EVIDENCE

[Recorded by Electronic Apparatus]

Monday, October 2, 1995

.1904

[English]

The Joint Chairman (Mr. Milliken): Order, please. The committee will be considering its order of reference adopted by the Senate and the House on the consideration of a code of conduct for members and senators.

This evening we have as a witness Professor Sharon Sutherland from the Department of Political Science at Carleton University. She has a statement to make, and then committee members will be free to ask questions.

.1905

I'm sorry. Our interpreters have not arrived, so I guess we are going to have to suspend for a moment until they do.

.1906

PAUSE

.1908

[Translation]

The Co-Chairman (Mr. Milliken): We can now start.

Professor Sutherland, you have the floor.

[English]

Professor Sharon Sutherland (Department of Political Science, Carleton University): Thank you for your invitation to attend.

[Translation]

Thank you very much for your invitation. I'm very pleased to be here tonight and to take part in your debate on the subject of ethics. If you wish to ask questions in French, I can answer them, but I wouldn't pretend to be bilingual.

[English]

I'm not a believer in codes of ethics or codes of any other sort for what ails the body politic. They have a certain educational value, but I don't see codes as an answer to any important or real problem. But - and here's the ``but'' - I agree that probably the House and Senate must have a code for ordinary members, not just for people who are participating in government.

.1910

Indeed, I believe a code is probably unavoidable. Certainly you'll need a tough one that will stand up well to comparative examination. You're going to have to do as well as or better than any of the provinces. You're going to have to take into account what the Nolan committee is doing in Britain, for example, because you're going to be very much scrutinized.

Unfortunately, a code is going to cause more trouble than it alleviates. In particular, unless it's set up very well with tough mechanisms for monitoring, for censure of members when they transgress, and for discipline, it's going to create really enormous trouble. With a code, as you well know, you're setting up a standard of conduct for your members, and the media will surely audit you against that standard of conduct.

Furthermore, the media and the public will not be satisfied until every element in your code takes on a law-like solidity and has a machinery of enforcement behind it.

Why do we inevitably need these codes when the codes do nothing but worsen the situation? I think there are six factors. Usually people think there are three factors, but I had fifteen minutes alone so I was able to drum up six.

I think the first factor is public dissatisfaction with politicians and with politics. The Royal Commission on Electoral Reform did some polling and established that between two-thirds and three-quarters of all Canadians were moderately to seriously dissatisfied with the political process and with politicians. That's a tough environment.

Second, we're living in an environment of restraint and so-called globalization, in which societies are being asked to shed their social programs and are told that life is tough, that people have to work hard, and that everyone has to struggle for the things they took for granted before. This means that nothing is going to improve for the public and that the public is going to be in a very bitter mood, a mood of low tolerance.

The third reason is that Canadian politics are not ideological. They are not principled. The differences between the parties are of degree and really centre on how best to build prosperity. What the parties are elaborating on between themselves is who is the most trustworthy to run the economy.

This leads to a politics in which people can't see much difference between the individual parties, so politicians then tend to distinguish themselves by playing a politics of character. Parties work on distinguishing themselves in terms of their moral fitness and their ethical probity, their ability and fitness to hold public office and to be in offices of trust. Inevitably this leads to a politics in which politicians demean the character and intentions of other politicians and the public believes them.

This creates an impression that political corruption gets worse all the time, when in fact those of us who study political corruption know that it's getting less. It's getting less because of better audit and better systems and better management. This is due often to technology. Probably none of it is due to human nature changing its course. Nonetheless, when people are asked to compete against one another in situations in which differences are hard to find, they do play the politics of character. The politics of character destroys public trust.

There's an American, Bayless Manning, who calls this the purity war in the American context. We see that it virtually destroys one President after another in the United States, and it is leading to a lack of governability of that country.

.1915

The fourth reason is electoral volatility in Canada. Canada has huge turnovers in elections - more than 60% in the last 15 years, I believe. This is staggering in comparison with every other western government. The United States has almost no change from election to election, and in Great Britain the change has been much, much less than it has in Canada.

What happens then is that every Parliament sees a bunch of inexperienced MPs come into Parliament. Sometimes they're not used to running constituency offices and their House offices. They're told they have a certain amount of money to spend, and the least of their worries is setting up an apparatus of control over those moneys. Sometimes they think of the money as their due and so do their books almost as though they were a corporation doing its income tax, to get the most out of the situation.

There were at least 15 such misdemeanours or misunderstandings in the Mulroney era. Those are always part of Parliament, and they've increased since budgets became higher. This is not human nature but lousy structures.

We also have inexperienced ministers. We tend to put into power, in the big ministries of state, people who have been elected to Parliament for the first time. This also leads to mistakes, not the least of which is a misunderstanding of what ministerial responsibility is.

The fifth reason is a general move in favour of a larger role for back-benchers in parliamentary committees. This means that MPs have more power than they used to have, it means that MPs are more attractive to lobbyists, and it means there are more mistakes to make.

The last factor is a media that works on the American norm. The media is transfixed by character issues and obsessed by the shooting gallery aspect of ministerial responsibility. If you think about what this has meant in recent Canadian politics, think about the 1984-88 Parliament, when we saw a Prime Minister with the largest majority in Canadian history being forced to let six ministers go because of opposition and media attack and a crucial element of doubt in his back benches. If he had it to do now, I'm sure that he would simply override, to the full extent possible, the sort of objections that were brought up against many of those ministers, or at least half of them.

In short, there's an interplay between what kinds of disciplinary measures are needed in a legislature and the independent power and resources of the legislature and the role of parliamentary discipline. In other words, the more power in a legislature, the more external machinery that is needed to regulate the conduct of the people now exercising that power.

In the United States the legislature does really important things. It makes laws on the floor of the Houses and it has many resources; it has little or no party discipline. There is therefore very heavy machinery for establishing conduct rules and monitoring them, and ordinary legislators are surrounded by the same apparatus that our ministers experience. Their voting records are scrutinized, there's registration of interests, and the legislature has the capacity to punish.

In Great Britain we have principled parties and discipline is relaxed. Committees do interesting work, but it's the government that decides. The MPs have next to no resources to spend, so MPs can be left alone, at least until Nolan.... The result is that there are some abuses, but it's easy to see that the abuses come out of deeper structures. MPs need money from firms to fund their researchers and run their offices. In other words, they have to become lobbyists in order to do their constituency work. In order to write any papers and do any research to get themselves noticed in the House of Commons, they need the money.

In France, at the turn of the century, no fewer than 25 and possibly as many as 125 legislators sold their votes to the Panama Canal Company. Why did the company buy them? Because they mattered. Because the legislators could influence whether or not the company got the legislation that it wanted. The legislators were independent of government.

.1920

It and subsequent abuses created such scandals that the republic had to be replaced by one other and then another still. Now we have a legislature in France in which individual legislators are much less important because people don't trust them.

In Canada almost everything in our system is patterned on the U.S. system, except for the core-representative institutions. In other words, the Auditor General in our system doesn't run like the British Auditor General; it runs like the General Accounting Office.

We organize our public servants in the same way they do it in the United States. We're culturally similar. We pick up American fads such as the current fad of delayering, empowering, single-operating budgets, as well as the general managerial framework, which, if it hasn't occurred to anyone else, I'll take the opportunity to say now is a recipe for fraud and disaster in the public service.

However, in Canada we have the British system of monitoring MP conduct; that is to say, no real machinery. In Canada, until now, party discipline has been substituted for experienced politicians and for principled parties. Party discipline has served to keep people out of trouble, as well as under a thumb that's often seemed to legislators to be arbitrary. The thumb was very often the thumb of PCO, the Privy Council Office, and the Prime Minister's Office, because the public servants there were buying themselves as quiet a life as possible so that they didn't have to ride herd on scandals in all their spare breathing moments.

Now the House of Commons wants more latitude, committees want a larger role, and the public mood is surly.

