EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, May 2, 1996

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[English]

The Joint Chairman (Senator Oliver): May I have your attention, please. I'd like to call this meeting of the Special Joint Committee on a Code of Conduct to order.

Today the order of business is to have a presentation by Mr. James Robertson of the Library of Parliament, who will be outlining the issues for discussion and giving a brief outline of some of the evidence that's already come before this committee.

What I would like the committee to do is to have Mr. Robertson give a complete overview of the entire issue for discussion before we have questions. I would ask you to hold your questions until the end. We'll make a list of them and then we'll put the questions to him. So he will have an opportunity to paint the entire picture for us.

If that's agreed, Mr. Robertson, the floor is yours. Question?

[Translation]

Ms Tremblay (Rimouski - Témiscouata): Madam clerk said there was a motion. Could we deal with it right away, while we have the...

[English]

The Joint Chairman (Senator Oliver): No, we need more people for the motions.

[Translation]

Ms Tremblay: Fine.

[English]

The Joint Chairman (Senator Oliver): When more people come, I'll put another motion before the floor. But we need greater numbers.

Proceed, Mr. Robertson.

Mr. James Robertson (Research Branch, Library of Parliament): Thank you,Mr. Chairman.

I am with the Research Branch of the Library of Parliament and I have been assigned to this committee since its inception. I should note that my colleague Margaret Young of the Research Branch has also been working with this committee. She has another meeting at this time but we've done the preparation of this presentation together. She will be joining us if this meeting continues past the other one she is at.

As Senator Oliver mentioned, the purpose of today's briefing is to acquaint new members of the committee with what happened in the last session with this committee and also to refresh the returning members' memories of what actually was said to us by the witnesses.

The committee was formed about a year ago and had various meetings in the autumn of 1995. I'm going to summarize the main points that were made by witnesses before the committee, concentrating on those themes or issues that are most relevant to the committee's deliberations. I should note that a great many interesting and important discussions took place with a number of the witnesses, but in some cases they went beyond the actual concept of a code of conduct. However, we can get into that discussion of what they said later on.

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At the end we'll discuss some of the issues that have come up in the context of the hearings. At the beginning I would just note that a briefing binder was prepared for members of the committee, and I believe that has been circulated to all members of the committee. This provides general background on the issue of conflict of interest in particular, and to some extent the code of conduct. It traces some of the background and history of this issue, which has been kicking around now for a number of years at the federal level. Between various government bills, the Sinclair Stevens affair and going back to the Sharp-Starr report in the early 1980s, a lot of that material is contained in here.

Perhaps the most relevant material is the predecessor committee to this one, which was a joint committee of the Senate and House of Commons on Bill C-43. That committee, which was chaired by Senator Stanbury and Mr. Blenkarn, prepared a report and made a number of recommendations for a conflict of interest regime for members of the House and Senate. It ran into problems with the former government, which wanted its own system. The parliamentary committee and the government were unable to reach an agreement, and the matter never got resolved.

The report of that committee is included in this binder, and it provides the basis for a great deal of the testimony that we heard from witnesses. It probably provides a starting point, at least in some areas, for the deliberations of this committee.

I think a briefing note has been distributed that outlines the witnesses who appear before the committee. We have grouped them into about seven different categories. Alongside each name is the issue of the committee proceedings in which their testimony appears. So if you want more information on what they said, you can look at their testimony.

Briefly, the categories are government and Parliament, and these are people like Mr. Wilson, the ethics counsellor, Mitchell Sharp, the ethics adviser to the Prime Minister, Mark Audcent and Diane Davidson, who are legal counsel to the Senate and House, respectively.

The committee then heard from a number of provincial commissioners. They were having a meeting in Ottawa and we had a panel of five of them. Mr. Evans of Ontario also appeared separately.

I should note that the jurisconsult from Quebec had been invited to appear before the committee, but he was in poor health and his term of office was coming to an end, so he declined to appear. The ones who did appear are listed under provincial commissioners.

The committee also heard from a number of political scientists who in most cases have written in the area of ethics and conflict of interest. We heard from the public interest group Democracy Watch. We heard from two private sector lobbyists and we also heard from a number of media people. We had the publishers of The Citizen and The Ottawa Sun, as well as two senior journalists, Don McGillivary and Hugh Winsor. Lastly, there were two consultants from the private sector who advise various private sector companies on ethical issues, Mr. Grainger and Mr. Nitkin.

And as I say, beside each name is the issue of the proceedings in which you can find their testimony.

Mr. Wilson, the ethics counsellor for the Government of Canada, was the first witness before the committee. He made a number of points. He felt it was very important that the committee not restrict the outside activities of private members and senators, both because it might limit the range of people who would be interested in becoming parliamentarians, and in recognition of the difference in power and access to information they have as compared to ministers, secretaries of state and parliamentary secretaries.

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Once he did acknowledge, however, that conflicts of interest are going to arise -

[Translation]

Mr. Laurin (Joliette): Is the witness referring to the documents we have in front of us?

Ms Tremblay: He referred to issues 1, 2 and 3. Where are they? What are they exactly?

[English]

Mr. Robertson: I apologize. The issue number is the issue of the proceedings of the previous committee. This is just for future reference. There is no other document. These are the Minutes of Proceedings and Evidence for the committee. I apologize for the confusion.

The Joint Chairman (Senator Oliver): Is this in the document that was circulated?

Mr. Robertson: No, those members would have to get them from distribution or through the clerk. The clerk could probably arrange to get those sent to members if they request them.

[Translation]

Mr. Laurin: I thought the witness was referring to a document we already had. I do not want a copy of it.

[English]

Mr. Robertson: No, the only document is the list of witnesses who appeared before the committee, and that was done for future reference, not for the presentation today.

Mr. Wilson did acknowledge and pointed out that conflicts of interest are going to arise because you have members who are representing their constituents. He felt the important way of dealing with this was through disclosure, by ensuring that the assets, liabilities and outside activities of parliamentarians are disclosed, and this would include disclosure of the assets and liabilities of spouses and dependants.

He also urged that withdrawal be considered as an option, that where a member had a conflict of interest, he or she should withdraw from participation in the decision, but this would be a fairly rare occurrence.

Mr. Wilson noted that a set of principles could form part of the code. He referred to the Prime Minister's code for ministers, which is included in the briefing binder. It starts off in part one with a list of ten general principles that are to govern the actions and behaviour of the ministers and parliamentary secretaries it applies to.

There's also been a recent report in Great Britain, the Nolan report, which also refers to certain general principles.

Mr. Wilson raised a number of other issues, including the acceptance of travel and gifts and the need to update the contracting provisions of the Parliament of Canada Act. The Parliament of Canada Act contains separate provisions for the Senate and the House of Commons. In both cases it prevents members and senators from contracting with the Government of Canada or being involved in contracts, particularly for public works. This has led to some confusion, and these sections clearly need to be updated.

Mr. Wilson felt the starting point for discussion might be the report of the previous joint committee, which made a number of recommendations for updating and changing these sections. He also noted that the Ontario legislation has recently been changed and contains some guidance about how to deal with contracting. For instance, a member of Parliament or senator may have a business interest or be a shareholder in a corporation. So long as they are isolated from the day-to-day operations of that business, there's nothing to prevent the business from entering into contracts with the government.

Mr. Wilson also noted that it would be beneficial to have someone who could provide advice on questions relating to any code of conduct, but he did not support the proposal that there be an independent enforcement mechanism. He suggested that perhaps the clerks of the two houses could act as the people to whom disclosure is made, and felt there wouldn't be too much controversy in terms of them performing that function.

As far as the question of lobbying, Mr. Wilson didn't have any specific proposals for how the code of conduct would regulate lobbying.

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To sum up, he felt that for members of Parliament and senators there should be a modest code of ethics that would include certain disclosure requirements but no more, and it might be good to have certain specific rules regarding gifts and trips but no more and some general principles that would balance private interests and public responsibilities. His emphasis was on a fairly modest code.

