[Recorded by Electronic Apparatus]
Wednesday, October 18, 1995
.1638
[Translation]
The Joint Chairman (Mr. Milliken): Order please. We are ready to start.
Our witness today is the Honourable Gregory T. Evans, Integrity Commissioner of Ontario.
[English]
Mr. Evans, I believe you have an opening statement. We want to thank you for taking the time to come to Ottawa today to give advice to the committee. We're looking forward to your testimony and to your statement.
Hon. Gregory T. Evans (Integrity Commissioner, Government of Ontario): Thank you very much.
[Translation]
Mr. Chairman, I regret to say that I'm not able to address the committee in both official languages. In order to remedy this problem, I will make my remarks in English.
[English]
Mr. Chairman, committee members of the Senate and the House of Commons, I'm the integrity commissioner appointed by a resolution of the Ontario legislature. The Members' Integrity Act of 1994 was proclaimed just a couple of weeks ago, on October 6, 1995. The Integrity Act replaces the Members' Conflict of Interest Act, which was proclaimed on September 1, 1988. Both acts apply to all members of the legislature, with certain additional specific sections applicable to members of the executive and former members. I have been the commissioner since the first act was introduced.
The purpose in the change of name from Members' Conflict of Interest Act to Integrity Act was to accentuate the positive and to eliminate the negative connotation that seems to be associated with the term ``conflict of interest''. It also reflects an increased jurisdiction.
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We are concerned with more than economic matters. The legislation deals with personal conduct and with customs and procedures that have developed the Ontario legislature over the years and that we have designated as Ontario parliamentary conventions.
Examples of these conventions include prohibition against the members of the executive appearing as advocates or supporters before any provincial agency, board or commission under their particular jurisdiction. It's a prohibition also against all members and their staffs from communicating with members of the judiciary with respect to matters before the courts and from contacting court officials or police officials with respect to matters involving the discharge of their official duties.
Legislation of this type usually includes a preamble. It's a motherhood statement setting out certain broad principles for the members in carrying out their responsibilities and a declaration by the legislature of the reasons for enacting the statute, which may be helpful in the interpretation of any ambiguities that may exist in the statute.
The two principles that should be paramount in all aspects of parliamentary government are openness and fairness. While the fostering of personal interest in a socially acceptable manner is a perfectly natural right that an individual is entitled to exercise, the problem arises when the right of one individual impinges upon that of another. The competing rights create a confrontation, which in everyday life is usually settled by mutual agreement of the parties or by consensual arbitration or by a judicial decision. This is not a conflict of interest position or situation in the accepted sense, because there is no ethical issue involved and no questions of morality arise.
However, when a person is elected or appointed to public office, that person becomes a trustee for the interests of others, and their interests may conflict with the private interests of the member. When that situation arises, the ethical member will resolve it in a manner favourable to the public interest, not because there is legislation but for the reason that his or her conscience, shaped by training, education and life experience, will direct a member to do that which is morally correct.
No administrative rules or legislative codes of conduct are required to monitor the conduct of an honourable member, nor will they restrict the misbehaviour of the member who lacks the requisite moral integrity.
The primary purpose of integrity legislation is not to promote high ethical standards among members, all of whom, we expect, having chosen to aspire to public office, possess the necessary moral qualities that entitle them to be referred to as honourable members in the legislature or in Parliament. Rather it's a standard against which the ever-increasingly cynical and suspicious press and public may measure their behaviour in office. It may not appease the more rabid critics, but it will serve as a source of satisfaction to the member whose conduct is under attack to know that it meets the standard by which his peers are also judged.
Members, whether appointed to the Senate or elected to the Commons, are in a position of trust. They represent the public and should expect to be held accountable for their actions. Accountability requires openness, and with it the right to investigate and to recommend penalties for violations of the public trust.
There is no quantifiable evidence that the level of public corruption has either risen or fallen in recent years. However, to believe it does not exist is not only to deny history but to overlook the many allegations of misconduct at all levels of government and the not infrequent convictions in the criminal courts when corruption has been detected and prosecuted.
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Government is big business, and like any other large corporation it requires a statement of corporate values or accepted conduct with an independent officer whose duty it is to make sure the walk matches the talk, because nice words without accountability no longer satisfy the public. A survey in the United States reported in the August 24, 1993 issue of The Globe and Mail that 20% of the 1,000 largest industrial and service corporations in the United States have an ethics officer.
Today's focus on ethics has its roots in the time when the United States defence industry was besieged with claims of fraud and overcharging the government. Insider trading scandals in stocks in Canada and the United States gave further impetus to the desire for ethical codes and legislation. Today it is a growth industry, and it is a fair assumption that there would not be growth if the need did not exist.
I do not believe that governments in the present climate of public opinion can long delay the implementation of stringent rules of ethical conduct for their members. In what form will these rules be set out - a written code, a set of guidelines or a statute where right and wrong is clearly defined?
For governments, in my opinion, a legislative enactment is the best method of achieving the desired result, which is public trust in those whose servants the members are. One of the advantages of legislation is that it is available for consideration by those aspiring to public office before they seek a nomination. They know what they're getting into.
Whom should the legislation cover? I do not think senators and members of the Commons should be considered as subject to identical legislation. Many sections of course could be applicable to both, but these are separate and distinct branches of government. Their entrance to government is different: appointment as opposed to election. The terms of office are different. Tenure is determined by different standards. The same penalties may not be applicable. They are separate and independent bodies with different responsibilities.
That doesn't mean a good part of the legislation could not be made applicable to members of both Houses, in the same way as our legislation distinguishes between members of the executive, the ordinary members and former members of the legislature.
A question that is frequently asked is: why should government back-benchers and opposition members be subject to many of the same restrictions as members of the executive council? That's a question that has always arisen because the people who were there when the legislation was passed are not necessarily the same people who come in and go to confession to me after the next election. I have to say, well, while you weren't there, you could have inquired and found out what it was all about.
Government back-benchers and opposition members should not be subject to the same restrictions as members of the executive, but I think they should be subject to restrictions. The short answer, in my view, is that they are members of Parliament and any misconduct in which they may be involved reflects not only on the individual but also on his or her political party and on the institution of Parliament.
