Proceedings of the Committee on 
Rules, Procedures and the Rights of Parliament

Issue 18 - Evidence, October 28, 2003

OTTAWA, Tuesday, October 28, 2003

The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill C-34, to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other acts in consequence, met this day at 9:35 a.m. to give consideration to the bill.

Senator Lorna Milne ( Chairman ) in the Chair.

[ English ]

The Chairman: Honourable senators, I see a quorum. The Standing Committee on Rules, Procedures and the Rights of Parliament is now in session to discuss Bill C-34. Before us today are the Honourable Senator Sharon Carstairs, Leader of the Government, and the Honourable Don Boudria, Minister of State and Leader of the Government in the House of Commons. We also have Ron Wall and Mitch Bloom of the Privy Council Office, who are here to answer questions if necessary.

I am informed that Minister Boudria has to leave by 10:30. If we have questions on the House of Commons side of the bill, I suggest we put those first.

[ Translation ]

The Honourable Don Boudria, P.C., M.P., Minister of State and Leader of the Government in the House of Commons: You have just introduced the two officials I have with me today from the Privy Council Office, Mr. Wall and Mr. Bloom.

I would like to take this opportunity to recognize the excellent work of this committee in shaping Bill C-34. As you know, the government has accepted all of the committee's recommendations, and these changes are incorporated in Bill C-34. Based on the draft that was submitted to you and that you reviewed, you made a number of recommendations, all of which with no exception were incorporated in the bill.

For instance, as recommended by your committee, the Bill gives the Senate its own Ethics Officer separate from the office of the Ethics Commissioner, given the different traditions of the honourable institution of the Senate and the House of Commons and other differences between the two chambers. The Senate Ethics Officer would administer conflict of interest provisions for Senators and a separate Ethics Commissioner would administer conflict of interest provisions for the House of Commons, as well as the Prime Minister's code for public office holders.

By creating both the Ethics Commissioner and the Senate Ethics Officer by legislation, we would send a clear message to Canadians that we are moving meaningfully on this issue. I would also emphasize that Bill C-34 includes additional provisions to reinforce the fact that the Ethics Commissioner and Senate Ethics Officer are covered by parliamentary privilege. This makes it clear that when administering the Code for their respective chambers, the work of these ethics officials would not be subject to judicial review.

We know that this issue was a concern in the past for a number of honourable senators.

Also as recommended by the committee, the appointment process has been changed to include consultation with leaders of all recognized parties in the Senate, followed by a confirming vote in the Senate. This process is consistent with the process used in several provinces, including Ontario and New Brunswick. It is also similar to the approach for officers of Parliament such as the Information and Privacy Commissioners.

The committee also recommended the term of the Ethics Commissioner be increased from a single five-year term to a seven-year renewable term. This is now a provision of Bill C-34.

[ English ]

Technical changes were also made to Bill C-34. New wording clarifies that ministers, secretaries of state and parliamentary secretaries are subject to House or Senate codes when carrying out their duties as members of Parliament or senators.

This ensures that public office-holders who are also parliamentarians are subject to the Senate and House codes in the same way as every other parliamentarian in respect of their actions as parliamentarians. In other words, we never want to create a circumstance where it could be perceived, erroneously, of course, that a minister or a parliamentary secretary has fewer obligations than a parliamentarian who is not a public office-holder of that kind.

Bill C-34 requires that requests to examine the actions of ministers under the Prime Minister's code be made in writing and based on reasonable grounds. This would be parallel to changes to the code for the House of Commons that a House committee is considering. Also, the ethics commissioner would be required to suspend an examination of the conduct of a minister under the Prime Minister's code where there are reasonable grounds to believe that an offence may have been committed under an act of Parliament.

It is not the commissioner's role to get into such things as offences under an act of Parliament, whether of a criminal nature or otherwise. Again, this would be parallel to the code for the House of Commons.

The bill now requires the Prime Minister to table ethical principles, rules and obligations before each House within 30 sitting days after assuming office, and that any subsequent changes to those ethical principles, rules and obligations be laid before Parliament within 15 sitting days.

The government has already had this practice in place since 1993, so this new provision serves to clarify and to state in law an existing situation and to ensure that it continues in the future.

I would be pleased to answer any questions that the committee might wish to raise, and I do apologize to honourable senators for having to attend to my duties in the cabinet at 10:30, but I have to make a presentation before my cabinet colleagues this morning and that is why I will ask that I be permitted to attend to that.

I thank honourable senators and, at the time that you choose appropriate, I would be obviously pleased to answer questions, along with my colleague.

The Honourable Sharon Carstairs, P.C., Leader of the Government in the Senate: It is a pleasure to be here this morning to discuss Bill C-34, which would create a Senate ethics officer and an ethics commissioner for the House of Commons and public office-holders.

Senator Stratton: As Minister Boudria has to leave at 10:30, would it not be more appropriate for us to question him and then go to Senator Carstairs, if that is possible?

The Chairman: It probably would be, but I note that Senator Carstairs' presentation is not terribly long and it might be good for us to have them both in mind at the time. I am in the hands of the committee.

Senator Kinsella: Is Mr. Boudria coming back?

The Chairman: No, I suspect his time is fairly constricted these days. At this time then, I will ask for questions of Minister Boudria.

Senator Andreychuk: Thank you, Mr. Boudria, for coming, but I hope that we will have sufficient time to put all our questions. I am mindful of the clock so I want to start with the fact that you are saying that the government listened to the Senate report — and Senator Carstairs has already said that. Certainly I have been through these committee meetings and the report was not intended to be our opinion. It was simply a collation of what we had looked at and some preliminary views, and even those are not fully expressed here. In light of the time the government took, would it not have been fairer to allow the Senate to complete its full study and not be bound by something that was very preliminary and not the view of the Senate?

Mr. Boudria: I think the honourable senator is asking me to give an opinion on proceedings before the Senate and the amount of time that the Senate, the number of hours and so on, or number of days, chooses to allot internally to this particular issue. I would be hard pressed to comment on that. When ministers are perceived as trying to tell honourable senators how to do these things, it is not usually well received, so with respect, even when invited, you are asking me to tread on rather dangerous ground.

All I can say is that this issue, of course, has been with us for a long time. I sat on a joint Senate and House of Commons committee with at least one honourable senator who is present this morning. Much of our work starts off on that basis. Then, of course, it is elaborated upon in the future, then there is the draft bill, with the result of that incorporated in the bill you have now, but I would rather keep away from exactly how much time the Senate provided at which stage of all that, if you would allow me.

Senator Andreychuk: Perhaps my question was misunderstood. In your presentation, Mr. Minister, you indicated that you took into account the views and wishes of the Senate, taken from our report, and our report clearly stated that it was very preliminary and a considerable amount of work needed to be done. Therefore I am surprised, in fact perhaps shocked, that the government then said, "These are your final views and we will take them into account." It troubles me that you took the report as the final result in the Senate and apparently said that you incorporated that into the bill.

Secondly, if you had done what you say, we would not have the bill that we have before us, because, for example, our report clearly stated that it would not be a consultation with the recognized parties in the Senate, but with the agreement of the leadership of the recognized parties of the Senate. Perhaps some of the things that we said were in line with what the government was thinking in Bill C-34, but surely there are many other things in our preliminary draft that you did not pick up on, and which were fundamental to us.

Therefore, I am surprised to hear you say that Bill C-34 is a result of taking into account our point of view.

Mr. Boudria: If I may say so, I do believe that a number of very important recommendations were made, such as having a distinct officer for each House. That is definitely a recommendation that we found in that report. One may argue that perhaps there could have been other recommendations included, I am not sure, but at least that particular component was taken into account. We included in the bill two separate officers of Parliament, distinct from each other, recognizing the particular needs of the Senate. We changed the duration of the term of office, which again is an element that was in that report. We also changed the non-renewable nature of the appointment to a renewable one. Again, that is an element that was found in that report, and we tried to have the bill better reflect the fact that the two Houses are, of course, part of the same Parliament, as honourable senators often remind us. At the same time, we have on many occasions, although not always, officers of that house who are distinct from the ones of the other House, such as the clerk.

