Skip to main content
Start of content;
EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, February 5, 1997

.1534

[English]

The Joint Chairman (Mr. Milliken): Order. We are ready to begin.

.1535

Our witness this afternoon is Mr. Howard Wilson, the ethics counsellor.

I'm delighted to welcome you to the meeting. I look forward to hearing your comments. I understand you have an opening statement, sir. Thank you for attending. We'd be delighted to hear from you now.

Mr. Howard Wilson (Ethics Counsellor): Thank you, Mr. Chairman. I'll be quite brief. I thank the committee for inviting me to appear once again before the special joint committee.

I have had an opportunity to examine the draft report on a code of official conduct for parliamentarians, dated December 5, 1996, prepared by the Research Branch of the Library of Parliament. Before commenting, however, on some of the proposed measures, I would like to recall the position I took on several matters when I last appeared before the committee in September 1995.

The first point I would reiterate is my view that the proposed code of official conduct should apply to all members of the Senate and the House of Commons in relation to the discharge of their duties as senators or members of Parliament. However, additional rules determined by the Prime Minister would apply to those parliamentarians who become members of the cabinet or parliamentary secretaries.

[Translation]

I argued in 1995 that the Parliamentary Code should contain a set of principles such as those found in the Federal Conflict of Interest Code; some level of public disclose of assets, liabilities and outside activities, these to include the member as well as spouse and dependent children; the requirement to declare specific personal interest when there is a conflict in a matter under debate (the member would subsequently withdraw from debate and not vote); some guidelines on gifts and sponsored travel; and finally an updating of the rules on contracting with the federal government.

[English]

I specifically advised against this parliamentary code incorporating the more onerous provisions that apply to ministers, such as not being able to deal in publicly traded securities, not managing a business, acting as a director or practising a profession. I argued against that. I noted that legislation in Ontario and the report of Lord Nolan in the United Kingdom put great stress on parliamentarians being full participants in the life of their community, including having a wide variety of continuing outside interests.

[Translation]

The draft report deals with most of these elements in a very satisfactory way. I have some observations about the way some principles are expressed; on the rule on the declaration of an interest; on the section on disclosure of private interests plus that on government contracts. These comments, however, can be addressed by letter and need not take up committee time this afternoon.

[English]

The heart of the code, I believe, is in disclosure. This would parallel the practice in most of the provinces in Canada as well as in the United Kingdom and Australia. The draft report also foresees the appointment of a parliamentary officer, the jurisconsult. I endorse this.

From my experience and from my discussions with others within Canada and abroad, the most important role of the jurisconsult will be his or her ability to offer confidential advice to individual parliamentarians on how the code should be interpreted and how they might resolve particular dilemmas they might be experiencing.

I frequently receive calls for advice from senators and MPs. They of course also seek advice from the clerks and the law clerks of each chamber, but I think a jurisconsult would make an important contribution. A particularly valuable provision is the proposal, found in Quebec legislation, that any opinion given by the jurisconsult to a parliamentarian is binding on the jurisconsult.

.1540

I am not, however, persuaded that this individual should have the extensive investigatory powers proposed in the draft. I do not think they are necessary. Further, I think at the end they will be in conflict with the much more important advisory function this individual can and must play.

I question the need for the very simple reason that there have been few occasions in this Parliament or in the past Parliament where MPs or senators as parliamentarians have been accused of improper behaviour within the meaning of the proposed code. Alleged criminal activity does not fall within the scope of your code. Nor have we in Canada had the experience of the U.K., where some members apparently accepted payment for posing questions or acted as paid lobbyists. These have not occurred in this country. Therefore, I am not persuaded that having extensive investigatory powers on the part of the jurisconsult is at all necessary at this point.

My recommendation is that these particular powers of independent investigation be eliminated. Nothing should prevent the joint committee from deciding to direct the jurisconsult to carry out an investigation, but I see a serious problem in investing an independent authority in the individual concerned. I think it raises very fundamentally the risk that a parliamentarian will be reluctant to approach the jurisconsult for confidential advice, which I think is of overriding importance.

I'm not convinced it is possible to play those two roles of independent authority to be able to carry out an investigation in response to a complaint and at the same time offering confidential advice and being seen as an aid to parliamentarians who are confronted with dilemmas, as you all frequently are. If, on the other hand, the committee were of a view that there was a problem of sufficient merit and were to direct that individual, then that would be a solution.

The other matter I want to speak on is the relationship between this code and the Prime Minister's conflict of interest code, which applies to ministers, secretaries of state, parliamentary secretaries, and other members of the government. I think there is a recognition within the joint committee that the Prime Minister needs to be free to establish more specific obligations for those parliamentarians who become members of the executive branch of government. That is the case now, where members of cabinet are not permitted to be directors of companies and they are not permitted to hold shares in publicly traded securities or practise a profession - and I've argued that this would be inappropriate for parliamentarians more generally. In fact, the draft report you have before you, in the section on application, states that nothing in the parliamentary code would prevent the Prime Minister from establishing additional principles, rules, or obligations.

There's bound to be some misunderstanding when two codes are in play. Where does one begin and the other end? I have always foreseen, as I mentioned at the beginning, that the parliamentary code would apply to parliamentarians as parliamentarians. That is, it would not apply to parliamentarians in their role as members of the government: ministers, secretaries of state, parliamentary secretaries. I would strongly recommend that this be clearly stated in the section on application.

There is a parallel provision in the United Kingdom. In London the Commons Committee on Standards and Privileges, in their third report of last July, The Code of Conduct and the Guide to the Rules relating to the Conduct of Members, stated:

That reflects, it seems to me, a fundamental principle of our Westminster form of government, an approach that also applies in Australia.