It is Parliament, irrespective of the political stripe of the governing party, to which the public criticism and mistrust is directed. It's true that your own constituents know who you are and know your political affiliation, but when you move a couple of counties away, they're never sure just who you are. So when there's a comment about a member of the legislature, a member of Parliament or a member of the Senate, forget about the individual. It's just Parliament, Senate or government that is to be criticized.
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Back-benchers also serve on committees and as chairpersons of committees to which proposed legislation is referred. They have the opportunity to provide considerable input and draft legislation. In the discharge of their duties to their constituents and the public generally, they are in contact with many government agencies, boards, and commissions, advocating for funding for various organizations. One would be naive not to appreciate that they are frequently targets of lobbyists seeking to advance a client's interest.
The question of whether spouses should be required to disclose has been a matter of some concern. Spouses, particularly women, say ``My husband was elected. I am not the member and I do not see why my privacy should be invaded.'' As far as I am concerned, in Ontario we do not require a spouse to appear personally for disclosure. But we do expect the member to have a general knowledge of spousal assets and liabilities. It would be important to know what the family assets comprise if the member is virtually bankrupt, according to his disclosure, and the family lifestyle is far removed from the poverty level.
If the spouse does not wish to inform the member, I note when filling out the public disclosure statement that information as to the spouse's assets is not available. When this appears in the public press - and they just love that - the curious neighbours assume the spouse has a Swiss bank account, a yacht in Fort Lauderdale and a condo at Whistler. The next year invariably full details are provided by the spouse.
Who should be a commissioner? I believe the commissioner should be appointed by a resolution of the House of Commons, or however. I am appointed by a resolution of the legislative assembly, and there are half a dozen members in that so-called select group. You have the provincial auditor, the ombudsman, elections finance, the privacy commissioner and the environment commissioner.
Such a process does provide for the independence necessary to discharge the duties of the office. The appointment, I suppose, should be for a minimum of five years, so you overlap one election with the next one - I think that's quite common. I assume that's the purpose of it or one of the purposes of it - and be subject to renewal.
There's no reason why a member of the public service, appointed by a resolution of the House of Commons, would not be suitable for that position. I think you could take him out of where he is and put him in with a little more authority and visibly more independence.
That's about all I have to say in the remarks. I was told to keep them a little short, and I tried to.
The Joint Chairman (Mr. Milliken): Thank you very much, sir, it was most interesting.
I wonder if I could ask a question of you before I turn the floor over to my colleagues who are on the list. Others may wish to join that list of people asking questions.
If you detect a breach of the provisions of the code - for example, there is non-disclosure by a member - what recourse so you have? Do you report the matter to a committee of the legislative assembly to deal with the matter, or what?
Mr. Evans: I deal only with complaints from the members of the legislature. Other commissioners take complaints from the public, but we do not. The reason for it is that we have a small office and we plan to keep it that way. If anybody comes in with a complaint, I tell them there are two opposition parties ready, eager and willing to take this on if it has any merit to it.
If the complaint comes in, then there is a process where it's made known to the party against whom the complaint is lodged. A copy of the complaint is served on the Speaker of the legislature, so he is aware of it. Then we get into looking at how it happened. We call them in.
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Sometimes people involuntarily miss things. Everybody knows what are their debts, their liabilities, because they're after you every month, but many people forget what are their assets. These are the ones we check up on.
When we do find out that there's something, we have to ask ourselves if it was intentional or just an oversight. If it's an oversight, we don't do much about it. We just collect it. Then we publish it in the next public disclosure. If it were otherwise, then we'd have to take some action. If we thought it was a deliberate falsification, then we would take some action.
The Joint Chairman (Mr. Milliken): What action?
Mr. Evans: We're entitled to recommend certain penalties to the legislature. We do not impose penalties; we just recommend them. You can go so far as to declare the seat vacant.
Now, I think it would be a frosty Friday before a commissioner would do that unless he had an army behind him, but it's really not up to the commissioner to do more than make a resolution. If he makes such a resolution, the House either adopts it or rejects it. They can't change it.
The Joint Chairman (Mr. Milliken): So you have the power to propose a motion in the House.
Mr. Evans: No. I just make a report, and that goes to the Speaker.
The Joint Chairman (Mr. Milliken): Then someone has to move a motion to concur with the report or to deal with the report in some way.
Mr. Evans: Yes, that's right.
The Joint Chairman (Mr. Milliken): Thank you.
Senator Gauthier, you're first on the list.
Senator Gauthier (Ontario): Thank you, Mr. Chairman.
I'll just follow up on that. You have a public disclosure statement. I've never seen one of those. Do you have one with you, or could you send me a copy of one? What does it look like?
Mr. Evans: Yes, we can send you one. We're just doing a new one because of the new act.
Senator Gauthier: How much information is on this public disclosure?
Mr. Evans: Very little. It's the most uninteresting reading I know of. There are no values put in; that's the first thing. We'd say that you have a house and a recreational property. Now we don't even name the children. At one time I didn't think there was anything wrong with that, but some woman was very exercised about putting the names of the children - now we just number them, 1, 2, 3 - because somebody might kidnap them. I had nine, and nobody ever tried to take mine as far as I know.
Senator Di Nino (Ontario): What column do you put the children in, asset or liability?
Mr. Evans: Speaking for my own self, I don't know when they ever get off the liability column.
Senator Gauthier: Mr. Chairman, that's not on my time, I take it.
The Joint Chairman (Mr. Milliken): Don't worry, Senator, we'll give you lots of time.
Senator Gauthier: In reading your paper, Your Honour...I guess you're a judge for life, aren't you?
Mr. Evans: It's like a Kentucky colonel, they tell me, with the Americans. But no, I don't think I'm a judge.
Senator Gauthier: You're not going to insist on my calling you Your Honour.
Mr. Evans: Professor McWhinney there will straighten you out on that.
Senator Gauthier: You seem to make a difference in your paper between a House of Commons member and a Senate member. I can understand you, coming from a provincial government or legislature, not having many great difficulties, but could you explain to me what is the difference in your mind between an elected and a nominated legislator in terms of the code of deontology, or whatever you want to call it?
Mr. Evans: We're now calling it the Integrity Act.
Senator Gauthier: Okay, integrity.
Mr. Evans: I'm not sure there are too many differences, but one is elected to start with.
Senator Gauthier: I know that.
Mr. Evans: I'm sure you do.
Some hon. members: Oh, oh!
