Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 5 - Evidence - Afternoon meeting
OTTAWA, Wednesday, September 6, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, met this day at 1:10 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
Senator Oliver: Honourable senators, I would like to call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order. We are meeting today to continue our study of Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability. The bill is more commonly known as the federal accountability bill.
As senators, our witnesses and members of the public both here in the room and across Canada on TV know, this bill reflects a central portion of the new government's agenda, and it is one of the most significant pieces of legislation brought before Parliament in many years. I know that this committee will give the bill the extensive, careful and detailed study that it deserves.
The hearings commenced in June, and this week the committee is focusing on more 7precise aspects of the bill. Subjects that will be covered this week include accountability generally, ethics and conflict of interest and political financing. Our hearings will continue in the next few weeks on other important aspects of the bill.
Our first witness this afternoon is Jean T. Fournier, the Senate Ethics Officer. Mr. Fournier is the first person to hold this position, to which he was appointed in 2005.
The work of the Senate Ethics Officer is anchored in the conflict of interest code that the Senate approved in May of 2005. His work includes providing the best possible advice and recommendations to senators on the high standards and obligations that they have set for themselves under the conflict of interest code, preparing annual public disclosure statements, undertaking inquiries and investigations, and fostering effective communications and partnerships. This work ensures the integrity of the Senate as a fundamental and valuable component of Canada's system of government.
Mr. Fournier has had a distinguished career in the federal public service, starting in 1968. He has a broad range of experience in senior positions in the areas of public safety, Aboriginal and Northern issues, federal-provincial-territorial relations, pension reform, official languages, cultural diversity and trade and international relations.
Thank you for coming. I will give you the floor and we will then proceed to a period of questions and comments, which I know will be very beneficial to the members of the committee.
Jean T. Fournier, Senate Ethics Officer, Office of the Senate Ethics Officer: Mr. Chairman, thank you for inviting me to be here today. I intend to limit my remarks to those aspects of Bill C-2, which would have an impact on the Office of the Senate Ethics Officer and, as such, on the Senate as a whole.
I am referring specifically to clause 26 of the bill which would repeal sections 20.1 to 20.7 of the Parliament of Canada Act, establishing the position of the Senate Ethics Officer; and to clause 28 which would add sections 81 to 91 to that Act. These provisions combine the functions of the Ethics Commissioner and the Senate Ethics Officer and create a new position of the Conflict of Interest and Ethics Commissioner who would administer and interpret three sets of rules, that is, those applicable to senators, those applicable to members of the House of Commons, and those applicable to public officer holders. Under the new structure, senators would continue to be subject to the existing rules, that is, the Conflict of Interest Code for Senators adopted on May 18, 2005 would still govern the conduct of senators.
The proposed structure raises an obvious and important public policy and political question: Would one ethics commissioner administering three sets of rules on conflict of interest be more effective than having two or three commissioners? This is really the key question for the committee to consider, in my view, and to ultimately decide when it makes its recommendations to the Senate.
This is certainly not a new issue. Indeed, the advantages of the one-person model, the two-person model and the three-person model have been the subject of discussions dating back several years; the Stanbury-Blenkarn report of 1992, the Milliken-Oliver report of 1997, which bears the name of the committee's distinguished chair, and more recently, the Milne-Andreychuk report of 2003, which bears the name of Senator Milne.
You discussed this issue, among other matters, yesterday with Mr. Shapiro, the Ethics Commissioner, and Mr. Wilson, the former ethics counsellor. I followed with interest your deliberations yesterday. I will give you my perspective today as the Senate Ethics Officer.
As you know, the previous government proposed a single ethics commissioner for both parliamentarians and public office-holders. Senators were united and determined in their opposition to the proposal. The government relented and Bill C-4 was adopted in 2004, establishing two ethics positions, one for senators and one for both members of the House of Commons and public office-holders. Two years later, to everyone's surprise, the issue was reopened with the tabling of Bill C-2 on April 11 of this year.
This series of events has led me to review the earlier discussions in the Senate, as well as the very good presentations that witnesses made at that time. During the Senate deliberations, parliamentarians, government officials, academics and others expressed a variety of views. For example, government officials generally favoured the one-commissioner model for senators, members of the House of Commons and public office-holders, citing administrative efficiency and consistency of opinion as the justification. Others, including the Honourable Herb Gray, supported the three-commissioner model, on the basis that the responsibilities of senators, members of the House of Commons, and public office-holders are significantly different and this reality should be reflected through separate and distinct institutional arrangements.
During these same debates, several senators focused on the constitutional questions that having one commissioner for both Houses raises issues respecting the independence of the Senate from the House and the executive and its constitutional right to govern its own affairs, free from interference, including the disciplining of its own members. Constitutionally, the Senate, like the House, is a self-regulating body and has exclusive jurisdiction over the conduct of its members. In the words of Mr. Joseph Maingot, the learned and well-known former law clerk and parliamentary counsel to the House of Commons, "The privilege and control over its own affairs and proceedings is one of the most significant attributes of an independent legislative institution." The constitutional questions and the questions of parliamentary privilege in particular are no less important today and the committee will want to consider these carefully.
For my part, what I may be able to contribute today is a practitioner's perspective, based on my personal, first-hand experience as the Senate Ethics Officer, as well as my knowledge of provincial and international ethics regimes and structures. I hope that this will be helpful to the committee in its deliberations and I would be pleased to answer any of your questions afterwards.
I want to start by underlining the importance of the advisory function of the Senate Ethics Officer. The primary function of the Senate Ethics Officer and of any other ethics commissioner is to provide independent, judicious, and timely advice to senators in order to ensure that they understand their obligations under the code and that they remain in compliance with the code. Indeed, I see the advisory role as the essence of my work. This involves working closely with individual senators so that conflicts of interest are prevented as opposed to dealing with them once they have already arisen. This approach is proactive and preventative, not reactive or punitive. In order for this system to work well it is essential that the Senate Ethics Officer be regularly available to senators, and in working with them personally, develop a trust relationship in which they feel comfortable disclosing information, both personal and financial, in seeking my advice.
This aspect of my role occupies a large measure of my time, as it should. The inquiries and investigative roles, which I have not had to exercise to date, ideally will comprise only a small fraction of my time.
Over the last year, I met with most senators and, in some cases, more than once at their request. I view the code as an opportunity to work with senators to arrange their private affairs so that conflicts of interest are avoided and, to this end, I have made myself available to them for advice and guidance throughout the year.
When a senator recognizes that there may be some doubt about how to proceed in a given situation, he or she is encouraged to discuss it with me with a view to obtaining confidential advice regarding the rules and how they would apply to those particular circumstances. I then recommend a course of action that will bring the senator in compliance with the rules.
From June, 2005 to March 31, 2006, there were well over 300 requests from individual senators for opinions and advice. If my experience is consistent with the provincial experience, I expect this number to grow as senators gain more confidence in the process and seek advice before taking action.
In general, my policy has been to respond to requests for advice within a 24-hour period, whenever possible, as is the practice in the Office of the Integrity Commissioner in Ontario, to which I refer later in my remarks. For more information on my advisory activities of last year, I refer senators to my annual report.
With 1,350 full-time public office-holders and 1,940 part-time Governor-in-Council appointees, plus 308 members of the House of Commons, the direct relationship to which I have referred above may already be difficult to establish for one ethics commissioner. If one were to add 105 members of the Senate, there would be a large number of clients for a single commissioner: some 3,700 in total. In my opinion, this number would make it difficult for one commissioner to establish direct, one-on-one relations with clients, and to provide judicious and timely advice to senators.
As senators know, the members of the Senate, the members of the House and the various public office-holders play very different roles in the system, and the different roles require the application of different rules. While there are similarities between the code applicable to senators and the code applicable to members of the House, there are important and numerous differences, which I would be pleased to expand on later, that reflect the unique role the Senate plays in Canada's constitutional framework.
For example, senators are expected to remain involved in activities in their communities and regions, and to engage in a wide range of activities outside their parliamentary duties. Some of these activities may give rise to real or apparent conflicts.
Under the code, senators are expected to resolve these conflicts in a way that upholds the highest standards and protects the public interest. This expectation underlines again the importance of the Senate Ethics Officer's advisory function and of a close and ongoing relationship between senators and the Senate Ethics Officer.
Another important point to keep in mind is that the two codes are still relatively new. They have been in effect only for two years in the case of the House of Commons and for one year in the case of the Senate. Any new conflict of interest regime requires that considerable thought be given to the interpretation and proper explication of the rules, especially at the outset.
I am not convinced that the existing system has been in place long enough for a single individual, however competent the individual may be, to have the knowledge, time and experience to apply all three sets of rules effectively, giving some 3,700 parliamentarians and public office-holders the attention they want and deserve.
As senators know, Bill C-2 would codify into law the rules on conflict of interest for public office-holders, and would also enhance the powers and functions of the new conflict of interest and ethics commissioner, thereby significantly increasing the office's already heavy workload. You heard from Bernard Shapiro, the current Ethics Commissioner, on that matter last night.
Consider this: During the year 2005-2006, six inquiries were conducted by the Ethics Commissioner under the House of Commons code and a further seven requests for inquiries were made, considered and analyzed, but not pursued. As well, an additional five requests for investigations were made under the public office-holders' code, analyzed and reviewed, but not pursued since they did not lead to formal investigations. That is some 18 requests for actual investigations. That is part of the heavy workload that I speak of.
Moreover, the Ethics Commissioner's office is still relatively new and experiencing inevitable growing pains. Their latest annual report — and I refer you to pages 11 and 12 — outlines the work being done to address staffing, operational and organizational problems and to improve the quality of the workplace for staff.
Again, I ask myself whether a single person can be expected, under such trying conditions, to find the necessary time to meet with individual senators to provide them with the advice they seek, bearing in mind that, as I stated earlier, this year alone involved over 300 requests for opinions and advice from senators.
In considering the importance of the direct relationship between members and ethics commissioners in carrying out their advisory function, I find the provincial experience to be instructive. I am delighted to see that you have invited Bert Oliver, the Ethics Commissioner from British Columbia, and Coulter Osborne, the Ethics Commissioner from Ontario, and that they will appear before your committee as witnesses.
Let us examine briefly the case of three provinces that have long-established and well-respected ethics officers, namely, Alberta, going back to 1991, Ontario, 1988, and British Columbia, 1990. What I have to say is brief and you can address further questions to both Coulter Osborne and Bert Oliver if you wish to pursue these matters.
A direct relationship with clients is considered to be so critical that, in Alberta, the legislation that establishes the Office of the Ethics Commissioner requires an annual meeting of each of the 83 members of the legislature with the commissioner, under section 13 of the Conflict of Interest Act. Bob Clark, Alberta's first highly respected and long-time Ethics Commissioner, describes his role as 90 per cent priest and 10 per cent policeman, reflecting the fact that most of his time is occupied with meeting members to advise them on how to comply with the legislation.
Ontario, for its part, has a similar requirement. In his 2005-2006 annual report, Ontario's Integrity Commissioner, the Honourable Coulter Osborne, emphasizes the importance he attaches to his direct relationship with the 103 members of the assembly, a job which keeps him fully occupied.
I quote: "Last year there were 446 s.28 inquiries," under the Members' Integrity Act. Some of these were in writing and some of these were over the telephone. Be that as it may, Mr. Osborne continues in the report:
We try to respond to all of these inquiries within 24 hours. Occasionally, where additional information is required, the response may take slightly longer. The number of requests for opinions under s. 28 is encouraging. Almost all of these requests are made before the event. This confirms that members, to their credit, are asking before acting or deciding. At a minimum this works to avoid more serious problems. It seems to me that there is an inverse relationship between the number of requests for an opinion under s. 28 of the Act and the number of complaints of Members' Integrity Act breaches — the more requests for an opinion, the fewer formal complaints.
Mr. Osborne makes another interesting observation in his annual report that will be of interest to senators:
My office remains small and is thus able to preserve the confidentiality which is required in the administration of the Members' Integrity Act. It operates with a staff of four.
That is the same size as my own office, by the way.
Ontario's approach over the years has been proactive and because of this, has produced solid results over the years in raising public confidence in the integrity of the government. This did not happen overnight.
In the words of Ontario's first integrity commissioner, the Honourable Greg Evans:
In the early days of my office, few people called me. They didn't know I was there or they didn't care but now we find that there are many requests asking whether members can do this or that. I think that one of the duties of the commissioner is to protect the members from getting into trouble. I know we have to represent the public and protect the public, but you are protecting the public if you protect the member from getting into difficulty through prudent advice.
I also note that the Ontario integrity commissioner's jurisdiction is limited to conflicts of interest with respect to members of the legislative assembly, including ministers. Separate institutional arrangements are in place in Ontario regarding deputy ministers and other Governor-in-Council appointees.
British Columbia has also pursued a preventative approach based on a close and ongoing relationship between the 75 members of its Legislature and the Commissioner, the Honourable Bert Oliver, who describes his role in these terms in his 2004-05 Annual Report.
By far the greatest portion of the Commissioner's time is taken up by informal, confidential meetings with Members...to discuss Members' problems...or to provide assistance to Members in identifying potential future problems not readily observable at first glance with a view to their avoidance. It is in the exercise of this informal and confidential consultative function that the most valuable aspect of the Commissioner's work may be found.
Mr. Oliver also emphasizes the importance of having a direct relationship with his clients.
I have throughout my time in office tried to encourage all Members to make the widest possible use of the consultative or advisory services of my office and have made myself available to every Member of the House for confidential advice 24 hours a day on all 365 days of the year. The effectiveness of that informal confidential advisory process depends very largely on the measure of trust which can be developed between the Commissioner and each Member.
Similar thoughts were expressed by the Honourable Ted Hughes, the province's first Ethics Commissioner, who will be known to some of you.
I have endeavoured to encourage Members to bring their concerns to me, no matter how insignificant they might believe them to be. The telephone is frequently used and having established a relationship with each Member as a result of the meeting I must have annually with each of them, a rapport has been built that facilitates that kind of approach. I hope that close contact will continue, particularly where the Member feels the need for immediate assistance and also in situations that are likely trivial in nature.
York University professors Ian Green and D.P. Sugarman have studied the ethics regimes put in place in Ontario, British Columbia and Alberta. In their book on politics, the Canadian classic on ethics issues, they conclude that the provincial experiments with independent ethics commissioners has been "a remarkable success in raising the level of ethical behaviour in politics and raising public confidence in the integrity of government." They attribute this to the fact that most of the commissioner's time is spent meeting elected officials and providing advice on how to comply with their ethics rules and, but only rarely, investigating complaints about possible breaches.
Internationally, this is sometimes referred to as the Canadian model, a model that has been emulated in all provinces and territories as well as in other countries.
Speaking of other countries, it is useful to examine briefly the international experience, not so much to imitate but to be aware of what works in countries that have well-established and effective ethical structures.
We find that the ethics regimes in a number of other bicameral jurisdictions to which Canada often compares itself on parliamentary matters have clearly separated the executive and legislative branches as well as the two legislative chambers. Examples of such countries include the U.K., the U.S. and Australia. In other words, in all three countries each house controls its own ethics regimes, including its own code, as does the executive. No one officer has jurisdiction over more than one of these bodies.
The separate and distinct institutional arrangements allow sufficient time for a direct relationship to be established, something I argue is key if parliamentarians are to be properly informed regarding conflicts of interest and how they may be avoided.
The reasons given for these separate regimes relate to the different roles, responsibilities and cultures of these bodies, the differences in their respective conflict of interest rules as well as the legislature's long-standing tradition of managing their own internal affairs, including discipline of their own members.
In the case of the United States, both its House and Senate committees on ethics were established pursuant to article 1 of the U.S. Constitution, which confers on each House of Congress the power to determine its own rules of its proceedings and punish or expel its members.
In these countries, there has been, to my knowledge, no discussion regarding combining the various regimes or otherwise modifying them. It would seem that the existing arrangements are considered to be satisfactory. Viewed from an international perspective, the Senate's approach and position to date should be seen as principled. It is neither unique nor self-serving.
For additional information, I refer honourable senators to a paper dated July 18, 2006, prepared by Margaret Young, who is sitting with you today at this table, from the research branch at the Library of Parliament entitled, "Structures to enforce ethics in the United Kingdom, the United States and Australia." It is an excellent paper.
I also refer honourable senators to a brief technical paper prepared by my staff, outlining the key provisions in Bill C-2 as they affect the office of the Senate Ethics Officer.
In closing, I am not aware of any serious work that has been completed regarding the advantages and disadvantages federally for Canada on alternative ethics structures. Perhaps such a study should be undertaken, I do not know.
In any event, in terms of efficiency, I do not believe there are any significant cost savings to be had. You will note from my annual report that I have a small office with only four members.
Notwithstanding this we had a successful first year, met all of our objectives on time and under budget. In particular, I was pleased that all senators filed their confidential disclosure statements on time. All senators are now in compliance with the code, and the Senate public registry was officially opened on May 9, 2006.
This would not have been possible without the excellent cooperation we received from senators during a period that was very much a learning experience for all concerned. As senators know, the 2006-07 annual review, our next annual review, will begin shortly.
In terms of consistency in interpretation, there are, as noted earlier, important differences between the Senate and the House conflict of interest codes. These differences reflect the historic and constitutional differences in the roles and responsibilities of the members of the two Houses. Notwithstanding this, through regular discussions between my office and the Office of the Ethics Commissioner, we ensure consistency in our interpretation of the two codes when this makes sense, but also apply different interpretations where the circumstances warrant it.
We have close contacts with our provincial colleagues as well, Ontario in particular, since there are a number of similarities between the Senate code and the conflict of interest rules in Ontario.
