as to whether there can be an application to the court, along with the danger. You have alluded in your remarks to the risk.

However, with your knowledge of this institution of Parliament with its two Chambers, I want to you comment on the advisability of having the Senate ethics officer in statute as the House of Commons ethics officer is in statute. The two chambers work together and are perceived by the general public to be "the Parliament." I want you to comment on that.

Mr. Marleau: We have a long-standing practice of house officers being in statute. I am one example as the interim Privacy Commissioner who is, in statute, appointed by the Governor in Council and ratified by Parliament. The Clerk of the House of Commons and I believe the Clerk of the Senate find their genesis in the Public Service Employment Act. They are appointed by the Governor in Council. In the case of the Commons, it has not necessarily been ratified, although there is a new standing order that has yet to be exercised to that effect that would see it ratified. There are extensive consultations on the appointment of the Clerk of the Senate. The genesis is in a statute, which is not the Parliament of Canada Act. It is a long-standing practice.

I do not see any great risk as to the standing of the individual as an officer of the house. The statute makes it clear. The Senate and House of Commons passed it and, therefore, they would have the status of officer of the house with those immunities, which are expressly stated. In the case of the Senate ethics officer, you have a clearer statement in law then you have in the case of the Clerk of the Senate, who has a practice attached to his or her relationship as an officer of the house covered by the privilege and immunities whenever he or she is acting on behalf of the Senate or a committee.

I have no discomfort being in this legal framework. I am not a lawyer and certainly defer to the constitutional expertise around this table, but section 18 of the mother statute, which is the Constitution, and section 4 of the Parliament of Canada Act, which deal with the privileges and immunities, are permanently before the courts. Any time Parliament invokes it, someone may go to the court and ask for an interpretation as to its necessity or its potential abuse.

That was the situation in CBC v. Donahoe. The court said that the Charter did not apply to access of the media to the chamber. However, the court did hold its right to review at another time the use of parliamentary privilege in situations where it might rub against the Charter. The matter can always be before the court.

Senator Rompkey: Is it fair to say it could be before the courts whether it is in statute or in orders?

Mr. Marleau: If it is not in the Parliament of Canada Act or in the Constitution, a specific order of the house cannot be reviewed by the courts and there is plenty of statute law there. When you put orders of the house into statute, you put them clearly in the reach of the court and you cannot, as a parliamentary institution then invoke privilege. You give up your privilege at the moment you pass it into law.

Senator Grafstein: I am glad Mr. Marleau concluded his testimony by saying exactly what some of us have been saying: If we want to have a separation of powers and make the privileges sacrosanct, still subject to public scrutiny, the best way to do it is through standing orders of the Senate. That would allow us the flexibility to improve or modify those standing orders as it applies to that particular officer and the scope of that officer's work.

If we decided as a question of principle to proceed on that route, would it also be better to make an amendment to the statute that says that any proceedings pursuant to the resolution would be a proceedings of Parliament? There was a great debate in the House of Lords about that and the strong recommendation was that they put in an amendment to a statute to suggest that it be a proceedings of Parliament. That adds another layer of comfort to ensure this it is a matter within the confines of the chamber that has responsibility to the public for its operations. Are you familiar with that?

Mr. Marleau: Yes, I am familiar with it. It had to do with the registry of interests in Great Britain.

It is one of those clauses or amendments you can make in the bill for greater certainty to influence the court's interpretation. It will not be the first time that parliamentarians craft legislation to influence the court's eventual decision on a matter. A large body of our law is designed to craft the legislator's intent into legal language for the Justices some day to see the clarity and reasoning that Parliament brought to this.

The bill states that the ethics officer "shall perform the duties and functions assigned by the Senate for governing the conduct of members of the Senate..." I would interpret that to say that those will flow as proceedings of Parliament, but that may be too fine a point.

The Chairman: I would point out that clause section 20.5(2) reads:

The duties and functions of the Senate Ethics Officer are carried out within the institution of the Senate. The Senate Ethics Officer enjoys the privileges and immunities of the Senate and its members when carrying out those duties and functions.

Senator Grafstein: I do not quarrel with that. I do not think that you understand the drift of my conversation with the witness. I am saying that for greater clarity, as the House of Lords pointed out, this would be a better way to proceed. It raises it to another level of clear understanding. There is an implication there, but better drafting would be, for greater clarity, that "...these duties would be considered proceedings of the house." That is the purport of the witness.

The Chairman: Senator Grafstein, I will ignore your implication that I do not understand what you are heading for.

Senator Grafstein: I am familiar with that section. I am asking this from the witness. It is not meant to be sly in respect of your own views.

Let me return to other ambiguities that I see. You have raised a number of them between the two chambers. There is another ambiguity that I find. There was a shift at a particular drafting stage to move to two regimes. The rest of the legislation did not seem to follow that.

I will give you an example. You pointed to the conflict possibly between the codes under the Senate versus the Prime Minister's, because it is labelled as such as the Prime Minister's ethical principles, obligations and — I forget the other word. As it presently is crafted, senators have the right to send a letter to the proposed ethics commissioner with respect to any public office-holder, but particularly public office-holders in the cabinet — the parliamentary secretaries and so on. However, that letter then goes to the ethics commissioner and essentially is not a matter for the Senate to deal with at all.

Would it not be better to be absolutely clear that the while any senator can raise an issue by letter of a public office- holder within its chamber — I have no problem with that. However, for us to have the power to raise a question of a public office-holder that is subject to confidence in the other House seems to me to be stretching the separation of powers between the two chambers. Do you have a view on that?

Mr. Marleau: I have a view, senator. I do not know if I can qualify it as better or worse. It is important to maintain the autonomy and the integrity of the two constitutional entities of Parliament without having what I would call "risk crossovers" of one officer appointed by another entity having some jurisdiction on the conduct or behaviour of a member of the other House. I would agree that greater clarity about that relationship — and that is probably doable by way of minor amendment — should be in the legislation. It may not happen for 100 years, but when it does happen, and it likely will happen, it will be somewhat of a constitutional crisis between the two Chambers.

The difficulty is that where there is a constitutional crisis between the two Houses and it is administered by one or the other house, you have the means to converse with the other house by way of address or message and make your views known and attempt to resolve the issue. Here, you will have an officer appointed by the other house acting on behalf of the government over potentially the conduct of the members of the Senate, and you do not have the same relationship with the government that you have with the other House. Your address there is as a legislative assembly versus the government on what might be a jurisdictional issue between the two Houses.

Senator Grafstein: Again, looking at the purity of separation of the two officers, we have this anomaly that the removal of the officer is Governor in Council, purely.

Mr. Marleau: On address of the Senate.

Senator Grafstein: On address, but it is removal. It is a power of the Governor in Council. The interim officer is appointed by the Governor in Council, and the remuneration is by the Governor in Council, purely.

Is that not again inconsistent with the process that is in the bill itself, which is in effect to separate the two offices? At the end of the day, you get appointed, but if you have to get kicked out, you go to the other place and one man makes the decision in those three categories, which is removal, appointing someone in the interim for whatever term, and his daily bread. He who pays the piper calls the tune.

Mr. Marleau: It may be inconsistent in the context of the spirit of trying to achieve within this piece of legislation that kind of autonomy for both Houses, for that matter. It is not inconsistent with a lot of what is going on currently in statute law in relation to the Governor in Council appointing the clerk and the sergeant at arms. The Clerk of the House of Commons serves at pleasure, not even removed on address. He could be removed unilaterally by the government.

Senator Grafstein: I understand that. However, we are setting up something brand new. I understand about the clerk and the tradition of the speaker and so on, and there is a movement afoot to change that. Whether that will be acceptable is another question.

My point is that this is a brand new situation. In effect, we say on the one hand we are trying to accomplish separation of chambers — which is laudable and accepted, in part, in the bill now, but it is a halfway measure. It is really not a true measure. That is my point. It raises the spectre of being independent, but in truth it is not.