What will happen if you impose a really ambitious formal code? Well, I've already said it. You'll always have new and inexperienced MPs in Canada. Our media are predatory, and there's high competition between parties. If you impose a really ambitious formal code, you could become the entertainment of the Canadian nation, with a subsequent continued loss of faith in the representative institutions.

My recommendation is to keep it simple. Don't pretend you're doing great things. Don't be optimistic about what you're doing or about the great results it's going to have. Don't be optimistic about the scope of reforms to make people believe in probity. None of that will work.

The only thing you can do to make your lives simpler is to make the enforcement machinery stronger than your code and to make sure you have a continuing educational program to limit the amount of difficulty members can get into.

What do you need to prevent? Well, I think there are only four things that can go wrong, four categories of episodes.

The first is when people in your position, and in positions of power and honour generally, use their position to offer rewards or enticements to others with the motive of getting a return, of getting a gain, of getting a private gain in this case. It could be money, it could be sexual favours, it could be anything.

The second is people, again with private motives, using their position to bully and coerce in all sorts of ways.

The third is when people are trying to assist the party or their political cause and promise favours in return for consideration. It could be promising a contract in return for a donation to the party. It could be any of those things that seem normal at the time.

It sounds terrible to say it like that, but it's very easy to fall into these sorts of situations. The third is more principled than the first two, which are really ordinary conflicts of interest.

.1925

The fourth kind of sin is using bullying or manipulative tactics to bring people into line with the desired strategy, either to help the party or help a political cause. That includes suppression of facts and manipulation of the historical record. It's any kind of strategy that people use to make things look better than they are.

In other words, the things you have to prevent are helping your friends, including yourselves, and annoying or harming your enemies. What that means is that a code exists, I suppose, to take the politics out of politics or at least to take the rough edge off politics. The more high-flown your code is, the more dangerous it is.

What machinery do you need? You need a machinery that is placed outside the members of your club. We're past an era in which a committee on members' interests or a committee on procedure can look into transgression and tell the media that it's being looked into and hope that the courts won't take an interest. In other words, whatever you do will have to have a believable machinery for monitoring, for auditing, for providing good transparency and good exposure. Probably your best weapon to minimize the difficulties would be as much transparency and exposure as possible. You might even want to think about centralizing members' budgets and having them looked after by professionals.

The courts have twice signalled that they have no intention of waiting for internal boards or committees to rule before they move to prosecute. That has happened with both the Ontario courts and the Quebec courts within the last six or seven years. The public is going to see any hesitation, any attempt to look into things in a judicious fashion, as a cover-up. All I can do is say that I think you have to make the best of a very bad situation and hope that your machinery is convincing.

That's all I have to say. Thank you.

The Joint Chairman (Mr. Milliken): Thank you very much.

[Translation]

Mr. Bellehumeur (Berthier - Montcalm): I will ask my questions in French and you will answer in English. There is no problem whatsoever

Prof. Sutherland: I'm willing to answer in French.

Mr. Bellehumeur: I want to thank you for coming here tonight and giving us the benefit of your comments on this very important subject. I appreciate your point of view.

You have mentioned several crucial elements. Nonetheless, you told us that a code was in no way the end to all the problems. Do you think that a code with a good enforcement mechanism, with certain limits and restrictions and an education process will improve the image of members in the eyes of the public? Would the public feel better protected? Would the elected members appear to be more trustworthy? What about prevention?

Based on what you have told us, would a code affect some important things, for example improve the member's image in the eyes of the public and would this better protect the public? The public has certain fears and is forever wondering what is happening on the Hill. Most of the time, the media only report the bad tricks and not the good turns. With a code, could we go as far as prevention? As you rightly said at the beginning, there is a heavy turnover of members from one election to the next and their career is extremely volatile, unlike what we see in other countries. Could we use a good code to do some prevention work among young members, for example?

.1930

Prof. Sutherland: I will start with the third question, because it is the easiest. It concerned using a code to prevent crime. I think that if a code is to work, it must go hand in hand with education. In other words, a code that is not part of a broader education program for members of Parliament will not work. People will forget very quickly and fall back into the same traps. So I think prevention depends on education.

As to public protection, I really don't think people are in much danger because of their members of Parliament. In Canada, we don't see the type of crimes we find happening in other countries. There may be some budget discrepancies, but the type of scandal is not very costly, although it offends the media and the public. So I don't think the public needs protection.

As to the image of parliamentarians, I think that regardless of what you do, it will always be extremely difficult to protect or improve this image. Once the code is in place, the media will scrutinize it intently and will report that a particular person did not comply with a particular provision - that he or she took a certain amount of money and must now resign. There will be artificial scandals. A code might even increase the number of scandals.

Mr. Bellehumeur: Are you saying that a code will not shield us from criticism?

Prof. Sutherland: That is correct.

Mr. Bellehumeur: We will be criticized nevertheless.

Prof. Sutherland: However, if you don't have a code or any mechanism governing the behaviour of parliamentarians, people will say that the Parliament of Canada is probably the worst in the western world, and so forth.

Mr. Bellehumeur: So things will be worse if we don't have a code.

Prof. Sutherland: Yes, they will be terrible.

Mr. Bellehumeur: I see. Who should administer this code of conduct?

Prof. Sutherland: I don't know. It should be someone who is not a parliamentarian, and someone who is not tempted to be nice to them. It should be someone completely neutral, who will look into situations of this type.

I think that even parliamentarians are entitled to legal counsel. Politics is not always very nice.

Mr. Bellehumeur: Thank you very much.

The Joint Chair (Mr. Milliken): Mr. Boudria.

[English]

Mr. Boudria (Glengarry - Prescott - Russell): Thank you, Mr. Chairman.

I'm listening attentively to the line of questioning just preceding, but there is one reality we have to live with as legislators - the issue of the supremacy of Parliament, and as a corollary to that, the issue of public accountability.

.1935

In other words, we can't on the one hand give out power that is ours to someone else, because Parliament must remain supreme. So if we appoint someone, the person has to be, I would submit, an officer of Parliament - perhaps not an MP but perhaps someone like the Auditor General. In the report we constructed around 1992, we referred to that person as the jurisconsult, similar to the one who currently is in office in Quebec City. Nevertheless, that person has to report to Parliament, not to an agency of the government or to someone else, because then, would you not agree, we run at least the danger of having a Parliament that is no longer supreme?

Prof. Sutherland: I've always been accused of being a romantic about Parliament and the superiority of parliamentary institutions, but I don't think parliamentary supremacy is bound up in any of the things that offend the public or people's sense of probity in regard to money.

When the conventions came into play about the status and the need to remove all possible impediments to parliamentarians doing their duty, the situation was that people were making their way to Parliament to face a monarch. There was no settled government. The Crown had not yet descended into the House of Commons, so there was no settled government, no settled group of advisers of the Crown.

What you really had was a situation almost like France, where votes on the floor could decide situations. Parliamentarians were liable to being waylaid and beaten and put in sacks until a vote was over, that type of thing. That's not going to happen now. As well, at the time those understandings became embedded into our conventional understanding of what Parliament was all about, MPs didn't have budgets, and they were in no sense really privileged people.

Now you're seen quite differently. What happens is that the necessary types of freedoms of Parliament get lumped in with - what could you call them - the ``liberties'' of parliamentarians, and they're not necessarily the same thing. I think you have to think long and hard about that.

The other thing is that I think the time is over for parliamentary privilege in the sense of taking really extreme liberties with what's said on the floor of the House of Commons, in particular in reference to public servants and so on. We are coming into a situation where public servants are much more in play in Parliament. In the United States, they are actually protected by rules of speech. The House members can't say just whatever they please about another's reputation. They stand to get liabilities for attacks on character.

So I think the freedom of Parliament has to be judged in conjunction with what you say in your code. If you say a whole lot in your code, you're going to have your bluff called.

