Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 3 - Evidence - October 21, 2014
OTTAWA, Tuesday, October 21, 2014
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:34 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 call to order this morning's meeting of Rules, Procedures and the Rights of Parliament for Tuesday, October 21, 2014. I want to welcome everyone here today. My name is Vern White. I'm the chair of the committee. I would like to start to my right and allow everyone to introduce themselves. We'll go around the table quickly and proceed to the agenda. Senator, if you would introduce yourself, please. We're in public.
Senator McCoy: Senator McCoy, Alberta.
Senator Joyal: Senator Joyal from Quebec.
Senator Furey: George Furey, Newfoundland and Labrador.
Senator Jaffer: Mobina Jaffer from British Columbia.
Senator Batters: Senator Denise Batters from Saskatchewan.
Senator Tkachuk: David Tkachuk, Saskatchewan.
Senator Doyle: Norman Doyle, Newfoundland and Labrador
[Translation]
Senator McIntyre: Paul McIntyre from New Brunswick.
Senator Nolin: Pierre Claude Nolin, from the province of Quebec.
[English]
Senator Martin: Yonah Martin, British Columbia.
The Chair: Thanks for the quick introductions.
Today we're looking at consideration of amendments to the Rules of the Senate pursuant to rule 12-7(2)(a) and consideration of a draft report and some questions that came out as a result of the draft report, primarily put forward by Senator Joyal. If it's okay, senator, I'll allow Mr. Bédard to jump right into the responses. Does that work for you?
Senator Joyal: Absolutely.
Michel Bédard, Parliamentary Counsel, Office of the Law Clerk and Parliamentary Counsel, Senate of Canada: Honourable senators, at the last two meetings, the Rules Committee considered a draft report which would recommend amendments to the Rules of the Senate. These proposed amendments are consequential to amendments made to the Ethics and Conflict of Interest Code earlier this year. They aim at including in the rules the procedural elements of the code and ensuring that the rules and the code are consistent with one another.
Pursuant to subsection 51(5) of the code, a senator cannot vote on the report from the Conflict of Interest Committee respecting his or her conduct. The draft amendment proposes to include the same provision in the rules that has given rise to some questions at earlier meetings of this committee.
First, questions were raised as to the authority under which the Senate could prohibit a senator from voting. At the last meeting, a note was distributed and briefing was offered and it was indicated that such a prohibition against voting in some circumstances was an expression of the parliamentary privilege of the Senate to control its own proceedings and to discipline its members.
Second, it was suggested that the prohibition under consideration was ultra vires of the Senate because the U.K. House of Commons had, in 1867, instituted a prohibition against voting only when a member had a direct pecuniary interest and that the Senate could not go beyond that prohibition based on the language of section 18 of the Constitution Act, 1867 and section 4 of the Parliament of Canada Act. In sum, these provisions empowered the Senate with the same parliamentary privileges that were held, enjoyed and exercised by the U.K. House of Commons in 1867.
When it is established that a privilege was held, enjoyed and exercised by the U.K. House of Commons in 1867, the Senate is the sole judge of its exercise. The Supreme Court of Canada in Vaid has stated clearly that once a privilege is authoritatively established, Parliament is the sole judge of the occasion, manner and appropriateness of its exercise. The prohibitions against voting that are currently in the code and the rules, because there are currently prohibitions against voting in the rules, as well as the amendment under consideration by the committee, are a valid exercise of its privileges to control its proceedings and to discipline its members.
I trust this answered the questions that were raised earlier by the committee. There were two briefing notes that were distributed on the subject, and if you have questions, I'll be happy to try to answer them.
The Chair: Senator Joyal?
Senator Joyal: Mr. Chair, would it not be advisable to have the briefing note being printed as an appendix to our deliberation today?
The Chair: Absolutely.
Senator Joyal: As you know, what we're discussing is of interest in the other place, and I think it would be helpful for anyone who would want to consult the word "privilege" in the minutes could find that briefing note also.
The Chair: Agreed. So if everyone's okay, we'll attach that briefing note to the — no disagreement? Okay.
Senator Joyal: Thank you. I also understand there was information sought in Westminster in relation to the exercise of the disciplinary function. Will there be a report formally on that one also?
The Chair: I see no reason — we have the information provided to myself. I'm not sure if everyone received a copy or not, did they?
Charles Robert, Clerk of the Committee: They did.
Senator Nolin: We have it.
The Chair: Would you like something further, to report to the committee more formally?
Senator Joyal: Maybe we could have a brief presentation because it will be the interest of the members to know about generally, and we could have that note also printed as an appendix to the same minutes of the committee.
The Chair: Everyone is agreed?
Senator Furey: Sorry, are we talking about the Q and A of Westminster? Are we talking about attaching that as a Q and A?
The Chair: We could, or we could attach it as a more formal report.
Senator Furey: I don't have any problem with it.
The Chair: You're okay to do it? Okay.
Senator Batters: Excuse me, Mr. Chair, is that Q and A encompassed in the subsequent briefing note or not?
