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EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, September 28, 1995

.1535

[English]

The Joint Chairman (Senator Oliver): I call this session of the Special Joint Committee on a Code of Conduct to order.

I'd like to extend a warm welcome to Mr. Mark Audcent and to Judy Davidson, general legal counsel for the House of Commons, to our session this afternoon.

It was our intention to have had a very brief meeting of the committee to approve some minutes of the steering committee prior to beginning, but we don't have a quorum here for that. If we get a quorum, then, if you don't mind, I would like to interrupt you briefly while we do a little bit of internal business, and then we will go back to you.

I should also say that the researchers for this committee have done an excellent job of preparing some questions for the committee. If, by any chance, we don't get a chance to ask you all of them today, then we would like to give you a copy, and we would be very happy if you would answer them and then get them back to the committee clerks with your responses. They've prepared some excellent questions that will really help our study.

[Translation]

Senator Gauthier (Ontario): Mr. Chairman, has Ms. Davidson changed her name? As far as I know, her name is not Judy, but Diane, unless she changed her name. In any case, it is indeed the person we met.

Mr. Chairman, you made a very important point. This committee does indeed have two excellent researchers. They prepared 24 questions for us that I have read and re-read, and that I found excellent. They will certainly help parliamentarians be more productive and better informed when they draft the code of conduct.

As for your suggestion of submitting the questions to our witnesses so they can reply in writing, I wonder if it would not be useful for the committee to draft a document based on the questions prepared by Ms. Young and Mr. Robertson and to circulate it not only to university professors, but also to provincial legislatures and to other parliaments that are similar to ours, such as Australia's, New Zealand's and England's.

I am currently reading book entitled

[English]

The Ethical World of British MPs, by Maureen Mancuso,

[Translation]

written by people who interviewed 100 or so parliamentarians. It is an excellent book.

In fact, we may get far more useful information if we asked members of provincial legislatures and other governments similar to ours, as well as university professors and perhaps even journalists to give us their opinion on the questions Ms. Young and Mr. Robertson prepared for us.

If you look at the questions, you will see there's enough material for a thesis and if we were to enlarge upon it, we would not have to sit too long in committee. We could just use the conclusions to draft our report to the House of Commons, which will prove useful when a code of conduct for parliamentarians is drafted.

My point is, Mr. Chairman, that we will spend several meetings listening to witnesses who will repeat what we have already heard.

So far I have heard Mr. Wilson and Mr. Sharp. They were both excellent witnesses, but I did not learn anything new because everything they said is in our research documents.

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If we want clarification on a testimony, we have to be able to refer to a source document. In my view, the 24 questions prepared by Ms. Young and Mr. Robertson, are an excellent starting point for a dialogue between the committee and the witnesses.

I certainly do not want to belittle the contribution of the two witnesses appearing today, since I am aware of their legal expertise and they might provide us with a specific point of view. My point is that we are faced with a broad challenge. We are to create a code of ethics and this can be interpreted to mean a code of conduct for parliamentarians.

My suggestion is therefore quite clear, Mr. Chairman. Could you not ask our researchers to prepare a document based on these questions. This document could be distributed to those concerned with a view to helping the committee reflect upon its mandate?

[English]

Senator Di Nino (Ontario): Are you suggesting that we should not hear the witnesses today?

Senator Gauthier: No, I'm not suggesting that. I'm just suggesting that our research staff -

Senator Di Nino: Yes, I know. I understood that.

Senator Gauthier: - which made a heck of a good contribution today -

Senator Di Nino: I agree.

Senator Gauthier: - should possibly put this together as a questionnaire to put to other authorities. I know what Ms Davidson and Mr. Audcent are going to talk to us about, but we could go on ad infinitum to ask them every one of these 24 questions and they would be here until tomorrow morning.

The Joint Chairman (Mr. Milliken): That's an excellent suggestion, Senator Gauthier. What we might do is have the researchers prepare this material and bring it to the steering committee and we could look at a draft in a form that is suitable for use, because this wasn't the intention of the document that you have, as you know. Maybe we could then proceed with that with some people who might not otherwise want to come and give testimony.

Senator Gauthier: My goal is this. I know that this could be a very lengthy process for many of us to go through. Once we have a reply, we could even send it to the members of the House of Commons and the Senate, for God's sake, and ask them how they would answer these things. Have they had an experience that would help the committee come to grips with some of the issues, or are there simply perceptions out there that they've had some problems?

My point is that once we get the results of this questionnaire, we could subdivide this committee into two or three subcommittees, which could specifically focus on certain aspects of our work, rather than having a general discussion every Wednesday or every Tuesday or every Thursday when we meet. I think it would be appropriate.

We've tried it with foreign affairs, and it worked well. The subcommittee system operates very well in this House, with the Senate.

Anyway, it's a suggestion, if you want to use it.

The Joint Chairman (Senator Oliver): We thank you very much for the suggestion.

I should say that a questionnaire already has been drafted, and it was used by the last committee very much along the lines you've suggested. Both the researchers have agreed that they will look at your suggestion, and they will bring something to the steering committee, which we can look at the next time we meet. But it's an excellent suggestion.

Senator Gauthier: Thank you.

The Joint Chairman (Senator Oliver): I also apologize to Ms Davidson if I called her by the wrong Christian name. It was not intentional.

Would you two like to present in the order that you choose, and then hon. members will have some questions to put to each of you.

[Translation]

Mr. Mark Audcent (Assistant Law Clerk and Parliamentary Counsel to the Senate): Honourable senators, honourable members, good day.

[English]

My name is Mark Audcent. I am the assistant law clerk and parliamentary counsel to the Senate, and it's in that capacity that I'm addressing you today.

I have prepared a written version of my brief, so I don't intend to read it to you. It will be distributed, and I will simply speak to the content in a brief fashion, rather than reading it.

There has been some mention in this committee of people saying, would people tell us what the existing rules are? That's what I view as being my primary mandate today: it is to address for you what the existing law and rules governing senators are.

I begin with a particular provision. Simply, it's of great interest because it's outside the scope of what we normally consider to be conflict of interest. It's subsection 31(2) of the Constitution Act, 1867, which prohibits senators from acknowledging allegiance to a foreign country. That's a kind of conflict of interest too, and it's worth going on the record that these other forms of conflict of interest, different from financial ones, exist in the law.

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I turn to the most serious statute that contains provisions governing conflicts of interest, which is the Criminal Code. Merely to be charged with a criminal act is a great taint to your reputation.

Section 119 of the Criminal Code specifically applies to members of Parliament, which of course includes senators. It prohibits bribery and corrupt acts, and obviously there's no problem with that.

A problem does arise with respect to some other sections, and that's because in section 118 of the Criminal Code there's a definition of the word ``official'', or ``fonctionnaire''. The Supreme Court of Canada has decided in Martineau and Giguère that a senator is an official within the meaning of that definition. That brings into play sections 121 and 122 of the Criminal Code.

This has been questioned in many forums. It has been questioned before your predecessor committee. It has been questioned in the Cour du Québec, Division criminelle, and I've given you the quote in my notes.

So I think that one of the things your committee will really want to do is to address the propriety, whether the Supreme Court of Canada decision actually furthers the intention of Parliament, because if it doesn't further the intention of Parliament, then you might want to address this issue.

The next act that I would draw to your attention is the Parliament of Canada Act. Sections 14 to 16 govern conflicts of interest for senators. Subsection 14(1) is the provision that really merits your attention. It says:

That provision was originally enacted in 1878, and it's in desperate need of being modernized.