Mr. Marleau: I cannot disagree with the honourable senator on his position within the context of the bill. You can certainly perceive that contradiction, if you like. The other small contradiction is than, on the removal, the language in the bill says the Governor in Council "may" remove on resolution of the Senate, which leaves you with the possibility that somehow the Senate might express its desire to have the ethics officer removed and the Governor in Council not do it.

Senator Grafstein: Exactly.

The Chairman: I would point out that the House has just tabled its final code of conduct, and copies are being made and will be here. We will circulate them shortly.

Senator Joyal: Maybe I should state my conflict of interest with Mr. Marleau. In our other lives, we worked together in the other place.

I am happy that you raised that difficulty created by 72.06. I mentioned it in my speech at second reading. I think it is an important element, because we should maintain as watertight a compartment as possible that should not impede the function of the ethics counsellor. That should be the criteria. The criteria are that we should have an ethics counsellor, but in its operation, we should not do anything to jeopardize some kind of very different functioning of the two Houses insofar as we are not making his life impossible and ineffective. That is important.

In the bill, as you pointed out, there are some inconsistencies in the wording. I am happy that you share my opinion. I underlined them. For example, there is an inconsistency between the word "officers" and "cadre" in French. It is the same concept between "officer" and "conseiller."

[Translation]

A counsellor does not have the same function as an officer. The terms are not synonymous in everyday speech, nor in legal terms. Would it not be a good idea to clarify certain elements in the bill to put the two notions on the same footing, to make them equivalent? If we want to give the ethics counsellor the status of an officer there should be a specific clause to that effect.

Because as things stand now, we are dealing with two terms, with two concepts at the same time. The French text refers only to a conseiller and the reader will infer that the role of a counsellor is involved, whereas in English the text states that the person is an officer.

[English]

It is also a parliamentary officer.

[Translation]

In my opinion, the two notions are being confused in the terms used in the bill as it stands. Do you have an opinion to express on this matter?

Mr. Marleau: I asked myself that question, Senator Joyal. I did not have time to read all the reports of this committee, especially the first version of the bill, and I did not want to presume that we were necessarily dealing with an element of confusion.

I also thought that the Senate perhaps wanted a different title, since the functions of this counsellor or officer will derive specifically from the code. The code will determine the scope of the responsibilities and powers that will be granted him or her by the Senate.

You could have a counsellor with that title, who, pursuant to the code, would have the same powers or less power if the Senate so decided. The most important element is clause 72.06, which through a list of exemptions attempts to arrive at a definition of the parliamentary officer. This is less clear. If you want this individual to enjoy the same immunities as the Clerk of the Senate, as prescribed by law and pursuant to parliamentary practice, I think it would be better to say so expressly in the act.

[English]

Senator Joyal: Could we come back to the issue of proceedings of Parliament? My understanding is that it is under the heading of the inherent privileges of the House of Parliament, that you deduct the privileges under which the ethics commissioner would be functioning. If I can refer to your own book — and you might know it by heart — on page 74, you say, "...the courts have, with few exceptions, confined the scope of this immunity to the traditional role of Members as debaters and legislators in Parliament." If I understand your proposal, you give a very specific definition of the proceedings. It is the member in his capacity as legislator and debater.

Mr. Marleau: Yes, absolutely, and acting in that context. Moving a motion, participating in debate, moving an amendment, voting, and resolution are all proceedings of Parliament.

On page 72, I quote an esteemed colleague from Great Britain who tries to explain "la portée" of proceedings in Parliament to the officers, and he states: "Officers of the House take part in its proceedings principally by carrying out its orders, general or particular." Therefore, the officers of the house do not partake, if you like, in the proceedings in the same way as the legislator does, but they do so at the behest of the legislator as it relates to the legislative responsibilities and duties.

Senator Joyal: They are protected by privilege, essentially, when they execute orders of the house in its legislative capacity as a collective body. I will not certainly be telling you anything new when I quote the Erskine May, when it says: "The primary meaning of proceedings, as a technical parliamentary term, ... is some formal action, usually a decision, taken by the House in its collective capacity." Therefore, it is when it legislates. It is when the proceedings are on.

The interpretation given by the court has been restrictive because those two officers have inherent privileges from time immemorial and they are in a very specific class of people. In other words, I do not think we can extend the privileges simply on the basis of a statute because we would create another officer. Suppose it would create an officer for the embellishment of Parliament, for instance, and say he acts directly under the order of the house. I think the role and function of that officer has to be essentially linked to the action of the house in its collective capacity. When we ask for someone to become a counsellor and give advice to individual members on conduct, it is not the house in its collective capacity that is acting; it is a person-to-person relationship. It is not really the house in its collective capacity.

I think that this question is very much open. Certainly, it is not, in my opinion, as clear as we would like to have it, to be sure that what we are doing is essentially meeting the objectives that we want to achieve.

Mr. Marleau: I entirely agree with you, Senator Joyal, regarding the house acting as collective capacity and the role of the individual linked to a proceeding. There are administrative officers of the Senate who are not at all covered by human resources, who hire people for you on your behalf, and would not necessarily be covered.

Linking it, what would be important is the code. If it is adopted by way of the standing orders, those are proceedings, and there will flow — without a doubt in my mind, if that is what transpires — the coverage of a parliamentary proceeding, and the limited privileges, as they applied in 1867, would be extended to that officer.

Senator Joyal: Again, in the definition of the proceedings — and I am quoting here the U.K. joint report on the privileges of Parliament, paragraph 101 of the second chapter: "A casual conversation between members in either House, even during a debate, is not protected." Two senators are sitting in the house; they chat to one another on a bill — they might discuss the bill, we do not know. That conversation is not protected by privilege, even though it has occurred in the house.

The ethics counsellor will not be acting on the floor of the house. The bill provides that he will have an office and personnel and whatnot — an administration separated from the house. However, he will not be acting in the legislative activities of the house; he is outside that context. On the basis of the decision of the British court, it is very difficult to sustain, without doubts, that the conversation between the ethics officer and the senator outside the house is privileged, when the conversation between the two senators on the floor of the house during the course of the sitting of the house is not protected by privilege.

Mr. Marleau: For privilege to apply, the activity need not occur during a proceeding of the house. It can apply as a consequence of the proceedings of the house, such as an order of the house to do something — to send someone to arrest them, summons them and bring them. The sergeant at arms in the Commons cannot be pursued in civil law if he arrests someone on the basis of an order of the House. He is not in the House when he is executing his or her duties.

If the Senate ethics officer's authority to act, both specifically and generally, flowed from the standing orders, or an order of a committee — because there may be an inquiry through a committee, and you charge the Senate ethics officer to do something — in my view, privilege would apply without a doubt. In a court of law, that is another story.

Senator Joyal: There is another inconsistency that we must reconcile. It is quite a clear doctrine that privileges are created by statute; they are not created by resolution of either House. Even though there is a similar resolution passed by the House of Commons and the Senate ordering something, this is not a privilege. It is not the way to create a privilege. There is long jurisprudence on that. A privilege has to be created by legislation. If the role and duties of the commissioner are not defined in a statute, but in a resolution of the House, as standing orders are, are they not by their very nature not privileged?

Mr. Marleau: I am certainly not going to argue with a person with your legal experience, expertise and background. However, I would think that in the context that you just described, the court would have to read the statute and the code and the orders of the House in order to arrive at a decision as to whether privilege did extend in that particular situation or not.

There are situations where members — senators and members of the House — have to invoke privilege before the courts because of certain proceedings in the House, and the courts have to go there to satisfy themselves of that. Therefore, I would think the courts would look at what the house has charged this individual to do, even though the statute may be silent about what it is he or she has to do. However, the proposed statute does say he would be acting under the guidance and direction of the Senate and a committee thereof.