A national organization of the various ethics commissioners, called the Canadian Conflict of Interest Network, or CCOIN, meets yearly to discuss issues of common interest and share best practices, thereby ensuring a measure of consistency across the country. These informal arrangements and the flexibility they provide have always been one of the strengths of our Canadian federal system. In fact, there is a further organization called COGEL, which stands for the Council of Governmental Ethics Laws, which is a Canada-U.S. organization which meets annually and brings together ethics commissioners at the federal, provincial and state levels to discuss issues of common interest. The issues include gifts, travel, government contracts, disclosure of assets, liabilities and so on. These issues are also of interest to our senators and parliamentarians. My point is that consistency in interpretation, where this makes sense, is already taking place, and there are mechanisms in place to ensure consistency in interpretation.
Moreover, and as already noted, other bicameral legislatures, the U.K, the U.S. and Australia, have adopted a model whereby each of their two houses have their own ethics regime. Lack of efficiency and consistency do not appear to have become a problem in those jurisdictions. In fact, as is the case in the Canadian provinces and territories, where the number of clients for each commissioner is manageable, the separate ethics regime for each house in these countries also ensures that the conflict of interest system is not overwhelmed due to an excessive number of members being subject to a regime administered by one body. This, in turn, results in an effective and timely service overall, protects the public interest and enhances public confidence in government. This is also the approach I have sought to adopt with respect to my responsibilities under the Conflict of Interest Code for Senators since my appointment on April 1, 2005.
Senators, I conclude with the wise words of Arthur Kroeger, one of Canada's foremost public servants, with whom I had the pleasure of working many years ago. He said, "Do not make the mistake of trying to fix something that is not seen as broken. First establish the problem, consider options, weigh benefits and calculate risks."
The Chairman: Thank you for that excellent and comprehensive overview, first, of your position as Senate Ethics Officer and your interpretation of the role of the Senate Ethics Officer and Bill C-2. It has been very informative and we thank you for your comprehensive overview.
At the beginning of your paper you talked about the proposed structure and you said that, "Would one ethics commissioner administering three sets of rules on conflict of interest be more effective than having two or three commissioners?" Will the codes of conduct for the House of Commons and for the Senate change with Bill C-2?
Mr. Fournier: There is no plan to change the current codes, no.
Senator Joyal: I will repeat the warning that I expressed yesterday. Of course, I am, in a way, in a conflict-of-interest position, being the Chair of the Standing Senate Committee on Conflict of Interest for Senators. In that capacity I have the responsibility to maintain the relationship of the Senate with the position occupied by Mr. Fournier, so I will restrict my questions to elements of general information.
Mr. Fournier, you mention in your brief, and you invited the committee to question you on this, that there are different rules between the two Houses. You explained briefly that they are based on the different responsibilities of both parliamentarians, but for an outsider, one would be tempted to reply to you, yes, but integrity and honesty do not have any borders or any fences, and it should be the same for everyone. This is an argument that we hear generally when one tries to explain why there should be a different approach to maintain the objective of integrity and honesty in the performance of public duties. Could you expand on that statement?
Mr. Fournier: One of the major reasons why in other jurisdictions and in other countries, at the provincial level, there are, in some cases, two, and in other cases three different structures, two, three commissioners, it is specifically to reflect that the roles and responsibilities are different between public office-holders. That is, ministers and deputy ministers who hold executive positions and are involved in decision-making positions. I was in one of those positions for some 30 years. Members of the House of Commons, whose primary roles and responsibilities are to legislate. It is not to make decisions or to run programs. They have a legislative role and function and to keep government accountable. Similarly, members of the Senate have a legislative function. They are unlike members of the House; they are not elected, they are appointed. They remain active in their communities, sitting on nonprofit boards or commercial boards to an extent that members of the House of Commons do not.
One must recognize that one size does not fit all. I think most people would recognize that different rules must apply to a minister, much more stringent rules and controls to a minister who has executive authority and who exercises that authority every day. A member of Parliament who represents his riding and speaks on behalf of his constituents and is involved in legislation, and a senator whose roles and responsibilities are different again from those of a member of the House of Commons and a deputy or a minister. One size does not fit all.
Once you accept that, one could argue that you could have one structure that will encompass these different institutions who have different roles, responsibilities, cultures and so on. You could also go the other way, which is the way that our friends in the U.S., U.K. and Australia have gone, and recognize that separate roles and responsibilities should be translated into separate institutional arrangements with their own identity, sense of ownership and rules. Around the world, that practice seems to be the general direction that things have taken over the last 30 to 35 years.
Senator Joyal: One other criticism that could be addressed — and we have heard it — is that you might become too cozy with a parliamentarian, and a relationship would develop. We have heard that criticism — maybe not explained as diplomatically as I have expressed it to you — but essentially it seems that the farther away from the day-to-day operations of Parliament the commissioner is, the better the commissioner is able to maintain independence. How do you address those criticisms?
Mr. Fournier: The issue of independence is absolutely critical. Whether at the international or provincial level, ethics commissioners continually emphasize the importance of their independence in the decision-making process. Certainly, this independence, as far as I am concerned, is assured in the Parliament of Canada Act, which sets up my office and provides the measure of independence that I require and which senators respect. At no time over the last 15 months have I had any pressures from anyone relating to any of the decisions that I have had to make. Senators understand the concept of independence and respect the need not so much for my personal independence, but the institutional independence, the independence of the office.
In some ways, one can make a comparison with a judge. For an office to be respected, to be credible, you need not only to be independent but to be perceived to be independent.
There will always be people who criticize the judicial system for being politicized, who criticize bureaucrats and public servants — I lived through that for many years — for being politicized and having lost their independence; a measure of that criticism will always exist.
From my perspective, the independence is assured through the legislation. Far more important to me and far more fundamental is the question of whether senators wish to have a Senate Ethics Officer who is available on a regular basis to provide them with timely and judicious advice. If that is a key issue for senators, if that is of importance, then the structure adopted should reflect the desires and the wishes of senators. The question of the advisory function, from my perspective over the last 15 months, is the one that is at the heart of the successful implementation of the code of ethics.
Senator Joyal: I know we have a heavy schedule this afternoon, so this question will be my last. It is about the advice that you are requested to provide to senators. You say that through the years, you and your provincial colleagues expect that there will be an increase in requests for advice and opinions. I thought that it would be understandable in the first year that you would get a lot of questions and requests for information on the basis that the code and regime were new. However, I was under the impression that, with the years, the number of requests for information sought by senators or parliamentarians at the provincial level would decrease — that, in fact, it would become merely an annual kind of form that you fill out and send through the mail. You surprise me by telling me that the situation is the contrary.
My second question is about the advice you are requested to provide. You bear the name Senate Ethics Officer. You have the word "ethics" in your title, but you administer a code that is the code for the conflict of interest of senators. This morning we had a witness, René Villemure, who explained clearly for our benefit the difference between "ethics" and "conflict of interest." Which part of the advice that you provide is centred more on ethics generally, which is the proper way of doing things, versus the mere conflict of interest aspect of it? I do not know if you see the difference or what I am aiming at.
In fact, the conflict of interest comes after the ethical question. The first is to do the thing properly on the basis of the public duty a person accepts by being elected or appointed to the Canadian Parliament. Can you qualify or explain where you see the line between the two?
Mr. Fournier: On your first point with respect to the volume and the workload of the office, when I discussed this matter with some of my provincial colleagues, including Mr. Osborne, who will appear before this committee, I was surprised as well.
The Ontario experience goes back some 18 years now. The office has kept numbers for the last 10 years. Numbers have gone up year after year — not by large amounts, but there is a noticeable increase over a 10-year period.
I think this increase is explained in part by the complexity of our society, the complexity of issues — ethical and financial issues, the increasing interest on the part of the media and the increased "conscientisation des politiciens." I think politicians, public servants and senators are becoming more aware of the importance of disclosure and of dealing with these issues, whether they are real or apparent conflicts. As the office in Ontario and in other provinces becomes better known and people realize they can trust and deal with someone in confidence 24 hours, 365 days a year, people will use the service.
Initially, for many people it is like going to the dentist. They would rather not think about it and perhaps delay, but after a while they begin to realize that maybe it is in their best interest and maybe the ethics commissioner is not that bad an institution, so people make greater use of the office. That has been the Ontario experience over 18 years.
What will be the Senate experience? I am not sure. I cannot extrapolate, but I would not be surprised, over the next two or three years, to see the volume be maintained and perhaps increase as people become more comfortable, and as the office gains experience with the code and senators as well.
With respect to the second issue, I did not hear the witness that you referred to this morning and the distinctions that he drew between ethics and conflict of interest.
When senators come to me for advice, sometimes it will be on narrow issues of conflict of interest, but often it is on the broader ethics issues: matters of morality or matters of perception. While one can make a distinction between conflict of interest and ethics, I think for most people these are matters of ethics. Conflict of interest is a subset or a broader issue within morality: what is right, what is wrong, what is good, what is bad. I tend to come to an issue from that kind of broader perspective when I have a discussion with a senator. In the course of that discussion we may narrow down to more specific issues, such as assets, liabilities or a particular position on a non-profit board on which the senator sits, for example. Then we get into whether there is a conflict of interest between the senator's public duty and his or her private interest. However, we always seem to come back to the broader ethics issues with which our society is increasingly concerned.
The Chairman: You confirmed today the number of potential cases that a commissioner may have. You also added some information on the various provincial commissioners with which you are familiar. You indicated that there are 1,350 full-time public office-holders, 1,940 part-time Governor-in-Council appointments and 308 members of the House of Commons to deal with.
You also talked about the importance of having a personal relationship with the parliamentarians and members, as the provincial commissioners do. You said in your report today that over the last year you have met with most senators and you have been in office now for 17 months.
With how many senators have you not met?
Mr. Fournier: I would say eight or nine, and that was largely because they were not available at that time since there was an election through the winter. It was just not convenient for them to meet with me then. I hope that as part of the next annual review I will meet with all senators.
Senator Zimmer: Mr. Fournier, thank you for your presentation today and your detailed report, and also for the service, advice and guidance you provided me during my first year as a senator. It was extremely helpful.
You spoke about the role and responsibility in culture of the ethics officers and the two separate chambers and your provincial counterparts. I would like to go a little further and deeper, other than function, work load and independence. Do you believe that the integrity of the parliamentary system would be compromised by the amalgamation of these two offices?
Mr. Fournier: That is a difficult question for me to answer. You are touching on the issues of the constitutional roles and responsibilities of the House and the Senate, the question of parliamentary privilege, the question of autonomy and independence of the Houses, which goes back to 1867 and our Constitution and several court decisions. Former Chief Justice Lamer and other Supreme Court judges have made decisions that have been quite clear in terms of asserting or protecting the independence of Parliaments vis-à-vis the executive and the judiciary and preserving the relationship between the House and the Senate.
I think it is a fundamental issue. It has been argued eloquently by several senators over the past few years. Senator Beaudoin was involved, and more recently Senator Joyal and Senator Cools have been eloquent spokespersons for maintaining the tradition of Senate independence. I think that based on their experiences, other countries have chosen to go with separate institutions for the House, separate institutions for the Senate and separate institutions for the executive. "Chacun son indépendence, chacun son jardin."
In that way we preserve the independence, we reflect the culture, traditions and the Constitution, and we also develop a sense of ownership. Senators in my office are in the process of developing a sense of ownership. That takes time and work. I think it is easier to do with separate institutions than with a single institution and 4,000 clients. There the relationship is of a different nature altogether. Mr. Shapiro made it quite clear last night when he appeared before this committee that the kind of direct relationship that you and I have enjoyed, Senator Zimmer, is simply not possible in his particular situation.
Yes, the question of the integrity of the Senate as an institution is an issue, and I think that point will continue to concern senators.
Senator Milne: Mr. Fournier, do you have a copy of the bill there, sir?
Mr. Fournier: Yes, I do.
Senator Milne: On page 25, subclause 44 (6) reads:
(6) Where the Commissioner is of the opinion that a member of the Senate or House of Commons has failed to comply with the confidentiality provision of subsection (5), the Commissioner may refer the matter, in confidence, to the Speaker of the Senate or House of Commons.
I have no problem there. However, subclause (7) continues:
(7) The Commissioner shall provide the Prime Minister with a report setting out the facts in question as well as the Commissioner's analysis and conclusions in relation to the request. This report shall be provided even if the Commissioner determines that the request was frivolous or vexatious or was made in bad faith or the examination of the matter was discontinued under subsection (3).
In your opinion, is this proper? Would you feel comfortable reporting to the Prime Minister, sir, on what goes on in the Senate?
This really follows what Senator Zimmer was mentioning, but the point that the commissioner will provide the Prime Minister with a report is specific within this bill and that, in my opinion, breaks down the barriers between the House of Commons and the Senate.
Mr. Fournier: Senator Milne, this would certainly seem to suggest that there is a blurring of roles and responsibilities. I say "seem" because, as I think a number of senators here today know, I am not a lawyer; I am a lapsed economist. I am reluctant to be drawn too deeply into a discussion of these clauses.
I followed the discussion that took place last night. I think Senator Austin raised the important issue of the roles, responsibilities and autonomy of the House and of the Senate. I encourage the committee to pursue this matter. Perhaps Mr. Audcent, who will be appearing after me, will have some views on this subject.
I would suggest also that you pursue this with representatives of the Privy Council, who may appear before you again. The Privy Council counsel, James Stringham, was involved in the drafting of this bill and he may have some helpful thoughts regarding the concerns you have expressed. This is a very good issue for the Senate, as a chamber of sober second thought, to pursue and to get the clarifications that you need.
Senator Day: I have three questions. First, on the issue of immunity — not being compellable to appear before a court — clause 50 of the bill, at the bottom of page 27, states:
The Commissioner, or any person acting on behalf or under the direction of the Commissioner, is not a competent or compellable witness in respect of any matter coming to his or her knowledge as a result of exercising any powers or performing any duties or functions of the Commissioner under this Act.
Do you see that?
Mr. Fournier: Yes.
Senator Day: That is important in order to establish the confidence of the members. However, unfortunately, the act referred to is the Conflict of Interest Act, which relates to public office-holders only. It does not relate to senators or to the function the commissioner performs under the Senate's code, and it does not provide immunity with respect to the work that the commissioner is doing for members of the House of Commons under their code, both of which will continue.
In the existing legislation, a similar provision provides immunity for the Senate Ethics Officer, but that would be gone under this proposed legislation. Can you help me find in the bill any indication that the immunity would apply for you performing your functions for senators under the Senate code?
Mr. Fournier: I looked for it as well but it is not there. As you rightly point out, section 20.6 of the Parliament of Canada Act, which provides the Senate Ethics Officer with immunity, is being repealed.
Senator Day: Yes.
Mr. Fournier: To be clear, what does remain is the immunity with respect to judicial review by the Federal Court. That immunity as it relates to the Federal Court exists in the current legislation and remains in the proposed new legislation. However, the particular immunity from civil and criminal proceedings to which you referred would be repealed. Perhaps it was forgotten or perhaps there was a view that parliamentary privilege applied and therefore it was not necessary. However, if the latter were the case, why was the provision put into the original bill?
Senator Day: A year and a half ago.
Mr. Fournier: A year and a half ago. This is a very important issue. If this bill were to be adopted as is and the matter were to come before a court, the court would certainly ask itself why the immunity provision was removed from the bill and what it means that the government has made a deliberate policy decision that the Senate Ethics Officer should not enjoy immunity from civil and criminal proceedings.
Again, I encourage you to discuss this matter with Mr. Audcent, legal counsel, and get his view on this. This is a serious matter that should be clarified. The question should be put to Privy Council and Justice officials as to why such a major change was made to the bill a year and a half after its first drafting.
Senator Day: Pages 45 and 45 of the bill list who can be appointed as a commissioner. To qualify, one must be a former judge, a former member of a federal or provincial board, et cetera; then the Governor-in-Council must be satisfied that the potential candidate has a particular interest and expertise in conflict of interest, financial arrangements, ethics, or — and this has been added — is a former Senate Ethics Officer.
Congratulations, you now qualify. However, as I understand, unless you were a member of a board and had that particular expertise, if you had not been the Senate Ethics Officer, you would not qualify under the new rules. Is that correct?
Mr. Fournier: That is my understanding, senator.
Senator Day: I suspect there are many professors and consultants who have a particular expertise in conflicts of interest, financial arrangements, professional regulation and discipline or ethics who are not former judges, and for one reason or another did not become a member of a federal board, commission or tribunal. Why should those people be excluded? Why should someone who has the expertise be excluded because he or she was not a member of a federal board? What sense is there in that?
Mr. Fournier: I guess it is a matter of opinion. It is an important issue. You had a discussion about this with Bernard Shapiro and Howard Wilson yesterday, and you may want to pursue this discussion later on with Coulter Osborne and Bert Oliver.
My view is that a legal background is not essential. I think there are qualifications that are important, indeed essential, for a successful ethics officer, but I do not think that being a lawyer or a judge is a prerequisite.
Both in our own country and abroad, we have had successful provincial ethics officers who have been judges and lawyers, and we have had some equally successful ones — I am thinking of Robert Clark and Donald Hamilton in Alberta — who have not been lawyers and judges.
I think what is required in terms of qualifications is flexibility, judgment, a sense of independence, some interpersonal skills and the ability to deal with complex situations. The candidate should have an intimate knowledge of how government operates — the parliamentary system, the Senate, the House, the judiciary and the executive. If you can find all those qualifications in a person who is a judge or a lawyer, that is fine. However, if you limit yourself to someone with legal or judicial experience, I think you run the risk of narrowing the pool and of limiting yourself. It may well be that you will want at a particular point in time a lawyer or a judge, but at other times you may have very good candidates who are not lawyers or judges. My inclination would be to not limit yourself.
