Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 3 - Evidence - September 30, 2014
OTTAWA, Tuesday, September 30, 2014
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:32 a.m., pursuant to rule 12-7(2)(a), for the consideration of a draft report on amendments to the Rules of the Senate.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: I thank all of the senators for being here today. We'll carry on with our discussion from last week in relation to a draft report that came about as a result of amendments to the Conflict of Interest Code for Senators, which is now renamed to the Ethics and Conflict of Interest Code for Senators.
At the last meeting, we ended on a discussion around power of the Senate to prohibit a senator from voting. I had asked at your suggestion — and thanks for that — that we have our counsel have a look at this and make a presentation today.
Before we start, Senator Joyal was the most concerned about this — and I appreciate that — and had a perspective that allowed all of us an opportunity to discuss this. Would you like to start or would you like to go with the report from counsel or the Library of Parliament?
Senator Joyal: I think it would be a good thing to start with the presentation of the report from the library so that all senators can understand the context into which the issue has been raised, and then I could comment on the report. I've had time to read it, and I have comments and questions related to it.
The Chair: Before I jump into that, we have been holding discussions on draft reports in public. It came about as a result of a request last fall from a senator who suggested that we be public more often, unless requested otherwise, and in fact we have discussed other draft reports fulsomely in public. If there is a concern, we will go in camera, but I'll only do that if somebody suggests it, otherwise we'll leave it in public.
Senator Joyal: I would prefer that our discussion be recorded, because the issue raised is an issue that might concern the House of Commons also. Since it is of general interest, I think it would be better to have access to the minutes of the committee.
The Chair: Thanks, senator.
Senator Joyal: I would suggest we stay in public.
The Chair: No one opposing? We'll stay in public.
I'll ask my assistant to walk us through the briefing note that has been prepared.
Michel Bédard, Parliamentary Counsel, Office of the Law Clerk and Parliamentary Counsel, Senate of Canada: Honourable senators, just one point of clarification at the beginning. I'm from the Office of the Law Clerk and not from the Library of Parliament, at least for the time being.
You will recall, honourable senators, that at the last meeting some concerns were raised with respect to the power of the Senate to prohibit senators from voting. The issue came up when this committee was examining consequential amendments that are proposed to the Rules of the Senate as the result of amendments made to the Conflict of Interest Code for Senators. The purpose of the amendments to the Rules of the Senate is to make sure that the code and the rules are consistent with one another, and that the prohibition against voting found in the Conflict of Interest Code is also reflected in the Rules of the Senate and is also "procedurally actionable."
I prepared a briefing note that I understand was distributed to all members of the committee. In the briefing note I referred to the background that I just did, and I referred to parliamentary privilege in general. One of the privileges that the Senate and the House of Commons have is the exclusive control over their proceedings. Proceedings include debates, voting, moving of motions. The power of the Senate over its proceedings is exclusive, absolute, and the courts won't get involved. This privilege over its proceedings is historically recognized. It's not contested by the courts.
The conclusion in the note is that as voting is one of the proceedings of Parliament, and the Senate can adopt rules respecting voting by senators and can, when it feels appropriate, prohibit a senator from voting. Actually, there are historical references to rules that have been in place since the beginning of Confederation, in the Senate, forbidding a senator from voting in certain circumstances.
In a nutshell, that was the summary of the briefing note. If you have questions or you want me to discuss a point more in particular, I'm available to answer questions.
Senator Joyal: I would like to thank the law clerk and Mr. Bédard for the note. I have read them carefully, and I want to submit my understanding of where the issue lies and how we can address it.
There is no doubt that the Parliament of Canada has the right and privileges needed to perform its duties. This is enshrined in section 18 of the Constitution of Canada. In his note, Mr. Bédard referred to it at the top of page 2. I will read section 18 in the text of the Constitution, which is referred to in the parliamentary privilege presentation:
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, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers —
— and this is the key issue —
— exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.
In lay terms, what does it mean? It means that we have all the privileges needed to exercise our duties. We can define those privileges, legislate on them, frame them, but we cannot go beyond those privileges that are held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom. In other words, we cannot give to ourselves a privilege that would not have been recognized in the House of Commons at Westminster, and we cannot enjoy and exercise those privileges if they are not exercised in Westminster.
Even in 1992, when we patriated the Constitution, and where we severed all the links with the Parliament of Great Britain, that section of the Constitution Act of 1867 was kept. So you will ask me, "Okay, but what does it mean?"