On the other hand, we do have officers who are common to both, namely, Official Languages Commissioner, Privacy Commissioner and all those others with whom honourable senators are familiar.

It is in that sense that we tried to incorporate what was given to us. By the way, we did the same thing with the House of Commons committee. They made a number of valuable recommendations, and we believe that they were included in the report not only to better reflect the views of both Houses, but also to have a bill — eventually a law, we hope — that will be perceived by Canadians as the serious piece of proposed legislation that it is.

Senator Andreychuk: I am going to your speaking notes, where you have indicated that the government has accepted all of the committee's recommendations. I pointed out one that was not accepted. Does this mean that the government was in favour of all our recommendations, and if the bill does not reflect that, then we would be well advised to put forward amendments to ensure that our recommendations are in the bill, because the government seems to be supporting them?

Mr. Boudria: While supporting all your recommendations, I am not sure that every one of them is in the exact form for which you were looking. For instance, the appointment of the officer is different, as is the mechanism of appointment. You wanted to have it as you are indicating now, and I am sure it was the case in the report. You also wanted to change it slightly. The fact still remains that it is an officer appointed with the consent of your house, after a consultation unique to your house, and with no jurisdiction over the other. We had those discussions well ahead of the appointment of the officer, in terms of that officer acting independently for one House versus the other. To further enhance that, the report recommended having two different people. Those were incorporated, as were all the other things that I described previously.

Senator Andreychuk: I notice you said with consent "after consultation." Either we will be getting the agreement of the leadership in the Senate, and then the Prime Minister will make the appointment; or we will simply be "consulted" in the usual manner, in which many things are not necessarily followed through on.

The Chairman: The bill says "after a vote."

Mr. Boudria: There is a vote. With respect, honourable senators, consent is manifested by way of the vote. There is a consultation, and I do believe that process is the same as for the officer in the other House. I do not know how it will work in this house, whether, for example, there will be an examination of a candidate by a committee — that is not for me to say; it is for your house to decide. However, that is the way it would be done in the other House. In the other place, you would have the consultation, followed by review by a committee — again, that is something for your house to decide on its own — followed by a vote, which is "the consent of parliamentarians assembled." In the case of your house, should a recorded division be demanded on the appointment of an officer, then that consent is given by way of the vote of the house in question, namely, in this case, the Senate.

Senator Andreychuk: I will not belabour the point, but the honest differences —

The Chairman: Senator Andreychuk, I have Senators Grafstein, Cordy, Oliver and Lavigne on the list. Can I put you on it?

Senator Andreychuk: I will go to the second round, but I would like to make it very clear that the committee — and if you look back at our minutes, this was very clear — was incorporating the agreement of the leadership of the recognized parties in the Senate, because we knew that consultation and then a vote in the Senate gives the upper hand to the majority party. If there were to be confidence and trust in this officer, it would have to be with the agreement of all sides. I think that would only be fair and just. That is what the committee was saying, and not that there would be consultations with the leaders, et cetera, and then the majority would vote. I think history shows us where that leads. It leads to complete control by the governing party. I think that there is a difference of opinion here, Mr. Minister.

Senator Grafstein: I will ask two brief questions.

First, there is the question of the ethics officer/ethics commissioner. If a member of either the Senate or the House of Commons is the subject of the ethics officer's review and he in effect provides or seeks confidential advice, can that confidential advice be the subject matter of a criminal charge?

Mr. Boudria: You are asking me to give an opinion about something that could be before a court. Perhaps the way to answer your question is to look at what has happened in a number of provincial jurisdictions, honourable senators. There is the Tafler case in British Columbia. This was not about criminal charges; it was about a variety of other issues, which I will summarize for you. In one case, the issue was whether the B.C. Conflict of Interest Commissioner, acting under the Members' Conflict of Interest Act, as it is known there, was shielded by legislative privileges such that the courts had no power to review the way a commissioner carries out the task. The court unanimously found that the privileges of the assembly extended to the commissioner and said that decisions made by the commissioner in the carrying out of the commissioner's powers under the act are decisions made within and with respect to the privileges of the Legislative Assembly and not reviewable in the courts.

That was one case. In the Harvey case, in New Brunswick, the issue was whether the provincial electoral legislation providing for disqualification from holding office for anyone convicted of engaging in illegal electoral practice violated the Charter, and so on. A decision was made there about the protection of privilege, again, for another officer of the legislature. It said that as such, the disqualification of privilege is protected by parliamentary privilege and falls outside the ambit of section 3 of the Charter. It is a matter for the legislature, not the courts. That was a different officer. It had to do with an elections officer.

In another case, the Morin case, a member of the Territorial Assembly in the N.W.T. sought judicial review of an inquiry and report by the Conflict of Interest Commissioner for the N.W.T. The court concluded in that case — and I am willing to table the documents — that the powers exercised by the Conflict of Interest Commissioner are exercised within the ambit of privilege enjoyed by the Legislative Assembly. As such, the court has no jurisdiction to entertain a judicial review application.

In that particular case, it was an issue of judicial review. A variety of cases have been brought before the courts, but the conclusions were all pretty well the same. Another one is the Roberts case in 2002 in N.W.T. In this case, the Conflict of Interest Commissioner challenged her removal. That is a very different issue that was again brought before the courts. The courts ruled that they had no authority.

Another one in New Brunswick is the New Brunswick Broadcasting Co. v. Nova Scotia . The issue was whether the provincial legislature could refuse access to the gallery and proceedings. This one had to do with another officer of Parliament, one appointed very differently, the Speaker, who had refused, on behalf of the legislature, access to certain individuals. The majority on the court said that time that the Charter cannot cut down that right, on the principle that one part of the Constitution cannot abrogate another part of the Constitution, and concluded that the courts may determine if the privilege claim is necessary to the capacity of the legislature to function, but have no power to review the rightness or wrongness of a particular decision made pursuant to that privilege.

There were a variety of decisions, but none that related to a criminal charge, per se. However, all of them, including some in the Supreme Court of Canada, said that a decision of a legislature regarding the officers of that legislature was outside the purview of the courts in all the manners that I have described.

Senator Grafstein: I do not wish to debate with the minister. Some of us have read those cases and come to different conclusions. They are far removed from my precise question.

My precise question was simple. Let me amplify it and make it even more precise.

If a commissioner or the ethics officer — I think the rules are probably the same for both — is giving advice in a quasi-solicitor-and-client relationship, are the answers provided by a member of the House or of the Senate totally privileged? In other words, would the answers be accessible under a criminal or even a civil piece of legislation? However, criminal make it is tougher.

Would the commissioner be free to refuse a subpoena for material filed with him or statements given to him?

Mr. Boudria: Perhaps Mr. Bloom could add to what I said previously and answer some of these questions. I do not believe that there is any doubt about the subpoena issue. There have been many cases adjudicated in the past involving either parliamentarians or officers of Parliament, and it is pretty clear that that would not be accessible.

I could add one thing. We must remember that each House would write its respective code. Once written, it would be adopted by way of resolution of one's own particular House. The codes then become the details of how everything is formatted within that particular House. The decisions of that House are similarly protected.

Mr. Bloom perhaps could answer.

The Chairman: While Mr. Bloom is preparing his thoughts, I would direct honourable senators to clause 20.6(1) of the bill on page 3.

Mr. Mitch Bloom, Privy Council Officer, Privy Council Office: Both are points to which I want to draw your attention. The confidentiality regimes for the Senate ethics officer and the ethics commissioner are structured similarly. They are based on two aspects. One is parliamentary privilege, and the other is confidentiality.

