HAFF Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Procedure and House Affairs

EVIDENCE

CONTENTS

Thursday, December 5, 2002

Á

1115

The Chair (Mr. Peter Adams (Peterborough, Lib.))

Mr. Howard Wilson (Ethics Counsellor, Office of the Ethics Counsellor)

Á

1120

The Chair

Mr. Howard Wilson

The Chair

Mr. Howard Wilson

Á

1125

The Chair

Mr. Howard Wilson

The Chair

Mr. Jay Hill (Prince George—Peace River, Canadian Alliance)

Á

1130

The Chair

Mr. Jay Hill

The Chair

Mr. Jay Hill

The Chair

Mr. Jay Hill

The Chair

Mr. Jay Hill

The Chair

Mr. Howard Wilson

The Chair

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

Mr. Howard Wilson

Mr. Derek Lee

Á

1135

Mr. Howard Wilson

Mr. Derek Lee

Mr. Howard Wilson

Mr. Derek Lee

Mr. Howard Wilson

The Chair

Mr. Derek Lee

The Chair

Mr. Michel Guimond (Beauport—Montmorency—Côte-de-Beaupré—Île-d'Orléans, BQ)

Á

1140

Mr. Howard Wilson

Mr. Michel Guimond

Mr. Howard Wilson

Mr. Michel Guimond

Mr. Howard Wilson

Mr. Michel Guimond

The Chair

Mr. Michel Guimond

The Chair

Mr. Michel Guimond

Á

1145

The Chair

Mr. Howard Wilson

The Chair

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.)

Mr. Howard Wilson

Ms. Marlene Catterall

Á

1150

Mr. Howard Wilson

Ms. Marlene Catterall

The Chair

Ms. Marlene Catterall

Mr. Howard Wilson

The Chair

Mr. Yvon Godin (Acadie—Bathurst, NDP)

Mr. Howard Wilson

Á

1155

Mr. Yvon Godin

Mr. Howard Wilson

Mr. Yvon Godin

The Chair

Mrs. Carolyn Parrish (Mississauga Centre, Lib.)

Mr. Howard Wilson

Â

1200

The Chair

Mr. Rick Borotsik (Brandon—Souris, PC)

Mr. Howard Wilson

Â

1205

Mr. Rick Borotsik

Mr. Howard Wilson

Mr. Rick Borotsik

Mr. Howard Wilson

Mr. Rick Borotsik

Mr. Howard Wilson

Mr. Rick Borotsik

The Chair

Mr. Rick Borotsik

Mr. Howard Wilson

The Chair

Mr. Ken Epp (Elk Island, Canadian Alliance)

Â

1210

Mr. Howard Wilson

Mr. Ken Epp

Mr. Howard Wilson

The Chair

Mr. Howard Wilson

Mr. Ken Epp

Mr. Howard Wilson

Mr. Ken Epp

Â

1215

The Chair

Mr. Howard Wilson

The Chair

Mr. Howard Wilson

The Chair

Mr. Ken Epp

The Clerk of the Committee

Mr. Ken Epp

The Chair

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CANADA

Standing Committee on Procedure and House Affairs

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NUMBER 012

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Thursday, December 5, 2002

[Recorded by Electronic Apparatus]

Á  (1115)  

[English]

    The Chair (Mr. Peter Adams (Peterborough, Lib.)): Colleagues, our meeting today is pursuant to the committee's mandate under Standing Order 108(3)(a)(iii), consideration of matters related to the inclusion of a code of conduct in the Standing Orders of the House. In general parlance, that's the ethics package we've been dealing with through many meetings recently.

    Before we proceed to our witness today, I want to mention to you that at the end of the meeting I would like you to approve, or otherwise, a proposed budget for the committee. This is a budget to deal with the witnesses we've been calling, and that kind of thing. We'll explain that when we get to it.

    Second, I want to remind you that following this meeting we're going to have a working lunch with the Speaker and Senator Oliver. It's an important and integral part of the committee's work because of the importance of the Milliken-Oliver report we've been considering. So please remember that when we finish here today, that is where we'll be going.

    The other thing I want to say is to the Liberal Party only. We now have the names of the members who will be on our subcommittee to look at the riding boundary proposals coming in from the regional commissions. The first of those submissions is expected very soon. We have members from all parties, except the Liberals. We'd be grateful for a Liberal nomination as soon as possible.

    I will now introduce our witness for today. You all know we'll be here about an hour, so when the questioning comes we'll be moving it along fairly quickly.

    This is Howie Wilson, the federal Ethics Counsellor. I know he's familiar to most of us. He's particularly familiar to us as a face at the moment because he's been following these hearings and our consultation with the provincial commissioners, academics, and other people we've interviewed very carefully.

    Mr. Wilson, we're very pleased you could make the time. I understand you have a statement. We're in your hands.

    Mr. Howard Wilson (Ethics Counsellor, Office of the Ethics Counsellor): Thank you very much, Mr. Chairman. I'm delighted to be here. As you've pointed out, I was very interested in attending your earlier meetings to get a sense of what was being said to you, but also a sense of the interests of the members on this issue.

    I have a few comments to make on some points, which we can then come back to if there's an interest. I think the critical point here is why we need a code of conduct for parliamentarians. I was the first witness, as well as the last witness, to the Milliken-Oliver committee, first in 1995 and then in 1997. I was strongly supportive of the proposition that there be a code of conduct for parliamentarians.

    I did not see it, however, as a question of trying to catch crooks. I saw it as being beneficial to members, in allowing them to not only have guidance on a number of matters, but also be able to--in this case it was the jurisconsult, now ethics commissioner--seek advice on matters that go beyond the legal. I certainly accept there is not a major problem in this Parliament, in either House. You're not dealing with a crisis, which is perhaps one of the better moments to take a look at whether or not there should be a code of conduct.