Well, it means that in the past the Parliament of Canada was seized with a similar issue. In 1870, three years after the new Confederation, Parliament was seized with the responsibility to summon witnesses to the bar and to have them sworn in — in other words, to get the truth from the person. But the problem that arose at that time was that this privilege to have a witness sworn in before testifying was not recognized at Westminster. Hence, the question was that the Parliament of Canada went beyond its capacity to extend its privileges, not to have witnesses being called to testify but to have them sworn. It needed an amendment to the act.
Five years later, an act was passed at Westminster to recognize at Westminster that they could also swear in their witnesses. Hence, the Parliament of Canada could swear in its witnesses. We are constrained by that limit that is constitutionalized, so we come back to our issue.
What is the issue now? The issue is essentially this: Could we prevent a member of Parliament or a senator — in the case now it's a senator — from voting in the exercise of the disciplinary power that the Senate has and that the House of Commons has?
There is no doubt that there are circumstances in which Parliament can prevent a senator from voting, as much as they did prevent lords or MPs in Westminster from voting. In fact, if you read Erskine May in the note that was circulated yesterday at page 3, "Prohibition on Voting," the quotation from Erskine May is pretty clear and I'll read it. Erskine May speaks for Westminster, not for Canada.
In the Commons it is a rule that no Member who has a direct pecuniary interest in a question shall be allowed to vote upon it: but, in order to operate as a disqualification, this interest must be immediate and personal, and not merely of remote character.
In other words, at the Conflict of Interest Committee, when we adopted a prohibition for a senator to vote on an issue where he or she has a direct pecuniary interest, we were exactly in sync with what they did at Westminster. Hence, at this committee we amended the Rules of the Senate to reflect that and we were totally within the parameters of the privileges the way they have been exercised. I underline the word "exercised," because that's what the Constitution says.
I don't know, Senator Andreychuk, if you were here when I quoted section 18.
Senator Andreychuk: Yes.
Senator Joyal: It says "held, enjoyed, and exercised." There is a nuance in each of those words.
The question that arises now is when we prevent a senator from voting on a report of the Conflict of Interest Committee, are we exercising a privilege that has been exercised in a similar manner in Westminster? I asked Mr. Bédard to check in the code of conflict at Westminster and they have no such provision. In other words, there is no provision in the code on the conduct or the behaviour of members of Parliament at Westminster that prevents them from voting.
Mr. Bédard, could you confirm that for the sake of the record, because it's an important issue. It explains the reasoning.
Mr. Bédard: The rule in the U.K. House of Commons is laid out at page 3 of the briefing note, and Senator Joyal referred to it earlier. In the code right now, the rule and the prohibition against voting is larger than this prohibition, because the prohibition against voting also includes prohibition when a family member has a private interest in the matter. There's currently a prohibition against a senator from voting when a family member has a private interest. I think there is a difference between the exercise of a privilege and the privilege itself. The privileges at stake are the privileges of the Senate to discipline its members and the control of the Senate over its own proceedings.
If we look at those privileges that are historically established, we are now bound by how the U.K. House of Commons have exercised their privileges because back in 1867 there was no conflict of interest code in the U.K. If we follow this reasoning, the conflict of interest code will be ultra vires of the Senate. It's the privilege itself, the right to suspend its members, senators, and the right of control over its proceedings that are important.
The Supreme Court decision in Vaid establishes the parameters with respect to privileges. Once the privilege is historically established — the existence and the scope of the privilege — the courts won't get involved in the exercise of the privilege.
Senator Joyal: I totally agree with Vaid. As you know, I intervened in the Supreme Court on the Vaid case.
The first question is: Does the privilege exist? There is no doubt the privilege for the Senate or the House of Commons or Westminster to discipline its members exists. The question is: What is the scope of the privilege? How far will it go? In this case, especially, that's essentially the question.
Westminster didn't go as far as we are proposing to go. Westminster has limited the scope of the privilege, the way that Erskine May has been interpreting it and the way that you quote it:
. . . no Member who has a direct pecuniary interest in a question shall be allowed to vote. . . . this interest must be immediate and personal, and not merely of a remote character.
The issue essentially runs around the extent of that privilege. Let me give you an example.