Mr. Robert: It's a separate document.
Senator Batters: I know it's a separate document.
The Chair: It's a separate document, but it encompasses the response in the briefing note. It was used to develop the briefing note.
Senator Batters: So is there a need to attach it separately, then?
The Chair: There is certainly more detail there than there is in the briefing note. I have no concerns with what I see there. I think they go further because they're allowed to answer more fully, I guess.
Senator Batters: Sure.
Senator Joyal: I think that one of the reasons the chair suggested we print it in an appendix is that if I remember well the discussion or deliberation of this committee at our previous meeting we requested formally to have additional information sought at Westminster, so anyone who would read it will say did they do it or what is it as an answer.
The Chair: What was the response?
Senator Joyal: That's why I think this is appropriate to add.
Senator McCoy: It seems to me that it would be helpful if this information from Westminster were shared with the committee.
The Chair: It was.
Senator McCoy: Was it? I missed that, then.
The Chair: It says information regarding practices. You don't have that, Q and A?
Senator McCoy: No, sorry. My apologies.
The Chair: No, no, it's okay. It's okay, senator. And it was used to develop the briefing note.
Senator Furey: The only reason I raise this is because it seemed to be somewhat of an informal exchange between clerks. At one point it even talks about "to answer Charles' question" or something like that. If you have no problem with it —
Mr. Robert: I did write to them because I do know who they are, so we were able to write that way, but I also asked them for their permission to distribute it, to make it clear that this was not to be understood as a communication just between clerks. But it can be edited to delete "Charles."
Senator Furey: I have no problem with it. I want to make sure we're not offside with it.
The Chair: So we'll attach both of those, Senator Joyal?
Senator Joyal: I wonder if we could not for the sake of all members have a brief presentation of the information that exists in Westminster in relation to that. Mr. Robert, the one who has been in touch with them, would probably be better placed to give a brief summary of this.
Mr. Robert: I asked them over the course of several days three questions relating to the practices. What I tried to do was solicit information that responded directly to the kind of questions that had been raised at the last committee of rules. So in the first answer they do indicate under what conditions members would normally not vote, and then we went further into the discussion about the business about a member who might be under censure, and that would involve either when he is named or when he is the subject of a motion for suspension, which apparently now is the normal way to discipline members. Naming seems to be no longer a prominent feature.
What's not clear to me, sometimes, is when there's going to be a debate. If it's naming, there is no debate, and so the member would not have an opportunity to defend him or herself if the member were subject to a motion under naming. But if it's a suspension, it does seem to involve the possibility of a debate, and there under the traditional practice, the member would be expected to withdraw, and sometimes he will do that after making a statement, and then would be the subject of debate for whether or not the suspension should go ahead. Then there would be a vote.
If, in fact, the member has withdrawn, clearly he is not voting on that motion of suspension, and there are often cases where, in fact, there is no division. The house will simply come to an understanding about its position without going through the formal mechanism of a division or a vote through the tellers.
There are six instances listed when a suspension motion has been moved between 2007 and 1988, the earlier one, and you can see how there have been some changes. But the general practice does seem to be that when a member is the subject of a motion for suspension, he will not vote on the motion and will likely or more often withdraw after having been given an opportunity to make a brief statement.
Senator Joyal: In other words, the members who have been the object of a report could be invited to give his or her explanation, but he or she doesn't remain in the house? In other words, he doesn't contribute to the debates on the floor.
The Chair: He makes presentation only.
Senator Joyal: I see heads bending, but it's not recorded. So is it a "yes" formally?
Mr. Robert: Yes, sir.
Senator Joyal: I think the second point — which was unknown to me — is that the members of the Standards Committee who have recommended action on that member are not allowed to vote; is it right?
Mr. Robert: That seems to be the case. And I asked for clarification from Eve Samson, and I'm not clear that I've received a comprehensive answer.
The Chair: I thought it was clear, actually.
Senator Joyal: So in other words, if I do a parallel, the members of the Standing Committee on Conflict of Interest for Senators who would recommend an action being taken against a member or on a member would not be allowed to vote on that recommendation.
Mr. Robert: To be clear, what she said to me was that they would not be expected to vote either, but as indicated, since votes are so rare, there's no way to prove it definitively one way or the other.
Senator Joyal: But that's what is expected?
Mr. Robert: Yes.
Senator Joyal: Because those are two major differences with what we do, the first one being that if the Conflict of Interest Committee — and I'm looking at Senator Frum because she is a member like me — would recommend that initiative being taken on a member, once they have tabled the report, they don't vote. They don't say that we withdraw, but we don't vote; and on the second one, once that senator has made his or her statement, he or she doesn't participate in the follow-up on the debate, which is a major difference with what we have.
The Chair: Correct, and I think that is what is suggested. If you look at the third question and answer, I think it is an attempt to clarify where Parliament was criticized for allowing a member who had complained of a contempt — now in this case I guess it's whether or not that standards group would be considered complainants, "by the media being allowed to vote in the decision to penalise the external body for the contempt: so it is wise to avoid a perception."