Senator Joyal: I do not want to take all the time, Madame Chair, so I will finish with this question. Let us take the cases of Telezone and Ainsworth Lumber, two recent cases that the House is appealing. We are not talking in the abstract; these are real cases. In the cases of Telezone and Ainsworth Lumber, it was quite clear that the minister alleged that they were covered by the privilege under the rules of the House. The court looked into that and said, "no." They looked into the rules and when the Parliament was sitting — because it was a 40-days kind of immunity. They looked at the rules governing when the House sits and when the House resumes — because the House of Commons works on a fixed calendar — and decided that it is a resolution of the House, and that did not protect at all the minister.

The rules, to me, are not a watertight kind of protection that is as absolute as one would like to think in proposed section 20.5 of the bill. In my opinion, it would be much better if we were to mention specifically that it is within the proceedings of Parliament.

Mr. Marleau: The Telezone case is still before the courts. The final court of the land has not yet decided it. I am a bit familiar because I read the first court decision. I have some logical difficulties understanding how the court reached its decision under the rules.

Using the rules, in this context and that of the case you raised, could lead you to the conclusion that the judge might have reached. However, the issue was not about the rules but rather about the collective rights of the House to have control over its membership at all times and its attendance when it so requires. I do not think we fully understood the difference between an adjournment within a session and a prorogation within a Parliament and dissolution within the life of a legislature. The collective rights of the House are somewhat progressive, if I can put it that way, much like progressive discipline applies sometimes.

In that particular case, it would be premature to use it as a reference point. The Supreme Court of Canada will look at the larger issue — the collective rights of the House as compared to the member's status on July 2 versus June 30.

Senator Joyal: The court used the rules to decide the status on July 2 versus July 4.

Mr. Marleau: That speaks to my point, Senator Joyal, whether you cast this in law, there are means of getting these issues before the courts and the courts will look at them. Ultimately, you hope that the courts will respect what I call the "constitutional divide" between Parliament and the courts when it comes to privilege.

Senator Joyal: We all hope for the same.

Mr. Marleau: We hope.

Senator Smith: I want to speak to the conflict that you mentioned. When there are two codes, would you simply not have to comply with both? There would not necessarily be a conflict in that case. In other words, the bar would perhaps be a little higher.

Would it not be the same situation as a minister in the House of Commons who has to comply with both the Prime Minister's code and his or her other code as a minister? Would there not be a higher bar? That would be the case, I assume, for senators, excepting, perhaps, the Leader of the Government in the Senate. There might be two codes with which you have to comply and if you did not comply with them both, then you would have a problem.

Mr. Marleau: Yes. It reminds me of the anecdote about former President Grant when he was thinking about writing his memoirs. He sought the advice of Mark Twain on what he should do because he was concerned about divulging too much. Twain's reply was that the president should just tell the truth because those who knew him would believe him and those who did not know him would be astounded.

The highest bar one would expect for a parliamentarian, whether a public office-older, would be the bar that a parliamentarian would gravitate to. The problem is human dynamics, however. One in difficulty, who may be falsely accused of a situation, would seek whatever recourse is necessary to defend oneself. If there were a difference of opinion between the Senate ethics officer and the ethics commissioner, to whom would that senator turn? Most likely the senator would seek legal advice and maybe even force the matter of jurisdiction before the court in order to clear his or her name, having been, rightly or wrongly, labelled as having violated one code or the other, or both.

When you set up two codes that are administered separately, then a judge does not have to read two laws to try to reach a conclusion to the matter. A similar situation is that we have a Privacy Commissioner and an Information Commissioner who could do both jobs. There has been debate lately whether the Information Commissioner should do both jobs. I have argued against that because, inevitably, the privacy issue and the access issue, while they can be read together, have fundamental issues that have to be addressed such that one individual ought not to be in the position of deciding on one side or the other. Inevitably, if two officers are interpreting the behaviour against two separate codes, some kind of jurisdictional issue will arise.

Senator Smith: It somewhat goes with the job, perhaps. I know that our former Defence Minister to this day feels aggrieved and feels quite strongly that the decision of Mr. Wilson in respect of his situation was wrong and unfair. Without getting into the merits of it, no one puts a bazooka to anyone's head and says you have to agree to go into cabinet. If you decide you want to do that, there are certain things that go with it. Having to live by the rulings, which you know in advance, goes with the office. It just seems to me that it is not a novel situation.

Mr. Marleau: The idea of an ethics commissioner on the Commons side may be less novel than the idea of having one on the Senate side. There are two Houses — two legislatures — that have, under parliamentary privilege, control of their membership now being potentially reviewed by an officer appointed by the other House. That is the jurisdiction issue that I see, apart from the fact that a senator could get separate, different advice, or a lack of advice, from one or the other that could eventually cause some difficulty.

Again, your suggestion that we should gravitate to the highest bar is probably the honourable thing to do.

Senator Smith: You raise a question. If I were a member of the House of Commons, I would not be totally comfortable with the way the House has dealt with it. However, senators did the right thing by saying that they will have their own person and not sharing one with the Commons, with the administration or with the government — Howard Wilson reincarnated by statute.

Having said that, we would not deliberately second-guess the elected body that made the decision — with opposition support — even though this was pointed out to them and it did not seem to register with members on their committee when they were examining it. It is my view that that may be a small conflict but that is the road they chose to take and I will not second-guess them.

Given your background, do you have a comment on that?

Mr. Marleau: It is not my place to second-guess the wish or the will of the House of Commons or the Senate.

That relationship is more manageable on the House of Commons side because they appoint the ethics officer. It is less manageable when the Senators are public office-holders and accountable to an ethics officer appointed by the other place, albeit working under the direction of the Prime Minister and the Prime Minister's code. That is the only jurisdictional issue that causes me, as a parliamentary officer, concern.

Senator Smith: It is like a pole-vaulter having two bars to jump at once when one bar may be a little higher than the other.

Mr. Marleau: The judge is appointed by only one holder of the bar — the top bar. That is the distinction I am trying to draw.

Senator Fraser: It seems to me that shared jurisdictions are very Canadian. As I listened to you, I was recalling our own family's efforts a couple of times to bring in foreign people to Canada. We live in Quebec. We had to meet two different sets of immigration criteria, and fill out two sets of forms and go through two sets of interviews and all those good things and the rules were not identical. However, you had to be sure you qualified under both.

I cannot imagine a situation in which one officer would be ordering a parliamentarian to do something that the other officer was advising against. It would be more a question, as you suggest, of gaps. With gaps, it seems to me, you meet the highest standard and get on with it.

That said, when we were preparing our interim report last spring, we discussed at some length the matter of the status of our ethics officer and who names that person and under what conditions and what not. At that time I thought — and I would like your views on this — that it would be extremely difficult to have a Senate ethics officer who was appointed only by the Senate, with no outside input at all. In this case, the outside input being the Governor in Council, particularly if that person's term were renewable. In that case, you would be asking that person to sit in judgment on his or her employers. That is a very difficult thing to ask anyone to do in human terms. It may not difficult when a case is black and white, but it is the grey cases that would cause the difficulty.

I thought at that time that it was useful to have another body — the Governor in Council — involved in appointing or reappointing this person in order to remove some of that terrible burden of the only people being responsible for my future paycheque being the people whose conduct I am required to examine. Do you see any method, any logic in my sense here?

Mr. Marleau: I see a significant amount of logic in the latter part of your comments and question.

On the first part, though, about joint jurisdictions, in a former life as an Officer of Parliament, I did have a look at many joint jurisdictions and possibilities between the two Houses — joint security as an example, or a series of joint efforts that we do that we could look at to improve efficiency and efficacy. When you get down to these kinds of issues, I would never advocate a joint clerk for the two Houses. That is what you are looking at when you are talking about Senate and House of Commons ethics advisers.