There is no doubt that the Senate has the privilege to establish how its members will vote, because we vote differently from how they vote at Westminster. I think Senator Andreychuk and Senator Smith or other senators might have seen it. As you know, the members come from behind and they come in front of the Speaker and their vote is registered. We stay in our seats because we are less numerous than them and we vote from our seat by standing up, or we could establish electronic voting. In other words, we could establish different means of voting. It doesn't change the vote, per se. The result is the same; it's a majority vote.
There is no doubt that we have the privilege, the capacity to establish the manner in which the vote is conducted, but in this case what we are essentially discussing, what I raised as a subject of sober second thought, is that we extend the exercise of the disciplinary power a step further by disqualifying a senator who is the object of a report before the sanction is imposed to vote on that report. That's essentially what it is. That has not been done at Westminster at this stage.
It's possible that they will do it, but they have not been seized by such an issue as the way we have been seized ourselves here in the Senate. It may happen sometime down the road on the day that they will have a report from their committee recommending a sanction on a member of Parliament, but at this stage they are not yet there.
It is the same way as when we wanted in 1870 to swear in a witness before they testified in order to get the truth; they did not have that capacity at Westminster. They have to legislate before we can impose it on ourselves. That's essentially the parallel between the two.
There is no doubt that in the Vaid decision the Supreme Court has defined the privilege not only by the nature of the privilege but by the scope of the privilege, because by the scope you can extend it to a point whereby you have no more constraints than the one we have in section 18.
By the way, we could amend section 18 very easily through a simple act of Parliament, an act adopted in the Senate and in the House of Commons, because it deals essentially with the Parliament of Canada. It doesn't deal at all with the legislatures. We don't need the concurrence of the provinces to amend section 18 and remove that phrase in section 18 that limits our privileges to the ones that they enjoy and exercise — and "exercise," not only have. It's not only the privilege they have; it's the privilege, the way they exercise it. The word "exercise," in my opinion, is very clear to define the scope of the privilege.
That's essentially the point. I raised it, not to have an academic debate, but I think it's important for this committee as the Rules Committee to understand section 18 because we are seized with issues of privilege, not regularly but often in the course of amendments to the Rules of the Senate. That is why it is an important issue, and we need to take a stand on it.
I don't raise it to prevent the committee from adopting the report. I want to be very clear on that. I don't do that to prevent the adoption of the report. I just want to be sure that it is on the record that there is a potential constitutional grey zone in relation to that.
I think it is important also because we have a subcommittee of the Rules Committee on this, chaired by Senator Furey and Senator Nolin, and this is part of section 18. Should we consider amending section 18 at a point in time? There are all kinds of implications in relation to that, but that's essentially where the issue lies, in my opinion.
The Chair: Thank you very much, senator, and thanks to Mr. Bédard.
Senator Nolin: Could you read section 18 again? I just want to make sure where the word "exercise" is put in the sentence, because I don't have it in front of me.
Senator Joyal: Section 18:
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, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.
[Translation]
Senator Nolin: Senator Joyal, your claim would be that the exercise of privilege, as analyzed by the Law Clerk and Parliamentary Counsel Office, is ultra vires of section 18?
[English]
Senator Joyal: In a way, yes. Not the exercise. We have the privilege of disciplining members, there is no doubt, but it's the scope to which we extend that exercise that could be against —
[Translation]
Senator Nolin: I am not talking about disciplinary power; I am referring to the power of ruling on voting. In my opinion those are two different things.
[English]
It's two different things. To discipline is one thing. To control how deliberations are done, that's a different part of that.
Senator Joyal: Absolutely.
Senator Nolin: I think the opinion of the law clerk is based on the second part, leading to the first one; I understand that. I don't think we argue that the house, the Senate, can organize and control how the deliberation in the Senate will take place. I don't think we disagree with that.
Senator Joyal: Not at all. I don't disagree at all that the Senate has the right to control its voting, but the illustration being that I totally concur with the Conflict of Interest Committee — as a matter of fact, I was chair and Senator Andreychuk was deputy chair — when we introduced the section in the code to prevent a senator from voting when he or she has a pecuniary interest. There was no question about that because it was already plainly stated in the rules at Westminster. There was absolutely no doubt about this. In other words, we are absolutely within the confines of the limits of section 18 when we prevent a senator from voting when in the Speaker's chair the Speaker says Senator X, Y or Z will not be called to vote because that senator has made a statement of pecuniary interest.