Mr. Chairman, I'll stop there.

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

.1545

I understand there are some members who may have questions.

Mr. Manning, welcome to the committee. I understand you're substituting for one of your members today. I understand you wanted to ask some questions and have limited time, so I'd be pleased to call you first.

Mr. Manning (Calgary Southwest): Thank you, Mr. Chairman. I don't get to too many committee meetings. I just want to thank you for the opportunity. Like most MPs, and like you, I have a great interest in this subject, and also an interest in Mr. Wilson's views given his experience in trying to administer a code of conduct. I'm sure his experience and opinion are extremely relevant to what the committee is doing.

I'll be as brief as possible, but the questions I want to ask really pertain to what you touched on in the second part of your presentation; that is, the relationship between this code of conduct for MPs and senators and the code of conduct for ministers. It seems to me that it is important that the two be consistent or, to put it the other way, that they not be inconsistent. Most MPs are MPs before they're cabinet ministers, so they have learned their ethical guidelines as MPs if they become ministers. Also, you don't want any contradictions.

You may have been asked this, so excuse my ignorance if it has been answered, but my first question simply is whether or not there is a comprehensive set of ethical guidelines for cabinet ministers that is available to this committee to perhaps look at as a model or to at least ensure that what is decided on here is consistent with it.

Mr. Wilson: Yes, and I think the committee has in fact received copies of the conflict of interest code of June 1994.

Mr. Manning: Okay. I'm actually wondering about more than conflict of interest. I notice that this draft pertains essentially to conduct with respect to the public-private interface of MPs, namely conflict of interest. I guess what I'm wondering is whether or not the ministerial code goes beyond that with respect more to our public role. For example, how does a member of Parliament or a senator communicate with an independent tribunal or a quasi-judicial body - guidelines that pertain to our public role, not to the possible conflict with our private role? Is there a broader set of ministerial guidelines that covers those types of things, the ethics of our public role?

Mr. Wilson: Let me first attempt to respond to that by saying that the conflict of interest code of June 1994 does set out a set of principles. These are well known to the committee. Some of them have in fact been incorporated into your proposed draft, and they go beyond mere questions of conflict of interest. For example, the first set covering unethical standards says:

There are several others that are in fact of a broader nature than the specific rules within the code subsequently designed to deal with the question of private interest. I think they establish a standard. I think that principle, plus several others, has been taken from this code and has been applied in your draft. I think there are several others that could equally and profitably be taken.

Mr. Manning: You are saying there are guidelines for cabinet ministers that go beyond this conflict of interest, that really deal with our public role, such as how we treat confidential information that may come into our possession as public officials through our communications with - I'm thinking particularly of quasi-judicial tribunals. Are there specific guidelines that deal with something more than just the private role, that are there for cabinet ministers and could be shown?

Mr. Wilson: What I was attempting to do, sir, was say that the principles found in the conflict of interest code are of a broader nature than merely dealing with the question of conflict of interest, of how this can be avoided, as important as that is.

You raised the question of oath of office, which is an important consideration in terms of anyone who's in the government - the oath that a cabinet minister must take, the oath that a public servant must take in terms of the protection of the security of the country.

.1550

You've raised another question, and that is the matter of quasi-judicial tribunals. These have not been published. I think that's well known.

Maybe I can back up a bit to a discussion that took place in this very room in November, when one of your party colleagues raised that question when we were looking at the draft code of conduct for lobbyists. I had said two weeks earlier that the Prime Minister, in answer to this question of guidelines, stated in the House of Commons that:

He went on about communications by the Prime Minister to ministers:

My response was that this was the general statement, and this is the concrete element of it. In addition, there were rules that applied to quasi-judicial tribunals. In 1994, I believe, there was evidence of a letter that had been sent to the head of the CRTC, with the view I had expressed at that time that the rules upon which ministers were to conduct themselves were inadequate. Subsequently, these rules were modified. I brief ministers and my office briefs ministers' offices continuously. I brief quasi-judicial tribunals on the appropriate relationship between a cabinet minister, on the one hand, and these tribunals on the other hand.

These are rules that must not apply generally. They must not form part of any code this committee is thinking of applying to members of Parliament or senators, and in particular to members of Parliament because they affect, in a very profound way, the responsibilities of members of Parliament to represent the interests of their constituents.

These rules on quasi-judicial tribunals are, in effect, saying that because of the presumption of bias cabinet ministers can bring to bear in dealing with the CRTC or the Immigration and Refugee Board, they will have to be less able to represent the interests of their constituents than would an ordinary member. For example, these rules do not and have never applied to parliamentary secretaries.

If I could just sum up, the basic rules were out by the Prime Minister when he stated that he asked of his ministers the highest possible ethical standards. This is the basic document. There are these additional rules that I work with ministers' offices on. This is essentially a public document. I offer it, really, to anyone who asks. It sets out the principles under which ministers must operate on behalf of constituents, vis-à-vis quasi-judicial tribunals.

Mr. Manning: It is possible for this committee to get the full package of ethical guidelines that ministers have so that this committee can see whether what they're doing is consistent.

Mr. Wilson: I don't think there's anything the Prime Minister said in the House, or I have just said now, that doesn't cover that waterfront.

Mr. Manning: Okay. Can I ask just one more question? I'm conscious of presuming on your time.

As you know, we have been discussing in the House what some of us regard as unethical conduct. Without getting into whether it's unethical or not, I would be interested in your view as to whether there is anything that should or could be done to the current guidelines that pertain to cabinet ministers that might have prevented the perception even - let's not get into whether it's there or not - of political interference with the Somalia inquiry, the shredding of documents, the withholding of evidence from the Krever inquiry, the appearance of a political-type investigation by the justice department. These are real, concrete ethical issues that some of us are concerned about.

