Your Honour, I understand there has been agreement to deal with this issue today. I would like to speak to the matter.

On debate?

On debate, yes.

Honourable senators, I do wish to speak on the Senate Committee on Ethics and Conflict of Interest report and recommendations on the matter concerning Senator Michael L. MacDonald.

First, I want to make it clear that, in speaking to this report, I intend no criticism of the Senate Ethics Committee. They have a solemn and serious duty, essentially judging their peers, which I know is not an easy task. Having served on that committee in the past, I’m well aware of these challenges.

However, I do wish to make some comments to the committee’s report, as I believe it’s my right to do so. I would have preferred to have had more time to prepare my notes, but I respect that it’s the will of the chamber to deal with this today.

It is, indeed, a long time since last February, when all this arose during the tumultuous weeks of the so-called “Freedom Convoy.”

Here are the facts as I understand them.

First of all, Senator MacDonald was approached by a person who wished to speak with him with a camera on a tripod in the background. This happened on the street.

He asked that the conversation not be recorded, and he was told it would not be recorded. This did not happen. The video recording was, in fact, made. Furthermore, it was posted on social media and immediately went viral. Senator MacDonald’s request and understanding was that this would be a private conversation.

I think it’s fair to say it’s no secret that he had been drinking with friends, not at a parliamentary function, and no doubt had good reason to request and not want the video to be recorded.

Having been assured this would be a private conversation, and not recorded, Senator MacDonald made some remarks, which we have heard again today, and for which this is the second time that he’s apologized to this chamber and in public. The first time was at the very first opportunity following this regrettable instance. In fact, let me elaborate on that briefly.

This all happened at a time when the Senate was allowing participation in Senate sessions by Zoom in connection with the COVID pandemic. After the video went viral and was widely shared not only on social media but also with major media outlets and, in many instances, not including the taped version where Senator MacDonald made a clear request that the conversation not be recorded, Senator MacDonald immediately returned to Ottawa to make his apology personally in the Senate at the very first opportunity when the Senate next sat.

When this happened, he was not travelling on parliamentary business in Canada or internationally. He’d been out with friends having social drinks.

Why do I mention this? Well, I believe there’s a legal question we should consider here, and I refer to a July 2015 inquiry report of the Standing Committee on Ethics and Conflict of Interest for Senators when they issued directive 2015-02 pursuant to their authority under subsection 37(2) of the code to issue general directives concerning the interpretation, application and administration of the code.

Among other things, the directive stated that the rules of general conduct set out in section 7.1 of the code are:

. . . applicable to all conduct of a Senator, whether directly related to parliamentary duties and functions or not, which would be contrary to the highest standards of dignity inherent to the position of Senator and/or would reflect adversely on the position of Senator or the institution of the Senate.

That was exactly what the honourable chair of the committee, Senator Seidman, said in introducing this report, which is on our Order Paper today in this chamber.

The inquiry report went on to examine this question in greater detail. While not a question related to parliamentary privilege, I want to emphasize, I feel that it is necessary that I raise a point that both the Senate Ethics Officer, or SEO, and the Senate committee appear to have overlooked in reaching the conclusion that section 7.1 applies to the conduct of a senator which is not “. . . directly related to parliamentary duties and functions . . . .”

The central question is whether section 7 of the code covers matters outside the scope of a senator’s duties and functions.

I want to draw to your attention, honourable senators, that the arguments set out in the inquiry report, in my view, overlook one detail in the Parliament of Canada Act, section 20.5, which states:

The Senate Ethics Officer shall perform the duties and functions assigned by the Senate —

— and I want to emphasize this —

— for governing the conduct of members of the Senate when carrying out the duties and functions of their office as members of the Senate.”

The important legal question at issue here is whether what seemed to me clear provisions of the Parliament of Canada Act allow the Senate to extend the duties and functions of the SEO and the committee beyond the conduct of senators when carrying out their duties and functions as senators. Is it possible that the SEO and the committee erred in applying the provisions of the code to this behaviour of Senator MacDonald?

I believe, respectfully, that it is quite a big stretch in this case — and I’m talking about the facts of this case — to suggest that this conduct in question of a senator accosted on the street when coming home from a private event with friends could be described as a situation where Senator MacDonald was carrying out duties and functions of his office as a senator, especially where he explicitly asked that the conversation be private.

I also have another problem with the Senate seeking to apply the code to this speech in this situation. The other legal question is whether this interpretation of the Senate ethics code — this directive — could be a violation of Charter section 2(b). Senate legal advisers could, of course, point out that parliamentary privilege is not subject to the Charter because of the Supreme Court’s decision in its New Brunswick Broadcasting Co. and Vaid decisions.

I would point out in this connection what the Supreme Court of Canada said in Vaid at paragraph 29-12:

Courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the legislative assembly than at those which involve matters entirely internal to the legislature . . . .

Senator MacDonald’s speech was made outside and not during a proceeding and, arguably, not while he was not carrying out the duties and functions of his office as a senator. Surely, becoming a senator does not mean having fewer constitutional rights than an ordinary citizen.

Finally, I want to refer to the recommendation in this report that the Senate should censure Senator MacDonald.

This is a serious sanction, which I suggest should not be approved lightly. We’re making a precedent if we accept that recommendation today — another precedent. I say not to take it lightly because the ordinary meaning of “censure” is an expression of formal disapproval, or, from the Oxford dictionary, “An expression of severe disapproval of someone or something in a formal statement.” It has also been described as a stern rebuke.

In my time in the Senate, which is admittedly only 14-some years, there has been one recommendation of censure approved by the Senate, and I was a member of the Ethics Committee when that recommendation was made and adopted by the Senate.

In that case, it was not the conduct of the senator that was censured. It was the failure of the senator in question to cooperate with the SEO’s attempts to investigate the matter complained of. This amounted to delay and a failure to be forthcoming with information, which was found to border on deception.

In the case of this matter, I do not see a clear issue of Senator MacDonald having not cooperated fully with the SEO as is required by the code. Senator MacDonald promptly met with the SEO as required. He did not agree to the remediation measures recommended by the SEO, which led to the committee making its recommendations today. But not agreeing to the remediation recommendations of the SEO is quite different than not cooperating with the SEO’s recommendations, which I believe is the reason that the censure recommendation was made and approved by the Senate in the previous case.

Senator MacDonald has now, today — and this is one of the recommendations of the committee — apologized twice. I want to say that I have had the privilege of travelling internationally with Senator MacDonald, and I believe he has conducted himself with the dignity and integrity that is required when any of us are travelling as ambassadors, especially outside our borders.

In concluding, honourable senators, I’d like to say that, “to err is human; to forgive, divine.” With the greatest of respect, I believe that Senator MacDonald has paid an enormous price in terms of the publicity that has been visited upon him by social media and by public media. I believe that he has apologized twice to the Senate, respectfully.

I wish to put these matters on the record and perhaps suggest that there are legal questions involved here that the committee may want to consider in a future case, if not in this case. For the reasons I have explained, I think the censure recommendation of the committee is excessive and that the apologies and public humiliation should suffice. For that reason, I will be voting against the adoption of this report. Thank you, honourable senators.

Are senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to, on division, and report adopted.)