Mr. Evans: He's been through it; that's why he's so well aware of it.
Certainly there's a difference in your tenure. You're there until 75, as I was, as a judge, but a member of Parliament or of the legislature retires, or he is retired, one way or the other. So in that sense it's a little different.
I'm not a political scientist. I didn't take that course at school. I don't think we had it. But I think there's a difference. I'm not sure that you sit on too many Commons committees. Maybe you do, I'm not sure; I just didn't think you did. So I don't think you have the same input into these committees as a member of the House.
Senator Gauthier: I just want to quote you from page 3, where you say:
- I do not think that Senators and Members of the House of Commons should be considered as
being subject to the identical legislation.
- That caused me to wonder what the heck you meant.
Mr. Evans: I think you can have the same piece of legislation. A lot of the requirements for the members are the same for senators or for members -
Senator Gauthier: The principles, you mean.
Mr. Evans: Yes.
Senator Gauthier: But you said most of those principles are motherhood anyway.
Mr. Evans: That's any kind of a statement with which you preface legislation. I always think it's kind of motherhood.
But you have a little different position. I always hesitate to say what somebody else has said about it, and I read books and so forth, but there seems to have been a great lot of confusion as to the lobbyists in the Senate as opposed to the lobbyists in the House of Commons.
I don't know how accurate that lady's book was. All I know is that I don't think anybody has sued for defamation of character. I would think some of us must have been defamed in that, somehow or other. It's the same thing in...
So I thought maybe there was something there, and I don't know whether one is entitled to say that the senator should lose his seat.
Senator Gauthier: Why not? I just think there's a big difference. The House of Commons is a confidence chamber. The government has to have the confidence of the House of Commons to remain in government. It doesn't have to do that in the Senate. It doesn't need the confidence of the Senate to govern.
Mr. Evans: They're there forever.
Senator Gauthier: Is that a point -
Mr. Evans: That might be one. I hadn't given too much consideration to it, although I did think their tenure was quite different.
Senator Gauthier: There's the fact that senators may or may not be members of boards, for example. In your paper you say ministers, or those who occupy positions of trust, should not be members of boards or corporations...arm's length from the government and all that.
Mr. Evans: But senators, I understand, do belong.
Senator Gauthier: I don't.
Mr. Evans: Many years ago when I was a young judge I recall that someone was talking about someone who was on the banking committee of the Senate and was a director of the Bank of Montreal. That didn't look right to me. But that was a situation that I believe -
Senator Gauthier: There would be a conflict of interest, in your mind, and in my mind also, if somebody did that. Is that right?
Mr. Evans: Yes.
Senator Gauthier: In our code of deontology we'd have to say to senators and members that they can't be a director or a president of a corporation and at the same time pass legislation affecting that corporation. Is that what you're saying to me?
Mr. Evans: Yes, that is so.
Senator Gauthier: Can I ask one final question? As commissioner you wear several hats. You're administrative, you're advisory and you're potentially an investigator.
Mr. Evans: And judge.
Senator Gauthier: Which one is the most important, to you?
Mr. Evans: To me, the most important one is the education one. That got neglected. I think you have to educate people to the problems they're running into. We do have that now. Just recently the PC caucus brought in all their constituency people to be brought up to date on this.
We send out the reports every year to the constituency office. We ask them to call in and give us any questions they have. We're really getting a flood of them from these new members.
I think that is helpful. An over-enthusiastic constituent can get the member into a lot of problems.
Senator Gauthier: Thank you, Mr. Chair. I'll come back in the second round.
The Joint Chairman (Mr. Milliken): Mr. Boudria.
Mr. Boudria (Glengarry - Prescott - Russell): First of all, I want to join others in welcoming His Honour.
I note - and this is a theme Senator Gauthier touched on briefly - that you felt there was perhaps justification for having different rules, or perhaps not different rules but different standards, applied for senators versus members of the House. That's not really the subject I want to address except that it's a tangent, in a way.
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Shouldn't there be a different standard between office holders and regular MPs - in other words, back-benchers - for lack of a better name? Should ministers and parliamentary secretaries, commonly referred to in our books as the public office holders, who now are subjected to rules, have more stringent tests to meet than does my colleague here, or me? I'm not a minister under our system.
Mr. Evans: Yes, there are different provisions. In our act we have provisions applying to all members of the assembly, and then we have provisions applying to members and former members of the executive council. So we do have differences.
There are certain restrictions on what they can belong to. A member of the executive council, for example, cannot engage in the employment or the practice of a profession. It cannot engage in the management of a business carried on by a corporation. It cannot hold an office or a directorship unless that holding is associated with his duties or the office or directorship is in a social club, religious organization or political.
Those are some of the restrictions imposed upon them. There are more. There certainly are more restrictions placed on them.
Mr. Boudria: Again, in our system you would assume that would be equally true.
Mr. Evans: Yes, I would think that could be done.
Mr. Boudria: The other question I wanted to ask is, are you able to make advance rulings? You were referring to source of satisfaction, education and so on. The Quebec equivalent to your position, roughly, is called the jurisconsult. The jurisconsult can be approached. He - and I say ``he'' because the incumbent was a he - could give an advance ruling where a member, unsure as to whether or not something is a conflict, would say, ``Your Honour, is this all right, and if so, will you put it in writing?'' That opinion could then be used as comfort.
Mr. Evans: We do that all the time. It works this way. If something is an emergency, they can call up and we'll give them an opinion right over the phone. But we require that this request be placed before us the next morning, by either mail or fax. Then we will confirm it by fax or by mail.
This is what we're inundated with now. Some of them are so afraid that they're... We're really getting flooded with inquiries. But that's what we're there for. They are arising because of the seminar we had for their group.
Mr. Boudria: The next thing I'm going to do is touch on a particular case. I don't expect you to answer about the case or why you ruled on it - if you did. For the record, on what is called the Gigantes case, did that have anything to do with your rules?
Mr. Evans: No. I should like to explain. After the NDP government came into power, the premier decided he should impose guidelines. They were superimposed on top of the legislation but they could only be applicable to his own members. The premier can't make guidelines for the opposition. That's where they got into a lot of trouble.
I was asked about those guidelines at that time, and I said they were Draconian. If they enforced those, they'd only get candidates coming from mental institutions and jails. I didn't know at that time that it was part of Hansard or I would have been much more careful in my comments. I guess I should be today, too. So that put a real strait-jacket on them.