.1555

In your judgment, is there anything that can be done in the guidelines for the ministers and, secondarily, for us as members of Parliament and for senators, that might prevent that type of thing from occurring - if it actually is occurring - or might prevent even the perception of it occurring?

Mr. Wilson: Mr. Manning, I think you are speaking about policy questions, questions in which there is a difference between opposition parties and the government party. It's the essence of our democratic system. I don't believe I can take your question any further than that.

Mr. Manning: But isn't the ethical dimension - let's say that Justice Krever carried his investigation back to 1984 and claimed he needed certain documents from the cabinet that would show whether the government of that day got early warning signals that the blood supply was tainted. Is there anything in these guidelines that would create an ethical or moral obligation? We're not talking about policy here; we're trying to get to who was responsible.

Are there any changes that you would recommend in these guidelines that would prevent or reduce the chances of stonewalling, let's say, in that area? One of the worst things in getting a code of ethics is to get one with all the fanfare and the press releases about how we're going to hold ourselves to a higher standard and then see that it is not working in the practical situations we have.

I don't want to put you on the spot, but in your experience as to what will actually work, are there deficiencies in the current things that this committee should be aware of so that they're not built into the MPs' or senators' guidelines?

Mr. Wilson: I have a general observation to make, which I did when I appeared before the committee a year ago in September 1995. I thought the committee should be concerned with putting in place some modest measures, measures that would in their own way make a contribution to enhancing public confidence in the integrity of this institution.

I thought members of Parliament were exposed, as are ministers, to allegations that have no foundation. The point of this conflict of interest code is not to resolve every possible political issue that we can imagine, but rather to try to ensure that the debate that ensues in this chamber is one in which unfair allegations that are made about an individual - that they are not pursuing the public interest as they see it but a private interest - are in fact dealt with.

This code does that, and I think it does it well. It has enabled, in my view, people from all walks of life to have a legitimate expectation that they can come into the House of Commons, if they're successful and their party is successful, go into cabinet, and continue to have the outside interests they may have enjoyed. In other words, you don't have to be penniless in order to avoid the unfair assertion of bias in terms of the pursuit of public interest.

I think it would be a very unhealthy result if whole groups of Canadians were not eligible to be considered for cabinet positions.

That's what this code does. That is a more modest - I don't think you want to take it beyond that in this first instance. I don't think it can be taken beyond that.

Mr. Manning: I have one last question, Mr. Chairman.

One thing that struck me as curious in coming to Ottawa from essentially another jurisdiction, Alberta, is that in Alberta the most junior member of the legislature knows that you have to be careful in communicating with the principal energy regulator, what used to be the old Energy Resources Conservation Board. It's known almost instinctively that there are only two ways to communicate with a quasi-judicial regulator, at least if you're on the government side. One is through an Order in Council and the second is through testimony given to that board in public so you can be cross-examined. That almost instinctive understanding is one of the things that's prevented the the political system from being corrupted there. In most of the jurisdictions in North America that had an oil boom, you got corruption, and you got corruption because of political interference in the regulatory system or because of interference by the industry. That didn't happen in Alberta because there's that clear understanding.

.1600

One thing that strikes me as curious here is that even with ministers there seems to be no instinctive understanding of that; that with quasi-judicial tribunals, yes, you can communicate with them, including independent bodies, but the way you do it is through Order in Council, and if you want to change direction on it you can even do it through subsequent Orders in Council; or you go and make a public submission, with testimony from the government subject to cross-examination.

If one wants to get that ethical standard in Parliament in Ottawa, can that be done, in your judgment? Is it better guidelines that are required? Is it education that's required? I would argue in Ontario the understanding of MPPs and the Ontario legislature on how you communicate with the Ontario Securities Commission is almost instinctively understood, yet in Ottawa it doesn't seem to be. I'm curious whether you feel guidelines in that case, or more than guidelines, are required to establish that understanding.

Mr. Wilson: I stand to be corrected, but my impression was that our practices here are not unlike those in the provinces. In fact, they go further than in the provinces. We have put the restriction on ministers. Why? It's because ministers are often, under legislation, the ones who can direct one of the quasi-judicial tribunals to review a policy.

Cabinet has powers of appointment. Cabinet has the power of setting salaries. Nonetheless, it means when a cabinet minister is unable to do this - and they well understand what the limits are, by the way - their constituents are going to be more poorly represented than would be the case with anyone else. I would argue there is no case to be made for an ordinary member of Parliament, on either side of the House, being prevented from representing the interests of a constituent vigorously before the CRTC or the Immigration and Refugee Board or whatever other quasi-judicial body.

I think, though, there is a concern if it turns out that individual has private interests he or she did not properly declare and it was really their private interests rather than those of a constituent that were being furthered. So there is some merit in having a form of public disclosure, because that at least indicates where the private interests lie.

I think the federal approach is on fairly solid ground. The only recent case in law was where a Minister of Agriculture in New Brunswick represented an individual before the New Brunswick workmen's compensation board and there was an appeal to the appeal level and the courts said the mere fact that the minister had been there was an apprehension of bias. I think the other provinces would all agree with that. But to extend that to an ordinary member of the legislature I think would be a mistake.

Mr. Manning: Thank you, Mr. Chairman.

If I leave early, Mr. Chairman and Mr. Wilson, it's not because of a lack of interest in the subject you are discussing. I have one previous appointment and I will maybe try to come back and hear the further discussion.

The Joint Chairman (Mr. Milliken): We would suggest that.