Mr. Boudria: I was just thinking that I'm afraid we're going to have to disagree on that proposition. I, for one, cannot ever imagine the situation where you who would testify before us as a witness - or I, or my colleague across the way - could be impeded, threatened, chilled or otherwise from saying what he really thinks, or you really think, because someone has frightened you on the way in with a potential libel suit if you say something he or she doesn't like. Under the system we have....

.1940

I was at the centre of one of these debates a number of years ago. A witness appeared before a parliamentary committee and was subsequently threatened by no less than a TV producer, because the person had used a video clip the TV producer said was hers without giving her proper credit or some such nonsense. That was deemed to have been a point of privilege at the time, the effect of which would have been to prevent another witness from producing the same type of evidence.

Prof. Sutherland: Mr. Boudria, I shouldn't have tried to get the floor back from you -

Mr. Boudria: No, it's okay.

Prof. Sutherland: - because I know better, but just as a point of clarification, I was talking about the edification of the ideas of parliamentary privilege. It was parliamentarians who were impeded. That's why all the privileges in the old days were connected with parliamentarians and not with witnesses, in particular.

Mr. Boudria: But with respect, Professor, it's the same thing. If you, as my constituent - and perhaps you are my constituent, I'm not sure - approach me to raise something on your behalf in the Commons, or whether you testify before a committee of the Commons, or in this case a joint committee, it's the same thing. I should be able to make that representation on your behalf just as much as you should be able to make it on your own behalf before a parliamentary committee with neither of us having that type of threat looming over our heads. Right?

[Translation]

Prof. Sutherland: I am not so sure.

Mr. Boudria: You aren't? I have another question for you. I do not believe that the members of Parliament's budgets are necessarily at the very heart of the debate we're having today. I do not think it is the main issue. It is rather a matter of reconciling the member's personal interests with the public's interests.

Of course, there might be some cases of embezzlement by certain parliamentarians, but I am not convinced that it is really the focus of the debate. I think we should better discuss cases when a parliamentarian should abstain or not from voting on a given bill. The present legislation is not clear on this. The Parliament of Canada Act talks of public works and gives a rather archaic definition. I suppose that in the past, there might have been controversy around a vote on the building of a bridge, etc. And in those days, there weren't any software worth millions of dollars that could lead to controversy as is the case today. We have to modernize our legislation and it is one of the aspects that we must examine.

Another aspect deals with the personal interest that the spouse of a parliamentarian might have. We have to find ways of setting rules that will guide us in our definition of what is right and acceptable and of what is wrong and unacceptable.

In your preliminary remarks, you didn't deal with those aspects. Could you share with us your thoughts on the subject?

Prof. Sutherland: I thought I have dealt with it a bit at the end of my remarks, when I described the circumstances that might give rise to certain situations. But you are right: you have to discuss this matter of conflict of interest and discuss the possibility for certain MPs to abstain from voting and even from taking part in certain debates when their interests are involved...

[English]

I'll return to the earlier theme, that before we found ourselves in a situation where people wanted to see back-benchers with quite a lot of power and with the power to develop policies and so on you didn't really have to worry about an MP being in a conflict of interest situation. He or she had no power to really seriously influence a course of events.

If the government said this was to happen, people voted. They were therefore free to have their friends where they wanted to have them or to chat to the minister or to lobby the minister even a little bit about what would be good in a certain situation. They were free in effect to pursue some of their own interests.

.1945

To the extent that MPs actually get power, so that we become more like an American house of commons, you're going to have to expose your wife's, your husband's, your spouse's assets and list all your interests so that people can monitor behaviour to make sure that you're not speaking on the issues that really serve your interests.

This is a modern development, which is too bad, because very often a businessman might have very good ideas about representing the constituency of interests of which he or she forms a part. We're in an era now, however, in which people say that even the slightest appearance of an interest can disqualify you.

There's an example in this book, Corruption, character and conduct, from B.C., in which a judge considered removing counsel from hearing a case concerning sexual abuse by a priest of a couple of his young constituents, because the counsel was a convinced Roman Catholic and the judge and commentator said it was to be expected that this devout Roman Catholic would immediately be swayed and say the priest was totally innocent. This is a very, very new way of thinking, and it seems to be very much part of the modern sensibility.

That's the kind of situation that people are going to have to protect themselves from. That's why I said the least said, the better.

[Translation]

The Joint Chair (Mr. Milliken): Mr. Epp.

[English]

Mr. Epp (Elk Island): I am intrigued with some of the things you have said. One statement you made is that the level of ethics in government in your opinion is improving, that it's not as bad now as it was. Are you referring strictly to the present government versus the one previous to 1993? What timeframe are you looking at, and what empirical evidence do you have? Is it based on a survey? How did you determine that?

Prof. Sutherland: I don't have any consolidated empirical evidence to offer right now, but there is evidence. I'm not referring to this government in comparison to the last government. There's a secular trend to lower numbers of frauds and fewer instances of blatant dishonesty in the United States, in Britain, and in Canada. I think even the accounts in Italy are in pretty good shape in the sense that people know where the money goes. Money doesn't readily disappear into the woodwork in the way it did in the day of John Macdonald. The people who study this think that's largely because of the ease of keeping records, the ease of auditing records electronically, and so forth. Now it's much more difficult to get away with anything.

Mr. Epp: To what extent do you think the problem might be less because we have lowered our standards, because we accept more now than we did before?

Prof. Sutherland: I don't think we have lowered our standards. Look at the kinds of episodes that happened at the turn of the century, such as Macdonald sending a telegram to the railway barons, saying: ``Must have another $10,000. Don't fail me. It will be the last time of asking.'' They sent him the money; he lost one election and was back in power after the next election. I can't imagine getting away with that now. Generally, people extracted more favours from the system. We have lower patronage in the public service, and so on.

.1950

I think in large part we're victims of what I talked about as the purity war. Politicians like to catch each other on character issues because that's one of the things that remains in an era in which you don't really have much to offer the public. You can't bribe the public with its own money to the same extent parties were once able to do so.

Mr. Epp: Why do you then suppose a large proportion of the population is suspicious of us? You indicated that two-thirds to three-fourths of the population is dissatisfied with their politicians. You're saying that our ethical standards are improving. We've now heard from several witnesses that we should be careful, that there is in fact no problem, that it's just a public perception thing. Where does the public get this idea that things are so bad when they're in fact better, according to what you're saying?

Prof. Sutherland: I think the public gets the idea that things are so bad from the enjoyment with which politicians catch each other out.

If you take every single scandal...to move back in time so that it's no longer sensitive, take what Diefenbaker and Nielsen were able to do to the three Quebec ministers: Favreau, Lamontagne, and Tremblay. They really didn't have a chance. They were in a minority government, and Diefenbaker and Nielsen orchestrated a series of accusations against them. When you're being accused of something and you start to defend yourself, you look unattractive, you look like a whiner and an excuse-maker. It's very hard to present evidence to the effect that you didn't do anything, when people have little bits of things that fit - a motive, a shoe, a this or a that. Circumstantial evidence can make things look pretty bad, and then you're not in much of a situation to protect yourself.

That's why I think any code that sets up really serious provisions and reaches for and establishes a large number of offences is going to have to give people the protection of an adversarial situation to defend their reputations. People are going to have to have lawyers and things are going to have to be handled very, very seriously, or you will get into the situation of creating victims for the entertainment of the media.

Mr. Epp: Okay. That brings me then to the whole point of this exercise. We're here to talk about developing a code of conduct, a method of enforcement, etc.

I almost picked up from you that your advice would be not to do it, that you would like us to drop the project. Is that...?

Prof. Sutherland: No. I think you have to do it, I think you must do it. You're going to have to have a code that is forward-looking and that is very, very intelligently planned. My message is to put your attention on the enforcement machinery, because you can't define all the possible things that could go wrong. Just set up the simplest categories and then think about what kind of a machinery you can set up that is not open to the cynicism of the public and the media. I think disclosure is the best bet.