In the case of the Senate ethics officer, it would be left up to the Senate in the preparation of its own rules for the officer to establish the scope of the confidentiality regime. As the minister pointed out in detail, that is supported by the privileges of the chamber, which are well established in jurisprudence.

Taking one step further regarding officers of Parliament, we included in this bill specific provision, which was just cited, clause 20.6(1), for further protection for the ethics officer and staff against having to reveal information gathered in the course of their activities.

Senator Cordy: I read clause 34 as allowing for the creation of a Senate ethics officer. I have heard senators commenting that the public and the courts would have access to our financial information. People are somewhat nervous about that. My understanding is that these are the types of things that the Senate would put into a code or into rules that would tie in with this bill, but the bill would not determine what exactly senators would have to disclose.

Is my reading of it correct, or will this bill allow unlimited access to our financial information?

Mr. Boudria: The short answer is there was never any intent of doing anything of the sort. The details of how you structure the regime for your house will be in the code.

I draw a parallel with the code that public office-holders are subject to currently. Senator Carstairs and I are subject to it. Others around this table have, at various periods during their careers in the past, been subject to whatever regime was in place at the time that they held various public offices.

One current alternative is the system of disclosure. Another one is a blind trust administered by a trustee. That is an acceptable format. There are perhaps other formats that could be included in the code that you will develop.

In that regard, the proposed legislation is only a framework. How you proceed in terms of individual declaration of assets, liabilities and otherwise will be in your code, honourable senators.

The privacy requirements included in the code would be protected by parliamentary privilege.

Senator Cordy: Senators would make the choices with regard to disclosure?

Mr. Boudria: Of course. Senators were indicating early on that thresholds might be different from one House to the other because the level of interest might be somewhat different. First, there are fewer public office-holders on the Senate side. Presently there is only one because there are no parliamentary secretaries in the Senate.

There has been a greater number at different periods, but it is almost always a small number.

Second, financial bills must, under the Constitution, originate on the House side. The Senate cannot introduce them because the House must provide the ways and means if it is to levy a tax. Those things might be reflected in the code that you establish for yourselves.

Perhaps a regime for senators will end up looking more like the regime for backbench MPs than that for ministers. That is something the Senate will have to decide.

Senator Oliver: Mr. Boudria, I have two specific questions. First, in your speech today, you referred to Bill C-34. You noted that it includes additional provisions to reinforce the fact that the ethics commissioner and Senate ethics officer are covered by parliamentary privilege. This makes it clear that when administering the code for their respective chambers, the work of these ethics officials could not be reviewed by the courts.

I want to know if you have a legal opinion that supports that. If you do, would you table it before this committee? That has been the subject of great debate, not just in this committee but also in the chamber.

I practised law for 36 years before the courts. I am aware of judicial activism and what courts will do. We have read a number of decisions where the current Chief Justice of the Supreme Court of Canada has made comments on privileges and other matters.

In view of the discrepancy and the lack of clarity in the current position of the courts in Canada, could you lay before us that legal opinion?

My second question is, when the Milliken-Oliver committee on which you served was doing very substantial work — you are a well-known authority in the whole area of political ethical regimes, and you were you an invaluable resource to Mr. Milliken and myself at that time — you will recall that we represented all of the parties in both the House of Commons and Senate at that time. We were unanimous in the view that it should not be done by statute but by resolution of both Houses, and that is the way it proceeded.

You are also aware that that 1997 bill that proceeded was sent to and adopted in Poland, and it works well by resolution, not by statute. We relied upon you at that time to give us advice on whether we should proceed by way of statute or resolution. It seems that you have now changed your opinion.

Can you tell us why you would not agree, as did you in 1997, that the best and safest way to proceed is by way of resolution of both Houses?

Mr. Boudria: With respect, I served on the Blenkarn-Stanbury committee and not the Milliken-Oliver committee. I may have attended one meeting in 1996, but I was appointed to cabinet that year, so I did very little work on that.

Senator Oliver: You were an invaluable resource, if I may say that.

Mr. Boudria: Thank you. However, I believe you may be referring to the meetings we had in 1993 of the Blenkarn- Stanbury committee. There were two while I was in opposition and a third after we reached government. I did very little on the one after we reached government. I may have attended one meeting and that would be about it.

On the other two, had a regime been established, which is was not, that would no doubt have evolved over the 15 years that ensued. It is not unthinkable to me that in a similar scenario 15 years later, we would have a piece of proposed legislation that is more comprehensive than we thought of at that time.

In any case, not only is that true, but I think both of those principles are married in what we have now. The framework is established by legislation, somewhat like the way we used to have the Senate and House of Commons governed two acts, and now the Parliament of Canada Act. There are certainly precedents for including things involving parliamentarians in statute. At the same time, the codification of what we do and the precise rules for each House are established by way of a resolution; the framework is in the bill. The appointment mechanism for the officers is in the bill. The protection of privilege for the officers is stated in the bill, but the exact regimes are established by way of resolution of either House. I believe it follows on from what we had, but perhaps goes beyond that, particularly in the appointment mechanism, given the number of things we have done on the appointment of other officers of Parliament since then. For instance, we have changed the method of appointment for a variety of officers, including the Privacy Commissioner — not the Chief Electoral Officer; that has not changed in several years. The mechanism of appointment has changed in a number of cases.

Senator Oliver: What is wrong with having the ethics officer appointed by resolution?

Mr. Boudria: With respect, honourable senators, I do not think it is a question of whether it is wrong. We do not have rules at the present, other than those stated in the Criminal Code, criminal conflict of interest and so on, and those cited in the Parliament of Canada Act, the definition of public work and a couple of things like that, and a few in the Standing Orders. Those are the very general rules that we have currently. I do not think that any rules that we will establish would be wrong, because they would be better than not having any, which is the present situation. I do not believe it is a matter of anything being wrong; it is a matter of us adopting legislation that reflects the values that I think we all espouse in 2003-04, whenever this regime is completely in place, and with the officers appointed to carry out the various functions. At the present, that would be the more complete way of doing it.

Senator Oliver: Could you answer my first question about placing before this committee the legal opinions that make you so certain that privilege will be protected?

Mr. Boudria: We will endeavour to seek what material we possess, have it translated and table it before your committee.

Senator Oliver: Can we have that today? You have your reports already and we would like to have it as soon as possible. It is very material.

Mr. Boudria: We will do our best to have it ready today. I am quite confident. I am informed by the officials of the Privy Council Office that whatever we have we will translate and place before this committee this day.

Senator Oliver: I am not looking for general material; I am looking for the legal opinions that support your contention that the activities of these ethics officials would not be reviewable by the courts.

Mr. Boudria: I will table with the committee the information that has been made available to me.

The Chairman: Thank you for offering to table that for us, minister.

[ Translation ]

Senator Lavigne: You said earlier that the two chambers of Parliament, the Senate and the House of Commons, are separate and that they would have separate ethics officers. Why then can't senators choose the Senate ethics officer as this is of direct concern to them? Why can't this officer be elected by all senators? Why was his term changed from five to seven years?

Mr. Boudria: Madam Chair, the term change was made at the request of the Senate. The recommendation to extend the term from five to seven years and to make it renewable was included in the Senate Committee's report. We were told that this would be important for continuity reasons. We have simply implemented the committee's recommendation. It was therefore done at the request of the Senate.

As for the appointment of the officer, we have a system of responsible government in which officers of Parliament, like the Clerk, the Sergeant-at-Arms, the Usher of the Black Rod and, in the case of the Senate, the Commissioner of Official Languages are all appointed by the government, even though they may sometimes report to the two Chambers, that is to Parliament, or to only one of them. For example, clerks are government appointees in our system of responsible government. That being said, there is still a process whereby the chamber can express its confidence. There are two ways to do this, first through consultation with leaders of recognized parties and second, by a confirming vote.

