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Conflict of Interest for Senators - Third Report of Committee Adopted


The Senate proceeded to consideration of the third report of the Standing Committee on Conflict of Interest for Senators (amendments to the Conflict of Interest Code for Senators), presented in the Senate on March 26, 2014.

Hon. Serge Joyal: Honourable senators, I wish first to associate myself with the words of thanks that the Honourable Senator Andreychuk has addressed to Mark Audcent. I have been in the Senate for 15 years, and there is nothing that a lawyer appreciates more than to have another lawyer to bounce ideas off of to see if you are right or wrong and to see what kind of reaction or additional interpretation or nuance you can get from that person. Mark Audcent has always been a trusted confidante of all senators. One could call Mark Audcent at any time, explain the question, confide deep thoughts and preoccupations, and be assured the security of a doctor's cabinet.

Furthermore, in my opinion, Mark Audcent has a deep respect for this institution and a keen understanding of its role in the democratic process. In the times that we are living through, where this institution is challenged in many circles and areas of public opinion, it is an incredible asset to rely on a legal adviser such as Mark Audcent, with his understanding of this institution, the role it plays and the importance it has in the framing of legislation. We are all indebted to Mark for his service.

That being said, Your Honour, I want to also underline the leadership of Senator Andreychuk in the endeavour that we embarked upon when she was elected as chair of this committee, after having been deputy chair for more than six years and involved in the drafting of the code for more than two years with other senators in this chamber. She mentioned Senator Fraser at that time, but I remember Senator Comeau also, who was, at that time, very important to the making of the code.

I think it is important, honourable senators, that we understand exactly what we're dealing with here. We are essentially dealing with the disciplinary function of our house. Each house of Parliament, be it provincial or federal, be it the House of Commons, has a disciplinary function. What is it? It is the responsibility to establish a set of rules and to devise a system to implement those rules. You will understand that those rules cannot be under the adjudication of the court system. In other words, it's not up to the judges who are outside of our precinct to establish and implement those rules or to have the police come in to implement those rules, no more than it is the privilege of the House of Commons to look into our affairs, no more than we, as senators, would look into the affairs of the House of Commons. It's up to us to determine the level or the criteria of ethics that we will impose on ourselves and the system that we will implement to serve those objectives.

I think it is important because they are linked to our accountability to public opinion. Sometimes people say we are not accountable; we're not elected. Our way to be accountable, in a way, is to establish very high standards of ethics and have a very effective system to implement those standards. If we are keen to keep an eye, on a daily basis, on maintaining those standards, we build the trust of the public to the institution.

I think this is fundamental and important. Why I insist on this, honourable senators, is because the Conflict of Interest Code is not the only set of rules that we have established for ourselves. We are subjected to many other rules. There are the Rules of the Senate, the big review of the Rules of the Senate that we did two years ago, this new book. There are standards there that we have to follow. I just mentioned, for instance, section 15, "Duty to attend the Senate" and "Failure to attend two sessions."

So there are also obligations that we are subjected to in the Rules of the Senate besides the Conflict of Interest Code. The Conflict of Interest Code addresses only one aspect of our behaviour as parliamentarians. There are other responsibilities that we have under the Parliament of Canada Act. Section 16 deals with receiving prohibited compensation.

We all know what "influence peddling" means.

Besides the Conflict of Interest Code, the Rules of the Senate and the Parliament of Canada Act, we are also subject to the Criminal Code. I refer you to section 120, which is titled "Bribery of officers," and we are included in the definition of officers. So, in other words, we're subject, too, to the Criminal Code.

Of course, it's not up to us individual senators to follow the Criminal Code because there is, of course, the police force, the justice system, but all of the other rules I have mentioned are under our control — the Conflict of Interest Code, the Rules of the Senate and the Parliament of Canada Act.

Besides that, there is another set of rules we are subject to. That is the Administrative Rules of the Senate, under the responsibility of the Internal Economy Committee, chaired by our esteemed Speaker. Those are very important, honourable senators, because they deal with the expenses of senators, the $2,000 question these days. We all know the Auditor General is in the house and looking into those expenses. We also know in the backs of our minds that we will have to refine our rules to declare our expenses in the public domain.