The Supreme Court of Canada, in the Gillespie v. Wheeler decision, addressed itself to the means by which conflict of interest legislation should be interpreted. It pointed out the beneficial results of conflict of interest legislation and said that it was going to interpret it very strictly. Therefore, the way in which subsection 14(1) is currently worded causes all kinds of problems in terms of advising government, not the least of which is that it applies to contracts whether or not benefits flow to the member from them. So it's a huge problem.

We're aware that in the transition from the 19th century to the 20th century the amount of business and of outreach of government into society has increased exponentially, and this section is just a big problem in terms of advising senators and in terms of senators' conduct.

The final source of rules for conflict of interest for senators is the Rules of the Senate, and I've given you reference to the sections. They basically, I believe, are to be interpreted as applying only to private legislation, and therefore I don't think they have a huge scope.

Let me now turn to the Office of the Law Clerk and Parliamentary Counsel and how we relate to senators.

Basically, we view every senator as an individual client. So we advise each senator on a solicitor-client basis and would never disclose to anybody the questions that have been asked or the advice that we have received. Of course, solicitor-client privilege means that it's the client's privilege, and the client can disclose the opinion that we've given at any time. So I point that out.

One of the problems with the existing system that you might want to address is the fact that we give legal opinions but we cannot bind anybody. In the Gillespie v. Wheeler case, as you will read in the notes, the person in question, Mr. Wheeler, had obtained opinions from two different sets of counsel that if he acted in a particular way, he wouldn't be in conflict of interest. The Supreme Court of Canada held that he was. So all members are in the situation that they can seek our opinion and we'll give it, but our opinion is that, an opinion.

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If there were a device whereby you could apply and ask, ``Can I do this? Is it reasonable?'', and if the answer was yes, then you knew that you were safe, then that would be a major step forward for senators.

The final issue, perhaps, that I'd like to draw to your attention by means of opening remarks is the relationship of any regime that you might want to create and the subject of parliamentary privilege.

Two cases have been going on in western Canada in which ethics commissioners have been taken to court by the members, so you end up finding yourself with a court proceeding.

I think the members are going to want to look very seriously at the issue of whether you want whatever regime you create to be subject to the review of the courts or you wouldn't prefer to advance the independence of the House, its ability to self-govern, and simply have these matters internally. The difference is whether you use the vehicle of a statute or you use the vehicle of an internal adoption of a resolution. So that's something else that this committee would want to look at very seriously.

With that, I'll turn the floor over to Ms Davidson, and then certainly I shall welcome your questions.

[Translation]

Ms. Diane Davidson (General Legal Counsel, Legal Services, House of Commons): I would like to thank the Committee for having invited me to appear today on this very important issue: conflicts of interest.

The purpose of my presentation is certainly not to provide you with a detailed list of conflict of interest rules, as most members know where to find them. Instead, I'm going to tell you how my office can interpret these rules, which will, perhaps, help you later in your deliberations.

The first thing I would like to tell the committee is that at the commencement of this Parliament, my office contacted all MPs and gave them an opportunity to meet with legal counsel to discuss the rules that apply to them. We also prepared a document for them which clearly set out conflict of interest rules.

We were pleasantly surprised to see that a great number of MPs accepted the offer to meet with legal counsel to find out exactly what constituted reprehensible behaviour. They wanted to avoid any impropriety at all costs and almost equally as important, any perception of impropriety.

The questions addressed to us concerned gifts and hospitality. As to the types of conflicts of interest brought to our attention, they range from accepting inexpensive promotional gifts and memberships in athletic or social clubs to international travel.

We hear from members who are seeking information on incompatible professions, because they want to know if they can continue to exercise their profession while they are members of parliament.

We are often asked if a member may accept a stipend or an honorarium or indeed pay for writing an article or column for a newspaper or magazine or journal or for television or radio appearances or for a public lecture.

Members who are shareholders or directors or officers of business corporations or charitable organizations also have questions about conflict of interest.

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This is a more relevant issue in cases where the business concerned may receive funding or have contracts with the government or with one of its agencies.

The queries we receive are not confined to members themselves but also extend to their families and to their staff, both in Ottawa and in their constituency offices. Since these inquiries concern a wide range of matters, they defy any rigid categorization. We are unable to reveal specific details since, as Mr. Audcent mentioned, we provide our advice on a sollicitor-client basis.

What kind of advice do we give? Our purpose is to ensure that the member is as fully informed as possible concerning appropriate conduct in matters of conflict of interest. We tend to adhere to prudence and a strict interpretation.

We emphasize that members must not only respect the letter of the law but also take into account the perception others may have of their actions or their behaviour. We are certainly not in the business of identifying loopholes or building cases to support any particular course of action that a given member may wish to pursue with impunity.

[English]

In the course of giving advice to members, certain patterns of concern emerged, and I thought it would be helpful if I related to you some of the observations I made in the course of a cursory review of our files in preparation for our meeting today.

First of all, this is the first Parliament that started out with a complete set of by-laws. The by-laws were first enacted by the Board of Internal Economy in 1993. Those are clear guidelines that the House has put in place and they concern the handling by members of public funds put at their disposal to help them in carrying out their parliamentary functions.

In the past the most common allegations of impropriety against members have been those related to the use of their parliamentary budgets. In my view, the by-laws have provided a better regulated environment, have resulted in reducing the discretion exercised by members in the use of parliamentary funds and resources, and have in fact removed ambiguity as to the propriety of the use of the resources the House puts at the disposal of members.

I also found it very notable that members, in the course of the interviews we conducted with them, asked for clear advice. They wanted to avoid the slightest impropriety in the conduct of their functions. From what the members have told me, it seems they want an answer and they want an understandable one; they want advice that has certainty built into it. They want to be able to rely on the advice as to the propriety of any of their actions.

In reviewing my file, it has become clear that the contracting provisions contained in the Parliament of Canada Act are the most difficult provisions to interpret. This will come as no surprise to this committee, and I will not repeat in detail the conclusions of the other committees of the House that have reviewed the issue of conflict of interest. I'm referring to Bill C-43 and the committee on Bill C-116.

Both committees have identified that the provisions of the Parliament of Canada Act were problematical. In particular I'm referring to sections 34 to 40 of the act.

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I will highlight to the committee one common problem of interpretation.

If we look at section 34 of the Parliament of Canada Act, it says that a person is not eligible to continue to sit as a member if that person directly or indirectly uses, holds, enjoys, undertakes, or executes any contract with the Government of Canada for which public money is to be paid.

Section 40 of the same act sets out certain exceptions to the prohibitions. Section 4 creates an exception and says that a person is not ineligible by the mere fact that that person is a shareholder in any corporation having a contract with the government. I feel that, in failing to differentiate between substantial and minimal shareholding, the provision misses the mark of prohibiting those with significant holdings of shares in a corporation and allows the controlling shareholders to hide behind a corporate deal that presumably was intended to shield the small shareholder with little or no power to influence the operations of the corporation.

As Mr. Audcent has set out as well, a further difficulty is that there is some case law that says that it would be unrealistic to believe that, as a general principle, someone who is a director of a corporation as well as a shareholder, for instance, would not be in a conflict of interest. Therefore, if we adopt the position of the Supreme Court of Canada in the Wheeler decision, we would need to tell members that they could not continue as the director of a company and not be perceived to be in conflict with the Parliament of Canada Act.