    I have provided to the clerk copies of the testimony I gave in 1995 and 1997, which I continue to support. You should know that at the final meeting in 1997, when the draft code was very well advanced, I said the only reservation I had with the Oliver-Milliken report was that I was not convinced that the very strong investigatory powers that were to be given to the jurisconsult had in fact been demonstrated. I thought there was not a problem, such as had happened in the U.K., and I was concerned that it might create a conflict with the much more important role I saw for the jurisconsult, now ethics commissioner, to provide advice to members. So that was a statement I made in 1997.

    What we are actually talking about here is a code of conduct that is going to provide for self-regulation by the legislature. I happen to think this is terribly important. It's a question of privilege for the House and for the Senate. The effect of the proposed code in front of you would be to remove from the Parliament of Canada Act several offences. This would then ensure that Parliament would deal with discipline of members, should it be necessary, and not the judiciary. This would enforce the question of the legislature being the master of its own house. The separation of powers is an important point, constitutionally, to always keep in mind.

    Let me pick up several issues that have come before the committee, and I will touch briefly on them. On the question of spouses, I think there's been some misunderstanding of exactly what is necessary here. I happen to believe it would be found by members to be of value to have a disclosure system for spouses. It's what happens in the provinces, but it's also something I have personal experience of, because under the Prime Minister's code, since 1994, it has been necessary for spouses of ministers and parliamentary secretaries to make disclosures.

    I can say I have never, in that period of time, had any difficulty with this. In fact, the spouses have all seen the importance of this and why. I have pointed out that the spouse is not a minister or public office-holder, but nonetheless they may have interests. This is particularly the case when they may be very active investors or pursuing their own careers, where their activities might in fact create issues that the minister would have to take precautionary steps to avoid. That's how it's been presented, and it's been strongly supported. As I say, I have never had a problem with it, in that interval since 1994. It was understood as being valuable.

Á  (1120)  

    I had argued back in 1995 and 1997 the importance of enshrining the code of conduct within a set of principles, which is what Milliken and Oliver did.

    I was quite astounded, I can say, to have listened to an academic the other day say he was opposed to a principle saying parliamentarians should uphold the highest ethical standards. He found something wrong in saying you did not have that capacity. He didn't actually have drafting language. But perhaps he was saying they should not uphold the highest ethical standards. In any event, I thought his argument was without merit.

    There has been a concern about frivolous and vexatious complaints. I understand this. Having heard it raised, I was in contact with my provincial colleagues to see whether or not or how they have dealt with this. I've prepared a paper, which the clerk has for circulation. It sets out the experience of several provinces: British Columbia, Alberta, Ontario, Quebec, New Brunswick—

    The Chair: This is the document we have.

[Translation]

Frivolous and vexatious complaints.

[English]

    Okay. Thank you.

    Mr. Wilson.

    Mr. Howard Wilson: Their experience is that this has not been a problem. But in two provinces, Ontario and New Brunswick, they do require any complaint by a member to be in the form of a sworn affidavit. This is provided for in the code of conduct now drafted.

    British Columbia has a provision that if the commissioner comes to the view that it was a frivolous complaint, the assembly may hold the member in contempt. He has found this to be very useful in putting discipline on members before they file a complaint.

    So there are some provisions you might want to look at and draw upon, to provide some comfort to those who worry about being unfairly attacked—just before an election, for example.

    The Chair: From the committee's point of view, this is a very useful document. Thank you very much.

    Mr. Howard Wilson: The other question that has come up is that two codes are proposed for the responsibility of the ethics commissioner. The question raised has been, is it possible to combine responsibility in one person? My answer is yes. But I don't think the difficulties that will be caused should be underestimated. There should be no confusion on this point. This is an enormous task.

    Let me just explain this briefly. There are two accountabilities for the ethics commissioner. One accountability is to one or two parliamentary committees, either a joint committee of the Senate and the House of Commons or to a committee of this House and a committee of the Senate. Fine. A person would be dealing with 300-odd members of Parliament and 100 senators.

    The other responsibility would be for the administration of the Prime Minister's code of conduct. His or her accountability would then be to the Prime Minister. Again for constitutional reasons, I happen to think this is absolutely essentially. I can come back to this. I've spoken on it extensively in the past. It's the Prime Minister who must stand accountable for the executive branch.

    The numbers are very large. It's very labour intensive because of the proactive nature of the office. There are about 1,300 full-time public office-holders and about 2,000 part-time governor in council appointees for whom we have responsibility. So I think it's going to be a major task, both in terms of volume and split accountability—accountability to the legislature, on the one hand, and to the Prime Minister on the other hand.

    I noted that Rob Walsh, your law clerk, did raise the question of whether the independence of the legislative branch of government is compromised where the conduct of members of Parliament is subject to oversight by the same official who has oversight over public office-holders. On this question, Bob Clark, speaking for the other two provincial colleagues from Alberta, said at your meeting on November 26, “I would urge you to consider maybe having a different person to look after the Prime Minister's matters from the person who is responsible for the House”. Those questions have been raised. That was the original proposition of June. I won't go any further on this point.

    The proposal is that responsibility for the lobbyist code of conduct be assigned to the registrar of the Lobbyist Registration Branch. I will express some reservations here on two grounds. One is that the registrar is not a particularly senior official. In fact, it's not an EX job. I have an EX in the position right now temporarily, because we were having the act reviewed. But once this happens, she will go on to other responsibilities.

    The powers of the lobbyist code of conduct are immense. They require all the powers of a superior court of record—in other words, of a federal judge—to compel evidence and to, in effect, find whether a lobbyist has breached a rule and is acting unethically. This is a very, very serious assignment.

