Honourable senators, the Senate is resolved into a Committee of the Whole in order to receive James O’Reilly respecting his appointment as Senate Ethics Officer.

Honourable senators, in a Committee of the Whole, senators shall address the chair but need not stand. Under the Rules, the speaking time is 10 minutes, including questions and answers, but, as ordered, if a senator does not use all of their time, the balance can be yielded to another senator.

The committee will receive James O’Reilly and I would now invite him to join us.

(Pursuant to the order of the Senate, James O’Reilly was escorted to a seat in the Senate Chamber.)

Mr. O’Reilly, welcome to the Senate. I would ask you to make your opening remarks of at most five minutes.

Thank you very much.

Honourable senators, it is my great honour to appear before you today as the nominee of the Prime Minister of Canada, the Right Honourable Justin Trudeau, for the position of Senate Ethics Officer.

My nomination, I assure you, is not based on my expertise in the area of the Senate’s Rules, procedures or history. These are subjects in which I expect to immerse myself over the weeks and months to come. Like all of you, I am arriving at the Senate from another profession. Like all of you, I will undoubtedly experience a period of learning, adjustment and, I hope, understanding of the important role this venerable chamber performs in Canadian democracy.

The subject of ethics, though, is not new to me. I was involved in the drafting of the original Ethical Principles for Judges in 1998. I served as a member of the Canadian Judicial Council’s Advisory Committee on Judicial Ethics for 12 years. I am frequently called upon to advise judicial colleagues on ethical issues, but I accept that all of that is mere background to the role I may now be called upon to play as Senate Ethics Officer.

Ethical rules and guidelines must be interpreted and understood in the specific context in which they apply. I believe my background allows me to reasonably interpret and apply ethical standards in the judicial domain, but determining what is ethical conduct within the judiciary may not be instructive in deciding what is ethical senatorial conduct. Context is essential. For example, what might be an unacceptable public statement on a controversial subject by a judge might well be a perfectly proper public declaration by a senator.

Accordingly, with all humility, I present myself to you as someone who has much to learn and who welcomes advice and input from members of this body.

I have a lot to learn, and I would be pleased to have the advice and input of members of this chamber.

I assure you that I will continue to adhere to the principles that have guided me in my judicial career, namely restraint and moderation.

Often, the less said, the better. And care must always be taken in expressing oneself. People have to live with the decisions they make and with the words they choose in making those decisions.

I have been involved in teaching decision writing to judges and administrative tribunal members for over 15 years. My most important message to them is: Be very careful.

Say only what needs to be said and never use severe language unless it cannot be avoided. Thank you. I welcome your questions.

Welcome to the Senate of Canada, Justice O’Reilly. By way of introduction, I chair the Standing Committee on Ethics and Conflict of Interest for Senators. You have a substantial background as a judge over the last decades. Do you have any specific knowledge or specific experience in the parliamentary context or in the Senate?

My experience is limited to observing with great interest the proceedings that interest me in particular. Most recently, I have been following with great interest the proceedings on Bill C-40, dealing with miscarriages of justice, which has been a matter of great interest to me throughout my career.

But in terms of specific hands-on experience, I was the counsel to a parliamentary committee for quite some time; it was for the Justice Committee when it was reviewing amendments to the Criminal Code. That was a couple of decades ago, but I did have quite a bit of time to spend in committee and to observe other proceedings of the House of Commons.

Perhaps you might give us an idea or describe how you see the role of senators?

How I see the role of senators?

Yes.

Speaking as a member of one sober body, I think I understand this sober body a little bit. In that context, as I said, I have been watching with interest lately, not just in committee but also in the deliberations of the chamber as a whole. I must say, and this is confirmed by what I read in media reports, that the debates tend to be very civil, very thorough, respectful and extremely important, in my view, in looking at proposed legislation and the ways to perhaps improve bills that come before this body for consideration.

That’s in addition, of course, to what is clear in your code of conduct about the priorities that senators must give to their work in this chamber and, of course, the ethical standards to which they are expected to comport themselves.

Would you be willing to sit down early on with a wide range of senators — ones who have been here for a long time and others who have not — so that they can perhaps share with you what they do and how they see their roles?

I welcome that. As I said, I think I need to immerse myself in the proceedings of this chamber and understand its role more completely, and that sounds like a good way to start.