Madam Chair, there is no doubt in my mind that if there is a vote in your honourable institution on the appointment of the Senate ethics officer and that the result of the vote is 51 to 49, the appointed officer would not be in a position to maintain that he or she has the confidence of the chamber to manage such a sensitive issue as ethics. This doesn't necessarily mean that the vote must be unanimous. It's up to your institution to decide. However, if a nominee is damaged by numerous objections expressed in this institution, then obviously he or she would be in a difficult position to be trusted by honourable senators with their confidential documents.

Senator Lavigne: Mr. Minister, I have a more sensitive question to ask you. To appoint a Commissioner of Official Languages or a clerk is one thing, but to appoint someone who is going to manage our personal information and belongings — we're not talking of general matters here — is quite another thing. Why can't we appoint the person who will be administering our personal assets?

Mr. Boudria: Madam Chair, this position is not about managing personal assets. For example, if a member of Parliament chooses to have a trustee, this person will not be appointed by the ethics officer, but by the member himself. Of course, he would have to consult the ethics officer about the independence of the trustee, because he can't choose his brother-in-law or another relative! But the ethics officer does not personally act as a trustee to manage a senator's personal assets.

Senator Lavigne: Mr. Minister, I did not mean manage.

Senator Joyal: Mr. Minister, on page 2 of the English version of your presentation, under "Key Changes", fourth paragraph, you say that both the ethics commissioner and the Senate ethics officer are covered by parliamentary privilege. In the French version, which is the one you read, you said that they are both covered by parliamentary immunity. In my mind, there is a fundamental difference, both constitutionally and legally, between parliamentary privilege and parliamentary immunity. Parliamentary immunity is but one element of parliamentary privilege. My understanding is that immunity is the ability to avoid prosecution for something you say. Parliamentary privilege is much wider, extending not only to what you say but also to what you do. So, since you've always been very rational in what you do, I think both versions should reflect the same concept because there's a basic legal difference between immunity and privilege.

Mr. Boudria: Madam Chair, the honourable senator is absolutely right. In fact, both concepts are present in the bill as can be seen in clause 20.5(2), on page 3:

The duties and functions of the Senate ethics officer are carried out within the institution of the Senate. The Senate ethics officer enjoys the privileges and immunities of the Senate and its members in carrying out their duties and functions.

And in French —

Lorsqu'il s'acquitte de ces fonctions, il agit dans le cadre de l'institution du Sénat et possède les privilèges et immunités du Sénat et des sénateurs.

Yes, this is absolutely true. The statement says privilege in one language and immunity in the other. I thank the honourable senator for drawing my attention to this. The bill refers to both concepts in both official languages. Of course, immunity is only one of several parliamentary privileges. You are absolutely right.

Senator Joyal: In fact, I also want to draw your attention to the fact that the bill uses two very different concepts in subclause (1) when using the term "officer" in English and "conseiller" in French. You and I know that "conseiller" in French refers to a person that simply gives an advice. In English, an officer, both in general as well as in legal terms, is a person occupying a position of authority. You talked yourself of the position of officer of Parliament, one who exercises Parliament's authority. In the present case, this is not what we're talking about in French. According to the French version, it's essentially an advisor who doesn't exercise Parliament's authority.

For the sake of clarity, shouldn't we say it is an advisor, and not an officer in one language and an advisor in the other? I don't think these two words are interchangeable. The use of the word officer is confusing because, as you said in your opening statement, there are other officers of Parliament. To the best of my knowledge, this is absolutely not the same thing as what I understand from the bill.

Mr. Boudria: Madam Chair, this term is used because it is already in the Parliament of Canada Act, which has been in existence for many decades. The act is a consolidation of what used to be the House of Commons and Senate Act. You can find the provision in section 80.3 of the Parliament of Canada Act. The French term has been in existence and has been considered equivalent to the English term for a very long time, in this bill but also in an act that governs us all, the Parliament of Canada Act. We are just using the accepted terminology, whether it's right or wrong, of section 80.3 of the Parliament of Canada Act.

Senator Joyal: This section refers to officers of the House of Commons who are recognized by common law to possess parliamentary privileges when acting under Parliament's direction, that is the Sergeant-at-Arms, the Clerk and the Clerks-at-the-Table, but not officers of Parliament like the Auditor General and other well-known persons.

When using this concept, I think we are referring to the duties that we want this person to perform, which are those of a "conseiller". I don't think we disagree on this point. However, in the English version, the word "officer" refers to a different constitutional reality, that of section 81 relating to persons recognized by common law. These persons are covered by parliamentary privilege when acting under direct instructions from the legislature that appointed them.

Mr. Boudria: Madam Chair, does the honourable senator maintain that designating this person as an officer gives him or her some kind of an enforceable authority? This is not the case when the term is used in the present Parliament of Canada Act.

It is true that the Commissioner of Official Languages is appointed, but he has very little enforceable authority, apart from submitting reports to Parliament.

Senator Joyal: He can go to the courts, Mr. Minister.

Mr. Boudria: Yes, in this case. But in the case of the bill, the relationship with Parliament is clearly defined. Talking about going to court, this is definitely not the case with the Clerk of the House of Commons or with other similar positions, although the translation used is the same.

[ English ]

The Chairman: Senators, I understand that Mr. Boudria's time to appear before cabinet is fixed and so we cannot delay him here. Perhaps, Senator Kinsella, you could ask your question and he could reply in writing.

Mr. Boudria: I will try to reply quickly.

Senator Kinsella: I have two short questions. Does the minister recall how long this government bill was in the Commons committee? Is there anything in this bill that is time sensitive? We would be hard pressed to do the kind of work needed if we do not have at least two or three weeks. Is November 7 a closing date?

Mr. Boudria: Honourable senators, the draft bill was tabled before both Houses simultaneously. Once that was done, the formal bill was introduced in one House before the other; that is obviously a given. I do not know the total number of days that the bill was in committee and in the House. I could obtain that information for the committee. I think it went reasonably quickly because a draft bill had been sent to the House, as was the case with the Senate, but much earlier. The Commons committee did not have many meetings on the bill, although I do not know just how many.

Senator Kinsella: Could you advise us whether November 7 is a closing date?

Mr. Boudria: Honourable senators, if you are asking me whether Parliament will sit after the break, I do not know. However, if I were a betting man, I would think that we would continue sitting. As I say, the decision is not mine to make. I have to assume that there is work for us to do and we should continue sitting. I cannot take any other position than that. Any other decision would be made quite independently of anything I have to say about it.

Senator Kinsella: What is broken that Bill C-34 is fixing? Does the government know of any abuses or conflicts of interest on the part of senators? Why do we need this bill? What evidence do you have that there have ever been abuses?

Mr. Boudria: The same kinds of questions were being asked in the mid-1980s, or shortly thereafter, when Senator Oliver and I were sitting on the parliamentary committee to look at these issues. I do not think the issue is whether Parliament is broken; we amend rules in Parliament, such as standing orders, et cetera, and we are currently working on our fourth modernization committee since 1997 on the House of Commons side. That does not mean that Parliament was broken when we began, but that we are striving to improve the institution in which we sit and for which we all have a high level of esteem.

It is with that in mind that we operate. The role of the present Ethics Counsellor for the House of Commons was enhanced twice, if I remember correctly. One was in respect of the directives being made public and the second was in respect of the actual tabling of reports in the House of Commons. Initially, there was the creation of the position in 1993, which did not then exist at the current level. There have been, arguably, three improvements since 1993.

We are striving to improve it further with an appointment mechanism subject to votes in each House, a code that each House would adopt for itself and by all of us living within these new rules that we would then have.