Mr. Kilger (Stormont - Dundas): I would like a supplementary to Mr. Manning's intervention, because there's an understanding about leaders' time. Members of Parliament are busy and the leaders are even busier, and we all attach a great deal of importance to this subject matter. While Mr. Wilson is present I would like to follow up on Mr. Manning's original question.

To me, between the two codes, that of the parliamentarians and that of the ministers of cabinet, there has to be a balance. I would submit that the questions raised in light of the Krever inquiry and the Somalia inquiry - as Mr. Wilson put it, I think, it was policy. I made the note that while Mr. Manning referred to ethics, there's ethical and there's political. Where do we find that balance?

I wonder if Mr. Wilson would care to comment whether sometimes, when we try to make things so airtight, so perfect, meeting such objectives of idealism, it doesn't at some point become counter-productive. Instead of encouraging members of Parliament to urge governments to have inquiries into issues of significance like the blood inquiry and the Somalia inquiry, there is reticence. It sounds as if there would be sort of a ``hey'' - the type of thing where if you make the penalties too severe for something, you don't get a conviction.

.1605

I wonder if in fact at the present time we haven't a good balance within the Canadian parliamentary system, between the two codes. I understand the element, of course, of wanting to improve it, but I feel a sense of caution that in striving for all of this perfection, it might lead to something that's rather counter-productive, that would lead us in fact to discouraging or making it more difficult to even initiate inquiries such as those we have or others we've had previously.

I don't know if you'd care to comment in terms of that balance, Mr. Wilson, in any way, shape, or form, from past experience or precedents, and I don't know if there are any.

Mr. Wilson: I don't know that I can comment intelligently on the question of inquiries. What I can say is that I would resist - I would recommend this committee resist - trying to take this first step at a parliamentary code too far. I don't think there's a case to be made for taking it too far.

I think there is something to be said for some rules on some public disclosure that would indicate where a member has interests; some rules on gifts, more or less along the lines that are described here; and some rules on sponsored travel, along the lines that are held here. I think that would be an important step. It would parallel what is going on elsewhere in other countries with our model of government, as well as in some of the other provinces. To take it further - I think experience would suggest whether that is necessary.

The Joint Chairman (Mr. Milliken): Are you finished with your questions?

Mr. Kilger: Yes.

The Joint Chairman (Mr. Milliken): Madame Tremblay.

[Translation]

Ms Tremblay (Rimouski - Témiscouata): Mr. Wilson, when I saw the code and read it in detail, I wondered why it had to go so far in declaring personal interests. It's probably because I don't have anything.

I can understand declaring immediate personal interests but this includes the spouse, the children and the wives of children and the paintings on the walls, the cars we own and the cars our sons own. I wonder who's going to want to be involved in politics and why we have to go so far. Why are we asking a member of Parliament to go as far as someone who has gone bankrupt or who has been accused of drug trafficking?

We're starting from nothing and we're setting our sights very high. People will end up employing, not a good financial advisor, because that would not help much, but rather a good "ethics expert" in order to understand how to answer those questions or not to answer them, or complying or not complying.

What is the purpose of this? It is my impression, after thinking this through, that this might even encourage perverse behaviour rather than honest behaviour.

I'm also frightened by the fact that we have nothing to begin with and that we want to do so much. This goes very far. It seems to me that we are setting our sights very high. I wonder why we have to go so far.

Mr. Wilson: In my opinion, these proposals are a minimum and also a maximum. If there were a problem regarding allegations of conflict of interest -

.1610

Experience in provinces such as Ontario, British Columbia, Alberta, Saskatchewan and other provinces shows that allegations have been made against members during debate in the House or before committee without public interest being raised, but rather private interest, personal interest.

In provinces where these types of measures exist, as well as in Australia and the United Kingdom, the debate takes place on a higher level.

[English]

In my view, that's the only purpose for this. We require this of ministers, but we also, having gotten this declaration of ministers, then tell them there's a bunch of things they can't do. Why? Because they do constitute, in our view, a direct conflict. That's not the proposition here. The proposition is confidential disclosure, then a limited amount of public disclosure.

It's the choice of the committee. It has worked well in other jurisdictions: since the 1970s in the U.K.; since the 1980s in Australia; and now in the majority of provinces across the country.

[Translation]

Ms Tremblay: Mr. Wilson, that does not prevent the general public, throughout the world, from feeling that politics is the most rotten job around. People respect politicians least.

Mr. Wilson: Of course, some allegations were unfounded.

Ms Tremblay: A code of ethics in itself is not a guarantee that people will behave ethically. They have been around since the 17th century in England, the 18th century in other places and the 19th century everywhere, but that does not change anything. We are not any less ethical here because we do not have a code of ethics.

If someone says they have nothing, you have to take their word for it. The code of ethics contains no means of verifying whether or not that person has nothing. For example, why would it be in the public's interest to disclose excluded assets? Personally, I would like to know why that is important. I understand that if someone owns a cable company then they can't sit on the Standing Committee on Canadian Heritage to explain cable. It seems to me that that goes without saying. So give me a practical example of how it could help someone in carrying out their parliamentary duties to declare something they own, something that they can use.

Mr. Wilson: I will give you an example. The committee met with provincial commissioners. They have had experiences that I have not had. My responsibilities cover ministers and parliamentary secretaries, not members.

Ms Tremblay: If this is being asked of members, I wonder what more you were asking of ministers.

Mr. Wilson: I asked the ministers for the information on the areas that you have before you.

Ms Tremblay: All that information and more?

Mr. Wilson: And more.

Ms Tremblay: You know what all the ministers have on their walls? How many paintings they have on their walls? Who the artists who painted the paintings on their walls are? All the record collections they have at home? You know all that?

Mr. Wilson: Yes.

