Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 3 - Evidence, May 13, 2008
OTTAWA, Tuesday, May 13, 2008
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill S-212, An Act to amend the Parliamentary Employment and Staff Relations Act, met this day at 9:35 a.m. to give consideration to the bill; and to examine the issue of developing a systematic process for the application of the Charter of Rights and Freedoms as it pertains to the Senate of Canada.
Senator Wilbert J. Keon (Chair) in the chair.
[English]
The Chair: Honourable senators, appearing before us today are Senator Andreychuk and Senator Joyal, who will be a ``team'' on these issues. First, we have the issue of developing a systematic process for the application of the Canadian Charter of Rights and Freedoms as it pertains to the Senate of Canada. Following that, we have Bill S-212, an Act to amend the Parliamentary Employment and Staff Relations Act.
Senator Andreychuk and Senator Joyal, who would like to lead?
Hon. A. Raynell Andreychuk, Senator, Senate of Canada: Good morning, colleagues. I think it would be more efficient if Senator Joyal were to present the issue within the bill that he has proposed. It is a specific of the generic issue that I am concerned about it. It arose out of the case that got me thinking, both as to how we apply the Charter as well as to human rights issues on the Hill.
There is now a specific road map by the Supreme Court as a result of the Vaid case. It would be helpful if we looked at the specifics and then looked at general. I do not know if Senator Joyal had a choice but I think we have some agreement.
Hon. Serge Joyal, P.C., sponsor of the bill: Thank you, Senator Andreychuk. Good morning, colleagues. It is a special feeling to be sitting at the end of the table. We are used to sitting at the sides or the front. I have the impression of being in the box of the accused this morning.
Senator Andreychuk: You are.
Senator Joyal: Thank you. As my mother would have said, ``You better behave, and tell the truth.''
Honourable senators, the issue that is raised in Bill S-212 this morning might appear as being very complex. However, I will try to put it in simple terms or in lay terms so that it will come to a simple question.
As is usual in common law, the issue stems from a practical case. The case essentially was that the driver of the former Speaker of the House of Commons, Gilbert Parent, claimed to have been dismissed under an allegation of discrimination. Mr. Vaid was a person of colour.
[Translation]
This individual of a certain ethnic origin was convinced that he had been unfairly dismissed. Consequently, he sought to have his rights reinstated in accordance with Canadian laws currently in effect.
[English]
Mr. Vaid claimed that he was discriminated against by his dismissal, and he felt that his rights should be protected under the Canadian Human Rights Act. He made a complaint to the Canadian Human Rights Commission, and it was accepted. That complaint was then sent to the Canadian Human Rights Tribunal, and the tribunal recognized that Mr. Vaid had grounds to start an investigation. However, the Speaker of the House of Commons claimed that Mr. Vaid's position was one of ``privilege.''
What does that mean? It means that the status of Mr. Vaid was essentially under the responsibility of Parliament. In other words, that the Canadian Human Rights Act did not apply to him; that he could not go to the tribunal and he could not seek redress under the normal common law regime that protects any Canadians who feel their rights have not been respected. The Speaker, in his decision to contest the capacity of Mr. Vaid to seek redress under the normal common law regime — under the normal system that applies to any citizen who is covered by the Canadian Human Rights Act — forced the case to the Supreme Court. The decision is important for us also because the capacity for Parliament to have privileges under the Constitution exist essentially on the same basis in the House of Commons and the Senate.
What is a privilege? What is the essential nature of privilege? The concept of parliamentary privilege may seem strange in 2008 because we live in a society that claims to be established on equality of rights — equality of men and women and protection of minorities. Mentioning parliamentary privilege creates the impression that we have a different class of conditions. That offends the sense of equality that permeates the Canadian democratic parliamentary system.
It is a concept stemming from ancient statutes dating to 1689, the Bill of Rights. You may have heard that in your history lectures in college or university. After the glorious Cromwell revolution when Britain re-established the monarchy, the king was faced with a Parliament that wanted to assert its rights to ensure that the king could not manipulate the House of Commons. In other words, the MPs could not be sanctioned by the king in expressing their views.
If you were a member of Parliament in the 16th and 17th centuries, the king could send you to jail for what you said in Parliament if you offended the king or one of his institutions. The king could also get at you through the courts that he was appointing. In that case, you would not have the freedom of speech and expression that was essential for any parliamentarian to exercise his or her duties. Therefore, the conclusion was that parliamentary freedom of speech is a privilege. Anything you say as a senator or an M.P. in Parliament is protected by freedom of speech. In other words, you can say anything you want in Parliament against anyone and you cannot be held liable in court for what you have said. That still exists today. It is the essential principle of parliamentary democracy for an MP or senator — or members of the House of Lords in those days — to express his or her views in the way he or she wants to express them.
That was confirmed by the king in section 9 of the Bill of Rights, 1689. It states clearly that not only do parliamentarians have freedom of speech but they should have control over the proceedings in Parliament and of their internal affairs. For almost 400 hundred years now, we have had that principle protecting the right of Parliament.
Let us return to the issue of Mr. Vaid. When the Speaker went to the Canadian Human Rights Tribunal to contest the driver's capacity to seek redress, he claimed that the tribunal could not intervene to protect Mr. Vaid according to the ancient principle of the rights of Parliament. Mr. Vaid had to seek redress only under the parliamentary responsibility to manage its internal affairs.
Mr. Vaid's case went from the Canadian Human Rights Tribunal to the Federal Court, to the Federal Court of Appeal and then to the Supreme Court of Canada. The question at the Supreme Court of Canada was a simple one. It is on page 2 of the article I published in the Canadian Parliamentary Review:
The question that the Supreme Court answered in 2005 was the following: Is the Canadian Human Rights Act. . . constitutionally inapplicable as a consequence of parliamentary privilege to the House of Commons and its members with respect to parliamentary employment matters?
Put simply, does the Canadian Human Rights Act apply to a parliamentary employee? The Speaker said no, because Mr. Vaid is an employee of Parliament. Being an employee of Parliament, he is under the sole jurisdiction of Parliament. That was the position advocated by the Speaker's legal counsellors appearing in court. The Supreme Court decision, in its decision, simply answered, yes, the Canadian Human Rights Act applies to parliamentary employees.
Therefore, that immediately raised a question. If the Canadian Human Rights Act applies to the employees of Parliament, are there any employees of Parliament who could be subjected to a privileged position? In other words, are there employees of Parliament who may not be covered by the Canadian Human Rights Act because their responsibilities may not be closely associated to the legislative and deliberative function of Parliament?
Let me explain that in lay terms. What is the deliberative and legislative function of Parliament? You know it as a member of Parliament. It is to debate legislation. It is to debate issues. That is essentially your responsibility. When you debate legislative issues, a number of persons assist you in that capacity that would fall within the specific responsibilities of management of internal affairs.
The court did not enumerate them at length, but it is common sense that the Clerk of the Senate, for example, would be in a privileged position because without that role we would not have the Orders of the Day. Also, the Black Rod maintains order and has the capacity to prevent outside interference in the functioning of Parliament.
The court defined a very narrow context in identifying parliamentary employees under the sole responsibility of Parliament. In considering the responsibilities of Mr. Vaid, who was a driver for the Speaker, the court came to the conclusion that there are many categories of parliamentary employees not directly associated to the legislative and deliberative function of Parliament.
For example, employees of parliamentary restaurants are not directly associated to the legislative and deliberative function of Parliament. You may claim that you need to eat lunch, therefore you need support because to eat three times a day is essential to being able to perform. The court claimed that those types of employees were not directly linked to the deliberative and legislative function of Parliament.