Perhaps the greatest difficulty my office has faced in giving advice to members is in relation to the contracting provision contained in section 38.

Section 38 requires that a clause be inserted in every government contract. For example, it has concerned, among others, members who are farmers who want to participate in various subsidized crop insurance programs.

The interpretation of the word ``benefit'' likewise has caused much concern among members who sit on the board and are officers of non-profit organizations that receive federal funding. The concern is of course that the member's association with the organization would lead to an interpretation that the member could receive some benefit from the funding of the organization and that the organization would be denied funding because of the MP's association with it or its program.

[Translation]

What about the relevant provisions of the Criminal Code? Mr. Audcent set out very well what the difficulties might be. These provisions of the Criminal Code refer to the term "public officer" and this term had been interpreted as including members of Parliament.

Case law has shown that this provision has been a source of great difficulties for the courts who have been struggling to find ways of applying the substance of the section to elected officials. In my opinion, this section of the Criminal Code should be amended and made more precise, as Mr. Audcent indicated in his presentation.

For more details on this, I refer you to my written notes.

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Finally, in reviewing the proceedings of this committee, I notice that an interest has been expressed as to the types of business and professional activities members may engage while in office.

The rules found in the Parliament of Canada Act address employment in the service of the government of Canada and a limited number of provincial offices.

However, these limited provisions offer no guidance as to the broad spectrum of activities members are or may be involved in modern times.

[English]

In concluding, if there's a message that I would like to convey to you today, it would be that from my perspective members are motivated to bring order, propriety, and transparency to the conduct of their affairs. The by-laws of the Board of Internal Economy have, in my view, gone a long way towards accomplishing this in regard to parliamentary funds and services made available to members of Parliament, and a similar initiative by this committee with respect to guidelines for remaining grey areas, which I have identified in my written notes and in my presentation today, would be quite helpful. Thank you.

The Joint Chairman (Senator Oliver): Thank you both very much for two excellent reports.

I was particularly interested in your last comments. You began by saying that it's the first time there have been by-laws to help members. Then I read on page 5 of Mark Audcent's report:

To my knowledge, the Senate has no such by-laws as you have in the House of Commons, and it would be good if you could elaborate a little bit on just what types of things are covered by them.

Senator Di Nino, of the internal economy committee in the Senate, is here, and it might be useful to him to hear some of the things on which you have commented so proudly.

Senator Di Nino: Mr. Chairman, as I indicated to you, I have to leave at 4:10 p.m., but I'll be happy to stick around for two or three more minutes.

Ms Davidson: The by-laws enacted by the Board of Internal Economy of the House of Commons contain rules on the use of funds allocated to the members in the carrying out of their parliamentary functions. For instance, you will find in the by-laws rules on the use of travel points by members of Parliament, rules on the use of their parliamentary budget, on the use of the printing privileges, on the hiring of staff in their office, whom they can and can't hire, on other resources in their office, on the purchase of goods.... Those rules are all very detailed, in very straightforward language that members can understand.

An important feature of the by-law as well is that a member can obtain an opinion from the Board of Internal Economy in case of doubt, if he's unsure about whether or not he can use the funds in a particular way. The board is there to assist the members, to give them guidance and certainty in that area.

I should also indicate that the Parliament of Canada Act gives the board exclusive authority on the propriety of the use of funds and goods by members. By that I mean that the board is the only body that can advise members on those parliamentary funds.

The Joint Chairman (Senator Oliver): Thank you very much.

Have you found, as counsel, that this has been a very useful document?

Ms Davidson: Yes, a very user-friendly document, and members have been able to understand very easily what they could and could not do with the parliamentary funds made available to them.

Senator Di Nino: May I ask a question?

The Joint Chairman (Senator Oliver): On the list of people to speak there's member Gurbax Malhi and then Senator Gauthier. Senator Di Nino has to catch a plane. Would you mind -

Senator Gauthier: Not at all.

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Senator Di Nino: All I was going to suggest is, is what was given to me the complete by-law, or is there more?

Ms Davidson: This is the fact sheet that was distributed to all members at the beginning of this Parliament. We tried to keep it to one simple document.

Senator Di Nino: Is the actual document itself more extensive than this?

Ms Davidson: You have to refer to the letter of the law. This is a condensed version of the rules.

Senator Di Nino: This is to be used as a guide, then? Am I correct, Ms Davidson?

Ms Davidson: Exactly. This is a guide to which the member can refer very quickly and know what the rules are.

Mr. Malhi (Bramalea - Gore - Malton): Ms Davidson, in your opinion what should the committee consider including in a code of conduct for parliamentarians? Should it simply concentrate on monetary matters, or should non-monetary, ethical issues be addressed, too?

Also, when a member is invited to speak in another part of the country or in another country for educational or religious purposes, for example, if the cost of the trip is covered by the educational or religious organization, is this considered to be a conflict of interest?

Ms Davidson: On the first question, what a code of conduct should contain, I would like to offer this comment to the committee.

It has been suggested that members would need principles to guide them in what is to be considered proper conduct for a parliamentarian.

In reading an article in the review of the Law Society, I came up with a quote that I would like to give to the committee on what codes of conduct should contain. The quote is:

The article goes on to quote Harry Arthurs, who is a British writer. This author has remarked that:

In other words, a code can contain both principles and very practical rules. It can be both inspirational and very operational.

If I understood your second question correctly, you were asking whether or not it would be acceptable for a member to travel for educational purposes.

Mr. Malhi: Educational or religious purposes.

Ms Davidson: Or religious purposes?

Mr. Malhi: Yes, where the expenses are covered by the religious or educational organization.

Ms Davidson: You would be doing that in your capacity as a parliamentarian?

Mr. Malhi: I just want to know whether or not, if somebody invited them as a parliamentarian, there is a conflict of interest.

Ms Davidson: I find it very difficult to answer this in the abstract. I would have to see whether or not there is a connection to a member's parliamentary functions.

Senator Olson (Alberta South): I think he said ``if the member was invited''.

The Joint Chairman (Senator Oliver): It's the kind of thing where you really should have a full set of facts before you can apply the law to it.

Ms Davidson: That is correct.

The Joint Chairman (Senator Oliver): This is something where maybe you could respond to it once you got the full set of facts.

As I said at the outset, once we had a quorum I was going to leave the formal part of our proceedings for a moment so we could deal with the report of the subcommittee on agenda and procedure of this committee. Everyone has been handed a copy of this.

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The subcommittee met on Thursday, September 28, 1995 to consider its future business and agreed to make the following recommendations.

Does anyone not have it?

It was agreed on advertising for witnesses, deadline for reporting, printing of issues, and days of meeting.

Are there any questions? If not, does someone want to move that this report be adopted?

Mrs. Catterall (Ottawa West): Could I ask why we are hiring a company to distribute a press release and what the cost of that is?

The Joint Chairman (Senator Oliver): It's $1,000.

The Joint Chairman (Mr. Milliken): We're hiring a company to do it so we won't do an advertising campaign soliciting public participation in this process. The news release will invite the public to send comments if they wish to do so. It will be distributed across Canada to over 100 media outlets.

The Joint Chairman (Senator Oliver): Are there any other questions or comments?

Mr. Malhi: - [Inaudible - Editor] -

The Joint Chairman (Senator Oliver): Yes.

Mr. Malhi: - [Inaudible - Editor] - 7:30 to 9:30.