Ms Tremblay: I would like to see that. I'm sceptical. No one can do that type of inventory. What is the purpose?

I want us to do something useful. This will create a job for someone who will be paid I don't know how much, who will be given an office and who will receive 301 people in that office to make lists of what these people own. When we sell something, we'll have to go and tell them. When we buy, we'll have to tell that person as well. When we go to the flea market we'll have to go and tell them we have found a painting and that it is absolutely extraordinary. We are going to spend our time going to that office to remove and put things on our list.

.1615

Basically, does this go to the heart of the problem? That is what I want to know. Of course I want the code of ethics and our party wants one but we want a code that is realistic and efficient, that goes to the heart of the problem. We don't want to be doing paperwork for the sake of doing paperwork.

The Co-Chair (Mr. Milliken): Ms Tremblay, we can have this discussion later. Our witness is here and we must put questions to him. Please do not make any speeches.

Ms Tremblay: I am not convinced.

The Co-Chair (Mr. Milliken): We can make our speeches at the next meeting and we will be happy to listen to what you have to say.

Ms Tremblay: I want to say that I am not convinced. This is an expert. He is responsible for the code of ethics.

The Co-Chair (Mr. Milliken): Ask him questions.

Ms Tremblay: This is a big question. Does this help us go to the heart of the problem, yes or no?

The Co-Chair (Mr. Milliken): Ms Catterall, do you also have questions?

[English]

Ms Catterall (Ottawa West): I guess it's a similar question, really. Coming from a Judeo-Christian tradition, I've always felt it must have been so much easier to live by the Old Testament than by the New Testament.

Some hon. members: Oh, oh!

Ms Catterall: It's very specific: you don't do this, you don't do that. Then you turn around and overnight you have a revolution that says, ``Thou shalt love one another''. Well, what does that mean? In this situation what does it mean, in another situation what does it mean, and with this person what does it mean? It seems to me we have been struggling from the beginning with that kind of a dilemma.

I think the most important thing here is that members of Parliament commit themselves to an ethical approach to carrying out their responsibilities and that at the same time perhaps there be enough of the Old Testament that they're not inadvertently going to wander into areas that are going to create the perception that they're using their position for their private gain in some way or another. That's one of the principles that's the essence here.

Based on your experience, does this draft report have a reasonably good balance between a positive incentive to think about the ethical implications of your decisions and how you conduct your job? Does it have a proper balance between that and proscriptions on what you shall and shall not do?

It seems to me - and it's the same issue Madame Tremblay has raised - that if there are too many specific rules there, one is tempted to say, ``I have to live by these rules and that's all that's involved in being ethical in my job''.

Mr. Wilson: Yes, I think there's a danger. In the United States they've developed a practice - part of it's a tradition - to express everything in law, and then when they do express it in law, to express it in very fine detail. They claim that what they are trying to do is to enhance public confidence in people in public life, whether they be members of the legislature or in the executive branch.

With all these rules, unfortunately, they have given people the impression that these folks in public life do not have the judgment to be able to know what is right and wrong.

When I first appeared here I tried to say, look, something modest may well be valuable, but it should be the principles that are most important. So you set out some principles and then certain modest rules could flow from that. Some form of disclosure was on the table. I thought that to the extent there are allegations made that people are in this life for personal gain, this would end that. It has ended it in the provinces.

That's the only experience I can offer.

There had been debates about gifts. There had been debates in the House about travel. I said some modest things on travel and some modest things on gifts. I think what they've done here is quite adequate - that is, a public declaration for something over $250 or whatever it might be.

I wouldn't want to take this any further than that.

.1620

Ms Catterall: Your comments have only reinforced my concern, but that's not a criticism of you.

In a sense, I think what we're trying to do is have a code of conduct that's going to protect our public image more than it improves our ethical conduct, and that's my concern. Would you see any value in separating the two, in essence having the principles of acting ethically as the prime document? The other specific rules that members should follow would then be separated from that, almost as a descriptive example of some - but only some - ethical dilemmas that members might face. I'm trying to reinforce the ethical aspect of it as opposed to the rule-obeying aspect of it.

Mr. Wilson: If you're going to have a document at all, I think there's some merit that the document be perhaps centred on those principles, but then you could also draw some modest rules from those.

You already have a whole host of particular rules that are there in one form or another. I'm not an expert on them, but I think someone asked a question about what rules do apply to members now. They are scattered over a variety of places.

I said principles, some modest rules. I was concerned about the rules found in the Parliament of Canada Act on contracts for the federal government. I think they are too limiting. They were written in a different day and age and could easily be improved.

The committee is now looking at whether or not it wants to appoint a parliamentary officer to be available for providing advice and perhaps investigating allegations. My reaction to that is that I think having somebody to offer advice where somebody is suffering an honest dilemma would be an important contribution. I think a lot of members do have those honest dilemmas and would like to be able to talk about them. They probably already know the right answer, but they would like to go out and test their ideas. In the conversations I have, I sometimes think they use standards that are necessarily too far-reaching.

I did argue earlier that I don't think that individual should have a self-appointed investigatory function. If there are serious allegations around and if the committee wants it, then by all means. I don't see the problem, however, but I worry about that. It seems to me that if you have to go out to get somebody to investigate, then you yourselves are collectively saying that we have a problem in these two chambers, and that's something I have missed.

Ms Catterall: Thank you.

The Joint Chairman (Mr. Milliken): Sir, in your earlier remarks you referred to a letter to be tabled with the committee. Are you proposing to do that today, or is that something you're going to send to us later?

Mr. Wilson: I was drafting some points. I'll do it afterwards.

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

My co-chair, Senator Oliver, has a question.