My colleague, Paul Bélisle and I, have had some differences of opinion on whether an amendment was admissible in one House or the other. These issues arise. I do not claim to be right; I do not claim he was wrong. We differed in opinion and the Houses got our best advice against the parliamentary practice that belong to each House and is somewhat different.

If I left the impression that I was against joint jurisdictions, I am not, per se. At this level of advice, each House requires someone who will be in a position to better understand the parliamentary culture in the House.

Senator Fraser: As do I, do not get me wrong.

Mr. Marleau: I did not want to mislead the committee members in any way.

As clerk of the House, I will give you my personal experience. I was appointed by the Governor in Council at pleasure. The practice was to consult with the opposition, but there was no resolution of the House. Whenever there was agreement, it was simply announced by the Government House Leader or the Speaker. There were moments where I felt great relief and safety with the fact that the House could not remove me. There were days where my advice was not what the House wanted to hear, or the House interpreted the Speaker's particular position as being on the advice of the clerk. I heard their displeasure frequently.

I always strove not to have the displeasure come from both sides at the same time, but I do not think any officer can serve the House, whether appointed by resolution or by the Governor in Council if he or she does not have the confidence of the House. That is what is attempted in the statute, that, yes, the Governor in Council will appoint, but only after resolution. The removal will be on resolution, even though the word "may" is just a drafting issue. I cannot imagine the Governor in Council not removing a senior ethics officer when the Senate has so resolved.

There is a plus and minus for both types of status. There might be slightly more employment and execution of duty security in the fact that you are appointed by the Governor in Council, and a certain autonomy in making the hard decisions in advising the Senate. Anyone who serves at that level knows the eggshells one walks on. That is a question the House would deal with very quickly if there were an issue.

Senator Fraser: It seems to me that if you combine proposed section 20.5(2) with the famous 72.06(c)(ii), that pretty well ensures our ethics officer would not be subject in any way to the public office-holder's rules. Am I right about that?

Mr. Marleau: Senator, I must disagree with you. As I read the two sections together, the one says that he is covered by privilege and immunities; the other one tries to make him an exception from being a public office-holder. He clearly is a public office holder because he is appointed by the Governor in Council.

Senator Fraser: If he is exempted, would that not address your point?

Mr. Marleau: Yes, but the language in the exemption does not point to him as an officer of house. It refers to him as an employee of the House or the Senate. I refer to the French version.

Senator Fraser: I understand the point you made at the outset. Could we look for a moment at the English version?

Mr. Marleau: Again, the word "officer" is used in many ways in English as well and I am uncomfortable. If it said an "officer of the House" — of either House — then I have clarity. However, an officer may be a sergeant in the constabulary. We refer to them as officers. Traditionally the word "officer" is used generically. The concept of an officer of the House, though, in parliamentary practice is clear.

Senator Grafstein: I would like to turn to another subject. You will recall, chairman, that we said in our report that the committee intends to give further consideration to the relevance of the Privacy Act, the Access to Information Act and the Federal Court Act of the activities of the ethics officer under the rules.

Since we have here an interim officer on privacy — I do not intend to ask a privacy question — I intend to see if he has knowledge of the operations of the Access to Information Act and whether or not that act would have application to the activities of either the commissioner of ethics or, in our case, the officer appointed by the Governor in Council, but confirmed by a majority in the Senate?

Mr. Marleau: I am familiar with the access to information provisions, but I think the intent of the legislation was to exempt completely the application of both statutes in the context of the activities of the ethics commissioner.

Senator Grafstein: How so?

Mr. Marleau: By withdrawing him from the schedule in the statute.

On the privacy side, we looked at this as we look at all bills on the privacy commission that come before Parliament, and we have no privacy issues to raise. If Parliament chooses to exempt whatever agency or officer from the statute, that is Parliament's will and we apply it.

The idea is to try to ensure that the confidentiality of those exchanges will be respected and not be accessed directly under Access to Information. You might want to talk to Commissioner Reid about that to satisfy yourselves.

Senator Grafstein: There is an interesting provision in the act as it applies to office-holders but not to ordinary members of the Commons. I still do not fully understand whether the commissioner, and ultimately our officer, will be a counsellor or a judge.

Let us start with the House side. In that area, there seems to me to be three roles that the commissioner for ethics in the other place has. One is as a counsellor/adviser to member public office-holders and in that category, there is a protection of confidentiality expressed. Then you move to the commissioner who advises members of the House who are not office-holders. I do not find, although it may be somewhere, the confidentiality aspect there. Then we have no provision with respect to confidentiality on the Senate side, for senators.

When this officer, who seems to be hybrid, has a concern, he is obliged to stop his investigation and do something. I am not sure what he is supposed to do. Therefore, I try to understand whether this officer — the commissioner or our proposed officer — is in effect a counsellor in the traditional sense of counselling conformity, or is, in effect, exempt from being a counsellor and somehow, in midstream, becomes something other than a counsellor and, therefore, when a member of Parliament speaks to the counsellor, the conversation is not exempt by confidentiality.

I am trying to read the face of the bills. Someone may have a better way of analyzing it, but I am having difficulty with this hybrid officer in both categories. Please help me, if you can.

Mr. Marleau: I will try. For the Senate ethics officer there is the statement of confidentiality in 20.7(2), which reads, "The Senate Ethics Officer may not include in the annual report any information that he or she is required to keep confidential." There is a presumption that there is much to be confidential and that would be at the direction of Senate whether it adopts its code and the duties are set. Whether it is a counsellor, a judge, an adjudicator or a mediator, any of the functions that you may wish to give, it would flow from what I hope is a standing order and direction from a committee. That could be clarified at the level of the code and accountability of that office as well to the Senate.

As for the ethics commissioner acting in the capacity of giving advice or direction to members of the other House, there is, I think, in that section no direct statement of confidentiality. I believe you are correct there. However, in his functions under public office-holders there is a statement of confidentiality at section 72.08(6). I am not a lawyer. You decide whether it applies to both, since it is the same individual. It states that he or she, "...may not include in the report any information that he or she is required to keep confidential."

It may be that the drafters felt that putting it at the end of his or her responsibilities captured both roles and is bound by it.

Again, a certain amount of the detail will come from the Prime Minister in that capacity and the other amount will come from the code adopted by the Commons and the direction of his or her political masters on that.

Senator Grafstein: I take it you would agree with me that in the drafting there appears to be an inconsistency between a clear-cut exemption for confidentiality as it applies to office-holders but not to members of Parliament, and a precatory confidentiality as it applies to senators and then somewhat differently if the senator happens to be an office-holder.

Mr. Marleau: Yes, I agree. I think it is a little clearer on the Senate side. If I were a member of the House of Commons, I would be looking for more clarity.

Senator Grafstein: I have not had a chance to look at the question of the Parliament of Canada Act. However, I am interested in that because I recall that it was a matter that had very difficult consequences for a former senator before I came to this place. I was told about that when I came here. It was very detrimental to his long-term record. It practically destroyed him.

Prior to the time that I came here, there was a problem with the act of Parliament. The reason for that is that there was a difference among the courts on whether a senator was an office-holder or an "official." The courts almost referred to the senator as an office-holder as opposed to an official, with those consequences.

Words, to my mind, in matters in this area are very sensitive to consequences. When I first came to the Senate I was alerted to that, and then I saw it played out before us when it affected another senator.

Turn with me to the provision to exempt the Parliament of Canada Act as it applies to a government contract. We have not seen the new code, but it leaves a vacuum. As it currently stands, a parliamentarian cannot directly or indirectly have a benefit of a government contract. Who supervises that in its present context?

Mr. Marleau: I will answer from my experience on the Commons side. In respect of your question on the sections of the statute, when a member is found to be in such a relationship with the government, my recollection is that the seat is declared vacant when that becomes known. You may want to seek the advice of your law clerk. The House supervises that under the statute and can use its own disciplinary powers when the facts come to light through the normal disciplinary process.