The Joint Chairman (Senator Oliver): Yes.

Mr. Malhi: I think that's too late.

The Joint Chairman (Senator Oliver): Members wanted to have an opportunity, after House duty, to have a bite to eat first, and we felt that was important.

Senator Spivak (Manitoba): Particularly for those coming from the west. When they are travelling on the same day, it's very difficult to get here much before the afternoon.

Mr. Malhi: And some people have no House duty on Monday, so they come from their constituency on Tuesday.

The Joint Chairman (Mr. Milliken): That was a problem we looked at. However, we felt that so many committees were already meeting on Tuesday that it would be almost impossible to get a meeting day when members would be here, because they'd all be off at other committees.

The Joint Chairman (Senator Oliver): Are there any other questions? If not, does someone want to move that this report be adopted?

[Translation]

Mr. Bellehumeur (Berthier - Montcalm): Item 5, do we go by the French or the English time?

[English]

The Joint Chairman (Senator Oliver): We will make the correction. We left out a ``3'' here.

Mr. Epp has moved that this report be adopted. Is there a seconder?

Motion agreed to

The Joint Chairman (Senator Oliver): I apologize for that interruption. Now we can go back to the questions.

The Joint Chairman (Mr. Milliken): We have one more item of business. I move - if I'm allowed to move; I assume I am - that when the committee presents a report, the chairs be authorized to sign reports to the two Houses to extend the deadline as outlined in this report.

Motion agreed to

The Joint Chairman (Senator Oliver): The next questioner is Senator Gauthier.

Senator Gauthier: I've had some experience with reading in English. I usually do it in French, but I read in English, and I understand that in English there's a difference between a by-law and a regulation.

[Translation]

In Fench, it's the same word: règlement.

[English]

In English, what's the difference between a by-law and a regulation?

Mr. Audcent: When the amendments were brought to the Parliament of Canada Act giving Internal Economy certain powers, the Senate and the House of Commons opted for different vehicles. The House of Commons opted for a Board of Internal Economy, which is a body that's independent of the House, a separate board, whereas the Senate opted to refer to its existing Committee on Internal Economy, which it then gave intercessional authority.

The result is that, because the Board of Internal Economy of the House of Commons is an independent body, it has by-laws; because it's a Senate committee, a Senate committee has adopted regulations.

Senator Gauthier: In that case you'd better change the law, because it says here - I'm looking at sections 19.5 and 52.5 of the Parliament of Canada Act; 19.5 applies to the Senate and 52.5 applies to the House of Commons. In both cases it says ``règlement administratif''. In English, it says ``regulations'' for the Senate and ``by-laws'' for the House of Commons.

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I understand your point. So there is a difference. Essentially, what is the difference? Section 19.5 says that for the Senate, ``The committee may make regulations''. Section 52.5 says that in the House, ``The board may make by-laws''. Tell me the difference.

[Translation]

Ms Davidson: As far as the House of Commons is concerned, the English term «by-laws» is translated in French by «règlements administratifs». What makes the difference between the regulations of the Senate and the bay-laws of the House is the administrative nature of the matter. That is why by-laws is translated in French by «règlements administratifs».

[English]

Senator Gauthier: I want to get in some questions that are not about wording or semantics.

Ms Davidson, you told us that a large number of members of Parliament inquired with your services. I guess you call it the Law Office of the House of Commons.

Is that what it's called now?

Ms Davidson: The name of the office is Legal Services.

Senator Gauthier: You said that many asked for information and advice, concerning everything from gifts to favours to promotional objects they may receive, memberships to social or other types of organizations, honorariums for TV, radio, and all that.

In your experience, has anybody asked you about the question of using their funds, available to them through their budget, for the purpose of, say, parliamentary partisan activities? Was a question of partisan activities ever raised with you, as being possibly a difficult area? I'm thinking of the former cases of some of the Tory MPs, who were accused of using their parliamentary funds for organizing a corn roast, for example, using their parliamentary offices and their computers to send out lists to their memberships and to raise other interest or funds in their riding. Has anybody raised that with you? That was a case we had to live through and it caused us a lot of problems in the last Parliament.

Ms Davidson: Certainly the extension of a member's duties has always been an important question for members. I must say that members are very careful as to their use of the public funds made available to them.

I should point out to you that the by-laws of our Board of Internal Economy at the House of Commons define parliamentary functions to include partisan activities. The House has adopted by resolution the concept that partisan activities are part and parcel of a member's parliamentary functions. It's very difficult to make the distinction between different kinds of partisan activity. A member is elected on the basis of his opinions, and it's an inherent part of a member's responsibility to represent the views of his constituents. So I have great difficulty in not seeing partisan activities as being generally part of a member's parliamentary functions.

Senator Gauthier: I don't have any problems with that; I just wanted to raise it with you because I wanted it to be clear.

Ms Davidson: I should point out that this has not caused difficulty in the interpretation of the use of funds, because they are included. The Board of Internal Economy has very clearly defined partisan activities to be part of the member's parliamentary functions.

Senator Gauthier: Mr. Audcent, has the Senate similar descriptions or demands on members of the Senate?

Mr. Audcent: On February 22, 1990 the Senate Committee on Internal Economy adopted in principle the following statement, and it was taken from a similar report from the House of Commons:

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So the beginning statement is that senators are expected to be partisan. However, restrictions apply on the use of Senate resources for partisan activities.

An example I have is the policy on franking, postal, householder printing, and periodical guidelines. It says:

So, although it's recognized that senators themselves are partisan, there are sometimes restrictions on the use of their resources for partisan purposes.

Senator Gauthier: May I ask another question, Mr. Chair?

[Translation]

You mention that the word ``official'' was interpreted by the Supreme Court as including members of Parliament. Yes I know, by experience, that there are other laws where the word ``official'' does not include members of Parliament. The Elections Act is an example. Would you study the word ``official'' for us? I think we should clarify this term in the legislation.

Ms Davidson: You have illustrated the difficulty we have with the term ``official'' as we find it in the Criminal Code. It is true to say that in other pieces of legislation, that term absolutely does not include members of Parliament. It seems to us that when it comes to parliamentarians and Cabinet ministers, the law must be very clear and very specific.

I think everyone here agrees that the Criminal Code should be more specific in that regard. We gladly accept to do the study you've just asked us to do.

Senator Gauthier: Mr. Chair, my last question pertains to section 14(1) of the Parliament of Canada Act. In that section, Mr. Audcent and Ms Davidson found a problem with the term ``concerned'' in English, which is interpreted as ``involved'' and not as ``worried'' or ``preoccupied''. In French, it is clear enough. The interpretation is given in section 14.(1):

The English translation of ``être mêlé'' is ``concerned''. Maybe we should clarify that. I do agree with you. I had not notice it. It does make sense.

[English]

If Mr. Epp was concerned about something between the government and a private contractor, then under subsection 14(1) he could be alleged to have a conflict, right? Could you explain to me how Mr. Epp would get out of his conundrum?

Mr. Audcent: The other words that you see in conflict of interest legislation that are similar are ``interested in''. My reading of the jurisprudence is that ``concerned in'' is wider than ``interested in''. ``Interested in'' might be limited to a business interest, a financial interest. ``Concerned in'' is a wider concept that could mean just about anything.