The committee also heard from Diane Davidson, the general legal counsel of the House of Commons, and Mark Audcent, the assistant law clerk and parliamentary counsel to the Senate. These witnesses were very useful, because they deal on a confidential basis with members and senators who come to them for advice and assistance, so they know the problems with the current law as well as the kinds of questions and difficulties members encounter.

Mr. Audcent reviewed the current provisions found in the Constitution Act, the Parliament of Canada Act and the Criminal Code, as well as the rules of the Senate and, in the case of the House of Commons, the Standing Orders.

He noted that the contracting provisions in the Parliament of Canada Act are in desperate need of being modernized. They have been there since 1878 and haven't been changed much since then. He also said there are difficulties in treating parliamentarians under the Criminal Code because it refers to officials, and generally MPs and senators are not considered officials of Parliament. So the courts have gotten into some problems in trying to find out how to apply these sections to politicians.

Mr. Boudria (Glengarry - Prescott - Russell): Mr. Chairman, I wonder if I could ask everyone's indulgence to interrupt our proceedings just for one minute.

Given the large size of our committee, quorum is difficult to attain, and we have just had the good fortune of another member of the committee happening to walk in, totally spontaneously. Given that spontaneousness, I would take advantage of it to move the following motion, now that we have full quorum for the purpose of passing motions: that notwithstanding the motion adopted on Thursday, April 23, 1996, the committee reimburse the travel expenditures for two witnesses from Le groupe ETHOS.

The Joint Chairman (Senator Oliver): You've heard the motion. Is there any discussion?

Senator Di Nino (Ontario): Can we have an approximate amount?

Mr. Boudria: It's just for two witnesses.

Senator Di Nino: Oh, I see. It's the established rate.

Mr. Epp (Elk Island): Are they coming from France?

Senator Di Nino: No, Quebec.

Mr. Epp: I didn't know whether we were authorizing travel around the world.

The Joint Chairman (Senator Oliver): Normally we reimburse one witness to come and appear before the committee. In this particular case two of them will be coming, and we wanted to provide some financial assistance for the travel from the province of Quebec to here, to the committee. So we're asking for consideration of reimbursement for one extra person.

Mr. Epp: Why should we do that? What can two people do that one can't, on behalf of this group?

Mr. Boudria: There are a number of reasons, including the different Civil Code in Quebec and the fact that Quebec has some of the most advanced legislation in that regard. Also, I don't think we've heard anybody from Quebec testify before us.

So instead of having two different groups we would have two witnesses from the same group - apparently that's the requirement - in order to have the presentation they wish to make. Let's face it; it's not exactly expensive to travel from Montreal.

[Translation]

Ms Tremblay: A return plane ticket from Rimouski to Montreal costs over $1,000. That's twice as much as a single one-way ticket to Paris.

[English]

Motion agreed to

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

I regret that interruption, Mr. Robertson. Please continue.

Mr. Robertson: I appreciate that you have to feed your quorums when you have them.

As I was saying, Mr. Audcent, the assistant law clerk and parliamentary counsel to the Senate, pointed out some of the difficulties that have been encountered with the current wording of the Criminal Code, which refers to officials, or fonctionnaires, and that there are some problems with the current provisions of the Parliament of Canada Act because they are very old and antiquated.

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He also noted that, in his experience, a lot of senators come to him for advice. He's able to advise them, but he has to warn them that he is merely giving them his opinion, and they can't rely on that. He was suggesting that if some system could be devised whereby senators and members could obtain advice they could rely upon, it would make their lives a lot easier.

Ms Davidson from the House of Commons pointed out that since the beginning of this Parliament, the Board of Internal Economy has had by-laws regarding the use of the resources provided to members of the House by the House. She felt that this has greatly alleviated a lot of the problems that arose in the past, and has also given members a lot more guidance than they used to have.

She also pointed out that at the beginning of this Parliament her office contacted all members of the House and offered to meet with them to discuss issues relating to conflict of interest. Many of the members took advantage of this. Again, this educational part of her office's job was very important and well received.

She agreed with Mr. Audcent that there were problems with the current provisions of the Parliament of Canada Act, that they lead to a lot of confusion and uncertainty, and have created problems for individual members.

As to the form the code of conduct could take, both Mr. Audcent and Ms Davidson appeared to favour the choice of a non-statutory code put into place by a resolution of the House, rather than by an act of Parliament.

As far as who would be administering this code, whether it would be done by an existing official or by a commissioner of some sort, they themselves did not give any advice. They point out there were a number of options available.

As I mentioned, the committee heard from a number of provincial commissioners: Mr. Evans, the Integrity Commissioner of Ontario; Mr. Clark, the Ethics Commissioner of Alberta; the Honourable Ted Hughes of British Columbia; Derril McLeod, the conflicts commissioner of Saskatchewan; and Mr. Mitchell, the Commissioner of Members' Interests for the province of Newfoundland. All these commissioners administer statutory conflict of interest or ethics systems, and they all agreed that a statutory regime was preferable to a resolution.

It should be noted that the Ontario legislation was recently changed and amended; it is now called the Members' Integrity Act. As Mr. Evans explained, the purpose of that was to put a more positive light on it and also to broaden it beyond being merely a conflict of interest regime.

In his annual reports, Mr. Evans provides a summary of the kinds of advice for which members of the Ontario assembly go to him. He points out over the years that a great deal of the advice sought from him pertains to things beyond conflict of interest. Members want somebody they can go to who understands their situation and can provide them with some objective advice.

The other provinces involved generally have modelled their systems after the Ontario legislation, both the existing legislation and the predecessor one.

There are a number of themes that were common to the five commissioners the committee heard from. A number of the commissioners mentioned the importance of having general principles in the code. This seems to be a more modern style of drafting a code of ethics, and broadens the scope from conflict of interest alone to the concept of integrity.

They also generally stressed the importance of an independent officer to oversee the rules that are imposed on members. They felt that independence is necessary for a commissioner to discharge the duties of office and to ensure accountability of the members under the law.

For instance, Mr. Evans said:

Government is big business, and like any other large corporation it requires a statement of corporate values or accepted conduct with an independent officer whose duty it is to make sure the walk matches the talk, because nice words without accountability no longer satisfy the public.

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Mr. McLeod from Saskatchewan and Mr. Hughes from British Columbia also agreed that they enjoy political and other independence and security of tenure and that the assignments they had been given would have been much more difficult if they were not perceived as completely and totally independent and impartial.

The commissioners all deal with regimes that involve spouses disclosing their assets. In most cases the member is responsible for disclosing the assets and liabilities of the spouse.

None of the commissioners reported any significant difficulties with spousal and dependants' disclosure. I think it was Mr. Evans who pointed out that on occasion a member's spouse will object to providing such information, but that once this is publicized, usually by the next year the member does manage to ensure cooperation.

A number of the commissioners spoke of the importance or usefulness of members having somebody to talk to. The commissioner from Alberta spoke of his role as being 90% priest and 10% policeman.

The commissioners stressed their role in providing opinions to members regarding the law, usually to protect the member from difficulties that might arise later on, providing that full and complete disclosure of the facts has been made to the commissioner. The idea is that members have somebody they can go to and get some comfort from as well as some guidance.

All of the commissioners testified that they felt it was appropriate to have different standards for office-holders, such as ministers and parliamentary secretaries, from those that apply to other members of the legislature or Parliament.

They concluded by noting that all of their legislations provided for the commissioners to recommend to the legislature what penalties or sanctions should be imposed if there's a breach, but that it was up to the legislature to make the ultimate or final decision. The commissioner investigates and recommends a sanction, but he does not impose the sanction. The sanction is imposed by the legislative body itself.

In most cases their testimony was that very few cases had led to that end anyway. Most of the time the mere idea of having a system in place, somebody to talk to, had ensured that most problems were resolved before they got to that stage.

