Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 3 - Evidence - March 17, 2004
OTTAWA, Wednesday, March 17, 2004
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill C-4, to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other acts in consequence, to which they desire the concurrence of the Senate, met this day at 10:04 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum. This third meeting on Bill C-4 of the Rules, Procedures and the Rights of Parliament Committee is now in session. We will have before us four witnesses today, senators, starting with Professor Gélinas from McGill University, followed by Professor Saint-Martin from the University of Montreal, and then I propose to suspend the meeting for a few minutes to allow us to get something to eat to sustain us for the afternoon; and then we will go on to Professor Sharon Sutherland and Professor Ian Greene.
We will start with you, Professor Gélinas, and I will let you introduce yourself.
[Translation]
Mr. Fabien Gélinas, Professor, McGill University: I would like to start by thanking the Standing Senate Committee on Rules, Procedures and the Rights of Parliament for inviting me to be part of your deliberations on Bill C-4, which would create an Ethics Officer for the Senate and a Ethics Commissioner for the House of Commons. It is an honour for me to be here today. I have read the Debates of the Senate and your committee's proceedings on Bill C-4. I read, particularly, the discussions regarding the appointment process for the Senate's ethics officer set out in clause 2 of the Bill, as well as the suggestions made by the government House leader in the Senate. He said that a commitment made by the government House leader in the Senate on behalf of the government with respect to the appointment process which results in the appointment of an ethics officer could be a constitutional convention. I understood that the committee has invited me here today to speak about this subject in particular.
I will make some comments for a few minutes before giving you an opportunity to ask questions. Perhaps we will get into a greater discussion of the issues during the question period.
The definition of a constitutional convention recognized by doctrine and, to some extent, by the case law, are quite uniform. I would like to quote the definition provided by Marshall and Moodie in their book entitled Some problems of the Constitution, which was published in England in 1959. They define constitutional conventions as follows:
[English]
[B]inding rules of constitutional behaviour, which are considered to be binding by and upon those who operate the Constitution, but which are not enforced by the law courts (although the courts may recognize their existence) nor by the presiding officers in the Houses of Parliament.
[Translation]
On the one hand, this definition recognizes the binding nature of constitutional conventions and on the other, it recognizes that they are not part of the law, because they are not enforced by the courts. Nor are they part of the parliamentary privilege applied by the leader of each chamber. Thus they are not applied either by "the presiding officers in the Houses of Parliament." That means that the lex et consuetudo parliamenti (the law and custom of Parliament) is something completely different from constitutional conventions. That is something separate and that is why the speaker of the Senate cannot enforce constitutional conventions.
The fact that constitutional conventions are not enforced by the courts does not mean that they are not mandatory. As the Supreme Court of Canada pointed out in the reference on patriation, the violation of certain constitutional conventions could amount to nothing less than a coup d'État. The court was referring in particular to the constitutional conventions regarding responsible government in Canada, at both the federal and provincial levels. That does not mean that conventions are not important. Some of them are more important than most legal rules in our country.
Consequently, it is extremely important to define a constitutional convention. Canadian constitutional theory holds that we are fortunate to have had a statement by the Supreme Court of Canada on the definition of a constitutional convention, and more specifically on the criteria that make it possible to recognize a constitutional convention in the strict sense of an obligatory political rule for the people engaged in politics.
In its discussion of constitutional conventions and its important decision regarding the patriation of the Constitution, the Supreme Court referred to what Jennings said in his book The Law and the Constitution. The criteria put forward by the Supreme Court for recognizing constitutional conventions were borrowed directly from Jennings. They are not very complicated, but you will see the importance of the "precedent" concept in the recognition of a constitutional convention. There are three important issues to be considered.
[English]
First, what are the precedents? Second, did the actors in the precedents believe that they were bound by a rule? Third, is there a reason for the rule? You can draw from that the importance of the precedent in the identification of a constitutional convention.
It does not seem to me particularly difficult to apply these criteria to the situation at hand. The question would be: Can the commitment, or the undertaking, put on record by the government through the Leader of the Government in the Senate, amount to a constitutional convention? In my view, no, and the answer is quite clear. Convention requires precedent, and in this case we do not have it. Rather, we have a formal undertaking by the government.
As such, it does not mean that the undertaking is worthless. The undertaking, of course, is binding in some sense, at least on the current government. I would say that the undertaking is most certainly binding on the current government in a strong normative sense. It does not mean that it is irrelevant to the issue of convention because it may be laying the groundwork for a future convention that might evolve over time. Before we have a future government that is prepared to act upon the commitment, I would not say that we are looking at anything close to a constitutional convention.
That puts my point of view starkly and clearly in respect of the precise point on which I was asked to testify. Perhaps I should end now and take senators' questions. First, I would add this: I spoke of a possible future convention, and to have that finding, the commitment, or the undertaking, of the Leader of the Government in the Senate would probably need to have a little more substance. I have not seen such clarity or substance in the undertaking put on the record in the Senate.
The Chairman: Thank you, Professor Gélinas. We will go to questions.
Senator Andreychuk: I have a few points of clarification. Professor Gélinas, you said that these kinds of undertakings have a normative value. If I may, I will put this in non-legal language: It is more of a pious invocation, if I could call it that, or a moral commitment from this government to undertake to do something — is that what you are saying — as opposed to something that binds legislation to that statement? If a series of governments were to follow that, it could at some time become a convention, but at this moment, it is no more than a good statement. As well, if I understand you, it needs to be firmed up much more.
Mr. Gélinas: I think it has a normative value in both the moral and political senses. It is a commitment that everyone will expect the government to abide by. It is certainly not the kind of normative value that one attributes to the rather formalized definition of "constitutional conventions" that we have in the British tradition. Does that answer your question?
Senator Andreychuk: I know that previous governments have said that the minister would undertake to combine two departments while respecting the budgets of both as independent. That provided some level of comfort in passing legislation. At that point, I think it was understood that it was not a constitutional convention, in that it would not bind anyone else and the new government would still have the right to determine ministries and their budget issues. However, the new government would have to explain, perhaps, why it would make the change because of the moral issue raised if it were to go against what another minister had said.
Mr. Gélinas: That would be true of the current government. One would expect an explanation if the government were to go back on the commitment or the undertaking. A future government might invoke the past undertaking. Our system is clear, in that the new government would not be bound by a simple commitment of a previous government. It is a fundamental aspect of our institutions that the newly elected government would be free to go back on things that the previous government had said. Frankly, even if the new government were of the same political party, I do not believe that the new Prime Minister would be prepared to abide by all of the commitments that were made by the previous government.
Senator Austin: Professor Gélinas, let me begin by saying that, of course, the rule that no Parliament is bound by a previous Parliament applies to statute, to rules and to conventions. Would you agree?
Mr. Gélinas: Yes, I would agree with the statement that a new Parliament is not bound by a previous Parliament.
Senator Austin: Therefore, statutes passed in previous Parliaments are not binding on the new government.
Mr. Gélinas: Except if they impose a manner and form requirement.
Senator Austin: Would you explain that?
Mr. Gélinas: Our theory of parliamentary sovereignty has acknowledged a certain power of Parliament to impose procedural requirements on future Parliaments. For instance, if you want to bind a future Parliament, as a Parliament of today, you may do so by saying that all future statutes will not have effect as against this provision, unless they expressly mention that they should have effect as against this provision. This is a manner and form requirement whereby Parliament can bind itself for the future, not as to substance but as to procedure.
Senator Austin: Except that the subsequent Parliament can legislate away that provision.
Mr. Gélinas: By expressly following the procedure that was laid down, yes.
Senator Austin: So that the general principle is that no Parliament can bind a previous Parliament.
Mr. Gélinas: It is a general principle, which requires some explaining.
Senator Austin: With respect to your evidence this morning, I do not have any differences with respect to your description of parliamentary conventions. However, the issue here is with respect to the binding character of the undertaking that I gave to the Senate on behalf of the government. A precedent starts somewhere, as you said, and whether this becomes a precedent or not will depend on subsequent practice and whether other governments are prepared to acknowledge this as a procedural precedent. I am not sure how an undertaking becomes a precedent or a convention, except through practice. I believe I heard you say something to the same effect.
There is a very interesting paragraph at page 6 of Beauchesne's Parliamentary Rules & Forms, 6th Edition, which states:
Parliamentary Law is something quite different from the ordinary Civil Law or Common Law. Parliamentary Law is based on centuries of tradition and precedents which have marked the evolution of parliamentary freedoms from the time that the first Parliaments were governed under the Divine Right of Kings to the stage of parliamentary sovereignty which we have now acquired.
We are talking, as Beauchesne does, about something that is not subject to the discipline of the courts. This relates to the internal workings of Parliament. Undertakings are treated, as Beauchesne says, as parliamentary law. Do you concur with the provision I have just put to you, from Beauchesne?
Mr. Gélinas: Beauchesne is talking about parliamentary law, lex et consuetudo parliamenti, which is separate from constitutional conventions. It is something that concerns the internal workings of the Houses of Parliament and is separate, to the extent that the parliamentary officers, such as the Speaker of the Senate, will not apply constitutional conventions. The issue that was put to me was whether the undertaking could be taken as a constitutional convention. The answer is no.
I would not be prepared to pronounce upon whether another qualification or characterization could be given to the undertaking within the tradition of the law of Parliament.
Senator Austin: In concluding, Madam Chair, I want to point out that apart from the undertaking that I provided, there is a sanction in the statute to deal with a breach of the undertaking. That can be found in clause 20.1. It states:
The Governor in Council shall, by commission under the Great Seal, appoint a Senate Ethics Officer after consultation with the leader of every recognized party in the Senate and after approval of the appointment by resolution of the Senate.
If there is some breach in the undertaking, the Senate has the sanction of not dealing with a resolution enabling an appointment.
You referred to something vague in the undertaking and that something more would be necessary. Could you fill in the blanks, please?
Mr. Gélinas: What I meant to say was that in order for a constitutional convention to be formed and to be recognized, there has to be a minimal substance to it. Thus, people will be looking at the same thing and will be talking about the same binding rule when the convention is mentioned and when they are attempting to follow the convention or rule. The vagueness I referred to in the statement is simply that the Leader of the Government in the Senate is said to be authorized to consult informally. Much will depend on the definition we place on the words "consult," "informally" and "authorized." It does not seem there is any obligation for the leader in the house to do that. Reading it, it is not clear to me what the commitment is exactly. However, it seems clear to me who has the last word on the appointment. That is what I meant to say. The last word on the appointment is provided quite clearly by the wording of the bill.
Senator Austin: In other words, "by resolution of the Senate."
Mr. Gélinas: Yes.
Senator Smith: I want to tell you where my thinking is at and then get you to react to it, with particular emphasis on the issue of the independence of the ethics commissioner. With regard to the convention, back in the 1930s, Fred Astaire made a song popular that went like this, "I'm putting all my eggs in one basket. I'm betting everything I have on you."
To the extent that some people who may have had problems with this bill last fall might feel those problems are resolved by having a watertight, airtight convention, I think what you are saying is that a convention is not quite airtight and watertight. That was not my thinking at all.
I think the convention — and I applaud Senator Austin for this — is moving in the right direction. I have never had a problem because I think that is the way it would be carried out anyway. In the Senate, we have only two recognized parties so far. However, time will tell. When this was introduced, there were five parties in the Commons. If you take the route that everyone has to consent, you do not know what agendas people will have. I do not think they wanted to go down that road.
