Parliamentary Privilege / Rights of the House

Contempt of the House: Officers of Parliament; Ethics Commissioner’s actions and remarks regarding an investigation of a Member; prima facie

October 6, 2005

Debates, pp. 8473-4

On September 26, 2005, Deepak Obhrai (Calgary East) rose on a question of privilege, alleging that the Ethics Commissioner, Bernard Shapiro, was in contempt of the House for having breached the Parliament of Canada Act and sections 27(4) and (7) of the Conflict of Interest Code for Members of the House of Commons. Mr. Obhrai argued that the Commissioner had not, as required by the Code, provided him with reasonable written notice that he was under investigation for possible violations of the Code, nor for which specific section of it the Member may have violated. Moreover, he claimed that Mr. Shapiro had commented on the investigation to representatives of the media, thus damaging his reputation and prejudicing the inquiry. The Speaker took the matter under advisement.^[1]

On, October 6, 2005, the Speaker delivered his ruling. He noted that neither the Parliament of Canada Act nor the Conflict of Interest Code provided a mechanism to permit Members to make complaints against the Ethics Commissioner with respect to the discharge of his mandate, nor for the Ethics Commissioner to defend himself against complaints about how he performs his duties. He stated that, without a review of the matter by the relevant committee, he was hesitant to rule an Officer of Parliament to be in contempt of the House. He further stated that it was unclear what role the Speaker could play in interpreting and enforcing the Code. He pointed out that subsection 72.05(3) of the Act stipulates that the Ethics Commissioner is to carry out his duties under the “general direction of a committee of the House”, namely the Standing Committee on Procedure and House Affairs. However, since the Code was relatively new at the time and there was no clear process to address these sorts of disputes, the Speaker declared himself willing to rule that there was a prima facie breach of privilege so as to afford the House the opportunity to decide how it wished to proceed. The Speaker then invited Mr. Obhrai to move the appropriate motion.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on Monday, September 26 by the hon. Member for Calgary East concerning the work of the Ethics Commissioner. I would like to thank the hon. Member for raising this matter, as well as for the additional information he provided.

In presenting his case, the hon. Member for Calgary East argued that the Ethics Commissioner had not followed the proper process for conducting an inquiry as defined in the Conflict of Interest Code appended to our Standing Orders. Specifically, the hon. Member claimed that the Ethics Commissioner failed to provide him with reasonable written notice that he was the subject of an inquiry. In addition, the hon. Member stated that, by commenting on the inquiry to a journalist, the Ethics Commissioner failed to conduct the inquiry in private.

Finally, the hon. Member alleged that the Ethics Commissioner’s comments to this journalist had damaged the hon. Member’s reputation and unfairly prejudiced the investigation.

For those reasons, he charged that the Ethics Commissioner was in contempt of the House and asked that I find a prima facie breach of privilege.

As both the position of Ethics Commissioner and the Conflict of Interest Code are relatively new, I believe it would be helpful to review how they came into existence.

On March 31, 2004, Royal Assent was given to Bill C-4, An Act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence. This Act created the position of Ethics Commissioner, whose role in relation to Members of Parliament is specified in subsection 72.05(1) of the Act, namely to:

“perform the duties and functions assigned by the House of Commons for governing the conduct of its Members when carrying out the duties and functions of their office as Members of that House”.

On April 29, 2004, the House adopted the Twenty-Fifth Report of the Standing Committee on Procedure and House Affairs, which recommended that a Conflict of Interest Code for Members be appended to our Standing Orders. This Code, which came into force at the beginning of the Thirty-Eighth Parliament, assigns several responsibilities to the Ethics Commissioner.

I mention these events to underscore that the Conflict of Interest Code contains rules that the House has adopted for itself and that the House has mandated the Ethics Commissioner to interpret and apply the Code. However neither the Act nor the Code provide a mechanism for Members to make a complaint against the Ethics Commissioner regarding the discharge of that mandate. By the same token, there is no mechanism for the Ethics Commissioner to defend himself against a complaint about how he performs his duties.

Having no other recourse, the hon. Member for Calgary East has asked me to rule on whether or not the Ethics Commissioner has breached two specific portions of the Code. The first alleged violation relates to subsection 27(4) of the Code which reads:

The Ethics Commissioner may, on his or her own initiative, and on giving the Member concerned reasonable written notice, conduct an inquiry to determine whether the Member has complied with his or her obligations under this Code.

The hon. Member stated that the inquiry into his conduct began last May, but claimed not to have been notified officially until August 23, 2005, of the nature of the allegations against him.

Second, the hon. Member claimed that by revealing details of the investigation to the media, the Ethics Commissioner has failed to conduct his inquiry in private. This requirement is found in subsection 27(7) of the Code which states:

The Ethics Commissioner is to conduct an inquiry in private and with due dispatch, provided that at all appropriate stages throughout the inquiry the Ethics Commissioner shall give the Member reasonable opportunity to be present and to make representations to the Ethics Commissioner in writing or in person by counsel or by any other representative.

Those two allegations are troubling in themselves and the correspondence provided by the hon. Member lends further weight to his case, so I have concerns about how this matter has progressed.

That being said, it is unclear what role, if any, that I as your Speaker have to play in ensuring that the Code is properly interpreted and enforced. For example, is it up to the Chair to determine what constitutes “reasonable written notice” or to say to what extent inquiries are to be conducted in private? Can the Chair be expected to rule on what constitutes “due dispatch” or on whether a Member who is the subject of an inquiry has been given a “reasonable opportunity to be present and to make representations?” A close reading of the Act and the Standing Orders suggests to me that that responsibility lies elsewhere.

Subsection 72.05(3) of the Act specifies that the Ethics Commissioner shall carry out his duties and functions under the general direction of a committee of the House. The House has designated the Standing Committee on Procedure and House Affairs to be this committee. Pursuant to Standing Order 108(3)(a)(viii), the Standing Committee has the mandate to “review and report on all matters relating to the Conflict of Interest Code for Members of the House of Commons”.

Since, as I stated earlier, the Code is still relatively new, I believe it would be beneficial both for the Office of the Ethics Commissioner and for the House if the Committee considered this matter. This would afford the Ethics Commissioner an opportunity to explain the process by which inquiries are conducted and give hon. Members a chance to raise any concerns. The Chair hopes that such a dialogue between the Committee and the Ethics Commissioner will clarify matters for all involved.

To summarize then, while the Chair is hesitant to rule that the conduct of an Officer of Parliament constitutes a contempt of the House in the absence of a thorough review and assessment by the responsible committee, the Chair is nevertheless sympathetic with the hon. Member for Calgary East who is seeking guidance on what avenues are open to him to ensure that this very serious matter is resolved. In particular, the Chair is concerned that the absence of a clear process to address these kinds of disputes leaves both hon. Members and the Ethics Commissioner lacking the clarity to which they are entitled in the performance of their respective roles.

For these reasons, and to afford the House an opportunity to pronounce itself on how it wishes to proceed in this very delicate case, I am prepared to find a prima facie question of privilege, and I therefore invite the hon. Member for Calgary East to move his motion.

Mr. Obhrai moved that the question be referred to the Standing Committee on Procedure and House Affairs and the motion was agreed to.^[2] On November 18, 2005, the Committee presented its Fifty-First Report to the House, finding the Commissioner to be in contempt of the House but recommending no sanctions or penalty in the matter.^[3] (Editor’s Note: the Report was not concurred in).