In 1980 or so, the concept was rather novel. In 2003, most provincial legislatures have surpassed the Parliament of Canada in this respect because they have a similar instrument to Bill C-34, although arguably, they are a little different in each case. I do not think Parliament wants to be in a position where most provinces have more modern rules to this effect than it has.

The Chairman: We have two deadlines, Senator Kinsella: Minister Boudria's appointment before cabinet and the fact that the Clerk of the Senate is in the process of drawing up the budget for next year and wants to know who will pay for the ethics officer's salary, staff and accommodation. Will it be the Senate or will it be the Parliament of Canada?

Thank you, Mr. Boudria, for appearing before us today.

Senator Carstairs: Honourable senators, as I indicated a few minutes ago, I was pleased to defer to my colleagues. I am delighted to discuss Bill C-34 with you. I will place a particular emphasis on the proposed Senate ethics officer, in which senators have indicated the greatest amount of interest.

I thank you for your careful review of the government's draft bill to establish the Senate ethics officer. I am pleased that Bill C-34 incorporates recommendations made by the committee. For example, the committee recommended that each House have its own ethics officer. Bill C-34 would establish a separate Senate ethics officer, which would reflect the Senate's special traditions.

The committee also recommended that the Senate ethics officer be appointed after agreement of the leadership of the recognized parties in the Senate, followed by a confirming vote in the Senate. Bill C-34 provides for the appointment of a Senate ethics officer after consultation with the leaders of the recognized parties in the Senate, followed by adoption of a resolution in the Senate. I think the adoption of that resolution becomes critical.

The committee report recommended the term should be seven years, rather than five as originally proposed. Senator Lavigne asked a few minutes ago why that was changed. We know it was changed because the committee so recommended. They also recommended that this appointment should be renewable.

The committee spent considerable time on whether a parliamentary ethics officer should be appointed pursuant to statute or through a non-statutory approach. This issue has been the subject of evolving views in the Senate. Bill C-34 takes what I believe is a prudent approach, whereby Senate ethical requirements would be detailed in non-statutory form, as the Milliken-Oliver report proposed. The appointment of a Senate ethics officer would be pursuant to statute, which had been recommended by Blenkarn-Stanbury, 1991-93. As honourable senators know, the Clerk of the Senate is appointed pursuant to statute, and Senate officers, including committee chairs, are paid pursuant to statute. This has never invited intervention in our affairs or undermined Senate privileges. I believe that appointing a Senate ethics officer pursuant to statute would not increase that risk.

I would also note that the other place has chosen to appoint its ethics officer pursuant to statute in the belief that this is appropriate and will not undermine its privileges. In fact, I believe appointment by statute will also increase the stature of the position and will provide an independent basis that would not be the case if the appointment were non- statutory in nature.

The committee's report recommended that a statutory approach to the Senate ethics officer should contain clear wording to the effect that the officer should be subject to the direction and control of the Senate alone. Bill C-34 includes provisions to reflect this recommendation.

There are several provisions that clearly establish that parliamentary privilege attaches to the activities of the Senate ethics officer. These include proposed subsection 20.5(2), which provides that the duties and functions of the Senate ethics officer are carried out within the institution of the Senate and that the ethics officer enjoys the privileges of the Senate. Proposed subsection 20.5(5) provides that these provisions shall not in any way limit the privileges of the Senate. Proposed section 20.6 provides that the Senate ethics officer cannot be compelled to testify and reveal any information confidentially disclosed to him or her by a senator. Clause 7 would amend the Federal Court Act to further protect the Senate ethics officer against the possibility that her or his actions might be subject to judicial scrutiny.

Therefore, I believe that Bill C-34 provides us with a balanced approach by placing specific ethical requirements in non-statutory form and appointing an overseer pursuant to the statute, as we do for other officers of Parliament. Bill C-34 provides further clarity regarding the privileges of the Senate.

In conclusion, I would once again commend the committee for its work to date, which is reflected in the changes to the bill that I have just mentioned, and I am pleased to accept, and do my best to answer, any questions that the committee may put forward.

Senator Andreychuk: Thank you, Senator Carstairs, for your patience as we put the questions to Mr. Boudria.

One of my questions concerns something in your brief here. You say that clause 7 would amend the Federal Court Act to further protect the Senate ethics officer against the possibility that her or his actions might be subject to judicial scrutiny.

I would like to know what judicial opinions you sought to assure yourself that clause 7 does in fact what you say it does. We have studied this in Rules Committee in the context of other parliamentary privileges. There are cases that state that parliamentary privilege, and its exercise, can be scrutinized by the court. What additional assurances have you that that statement is correct?

Senator Carstairs: I read the Senate report very carefully. A consistent recommendation of senators was to clarify in every possible way that the privileges of Parliament were to be protected. This was yet another example of where we could put some further clarification in the statute so that the courts could take note.

Senator Andreychuk: Why does the government feel it is in the public or the national interest to bring in Bill C-34? I certainly agreed with you in some of your original speeches that Parliament is not held in the highest regard, especially if you look at public opinion polls; there has been from time to time in certain quarters questioning of parliamentary activity by a specific parliamentarian; and that it is time for a code of conduct.

That is one school of thought. The rebuttal, of course, is that much of the light that has shone on Parliament has not been on parliamentarians, but on ministers of the Crown, and that a full code of conduct and an impartial officer overseeing that code is really what the public is after.

What troubles me here is the smoke-and-mirrors aspect of the proposed legislation. We are saying to the public that Bill C-34 will provide an independent review of the Senate; there will be an ethics officer at arm's length and a code of conduct. When I tell people there is no code of conduct in the bill, that we senators will develop our own code and the government will be appointing the ethics officer after consultation, they say, "You have not given us anything, you are giving us a Howard Wilson scenario," and they are not very happy with it.

I am confused about what public policy issue this Bill C-34 was to address, because it does not seem to flow from the logic you put forward on the floor. If we had an independent officer and a code of conduct that was legislated in the bill, I could understand the public policy merit, whether I agreed with it or not, but this does not follow through on any public policy measure that I understand.

Senator Carstairs: I have the highest regard for Parliament and I think that anyone who has worked closely with Parliament also holds it in the highest regard. Unfortunately, the vast majority of Canadian citizens do not have the opportunity to have that kind of in-depth relationship with parliamentary bodies — and I also referred to provincial legislative bodies.

In her statement about the public interest, Senator Andreychuk has indicated that polling that has been done would somehow indicate that Parliament is not held in the highest regard, and I think that we have an opportunity to explain ourselves as best we can to the people of Canada. One of the ways to do this is to present, through this bill, a means by which an independent ethics officer will be given powers by the chamber, in this case the Senate of Canada, to work with senators and provide advice on the code of conduct that the senators would develop.

We could talk about a chicken-and-egg situation and which comes first — does the ethics officer or the code of conduct come first? I happen to think that the ethics officer will be the driving force for the development of the code of conduct.

The senators have clearly said that they believe this code of conduct should be theirs. They should develop it. However, once it is developed, the code of conduct will be in the public domain. In other words, citizens can look at the code of conduct and certainly can let their senators and members of Parliament know whether they think it meets all their expectations for a high standard of conduct by members of Parliament, including those members of Parliament known as senators.

Senator Andreychuk: Bill C-34 does not compel the Senate to establish a code of conduct that is any different from the rules of good conduct that we have now. Or are we saying that we lack the ability now to establish a full code and have not been governing ourselves appropriately?

Senator Carstairs: To the best of my knowledge, we do not have a code of conduct. We have a number of different rules in a number of different places, including the Parliament Act itself, section 14. We have never codified it, if you will. There is no place where an average Canadian citizen can look and say, "This is the code of conduct." This is what we have decided we must expect of each of us as members of our chamber.

I think it is appropriate that that code of conduct be developed. Since I know this committee has held a number of meetings on just such a code, I would anticipate that it would flow very quickly after the passage of this bill and you got back to the work of developing and evolving that code of conduct.