The Gigantes affair... To begin with, she never asked us about it at all until she had dug the hole. Once they do that, all you can do is give them a shovel to dig deeper, I guess. There wasn't anything we could do.
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My own view was that what did happen.... If the complaint had been laid under the act...I did not think, from what I knew of it, it was that important. Mind you, I didn't get into all the details, except for what I read in the paper, and I suppose I discount that by 25%.
Mr. Boudria: I won't go too deeply into the details. As a local member, the opinion I gave to some reporters the next day...I thought of about 25 reasons why that particular member should resign, but that wasn't one of them. Essentially that was a member doing her constituency work, and I thought that was a rather unusual reason to be forced to resign.
You're saying then that the norms against which she was measured weren't yours -
Mr. Evans: No.
Mr. Boudria: - that supplementary set of rules, which were the premier's guidelines.
Mr. Evans: He recognized after a few months that he would like to get rid of them. It's kind of hard to pull them back after you've given them.
I should tell you how we came to get this set of rules. That may be of some assistance to you.
I came before the administration of justice committee in Toronto in our legislature. We got three reports, one from each party, and they weren't of any help. Following that and following the rhubarb over the guidelines, I went to the premier and said that I did not think integrity belonged to any one political party and that probably we should have a meeting of the three leaders, which we had. I asked them if they would appoint one person, not necessarily a member of the legislature. We wound up with one member of the legislature and two lawyers, one representing the Conservatives and one the Liberals. We met for about two years thrashing this out.
Those three would go back to their caucus or a committee of caucus. They worked in a small group first and then in the whole caucus. This is how we arrived at a conclusion. This thing therefore went through the House without any difficulty.
We were quite happy to have a member of the House on the committee. At first I thought maybe it would be better if we were from the outside, but most of us would not have understood what is going on in the House.
Mr. Boudria: Is there a lesson for us from that particular incident in terms of making rules practical - I'm not trying to put words in your mouth - that instead of concentrating strictly on holiness, if I can refer to it that way, to ensure that the rules we have are practical, that once we have them we do not put MPs in strait-jackets where they can't even do the work for which they were elected, which is defending their constituents?
Mr. Evans: I agree. I think also you have to give a certain amount of flexibility or discretion to the commissioner or whoever is appointed. When our first act came out the bureaucrats in the Attorney General's office said that values had to be disclosed. It was not my view - there was a little ambivalence in the legislation - so I said I wasn't going to disclose the values. There was some question about whether I had the discretion, but I thought I was going to exercise unknown discretion anyway.
As those 130 people came through, I asked each of them whether they thought when the legislation was passed they would have to disclose their assets - how much they owned and how much they owed. The answer, except for two, was never. One said he had nothing and didn't care, and the other said he didn't plan to run again.
You have to have it fair, but you have to have it flexible too. We hope that we have built something into this that works.
Mr. Boudria: Thank you.
Mr. Evans: I should point out something else too. When the NDP came into power the Minister of Labour had 700 files for the Workers' Compensation Board, so I had to tell him that he couldn't be Minister of Labour and keep the files. I told him it was his choice, not mine, but he had to get rid of the files if he was going to stay in that position.
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The Joint Chairman (Senator Oliver): He was a lawyer, you say.
Mr. Evans: No, he wasn't a lawyer.
Mr. Boudria: No, he was an MPP.
Mr. Evans: He was just appearing before the board.
Mr. Boudria: I have been a member of the Ontario legislature. It's not obvious to everyone, but a big part of an MPP's job is to appear before the Workers' Compensation Board to defend individual cases. That's not obvious to others, but it is to me because I've done it so many times.
Mr. McWhinney (Vancouver Quadra): On a non-remunerated basis.
Mr. Boudria: Of course.
Mr. Evans: He wasn't getting paid for it. But some of them were there so often that an outsider coming in would think they were members of the board.
Mr. McWhinney: Maybe they did themselves.
Mr. Evans: Some place or other I think every member of that legislature would welcome some ruling that they didn't have to go before the Workers' Compensation Board. It takes half their time. The cases are dead and buried, but every time a new group comes in or there's a new member in the constituency, these cases get resurrected. Some of them have been talked about for three years.
We have said that a minister and his parliamentary assistant cannot appear before any agency, board, or commission that falls within the jurisdiction of his ministry. That's how we handle that.
Mr. Epp (Elk Island): Sir, I would like to thank you for coming here. I'm just noticing your curriculum vitae, which got my attention. You were admitted to the bar the same year I was born. I admire your energies. I sometimes feel I lack it at my young age.
Mr. Evans: Having nine children kept me busy.
Mr. Epp: Yes, I noticed that you had nine children. There was a legislator in Alberta, the leader of the Liberal Party, who also had nine children. He said that when he was a farmer he used to go to bull sales and that some of the guys in the auction ring were looking at him more than at the bulls.
Getting back to some serious business, this integrity code you have right now in the province -
Mr. Evans: Legislation.
Mr. Epp: It's legislation. How was it determined? Obviously it was passed by the legislature, but what process did they go through to produce that document?
Mr. Evans: That's what I was trying to explain a while ago. When we tried it with a whole group, it didn't work, so we got three appointed, one by each leader of the three parties. We met - that is, the three, myself, and my executive assistant - and hammered it out. It took us quite a while.
Mr. Epp: It was sort of a little triumvirate that came up with the first draft.
Mr. Evans: Yes.
Mr. Epp: Did it go anywhere beyond that before you took it to the legislature?
Mr. Evans: Yes, it went to those three. As I understand it and as we suggested, each of them had a committee of about three or four in the Liberal caucus, Conservative caucus, and NDP caucus, and they hammered out things there. Then they'd come back and we would compromise. Then those three or four they talked to, plus the one who was appointed, would talk to a larger group in the caucus. At times I believe they talked to the whole caucus. That's how we arrived at this.
Mr. Epp: Now that it's in place, do you alone manage it and enforce it?
Mr. Evans: Yes.
Mr. Epp: You don't have another subcommittee that works with you now?
Mr. Evans: No.
Mr. Epp: I also have a question with respect to the autonomy. You mention that several times in your report, and it's stated in the legislation. I'm really curious about this, because I think as a judge you were appointed at one time by a government. Was it a provincial government or a federal government?