The Joint Chairman (Senator Oliver): Could I ask a supplementary on the answer you just gave to Madam Catterall?

When you first spoke, you said the powers to investigate should be eliminated for the jurisconsult. We can't, however, leave the poor person there sort of naked, with no powers to do anything. The draft we are working on, which you said you have seen, is actually drawn on the British experience and the current British code. You said we should look at a Westminster model, but that model does in fact have investigative powers. So where would you like us to go, or why are you trying to depart from something you say you like?

Mr. Wilson: First of all, the Australians have a system of disclosure as well. They do not have anybody appointed by their two chambers to carry out investigations. It's done with an existing officer, and they don't foresee investigations other than by the committee itself.

The Joint Chairman (Senator Oliver): What's wrong with the British model, though?

Mr. Wilson: I don't believe that situation applies here. First of all, in Britain they were dealing with a case in which a number of members were accepting payment to pose questions in the House of Commons. Secondly, that obliged the British Prime Minister to set up the Nowlan Committee. It found that a number of MPs were in fact being paid as lobbyists. I have never seen any evidence of that here. As a matter of fact, if it was raised, most people would find it outrageous.

.1625

So yes, that person does have independent powers of investigation. But they were dealing in a context that I'm not sure applies here, sir.

One of the things I was going to draft a note to the committee on was to redraft slightly the proposed rules for the jurisconsult and rather than to have an independent investigative role to say, if the committee were of that view:

I don't think the British situation applies here. They have had a very strange life and they have to catch up. I think our experience is closer to that of Australia, where there have not been these allegations, and therefore there has been no need.

The Joint Chairman (Mr. Milliken): Mr. Shepherd.

Mr. Shepherd (Durham): I must admit I haven't read this document fully, but one thing occurs to me, and that's the whole issue of public disclosure. In your study of other jurisdictions, have you discovered abuse of that information? When I say ``abuse'', I suppose I refer to political abuse.

Maybe an example would help. Let's say we were studying, through one of our committees, banks and banking relationships, and I could see that in the Reform Party membership over half of them had stocks in chartered banks and I therefore drew the political conclusion that they were in the pockets of the banks. Is there something that prevents the use of that information? Do you see that as a possible downside to this?

Mr. Wilson: I think that was the reason those jurisdictions that have incorporated this did so. That was the reason in the U.K. It was the reason in Australia. Nobody indicates values. They indicate what directorships they have and whether or not they have significant ownership in shares. That's the case in Ontario, in British Columbia, Alberta, Saskatchewan, Nova Scotia, I guess, Newfoundland, and the two territories. I may be missing one here.

The purpose was to deal with those kinds of allegations, that people were participating in committees because they did have personal interests. So they have a form of public declaration. It doesn't say how much they own; it's just the fact that they do have that ownership. If those interests are actually at issue, then these provinces have said you should withdraw from the debate.

If there's a judgment that it is not at all an issue here, then there's no reason to have that form of disclosure. It seems to me there is a choice here. Other jurisdictions abroad and domestically have found it has served a useful purpose.

Mr. Shepherd: I guess my question is about limitation. It would be one thing if you had a controlling interest or a large block of stock in, say, the Canadian Imperial Bank of Commerce. It would be something else if Mr. Epps's grandmother left in her will a hundred shares of the Canadian Imperial Bank of Commerce.

Mr. Wilson: Yes. The committee, if I understand it correctly, is proposing that there would be no public declaration of any individual stock worth less than $10,000, for example. It would exclude all mutual funds and so on. That number of $10,000 could be $50,000. It could be any number the committee chose. In other words, anything below that is simply not reported.

Mr. Shepherd: On an individual basis.

Mr. Wilson: On an individual basis. I don't have a view on that at all.

The Joint Chairman (Mr. Milliken): Mr. Harb, a point of order.

Mr. Harb (Ottawa Centre): I wanted to thank Mr. Wilson for his excellent presentation.

Mr. Chair, both Reform and ourselves, on both sides, have been discussing the content of a report that I thought was confidential, and we seem to be on the air. Does that mean the report now can be made public, or does it mean we have made a - I just wanted your direction, because it's my understanding it's not yet public.

The Joint Chairman (Mr. Milliken): No, the draft report has not been made public, but we deliberately invited the ethics counsellor, and the privacy commissioner the other day, to come to answer questions the committee members might have. In the course of the remarks, of course, we're going to have comments on the draft.

.1630

The privacy commissioner has not yet seen the draft report. The ethics counsellor has. I think the feeling among members of the committee, when we decided to have these two come, was that we would be interested in hearing comments, especially from -

Mr. Harb: Did we make a copy of this available to Mr. Wilson and to the privacy commissioner?

The Joint Chairman (Mr. Milliken): Mr. Wilson has had a copy, I believe.

Mr. Wilson: That's right.

The Joint Chairman (Mr. Milliken): I don't believe the privacy commissioner has had a copy.

Mr. Harb: Would it be possible to pass it on to the privacy commissioner as well?

The Joint Chairman (Mr. Milliken): He's been here, and he's made his comments.

Mr. Harb: Okay.

The Joint Chairman (Mr. Milliken): Given the tenor of his evidence, I don't think having a copy was going to be particularly helpful to him. He indicated that Parliament could do what it wanted unless it changed the Privacy Act and gave him jurisdiction over Parliament. He has none. So we were free to do whatever we wanted. He listed a set of principles for the committee that I think members would find instructive and quite helpful.

Members may want to ask Mr. Wilson if he saw or heard the privacy commissioner's evidence yesterday; if he is aware of the principles he espoused; and if he has an opinion as to whether the draft code meets those principles. But I don't know whether or not he wants to express a view on that.