    It may be possible that the ethics commissioner might be able to take this on. It's not particularly onerous. But it might be complementary to his or her other responsibilities. I just flag this.

    My last point is a very personal one. I am concerned about my staff, all of whom are loyal public servants and have been working in the area of conflict of interest for some years. They have considerable skills to bring to this task. Now, the proposition is that the employees of the commissioner will be employees of Parliament, and that the office of the ethics commissioner will be a separate employer. They will no longer be public servants. Of course, with my employees, it's not certain whether they'll even be asked to join this new office. I'm not going to be around, as you know. But I do feel a responsibility to try to see whether or not there is a compromise that might be possible.

Á  (1125)  

    That compromise--and there's a piece of paper that I've again provided--is that the staff of the Auditor General, the staff of the--

    The Chair: If I might say, these are the sheets entitled in English “Auditor General Act”.

    Mr. Howard Wilson: --information commissioner, and of the privacy commissioner are all public servants and are appointed in accordance with the Public Service Employment Act.

    I think there's certainly a great deal of concern in my office, as you will appreciate, which I have been trying to provide some comfort on, but there's also a resource there that I think is in the public's interest to preserve.

    That, Mr. Chair, is the sum of my comments.

    The Chair: Thank you very much, Mr. Wilson.

    By the way, we do appreciate--I do anyway--the way you focused on particular things that we've been discussing. It was extremely useful.

    You know our procedure here. The only difference is going to be that I am going to try to keep it to five minutes. As you know, Mr. Wilson, that includes both the questions and the answers. That's for fairness between the parties.

    I have Jay Hill, Derek Lee, Michel Guimond, Joe Jordan, Yvon Godin.

    Mr. Jay Hill (Prince George—Peace River, Canadian Alliance): Thank you, Mr. Chairman, and thank you, Mr. Wilson, for your presentation.

    I was very pleased to note your comments about being strongly supportive of a code of conduct for parliamentarians and specifically your ongoing commitment to that.

    Mr. Wilson, I want to zero in on a specific complaint to understand better how these things are handled presently and how they can be improved upon in the future. On November 4, just a day over a month ago, I rose in the House of Commons and raised an issue with the government about an alleged conflict of interest concerning Minister Denis Coderre when he was then junior minister for amateur sport. In the allegation it said he intervened personally with his staff and with the awarding of a $500,000 contract to a group called Groupe Everest.

    It came to light, through access to information that I believe the Bloc Québécois obtained, that there was a direct contradiction between the minister and his executive director, or former executive director, Roger Farley. Because of time constraints, I'm just going to quote very quickly from my question that day and the response from the Deputy Prime Minister. I said, and I quote from Hansard of Monday, November 4:

There is a direct contradiction between what the Minister of Citizenship and Immigration recalls and what his former assistant remembers. Only one of them can possibly be telling the truth.

Á  (1130)  

    The Chair: Yes, you can count on that, but we are going to deal with the question at hand, which is the ethics package before us. You're bringing this to bear--a question that has to do with the ethics package before us.

    Mr. Jay Hill: The Deputy Prime Minister actually referred to it in the House of Commons in response to this question, Mr. Chairman, so I think it's very pertinent.

    The Chair: Okay, I'm sorry. I apologize for interrupting you, but I'm going to listen very carefully, because it must.

    Mr. Jay Hill: All right.

    I went on to say:

The Prime Minister has launched his new so-called ethics package.

--which includes this code of conduct, if I'm not mistaken, Mr. Chairman--

What good is it if it does not compel the ethics counsellor to seek out the truth?

    In reply, the Deputy Prime Minister said:

The current ethics counsellor has also shown his willingness to respond to issues that were raised either in the media or in Parliament. I invite the member, if he wishes, to write his own letter to the ethics counsellor.

    He actually referred to the new ethics commissioner that will be formed, if this goes ahead, Mr. Chairman.

    Now, I want to refer our witness, Mr. Chairman, to the fact that I took the Deputy Prime Minister up on his call. I followed the rules. I wrote a letter on November 5, one month ago today, outlining this concern. I followed it up again on November 20 with another letter to our witness. So I can summarize my comments. Given this and the fact that we're dealing with a future code of conduct and potential guidelines for an ethics commissioner, why didn't I rate a response as to the intent to investigate, and if yes, when, and how long will it take, Mr. Chairman?

    The Chair: I'm going to rule that out of order.

    Mr. Jay Hill: Why is that, Mr. Chairman?

    The Chair: I'm ruling it out of order because Mr. Wilson is here--

    Mr. Jay Hill: Not to answer questions.

    The Chair: That is absolutely not true. He's here as a witness on the development of the legislation around this package. He's here in good faith. He's not here to deal with professional matters of that sort. You can take this up with him, I'm sure, afterwards, or in the House of Commons itself.

    It's Derek Lee, then Michel Guimond.

    Mr. Wilson.

    Mr. Howard Wilson: Since this has been raised and will be a matter of public record, let me merely comment that I have Mr. Hill's letter. I have asked my staff to give me advice on the matter and I have yet to receive that advice. But he will be getting a formal response.

    The Chair: Thank you very much.

    Derek Lee, and then Michel Guimond.

    Mr. Derek Lee (Scarborough—Rouge River, Lib.): Let's get back to the business at hand here. It was beginning to sound like adjournment proceedings, Mr. Chairman.

    In any event, Mr. Wilson, do you have any recollection of when was the last time a member of Parliament was charged with a breach of the provisions of the Parliament of Canada Act? Has it happened while you've been around, or are you aware of previous proceedings?

    Mr. Howard Wilson: I'm simply not aware. I suppose the law clerk would be able to tell you, but certainly nothing in my memory.

    Mr. Derek Lee: So you haven't seen anything like this come up while you've been in the saddle, doing your work, right?