Senator Andreychuk: Again, I think you use the words, "it would appear to the public," and that bothers me because there will be no substantive change from where we are at now. We have the opportunity to put in a code of conduct, codified, as you say, put whatever we want in there, and Bill C-34 will change nothing, except we will establish a judicial framework for an ethics officer, appointed by the Prime Minister, with no authority except that which he will be given by us. If there were a compelling need and a compelling problem, we should have dealt with it, because we have all the powers now that we will have after Bill C-34 is passed.

Senator Carstairs: The reality is that we do not have one, do we? We have not moved to put a code in place before. We had to start somewhere, and I think beginning with the ethics officer was a good place. I want to absolutely refute the senator's assertion that this will somehow be the Prime Minister's appointment.

This can only be done after consultation with the leaders in the Senate chamber and after a vote in the chamber. I would refer the honourable senators to the way ombudsmen are appointed in the various provinces. Certainly in my experience in the Province of Manitoba, you could not have had an ombudsman with legitimate authority if the vote had not been nearly, if not totally, unanimous. I cannot envisage a situation, having been now the government leader for almost three years, in which I would put a motion before the Senate of Canada asking for the appointment of an ethics officer to whom the leaders of the other party — we only have one other official party at this time in the Senate — were totally opposed.

I think that that is not realistic in terms of the way any legislative body would work. It is certainly not the way in which those provinces that have ethics officers work. That is not the experience. There has to be nearly unanimous agreement.

Senator Andreychuk: I will not belabour the point. If we really respected that reasoning, we would have accepted the recommendation of the interim report, as opposed to still leaving it to a consultation and then the will of the majority. We know who the majority are. It does not give me much confidence after the Radwanski affair.

Senator Ringuette: I have a supplementary question. I know that I am relatively new to the Senate. However, from previous experience in the legislature of New Brunswick and in the House of Commons, I cannot recall a piece of proposed legislation in which the rules were attached to the bills when they came forth.

Why are we suggesting that we should have the rules included in this particular bill? It would be completely different from what I have experienced before. In your political experience, have you ever seen a situation where the rules were attached to a bill when it was being studied in a legislature, in the House or in the Senate? I have never seen that.

Senator Carstairs: It is rare for the regulations pursuant to a bill to be attached to it. I must say there is some pressure to do that more frequently. However, some provinces have certainly put the disclosure provisions in a separate act. They have not relied on just the rules of that particular chamber; it is in fact a statute. I think that there is no need to put the rules in statute. The rules should be within the Rules of the Senate of Canada itself, and then the ethics officer, who would be established by statute, would, of course, be called upon to give advice on those rules.

Senator Grafstein: Minister Boudria referred to us as public office-holders. Is that correct? Are senators considered public office-holders under this bill?

Senator Carstairs: No, not in a strict interpretation. When we talk about the public office-holders in this bill, as I understand it, we are referring to individuals such as members of the cabinet.

Senator Grafstein: So it is clear, it might have just been a misstatement by Minister Boudria when he talked about senators being public office-holders, and under proposed section 72.06, senators and members of the House of Commons, except those who are ministers of the Crown, parliamentary secretaries or secretaries of state, are not public office-holders; is that correct?

Senator Carstairs: Cabinet ministers are public office-holders, and I think Mr. Boudria was in fact making reference to me, because I would fit under this bill in two places, both as a public office-holder as a member of cabinet, and also as a senator, and therefore subject to the rules that are developed by the Senate. Parliamentary secretaries also come under that same interpretation, although as you know, we do not have parliamentary secretaries in the Senate of Canada.

Senator Grafstein: It is clear, though, whether the minister misspoke or I misinterpreted him, that senators are not considered as public office-holders under this bill?

Senator Carstairs: That is correct.

Senator Grafstein: I have two questions relating to the term "commissioner" versus "officer." Is there any particular reason why the word "officer" was chosen for the Senate and the word "commissioner" for the House of Commons, albeit they will obviously be dealing with different functions because of how we are proceeding? Why the difference in choice of word for the House and the Senate?

Senator Carstairs: It is my understanding that that was the will of this committee, that they indicated they wished to use the word "officer" for the Senate. The House, on the other hand, preferred the word "commissioner," and the government, in drafting the bill, wanted to be as reflective as possible of the desires of this committee.

Senator Grafstein: You have obviously looked at that interim report. We all agreed that was a sort of moving target because there was much work to be done, and if the Senate chose to change its mind about the title of the holder of that responsibility, the government would be open to that?

Senator Carstairs: I do not understand why the committee would change their minds at this time. That was their specific request, that is why they were given the draft bill, and although you indicate that there were some issues that had not been resolved — that is very true — there were a number that were, and one of those was the desire to use the word "officer."

Senator Grafstein: We will return to that. You have heard our colleague, Senator Joyal's concern about the French and English on that question, and we will come back to that. I will conclude this round of questions.

It seems that a public officer-holder is provided with an exemption for confidentiality in clause 72.07, but a senator or a member of the House of Commons is not. Why is that?

Senator Carstairs: Senator, you need to look at clauses 20.5 and 20.6 for your answer. They deal specifically with the issues of the duties and functions of the Senate ethics officer.

Senator Grafstein: My point is that ministers of the Crown have executive privileges that are parallel in many ways. Yet there is an express provision in the statute to allow for not only confidential advice to the public office-holder, but also to the Prime Minister with respect to the office-holder. I have no quarrel with any of those provisions.

My point is that looking at this, it seems that while the government has chosen to give express confidentiality in a statute to ministers, to public office-holders, it has not extended the same express provisions to members of either the Commons or the Senate.

Senator Carstairs: I would not agree with that, senator. Subclause 20.6(2) states that the Senate ethics officer may not include in the annual report any information that he or she is required to keep confidential. The confidentiality provision is indeed there.

Senator Grafstein: It seems to me, on a fair reading of it, that there is an express provision in the one category and a general application in the other. The two are not parallel.

I will leave that. Members have heard the answer.

Senator Joyal: Senator Ringuette has raised the point — to which I would like to add a quick comment — that it is not the procedure to publish rules or regulations with a bill.

I want to draw the attention of my colleague to the fact that Bill C-17, which is presently before the Senate, has the proposed draft regulations attached. It might not be common, but it exists. The proof is that we presently have one bill that has that.

That being said, madam leader, I would like to come back to the question of privileges. I have no doubt that it is the government's intention to protect the work of the commissioner under parliamentary privilege. As you pointed out, there are clauses in the bill on this subject.

What is the constitutional basis for the government and the government's advisers to conclude that it can legislate the status of the commissioner with privileges?

Senator Carstairs: To begin with, the Constitution Act of 1867 says that privilege must be defined by act of Parliament. That act is the Parliament of Canada Act. The privileges of Parliament are defined in section 4. In this country, the privileges of Parliament were a part of that constitutional act.

Senator Joyal: Could you tell us about the limit that exists in section 18 of the Constitution and section 4 of the Parliament of Canada Act? I can phrase my question differently: Do you see any limit to the capacity of Parliament, as defined in section 18 and in section 4, to legislate its privileges?

Senator Carstairs: I do not have the Constitution Act it in front of me.

Senator Joyal: I apologize.

Senator Carstairs: It is important that we indicate the section to honourable senators. I am sure I am not the only one who cannot quote section 18 of the Constitution Act. It states:

The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Britain and Ireland, and by the members thereof.

In 1867, we said, in essence, that we recognize parliamentary privilege as it presently exists in the United Kingdom of Great Britain and Ireland and we are subsuming those into this new country.

Senator Joyal: Does that section provide specifically that the limits to our capacity to legislate are based on what exists in the U.K. House of Commons at the time we legislate? Today we are legislating the status of the commissioner. The question is does that privilege exist in the U.K. House of Commons at this time?