Indeed, I would go further; I question whether one should establish qualifications in legislation. None of the provinces do it, other than Nova Scotia. Flexibility should be left to the Senate, in the case of the Senate Ethics Officer, and to the House and the executive to find and select candidates that are suitable to deal with the challenges of the job at a particular point in time.
First, it is not clear to me that you need to sum up or narrow down the qualifications. Second, it is not clear to me that you need to put them into legislation. By doing so, I think you limit yourself unnecessarily.
Senator Day: It does not say "former judge or lawyer." It says "former judge." Therefore, lawyers are excluded as well unless they happen to have the job you have or were a member of a federal tribunal and had a particular expertise.
As I understand the interpretation of this rule, were it not for the fact that you and Dr. Shapiro have the particular jobs you have now, neither one of you would qualify because you are not former judges and you are not members of federal tribunals or commissions with a particular expertise.
Mr. Fournier: That is my understanding.
Senator Day: Thank you. Did you have an opportunity to follow Senator Fraser's walk through the rules yesterday, where she pointed out in the transition rules that you in fact continue but lose all your employees? Are you able to shed any light on that? I think that is quite an interesting situation.
You continue with your position and if you, for whatever reason, step down, your position can be filled by someone else as a Senate Ethics Officer, but all of your employees go over to the new commissioner.
Mr. Fournier: I am well aware of the clause of the bill to which you refer. I am as mystified as Senator Fraser and yourself as to how to interpret that. One can speculate, but frankly, it is far from being clear.
Again, I think you should ask the PCO and Department of Justice officials who drafted that clause for an explanation of its significance. It is hard for most of us, lawyers and non-lawyers alike, to explain or to understand. Certainly no one in my office has a clear understanding. We have looked at it, we have talked to several people in government, but we have not gotten a clear view.
Senator Day: To what degree were you consulted on this legislation before it was made public?
Mr. Fournier: None whatsoever.
Senator Day: Did you have an opportunity afterwards to discuss some of the contradictions?
Mr. Fournier: We have made inquiries about various aspects of the bill. In some cases we received clear answers, and in others not.
Senator Day: To be generous, this bill was put together rather quickly, so there are quite a few contradictions. Unfortunately, that makes our work that much more time-consuming.
The Chairman: The witness did not have a chance to answer that last rhetorical question.
Senator Day: I saw a nod.
The Chairman: Nods are not recorded. What did you say to his rhetorical question, Mr. Fournier?
Mr. Fournier: I believe the honourable senator was saying that issues have arisen because the bill was prepared quickly.
I think it is fair to say that every piece of government legislation I have been associated with in 30 years, whether prepared quickly or not, has contained issues of interpretation. We have always had to bring the Department of Justice lawyers back, and they would scratch their heads and say we forgot this or that.
It should not be surprising that such issues come up. The important thing is that the Senate continues to play the role that it has so successfully played over the years of drawing attention to the issues. Some of them are minor, but others could be very significant.
Senator Day: Just to round out my question, the bill was prepared quickly and also without consultation. I am flowing from your earlier comment that there was no consultation with you, at least?
Mr. Fournier: That is correct.
Senator Day: As well as no consultation with your department?
Mr. Fournier: Yes.
Senator Day: Thank you for that clarification.
Senator Stratton: I have a point of clarification with respect to the comments made by Mr. Fournier about immunities. I should like to make a correction.
Immunities and privileges are protected by virtue of the Constitution as well as by the following in the bill: pages 27 and 28, clauses 50(1), 50(2) and 50(3); and pages 46 and 47, proposed new sections 86(2) and 86(5) of the Parliament of Canada Act.
I think before we jump off bridges, we should check our facts.
Senator Day: If you could go through that slowly, we could check this fact.
Senator Stratton: Pages 27 and 28, clauses 50(1), 50(2) and 50(3); and pages 46 and 47, proposed new sections 86(2) and 86(5) of the Parliament of Canada Act.
Senator Day: Which parts of pages 47 and 48?
Senator Stratton: Proposed new sections 86(2) and 86(5).
Senator Day: I am talking about immunity of the commissioner, so you can forget about pages 46 and 47. You are quite right that there is immunity for the commissioner in clause 50, but I made that point when I asked my question.
Senator Stratton: I came late to the meeting. My understanding is that these are the points by which the commissioner or officer is protected.
Senator Day: The honourable senator said we should check our facts. Perhaps I could give him the opportunity to read clause 50. That clause refers only to public office-holders, and that is the whole point of my question.
Senator Stratton: What was the point of your question?
Senator Day: The immunity for the Senate Ethics Officer that is in the current act is removed by this bill. The only area where I could find a privilege — and I asked the witness if he could help me with this — is clause 50, which is only in the proposed conflict of interest act for public office-holders.
Senator Stratton: We will get an interpretation on that.
Senator Day: Thank you.
The Chairman: Mr. Fournier, Senator Day asked you a question that arose last evening from a question raised by Senator Fraser. Senator Day just put that same question to you again and referred you to the clause in question.
You have had extensive experience as a bureaucrat dealing with government legislation and new government legislation, as you have told us, and you know that transition clauses are put into legislation from time to time.
When the new proposed conflict of interest act comes into force, it will create a new officer under the present system, and that is what you and Dr. Shapiro and others have talked about.
The other provisions that extend to the Senate Ethics Officer, yourself, and the Ethics Commissioner, Dr. Shapiro, are needed if other sections of the federal accountability act come into force before the proposed conflict of interest act. That is a standard transition clause. Do you understand that?
Mr. Fournier: Yes. Thank you.
The Chairman: Thank you.
Senator Stratton: I have a point of clarification. My apologies for coming late to the meeting; I was at another meeting.
On page 47 of the bill, the proposed new section 86(2) states:
The duties and functions of the commissioner under subsection (1) are carried out within the institution of the Senate. The commissioner enjoys the privileges and immunities of the Senate and its members when carrying out those duties and functions.
Is that not protection?
Senator Cools: I do not think that is your point.
Senator Day: The point was that a year and a half ago there was a clause making the ethics officer non-compellable to the court; that clause was removed, and I am wondering why.
Senator Stratton: My point is that the Constitution and the bill quite clearly state that the commissioner is protected.
Senator Day: Yes, the previous act that pertained to the Senate Ethics Officer clearly stated it. However, in this bill, the clause does not pertain to the Senate but does relate to public office-holders, and I ask why the dichotomy.
Senator Stratton: I appreciate that.
The Chairman: Will this question be for the witness, Mr. Fournier?
Senator Day: The witness has already answered it.
Senator Stratton: In my view he has not answered it. I want to go specifically to the proposed new section 86(2) in the Parliament of Canada Act, which states:
The duties and functions of the Commissioner under subsection (1) are carried out within the institution of the Senate. The Commissioner enjoys the privileges and immunities of the Senate and its members when carrying out those duties and functions.
Does that provide protection for that person?
Mr. Fournier: I think it is part of the issue, senator. In my answer to Senator Day, I referred specifically to subsections 20.6(1), (2) and (3) in the current Parliament of Canada Act.
Senator Cools: Will you read those sections again, please?
Mr. Fournier: Subsection 20.6(1) in the current act states:
The Senate Ethics Officer, or any person acting on behalf or under the direction of the Senate Ethics Officer, is not a competent or compellable witness in respect of any matter coming to his or her knowledge as a result of exercising any powers or performing any duties or functions of the Senate Ethics Officer under this Act.
Subsection (2) adds that "No criminal or civil proceedings lie against the Senate Ethics Officer, or any person..." That section in the current act has been removed.
Senator Stratton: If I may, let me finish my question.
Senator Day: Perhaps you should let him finish his answer.
The Chairman: Mr. Fournier, please continue.
Mr. Fournier: I was just about finished, Mr. Chairman, in saying that section 20.6 of the current act has been removed. I am concerned about that. I suggest that the committee seek clarification.
Senator Stratton: Again, my question is whether, under the proposed new section 86(2) in the bill, the officer would be protected. I will read the proposed section again if you like.
Mr. Fournier: No, I understand.
Senator Stratton: In your view, would you or would you not be protected if you became an officer?
Mr. Fournier: The section to which you have just referred is in the current Parliament of Canada Act.
Senator Stratton: I appreciate that, but I am asking you whether this specific clause in this bill would protect you.
Mr. Fournier: I do not think I have the degree of protection under the new legislation that the Senate Ethics Officer's office enjoys in the current legislation. I think that lawyers and this committee should look at that.
Senator Stratton: Thank you.
Senator Cools: I was trying to help out a bit. Perhaps we can ask Mr. Audcent to clarify the difference between the old sections and the proposed new sections.
Mr. Fournier, you just referred to section 20.6(1) of the existing act; is that right?
Mr. Fournier: Correct.
Senator Cools: I do not have a copy of the Parliament of Canada Act before me. As you were reading, I could not discern the difference between that section and clause 50(1) of the bill. For the sake of the record, perhaps you could read it again. If there is a mistake, I think we could clarify that right now. Could you read that section again, please, from the Parliament of Canada Act? I am comparing it to page 27, clause 50(1) of the bill.
Mr. Fournier: Subsection 20.6(1) of the Parliament of Canada Act states:
The Senate Ethics Officer, or any person acting on behalf or under the direction of the Senate Ethics Officer, is not a competent or compellable witness in respect of any matter coming to his or her knowledge as a result of exercising any powers or performing any duties or functions of the Senate Ethics Officer under this Act.
Senator Cools: Right.
Mr. Fournier: It then goes on to say:
No criminal or civil proceedings lie against the Senate Ethics Officer, or any person acting on behalf or under the direction of the Senate Ethics Officer, for anything done, reported or said in good faith in the exercise or purported exercise of any power, or the performance or purported performance of the duty or function, of the Senate Ethics Officer under this Act.
Senator Cools: Right. Those words are identical to the words on page 27 of the federal accountability bill.
Mr. Fournier: Those apply to public office-holders. As far as the Senate is concerned, my understanding is that the protection has been removed.
Senator Cools: In the bill, clauses 50(1) and 50(2), which are identical to what you just read from the Parliament of Canada Act, apply only to public office-holders.
Mr. Fournier: That is right. That is my understanding, senator.
Senator Cools: That is your understanding. We shall clarify that before the day is over. It is very important for us to clarify that.
Mr. Fournier: I would much appreciate it.
Senator Cools: I can see Mr. Audcent sitting in the audience. I would ask him from here to take very careful note of that.
Mr. Fournier: To be clear for the record, my understanding is that the clause that you have read applies only to public office-holders. If that is not right, I will be quite happy.
Senator Cools: I assure you, Mr. Fournier, that we will have that resolved before not very long.
Mr. Fournier: I will follow with interest.
Senator Cools: I wanted the record to note that the words of clauses 50(1) and 50(2) were synonymous with the sections of the Parliament of Canada Act. We will come to that.
My question concerns the proper Constitutional position or the proper Constitutional relationship between the judiciary and the Houses of Parliament. My question raises a lot. The federal accountability bill sets out the qualifications of candidates for the position of the conflict of interest and ethics commissioner. Interestingly, that clause does not say "lawyer" or "legal training." Many individuals who are not lawyers have expert legal training. On several matters, I feel quite free and open to go up against many lawyers any day of the week. Moreover, it is only in recent history that one has to be a lawyer, in today's definition of "lawyer," to be a judge. Not too long ago, many people who were not lawyers were appointed to the bench.
If one wanted to go in that direction, legal training would have been helpful. However, my concern is the constitutional relationship. The law of Parliament is very circumspect about its position on judges. Proposed new section 81 of the Parliament of Canada, which is the bill on pages 44 and 45, prescribes that a candidate for the position of ethics commissioner must be a former judge of a superior court. It does not say simply "a former judge"; it specifies a particular set of judges, section 96 judges.
In a constitutional way, we are talking about superior court judges. However, the point that I want to make is that the Constitution of Canada, and all that that entails, cannot and would not countenance the placing of a section 96 judge, retired or otherwise, in a superintending position over MPs because the law of Parliament would consider that act to be repugnant.
As a matter of fact, the Constitution of Canada does the reverse. It places the Parliament of Canada in a superintending position over the section 96 judges. Look for example at the old BNA Act or the Constitution Act, 1982, section 99, which assigns to the Parliament of Canada, or rather to the Houses, the removal of section 96 judge —
The Chairman: Mr. Fournier, would you care to comment on that?
Senator Cools: I was not finished.
The Chairman: Oh, I am sorry.
Mr. Fournier: Mr. Chairman and Senator Cools, I really do not have anything to add to this from my particular experience or perspective. I appreciated the clarification that Senator Cools brought, but I do not feel that I have anything more to contribute to this particular discussion.
Senator Cools: Mr. Chairman, I really do not like being cut off mid-sentence. I would just like to say that. You do it a lot and I really do not like it.
The point that I was trying to make as well is that the Parliament of Canada and the BNA Act contemplate a particular historical and Canadian development of the role of judges in Canada. Not many people study that.
For example, in the time leading up to the Act of Union of 1840 between Lower and Upper Canada, judges in Canada did not enjoy the same constitutional position as the judges in England. It was an enormous area of consternation. It was Lord Durham, in the Durham report, who recommended that judges in Canada should have the same position as those in the United Kingdom.
The BNA Act and the Constitution Act contemplate that in their sections that lay out the judicature; they gave the Parliament of Canada a particular role and intended a particular constitutional relationship. It is as though the drafters of this bill had no knowledge whatsoever of the proper constitutional relationship in the Constitution of Canada between the judges and the Houses of Parliament. They may say "a former judge," but what is forgotten is that the appointments of judges, like senators, were life appointments.
In addition to that, the holders of those offices, after so-called retirement, continue to hold the trappings of those offices in respect of carrying the titles. They continue to hold the title "honourable," just as senators do.
The scripting and the drafting of this bill is not consonant with the Constitution of Canada.
I appreciate, Mr. Fournier, that much about our Constitution seems to have slipped away from the knowledge of the individuals who draft bills. However, I would submit to you that many of the problems we have with legislation, which produce enormous confusion and legal costs, arise because the drafters of the bills are simply quite often inattentive to the constitutional requirements of drafting.
I want to make that point. It is a sorry thing that the qualifications are specified in that way.
The Chairman: Mr. Fournier, do you wish to comment?
Senator Stratton: I have one final comment, if I may.
It really befuddles me, Mr. Fournier — and I read again this proposed new section 86 (2), like a dog with a bone, I guess:
The duties and functions of the Commissioner under subsection (1) are carried out within the institution of the Senate.
This is the sentence that gets me:
The Commissioner enjoys the privileges and immunities of the Senate and its members when carrying out those duties and functions.
If you say you are not comfortable with that and you want more protection, in effect you are asking for more protection than senators have. That last sentence specifically states that you enjoy the privileges and immunities afforded to the Senate and its members. Why would you need any more than that?
Mr. Fournier: As I said, and I do not want to belabour this point, senator, I think should pursue this matter with legal counsel here. I am sure Mr. Audcent will be able to enlighten you in a way that I cannot.
Given that the question of immunity was such an important issue for senators in their discussions over the last three or four years, I was trying to draw to the committee's attention the fact that certain sections relating to immunity for the Senate Ethics Officer that are currently in the existing act would seem to have been dropped in the proposed legislation. It may well be that, as Senator Stratton suggests, the clause that you have read is sufficient. However, I think it is my role as your Senate Ethics Officer to draw to your attention the fact that there is a significant section in the current legislation as it applies to the office that does not appear in the proposed legislation, as far as I can see.
Senator Cools: I think that when our law clerk, Mr. Audcent, comes to the table to respond to this, we should allow Mr. Fournier a minute or two in case there is a misunderstanding or he is making a mistake.
The Chairman: I am not aware of Mr. Fournier's schedule. He has been here for several hours. I do not know whether he can stay.
Senator Cools: I was talking to the committee. We should grant him the privilege of being able to respond. If he does not want to, that is fine.
Senator Prud'homme: I am particularly interested in this bill and in Mr. Fournier, who so far has served the interests of the Canadian public well and has performed his task well. My question was asked in my absence, which was due to my sitting on another committee.
It is quite odd to ask you this question because often we see extravagances from these creations. First I want to thank you for your services to date. I hope you can continue to serve the Canadian public.
As far as your budget is concerned, is it fair to say that it was much less than a million dollars and covered all your expenses. It costs much more to set up a new commission because there are start-up expenses. Including these start-up expenses, is it possible to have, for the purposes of the minutes, an assessment of the budget you had to set and how much public money was needed for the first year, assuming that implementing your position required additional funding?
Mr. Fournier: If memory serves me correctly, the budget is $730,000, which does not include additional expenses related to employee benefits, such as pension plans. You will find the breakdown of the budget in the last annual report.
Senator Prud'homme: But I would like this included in the minutes. Is it approximately less than $800,000 or more than $1 million?
Mr. Fournier: Yes, it is around $770,000.
Senator Prud'homme: Then I understood your report properly. My next question has already been asked, but I will ask it again in a different way. I am of the opinion that having just one commissioner would not serve the public interest. We are interested in being at the service of the public.
After reading this bill which makes reference to many other bills and which is enormous, I wonder whether having just one commissioner best serves the interests of the Canadian public. Should we instead take a more modern approach to the current system by having a commissioner such as yourself and having another commissioner to handle the ministers and parliamentary secretaries.
People have to realize that there are over 3,000 Governor-in-Council appointments in all and that these people are not appointed for life, or up to age 75 like in the Senate or, soon, for a term of eight years. I am in favour of the eight-year formula.