Mr. Epp: This cynicism is fed by group.... Let's say, for example, that we developed a code and then said our administrative mechanism is going to be a joint parliamentary committee. You say that would generate a lot of cynicism, and I agree. Do you not think even this committee would generate cynicism? I mean, do we not here have ourselves setting up our own standards and setting up who's going to enforce or administer them? Does that generate public cynicism, too?

.1955

Prof. Sutherland: I don't think so, because you're doing what the Auditor General hoped the government would do in establishing the program budget, which is to specify a whole bunch of ambitious goals and create the stick with which you're going to be beaten. That's what the media and the public are expecting of you.

I think you probably need to establish something like a tribunal. It would be established by statute and would look into individual cases. People would then have the protection of their lawyer and be able to hear the whole case against them. Things would be done with grave seriousness.

In Britain there's a tribunals act. Whenever a public servant's conduct is questioned, the case goes to the tribunal. Something like the Sinclair Stevens affair would have gone to a tribunal.

Mr. Epp: My idea is that in the area of ethics we should have an enforcement mechanism similar to the totally independent Auditor General. What do you think of that idea?

Prof. Sutherland: If you say we're going to have an enforcement machinery something like the totally independent Office of the Auditor General, I think the government might do what the Liberal government usually does, which is add more powers to the Office of the Auditor General. You would find yourselves at the mercy of the Office of the Auditor General. Personally, I think I would get out of politics before I sat around for that.

Mr. Epp: Why?

Prof. Sutherland: The office has enormous powers now and there's no political mediation of those powers.

Mr. Epp: But the very strength of the Auditor General is that he doesn't have to be afraid of political reprisal. He can truly represent the best interests of the public in doing his investigations and by making free and open disclosure without worrying about it.

I think it would have a double effect. One is that if someone is in fact guilty of something, that individual could call the shots on it without fear of reprisal and it would fix the problem.

More importantly, and I hear this over and over, the problem isn't large. There are people who are falsely accused of things. This is where I think the independence of an ethics administrator or whatever would be so important. When that individual judges a case and rules the person innocent, he or she would be truly believable, because the individual would be separate from the political influence.

Prof. Sutherland: Yes, I take your point. It would work in some jurisdictions. It would work in France, which works on an inquisitorial model of justice. There you have the juge d'instruction, who builds up a dossier; eventually it comes to trial.

However, I don't think that model works in Canada, because it is an inquisitorial mode and not an adversarial mode. The situation would be very similar to what happens when the Auditor General takes a case. He builds up the case against the people or organization that is being faulted.

That's not part of our instinct. We want to see people have a right early on to present their own case, to know the whole case against them, and not to have people creating a case as they go along. It's not part of our mentality for dealing with individual rights, and you would be giving up your individual rights.

Mr. Epp: Yes, if you took that model to the extreme. I think I know what you're saying. I don't think I agree that we couldn't in fact use it here.

Mr. Chairman, I have one more question. To both of our chairmen, my apologies for this next question.

.2000

You made the statement that we are at greater risk because fewer of our parliamentarians are now lawyers. Now, I'm in a party where of 52 members we have one lawyer, of whom we are justly proud. She is a very capable, articulate woman, and I don't think I would disqualify her because she is a lawyer. But all the rest of us come from different backgrounds. Why do you really think we are at greater risk than those among us who are lawyers?

Prof. Sutherland: For a very simple reason that doesn't have all that much nobility in it and doesn't have a lot to do with honesty: lawyers are trained in the provisions of the Criminal Code and are repeatedly trained in it. If they transgress in any way, shape or form, they stand to lose their licence to practise law. So they're extremely cautious, probably more cautious with appearances than they are with reality, perhaps, but nonetheless it keeps them out of trouble. It keeps them out of trouble as MPs and it keeps them out of trouble as ministers. They have a certain carefulness. There are exceptions, but as a rule, they're very careful about what they say.

Another reason is that in order to get into law school, lawyers have to do quite a lot of background in parliamentary systems and so on. They know how the system works and they know where the pitfalls are.

So they have the protection of knowing the law. They have the protection of knowing about the machinery of government.

As a third element, the kinds of transactions a lawyer gets into are always pretty much between two people - they're consensual and they're limited - whereas an entrepreneurial-type businessman or woman starts with a notion to make something happen and has to work through people. So you have layers and layers and layers of acquaintances who will figure in a deal, and more people know about things. The more people know about things, the more likelihood there is they will become unstuck. With a dishonest lawyer, the exposure is limited to one person at a time, whereas if someone makes a mistake in business, 15 or 20 people might know about it.

So I don't think lawyers are intrinsically superior. I know folk wisdom is very much against allowing me to say that lawyers are more honest, but I think they are very, very much more careful.

Mr. Epp: This is a closing comment and not a question, Mr. Chairman.

I'm intrigued by this observation. When I go around to different meeting places, often when I am introduced there will be a strange juxtaposition of two kinds of jokes and derogatory stories - related to politicians and lawyers most of the time.

The Joint Chairman (Mr. Milliken): You move in the wrong circles.

Mr. Epp: With all due respect to our honourable chairman -

The Joint Chairman (Mr. Milliken): Senator Oliver, you have a supplementary question.

The Joint Chairman (Senator Oliver): I have just a brief supplementary.

Two of the members have asked you questions about what the code should comprise. Mitchell Sharp, when he was here, and Mr. Wilson, when he was here, said we should really look at developing some principles and get a whole series of principles. Then, whatever we develop by way of a commissioner, that commissioner can apply a set of facts against those principles. The kinds of principles are those set forth in Nolan.

One of the principles, called ``ethical standards'', says:

Public office holders shall act with honesty and uphold the highest ethical standards so that public confidence and trust in the integrity, objectivity and impartiality of government are conserved and enhanced.

What would you think of having a series of principles like that in a code for parliamentarians?

Prof. Sutherland: Well, they'll sound nice, but they won't satisfy anybody very much. They're not enforceable. That might be like the preamble to a set of more applied principles.

The Joint Chairman (Senator Oliver): What do you suggest, then, to assist us?

Prof. Sutherland: I haven't done a whole lot of homework for you folks, and I apologize, but I would look into the content of other codes and try to simplify them.

I think there are some very basic principles: that people simply don't use any of the authority or any of the power or any of the prestige they have to create undue benefits for themselves. Well, what's an undue benefit? This area is extremely tough.

.2005

You could look at the 15 or so cases that have happened during the last 10 or 15 years. They were centred on making use of funds for constituency and parliamentary offices to create for constituency workers benefits to which they weren't entitled. MPs have had a tendency to employ each other's sons and daughters, and that always looks bad.

What else have people done? I think it's pretty much the financial side of things that has the media upset. Then, as the member mentioned earlier, there's the problem of members arguing vociferously for certain legislation that might benefit them if it were passed. Or there might be a campaign. In the first Mulroney government there was a campaign in the labour and employment committee against a public servant, led by an old political enemy of the gentleman. It turned into a campaign, and the minister didn't extend any protection to the public servant.

I suppose it really does come down to favours to one's self, or to one's friends, that are not legitimate to hand out, and using coercion and repression and bullying tactics to get personal benefits, or to benefit the party, or whatever people are attempting to do.

It seems to me there are only those four categories as a typology.

The Joint Chairman (Mr. Milliken): Mrs. Parrish.

Mrs. Parrish (Mississauga West): Thank you, Mr. Chairman.

I'd like to make a few comments, but I'd like to zero in on this. What I think I'm interpreting, Professor Sutherland, is that you prefer the U.S. model, where they don't have such strong party affiliation. Am I correctly interpreting what you said?