I don't think they say at any point you cannot. I think they suggest you do not. Does that make sense?
Senator Joyal: The rule is more fluid.
Senator Nolin: It is by tradition, the way I'm reading that note. By tradition they do that.
The Chair: Traditionally, we wouldn't do it so as to avoid a perception of bias. You've already made a decision on penalty, and now you're going to vote to confirm the penalty.
Senator Joyal: I think it's helpful to know this because we might want to reflect upon it at the Conflict of Interest Committee, if it would be better for us to adjust our procedure to that.
Senator Batters: Of course, the very important principle of fundamental justice that, as is quoted there, of not being a judge in one's own cause is crucial to all that underpins this.
The Chair: Agreed, senator.
Senator Batters: Thanks.
Senator McCoy: This is the first opportunity I've had to speak to this, and it's a bit off topic for this meeting today, but it is particularly on topic for natural justice and the proceedings with the ethics committee and the new procedures that have been put forward for discipline on a conflict of interest matter as defined in that code.
First, let me congratulate that committee for bringing us into the 21st century and much, much closer to the rules of natural justice and the Charter requirements. They're quite elegantly crafted and satisfying in most particulars, limited though they may be in their scope, and we have work to do generally, presumably through the Senate Administration Rules, the SAR, to mirror that procedure.
My concern is the secrecy of the proceedings. I think it's important that we weigh very carefully privacy concerns. We certainly know that we want to ensure reputations are not needlessly tarnished, and so one goes to considerable lengths to proceed with all due discretion.
On the other hand, as the Quakers would say, there are very few proceedings that don't deserve witnesses; and yet we're setting up a proceeding of the most serious kind where five members of the Senate can declare that they will be secret, and only what they declare admissible will be known to the other 99 senators. The accused, I'll say, would know, of course, but 99 other senators would not.
I worry about the potential for misuse of that discretion. I've thought about how one might cure that in a reasonable manner. I don't suppose I've thought it through all the way because I haven't had the benefit of discussing it with Senator Joyal or Senator Batters or yourself or others, but it sincerely needs doing.
One example of ameliorating what I consider to be a flaw in the process would be, for example, allowing others into these proceedings, to hold them in public if the "accused" were to ask for it to be public.
Senator Joyal: Well, it's possible.
Senator McCoy: Well, it's not possible.
Senator Joyal: Yes, it is.
Senator McCoy: Where does it say that?
Senator Joyal: I don't want to engage in a one-on-one discussion without going through the chair.
The Chair: You're going to refer to 12-28, are you?
Senator Joyal: Well, Senator Frum is here. She is a member of the Conflict of Interest Committee. If a senator who has been the object of an allegation and after a proper investigation the SEO concludes positively on an allegation and refers in his or her report, the senator who is the object of the report can always request the committee to sit in public. If the senator in question prefers that the sitting be held in camera, the committee will hold it in camera, but it is the senator who is the object of the allegation who has the last word if the committee will sit in public or not. At that time he or she decides if it is in his or her best interests to have an in camera hearing or a public hearing.
The Chair: It's actually in the code under section 36, Senator McCoy. That's entirely up to the senator.
Senator Joyal: Could you read it?
The Chair: Section 36(2):
When an inquiry report from the Senate Ethics Officer is being considered, the committee may hold meetings in public at the request of the Senator who is subject of the inquiry report.
So it could be in public if the senator who is the subject chooses.
Senator Joyal: That's the first question that is asked by the chair of the committee: Would the senator request a meeting in public or in camera. Of course the deliberation of the committee will be in camera.
The Chair: As it is.
Senator Joyal: I think that is proper; but the hearing, per se, is either public or private.
Senator McCoy: Then I misread the code. I'll go back and look at it, and I apologize for taking your time today.
Senator Furey: Senator McCoy has just opened another area that is of a little bit of concern to me and perhaps Senator Joyal can put it to rest.
When a report from the Rules Committee is tabled in the chamber and is debated in the chamber that, in my mind, is an appeal process or can be an appeal process. Otherwise, the decision of the committee is final and there is no appeal process; is that correct?
Senator Joyal: No, it's not. I'm sorry to say no because you are a lawyer and Senator Nolin is a lawyer also. The committee doesn't decide. The committee looks into the report and recommends to the Senate. In other words, the committee doesn't have any power to sanction. The committee recommends to the Senate that there be a sanction or no sanction, and it is for the Senate to decide. Then the Senate may decide to accept the recommendation of the committee and may decide to review the recommendation of the committee. Suppose the committee recommends a suspension of six months, the Senate might decide ten months or three months or might decide not to suspend the senator, or the Senate can say the committee should look into it again and come back with additional facts that were put forward in the debate.
The committee has no decision power. The committee has only a recommendation power. It's for the Senate as a whole to take a stand on it.
The Chair: There's nothing to appeal at that point.
Senator Furey: Then what comes to the chamber is the report of the committee, not the record; is that correct?