Mr. Wilson: I can. I was debriefed on what he had to say.

The question of the confidentiality of this information is absolutely essential. These systems do not work if there is any concern on the part of the individual that the public or someone else - maybe someone else within their party - would be copied with this information. I think you have to put a great deal of stress on making sure that this is secure information.

The work of your jurisconsult will not be fruitful unless a member can call up that individual and be totally confident that everything in that call or that meeting will never be revealed and that you can protect that information, and when it's no longer necessary, is destroyed, as my information is destroyed.

The Joint Chairman (Mr. Milliken): The privacy commissioner made that point yesterday in his testimony, that there had to be a specific provision in our rules that, say, after a fixed period of time the information would in fact be destroyed and that confidentiality was absolutely essential in this case.

Senator Bosa.

Senator Bosa (York - Caboto): I have a supplementary here. What if the information is challenged?

The Joint Chairman (Senator Oliver): There would be a period of time before it's disposed of. It could be six months or it could be two years.

The Joint Chairman (Mr. Milliken): You mean challenged as to whether the information is accurate.

Senator Bosa: Let's say I'm aware of the rules and I know the private affairs of a member of Parliament. I contact the jurisconsult, ask him or her if that member complies with the rules, and here's what I think he has.

The Joint Chairman (Mr. Milliken): I think we'd anticipate in those circumstances that the jurisconsult would come to the committee and report that he'd received a complaint that a certain member had violated the rules by not disclosing a particular item - which is what I assume you'd be saying here - that should have been made public in the public disclosure and was not listed in the public disclosure, and therefore, you think, there was some error. He would seek direction from the committee on whether to proceed with an investigation, whether to call the member before the committee, make an inquiry, or however else it might be resolved.

I think the fact that you can make the approach there is the point of the exercise. You can pass that information along if you feel something is wrong. I think that's part of the reason for this.

Senator Bosa: Yes, but the information is kept confidential. How can you verify that?

The Joint Chairman (Mr. Milliken): Well, he may not verify it to you. He may simply say he has a complaint and take it to the committee and decide whether or not there is a complaint. He may never get back to you. Obviously if your information is correct and it's a matter for public declaration, you would know fairly soon, because it would appear in the public declaration.

Mr. Epp.

Mr. Epp (Elk Island): Thank you.

I'd like to begin by thanking fellow committee members for your kindness to us. I'm very happy to have Mr. Manning here. His interest in this is sincere.

.1635

As a matter of fact, just as a little preamble, I joined the Reform Party in 1988 partially because of the Manning name. Ernest Manning was a premier in Alberta who for 25 years - I think it was 25 - had a totally unsullied escutcheon. I think we parliamentarians can learn from that. And it wasn't because he had a big regime of rules.

I think we need to always keep in mind that 99% of us are going to do the things that are right, as Marlene said, whether or not there is a set of rules. But the rules should be in place in order to ``call up'', I guess, the person who doesn't have that finely honed sense of propriety.

I appreciate your consideration for having our leader here today at this meeting.

I'd like to ask Mr. Wilson just a couple of questions. First, from what you have seen in the draft copy of the code that we're proposing, do you feel that it adequately brings together both the principles and the practices of the current rules that affect MPs and senators with respect to the House of Commons or the Parliament of Canada Act and these other acts that apply to us?

Mr. Wilson: Mr. Epp, I'm not an expert on all the rules that do apply to you. I think, though, that the draft I saw certainly makes that attempt to pull in questions related to gifts and to travel. The question on disclosure would be absolutely new. The question on contracts is mostly there, and I think there are some drafting suggestions that I would be offering to improve that.

It struck me - without being an expert - that it is a stand-alone document. In other words, if one were to ask what things apply to members of Parliament and to senators, one could pick up that document and understand those things. It might in fact be a very useful public tool.

Mr. Epp: Okay.

My second question has to do with respect to the jurisconsult and his independence. I don't want to embroil you in the political end of this, but we all know, and certainly in our party we have drawn sharp attention to the fact, that you answer to the Prime Minister.

I have said publicly - so I might as well say it now because you're here to hear it anyway - that I feel the ethics counsellor has his hands tied in terms of being believable for the public in the sense that you don't have the freedom that the Auditor General has to report directly to Parliament and thereby more directly to the Canadian people.

I realize that the Prime Minister right now has two such people. There's Mr. Sharp and your work and I suppose - do you work together at all, or are these two independent people who the Prime Minister consults on matters of ethics?

Yet, if you investigate something that is considered inappropriate, when you say it's not appropriate how is the Prime Minister going to react to that? If, after your investigation, you decide there was no wrongdoing, the purpose we have of having the people of Canada trust our Parliament more is eroded by the fact that even when you declare the guy innocent there's this lingering doubt in the minds of Canadians that because you're so close to the Prime Minister you perhaps can't be independent.

I'm looking at making the jurisconsult very much more independent than you are. I would like to know if you have any comments on that. Would you encourage us to do that?

Mr. Wilson: I can't answer with a yes or no, because I think what has to be properly understood is the difference between my role and the responsibilities a Prime Minister has in our system of government and what is being proposed here.

Let me first of all speak about this. I thought there was a case to be made for having someone appointed by Parliament, by both chambers, to carry out most of the functions that are proposed. I thought the most important role this individual could play is the ability to offer advice to deputies and to senators if they are experiencing some questions, some dilemmas. And it happens frequently. I like the idea that if that individual seeks confidential advice, the jurisconsult would be bound by that.

.1640

That's a provision that is found in Quebec, and I think it's been quite valuable. The jurisconsult in Quebec is the former chief justice of the province, Claude Bisson. His role is not quite as proposed here, but people call him, and if they experience some problems - a company they own is doing something, how does that affect their responsibilities as a member of the assembly and so on - they can get a ruling and advice. The advice is important.