Senator Spivak: I have one short question to Mr. Audcent about the Constitution Act of 1867, which prevents senators from acknowledging allegiance to a foreign country. I presume that means that they cannot hold dual citizenship, and that if they do, then they need to relinquish the citizenship in other countries. Is that correct?

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Mr. Audcent: Yes, I think that would be the core of it. The disposition itself in the Constitution Act is quite a bit longer and could cover items other than dual citizenship. It refers to acts of allegiance. It refers to receiving benefits of citizenship. So I can't go on the record as saying, ``It's dual citizenship and don't worry about anything else''. If you're dealing with a foreign country, then please ask me to look at the section for you.

Senator Spivak: Let me ask you this question. It's of interest, because it prohibits senators but it does not prohibit a member of the House of Commons, for example, from acknowledging allegiance to a foreign country.

Mr. Epp (Elk Island): It should.

Senator Spivak: Of course it should, but in some way expressing interest - Do you know what I mean? It could cover a range of activities, whereas the Senate is expressly prohibited. Is that correct? So you could never have in the Senate, for example, a leader of the opposition who might have allegiance to a foreign country or a potential foreign country.

Mr. Audcent: From my point of view, the section is in the section that deals with when the place of a senator shall become vacant. It's limited to senators. With respect to any rules that govern members of the House of Commons, I'd ask Ms Davidson to comment.

Ms Davidson: There is no such rule in the Parliament of Canada Act or in the Constitution with respect to members of Parliament.

Senator Gauthier: There is a double standard.

Senator Spivak: I wonder why.

[Translation]

Mr. Bellehumeur: I am going to go straight to the heart of the matter. We can talk about all sorts of things. We can try to solve everyone's problems and deal with all sorts of regulations, but I think that you are here to consider the Order of Reference we received dealing with the drafting of the code of conduct.

Therefore, my first question is very simple. Do you, who have experience in this area think that we need a code of conduct?

Ms Davidson: First, I can say that the administration regulations of the House of Commons have clearly improved the situation of possible conflict of interest regarding the use of parliamentary funds.

The rules are clear and the members can obtain advice on these rules. Therefore, I see no need to develop a code of conduct regarding the use of parliamentary funds.

As regards the rules in the Parliament of Canada Act, I have tried to make it clear today that they are certainly obsolete, and just need to be completely reviewed. Moreover, this is not the first time I have delivered this message to a parliamentary committee.

As regards rules on conflict of interests in the Parlement of Canada Act, the committee could certainly examine the possibility of including them in a form of code of conduct, but I think you should first begin by reviewing what exists at the present time and then considering the question of a code of conduct as a whole.

As you know, one of the problems for members has often been the lack of rules and the fact that they were scattered. I don't think that the members knew where to find those rules. But what do we mean exactly by the word ``rules''? Are we talking about a ``principle'' or ``rule''?

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Mr. Bellehumeur: We can amend existing legislation to bring it up to date and make it more geared to our needs. However, it is quite a different matter to draft an independent code of conduct. Which solution do you prefer?

Ms Davidson: I might say in response that the rules in the Criminal Code cover the reprehensible behaviour. In my opinion, the rules set out in the Parliament of Canada Act could be transferred readily to a code of conduct.

I believe that when you discussed a code of conduct in your committee, you looked not only at the rules contained in the Parliament of Canada Act, but at other material as well. Consequently, I think it would be better not to enshrine rules of this type in a piece of legislation.

Mr. Bellehumeur: Thank you.

Mr. Audcent: My job is to advise senators about how they should reconcile their private interests with their public function under our existing system. In my view, senators are badly served by the existing system. It is too old. As regards the Criminal Code provisions, members of Parliament and senators are not officials. And as far as the Parliament of Canada Act is concerned, section 14 is out of date and very difficult to implement.

I would suggest you amend the Criminal Code and repeal section 14 of the Parliament of Canada Act, and perhaps even repeal sections 14 to 16, as your predecessor committee suggested.

Now, what should you do once that is done? Should you have a code of conduct or not? That is more of a political question. We are legal counsels, not political advisors. However, you could try to attain certain objectives. Perhaps I could go into some details about the objectives I think parliamentarians should seek to achieve.

First, your public image needs a boost. Ms Davidson referred to certain principles which could serve a didactic function, in convincing people that you are honest. Such an approach could be helpful in this respect.

I would certainly like to see written acknowledgment somewhere of the fact that the senators are entitled to have a personal life and personal interests. As far as I'm concerned, they are citizens just as everyone else. They are entitled to have some income. The approach must be reasonable and simple. From your point of view, the regulations governing your conduct should be located in a single place, as far as possible, and the wording of the text must be clear. Then you will understand what your obligations are.

There's also the whole matter of the independence of the Senate and of senators. We have a centuries-old parliamentary tradition whereby the Chambers of Parliament and the members thereof are self-governing. This is a very important principle, and I'm very concerned about the role the courts may play in the system you set up.

Finally, you need certainty. When you ask for advice, and the person tells you that you can do such and such a thing, you must be sure that what you are planning to do is allowed, that you can behave in this way without veering criticism later on.

These are some of the objectives you could keep in mind in the course of your proceedings.

Mr. Bellehumeur: Can we achieve this end through a code of conduct? Ideally, should we draft a code of conduct or amend the existing legislation, in your view?

Mr. Audcent: Some of the provisions found in existing legislation could be repealed. Where would you put them in a new code? Not necessarily in the Statutes of Canada. You can also proceed by way of a resolution of the House. This would be a policy of the House that would apply to its members.

I'm not advising one course or the other, because these are political matters. I am simply pointing out that you have a choice.

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M. Bellehumeur: I would like some clarification about what you said earlier. If we were to adopt a code of conduct as a Parliament regulation or legislation, and that the courts were to rule about that at the end of the day, it could be dangerous. Is that what you are saying?

Mr. Audcent: I am very concerned about court intervention in the conduct of a member or a senator. In my opinion, parliamentarians should be self-governing. After all, they have been either appointed as senators or elected as members of Parliament. It seems to me that whether you sit in the Senate or in the House of Commons, you are accountable to your peers. The reputation of both Houses is at stake and I believe that we should be a self-governing body.

Ms Davidson: I would like to add a technical point. If you include those rules in a legislation, it will be much more difficult to change them. Amending legislation is a long and cumbersome process. If those rules are part of a code of conduct, it will be easier to update them regularly.

Mr. Bellehumeur: Who would be responsible for managing such a code?

[English]

The Joint Chairman (Senator Oliver): Did you hear his question?

[Translation]

Ms Davidson: Who would manage it? There are several options. It could be the House itself or an independent counsellor. In the provinces, it is the ethics counsellors who do it. Several options are possible and I believe you will find a list of those in the material provided by the research staff. Personally, I have no preferred option.

[English]

The Joint Chairman (Senator Oliver): Michel asked a very good question. Before you came, did each of you have a chance to read the evidence given here by Mr. Wilson and Mitchell Sharp?

Ms Davidson: Yes, we did.

The Joint Chairman (Senator Oliver): I would be interested if you would comment on what they had to say about the need, perhaps, for keeping whatever we're going to do pretty simple and not getting too complex. They talked a lot about third party paid foreign travel and gifts, and both stressed independently that members of Parliament should be able to carry on their own jobs, their professions, or their business in addition to being members of Parliament. Based upon what was said by Mr. Wilson and Mr. Sharp, I would like to have your comment on those.