Senator Joyal: That's exactly it.
Senator Furey: Unless, of course, the chamber was to request the record?
The Chair: Absolutely.
Senator Joyal: Absolutely, totally. Exactly.
Senator D. Smith: Chair, there are obviously several issues here that have to be addressed, and at the end of the day it's going to be the Senate that decides. Research is important and the parliamentary tradition is important, and when it comes to sources of information you can't get any better than Westminster. But even in this instance, you don't have total clarity. I'm one who does like clarity as much as possible.
It seems to me that the logical thing to do here is for it to go back to the committee, this information is now available, and see if a consensus can be reached. Now I know I use that word a fair bit, but it's something that's really important when you have both sides reaching a consensus.
We're talking academically here. We're not talking about a specific case where there might be elements of partisanship in the background. What we're really talking about is to do the right and fair thing within the parliamentary tradition. I think it just should go back to the committee.
The Chair: To be fair, senator, I'm not sure I hear a lack of consensus. I hear great questions and great dialogue and great responses. I haven't heard a lack of consensus today.
Senator D. Smith: I'm not saying there isn't one, but you've got to go through these things and do the fine tuning.
The Chair: I think that's actually what we did, senator, unless I'm missing it, Senator Furey or Senator Joyal. First of all, I want to say I think the dialogue has been nothing less than spectacular. I do appreciate the fact that even those who brought the code forward challenged some of their own thinking, which I think was helpful to all of us as well, and I appreciate that, Senator Joyal. It did force us to take some steps we may not have taken. I think it's back to why the Senate works but, more importantly, we could delay this, but honestly, I don't have any more questions. The answers were, I think, provided very well. I do appreciate the fact that nothing is perfect, but I don't see a lack of consensus. If consensus means one may not vote for this I understand it, but I don't see a lack of consensus, to be fair, all around this table.
Senator D. Smith: We'll find out.
The Chair: We will.
Senator Batters: I think, actually, for as much legal training as those who have engaged in this debate and preparing the different materials and that sort of thing have, there's actually been quite a bit of clarity. I know that lawyers are used to dealing in all of these nuances and that sort of thing but I think there actually has been quite a bit of clarity provided from my point of view.
Senator Tkachuk: I like the question that Senator Joyal raised. I'm not a lawyer, so I approached this as a political institution. If you're fired from General Motors, you can go to court and sue them. I think that a senator should be able to fight and claw to his last breath if he's being dealt with by his committee and the Senate, saying that he's going to be suspended or she's going to be suspended for a year or two years. That's why I think they should be able to vote on this question, because there's nowhere for that senator to go. This is the last thing that he or she can do.
I don't know from a legal point of view — we had a discussion here on the side, Senator McCoy and I, and I apologize that we were talking a little bit. We discussed the disparate proceedings for the Law Society, for example, but the Law Society is an institution formed by lawyers for lawyers to decide how they want to do things. I think that a senator should be given every opportunity to defend himself or herself right to the end, and that includes a vote. I don't think you can take away a senator's right to vote, because once you deal with that, it's over; there's no redress, there's nothing. You can't go to court, nothing; you're finished. If one vote makes a difference, then there's a real problem.
Senator Batters: My point of view in that conversation with Senator Tkachuk — and I apologize to Senator McCoy for that as well — was that in dealing with the Law Society disciplinary investigation, if that particular lawyer being the subject of that disciplinary investigation was a bencher of the Law Society, they would have to recuse themselves from that vote. Obviously, they could not participate in it.
My point of view on that was, just like in the Senate, you have the ability to make as full a defence as you wished to, but that does not, in my view, include a vote.
Senator Frum: I also want to thank Senator Joyal for asking the questions and allowing us to have this conversation.
In response partially to Senator Tkachuk, I don't agree with you; I don't think the individual should be allowed to vote. I think what has emerged from today is the conversation that we need to have at the ethics committee about whether the members of the ethics committee who are recommending something should also be voting on it. Yes, we present committee reports and the people on the committee vote for it. However, I'd like to say here that I think it's worthwhile to the ethics committee to discuss it and to be confident that that is the right way to go, that the ethics committee members, the people recommending the sanction, should also vote for the sanction or not because we all know what they're going to vote for. I don't know what kind of vote that is.
Anyhow, I think it's a good question and a good discussion that we should be having, and maybe that will help balance your concern.
Senator Furey: There will be as many interpretations of this as there are lawyers, we know that.
The Chair: Which is too many.
Senator Furey: I can assure you that there will be a number of people who will consider a recommendation of the committee, with all due respect, Senator Joyal, a decision of that committee, from which there should be an appeal.
Anyway, the thing that bothers me — and if Senator Tkachuk is right, at the end of the day there has to be full access to the record by the senator who is being disciplined. Right now, if it goes to the chamber, and that senator wants the record as opposed to the decision, the majority can refuse it. So perhaps we should try to build in something that allows that individual senator to at least access the record if he or she chooses to do so. Right now, there's no way to do that because the majority can say "no." Then they won't have that ultimate say, as you're talking about, Senator Tkachuk, which I think is very important.