The court concluded that those employees — Mr. Vaid being one of them — should seek protection under the Parliamentary Employment Staff and Relations Act. What is that act of Parliament? It is an act adopted in 1985 by Parliament that specifically rules the labour relations of the employees of Parliament. It applies only to the employees of Parliament. On the second last page of my article on the Vaid case, in reference 5, I stated that there are 5,000 employees of Parliament, according to the Library of Parliament. I see Mr. Bédard is here. This is the data from 2005; let me quote the numbers quickly to fire your imagination. There are 5,000 employees on the Hill: The Senate has 605 employees; the Library of Parliament has 400; the House of Commons has 2,033; and MPs have 1,927, for a total of 4,965, which is roughly 5,000 employees. This Parliamentary Employment and Staff Relations Act, PESRA, rules, in principle, a certain number of those 5,000 employees — a certain number, but not all of them.
When the Supreme Court decided that Mr. Vaid was one employee in a category covered by PESRA, it said that if Mr. Vaid has a complaint based on discrimination, he should seek grievance under PESRA. That was the first conclusion of the court. That conclusion raised a number of questions that you will find partly answered in my bill, and also in Senator Andreychuk's presentation. The first question is if Mr. Vaid is covered by PESRA, does he have the same protection under that act that any employee of the Public Service of Canada has? In other words, is there a distinction or difference of protection between an employee of Parliament and an employee of any federal government department?
To phrase it another way, is an employee of the public service better protected under the general ambit of the Public Service Labour Relations Act, or is he less protected than he would be under the Parliamentary Employment Act? The answer, honourable senators, is that if you are a member of the Public Service of Canada, you are better protected than as an employee of Parliament under the Parliamentary Employment Act.
There is no mischievous plan behind all that. The reason is that the Public Service Labour Relations Act is a much more recent act — we adopted it in 2003, while the Parliamentary Employment Act is 13 years old. When we adopted this act in 2003, we made sure that the grievance procedure for an employee of the public service that felt that his or her human rights were violated was better covered under the public service grievance procedure than under the Parliamentary Staff Relations Act.
The reason for that is simple. It stems from section 210(1) of the Public Service Labour Relations Act, which deals with a public service employee who feels that he or she is aggrieved by a violation of his or her human rights — discrimination based on colour, for instance, or sex, or minority groups. It says:
When an individual grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must, in accordance with the regulations, give notice of the issue to the Canadian Human Rights Commission.
What happens? If you are a public service employee and you feel you have a violation, you have been the object of discrimination under the Canadian Human Rights Act, when you exercise your right to use the grievance procedure, the arbitration board has to give a notice to the Canadian Human Rights Commission.
Second, the Canadian Human Rights Commission has standing in adjudication proceedings for the purpose of making a submission regarding an issue referred to in subsection (1). In other words, the Canadian Human Rights Commission can come to your rescue, take your case and plead it on your behalf.
Of course, if the grievance procedure led to the conclusion that you have been discriminated against, they can order compensation. There is a system in place that better assures that an employee of the public service who feels that he or she has been discriminated against can seek redress in a formal manner involving the Canadian Human Rights Commission.
If we go back to the Parliamentary Employment and Staff Relations Act, there is no such procedure. An employee of Parliament who is covered under the Parliamentary Employment and Staff Relations Act cannot call on the Canadian Human Rights Commission to help him or her defend his or her rights. In getting compensation, he has very limited rights to be fairly compensated for discrimination — namely, being reimbursed his salary, being paid for psychological damages and so forth — compared to an employee of the public service.
You see that there are two systems, which led to the question, should there be two systems or should we try to put them at par? Should we not, as Parliament, being concerned with the respect of human rights, make sure that Parliament affords its employees reasonable protection such as that which exists in the Public Service of Canada? Hence, you have Bill S-212 before you.
The bill might look convoluted because it amends this section and that paragraph — you know how the legal jargon functions when you are amending legislation — but the purpose of the bill, essentially, is to try to better protect the employees of Parliament who are covered by PESRA. That is my first proposal to you.
The second proposal, which will come from Senator Andreychuk, has to do with what happens with the employees who are not covered by PESRA. Among the 5,000 employees on the Hill, which I mentioned earlier on, not all of them would be covered by this amendment. These are employees who are privileged: that is, employees who are immediately under the control of the House of Commons or the Senate. For those employees, there is nothing, per se. There is no specific procedure now in our rules in the Senate. If a person — for example, a clerk around the table — feels aggrieved that he or she has been discriminated against in her working conditions, what would be the grievance procedure for that employee? As it now stands in our rules, there is none. You cannot read the rules, the Standing Order of the Senate, and find any paragraph that would allow that person a system of redress if he or she feels discriminated against.
How should we deal, as a Parliament, with the employees of Parliament who are not protected by the Parliamentary Employment and Staff Relations Act? This is a very important question, which is covered in Senator Andreychuk's presentation. It means that we, as Parliament, are like the wife of Caesar. We must appear to be concerned about respect for human rights because, in all the legislation that we adopt, the first question we ask is: Does that legislation respect the Charter rights? As you know, it is a formal test of the constitutionality of a bill. The Minister of Justice certifies that all bills, in accordance with section 11 of the Department of Justice Act, are respectful of the Canadian Charter of Rights. They must give the stamp of approval that each bill is ``Charter proof,'' as one would say. Of course, there are hundreds of cases where bills have been found in violation of the Charter, once they have been enacted — but that is another question. However, as legislators we must ask that question, and we must convince ourselves that those bills respect the Charter of Rights; hence our position that we, as parliamentarians, invested with the responsibility of implementing the Charter in the bills that we adopt, have no specific procedure to protect employees of Parliament who are privileged. It is an oddity, but it is the reality.
In the Vaid decision, the Supreme Court clearly stated that it is up to Parliament to decide upon the regime it wants to protect employees of Parliaments who are privileged, that is, employees directly connected with the legislative and deliberative functions of Parliament. This is an important question of principle.
The Vaid case went on for many years. Mr. Vaid complained to the commission, the Human Rights Tribunal, the Federal Court, the Federal Court of Appeal and the Supreme Court, and the case is still not settled. I met with Mr. Vaid a month ago, and he is still following the grievance procedure under the Parliamentary Employment and Staff Relations Act. Senators might want to hear from him. His story is quite telling about how people are treated by ``Parliament'' when they feel aggrieved.
I will leave it to Senator Andreychuk to express her concerns stemming from this issue.
The Chair: Thank you, Senator Joyal. That was a superb encapsulation of this situation.
Senator Andreychuk: I agree with you, Mr. Chair, and that makes my job much easier.
I want to thank Senator Joyal. We have spent considerable hours over considerable years discussing the human rights aspects of Canadian society, particularly under the Charter. When I came to the Senate, I wondered how the Charter of Rights and Freedoms was used by senators. Do we simply talk about it as a charter for citizens and exercise our oversight role to ensure that government applies the Charter as it is intended? Once into that study, I decided that we have a responsibility to the Charter. We set up the Standing Senate Committee on Human Rights to ensure that the Senate fulfills its obligations on human rights issues, both internationally and nationally.
For those who have not been around this table as long as I have, the Vaid case was brought to this committee. I understand that it was the subject of some debate in the Internal Economy Committee as well.
Senator Joyal: We had eight meetings and heard from ten expert witnesses.
Senator Andreychuk: Our Speaker was involved in that process. The Senate chose not to intervene in the Vaid case. Much of the discussions were in camera, so I will not go into them.
Senator Joyal chose to intervene in the Vaid case. I did not. Although he invited me and other senators, I declined. I was concerned about the issues in the Vaid case, but I was also concerned that, it being an issue arising out of the House of Commons, if we intervened, either individually or collectively, we would be saying that the administration of our house is exactly the same as that of the House of Commons. I did not want to take that position.