Ms Davidson: It was central to my written notes and my comments today that what members are asking for are simple, straightforward rules that they can understand and apply without having to seek guidance every time they want to do something. So simplicity is certainly something I would promote, and I totally agree with the comments made by Mr. Wilson in that respect.

However, I think that, while simplicity is desirable, certain conduct cannot be set down in very straightforward rules. Mr. Wilson made reference also to principles. I agree that you would need very detailed rules for certain issues; for instance, acceptance of gifts. That can be a very straightforward rule. Members would also need principles to be guided by and to interpret the rules by.

On the other issue, the acceptance of gifts, what was the other -

The Joint Chairman (Senator Oliver): Maintaining your profession as a doctor or a lawyer or a businessperson in your community and still being a member of the House of Commons or the Senate. And third party travel paid for by a foreign state; Taiwan, for instance.

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Mr. Audcent, please.

Mr. Audcent: I will begin with the three questions you asked and land on that one as well.

Let me begin by saying that I have read the testimony of both of your previous witnesses and I was just delighted with the advice I think you were given. I think the direction of the testimony in terms of the advice that I have had to give senators over the year will be very helpful to you in terms of going ahead.

With respect to simplicity, that is one of the objectives I have pointed out to you that I think you have to aim at, so I highly encourage that.

With respect to senators pursuing their own jobs, attached to my written presentation, which I handed out to you, is an appendix. It is called ``Restriction on the Receipt by Senators of Funds from Sources other than the Senate''. It begins:

I think it is very important to say that senators can pursue the gaining of a livelihood outside of Parliament, that this is a constitutional right, and of course the Senate can put reasonable limits on the actions of senators because you have accepted to be senators. But we have to get into place what is the principle and what is the exception. The principle is that you have the right to outside activities and the exceptions are the limitations because you have agreed to serve Canada as senators. So that is my comment on your own jobs.

With respect to third party travel, as far as I can tell that is not an item that is governed by existing law. That is the comment I would give you on that subject.

The Joint Chairman (Senator Oliver): Any direction, though, Mr. Audcent?

Mr. Audcent: I think because it goes beyond the matters on which I give advice, other than to say you are not governed by law, I will leave you there.

Ms Davidson: I think I should point out that at the House of Commons we have a registrar, and foreign travel is recorded with the Clerk of the House and the registrar.

The Joint Chairman (Senator Oliver): Thank you both very much.

Mr. Epp, please.

Mr. Epp: Thank you, Mr. Chairman. I would like to thank these two people for coming here.

I have a question that is one of great curiosity. Do you ever receive, and do you respond to, inquiries from the general public?

Ms Davidson: We do on occasion provide the general public with general information on the rules. We do indicate to the general public where the rules can be found and that some rules do exist, but those are very general. It is more information that we would provide. We would not be providing any sort of advice to the general public or interpretation of the provisions of the law.

Mr. Epp: Are you the only place to which the public would possibly go? If there is a person out there in the public who thinks their MP or senator is doing something that is not legal or is not kosher, where would they go?

Senator Gauthier: To the Speaker.

Mr. Epp: Oh, okay. To the respective Speakers.

Ms Davidson: I would suggest that they first go to the member.

Mr. Epp: I am thinking of cases where there is a dispute.

I have another question, and I know you declined to answer this before because it is political, but I think all of us here are interested in getting a solution to this problem that will satisfy that need among the Canadian public to have a greater trust in their parliamentarians. I would like to know, in your view - I want you to answer even though you don't want to - how big the problem is. How many people are called into question?

You did indicate that a number of members of Parliament come to you for advice, which means that they are either trying very hard to comply with all of the rules and keep clean, which I think is the answer I would prefer, or they are trying to find out how much they can get away with. On what side of the issue are we there?

.1650

Ms Davidson: As I indicated in my presentation, I think a lot of the problems that came to our attention have been resolved through the by-laws of the Board of Internal Economy.

You have to realize that the greatest area of influence over public funds that a member has is over his parliamentary budget. If the rules are clear and we have taken away a lot of the discretion in the use of those funds through the enactment of by-laws, I think you have taken care of a lot of potential conflicts of interest.

The other issues of concern are in relation to contracting with the government. As I have suggested, those rules contained in the Parliament of Canada Act perhaps need clarification. For the most part they are outdated and do not provide members with the protection and the answers they are looking for.

Mr. Epp: How widespread do you think is the practice of earning money outside of the parliamentary benefit? Some of us live entirely on this MP's salary and there are some who have other income. Some of it is professional income, which requires some time. Do you have any sense of the proportion of those?

Ms Davidson: I'm sorry, but I would not have any sense of that.

Mr. Epp: Mr. Chairman, I wonder whether or not our researchers could do a questionnaire among MPs in order to find that out - and senators also; I shouldn't forget this is a joint committee.

The Joint Chairman (Senator Oliver): There has been a suggestion already that we draft a questionnaire. Your comment is one that the researchers can take under advisement.

Mr. Epp: Good. Thank you.

The Joint Chairman (Senator Oliver): Does that pretty well cover your questions? I also have on the list Mr. McWhinney, Ms Parrish, and Senator Olson.

Mr. Epp: Perhaps I'll pass then, and maybe if there's time left -

The Joint Chairman (Senator Oliver): If you have another question now, by all means -

Mr. Epp: I'll come back later.

The Joint Chairman (Senator Oliver): Mr. McWhinney, please.

Mr. McWhinney (Vancouver Quadra): I must, by the way, apologize to the witnesses. I was summoned to the House to follow on your co-chairman's philippic of this morning, which is still being debated because of its extraordinary eloquence. In any case, I may have missed part of your testimony in which you answered these questions.

I'm curious about the questions on page 2 of Ms Davidson's report. You pose a series of questions that you say members have asked you and you tantalizingly don't explain how you answered them. What I really would like to ask you - and I have in the past given what are called expert opinions to legislatures on questions like this - is would you agree with me that there is virtually no jurisprudence, meaning court decisions, in this area, that there's virtually no legislation? You're either going on some sort of informal or formal repertory of practice of various legislatures or you're operating in a certain sense on hunches, which is what a good expert does, of course. You draw on your experience and take that inductive leap into the dark.

Is there a repertory, for example, of practice of legislative assemblies throughout Canada and the federal Parliament, an informal repertory that you refer to, or do you rely on an oral tradition?

There was an old gentleman in British Columbia who was associate clerk of the House. He lived to 97. He came into the House every day and people asked him and he would tell them what had happened 42 years ago. It was an oral tradition that you find only among aboriginal people. I've had that sort of precedent cited.

Where do you get your answers from to these questions on page 2?

Ms Davidson: Having worked in the parliamentary context for a number of years, the answers to the questions are not devoid of the political reality that a member has to face up to.

Often in the case of acceptance of a promotional gift, for instance, what may seem innocent on the surface may prove to be a very politically difficult issue for a member.

.1655

So I guess that, through the list, what I was trying to indicate is that we're not always dealing with strict legal issues, interpretation of conflict of interest in the legal sense, but there is also an aspect of the political reality that one has to take into account, as well as what the member's constituents would be ready to support.

We also often act as sounding-boards for members and help them to find for themselves the answers to the questions they pose.

But you are right: there is no register of the types of issues that I raise here.

Mr. McWhinney: Would you agree perhaps - and it might have been the thrust of Mr. Epp's question - that maybe the first time we'll have to...? For example, a lawyer - and there are a number of good lawyers in the House, as well as accountants. Thus far there is really no guide on this, is there? Is there any guide for writing an article for a newspaper and charging a fee or not?