Likely, you’ve taken the time to familiarize yourself with our current code of ethics. We are, in fact, now working on a five-year review of the code, which is the requirement that is built into our code. In your view, is our code adequate enough to protect the integrity of senators and the institution while being flexible enough to allow senators the latitude to carry on their work?

I don’t claim to be an expert yet, but I think that balance appears on the face of the document. In terms of how it’s applied and interpreted, that may be something else entirely; I’m not in a position to say. But it certainly has considerable balance, and it also has considerable detail in some areas. For example, there is a fair bit of detail in defining what a conflict of interest is, and there is a fair bit of detail provided to senators in terms of what their obligations are for declarations of their private interests.

There are also some very lofty principles that are not as detailed — for example, the obligation to comport oneself with integrity, honour and dignity, which is perhaps the most important one. But the idea is not very precise, and the forms of conduct that are permissible, or impermissible, are not clear on the face of the document. Whether greater precision can be given to that, I’m not sure. But your five-year review might throw up some ideas for that.

Given my experience in the judicial context, these things are subject to interpretation on an ongoing basis. And the decisions of my predecessor will form some kind of precedent, I think, that will guide senators and will guide the next Senate Ethics Officer to some extent as well.

I am not being very specific in my answer, but I do see balance in the document. Whether that balance can be recalibrated is something that is for senators to decide.

Indeed, the code is not meant to be a static instrument but a live document that needs to be modernized and updated, as we do. Indeed, you referred to the sort of general rules that we have in our ethics code, such as sections 7.1 and 7.2, which we refer to an awful lot, and which are very aspirational and not prescriptive. I suppose that’s the debate. For example, the U.K. House of Lords just finished revising their code to go beyond that kind of principles-based approach with a more prescriptive, rules-based approach, and it added a code of conduct. Perhaps that’s what you’re now referring to: whether one wants to be more prescriptive or not. That’s always a difficult issue. How do you think about that?

Senators, in the judicial context, there are both aspects that you just described. There are the very broad aspirational principles — ethical principles — to which judges are meant to aspire. There is also greater particularity given within each principle in commentaries. There are also the decisions of not only the Canadian Judicial Council but also the Advisory Committee on Judicial Ethics that provide further interpretation. You have kind of a cascade of different norms and standards, and the further down you go, you get more particularity. That might be something that senators wish to consider.

Of course, there are also the guidelines that have been promulgated by my predecessor in certain areas. I haven’t made a close study of those, but presumably they make the aspirational standards a bit more particular.

I do note that in terms of the idea of subjecting the code to a review, Mr. Legault identified some areas where he thought there should be special attention given in terms of modernizing and amending the code in the future. I would be very interested in exploring those more fully.

The 7.1 and 7.2 aspirational principles were added in 2014, and the Senate remains the only legislature in Canada with a code of conduct enabling an independent officer — the SEO — to assess parliamentarians’ compliance with general standards of conduct. How do you see that?

Well, the code is a document that senators have decided to apply to themselves, so this is a standard that I assume this body accepts and believes expresses the high standards that are expected of its members. I take it that it is unique for a legislative body, though it is not unique in other contexts. I think that poses particular challenges, and I am sure that when I meet with senators to discuss the code and how this place operates, I will learn more about that. I would be happy to hear if there are concerns about that or if there is a view that they ought to be expanded, contracted or particularized. I would be very interested in hearing that.

Welcome to the Senate, Mr. O’Reilly. I’d like to unpack the code of ethics some more.

The code of ethics sets out ethics rules that govern our conduct. A senator must perform his or her duties with honour, integrity and dignity. Whether within or outside of this chamber, senators must uphold the highest standards of dignity inherent to the position of senator.

How do you interpret those provisions? What do the concepts of dignity, integrity and honour mean to you?

Thank you for the question, Senator Cormier. The question is, what do standards of dignity, honour and integrity mean? That’s the hardest question a Senate Ethics Officer can answer.

You put me on the spot.

As I just said, we need to know what senators think about the high standards they aspire to meet. I am ready to listen to what members of this chamber have to say on the matter.

I’m going to ask you this question. We recently had a discussion about the language used inside this place, and wondered whether there should be a list of prescribed words deemed incompatible with the concepts of dignity and respectability. Do you think it would be a good idea to have specific measures like this on what vocabulary is acceptable or unacceptable in a place like the Senate of Canada?