Are we better served under the current system? Does the problem not lie in a lack of communication with the public? What exactly does this type of bill mean? Should the new commissioner be responsible for 3,000 people — 3,000 appointments that are constantly changing — as well as the ministers and senators?
Mr. Fournier: Your question is important and goes to the very heart, I believe, of the work and discussions of this committee, which is to determine whether the federal ethics regime should be administered by one commissioner or two or three.
There are advantages and disadvantages of course. I think it is the duty of this committee to weigh the advantages and disadvantages of the various models and to make recommendations to the Senate.
For my part, in the presentation I gave in your absence, I talked about the provincial and international experiences which seem to suggest that there are advantages to centralizing governance, to having one commissioner for the Senate, one commissioner for the House and one commissioner for the executive branch. But that is one model. There may be others, but let us say that this currently seems to be the preferred model and the one that has been working for the past 20 or 30 years in Canada and in other countries.
That said, it is not because others are doing something that we have to do the same. However, it is always helpful, I think, when considering making changes to structures in place, to see how things are working elsewhere. There are different models the committee should look at.
The Chairman: Mr. Fournier, on behalf of the committee, thank you very much for your patience and the excellence of the overview you provided on your position and on the bill. It has been very useful.
Senator Joyal: I want to raise a point of order because I think it is appropriate. Yesterday, during a discussion and exchange with members of the committee on the schedule of our work — in particular, the week after this one — I mentioned you personally, and should not have. I think the discussions that take place in the steering committee should remain there. As president and a very honourable senator, I should not have mentioned anything that might raise doubts about your commitment to this committee and the way you chair it in an impartial way. I want to apologize if anything I said might have offended the ethics of this committee. I think ethics is the proper way to do things. I believe you followed that and I apologize.
The Chairman: Thank you very much. I appreciate that.
Our next witnesses are well known to honourable senators. Mark Audcent has served as Law Clerk and Parliamentary Counsel to the Senate of Canada since 1996. The Law Clerk and Parliamentary Counsel is responsible for providing legal services to the Senate and to senators. His office gives constitutional and legal advice to the Senate and to individual senators to assist them in carrying out their parliamentary functions. The most significant function of the law clerk in the legislative process is that of drafting bills and amendments for use in the Senate. The office also provides corporate legal services to the Senate administration. As the senior Senate officer, the Law Clerk and Parliamentary Counsel discharges a variety of protocol duties. Mr. Audcent has extensive experience since completing his legal training at the University of Ottawa. He was admitted to the Law Society of Alberta in 1976 and is still a member of the Alberta bar. Mr. Audcent is an active member of the Association of Parliamentary Counsel in Canada and serves on the planning committee of the Canadian Institute for the Administration of Justice. He is accompanied today by Mr. Michel Patrice, who is a parliamentary counsel in his bureau.
The committee thanks you for coming. I will now give you the floor and we will then proceed to a period of questions which will be very beneficial to the committee.
Mark Audcent, Law Clerk and Parliamentary Counsel, Senate of Canada: It is my great pleasure to appear before you today to share my thoughts on Bill C-2. As the Chairman pointed out to you, I am here with my assistant, Me Michel Patrice, whom you know as a parliamentary counsel.
I distributed to you a copy of my written presentation which is about 15 pages in length. My opening remarks today, which will take under 15 minutes, are taken from that longer presentation.
Bill C-2 is so vast that with respect to many of its components I have no particular knowledge or expertise. However, I do have knowledge regarding conflict of interest and ethics in a Senate context, regarding the privileges, immunities and powers of the Senate and senators and with respect to legislative drafting.
I will approach the bill from these perspectives under the headings of Constitutionality, Implications of the Proposed Administrative Structure for the Senate Ethics Regime, Implications of the Proposed Conflict of Interest Act for Parliamentary Privilege, and Miscellaneous Matters of Policy, Drafting and Interpretation.
I begin with the issue of constitutionality. I believe that the subject matter of conflict of interest and ethics within the Senate is well within the federal legislative power. I believe that the parts of the bill that touch on these matters are constitutional in the sense that they are within the powers of the Parliament of Canada to enact them.
With respect to compliance with the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms, I note that the government has filed its usual certificate of examination and has reported no inconsistencies.
With respect to the privileges, immunities and powers of the Houses and their members, which are constitutional in nature and are my particular concern, Parliament has the power to derogate from them by an ordinary act.
However, I will deal with the impact of the bill on the privileges, immunities and powers of the Houses and their members throughout my comments.
Let us now look at the proposed administrative structure for the Senate conflict of interest and ethics and its implications. Bill C-2 proposes to abolish the existing position of Senate Ethics Officer and to transfer the responsibilities of that position to a new Conflict of Interest and Ethics Commissioner who will also have responsibility for the ethics regimes of the House of Commons and the Executive Branch. The issues of ethics and public trust in our governmental institutions are of concern to Canadians. In his 2005-06 annual report, the Senate Ethics Officer reports that:
In Canada, we are witnessing a growing mistrust and lack of faith in our political, parliamentary and governmental institutions. Never before have ethics and governance been at the fore in this country as they are today. Canadians are demanding change and improvement in this area and, fortunately, we are seeing a response to this demand. Addressing this call for change is critical. It is fundamental to the proper functioning of democracy that the citizens of a country have confidence in, and respect for their institutions of government.
In the same report, the Senate Ethics Officer quotes Prime Minister Harper as saying:
No aspect of government is more fundamental than having the trust of its citizens.
I now turn to the main question that the government and the House of Commons have placed before you. Should there be a common officer for ethics in the federal public sector or should the Senate continue to have its own ethics officer?
The answer to this question can apparently vary, depending on when the question is asked and the perspective of the person answering. The government, from its perspective, has concluded that the public interest would be best served by a single officer.
As your Law Clerk and Parliamentary Counsel and an officer of the Senate, my duty is to advise and assist you in protecting your autonomy and independence and the hard-won parliamentary privileges, immunities and powers on which they rest. From that perspective, I prefer that the Senate have its own Senate Ethics Officer.
As senators, your duty requires you, in the public interest, to both promote public trust in government and the Senate and preserve the autonomy and independence of the Senate. Your choices will therefore come from that wider perspective.
The case to be met by those promoting Bill C-2 was expressed by Senator Milne in the Senate on April 30, 2003, when, as chair of the Senate rules committee, she explained the first of her committee's recommendations, that each of the Senate, the House of Commons and the executive should have its own ethics officer.
Speaking for the committee, she said:
One of the key themes that ran throughout your committee's work was the need to recognize that the Senate is a constitutionally independent institution in Parliament, with a distinct purpose and culture. The mere fact that senators are appointed rather than elected demands that ethical rules be framed from a different perspective. Your committee strongly believes that one ethics officer with divided responsibilities and divided loyalties could not properly serve this institution. The only way to ensure that the ethics regime could properly reflect reality in the Senate would be to have our own ethics officer.
Here are some general questions I ask myself with respect to the proposal in Bill C-2. What exactly are the attributes of a regime run by a single ethics officer that will enhance accountability and public trust in the integrity of government? Will the Senate and individual senators be better served under the new regime? Can one officer manage three distinct codes and regimes for three separate institutions that are in close contact and sometimes in conflict?
Having asked these wide-ranging questions, I now turn to some technical points concerning the proposed regime.
I begin with the appointment mechanism. Clause 28 of the bill would enact a new subsection 81(1) of the Parliament of Canada Act. This subsection would replace the existing section 20.1. On any reading, this mechanism carries with it a certain loss of legal control by each House over its own internal affairs. Each House will have to coordinate the selection of a commissioner with the other House.
Furthermore, while the language of the proposed subsection 81(1) seems to reflect that of the existing section 20.1 with the necessary modifications, its substance may not when read in the new proposed factual context.
Specifically, I wonder whether the proposed provision leaves the door open for a national leader sitting in the House of Commons to claim to speak for that party's senators.
I move from the provision for appointment to those for removal. Subsection 82(1) allows the commissioner to be removed for cause by the Governor-in-Council on address of the Senate and House of Commons. A requirement that each House obtain the concurrence of the other to remove its ethics officer is a logical corollary of the fact that the officer serves both Houses. However, the provision does represent a loss by each House of legal control over its own internal affairs.
The removal provision raises in my mind questions of process. Will each House be expected by convention to automatically concur with the requests for removal by the other? If not, how will one House go about satisfying the other about misconduct by the commissioner in the management of its affairs? Will the decision regarding cause be reviewable by the courts? Will it make a difference if the cause relates to the conduct of the affairs of a House or the affairs of the executive government?
The issue has arisen in the past with respect to whether an ethics officer should have legal qualifications. In my written presentation, I note that any course of action recommended by an ethics officer to a senator must be legal to be ethical. How to ensure legality is the question.
Next, the proposed regime raises the issue of how the new commissioner will manage the commissioner's office. One problem with examining a proposed new office is that there is no incumbent to explain to senators how it will work.
Section 90 of the amendments to the Parliament of Canada Act at page 48 of the bill allows the commissioner to delegate all powers, duties and functions of the commissioner except the power to delegate. This power to delegate seems to include the power to delegate the performance of the duties and functions assigned by the Senate. If the effect of a delegation is to deprive the Senate and individual senators of the personal judgment of the commissioner on a matter, senators might not always wish for the delegation to occur.
Should each House be given the power to restrict the commissioner's power to delegate with respect to the affairs of that House? The delegation power raises the question of the likely administrative structure of the commissioner's office. The very size of the commissioner's mandate suggests that he or she might name assistant commissioners — for example, one to take the lead in administering each of the three main functions: the Conflict of Interest Code for Senators, the House of Commons code and the Conflict of Interest Act for public office-holders. An assistant commissioner for the Senate might even be called the Senate conflict of interest and ethics officer, the Senate conflict of interest officer or the Senate Ethics Officer.
If naming an assistant commissioner for Senate affairs seems like a reasonable likelihood or even a possibility to you, do senators want to have a guaranteed role in the selection, appointment and removal for cause of that officer?
Finally, the proposed legislation affects the Senate by removing for all time its ability to subtract itself from the new arrangement without the consent of the House of Commons and so, effectively, the government. If the proposed legislation is adopted, the onus for all time will be on those who want to modify or amend the new regime to make their case for change. Senators might wish to consider a mechanism of some sort, whether transitional or permanent, that would allow the Senate to withdraw itself from the arrangement should it prove to be unsatisfactory, after reasonable notice but without the consent of the House of Commons or the government.
I turn now to the proposed conflict of interest act and its implications. The proposed act is a codification of what has generally been known up to now as the Prime Minister's conflict of interest and post-employment code for public office-holders. It is contained in Part 1 of the act and occupies pages 1 to 33.
I invite you to look to subsection 64(2) of the proposed act found on page 32 of the bill, which provides:
Subject to subsection 6(2) and sections 21 and 30, nothing in this Act abrogates or derogates from any of the privileges, immunities and powers referred to in section 4 of the Parliament of Canada Act.
Clearly, subsection 64(2) amounts to recognition that subsection 6(2) and sections 21 and 30 of the proposed act are intended to abrogate or derogate from the privileges, immunities and powers of the Houses and their members. This provision, in turn, requires you to consider whether you really want to do that. More particularly, are you prepared to take the risk that you might subject the proceedings of the Houses to judicial review?
What are the privileges, immunities and powers of the Houses and their members that are brought into play? I once heard former Speaker, Gilbert Parent, of the other place describe parliamentary privilege as the right of members to attend, to speak and to vote. I would add that a member's House has the corresponding right to the member's attendance, advice and vote. I would also add that because of article 9 of the Bill of Rights, 1689, the Houses have the right to have their proceedings in Parliament immune from judicial review.
An additional concern that arises out of section 21 concerns those public office-holders who are public servants. Since subsection 64(2) provides that section 21 operates in derogation of the privileges, immunities and powers of the Senate, will section 21 constitute a lawful excuse for a senior public servant who is a public office-holder to refuse to testify before a Senate committee when the public office-holder is in a conflict of interest?
In conclusion, I invite honourable senators to consider whether the words "Subject to subsection 6(2) and sections 21 and 30" as they appear in subsection 64(2) of the proposed conflict of interest act as they appear on page 32 of the bill might require the addition of a provision to prohibit judicial review.
I now turn to subsection 44(5) of the proposed conflict of interest act on page 25 of the bill, which concerns the treatment of information received by a parliamentarian from a member of the public. The provision appears to derogate from a senator's freedom of speech by preventing the senator from speaking in the chamber in the circumstances described. My written presentation asks certain questions about the operation of that provision. I also draw attention to subsection 44(6), which complements subsection 44(5) and provides for the commissioner to report to the Speaker —
Senator Cools: Mr. Audcent, can you speak a little bit more slowly, because it takes us a second to turn the pages and find the sections?
Mr. Audcent: Excuse me, senator; I am almost at the end — and provides for the commissioner to report to the Speaker where a senator fails to comply with the confidentiality provision. We are at subsection 44(6). I raise a question concerning the Speaker's role and the possible need for direction from the Senate.
Finally, honourable senators, my written presentation raises several miscellaneous issues concerning the policy, drafting and interpretation of Bill C-2.
On the policy front, there were provisions where senators will wish to consider the role assigned or not assigned to the Senate and senators. One example is the selection of the parliamentary budget officer; another is in the selection, appointment and removal of the director of public prosecutions. A third is in the selection of members to the public appointments commission.
On the technical front, there are several areas in the bill that need correcting, some provisions for which further explanation is needed and even one question of protocol.
That concludes my opening remarks, senators, and I would be pleased to answer your questions.
The Chairman: Thank you very much for a comprehensive presentation. Your written report is 15 detailed pages and I know that you gave us only the highlights so we will have to study in more detail in our own time. Thank you for this overview. I would like to begin the formal questions with Senator Joyal.
Senator Joyal: When the bill was debated in the other place, the law clerk of the House of Commons tabled a report specially dealing with the issue of the secret vote in Parliament that was amended accordingly by the other place. The report also raised issues in relation to parliamentary privileges, and recognized rightly as you did that Parliament can abolish privileges or organize their use in a way to limit them.
The law clerk of the House of Commons drew the attention of the other place to some of the implications of the bill in relation to the privileges of the House of Commons. As you know, according to section 18 of the Constitution, the Senate enjoys the same privileges and immunities as the other place.
Can you comment on the recommendation that was made to the other place on that issue and, in your opinion, why the recommendation that he made was not acted on — for what reason was it not acted upon or given effect by the other place?
Mr. Audcent: Honourable senators, I read the written presentation of the law clerk of the House of Commons to that House. I also read his appearance before that committee, so that is the knowledge base on which I am proceeding.
There was a question of whether the law clerk had said that the bill was unconstitutional. I think a good starting point is to say that you have to understand that, unfortunately, the words "constitutional" and" unconstitutional" have to carry a little bit too much freight.
In one sense, the word "constitutional" means intra vires or ultra vires — within the power of Parliament to enact it. In another sense, it can apply to the synchronicity of our constitutional values — for example, respecting the division of power between the executive and the legislature.
I think it is important to make that distinction, which is why I began my presentation with that subject, to say that I think at least the portions of the bill that I have examined and am reporting to you on to do with a new ethics regime are within the power of Parliament to pass.
That is fine, but the next question is, do they derogate from the privileges, immunities and powers? I think in my report I indicated to you that with respect to the proposed ethics regime, if you go to a regime in which you have one officer, you are losing a certain amount of control over the nomination and removal of that officer. You lose a certain amount of control over your internal affairs, so it is a derogation from your privileges, to that extent.
I also point out in my analysis with respect to the proposed conflict of interest act that three provisions are expressly said to derogate from the privileges, immunities and powers of the Houses. In my written presentation I go through an analysis of those three provisions.
If you say to a minister, "Minister, you cannot vote," and if that minister sits in the Senate and you say to that senator, "Senator, you cannot vote," effectively you have said to a member, "You have lost your right to vote," and you have said to the House, "You have lost the right of the vote of that member." Yes, there are derogations, but is it within the power of Parliament to do this? Yes, it is.
Senator Joyal: In the context of an improvement of the present system of ethics that is enforced in each House of Parliament, are there any arguments that would lead one to conclude that this proposal will, in fact, give a more efficient performance of public duties of senators?
Mr. Audcent: It has been hard to find the reasons for proposing the merger of the two ethics offices into one. If those reasons are reasons of efficiency, in terms of economic efficiency, you have had representations from Mr. Shapiro, Mr. Wilson and Mr. Fournier on that subject, and you can draw your own conclusions.
If the question is, will the merger be more efficient from the point of view of administering ethics for senators, I think you have heard the testimony from Mr. Fournier and the other two that indicate that you will have less personal contact. While you may have less personal contact with the new commissioner, that new commissioner will have assistants, in order to do the job. Presumably you will have contact with the assistant commissioners: Someone must talk to you.
Senator Day: Not necessarily.
Senator Cools: They are servants of the Crown. They may not have to talk to us. Many ministers do not.
Senator Joyal: Last night, in the questioning of our witnesses, Bernard Shapiro and former commissioner Howard Wilson, a question was raised by Senator Austin, and we raised it today in our proceedings in relation to section 43 of the act. Section 43 states, and I will read it because not everyone may have it:
In addition to carrying out his or her other duties and functions under this act, the commissioner shall:
(a) provide confidential advice to the Prime Minister including, at the request of the Prime Minister ... with respect to the application of this Act to individual public office holders and provide confidential advice to individual public office holders ... with respect to their obligations under this Act."
In the following section, you have section 44(7), which provides that the commissioner must inform the Prime Minister about the report.
How would you interpret that section in relation to the privileges and immunities of senators whereby it seems that prima facie a prime minister might want to ask for an opinion or request information from the commissioner about a senator. Do you see that as an intrusion into the immunities of the Senate as an independent chamber from the other place and from the executive government?