My concern is independence. As it is, the clause strikes a good balance, because were the amendment that carried to be sustained — I have great respect for Senator Bryden and I have an honest difference of opinion with him on this one — I think that it would really mean that the Senate can just hire and fire as they see fit, and this person is supposed to be independent.
I think that this strikes a good balance, whereby we have to approve it by resolution. The vote on Senator Bryden's amendment last fall is evidence that senators can take a very different view from the government on a bill if something is troubling them — and the whip was there. That amendment did pass, and by a fairly comfortable majority.
I believe that "resolution of the Senate" means that if it did not approve of the name before it, that appointment would not be made. I really believe that. I cannot imagine why any government house leader would do anything other than sit down with the opposition and agree on a name. I just cannot believe that anything other than that would do. However, I think it is important to have this in here, to get the two aspects of that independence in here, so that the wording is the very same as for the House. Do you have a reaction to the issue of independence?
Mr. Gélinas: You seem to be saying — and correct me if I am wrong — that the drafting of the bill as it stands is sufficient and that the undertaking is not necessary.
Senator Smith: I believe that the undertaking is positive and helpful and a move in the right direction, but I do not think it has to be definitively watertight for eternity, because as Senator Austin mentioned, no Parliament is bound by a subsequent Parliament.
Mr. Gélinas: I am not an expert on this, but the Senate itself did not seem to be satisfied with the drafting when it adopted a change in the last session.
Senator Smith: That is true. I never use the phrase "sober second thought," but this may be one time where that might be applicable.
Mr. Gélinas: If I may, Talleyrand was fond of saying —
[Translation]
"That goes without saying, but it is still preferable to state it."
[English]
Senator Joyal: In your presentation, you refer to the issue of clarity and substance, if I can use your two words; the commitment would need to have clarity and substance in order to be regarded as understood by the majority.
In both the speech made by the leader and in his testimony at the committee, which part of the undertaking is, one, not clear; and two, not substantial enough to be the basis for what could be seen, over time, as a commitment that would be binding on future governments?
Mr. Gélinas: What I find unclear in the statement is in three words. There is "authorized," "consult" and "informally." I think those three words are not particularly clear as to what exactly will happen. In any event, I would venture to say that the undertaking itself will not make the convention. The convention might evolve out of this, in my opinion, if the Senate adopts procedures for this consultation process, if those procedures are followed over time, and if, in every case, the Governor in Council does appoint the name that comes out of that consultation.
I think the undertaking, as such, is not sufficient to create a convention. There will have to be more. There will have to be action by people other than the government. There will have to be things done and undertaken by the Senate as well.
Senator Joyal: In other words, referring to your last comment, if the Senate were to adopt an internal rule in its standing orders that would establish a process of consultation within the Senate, that, in your opinion, would be a more helpful, compelling force on future governments?
Mr. Gélinas: It might be one aspect of the precedents that will be considered when one looks at whether a convention has been formed or not. It will be one aspect of a broader picture.
Senator Joyal: What are the other aspects, in your opinion, that would be essential?
Mr. Gélinas: The other essential aspect would be the government feeling bound to abide by the result of the process in the Senate.
Senator Joyal: We would have to check to see whether, at the end of the application of the rules, the government received the results of the process and acted upon them?
Mr. Gélinas: That would be behaviour that might create a constitutional convention, yes.
[Translation]
Senator Losier-Cool: My question follows up on what Senator Joyal just said and your comments that "more would be necessary" as regards what constitutes a constitutional convention according to the Supreme Court definition.
If the agreement put forward by the government House leader was included in the Rules of the Senate, would this be enough to make it a constitutional convention?
Mr. Gélinas: No, there would have to be a practice and precedents that show that the government, in accordance with the governor in council Act — whereby the ethics officer is appointed — feels bound by a constitutional convention and by the Rules of the Senate. In my opinion, adding this provision to the Rules of the Senate would not be enough to make it a constitutional convention.
[English]
Senator Carstairs: It seems to me the basic difference between a constitutional convention and a precedent is that one is inscribed in the constitution and the other requires a series of acts. It means that one government must do it, and a successive government must do it and then another government, until it becomes a precedent. Surely, in order for it to become a precedent, there must be an initial act. Is not this a proposal for the initial act?
Mr. Gélinas: I entirely agree. That is what I suggested. This undertaking is not worthless or meaningless. This undertaking might be the groundwork for a future convention. I fully agree with that.
Senator Carstairs: Let me ask one further question. Do you think that it is realistically possible for a Prime Minister in the future to not accept this as a precedent? Once it has been done, is it realistic to think that a future Prime Minister could just simply ignore it and say, "We will not do it this way," despite what the bill says in terms of the consultation and the resolution, and that we will simply ignore the precedent of the previous Prime Minister?
Mr. Gélinas: Yes, I think it is possible for a future government to ignore that.
Senator Carstairs: Is it likely?
Mr. Gélinas: From past experience, yes, it is. Perhaps I would not go as far as saying "likely," but I would not say it is a remote possibility. The government must follow the legislation. If that legislation says there must be consultation, then there must be consultation. However, there is consultation and then there is consultation, as we all know.
Senator Carstairs: Yes, I agree. However, knowing this chamber as I do, having sat here for 10 years, if a precedent was established and a Prime Minister chose to ignore it, that person would be in serious trouble.
Mr. Gélinas: Again, I am not an expert on this, but I would say it depends on many factors, including political factors.
Senator Bryden: First, does it take time to create a precedent for a convention? One swallow does not a summer make. Presumably, one undertaking from a minister or government relating to something like this does not create a convention. Does it not develop over a period of time?
Second, there is reference to "the final word," being the approval of the appointment by resolution of the Senate. I submit that that is not correct because the only sanction is that there would be no resolution of the Senate. If that is so, then under clause 20.2(2), when there is a vacancy — and there would be a vacancy — the Governor in Council can appoint someone for six months. What is more, the bill gives the right to reappoint.
Third, rather than having a situation where we are counting on every new minister, every new government and every new Prime Minister coming in being prepared to follow what we do next week, I would put it this way. After the next election, another party is the government. If, hypothetically speaking, Stephen Harper were to become the Prime Minister of Canada making the appointment, he would be bound by the statute as passed. What, if anything, requires him to observe Senator Austin's undertaking that says, "We will submit a list to you, and from that you will appoint"?
I do not believe it is binding at all. Senator Austin says that a newly formed government may ignore the undertaking. However, can new governments change statutes? The answer to that is yes. However, it takes an act of Parliament — that is, both Houses of Parliament — to change this statute. It does not take any action whatsoever, on the part of a new Prime Minister, to ignore whatever side deals have been made and say, "I will adhere to the law that was handed to me when I took this position." Can you comment on that?
Senator Austin: May I make a correction? I at no time said that I would submit a list from which a choice would be made. That is not an accurate statement.
Senator Bryden: Would you give me an accurate statement on what you are adding in your undertaking?
Senator Austin: I said that I would consult, with respect to an appointment, with the Leader of the Opposition and with both the government and the opposition supporters. Nothing in that offer to consult says that I would make any suggestions whatever. On the contrary, I have said that the government would await the suggestion of the Senate. To be clear, I have not said that I would carry a name to the Senate from the Governor in Council.
Senator Bryden: You are saying that the Governor in Council undertakes that an appointment will not be made until the Senate has recommended someone?
Senator Austin: Correct.
Senator Bryden: Once again, that is not in the statute. I accept Senator Austin's correction, but what binds the new Prime Minister is this bill, not the undertaking.
Mr. Gélinas: In terms of the time aspect of constitutional conventions and the required precedents, it is generally agreed that it is not impossible for a constitutional convention to be created rather quickly, perhaps eventually out of one precedent. This is a possibility acknowledged by most constitutional writers in England and here.
However, I would quickly add to this, as a qualification, that the only examples ever given are the constitutional conventions that led to the independence of the dominions from the mother country. We all know that in 1926 and 1930, there was an imperial conference at which the premiers of the dominions met in London with the Prime Minister. The result of that imperial conference was widely seen as having instantly created a constitutional convention. I would submit that this is the only example that we have and the situation here is significantly different.
The difference is simply that we have recognized the possibility of a convention being created instantly, through the notion of an agreement. The convention that we are looking at is much more like an international treaty than a constitutional convention in the traditional sense.
I do not think that this example would be either useful or helpful in the situation at hand. In support of this, I refer to the book by Mr. Latham, which was published in 1949, entitled The Law and the Commonwealth. The quotation is from page 610, wherein Mr. Latham states that:
In domestic affairs, agreement rarely, if ever, creates constitutional convention because the usual parties, namely ministers, members of Parliament, the Houses of Parliament and the King, have no moral authority to bind their successors by mere agreement apart from precedent. But in Commonwealth relations, it has long been recognized that the agreement of the executive government of a member binds its successors because it would be derogatory to its autonomy if other members, in order to ascertain their rights and obligations in relation to it, were compelled to examine its internal affairs.
This makes the case of the independence conventions something quite different from what we are looking at here. The principle that a government cannot bind a future government would hold sway in the matter at hand. That is for the first question on the notion of precedent, the question of time and the formation of a constitutional convention.
The second question was about the last word. Who has the last word under the arrangements? I am grateful for the question because I would like to clarify that, in my view, the last word here is not with the Senate. It seems to me that it is quite possible, under the bill, for the Governor in Council to appoint someone and get the resolution passed in the Senate. In terms of political realities, the last word is actually with the government and not really the Senate. What the Senate can do is stop it. This is a negative power, not a positive power.
The third question is about the binding character of the undertaking on a future government, and the example of Mr. Harper becoming Prime Minister at the next election was given. The only effect on the future Prime Minister in your hypothesis would be to perhaps force him to explain why he is not following the undertaking of the previous government. Of course, the explanation might conceivably, hypothetically, be simple. Mr. Harper can simply say that the government was disingenuous in making this arrangement just a few months before the election and that he does not feel bound by that undertaking.
Senator Smith: To explore what Mr. Harper might do if he were to explain it away, in reality, how would it get by 65 Liberal senators when it requires a majority resolution of the Senate?
Senator Andreychuk: Now the truth comes out. Now we understand.
Senator Smith: I am talking about checks and balances, which is what we want if we are to have somebody who is independent and not beholden to either side.
Mr. Gélinas: I would answer that if we are contemplating constitutional conventions, we are looking at the long term.
Senator Smith: I agree with that.
Senator Stratton: I will not dwell too long on that, but in defence of Mr. Harper, if he were to change it, it would be to ensure that it would have more transparency, I am sure, simply on the basis that despite the fact that the Governor in Council appoints this person, or we appoint this person, it will not be seen as transparent enough. In my view, and you can comment on this, we are on the first step down this road to transparency, and the Prime Minister of the future, be it Mr. Harper or someone else, will not be bound by this package with which we are presented, but rather will move it along in a different way. Would you comment on that, or do you not think it is worth commenting on?
Mr. Gélinas: I agree that we are looking at the first step. We are looking at breaking new ground, certainly.
[Translation]
Senator Ringuette: I would like to ask for a clarification. You started by saying that you had been instructed specifically to speak to us about constitutional conventions.