I assume here that we are trying to remove the statute clauses that apply and that the codes, as they are drafted, will then deal with the specific issue of contracting with government or contracting in general.

Senator Grafstein: Contracting is different. There is a difference between a contract for money and a contract, if you follow. I want to deal with the contract for money for the moment. The contract item is little more diffused. I have not got into this matter before other than looking at it when I first came to the Senate and being apprised that one should avoid this.

Mr. Marleau: Yes you should avoid it because people have found themselves over time, almost by accident, involved in such a relationships and others have been charged.

Your first comment about the definition of a public office-holder when we look to senators or Members of Parliament is really an interpretation of the Criminal Code. The interpretation to which you referred is section 119.

Senator Grafstein: There appeared to be an inconsistency between the two. I point this out because sometimes you can flush through the inconsistencies and other times they have serious consequences

Take us through that step, please.

Mr. Marleau: The next step is dealing with it expressly in the code for both Houses — a separate code for each House. You would have to deal with it since it is being lifted out the Parliament of Canada Act.

Senator Grafstein: You read the legislation as I do — that that is to be replaced. Explain how it works on the House side because the House is more statutory driven than we are. In other words, it appears to be our intention — subject to changes — that we will have a code that will be purely standing orders, not statutory.

Mr. Marleau: Yes.

Senator Grafstein: On the other side, it still remains as an inconsistency. If it remains in a sort of a hybrid mode on the other side and it relates to the act of Parliament, will that have consequences for senators?

Mr. Marleau: I am not sure I understand what you mean when you say, "It remains in hybrid mode on the other side." I have not seen the new code just tabled. I assume it has dealt with that so it will form part of the code administered by the ethics commissioner at the direction of the committee that the House will select.

You are right that on the Commons side there is larger body of law because the Board of Internal Economy is a legal body with powers to make bylaws. They make bylaws about the use, funds, services, and premises that are made available to members of Parliament, of which an abuse thereof could be read in context of the Criminal Code and lead to a criminal process. It has in the past.

However, I do not know that there is a hybrid or a statutory impact on the code as a consequence of that. I think that is what you were getting at.

Senator Grafstein: It is in a way. I am trying to understand it. Forgive me, chairman. I read this and I was confused. We will end up with a situation where the Criminal Code is intact. We are not touching the Criminal Code. We are only applying an overlay to the Parliament of Canada Act that replicates what appears in the Criminal Code dealing with government contracts.

Could you remind us what the Criminal Code says with respect to government contracts?

Mr. Marleau: It is outside my field of expertise. However, as a result of the review in the 1990 period of the Parliament of Canada Act, that entire issue was very much at the forefront of the debate. I do not think that the Criminal Code says anything specific between Members of Parliament and senators in a relationship of conflict of any kind. The definition of public office holder —

[Translation]

In French, the debate is quite extensive. The French version of the Criminal Code uses the word fonctionnaire.

[English]

Most members of Parliament do not see themselves as a "fonctionnaire." The debate was around that. The court, in one particular case, said that charges could apply because they were public office-holders within their interpretation of the scope of the Criminal Code. To my knowledge, that has not been clarified.

Senator Grafstein: It is clarified here?

Mr. Marleau: No, it is totally silent here.

The Chairman: Perhaps, since I have the advantage of having the code that has been tabled here, I will read out a part of it to the senators. Confidentiality is mentioned in several places. One place is in proposed section 20(3) where it notes that "The Ethics Commissioner shall keep the statement confidential." That is in reference to at statement made to him or her by a Member of Parliament. There is another point in 26(2). I am having this copied for all.

Senator Joyal: Mr. Marleau, would you look at proposed section 19(2) and you tell me how you interpret the third and fourth lines in this bill? That is at the middle of page 14.

The Chairman: It is the consequential amendments portion of the bill.

Mr. Marleau: It relates to service of process. It seems pretty clear to me by registered mail.

Senator Joyal: It reads:

In addition to any method of service permitted by the law of a province, service of documents on the Senate, House of Commons, Library of Parliament, office of the Ethics Commissioner or office of the ethics commissioner under subsection (1) ...

Senator Joyal: I do not understand what is the office of the ethics commissioner, which is the office of the House of Commons, because there is no ethics commissioner provided for the Senate in the first part of the bill, and the office of the ethics commissioner under subsection 1. When we read subsection 1, we find that there is "the Senate Ethics Officer or Office of the Ethics Commissioner." I wrestle with that, and I think there is an inconsistency between proposed subsections 1 and 2.

[Translation]

Mr. Marleau: The joy of all bilingual countries is that the French seems much clearer.

[English]

Senator Joyal: What do we have in French?

[Translation]

Mr. Marleau: French makes no distinction between the two. It seems to cover the two agents from both paragraphs. There are words that are redundant in English.

[English]

Senator Joyal: However, the other one is not covered.

[Translation]

Mr. Marleau: I think that if you remove the reference to the ethics commissioner as such in the English text, you cover both.

[English]

Senator Joyal: Yes and no, because the word "commissioner" is reserved.

[Translation]

Mr. Marleau: Yes, if you remove it completely as they have done in French.

[English]

Senator Joyal: I am not sure because in one concept, we have "commissioner." In the Senate, we have an ethics officer. It is either one or the other, or the two, but not two times commissioner.

Mr. Marleau: I think that would be totally outside my expertise. It is a drafting issue, and you should speak to someone qualified in drafting legislation. As I read the French, it seems to be captured in the blanket statement. Maybe there was intent to make a distinction in the English text, but I think it is a drafting issue.

Senator Joyal: Thank you.

The Chairman: Thank you very much, Mr. Marleau, for being patient with us. We have appreciated your evidence before us here today.

Honourable senators, we welcome Mr. Joseph Maingot.

Mr. Joseph Maingot, As an individual: Madam Chairman, and members of this august body, I received a call yesterday from your distinguished gentleman who said that your concern was the effect of Bill C-34, the legislation to provide an ethics commissioner for the Senate. Because this legislation and all legislation is subject to judicial review, he was concerned about my views in respect to something coming before the courts dealing with this. Am I correct? Is that generally what you had in mind? If not, you can direct me.

The Chairman: If you want to start with that.

Mr. Maingot: I am in your hands.

The Chairman: That is a concern of quite a few members. From there, perhaps we will proceed by questions, so you can answer the members' concerns directly. That is a concern of some members.

Mr. Maingot: It is an elusive subject. In a nutshell, as I understand it, the legislation provides that the Senate would set out the rules dealing with the ethics of the senators. In that case, it is an internal matter of the Senate, and the courts have historically said that when you are dealing with the internal proceeding of the House or the Senate, you are dealing with a constitutional power. The courts have always been very deferential to what the Houses of Parliament do and they would not step in except, because the courts interpret, to agree whether the privileges of Parliament do exist or not. Subject to a decision that would be counter to the Charter, I would think that the members of the Senate would be entitled to make the rules dealing with ethics as they see fit. Once they are appointed, of course, the Constitution divides. You got into that with the senator who is living in Mexico.

As I say, in a nutshell, the courts would not intervene when you are talking about an internal proceeding of the Senate.

Senator Joyal: I would like to come back to what we consider the basics. These include, as you know and as you have written in your own book, section 18 of the Constitution, which provides quite clearly that the Canadian Parliament can enact its privileges, provided they are consistent with what exists at the same time in the British House of Commons.

You have considered in your book that section 18 of the Constitution has been the enabling section, the section that gives to Parliament the capacity to enact these privileges. As you have written, that is what Chief Justice Lamer himself has recognized, and you quote Chief Justice Lamer at page 333, where he recognized that section 18 is the enabling section. That is the section that gives Parliament the power.