One reason for my position is that I was not sure whether we were exactly the same on the issue of the application of human rights in Parliament. We have constantly pointed out the variations. In addition to being an appointed house and the upper house, we have a different perspective and different obligations. Also, if we stood together, would we be seen to be looking at human rights in the same way? Frankly, there had been no discussion on that between the two Houses. Therefore, I chose not to intervene, but I supported anyone who wished to do so.
The Vaid case raised the issue of parliamentary privilege. The position of the House was that they wanted blanket coverage of parliamentary privilege for all employees. The court said no, that the parliamentary privilege had to be justified, and Senator Joyal has given us his view of parliamentary privilege, saying that it is narrowed to our essential functions here rather than to our peripheral functions.
In the Vaid case, the court said something that goes to the issue of human rights. It said that Parliament is not above the law, that it must follow the Canadian Human Rights Act. The court said that the act applies to Parliament as much as to anyone else and that employees have a right to some grievance process. It said that if we do not institute one, a process similar or equal to that which employees elsewhere have, it may have a need to intervene.
To summarize, we are bound by human rights legislation but, because we are parliamentarians within the Senate, we can develop our own regimes, schemes, procedures or policies to ensure that the Canadian Human Rights Act is complied with. If not, the courts do see a role for themselves.
Senator Joyal said that the way to correct the problem is by legislation. He outlined how, by legislation, we would come into line with the rights of other employees.
I agree that, to the extent we can, we should bring employees who fall under the Parliamentary Employment and Staff Relations Act into a similar system, but I want to reserve the right of Parliament to be in charge of that process. In that way, if it needs to be changed, we could do so. Entrenching it in law could put it beyond our reach and make it the subject of a court challenge. I am very mindful of retaining jurisdiction and control while balancing our need to comply with human rights.
In the preface to the Vaid case we read:
There are few issues as important to our constitutional equilibrium as the relationship between the legislature and the other branches of the State on which the Constitution has conferred powers, namely the executive and the courts.
I want to be sure that the equilibrium does not sway to either the executive or the courts, that what is ours remains within our jurisdiction. While I agree that we are lacking with regard to human rights for these employees, I have invited Senator Joyal to consider whether this must be corrected by legislation or whether that could be done by our rules, policies or practices in a different way. I have yet to come to a determination on that. Moving in the direction of legislating it tips the equilibrium in a way that I find uncomfortable. That is my concern.
I do not think we need to discuss the issue. I think we are lacking, and the court pointed that out. I do not maintain the position that the House took: that all employees are covered. I feel that we do not have a proper procedure in place.
I have no difficulty with the procedure Senator Joyal has chosen. I simply do not want it entrenched in legislation. I would rather it be entrenched in one of our processes within the Senate. Also, we must make it transparent and accessible.
This led me to why I put the motion forward. I put the motion in for the first reason; namely, when we were reflecting on the 25 years of the Charter, I started to reflect on how do we use the Charter? How do we comply with the Charter within our senatorial duties?
Senator Joyal has pointed out that we have an oversight role of the executive. We have utilized that role. In our committees, we have asked if legislation is Charter compliant. I see Senator Fraser here as chair of the Legal Committee. That is always our issue: Is it constitutional and are we Charter compliant? We raise that all the time. I think we question the government and whether it is adhering to the Charter of Rights and Freedoms. However, I started to question whether we senators put our minds to it in our daily work, in our offices, in our duties in the chamber. If so, how do we do that? The overall question was: How do we utilize the Charter within our duties and within our functions?
The Vaid case came along, and it is an example of where we were found wanting. I am pondering the broader issue of human rights. Our employees are a good point at which to start that process. We have identified the PESRA employees, but what about the non-PESRA employees? How do we ensure that the rights afforded by the human rights legislation and the Constitution is afforded to the employees who are not part of PESRA? What about the table officers? What about others on the Hill, if I can use that term in common parlance, that are not table officers, who are traditionally known to be those caught under privilege, as well as the PESRA ones that are caught by our legislation? What about some other categories? Have we canvassed to find out? Are there other categories?
One that comes to mind is employees within our offices. How do we exercise their rights? What policies have we afforded them? Where is their grievance process? I do not want to say that we have not done anything about it. As long ago as 14 years, I sat on an Internal Economy Committee where we discussed cases of harassment and discrimination. There are policies in place.
My difficulty is that we have not systematically looked at the employees, attempted to determine which category they are in and addressed whether there is a process and procedure that these employees can reach for if they feel that they are aggrieved in some way.
As a senator, I would also like to know what the processes are so I can be responsibly applying them. We need to come to some consensus on that. That is where I would start.
We need to sort out the employees by finding out what category they fall into, what processes we have in place to date and what we need to do. We have gone a long way in discharging our duties on human rights. That is not to say that we will always have the question of how far parliamentary privilege goes in a particular case. However, I would like to be more armed and ready for when a case comes. The Vaid case happened in the House of Commons. It could have happened here. I would prefer that we had done some due diligence in attempting to comply with our obligations in a more systematic way than we have. It also would be a good refresher course for all of us.
If we ever get through the first phase appropriately, as a second phase I would move to the question that has been put to me: What about other people who come in contact with parliamentarians on the Hill? Are there any gaps there? That issue runs into a much more philosophical debate of policies than it does an obvious grievance process.
In summary, I think it is important that, somewhere in the Senate, we look at this issue of human rights more systematically as a philosophical issue. However, the practical goal today is to attempt to enumerate the clusters of employees and to determine whether we have an appropriate regime in place. Otherwise, we will be blindsided by a case, which I think will be as unfortunate for us as the Vaid case has been for the House. It is a known case. It is known internationally. I do not think that is what we want to be known for.
Additionally, I think we should be more scrupulous in the constitutional equilibrium. We should not be open to court challenges because we have not enacted processes that would preclude the court. The court has said in the Vaid case, as it did in previous cases — and I will not go through the authorities — that they are hesitant to intrude into the parliamentary business. However, if we leave a vacancy, they have no alternative but to exercise their responsibilities. Good fences, good neighbours and a good equilibrium between the various relationships are necessary in a proper functioning democracy.
The Chair: Thank you, Senator Andreychuk, for a very clear framing of the situation for the committee.
Honourable senators, we have the situation laid out for us. There are a number of senators who have questions.
Senator Furey: Thank you, colleagues, for your comprehensive and informative presentation.
Senator Joyal, my question concerns the issue that you raised with respect to the first two groups of employees: Those covered by PESRA and those by the Public Service Labour Relations Act. You indicated that the intent of Bill S-212 is to ensure that the same rights apply. We are not talking about the application of rights. The Supreme Court of Canada, as you have indicated, has already decided that. We are talking about process.
Subsection 63.1 (2) of Bill S-212 gives the Canadian Human Rights Commission standing for the purpose of making submissions. In your opinion, does that cover the right to intervene and take over as it does under the Public Service Labour Relations Act, or is there a difference there?
Senator Joyal: No, there is a difference. If you read section 210 of the Public Service Labour Relations Act, it says quite clearly that the first procedure is to give notice to the commission. Then the commission has a standing in adjudication. In other words, the commission can come in, intervene and take a stand in the alleged discrimination.
It could help the grievance board to better understand the nature of the grievance; the particulars of such cases, when they happen to be on the basis of the previous experience; and adjudication. As you know, the Canadian Human Rights Commission has the resources of the tribunal which, of course, makes decisions.
The commission, when it takes a stand, does so with the capacity to inform the grievance board of the context and the nature of the grievance, and then, of course, if the commission feels it appropriate, according to paragraph 2 of 210, the Canadian Human Rights Commission has standing in adjudication proceedings for the purpose of making submissions regarding an issue. It makes submissions. It does not substitute itself to the grievance board. In other words, it is not a procedure that says to the grievance board, ``You move out; I come in,'' to put it in simple terms.