Prof. Sutherland: No. I don't prefer the U.S. model. I prefer the parliamentary system many, many times over. But the U.S. system has a strong machinery to police members' conduct. It has to, because the individual legislators have a lot of autonomy and a lot of power, and often considerable impact on decisions.

Mrs. Parrish: Fundamentally, I think what they have is a lot more freedom to vote according to what the lobbyists force them to vote for. I don't think they have the freedom we have. I think what happens now - and I can't help but defend our system a little - is that we choose a party; we choose the rules of the party; we choose the platform of the party; and we don't deviate that much within our own group. I think in the States it's wide open for abuse. Each individual votes as an individual, and whoever sat on that pillow last and left as much money on that pillow as possible gets the vote.

So when you talk about stringent rules, I go back to your six points. I listened carefully, actually, and you really had three points. I think you were right in the first place.

I think you talked about public disgust. That's a modifying effect on this whole reason for being. We have to have a code of conduct because the public says we're disgusting; because the media and attacks by other parties make it excellent reading; and because we are so widely read and covered we are totally transparent, or in the public view.

.2010

I think you talked about inexperience and the fact that many of us are inexperienced. I think that's why we have the comfort of the party system, because we don't make as many mistakes as we would if we were inexperienced with no party system.

What I'm finding difficult is that you're giving a very mixed message. As a university professor...one would hope the message I'm receiving subtly isn't the message a lot of your students are receiving. You've used terms like ``machinery'' and ``stick''. You've said, and I quote, we would have ``the most terrible parliament in the west'' if we didn't have a code of conduct, and that politics is not a nice business.

What you've said very pointedly is that our conduct is better than it was in the past, and we haven't had a stringent code of conduct. So on the surface you are saying very nicely, with all due respect, ``You guys aren't so bad.'' But you're also giving us very difficult messages with your language by calling us potentially the most terrible parliament in the west.

Prof. Sutherland: I hope I didn't say that.

Mrs. Parrish: You did. I wrote it down.

Prof. Sutherland: I'll have to revisit what I said, because I wouldn't have meant to say that.

I mean to give you a mixed message. I mean to tell you you're in a tough spot. I have no simple answer for you.

Mrs. Parrish: May I go back again? You say we really need this heavy code of conduct and we need tough policing and we need lawyers to assist us every step of the way. Then you turn around and say that someone who is accused publicly, no matter what they say, will look like they're whining, fussing, and guilty until proven absolutely perfect. How would your strict code of conduct eliminate that problem?

Prof. Sutherland: It wouldn't. That's why I'm saying you should put as little in your strict code of conduct as possible - as little as makes sense.

Mrs. Parrish: But according to you, the rules, when we're caught, should be absolute sticks to beat us about the head and shoulders.

Prof. Sutherland: No. I think you should have protections. I think the code you will elaborate will be used as a stick to beat you about the head and shoulders. Almost certainly the code you elaborate will be used as a standard against which your conduct is judged. You won't get any mercy from the media, and the public won't be sympathetic.

Mrs. Parrish: And we won't get any mercy from the parties in opposition, because in fact the worse they make us look, the better they look.

Prof. Sutherland: That's right. I was quite clear.

Mrs. Parrish: It sounds as though you were quite clear, and I had no reason to be increasingly angry as I was listening to you speak.

I have a daughter at York University. She comes home every day and says her professor thinks all politicians are slime. She has to sit there quietly and make sure he doesn't know who her mother is. He comes from Carleton - he's brand-new at York - and I'm sitting here thinking this is where he got it from.

I think what concerns me is that you're obviously one of the more intelligent people in society. You've told us that a code of conduct should be fairly general but the rules must be very strictly applied: code gentle, rules tough.

Prof. Sutherland: Carefully and strictly, yes.

Mrs. Parrish: But you're also acknowledging that the media is not going to accept it no matter what we do. The parties in opposition are going to dig for everything they can find, and if it's not the truth, they'll make something up.

So we're not only between a rock and a hard place; by making this code and doing what you've suggested, are we not pandering to all of that?

Prof. Sutherland: I think that was where I started out. I think you're going to have to do it, because if you don't do it, the alternative is worse. People will be accused without protections. The public will form the view that the Canadian Parliament is behind other parliaments in setting up these codes, and so on. All the energy is toward having codes and toward having enforcement mechanisms and so on. This is part of what's happening in parliaments.

Mrs. Parrish: If you did a poll tomorrow on the street, the energy in this country is also toward a return to capital punishment, but that doesn't make it right. Are we not under some obligation to educate the public and say that these codes in the States are there because it's rampant with lobbying and it's not working?

Prof. Sutherland: Yes, that's one thing you might say, but I don't think it's going to hold the fort for very long, because you have the example of other parliaments. The Nolan Committee on Standards in Public Life has just met and has made a number of interesting recommendations. Other parliaments have their codes of ethics, and that's what's happening.

.2015

As abuses are inevitably happening, it's going to be asked: why doesn't the Liberal government have a code of ethics? The Mulroney government - everybody knows where it ended up - didn't establish a code; it was for just a very weak kind of enforcement mechanism and so on.

So you're going to get pushed to address problems as they come up. You could maybe cross your fingers and hope you won't have any kind of a scandal at all, but it's very unlikely, particularly as you come up to the election when opposition politics gets a little bit tougher and less principled.

The other things is that you're quite right about the lobbyists in the United States. The reason, as you say, is that the lobbyists want the votes of the congressmen.

But the situation in Canada is changing. The energy in this House of Commons over the last12 years has been to increase the role and amount of power and discretion that individual parliamentarians have.

You're sitting on the justice committee, for example. There's now a subcommittee of the justice committee that oversees the business of SIRC. So there are a number of things that are quite new to parliamentary government that -

Mrs. Parrish: Let me interrupt you. I think you have to look at the full picture. We back-benchers may be getting more powers, but it's only within the network of party discipline and party philosophy.

I think what also happened with Mr. Mulroney is that people finally got fed up with the scandals so they made the ultimate code of conduct and they threw him out. They threw him so far out that his caucus now meets in a phone booth. So I think the ultimate intelligence of the public in Canada is what's going to keep everybody up here on the straight and narrow.

I wanted to point one little thing out to you because I don't want to get into any sort of argument or ongoing debate. All the guys who got into trouble in the past were lawyers - to a man. They were also men, by the way. So I think being a lawyer only trains you for how to get around the problem if in fact you have a larcenist's heart. Thank you.

The Joint Chairman (Mr. Milliken): That wasn't really a question, was it? Was that not just a comment?

Mrs. Parrish: No, it was a closing volley.

The Joint Chairman (Mr. Milliken): I have a question for the witness before I call on Senator Stollery, who's next on my list.

Early on in your comments, Professor, you said that the code must outdo the codes of the provinces or we'd be slammed. But then you said that the least that's said on the code, the better. Is it possible to outdo the provinces and still say nothing on the code?

Prof. Sutherland: Yes, making sure you're monitoring machinery on disclosure and exposure is better. Maybe there could be a tribunal setting. I don't believe the Liberals are going to be vastly different from the Conservatives. I think you're going to have things crop up too. Human nature is pretty much the same on any side of the House and in any profession.

Senator Stollery (Bloor and Yonge): Mr. Chairman, I'll be very brief.

You made a couple of observations that I found a bit conflicting. First of all, I followed the Nolan committee, and I recall that there were paid questions in Westminster in the House of Commons, which was the issue. People were accepting money to ask questions on behalf of interests, which to my knowledge has never occurred in the Canadian House of Commons.

.2020

If I'm not mistaken, I believe I read that some very senior British MPs who were not involved in any scandals and who have very fine reputations opposed many of the recommendations of the Nolan committee. The reason that I read - it's part of the tenor of your testimony - is that MPs, as I understand it, are citizens.