Thank you. It’s up to senators to decide what standards shall apply in the Senate chamber, along with the Speaker’s perspectives in that regard. Enforcing those standards in other contexts is a whole separate issue. It’s hard for me to answer such a specific question.

As part of their duties, senators are required to provide certain relevant information to the Senate Ethics Officer, including confidential disclosure statements and statements of compliance. Senators may also, at their discretion, request an opinion from the officer on a particular case. Occasionally, a senator may receive certain updates, such as revised guidelines. On the whole, in my experience, direct interaction with the officer remains limited. What means will you be putting in place to promote better communication with senators and their teams? How do you plan on strengthening these interactions to ensure a clear understanding of the code of ethics and provide clear, accessible support tailored to senators’ needs?

Thank you. As I said a few minutes ago, I’m willing to hear senators’ perspectives on that. If there are ways to make it easier for senators to provide their statements and meet their obligations in that regard, I’m prepared to consider them. I don’t have a specific recommendation to make at the moment, but I think that Mr. Legault tried to implement measures to facilitate communication between senators and the Senate Ethics Officer. I’m prepared to continue on that path.

Thank you very much, Mr. O’Reilly.

Welcome. Congratulations and thank you for being here and for your decades of work and contributions to this country, Justice O’Reilly.

As one of now many senators who come from backgrounds in the voluntary sector, civil society or academia, it often seems that current Senate ethics rules and practices are more attuned to characterizing knowledge, expertise and involvement as akin to financial and partisan political interests when it comes to assessing issues with respect to conflicts of interest requiring declarations of such and recusal from voting on related legislation. I am interested in how you would foresee identifying and addressing differentiations of this sort and what sorts of approaches you would propose for promoting and assessing ethical responsibilities and roles of senators in this evolving institution.

Thank you for that question, senator. If I may explore the basis of your question a little, I take it that what you are perhaps identifying is this focus in rules relating to conflicts of interest on private, personal interests that most likely are of a pecuniary nature rather than a broader interest, and I think that’s an interesting question. I think that those are probably identified as being the most obvious sources of conflict, the most obvious ways in which a decision maker — whether consciously or unconsciously — may be less than impartial because of those kinds of interests.

I assume what you are getting at is that there may well be other kinds of interests that aren’t identified that may have an equally important effect on decision makers, including members of this body. I assume that, for example, may be behind some of the areas identified by Mr. Legault as needing greater attention. I think he named several concerns surrounding non-profit activities, for example. I think that those have been identified, and I would be very interested in learning more about those and the ways in which the code might be adapted to take them into account.

I am also thinking of the whole notion of the evolution of ideas and understanding, whether it is around race, gender or class issues, and how those reflect on what is considered appropriate behaviour, what is dignified, what is honourable and what demonstrates integrity when it comes to senatorial behaviour.

Thank you, senator. I think you are now identifying things beyond what we would consider to be conflicts of interest but are perhaps biases in a broader sense. Those are norms which are evolving, and this body will want to ensure that it is evolving to take account of what we know about biases and prejudices. I actually spend a lot of my spare time studying the subject of biases by decision makers; that includes what we would automatically think of as bias as based on personal characteristics, but it goes beyond to biases based on things like confirmation bias or hindsight bias or other kinds of influences on the decision-making process that I think we have to understand more completely.

I have been urging judicial colleagues and have developed education programs for judges on that very subject. But this body is a decision-making body, and those are things that one must understand in order to appreciate the nuances that go into decision making. That, as you rightly point out, has an impact on how one interprets things like dignity, honour and integrity.

Thank you. We are now moving to the next block of 10 minutes that will be shared between Senator Tannas, Senator Smith and Senator Dagenais.

Welcome, Justice O’Reilly. I just have one question around the speed of investigations. I have been here for 12 years or so, and most of the investigations that have been undertaken by Senate Ethics Officers, or SEOs, past have taken far longer than I could reasonably explain to myself why. For a large chunk of that time, I was actually on the Ethics Committee. Have you noticed that? It is certainly in the context of comparison to what goes on in the House of Commons with a similar process. Do you have any comments about whether you expect to keep the tradition of time being measured in years rather than months for ethics inquiries that you make?