The commission is notified by the grievance board. The commission decides if it will take a stand and, if it takes a stand, it decides how far it will take a stand. It could be a stand just to give general information, for instance, of what kind of remedy the commission has applied in the past, or it could give an explanation of the context in which that kind of alleged discrimination might have happened in the past. It could be either informative for the grievance board to help the board better understand the general context of the case, or it could just take the case in a way that it repeats the arguments that the person who feels aggrieved has concluded on the nature of his compliant or a complaint.
In other words, it is not a system that substitutes itself to the grievance board. It essentially is more in the context of what we call amicus curiae. It comes in to help the board understand the case and be in a better position to take a final decision.
I think your question is very appropriate. It is not a mechanism that substitutes itself for the one provided for in the legislation. The PESRA board is still the board that makes a decision on the merits of the case and, of course, the compensation or indemnity to be granted.
Senator Andreychuk: To add to that, though, it would be very important to hear from the Human Rights Commission, as our Human Rights Committee has. They do take a role. They have certain opinions about human rights and they do make certain judgments. My concern is that if it is done by way of legislation, we would have to be extremely careful. The process with the Human Rights Commission is that they go and investigate, they make certain judgments, and they attempt to conciliate, et cetera. If they cannot, originally, they were involved in the conduct of the tribunal, and later we separated the tribunal from the commission, but there are still entrails of that system. I am wondering whether we need to tie anything to the commission and the tribunal except when we wish to call them as experts because they have a body of knowledge. I would not want them part of a process because of the fact that they exercise their process differently throughout the community, and I would wonder whether that would be helpful to us and the employees.
Senator Joyal: Just to add to Senator Andreyhcuk's proposal to call upon the Canadian Human Rights Commission as a matter of fact, in the last page of the article I published in the Canadian Parliamentary Review, at bullet 20, 211, I indicate that on June 16, 2005, I wrote to the Canadian Human Rights Commission, to the then Chief Commissioner, Ms. Mary Gusella, and she answered my letter about the procedure. I referred to it in my presentation this morning. It would be quite appropriate that we hear from the commission about the procedure and about their stand, how far they can go and so on. That is certainly a very legitimate concern to answer.
Senator Furey: I certainly agree wholeheartedly, Senator Joyal and Senator Andreychuk, that both groups of employees ought to be treated equally. I am just a little concerned that the granting of standing for the purposes of making submissions goes far enough in terms of equating PESRA employees with those covered by the Public Service Labour Relations Act. If you are satisfied with that, then it would go a long way to raising my comfort level.
Senator Joyal: Again, it would be very appropriate to hear from a representative of the Canadian Human Rights Commission. I alerted them, as I said, in June 2005, almost three years ago now, and they answered in a formal letter. The letter is referred to in the article I wrote at that time. As I mentioned, the Public Service Employment Act was adopted in 2003. It has now been five years since then, and it would be helpful to hear about the experience that they have drawn since that time in terms of that procedure.
Senator Angus: I would like to echo the chair's and Senator Furey's words of congratulations to our colleagues on the wonderful presentations. It is a joy for most of the lawyers around here to have an opportunity to grapple with what I think are some very legitimate issues of constitutional law and some academic and philosophical issues of human rights.
In its simplest form, as I see this, Senator Joyal, the two regimes led to the type of litigation that we have seen and that you have described. There is a need for, in your opinion, a degree of uniformity and clarity, and you believe the uniformity can be achieved through your proposed legislation. Am I correct in that aspect of it?
Senator Joyal: I think it would establish a level playing field, if I can use that phrase. An employee of Parliament is covered by the collective bargaining process of PESRA, because that is essentially the employees that are covered. Those that are covered by that system of labour rights are particular to Parliament because at that time we did not want parliamentary employees to have the right to strike, for the obvious reason that Parliament could not be brought to a halt. That is why there are two systems.
Senator Angus: I understand that.
Senator Joyal: That is the context of PESRA. That does not solve the issue that an employee paid by public funds, as parliamentary employees are, should not, in principle, enjoy a comparable protection to one who happens to work in the public service instead of working for Parliament. In other words, if you work north of Wellington Street, you are less protected than if you work south of Wellington Street or across the river. That is essentially the point. What I propose in Bill S-212 tends to create a comparable level of capacity for an employee to seek redress if he or she feels aggrieved under the Canadian Human Rights Act. That is essentially the process.
Senator Angus: To that extent, you are ad idem. You feel that the public service regime is quite a bit stronger than the PESRA regime, which you have described, and you feel legislation is the way to go, whereas Senator Andreychuk has expressed very strong concerns that there could be, in her view anyway, a difference in the type of rights that need to be protected here. That is where I have a question. Again, it is simplistic, but I think it bears an answer because to me, a right is a right, and human rights in this context should be homogeneous for a body of employees, whether it be for the 5,000 on the Hill or the others.
Senator Joyal: There are 60,000 employees off the Hill.
Senator Angus: I was wondering how Senator Andreychuk perceived that there could be a difference. The process you described would be a fascinating exercise to go through all these steps. I think this legislation may be more practical. However, I question whether you, Senator Joyal, considered us generating a law that may be dealing with issues that the House of Commons feels are under their provenance.
Senator Andreychuk: I do not think the rights are different and the Supreme Court said that, too. Everyone should be afforded the same rights whether you work on the Hill or whether you work for a department. That was not the issue. They are equal rights. However, the manner in which rights are interpreted and the grievance processes whereby you attain your rights are different. The court has said that Parliament should be responsible for ensuring that we comply with the Human Rights Act. It does not say that it has to be the same regime, but that it should be similar. That is the invitation to make it similar.
Given the issue of parliamentary privilege and that we want to retain as many rights on the course of how we conduct our business in Parliament, I do not want to yield it by legislation. I have some of the same concerns as Senator Furey. If we allow others to come in, we are yielding our —
Senator Angus: Special status.
Senator Andreychuk: — special status, but a very necessary special status. Therefore, I believe the legislative route is not the way to go. We can develop a similar scheme to that which other employees have within the domain of Parliament. I would not yield to a court scrutiny of it. I would yield to an open and transparent system that other people are aware of, can scrutinize and comment on. It is a question of maintaining the parameters of Parliamentary privilege. I do not follow the route that the House of Commons took that wanted to blanket all employees, and said that it is no business of anyone outside of the Hill. The court said that you must have a regime in place that they would not fine tune and question. However, it should be similar and afford similar rights because Parliament is not above the law. It is as responsive to the law as anyone else.
Senator Angus: Senator Joyal, I know enough about both of you, how you deal with these issues and how thoroughly you consider them. Is there some opportunity for reconciliation of your two views?
Senator Joyal: Yes, there is. Let me try to illustrate the point. A person on the Hill would be subjected to a very different regime of protection depending on the job that that person performs.
For example, you are a table officer in the middle of the chamber. You are totally protected by privilege. No court would ever rule on a grievance you may have on discrimination because you are totally within the ambit of the responsibility of the legislative house where you work. The court has been clear on that in paragraph 30 of the decision:
In matters of privilege it would lie within the exclusive competence of the legislative assembly itself to consider compliance with human rights and civil liberties.
Senator Angus: We, the senators, would have a say on that.
Senator Joyal: These are our table officers in the middle of the Senate. We are the only ones, the group of senators assembled.
To give a second example, a PESRA employee of the parliamentary restaurant is not privileged, according to Supreme Court. That person would be covered by PESRA where there is no specific protection on the basis of human rights. You file a grievance under the general procedure for grievances. If you were an employee of Public Works, you would be better protected with the capacity of the Human Rights Commission to intervene.