As an expert, I thought you could discuss the entire bill with us. Has there been some misunderstanding? Who recommended that you speak to us specifically about constitutional conventions?
Mr. Gélinas: I do not believe you used the word "instructed." I understood that my particular area of expertise as regards the bill is constitutional conventions. This is because I wrote a doctoral thesis at Oxford University on patriation, much of which had to do with constitutional conventions. This is really my area of expertise.
I do not claim to be an expert on the Parliament of Canada Act or on parliamentary privilege, for example.
Senator Ringuette: But we can ask you questions about other parts of the bill?
Mr. Gélinas: I will decide for each question whether or not I am able to reply.
Senator Ringuette: Are you familiar with the method used for appointing clerks to both the House of Commons and to the Senate? To your knowledge, have there been any cases since Confederation when a clerk, appointed by the governor in council, was deemed not to be independent? Since you have studied the Constitution, you are familiar with its history. Have there been any times when the clerks appointed to the House of Commons or the Senate have not demonstrated, through their actions, their independence vis-à-vis the government?
Mr. Gélinas: I could not give you an example of a case in which the clerks did not behave independently. That is all to the institution's credit. However, there are situations in which people appointed by the governor in council behaved in a way that was contrary to basic ethics. There are examples within the Office of the Privacy Commissioner, for example, that were quite clear.
Senator Ringuette: Did the situation regarding the Privacy Commissioner have anything to do with his independence?
Mr. Gélinas: Not necessarily.
Senator Ringuette: So there is no history or precedent to indicate a lack of independence on the part of an individual appointed by the governor in council?
Mr. Gélinas: I would say that an appointment process designed to be more transparent and more independent offers not only guarantees of independence, but also guarantees of integrity. That is my personal opinion.
Senator Ringuette: As a taxpayer and citizen, how do you view the scenario whereby senators appointed by the governor in council are questioning the independence of the appointment of an officer of the Senate?
Mr. Gélinas: I do not understand your question.
Senator Ringuette: I will rephrase my question. Senators are appointed to the Senate by the governor in council. People generally, and senators, are currently calling into question the independence and integrity of the appointment process. What is your opinion of this phenomenon, as a citizen?
Mr. Saint-Martin: It is a question of context. The independence of senators is guaranteed by the length of their tenure. That is not at all the case in the situation described here, because the term of the appointment is limited.
Senator Ringuette: Should the fact that there are time limits call into question the independence of individuals, whoever they may be?
Mr. Saint-Martin: That is not what I said, no.
[English]
Senator Joyal: On a point of order, I just want to make sure that we have understood that it is the Governor General who appoints the senators, not the Governor in Council. There is a difference between the two, I think. That is in Section 34 of the Constitution.
The Chairman: Governor in Council.
Senator Joyal: No, the Governor General. It is the Governor General. Section 34 of the Constitution says:
The Governor General may from Time to Time, by Instrument under the Great Seal of Canada, appoint a Senator to be Speaker...
It is the Governor General; it is not the Governor in Council who appoints the senators. Section 32 reads.
When a Vacancy happens in the Senate by Resignation, Death, or otherwise, the Governor General shall by Summons...
It is the Governor General. That is a nuance that needs to be pointed out.
The Chairman: That is not a point of order, I believe, Senator Joyal. It is a point of clarification.
Senator Joyal: I apologize. It is clarification.
The Chairman: We should allow Professor Gélinas to answer briefly.
Mr. Gélinas: I would just say that it is a good example of a constitutional convention, which provides that the Governor General acts on the advice of the cabinet, which is only a part of the council.
Senator Andreychuk: If I can sum up what you are saying, it is the objective of the government, as they state it to us, to have an independent and somewhat transparent process for selecting an ethics officer for the Senate.
If we go with this undertaking, we are into questionable territory. We do not know whether it will be turned into a convention, whether it will be used again, and the method of consultation and the rules on who is consulted are not really spelled out.
Would it not be better to simply put that in the bill, that the Prime Minister or the Governor in Council shall consult with the minority, or something to the effect that there should be agreement of the leaders?
In other words, if the criteria and the procedure to appoint the independent commissioner were in the bill, we would not need your expertise on undertakings, conventions, et cetera, and it would be a certainty in law.
Mr. Gélinas: That is correct. The only way of obtaining certainty is to put it in the bill, even though as a matter of real politics, the future government would be able to change the legislation, but then that would be an act of Parliament, which is rather more difficult to change than a commitment.
The Chairman: I thank you very much, Professor Gélinas. I will call Professor Saint-Martin to the witness stand immediately so that we can give him as much time as possible.
Honourable senators, I would point out that Professor Saint-Martin has given us copies of his speaking notes, but in English only. It has been handed out so everyone has a copy.
Professor Denis Saint-Martin, University of Montreal: It is an honour for me to be here today and have the opportunity to talk to you about what I think is a very important matter for both Parliament and the Canadian public more generally.
I have looked at the transcripts of your discussions in the past few weeks and it appears that the issue of independence is one of the key concerns that many of you have expressed regarding Bill C-4. I too share your concerns about independence, but I look at this question from a different perspective. For me, independence is not really about whether Parliament is independent from government and whether the executive is somehow encroaching on the independence of Parliament by having an ethics commissioner appointed by the Governor in Council. In a Westminster system, where you have party government, the idea that Parliament is somehow independent from government is a political fiction, because government effectively controls Parliament with its majority.
In the past 20 years, in most Western democracies, there has been a change in the way parliamentarians are regulating the standards that guide their conduct in public life. When we take a comparative look at the mechanisms that legislators are using to enforce ethics rules upon their members, we generally see three types of arrangements. We see that most systems of ethics regulation fall along a spectrum that has pure self-regulation at one end, which is what you have now, and wholly external regulation at the other — what you will have with Bill C-4 — and in the middle you can have some form of co-regulation. This is the system that now exists in the U.K.
Self-regulation, as I said, is the system you have now. It is a kind of peer review system, that is, parliamentarians judging the conduct of other parliamentarians. As you know better than I do, this has been the traditional, historical way of regulating legislative ethics.
In the past, legislatures in Canada and elsewhere have strongly resisted any suggestion that the conduct of their members should be subject to the authority of any external body or person. The constitutional principle of legislative autonomy means at least two things: That legislatures have the sole responsibility for disciplining their own members and that this cannot be challenged in the courts.
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This is an ancient and venerable principle. It is a fundamental principle of democracy that protects your freedom of speech. However, this principle is in the process of changing. In the world today, we can easily find 60 jurisdictions: countries, States, provinces, regions such as Scotland and Wales, where the legislature has gradually set aside its traditional system of self-regulation as regards the ethics of parliamentarians.
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Increasingly, legislatures are moving towards a more external form of ethics regulation, and Bill C-4 reflects this. The bill seeks to involve an external body or person — the ethics commissioner, in this case — in the traditional process of self-regulation and peer review.
Why is this happening? Basically, the goal is to restore faith in public life. Increasingly, self-regulation has raised suspicion because it creates an institutional conflict of interest and violates the idea that no one should be the judge in his or her own case. The act of parliamentarians judging other parliamentarians raises reasonable doubts about the independence, fairness and accountability of the process. In seeking to address this reasonable doubt, a growing number of legislatures have been moving toward a system that includes an external form of ethics regulation.
This involves establishing, by legislation, a body that is external to and independent of the legislature. Such a body is responsible for managing ethics rules. It oversees the conduct of the members and reports to the legislature. This model has been adopted in the provinces, and Bill C-4 seeks to create this model at the federal level.
In Britain, the House of Commons and the House of Lords have followed different practices. Although the two chambers have adopted ethics codes, the House of Lords, unlike the Commons, has decided not to follow the practice of co-regulation. There is no external person involved in the ethics regulation process of the higher chamber. This is different from Bill C-4. As well, the entire ethics regulation machinery in Britain is based on Standing Orders and has no legal basis at all. Again, this is very different from the proposed legislation in Canada.
Returning to the issue of independence, there are two points I want to discuss: first, the procedure for appointing the ethics commissioner, which will be crucial in ensuring independence.
In all Canadian provinces and American states that have an ethics commissioner, the executive, following some form of consultation with the legislative assembly, has always appointed him or her. This is similar to the proposal in Bill C-4. Of course, some of you may think that the ethics commissioner is different from other parliamentary watchdogs. The commissioner's work requires that there be a sense of mutual confidence between the commissioner and parliamentarians because, unlike the Auditor General or the Privacy Commissioner, the ethics commissioner will look at the private business of parliamentarians.
The ethics commissioner is a parliamentary officer unlike no other and so it is fair to argue that parliamentarians should be more closely involved in his or her appointment. This is, after all, one part of the Prime Minister's promise to strengthen and revitalize the role of Parliament. If we are to involve parliamentary committees in the process of appointing the heads of Crown corporations, then we can duplicate the process in appointing officers of Parliament.
There are precedents for this, perhaps not at the federal level, but at the provincial level. You might be interested to know that in Alberta, a nine-member, all-party committee interviewed all the candidates short-listed for the job of ethics commissioner. Following the interviews, the committee made recommendations to the lieutenant-governor.
Second, if Parliament is to ensure that the ethics commissioner's office is not under the influence of the executive, and if the commissioner is to be an OK watchdog and not an OK lapdog, it is important to examine proposed sections 72.05, 72.06 and 72.07 of Bill C-4 in respect of the Parliament of Canada Act.
My main concern is that these three proposed sections create an ethics commissioner who would sometimes be the servant of Parliament, and at other times would be the servant of the executive. This is problematic because the same officer cannot play the role of a civil servant advising government at the same time as playing the role of a legislative ethics watchdog. My main worry is that Bill C-4 would create a "constitutional hybrid" because the new ethics commissioner would be given responsibility for managing two sets of rules: one for parliamentarians and one for public office-holders.
The new commissioner would be an officer of Parliament, like the Auditor General, but as proposed section 72.07 makes clear, the commissioner would also play the role of adviser to the Prime Minister in respect of the ethical conduct of ministers. In that capacity, the commissioner would play exactly the same role that is currently performed by the Ethics Counsellor — a role associated with an officer of the Crown. When the commissioner acted as an adviser to the Prime Minister, that advice would be confidential, as stated in proposed subsection 72.07(b). If a member of the Senate or the House of Commons were to ask the ethics commissioner to investigate a case of alleged misconduct by another parliamentarian, then the outcome of the commissioner's work would be public, as stated in proposed section 72.08.
The commissioner would thus serve two political masters: the executive and the legislature. One would be served in a transparent manner and the other behind closed doors. I think this would likely create a problem of divided loyalty for the ethics commissioner and undermine the office's credibility.
My one recommendation to this committee is that you take a careful look at the drafting of proposed subsection 72.07(b).
The Chairman: Excuse me, Mr. Saint-Martin, I am not trying to rush you, but I want to point out that the proposed sections to which you are speaking refer to the ethics commissioner in the House of Commons and not to the ethics officer in the Senate. Please carry on; this will be brought up in questions later.
Mr. Saint-Martin: I wanted to raise the issue here today to ensure that senators are aware of it. Proposed section 72.07states:
(b) to provide confidential advice to the Prime Minister with respect to those ethical principles, rules or obligations and ethical issues in general; and.
(c) to provide confidential advice to a public office-holder...