    Had you ever seen a compelling need to move the provisions of the Parliament of Canada Act into some other receptacle? Is what's going on generally around Parliament Hill such that we should be renovating these relatively unused sections of the Parliament of Canada Act?

Á  (1135)  

    Mr. Howard Wilson: My view is that it would be beneficial to members of this House if you were to do so. One of the problems with the Parliament of Canada Act is that some of its provisions deal with an age long gone by, when one of the big activities of the Government of Canada was building bridges and post offices. So there were provisions that bear no sense today.

    The second point I spoke to was that I think questions over the enforcement of these kinds of provisions should lie within the legislature, not in a court of law.

    Mr. Derek Lee: Is it possible that the public may see the removal of those public statute provisions into an internal code of conduct as being somewhat elitist and an attempt to remove MPs and senators from the general purview of the general law?

    Mr. Howard Wilson: I would say this is a very good moment to do it, because you're not actually dealing with a crisis. If you actually had somebody who had just been charged, then any attempt to do so would be open to that accusation.

    Mr. Derek Lee: That's a good point.

    Now let me move to the issue of enforcement of a code. I'm personally not very attracted to the prospect of having a hanging special prosecutor, sitting around waiting for work to come in the front door, if for no other reason than that there isn't really much work ever going to come in the front door to specially prosecute.

    Actually, I'll ask you. While you've been around, has anything come in the front door that would cause you to consider prosecution as a remedy to deal with a member of Parliament?

    Mr. Howard Wilson: I spoke in my opening comments about what I had said in 1997, and I had been arguing very much for a code of conduct and an officer of Parliament who would be available to members to provide advice on those matters. Much of this is grey area for which there is not necessarily a clear-cut answer. But I get lots of calls from members of this House and members of the Senate, for which I have no responsibility, but they are troubled by a matter and want my perspective on it.

    Back on February 5, 1997, I said:

I am not, however, persuaded that this individual [as the jurisconsult], 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.

My recommendation is that these particular powers of independent investigation be eliminated. Nothing should prevent the joint committee--

They were talking of a joint committee at that point.

    

--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.

    It's my view that Parliament itself, the committee invested with these powers, should be able to deal with problems as they arise. Then maybe later, if a case is made that you do need somebody with those powers, you can invest that individual with those powers.

    Thank you.

    The Chair: I want to discuss one point. I think you mentioned prosecution. It seems to me the counsel's work was explained--investigation and that kind of thing. I think you used the word “prosecution”, did you not?

    Mr. Derek Lee: [Editor's Note: Inaudible]

    The Chair: Thank you very much.

    Michel Guimond, Joe Jordan, Yvon Godin, Carolyn Parrish, and Rick Borotsik.

[Translation]

    Mr. Michel Guimond (Beauport—Montmorency—Côte-de-Beaupré—Île-d'Orléans, BQ): Thank you, Mr. Chair.

    Mr. Wilson, I seem to remember having read in the media somewhere, when the new rules and the new code were made public by Deputy Prime Minister Manley and following a speech by Prime Minister Chrétien—you can refresh my memory—that you believed that, overall, the new proposed code of conduct was very relevant.

    Is this the case? Is this true?

Á  (1140)  

[English]

    Mr. Howard Wilson: I think that's a fair comment. I've been in favour of a code for parliamentarians.

[Translation]

    Mr. Michel Guimond: Do you think that the proposed code is a good code?

[English]

    Mr. Howard Wilson: The code that's proposed for parliamentarians is essentially what Oliver and Milliken agreed to. There is the question of spouses that I would think you should take a serious look at, but there's also the question of the investigatory powers. I expressed reservations to that committee back in 1997, and I've just spoken about that.

[Translation]

    Mr. Michel Guimond: If I remember correctly, I read somewhere that you were not interested in applying for this position if there is an open and transparent process. Is this correct?

[English]

    Mr. Howard Wilson: Let me be quite specific. The proposal that was tabled in June was for two different individuals. One would be the commissioner responsible for the parliamentarian code and the other would be to formalize in legislation the position that I currently hold, that of ethics counsellor. I had never considered myself for the parliamentary code at any time, but I did indicate to the Privy Council Office and the Prime Minister's Office in July that I would not be a candidate for the role of ethics counsellor, that is, to be responsible for the Prime Minister's code of conduct. That is the position I conveyed to them, and I made it public in early September.

[Translation]

    Mr. Michel Guimond: So, if you consider the new proposed rules to be relevant, you recognize that, under the current system, there are serious questions, serious problems.

    What is your reaction to the numerous complaints about you being merely a political advisor to the Prime Minister?

    I want to tell you, Mr. Wilson, that you seem to be—

[English]

    The Chair: Michel, again, I would urge you to focus on the package before us. I have to say that the committee could call Mr. Wilson, as other parliamentary committees can, on some other occasion to discuss his professional work at the moment. But here he's an expert witness on the matter of the ethics package and the reforms we're trying to make. Please, keep to that.

[Translation]

    Mr. Michel Guimond: Earlier, you answered one of my questions with the acknowledgment that the system, as proposed, is a good one. So, you recognize that there is a problem with the current system.

    In our consideration of the new code, should we keep an ethics counsellor who reports directly to the Prime Minister and who does not—?

[English]

    The Chair: Again, Michel, no, the way it is phrased it is inappropriate. The witness is not here for that reason. Parliament is considering the new package. We all think there should be a new package here. I think it really is inappropriate. On some other occasion it would not be. But I urge you, let us discuss the package at hand.

[Translation]

    Mr. Michel Guimond: Mr. Chair, I do not want to get into a long debate with you, especially since I said that you were a better chair than Mr. Lee had been. Now that he is here, I will repeat it: you are a better chair than Mr. Lee thought he was.