In my third example, you are an employee in the Senate but you are not privileged and are not covered by the collective bargaining process of PESRA, namely the employees in our own offices. How are they covered? They are probably covered by an internal policy established by Internal Economy. That is a third system.
There is a fourth system. You move your office and the whip calls upon the Department of Public Works to come change the ceiling fittings. Then an employee of Public Works comes into your office. He or she is protected by the Public Service Commission.
It is like a piano. You have different notes played at different times. The overall picture is that some employees are afforded less protection than others. The question is, therefore, how do we address this question? How would the other chamber react if we amended the Parliamentary Employment and Staff Relations Act? Honourable senators, it is clear that if we amend the act, the bill would be adopted and sent to the House of Commons. It would force the House of Commons to review what they do, too. It would be an invitation to them to address the same situation that I outlined in the four categories of employees. They would have to decide for their table officer. We cannot tell them how to deal with that position. They would have to address the PESRA issue because there are some employees that we share in common. There are employees totally within the ambit of their legislature because they are not covered by the Public Service Employment Act, and there are public service employees who are already covered.
Since we share the Hill with the House of Commons, the only way for us to normalize the position would be for us to come forward with answers to those three first questions. It would be an incitement to react and see how they would answer the situation.
It has been three years since the Vaid decision was rendered, and we are still labouring over it to find a solution. I do not think it would be inimical for us to say ``Here is what we suggest, and how do you react to this?''
Senator Angus: Is there a reconciliation of the two?
Senator Joyal: It will be from our study of the various options that we can determine how we address the issue. I would not like, and I do not think Senator Andreychuk would like, if we said ``Let us go the legislative route,'' and put the lid on it, praying that there will not be any case in the next 10 years. I think at some point in time we will be confronted with our ``inconsistency'' in not addressing fundamental human rights in Parliament.
Senator Angus: Would it be fair to conclude that it is a tool you have chosen to use to get the debate started, and to shine a light on it?
Senator Joyal: It is not only to shine a light but to define a process. We need to agree what would be the best process to protect those employees. As Senator Andreychuk has said, it should be done within the confines of parliamentary privileges so that we do not have the court meddling in our affairs. The court was clear in the decision that I quoted. However, we must act, otherwise we will be faced with a situation such as that of Mr. Vaid at some point in time.
I suggest that we hear from Mr. Vaid one morning. His complaint has still not been dealt with and it has been going on now for seven years. That is a little difficult to accept.
Senator McCoy: Next Tuesday is the third anniversary of the Vaid decision. Of course, both of you have been active much longer on this issue and you have been trying to bring it forward ever since, so good for you for sticking to your guns.
I have one question on the bill and then some others. I was challenged by my colleague to the left here to come up with a legal term, so I would like to ask these questions seriatim — how is that?
I will direct my first question on the bill to Senator Joyal, although I believe you raised it in debate also, Senator Andreychuk. Why is it necessary, or why have you proposed repealing, I think it is, section 4(1) of this PESRA? Why is it necessary to take out the section that says ``Nothing in the statute abrogates the rights and immunities. . .''? I am supportive of your direction in support of employees. Can you not give those employees that protection without wiping out that broad section?
Senator Joyal: Thank you for your question, senator. You said that you had questions seriatim; normally seriatim is many questions, one after the other, so I think you will have more.
It stems from section 35 in the decision of Vaid. Section 4 was brought to the attention of the court, and section 35 of the court decision discussed section 4. The House of Commons side — not the government, because the government intervened in the Vaid case through the Attorney General — contended that the Human Rights Act should apply to the employees of Parliament. That was an unprecedented decision on the government side.
Section 4 affirms the immunities, powers and privileges of the Parliament of Canada in reference to members of the House of Commons and the Senate. The court did not take section 4 as covering everything. In other words, it is not enough for Parliament to say that we have all those privileges and that the court should stay out of this discussion.
The court went beyond that. It discussed what kinds of privileges were covered by section 4. Section 4 was seen at the beginning as a saving clause to protect all the privileges, rights and powers of Parliament, but the court was not barred by that section of PESRA. They said that there are privileges that are inherent, such as freedom of expression, and there are privileges that are legislated by Parliament. Parliament can decide that it would need that privilege to be able to perform its duty, so it would be the object of legislation. The court stated clearly that those privileges would be the object of a test, a study, by the court. It would be the necessity test, which is paragraph 38 of the decision, and the court would define if those privileges are necessary or not. Once the court has decided that they are necessary, they do not involve themselves with reviewing how Parliament has applied or used those privileges.
Section 4 does not save Parliament from court scrutiny if the court decides that the privilege does not meet the necessity test if it is a legislated privilege. It is a legal distinction, which is why I think, if we are to review PESRA, we should review the way that section 4 has been drafted in the past.
Section 4, as I said, was drafted in the context of sustaining the overall privilege of Parliament over all its employees, but the court has decided that not all the employees are covered by the privileges we have just outlined. The ambit of section 4 does not achieve the objective that it might seem to serve in the context of its scrutiny.
Senator Andreychuk: Could I add a point? You make a valid point and that is why I go back to it. I think it could stay because I read the judgement somewhat differently. I say you start with section 4; that is your guideline. It was the court's guideline to say that this is an important issue. Parliament needs these rights. However, then the court goes on to say that when we exercise them in such a broad, sweeping way, as the House did, we do not meet the test of necessity.
I wonder whether we should leave it in; and this is where I say you build on what we have. The protection we have as parliamentarians is the guideline I use, and then I would like to build a regime for grievance that respects that right, and respects human rights. Ultimately, we are trying to give them a proper grievance procedure.
Also, it is to the benefit of citizens to have a proper, functioning parliamentary privilege for parliamentarians to carry out their work on behalf of citizens. Leaving it in would be a guideline; but perhaps another paragraph that points out that it is not the be all and end all, as you say, would be a way to go.
Senator McCoy: I got the impression that the court actually invited Parliament, we will say — and we are looking at the Senate as part of Parliament, too — to authoritatively establish privilege and, lacking that, then they went into the approach, applying necessity against the test, for whatever privilege was claimed. We have been invited to ``authoritatively establish'' — would you agree with that?
Senator Joyal: Absolutely, because section 18 of the original Constitution Act, 1867, clearly established that the privileges, immunities and powers that the Parliament of Canada enjoys shall not exceed those enjoyed and exercised by the common House of Parliament of the United Kingdom of Great Britain and Ireland. There is a limit in the Constitution of Canada that we cannot claim that we have more privileges than those that are enjoyed there. There is a level, and that level is the one that is established in the House of Commons of Great Britain. The first sentence of that section 18 states clearly:
The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada . . .
There are privileges that we can legislate, that we can decide that we should have to be able to perform our legislative and deliberative duty. The bar, or the limit, is not to exceed those that are enjoyed and exercised in the British House of Commons.
Senator McCoy: That is 1867.
Senator Joyal: It might sound colonial to some who read that text of the Constitution — that is the remnant of an old era and that we want to depart from Westminster.
The Supreme Court recognized that limit, but also recognized that the Canadian Parliament evolved in a particular context, and that that might cause some nuance. However, it is clear that if we legislated on the rights or privileges of Parliament, that would go far beyond what exists in Westminster and they would apply the necessity test. They would ask whether this power is necessary for the Parliament of Canada to perform its duties of deliberative and legislative functions.
Again, I invite you to read paragraphs 35, 36, 37 and 38 of the decision of the Supreme Court, which are on that very issue.
Senator McCoy: That segues into my next curiosity, particularly in light of what was reported last Saturday, that is, that the Ethics Commissioner in the House of Commons declared a member of Parliament barred from participating in committee decisions because of a libel lawsuit that has been filed. That strikes me as interfering with due deliberative and legislative process. A court proceeding is being used to interfere with proceedings in Parliament. I do not know where that goes, and I do not mean to raise that in a partisan fashion, but I flag it because the question of privilege and the extent of it comes up in many ways.