Mr. Evans: I was appointed by the federal government. I was there twenty-five years.
Mr. Epp: So you are independent in the sense that there was nobody ever, past or present, in the provincial government who awarded you with an appointment to the bench.
Mr. Evans: Never.
Mr. Epp: How would we handle it in the House of Commons if we were, for example, to ask someone of your stature to be our ethics commissioner and he or she had been appointed previously by one of the parties that from time to time had power in here?
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Mr. Evans: I suppose if you follow that to a logical conclusion, you couldn't have anybody appearing in court either. You have to trust the person, that's all.
Mr. Epp: What method would you recommend we should put into place, though, as the choice of the ethics commissioner or counsellor or arbiter?
Mr. Evans: Unless you're going to have everybody - that is, I would say these three or four people - agree upon somebody, you would have a committee, I would think, of maybe larger than three or four, but maybe three or four from each party, run through a list of names that would be supported and then you would decide on that one and recommend that then to the legislature.
Mr. Epp: I thank you for that answer. I think the most significant thing this committee can do is to give correct direction to the legislation on the appointment of an independent person to be the judge of these matters.
The Joint Chairman (Senator Oliver): [Inaudible - Editor] ...Liberal bench.
Mr. Epp: I'm not particularly partial to people in that profession, but I certainly wouldn't specifically discount them. If they have other redeeming qualities, we would overlook that part.
I want to ask you this specifically. In the legislation there's a prohibition on receiving gifts. Then it goes on to say that if a person does receive a gift, it must be declared. Can you explain that to me? That's a contradiction. You say on one hand that a person cannot receive a gift, but if he does... I think I partially know the answer, but I'd like to hear your explanation of it.
Mr. Evans: You don't get a gift because you're a member of the legislature. Just because you're elected, you're not entitled to get gifts. In the municipal councils - and many of these people come from municipal councils - and in many of the municipalities, there were troubles. Somebody would call up before Christmas and tell you to leave your garage door open. You'd go home and find two turkeys and some booze. That has happened, and there were several prosecutions of it. Some failed, some were convicted and some went to jail.
We had to strike some average. What were we going to do? If you go out to give a speech somewhere and they want to give you a gift, in the discharge of your duties... That's when you get the gift, not because you're just walking by. You get a gift because you're doing something in the discharge of your duties as a legislator. Then, if they give you a gift - and we avoid -
I see the whole 130 of them. We tell them all not to take cash in an envelope, because they may be given $100 and everybody thinks it's $1,000. Don't take cash, don't take cheques, don't take credit notes. What we do then is report the gift if it's $200, or if the same $25 or $50 value comes from the same person over a 12-month period and the gross is $200, then that is reported.
There was a time when the gifts came in different form. Somebody would decide that they would give them a holiday in Florida. So we asked them all if they would have been given that gift if they were not the member. Most of them said they didn't think so.
If they don't think so, they shouldn't take it. If they're offered it, all they have to do is phone us and we'll tell them whether we think they should or not. If they take it after that, that's their problem, because we will tell them, and we will write that in our view they should not take that. If they've asked our advice, they're going to get an opinion.
Mr. Epp: If I give a speech and if I'm offered $100 afterwards, which, by the way, I was and which I declined because for some reason I thought it was wrong - and there's not even a code, but I declined it - under your rules I could accept it.
Mr. Evans: Not cash.
Mr. Epp: Not in cash.
Mr. Evans: No. Nobody knows how much you have or very few know.
Mr. Epp: They give me a cheque and I say thank you for the $100 publicly; is it then okay?
Mr. Evans: We say we'd prefer you don't touch cash or cheques. But if you get a camera for something and it's worth $200 or $300, you have a choice as to what you want to do with it. You can give it to a charity and not take a receipt for it, or you can keep it. You know, when that little bell goes off in your head, your conscience is telling you this is okay or that isn't okay, but some people wouldn't hear Big Ben.
.1725
Some hon. members: Oh, oh!
The Joint Chairman (Senator Oliver): I have a supplementary question on gifts.
If a person gets gifts totalling $400 for the year, does he keep all those gifts and just report them? What happens when you get over the $200 limit?
Mr. Evans: They are then reported.
The Joint Chairman (Senator Oliver): Who keeps them?
Mr. Evans: They can suit themselves about that. We figure that's up to their conscience. However, it's going to be reported that you got a gift from Joe Blow, the circumstances surrounding the gift, and why you got it. We put it in the report and it becomes public. Today all they seem to be getting are hats and t-shirts. Things are tough.
There was situation in which a guy got two weeks in a condo. He didn't tell me until after he'd had the two weeks, of course -
Some hon. members: Oh, oh!
Mr. Evans: - but when he did tell me, I said that it should be the end of that and asked him why he thought he got it. I asked whether he knew the man before. He said no, he didn't, but that he had supported him at whatever he was doing. That's how we handle that.
Several people have taken them. They leave them in the office. There are all kinds of gifts. We had one situation in which an artist decided to give a fellow a painting. Of course I asked how much the frame was worth. He said he guessed it would be worth a couple hundred dollars. What good is a painting of me to you? You're not going to hang it in your house. I asked him if his wife would let him hang it in the house. He said, no, she wouldn't even let him hang it in the garage. So while the artist thought it was worth $15,000 -
There are other gifts. When ministers get into eastern countries, Japan or China, they get pretty luxurious gifts. Bob Rae wouldn't take anything. He got gifts, brought them home, and put them in the archives. They have a habit of disappearing from the archives; I don't think anybody keeps a record of it.
We feel we've done our responsibility if it's declared and we show in the public disclosure where it came from and for what purpose.
Mr. Epp: I want to ask just one more question on gifts, then I have another one. Is there widespread acceptance among the members of that process? Do you have any objections or complaints about it?
Mr. Evans: No, I don't have any. I did have a few the first year, but I don't have any more.
Mr. Epp: The next topic I want to talk about is disclosure of income. The way I read the legislation in Ontario, the member must disclose all income from all sources, together with that of the spouse and all family members. The amount is declared; it's in a declaration, which you get and you keep on file.
Mr. Evans: Yes.
Mr. Epp: Is it made public?
Mr. Evans: Never.
Mr. Epp: You have it, but no one else does.