Mr. Epp is a citizen elected by the people where he lives to go to Ottawa and represent them, but fundamentally he's a citizen. I never met Mr. Epp before we met at this committee, but I assume he's an honourable man because my assumption is that the men and women around the table are honourable people, and they're citizens. They're members of the Canadian public. They're not the bureaucrats.

By the way, consider the United States. You talked about our bureaucrats changing. The last time I looked, almost 6,000 were fired after every federal election. The point is that the men and women here are citizens representing their fellow citizens who have elected them in a fair election.

The tenor of your observations, it seems to me, is that even though they're citizens they're not quite good enough. So we have to get someone else, who in fact would be a bureaucrat to have the kind of powers you're mentioning, who would actually be overseeing the citizens who were elected from the various two hundred and whatever constituencies across Canada.

Doesn't that seem a little bit like a contradiction? Does that seem like the kind of atmosphere we want to create in a free and open Parliament?

Prof. Sutherland: I said as clearly as I could that I'm really against a kind of inquisitorial mode of an investigation of anybody's deeds. I believe in the model of natural justice, which is that when you're attacked, you have the right to hear the whole case against you, and you have the right to have the same protections as any citizen has when they're accused of anything.

I would like, at least, to see this in the code. To make sense, it's up to you to decide what that is, because I can't solve that or do that kind of research on a dime. But you have good researchers. You should have machinery that gives people who are accused and who are caught up in an accusation of some form of scandal the same protections as people have in other settings to clear their reputation. You should hear everything at once instead of having someone dig around in your background while you wait and sweat.

I think the inquisitorial machinery is the wrong machinery to adopt. I do think that you are citizens and you have the right to those protections, just like public servants should have the rights to those protections when they're accused of conduct offences and so on.

I may fall into a lit bit of the professorial trap of saying things with more verve than what I'd care to defend later on, but basically I do believe that.

Senator Stollery: It seems to me that you're saying it's the same for public servants. Of course they're citizens, but they were not elected by their fellow citizens from the various regions of Canada to go to Ottawa in our Westminster system to prove or disapprove of government and participate in governing.

This business of sitting around accusing people of all kinds of things has not been a feature, frankly, of Parliament in most of the time I've been here.

.2025

Second, I think it's important for us to remember that members of Parliament are not bureaucrats. With the exception of the Ottawa members, they don't come from the bureaucratic structure. They're sent to Ottawa by the citizenry where they live.

And they come up for election. Everyone forgets they come up for election every so many years. Very often, their neighbours and citizens pick somebody else to go to Ottawa.

That's the kind of system we have. Maybe I'm misunderstanding you, but I thought there was this element of politicians this and politicians that. But the people who are elected are sent to make the compromises that are involved in running a country. There are all the things that have to be done and there are different interests.

They're citizens. Maybe I misunderstood you, but I thought there was a little emphasis and a little barb about politicians. Politicians are you. Presumably you vote. You could have run in a constituency around here and become one. They're you.

Prof. Sutherland: I would have liked to. The parallel between politicians and public servants is that in both cases, when you're accused of something in the House, there's no good way to put the charges at rest. In that respect, I think one machinery could serve a couple of goals. There's no good, clean way to put something to bed and get rid of it.

As for the civility of politics and the Canadian House, I really disagree with you on that one. The last Parliament saw Harvie Andre begging people to go down a few notches on the hostility and accusation front to moderate Question Period. Question Period is another issue, but of course that's where people form a lot of their opinions of politicians and of the Canadian House. It's not terribly edifying.

Senator Stollery: I would disagree with you. I've been a member of many of them as an elected and appointed member. I found it overwhelmingly, with exceptions of course, a civil place with civil people.

Thank you, Mr. Chairman.

Senator Gauthier (Ontario): Professor Sutherland, I'm sitting here listening to you answer the questions, and I must say I'm confused.

You seem to attach a lot of importance to a code of conduct that would have a set of principles, which I agree with, and full disclosure, which I think you agree with but you haven't defined what disclosure is. I'd like you to give me a little understanding of what you mean by full disclosure.

You say we should have a tribunal that would be responsible for adjudicating, which would have to have some credibility. You say it shouldn't be somebody from either the House or the Senate because there may be some appearances here of conflict. So it should be somebody from outside.

I don't understand exactly what you mean when you say to us that we should have a code that is forward-looking but that should be as simple as possible.

I put to you three questions. Maybe you want to answer in reverse order.

First, what is a simple code of ethics to you? What does it mean? We have a better term en français: ``déontologie'', which is a better term than what we are using around here. I tried to get the thing changed. Maybe someday we will find a new way of calling what we're doing here a ``code de déontologie'' rather than a code of conduct, which I think could be questionable. In English, when you say a code of conduct, you mean good conduct, but en français, un code de conduite is something you can have, yet it doesn't have any ethics attached to it at all. This is just en passant.

.2030

Would you tell me what you mean by a simple code? As well, what is, to your mind, full disclosure, and where would you choose this tribunal to look into the affairs or to look into the allegations made either inside or outside the House?

I also have another question I want to follow up with.

Prof. Sutherland: Well, I'm glad it's your task and not mine. By a simple code I mean a few axes, such as those I explained or identified, as being the way I think about what goes wrong in the case of office holders: that is, when the rule is used for personal gain by means of either enticements or coercion, and when the role is used for getting some partisan benefits by either enticements or coercion. It could be as simple as that, with the preamble.

Then, for the matter of disclosure, I think again that has to be worked out situationally. If you find empirically...and I'm just going on the basis of what I've read about Canadian parliamentary ethics. If you were to look back in the records of the body that is seized by disciplinary episodes and just do a content analysis of what the episodes were and what was most difficult to handle, what caused the most grief, you might find surprises. You might learn things that I, as a member of the public, can't learn. What I see as a member of the public are the types of things the media picks up, such as hiring each other's sons and daughters, or using constituency funds. That's what got picked up. Those were the types of episodes that upset people during Mr. Mulroney's prime ministership.

So you could actually look at the empirical background of what is upsetting in the House of Commons and ask what you can do about this, that or the other thing. Can you maybe offer more professional help to members who are new to the House and are doing their budgeting; explain to them that those funds ought not to be maximized unless there is an actual expenditure; and encourage them to be wary about the types of things they sign off?

Likewise, you could do that in terms of who is on your staff and so forth - be cautious about the things that actually do cause the difficulties.

Senator Gauthier: Most of what you just said is covered by the Parliament of Canada Act or by the Criminal Code. As a matter of fact, everything you've said up to now is within either the Parliament of Canada Act or the Criminal Code. It has nothing to do with ethics. It's illegal.

Prof. Sutherland: That's right.

Senator Gauthier: It's absolutely illegal to hire one's relatives to work in one's office. Every member of Parliament knows that.

Prof. Sutherland: Maybe what you do is reaffirm -

Senator Gauthier: When you break that law you're taken to task by either the Parliament of Canada Act or the Criminal Code being thrown at you.

Among the fourteen who were alleged to have caused some misdemeanour, or whatever you call that in English, four or five of those were under the Canada Elections Act, which had nothing to do with the Criminal Code or the Parliament of Canada Act. It was minor regulations, where one advertised earlier than the time limit allowed. It hadn't anything to do with a criminal thing. But the RCMP made a big headline with that by having Mr. Inkster come out there and say that 14 MPs were under investigation by the RCMP. What a lot of nonsense that was.

Prof. Sutherland: At one point they had a separate division in the RCMP to look into parliamentarians' doings. Well, if you find that your research leads you in that direction, what would be against consolidating all of the conduct and criminal provisions, anything that touched on conduct, into one statute?

Senator Gauthier: Disclosure. What percentage of the budget of a member of Parliament is used for salaries and rentals and telephones, or fixed costs? Is it 90% or more? Maybe 10% of that budget is used for some research work that person needs to do because he or she is a critic for something and needs to have some additional help. That's not a big amount of money.

.2035

What's the total budget for a member now? Is it $175,000 a year?