Senator Martin: Thank you to all my colleagues. This is why I appreciate our institution. At these committee meetings, I listen to the discussion, the debate, and I am leaning one way and then I hear someone and I think "that's a very good point." Then I find myself going back and forth. I've done that throughout our meetings.
I feel very comfortable with adopting the report, but I hear what others are saying, that maybe there is a need to send the task back to the ethics committee to consider what Senator Frum is saying. However, the reason why I feel comfortable is I feel there is a process. I believe that when we get to that final vote, so much will have happened, and I feel that even in my own situation of having encountered certain situations, I've been given every opportunity to state my case and talk to my colleagues. Things happen at committee, but every step along the way, it is part of a very long — when I say "long," I mean "thorough" — process.
So based on everything that has been provided, I personally feel comfortable. However, I just want to say that my colleagues have raised some very good points. I guess we'll make that decision as a committee, but I personally feel comfortable today. I have more clarity today as to the direction we're going, and that is the right direction. That's my position at this time.
Senator McIntrye: I want to raise another point. As I understand, the discussion that we're having today really started at the Rules Committee level. It started during the deliberations of the Rules Committee. As I understand it, a question arose at that time in respect to the powers of the Senate to exercise a parliamentary privilege in a manner exceeding this exercise by the U.S. House of Commons, 1867.
Senator Furey, I believe you sit on the ethics committee. Unless those discussions are confidential, can you give us an idea of how this started?
The Chair: Do you mean the Conflict of Interest for Senators Committee?
Senator McIntrye: Yes.
Senator Furey: Well, we haven't really made any decisions yet and the meetings are in camera, but there are general comments that can be made about it that I think have been laid out in this report that Charles got when he spoke to the committee clerks.
Senator McIntrye: The discussion we're having today really centres on the exercise of Senate parliamentary privilege, and as I understand it, this whole idea started at the Rules Committee level.
Senator Furey: No.
The Chair: Conflict of interest.
Senator McIntrye: Conflict of interest, okay.
Senator Furey: Not really, Senator McIntyre, but what we are trying to do as a subcommittee of this larger committee — and we will be bringing back a report, hopefully soon, for the full committee to debate — is to look at the rights and privileges of parliamentarians in a contemporary society. We will probably make some recommendations as to whether or not we think certain aspects of those rights and privileges are in a contemporary society. This whole issue that we're debating now began with the Conflict of Interest for Senators Committee.
Senator D. Smith: Senator Martin made a good point and Senator Tkachuk made a good point. They're not compatible, but they're both good points. These things arise so rarely that there is no urgency here. We may not have one of these for several years. I do think it makes sense for it to go back to the committee and just go through everything and see how it comes out.
The Chair: You're recommending we return it to the Conflict of Interest for Senators Committee?
Senator D. Smith: I really think it would be good if it came back and said the committee — there doesn't have to be total unanimity but a consensus.
The Chair: I'm sorry, senator. You're suggesting we send it back to the Conflict of Interest Committee?
Senator D. Smith: Yes, I am. I think there are enough issues that when the final decision is being made, they at least have been heard out. There is no urgency here.
Senator McCoy: If I could ask your indulgence, Mr. Chair, I would like clarification from Senator Joyal or Senator Frum as to the access to the record. Senator Furey raised that question, access to the record, not only by the "accused" but by the senators who are in a general assembly and are asked to judge the accused. Is there such a provision? If not, perhaps it would be another matter to consider.
Senator Furey: If I may, chair, I raised the issue because all of this is grounded in the basics of the fundamentals of natural justice. Obviously, it's a senator's choice whether to have a public hearing or an in camera hearing. Right now, if a senator decides at committee to have an in camera hearing and the decision is negative to their interests, it goes to the chamber. If that senator believes it would be in their best interest to have the record disclosed for debate in the chamber, then that senator has no access to it without a majority vote in the chamber. That's my understanding. There's nothing in the Rules of the Senate or in the Conflict of Interest Code for Senators that would allow them to ask for a public airing of the record in the chamber during the final debate; and that would be the final debate. Maybe as a suggestion, we could look at the particular clause that relates to the right to vote, where this started, and at ways we could change it and perhaps the rest of the report in order to comply with the conflict of interest changes that have been adopted and that we should probably move forward with. I raise it only as a suggestion.
Senator Frum: I think it's important to distinguish between the investigations of the Senate Ethics Officer, which is where the record will be created, where the senator in question will be interviewed and where there will be a process between the senator and the Senate Ethics Officer. The SEO will produce a report, and that's where the substance of the issue will be recorded. Committee members would receive his or her judgment and if it's negative would suggest sanctions. That process, for the record, of how the committee discusses which choice of sanction and how much, I don't know the answer to. Whether or not a senator wants to make it public is up to the senator. The SEO's report is really the meat and potatoes of what we're talking about.