I was, and I am, supportive of the matters before us, but I was hoping that, with the breadth of your motion, Senator Andreychuk, you were looking much more broadly at the question of privilege. I was hoping that you were leading us to agree that we would either produce a report on what privilege is, as the U.K. Parliament did, on which report the Supreme Court of Canada relied heavily in coming to an understanding of privilege, or, at the very least, to filling the gap that the court invited us to fill, that is, authoritatively establishing what privilege is.
You might wish to address that. I am inviting you to invite us to look at this in a broader sense than just the narrow point, important as it may be, that employees deserve the same protection as everyone else on human rights, which was not the only thing in the Charter.
The Chair: That raises an interesting dimension that I will be mentioning when we wrap up.
Senator Andreychuk: I would like to respond to that quickly. Because parliamentary privilege goes into so many areas, it would be a massive study. It seems to me that the urgency here is to deal with the human rights of employees first, and of anyone else thereafter. I am conscious of not limiting parliamentary privilege in any way through an act, which is why I am concerned about legislating a human rights regime rather than utilizing our rules to put a regime into place, because it touches even more fundamentally on parliamentary privilege.
I think what you are talking about is a study that we should do. I can give you another four examples of parliamentary privilege being either challenged or used in ways that we had not previously thought of. It would be a good study to do, if we have the time and the inclination.
Senator Joyal: Senator Andreychuk raised an important point, that is, what is the protection of citizens or third parties who come in contact with Parliament? There have been many surprising decisions in the past years. For example, the legislature in Quebec unanimously adopted a motion condemning a statement made by a citizen without giving that person a fair hearing to explain his position. That is shocking in a way. It is wrong for legislatures to have the outrageous power of condemning a citizen without due process. That is not acceptable in today's context.
The senator raised the question of the disciplinary power of Parliament. As a legislature, we can decide to discipline a person who testifies before Parliament. We might need to do that to ensure that we hear the truth to which we, as a legislature, are entitled. However, if we doubt the truth of the testimony, there should be a procedure to deal with that. In fact, the joint report of the British House of Commons and House of Lords of 1999 makes a series of recommendations on an adjustment of the procedure of the British Parliament when exercising its disciplinary powers.
It is a real concern. The approach of Westminster is a model that we could study. That would come into the ambit of the issues Senator Andreychuk has spoken of from her study of the implications of the Charter in relation to parliamentary business.
Senator McCoy: It strikes me that if we only wanted to address the issue of a process for employees, we might more properly hand this to the Internal Economy Committee. If it is broader, as I hope it is, accommodating as the first order of business the human rights of employees in whatever category they fall, it should be dealt with here.
The Chair: There being four more senators who want to engage in this debate, with your permission we will extend the meeting and I will turn the chair over to Senator Smith at 11:15.
I suggest that we discuss process from here on in.
This is a truly fascinating discussion. I was just mentioning to the clerk it is too bad we did not televise these proceedings. Maybe subsequent discussions should be televised. I would like your input regarding that. We would also like your input regarding further witnesses, and so forth. I would like to have our researchers prepare a work plan or a process for us. I would like to discuss that with our steering committee and then get back to you about how we should proceed. I think this is absolutely fascinating stuff and it is very important that we not miss the opportunity to clarify this whole area.
Having said that, Senator Fraser wanted an intervention.
Senator Fraser: Thank you, Mr. Chair. I have two questions and, in the interests of time, I will put the two questions on the floor. Then our very learned witnesses can respond.
Senator Joyal, clause 3 of your bill states:
66.2 An adjudicator may, in relation to any matter referred to adjudication,
(a) interpret and apply the Canadian Human Rights Act. . .
I understand that this is a parallel to what is done in the Canadian Public Service Labour Relations Act.
Senator Joyal: Yes.
Senator Fraser: Nonetheless, I found that quite astonishing. In my very limited experience with labour adjudicators, arbitrators, et cetera, that is not their frame of reference. Human rights is not what they do. It is not what they are trained in and they are not experts in it. It is not their perspective. It is like asking a cardiologist to judge a dispute between architects. There are two different sets of skills.
It may be different in the public sector. However, I wonder, Senator Joyal, whether you thought about this — whether you are aware of experience here or elsewhere — and how taking this approach has worked out.
Senator Andreychuk, I think you know I share your concern about preserving parliamentary privilege to the extent we can from the reach of our courts. This was one of our prime concerns when we were drawing up the conflict of interest code, and I think we did a better job than the House of Commons of squaring that circle.
In this case, the Canadian Human Rights Act is already law; the Charter is already law. I do not have a clear sense yet in my own mind, let alone in the real world, of where the hinge will come between what is already established law and how we do it. It seems to me that that hinge must include some form of legislative authority. If it is not this bill, at this stage of your reflections, what do you think might be appropriate avenues to explore?
Senator Joyal: I will quickly answer the first question. Senator Fraser, you are totally right. The Labour Relation Board deals with collective agreements, as you know. They interpret the obligation under the collective agreements, which are, essentially, grievances related to compensation and grievances related to the working environment.
The Public Service Labour Relation Act, when we amended it in 2003, granted for the first time the responsibility of respect of the Canadian Human Rights Act to the arbitration of the labour board. In so doing, they recognized that the Canadian Labour Board did not have the ``professional capacity'' to deal with those issues on a matter of daily business or daily routine. That is why they integrated in the act the obligation of the capacity, when there is such an issue, to give notice to the commission so that there is a fair resource at hand. As I said to Senator Furey: Amicus curiae. They are there to help the court and the board.
I think it is in that context that this is an option that would protect the rights of an aggrieved employee. Even though he is before a board that does not have the usual capacity to deal with the issues, there will be a resource at the board level that will help them to take a decision once they have heard the parties and have read the information that has been provided to them by the commission.
That is essentially a mixed regime. The public service could have just let the Canadian Human Rights Commission deal with the issues, but they chose to give it to the grievance board. A violation of human rights that stems from the working conditions is part of the working environment. They did not want to separate the two of them. That is why they inserted it under the jurisdiction of the grievance board in 2003.
It would be the same approach that we would have with the PESRA. That is, the employees of Parliament would be covered by collective bargaining under that act. It would have the similar capacity to compensate for the lack of routine expertise in the adjudication of the board.
Senator Andreychuk: I think that was an easier question to ask.
I would like to build on what Senator McCoy has said. Since we have not put in any process on parliamentary privilege which the court could comment on vis-à-vis employees, it said that this blanket parliamentary privilege that the House put forward was obviously not correct. They stepped in. They did not say we had to legislate a regime. They said that we should put a regime into place, as I understand it.
You are taking away some of my negotiating terms with Senator Joyal because I would like to hear some constitutional experts and have some research on this point. It seems to me that we would put in an act that someone within the Senate shall do A, B and C, but not the process; the process would be determined by these people.
It is very much the way in which we approached the conflict of interest issue, where we identified that we must deal with certain conflict of interest issues. However, we identified a committee and an officer that would have responsibilities, from time to time, et cetera.
That is what I would want. I would want that kind of flexibility. As we have said, we have entrenched parliamentary privilege as a starting point — in 1867, based on the British — but, as Senator Joyal pointed out, the court also recognized its evolving capacity.
I would not want to entrench something on one side. I would want to have the same flexibility as the court is inviting us to have on the parliamentary privilege side. I would like to take some of the specificity out of the bill on the regime process but put an authority into a bill.
Senator Joyal: I would like to echo that in the decision of the court. It would be helpful to dispel the perception that we are under the control of Westminster insofar as privileges are concerned; call it a colonial kind of umbrella. It is paragraph 38 of the decision of the court. I think it would be interesting for each one of us to understand how the Supreme Court has interpreted the umbrella of Westminster.