The wording is too broad and vague. In French, it is even broader because it states that the commissioner shall give confidential advice to the Prime Minister, "sur toute question d'éthique" — on all questions of ethics. It is unclear if this wording also implies giving confidential advice to the Prime Minister regarding allegations of misconduct by public office-holders.
If it were to imply that, what would be the objective criteria to determine at what moment the commissioner would play the role of an officer of Parliament or the role of an officer of the Crown? If, for instance, in a pre-emptive move, the Prime Minister were to call the commissioner first for guidance regarding rumours that a minister may have behaved unethically, then no one would be privy to that advice. However, if an MP were to call the commissioner first, then the result of the inquiry would be made public.
Therefore, it seems that timing will be a key factor in determining whether the commissioner is an officer of the Crown or of Parliament and whether his work is publicly available or not.
I think this is a very fragile and subjective criterion for a function that many believe is central to helping rebuild public confidence in political institutions.
The Chairman: Thank you, professor. You should be aware that some members of this committee took the same stand very firmly when we were discussing this bill in pre-study before this session of Parliament. They strongly advised the members of the committee on the House of Commons side that this would be a real problem for them, and they chose to ignore us.
Mr. Saint-Martin: I am pleased to know that.
Senator Andreychuk: As some senators have pointed out, one of the problems in this whole ethics area is that while there may be great debate as to whether the Senate should remain in its present state as a chamber of non-elected members, there have been some circumstances brought to the attention of the public, but they have not been about pervasive misconduct here in the Senate. I think the public understands we are not talking about anything pervasive. A lot of what has been discussed has to do with ministers.
Sitting in opposition, I see the following difficulty with our present system of government in Canada, in which there are a number of political parties. One such party has an overwhelming majority in the House and in the Senate. Therefore, I ask myself how real will be the consultation with the Senate or the leaders of the other political parties? I want clarification on that point.
You have said that the model of having a commissioner or an officer somewhat at arm's-length is replicated in the provinces and in the American states. Some of the provinces have certainly included a two-thirds majority resolution as their way of ensuring that the commissioner will have significant, broad-based approval.
In the case of our bicameral system, with, conceivably, the same political party holding the majority in both the House and the Senate, what guarantees, or consultations with the minority parties, are there to ensure there is not a perception that what the majority wants, the majority gets? Does the bill help to address that situation in using the words "consultation with the leader of every recognized party in the Senate"?
Mr. Saint-Martin: The short answer is no. The bill says that there should be consultation. However, the extent of the involvement of parliamentarians in the appointment process will be determined by politics. It will depend, again, on the balance of political forces in Parliament.
However, there is also the issue of the credibility and legitimacy of this institution. If parliamentarians have the impression that they were not properly consulted by the government as to the appointment process, then they will be very critical of what the ethics commissioner does. In that light, we can look to what happened with the appointment of the Ethics Counsellor. There was a promise that he would be independent and that there would be some form of consultation. There was some form of consultation. However, in the view of the opposition, this office was seen as illegitimate. It has been politicized, in the sense that it has been used as a political weapon in the House of Commons.
Therefore, my only answer to you is that if the government wants to avoid that and create the impression that this office is truly independent, neutral and objective, then there is a political interest on the part of government in being open-minded when involving the opposition in the appointment process.
As to the second part of your question, senator, there are some limits on how much you should involve all parties in the appointment process. The public view of this may be that this new ethics commissioner might be somehow independent of government, but not very independent of parliamentarians in general because they have been much involved in the appointment. There is this kind of balance you need to address as well.
Senator Andreychuk: The mere use of the word "consultation" can be politicized. Would it be better to have a more transparent criterion in legislation? If the words were "with the consent of the leaders of the major parties," or something along that line, it could not be said that it was not fair; it would be a process that takes out that kind of subjectivity as to whether one is properly consulted or not.
Mr. Saint-Martin: I believe that was the amendment made to Bill C-34, if I am right. There were words along the lines of there being consultation and approval of the leaders of the main parties, or something to that effect. That would be better than a vague word like "consultation." It would be less likely to become a very political issue.
The Chairman: To correct the record, I would point out that that was not the amendment that was made. The amendment was to completely remove from the bill the portion dealing with the Senate.
Senator Andreychuk: He is talking about Senator Bryden's amendment. Senator Bryden can tell us what it was.
Senator Bryden: What we had time to deal with was what applied to the Senate. The Senate portion is grafted onto the front of Bill C-4, which mostly deals with what the witness has been talking about, which is the commissioner for the House of Commons. The amendment would have changed the provisions concerning the House of Commons and replaced them with an obligation that said, "The Senate shall appoint an ethics counsellor." That was the amendment that passed 47 to 32 last November.
The amendment that will be proposed this time around will be more detailed and deal with a number of the things with which you are concerned.
Senator Andreychuk: What you are saying is that words like "consultation" can be politicized, but words like "consent" and "proper procedure" lessen that possibility.
Mr. Saint-Martin: Absolutely.
Senator Andreychuk: That is what I am after, as opposed to other amendments of which I am not aware.
Senator Smith: On page 4 of your submission, you reiterate that your only recommendation to the committee is to take a careful look at subclause 72.07(b). At the heart of it, that questions this whole business of the ethics officer and the administration thereof being shared with the Commons. I totally agree with that. From day one, I have said repeatedly that that is my one problem with the bill.
However, I have taken more than a second look at it — I have taken 10 looks at it. The question that remains is: What do we do about it? That relates to the Commons. They have chosen to pass this bill in the same form twice. The first time it was debated, they had the support of four of the five parties.
How do we give them gratuitous advice as to whether or not they should share an officer? I was in the Commons and on that committee many years ago. Were I still there, and were my colleague Senator Joyal still there, they would have been separated. I have reason to believe that the administration at the time would have lived with that. We discussed this with some members of the House. It was almost as if we were speaking Martian. They were not getting our point. It fell on deaf ears. From my perspective, whether I agree with what they are doing or not, we do not tell them what to do any more than they should tell us what we should be doing here.
What the Senate did, to our credit — and I applaud the leadership — is to say, "We want our own officer," and we got it. Some good missionary work was done with regard to getting open minds to react to that. I think the same thing would have happened if the House of Commons had done the same, but they did not and they have now passed the bill twice. Can you give us your reaction to the fact that Senator Bryden's amendment was adopted but the Commons decided not to go that route?
Mr. Saint-Martin: To answer your question, I do not know why the Commons did not decide to follow your advice and that of other well-intentioned persons.
If you look at the British situation, again, the function of managing the ethics code for public office-holders belongs to the Secretary to the Cabinet or the Clerk of the Privy Council, because he is an officer of the Crown advising Crown officers. They have the Parliamentary Commission for Standards to advise parliamentarians, because the two ethics codes are different, as you know. The public expects tougher standards of conduct for ministers and senior solicitors, because they have much more power than backbenchers. The two codes are not the same. We expect the officer that manages these two codes to be different as well.
Why did they not split the function? This is a mystery to me. I do not know. However, it is something that may come back to haunt them in the future, in the same way that some promises made in 1993 regarding creating the office of an independent ethics counsellor came back to haunt the government again and again.
Senator Smith: We are on the same page.
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Senator Fraser: I am very interested in your outline of the three approaches for regulating ethics in the Senate. I do not know whether you followed our debates closely when we did our preliminary study of the former bill. That was at the very beginning of the process.
At the time, we did not want to have our code of ethics in legislation. That was in order to preserve our privileges and rights, and those of Parliament. In my opinion, those reasons were entirely legitimate and even fundamental.
Am I correct to think that at the end of its preliminary study, the Senate recommended a system that is quite similar to the second approach you described? If there is a difference in these categories, does the system adopted by the House of Commons for itself fall into one of your other approaches?
Mr. Saint-Martin: If I understand correctly, the ethics commissioner established by Bill C-4 is responsible for both chambers.
Senator Fraser: No, no.
Mr. Saint-Martin: The Senate and House of Commons will each have their own ethics commissioner. However, the office of the ethics commissioner is established by legislation, not by parliamentary convention.
Senator Fraser: Yes, but our code of ethics will define all the functions, obligations and powers of the office.
Mr. Saint-Martin: The existence of the ethics commissioner is independent of the Senate's parliamentary conventions. In this respect, the model is more like one with an outside regulatory authority. The officer responsible for implementing the code of ethics passed by the Senate will come from outside the Senate.
For example, Westminster has adopted the co-regulatory system. They hired an outside officer for the House of Commons only.
Senator Fraser: Not for the House of Lords.
Mr. Saint-Martin: This outside officer is subordinate to a committee made up of members of Parliament.
Senator Fraser: That is how it would work for us. That is exactly what we recommended.
Mr. Saint-Martin: Except that there the officer has no legal existence, whereas yours would. That is an important distinction.
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Senator Joyal: I have three questions. The first is on the distinction to be made between the status of the Auditor General, who is an officer of Parliament, and the contemplated status and role of the ethics commissioner or counsellor.
I read the article you published last June, entitled "Should the Federal Ethics Counsellor Become an Independent Officer of Parliament?" You stated that there are two characteristics of the Auditor General that are different from the ethics commissioner. The first is the fact that the Auditor General publishes a report. Of course, that publication is a key element of the work of the Auditor General. In fact, it is on that that the office's efficiency is based.
The other element, as you stated in your article, is that the Auditor General's report rarely names individuals. It takes more of a systemic and administrative approach, rather than looking at particular individuals responsible.
Here, with the ethics commissioner, we do not have those two aspects. We do not have the publication of a report per se. The report would be made, according to the proposed bill, to a committee.
We have, of course, the unique situation that a report can deal with a person. It deals with an individual, because, as you know, there are two aspects. The commissioner can give advice to a person who seeks it, or the commissioner may be seized of an allegation of wrongdoing, of violation of the code, resulting in an investigation. There is the capacity to investigate an individual, and there is a report to the internal authority in the Senate. Those are two very different functions or characteristics of the two roles.
It is confusing, in my opinion. I think you stated this well in your article; it is confusing to say that the commissioner will be like the Auditor General.
To me, this is an important element to understand when we establish this bill. That is my first question.
My second question concerns your statement that there seems to be a trend now to involve parliamentarians in the appointments, for example, to Crown agencies, as you rightly pointed out. It seems to be the intention of the government to move in that direction more precisely than before, at least for Crown corporations. We heard yesterday about the immigration board, which seems to be another aspect of the appointments of the Governor in Council to be reviewed. While we are talking, perhaps the Prime Minister is making some other announcements. He is supposed to make an important speech on that issue, too.
In your opinion, is not the involvement of parliamentarians an element of counterbalance to the prerogative of the privilege of the executive, so that the system maintains the integrity of the role, as you properly pointed out with the example of Alberta? In a way, that example paraphrases what the leader himself proposed, namely, that there be some kind of consultation. In Alberta, the process seems to be more precise, as you have suggested. Would you care to comment on that?
Mr. Saint-Martin: Regarding your first question, dealing with the mistaken view that the ethics commissioner is like the Auditor General simply because they are two officers of Parliament, you are absolutely right; the two are fundamentally different. I would argue, based on my research, that ethics commissioners are less independent than the Auditor General because independence is based on not only formal legal rules, but also resources. The budgets of the ethics commissioners in the Canadian provinces are very small and they operate with a tiny staff. The budget of the Auditor General of Canada is huge. My colleague Ms. Sutherland has often suggested that the Office of the Auditor General was not only independent of government but also of Parliament. That is something you might want to discuss with her. That is a fundamental difference as well. Ethics commissioners can generally initiate inquiries into allegations of misconduct only when an external party intervenes. They cannot do it on their own, unlike the Auditor General, who is able to audit whatever she wants to audit. Yes, there is a fundamental difference.