Senator McCoy: If I may interject, I respect that, senator; but if I were representing a senator who has been accused, I would want to know on what basis the Senate Ethics Officer came to her decision. Having seen her annual reports, I say they're full of obfuscation. They tell you nothing in a great many words. Discretion has been overstepped, it seems to me. As I would understand, the record would be all of the non-interpreted evidence brought forward in its initial form, if you will; and I would want access to that. It would be on that ground that I would want to make a decision. There's no easy way around it.
The Chair: My understanding, Senator McCoy, is that the subject senator would have access to all relevant documents. Whether a transcript is kept is a different story.
Senator Joyal: I will comment on that but first there is a point I want to make about what Senator Tkachuk and Senator Batters, both lawyers, said. I'm sorry if I didn't recognize Senator Jaffer or Senator Smith who are also lawyers. The difference between professional disciplinary power, for instance in relation to lawyers, doctors, engineers, architects or other professionals, is that the decisions of those professionals are appealable for review under common law. In the Senate, it is not so, as Senator Tkachuk stated quite appropriately. This is the Supreme Court decision; there is no further appeal.
For example, in the case of a doctor who was the object of a disciplinary sanction of suspension for six months, I read in the paper two weeks ago that the court reviewed and changed it to three months; there was the possibility for the person to appeal. In the case of the Senate, it is the last opportunity for a senator to state his or her innocence. That's why there might be a slight difference. That's the only point I want to add to what Senator Tkachuk said.
On the issue of in camera, let me restate the situation from the beginning. When an allegation is made by a senator about another senator, if the SEO's prima facie conclusion — prima facie meaning a review the various elements of information provided — is that there are sufficient elements to validate an investigation beyond the allegation, all the materials of the investigation remain confidential in the hands of the SEO. They will never be published. That's what it is now. We might want to review that but at this stage it remains the "privilege" of the SEO, who exercises the privilege of the Senate, by the way. Never forget that the SEO is our representative, our agent, to look into the allegation and come back with a report.
The information gathered by the Senate Ethics Officer in relation to her report remains confidential. The report is made public immediately once the SEO has completed her investigation. The report being made public is referred to the Standing Committee on Conflict of Interest for Senators. The Conflict of Interest for Senators Committee asks the senator in question if he or she wants to be heard in public or in camera. If the senator doesn't want to be heard in public, then what happens in the committee remains confidential in the minutes of the committee. After the committee has concluded its deliberation in camera, the question can be raised, senator. The senator has refused to be heard in public and wants to be heard in private. At the end of the proceedings, when the committee issues its report to the Senate, the senator has second thoughts and asks that the minutes be made public; and there is nothing in the rules that states it.
I do not want to get into details, but I have seen situations where it could have been helpful for a senator who is on the floor of the Senate to state his or her case and quote what he has been saying or the question that has been asked of him by members of the committee. When we sit as a committee and the Senate has not requested to sit in public, members of the committee presume it will remain in camera. We presume that. We don't expect proceedings that have been in camera to become public at some time. If that is the situation, then we as a committee would have to review it. I'm not in a position today to ask you: Should we allow that to happen? I think it's proper to raise it here but it's for the Standing Committee on Conflict of Interest for Senators to review that later, if that could happen later in the debates on the floor of the Senate.
Senator Batters: I want to briefly comment on something that Senator Joyal said. In the case of a disciplinary proceeding, the court one appeals to would not just substitute its decision for the disciplinary tribunal decision; but of course there are all kinds of administrative law principles that need to be followed. If there is an error of law, there might not be a trial de novo. I'm going back to all those administrative law principles that I am trying to remember. Also, I have no familiarity with Quebec Civil Law, where there may be some differences. It's not as simple as just an appeal, when they look at everything and simply substitute a decision. The court would not substitute its decision as it would be more complex than that.
Senator Nolin: I have two points. First, Senator Smith, I think it's important to be reminded that we are asked to concur and to adopt consequential amendments to the rules, because the chamber has already accepted and voted on the reports, two reports from the ethics committee, so I think that needs to be — unless you have a specific proposal, why we should erase all that and send back a message to the house saying, "Whoa, we should stop everything and we should go back to the drawing board." You would need heavy evidence and convincing argument to do that.
But there may be problems. I agree with you that there may be problems. I see the problem is probably in section 36 of paragraph 4 of the ethics code, which reads that the committee shall give to a senator who is subject of an inquiry report from the Senate Ethics Officer notice of all meetings at which the report is being considered and shall admit the senator to those meetings, and so forth. There is perhaps a problem with the French version of that paragraph, but I don't think we should stop because of that.
[Translation]
It is only the permission to attend. I think that if a senator has the right to attend a committee, he takes part in it fully, and he can act. Thus, he may ask to have access to documents, just like the other committee members.
Perhaps the Standing Committee on Conflict of Interest should review the wording of subsection 36(4), with an eye to improving it. But I don't think we should stop the process.