Thank you. Senators, I have noticed in reading the inquiry reports of my predecessor that those took a long time to resolve. I intend no criticism by that. I have no idea why those time frames were in place or what the obstacles were. There are very detailed chronological accounts of how the inquiry unfolded, and I didn’t notice any particularly long gaps that I thought were problematic. But I did notice, overall, that they did take a long time.

I also note that Mr. Legault has pointed out that the resources of the office are strained. I would be very interested in understanding what resources are available. I have no idea at the moment what makes up his office. But if resources are strained and that’s a problem in terms of the timeliness of investigations, then that is something I would be prepared to address.

You can count a number of us here as soldiers. If time equals money, I think you will get a sympathetic ear here because the reputation of the Senate and of individual senators in many in cases is at stake, and we’ll want to see that cleared. Thank you.

Hello, sir. According to the Ethics and Conflict of Interest Code for Senators, as explained on the website of the Office of the Senate Ethics Officer:

The Senate Ethics Officer is responsible for interpreting, applying and administering the Ethics and Conflict of Interest Code for Senators. His role includes advising senators on the application of the Code, administering an annual disclosure process, and conducting inquiries.

The SEO performs a dual role: both as an adviser to senators with respect to their obligations under the code and as an investigator/adjudicator in cases where there are potential breaches of the code. Could you give us some initial thoughts on how you plan to balance the dual responsibilities of advising senators and conducting investigations?

Thank you. You have pointed out something that I noticed too in the ethics code. That obviously inherently gives rise to some tensions in that the officer is meant to be advising senators, and it may come to pass at a later point in time that the same officer is adjudicating some matter on which they might previously have given advice. That is obviously a very delicate situation. I haven’t noticed that actually having happened, but there is certainly the potential for that.

I have performed both roles within the judicial context, but not with respect to the same person, and that’s obviously where the tension would be most acute.

I can’t say in advance how I would handle that, but I will be acutely sensitive to the fact that those dual roles have to be played at the same time, obviously with sensitivity and finesse.

Thank you, sir.

Good afternoon, Mr. O’Reilly.

In recent years, many people in society in general have been speaking out about cases of harassment in the workplace. One definition of the word “ethics” clearly associates sexual assault, assault, fraud, theft and murder with ethics, but your predecessor, Mr. Legault, stated in 2019 that he believed that the Senate Ethics Officer should intervene in a harassment case only if the Senate asked him to do so, because the case could damage the institution’s reputation.

Do you share his view on the subject? How do you see your role in dealing with potential harassment cases?

Thank you for the question, senator.

I was not aware of that position of my predecessor.

I don’t know that I’ll adopt that same policy myself, but I’m sure it’s an important question I’ll have to look at soon.

We are moving on to the next period of 10 minutes that will be shared between Senator Harder and Senator Cardozo.

Thank you, chair, and welcome, Justice O’Reilly. I want to talk a little bit about the relationship between the independent Senate Ethics Officer and the Standing Senate Committee on Ethics and Conflict of Interest for Senators. It is an important partnership and one that must be mutually respective.

Both the Parliament of Canada Act and the code provide that the SEO’s duties and functions shall be carried out under what is described as “the general direction of the Committee.”

How do you view the role of the committee in supporting the SEO’s responsibility in the code? Can you describe the level of collaboration you would wish to engage in and how you would interpret your independence from the committee while having this engagement? Do you anticipate addressing any potential conflict of interest that might arise in this relationship between your role and the committee?

Thank you, senator. I wondered what “the general direction of the Committee” means. I haven’t come across anything that helps me understand that partnership, but I can imagine situations where the committee may wish to invite the officer to explain how he or she is interpreting the code or even a specific investigation, although I haven’t seen that happen. Perhaps I will learn more about that relationship.

I did notice in one of the inquiry reports there was a question about whether a matter should go to the committee while an investigation was ongoing. My predecessor took the firm position that was not an appropriate way to proceed. That made sense to me when I read it. Members of the committee may have a different view, and, if so, I would like to hear that view.

I wondered if, under the general direction of the committee, that terminology was meant to express the idea that it is for the committee to give general guidance to the officer from time to time, but not, of course, in respect of any particular investigation.

I wish to move to another area.

One of the purposes of the Ethics and Conflict of Interest Code for Senators, it says, is to, “maintain and enhance public confidence and trust in the integrity of Senators and the Senate.” How do you view your role in fulfilling that part of the code?

Thank you.