But that's not where we are at now. It's a different condition for which we prevent somebody from voting and that condition has not been recognized at Westminster.
Senator Nolin: Senator Joyal, we already have a rule that says that a senator cannot be part of a vote where his own interest is in the decision.
Senator Joyal: Yes.
Senator Nolin: We already have that rule, so we are organizing already how a senator can or cannot vote on a specific question.
Senator Joyal: I agree with you, but it's not because we have said that a person who has a personal interest may not vote or should not be called to vote, because again we are limited by what has been defined at Westminster as being the limit to prevent somebody from voting. That's the nuance between the two. It's the scope of where the limit exists to prevent somebody from voting.
Let me give you an example. We may decide to adopt a rule; suppose we are at war whereby we prevent from voting people from German origin or Japanese origin or Ukrainian origin, as they did in the Second World War. I would contest the constitutionality of this on the basis that at Westminster they have not adopted a similar rule, and we would go beyond the exercise of preventing somebody from voting. That would be essentially the case on which that could be made, because, as you know, the vote part of the Constitution, the Charter and the privileges, as Justice McLachlin said in Harvey — you will remember the famous case of Harvey; you have quoted it yourself — prevented somebody from voting who has been found guilty of an electoral offence. The person says, "No, I have the right under section 3 of the Charter to vote because my right is enshrined in the Charter." In other words, the issue could take a different tone, but that is essentially where the question arises: To which point could we extend limits to the vote that don't exist, that are not recognized in Westminster?
I don't question the fact that we have adopted such a motion or such a rule.
Senator Nolin: I'll finish on this: We have the privilege, and it's only the exercise of that privilege that you contest.
Senator Joyal: The extent to which we can exercise it. I don't question the existence of the privilege at all. I said to you that I have voted in support of those in the past. It's to the scope, the extent to which —
Senator Nolin: It's different. What you voted on at the Conflict of Interest Committee is one thing — disciplinary matters. We're not talking about that. We're talking about controlling deliberations. That's different.
The Chair: So the limit you would suggest, senator, would be the limit that the House of Lords has already set. By not having gone there, we can't go there.
Senator Joyal: Not the House of Lords, the House of Commons.
The Chair: The House of Commons, sorry.
Senator Joyal: The Constitution says quite clearly, even though we are the Senate, the upper chamber, our privileges are the ones that are held, enjoyed and exercised by the House of Commons.
Senator Furey: I just wanted to question Senator Nolin. This is not about, as Senator Joyal said, the exercise of a privilege. It's about the extent to which we take it. So when you refer to the limits that we have already placed on senators with respect to personal interest, are we reading into that personal interest a pecuniary interest so that we come within the framework of what has already been established? I think that's what we generally do.
Senator Nolin: Erskine May is already doing that, an interest not shared by others. That's personal interest. That's exactly the quote that Senator Joyal made.
I think where we disagree, and that's a fine discussion, is where are the limits of the exercise of privilege? That's where we have a problem. We should probably send it back to the law clerk to go back to the books.
Senator Joyal: Again, I'm not against the report, and I want to state it on the record here and I will repeat it. I will certainly not oppose the report. I just want to be clear that we understand what we are doing, because I think it's important when we deal with the right of a senator or an MP to vote we know exactly what we are doing.
Senator Furey: I think Senator Nolin raises a good point. We should go back and look at it because when we pass this — and as Senator Joyal said, most of us are not against it — we just want to make sure that we're not setting up a test case for a constitutional challenge within the chamber itself.
Senator Nolin: Fine with me.
Senator Cools: I want to have a clarification from Senator Furey or Senator Joyal or anyone who understands.
I have a very healthy understanding of the power of discipline that the houses have over members, but I fail to see how that discipline involves blocking or intruding into the basic right to vote, particularly when the issues at hand take the form of a proceeding. The big problem with all these ethics and conflict of interest matters is that they seek to proceed as proceedings in Parliament. Another way could have been found. But in the last 15 years, the Rules of the Senate, which were only intended to guide proceedings in the house, have been expanded and mutilated, I would think, on the grounds of putting in other things, like sick leave, which really have nothing to do with moving proceedings in the houses. At the end of the day, it's those proceedings that are protected according to article 9 of the ancient Bill of Rights.
I fail to see how one can encroach on a senator's right to vote by using the power of the discipline of the houses, and even that power of discipline over the house and members of the Senate has a pretty shaky ground. The House of Commons relies on Bradlaugh v. Gossett, but it never applied to the upper house in those days.