Mr. Audcent: If I begin with section 43 of the proposed act, which was Senator Joyal's starting point, it states that the commissioner "in ... carrying out his or her ... duties and functions under this Act." In this context, "this Act" means the Conflict of Interest Act, which governs public office-holders shall "provide confidential advice to the Prime Minister, including on the request of the Prime Minister, with respect to the application of this Act to individual public office holders."
"Individual public office holders," as I understand it, applies to persons in the public service. It applies to ministers and parliamentary secretaries, but not to senators. That is my understanding of the interpretation.
The section goes on to state, "and provide confidential advice to individual public office holders with respect to their obligations under this Act." My understanding there is that the commissioner would provide confidential advice to persons who are ministers.
This reference in section 43 is clearly to persons carrying out executive functions. I do not think it is a reference to persons carrying out parliamentary functions. It is limited. The reference does apply to some parliamentarians, but it applies to those parliamentarians because they accepted executive functions, and it applies to them as they carry out their executive functions. That would be my understanding of the starting point in section 43.
Section 44(7) says:
The commissioner shall provide the Prime Minister with a report setting out the facts in question, as well as the Commissioner's analysis and conclusions in relation to the request. The report shall be provided even if the Commissioner determines that the request was frivolous or vexatious or was made in bad faith or the examination of the matter was discontinued under subsection (3)."
I think we are speaking about the facts in question that tie back to the request in section 44. It may be that the language in section 44(7) could be tightened up to satisfy senators, but I think a good faith interpretation is that what we are speaking about is providing information to the Prime Minister about complaints about ministers.
Senator Joyal: How do you refer that to sub-paragraph (5) of the same section?
Mr. Audcent: Subsections (4) and (5) of section 44 are raised in my written brief. I think that their language is problematic in that they need to be rewritten from a language point of view.
Section 44(4) states that the commissioner may receive information from the public that a member of the Senate or the House of Commons brings to the commissioner's attention.
We then go to subsection (5), which requires the member of the Senate who receives the information not to disclose that information to anyone else. I view that as being slightly problematic from a factual point of view. You have imposed a confidentiality provision on a member that you have not even imposed on a member of the public. A member of the public can go to the press about it when the Member of Parliament cannot, which does not make much sense to me:
If the member brings that information to the attention of the Commissioner under that subsection, the member shall not disclose that information to anyone until the Commissioner has issued a report ... in respect of that information.
That is the limitation of the privilege of a member, because it simply says that you cannot raise a matter in the chamber. I have a problem with that. The intention is to provide confidentiality for the information.
Senator Joyal: I understand, but in my reading of that section it had an impact on the exercise of parliamentary privilege. One of the key parliamentary privileges is freedom of speech.
Mr. Audcent: Absolutely.
Senator Joyal: The key to the Canadian Bill of Rights is freedom of speech.
Mr. Audcent: I agree with you.
Senator Joyal: Here is a very important element. As you mentioned, with this bill a parliamentarian, whether a member of the House of Commons or the Senate, would have less right to speak about an issue than a member of the public outside the chamber, which is normally the reverse.
Mr. Audcent: I agree with your analysis. I approached it slightly differently but I made the same point in my written presentation.
Senator Joyal: On the issue of referring the matter to the Speaker of the Senate or the House of Commons in the following paragraph, I have some problems with this, frankly, because as much as I remember, when we debated the issue of the code we wanted to keep the Speaker outside the code.
The Speaker presides over the debates and deliberative function of the chamber but, as much as possible, is not to be involved in issues related to ethics of senators or members of the other place. This section is a departure from that, because I do not see how that would be acted upon. Once the commissioner makes a complaint to the Speaker that a senator has not respected confidentiality, the Speaker must act. The Speaker cannot just say "thank you" and leave the complaint on the desk. That complaint must be acted upon because there is a breach of a statutory obligation. To me, it is puzzling that the Speaker is involved in what I would call the action that would be expected from a statutory obligation. This is not the code. This is a statutory obligation that a parliamentarian will have from then on. As you said in your presentation, when it is enacted, it is like any other statute. Any parliamentarian will have to comply with this.
Mr. Audcent: I agree with that comment. The section is problematic. Once again, I looked at it from a slightly different eye, but I saw the same problem. I asked the question: If we impose this obligation on the Speaker, do we have to adopt some sort of internal rules to tell the Speaker what to do and what the Speaker's obligations are? Certainly the Speaker will want to know. In particular, keep in mind that the Speaker of the Senate is not in the same position vis-à-vis members as the Speaker of the House of Commons is. The Speaker of the Senate does not have the confidence of the Senate. The Speaker may have the confidence of the Senate, and I am not suggesting the Speaker does not, but, as a matter of law, the Speaker is a nomination from the government. The Speaker is not elected by peers.
Senator Joyal: I was tempted to bring the Speaker into the debate, because I know he holds strong views on this: views that I share, to a point.
It puzzles me to leave the section as is without framing the action that is expected from the Speaker once that statutory obligation has been breached by a member of any of the two Houses of Parliament.
Do you know any precedents or any other legislation whereby a statutory obligation that is not respected or violated would be reported to the Speaker of one or the other House?
Mr. Audcent: I cannot think of a precedent offhand. The principle of law that I would keep in mind is that the commissioner is supposed to be an independent officer. Once we say "independent," we are speaking outside the institution, even though we say the commissioner carries out their functions within the institution of the House. Therefore, normally the role of a Speaker is to speak for the House. The Speaker is the person through whom messages are sent and received. When I read this section, I thought the drafter might have had that in mind.
The Chairman: Senator Joyal, two senators want to ask supplementary questions on this question, and then you can continue.
Senator Cools: Thank you, Mr. Audcent and Mr. Patrice, for your presentation.
I am bothered by that particular clause. In addition to the question that Senator Joyal raised, which is a very important question, namely, the business involving the Speaker, I want to ask about another word. In the forth line of the proposed section 44(6), it states:
... the Commissioner may refer the matter, in confidence, to the Speaker of the Senate or House of Commons.
This sort of thing, Mr. Audcent and colleagues, shows that the drafters of this legislation do not understand Parliament or any of the Houses, because "refer" in Parliament means an order of reference, an order of the Senate. In this clause, I would like to know how the commissioner would purport to get an order of reference to send the matter to the Speaker and get it in confidence. It has to be dealt with, because "refer" in our language means something very specific.
Mr. Audcent: The French have an expression, "faux-ami," for things that are close but do not mean quite the same thing. I do not think "refer" here was intended to mean an order of reference. If I look on the French side, I see, "il peut soumettre." The senator's point is well taken. Since the word "refer" is so close to the words, "order of reference," perhaps another English word could be found. It is a rich language.
Senator Cools: They do not mean "refer"; perhaps they mean "inform."
Mr. Audcent: Essentially.
Senator Cools: That must be dealt with. Particularly in today's community, every few weeks or month we get bills now that order this report or that thing be referred to committees. We will clarify that. That tiny point needs to be clarified.
Senator Milne: Senator Joyal is making the points that I wanted to make. However, one concern is that subclauses 44(6) and 44(7) actually appear to invite the Prime Minister, the government, into the Senate. This invitation completely breaks down the separation between the House and the Senate.
The report shall be provided even if the Commissioner determines that the request was frivolous or vexatious ....
My second concern is the word "remis" in the French version in subclause 5 that Senator Fraser mentioned last night.
Mr. Audcent: With respect to the first question concerning the proposed subsection 44(7) and whether it brings the Prime Minister into the Senate, at present two ministers sit in the Senate. That would be the extent. It is with respect to their executive duties. The Prime Minister is entitled to run the cabinet in exactly the same way that the Senate is entitled to run its senators. We already know from the structure of this entire regime that people who accept to be cabinet ministers will accept to be subjected to two regimes. They will be subject to the Senate regime in their capacity as senator and the cabinet regime in their capacity as cabinet ministers. Does it bring the Prime Minister into the Senate? It does, only so far as senators accept to be ministers. Perhaps it could be better worded, but that is another issue.
Senator Milne: What about the French version of subclause 44(5)?
Mr. Audcent: I have not looked at that question, and I am not picking up on it quickly enough to give you a proper answer, so I will have to come back on that one.
Senator Milne: I will let Senator Joyal handle that one.
Senator Stratton: I would like to go to subclause 44(6). It is my understanding that this subsection was amended in the House of Commons on the advice of the Law Clerk of the House of Commons. It was done so deliberately to protect the independence of the Senate. That is my understanding.
Senator Day: It was to protect the independence of the Senate?
An Hon. Senator: Run that by me again.
Senator Stratton: Subclause 44(6), which allows for the commissioner to refer a matter that has failed to comply with the confidentiality provision, was amended in the House on the advice of the Law Clerk of the House of Commons.
The Chairman: Mr. Audcent, are you familiar with that? Are you able to comment on that at all?
Mr. Audcent: I am unable to comment on that.
The Chairman: Mr. Patrice?
Michel Patrice, Parliamentary Counsel, Senate of Canada: I am unable to comment on that.
Senator Cools: We should thank the House for looking after the Senate for the first time in their history.
Senator Joyal: When we read sub-section 44(6) of the proposed Conflict of Interest Act, if that should stand as is, should we not look into the proposed section 86(3) in the amendments to the Parliament of Canada Act? That states:
The commissioner shall carry out those duties and functions under the general direction of any committee of the Senate that may be designated or established by the Senate for that purpose.
That is found on page 47 of the bill.
If a senator must be sanctioned for the breach of a statutory obligation, it is not the Speaker who really would act, it is the committee, according to the present rules that are enshrined in the code. The House retains the authority to sanction a senator and not the Speaker. When we discussed this point, the philosophy of the code was to keep the Speaker out of it as much as we could. We even added a section of the code that provided for that. I think mixing the two roles of the Speaker or making the Speaker part of the disciplinary process is a Pandora's box.
Senator Cools: It is not good.
Senator Joyal: If the commissioner was of the opinion that a senator had breached or violated their responsibility under a statute, instead of referring the issue to the Speaker, should the commissioner not refer the issue to a committee of the house? That approach seems to be much more logical with the practice that we follow in terms of disciplinary issues and in full protection of the status of the Speaker, as other senators have mentioned. I think it is dangerous to approach the issue of involving the Speaker in an issue whereby the Speaker would be part of the process of evaluating the conduct of a senator and acting on the sanction there.
Mr. Audcent: Honourable senators, I come back to the point that I made on how I understood the section, which is that I viewed the legislation, the section and the intention of the drafter as being that the matter would come to the Speaker of the Senate because outside people deal with the Senate through the Speaker. We do not open up our internal affairs. The idea is that the matter would come to the Speaker.
I make the point in my written presentation — and the Senate would want to consider the provision before adopting it — how, internally, we would deal with this provision if it were enacted. For example, you might put a rule in the Rules of the Senate, the Conflict of Interest Code for Senators, which would say that as soon as the speaker receives a notice under section 44(6), the Speaker shall refer it to the internal economy committee. That is something within our internal power of the Senate and not something that belongs in the statute. That is how I understand it. Of course, it is within the power of the Parliament to say where in the Senate it will go. The issue is: Is it necessary or can Parliament simply indicate that it will go to the Speaker of the Senate and the Senate will decide where it goes from there?
Senator Joyal: You mentioned internal economy. I think it is a lapsing committee.
On the issue of parliamentary privilege, we have debated that issue of the capacity of a senator or a member of a Parliament not to vote and not to speak and abstain. I think you may remember the debate we had here. How many senators around this table have taken part in that debate? I do not want to restate the arguments but for the purpose of an important issue, which deals essentially with the prime function and role of a parliamentarian, especially in the Senate, which is to give advice and consent, this is our constitutional duty. We are called here to give our opinion to speak freely, to debate and then to consent, which is to say "yes," "no" or "but." Depriving a senator of the constitutional duty for which he or she is called to this chamber and the privileges and immunities of that senator is a serious constitutional intervention.
To maintain, as much as possible, the constitutional duty of the senator, is there really a need for that senator not only not to speak but not to vote? Why deprive and suspend that senator from their responsibility to act in that case? I strongly believe that when a senator stands up and expresses and declares a conflict of interest, the senator signals to the other senators the reasons for which he or she will not take part in the debate. It is registered in the Journals of the Senate. We have a procedure now, and Mr. Chair, you will remember it clearly. The clerk must register that act in the Journals of the Senate so that everyone knows that this senator has abstained but the constitutional duty was affirmed; in this provision, we just wipe it out. That is a serious decision to take. How do you evaluate that aspect of the proposal?
Mr. Audcent: Perhaps I can start with the reference I made to Speaker Parent and tell you again. It is a nice way to say it and understand. Parliamentary privilege is the right of the member to attend; the right of the member to speak; and the right of the member to vote. The converse of that is the right of the House to the member's attendance, which we expressly put into our rules recently; the right of the House to the advice of the member; and the right of the House to the vote of the member. That is parliamentary privilege. That is the core of it.
You are talking about provisions in the proposed Conflict of Interest Act. The Conflict of Interest Act has provisions that do not apply to senators. However, the provisions apply to the members of the executive. However, some senators become members of the executive and we are grateful for it. We are grateful that the Leader of the Government in the Senate is a cabinet minister; I presume there is a general consensus on that. These people, by becoming members of the executive, come under a different regime, the Prime Minister's regime, which is his own code right now. The Prime Minister is now asking to put that into law and make it a code. The Prime Minister is indicating that when it comes to his ministers, he does not want them to be able to speak or vote and he would like you to put that in the law. You are questioning if this is a derogation from parliamentary privilege. Yes it is, and the act specifically says so: It says other than these three sections, which are the ones you are talking about. They admit it is a derogation from parliamentary privilege. You must decide whether that should happen.
The Senate usually has one cabinet minister: presently there are two cabinet ministers. The House of Commons will have 30 cabinet ministers that might be at risk at any given time. The risk for the House of Commons is significantly greater than the risk for the Senate. However, the risk for the Senate is still there. It is a matter of principle. Will you derogate from the right of your members to speak? Will you derogate from the right of your members to vote? Senator Joyal said it is a serious issue. I agree that it is a serious issue and one that must be answered. The Prime Minister has said that if someone is his minister, he does not want them to speak or to vote.
Senator Cools: May I have a supplementary question?
You just articulated the wishes of a prime minister, that he does not want his member or his minister to speak or vote. At what point is a person a minister and at what point is he or she a member? The privileges of Parliament do not apply to ministers; they apply to members. My understanding is that the Prime Minister has control over that part of the person that is minister but not the part of the person that is member. Does this respect that difference?
This is a very sad thing in a way. It is unfortunate that this difference is no longer comprehended. If you will recall, that is how Mackenzie King defeated Arthur Meighen. Up to that time, MPs who became cabinet ministers had to resign as members and run again in their constituencies. There was that moment in the process where if Arthur Meighen's fellows were ministers, they could not be members; if they were members, they could not be ministers. It was a very critical issue, and Mackenzie King won. Some of the areas receive very little attention. However, my understanding is that there is a huge difference between that person — for example; the Bill of Rights applies to that individual as a Member of Parliament, but not to that same person as a minister. Another set of privileges kick in as minister. Unfortunately, no one is thinking through these differences, but they are huge. Could you comment on that, please?
Mr. Audcent: Honourable senators, I would like to begin by completing my answer to Senator Joyal, simply because it ties in and it is something I forgot to mention. The Senate itself has imposed limits on voting in the Senate, so it is not as if this cannot be done or it is unprecedented. What is being asked has been asked before by the Senate of its own members.
When we turn to the proposed conflict of interest act, it says:
No minister of the Crown, minister of state or parliamentary secretary shall, in his or her capacity as a member of the Senate or the House of Commons, debate or vote on a question that would place him or her in a conflict of interest.
Who is speaking? Parliament is speaking. The Senate because the Senate will have voted and consented for this bill if that is the result, will be saying do not vote. The House of Commons will be saying do not vote. Both Houses are saying do not vote. The government has asked you to adopt this provision. Is it an important provision? Yes. Do you need to think about it seriously? Yes.
Senator Cools: We are thinking about it seriously.
Senator Day: I only have one question, and it relates to the beginning of your presentation. It seems to me you said there should be amendments and you talked about a protocol. I did not understand what you were talking about there. I am sorry. If you could clarify that for me, I would appreciate it.
Mr. Audcent: Honourable senators, the presentation that I gave you is made up of four component parts including constitutionality, the impact on the Senate ethics regime, issues coming out of the proposed conflict of interest act and miscellaneous matters of policy, drafting and interpretation.
Senator Day is asking about a particular provision that I raised where I found what I considered to be an issue of protocol. It is in clause 67 of the bill, found at page 66, amending the Lobbyists Registration Act. The definition of "department" in paragraph 2(c) of the Financial Administration Act refers to "the staffs of the Senate, House of Commons, Library of Parliament and office of the Senate Ethics Officer and the office of the Ethics Commissioner" because of clause 7 of the bill at page 36. Subparagraph (b)(1) of the new definition of senior public office-holder seems to include the Clerk of the Senate and the Clerk of the Parliament as a senior public office-holder. The act already contains the definition of public office-holder that includes senators.
As a matter of protocol, I find it inappropriate for the clerk to be called a senior public office-holder in the same act that calls senators public office-holders. The hierarchy reflected in this terminology does not reflect Senate culture.
The same comment applies to the fact that deputy ministers, associate deputy ministers and assistant deputy ministers will be called senior public office-holders in the same act in which senators are called public office-holders.
Senator Day: I appreciate you bringing that to our attention. We will want to think about that.