This is what the provincial commissioners do. They also go further. Once a year in their annual report they then disguise this confidential information, disguise the identity of the individual, so they can give a ruling more broadly on how members should deal with this or that. I think that's terribly important. This person should then be responsible to Parliament.

Quite apart from that, unless we are going to run roughshod over the whole concept of the Westminster model, it is the Prime Minister who must be responsible for his or her government. No matter where you look, if you look in Britain, in Australia, and I believe in New Zealand, that is the case. For that matter, it's the case in Quebec. In Quebec the jurisconsult has nothing to do with cabinet ministers in Quebec. They are exclusively the responsibility of the Premier of Quebec.

I think that's terribly important, because we are not like the United States, where we have the legislature on the one hand and the executive on the other. In the House of Commons we have the executive on the one hand, in there as members of the legislature, and you have to go and sort the two out. So when the Prime Minister comes up and responds for the performance of the government on a particular issue it's the Prime Minister who stands accountable, under our system. The same thing is true, as I say, in the U.K. and in Australia.

What our Prime Minister has done is to say that when carrying out that responsibility, he looks to me to assist him in that respect. So I have responsibilities for the administration of the conflict of interest code. When I was appointed to the position, he said he would perhaps call upon me from time to time to look into allegations that might be made against members of his government. But that is all a matter between me and the Prime Minister, because the decision at the end of the day has to be the Prime Minister's.

So I've never apologized - nor have I ever felt I did not have sufficient authority to carry out my job. Quite the contrary.

Mr. Epp: I accept that, as long as you have a Prime Minister who will then act on the recommendations. Very frankly, Mr. Wilson, there have been several instances where the term has been used that you are part of the ``damage control team'', and that's unfortunate. I think it's very unfortunate, because it prevents your office from having the effect it's supposed to have, namely to assure Canadians that here is an independent study, an independent investigation, and it's fully to be trusted.

You mentioned before that there were no actual examples of problems in our Canadian government. Yet many people in this country put the trust of MPs and senators in our government systems at a very low level. Probably that is because there have in fact been some instances where there have been some questionable practices. For example, do you think the code we're proposing would adequately expose an MP or senator getting a so-called ``consulting fee'' for working for someone when it's not really apparent what he does for them? Would this code we're proposing cover that?

Mr. Wilson: As I understand it, Mr. Epp, it would indeed, because it would say you are receiving an income of sorts or have a contract with the following company. So it would indeed address that.

When I said I did not think there was a major problem here - I'm not aware of very many. There have of course been criminal allegations made against members in this Parliament and the previous Parliament, but we have court systems to deal with that. This code was never intended to deal with the Criminal Code, for example.

.1645

Mr. Epp: It's supplementary to it. Thank you.

The Joint Chairman (Mr. Milliken): Are there further questions? Senator?

Senator Bosa: Did you say the courts have to do with something that is not - Did you mention courts?

Mr. Wilson: What I am saying is that the courts must deal with Criminal Code matters, but I think it's Parliament that must deal with these kinds of measures that are more grey. These are not black and white issues; these are judgmental questions, and that's why a jurisconsult can be helpful and why your committee, however, must take responsibility.

Senator Bosa: Thank you.

The Joint Chairman (Mr. Milliken): Any further questions?

Mr. Wilson, I want to thank you, on behalf of the members of the committee, for coming and sharing your views with us. They're very important and very helpful to us as we near what I hope will be the conclusion of our deliberations. We do have a deadline of the end of March on this, but I'm optimistic we'll meet it this time, having missed several times before.

That concludes our business for today. I should advise members of the committee -

[Translation]

Ms Tremblay: Usually, the maximum is three students.

The Co-Chair (Mr. Milliken): Yes, that is too much.

The Minister of National Defence indicated that we will have to complete our work soon. Therefore, the next meeting will probably be on Tuesday, February 18.

Ms Tremblay: I can never attend in the morning.

The Co-Chair (Mr. Milliken): Tuesdays?

Ms Tremblay: Mornings.

The Co-Chair (Mr. Milliken): Very well. Maybe we can sit in the afternoon of February 18.

Ms Tremblay: That is when the budget speech will be made.

The Co-Chair (Mr. Milliken): Yes, but that will be at 4:30 pm. Perhaps we could sit for one hour that afternoon as well as Wednesday afternoon to continue our work on the draft report.

Ms Tremblay: Could we decide right away?

The Co-Chair (Mr. Milliken): Yes, if we can have a room on the 18th. That may be a problem because of the budget.

[English]

The Joint Clerk (Ms Savage): There will be no rooms available in the Centre Block.

The Joint Chairman (Mr. Milliken): None?

The Joint Clerk (Ms Savage) : None. There may not be any available in the West Block either, or very few.

The Joint Chairman (Mr. Milliken): What about Senate rooms? Do we not get a Senate room on the 18th?

The Joint Clerk (Ms Savage): That leads to a problem with recording and transmission of -

The Joint Chairman (Mr. Milliken): Too bad. We'll see what we can do anyway.

Mr. Epp: Mr. Chairman, Wednesday the 18th is going to be really tough for us.

The Joint Chairman (Mr. Milliken): We'll see what we can do. It may have to be Wednesday and Thursday; I'm not here on Thursday.

Mr. Epp: Wednesday and Thursday would be better for me.

The Joint Chairman (Mr. Milliken): We may do that. We may do Tuesday, Wednesday, and Thursday. We've got to get this report done.

Thank you very much. I declare the meeting adjourned.

Return to Committee Home Page

;