It is interesting. I think those high principles are meant to inform the interpretation of other provisions of the code, and that is how I have seen it employed. That’s a specific way. That is not unusual in codes or legislation, for there to be a purpose clause that helps the interpreter of the legislation or code understand how it is meant to be applied, or at least the aspirations that lie behind the more particular parts of the code. I would see it as performing that function.

This is the value of having a code at all — that all members of this chamber will surely be aware of what their role and purpose are in this institution, and that will guide their behaviour overall for the officer to employ the same principles and purposes in interpreting how the code is applied.

Thank you. I have one question. I would like to cede the balance of my time to my colleague Senator Audette.

Mr. O’Reilly, thank you for coming here and applying for this important position. We spoke with you about your being accountable to the Senate. If I can paraphrase you, you said this is a code that senators have decided on how to govern ourselves. I’m paraphrasing that.

During your time, if the Senate were to change the code and water it down in a way that would facilitate unethical behaviour, what would you see your role being? How would you approach that?

Thank you. Senators, again, that is for this body to determine. It might be advisable in that circumstance to seek out the opinion and advice of the officer who, by that time, might have some experience in applying the code as well as in other domains that may be instructive. Ultimately, it is this body who determines what the code says. The view of the officer, particularly one who has some experience in its application, would be important to take into account.

Would you do so privately with a committee or would you feel the need to do so publicly?

I would await an invitation to speak up and would do so only if I thought my views were welcomed.

I think it’s brave of you to be here in front of us all. You know I speak French. Can you assure me that your team will also be able to respond to us quickly in French? What’s your level of awareness around the Indigenous protocols or approaches we’re gradually introducing in this wonderful place? I’m not trying to ask you a question out of the blue, but I would like some reassurance from you about French.

Naturally, it’s important for the Office of the Senate Ethics Officer to be a bilingual entity. It’s important to respond to you in both official languages and to communicate with all senators in French and English. I’m not really comfortable responding to your statement about Indigenous protocols. I’m not too sure what you’re referring to.

It might be a good idea for you to meet with Indigenous senators to discuss these wonderful practices, which have been around for millennia and which are open to all cultures.

We are moving on to the next block of 10 minutes that will be shared between Senator Carignan and Senator Batters.

Welcome, Mr. O’Reilly. I also sit on the Ethics Committee. We have seen a number of items in the code. One of the issues I see is your dual role. Senator Smith talked a little about it earlier.

I’d like you to tell us a bit more about this dual role as both an adviser and an investigator. Since you were a lawyer, you’re well aware of how important the trust factor is when it comes to giving advice, so that people will give you all the information they have so you can form an appropriate opinion. On the other hand, there may be some hesitation about disclosing information, because if I commit an offence, you’re also the one who has to investigate. So there’s a risk of receiving potentially sensitive information too. How do you see this dual role? Please feel free to say whether you think these roles are incompatible or whether you’d recommend separating them. That can be done. How do you see this dual role, and what are you going to do to ensure that I can speak to you freely, with full trust, without running the risk that what I say could be used against me, for example?

Thank you. We’re getting back to the trickier questions. Thank you for your question. I think the code includes a line of defence for a senator who makes a declaration and wishes to get the Senate Ethics Officer’s opinion. That might offer a bit of reassurance to encourage senators to disclose or declare things to the Ethics Officer. It goes without saying that the two roles are different. There may indeed be conflicts between the roles of adviser and decision maker or judge. I don’t have a clear answer to your question, but I do understand that it’s a very important one.

You bring a broad range of experience to the table. You seemed to suggest that this is a disadvantage. Having a broad range of experience can be an advantage because you can offer a fresh take on things. Will you be going over the code with a critical eye? If you find things that don’t work or that should be changed, are you going to take a critical approach and advise us to amend the code?

I’m interested in examining Mr. Legault’s recommendations and studying various aspects of the code to decide whether amendments are in order. That interests me a lot.

For a number of years, I worked as a lawyer for the Law Reform Commission of Canada, the Department of Justice and the House of Commons. I’m interested in studying opportunities for reform. However, I’m not saying that this is the first thing I would do. It will take a little time and some communication before deciding whether changes are appropriate.

In February 2023, the current Senate Ethics Officer published a document entitled Guideline on Outside Activities on his website and emailed senators an accompanying explanatory memo. In his email, Mr. Legault stated that his guidelines should “only be used as a tool of reference in order to better understand the code,” but then it stated, “and how I interpret and apply it as of the date of its publication.”