If someone could clarify, I would be happy. I was a little bit thrown aback by the recommendation of the ethics committee to block a person from voting in a matter that is a proceeding in the house because every member has a prima facie right to vote in a proceeding in the house.
The Chair: I think that's what the discussions are about now, senator.
Senator Cools: We need a long discussion on it because it is far more complicated and troubling than it appears on the surface. Perhaps in the process of this, chair, we could trot out the authority that we rely on for what we call the power to discipline.
Senator Andreychuk: I'm actually here replacing Senator Tkachuk, but I just want to put on the record that there is a difference. We're both from Saskatchewan and we're both Ukrainian, but there is a gender difference and perhaps other differences.
This is a little embarrassing because the Conflict of Interest Committee sits in camera in its discussions, and I'm not sure to what extent I can raise the issues that were canvassed there. We should keep in mind a couple of points. To say that we can't exercise and restrict a senator from voting, we've already crossed that Rubicon. If you're restricted from voting on a pecuniary interest or any other self-interest, then we're already there on this discipline.
What was noted here was to balance against that it is not a criminal process. It is not an average issue; it is a discipline issue. We bent over backwards to ensure that the person who is the subject of an allegation or complaint has every right to defend themselves, both in the committee and on the floor of the chamber.
Bearing that in mind, when you come to a vote, and we leave it to the discretion of the Senate how they conduct their own hearings in the chamber, and you give them maximum ability to defend themselves, it was Senator Joyal very strongly talking about the honour of the Senate, the dignity of the Senate and the respect for the Senate that had to be weighed against the individual senator's rights. On that basis, we came to the proposals that we adopted in our code.
The issue at the time was that if you can restrict them from voting, if you give the maximum right to defend themselves, can you then sit as the judge, in essence, judging yourself, your own behaviour? That's the issue that I think swayed me. Once you're afforded the ability to defend yourself to the maximum, where in our constitutional history are you allowed then to pass judgment on yourself? That was a practical thing. How would the public deem it if there had been a tie vote and the person who was the subject matter of the hearing could cast the deciding vote?
Senator Cools: There's no casting of votes on this.
Senator Andreychuk: It would be tantamount to that if we had a tie situation.
In any event, we canvassed this for quite some time. I wish we could put it on the floor here, but the proceedings were in camera.
The Chair: We are not though, senator.
Senator Andreychuk: Yes, I know. That's why I'm being very cautious as to what I'm talking about.
The Chair: Thank you for that.
Senator Andreychuk: I'm sure Senator Joyal would not mind me indicating that he initiated the issue of the fact that the senator who is the subject matter should not vote and was very persuasive in his arguments. Now, of course, he's a very good counsel and can plead a very good case.
My only concern is I think we should investigate this. It may mean some changes, but I'm very concerned that our code continues now.
As I said in an informal discussion Senator Joyal, he was persuasive in the committee and I hoped he would be persuasive in this committee and that we proceed to adopt it and then seek independent legal counsel, get all the constitutional people, and maybe that leads to an amendment.
We have no cases before us. We could delay any case to receive those judgments if we thought it would be prejudicial. I think there's a road map to get out of this rather than not adopting. That's really what I'm saying.
Senator Joyal: I never said we should not adopt the report, and I want to be on the record very clearly on that. I'm not opposed to the report. I raised an issue that exists in my opinion. As I said, I see the question mark in relation to section 18, not about the objective of the Conflict of Interest Code. I totally corroborate what Senator Andreychuk has mentioned and what Senator Frum also mentioned last week when we discussed that. If I may quote myself — and I make the argument in support of Senator Andreychuk now and change my hat — I thought that a person should not be judge of his or her own case. It's enshrined in natural justice. I made a speech last week on the principle of natural justice and how we were keen to follow those principles. When you apply the principles of natural justice to a hearing in the Conflict of Interest Committee or in the chamber as a whole, you are essentially exercising the adjudicative function on the basis of a recommendation, i.e., the conclusion of an investigation by the SEO and a reflection on additional thinking by the Conflict of Interest Committee. I have no dispute with that.
However, when you put that in the context of section 18, there might be an issue for us to reflect upon so as not to be caught in a situation in the future, I hope not soon. When there is such a situation, there is always tension, pressure, the media, the political system and whatever — and sometimes partisanship.