I read will it, honourable senators:
Nevertheless, while s. 18 of the Constitution Act, 1867 provides that the privileges of the Canadian Parliament and its members should not ``exceed'' those of the U.K., our respective Parliaments are not necessarily in lock step. It seems likely that there could be ``differences'' consisting of parliamentary practices inherent in the Canadian system, or legislated in relation to our own experience, which would fall to be assessed under the ``necessity'' test defined by the exigencies and circumstances of our own Parliament. This point would have to be explored if and when it arises for decision.
They have been wise. They have modulated section 18 of the original Constitution.
Senator Fraser: I would like to ask supplementary questions but I will restrain myself, Mr. Chair.
Senator Brown: I have had quite an awakening this morning. I watched Parliament for several years, long before I ever came here. I always thought parliamentary privilege meant what you said and did while Parliament was in session was protected under the law. You could not be sued or whatever. I did not understand that privilege went nearly as far as what I have learned here this morning.
Even in the last few weeks, I have seen people challenge those making certain comments or suggestions in Parliament to step outside Parliament. Those same comments would open them to lawsuits.
Why do we not attack it from a different level and narrow what is considered privilege in the Senate and that other place so we can treat our Senate employees in the same way that all other employees across the country are treated? It is only a comment.
I am absolutely overwhelmed by how far privilege apparently extends. I am glad; at least we are not able to behead people anymore.
Senator Joyal: I want to add something based on your question, honourable senator, which may be of interest to all of us.
From 1867 to 1991 — approximately 120 years — there were only 31 cases in the Canadian courts of law relating to privileges. That is not a large number. Since 1991, which is not a long time, there have been 48 cases. One would be puzzled by that phenomenon.
There is one case presently seeking leave to appeal to the Supreme Court of Canada. It is an allegation that a member of Parliament has published a householder, which all Parliamentarians are entitled to do, that discriminated against a group of people in its content. The person sought redress and the member of Parliament claimed that what was printed in the householder was privileged. He argued that it was protected from any legal recourse.
The Federal Court, which was the first level to hear the case, concluded that householders were not privileged. The parties have sought leave to appeal to the Supreme Court in the late winter. Therefore, the court will probably give a decision in the upcoming months.
Canadians are now much more sensitive to the issue of privilege. What you state is reflected in the number of cases brought forward by persons who feel that parliamentarians should be subjected to the common law.
Senator Andreychuk: I would like to respond a little differently, because I think that is only one aspect of it.
I think most citizens thought parliamentary privilege is what you say in the chamber, and that is it, but parliamentary privilege has always been more than that. It is an issue now because the essence of the Vaid decision is that it is whatever is absolutely necessary for a parliamentarian to do to discharge his or her functions.
However, two competing things have been happening. First is that parliamentarians are somewhat frustrated in how they approach their jobs and the role they have. Therefore, they seek ways to be able to expand their rights and privileges to be able to do their job.
On the other hand, when they take a blanket approach and say everything we do is covered by parliamentary privilege, then we end up with a Vaid case. I do not think the public agrees with that approach, and the Supreme Court also did not agree. It is a part of a larger debate of how ordinary parliamentarians, not cabinet ministers, exercise their rights over the discretions they have to perform their functions.
Second, pressure toward parliamentarians from citizens is changing. What rights do citizens have vis-à-vis parliamentarians? The flip side is the rights parliamentarians have in modern society to do the job they think they have to do as parliamentarians and not all the extraneous things. It is a debate that has not been taking place to a significant degree. It has been coming up through little pieces like these. We are all awakening to what it means.
Senator Brown: Senator Joyal, I cannot argue with the small number of judicial challenges you quoted. However, what worries me is that the power of privilege is so great that it is like a heavy umbrella over everyone. People do not feel that they dare to challenge anything. The process to get any kind of justice is very lengthy. Even the legal materials I have read in the last few days are quite lengthy. My concern is that we are still many generations behind in terms of what Parliament has as privilege and what our employees or ordinary citizens have as privilege.
Senator David P. Smith (Deputy Chair) in the chair.
The Deputy Chair: We will take that as a question.
Senator McCoy, you referred to the Ethics Commisioner's decision. Read William Kaplan's article in The Globe and Mail this morning because he totally disembowels that decision. It will be interesting to see where it goes from here.
In that regard, I am still open-minded because I do not view this as a black and white situation. I want to try and simplify it and I want to characterize the difference between your two positions. Then tell me if I am wrong or missing something.
Senator Andreychuk, I view your position as sort of grey, and let us keep it that way. If we put ourselves in the straitjacket of a legislative framework, a situation may arise where some solution can be massaged that we may not be able to reach in a tight, legislative framework.
I am oversimplifying this, but I think of Senator Joyal's position as similar to the Clarity Act. In other words, let us have clarity. Clarity is better than grey so we know where we are. I am leaning to that position. Part of my thinking is influenced by the rights of taxpayers as well. I do not want to get into the merits of the Vaid case, but it has not been settled yet.
Speaker Parent ceased to be the speaker in 1997. Therefore, this must have occurred before then. Can I assume Mr. Vaid is still on the payroll?
Senator Joyal: No. He was in my office, honourable senators, three weeks ago to report where he stood with the grievance procedure under the Public Service Labour Relations Board of PESRA. His union was to represent him and then it decided to drop the case without informing him. He came to me to ask ``What do I do now?''
As I suggested, honourable senators —
The Deputy Chair: Let me just finish my question. He must have been on the payroll for some period of time.
Senator Joyal: Ten years, I am told.
The Deputy Chair: For 10 years or more, he was on the payroll. This is not exactly an analogy, but last night I chaired this dinner for the Canada-U.K. group for five members of the Northern Ireland Assembly. In the discussion, up came the issue of how, 35 years ago, Bloody Sunday occurred, where 13 people were killed. About 12 years ago, things were still festering, and Tony Blair decided to have a judicial inquiry. One was set up and three judges, one of whom is a former Chief Justice of New Brunswick, Bill Hoyt, were appointed to it. He is a good friend of mine, and at the time he said it might take a year, maybe even two. They are still at it; they are in their 11th year. The cost of this inquiry is now, I believe, over 100 million pounds. Most of that money has gone to lawyers, and the irony is that here —
Senator Robichaud: Surprise!
The Deputy Chair: I am not defending lawyers, although I am one.
In the meantime, they have really made progress in Northern Ireland. Some people are saying, just when we are making progress, this inquiry comes in and stokes the ashes and stirs it all up.
It is not an analogy, but when you think of the costs to the taxpayers, I kind of lean — but Senator Andreychuk, I am still keeping an open mind — to a little more clarity as to what the process is so that these things do not take on a life of their own and go on for the length of time that this one has gone on.
Tell me if I am crazy or missing something or being unfair, because I still have an open mind.
Senator Andreychuk: I would say it is an unfair characterization because I am not saying that I want grey. I want a very specific regime. I want the flexibility to change that regime when society, the chamber, Parliament, the Senate changes.
In other words, I think the flexibility of having a responsive regime, but a specific regime, is there. Whether that specific regime will be subject to legislation or to our rules is where we part company. The fact that there should be one, that it should not go on forever, that there should be time limits and that we should be specific in the regime is what I want.
It is not grey. In that sense, we are black and white.
The Deputy Chair: Flexible is the word.
Senator Andreychuk: No. The regime will be specific. Where I want the flexibility is the ability to quickly change it when it is necessary. We do not know what the issues of the future will be, and the court did not say ``legislative response.'' The courts said have a regime; use your authority; put something in. Do not blanket yourself and ignore the problem; put in a regime.