You gave us a very comprehensive review. You focused on the area that we are studying at the present time. You said because this is such a vast bill, you are concentrating on a certain area. We will be looking at other areas including the Lobbyists Registration Act, conflict of interest, access to information and political financing, as examples.
Have you had a chance to review the bill, and do you have comments with respect to others that you might want to come another time and give us information when we are dealing with those specific sections of the bill?
The Chairman: Senator Day, I am not so sure that is why the witness was asked here today.
Senator Day: I think you are quite right.
The Chairman: If he did have comments later on, maybe it would be more appropriate to give him an opportunity to refresh himself on those particular sections, such as lobbying or whistleblowing, whatever it happened to be, and to come back again. I am not sure it is fair to put that to him now.
Senator Day: I agree with you wholeheartedly. Perhaps I put my question poorly.
My question is: Does he have ideas, comments or possible direction with respect to other sections if we were to invite him back at another time to give comments on those? Is this all you want to talk about ever?
Mr. Audcent: Honourable senators, how could I say no to the opportunity to spend time with you?
Senator Campbell: That is the right answer.
Mr. Audcent: Honourable senators, part four of my presentation, which is called Miscellaneous, does go beyond the area of the proposed conflict of interest act. There is material in there that goes into other parts of the act, items that I could not help but pick up.
I think I have presented to you on the area in which I have particular knowledge, which is ethics in the Senate and constitutional implications. For now, I think you have what I have.
I am always at the disposal of any senator who wants to ask a question about a particular section of the bill. Having a specific question to answer would make my job that much easier because it would tailor the size.
Senator Day: I appreciate that. We know we can always call on you, and we appreciate you being there, you and Mr. Patrice, to help us when we need it. If there are any other concerns you wanted to get off your chest, we will give you a chance at another time.
Senator Milne: Mr. Audcent, I want to ask you the question I had asked you previously. Perhaps you could do a written presentation for this committee on the French translation of clause 44(5), whether that agrees with what the English translation says.
Mr. Audcent: I will report to you, Senator.
Senator Cools: Mr. Audcent and Mr. Patrice, are you ready to comment on the question that Senator Stratton had raised to Mr. Fournier and Mr. Fournier's response? If you are not ready now, we would be glad to have you back. Please turn to page 27 Part 4, entitled Administration and Enforcement, Mandate and Powers of the Commissioner of the proposed federal accountability act. I would like to discuss proposed sections 50.1 and 50.2.
Mr. Audcent: Honourable senators, I must admit that this particular problem had escaped my attention, but you had a rather fulsome discussion with your last witness, and I can shed some light on the issue as I see it. I would like to begin with the current Parliament of Canada Act because that is your starting point.
In the current Parliament of Canada Act, section 20.5(2), reads as follows:
The duties and functions of the Senate Ethics Officer are carried out within the institution of the Senate. The Senate Ethics Officer enjoys the privileges and immunities of the Senate and its members when carrying out those duties and functions.
We see that provision. Then we see the following provision in section 20.6(1):
The Senate Ethics Officer, or any person acting on behalf or under the direction of the Senate Ethics Officer, is not a competent or compellable witness in respect of any matter coming to his or her knowledge as a result of exercising any powers or performing any duties or functions of the Senate Ethics Officer under this Act.
The complementary provision, subsection 2, reads as follows:
No criminal or civil proceedings lie against the Senate Ethics Officer, or any person acting on behalf or under the direction of the Senate Ethics Officer, for anything done, reported or said in good faith in the exercise or purported exercise of any power, or the performance or purported performance of any duty or function, of the Senate Ethics Officer under this Act.
Your starting point is that your existing law for your existing officer has both provisions. You might ask yourself why, and I can think of two answers. The first one is I would have a doubt whether you can have the privileges and immunities of the Senate and its members during a period of dissolution. It may be that a court would interpret this statute to say that during a period of dissolution the Senate Ethics Officer continues to have privileges, immunities and powers, but since the senators and the Senate do not have them during a period of dissolution, there seems to be a gap period there. The second thing is it has never been understood that the privileges of Parliament are a defence in criminal law. They will not be used in criminal law. Then you go to section 20.6(2), which says that no criminal proceedings lie against the Senate Ethics Officer.
As Senator Stratton so rightly pointed out, in section 20.5(2), you have your fundamental protection that you are working within the Senate with its privileges, immunities and powers, and then you have additional statutory protection provided in section 20.6, which would apply during periods of dissolution and which could apply to criminal proceedings. That is how I view the existing law.
Now, when we come to the Conflict of Interest Act, it has nothing to do with Parliament; it has to do with the public office-holders over on the executive side. They get the statutory provision, and that is the provision that the new ethics commissioner would have.
When you go to the parliamentary side, all we have are the privileges and immunities of the Senate, but for some reason or other, the statutory provision that might apply during a period of dissolution, the statutory provision that protects against criminal proceedings, has disappeared.
Now, I am sure that there are good reasons for the government to do that, but at this point, I have to tell you that I do not know what they are. I have laid out as much of the problem as I can identify for you.
Senator Cools: Mr. Fournier was right in his observation.
Mr. Audcent: That he has less protection, I think so.
Senator Cools: Something is missing.
Senator Milne: If I can do a scenario. My husband and I are going to be married 50 years in two days. Suppose tomorrow I decide to divorce him during the period of dissolution of the Senate. Could the Senate Ethics Officer then be compelled by my husband Ross to disclose my personal financial information during a period of dissolution because it is no longer protected? It seems to me this was put into the Senate code to protect senators.
Mr. Audcent: My instinct is telling me the answer to that is no, and I have to find the reason. Senator, rather than holding up the committee, allow me to report back to you on that one as well. I hope it does not happen for the next 48 hours.
Senator Oliver: Look at page 48 and proposed section 89.1 of the Parliament of Canada Act, regarding the use of personal information.
Mr. Audcent: Thank you, senator. That would be a good application of that section in this situation.
Senator Cools: Since it turns out Mr. Fournier was correct on that point, perhaps we might want to have him back for a few minutes to continue whatever it was he was developing. We are now standing in the situation where his testimony is incomplete. Perhaps we might have him back for a few minutes, in fairness, I think.
Senator Joyal: Mr. Audcent, last night we had Mr. Shapiro and his presentation, and one of his points was the clarification of the status of parliamentarians as public office-holders. There is a reference to sections 119 and 121 of the Criminal Code.
Mr. Wilson, who was testifying at the same time, raised the decision of the Supreme Court of last July, in the case R v. Boulanger, which involved a police officer who appealed to the Supreme Court in relation to his status as public office-holder and the conflict of interest. He was under a charge of having breached his public duty and having probably given a benefit to someone. In his opinion, Mr. Wilson concluded from the judgment of the court that the court has circumscribed the definition, considering that parliamentarians are subjected to a code of ethics and Conflict of Interest Code.
It would be of benefit for the whole of this committee if we could get from you an interpretation of that decision, since it was raised, as you will remember, by two witnesses last night. That has an impact on the issue of conflict of interest and the limits of the responsibility that parliamentarians are accepting when they are elected or appointed.
Would you care to look into that decision and come back to us with an interpretation?
Mr. Audcent: I would very much like to do that, honourable senators. You have just given me another chance to place on the record the great concern that I have about the fact that the courts have extended the interpretation of the meaning of the word "official" in the Criminal Code to include parliamentarians, an interpretation which is, I think, palpably incorrect. You are not "fonctionnaires," to use the French term. I hope that one day parliamentarians will see fit to correct that interpretation. I have not yet looked at the impact of the Boulanger decision on this, but I would certainly be delighted to do that.
Senator Cools: Perhaps we should correct that.
The Chairman: I would like to thank you, Mr. Audcent and Mr. Patrice, for coming here today. As usual, your testimony and evidence and explanations were helpful and useful.
It is a pleasure to welcome our next witnesses, the Honourable Coulter Osborne, Integrity Commissioner of the Province of Ontario, and the Honourable H.A.D. Oliver, Conflict of Interest Commissioner with the Province of British Columbia.
In Ontario, the commission advises MPPs on how the Members' Integrity Act of 1984 affects them in their day-to-day activities. His office also reviews the annual financial disclosure statements filed by all members to assure compliance with the act. In addition, the commissioner has the power to investigate complaints received from one MPP regarding the activities of another MPP. The commissioner is also involved in the process for determining MPPs' compensation and reviews expenses of ministers, parliamentary assistants, their staffs and opposition leader and their staffs with respect to travel and hospitality.
Mr. Osborne has served as commissioner since 2001. Previously he practised law and was appointed to the Supreme Court of Ontario in 1978. During his tenure in the Supreme Court of Ontario, he was appointed the Commissioner on Inquiry into Motor Vehicle Accident Compensation in Ontario in 1987. Mr. Osborne subsequently served on the Court of Appeal from 1990 and in June 1999 was appointed the Associate Chief Justice of Ontario. He was, I should note, a member of the Canadian Olympic basketball team at the 1956 Melbourne Olympics.
In British Columbia, the conflict of interest commissioner performs three separate but related roles. First, he acts as the adviser to members of the Legislative Assembly so that members know what their obligations are and whether the steps they have taken or propose to take will fulfill those obligations. Second, he meets with each member at least annually to review the disclosure of the member's interests and general obligations imposed by the act. Finally, the commissioner undertakes investigations and inquiries into alleged contraventions of the Members' Conflict of Interest Act or section 25 of the Constitution Act.
Mr. Oliver was appointed Conflict of Interest Commissioner in 1997. He is a World War II veteran and a member of the B.C. and Alberta bar associations. While in practice, he became a leading trial and appellate counsel. He has occupied many distinguished positions during his extensive career including fellow of the Chartered Institute of Arbitrators, member of the national council of the Canadian Bar Association and governor of the Association of Trial Lawyers of America. Prior to his appointment as Conflict of Interest Commissioner, he served on the Vancouver County Court and then on the Supreme Court of British Columbia.
The Honourable Coulter A.A. Osborne, Q.C., Integrity Commissioner, Ontario's Office of the Integrity Commissioner: I had not contemplated making a formal presentation. I can provide you with an outline of how the process works.
The Chairman: That would be very useful.
Mr. Osborne: As you know, the requirements imposed upon members in Ontario are in statutory form in the Members' Integrity Act, 1994. Before 1994, I believe from 1988 until 1994, members' obligations having to do with conflicts and so on were in the form of guidelines. I have always thought it important to the workings of the act that the members themselves constructed the act; it was not imposed on them.
Representatives from each of the three parties sat around a table and hacked out the proposed act on a section-by-section basis over a period of about 18 months, I am told. As certain sections were discussed and either agreed to or not agreed to, the representatives returned to report to and get the advice of their caucuses. At the end of the day, there was this somewhat imperfect but certainly better-than-nothing act called the Members' Integrity Act.
The fact that it was a product of the members themselves has been very helpful with attitudinal issues. The members accept the act. They accept its modest flaws and they seem quite willing to abide by it provisions, which, in some cases, are rather onerous. For example, members are obliged to disclose their spouses' or partners' assets, income and liabilities. After filing private disclosure statements, which occurs each year in September, each member must meet with me to discuss the disclosure statements. We might also discuss the second game in the World Series or what is happening in the riding. The requirement to meet does have the benefit that the members know me and I know the members. We have may have other contact throughout the year as well.
All of that is to the good, although I did not think so in the beginning. I started in September, and since I knew virtually nothing about how the office ran, one of the first things I did was meet with each member. It takes some doing to schedule 103 appointments, but at the end of that session five years ago I felt better about my relationship with the members and my relationship with the position I occupy as well as about the proper workings of the act.
In Ontario, as you pointed out, under section 28 of the act, members may seek the advice and opinion of the Integrity Commissioner. The act also permits a member to file what is commonly called a complaint about the conduct of another member that is alleged to have constituted a breach of the act.
We do not have provision in the act for complaints from the public. On those few occasions when a member of the public does complain, we tell that person about the provisions of the act and suggest that he or she go to see another member, obviously of a different political party, and voice the complaint and see where it goes. I am not sure how that has evolved. I do not think I have received many complaints originated in the public domain, but I am not entirely sure of that.
In the course of the year there are, roughly speaking, 500 requests from members for advice and opinion. These are confidential unless the member himself or herself is willing to divulge the contents of the opinion, which they frequently do if challenged.
The Chairman: Is it compellable?
Mr. Osborne: No. Opinions are entirely confidential; they are not producible under freedom of information legislation. There was some concern about whether an opinion given to a minister that became part of a ministerial file would be compellable at the minister's end, though it would not be at my end. However, it was recently confirmed that the opinion would not be producible under freedom of information legislation.
To the extent that I report to anyone, it is through the Speaker. Although the legislation does not refer to the Speaker, it is through that vehicle that I report to the legislature.
More recently, I accumulated a number of areas of the act that I thought could benefit from amendment. It was a fairly long list with some items more important than others, as anyone would expect. I thought the best way to proceed with that was to ask each of the parties to send a delegate to a meeting room and we would sit down and discuss the amendments, much in the same way as they originally sat down and discussed the creation of the Members' Integrity Act. That process has been completed and I am awaiting word from the joint meetings of the three parties as to how they will proceed with the amendments.
As an example, one amendment that I suggested is that the definition of "member" in the act, which is an important definition. The definition ought to be expanded. There can be circumstances where a member of the executive council, for example, is not a member of the legislature. That happened when Mr. Eves was the Premier of Ontario but technically was not a member of the legislative assembly until the by-election. Things like that require some change and I expect that may occur this fall, and if not this fall, next spring.
It is important to note that my office benefits from its smallness. I do not have the exact figures on its budget because it is merged with the lobbyist registration, but it is less than $1 million. It is $700,000, I think. I have a senior executive assistant who has been with the office from the time Greg Evans was the commissioner. She is still there and, as I said in the annual report, she is about as indispensable as anyone can be. There is a woman who audits or checks the expenses of those covered by the Cabinet Ministers' and Opposition Leaders' Expense Review and Accountability Act, a woman who answers the phone and a part-time person who deals with technical, computer-related issues. That is it.
The Chairman: How many hours a week do you work?
Mr. Oliver: It depends. My terms of engagement are that it is a full-time job and I am there every day. If I am required, I am accessible by BlackBerry or telephone. The work flow is not even. I have no control over it. Yesterday, for example, there was a question that arose about a conflict in terms of whether members of the legislature who were lawyers should be entitled to sit on a committee dealing with the regulation of paralegals, which will be assumed by the Law Society. Were they disqualified by the fact that they were members of the Law Society? It turns out most of the committee members are lawyers, so that the destiny of the committee was engaged.
The members themselves are satisfied with the manner in which the office operates. As I have pointed out on other occasions, 98 per cent of requests for an opinion are turned around within 24 hours. Once in a while you get a request for an opinion where you have to find out what the real facts are, but the vast majority are turned around in 24 hours.
There are relatively few complaints. The last time I spoke to a committee of the Senate — some will remember — I perhaps laid forth a doomsday scenario in terms of the number of complaints. That was in a pre-election period and complaints were flying into my office every week. That has changed significantly. The number of requests for advice and opinion has increased significantly; the number of complaints about breaches of the act has decreased. I have one now and this calendar year there was one other one that led to a recommendation of reprimand. That was addressed by the legislature itself in due course after the report on the subject was filed.
That, in a very skeletal form, is the way it works in Ontario. I am not suggesting that that could be transplanted here, but I only have to deal with 103 members. That is enough. They only have to deal with me. We know each other. That my independence is respected by all concerned is, to say the least, an advantage.
The Honourable H.A.D. Oliver, Q.C., Conflict of Interest Commissioner, British Columbia's Office of the Conflict of Interest Commissioner: May I first apologize to all for not producing great learned screeds. I received your invitation to appear here when I was in St. Petersburg recently and was too busy at the Hermitage to pay attention to your invitation.
However, here I am back again, bright-eyed and bushy-tailed. All I can do is offer you whatever assistance 10 years on the job may serve. Before that, I had some experience in the field as chairman of the discipline committee of the benchers of our Law Society and as a long-time member of the provincial judicial council where we dealt with allegations of dubious behaviour by members of the provincial judiciary. I hasten to say that they were few and far between.
What is it that in fact we do in British Columbia? I receive from members, on behalf of themselves, their wives and their children living at home a detailed confidential disclosure statement running at some 40 pages, coordinately coloured so that they do not get them mixed up, but they still do. They make these disclosures in complete confidence for themselves and their families and also in respect of any controlled or private corporations that may be involved.
I then interview them at least once a year each, and their wives as well, if available. Recently, a member who had been elected in a by-election saw me at home because that was convenient. I live in Vancouver; he was a member for a Vancouver riding. I said to him, "I would like to see your wife." She worked not too far away and came around, rather hot under the collar, and said, "Why do I have to be interviewed? I am not the member." I said, "For two reasons: first, because the statute says so, and second, to help me to determine whether you are an asset or a liability." We have been good friends ever since. Now, what else do I do?
I receive requests from members for formal opinions. These must be in writing and a formal opinion results. In nine cases out of 10, I write them myself. If the material is of great complexity, or if I am so loaded with work that it will be some time before I can get around to it, I retain outside counsel who, at enormous expense, will produce a rather less effective opinion than I might have done myself, but these things are necessary.
I operate on a shoestring. I have a staff of 1.6 FTEs; that is to say two ladies who job share one appointment as administrative assistant and one lady who is my research officer, who works three days a week. I am theoretically a half-timer. My workweek is anywhere from 20 hours to 80 hours; it is always either feast or famine. I am always available.
The Chairman: Do you have someone on your staff who reviews the financial statements with a financial or accounting background?
Mr. Oliver: No. My research officer has some financial background. If the matter is one of complexity, I bring in a chartered accountant as a consultant. However, normally people who go into political life in British Columbia are not endowed with enormous wealth, present company always excepted.