The Chair: Not true.
Senator Joyal: It's not the best context to raise and reflect upon such an issue. That's why I thought of raising it — certainly not to prevent the committee from reporting and maintaining the provision of the Conflict of Interest Code, that Senator Andreychuk mentioned.
Senator Martin: I wish to thank our law clerk and office for preparing the briefing note. To my colleagues, I listened intently today and at our previous meeting. In essence, Senator Andreychuk has articulated so eloquently what I was feeling. I was not sure how I was going to frame it, but after listening to what everyone has said, I look at the entirety of the process and the vote that comes at the end of it. When people criticize or talk about the Senate and say that we just rubber stamp these bills, I always say to individuals, "Before that vote, there is an entire process that leads us to that moment." When a caucus may rise and appear to be whipped or to vote together, a whole process has been undertaken within the individual caucuses as well as in smaller meetings and committees. Such a process is followed before that final vote takes place.
As Senator Andreychuk said, I feel the senator in question, who is the subject of the final vote, until that moment has had ample opportunity to be on record. In the chamber, everything we do moves through debate, discourse and discussion. When I think about the entirety of the process, including this one, I want it on the record that with today's discussion especially and with this briefing note that we've received, I feel quite comfortable about adopting the report. I wasn't at the table for the original report, but I think we have already witnessed the expertise at that table to bring us this report.
I want to express my confidence in my colleagues to have deliberated well and brought the report to us. I feel quite comfortable with going forward; and I thank everyone for this enlightenment, even for me to understand our parliamentary privilege with more clarity, which was very important for me. This step was important, and I feel quite confident about this report.
Senator D. Smith: I started off thinking about scriptures this morning, such as judge not that ye may be judged; and let he who is without sin cast the first stone. It's pretty clear what section 4 and the Charter spell out.
There is an issue here and we can get it right and should get it right. As you all know, I'm a big believer in consensus. There is another issue out there with the consensus aspect, and Senator Nolin is working on that. I think we can get it right and we should get it right. If he is comfortable with adopting it in the meantime, then I'm comfortable.
To be brief, where there is a will there is a way. I'm hoping there is a consensus, which is a will to get it 100 per cent in compliance, and that's where my head is.
Senator Cools: I believe Senator Joyal used the expression that a person may not be adjudged in their own cause. But I could argue 10 times up and down and around again that every minister who raises an issue in the house and votes in favour of his own measure is voting in his own cause. When we say "hear your own cause," certainly a senator has an interest in knowing what is happening in these reports. Many of these issues, as we know, are handled by human beings who fail and falter all the time. Sometimes a senator, just because somebody does not like them, doesn't get a fair chance at things. This is just how humans are. It means nothing; it is just the human reality. I've seen many ministers bring bills that nobody agrees with, and yet the fact that he's voting on something that nobody wants is ever questioned. But he is a judge in his own cause.
We have to be careful and cautious here. Senator Joyal has raised an issue that needs to be canvassed more deeply. In 1867, the British North America Act, section 18, never contemplated the creation of these ethics committees. If they did contemplate that such committees might exist, they never contemplated that they would move ahead as proceedings in the houses. All of this is a very new phenomenon. Just a few years ago, we didn't know what the ethics committee should do or what the question involved. I'm very deferential to the work that Senator Joyal and Senator Andreychuk have put into the matter. But I am very aware that senators have been set up in this place on many occasions and have been hurt and damaged. I'm very aware. I sit in the position of an independent. I get very little in this place — no trips and no committees that I want, and so on. Are you trying to tell me that I can't vote when they bring a committee report that doesn't have my name listed as a member of a committee? I have a vote, yes I do; but according to this, that would be voting in my own cause.
The Chair: That's not what this states.
Senator Cools: This should move more slowly. I thank Senator Joyal for the fact that it should be canvassed very well before we adopt the report. It is a very serious matter. Depriving a member of Parliament of a vote is an extremely unusual and serious matter.
The Chair: Thank you, senator.
Senator Cools: On a final point, it would look bad to the media if it was a tie vote or if it was won by one vote and it was that individual's vote. Well, leadership demands that we meet the media and explain the truths of the matter.
The Chair: Thank you very much, senator.