    But, since we are considering with the code of conduct, I would like to know if, in the proposed package, it is a good idea to have an independent ethics counsellor who reports to Parliament, instead of keeping the current system.

Á  (1145)  

[English]

    The Chair: Leave it at that.

    Mr. Wilson, are there parts of that that you would care to respond to?

    Mr. Howard Wilson: There's a very important point here, and this was recognized in June when they were talking of the two positions. One would be the constitutional point that it is the Prime Minister who must establish the code of conduct for public office-holders for the executive branch. That principle is reflected in the current combined position. So the ethics commissioner as proposed would be accountable to a committee for whatever is agreed to as a parliamentary code, but would continue to be responsible to the Prime Minister with respect to the public office-holder's code. I think this is fundamental.

    I appreciate that in a number of provinces they have combined this function. I think it is on constitutionally very weak grounds. The British House of Commons has made it very clear that the parliamentary commissioner there does not have any responsibility for the prime ministerial code. That is set out in express provisions.

    There is also one other province in this country where there is a clear understanding of the constitutional separation between the executive branch on the one hand and the question of the legislature on the other, and that is the province of Quebec. They have a position that is established by the Loi sur l'Assemblée nationale for a jurisconsult, and that currently is a former chief justice of Quebec. He is available to the members of the assembly to give them advice on matters where they may, in their activities, run afoul of the provisions of that act. He gives advice that is binding on the courts if the facts are correct.

    The prime ministers of Quebec, at least as far back as Bourassa and probably earlier, but through Bouchard, Parizeau, and currently with Landry, have also issued directives that set out the rules that apply to members of their cabinet. It is the prime minister, the premier of Quebec, who is exclusively responsible for the administration of that.

    So there is one legislature in this country that respects this constitutional point that I think is fundamental. That is reflected in the draft here, and it was reflected back in June when we were thinking of two people.

    The Chair: Marlene Catterall, and then Yvon Godin.

    Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): I have a couple of very specific questions.

    I notice that most of the provincial codes are called conflict of interest codes, or laws, or whatever. Sometimes I suspect that the use of the word “ethics”, suggesting that members of Parliament and senators need to be told how to be ethical, causes some of the resistance around this act. Do you have any views? It does seem to me that it deals only with conflict of interest, not with other ethical matters.

    Mr. Howard Wilson: There are two ways by which people have dealt with codes of conduct. There is a rules-based approach and there is a principles-based approach. I have long been in favour of the importance of a principles-based approach.

    What you then do is you set out a series of principles that will provide guidance to, in my case, public office-holders, in your case parliamentarians, that is done here. From that you derive some limited procedural rules affecting declaration of interest, gifts, travel, but they're not very extensive.

    That is a much more positive way of approaching than the rules-based approach, which is particularly favoured in Washington, where you have enormously detailed rules on all possible, conceivable circumstances that a public official might become engaged in. I find that dangerous because it's very difficult to understand all the rules that do apply. You then have an official whose position is to enforce those rules.

    I put the accent on principles, some limited rules, and an official whose job is to provide guidance and assistance in allowing members to achieve the objectives of the code.

    Ms. Marlene Catterall: So that would reinforce your earlier point that combining the investigative and the counselling functions in one person may become a problem.

    I want to ask about exemptions. There are certain public office-holders that are exempt. I couldn't quite come to grips with why, for instance, the foreign service officers would be exempt from the code of conduct. Do you have any views on that?

Á  (1150)  

    Mr. Howard Wilson: This was a simple matter that there is a conflict of interest code for public servants. What happened was that then you say all full-time governor in council appointees are subject to the public office-holder's code. That's the one I administer. Since any ambassador is appointed by a governor in council, there was a great concern expressed in the 1980s that public servants were being subject to a code that no other public servant was subject to. So they eliminated all ambassadors.

    That created a problem in my mind, because we do have a number of ambassadors who are former ministers or who come from the outside world. All you should read into that language is that those ambassadors who are public servants will continue to be subject to the public service rules, whereas those who are not will be subject to the rules proposed here.

    Ms. Marlene Catterall: Okay.

    The one other thing--

    The Chair: Briefly, Marlene.

    Ms. Marlene Catterall: We've had several discussions you've probably heard about--the problem of the commissioner having to treat information confidentially and yet if the commissioner reports on an investigation he has to report publicly. How do we resolve that apparent conflict?

    Mr. Howard Wilson: I think these can be balanced out. I've had some certain experience. The question of the protection of the information that is held in my office is absolutely paramount. The Privacy Act does apply. No one would convey anything to my office if they had any worry that it was going to leak out onto the table. But I have been able to carry out inquiries and deal with the facts that had to be dealt with without infringing the privacy of the individuals.

    The Chair: Yvon Godin, and then Carolyn Parrish.

[Translation]

    Mr. Yvon Godin (Acadie—Bathurst, NDP): Thank you, Mr. Chair. Hello, Mr. Wilson.

    In discussions this week with university professors, we talked about the fact that, currently, only a member of parliament may file a complaint against another member. The public may submit a complaint, but only through a member. The professors—I do not know if they were unanimous on this point— thought that the public should be allowed to file complaints themselves. I would like to know what you think about this.

[English]

    Mr. Howard Wilson: If the proposal is that only members of Parliament make a complaint, the position in the provinces is mixed on this. Some of them do provide for complaints by the public as well as by members; some only by members. Two of the provinces told me that even though they do provide for complaints by the public, they've never had one. It has always been referred by a member.