A voice: It's $180,000.

Senator Gauthier: So there may be $10,000 there - and I don't know if it is $10,000 - used to hire some assistants to do some specialized work. That's not a big deal.

Prof. Sutherland: I'm on your wavelength. This is why I say I don't really believe in the necessity of codes but I do believe there is an image problem.

Senator Gauthier: You don't believe we should have members of Parliament disclose how many sheets of paper they've used in a month and how many pencils they've worn out. I've heard of one member of Parliament - he's not here today - who went so far as to say that everything, including the cups you take for coffee, should be taxed or assessed against you, and that paper sheets and envelopes and other things should be counted.

You want to create a bureaucracy? Go right ahead; be my guest. But I don't want any part of that.

Prof. Sutherland: I'm not for that kind of thing either, but I think what you see there is.... Well, you see it in this current House, where certain members adopt a holier than thou appearance. But if you recall, when the last government left, stories came out in the press - and people tut-tutted a whole lot about them - about officers of Parliament having to go out and reclaim fax machines and computers from departing members.

You can say that happens in a tiny number of instances, but when those things happen, unfortunately they stick in a person's mind, and so do the 15 episodes, and so do the stories from the journalists about people hiring each other's sons and daughters.

As one of the members said earlier, you have an image problem. It's up to you to adopt a strategy to ameliorate the image problem. It might be an idea to do what we were talking about earlier, to simply consolidate everything into one set of provisions and say these are the provisions.

Nobody teaches these subjects in university. There are absolutely no courses in ethics. When my colleagues and I did this book, Corruption, character and conduct, we had to duck around, to race around. First you have the Parliament of Canada Act, then you have the Criminal Code, then you have the code of ethics for ministers and then you have the possibility of a similar kind of code for MPs. A person's head begins to spin.

That's all old hat to you. It seems as simple as the nose on your face, just as the rules that govern my comprehensive exams when I'm putting a doctoral student through seem to me to be a piece of cake. It often takes the poor doctoral student six months to understand how many exams they're going to have to write.

I think the media takes the easy way in. Unfortunately, these things stick in a person's head. It's up to you to think of something that's bold and dynamic and protects the citizenship rights of people such as Senator Stollery, who thought he was protecting the reputation of Canadian parliamentarians against me.

I really do want to see a situation where MPs might moderate their speech in the House of Commons, be more civil, be less accusatory, and at the same time think of doing something that is interesting and looks convincing, where the machinery can't be misinterpreted by people being cynical, or can't be brushed aside by people being cynical.

Senator Gauthier: Maybe I'm naïve, but good guys come last in Parliament, you know. I can tell you that right now.

Prof. Sutherland: I feel they do in universities, too.

.2040

Senator Gauthier: You mentioned lawyers. You said members of Parliament who are alleged to have either infringed or breached the code, or whatever it is, should have access to lawyers. Who pays those lawyers, those expensive lawyers? If you don't know how expensive they are, I can give you the bills.

I am talking about allegations, not once the process has reached the courts. I am just talking about allegations. Before this so-called tribunal, I take it this would be just at that stage.

Do you think Parliament in itself, since it's partly responsible for this to happen...because innocent people can be hurt here, quite a bit. Now we're talking about presumptions. We're talking about perceptions. ``There's a perception out there'': I heard that last week in the House. I was astounded. You know, there's a perception out there that somebody may do something wrong, and then there's a big fuss, which lasts for an hour and a half - on a perception.

An hon. member: A Roman Catholic priest -

Senator Gauthier: Yes, like the Roman Catholic priest, the same thing. Who would pay those lawyers?

Prof. Sutherland: I guess maybe you should do the same thing lawyers and doctors do - take out insurance, or use the spare $10,000 to throw into a kitty to pay for tribunals.

Senator Gauthier: That's public money you are saying should be used for that. I don't think that would be -

Prof. Sutherland: Yes, I should be very, very careful.

Senator Gauthier: I would caution you on that one.

We have lawyers in the House, good lawyers. They advise members, when they're asked, on certain legal problems. Why wouldn't we be able to have access to those?

Prof. Sutherland: Why not?

Senator Gauthier: I'm asking you. I don't know.

Prof. Sutherland: I don't see anything wrong with it.

This afternoon I reread some of the material on the Diefenbaker and Nielsen attacks on the three... It kind of stayed in my mind, because I wondered how anybody could put this to rest in a minority parliament. There's no way to put it to rest. I thought about the British situation, where they have a tribunals act. When something really starts festering and is promising to become very difficult for the people who are being accused, it gets put into a tribunal. Then it's handled as a quasi-legal inquiry. It can be a judge or it can be a retired worthy. It can be anybody who has the credibility to carry off the role. Everybody is represented. Everybody gets to answer the case against them. The thing gets put to bed.

I think the problem with the Sinclair Stevens inquiry was that the judge was doing quite a good job of looking into the accusations against Stevens in light of a code of conduct for ministers that was really outrageously rich.

Senator Gauthier: Yes, but who paid all those bills? Are you aware of the accounting here?

Prof. Sutherland: Oh, yes, I am aware of the bills.

Senator Gauthier: Do you know who paid that? You and I.

Prof. Sutherland: Yes, of course we did.

Senator Gauthier: I am just asking you a simple question. Since policy seems to be that until a charge is laid against you - that whole period where allegations are made, inquiries are made, cops come in with a warrant and they want to look at all your books - you need good legal advice to shut up, first of all.

Basically, I am asking you why Parliament shouldn't pick up the tab. It is now. If you're saying no to me, then we'll have to change the present practice and find some secret source of funds to help the system, to protect those who can least protect themselves sometimes, the non-lawyers, people like me, who are dumb when it comes to law.

Prof. Sutherland: Or people who simply talk and explain too much. The more you explain, the more you protest, the deeper in you get yourself, and the more contradictions you set up. It is very easy to find anybody... I mean, catching somebody out in contradictions is a snap, isn't it? All you do is take one of their statements, exaggerate it in that direction, take another one and exaggerate it in this direction, put the two together and say, ``Aren't you a foolish little body, you?'' This is the simplest thing in the world to do.

.2045

Senator Gauthier: I didn't hear an answer of yes or no on the public funds being used.

Prof. Sutherland: If people are being hounded in public institutions, public funds ought to be used to protect them - by all means.

The Joint Chairman (Mr. Milliken): Thank you, Senator.

Mr. Szabo, please go ahead.

Mr. Szabo (Mississauga South): The six reasons - I was fascinated by this. This government was elected by less than 45% of the electorate. I suppose at any point in time you're always going to find that more than 50% are dissatisfied with politicians, because it's not the government you would want it to be. You're not going change that, ever.

As to the inexperience of the MPs, the electorate decides who they are. As far as the media goes, they're so powerful maybe they should be elected.

Some hon. members: Hear, hear!

Senator Gauthier: I agree.

Mr. Szabo: As a member of Parliament, I think the biggest disappointment I've had so far is that I have not had an opportunity to stand up publicly and declare that I want to do this job; that I will do it in a way in which I don't abuse this office for my own personal gain or the gain of others or to the detriment of others, if that's my wish; that I will use the assets and resources to discharge the responsibility solely of being a member of Parliament; and that I will conduct myself in an honourable, honest and ethical fashion. I wanted to declare that up front when I came here to this place, that I'm here and I'm prepared to live up to those standards on day one, before I start, and I'm prepared to stand up to the judgment of my peers in that regard.

It does raise one interesting thing, though. You seem to dislike, or prefer not to have, a statement of principles that I'm prepared to live up to. You'd rather have something more specific. But if you have it more specific, you also said you have to have, then, the enforcement and the regulatory part of it, rules, etc. Some wise lawyer once told me that the rules are only as good as the punishments associated with them. What is the consequence of not following the rules?