Senator Frum: I'm just reviewing the most recent past cases in my mind that prompted the proposed changes to the ethics code. I'm trying to think whether any of them failed to include pecuniary interest. They all did, including our most recent case where a senator was instructed to take a course at his own expense. I understand the debate is whether it's a pecuniary interest or just a self-interest, but I don't think there is an example where pecuniary interest was not involved. I'm not sure that the concern we have, the disqualifying factor doesn't apply here, is actually valid.
The Chair: That may be true historically, but I certainly think everyone here could think of a few that would not be pecuniary, though.
Senator Frum: For it to reach the stage to be voted on the Senate floor — the process it has gone through, for the senators to be voting on sanctions — I'd be prepared to take a position that if there is no pecuniary interest, then, okay, you can vote.
The Chair: Let them vote.
An Hon. Senator: Let them vote.
Senator Frum: But you know what? I'm not really worried that that's going to happen.
The Chair: So that we're clear, the code does not say pecuniary, right?
Senator Joyal: I think I have stated my position. The point is: What do we do now? What do we decide today?
Maybe one thing we could consider is what Senator Nolin has been reflecting upon on the basis of the exchange we have had this morning, which is, in my opinion, fuller than the one we had last week. We could ask the law clerk to review the points that were well-stated by you and by Senator Furey, that is, the extent of the exercise of privilege, with the consideration that has been shown on the integrity of the house, on the integrity of process, which I think is certainly a very valid argument. There is also the fact that there have to be compelling reasons to deprive someone of the right to vote. I think that, with the review of what could have been done at Westminster in previous decisions, we could sum up the state of knowledge at this point and certainly be in a position to make a very complete decision in that everything would be in front of us.
As I said, I'm not against giving effect to the decision, the recommendation that the committee made to the house and the recommendation that the Rules Committee might want to make. But for our own satisfaction, I think there is no pressing, immediate need. We are not confronted with the situation. We could take a week more to have the opportunity to come back with what has been already done and what would complete the reflection. I don't know if you feel that you can concur with that.
Senator Andreychuk: I have a suggestion. I think Senator Frum raised the issue that we're not dealing with public interest, like a minister, but private interest of a person. So far, it seems to be something around pecuniary interest. If you were to go ahead, you might wish to ask the Conflict of Interest Committee to review the extent of when the section would apply and come back in one month or two weeks so that we would pass it. We would reflect on all of those discussions that we had, day in and day out, in the Conflict of Interest Committee. If we believed there should be a curtailment of that code section, we would then introduce the amendment and bring it to this committee first before we take it to the floor.
I say this because we have been on the record over and over again saying that it is an evolving code, that it is not entrenched. We are moving step by step, month by month, week by week in evolving it and trying to get the right balance, balancing the need of the public to be assured that we are in fact governing ourselves appropriately with the best interests of the senator and the best interests of the institution. So it would be a fair thing to say that you pass it. You have this concern that we review it and see if there should be any limitation on that right to vote, and it would be back in the committee.
The Chair: Your suggestion is to adopt the report and refer back to the Conflict of Interest Committee.
Senator Andreychuk: Refer back to continue to study that section and bring it back in a month's time or whatever.
Senator Joyal: The only comment I would make is that since we have had this discussion this morning and have raised an issue that, in my opinion, deserves to be clarified, if we do that in the Conflict of Interest Committee, we sit in camera so that report that we might get from the law clerk will remain within the purview of the members. My preoccupation is that the question that was well put by Senator Nolin and Senator Furey needs, in my opinion, to be on the record in this committee because it's a complement to the discussion we've all had this morning.
Once we have that report or that further consideration, we can adopt the amendments to the rules. I have no objection to the amendments per se, but the issue that was raised is a serious constitutional issue. I think it should be on the record in this committee.
The Chair: I spoke to Mr. Bédard, and he believes — I don't want to say absolutely — that he can have it done for next week. Certainly, later this week, he will be able to tell us whether he can have it done for next week. If everyone agrees, we will do that. We'll set this aside until next week in the hope that next week we will have a more fulsome approach so that we can adopt this report. We may end up referring to your committee some further concerns. Is everyone okay with that?
Senator Joyal: Yes, totally.
The Chair: If I may, Senator Furey, Senator Smith, Senator Nolin and Senator Joyal, stay back for a couple of minutes following this committee to discuss the parliamentary privilege subcommittee and see if we can try to set up a meeting.
If there is nothing else, I want to thank everyone.
(The committee adjourned.)