    There is a requirement here to ensure that the complaint is well documented, subject to an affidavit, is not frivolous, and is not being done for partisan purposes. So as you start to get involved in this, having it restricted to members of Parliament is not going to be a serious limitation on the ability of a member of the public to convey a concern to an MP about this problem. This is part of your day-to-day work--not on complaints, but what do your offices do? You get complaints from constituents about a whole variety of things. In your office, one of your most important responsibilities is to take that up on behalf of your constituent and advance it with the department, with the minister involved.

    In a way, this is perhaps not a lot different, except that it does have the advantage of allowing you, as a member of Parliament, to ensure yourself that it is a serious matter and should be referred. So it's a bit of a discipline of ensuring that we eliminate frivolous complaints, it seems.

Á  (1155)  

[Translation]

    Mr. Yvon Godin: You stated that you do not have a problem with the question concerning spouses, but I would like to know, however, how important you think it is to include this clause rather than leave things to chance.

    Sometimes, a loophole could be used. In my opinion, if this is not included, we are exposing ourselves to serious criticism. Keeping in mind that this was requested, I would like to know what you think of this contingency.

[English]

    Mr. Howard Wilson: I suppose, from a purely political point of view, you're going to have to find some pretty compelling reasons why you would not have it in a code here, whereas it applies to ministers and parliamentary secretaries and in virtually every jurisdiction in this country. But there is another positive reason for including it, and that is because you, as members, are exposed to allegations that you are taking a position on a particular piece of legislation, voting on a matter not because you think it's in the public interest but because it will advance the interests of your spouse. This is a real issue. So I have always felt that by having the disclosure of spouses made, you are thereby protected from these allegations.

[Translation]

    Mr. Yvon Godin: Thank you.

[English]

    The Chair: Carolyn Parrish, and then Rick Borotsik.

    Mrs. Carolyn Parrish (Mississauga Centre, Lib.): Thank you very much, Mr. Wilson. I notice you've been here through most of these hearings, and I appreciate your presence, because I'm going to ask you a couple of questions that I asked our smug little professors the other day and didn't get any answers to.

    Before I do, I would like to comment on something. First of all, I think you're doing an incredibly good job. I think you've been abused in the media a bit, and it's not fair, and I think you've come through it very well.

    The code of conduct that was presented by Milliken and Oliver was a blueprint that was considered in a delightful vacuum. I was on that committee, and there were no supposed scandals. Everybody was fairly content with trying to wrestle the budget back into order, and there were no scandals. Therefore, that would have been the best time to bring that forward. Now we look like we're reacting to what has gone on lately, or what supposedly has gone on lately, so I'm kind of disappointed, but things seem to take a while to get done around here.

    As far as spousal declarations go, there was one suggestion made by one of the professors that we modify that section and not have them go through all the same declarations as the person who is a member of Parliament, but in fact come up with a couple of categories that are particularly controversial. I'd like you to comment on that, because I personally favour that. I think we should have spousal declarations.

    When I was parliamentary secretary, it was amazing to find out how little my husband had, but he had to do his declarations. It was quite reasonable, and we had no problem with it.

    The second thing I want to ask you is the same question I asked the professors. What happens with party voting? In the States, it's really easy, because everybody votes there as an independent. But here we vote, on certain issues, as a party block. How do we adjust declarations of conflict based on that?

    If you could comment on those two, I'd appreciate it.

    Mr. Howard Wilson: I'm not sure. I heard the suggestion of only certain categories.

    The issue for spousal disclosure becomes particularly acute when the spouse is pursuing his or her own career. You saw the allegations made about the chairman of the finance committee. These are the kinds of things that are a reality, and an easy way of dealing with it is disclosure.

    I'm not sure. I think the elimination that is proposed here covers off most of the benign stuff, and I think a disclosure would be found in practice to be relatively painless, but with some particular advantages to both sides.

    But my own experience also, and having worked with a great number of you people over the years since 1994, is that there is always within the family unit a basic understanding about the stress that is put onto day-to-day life if one of the individuals is a politician, just in terms of the travel, the hours, and so on. So it seems to me that there's a high degree of awareness of these issues, which is why I think I have never experienced any problems since 1994 and why I get calls from spouses all the time, not from the minister, but where the spouse has an issue that he or she wants to take up with me directly. But there has always been strong support. So I think it is important.

    On party voting, there will undoubtedly be issues where your outside activities may create a problem. We have had this at the cabinet, where ministers have had to withdraw from certain cabinet discussions simply because of the nature of their interests. Their ministerial responsibilities were then carried out by perhaps the junior minister in their portfolio or, alternatively, another minister entirely. This has worked very satisfactorily.

    From a practical point of view, I think this probably won't occur all that often, but to the extent it does, it shouldn't, in my mind, create a major issue for your responsibilities as a parliamentarian.

  (1200)  

    The Chair: Rick Borotsik, then Ken Epp, and then there might be time for some very short interventions, if colleagues have things they want to wrap up.

    Mr. Rick Borotsik (Brandon—Souris, PC): Thank you, Mr. Chairman.

    I'd just like to correct one thing. Carolyn had indicated that there has been some abuse in the media. I don't believe the abuse is about you personally, Mr. Wilson. I believe it's about the rules you have to follow. It's about the reporting requirements you have. That's perhaps where the abuse came, certainly not from a personal indication as to the way you did your job. You were just doing your job as was directed.

    The reason I say that is because, as I see this draft, it lends itself to that similar type of abuse, not so much with the parliamentarians--and I will talk about that--but certainly with the reporting system that's identified in the draft, where in fact the commissioner will report to the Prime Minister on the executive branch.

    I have a problem with that because, Mr. Wilson, as I see it--and by the way, I like the code of conduct, I've always liked it, and I think it should be done properly--it needs transparency, it needs accountability, and it needs credibility. When you ask for those three things, it has to be a public process, as opposed to a non-public process.