Among the academics the committee heard from were Ian Greene, Maureen Mancuso and Michael Atkinson. They are three academics who, I think with some other ones, are working on a study of attitudes towards ethics among the Canadian public as well as among the Canadian media and Canadian politicians.

Professor Greene spoke of ethical principles and more specific rules and said he favoured a good set of general principles coupled with only enough detailed rules as are necessary to make the regime work effectively. The others agreed with him on this point.

He thought the format of the Prime Minister's current code was a fairly good format in terms of a code of conduct or a code of ethics. He also pointed out that virtually every jurisdiction that follows the Westminister style of parliament, except Canada, has a code of conduct for their members of Parliament as well as for ministers, and that in most cases, at a minimum, these systems provide for disclosure of assets by members of Parliament.

He provided a number of reasons for developing a code of conduct, the most important of which are the promotion of shared values, assistance in working through ethical dilemmas, the evaluation of the acceptability of current practices, the reduction of scandals and a more positive image for politicians. He felt that in turn this might encourage more people with high standards to enter politics.

Professor Mancuso's particular expertise is in connection with Great Britain. She's written a book entitled The Ethical World of British MPs. She did interviews with a selection of British members of Parliament and drew certain conclusions as a result of her interviews with them.

In the United Kingdom the only requirement imposed on members is disclosure. She felt, though, this isn't enough, because there is no ethical consensus among all of the MPs. Different MPs approach the same problem from different points of view and with different perspectives. They can't always agree on what constitutes ethical conduct.

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She felt that the same ethical divisions would be found in the Canadian Parliament. She felt the members were hungry for further advice and direction on how to resolve ethical problems.

Professor Atkinson summarized a pilot project that had been conducted in Guelph, Ontario, where they had done some polling about Canadian attitudes towards politicians. Basically the attitudes towards politicians were not terribly positive, and they hope to do a more comprehensive national survey in the next little while.

The committee heard from members of the press. As I mentioned, there were two publishers and two senior journalists. Mr. Paton of The Ottawa Sun said:

Canadians want their parliamentarians to abide by a simple, easy to understand and enforceable code of conduct, and that code must be one that demands that each parliamentarian's life be an open book. For them, nothing else will do.

Both the publishers of The Sun and The Ottawa Citizen maintain that Canadians have lost trust in their institutions. One of them said:

I believe you will only be able to go about your work effectively once you have convinced Canadians to trust you again. An effective code of conduct is the first step to achieving the regaining of that trust.

Both of them stressed the importance of full and public disclosure of all financial interests, including those of spouses and immediate family members. They also advocated prohibitions on taking part in decisions that could further private interests, accepting gifts or benefits above a nominal amount, disclosure of any that were accepted, and rules regarding contracting with the government.

They supported the idea of an independent ethics commissioner, appointed by, and responsible to, Parliament, with a strong enforcement role.

They felt that all parliamentarians should be under the same code. They felt that the public doesn't really care or understand the distinctions between a cabinet minister, a parliamentary secretary and an ordinary or non-executive member of the House of Commons or Senate. They felt that basically the public considers all federal politicians to be the same.

After some discussion and questioning by members of the committee, they did agree that perhaps there were differences or different requirements between ministers and parliamentary secretaries on the one hand, and other members on the other, particularly with respect to outside businesses and activities.

Don McGillivray of Southam News is one of the few witnesses who did not think a code of conduct was a good idea. He preferred to leave the conduct of parliamentarians up to themselves, their consciences and the voters. He doubted that a code could be both detailed and general enough to meet all needs. Mr. McGillivray said that the rule the parliamentarians should operate under is how would they feel if the matter were published on the front page of The Globe and Mail the next morning. I think one of the other witnesses referred to this as the sniff test.

Some hon. members: Oh, oh.

Mr. Robertson: Hugh Winsor of The Globe and Mail thought that the code should cover everyone. He supported full disclosure of financial interests and outside business activities, including those of spouses. He felt that, in some measure, a code might help to improve public perceptions regarding politicians. But a code is not only about how things look. You are also concerned about the intrinsic merit of actions taken, and the roles played in Parliament.

The committee heard from two private sector lobbyists. Susan Murray is the president of a private sector lobbying company that does work for a variety of private clients, and at different levels of government. She felt that the vast majority of politicians and lobbyists are honest, and are attempting to serve the public interest.

Her firm has a code of conduct about how they conduct their affairs, and she felt that it was important that parliamentarians also develop a code of conduct. She pointed out that lobbyists in the lobbying industry are in the process of developing codes of conduct as well.

Her point was that integrity and impartiality are the foundation of public sector ethics. People expect parliamentarians to be honest, and not derive improper personal benefit from their position.

She says the Canadian public wants to see an explicit commitment from politicians to standards of honesty, responsibility and integrity. But she accepted that no rule book can ever settle all the possible cases in advance. A code will always be an ongoing process.

She supported higher standards for ministers, but thought that senators and MPs should be under the same set of rules. She was one of the few witnesses who did not support the concept of spousal disclosure.

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The Honourable Jean-Jacques Blais is a lawyer and consultant lobbyist at this point in time. He's a former parliamentarian. He supported the need for a code of ethics. He felt it should go beyond disclosure and include meaningful sanctions and the obligation to uphold the highest ethical standards. He felt it would send a very positive message to the Canadian public.

He de-emphasized the idea of public disclosure of assets and liabilities. He suggested confidential disclosure to a commissioner of some sort might be sufficient, although it wasn't entirely clear how far he would go with that.

In most systems there is public disclosure to the commissioner, which is complete, and then a summary of your assets and liabilities is released to the public. In most cases it does not include values and it does not include purely personal assets such as a home, a car and things that have no real value other than for personal use.

Mr. Blais felt that backbenchers and senators, while not directly involved in making decisions, are very much part of the process. They don't just vote in Parliament. They are involved in party structures, in caucus and in committees, and they can influence the decision-making process. So he felt they needed to be covered by a code of ethics. He also supported the idea, though, that perhaps there should be more stringent conditions or requirements placed on ministers and parliamentary secretaries.

He supported the appointment of an ethics commissioner who reports to Parliament and felt it should be a non-partisan appointment that would have the power to make recommendations regarding sanctions. He was one of the few witnesses, or one of the witnesses anyway, who felt that being a parliamentarian should be a full-time job. He questioned whether there was a lot of time or energy to do outside business activities, even if one wanted to.

Those were the main witnesses. As I say, the committee heard from a number of other witnesses. We could certainly discuss them in more detail if members wish, but the themes raised by those witnesses are the main themes the committee heard.

Last October a document was prepared for the committee entitled ``Issues for Discussion'', which I think has been circulated to members. I'll just go through it very quickly.

The Joint Chairman (Senator Oliver): Does everyone here have that document with them now?

Mr. Robertson: I believe so.

The Joint Chairman (Senator Oliver): Please continue.

Mr. Robertson: I'll just go through it fairly quickly in terms of the themes or issues that came up. This is certainly not exhaustive, nor do all of these issues necessarily have to be dealt with. It is merely to get people thinking about some of the ideas that have come up, either in the context of the witnesses who appeared or in terms of other jurisdictions and how they deal with certain things.

The first thing is the coverage of a code of conduct. On the one hand you have ministers, secretaries of state and parliamentary secretaries. These people are currently subjected to the Prime Minister's code of conduct, but it does not apply to the whip or certain other offices. In most jurisdictions these people are given higher standards than everyone else, but they are subject to the ordinary requirements of being parliamentarians.

So one of the issues is who should be covered by a code of conduct? Should it apply to all parliamentarians? Should it apply only to those parliamentarians who are not ministers, secretaries of state or parliamentary secretaries? Should it apply to all of them and then have additional requirements for some? Should there be one code for members of the House and one code for senators? These are all issues that have been discussed.