Senator Campbell: Thank you, my lord.
Mr. Osborne: We manage. Following the interview, we produce a public disclosure statement that runs into about three pages. That statement is an explicated version of the public disclosure statement. I delete from it things which I do not think it is necessary for the public to know and add things which a member might have inadvertently forgotten to disclose prior to our interview.
It can happen that during the interview I might ask the member a question which shows him or her that I am not entirely dependent on what the member discloses for my information. This may jog the member's memory and a public disclosure statement results, which may be seen in the office of the clerk, copies being available on payment of a reasonable fee.
Those are the formal opinions. Members may also request an opinion about the conduct of any other member. Those result in a report to the Speaker, which is a public document. The formal opinion given to the member himself or herself is not a public document unless the member wishes to make it so. I also do opinions on request for cabinet or for the house as a whole or at the special request of the Lieutenant Governor.
Members of the public can complain to me directly. We have no filtration process by which members of the house can determine whether the complaint, perhaps about a member of their own party, is of such significance that the conflict commissioner should be troubled with it. We free them from that responsibility by having people come to me directly. That produces a steady flow of complaints, many of which obviously are based on the failure by the complainant to understand the nature of the legislation under which the complaint is made. For instance, I might get a complaint saying, "My nephew Charlie has been refused security of tenure at such and such a college. Instead, that has gone to Joe Blow, who is a cousin of the dean's. Would you please investigate that?" Be all this as it may, I make myself available to all complainants — every citizen who writes to me or phones me or comes to see me gets an interview. I feel that there are far too many occasions in public life where people are given the brush-off by people in office. I am determined that my office should not be part of that problem but part of the solution, so I will see them all — however ludicrous the complaint may appear.
I explain to them, in some cases, why there is no basis to it, or I refer them to the ombudsman or the Auditor General or legal aid or whatever. I find that everybody goes away reasonably satisfied.
I conduct inquiries and investigations but these are few and far between because the vast majority of my time is spent in confidential sessions with members, giving them advice on a totally off the record and confidential basis. This is not the same as the formal opinions I write for them.
On occasion, a member will ask me for a formal opinion. I will ask to see the member and we sit down for half an hour. At the end of that time, I say, "do you still want a formal opinion?" He says, "No, thank you very much." I do not understand why that may be. During these interviews generally, I do not tell people "yes" or "no" as a rule. Much more frequently, I will try to provide them with a different perspective on the problem. I will say, "I quite understand what you are saying. Have you thought of looking at this through the eyes of an investigative reporter from The Province, or if you were seated on the other side of the house and this came up, would you remain seated or would you be up on your feet at question time — always remembering that it is question time and not answer time."
I have found the confidential advisory role the most effective part of my job. This has come to be the norm with us and the more confidential interviews we do, the less complaints we get.
What else can I tell you? I told a couple of members that I was coming here. They were apparently under the impression, as to which I disabused them, that I was the coauthor of the Oliver-Milliken report. I said "No, no, that is a greater one than I."
There has been much talk about codes of conduct. I am no believer in codes of conduct. I do support the idea of judicial qualification for this job, not necessarily written into any statute but embodied, if you will, in a statute of common sense as a desirable qualification.
The Chairman: What should the word "qualification" mean?
Mr. Oliver: First, to me, the word "quasi" is meaningless. Quasi means whatever the speaker wishes it to mean. I mean service on a bench, some bench. It could be a provincial court. It could even be the Federal Court. I am talking about trial courts at any level.
Senator Oliver: What does that bring to the job that you both do?
Mr. Oliver: It brings the ability to think like a judge. I will differentiate between that and thinking like a lawyer. Some of you may remember Professor Kingsfield on that television series and how he tried to explain the difference between the two ways of thinking. While thinking like a judge, I speak of the ability to disabuse my mind when I have heard certain allegations of fact which I have ruled inadmissible for various reasons. I think that someone without judicial background may have some difficulty in performing these mental gymnastics, which we have all learned to do.
I do not believe that this appointment should be seen as a possible career step. I am thinking now of the independence which is so essential to the effective functioning of a conflicts commissioner. I do not think you should be in a position where if you do your job well, you might look forward to high judicial office, even appointment to the Senate. I think that judges on appointment are too old to go to the Senate anyway. I think it should be a culmination of your career. There should be nothing in the gift of the government of the day which could possibly influence you even subconsciously. I feel strongly about that.
When I say that I make a distinction between that and thinking like a lawyer, the bane of my existence consists of people, not necessarily lawyers, but frequently people with legal training, who, upon a complaint being filed, will try to explain to me why technically this does not fall under the statute at all.
I have spent about half a century trying to decide what is legal and what is illegal, and I am absolutely enchanted to find myself in a position where for once I can decide what is right and what is wrong. That is where I make the distinction between thinking like a judge and thinking like a lawyer.
You had discussions and evidence about whether there should be a conflict officer for the Senate or a combined functionary dealing with both Houses and which, according to my calculation, amounts to approximately 3,670 public office-holders. My predecessor Ted Hughes, who many of you will know, had, on three occasions, reported to the house in his annual report in Victoria that they might consider bringing under the commissioner's umbrella deputy ministers, senior public servants, directors of Crown corporations and elected public servants. The house decided against that. I was warned when I was offered the appointment that they might change their minds. I said, que sera sera or words to that effect, and it did not happen. Since that time I have had a steady flow of deputy ministers, directors of Crown corporations, chief constables, and mayors from cities other than Vancouver, come along for off-the-record discussions. If I have time, I will sit down with them and tell them, "I cannot advise you, but I can give you a different perspective on the problem. We can look at it together and then you must decide what you want to do, but you cannot say that H.A.D. Oliver told me to do this."
The one exception I made to this was a situation where a chief constable faced with a public disclosure by a mayor or candidate of possible criminal conduct wanted to know what he might do, bearing in mind that the individual might very well become head of his police commission. I said, "I think you would have a conflict of interest. Dump the whole mess in the RCMP's lap." That, in fact, was done. Whether that was a popular decision or not, I have no idea, but I am not into popular decisions in any event.
I do not know whether I would want to look after a couple of thousand people. I am sure I could not handle them in the same way in which I manage the job at the present time. My distinguished friend, the former ethics commissioner for Alberta, said very rightly that ideally this job should be 90 per cent priest and 10 per cent policeman. I think that is right. The dispute now seems to be between those who want him to be priest and those who want him to be archbishop. I divide our political masters on this issue into the Presbyterians and the Episcopalians.
I do not see how you can possibly do this job effectively if you have all the thousands of others to look after. I quite see the argument in favour of an overall head of the ethics system. I would be very reluctant to hold that position if it meant advising the members of this house or the members of the other place. I would be most reluctant to undertake a job that would be so very different from the job that I have found to be effective for me in British Columbia.
Thank you, Mr. Chairman.
The Chairman: Mr. Osborne and Mr. Oliver you both have had distinguished careers as lawyers and judges. Mr. Osborne, what is your opinion as to what qualifications there should be and whether your experience as a lawyer and a judge has helped you in your career? Do you think that a background in the judiciary is necessary for the work that you both do?
Mr. Osborne: I think my experience as a lawyer and a judge has helped. The learning curve is less steep. Of that, I have very little doubt. However, I have some reservations about the qualification issue. First, the question that comes to my mind is, should these qualifications, as referred to in this bill, be in statutory form? Are those qualifications appropriate? If the answer to either question is no, then they should not be there.
I feel that although a retired judge or a lawyer may have an easier time figuring out which end is up when starting the job, to suggest that no one else is qualified seems to me to lack proportionality, so I have some concerns about that. A good example, who Mr. Oliver mentioned, is the conflict commissioner in Alberta, now retired. He was highly respected by his peers, his colleagues — I am one of them — and by the members of the Alberta legislature. He was a former member of the legislature. He was neither a lawyer, nor a retired judge, and I do not think anyone could fairly state that he did not discharge his responsibilities fairly and competently during the lengthy period that he was the commissioner in Alberta. I have some reservations about putting this in statutory form. It could well be that as a job qualification factor, judicial experience, quasi or otherwise — I do not know what that means — would be viewed as an asset when the time comes to look for a commissioner. However, I have reservations about the statutory language that is used.
The Chairman: Thank you very much. I do appreciate that answer.
Senator Baker: First, it is a privilege to have both of you appear before the committee. You have remarkable careers in law that everyone knows about and they can look up your cases any day on Quicklaw.
I agree with Mr. Oliver concerning the term "quasi-judicial." The Prime Minister used the word "judicial" when he first announced the initiative, and then the second term used was "quasi-judicial." Then many of us thought about the fact that cabinet ministers have a quasi-judicial function. That has been defined in law. That would mean that a cabinet minister would qualify under the definition of quasi-judicial. That is certainly something that the Prime Minister did not intend to bring into the legislation. I think Mr. Oliver is right in that you must have a capacity to exercise mental gymnastics. That is a very good description.
Mr. Osborne, you mentioned a definition change that you think should be made in your particular legislation, and that is the definition of "member." I wonder whether that is because a member of your legislature could initiate a complaint against another member of the legislature and then that complaint, or a record of it, as I understand it, goes before the assembly. A complaint from the executive council would go directly to you, you would investigate it and the answer would go back to the executive council without it appearing before the assembly. When I read your act the first thing that struck me was the definition of "member," but there is no definition there, is there? Is that what you were referencing?
Mr. Osborne: Senator, there is a provision in the Members' Integrity Act to permit that complaint initiated by the executive council to occur. It never has occurred. One of the issues on my list of amendments was to clarify whether such a complaint would be confidential, either at its outset or in respect of the report issued further to the complaint.
The definition of "member" itself was really triggered by Mr. Eaves, who was the Premier of Ontario and not a member, and that was a useful example. There were also issues arising from what happens to a complaint against a "member" who resigns or what happens in respect of a complaint against a member who is defeated in the next election, both of which examples have occurred. I asked the members to look at those types of issues.
Senator Baker: Both of your acts, in British Columbia and in Ontario, have the same provision in them respecting a request from the executive council. It goes to you and then it goes back to the secretary, as I understand it, the clerk of the executive council. That provision is not here in our legislation. In other words, you have a cabinet sitting and a cabinet coming to a conclusion and perhaps the commissioner should investigate a member of the cabinet. The reference goes to the commissioner. It is not made public. It does not appear before the legislature. It comes back to the clerk of the executive council. I cannot see in your acts what happens to it after that. Where is there a requirement for you to issue a report on it? There is no requirement in your act to issue a report on those requests and the substantive nature of those requests.
Would you suggest that would be a good addition to this act and why would you suggest that would be a good addition, or would it be a bad addition?
Mr. Osborne: Giving access to the executive council to ask that certain questions be answered, whether they are a form of complaint or a request for an opinion at that level of analysis, I would equate the two. I think that could be useful, although I hasten to add once again they never have been used. It has never happened, at least in Ontario. If the executive council wants to complain about the conduct of some member, then I think the Ontario act needs clarification. I agree with your point as to what happens to it. Am I required to inquire into it? What public powers would I exercise, and most important, what happens to the report issued responsive to the complaint? It is not clear in the act.
Senator Baker: Before Mr. Oliver answers the same question, we note that the British Columbia act differs from the Ontario act and Bill C-2 in one respect when it comes to your investigation. In this act and in the Ontario act, it spells out that if you came upon something that you had reasonable grounds to suspect would violate an act of Parliament then the matter would be referred, in the case of Ontario, to the police. It says, first, "the relevant authority," and then in the next paragraph it says, "when the police investigation takes place."
In our bill, it simply says "to relevant authorities" but later on defines that as new director of public prosecutions, and Parliament determines who that person will be. It does not go to the police, I presume.
Why is that section missing in British Columbia? Is it because, as you said before, in British Columbia you do not have to deal with such things as members who get involved in criminal activity?
Mr. Oliver: I was going to say that. You have to remember this: In British Columbia we had ministerial guidelines but no act at all. Then Mr. Vanderzalm, whom you may recall, got himself involved in an unfortunate situation at night with a brown paper bag and a large quantity of small bills in a parking lot.
Ted Hughes, my distinguished predecessor, was appointed Royal Commissioner to chair a commission of inquiry. I think he concluded after about two days that he really needed a statute. Within a matter of a very few weeks, we had a statute, and we have it still.
I appreciate that spending 32 years on the job may result in a more thorough piece of legislation, and I must apologize on behalf of British Columbia if a rush act is not up to your standards.
Senator Campbell: He is a lawyer.
Senator Baker: Under this act, it will be referred to the office of a new director of public prosecutions, and a committee of Parliament will choose the director. The office will be composed of Crown prosecutors who presently prosecute federal acts such as the Controlled Drugs and Substances Act, with which Mr. Oliver is probably very well-acquainted. I do not mean that in any derogatory sense. Excuse me, Mr. Chairman. I am sorry. Mr. Oliver has a long history dating back to the 1980s of coming up with some very great defences that are used today concerning that act. Mr. Osborne used some of those defences when he was on the Ontario Court of Appeal.
I would like to have both of your opinions. I know perhaps you are not prepared to have to do this, and you did not come here expecting to have to do this, but this is such a dramatic change in this act. It is saying that a commissioner will refer the matter to the director of public prosecutions. If the director of public prosecutions determines that a charge should be laid, then a charge will be laid. In other words, the director of public prosecutions under the act has the power to initiate as well as carry out prosecutions. What do you think about the word "initiate" as we are giving the director of public prosecutions in this legislation?
Mr. Oliver: I have tried for half a century to persuade successive attorneys general of British Columbia to institute an office of public prosecutions for the province, but I was like the voice of one crying in the wilderness. Frankly, I have some difficulty in understanding the sudden urgency of a federal director of public prosecutions whose jurisdiction would be limited, after all, to what I still know as the Narcotic Control Act and the Income Tax Act. It may be necessary; it may not be necessary. Provincially, I have always felt it was very necessary to take the politics out of the system. As to the wisdom of it as far as conflict legislation is concerned, that I leave to my colleague who is much more learned than I am.
Mr. Osborne: The Ontario Members' Integrity Act uses somewhat benign language. The threshold requirement is that I would be conducting an inquiry as opposed to initiating an inquiry. If I, in turning over some of the rocks, determine that there may have been criminal behaviour, the act provides that I am required to report that fact to the appropriate authorities, whoever they may be.
Senator Baker: Yes, but in the next section it says "police investigation."
Mr. Osborne: You are quite correct. It follows,
... the Commissioner shall refer the matter to the appropriate authorities and suspend the inquiry until any resulting police investigation has been disposed of, and shall report the suspension to the Speaker.
I think that may be the only reference in the act to the Speaker.
Senator Baker: There is no other way you could get it to the assembly without going through the speaker.
I understand your point that the Speaker is not in your act, but what is in your act is that it must be presented to the assembly. I suppose you would have no other way of presenting it to the assembly except through the Speaker.
Mr. Osborne: That is right.
Mr. Oliver: Arising out of that, a similar issue arose during one of the only major inquiries I have had to conduct, where the RCMP then started an investigation as well. We have no provision in our act to discontinue the commissioner's inquiry. I took the position, having some recollection of criminal proceedings — preliminary hearing, trial, some attempt to stop the trial, an appeal, a new trial — it can be years before such an issue is determined by the criminal courts.
Are the people of a province, or of Canada, to be compelled to wait for years under the government of perhaps a criminal whilst the case winds its way in its usual leisurely manner through the criminal justice system? That is a problem I have identified with all the jurisdictions that require suspension of the commissioner's inquiry if there is a criminal inquiry.
I do not know what the answer is to that, but it should not be, in my view, a rule that the commissioner's inquiry stops dead at this point. I can see in certain circumstances that, from a public interest point of view, the commissioner's inquiry is more important than the guilt or innocence of a legislator.
Senator Baker: Certainly you could not have parallel inquiries going on or a police investigation going on at the same time. Yours is the only province that does not have, to my knowledge, that requirement. Mr. Osborne, your province does, Ontario.
Mr. Oliver: Most of them do.
Senator Baker: Yes, they do. However, you are advocating just the opposite.
In this bill, it gives the commissioner five years after he becomes aware of the facts to start proceedings. Do you think that should be in this bill? Do you have five years in your act in which to contemplate whether you are going to start your investigation?
Mr. Oliver: I have no time limit at all. On the other hand, I think that being seated on the pot for an indeterminable period does not serve anybody well. One must act accordingly. All I am saying is there should not be a hard and fast rule.
Senator Baker: Could Mr. Osborne comment on the requirement that is in this bill that proceedings may be commenced five years after the commissioner becomes aware of the event taking place? I am not saying this is a strange piece of wording because it is in the Environment Act and in the Fisheries Act. However, the terms in those statutes are 18 months or two years. This is five years after the commissioner becomes aware of the complaint he or she can start an investigation. In any case, it cannot be 10 years after the occurrence of the event.
What do you think of that given that what you are investigating would be comparable to something like a summary conviction offence under the Criminal Code which has a restriction of six months?
Mr. Osborne: I was not aware of those quasi-limitation periods. I would have to understand the context. I do not know what the purpose of those requirements would be.
It goes back to the question of whether the commissioner should have the power to initiate a complaint. I do not have that power. I respond to a complaint. That leads into a whole panoply of concerns about one person being the investigator, prosecutor and decider of issues. That is another area.
I have never sought to have original jurisdiction to initiate a complaint. I have a slightly different view than my colleague, rare as that may be, in the context of police investigations. In section 32 of our act, if I determine there is a police investigation I must suspend my inquiry. I endorse that, and in fact, I have suggested that section should be expanded and not limited to the police. I used as an example that if there were an ongoing Ontario Securities Commission investigation into a particular matter, or any agency or border commission having jurisdiction of that sort, it seems to be quite inappropriate if I am blundering around on the same terrain.