Mr. Evans: That's right. This is why we keep a small operation. We are three. We were two until we started getting so many phone calls that we couldn't get any work done. There are only three. We have a special room, with a special lock, and it's kept in there. Nobody else sees it now.
We don't have the public disclosure forms in our office. We do them and then we file them with the clerk of the legislative assembly. If any newspaper people want to read it, they can go up there and get it, or they can phone in and he'll send a copy to them for whatever fee he sets.
Mr. Epp: What use is that information to you?
Mr. Evans: To me?
Mr. Epp: Yes.
Mr. Evans: It's like going to confession, I tell them, when the law says that they shall declare that. It gives you some idea - If you see somebody whose form is showing that he's practically bankrupt, and yet he's driving a Lexus, then you begin to ask yourself why.
.1730
For whatever period of time, if you're in there for four years, say, we have a form for the first two to three years. Each year we compare it, one with the other. We ask you why you have more, why you have less, and if your debts are there, what they were for. We try to use...well, ``common sense'' is so worked over in Ontario, but that's what I want to say. We try to use discretion in the disclosure.
If a parent loans money to one child for a mortgage or something like that, we feel that's not the business of the public. So we don't disclose that. If somebody is supporting a child nobody else knows about, we don't show that either. Many things pop up that we don't disclose. We feel it does not have anything to do with the public.
Mr. Epp: Is there any danger of a subsequent government passing a disclosure of information law that would open this up? Or do you destroy those records?
Mr. Evans: Yes. There's a provision in there that we destroy them after a certain time.
Mr. Epp: Mr. Chairman, I've had a great time, but let's go around the circle. I'll come back.
The Joint Chairman (Mr. Milliken): A short supplementary, Senator Gauthier.
Senator Gauthier: Who protects the confidentiality of your records?
Mr. Evans: I do.
Senator Gauthier: Okay. Police are investigating the activities of a member of your legislature.
Mr. Evans: Yes.
Senator Gauthier: You're smiling at me.
Mr. Evans: Yes, sir. We had that.
Senator Gauthier: They come to the Speaker of the House and say they're investigating member X, and they'd like to have knowledge of what he's disclosed or divulged as far as assets are concerned because they think he's involved in some fraud or whatever. What would happen?
Mr. Evans: Nothing.
Senator Gauthier: Why not?
Mr. Evans: If he comes in and asks, and I don't do anything, I say.... I didn't have one go to the Speaker; I had them come in and say they were investigating a certain member.
Senator Gauthier: I didn't use that example. I said he went to the Speaker, who's a protector of the members, and told the Speaker they were investigating member X and would like to have access to some information in his office, or in your offices, under your jurisdiction. I take it you fall under the jurisdiction of the legislature.
Mr. Evans: Yes.
Senator Gauthier: Why wouldn't they have access to those documents - because you say no?
Mr. Evans: I told them that if they wanted something, they would have to get a subpoena and bring it to the court.
Senator Gauthier: Okay. I get a subpoena from a judge and the police.
Mr. Evans: Well, then I'm like everybody else; I would have to go to court.
Senator Gauthier: Would you give them the information?
Mr. Evans: Yes, but I'm not under the Privacy Commissioner and all that. They can't get anything, because it's written in here.
Just in the normal run of things, I'm not subject to that. I didn't run into situations.... I just asked the officer, when he came in, if he had a subpoena, and said, ``I'll see you down at the court-house''. He decided he didn't want any further information from me. There wasn't anything.
Mr. McWhinney: What did that response mean, that you'd see him down at the court-house?
Mr. Evans: I thought there was going to be a prosecution. If there was a prosecution and I was subpoenaed, I suppose I would have to give it.
Mr. McWhinney: You've not considered that parliamentary immunity or privilege might cover a situation like that?
Mr. Evans: I would certainly raise it and let the judge worry about it.
Mr. McWhinney: But you agree that constitutional privilege would be a relevant question to raise.
Mr. Evans: Oh, yes. That would be the first shot off the mark. But I would have to go there; that's what I'm talking about. If the ruling is made that I have to make it.... I've just never had that.
The Joint Chairman (Mr. Milliken): Mr. Malhi, over to you, sir.
Mr. Malhi (Bramalea - Gore - Malton): Thank you, Mr. Chairman.
Mr. Evans, this committee has a mandate to develop a code of conduct. Presumably this code would be broader than just conflict of interest dealing with monetary issues. What are some of the other issues that you think could be included in this?
Mr. Evans: One of the examples I gave you was having to do with a minister interfering in the court process - or anybody interfering in the court process - or a minister interfering with an agency, board or commission that falls within his jurisdiction and otherwise using his influence to change a decision, or to attempt to change a decision. These are the things we deal with.
Mr. Malhi: Second, to what extent is public perception part of your discretion with Ontario legislators regardless of the letter of the rules and laws?
.1735
Mr. Evans: I can only tell you that as far as the members are concerned, I think they were satisfied. They reappointed me three times - they appointed me once and reappointed me twice, just recently again. If they were unhappy - actually, the other day in the Hansard they gave me a rather glowing testimonial from all three House leaders. I'm sorry my mother wouldn't be around to read it.
I don't want to appear something less than humble, but I think the legislators are satisfied with it. I haven't had any complaints from the public because I don't take any complaints, but I do direct them as to where complaints should be filed. I don't say no, there's nothing to this. I don't really get into it. I listen to what they have to say and tell them if they think they have a complaint, then they should go to the member of the opposition. I'm now trying to work on something to stop the loose canons in every party. There's always one, I think. For the PCs with only two members, maybe there isn't one.
I think there should be somebody in the caucus, whether it's the caucus chairman or somebody else, to vet the thing before the complaint comes in, because it's like in court. I take the position as I would in court. If there was no basis for the claim, I would say it should never have been brought. That reflects badly on the member, on his party and on the legislature itself. We haven't got around to that yet, but we're working on it.
The Joint Chairman (Mr. Milliken): Mr. McWhinney.
Mr. McWhinney: I want to thank the witness for appearing. I know his distinguished record, and it's a privilege for us to have you here, sir.
I'd like to return to the point you responded to to my colleague Senator Gauthier. You said ``See me at the court-house floor'' in answer to a subpoena. Would you agree that it might be an issue in which the legislature or Parliament might itself have to rule, because you're dealing with privileges of two bodies of coordinate status? In other words, the judicial ruling as such might not be enough to compel disclosure unless the legislature backed it.