On your second point, I think it could only strengthen the legitimacy of the ethics commissioner if he or she was to be appointed through a process that involves the participation of parliamentarians. That is certain.
Again, I want to return to the idea that independence is not solely based on formal legal rules. There is some kind of sociological meaning to independence. You cannot create a commission that looks quite independent according to the rules — and this has been done in some places — but then, a former politician who is a friend is appointed to that commission. That is normal. Many people are friends with M.P.s or senators or whatever. However, this can create the impression that this officer is not truly independent because he is a former politician. There is a big temptation on the part of politicians, which I understand completely, to say, "If this person is to look not only at my own interests but also at those of my spouse, my children, my business and so forth, I want someone who is familiar with my culture." You want someone who knows what it is to be in politics on a daily basis. The temptation to appoint a former parliamentarian is strong, because he or she knows the culture of Parliament. However, the public can see this as appointing someone from the old boys' network. Although there is a law creating something independent, he or she will not be seen as truly independent. That is why the practice in many Canadian provinces — and my colleague, Mr. Greene, knows more about this than I do — is to appoint former judges because their independence is seen as being greater.
Senator Ringuette: I find that very interesting. It also goes back to your comments about the public perception of an ethics commissioner as either a lapdog or a watchdog.
What do you think the public perception would be if the Senate had the sole responsibility for hiring, firing and reappointing its own ethics officer?
Mr. Saint-Martin: That would depend on the circumstances. If there was an allegation of either misconduct or scandal in the air — that is, rumours that a senator had misbehaved — and if the commissioner was to inquire into these rumours and find no evidence of that, then you know as well as I do that the opposition and the media will say, "Of course he came to that conclusion. He is not totally independent because he can be fired at will." That is why my answer is that it depends on the political circumstances.
Senator Austin: Professor Saint-Martin, I would like to point out, for the sake of an historical footnote, that there is only one member of Parliament who is subject to both the ethics commissioner in the House and the ethics officer in the Senate, and that is the Leader of the Government in the Senate.
Going back to the question posed by Senator Ringuette, the amendment proposed by Senator Bryden last November, and passed, provides that the appointment of the Senate ethics officer be entirely by the Senate. Therefore, the issue has been — and I think you raised it two or three times in your evidence — that such a person would look like a creature of the Senate. In the attempt to avoid having that officer look like the creature of the executive, the situation has been tilted in the other direction.
The bill, plus the undertaking of the Leader of the Government in the Senate, is trying to provide some check and balance so that the person is truly between the two authorities. The Senate will have the role, given the undertaking, of offering a name agreed upon by a majority on the government side and on the opposition side. With the concurrence of the Leader of the Opposition and the Leader of the Government in the Senate, that name will go forward to the Governor in Council by way of a resolution in the Senate.
The previous witness, Professor Gélinas, said that it is not mandated that the Governor in Council accept such a name. There is a truly a power imbalance, if you like. With that check and balance, we hope to safeguard the independence of that officer from the appearance of undue influence by either side. That is the system that is added by the undertaking.
The other point that you make is that the practice of all the other legislative authorities is to combine the responsibility — Alberta, Ontario and the other provinces, and also in the American states. It is a combination of reporting both to the Prime Minister or premier and to the members. That is the precedent that probably influenced the people in what we call the other place to try the same formula. You have heard from some of our colleagues — and I join them and you in saying that it has raised some problems. Those problems have been accepted in the House of Commons.
Those are the points, and I would be happy to hear your comments.
Mr. Saint-Martin: I agree with you. It is a difficult equilibrium in terms of appointing someone who is familiar with your culture and your practices and who is also seen by the public to be truly independent. It is a difficult equilibrium because you do not want to be perceived by the public as just appointing a lapdog. On the other hand, there is the principle of accountability. You do not want this office to be totally independent in terms of the ability to spend public money. You do not want to create a runaway bureaucracy. After all, this officer is a bureaucrat. He has no legitimacy of his own. That is the difficult equilibrium with which you have to deal — absolutely.
Senator Austin: It looks to me, Mr. Saint-Martin, as if we have absolutely ruled out the appointment of a former senator. Although that person would understand the culture, the appearance would be wrong. Perhaps we have not ruled out the appointment of a professor.
Senator Stratton: I want to go back to my question of the previous witness. This is the first small step in an evolution. If this is an evolutionary process, would it not be better for the Senate to appoint its own ethics officer, so that if it wanted to change and improve the transparency of that position, for example, it would be far easier with that approach, rather than having to go to the Prime Minister and say, "By the way, we want to change this"?
Mr. Saint-Martin: That is a reasonable opinion with which I would agree. You are absolutely right to say that this is an evolving issue. It is an evolutionary process. Again, from the cases I have studied, we learn by doing. It is always evolving.
What strikes me, in the case of Bill C-4, is that we are putting the cart before the horse. What I mean by that is that generally, from all the cases I know of, first there was an ethics code, which had a parliamentary, not a statutory basis. It was based on parliamentary convention. Parliamentarians themselves administered the code internally. Then a scandal would occur and there would be a public outcry. Then they would appoint an outside ethics commissioner to administer the code. Here, you are being asked to pass a bill that creates some kind of ethics police, but you do not have a clue about the kind of "criminal code" that this new police force will be managing, and I understand that this causes some worry because you do not want to write a blank cheque.
There is the Oliver-Milliken code, which will likely be transformed into law. However, in all the cases I know of, you have a code first and then a body that administers the code. Here we have the reverse.
Of course, we might suspect that the reason we want to first create the ethics commissioner and then debate the code later has to do with some electoral matters.
The Chairman: Never, of course.
Senator Bryden: I want to try to orient us towards the Senate and what we are struggling with. We assume that we took our best shot at trying to help the people in the House of Commons, and now we are trying to come up with the best situation for us. If I may give just a little background, we really are —
The Chairman: Five minutes, Senator Bryden.
Senator Bryden: We are really under pressure, but not because the Senate has been a major ethical problem for the government or in the eyes of the public or whatever. We have had two or three people charged, but not for any ethics issues. Some have been exonerated and some have been put in jail. However, that did not have to do with things happening in the Senate. Even the problem of, God bless him, Senator Thompson, could not have been fixed with this ethics bill. He finally decided to retire. We are really not part of the problem. However, there is not a senator in this room who is not anxious to be part of the solution, in that there is a public perception out there.
I genuinely believe that the Senate is perhaps the most independent legislative body in Canada, that is, independent of the executive. We have a connection through the Leader of the Government in the Senate, who also, I hope, acts as the leader of the Senate in the government. That connection is there.
For the most part, for 137 years, we have independently managed our own affairs.
Last fall, when we were studying this bill, it was a heated debate. When you go back and look, the issue was debated thoroughly. Time was short, because, as always is the case, there was the threat of prorogation in front of us, and something had to be done. Unfortunately, Senator Austin was ill at the time and could not participate in the debate, but I am sure he looked at the transcripts. Nevertheless, the amendment was made, in the only time that we had, that `the Senate shall appoint an ethics counsellor."
If you look at Bill C-4, much of it is to be dealt with under committees. The rules are to be struck by committees, and so on.
I believe that given the framework in which we function, it is possible for the Senate to structure an ethics counsellor process that creates a fair balance between the government party in the Senate and the opposition party in the Senate, that fixes the term of office, that fixes the reappointment, that says that person will administer the rules as developed by the proper committee — I am getting there — and that, indeed, will remove that counsellor for cause on a majority vote of both government and opposition members.
I do not want to continue any further, but the fact is that we have the opportunity to create a high level of independence and certainly a huge degree of transparency. Would you comment on whether that type of approach, given our history, would be generally acceptable in the public eye?
Mr. Saint-Martin: Your first point, when you said that senators are not part of the problem, I do not know, I can only speculate on this. The public is aware in the sense that the problem lies with those who have powers — with ministers and senior civil servants. In a sense, the fewer powers one has — and I do not want to be disrespectful here — the smaller the problem. However, you need to be seen as being part of the solution, as you said.
From all my research, I know that for politicians this is a very difficult issue. You are damned if you do and damned if you do not. If you do not do it you are seen as hiding something, and if you do it these ethics rules will probably be often used as weapons in political combat, as it has been used in the past few years in Canada.
As far as I know, although my colleagues might disagree with me, there is no empirical evidence that shows public confidence in political institutions has increased in countries where they have adopted an independent ethics commissioner. I know of no evidence of this. Therefore, the idea that we need to create these new bureaucracies to strengthen public confidence is a political argument. It is a good political argument, but it has no empirical foundation.
The Chairman: We have before us now Professor Sharon Sutherland from Queen's University and Professor Ian Greene from York University — formerly of University of Toronto — who will make their presentations, I believe, as a panel. We will start with you, Professor Greene.
Professor Ian Greene, York University: I did my graduate studies at the University of Toronto, but now I am at a much better institution, York University. Of course, it is much better because our president is a former senator.
The Chairman: She has a very nice name, as well.
Mr. Greene: She does.
I appreciate being invited to appear before this committee. It is a great honour to be here, and I hope that I can be helpful to you.
I should like to begin by making a few brief remarks. I have read Bill C-4, as well as the proceedings of this committee yesterday and last Wednesday. First, Bill C-4 is a major step in the right direction in terms of promoting ethical democracy. It will contribute towards raising the trust that the people of Canada ought to have in their political institutions. As well, it will help to overcome the cynicism that many Canadians currently carry with them regarding the extent to which their political institutions can be trusted.
The Canadian Senate does good work, but the work of the Senate is undervalued and therefore less effective than it could be because of the absence of good ethics legislation that covers the Senate.
I am a political scientist, and I teach courses related to public administration, public law and ethical politics. My recent focus is the Canadian court system and ethics in government. Several years ago, I participated in helping to analyze the results of a survey of the attitudes of Canadians towards ethics issues in politics that was organized by Professor Maureen Mancuso at the University of Guelph. I had been following with keen interest the evolution and improvement of ethics rules in Canadian politics since this evolution occurred in dramatic form beginning in the late 1980s.
Democracy is always a work in progress. Canada has made an enormous contribution to the promotion of ethical politics in democracy, through the development of ethics legislation in all of the provinces and territories, legislation intended to prevent conflicts of interest, through the establishment of independent ethics commissions in all of the provinces and territories, through the gradual development of rules to prevent undue influence in lobbying, and through rules that attempt to prevent undue influence in election financing and party financing.
It is interesting that Professor Saint-Martin this morning mentioned to you that there were about 60 jurisdictions that have the kind of legislation you are discussing in Bill C-4. Thirteen of those jurisdictions are in Canada, which puts Canada between 20 and 25 per cent. Canada is certainly regarded as a world leader in terms of promoting ethics in politics. If Bill C-4 passes, we will be closer to 25 per cent of those jurisdictions.
A major deficiency in Canada's political ethics regime is the absence of a comprehensive conflict of interest regime, covering members of Parliament and senators. The failure of the Senate to approve the bill that is now before you would result in weakening the credibility of this house.