The Canadian Parliament has used that power, as you point out. It used it very early, in April 1868, the first month of its existence, to enact some privileges. We find today that whole act of 1868 in section 4 of the Parliament of Canada Act. In the Parliament of Canada Act, at subsections 4(a) and (b), it says quite clearly we have inherited inherent privileges of the British House of Commons, as they were in existence in 1867, and the second paragraph, over and above those privileges, as they were in 1867, the Canadian Parliament can enact further privileges. However, there is a proviso that they do not exceed those in the British House of Commons. That is what, as you know, paragraph (b) of section 4 states.

In other words, there is a limit to the Canadian Parliament's capacity to legislate its privileges.

The second element of section 4(a) of the Parliament of Canada Act is, in fact, the last sentence of paragraph 4(a); with which I am sure are you familiar. It says the Canadian Parliament can enact its privileges "in so far as is consistent with that Act" — that is, the Constitution Act.

My question is as follows. When we enact a new privilege, we have to apply the necessity test, as you stated in your own case, and as the Supreme Court of Canada recognized in the New Brunswick Broadcasting Corporation case that is called Donahoe. The first case is the Stockdale test, as you have stated very well in your book.

The first thing is whether it is necessary, in the course of this Parliament's duties, to properly legislate, to exercise its legislative activities and its debating activities, to have that privilege? The second criterion is: Did it exist in a comparable manner in the British House of Commons at the time that it was enacted? That is the second question. The third question is: Is it consistent with the Canadian Constitution, which of course brings the Charter into play?

On the basis of the doctrine and the jurisprudence, how would you define proceedings of Parliament in the context of the capacity of the Parliament of Canada to legislate a privilege that does not seem to be as clear as one would know, because the British House of Commons has appointed its public commissioner for standards in its rule 150 of the British House of Commons?

Since they have not legislated formally for the commissioner for public standard — which is the equivalent of what we would propose as ethics councillor — are we in fact failing to meet the test of number two, which is the fact that clearly in the British House of Commons they do not have legislated the status of their own commissioner, even though they could have done so on the basis of their legislative capacity?

Mr. Maingot: I expected something particularly erudite from you, senator.

First, forgive me if I do not reply seriatum.

In the U.K., there is no such thing, I believe, as a court questioning the jurisdiction of Parliament passing an act, as opposed to here in Canada. The necessity rule applies there, as the courts in the Stockdale case, as you mentioned, that famous case. Up until Stockdale, of course, the House claimed exclusivity in everything it did. Over the centuries, the courts have questioned a bit. They were, of course, under the influence of Edward Coke and under the influence of the fact that the House of Commons, before it separated from the council of the king, was both the court and the Parliament so they could do anything and everything.

When it came to Stockdale v. Hansard, what occasioned the big change was not protecting their debates — which I happened to read in the ruling — they were affecting the rights of a third party outside the House. That is what we were doing and that is why they got into it. The court said in that case it had a judicial right to come to an independent determination of what is privileged. The Commons had resolved that it was necessary for its operations to publish a document — the report of police commissioners — it had nothing to do with the proceeding in Parliament, but they said they had the right to publish as they see fit, and it had the sole authority to determine the scope of their privileges.

The court rejected that — and in a sense, that is still the position of the court. It said there was a distinction between the courts inquiring whether a given subject was within the exclusive jurisdiction of the House, and a court interfering with a House's judgment in a matter that was within its exclusive jurisdiction.

The court at that time ruled and noted that they had never done that before; while they had published in the past, it was only distributed to the members. They then said that a juridical right is being affected — something that comes before court — and we disagree. The Commons did not agree, but they realized they would keep putting lawyers in jail for contempt, which is what the House of Commons was doing, and so they passed the Parliamentary Papers Act, and that is the law in Canada too.

Now, you are talking about whether there is a limit here in Canada to legislate on privilege — section 18 and section 4 of the Parliament of Canada Act. The Parliament of Canada Act is not entrenched, and so if you want to amend that, as far as I am concerned can you amend it.

The Parliament of Canada is not restricted to what the privileges are in the U.K., even in section 18. There are different ways, depending what sections are being amended, but I believe the Parliament of Canada can amend by act, of course, legislation. They did that in 1868 as you mentioned senator, to provide for administering the oath. I am not sure if the U.K. had that at that particular time.

Senator Joyal: No.

Mr. Maingot: There is an example there.

Senator Joyal: However it was declared unconstitutional.

Mr. Maingot: It went on and subsequently became law.

Senator Joyal: Yes, because the U.K. passed a similar law.

Mr. Maingot: That is right.

Senator Joyal: They passed a similar law in 1871. Then the Canadian Parliament proclaimed its own legislation.

Mr. Maingot: Then in 1982, when we brought back the Constitution of Canada, it seems to me that opened the door in Canada to limitless changes being made to the privileges.

Senator Joyal: There is no doubt that we can amend section 18 of the Constitution. There is no question about that. As you said, properly, since 1982 — and I will use a word that was popular in those years — we "patriated" our power to amend the Canadian Constitution, the whole of it, and that included section 18. However, section 18 is pretty clear. It said that it shall not exceed the privileges that existed in the House of Commons at the time of the enactment of the legislation. Therefore, of course, we have to look into what there is. We can amend that, I agree with you. We can easily amend section 4 of the Canadian Parliament Act to a simple statute. Now, if we amend section 18 we have to go through the amending formula, section 44 and so forth. However, we have to live with the law as it exists now, because what we are doing now is within the framework of the law as it exists now.

Mr. Maingot: Is section 18 one of those sections where you have to go through that?

Senator Joyal: Of course, section 18 is the Constitution of Canada, so the Parliament of Canada has the authority on its own Constitution, it is quite clear in the act. It was specific provisions; it was the old 91(1) that became section 44 of the Constitution. We took it out of the 91(1), out of the general competence of the federal Parliament to put it in a very specific category of its own, because we are not dealing here with field of jurisdiction but essentially the nature of the country.

Therefore, we can amend section 18. I have no doubt about that. The point is not that, however. The point is that we cannot legislate privileges that exceed what there is at the same time at that moment in the U.K. Parliament. That is what section 18 says.

Mr. Maingot: If we can amend section 18 we can amend whatever it says.

Senator Joyal: Of course we can. We can just abolish the reference to the British Parliament. We can just say that the privileges, immunities and powers to be held, enjoyed and exercised by the Senate, by the House of Commons and by the members thereof respectively shall be such as are, from time to time, defined by act of Parliament of Canada, period, and delete the rest. Then we have the sovereignty over our own privileges.

The problem is now there is another sentence to that same act, which says that any act of the Parliament of Canada defining such privileges, immunities and powers shall not exceed. There is a limit in the Constitution.

Mr. Maingot: It is still part of section 18. If you can amend section 18, you can amend all of it.

Senator Joyal: We can even abolish section 18 if we want, but it exists as it is. That is the Constitution. We can amend it, I agree with you. We could have even another bill with this bill stating that section 18 is amended, as I just read the first part, limiting it to our competence.

However, we now have the problem of this part of the Constitution and section 4 of the Parliament Act, that are intertwined in a way, because one of course is the product of the other, and we have to live with that. That is essentially my point. I am not happy with that, because I think Canadian Parliament should be sovereign in terms of its own privileges.

We live with the Constitution the way it is. How can we frame the fact that we want to give the privileges to that ethics counsellor in a way that is respectful of the constitutional limit that we have when we know at the very moment in Britain their public commissioner to ethics is in the rules, not in statute. As such, its status is rules based, it is not statute based.

As you point out very clearly in your book, when you enact new privileges, it must be in statute, it cannot be through a resolution or through an expression. It has to be clearly enacted through a statute. That is paragraph 4(b) of the Parliament of Canada Act; that is what you were saying in your own book.

My problem with the bill is not the principle, per se, of an ethics commissioner or councillor; it is essentially to ensure that we understand what kind of constitutional protection it will have in terms of its privileges, considering that it does not exist at the same time in the U.K., and we are bound by that.