Mr. Evans: In addition to a complaint lodged by the member, a complaint can be lodged by a resolution of the House. I would therefore have to - or the executive can - file a complaint.
Mr. McWhinney: My understanding of the senator's question was that if in, say, private or other litigation somebody sought to obtain access to these documents, your response was that you needed a subpoena. But you would agree that it itself wouldn't necessarily end the matter. You might need a judicial ruling on the limits of the court's power vis-à-vis the legislature or Parliament.
Mr. Evans: That's true.
Mr. McWhinney: In fact, I would suggest that perhaps the legislature might itself need to make the resolution, for at least this sort of documentation.
Mr. Evans: Yes, that's right.
Mr. McWhinney: We are considering the issue of a code.
You are a chief justice of a court with a very ancient and distinguished common law tradition. What is your view of the merits of legislating, particularly legislating in extenso - and this might be a very good example of it - as opposed to applying parliamentary common law, or custom, to this? Do you see any dangers in being too precise? Obviously we're into this debate between codification as opposed to common law, development of the law.
Mr. Evans: I can't kick the common law too hard; I've lived with it for a long time. But I'm not so sure the public is satisfied with that. I think they want to know what goes on today. Everybody wants to hold every public officer accountable and they want to see openness. I'm not too sure they would see that. If they see a piece of paper here and they know what they're charged with, and if you build into that some flexibility and discretion in the person who is looking after it, I think you'll get the same result.
.1740
Mr. McWhinney: I took note particularly of your comments on what I think is inaccurately called the jurisconsult role; it seemed to me it was the avuncular role of giving informal advice to people. Would you see the merit of our codifying it in terms of key principles rather than attempting to list it extensively as, for example, this Ontario law does?
Mr. Evans: Well, I think you're much better off with a law. Do you have anything now?
Senator Angus (Alma): Yes. We have a law.
Mr. Evans: Are you talking about an act like the Legislative Assembly Act?
Mr. McWhinney: We don't have a law on conduct, though, which as somebody said is ambiguous.
Mr. Evans: Yes.
Mr. McWhinney: The terms in English and French are rather different. So we're really approaching this issue of legislating on conduct de novo.
I have one other question. Do you have any impression of the numbers of people in the Ontario legislature actively engaged in professions? Obviously provincial legislature doesn't work as frequently as federal legislature, but do you know the number of members not being ministers who are practising professionals, whether as doctors, lawyers, or...?
Mr. Evans: Oh yes, practically all of them do. Yes, they're into something. Some do not, but I would say 90%.
Mr. McWhinney: Have you had any comments, particularly from those who don't, say, practise a fairly stable profession such as law or medicine but play the stock market, on the effect of listing property, particularly property in stocks and bonds?
Mr. Evans: No.
Mr. McWhinney: An inhibiting factor? It must mean that for those who are active in the market there's a fairly constant updating.
Mr. Evans: I don't think there are too many gamblers in there in that sense, really. I was concerned about that too, but we tell them if there's any substantial change - and don't ask me to define ``substantial'' - we have to know about it. People are pretty good.
Year after year...as I say, we look at it for four years. You'll see 100 shares of Bell Canada, 100 shares of Bombardier, or something like this. You get those and they stay. Some of the wildcats may move around, but the bulk of them don't do much changing. But if you get them into the cabinet, then they have to put it into a trust of some kind.
Mr. McWhinney: One of the things we've examined is whether a differentiation should be made between cabinet ministers and their inferior varieties, such as secretaries of state and parliamentary secretaries, and private members?
Mr. Evans: I think there should be.
Mr. McWhinney: Would you see a difference in the degree of disclosure then required?
Mr. Evans: No.
Mr. McWhinney: Or simply in the trust fund...?
Mr. Evans: In the trust fund. The disclosure is the same, regardless of whether you're a cabinet minister, a back-bencher, or the premier.
Mr. McWhinney: Was this legislation in Ontario adopted unanimously?
Mr. Evans: Yes.
Mr. McWhinney: It was.
Mr. Evans: I sat there to make sure. Well, that's not quite right, but it was passed on the last day of the legislation. It had been around for a long time. In a month or two everybody knew what was there, but there was a patent rush to get legislation on it.
We worked three years on this thing, and I thought it should be brought on. Then they brought it on, but they forgot to reappoint me. It was not proclaimed until after the election. Just last week it was proclaimed.
Mr. McWhinney: Have you had any contacts with the equivalent officers in other offices?
Mr. Evans: Oh yes, we meet once a year.
Mr. McWhinney: You have a club?
Mr. Evans: If you have two you have a club. Other provinces are doing this. There's an American association, but they're always busy arresting people so I didn't find it too.... Somebody was saying they charged 22 members of the legislature and got a conviction for 18. Everybody's happy with that; that was down in North Carolina.
Mr. McWhinney: I was thinking of one province in particular that has a former justice of the high court. In essence, the justice is the near equivalent to you. The justice deals with a substantially uncodified situation but has dealt with, in some ways perhaps unfortunately, people of higher stature perhaps in the political scene than you've had to deal with.
.1745
Mr. Evans: They'll be here next week. We're meeting here next week.
Mr. McWhinney: Monday of next week?
Mr. Evans: Yes. I think there are five of us, if I'm not mistaken.
Mr. McWhinney: Is your meeting open to the public? Is it confidential or open to the public?
Mr. Evans: Oh, we just have dinner and then we meet the next day.
Mr. McWhinney: But I mean, would it be possible for this -
Mr. Evans: No. It's not open.
The Joint Chairman (Mr. Milliken): We're having four or five of the other commissioners at our meeting on Monday, Mr. McWhinney, at 3:30 p.m. That's why we're meeting early, so that we can accommodate their dinner.
Some hon. members: Oh, oh!
Mr. McWhinney: It must be some dinner.
The Joint Chairman (Mr. Milliken): Maybe for you they'll issue a special invitation.
Mr. McWhinney: Thank you very much, Mr. Chief Justice.
The Joint Chairman (Mr. Milliken): Senator Angus, please.