The focus of much of the debate on March 10 and March 16 seems to have been on the issues of parliamentary privilege and the independence of the proposed Senate ethics officer. With regard to the former, that is, parliamentary privilege, A. V. Dicey, the great British jurist of the late 19th century, wrote in 1885:
Nothing is harder to define than the extent of the indefinite powers or rights possessed by either House of Parliament under the head of privilege or law and custom of Parliament.
That is from his Introduction to the Study of the Law of the Constitution, and I quoted from the sixth edition, 1902, note 1, on page 56.
He noted that the essence of the concept of parliamentary privilege is that "the Houses and all the members thereof have all the privileges as to freedom of speech, et cetera, necessary for the performance of their duties." This is similar to the essence of privilege as defined yesterday by Professor Maingot.
I do not think Bill C-4 interferes in the least with the Senate's privileges. On the contrary, it enhances them by ensuring that senators, by being free from potential conflicts of interest and being publicly seen to be free from them, have freedom of speech and thought because they will not be subjected to undue influence. Bill C-4 will become an important support for parliamentary privilege.
With regard to the independence issue, Bill C-4 will result in a Senate ethics officer who is as independent as any Canadian judge and so can be trusted to act impartially.
There is no perfect mechanism for ensuring the independence of officials who require independence. In the end, what needs to be done is to take reasonable measures to promote independence and trust in the integrity of our political leaders that the principle of independence is honoured.
The key to making the new ethics regime work is the code of conduct that the Senate will develop. My own view is that that is where you could most fruitfully devote your energies and efforts.
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Ms. Sharon Sutherland, Professor, Queen's University: I am very pleased to take part in the Senate proceedings on ethics. If you would like to make any comments or ask any questions in French, I will try to reply.
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In the last week or so since I was invited to testify, I have destroyed a small forest by printing this committee's deliberations through all of 2003, several Library of Parliament papers, many of the House of Commons' papers and many papers of the British House of Lords and House of Commons.
I have handled these materials and stapled them. Many of them are in my brief case. However, I cannot promise that I have in any way mastered all of that material. Some of the documents I read in the wrong order, so that I believed we were progressing towards self-regulation for a while from restrictive regime of officers of Parliament. I then had to go back and check again. I know that my dates will be approximate, as will my memory of issues on which I may be asked for detail.
Other witnesses, including Professor Saint-Martin, have addressed whether Bill C-4 proposes anything like a workable model. In general, our own task is to settle the question of whether an officer linked to the government by virtue of being appointed by the government can function independently of that same government.
I worry about the independent officers in the sense that I worry about officers of Parliament, because they require very close supervision. I am also worried about the gradual evolution of the deliberations from 1995, when the Milliken-Oliver code first began to be specified.
The task that you faced in 1995 is very different from the task you face today. One piece of advice I would offer would be that the Senate should refuse not only the appointment of its ethics officer, but also it should refuse an independent office over the Senate or within the Senate. However you think of it, you should refuse that office.
Incrementalism in deliberation and accepting a setting and what is understood as a public mood has led to an unhappy set of conjunctures at the moment.
To paraphrase a remark made by the late J. R. Mallory long ago, in referring to Parliament he said that every reform inevitably brings on new problems.
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I appeared before the joint committee in 1995.
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At that time, I could have done a better job of my primary preoccupation, to communicate that transparency, disclosure and publicity should be part of the strategy around any code of conduct. By "disclosure," I do not mean whistle-blowing, I mean simply laying out the facts of one's operation. Transparency, disclosure and publicity constitute pre-emptive protection for all individuals who take part in public life. I notice that Professor Saint-Martin used that word as well.
Professor Saint-Martin set out the machinery choices very well, self-regulation, an arm's length regulator working inside your body and an internal regulator of the type found in the United States.
We have heard much about the Senate's need to be part of a solution or to placate some fictitious beast known as public opinion or public cynicism towards political institutions. It is worth rethinking Professor Saint-Martin's statement that there is no evidence that public perception improves with the adoption of heavy machineries.
I would also urge some investigation of the secular trend in public cynicism as measured by opinion polls not only toward politicians or big government, but also toward big business, big religion and big everything. There may be a general populace trend, or there may be a tendency, to respond in certain ways to questions where the individual being asked the question is specifying his or her ethical stance. Of course, I disapprove of scandal and misappropriation of public moneys because I am a good person and I manage my household budget well. However, this does not constitute evidence that there is only one way forward and that that way is to saddle the house with an independent officer.
I want to address briefly the question of whether it is possible for a government-appointed Senate ethics officer to be independent of the government. I will do this in a very blunt way because many honourable senators have vast qualifications in constitutional law. You heard from a professor this morning who, I thought, did a wonderful job. All of these people know far more about what happens with convention and constitutions than I know. I would just say that it is clear and it is important that, as a matter of simple observation, one can readily see that an officer appointed by the government can function in complete autonomy of the government without ever once thinking of the government's wishes. I would also add, and here is the danger, that such an officer can also function completely independently of the wishes of its nominal regulator, if it chooses to do so.
There are only two necessary conditions for independence of Parliament for an officer of Parliament because they are loosely styled: First, because of the probity of the office, little or no explicit scrutiny of that new office's activity will take place by either the government or the body to which it is nominally attached; and second, there will be little or no voluntary transparency or publicity associated with that office. More completely, that office will not be subject to access legislation and it will not publish any potentially sensitive information about its activities and its members.
Allow me to be inappropriately blunt about the definition of the independence of an appointed officer. I have two themes: First, in many of the officers of Parliament we see autonomous drift because it is difficult for a body composed of different parties to get together and provide tight supervision to a body that nominally works for it — hence, autonomous drift — and second, there can occur a kind of institutional relentlessness that involves an enlargement of its mandate.
The real question behind all of this is this: Who governs? In the case of the government and cabinet, if it must race from one very old but recently uncovered scandal to the next and if it feels that it must respond to all charges by activity in the area of ethics, then something rather odd is operating. The government finds itself unable to address the underlying problem and it cannot control its own agenda. An ethics officer in the Senate or an ethics commissioner in the House of Commons could enlarge its role correspondingly because another player would require astute supervising if the intention were to maintain charge of the officers.
In his testimony before this committee, Professor David Smith noted that officers of Parliament are assuming authority in the system of Parliament that I do not think was fully appreciated in the beginning. Professor Smith explained why he is familiar with the officers of Parliament. However, we see former Senator John Stewart, now Professor Stewart, who is closer in his views to public perception, return to the Senate, and say that appointment by the government is satisfactory for the Auditor General because the Auditor General has only one uniform task, which is to audit the government's accounts and financial performance and report that to the Speaker of the House of Commons.
Professor Stewart assumes that an audit pertains to money. Professor Stewart is one of the finest scholars of procedure in the Canadian House of Commons and one of the closest observers of the House of Commons that we know. I much admire and often use his book of the 1970s. However, it has escaped Professor Stewart and most members of the Canadian public that the Office of the Auditor General uses about 10 per cent of its budget for anything close to financial audit within departments. I must say "within departments" because there is a separate budget for financial audit of Crown corporations.
Just over one week ago, Ms. Fraser, the current Auditor General, spoke to the Atlantic Centre for Ethics and Public Affairs at St. Mary's University. She spoke to ethics and not audits as a method of controlling wrongdoing. I see this as what we used to call "the lack of a connect." We have financial wrongdoing but we do not carefully reconsider financial methods of investigation and the use of financial controls by financial agencies. Rather, our response is to create a whole new wave of officers of Parliament and something that has even more probity and is closer to the Houses of Parliament. They would be officers of both Houses, I understand, in the same way that the Speakers of both Houses are. We would create and even sanctify people to teach and police the ethics.
Where is the "connect?" We would be responding to a cynicism, we think, about financial misdeeds by creating ethical controls in a house that has not had a major financial scandal in a very long time. I have read the precedents but I did not understand them all. It did not seem to be to be terribly serious.
I would recommend that the Senate go to a totally different model. In its wisdom, this committee arranged to hear about the House of Lords in the U.K. on two occasions, April 7 and June 9, 2003. The ethics system in the House of Lords apparently works very well, using one third of the time of one legal officer. It is based on transparency and openness; you know how it works. Members voluntarily register their interests with the law clerk of that body. That legal officer's assurances that the members have done their duty are the bond that that transaction has taken place. There is a register of interests in detail and it is published in various places, including the Internet, and updated once per week, in a general way, without quantum.
In their speeches, the members adopt a shorthanded method to identify their interests. In this simple way, members are protected from suspicion by their openness and from the operation of influence upon them by those near and dear to them. It is what Professor Saint-Martin referred to as self-regulation. This is the least burdensome method that constitutes policing and ethics for some 700 persons.
I know that the Lords are not remunerated. However, it did take a leap of faith on the part of the membership of the House of Lords, because, if you are not remunerated by the House of Lords, if you do not have a very large parliamentary pension and if you are not really independently wealthy, you do things like lobby both Houses of Parliament for pay. For some reason, this system has worked.
I will not further try to sell publicity as the sole technique for promoting ethics because I have absolute faith in the wisdom of this body. However, I should like to point out some of the other dangers of Bill C-4 as I see them.
First, I think the Senate has proposed or is agreeing with the government that the more arcane provisions of the Parliament of Canada Act and of the Criminal Code as they relate to parliamentarians be updated. These provisions will be incorporated into a code that, by virtue of not being legislated, will not be justiciable. Thus, the code can be amended internally. I think this is a case of an institution not thinking of the perceptions that might greet this change.
Most of us have grown up aware of the fact that attempting to bribe a parliamentarian is a criminal offence — it is taught to us in high school — and that parliamentarians and their families are prohibited from benefiting from government contracting. What is not easy to understand immediately is that if you do these things it will still be a criminal offence, but it will not be highlighted by being in the Parliament of Canada Act or in a special section of the Criminal Code.
My worry, then, is that the public might think that the Senate was trying to make life easier for itself. Thus, there will be a brisk flurry of total misunderstanding of what is going on. I know this is the opposite of what the Senate has been advised by constitutional experts. However, what I would think would be more reassuring for the public would be for those old acts to be modernized, to the extent possible and appropriate, and then simply listed beside the code that you may or may not devise and adopt.
I think the Senate takes far too much risk by attempting to respond to Chief Justice Beverly McLachlin's remarks about the whole ethos in the governance of a democracy. That cannot be handled by a part-time ethics counsellor using a code that is not justiciable; it is too big.
The public may well ask of ethics officers who hold all the information about senators totally secret, "Why should we believe you?" The files could then be opened in haste in response to some terrible event that is bond to occur by the law of averages, and the media will then spot what they see as many longstanding conflicts.
Likewise, in my perception, the evidence of March 10, 2004, reads in an unappealing way in relation to the secrecy that enshrines the relationship between the ethics officer and senators.
I do not know if you have ever thought about this, but what would protect individual senators from this officer's intimate knowledge of their interests and activities? I do not know if I am the only one who watches detective stories on television.
I should like to see more attention paid to ideal systems of transparency found in some public agencies and other bodies. I have recently done some institutional research on governance mechanisms of public agencies and corporations. I think the two best self-governed bodies are the U.K.'s two principal funding institutions and their respective codes of practice. I have in mind the Economic and Social Research Council and the Biotechnology and Biological Sciences Research Council. Publicity is given for factors like attendance, leaves of absence for various reasons, service on committees and so forth. All these things are public as they are published on a regular basis.