The Chairman: Mr. Maingot, perhaps while are you answering Senator Joyal on this, you will also answer the point that the United Kingdom has always had the ability to discipline members, so even if Senator Joyal is correct, and he certainly is, I believe, the privilege has always existed there.

Mr. Maingot: Has the privilege of dealing with members of the House always existed?

The Chairman: Discipline.

Mr. Maingot: Discipline, yes. Yes, for the House of Commons, it has. May has mentioned that. It is part of their Constitution that they can discipline members as they see fit, as opposed to here where you would be restricted by the Charter under certain circumstances. That is my view. I do not have May before me, the parliamentary text.

Senator Joyal, I have not really thought of the matter. I have not actually seen the bill. I remember thinking of section 18 and the fact that there are restrictions. Until 1982, I thought that was correct. I thought that after 1982 section 18 would be one of those sections that could be amended. There are a number of sections of the Constitution that may be amended without going through the provinces. I thought that was one of them. If that is the case, the amendment to the Constitution could be by act of Parliament.

I simply do not believe, in the present state of things, that the Parliament of Canada is restricted to increasing its privileges if it saw fit. I cannot give you the page, and the judicial decision to that effect, but that is my view. That was my view when I was looking at these matters. I was not required to deal with it, really, and did not feel compelled to deal with it in the text. That is my view. We obtained sovereignty in 1982 and it was full sovereignty.

Senator Joyal: I agree with that. It is section 44 of the patriation bill and section 44 says that subject to section 41 and 42, Parliament may exclusively make law amending the Constitution of Canada in relation to the executive of the Government of Canada, the Senate and the House of Commons.

In other words, we can make amendments to our Constitution as a Parliament. However, we are bound to do that if we want to amend section 18. We can amend section 18, but to me it was an oversight in 1982 that we did not amend section 18. There is no doubt that we have the capacity to amend it.

Mr. Maingot: Yes, I beg you pardon.

Senator Joyal: There is no doubt we have the capacity, as per section 44. However, since we have not done that, for the time being we are bound by it.

Mr. Maingot: I have read in jurisprudence where a simple act can amend that part of the Constitution that may be done by the Parliament as opposed to running the gamut of the provinces; am I not correct?

Senator Joyal: You are right. The provinces have nothing to do with that, because it is the Constitution of the Senate. Section 4(b) of the Parliament of Canada Act provides that as far as they exist in the United Kingdom.

Mr. Maingot: Let us say it was passed by the Parliament of Canada to amend the privileges. When that goes before the courts, the courts will look a section 18 and say you have the authority to do it and it will be done.

Senator Joyal: I agree with you, but the problem is we have not done it.

Mr. Maingot: Still, it can be done.

Senator Joyal: I hope it will be done one day.

The Chairman: Senator Joyal, perhaps I should say that this is not the debating chamber; this is the question and answer and agreement to disagree chamber.

Senator Joyal: When we legislate privileges, there is no doubt that we have a constitutional capacity to legislate our privileges. That fact is not in dispute. There are tests we have to meet. If we want the privileges to hold in court, if we want the court to consider that we have the privileges, we must first legislate, we must pass an act of Parliament. We have a necessity test to meet. It was clear in Donahoe; the court has recognized it is a necessity test. We have to prove the necessity within the confines of the jurisprudence on privileges, then we have to look into British House of Commons at that time and ask whether or not they have that privilege. That is part of the law of Canada as stated in 4(b), as stated in 18.

Mr. Maingot: I do not see it that way, senator. The way I see it is that the necessity test is the test that you are talking about that the House of Commons applies. Here you are talking about the Parliament. The Parliament can put as it sees fit with respect to privileges. Except the Charter would eventually make amends.

Senator Joyal: I agree with you. Parliament can say we adopt this as a privilege. We can state that in legislation. I have no problem with that. However, when it goes to court and someone says, "Let us take the two cases that there are in courts now, Telezone and Ainsworth Lumber."

Two finance ministers — the present one and the previous one — are in court theoretically — at least their names are — because they claim they have a privilege not to appear as witnesses because Parliament is in session. They claim that for a period of 40 days they are absolved from attending a court hearing. They claim that privilege, but it does not suffice to claim privilege in order to have privilege. The court will look into the scope of the privilege and in doing so, it will apply the necessity test. Therefore, we are bound by the necessity test when we legislate privilege. That is what the court said last spring and in late June. Those cases are before the courts now.

In the famous Vaid case, the Federal Court Trial Division and the Federal Court of Appeal have ruled that even though we claim privileges, the court may decide against that. In this case, they have decided against and the case is going to the Supreme Court.

My point is that it does not suffice for us to say in legislation that this is a privilege. The court can say that it is not a privilege. It is an act of Parliament and the act is still valid, but not protected by privilege. That is where I draw the distinction between stating it in legislation, as we do here, and the reality test of the jurisprudence over how far we are protected. That is what we are trying to understand.

Mr. Maingot: You have cited the cases of the two ministers and Vaid. It is interesting that in the Vaid case the decision was written by two former presidents of the Law Reform Commission of Canada, so reform is in the air.

With regard to the cases of the ministers being called as witnesses, there is no question. Two hundred years ago, the British Parliament said that members could not protect themselves from civil litigation. They could never protect themselves from criminal acts, because outside the House they are like everyone else. The purpose of parliamentary privilege is to protect the members during the course of parliamentary proceedings or something that has a nexus with it.

With respect to the privilege of not being called as a witness, that is a very old privilege. The reason for it is that Parliament has first call on its members. That goes back to the time of the council of the House of Lords and the Commons. It has prevailed for hundreds of years. You can be called away if you are an accused. Up until 1770, you could not be called away if you were a litigant.

The law now is that you can be sued, but if a member of the House of Commons or a senator is a defendant and is called for examination for discovery, they are protected from a finding of civil contempt if they do not attend. If I, however, refuse to turn up for an examination for discovery, I could be held in contempt and I would be penalized. I believe the Senate dealt with that in 1995 or 1996.

Your concern is whether the court will examine whether it is necessary for the Commons to have this privilege. You are quite right; an astute judge would and should ask that question. One argument will be that it is important for the most important secular body in Canada — the Senate and the House of Commons — to have the attendance of its members. That is a centuries-old doctrine. In my view, the courts will say that it is necessary for the efficiency and the integrity of the Senate and the House of Commons to have first call on its members and the privilege of not being called as a witness will remain standing.

Senator Cordy: This has been an interesting discussion on privileges. My question is much more specific. It was Mr. Marleau's view that Bill C-34 does not extend our privileges. What is your opinion on whether privileges are extended in Bill C-34?

Mr. Maingot: As I understand it, the purpose of the bill is to allow you to establish your own code of ethics for conduct of members. It is part of your constitutional privilege to deal with your internal matters. In my view, that will be the position of the courts.

Senator Fraser: Mr. Marleau also said that we have well-established the right to create officers and that it is not an extension of our privilege to create an ethics officer and state that that person is covered by privilege because Parliament has already done this with other people. We are not covering new ground in creating this.

The parallel he cited was that we could create a new committee and appoint a new committee clerk without extending our privileges, even if that committee happened to be examining subjects that, in this case, the Senate had not previously chosen to examine. His argument was that it is not an extension of privilege or an attempt to create a new privilege, but simply to create a Senate ethics officer. Would you agree with that?

Mr. Maingot: Either House can appoint officers as it sees fit. In the case of the Senate, the government appoints your clerk. In the case of the House of Commons, the Governor in Council appoints the five most senior people. Apart from that, the courts recognize that the house has jurisdiction over its employees.

Senator Fraser: Reverting to Senator Cordy's question, the Rules of the Senate, by which we govern ourselves internally, already contain provisions about pecuniary interests, which would be a large part of any code of ethics we were to adopt. Has there ever been any argument that that exceeded the bounds of parliamentary privilege?