I do not think we disagree with a specific regime, the elements of which would be to get it done, get it done quickly and give justice and due regard to the employee's grievance. That is the regime. Whether you entrench it by a legislative change or by a rule change within the Senate is where it starts to touch on parliamentary privilege, in my opinion, and where the Senate starts to distance itself from that regime. I think, under the conduct of the Senate, you will get everything you need for the employees without having to put it in a legislative regime, which gets it closer to a court scrutiny rather than a Senate scrutiny.
Senator Joyal: If I may, Mr. Chair, just a parenthesis. Mr. Vaid has been advised that he was fired on May 20, 1997.
Senator Andreychuk: He was fired.
Senator Joyal: The decision of the —
The Deputy Chair: Eleven years ago.
Senator Joyal: The decision of the Supreme Court was in mid-June, 2005.
The Supreme Court said to Mr. Vaid, go to PESRA. It has been three years, and for XYZ reasons, he did not get adjudication from the grievance procedure of PESRA. It did not even go to a hearing, at PESRA.
My question to you is if an employee is under PESRA, which is a legislated regime — PESRA is an act of Parliament — we should ensure that the employees governed by PESRA have a procedure that gives them the same protection that any employees covered by the Public Service Act enjoy. That is my proposal.
The proposal of Senator Andreychuk, in my opinion, touches the employees that are not covered by PESRA — the table officers around in the middle and all the other employees that are not covered by PESRA. My bill does not propose to put them under a statute. Her preoccupation is to put into place a system, and she suggests to us to look into the various options of the system.
I do not think we are in a locked-in position, Mr. Chair.
The Deputy Chair: I guess what I want is clarity on whether you like clarity.
Senator Joyal: I do.
The Deputy Chair: You do like clarity; you are for it.
Senator Joyal: Yes, I just explained it to you.
The Deputy Chair: Okay. You like clarity and being flexible.
Senator Andreychuk: I think that we may have to have some legislative point for PESRA employees. I am not sure we need the act, as it is being proposed. I do not think Senator Joyal's position has changed. He is open to looking at how to change it. This was his opening, and I thank him for putting the concepts into a bill so that we can deal with them. We may want to take some out elsewhere or leave them in. I do not think we have a disagreement.
The Deputy Chair: The last questioner who will ask a question with great clarity is Senator Robichaud.
[Translation]
Senator Robichaud: If a case similar to the one that arose in the House of Commons came before the Senate, we would still be in limbo. Is that not correct? It would be extremely difficult to resolve this matter.
Senator Joyal: Is that a question, sir?
Senator Robichaud: I am asking both of you.
Senator Joyal: I will answer you as a lawyer, which will probably bring a smile to the lips of my colleagues Senators Angus and Smith. It all depends. Consider the exact same scenario where the chauffeur to the current Speaker of the Senate receives a letter telling him that he is being terminated. He believes that he is being discriminated against. The question is this: How will he choose to pursue his complaint and seek relief? According to the unanimous decision of the Supreme Court — I stress the unanimous nature of the Supreme Court's decision in Vaid as this was not made clear this morning — the chauffeur would have to file a complaint with the Public Service Labour Relations Board. And there, he would encounter the same situation as Mr. Vaid. I would hope his case would be heard immediately and that the union would not change its position in the interim.
The reality is that he could face the same fate as Mr. Vaid. In other words, he would not have to file a complaint with the Canadian Human Rights Commission which then would then forward the complaint to the Canadian Human Rights Tribunal. After the case has been heard by the Tribunal, an appeal is filed with the Federal Court, which then refers the matter to the Federal Court of Appeal, and, if no satisfaction is received, the case goes to the Supreme Court. The entire process lasted exactly eight years, from 1997 to 2005. Three years later, you would hear about this case, honourable senators, and get an idea of what the situation is like on the Hill in so far as the protection of human rights is concerned.
So then, to answer your question, until we clarify the status of an employee who falls under the PESRA in terms human rights protection, then what has been happening to Mr. Vaid for the past three years could happen to someone else.
[English]
Senator Andreychuk: It seems to me that if there was a Vaid case on our side, it would be quite the same as the House legally, procedurally and in policy. I think what has saved us is that we are here for longer periods of time and we conduct our chamber somewhat differently. We have had those kinds of cases and we have, collegially or otherwise, dealt with them differently. However, I do not think an employee should be at the behest of our goodwill. I think there should be something they can rely on within our system.
[Translation]
Senator Robichaud: If we bring in this kind of regime, Senate employees would be subject to a process whereby the dispute settlement process would be faster. In order for Senate employees to benefit from the same protection, Senator Joyal's proposal would have to be approved by both houses.
Senator Joyal: Absolutely. Without question, an amendment to the PESRA would have to be approved by the House of Commons before coming into force. There is no escaping that fact. However, the House of Commons would also have to ask itself, when confronted with a situation like that of Mr. Vaid three years later, whether it is acceptable for a system like ours to deny people justice.
Senator Robichaud, when this committee that I was a member of at the time examined this case, we held eight meetings and heard from a total of 10 experts. For various reasons, the Senate did not intervene.
Working with Senator Jaffer, I opted to take this matter to the Supreme Court. We intervened and the court heard our argument to the effect that it made no sense for the rights of employees of Parliament, or least employees subject to the PESRA, not to be protected.
In its wisdom, the court handed down a ruling. Three years later, I have to conclude that the PESRA system in place is real. However, does it go far enough in terms of protecting the rights of individuals who allege that they are the victims of discrimination? I do not believe it does. For that reason, I am proposing to Parliament that it ensure parity in the areas of rights protection between public servants, who are covered by collective agreements, and employees of Parliament, who are also subject to a collective bargaining process. The objectives of the two systems are the same.
Senator Robichaud: Would it not be wise to put in place a system that would at least apply to Senate staff initially, and then follow that up with legislation?
The Senate would have a better chance of putting in place a system that would come into force sooner, than if it waited for a system that applied to all of Parliament. Would you not agree?
Senator Joyal: I think the two objectives can be accomplished at the same time. We can review the existing system. I am not prepared to admit at this time that there is no system in place right now. Certainly the Standing Committee on Internal Economy, Budgets and Administration has standards and procedures that we would like to review, in terms of their application. Obviously we can take immediate action in the case of certain employees, but we must also act with the interests of another category of employee in mind.
Senator Robichaud: I am not disputing your assessment of the situation.
Senator Joyal: We can do both things at the same time. In my view, Senator Andreychuk's position reconciles these two objectives, namely ensuring more generally that all employees are covered and also ensuring that a situation like the one experienced by Mr. Vaid does not happen again to employees occupying this type of position.
Consequently, I believe it would be best to take the legislative route to send a message to the other House that action on this front is needed.
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Senator Andreychuk: I have a postscript. Senator Robichaud, I think you were in some of those meetings that we had. There was a feeling that we would not get that consensus with the House quickly enough to have our point of view as the persuasive point of view. At that time, we did say that we should look at this issue, we should put in our own regime and we should set our standards which they could then respond to.
If we pass legislation here, first of all, we would have to do that, but we still need the regime. We still need the regime even if we pass the bill. What chance do we have of it passing there? I am not sure in light of the Vaid experience. There may be some valid reasons, also. It is not just calling Mr. Vaid. To be fair, we would have to look at the whole situation. However, we should clean up our own house first. That is the way I looked at it three years ago, and I still do.
The Deputy Chair: On that note, I would like to draw this hearing to a close. I would like to thank our witnesses who are also our colleagues. The next time we resume, you will be back on the side of the table with which you are more familiar. This hearing has been very helpful.
It is my understanding that Senator Keon, our chair, is recommending that this matter be referred to the steering committee, and that the steering committee will come back to this committee with a recommendation that will show great clarity as to where we go from here. Does that seem reasonable?
The committee adjourned.