My final question to you is the following: In a democracy, should the bodies that constitute its representative machinery be either spared or refused the freedom to characterize themselves in the views of the citizens? I know that is a complex construction, but I cannot say it any better, at least not on my feet or on my seat. In ordinary English, why cannot you speak and act for yourselves? Why cannot your own performances be your bond? Why cannot your own disclosures be what we see of you?
As part of this then, I ask: Why would the Senate, or even the other place as you call it, place its ethics in the hands of an official?
Feiner, not the man who wrote the play Beggar on Horseback but his brother, said long ago that, by definition, democracies are not governed by officials. My own view is that we should do our best to avoid situations such as the one you are in now. Publicity and transparency are your best ways out of it.
Senator Andreychuk: Professor Greene, I understood your point and I will take it into account.
Professor Sutherland, you have touched more than the bill. I appreciate that. It has made us think about a broader situation. We have had quoted to us the words of the Chief Justice about democratic ethos being important. It seems to me what you are saying to us is, "If we are really a democracy, the dialogue about our behaviour, our standards and our performance is with the people." In the Senate, we have one problem; we are not elected. That is one barrier.
What you are saying is that we may be selling — and I will put it in very blunt language — a pig in a poke to people when we say, "Just accept Bill C-4 and you will have solved your ethics problems," instead of, perhaps, collectively being concerned about this public perception or reality that is not plaguing only Canada but which is now plaguing countries worldwide. It is a worldwide dilemma now, the issues of honesty and integrity and proper functioning for the benefit of citizens as opposed to benefiting oneself. It should not be all about me, or all about us here. It should be all about the people.
Do I read your message correctly that we should not overstate what Bill C-4 is all about but that we really should get on with the business of doing sometime more important about the ethics problem? You have given us many clues as to how to do it.
Ms. Sutherland: You have understood me as well as I understand myself. I wrote the paper at 2 a.m. this morning, and while Professor Saint-Martin spoke, I destroyed it in 20 minutes. My message is that, yes, the Senate should characterize itself by its own acts and deeds. I do not really see the lack of the election of senators as being a barrier to the Senate's characterization of itself as the body that is very much concerned with the quality of the law that comes out of Parliament and with standards of conduct. Election is, of course, the pre-eminent method of choosing representatives, but that does not mean that a body such as this is not valuable.
From what I see and from the e-mail I get, the public is upset about financial wrongdoing. They do not connect it with ethics behaviour. Ethics has come to be the chapter-heading word for very much that is wrong.
I look back to the 1995 testimony. It was either Senator Stratton or Senator Joyal who picked me up on confusing two things, on giving the impression that ethics and probity were somehow the same thing. I took that lesson to heart, but I would say that 1995 was the last time that distinction could really be made, because, since then, we have totally confounded the two. To try to address the public's concerns about loss of control over finances and dishonesty in the bureaucracy or with members of government with what is called an ethics package seems to me to not understand where the concern lies. The public has not had that long dialogue and the blurring of the two concepts.
Senator Fraser: I have a comment on Professor Sutherland's presentation and then a question for Professor Greene.
I want to reassure you, Professor Sutherland, that, to the best of my knowledge, every member of the Senate shares many of the preoccupations that you outlined. In particular, much of the effort of this committee and of the chamber has gone to ensuring that we would not be subject to the kind of ever-growing, all-powerful, outside avenging angels that I think you envisage.
What is envisaged in this system, is somebody who (a) could only do what we told them to do and (b) would only give advice but could not make decisions — decisions would be made by the appropriate body of senators. Much of the really anguished argument that we have gone through for the better part of a year now has not involved that set of principles but the further concern that, in addition to being very sure that we have a system that will work without destroying the integrity of the Senate, we also must be aware that public concerns may not be allayed by a system in which we are entirely in control of everything. If I, John Q. Citizen, am able to determine who is able to sit in judgment on me in anything — who they are, what they do, what their pay is — I will be perceived as having self-interest in the outcome of the process.
As Senator Austin suggested, it is proposed that there be a balance inserted here and that that balance be a system of mutual vetoes. The government cannot impose on us an ethics officer that we do not want, but it can veto a wildly unsuitable lapdog-type or otherwise unsuitable candidate.
That matter of public concern leads me to my question to Professor Greene. You said that you had done some analysis of public opinion polls and that you are a political scientist. Can you describe to us what you know of what the public thinks about the Senate and senators, both good and bad? I am not asking you to speak to the truth of public opinion, but just to the fact of public opinion. What do they think of us?
Mr. Greene: In a nutshell, the surveys that I have seen show that most Canadians think that the Senate is not a terribly important body, a waste of public funds, and — at least until the headline in the National Post this morning — many people in central Canada thought the Senate should just be abolished.
In Western Canada, where I originally came from, there is great hope that the Senate can become a meaningful body.
In terms of public opinion, those are some of the thoughts. My own feeling is that the Senate does a lot of useful work. I have appreciated many of the Senate reports that I have read in the past. I think it could become a much more useful body in the future.
In terms of public opinion in general, both Professor Sutherland and Professor Saint-Martin said that there is no empirical evidence that the ethics commission system in the provinces has done any good, but that is not true. I did a study for the Royal Commission on Electoral Reform and Party Financing in 1991. I counted all of the stories related to ethics scandals during the 1980s, right up to 1991. The stories about ethics issues in politics were really at their peak, especially involving cabinet ministers, during the Sinclair Stevens crisis, but there were crises in Ontario, British Columbia and other parts of the country as well. Public cynicism, as measured by a sociology professor from the University of Lethbridge, was at its lowest point at that time as well, because of all these stories.
When they put the ethics commissioners into place in Ontario and British Columbia, the number of stories dropped because the elected members had good advice about what conflicts of interest were. They had clear legislation and knew how to avoid conflicts. The number of scandals plummeted. Public trust came up. If I remember correctly, by the mid-1990s, public trust had more than doubled since the late 1980s. I cannot prove that the two are related, but it would be suspicious if they were not.
Senator Fraser: To go back to what they think about senators, do they think we are honest, upstanding models of integrity or corrupt political hacks? What do they think about?
Mr. Greene: Quite frankly, these are issues that Canadians just do not think about. In political science, we have a theory called the two-step flow of communications. Who are the opinion leaders and who are the opinion followers?
Every morning, I read at least two newspapers and I try to clip out the stories related to political ethics issues. My view of the opinion leaders, at least in The Globe and Mail, the National Post and The Toronto Star, is that they think the Senate needs conflict of interest rules more than the House of Commons. That seems to be the consensus.
These columnists read the literature. There was a famous book written by Professor Colin Campbell about the Canadian Senate. He is now a Canada Research Chair at the University of British Columbia. Before that, he was an eminent professor at Georgetown University, and before that he was at York University. He showed that he thought a number of senators were in conflict-of-interest positions but there were no rules to prevent that. I think that is the perception among many opinion leaders, namely, that the rules are needed in the Senate and that it can become a more credible and effective body once the appropriate rules are in place.
Senator Bryden: Would Professor Sutherland care to comment on the answer just given and on what senators have said?
Ms. Sutherland: I think the senators' remarks are very fair. Given the situation in 2004, you are trying to find a way to balance the various sets of needs. Basically, all I have suggested is going to a different model, although I realize it is late in the process. However, things happen. The House stands down; things do not get done. This has been going on since 1997. There is every reason to hope that you will have another opportunity for reflection on the uses of transparency and disclosure, or register of interests, perhaps giving the function of a register to a legal officer who would give advice and be advised by a committee and not solidifying it into an office of the Senate.
Therefore, I do not believe that rules prevent anything. There are a couple of ways that rules operate. One is that people read the rules very closely and look at ways to circumvent them. That is the behaviour of what I call loophole persons. Another way that rules operate is that they give people a false sense of security. It is a group thing. I think the transparency model is more individualized and it allows each person to speak for themselves with their deeds and their words.
On the business of opinion polling, one of the two arrows in my quiver — and I guess I only have two — is research methods. I do not have a lot of faith in the methods that are used in polling. Questions can be worded in different ways. The public is usually asked for its opinions after some big event. It will turn out that the public is very adamant and you get a huge response and it makes everyone overreact in another quarter.
Therefore, we do live by polls. I know that. It might be an idea to do some empirical research of your own. I think people's views of public bodies and officials moderate to the extent that they have been in contact with them. People dislike big government but they like the programs that they make use of themselves. Canadians like health care. That is no accident. It is because most people are ill at one point in their lives or have loved ones who become sick. The closer an experience becomes to an individual, the much more moderate their opinion becomes of that body. I do not see the utility of using public opinion as a kind of bogeyman. I realized that I could be seen to have overstated the case on what could happen in the case of an officer of Parliament. It can become a self-directing body. However, we also build our own bogeymen, and one of those is the threat of public opinion.
The Chairman: I began to think that, perhaps, we had a wrong juxtaposition here of witnesses appearing here as a panel.
Senator Austin: We have two completely opposite poles of advice in front of us. That makes it even more fascinating, so that we can compare. Obviously, the starting points for the two witnesses are very different.
I should like to take up the key word of Senator Sutherland, which is "overreact." In public policy terms, historically, we have seen overreaction. In the 19th century, there was the case of Russell v. the Queen, in which the courts determined that alcoholism was a matter for peace, order and good government. After the courts determined that, practice determined that it was not. It may have been an overreaction at the judicial level, resulting from public opinion.
Here, Senator Sutherland, is a series of actions over a long period of time. Could you describe this as the overreaction of the Canadian political community? The British Columbia legislature has appointed a Conflict of Interest Commissioner; the Alberta legislature has appointed an Ethics Commissioner; the Ontario legislature has appointed an Integrity Commissioner; the New Brunswick Conflict of Interest Commissioner exists; the P.E.I. Conflict of Interest Commissioner was appointed; the Newfoundland Commissioner of Members' Interests is appointed; the Northwest Territories has a Conflict of Interest Commissioner; and Nunavut has an Integrity Commissioner. In Saskatchewan and Yukon, there are also Ethics Commissioners. In those two cases, they are not appointed by the government but appointed directly by the legislature. I think we have covered 13 political entities.
In the federal Parliament, we have seen an Ethics Counsellor appointed by the Prime Minister to deal with the ministry.
The question is whether all those politicians were overreacting to the public demand that has been placed on them for more probity and more objective standards. We can go to the U.S. system, which is disclose everything and do anything; or we could stay with the old system, which you are advocating, which is put the integrity issue as the responsibility of every member and only find fault when fault is found. Do not prejudge the possibility and the occurrence of fault.
I would suggest that the train has left the station. It may be an overreaction, but it is a response to public demand that Parliament deal with Bill C-4. We will find out later in our political life whether this is overreaction or proper reaction. That is an event, I suppose, to be determined.
I wanted to ask you a specific question. I was not sure from your evidence, although you do not believe the legislation is good public policy, whether you believe that each of the two Houses of Parliament should enact, under their rules, a code of conduct, or is it also your view that that is a pre-emption of the honour system? Could you clarify that for us?
Ms. Sutherland: Surely. I hate to tell you this, but I have a big interest in you being right about everything from this moment forward, because twice you referred to me as Senator Sutherland.