I refer honourable senators to the Public Accounts of Canada, Volume III, pages 289 and 290, where we find the overall figures for travel, hospitality and office expenses of individual senators. These are not secret as they are already public. The question is how much detail to provide about those figures. We will have to address that question, which we can't do individually. I can't decide to post all my expenses on my Senate page — the expenses of my spouse who travels with me, the expenses of my assistant and the hospitality fees that I incur as a senator. I could also give the details of how many trips and what each trip costs. I can't do that individually. Honourable senators, we should do that on a common basis.

The success of the Conflict of Interest Code for Senators, and I pay homage to Senator Andreychuk, is that it is done on a non-partisan basis. The committee is composed of two members selected by each respective caucus, and the fifth member is elected by the four, which maintains a certain level of balance on the committee. I don't say "neutrality"; I say "balance." The Conflict of Interest Committee operates in camera, according to the rules, and the Conflict of Interest Code for Senators ensures that we operate on a non-adversarial basis.

You know what adversarial is. You are the government. We are the opposition. You're deemed to be at fault while you think you're always right. That's the principle of the system. However, this is not the principle that we apply in the Conflict of Interest Committee. We ask what the best norm is, what the best standards are and how we can ensure that the application of that norm and those standards is fair and balanced. Senator Andreychuk explained this afternoon how we are improving the fair hearing process. By doing so, we improve the trust of the public and our accountability to the public.

That's why I advise honourable senators to review two things today. However, this is not the objective of the third report. I insist that Senator Andreychuk, Senator Cordy, Senator Frum, Senator Tannas and I, who are the members of the committee, have just one piece of the pie of standards that we have to respect as senators. Some of the other pieces of the pie are with the Internal Economy Committee, some with the Rules Committee and some are floating in the air — the declarations of expenses, which I mentioned earlier.

Honourable senators, there is a need to improve the level of the standards. I share that concern with Senator Andreychuk and the members of the committee. I advise honourable senators to improve the administrative rules in case of a breach of the Rules of the Senate.

We are all awaiting the report of the Auditor General. As my mother would say, we are tall girls and tall boys. We know there will be comments on both sides of the Senate, and some initiative will have to be taken to address the conclusions. The process will have to fair. If there are sanctions, we have to know them ahead of time, which Senator Andreychuk proposed today in respect of the Conflict of Interest Code for Senators.

I want honourable senators to reflect in the days ahead on how we will address those two issues still on the table. I'm sure that colleagues who sit on the Internal Economy Committee have that preoccupation because they know we have deadlines. When the day comes, if we have the standards at the highest level, have a fair procedure and can come to a conclusion when there is a breach of the procedure without the turmoil we lived through last fall, then we will better serve the institution, its credibility and the trust the public has to maintain is us because of our dear responsibility to legislate for this country, which essentially addresses the fundamental rights and freedoms of citizens.

Honourable senators, this is serious. I invite you to support the third report, because it is a step in the right direction. It signals that other ground is to be covered by our colleagues who sit in other capacities; and it should be done sooner rather than later.

With that, honourable senators, I invite you to adopt the third report of the Standing Committee on Conflict of Interest for Senators tabled today.

The Hon. the Speaker pro tempore: Senator Joyal, am I to understand that you wish to second the motion?

I must inform honourable senators that I consulted Senator Tkachuk, who agreed to remove his support in favour of Senator Joyal. Now the motion stands in the name of Senator Andreychuk, seconded by Senator Joyal.

Hon. Elaine McCoy: Would you accept a question, Senator Joyal?

Senator Joyal: With pleasure, Senator McCoy.

Senator McCoy: I have two questions.

If we adopt this report, what will happen next? I'm curious about the steps. Obviously, this will require legislative changes, which is not proposed. Perhaps that's not part of this process, and you're simply asking us to adopt your recommendation. Is that what you're doing?