I think most of us are finding that some of the answers are dictated by a lack of physical energy. If you work an 18-hour day, as I think most of us do, then you don't get much time for elsewhere.

Would you agree that thus far there is very little to guide us and it's a sort of tabula rasa for this committee and that there's not really any jurisprudence that you could cite?

Ms Davidson: I totally agree with the last comment, yes.

Mrs. Parrish (Mississauga West): I apologize for arriving late, but I was at another meeting from which I couldn't escape. I hope to get all of the documents that were handed out today, because I didn't get your remarks.

I have a serious concern about the comment on gaining of a livelihood, particularly about the general implication that MPs in particular are allowed to hold a job outside of what we do. Following on the comments of Mr. McWhinney, I don't have enough hours in the day.

Is the concept of the gaining of a livelihood a very old one - I mean going back twenty years, when MPs were here occasionally to vote on a bill and then disappeared for days on end - or is that fairly recent?

Mr. Audcent: To begin, perhaps I could point out to you that it was a reference to the Constitution Act, 1982. So it's not a very old concept.

It's a right that all Canadian citizens enjoy, and one that we quite recently decided should be enjoyed.

The other thing is - and I noticed this before, in reading some of the testimony - that we mustn't fall into the trap of equating a possible conflict with another job, because there are sources of income other than jobs and often a conflict of interest might have to do with a source of income that doesn't necessarily arise out of employment. It can arise out of investments, out of property, and so on. So we must not fall into the trap of thinking only about income from another job.

Mrs. Parrish: Then let me stay out of that trap and talk about an income from another type of job. I have a large riding of 250,000 people, 40% of whom are immigrants. I have the delightful task of dealing with immigration lawyers all the time, and they charge some of my constituents $10,000 to do what I do for nothing.

Would a legal department consider it to be a major conflict of interest if an MP had an office across the road and was an immigration consultant and then had his or her own office as an MP and, in fact, was doing the same job? Do we have any guidelines that would stop or prevent that?

Ms Davidson: I would certainly point out to you that if you decide to use your parliamentary resources to do the same job -

Mrs. Parrish: I understand that, but if it were absolutely devoid...if the only payment you were getting was from immigrant people who wanted some assistance with visas or whatever, and you were not using anything except your station in life as an MP -

Ms Davidson: But you would be carrying on your business -

Mrs. Parrish: Completely separate. Say that I'm an immigration consultant and I have three people working for me in an office down the street from where my MP's office is and I charge $10,000 a person for them to come through my door.

I would consider that to be a flagrant abuse of my office, but apparently it's allowed in these guidelines.

The Joint Chairman (Senator Oliver): Add one more condition: what if you were a lawyer and you put your sign up as a lawyer and your specialty was that of an immigration consultant? Would that make a difference?

Mrs. Parrish: I love this.

What's the answer?

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Mr. Audcent: If we can begin with the concept that legal opinions aren't given in 30 seconds, let's discuss the issue without saying that this is a final opinion.

It seems to me that the opening presumption is that you can carry on other activities in life. In particular, if you happen to have been an immigration lawyer who was elected to serve, or appointed as a senator, why should you lose this connection that you have to the community and this other livelihood that you have? So there's an opening question there.

I think you're going to have a great deal of difficulty because of the thing you selected, the particular concern, because you started talking about immigration, which is a government activity. Because it's a government activity, I think that you're going to end up somehow getting into trouble with section 14 if you're a senator, because sooner or later federal money will be going somewhere, whether it's through a legal aid plan or.... I don't know how it's going to come through, but sooner or later there's probably going to be money floating around out there that you're earning that is traceable back to the government.

Once again, it takes us back to the question of the basic facts of the case. You'd have to go and study the exact case. You'd have to describe your practice in full and complete detail and review it under the existing law.

The other thing is, of course, that my answer to you is based on the strength of the existing law. We're coming to the table and telling you that we're not really very impressed with the existing law. We would like you to modernize it. So that would be your chance to address your concerns at that time and to find the balance that you as parliamentarians want to achieve.

Mrs. Parrish: To get into an even more nebulous area, let's say I'm a chartered accountant. I'm not using my facilities and I'm not getting any government money, but I'm still doing someone's income tax return at the income tax season because it's a lucrative business, it's short-lived, and I might be in a recess in the House of Commons. What I'm concerned about is that some people might suddenly come to me as their accountant because they think they'll have more influence over the government. They give the MP their accounting job; therefore they think, ``Gee, I'm not only paying an accountant, but I'm buying myself favour''.

Is that not addressed in that? That's even more nebulous than the one I gave you on immigration. You're saying that this is the part of the code of conduct you think we should be having a really good look at.

Mr. Audcent: Once again, my starting position is an assumption that senators who are accountants or lawyers or other kinds of professionals should be allowed to maintain their connection to the community, should be allowed to understand the questions that are going on in the community. This is what makes them valuable as parliamentarians.

If you start with the concept that you should remain connected to the community, then, when you get into the fact that as an accountant you're going to do income tax returns, more likely the problem you're going to have as an accountant is that you're probably going to be in a partnership and not on your own, and the revenues of the partnership will have to be examined so as not to violate section 14. So that's more likely to be the direction in which the questions will be asked, rather than whether you can do income tax returns.

There is another issue, and perhaps it's the one you're asking about. It is using your name to bring in business.

One of the leading-edge issues that parliamentary counsel are talking about these days is the responsibility of parliamentarians for the advice they give. Are you people, elected by the people, not professionals with responsibility in any way? Or is there any possibility that you as parliamentarians have certain responsibilities for the representations and the advice that you give to your constituents, and how would that play out in negligence law? We don't have answers to these; I'm just saying that this is another direction in which your question might want to take you.

Mrs. Parrish: I would just like to go on the record as saying that I find it very difficult to support this gaining of a livelihood. We're not overpaid, but we have a livelihood. The idea of romping around in the community and still earning money at other things is very difficult for me. But I'm here to listen and to learn, and I would really sincerely like to... [Inaudible - Editor] ...at some point.

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Mr. Audcent: In response to that, I could point out that it's the right to gain a livelihood, but it's also subject to the reasonable limitations that you as parliamentarians, as a group, think you should impose on yourselves. This is because there's no doubt that when you accept to serve as a parliamentarian, to serve Canada, you accept that you will be subject to limitations so you will best serve your Houses.

The Joint Chairman (Mr. Milliken): I guess that Ms Davidson is the principal for this question.

In the rules you referred to, laid down in the by-laws of the House of Commons particularly, you say that there's now interpretive transparency because a series of rules are in place and members know where they stand in relation to the way in which they can spend their office budgets.

In your view, is the enforcement mechanism that is in place sufficient to ensure compliance with the rules set out in the by-laws of the House? Also, have you any indication that the transparency is sufficient for the public to be satisfied that those rules in fact are being complied with by members?

Ms Davidson: On your first question, whether or not the rules are transparent enough that members know where they stand, as I pointed out, without any doubt the rules are quite clear. Members know where they stand. On top of that, if members do not know where they stand on the question of use of a particular benefit, then they can ask the board for direction and for an opinion on whether or not it is a proper and acceptable use.

As for the enforcement mechanism, hypothetically, if the board decided that a certain use was inappropriate, the by-laws specify that the board will initially inform the member that the use is not a proper one. If that doesn't succeed, then the board can consider other mechanisms in order to make sure that the rules will be followed.