Mr. Maingot: No. As a matter of fact, it is an application of the constitutionality of the independence of the three levels of government. That is why members of the House of Commons — except for ministers and parliamentary secretaries, by legislation — may contract the house to receive money. However, a member cannot do that because he is independent. He may not do that without getting into trouble.

Senator Grafstein: I want to go back to an earlier theme that I developed with Mr. Marleau — the responsibilities of the ethics commissioner — because it does imply reference to the Senate. I am looking at proposed sections 72.07, 72.08 and 72.09, at pages 8 and 9 of the bill.

On the reading of the bill, we find that the ethics commissioner can provide confidential advice to a public office- holder with respect to the Prime Minister's ethical principles, rules or obligations. They are really separate and distinct from the code of conduct that we are dealing with here. They are the Prime Minister's rules. That office-holder receives confidential advice, in the classic terms of a solicitor-client relationship.

Then it shifts to the situation where, if there is a complaint made, either by a member on the other side or this side, to a public office-holder, he must provide the Prime Minister with a report and analysis, in relation to the request. I am not sure it is a recommendation, but a report and analysis must be provided.

Then it says that this ethics commissioner may not include in the report any information that he or she is required to keep confidential. By reading clause 72.07, it is only the advice that is confidential, not the material upon which the confidential advice is based.

Am I right about that? The impression is left that there is a protection of confidentiality for a public office-holder, but there really is no confidentiality for the documents or information provided to the confidentiality officer upon which to give advice. I may be wrong in my reading of this. It is only today, really, that we started looking at this, Mr. Chairman, in anticipation of imminent clause-by-clause consideration.

There appears to be a dichotomy between the impression left that information filed with the ethics commissioner will be confidential and the idea that just the advice he gives will be confidential. Then it goes further that the commissioner must make his views public, based not on his confidential advice but based on who knows what? Material that has been either given to him by a third-party source or based on the information provided to him by the officer-holder himself. That puts the commissioner in the invidious position of having been in a solicitor-client relationship at one end but, if there is a challenge, to having to open his mind, first of all, on his recommendations. He moves from being in solicitor-client, in the traditional sense, to being a quasi-judicial officer, to make a report. That report is then referred publicly in Parliament, although I do not know how or where that is done in the other place.

That puts every office-holder in an invidious position of feeling he has confidentiality when he really does not have confidentiality. I raise that because it applies to office-holders in our house as well.

Is that a drafting problem? Is that a parchment problem? Is that the intent? There is confusion here as to the role of the ethics commissioner. It goes to Senator Smith's point about where is the bar. The bar seems to be invisible.

Mr. Maingot: What is the object purpose, of the legislation? I am not quite sure, except that the public sees a change from a person being appointed through legislation, as opposed to being appointed, as at the present time, by a resolution of the Prime Minister.

However, we have had some jurisprudence with respect to the Auditor General. He wanted to get his hands on some documents from the Privy Council. Perhaps I am wrong, but I do not think there is any actual legislation that provides that cabinet documents are confidential. The Supreme Court of Canada ruled to uphold the position of the government with respect to the tendering cabinet documents. I do not know whether that was in all cases or just in cases dealing with national security.

With respect to proposed subsections 72.08(5), (6) and (7), we do not know what the commissioner will be required to keep confidential. There will be a lot of factors involved in that.

Senator Grafstein: That is my point.

Mr. Maingot: Will they spell out confidential items that affect family and business interests? It is a big subject. A great deal of common sense will be required in that situation.

Senator Grafstein: I always believe in common sense, but it is clear that the legislation here talks about confidential advice but not confidential information. It goes further because it empowers the ethics commissioner to summon witnesses to deal with issues.

I raise this because I felt it was very invidious that a cabinet minister who provided information on what he considered to be on a confidential basis, and received advice on a confidential basis, subsequently became a matter for the public domain, to his detriment.

I come back by saying that this officer is in one sense a counsellor, in another sense, an administrator, and in another sense, an adjudicator. He is asked to make quasi-judicial decisions. I mean that in the administrative sense, not in the court sense. He is then compelled to make those conclusions public. Rather than be clear as to where the bar is, an office-holder is confused at the outset because he or she says, "I have to disclose. I want to disclose to make sure that I am on the safe side of the ledger." Yet, the office-holder finds himself or herself in the position where that information may be publicly disclosed as a result of an unsubstantiated allegation in public because the commissioner is then compelled to make a public report.

What does he tell? Does he talk about his confidential advice? Does he talk about the facts upon which the confidentiality advice is based? Where, senators, is the bar? On top of that, the information that he then provides could be subject to a criminal perjury charge when a public officer asks questions and answers in good faith and is given advice.

I have said this in passing to the committee. There is the looming impression that we will race through clause-by- clause study here and we have been told — I do not agree — that we have examined these issues carefully, which we have not. These drafting issues give me concern. There seems to be confusion. I only look at this one section. I can turn to others that give me the same concern, primarily because we do not define on the one side that the ethics commissioner is a counsellor — as some of us would have preferred — as opposed to a counsellor, administrator and, in effect, a quasi-judicial officer. This is unique and different. It is beyond the confines of what we have seen in Parliament before.

I took all of that from the evidence given to us by Lord Williams, who was careful to say, as did his registrar, that all of the information — not just the advice — was confidential, save and except that which was agreed to be disclosed, which was a register of interests.

Do you have any comments, Mr. Maingot? You are one of the great and long-serving officers who understand the role of Parliament and its duty to the public as well as maintaining —I am talking about senators here — their activities in their regions.

Mr. Maingot: I think we accept that it is beyond parliamentary privilege. I am loath to step in where angels fear to tread, but the position in the U.K., as stated by the registrar, sounds sensible. I am sort of looking at this cold and I do not think you expect a great solemn view on this.

There are provisions where a person does not have to speak and where they are protected. Of course, if you speak in the House of Commons or in the Senate, your freedom of speech as a witness is protected and you cannot be pursued in court for that. However, you can be pursued in the House or in the Senate. I am thinking out loud about what kind of help I can be in this case here.

Under the Canada Evidence Act, you may speak without prejudice. Of course, you already deal with that because it says that it is confidential.

Your concern however, is what is confidential and what is not confidential? This would be a question of the Solomon, who is the ethics commissioner.

The Chairman: Mr. Maingot, perhaps I should let you off the hook by saying that these questions refer to the Prime Minister's code and none of us expected you to be an expert on that.

Senator Grafstein: I will reserve for now. I wanted to raise this as an issue. It seems to be a problem for myself and I assume Mr. Maingot has a problem with it as well.

Senator Joyal: Mr. Maingot, are you familiar with the decision in the Roberts v. Northwest Territories case? It is a recent decision from October a year ago whereby the commissioner in the NWT was dismissed by the assembly and he sued the assembly for his wrongful dismissal? The court concluded that the assembly was not protected by its privilege in the course of its decision to dismiss the commissioner. Are you aware of that judgment?

Mr. Maingot: I am not. Last fall? He was the commissioner of what?

Senator Joyal: He was the conflict of interest commissioner.

Mr. Maingot: How was he appointed?

Senator Joyal: He was appointed by statute. The statute provided that he could be dismissed through a resolution of the house for cause. The house dismissed him on the basis that he had talked to the press or had made comments about behaviour of a member and they thought it was improper, so they dismissed him. The Northwest Territories commissioner, who is the equivalent of the Lieutenant-Governor, signed the resolution of the house.

The commissioner went to court and the court concluded that the house, in exercising its responsibility under the statute, dismissed him wrongly and therefore they could not claim privileges — that is, that could not exercise their privileges, their power, over their staff, in this case, over their officer. Did you read that case?

Mr. Maingot: No. I am not aware of that.

The Chairman: Mr. Maingot, I apologize. We are right on 1:30, when the Senate sits, and we must rise. Since you have not read the case anyway, perhaps we will just leave it at that.

The committee adjourned.

---