    Can you explain that to me? You've used the, I won't say excuse, but you've used the comment, constitutional requirement from the executive branch to the Prime Minister. Can you explain to me why that has to happen that way? I would just as soon have a much more transparent process.

    Mr. Howard Wilson: I think there is a considerable amount of transparency here. Let's be clear on what the perception has been and then what the reality has been.

    There has been a perception that because my reporting relationship is to the Prime Minister, I will not be able to carry out my responsibilities. Well, I can say, and I've said this, I have never been interfered with either by he or his office, or by the Privy Council Office, in terms of what I have to do. But we have recognized that there is nonetheless a perception that if I do something that is not agreed to, then I can be out on the street. I've made the point that I'm a public servant, which means I can't be fired, at least for that.

    But the improvement that I see in this is to formalize the appointment process so that a person is going to be appointed to a fixed term and cannot be removed from office without a joint reference by Parliament. It seems to me that has the reality of answering the question that the person is insecure in their job and will do everything they can to please their boss.

    My view has always been that you actually don't please anybody--and I think the Prime Minister agrees with me--by trying to tailor your advice to what you think the tea leaves are. You start to lose your moorings, and it becomes almost impossible to do that.

  (1205)  

    Mr. Rick Borotsik: I'm going to jump in here, Mr. Wilson, and I'm going to do it because I want to segue, and it's a great segue because my last question here is about the appointment process itself. I have some concerns with that because the draft indicates the appointment will be done with the consultation of the other parties.

    You've heard, Mr. Wilson, some of the witnesses say that in some cases the appointment is made by the parliamentarians themselves. In some cases, two-thirds is required by those parliamentarians. If I'm going to depend on an individual, who I'm going to have to respect, who I'm going to have to have my faith in confidentially, I would like to be a part of that process. How do you feel about the appointment of this individual?

    Mr. Howard Wilson: The original conception, I believe, was always that it would be the original Oliver-Milliken position--and you could ask them this in a few minutes--that Parliament could appoint the individual. I think the parliamentary commissioners from the provinces said this was essential, in their view, that they did not feel they could carry out their job unless they knew they had the confidence of all parts of Parliament. I think that's understandable. The commissioner may not have that confidence a month later, but would want to have it.

    Mr. Rick Borotsik: So are you saying that you, being an individual who has been in that position, would much rather be appointed by the parliamentarians?

    Mr. Howard Wilson: My name was put forward by the Prime Minister in 1994 to the two parties that were then in the House of Commons, the Reform and the Bloc Québécois, both of whom agreed with my name.

    The proposition here that was passed out in June was that a name would go forward to the five parties, and so consultation again.

    Mr. Rick Borotsik: Very quickly, would you prefer to have the--

    Mr. Howard Wilson: Let me just finish here, because this is something that you will.... I can sense the atmosphere here is that by combining the two positions, the two functions, there is this issue that has come up that would not have been an issue with the original June proposals of two different individuals, because the Prime Minister at the end of the day has to have confidence himself in whoever it is who is going to carry out the responsibility for his code of conduct for the executive branch. But I understand your concerns, that everyone of you want to feel that the person who is going to be looking after your needs is one you can strongly support.

    Mr. Rick Borotsik: That's not an answer.

    The Chair: Comment through the chair. Do you want to comment? That's all the time you have.

    Mr. Rick Borotsik: Yes or no, would you prefer to have him appointed by members of Parliament?

    Mr. Howard Wilson: Let me come to a point I can answer, and this is that questions have been raised about the possibility of this individual carrying out these two distinct responsibilities. That is a question of substance, and I think if you examine that and were to come to a view, the other probably solves itself.

    The Chair: It's Ken Epp for a normal intervention. Then, as I mentioned, perhaps one or two comments if members have them--I have one--and then we'll conclude.

    Ken Epp.

    Mr. Ken Epp (Elk Island, Canadian Alliance): Mr. Chairman, what pressure you put me under. I'm supposed to be normal.

    Mr. Wilson, we're really glad to have you here. I have a very important question.

    Over the last years when you've been doing your work, and I believe as honourably as you possibly could, you were reporting to the Prime Minister, who then chose what it was that he made public, or what actions he took. In some cases, he took no actions, especially on actions with respect to himself.

    The Chair: Ken, are you coming to the topic? I'm wondering.

    Mr. Ken Epp: The question is very simple. The proposed legislation here now says that for any allegations, and any hearings and investigations, with respect to members of Parliament, not cabinet ministers, the hearing may be public, and the reports will definitely be made public, in fact, simultaneously on four or five different fronts. That's great, I have no problem with that, because if I'm charged with something I want to be vindicated publicly and I want the evidence to be out there publicly, if in fact I'm innocent.

    Now the question is, why would we contemplate putting in legislation that cabinet ministers, which is where all of the problems have arisen in the last number of years with respect to ethical questions, should still continue to be dealt with by the old method, that is, the commissioner reporting to the Prime Minister, who decides if and what he does and if and what he makes public?

  (1210)  

    Mr. Howard Wilson: But in fact that's not the case. The legislation that is proposed, the code, says with respect to the Prime Minister's code, the ethics commissioner can receive a complaint about a minister from a member of Parliament, and for that investigation, when complete, the report will be forwarded to the minister being complained about and to the member who made the complaint, and it would be made public. That is very explicit language. That is a change from the past.

    But the guy has to be available to give confidential advice to the Prime Minister on a pending issue, and I have done that. Sometimes they do become public, like rules on crown corporations. I put proposals to the Prime Minister and he ultimately accepted them.

    Mr. Ken Epp: The question, though, is that we seem to have two different standards. I notice, for example, in this legislation that with respect to individual MPs--ordinary MPs, non-cabinet ministers--we're to be discreet in anything we do that directly or indirectly assists a private interest. That could basically cover everything I do.