A code of conduct is usually broader than the traditional idea of a conflict of interest code. Most of the studies and work at the federal level over the last fifteen to twenty years have been directed more at conflict of interest, where your personal interest and your public responsibilities collide.

This committee has the mandate to develop a code of conduct, which could be restricted to conflict of interest or could include other things. Of course what it should include can be as broad as the committee chooses. It can involve things like how members behave in Question Period. I know a number of the witnesses felt the behaviour of parliamentarians in the House was not useful for the reputation of politics, but whether or not that's the sort of thing you want to deal with...

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It should be pointed out that the Board of Internal Economy has certain powers under the Parliament of Canada Act and the Senate has a Standing Committee on Internal Economy, Budgets and Administration, which has comparable powers, although they haven't exercised them quite as fully. They have exclusive jurisdiction over the use of resources provided to members of Parliament and to senators. How that would interact with a code of conduct is an issue that will have to be discussed.

What would be the major elements of a code of conduct? As we noted, a number of witnesses felt it would be a good idea to start off with some basic and general principles to guide the behaviour of parliamentarians. The next thing is to have a definition of what constitutes a conflict of interest, and this gets into a question of at what point the conflict arises. Are you going to be concerned just with apparent conflicts of interest or also with potential or perceived conflicts of interest?

A number of rules can be provided. A number of witnesses felt that general principles were fine in most cases but that in other cases more detailed rules were required. Members want guidance. While these rules can be kept simple, they also can provide some assistance with things such as what happens to gifts, hospitality, travel and other personal benefits. Should they be allowed? If they're allowed, should they be disclosed? Should there be limits on them per year from individual sources? And so forth.

The other things mentioned here come under conflict of interest and ethics: furthering your private interests, using your office to influence a decision, the use made of insider information and declaration of withdrawal. There are certain cases where there may be a conflict and the way of handling it is to declare the conflict and to withdraw from participation. An alternative is merely to have a declaration. There's an argument that parliamentarians are elected or appointed and they have a role to play, and so long as people are aware of what their conflict is, they should then be able to go ahead and participate.

Disclosure seems to be a fairly general issue supported by most of the witnesses before the committee, and certainly is the scheme that has been adopted by most of the provinces. As I mentioned, most of the systems call for confidential disclosure to a commissioner followed by public disclosure of a summary of the material or the information.

This also gets into the issue of spousal disclosure. The reasoning of the previous joint committee was that under family laws nowadays, the spouse and the politician are treated as an equal unit, and in the event of marriage break-up, each spouse is entitled to 50% or so of the matrimonial assets. Therefore it's relevant to know what the spouse is doing and what sources of income or activities the spouse has.

This can create problems with respect to privacy, but these can be addressed by having certain information regarding the spouse confidentially disclosed to the commissioner and then having a much more limited form of public disclosure of the spouse's activities and income.

The other question is what other family members should be included, if any. Should it be dependent children, or do you want to extend it beyond that to other family members: brothers, sisters, parents, grown-up children and so forth?

There are other compliance techniques available. There's the issue of lobbying, which is specifically included in the mandate to this committee. There are government contracts. As I pointed out, Mr. Wilson and others have noted that the provisions of the Parliament of Canada Act need to be updated and modernized. And there's the question of outside activity. Currently cabinet members and parliamentary secretaries cannot have outside employment, carry on business or practise a profession, but there are at present no restrictions on other parliamentarians from doing so.

The main issue, or one of the main issues, at that point is who is going to administer the code? Should it be done by a public servant? Should it be done by a member of the House, such as the clerk of the House or the Senate? Or should it be done by some third party, such as a commissioner or group of commissioners? There was originally, in the last Parliament, a suggestion of a three-person board, which would be appointed by Parliament, that would administer any code of conduct.

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Traditionally, these people have a number of different functions. On the one hand, they gather information regarding disclosure and publicize it or prepare it for publication. They also provide an advisory role and an educational role. They talk to members, explain things to them, advise them and give them opinions. If required to by the House or the Senate, they also carry out investigations and make recommendations, or recommend sanctions if they feel a breach has occurred. In many cases in the provinces, they also file annual reports with the legislative body to advise them of what's happening and of how things are proceeding.

As I said, the witnesses, for the most part, supported the idea of a retired judge or former politician, somebody who would be appointed by Parliament amd responsible to Parliament, but there were certainly a number of other possibilities suggested, including the clerks of the houses and other bodies or individuals.

If a new job is going to be created, a statute would probably have to be provided for the creation of that job and to ensure the payment of the item. It could be an amendment to an existing statute - like the Parliament of Canada Act - or a new statute. The question, then, is whether the rest of the code should be embodied in a statute or whether it should be a resolution of the House and/or the Senate. That is one of the other issues that the witnesses were divided on, but it will certainly have to be discussed by this committee.

At this point I will conclude, and if members have any questions I will certainly attempt to answer them. Perhaps other members who were on the committee in the last session will also want to make some comments.

The Joint Chairman (Senator Oliver): Thank you very much. That was an excellent overview.

The first person on the list is Mr. Boudria, and then I'm going to turn to Madame Tremblay, but can I ask you one question? Throughout your overview you said there were suggestions for a separate code for ministers and parliamentary secretaries. You never included chairmen of committees in that code. What is the reason for that?

Mr. Robertson: I don't believe that any of the witnesses have suggested that chairmen of committees should be treated differently. There's certainly no reason why they couldn't be. I guess the reason that ministers and parliamentary secretaries have historically been treated separately is that they are appointed by the Prime Minister and the Prime Minister can remove them. More importantly, they have access to confidential information. They are receiving briefing materials and receiving briefings on information that they could use for their own personal benefit. The potential for direct conflict is perhaps greater.

The Joint Chairman (Senator Oliver): Do chairs not qualify on the same ground?

Mr. Robertson: Yes, in many cases they could. I guess the other point it raises is that you don't necessarily need to have... You could have special rules available to chairmen of committees. You wouldn't necessarily need to have the same rules as those you have for ministers and parliamentary secretaries, but you also might say that because of the additional responsibilities and opportunities they have, there should be additional responsibilities and rules for them. I think that's an interesting idea.

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

Mr. Boudria: Thank you, Mr. Chairman. I appreciated this briefing this afternoon.

We've been at this for so long. I wish we could find a method that will do two things, without shortcutting what we're supposed to do to arrive at something in the very near future. First, it will be simple, and second, it will improve upon the rules we have now. However, that said - and after listening to our witnesses - there certainly isn't a consensus on how broken the rules are or even a consensus that additional rules are required.

I have a bit of a different view when we say we have really no requirements. We have some, but they're mixed up. They're not in a code. They're not codified. Within the Criminal Code and the Parliament of Canada Act, the Standing Orders and all sorts of stuff, we do have rules. It's true that it's not codified.

.1620

Maybe one of the things we need is a codification of what we have now, just so all our rules could be in front of us. We could look at what we have now and embellish upon what we have. We could improve upon what's there. I suspect most of us don't even know all of the rules under which we operate.

But the Ontario example... This has gone on for so long that I'm starting to forget some of the things I should remember. I'll ask our able researcher if he can refresh my memory.

You indicated that the Ontario commissioner - or whatever he calls himself - can offer opinions to the members who consult him. Is he also able - I think I asked him this question, but I forget what the answer was - to issue comfort letters of a jurisconsult type, like the Quebec ethics counsellor does? If my memory serves me correctly, he issues a letter if he is asked an opinion. And that letter almost has the force of law, at least in the eyes of everybody in the sense that if an opponent or someone else questions the appropriateness of the action, the member invokes the letter that states the action was correct, and the issue almost bounces right back into the face of the person who asked about it.

In other words, it has a double effect, whereas the present one, without rules... Sometimes an accusation is made, and if it is just thrown, it automatically sticks. This makes it bounce back if it shouldn't stick.