[English]
With respect to the appeal, Senator Tkachuk is raising the question of due process, even though I don't like this expression, "due process." It's an American expression. Your Subcommittee on Privilege, we are in the process of examining that, so why don't we wait for the final result of the Subcommittee on Privilege and you will have their proposal, because at the end of the day we are the only master of our rules and we are the only judge of us. It needs to stay within our responsibilities. It cannot go outside, let's say, to a court.
Senator Tkachuk: Of course not. I agree.
Senator Nolin: But we are looking into that. I want to make you understand that it's not a leftover, we're not reflecting on that. That reflection is already under way.
The Chair: Senator Smith, strictly to the comments of Senator Nolin, please, because I have a list.
Senator D. Smith: I think you raised very good points. What I'm saying is I know the vibe of consensus and unanimity when I hear it. I'm not really hearing it this morning. It's reminding me of family dinners where we frequently have six lawyers there and each only gets one vote. My wife, who is a chief justice, loses regularly which is good. I think it's better if they have another look and when it comes back we feel that vibe of unanimity and consensus.
Senator Nolin: Senator Smith, I thought you had recommended or suggested that we should send to the Conflict of Interest Committee a request to withdraw the report, to change it.
Senator D. Smith: I don't rule out their ability to change it or to recommend change.
Senator Nolin: It's already adopted.
The Chair: It's not going to —
Senator Nolin: It's a report of the chamber now.
Senator D. Smith: I know that but is that for time and eternity?
Senator Nolin: No, no, look, change is possible.
Senator McCoy: First, just a note on Senator Batters' comments, she's absolutely right, and I'll tell her again in a moment. This was on her note that appeals in disciplinary organizations are more complicated than straight up.
A supplementary to Senator Joyal, if I may. Thank you for taking us through the process. That was helpful. This is my question: At the point at which the Senate Committee on Ethics and Conflict of Interest are considering the SEO report after her investigation, does the committee review the evidence or only the report? Just the report? So there's only ever one judge of the evidence, and that is the Senate Ethics Officer.
Senator Joyal: The committee doesn't have access and has not requested access to the evidence that the Senate Ethics Officer might have based her recommendation on. However, if the committee wants to hear the Senate Ethics Officer on the report to, for instance, question an element on which the SEO seems to give certain weight of evidence, the committee is not prevented from asking the SEO to come and give additional explanation, to give the facts or the substance of the elements on which the SEO has determined her recommendation.
So in other words, we don't review the whole of the process of investigation that the SEO has conducted, but if the committee in its understanding of the report would want to get additional information, the committee is totally free to hear the SEO on the basis of the report.
Senator McCoy: If you wished, you could ask to see a document or a transcript of interviews.
Senator Joyal: Of course. For instance, it is expected that during the course of an investigation the SEO will conduct an interview with a witness, for instance, somebody who was involved in the overall allegation of wrongdoing. In that context, there is nothing that prevents the committee from hearing from the SEO to see what were the words essentially being stated or what are the dates, for instance, of a particular declaration or that sort of thing that might be helpful of course to conclude on the basis of the report.
But the committee will accept the report of the SEO as a conclusive study, but the committee is not barred from looking into it to seek additional information to better understand its conclusions.
Senator McCoy: I wanted to say, while you're in the room, Senator Batters, that I appreciated your intervention on making it clear that the appeal from a self-disciplinary organization is not as simple as it might sound.
Senator Joyal: If I may add an additional element to your first question, and Senator Frum will concur, certainly, with that, in our last report to the Senate on the investigation that was conducted recently by the SEO, you will remember that one of the first sentences of the committee's report to the Senate is that the committee has read the report and is satisfied with it. That was our first pronouncement. In other words, we received the report of the SEO. The first step is to look into it. Are we satisfied with the report or not? Because the committee has the possibility to send back to the SEO the report, his or her report. I would be remiss if I would be a member of the committee to come to the conclusion without having had the opportunity to hear the SEO and the report before I conclude that we should send back the report to the SEO.
So by the very fact that the committee has the capacity to send back the report to the SEO, it certainly is illustrative of the committee's ability to receive additional information from the SEO on the basis of the evidence that was gathered by the SEO.
Senator McCoy: I'm somewhat sympathetic to Senator Tkachuk's point, which is this is all internal to the Senate as a whole, and I'm not sure, when I'm being asked to judge one of my colleagues, whether I in all conscience should take it on faith that you are satisfied, without seeing more, without satisfying myself.
That is not a matter of disrespect, disbelief or lack of faith in the five members on the committee. It is a question of the degree to which I should be held responsible to myself, before making a decision of such consequence. I'm just a little careful here.
The Chair: Thank you. We will hear from Senator Furey, followed by Senator Martin.
Senator Furey: Thank you, Senator Joyal, for that comprehensive review of the decision-making process. It's very helpful. Because the Senate is the court of last appeal, and as you said, Senator Joyal, rightly so — the Supreme Court — after the Senate finishes with its decision there's nothing for a senator who finds themselves in the circumstance, for example, of having a negative report.