Senator Joyal: Yes. The report contains a recommendation that the Rules of the Senate be amended to take into account the substance of the report; but that has always happened in the past. There is concordance to ensure that the substance of this report, the way that Senator Andreychuk proposed, also contains that recommendation. When we adopt this report, we also adopt a request that the Rules Committee, chaired by Senator White, make an adjustment in the rules to be in sync with the substance of the Conflict of Interest Code for Senators in the way it is amended. That's the essential follow-up.

The report also contains an implementation date. All procedures that had been started under the original code before the amendments will be conducted according to the code as it was. Any future initiative will fall under the new code from the date of its adoption.

Senator McCoy: I congratulate the committee for what they brought forward.

Senator Joyal, would you mind asking for some additional time?

The Hon. the Speaker pro tempore: Do honourable senators agree to give more time to Senator Joyal?

Hon. Senators: Agreed.

Senator McCoy: In the aftermath of the expenses debate and determination by the Senate that we had last fall, I moved a motion, which is still on the order paper and open for people to speak to, urging the Senate to bring forward some procedural rules to ensure that natural justice would be applied in our disciplinary proceedings. As far as the Conflict of Interest Code for Senators is concerned, I think this proposal explicitly moves us in that direction. The language is very plain, and I commend you all for bringing us forward.

I have some quibbles, but I will save them. I'm a member of the Rules Committee, so I'll save them for that committee, so we can begin to continue to refine, because it is an iterative process. If the Rules Committee takes your precedent and improves it somewhat, I'm sure you would take that precedent and feed it back into your own. So we continue to improve; it is continual. I think Senator Andreychuk said we have a culture of "continuous improvement."

But just to be clear — this is my understanding and I think this is what you were saying: Even though we adopt this practice, it would not apply to the expenses debate that we had last fall. In other words, this would not have come to our rescue in the cases of Senators Duffy, Wallin, Brazeau and Harb. The reason is that it specifically excludes jurisdiction from the committee, and therefore the Senate Ethics Officer, from any matter having to do with senatorial pay, honoraria or benefits.

I think we should be clear that this would not have saved us in that instance. Therefore, as you say, it is just a very small piece of the puzzle.

Senator Joyal: Actually, senator, I can quote for you section 6 of the Conflict of Interest Code for Senators that is already there and that has been touched or affected by the report that Senator Andreychuk has been quoting today:

Nothing in this Code affects the jurisdiction of the Standing Senate Committee on Internal Economy, Budgets and Administration.

It cannot be clearer than that.

Furthermore, I could quote the last paragraph of the report about which Senator Andreychuk has been speaking:

Finally, these amendments to the Code would require consequential amendments to the Rules of the Senate. Your committee further recommends, therefore, that the Standing Committee on Rules, Procedures and the Rights of Parliament undertake a study with the view to recommend the appropriate consequential amendments to the Rules of the Senate.

You have the privilege of sitting on the Rules Committee. I also sit on the Rules Committee. I've been in the Senate for 15 years. We'll have an opportunity to address the issue you raised when the Rules Committee meets. I see Senator White in the chamber, and he is aware that will be one of the terms of reference the committee will have to address.

Furthermore, you have Motion No. 9 on the Order Paper:

... while recognizing the independence of parliamentary bodies, will help ensure that Senate proceedings involving the discipline of senators and other individuals follow standards of due process and are generally in keeping with other rights, notably those normally protected by the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms....

I told you when I had an opportunity to speak to you in private — and I can say it in public with great enthusiasm — that I support the objective and the standards that your motion establishes, because Senator Andreychuk has been very keen, when we were reviewing the procedure, to be sure we were maintaining fair standards. Those fair standards are the principles of natural justice and fundamental justice that you know very well, being a lawyer yourself.

I think your concerns are very well addressed in the report and its recommendations to the Rules Committee to review the rules in accordance with the substance of the third report.

The Hon. the Speaker pro tempore: Senator McCoy, I must put an end to that discussion because Senator Joyal's time is now up.