Do you remember if the Ontario rules provided for that? First of all, do Quebec's rules provide for it?

Mr. Robertson: Yes, but that's my understanding of how the Quebec system works. The jurisconsult is there for any member of the Quebec National Assembly to go to to set out certain facts. The jurisconsult issues a comfort letter - an opinion - and the member is entitled to rely on that.

In Ontario, Mr. Evans has the same powers under the new Members' Integrity Act. I'm not sure it was designed with quite that in mind but that's how it operates. If members go to him and give him the facts, he provides an opinion on the basis of those facts. As long as those facts are correct, the member is entitled to rely upon that opinion. If he's attacked, he can show the opinion from the integrity commissioner. He said that it provides a great deal of comfort from that point of view, and he gets a great many requests and inquiries from members as a result.

Mr. Boudria: Do you remember offhand if other provincial codes are similarly equipped?

Mr. Robertson: Offhand, the other commissioners do provide a lot of advice, but I'm not sure that they're quite as structured in terms of a formal comfort letter. Members can go to them for advice, but I'm not sure, offhand, if the member can rely upon what they say.

I think that's the general trend in the modern systems. These different regimes have come into force at different times over the past ten or twenty years, so some of them are less modern than others.

The Joint Chairman (Senator Oliver): That's what Mr. Audcent was asking for, wasn't he?

Mr. Robertson: Yes.

The Joint Chairman (Senator Oliver): He said all he could do was to give a legal opinion, but you can't rely upon it because it's just his personal opinion.

Mr. Boudria: It doesn't have the jurisconsult feature.

Mr. Robertson: That's right.

I think he pointed out that there's at least... I don't remember the detail offhand. In one case - and it may have been one of the commissioners who pointed it out... I guess it was with respect to former parliamentarians. Because they are not members of Parliament or members of the legislature, they are no longer subject to the jurisdiction of the legislature. The courts could end up applying it. That is a problem for some of the commissioners. They might say you could go ahead and do a business deal because it would not be a contravention of the post-employment restrictions and the courts may take a different approach to it.

Again, the commissioners felt that this was awkward because they would be giving advice but they could not guarantee that a court would accept their advice.

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Mr. Boudria: Just to change gears for one minute to another issue, in regard to disclosure, lots of people were in favour of disclosure. Some were in favour of qualitative disclosure, others qualitative and quantitative. We even had some who said that not only should the members disclose, but so should their spouse and even their children, even if they don't live at home. So an MP's son living in B.C. would have to disclose his assets to his mother or father who's an MP.

I'm just trying to remember who it was who said that, and perhaps you can help me here. Maybe they were the two reporters or the two publishers. Were they the only two people who offered what I shall call that slightly strange opinion?

Mr. Robertson: I know the two publishers from The Sun and The Citizen did -

Mr. Boudria: Did they both say that, or just one?

Mr. Robertson: They both ended up saying that, I think. They took the position that there should be full and complete public disclosure of all assets, liabilities and activities. They felt this should apply to spouses as well as to all family members. I don't know if they had necessarily thought through the implications of that, but in the questioning it came out that the logic of what they were saying meant that the member would have to disclose the assets and liabilities of a 32-year-old son who lived in Vancouver, for example.

Considering the difficulties that have been encountered in the past with getting spouses to disclose, I think it would be very difficult to get adult children to provide that information.

Mr. Boudria: It's likely, yes.

I think those are the only issues where I'm just trying to refresh my memory a little bit.

Mr. Robertson: I have two other comments, just from what you were saying. First, a number of the provincial commissioners pointed out that even where they have not given a comfort letter, if an issue comes up or a question is raised, they will do an investigation. Having completed their investigation, which most of them seem to do fairly quickly, within a week or two in most cases they spoke about, they felt this dissipated the issue. The issue was dealt with, they issued an opinion, and that was the end of the matter, as opposed to letting it drag out over a much longer period of time, which is perhaps the case in some situations nowadays.

The other point, which was raised during one of the hearings, was about putting together all the rules that currently apply to members of Parliament. We can put that together for you. The difficulty, to some extent, is that some of the rules are very legalistic and are in the Criminal Code or something, while some are just in the Standing Orders and the rules. So they don't flow that well together, but it would certainly give you a picture of exactly what the current rules are that members and senators are subjected to.

There's also this document, which is a two-page list of the rules, that is put out by the general legal counsel, but we'll get that for the members of the committee.

The Joint Chairman (Senator Oliver): Some of them are antiquated. A lot of the Parliament of Canada Act stuff is totally antiquated and has to be updated.

Mr. Robertson: Yes. As Mr. Boudria says, they're scattered all over the place and it's very hard to know exactly what applies. Just a consolidation would be a step forward.

[Translation]

Ms Tremblay: Thank you for the information and the documents you gave us to enlighten us on this matter.

In your presentation, you said that Ontario had just made some amendments. Did Ontario make them after the commissioner appeared before this committee?

[English]

Mr. Robertson: No, they occurred just before. I can find it here very quickly. The Members' Integrity Act of 1994 was proclaimed two weeks before his appearance before this committee. So it was passed in 1994, it was proclaimed in October 1995, and then he appeared before the committee. In his testimony, he was describing the new legislation.

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[Translation]

Ms Tremblay: Thank you.

What were the main arguments for this to be run by an outside commissioner?

[English]

Mr. Robertson: I guess the current commissioners felt they benefited from being appointed by the legislature. In all cases, I believe they were appointed by a resolution that was passed unanimously, so all parties represented in the legislature voted for their appointment. This meant they were starting from the point of view of having the confidence of all parties in the chamber. They were independent, so they could not be accused of any political bias or partisanship.

The Joint Chairman (Senator Oliver): Independent in what sense?

Mr. Robertson: Independent of the government, independent of an individual party. In a number of cases the commissioners are former or retired judges, so they have been removed from political activity for some time. I think the Alberta commissioner may have been a former politician, but he had been out of the legislature for some time.

I think they felt that by being independent, they didn't have to worry about their reappointment by pleasing the Prime Minister or any party. They could continue in office as long as the legislature or the politicians had confidence in them.

I think the other members felt it was important to the integrity of the system that they were seen to be free of the government and if they reported to the parliament. I guess a number of members said it's like the Auditor General. It's like a number of other parliamentary appointments - the Commissioner of Official Languages, the privacy and information commissioners, the Chief Electoral Officer, all of whom are parliamentary appointments.

[Translation]

Ms Tremblay: I'm trying to remember the details of the case where a minister and his wife owned some companies.

Mr. Boudria: Sinclair Stevens.

Ms Tremblay: Stevens? All right.

What arguments did Ms Murray have to support the view that the spouse did not have to disclose her assets? Was there any justification for it, given what has already happened in Canada?

[English]

Mr. Robertson: I'm not sure she gave much detail as to why she didn't think they should be covered. I think it was more of a reaction on her part, and maybe she was approaching it from the point of view that it's the politician - the elected representative or the appointed representative, rather than the family member - who should be subject to these restrictions or these requirements. She was certainly the only one who said that.

I think most people recognize that it is the person who runs for election or who accepts the appointment to the Senate who is the main person who is responsible. It's an unfortunate but unavoidable invasion of the privacy of the spouse, but it's required because of family law and various other developments. It's a matter of fact that, as the Sinclair Stevens example showed, you can't prevent spouses from talking to each other about issues that come up or that they're interested in.

I think the suggestion was made - I think Mr. Boudria mentioned it during one of the previous committee meetings - that spousal disclosure might be postponed until after the next election so that when people make the decision to run for election, the spouse would do so knowingly. That is, if they as a family make the decision to run, the spouse would realize that his or her assets would be disclosed.

[Translation]

Ms Tremblay: Thank you.

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[English]

The Joint Chairman (Senator Oliver): Some of their assets will be disclosed anyway, under most family law regimes. If they have a community of property and so on, if you disclose the one and she's deemed to own 50% of what's disclosed, that's partly disclosed in any event.