Senator Austin: I am in a very good mood today.
Ms. Sutherland: All I have to say is, "Thank you, I accept."
Senator Austin: I wish it could have real legislative value, but it does not, I regret to say.
Ms. Sutherland: Just to clarify, I know better than to take on Senator Austin.
I am advocating the British system, which does not leave the whole thing up to the individual but, in fact, puts as much of the individual's private situation as possible into the public domain, including information on friendships, which one of your witnesses said was far more important to him than family.
I looked up the register of interests in the British House of Lords, and it is true. All the interests are listed. I even looked up Lord Black of Cross Harbour. The list, which is supposed to be updated weekly, was printed as of a few days ago, and it was as long as it ever was. Perhaps he has not called in lately.
The basic point is that that form of transparency and moving to modern methods of communication like a Web page can do very much the same thing as an officer model.
I agree that the Canadian political community is very concerned. I happen to think that it is concerned about probity and that ethics has become a very general word that means very little, so I should like to see people work separately on probity with much more energy and deal with ethics by transparency and publicity. Incidentally, the member of the House of Lords who had chaired the committee that brought about the result of the register of lords' interest said that as soon as the register went on line, people completely lost interest in it. People forgot about it. It is boring. They do not even get very many hits on the site.
The senator also asked whether this body should enact, under the rules, a code of conduct, whether you went for a British system or for the system that is now placed before you for your approval. I think you would have to have a code of conduct under the rules, and I read a good deal of testimony to the effect, I believe, that that code would not be justiciable, that the courts would not look into the contents of that code. That was why I suggested that the tougher provisions dealing with senators might be left with the Parliament Act and the Criminal Code.
Senator Austin: Thank you, Professor Sutherland. I am sorry to demote you, or promote you. I am not sure what that is.
Professor Greene, I looked at your testimony before the House of Commons committee, and Senator Fraser asked you the question that dealt with whether this legislative regime before us now might result in an increase in public trust, and you said there, as you said here, that public trust was enhanced.
I wanted to ask you why you think that was so in the case of those analytical works and whether you think it is likely to be the case here and why.
Mr. Greene: One of the things that I have noticed about growing older is that sometimes I change my mind about things. Back in the late 1980s, I shared most of the concerns Professor Sutherland outlined so well today with regard to the new system that was then being put into effect in Ontario. I thought all those horrible things would happen. It thought it would not work but would simply increase public cynicism. In fact, I was wrong.
One of the reasons the Ontario system has worked, is that, first of all, the first permanent ethics commissioner was extremely good — Greg Evans. The legislature and the government chose well. Second, he was dedicated to explaining the rules to individual members. Most of us think we are ethical, so we do not need the rules explained to us, but sometimes we have different understandings of the rules, so it helps to have someone like Greg Evans or Ted Hughes explain them in down-to-earth ways that one can understand. Because of that, people do not make the kinds of mistakes they used to make. They understand what the rules are. Those are two major reasons for the system working so well.
Of course, Greg Evans was a person who did not want it to become a huge bureaucracy. He was proud of his small budget. That is something else to take into account when thinking about who should be the ethics officer for the Senate.
Senator Carstairs: I was interested in Professor Sutherland's distinction, at least what I thought was a distinction, between financial wrongdoing and ethical practice. I think the two are absolutely and totally linked. I think people make mistakes with respect to financial wrongdoing because they do not follow appropriate ethical practice. I should like Professor Greene's comment on that.
Mr. Greene: Well, they are certainly related. Originally, conflict of interest rules only took into account personal financial gain for public office-holders, using public office for personal financial gain, which is clearly unethical. As time has gone on, I think the rules have broadened. We want people who are in the best possible position to do their jobs as legislators, to ensure that they are not doing their job for personal gain or to do favours for their friends and associates, that they are doing their best in the public interest. That is why the rules are in place. It encompasses more than just financial matters, which are certainly ethical issues; it is beyond that and beyond conflict of interest.
Senator Carstairs: Professor Sutherland, most senators have to deal with the fact that there has been a broad interpretation of the Parliament of Canada Act. Many senators have been given advice that they cannot be professors because the Government of Canada through grants indirectly funds universities and that they cannot sit on boards of charitable companies because they might indirectly receive funding from the government. In my case, I was the president of the Prairie Action Foundation, which raised money for research into family violence, and if researchers were to receive funding, that would put me in conflict with the Parliament of Canada Act. It was a dilemma that that was not the appropriate place to deal with some of these issues.
Having said that, I think there must be rules. Senators arriving in this place need to have guidelines and rules as to what constitutes conflict and when that occurs. For example, an officer of a corporation has certain rules with respect to disclosure of one's assets and has certain windows of opportunity for the selling of shares. I would envisage the same kinds of provisions in a code of conduct. Once there is a code of conduct, it needs to be administered.
The committee examined the code of the House of Lords, interestingly enough. I looked at the same disclosures that the committee looked at and discovered that a number of lords disclosed very little of what they have. My own sense is that the honour system is no longer good enough for public perception. I should like your comment on that.
Ms. Sutherland: Senator Carstairs, you probably have better information on the accuracy of the register or the amount of real exposure in the registry than I have. I like the principle because it sets people in the right direction, which basically allows more of their private persona to become public. In that way, it is a little more modern. People are not pretending to the same degree of objectivity and certainty in their judgments. Rather, they are declaring their memberships, directorships and ownerships of shares, et cetera. Senators should keep that in mind as I am speaking. I am neither offended nor quelled by that.
Thus, I take your comments as an interesting perspective and piece of information. I agree with you that the Parliament of Canada Act is badly outdated. My point is that to the extent the public may perceive or commentators in newspapers may perceive that the hard punishments or hard protections that apply to public office-holders are being mitigated, they will think that bad. Professor Greene made the distinction between the opinion leaders and others. The opinion leaders happen to be the writers, columnists in the newspapers and the ones that hold forth on television. They are no longer people who write books.
Senator Carstairs: It is one thing to talk about opinion leaders. I do not think many Canadians spend much time in their day-to-day lives worrying about their local senator. I think that is a given. However, it is also important that opinion leaders write about what we do. If they do not, then I would suggest that we have no legitimacy whatsoever. I question our legitimacy and that we are not elected. Having said that, what legitimacy do we have if no one talks about us, writes about us or discusses us?
Ms. Sutherland: You want this to assist in your investigations and for the committee of public finance, not for somebody's record of attendance many years ago. My point is to put your best foot forward.
Mr. Greene: My concern is that, currently, I do not think the Senate has a great deal of legitimacy. If some form of ethics legislation covering the Senate were not put in place in the near future, then the Senate would have less legitimacy than it has now. This would not be good for Canada.
You are absolutely right, I think the honour system works in many cases; however, in the past, the problem with the honour system is that people would interpret the rules differently, thereby leading to issues, which is why all Canadian legislatures have brought in an independent person to advise on the meaning of the rules and to decide whether the rules might have been breached.
Senator Joyal: I should like to say to Professor Greene that I hope the last book he read about the Senate was not by Colin Campbell, specifically, his thesis at Duke University. There have been be many books on the Senate, and I would refer you to Professor David Smith's book published last year. He did a thorough review of the work of Professor Campbell and gave it a Canadian perspective.
That being said, we may be trying to give the impression that we are legislating morality. For many people, the matter of ethics covers a broad use of values, transparency, probity, dedication and professional capacity at the service of the community, especially when dealing with politicians.
As Professor Greene and Senator Carstairs said, people do not distinguish between city counsellor, MLA, senator and federal MP. The public receives, generally, a perception that is the result of many circumstances and many stories reported by the media.
We have been concentrating on the issue of conflict of interest that is deemed to be financial. A senator with a financial interest should place the public interest ahead of his or her personal financial interests. We all understand that and it is simple.
In the day-to-day lives of senators, this is not the major issue at stake. The proof is that there are few instances in which the major reproach to the Senate of a senator is conflict of interest. That happens more often with ministers because they have the power to make decisions about finances and, of course, their friends. We all know that. I do not think we need to recall any specific instances of it.
To me, the most important elements of ethics are what is right and what is wrong. That is the definition of ethics. It is almost instinctive. One knows what is right, and what is wrong. The major reproach that we can address to the Senate generally is about attendance and independence.
Professor Sutherland has referred to the attendance issue. The major story that was damaging to the Senate was about the attendance review.
The draft code that we have presently deals essentially with conflict of interest based on financial issues but it does not review that rule. It does not change the system or improve the attendance record of senators. This is a horror story that would be very damaging to the legitimacy of this institution as long as it stands in the Constitution of Canada.
The other issue is independence. The very nature of this institution is to exercise its independence to review legislation and government decisions.
What can impinge on independence? You have said that conflict of interest based on financial views might impinge on independence. In fact, the most recent polls show that party discipline and the imposition of whip lines seem to be more on the minds of Canadians as far as their members of Parliament are concerned. In the overall exercise that we are undertaking, I wonder if we are not, in fact, shifting the interest over a person who will become the so-called guardian angel of ethics. We are trying to put in place someone who will not have the mandate to deliver what Canadians are expecting from their politicians generally, be they elected or non-elected. By the way, most of the scandals that have occurred over the last year have come about more with the elected as opposed to the non-elected.
This aspect of our discussion and our work is very fundamental in the system we are putting into place because it will remain short of what we are looking for, which is to ensure that the process remains sound, credible and, overall, legitimate. That is to say that the decisions that come from this place are accepted. That, to me, is the most important measure of legitimacy. When we make a decision in this house, publish a study, review an issue and amend or accept legislation, is that decision being seen as legitimate? What is the process we have followed to reach the decision? To me, that is the most important test of legitimacy.
Would you care to comment?
Mr. Greene: Bill C-4 is not a silver bullet. It will not solve all the problems. It is one thing that needs to be done to tackle a number of ethics issues. Ethics is simply standards of appropriate behaviour, as you pointed out.
Attendance needs to be tackled. Appropriate behaviour on many fronts must be tackled.
If Bill C-4 is passed, my hope is that the Senate will be perceived as having higher ethical standards and more good people will be willing to be appointed to the Senate. To give it independence, the Senate needs high-quality appointments.
Ms. Sutherland: I guess I am kicking a dead horse. If I have one last thing to say, I would say that, if you are to pass Bill C-4, think about what is in the code of conduct, think about how heavy that office will be. Think about the sorts of things that the House of Lords has done in the way of transparency, including transparency with regard to attendance and the scrutiny or publicity on possible conflict of interest ideas.
Your committees issue well-read and important reports. Some of them enter the academic literature and stay there with the same durability as our own probably more flighty work.
Since we were briefly talking about books, there is a book that dates from the mid-1980s by Bernard Manin, entitled The Principles of Representative Government. In it, he makes the point that we are in a new era. He glorifies opinion polls. He says in his book that we are in a third stage of representative government, where the image of politicians, in this case elected politicians, is negotiated with the public. I find that a very sad image in relation to the House of Commons.
It crossed my mind that, perhaps, it could be a positive strategy with regard to the Senate. You have an opportunity to negotiate an image with the public. I think the disclosure in the sense of publicity and the transparency work of the British House of Lords is an important part of that.
The Chairman: I wish to thank the witnesses for attending here and staying through a very long session with us.
The committee adjourned.