Senator Carstairs: Honourable senators, at this point, I do not believe that we have to subsume what has been happening in the U.K. We have some constitutional provisions, but as the honourable senator knows well, constitutions are living documents. They evolve. It evolves in the U.K, where, as honourable senators are aware, it is unwritten, and it evolves here in Canada.

Senator Joyal: Is it not a compelling clause of the Constitution that section 18 provided clear limits to the capacity of this Parliament? Even though we might not like it and one might have a different opinion on this, it is the law. If we do not like it, we can change it.

The constitutional law of Canada is pretty clear. We cannot give ourselves more privileges than were enacted and exist in the U.K. House of Commons. This is the law of the land. It is the Constitution.

Senator Carstairs: The concept of privilege in the U.K. in 1867 was not clearly defined. Their privileges have evolved, and our privileges have evolved.

Senator Joyal: There is no doubt about that, but there are precedents. We legislated some privileges for ourselves in 1868, in particular, in the bill to administer the oath for witnesses in committee. That bill was declared unconstitutional by the Queen in Council in 1871 because the U.K. House of Commons did not have the privilege of administering oaths.

They had to pass specific legislation in 1871. Following that, we were able to legislate the privilege for ourselves. In other words, the limit is there and recognized by the constitutional text.

I have absolutely no objection per se to the work of the ethics commissioner being covered by privilege, but I wonder if we are not pulling the blanket over our heads and leaving our legs uncovered by stating that we have the right to enact that kind of protection, while in fact, based on the criteria of what exists at present in the U.K., there is no such privilege.

Senator Andreychuk: There is no proposal to amend it.

Senator Carstairs: I believe the honourable senator is perhaps not addressing the case of Rost v. Edwards today, but I think that is what he is clearly indicating. That decision, frankly, has questionable value in the Canadian context.

Senator Joyal: As I say, we might not like the decision, but the joint committee of the House of Commons and the Lords in 1999, which was very recently, recommended to the U.K. House of Commons to legislate following that case, but they did not. As they did not, it puts a limit on us. That is the obstacle that exists for us in protecting the status of our commissioner with parliamentary privileges.

If the House of Commons had legislated in the U.K. following the Rost v. Edwards case, as was recommended by the joint committee in 1999, I believe that we would have the absolute capacity to legislate the status of privileges for our commissioner. However, presently, we have that limit, like it or not, and we have section 18, like it or not, so we are bound by those two elements, which is, to me, inescapable in defining the protection that we want to give to our commissioner.

Senator Carstairs: Senator, it is very clear that the House of Lords recommended that the privilege be clarified. That is quite different from saying they recommended the creation of a new privilege. They clearly indicated that the privilege existed, but it needed clarification. They were saying there is a privilege and that if the courts doubt it, we should proceed by way of statute to remove that doubt.

Senator Joyal: With great deference to the leader, perhaps I should circulate to colleagues around the table the section of the joint report where they clearly stated that the privilege does not exist and needs to be legislated. If the privilege existed, we would not need to legislate it. It would exist by common law. The legislation would not contain anything more than what exists in common law. The privilege does not exist at common law. If the privilege existed at common law, the court would have been bound by it in 1990.

That is why this is a very important issue for the future work of the commissioner, not only in the Senate but also in the House of Commons. It is a very important issue for the supremacy of our Parliament to legislate our own privileges. It touches on something in the Constitution that we might not like but that exists, not only in section 18 but also in section 4 of the Parliament of Canada Act. It is repeated in section 4 of that act.

We are amending the Parliament of Canada Act to add the commissioner. We are dealing essentially with an issue whereby, in the Parliament of Canada Act, we recognize that we do not have the capacity because there is a limit to what we can do. As much as I am opposed to the idea of being limited by that, that is the law. There is already a precedent. I am not creating the precedent. The precedent is there, as the honourable senator knows.

Perhaps the advisers from the Privy Council should look into that issue again, come back to us with a clear analysis of the precedent of 1871 and address how we can interpret that in the light of what we are proposing to do today.

Senator Carstairs: Just as we put the constitutional wording on the record, it is also important to put something on the record from the first report of the joint committee on parliamentary privilege in the United Kingdom. In Chapter 2: Freedom of Speech and Article 9 of the Bill of Rights, section 123, they said:

It would not be appropriate for us to venture a view on the correctness of this decision as a matter of law.

They were talking about the Rost v. Edwards case.

But we are in no doubt that, if this decision is correct, the law should be changed. As the law now stands, it is open to a court to investigate and adjudicate upon an alleged wrongful failure to register. That ought to be a matter for Parliament alone, in the same way as any other alleged breach of its rules is a matter for Parliament alone. We recommend that legislation should make clear that keeping the registers (and hence the registers themselves) are proceedings in Parliament.

There is nothing in the work of that committee, senator, to make me believe that they did not think their privilege remained intact.

Senator Joyal: However, we live with the decision as it stands now. As much as I do not accept the decision in terms of the interpretation of the proceedings, that is the law. The recommendation was to clarify that for a final decision so that we have clear privileges enacted by statute in the U.K., and could protect ourselves in the same manner.

This is a very important element in assuring ourselves that the work of our commissioner will be done in absolute trust and faith and the actions and activities will be done within the proceedings of Parliament. This is an important issue that has not been canvassed at all in the other place. I have read the debates that took place in the other place. There has been, to say the least, an oversight on their part. This is an issue upon which we must satisfy ourselves before we vote. In the alternative, we must have an amendment that stipulates that the issue is not clear.

I suggest that clause 20.5 be amended to state "as far as applicable" to stipulate that something needs to be clarified. That is the least we can say of the situation in Great Britain at present. If we add the words "as far as applicable," we would maintain the capacity of the commissioner to act within the privileges of Parliament.

Senator Carstairs: With the greatest respect, senator, it is not the law in Canada. You keep saying that it is the law. It is not the law in Canada. We have Tafler and many other cases that we can cite that would be a better explication of what is law in our country. As for the administration of ethics rules by senators, I think there is ample case law to support our view that these are protected by privilege.

Senator Beaudoin: I am tempted by the question of Senator Joyal, but I will not discuss it today. There is another solution.

We do not think we may block access to the court. Whether we use the statutory route for a commissioner or we select the rules system, we can never say that it cannot be brought before the court, because we live under the rule of law and Parliament is no longer the highest court of the land in our country. The Constitution is the highest court in the land.

I think that we make a mistake when we say that there is a possibility of doing this and that. There are two possibilities. The first is a statute, and the court will, in due time, make a dividing line between what is judicial and what is parliamentary. Second, we may select the rules system, but even that does not block access to the court. It is always possible to go to a court of justice. It is not I who am saying that; it is our system.

We cannot have a system that is "intramuros." I cannot see how the population will accept something that is entirely under the privilege system. It is quite possible to have a rules system. There are two possibilities. However, if we think that making it a rules system means it will never go to the court, that is a mistake. There is always the possibility of going to the court. To me, there is no doubt. The rule of law is part of our Constitution.

On the question of privilege, there is no doubt that we need that. There is no doubt that, regardless of which system we select, the court will have to draw a dividing line between what is privilege and what is judicial. They have done that in other areas and they will do it for the legislative branch of the state.

It is true that we must decide between the statutory route and the rules system.

However, I think the public would prefer a statutory system rather than an intramural system.

On the other question, I agree with Senator Joyal that section 18 is clear-cut. However, one possibility is not before us. Since 1982, we have been able to amend anything in the Constitution; that is another matter. Could you comment on that?

Senator Carstairs: I was a member of the Standing Senate Committee on Legal and Constitutional Affairs when you were the Chair, and then when I was the Chair, you were my Deputy Chair. Therefore, I am not sure that I would want to call into question anything that you have to say because you are the constitutional expert; there is no question about that. Essentially, you cannot absolutely block the access of the courts. That is what all of this jurisprudence is about — going before the courts. In each case that went before the courts, parliamentary privilege was recognized.