Earlier we were talking about one of the problems that arises. Are you recommending sort of a privative clause to prevent judges dealing with what a parliamentary appointed commissioner may decide, so that you don't have two jurisdictions judging the same thing?

Mr. Robertson: I think that's an issue that would probably have to be explored to make sure that if the Parliament of Canada, which currently has jurisdiction over these matters, chooses to appoint someone to be involved in the decision, the commissioner, that person's decisions not be used or questioned in the courts. I don't think that has been a problem yet in Canada, partly because the commissioners are merely making recommendations to the chamber and the chamber makes the final decision.

The Joint Chairman (Senator Oliver): What about the post-employment situation?

Mr. Robertson: The post-employment thing was raised by one of the witnesses as being a difficulty for him. I think it could be addressed and I think it should be addressed in a code to ensure that the chamber continues to have jurisdiction over its former members so that it doesn't become a case where the courts can step in and start questioning whether something is appropriate or not.

The Joint Chairman (Senator Oliver): Thanks for that.

Senator Di Nino.

Senator Di Nino: Thank you, Mr. Chairman.

First let me also express some concern about the length of time and the time commitment that is required or has been required on this committee. It would be very useful if, as Mr. Boudria suggested, a codification of what we have could be prepared, with maybe two or three thoughts based on the presentations of the expert witnesses we've heard attached to each component. It may speed up the process somewhat.

I have a couple of questions. First, there was one suggestion under the responsible authority. I'm not totally sure how the Clerk of the House receives their commission, but the clerk of the Senate is an OIC appointment. Is it the same with the clerk of the House?

Mr. Robertson: Yes.

Senator Di Nino: I would imagine that under those circumstances it would probably be inappropriate to consider that suggestion, in my opinion.

I have another quick question. You mention that under the status of code, if an independent office is to be created, each statute would be required. Is that absolute? Could not an independent body be created that could administer the code without having to create a statute?

Mr. Robertson: I think the feeling is that it would not necessarily need to be a new statute; it could be an amendment to an existing statute. But there would have to be some statutory authority to create the office, to give it certain powers, to arrange for the payment of salary, and so forth.

I guess it goes back to the fact that the commissioner is to be an officer of Parliament or accountable to Parliament, and therefore there needs to be something in statute that sets out the powers and the nature of what the office is. It could be a very straightforward, simple piece of legislation, but I think you need to give that person or persons - you could have more than one - something in statutory form so that the office exists and cannot be changed if the majority of House decided to get rid of the person. I guess security of tenure is part of what would be there.

Senator Di Nino: I'm not totally sure I agree.

Mr. Robertson: It's something that may have to be discussed, and we could certainly look into that further for you.

Senator Di Nino: Let me ask another question. On page 3 of your report, under ``Furthering private interests'', there's a clause on the third line that says ``or, additionally, the interests of another `improperly'.'' Something came to mind when I read this in preparation for the meeting.

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Did any of the witnesses deal with the potential conflicts that could be created for those people who, not for personal gain but because of their involvement or association with organizations on a voluntary basis or non-compensatory basis...? Did anyone raise that issue?

Mr. Robertson: It came up in two ways, I guess. First, a number of witnesses discussed the idea of whether members of Parliament should have outside business and professional interests. I think Mrs. Catterall pointed out that there are ways of being involved in the community other than by being compensated. You can be involved in a charity as a volunteer, as an unpaid person. Clearly that creates the same potential for conflict of interest as if you are a member of a board of directors or in some compensated position.

I guess it also came up in terms of what is permitted for members of Parliament, or even for ministers, in terms of an interest they might have in common with a group of other people. For instance, Ministers of Agriculture quite often are farmers, and it gets into the whole question of whether a person who is a farmer should be able to vote on legislation that applies to farmers. In most cases it applies to a whole range of farmers, and there's an argument that if you're representing a farming riding, a farming community, it's better to have those interests yourself. But where do you draw the line in terms of those kinds of activities? If you're a lawyer, can you get involved in legislation involving lawyers, even if you're not practising law, and so forth?

I think it came up. I think the witnesses, and probably members, saw that there were some difficulties in any blanket prohibition. I'm not sure there was any consensus as to exactly where you would draw the line.

The Joint Chairman (Senator Oliver): In fairness, Mitchell Sharp and Howard Wilson both told the group in their evidence that they encouraged members to have outside interests so they could bring a broader perspective to the debate of Parliament. They not only said it would be good but they encouraged it, and they hoped that somehow they could...

Senator Di Nino: There is a difference, though, between a Minister of Agriculture being a farmer or an accountant who is a member of a professional organization and a person - let me use myself as an example - who a number of years ago was president of the Scouts in the greater Toronto region. If legislation arose that dealt with issues and the scouting movement - I'm not sure how you define this - would benefit in some way by my participation, does that create a conflict for me?

I'm not sure if you can answer that question. I just want to put it on the record so that in our deliberations we would look at that, because there truly are some major differences between totally not-for-profit, charitable entities and those that are basically not-for-profit business organizations, such as the chambers of commerce, etc.

Ms Catterall (Ottawa West): I guess I'm going back partly to what Don said. I think we're dealing with issues of public perception here. Partly we're dealing with the need for members to have some standards against which to know if they are behaving in a way that is consistent with what other members of Parliament are doing.

In terms of the public perception, one thing that is important, I believe, is for members of the public to know what restrictions and what laws already apply to members of Parliament, and for members of Parliament to know that. Although I have a general sense of what's right and wrong for me to do, I could not tell you specifically what the Criminal Code and the Parliament of Canada Act say about my activities.

I guess I feel we should look through those things that exist, bring them up to date where they need to be brought up to date, add to them if they need to be added to. And at a very minimum, we should put them together in a form or a booklet that's made available to all members of Parliament and can be sent out to the public. I was particularly interested because it was a new dimension to the debate in that the witnesses we had were consultants and advisers and experts on ethics.

.1645

It seems to me that a statement of values that guide... Now, I don't want to get back into that whole debate that we had about the difference between ethics and values. We no doubt will when Jean-Robert Gauthier is back, but for the moment let's be loose in our use of terms.

I think there is need for a credo, if you will, as to the principles on which members of Parliament agree to guide themselves. No law ever tells you, in all things, what you should and shouldn't do. Whether we call it a code of conduct or code of ethics or not, I think it could be extremely helpful as a part of that book, and we might want to consult further with some ethics advisers on how to go about that.

I guess the third thing comes in terms of outside interests. I think I made this clear at the time that ``outside interests'' was being defined for us, both from the British experience and the work that was done on it both in Britain and by a couple of our witnesses, as ``outside financial interests''.

I think it's extremely important to keep in mind that there are a variety of ways in which members of Parliament can be aware of the concerns of the broader community other than through activities for financial gain. I think that's an important issue that we should address. Once we recognize that, then we can deal with the issue of outside interests that are for financial gain in a different way, I believe.

I certainly don't see the British system as a good model for the Canadian Parliament. I don't see a system in which people have a full time career and then try to do their job as parliamentarians in their leftover hours as an ideal situation. It may be easier in a more geographically confined country. For many of our members of Parliament with large geographical and very diverse constituencies, I'm not sure it is possible. And I certainly don't think it's ideal for members to earn money through work that is deliberately targeted at trying to influence the actions of Parliament, that finds its way into the debates in Parliament, into question period in Parliament, into the committee activities of members of Parliament, and into their private lobbying of ministers.

The Joint Chairman (Senator Oliver): Like the paid British consultants.

Ms Catterall: Yes, exactly. I don't think that is a good model for this country, so I was very leery about that principle. With the greatest respect that I have for Mr. Sharp, I am one who does not accept that one needs to be involved in outside paid work to do a good job as a member of Parliament. I think there is good evidence from the British system that it can be detrimental to one's role as a member of Parliament.