Senator Baker: Because yours is compelled testimony that you are receiving and it cannot be used in a subsequent proceeding.
Mr. Osborne: That is right. If I am issuing reports about the conduct of a member which could have criminal implications or other implications like Securities Act implications, then fair trial rights are implicated.
Senator Baker: You have not answered whether or not you think the commissioner in this bill should have five years in which to commence a proceeding. That is what is in the proposed legislation.
Mr. Osborne: The length of time startles me, but there must be a reason of which I am unaware.
Mr. Oliver: I am guessing as to the reason for that. Take a hypothetical case with political implications where the government of the day does not cooperate in the investigation. Five years from now there is likely to be a different government. Could that be the reason? I do not know. When I speak of the government of the day, I am not suggesting any particular government. I will limit myself. I do not vote at all in elections.
The Chairman: Thank you very much for that.
Mr. Osborne: That was one of the reasons that there were discussions about amending the act. Some members expressed notes of caution with respect to the executive council's ability to initiate an inquiry. The fear was that after an election the executive council would initiate an inquiry as to the conduct of a previous government's cabinet. There is more to be heard on that subject as these matters are discussed.
Senator Campbell: We are in the presence of greatness. I am sure that Mr. Oliver did vote for me as Mayor of Vancouver. Just so that I can come clean, if you think you are old, I had two writs of assistance under the Food and Drugs Act and the Narcotic Control Act. I have known Mr. Oliver for 35 years. In fact, I remember the first time I met him. When you are finished with Mr. Oliver, if you did not win it was referred to as being "had" as in H.A.D. He "had" me on a number of occasions.
British Columbia is more advanced than any other province in Canada. I saw the shaking of heads when there was a 40-page document that is filled out by the people who report to Mr. Oliver. I think that goes to the nature of British Columbia. We do it right up front and then it continues. That is one of the reasons, as Mr. Oliver said, that he has an infinite amount of wide ranging information on each person. Because of the respect that he has, they can come to him and he is familiar with all of it. How much do we fill out in the Senate? Three pages, perhaps. What does it really say? The British Columbia document is very extensive.
Mr. Oliver, what is your budget?
Mr. Oliver: I am guessing it is somewhere around $350,000. I do my best every year to come in about $40,000 or $50,000 under budget because I think that sets a good example to other people in the public service. Appearing last year before our budget committee, I was the only person who did not ask for an increase. I said that I was contemplating asking for a decrease, whereupon I received a number of furious telephone calls.
We operate on a shoestring out of the old stables of the Lieutenant Governor's Foot Guards at the back of the legislature. It is a humble place, but stables habitually are humble places.
Senator Campbell: Not bereft of single malt, though.
Mr. Oliver: That is true, too.
We really operate on a shoestring, and I think that is a good thing. I am not a public servant in the ordinary sense of the word. I have been a taxpayer for infinitely longer than I have been conflicts commissioner, and I cannot forget that.
Senator Campbell: Would a chief coroner be considered a judicial officer? It is not that I am applying for the job.
Mr. Oliver: You get a lot of ball players sitting on the bench. However, I do not know that is what is intended. I do not know what is meant by "quasi-judicial." Quasi-judicial is whatever the speaker intends it to mean. I think that a coroner would be at least as well qualified as any other type of quasi-judicial official.
Senator Milne: Mr. Osborne, it is good to see you again. I was looking back through your testimony before the Rules Committee in June of 2003. You pointed out that the Ontario system is entirely statutory based. It is a rules-based system rather than a values-based system.
Mr. Osborne: Yes. It is statutory and, to a limited extent, it is a rules-based system. In the act there are certain "thou shalt not" provisions. As I said in June 2003, to the consternation of some, there is that over-arching provision in the Ontario act of parliamentary convention. If you breach provisions of the act or parliamentary convention, you are in trouble. That creates a more values-based system than the purely American kind of rules-based system.
Senator Milne: Mr. Oliver, perhaps you can tell me a bit more about the system in B.C. I gather that it is also statutory, but it seems to go beyond that.
Mr. Oliver: The only thing that is prohibited is acting while in a conflict of interest or an apparent conflict of interest, and "apparent conflict of interest" is carefully defined. It must be apparent to a reasonable, well-informed person. That is to say it is no use saying, "I read in such and such a newspaper that such and such happened." That is not what I call being well informed, depending on the newspaper.
Apart from that, we prohibit people from acting in the exercise of improper influence and a couple of other things of that sort. We have provisions prohibiting gifts and benefits, and that is it. We do not have a code of conduct. We do have people who come in and say, for example, "I have been offered free season's tickets to the hockey games; a seat in the executive box, a free cruise compliments of such and such a line. What do you think?" I might say, "I think you have a conflict of interest," or "You have an apparent conflict of interest," or "You may or may not have an apparent conflict of interest but there is this further question you may wish to ask yourself which I cannot ask you." They say, "What is it?" I say this: "Is it politically wise?" They say, "Ah, if you put it that way," and I say, "I cannot put it that way. I thought you might like to put it that way," and then they do not accept the gift.
That seems to work far better, to my way of thinking, than some elaborate code constantly amended to close loopholes as they appear as clever members of the bar devise them as they go along. As I say, I think I am there to distinguish between right and wrong. I have spent too much time in my professional life persuading people that black is white and white is black according to how I was paid. This is a new experience.
Senator Milne: You are telling us that you have a statutory-based system over which you have overlaid a values-based system.
Mr. Oliver: I think that is right. For 10 years I have had the most complete cooperation from all members of the house and from the leaders of both parties. We have only two; we cannot afford additional parties like some of the wealthy provinces. Without that, I would not get anywhere. The system runs well because the members make it run well. If you have a bunch of crooks in the legislature in your jurisdiction, no amount of conflict of interest legislation would deter them except, of course, this: The bill before you seems to me to some extent to create a paper tiger. I have the statutory right, after conducting an inquiry, to recommend to the house a penalty which may be a reprimand, a fine up to $5,000 — which I am trying to get increased — suspension, or a declaration that the member's seat be declared vacant. The house may accept my report or may reject it. They cannot tamper with it. That is to say that a government with a majority of one, for instance, could not say, "He has recommended a 60-day suspension. That will bring down the government. Let's substitute a fine." No.
This is a powerful weapon. It is one that has never been removed from its scabbard. I pull it out once in a while, grease it and put it back, but it is standing in the corner for all to see. I think it is desirable that a conflict commissioner should have that sort of power, rather like the sword hanging over the judge's head at the Old Bailey in London for those that have been to the central criminal court.
Senator Milne: That leads me to my last question. How would you react if the regulations governing your office were changed to force you to divulge, rather than to the legislature, to the premier of the province?
Mr. Osborne: That would destroy the whole concept of independence. I was appointed by a vote of the legislature and my understanding is that three house leaders — although I am not entirely sure how it worked — got together and pulled this name out of a hat and proceeded accordingly.
I have made only one concession to the office of the premier. In the time of my predecessor, these interviews were all conducted in his office, except for that of the premier. He went to see the premier in his office for the statutorily-required interview. I expanded that, but I did not believe the premier should be singled out, so I go to see the premier and the leaders of the two parties. The landscape is flat in that respect.
I believe that the independence of the office is critical to its operation. If you introduced the premier or any other member of the executive level of government into the equation, there would be trouble.
Mr. Oliver: If I were required to report to the premier rather than to the Speaker, if that is your question, I think you would see me outside applying for a job here in some clerical capacity. Of course, I would resign that same day.
For my interviews and so on, I call on the premier, on all cabinet ministers and on the leader of the opposition. Everyone else, including former ministers, comes to see me. We are not particularly stodgy about these things. Some of these people I see at home; some I see in their constituency offices. When the house is not sitting, I might travel to Penticton or somewhere like that and the various members in that area would come in and see me. Independence is absolutely vital. Without independence this job would be a mere sham.
Senator Stratton: With respect, Senator Milne, I would like to refer to proposed section 44(7) of the Conflict of Interest Act, which refers to public office-holders and not anyone else.
Senator Milne: Yes, it is page 25.
Senator Stratton: Yes, I realize that, because it refers to 43(a).
The Chairman: We will take a copy of the statute down to the two witnesses so they can see it.
Senator Stratton: It refers to 43(a).
The Chairman: Page 24.
Senator Stratton: Where it states:
provide confidential advice to the Prime Minister, including on the request of the Prime Minister, with respect to the application of this Act to individual public office-holders;
Senator Milne: That is a point I made earlier today in a question as well, Senator Stratton.
Senator Stratton: It is not as though he will get information.
The Chairman: Do either of the two witnesses have a comment on their interpretation of that clause?
Mr. Osborne: This deals with a public office-holder and a request to inquire into an alleged contravention. I am not familiar with the clause. What else happens to the report?
Senator Milne: After it goes to the premier or the Prime Minister?
Mr. Osborne: Yes.
Senator Milne: It is in his hands, I assume.
Mr. Osborne: Would it not be better that the report be filed with the Speaker and be made public, unless there are national security issues or something like that?
Senator Milne: That is another portion of the same proposed section 44.
The Chairman: Section 44(8) states, "...and make the report available to the public." You can find that on page 25.
Senator Baker: Perhaps, Mr. Chairman, the witnesses may want to respond in writing on that, because I think it is a bit unfair to have them comment right now.
The Chairman: It is a bit unfair. If you would like to comment later in writing with a brief note, that is fine. If not, that is fine as well.
Mr. Osborne: I would like to look at the context. At the moment, I do not understand why that is there.
Senator Baker: Exactly. You have to know the whole section.
Senator Day: We are still all struggling with the whole, so we can understand how you might have been taken a little off guard looking at one section here.
The important thing to keep in mind is that when you look at these numbers at the front end, you are not looking at numbers for the whole bill, but just for an act that is created within the bill. It is like a play within a play. A lot of these numbers just relate to public office-holders.
What the Prime Minister and the executive would like here is to have a statutory set of rules for public office-holders in the proposed conflict of interest act. That is what you are looking at in this front part. Then there is provision for the non-statutory code for members of the House of Commons and a separate one for members of the Senate.
Do you have a separate set of rules in either province, for the executive separate from the members of the legislature?
Mr. Osborne: No, we do not in Ontario and I am sure they do not in B.C. There is one set of rules. Some of the provisions of the Members' Integrity Act apply specifically to members of the executive council, so to that extent they are singled out. The requirements are quite clearly specified if they are peculiar to the executive council, but there is not a separate code or a separate piece of legislation or guidelines or anything of that sort.
Mr. Oliver: We have, I think, certain ministerial guidelines but these are really matters of internal discipline which are no concern of mine. They do not involve conflict of interest.
Senator Day: You talked about apparent conflicts of interest, conflict of interest and the unwritten rule that you apply. Leaving that aside, are the others in a statutory form or are they in legislative rule form? Can they be amended without going through a statute?
Mr. Oliver: Conflict of interest and apparent conflict of interest are defined in the statute. If you want to amend those, you have to amend the statute. Since that definition has been used pretty widely across the country, I think it unlikely that any change would be regarded as desirable. What I think would be desirable is for other jurisdictions to adopt the apparent conflict of interest rule, which not everyone has. However, these are political matters beyond my ken.
Senator Day: In British Columbia, do you have a set of general rules under which you interpret conflict of interest and apparent conflict of interest that fit in an overriding umbrella set of rules?
Mr. Oliver: It is like the rules of equity — as long as the chancellor's foot. Rules about common sense, how about that? We all tend to forget those. I do not think they should be left behind if one goes into public life.
Senator Day: How about Ontario?
Mr. Osborne: No. We publish in our annual report examples of questions that have been asked of members. They are anonymous questions and the answers to increase awareness of not only the members but also their staffs as to minefields they might encounter. No one set of written or unwritten guidelines exists.
Senator Day: We have had at least two witnesses in the last two days who have talked about the importance of when you have a set of rules written down, they are only as good as the lawyers that work their way around them. The witnesses said that it is important to have a general set of principles that will help in the interpretation of the rules. That is found in the codes that apply here to the Senate and the other code that applies to the House of Commons. However, when the Prime Minister's code changed from code form and is now easily changeable by the Prime Minister of the day, and is now in statutory form, those general principles have not been placed there. I am trying to determine whether it is inconsistent to have general principles when you start having a statutory type of set of rules as opposed to a code type of rules.
Mr. Oliver: There are two ways of handling general principles. One way is as a statutory enactment that places perhaps inordinate power in the person administering the act. The other is what I call a motherhood clause at the start of the act, not part of the act itself, stating the object of the legislation. I believe that to be a good thing.
I think the public understands that; I think new members understand that; and if there is any dispute at a later date as to what exactly the legislature or Parliament intended by such and such a section, one can turn to the motherhood clause and say, "there it is."
Senator Day: Let me talk for a moment about the independence and go back to that point, because I think that is critically important. I made note of your comment that independence is absolutely necessary on your job and the whole thing would be a sham if you did not have independence. Then you mentioned that you appeared — and I am speaking to you, Mr. Oliver — before the Budget Committee. Do you have to go before the same people that you are responsible for perhaps investigating, certainly advising, and ask for money?
Mr. Oliver: Oh, yes. It is their money I am spending.
Senator Day: Do you not find that puts you in a difficult position?
Mr. Oliver: No. I have never been refused what I ask. It has never been suggested that any of my requests have been unreasonable. I spend the public's money as though it were my own, which very largely it is, looking at my income tax return. I do not see any problem there at all.
Senator Day: They just tell you what you want, telling you to keep those good decisions coming down.
Mr. Oliver: Look, I say to them that the budget request presumes that we are not going to have any major inquiries in the coming year and if everyone conducts himself or herself properly, we probably will not have to have one. The cost of a major inquiry starts at about $250,000. If anyone wants to misbehave, they had better give me more money. It is that simple.
They have treated me very kindly. In bad years, when other people's budgets have been reduced, mine has remained untouched. In good years I have not asked for more.
Senator Day: How about you, Mr. Osborne, in terms of the independence of your position?
Mr. Osborne: Our budget is within the jurisdiction of the Ontario Board of Internal Economy. We submit a budget each year and it goes to the board that makes the decision on that issue. I have never been asked to appear before the board to justify it. I agree with Mr. Oliver. We are spending taxpayers' money and we have to be accountable to someone and I do not object to that structure. I do not think that erodes independence to a degree that is meaningful in all of the circumstances. As I say, I have never had a problem on the budget front.
The Chairman: Is that Board of Internal Economy made up of the same members to whom you give advice and direction?
Mr. Osborne: Yes, some of them.
Senator Baker: Is the makeup of the opposition and the government?
Mr. Osborne: Yes.
Senator Zimmer: Honourable gentlemen, thank you for your appearance today, and your wisdom, your counsel, and your levity.
Yesterday, we had two eminent professors here and I told them that upon reflection on their many years in university and their proximity to me I was nervous. Today, with two honourable judges, and with their proximity today again to me, although a different vocation in life, I am nervous again.
Senator Baker and Senator Day's questions sparked a question. It is a bit of a different slant, but it pertains to political donations and bids on government buildings. It has to do with the private-public partnership and private sector; a scenario where a company gave a large donation to the incumbent government and subsequently won a bid, fair and square, on a building, received a complaint from a competitor, although, again, won fair and square.
Have you ever encountered that, and if so how did each of you handle it?
Mr. Oliver: What I did have was a member who was running for the leadership in a leadership convention of an opposition party who received a cash donation from a trade union. He subsequently was defeated in a leadership bid, crossed the floor and became a government minister in a ministry dealing directly with that trade union. The same question was put to me, and I am not going to tell you my answer.
Senator Zimmer: With that, Mr. Chairman, I do not have any more questions.
Senator Cools: I do not have a question for you, but I just wanted to say something to you. I just wanted to say thank you for coming before us and for sharing with us your insights and your experience. I wanted to let you know that I feel a gratitude that you have come because I have a lot of doubts about these so-called processes and procedures, as they tend to create bureaucracies or the potential for creating bureaucracies that have the capability to engulf members, MPs.
I am greatly encouraged by what the two of you have had to say. In addition, to you, Mr. Oliver, I wanted to say I thank you for your humanity and for your more than 50 years of service and for the experience, the wisdom and the sagacity that has come to you and that you have shared with us. I identified and I understood what you said and what you meant when you said that you spent a lot of time deciding what was legal and what was illegal, and now you are dealing with that which is right and that which is wrong and that is a much nicer place to be.
To you too, Mr. Osborne, I really want to thank you because it has become very clear to me the devotion that you feel to your job. All I can say is that if, as these systems are implemented, we are fortunate enough to appoint persons such as you, then we will all be blessed. I thank you both for your devotion to public service and your devotion to your members. It is a very balanced approach.
Mr. Fournier, our Senate Ethics Officer, for whom I have great respect, said something very profound earlier here today. He talked about the importance of trust in the relationship between the ethics people, the personnel, commissioners, whatever you want to call them, and individual members. Members are asked to disclose very intimate details of their lives, which probably does not come very easy to them, so trust is a very important aspect and dimension to that relationship.
I just wanted to thank you for all of that. I do not know enough about the two of you, but I certainly will attempt to find out more. I wanted to say that because I have a host of questions but they can pass for today. I just wanted to tell you because I find these lights very hard on the eyes, so I was sitting back on the other side watching for a moment, and it has been a lovely experience listening to the two of you. Your appearance has been a blessing for all of us.
The Chairman: Mr. Osborne and Mr. Oliver, on behalf of the entire committee, I would like to echo the remarks of Senator Cools and thank you very much for coming. It has been appreciated by all of us.
The committee adjourned.