Justice O’Reilly, this guideline does not set forth an inconsequential interpretation of the ethics code; it creates substantial new requirements and restrictions in the ethics code. The current Senate Ethics Officer recently deleted the section of his guideline dealing with parliamentary friendship groups, but the remainder of this guideline remains intact.

Given that there are many other new and potentially problematic requirements and restrictions included in that guideline, these must be sanctioned by the Senate as a whole and not imposed by the Senate Ethics Officer. Will you agree to review this guideline document and remove any provisions which are outside its proper scope?

Senators, that’s a very specific question that I’m not in a position to answer, having not studied those guidelines closely. I would have thought that the guidelines are meant to give further guidance on the interpretation of the provisions of the code without going beyond the parameters of what’s in the code at present, much the way delegated legislation might work. To give the example in the judicial context, the commentaries on judicial conduct do not go beyond the overarching principles to which judges are bound. That’s only a superficial response, I’m afraid, in the circumstances, but I can certainly undertake to look at that question.

Thank you, Justice O’Reilly. I appreciate that. One of the potentially problematic areas contained in that February 2023 guideline regards the restrictions noted in that document regarding senators’ social media accounts. The Senate Ethics Code, the Rules of the Senate, Senate Administrative Rules and even the Senators’ Office Management Policy are all silent on the matter of senators’ social media accounts. As such, I would submit that those restrictions outlined in that guideline are entirely novel and, as such — as you were indicating to my colleague — this should be a matter for senators to decide. Any such restrictions would need to be sanctioned by the Senate as a whole. Maybe that would be part of the new reflection on the code as a whole.

Again, would you please agree to review those guideline provisions, given that it could take some time for the Senate Ethics Committee to provide us with potential draft provisions for the new code, and keep that in mind?

I think my to-do list is getting longer. Thank you.

Lastly, Justice O’Reilly, I would like to ask you about this, since we are parliamentarians, not judges, and the Senate Ethics Code defines parliamentary duties and functions as “. . . including public and official business and partisan matters . . . .”

How do you see the roles of senators as parliamentarians intersecting with partisanship? Could you please explain whether you see senators’ expression of political or partisan views as contrary to the Senate Ethics Code?

I’m sorry, but I didn’t quite get the gist of your question. Do you mind repeating it?

Sure. What I’m specifically looking at is the role of senators as parliamentarians. How do you see partisanship, which is specifically authorized under the Senate Ethics Code as defining parliamentary duties and functions as “. . . including public and official business and partisan matters . . . .” As a result, do you see senators’ expression of political and partisan views as complementary to the Senate Ethics Code, or would you say that it would be contrary to it?

Thank you. Well, partisanship is not a violation of any kind of ethical standard for a body of this nature; it would be in the judicial context. Obviously, the code is developed, applied and interpreted with the understanding that there is some element of partisanship inherent in what this body is intended to do. At the same time, it sets limits on conduct, and perhaps on expression as well, in order to support and sustain those aspirational principles of dignity and so on. I don’t see a conflict between those things, but certainly they would apply differently in this context than they would in others, and I understand that.

Thank you, Mr. O’Reilly. We are now moving to the last block of 10 minutes, which will be shared between Senator Cotter and Senator Saint-Germain.

Welcome, Justice O’Reilly. Thank you for joining us. I am also a member and Deputy Chair of the Ethics Committee of the Senate, although only for eight more hours.

I have essentially two questions, but I would like to ask them both at once because I think they intersect. First, as you have noted, there are really only three or four sentences that articulate ethical expectations of senators in the whole code. I compare that with Ethical Principles for Judges, with which you are familiar. Not counting conflict of interest, there are 37 pages of principles and commentary in Ethical Principles for Judges. I observe on that a wide latitude for interpretation — maybe a surprisingly wide latitude compared to the ethical guidance in your line of work.

Second, that is combined with the unusual authority of the Senate Ethics Officer to make decisions based on those interpretations that are themselves not reviewable, not even by this body — we review and decide on sanction, but not on the actual determination by the Senate Ethics Officer. My question is this: Do you see that as strikingly wide open in terms of the authority and power that is reposed in you and your reflections on that?

Well, not necessarily power, but certainly interpretation. You are right that those high principles that are set out in the code have to be interpreted — and interpreted in the context of the purposes of this body and the activities of its members.