Since the Parliament of Canada Act gives the board the authority over the use of funds and goods and premises that are made available to MPs, I think that hypothetically the board could remove the funds from the member's budget if the member was not able to follow the direction the board was indicating. So, in theory, the board has at its disposal the legal authority to act and to enforce those rules.

With respect to making those decisions public, the by-laws of the Board of Internal Economy are a public document. They can be consulted. The board decisions are tabled in the House periodically; the Standing Orders provide that they shall be tabled from time to time. So those are the ways in which someone could be informed as to whether or not the funds are being appropriately managed and spent by members.

The Joint Chairman (Mr. Milliken): Then I assume that your view is that that's sufficient transparency.

Ms Davidson: My view is that it is certainly more transparency. With the rules being as clear as they are, certainly members are very inclined to follow them. I've seen a great number of issues not being addressed in my office as a result of the by-laws.

The Joint Chairman (Mr. Milliken): Not being addressed? You mean not being raised.

Ms Davidson: Yes, not being raised in my office.

The Joint Chairman (Mr. Milliken): So you've had a decrease in requests for advice in respect of budgets from what you used to have before these by-laws were in place?

Ms Davidson: That is correct.

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The Joint Chairman (Mr. Milliken): The second part of my question is with respect to the provisions of the Parliament of Canada Act relating to government contracts. Is any enforcement mechanism in place in respect of that section, or is that one that simply comes into play when somebody complains? Are you aware of any watchdog who checks to see if in fact that act is being complied with?

Ms Davidson: I do not believe the act provides that there is a watchdog, someone who monitors whether or not it's being followed. It would have to be provided for specifically in the act.

The Joint Chairman (Mr. Milliken): So you're unaware of any enforcement mechanism being in place there, aside from complaints from the public?

Ms Davidson: That is correct.

The Joint Chairman (Senator Oliver): If someone spent some of their private member's funds on something that Internal Economy said they should not have, do they have the power to order the return of the funds?

Ms Davidson: Yes. They would have the power to order the return. The member would be personally liable to return the funds.

The Joint Chairman (Senator Oliver): If the person didn't return the funds, does the board have a sanction?

Ms Davidson: The board could certainly take civil action against the member. That's certainly a recourse available to the board.

The Joint Chairman (Senator Oliver): Mr. Epp, round two.

Mr. Epp: I'm going to pass. It has been very interesting and a lot of the questions I had have been asked.

Senator Gauthier: In the Senate we don't have any real transparency in terms of the rules and regulations that apply, as they have in the House. If, for example, I don't comply as a member of Parliament in the House of Commons or if I'm in breach of the by-laws and that's made public, then the transparency of that would probably have as a result that at the next election I'd be booted out of office. At least I hope the people in the riding I represent, where it would be known that I had broken the by-laws of the House of Commons, would have enough sense to boot the bum out.

In the Senate, you don't boot the senators out. So what's the transparency in the Senate,Mr. Audcent? You say that senators have their own conscience to live with and they should be acting with reasonably good moral and ethical standards. What's the transparency equivalent in the Senate, if there is any?

Mr. Audcent: The Senate equivalent of the by-laws doesn't exist. We don't have regulations, so what we have are provisions in all of our individual separate policies.

However, the Senate has one advantage, which is that its Committee on Internal Economy meets publicly. So, as senators discuss the adoption of these policies, this is being done in a public forum. So that is one element that tends toward transparency.

With respect to sanctions against senators, there are the internal sanctions of the enforcements of the policy by the Senate against the senators.

A particular issue arises in comparing senators and MPs, and that is that the Constitution Act, 1867 provides when the place of a senator shall become vacant. For that reason, it's generally considered that that's an exhaustive list. So it becomes more difficult to have a sanction of that magnitude, if you like.

That might explain the state of the existing law, but I don't think that in terms of conflict of interest we're really dealing with matters of that magnitude.

On a day-to-day basis, I think you're right that the senator has to consult with parliamentary counsel and run his affairs, and it's the risk of publicity.

Senator Gauthier: Ms Davidson, you told us that the Board of Internal Economy tables its decisions. Is that what they do? Do they table the decisions of the board?

Ms Davidson: Minutes.

Senator Gauthier: Minutes or decisions are the same thing.

When was the last time they tabled these things? What's the regularity of the tabling of these so-called minutes?

Ms Davidson: I would have to check the Standing Orders, but I think it's on a very regular basis.

Senator Gauthier: But the minutes are just condensed versions of decisions that the board has either taken or decided not to take on certain matters, aren't they? Could you send us a copy of the minutes?

Ms Davidson: Certainly.

Senator Gauthier: The most recent one.

Ms Davidson: Certainly.

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Senator Gauthier: We could have a look at it and see how informative and transparent they are. They never were to me when I was there. I just wonder what they are today. I am interested.

You have told us that since the new parliament, when we've had these by-laws, things have changed quite a bit in the House of Commons. It used to be terrible in past years, at least from my knowledge. I sat on that board for five years, so I know what I'm talking about. If it has changed that much I'm very happy, because the consequence of having by-laws, the consequence of amending the Parliament of Canada Act...it will have had some beneficial effect.

But I'm not so sure those minutes that are supposed to be.... I'm trying to answer Mr. Milliken's question about what transparency is. What makes sure the people of Canada know what's happening in the Board of Internal Economy, since they hold their meetings in secret? We don't in the Senate, but they do in the House of Commons. What kind of transparency can and should be forthcoming from the Board of Internal Economy in the House of Commons to make it even more transparent and more accountable?

Ms Davidson: As I indicated to you, the provisions have been in place only since 1993, and I have seen a great improvement in the way the rules are followed and understood by members. Of course, maybe it doesn't yet meet your expectations. That is certainly something the committee may wish to consider further.

I will be pleased to send you a copy of the minutes.

Senator Gauthier: Thank you. Do we intend to call the Speakers to this committee, Co-chairs?

The Joint Chairman (Mr. Milliken): They're not on our list at the moment, Senator Gauthier, but if you want to suggest that to the steering committee -

Senator Gauthier: No, I don't want to propose any further work for the committee. We have enough. I'm just wondering if it was the intent of the co-chairs to call the Speakers.

The Joint Chairman (Mr. Milliken): It's not on the list.

The Joint Chairman (Senator Oliver): There are no other members on the list, so on behalf of the committee I would like to thank you both. You have been very professional and excellent in your handling of some very difficult questions and it has been very helpful to the committee.

Members of the committee, I would like to tell you I have received today a letter dated September 28 from the office of the ethics counsellor in response to a request I made that they answer the questions that had been prepared by our researchers. A copy of this will be sent out to every member of the committee.

The other thing in closing is that I was told today that tomorrow marks the 22nd anniversary of Mr. Gauthier's first being elected to Parliament in Canada. This committee won't be meeting, but I would like to take this time to congratulate him and wish him well.

Some hon. members: Hear, hear!

The Joint Chairman (Senator Oliver): The next meeting of this committee will be Monday at 7:30 p.m. and we will not be meeting next Wednesday. There will be time to eat first.

Senator Gauthier: On that point, you will have to excuse some of the Liberal senators, because we will be caucusing.

The Joint Chairman (Mr. Milliken): That evening?

Senator Gauthier: I have already explained it to your co-chair.

The Joint Chairman (Mr. Milliken): The meeting is adjourned.

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