So that's where I've come to on this, having started out thinking that there's not a tremendous need for a code of conduct or a code of ethics. I think it would nonetheless have some value, and I say this as one who lived for nine years as a municipal councillor who was subject to very tight conflict of interest legislation, which I felt was beneficial to me and my colleagues.

I'd like to see us start with what we have now, pulling it all together to see how it meets some of the witnesses and the criteria and ideas that they've brought to us. Let's see what we want to do with that, and then perhaps have or work on an overriding statement of values.

.1650

Mr. Robertson: One or two of the witnesses pointed out that general principles or value statements would be a good idea and that the drafting of those is in itself an important exercise in trying to get consensus. Besides being beneficial from a public perception point of view, to show the general public that you are addressing the cynicism, it also provides the standard against which people can measure their behaviour. It also provides guidance.

In one of the meetings you mentioned how you, as a municipal councillor, would often get developers and other people giving you Christmas gifts. The trouble now is that there aren't rules about gifts. There aren't statements about whether gifts are appropriate or when they're appropriate, and I think that if the committee were to feel that some rules or statements were important or were possible, then it would provide members with some comfort or assurance that they shouldn't or they should accept the gifts, and they could proceed accordingly.

Certainly the United Kingdom is a very different environment. One of the witnesses pointed out that until recently members of Parliament in Britain were not terribly well paid. I think they still aren't terribly well paid. There are 635 -

Ms Catterall: You happen to have all that information.

Mr. Robertson: There are 635 members and only about 20% of them are actively involved on a day-to-day basis. I don't think the chamber itself fits them all. The idea is that if they all were to work full-time at being MPs, it would be a disaster. So the historical environment is quite different.

The Joint Chairman (Senator Oliver): Some of the principles that Lord Nolan had in his report, though, are excellent ethical principles that could very well fit the bill.

Mr. Robertson: Definitely.

The Joint Chairman (Mr. Milliken): Not only that, but I think that what the British did to their disclosure provisions is something we can look at. We'd probably go a bit farther than they have, but their book on disclosure will be published within the next week or two, I believe, and we may want to look at it. The reporting date was March 30 or 31, and it's just a matter of time until the document will be compiled and made public.

They had to report income only from sources that derived from their employment as members of Parliament. Sources that might be questionable are not reportable, whereas we might be inclined to require more reporting on that.

Mr. Robertson: My impression is that because of a number of scandals in the last few years in Great Britain, where members were caught asking for lots of money to ask questions in the House, the Committee on Standards in Public Life was appointed, and as a result they've been forced into moving much further than perhaps we've had to move in recent years.

I think it's worth while to look at that, and certainly Mr. Wilson, in his appearance, pointed out that the principles at the beginning of the Prime Minister's code, as well as the principles set out in Lord Nolan's code, are a very good starting-point in terms of trying to come up with some general principles.

Ms Catterall: I wasn't here the day you had... Was it the publishers or the editors of The Citizen?

Mr. Robertson: The publishers.

Ms Catterall: I suspect that what they had in mind was in fact a very specific case municipally, where a member of council voted on a matter that would directly benefit an adult child.

One thing that's important for us is not to let specific incidents guide our decisions here. In my view, that was a very clear conflict of interest, whether legally and narrowly it was or was not.

We have to come back to address that issue as almost affective relationships, rather than financial relationships, that could unfairly influence or lead a member of Parliament to try to influence decisions.

Mr. Robertson: What that also illustrates is the fact that no code is ever going to be complete. As a number of members have pointed out, you can't legislate morality. If you have a code of conduct, then it's going to make it easier for the bad apples to find ways around it, because they'll know what the rules are. So you can't insure against the problems. There are certain issues that are never going to be covered and that members are going to have to resolve, as other witnesses have said, in line with their own conscience. In the case in which it comes out, you're going to have to deal with whether or not you can live with the publicity and how it will affect your re-election if you're the member of the House.

.1655

One of the advantages, I guess, of having a commissioner is that even with those things like an adult child, you have somebody you can talk to. He is somebody who understands the needs and the requirements of being a politician, but who is like a father-confessor to whom you can go to explain the problem - my child is involved in this business, this other matter that affects it and is coming up - and you can discuss it. My impression, from what Mr. Evans of Ontario said, is that in most cases he would probably advise that you should be very cautious. You should do something to avoid the appearance of benefiting an adult child.

Ms Catterall: If the fundamental approach that we are likely to take is disclosure, and the most important thing is that the public is aware of any potential conflict, we may have ground rules for basic disclosure, but also other possible disclosures that may be necessary if certain circumstances arise. So there are two ways of resolving such a conflict. Either you say you have a conflict and you're not participating in this decision making or in influencing the decision in any way, or you disclose and say you have a conflict but you're going to go ahead and do this. I prefer the first, but we're looking at disclosure as the prime criteria here.

Mr. Robertson: I think the problem can come up in a House of Commons situation maybe more than in the Senate. What happens if you have a matter that comes up and twenty members of the House have to withdraw because they have a conflict of interest? These people have been elected to represent their constituents. If they withdraw, their constituents are denied effective representation, the government could be defeated very easily, or you could have a close vote. So I think that issue is one that I'm not sure has been addressed much by the witnesses, or even by other legislatures. I think how do you deal with that sort of situation is something that needs to be looked at. Maybe it comes down to how you define ``conflict of interest'', but it also has implications in terms of how you deal with a conflict once it's known.

A number of witnesses did indicate that disclosure is the important thing. If the public and the media have the information, then that's the best measure against which somebody can be judged.

The Joint Chairman (Senator Oliver): It's interesting that when you began, you were summarizing the evidence of Howard Wilson. I wrote down three of the sentences that he said, and it seems to me we've come almost back to them. He said you need a modest code of conduct, certain disclosure requirements, and some general principles. That sort of sums up what many of our people have been saying here today.

Senator Di Nino: Mr. Chairman, I also believe you can create a set of rules that will cover every situation, although you may need to build in some flexibility. For example, Mrs. Catterall has stated before that she would prefer the first example as opposed to the second example. I suggest to you, however, that in my role as president of the scouts, I may want to declare that there may be a conflict - obviously not one of personal benefit - but I would still like to continue. So I think if we're going to create any rules, they have to be such that they will allow us to conduct ourselves in a proper manner while still doing our jobs. Enough flexibility will have to be built in.

Mr. Robertson: I think there are lots of different types of conflicts, and they aren't necessarily financial. The issue can also be a personal benefit versus a benefit to a group within your constituency or an interest group that you have a relationship with. Personally, I would think that if I was voting on a matter that would benefit me financially, that's different from voting on a matter that benefits a non-profit, charitable organization I'm involved with. I think there is a clear distinction there.

Mr. Epp: This question opens up the whole dilemma of the MP's work. I know it has come up in the House of Commons - I was frankly very surprised when I first found out about it - and it has to do with the census takers.

.1700

This is new to me, but an MP is asked directly and apparently it is a long-standing tradition that the members of Parliament submit to the census office the names of people who should get these jobs. If that's not a conflict of interest I don't know what it means.

I don't know whether we can start getting into things like that in a code of conduct, but it's a very broad subject. What is your opinion on that?

Mr. Robertson: I was surprised to hear that. You had mentioned that to one of the witnesses, I believe. Until then I hadn't realized that. I assumed it was all done at the bureaucratic level by Statistics Canada using people.

Certainly there's nothing in the mandate of the committee to prevent us from getting into those sorts of issues. I would think it's primarily an issue or a question for Statistics Canada to change their procedures. The member is being put in a difficult position, but the member is being put into it by somebody else. Statistics Canada or whoever decides these things could change the rules, in which case you would not be asked to name somebody.

Mr. Epp: I think it was originally intended as a way of just encouraging people to vote for the current MP. I can think of no other reason for having something like that.