If you look at any of the examples that have occurred in Canadian history in political cases, because those parliamentarians have recourse to the courts, etc., by the time the process unravels itself and you go through all of the protracted proceedings you could go through, you're probably up to another election, in any event, before the real judge - that is, the people, who are the judges of the ethical conduct and character of their members.

So I guess the bottom line is this. Not having the details, do you feel that a statement of principles declared by members of Parliament - publicly and openly and on the record - would have any beneficial merit in the process?

Prof. Sutherland: There are two sides to this thing. You have to follow your heart in the way you conduct yourself. A statement such as the one you've just made is very attractive. I'm a teacher, and I feel the same way. I don't push my views on students. I'm very careful about how I do grading. I'm very careful about making sure the shy women have a chance to speak as well as the people who are more rambunctious and so on.

You do all those things with great attention, and when someone asks you whether it matters to you, you have to say, yes, of course it does matter. It's a high calling. I want to do my best at it. I want to feel good about myself at the end of the day.

So I think what you say in your preamble should be what's in your hearts, should be what your goals are as parliamentarians. Then, as I've said many times before, I would make it as fair as possible.

.2050

People talk about perceptions. Well, I haven't mentioned anything and we haven't talked about what's going on in universities now. It's just a vast oversimplification to say that political correctness is the enemy. The simple fact is that professors are open to many of the same accusations as MPs are; you're in a situation where you have some power and authority and you've misused that and so on. It's very difficult to answer those charges.

There are many people who think it would be nice to have a situation where you could call the bluff of the attackers and say, all right, come and let's talk this through with some elementary protections.

Mr. Szabo: Thank you.

The Joint Chairman (Mr. Milliken): Mr. Epp, do you have another question?

Mr. Epp: Actually, I'm somewhat sorry that Senator Stollery left, because I wanted to engage him in some of this debate too.

The Joint Chairman (Mr. Milliken): You'll have that opportunity.

Mr. Epp: I'm sure it will come again.

I don't believe we have a problem in those areas where it's totally clear what is right and what is wrong. For example, for me to take the fax machine out of my office and take it home and use it for personal use and never return it would be wrong. There's no doubt about it. I don't think we need a tribunal and I don't need a piece of paper somewhere with a code of ethics that says, item 747, you may not take your fax machine home. I don't need that.

But when we get into trouble is when there are areas of judgment call. For example, Senator Gauthier just pointed out the fact that we have only about $10,000 that may be discretionary, and the rest is pretty well spent for us. But it is still true that you have the option of whom you hire.

Now, how do you deal with this? I'm obviously not going to hire - and I didn't - the person who ran the Liberal campaign in my constituency. On the other hand, I don't want to be accused of and charged with blatant partisanship. It is political patronage at the local level if all I do is consider people who I know supported me because they worked on my campaign. I need to balance that.

It's the same thing with my office. When I rent my office, which building do I rent my space in? Do I rent the one that belongs to the person who gave a good campaign contribution to me or am I impartial? How can I prove that I'm impartial? What can I say to the people in Elk Island, which I represent?

When I was looking for my office space I took bids. I went and got a whole bunch of different offers. I took what I thought was the best deal for the taxpayer.

At this stage I believe people in my constituency trust me explicitly because I have been right up front with these things. I've written them in my columns that my local papers publish, so they know about this. But what about the MP who is given the charge that he has shown favouritism with respect to the place where he rented his office? How do we solve that problem? How would we address that?

Prof. Sutherland: I don't know. Isn't it the same problem that ministers have when they take contracts on certain public buildings and so on? That's the same problem, and it seems that basically the only thing you could do that would satisfy the public that you'd been neutral would be to do what was against your own interest and hire the leader or the campaign manager for the opposition campaign.

This is why I say it's a mug's game. I think it's extremely difficult once we've started down this road of a loss of civility, the kind of purity wars that we undertake in politics, and the use by the media of scandal and peccadillo in political life as ``infotainment''.

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People's lives are interesting. You see that with the O.J. Simpson trial and you see that with the accusations against Mr. Clinton by the woman in the United States who is accusing him. The situation evolves and what's said in the media becomes the representative discourse. Reputation is lost and cynicism grows. That's why I'm pessimistic about finding a way to arrest that dynamic.

Mr. Epp: Interestingly, and just as a matter of comment, I'm one who came here, as Mr. Szabo just mentioned, with high ideals, wanting to make Parliament a civil place. I still maintain that my primary goal is to provide good, cost-efficient government on behalf of the people who elected us. I'm not much interested in attacking people as personalities.

However, it is true - and you made notice of this - that when we first came here the media was predatory. We were classified by the media as being grossly incompetent because we never said anything bad about the government. That was our role as opposition as far as the media was concerned, and we failed to fulfil that so they really dumped on us.

In more recent months we have had some people go to work and try to find some negative things about some of the ministers. We have indeed found some stuff. Whether it's true or not, I guess it's our role to ask the questions. Now suddenly they're giving us greater accolades. I don't like that. Very frankly, I feel ill at ease about that, and yet it's part of the political reality we're facing here.

Prof. Sutherland: I agree with you absolutely. What's happening there is that the media are disciplining you to force you to play politics the way politics are played predominantly, according to them, because it's a very easy form of reporting. So-and-so said such-and-such a minister did such-and-such and therefore he should resign. Did the minister know?

We saw that lately with the Minister of Finance. Had he approved the pay raises of the Bank of Canada officials? Oh, he said innocently, I didn't know anything about them. So then the media asks who did know something about them, then, and then it descends to the public servant who will have to take the blame for that, for not briefing the minister.

In fact, the minister may have seen a piece of paper and, given the amount of paper they see, may have forgotten it. It happened a long time ago. Why does he have to pretend that he's omniscient and remembers everything he sees? Why can't he just say he will look into that? That's the same kind of caution your colleague is talking about. That's basically the way things should be approached, but this is the dynamic.

Maybe another way to work against the increase in public cynicism is for committees that really have great powers and wonderful mandates, like the public accounts committee, to be more active and to be more independently active rather than simply looking into the Auditor General's report chapter by chapter. It might be that parliamentarians could build themselves crusading roles on principle instead of playing this kind of politics, but that's a long way away from the members' interests tonight.

Mr. Epp: Thank you.

Mr. Chairman, I could go on and on but I'm going to resist the temptation and say thank you. I see I'm making some members happy.

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The Joint Chairman (Mr. Milliken): I think that concludes the questioning. I've completed my list, and I see it's 9 p.m.

I want to thank you, Professor, for your attendance. Obviously you've provoked a great number of questions from our members. The discussion, as always, was an interesting one, and I want to thank you for taking the time to appear.

Prof. Sutherland: It's my pleasure to be here. I'm sure that you'll hear from people such as Ken Kernaghan and John Langford from B.C. They're people who have more faith in codes.

I was really interested in trying to place the role of a code more in the context of the challenges that parliamentarians face.

The Joint Chairman (Senator Oliver): You've done that well.

Prof. Sutherland: Thank you very much.

The Joint Chairman (Mr. Milliken): Thank you for coming.

Senator Gauthier.

Senator Gauthier: For the record, Mr. Chairman, I apologize for coming in late, but I have a notice that says 7:30 p.m. I have the paper. I came in at 7:30 p.m., but by then you had already started your work. I think it's going to be corrected. Thank you very much. I apologize.

Prof. Sutherland: It's my pleasure to discuss it whenever you come.

The Joint Chairman (Mr. Milliken): Your chairs apologize for the confusion as to the time as well.

Senator Gauthier: To whom? You have. Thank you. The buck must stop somewhere.

The Joint Chairman (Mr. Milliken): I must say that I thought it was at 7:30 p.m. myself, but I walked by the door before 7 p.m. and found out.

Thank you.

Prof. Sutherland: You are doing wonderfully well on the civility front.

The Joint Chairman (Mr. Milliken): Indeed.

I declare the meeting adjourned.