    I'm in trouble here because obviously the things I'm going to be promoting and voting for are going to affect my family, among other things. And yet when it comes to the code for ministers, it's much less stringent. Why would that be?

    I think the problem Canadians want to have solved is the problem with respect to the influence cabinet ministers have, because they're the ones who let the contracts and they're the ones who actually pull the strings on what legislation is going to be passed.

    Mr. Howard Wilson: Let's be clear on a very important point, Mr. Epp, and that is--

    The Chair: And let's go through the chair--if both of you would, and Ken, if you would too.

    Mr. Howard Wilson: I'm sorry. My apologies.

    I think it's terribly important to understand. I'm not going to speak to the specific provision that was raised about the code, but rather, as I understand this matter, every parliamentarian will be subject to the provisions of this proposed code. So that will include every minister, every parliamentary secretary.

    As well, however, there is nothing preventing the Prime Minister from establishing more onerous rules that would then apply to members of the executive branch; that is, to ministers and parliamentary secretaries.

    So the ministers, as I understand this, will have the same disciplines applied to them, through the code, as parliamentarians, as everybody else. But their greater powers, and the difficulties that can create for conflict of interest, are recognized by the rules the Prime Minister places on them respecting outside activities, and investments, and so on.

    Mr. Ken Epp: Would you comment on this word “indirectly”? Maybe we should consider as parliamentarians when we pass this code actually taking that word out, because it's so broad and so sweeping that the office of the ethics commissioner might be totally swamped, continuously, with people making allegations under that.

    Mr. Howard Wilson: I can't comment on the substance. I haven't studied it in depth, but I would think you have an opportunity and a few minutes to in fact pose that question, Mr. Chair, to the two co-chairs of the previous committee.

    Mr. Ken Epp: The next question I have has to do with the issuing of complaints. There are two models proposed here. One is that the public can go directly to the ethics commissioner; the other one is that all must come through parliamentarians. There is, of course, that problem we face potentially because we live in such an intense political, adversarial, and partisan environment that this could be abused even notwithstanding that in other jurisdictions it hasn't happened.

    What about cabinet ministers? When we have tried, in the present regime, to bring to the attention of the ethics counsellor issues that have to do with cabinet ministers, we haven't been able to get a satisfactory result. Is it your view that under this new regime those frustrations we have had in the last five to six years--because basically your reports have been protected by a firewall--will be corrected by this proposed legislation?

  (1215)  

    The Chair: Answer briefly, Mr. Wilson, if you would.

    Mr. Howard Wilson: Mr. Chair, much of what I have done has been publicly declared, and it can all be found on my website. The Prime Minister announced formally, however, that complaints could be made in writing to my office about ministers, that I could undertake investigations. I have considered this to be a reality as of that point in time. The legislation will enshrine this, but I am now operating on the basis that this is in existence.

    The Chair: Colleagues, we have two or three minutes.

    Mr. Wilson, from my own point of view, I heard what you said about the involvement of spouses, and I agree with it. My personal experience as a parliamentary secretary confirms that. In terms of spousal disclosure, have you any thoughts about whether the disclosure should be exactly the same as the spouse who's an elected member, or should it be partial disclosure of some sort, as one of the witnesses the other day explained was the case in the United Kingdom, or should it be essentially a private disclosure? Have you any thoughts about that?

    Mr. Howard Wilson: Yes. My personal experience is with the conflict of interest code and there it is a private disclosure. It's done in a way in which I am in a position to provide advice to the minister as to areas where he or she might have to avoid taking action. It's worked very satisfactorily. I don't have the experience of the provinces, where they have a more public process.

    The Chair: Thank you.

    Is there anyone else?

    Colleagues, on your behalf I thank Howard Wilson for being with us today and thank him for his interest in these proceedings. Your testimony has been very useful, Mr. Wilson, and we particularly appreciate the documents you've prepared for the committee.

    Thank you very much. Feel free to stay or leave if you wish. We have a small item of business here.

    Mr. Howard Wilson: Thank you.

    The Chair: Colleagues, you've all seen the budget. You've had time to read it during the meeting. This is the budget for the operation of the committees. You see we're not a committee that travels very widely. We did once go to the car wash on Bank Street, you may remember.

    It's in great detail here. It's to bring witnesses here and other things. Would someone care to move the motion? I'd like to get it moved.

    So moved by Derek Lee.

    Is there any discussion?

    Ken Epp.

    Mr. Ken Epp: I have one quick question on these budget amounts. I think in the case of these people who came last week, presuming they booked their flight on relatively short notice, I'm not sure those numbers are high enough at today's rates--

    The Chair: Good question.

    Mr. Ken Epp: I think what we should do is give a range but declare that the money reimbursed will be exactly for the amount of the bill submitted.

    The Chair: Thomas, do you want to comment on that?

    The Clerk of the Committee: Actually, one of them has come in at $3,417.32, so it's just under. Our financial officer in the committees branch does these figures for us, and in fact one of the others came in the other day and that person's was under what we've estimated, so--

    Mr. Ken Epp: The amount we actually pay, though, is the amount of the submitted bills?

    The Clerk: That's right.

    The Chair: That's right.

    Colleagues, is there any other discussion?

    (Motion agreed to)

    The Chair: Colleagues, may I say two things. First, I want to say to the Liberal side that we need the members for our subcommittee on riding boundaries. We expect the first submissions from the commission soon. We have everybody except the Liberal members.

    Second, this working lunch with the Speaker and Senator Oliver is in one of the meeting rooms adjacent to the parliamentary restaurant right now. I would strongly urge, as I said before, that this is an opportunity for us to speak to the authors, on a working basis, of the Oliver-Milliken report.

    The meeting is adjourned until next Tuesday at 11 o'clock.