Mr. Robertson: Unfortunately, there are things like the Canada Elections Act, which provides for the appointment of various officials on the basis of the parties that receive the most votes. Those are legal provisions. Whether they're good or bad, I think those provisions could be reviewed in terms of changes to the Canada Elections Act.

Mr. Epp: I think they should be.

I have a question on a completely different topic. Now that we've had all these witnesses, what is your general impression with respect to the enforcement of rules? I know there's talk of an independent commissioner and there's talk of this little tribunal. Of course, right now some of the rules are enforced by the courts of the country, those that fall under the Criminal Code. If you were to try to gather a consensus from all the witnesses we heard, what would your impression of it be?

Mr. Robertson: I don't think anyone is proposing that parliamentarians be removed from the current Criminal Code provisions. Those things that are currently offences under the Criminal Code would continue to be enforced by the courts.

There are some provisions in the Parliament of Canada Act which allow individual Canadians to launch a lawsuit against the parliamentarian and to keep any damages that are awarded. It's a bizarre and very antiquated system, and I don't think it's used anywhere else nowadays. I would think those should be removed.

I think in most cases the enforcement is that the commissioner or commission investigates complaints and makes a recommendation and that the actual sanction is imposed by the legislature. The House of Commons or the Senate would pass judgment and impose penalties on their members.

First of all, before you get to that point there is a question of who can lay a complaint. Can it be received from a member of the public? Can it be received only from parliamentarians? The provinces have both ways.

In Ontario Mr. Evans said he's only allowed to receive complaints from members of the legislature. If a member of the public calls him up he can't take their complaint. They can go to an opposition member and if they think there's merit to it they'll pass it on. In fact, he also said he's trying to get the party caucuses to identify a single person who would channel all objections or all complaints so that there would be some vetting of them.

In B.C. and other places they do accept complaints from the general public. I think in B.C. there was some problem because the complaint against the previous premier had been launched by a member of the media.

.1705

Of course, the difficulty with having Parliament decide the penalty is that you could end up with situations in which the person who is being complained about is a member of the majority. Under parliamentary procedures, the majority governs, of course, and as a practical matter that could mean it could be difficult.

I think the saving grace with that is the fact that you have a neutral, third-party commissioner who presumably has prestige, so if he or she says there has been no problem or no violation or says there has been a violation, it would be pretty hard from a public relations point of view to disregard that advice, unless you could show there was some misunderstanding of the facts.

Mr. Epp: As most of you who have been on this committee know, my first preference all along has been for an independent commissioner who is as independent as our Auditor General. I was somewhat disabused of the effectiveness of that because of the recent case in Alberta, where there were a lot of questions about whether the commissioner had really acted independently. Unfortunately, I think the premier himself interfered with the investigation and the outcome by upping the ante, by saying before the commissioner had given his report that if it came back negative he would resign.

Ms Catterall: That sounds familiar.

Mr. Epp: Well, it does, but in this particular case I think it was most unfortunate. It really meant that the commissioner, while he was making his report on the particular alleged item of inappropriateness, really had in the back of his mind, as all members do in this house when they vote on the budget... While we're voting on one thing or deciding one thing, the real question is if we should have an election. That's an important flaw. So we need to...

If I were the commissioner, I would have just said automatically, if that's what he's going to say, he's missed it. But then I know I wouldn't be the one chosen as a commissioner the next time.

I don't know how to do this. How do you ever get total freedom from the political process with this? I think we have it, to a large degree, with our Auditor General. He consistently criticizes the governments of the day as they come and go, no matter who. I think our record at the federal level is pretty good. But to establish that...

A voice: Not really.

Mr. Epp: Oh, you don't think so? Well, I think it is relatively good. To establish that, of course, would take years, to really show that this person or this individual consistently, independently and objectively has made correct rulings... Without disclosure, of course, that would never be known, so we need the disclosure.

Mr. Robertson: I think it's very difficult. That's the problem with a commissioner. I guess it points out the necessity of picking the right person. The system is only going to work if members pay attention to it and support it.

If a politician takes an end run like the Premier of Alberta arguably did, it makes it much more difficult for the commissioner to rule objectively. I think that might be an argument in favour of having more than one person on the commission, because it might be easier, or there might be more public support for a three-person commission than there would be for one person who might be more subject to pressure.

I think you raise an interesting point, but I'm not sure it is an argument in favour of having a person who isn't independent or neutral. Other people are going to be subject to pressure, maybe less direct than the kind of pressure that was brought to bear on the commissioner in Alberta.

Mr. Epp: I'm really concerned about having someone from within our group judge ourselves. The public is always suspicious when the police commission investigates itself. In my opinion, it needs to be someone who is as independent as can be from the political process.

Mr. Robertson: I think what the Auditor General is dealing with is perhaps less subjective.

Mr. Epp: Oh, yes.

Mr. Robertson: The trouble with ethics is - as Senator Gauthier pointed out - that different people have different ethical and cultural values.

Mr. Epp: We all know that.

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Mr. Robertson: It makes it very difficult. But my impression is that a number of the commissioners in the provinces have succeeded in walking that fine line. It can be done. It requires willingness on the part of all the members, though.

Ms Catterall: It's really not a question, except for something Mr. Robertson brought up that I hope we won't miss when we finally come to do a report. It's the question of what happens when a member of Parliament is informed or comes across allegations of wrongdoing. We have no rules on that, but we should have.

The rule I would like is very clear. It's the same rule as the one that applies to complaints to authorities about child abuse. You don't have to make any judgment about whether it's right or wrong; your automatic obligation is to report it. That protects you from having to make any judgment whatsoever on the situation.

The Joint Chairman (Senator Oliver): That's a good suggestion.

Mr. Robertson: That's a rule that I believe most law societies impose on lawyers: that if you have any suspicions that another lawyer is doing something wrong, you need to report it.

Ms Catterall: Not just other members of Parliament, but any allegation of wrongdoing that comes to you.

Mr. Robertson: You might also want to tie that into giving the commissioner a certain amount of discretion as to how far he or she will investigate something. There are some cases that after half an hour of study are clearly groundless. You might want to ensure that the commissioner doesn't have to go through all of the steps to follow it up.

Ms Catterall: Just to be clear, I'm not talking only about -

Mr. Robertson: Oh, okay.

Ms Catterall: If I am told that So-and-so is misusing government property, or that somebody has stolen something, this is not necessarily within the purview of an ethics commissioner, although it could be. But I want the burden of deciding whether or not that should be reported to be taken off me. There should be a blanket rule.

Mr. Robertson: That certainly could be part of a code of conduct. That is one of the issues that I'm sure a lot of parliamentarians have difficulties with, when you get certain information given to you and you don't know how to handle it.

The Joint Chairman (Senator Oliver): That's an interesting point. From the point of view of the end-user, the voter or the elector, when they look at parliamentary ethics that's certainly one of the things they have a concern about: how it is that there was a suspicion of something going on but no one reported it, no one did anything about it.

Ms Catterall: ``Well, I went to that member of Parliament and told him such-and-such was going on, but he didn't do anything about it''. You may think the guy or woman is an absolute nut and making this up or paranoid or whatever, but -

Mr. Robertson: I guess that points out the idea that a code of conduct can provide assistance to members by removing from them some of the decision-making by making clear what they're expected to do in certain situations. From that point of view, not only can it perform an educational function, but it can assist them in carrying out their jobs, by making clear what their job or their responsibility is.

Ms Catterall: One other thing we might want to look at that we haven't really talked about is the relationship of members of Parliament with the public service.

The Joint Chairman (Senator Oliver): Mr. Robertson, on behalf of the committee I want to thank you very much for a most excellent presentation and the even better responses to the various questions. It's been difficult, but thank you very much.

A notice of the next meeting has been sent out to everyone. It will be next Wednesday, and I hope to see the full committee here at that time. There will be a steering committee meeting on Monday.

This meeting is hereby adjourned.

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