Senator Beaudoin: Yes.

Senator Carstairs: That is the critical element. Things have gone to the courts in the past, but each time, the courts have ruled in favour of parliamentary privilege.

The honourable senator spoke about a statutory versus a rules system; the bill proposes a system that uses both. It provides for the ethics officer by statute and for the evolution of Senate rules. That is a good balance between the two systems. Some would suggest that it be statutory in both cases and others that it be rules-based in both cases.

Senators, you have before you a bill that proposes elements of both. It is the best and preferred option.

Senator Beaudoin: There is a comparison between conventions and privileges. Honourable senators may remember cases at the time of the patriation of the Constitution, when the court said that there was a convention such that you could not go to London alone with two provinces because that would be against a convention. The court said that we may identify a convention, but if the convention were violated, the remedy would be in the political arena. It is the same with privileges. The court may identify our privileges and respect them, I have no doubt, but they cannot take our place. The courts may identify what is necessary as a privilege and then it is up to us to comply. We operate according to our privileges. The convention of the Constitution and the privileges of Parliament are the same.

I am not afraid of the Supreme Court. Quite the contrary, because the court will always respect parliamentary privileges, whether established by statute or by rules. Which system is best is certainly debatable.

Senator Carstairs: I thank the honourable senator for his clear defence of privileges. He and I are in complete agreement that the courts will respect the privileges of Parliament.

Senator Stratton: I thank the honourable senator for her patience. I had asked her a question yesterday in the chamber because I would like to address the subject of perception. In the end, the public will be the true judge of whether we have done a good job. In Parliament today there are ethical principles, rules and obligations for public office-holders to follow. Is that correct?

Senator Carstairs: Public office-holders are not only ministers, but ministers are certainly public office-holders, yes.

Senator Stratton: They must follow a certain set of guidelines established by the Prime Minister.

Senator Carstairs: That is right.

Senator Stratton: The guidelines are published. I asked you yesterday whether it is the responsibility, or should it be the responsibility, of each minister to read, understand and follow those guidelines. The honourable senator — not to put words into her mouth — agreed with that.

Fundamentally, if you were to establish a set of guidelines, ethics principles or rules, you would have the same problem that we have currently, with, I believe, four ministers who contravened those ethics principles, rules and obligations. My fear would be that all of the work that we have done would be negated. It would have gone by the board, because the public sees that the Senate enacted its set of rules and then that happens. It is the same with blind trusts. It does not seem to matter what kind of rules or guidelines we establish because there is the public perception that rules governing a blind trust can be circumnavigated, allowing certain things to occur.

I would like Senator Carstairs to try to assure me of something. In the enactment of this bill and the establishment of the subsequent rules and regulations, how will we possibly overcome public cynicism if we continue to face cases such as we have now? It seems inevitable: We put rules in place and then there are still problems. How will we overcome or lessen the cynicism that exists and is getting worse? That is the problem I have with this bill.

Senator Carstairs: Senator, you and I come from different positions on this. In the chamber yesterday you asked me if I thought that ministers should read the guidelines. I indicated that I could only speak for myself. Obviously, if I were to put my name at the bottom of some guidelines, I would certainly read them first to ensure that I was in complete compliance.

The public is cynical, and one way to address that is to be clear about the rules that senators and members of the House of Commons are obligated to follow. Will we have perfect human beings in the Senate and House of Commons at all times? I do not think there are perfect human beings. Will some of those imperfect human beings make mistakes on occasion? I suspect they will. If there are no guidelines, their chances of making mistakes are probably greater. When mistakes are made, particularly with respect to the other place, the electoral process enters the equation when those mistakes become part of the public record during an election campaign. The public is able to say that the guidelines were not followed and there is a choice to be made about whether the individual should be re-elected. That is why Senate guidelines, if anything, should be stronger than in the other place.

Senator Stratton: In respect of the ethics principles, rules and obligations for current public office-holders, there is no penalty apart from the electoral process for those who contravene those guidelines?

Senator Carstairs: There are other penalties. Obviously, the ultimate penalty would be if the Prime Minister thought that the violation was of sufficient magnitude to remove the individual from cabinet.

That would be the ultimate sanction for a member of cabinet.

Senator Stratton: Has that occurred? If so, how many times?

Senator Carstairs: I do not have the number of such occurrences, but I can indicate that the former Minister of Defence found himself in that situation.

Senator Stratton: Forgive me, but I think that builds on the cynicism of the public. If it were affected in a positive way, it would be indicated. I am not talking about Liberals, Tories or Alliance members but about the very nature of the beast. I think that no matter what we do, we will still be faced with that, because as you said, we are imperfect creatures. I fear that if we establish a set of rules, we will be nailed and our work will be negated to such a degree that we will wonder why we are doing it. That is just an editorial comment on my part.

Senator Carstairs: I would like to comment on the editorial comment. I have been subject to not only the rules of this place in terms of the guidelines for public office-holders but also to the statutory requirements in the Province of Manitoba, which has clear guidelines and statutory provisions for a disclosure that was required to take place within 15 days of any new session of the legislature. That occurred each year. There was a confidence level in Manitoba as a result of that piece of legislation. Members of the legislative assembly were required to fill it out a disclosure form and, in our case, file it with the clerk of the legislative assembly. I think that not only brought home the rules to the members of the assembly but also made the public aware of the rules with which members were required to comply.

Senator Stratton: There are existing rules for ministers and they are contravened constantly. I just do not see what we are accomplishing by having the Prime Minister bring down a set of rules and ethical principles when non- compliance will still occur. What will we have accomplished? We have a wonderful set of ethics rules and guidelines that the Prime Minister established and four ministers have contravened it recently. That problem occurs constantly. My worry is that the bill will only serve to increase public cynicism toward this place.

Senator Downe: I will be brief. I was subject to the rules in my previous position. It is important to address the point just raised about the purpose of having rules. The way to avoid violation of the rules is to follow them. You have indicated that four ministers have violated the rules; that is news to me. The Ethics Counsellor, Mr. Wilson, is reviewing some cases, according to media reports, but I do not think he has made a ruling. We know the case that Senator Carstairs referred to earlier, when the former Minister of National Defence was found in violation and was forced to leave cabinet. That is a big penalty. Hundreds of people are covered by the rules, but we hear about very few who do not follow them.

Senator Stratton: Are you asking me a question?

Senator Downe: No, I am making a statement. I do not have a question.

The Chairman: Senator Carstairs, I thank you for appearing before us today.

Senators, if you have names of witnesses that you would like to hear from on this issue, pleas submit the lists today or tomorrow.

Senator Grafstein: Is it possible for Senator Carstairs to appear again? There are questions on the drafting of the bill and the separation of powers that are rather hazy. Mr. Boudria is unable to return and we need a representative of the government to put answers to these questions on the record. I will not take long, but there are a number of questions dealing with the separation of powers as it applies to specific provisions in the statute that we have not had a chance to address.

The Chairman: Senator Grafstein, could I ask you to put those questions in writing?

Senator Grafstein: It would be better if we could impose upon the leader to come back. I will not take long. I do not intend the exchange to be more than five or six minutes. The written questions and answers are not as elucidating because I may not phrase them carefully, but there are some important questions of principle. It would be good if she could come back for a brief time tomorrow, when we could deal with it quickly.

Senator Andreychuk: Another suggestion would be that we hear from all the witnesses first and then call upon the minister at the end of our deliberations. If some of our questions have not been answered, or new perspectives arise during the course of the witness testimony, then we would put those to the minister. That has been the routine of the committee.

The Chairman: It has been routine in other committees.

Senator Carstairs: I am at the disposal of the committee.

The Chairman: Thank you.

The committee adjourned.