We know that the committee is not barred from reviewing the actual investigative mechanisms that were used by the SEO, but it raises the question of whether or not the senator, himself or herself, is barred from that review. If you then go to the court of last appeal, which is the chamber, and that person has no ability to have the total record — and not just the report of the committee — opened or placed on the table, then I think that's problematic. However, in that light, I don't think we should just stop with this whole report. In light of the discussions that we're having, if we just extracted item 12 from the report and sent it back to the committee for further review, then we pass the rest of it. I agree with Senator Nolin that this has already been done. As the Rules Committee, it's time we complied with it.
If we just took out one and then asked the Ethics Committee to review that. We make some other recommendations, so it's in light of the debate and discussion that we're having — as the Senate or court of final appeal — then perhaps that might be able to solve things.
The Chair: Our discussions that have taken place this morning have been about the code, which has already moved forward. We're really talking about a report. If we take out 12 or leave it in, and correct me if I'm wrong, Senator Joyal, doesn't change what will happen tomorrow.
Senator Joyal: No, the code stays the way it is, as long as the Senate has not amended it.
The Chair: If we take it out, it may not allow — I'm just trying to figure out whether that would be a success.
Senator Furey: Maybe the best thing to do is to approve it and then ask for a recommendation from the Ethics Committee to review that particular aspect of it.
Senator Joyal: I was going to suggest that. The law, as it stands now, is as it is in the code. If there's an allegation tomorrow and the SEO conducts an investigation and comes back with a report, it's going to be the code as it is now. As it is now, the senator who is the object of the report is not voting on it. What I would suggest is that we adopt the report as it is now and, as you stated quite appropriately, to recommend to the Committee on Conflict of Interest to review that as well as the situation of the voting members of the committee on the report. This is because they might appear to be in conflict of interest with their own report. If the principle sits for one, it sits for the other. We have to be logical in that context. That would be the best approach.
Once we agree on this, I want to raise a point.
Senator Martin: I agree with what Senator Joyal is saying, so I have no questions.
The Chair: I have actually run out of pages — no, not really.
Senator Batters: That's consensus.
The Chair: Would you like to put that forward to the committee, that we approve the report with a recommendation?
Senator Joyal: With a recommendation to the Standing Committee on Ethics and Conflict of Interest to review the section of the code that refers to —
The Chair: 12-30.
Senator McCoy: Just review the code and the process.
Senator Joyal: The related section to the vote of the Senate and the members of the committee.
Senator McCoy: I would like to broaden that. I don't think you should limit ourselves, Senator Joyal. One thing leads to another.
The Chair: You could say "and other areas."
Senator Joyal: And other sections.
The Chair: And other sections.
Senator Joyal: If the member so requests it, we might want to review the section on the publication of committee minutes, as Senator Frum has been privy to those deliberations. I can see a case where it might be helpful.
The Chair: I will ask the clerk to prepare a recommendation. We'll bring the recommendation back.
All those in favour of supporting the report to go to the Senate?
Some Hon. Senators: Agreed.
The Chair: Opposed?
Senator McCoy: I would like to abstain. I just don't feel as comfortable as I would like to putting forward something that we know is flawed, but I thoroughly support the recommendation to the Conflict of Interest Committee.
The Chair: Abstention, Senator McCoy — noted. Thank you very much.
Mr. Robert: The discussion this morning has opened up a subject that might be of interest to the Conflict of Interest Committee. Committees are independent of each other and are not really subject to direction from one committee to the other. If the Conflict of Interest Committee feels that now there's something for them to look into, that's for them to do. It's not really proper for the Rules Committee to suggest that the Conflict of Interest Committee should undertake this review.
Senator Nolin: The wording could be: We politely observed.
The Chair: We suggest.
The Chair: Thank you very much, everyone. I really appreciated the conversation and the dialogue.
Senator Joyal, I apologize, you had something to say before I close.
Senator Joyal: On the briefing notes that were provided by Mr. Bédard on page 3: the third paragraph under "Exercise of the Parliamentary Privilege," states the following:
The Supreme Court also noted in Vaid that the distinction between the scope of a privilege and its exercise would sometimes be difficult to draw in practice. However, in this case, "voting" is unquestionably part of the proceedings of Parliament that comes within the scope of the Senate's privilege to control its proceedings, and Senators are within the scope of the disciplinary power of the Senate over its members and their conduct.
I would suggest, Mr. Chair, that since there is a subcommittee of this committee that is chaired by Senator Furey, where Senator Nolin, yourself and myself are also members, the committee should look into the aspect of the scope and the exercise. It seems to me that it is a crucial point.
The Chair: Let's refer that to that subcommittee as well.
Senator Joyal: And since the Supreme Court has not come to a conclusion on it, I think it is proper that the report refer to that.
The Chair: Okay.
Senator Joyal: So we may want to review that at the subcommittee when we will be studying our report.
The Chair: Agreed. Thank you very much. We'll refer that to the subcommittee.
Also before I close, we'll have a quick steering committee meeting following this meeting. Thank you very much.
(The committee adjourned.)