I alluded earlier to the possibility of there being more flesh put on the bones of those high principles in various ways. One of them might be through guidelines. If that’s not a problematic way of dealing with it, it is certainly a potential way of dealing with it, as well as the interpretations that become clear through preliminary reviews and inquiry reports.

I hesitate a bit on the power and authority part of your question. Because the power and authority of the officer only go so far before things are turned back to this body for a final resolution, I don’t see that part of your question as raising a problem.

If I could just follow up at least on that part of it. We have taken, as a body, to the understanding that you or your soon-to-be predecessor make a determination both of the interpretation of the code and its application of a particular certain set of circumstances and has — I won’t use the word “power” — the authority to find misconduct. This body has no authority, then, having turned that over to you, to actually override that or moderate it in any way other than how we would decide on a sanction.

That’s the reason I am describing this as a meaningful authority in a fairly open-ended context presently.

Yes. I thank you for clarifying that, senator. I see your point. Once the officer has made a determination and it comes back to this body, that determination can’t be reversed although the outcome or the implications of that decision might be moderated.

Would you be surprised at all if we gave you that much authority?

Not yet.

Welcome, Mr. O’Reilly. Thank you for your interest in dedicating yourself to the Senate and serving as Senate Ethics Officer.

My question concerns the peer reporting principle, the means by which complaints are referred to the Senate Ethics Officer. This type of complaint is not confidential in that, as you probably know, a senator who wishes to report a situation involving a colleague who they think is violating the code must identify themselves, and their name will be shared with the senator who could potentially become the subject of an investigation.

In your opinion, does such a reporting system impede the application of the code, because of the referral to the Senate Ethics Officer? Do you think this system qualifies as a best practice in ethics management? Do you know of other organizations that operate using a system like this?

Once again, that’s a very specific question, and one I’m not currently in a position to answer intelligently.

I understand the problem you’ve identified, but I’ll have to take some time to reflect on the issue. That’s the best answer I can give for now.

To give you some food for thought, I invite you to consider the reporting systems used by certain professional orders, which respect the confidentiality of such reports.

I have another question for you. Whoever goes last often finds that many of their questions have already been asked, but this one wasn’t asked directly. One of your duties will be to head the Office of the Senate Ethics Officer. Considering your role as adviser to senators and your role as an independent investigator — and I would even add your relationship with the Ethics and Conflict of Interest for Senators Committee — how do you see your office being organized so as to ensure that the advisory role your office will play is completely separate from its investigative role? How do you plan to ensure that there is no adverse mixing of these functions?

I’m not asking you if you’re going to maintain the way it’s currently organized. That’s not the point of my question. How do you think these functions can coexist in the same office and still be managed efficiently and responsibly?

The two roles of the Ethics Officer is obviously something that members of this chamber are concerned about. That is something that I will have to quickly address. I don’t have any specific recommendations or thoughts to share on that right now, but I really appreciate the question.

If I may, it is not a question but a suggestion. I’m thinking of organizations that play an investigative, advisory and even quasi-judicial role, such as the Quebec Access to Information Commission. The commission has three separate functions that it carries out, but it adheres to a fairly strict division of tasks. Perhaps you might be interested in looking at that way of doing things. Thank you.

I will look into it. Thank you.

Thank you, senators. Senators, I think I mentioned earlier that I’ve taken note of the fact that this is an area that has been pointed out by my predecessor as needing further study, and I appreciate the question because it wasn’t clear to me, when that suggestion was made, what the basis was for it.

It sounds as if it is something that does require further attention. I am fully prepared to look at that.

In my answer to Senator Pate, I mentioned that some of the parts of the code seemed to be addressing the most obvious forms of conflicts that arise out of private pecuniary interests and it may neglect areas that are outside of that particular context, and your question raises that concern. I understand what you are getting at.

Honourable senators, the committee has been sitting for 65 minutes. In conformity with the order of the Senate, I am obliged to interrupt proceedings so that the committee can report to the Senate.

Mr. O’Reilly, on behalf of all senators, thank you for joining us today.

Hon. Senators: Hear, hear!

The Chair: Honourable senators, is it agreed that the committee rise and I report to the Senate that the witness has been heard?

Hon. Senators: Agreed.

Honourable senators, the sitting of the Senate is resumed.