Senator Angus: Sir, I just wanted to add my words of welcome to you. Thanks for your presentation. I associate with Mr. Epp's comments about your incredible energy. At your stage in life, I think it's quite remarkable. I think Ontario's legislature is very fortunate to have you there.
Mr. Evans: My mother died 2 years ago at 107, so the genes are pretty good...and didn't go willingly either.
Mr. McWhinney: I can see you coming back in 25 years when we re-examine the law we've passed.
Senator Angus: You and your mother would have made great senators under the old system.
In reading your paper, I felt that you were on the right wavelength in that you really can't legislate integrity. I believe that's your view.
Mr. Evans: That's right.
Senator Angus: You were going along and saying there are honourable members and honourable senators and so forth, and there's a presumption, rebuttable though it may be, that they're in good faith and honest and not in conflict of interest.
Mr. Evans: That's my view.
Senator Angus: You come to this sudden conclusion, however, that notwithstanding all of the foregoing, we have to legislate. I've heard you elaborate on that this afternoon, but I just want to get it clearly on the record. I understand your view that legislation in this delicate matter is necessary to satisfy an increasing - be it reasonable or unreasonable - curiosity on the part of the media and the public through the media, but actually, in your mind, it isn't going to change anybody's behaviour.
Mr. Evans: I think it will change some. I think 98% of the people who run and who are in positions of this kind are very conscious of their obligations and want to avoid getting into any trouble. But there's always one or two who work in the grey area, who like living on the edge. They are the ones who cause all the damage for all the legislators. That's why I want them to read all this before they come.
I asked them last time, anybody who intended to run or was nominated, to come in and I would tell them what they're running into. Of course, everybody who came in expected they were going to be in the cabinet. They wanted to know how it was going to affect them when they were a cabinet minister.
The press is probably not always fair towards parliamentarians. I guess that's their business. They get hold of a small scandal and by repetition and so forth it gets blown up into something quite big, and it affects everybody. I felt the same way about it when I was a judge. Something would happen. Sometimes it happened in the United States, and some people didn't know the difference between the Supreme Court of the United States and the Supreme Court of Canada. It's surprising the lack of knowledge that people have. This is why, as a judge, I wanted people to come into court to see how it operated. I think judges work better and lawyers work better and the public sees it. But you don't get anybody in there except if it's a sensational trial.
But attacks on our institutions - those are more common today. There was a time when you could do practically anything. There was kind of a closed compact, a protective association that would protect the news from getting out, and the newspapers wouldn't print it if it did come out. That's no longer so.
.1750
Senator Angus: Right. I don't think you're saying to us, though - and I'm on the same wavelength as you - that the law itself, some statute, is going to make any difference.
Mr. Evans: Never.
Senator Angus: What I think you're saying - I'd just like to get it in another form - is that the important thing is to have a continuing sensitizing of the members of Parliament or senators, in the federal sense, to make them aware of the fact that they have these obligations.
In what we have here, we may not have the same degree of, as you say, confession, and ``Father Confessor''. The arrangement you have sounds quite charming, having spoken to every one of the 130 about their obligations.
We do have in both the House of Commons and the Senate an ethics counsellor, or an individual who is there at our service to discuss these matters on a confidential basis. There also is a statute that deals with this. It's called the Parliament of Canada Act, which used to be the House of Commons and Senate Act. It deals with conflicts of interest. It's all in there. I think you probably would agree that the media never reads that. Probably most of the members, unless they have a confession, don't read it either.
We also have the conflict of interest code, where certainly ministers and certain people defined as public office holders need to declare all of their assets, and they have these trust set-ups.
I was wondering if you actually were familiar with either the provisions of the Parliament of Canada Act or -
Mr. Evans: I know of it.
Senator Angus: But you haven't checked. You couldn't advise me if in your view that would suffice, for example.
Mr. Evans: No. When I say that, I was aware of that. We have the Legislative Assembly Act. We did discuss that at one of our early meetings at this Canadian conference on conflict of interest commissioners. We did look into that.
But lest you have nothing for the ordinary member -
Senator Angus: We do.
Mr. Evans: You have a conflict of -
Senator Angus: The Parliament of Canada Act has stuff in it. There also are some rules there. But what we're doing is a response, I believe, to what you've described as a changing demand for accountability and transparency from these people who have these positions of trust, as we have. We're trying to update the system.
As I think my colleagues Professor McWhinney and Senator Gauthier were suggesting, there are many ways to go about it. We're trying to come to some consensus that would be appropriate. The common law non-codification approach might be something where we maybe could legislate an office for a person such as yourself, or even a triumvirate, if you will, who could act as the ombudspersons or the ethics commissioners so that we parliamentarians could go to them and have this confession.
The business that troubles a lot of the senators in the Senate...you know, we are appointed. We're encouraged to come here not so much for our being an elected parliamentarian as for our practical experience in the businesses and the outside farms or whatever we're doing to earn a livelihood on the outside, so that we can bring this practical knowledge into play when we're assessing legislation that comes up from the commons. At least that's how I understand my role.
Some of these people, because they are still active in business, may have more than 100 shares of Bombardier, and so on. As you say, there's a presumption that they are honest people, and they don't want to get into a conflict. They'll bend over backwards, with the help of someone like you, to behave properly.
I was just wondering what you would think if we were able, at this joint committee of the House and Senate, to come up with some principles that were contemporary and subject to updating from time to time as a common law situation but did have a legislated office for somebody like you.
.1755
Mr. Evans: I think it might be. The trouble I find with that is that I think your Parliament of Canada Act is about the same as our Legislative Assembly Act. That thing is a hundred years old and has been patched and patched but has never really been looked at. There are things in there that we didn't find very good.
It's quite possible. There's no magic in having this, but then you have to have some place. This is an invasion of privacy. There's no doubt about that. People have to come in and tell you everything. That's an invasion of privacy. So you really have to sell it. The first time they came in, some people were a little hesitant. Now they come in regularly; that is, the repeaters are coming in.
Senator Angus: Like Senator Gauthier, I was very interested in the fact that you made a distinction in your viewpoint between the House - the elected representatives - and the senators. You accentuated the difference as being how to get there.
Clearly over the years and going way back when the House of Commons and Senate Act was first passed, they also made a distinction - albeit probably not something that's appropriate for today. But they did recognize the difference. I was just wondering if you had looked into it any further. As an example, we've had witnesses come here and say they would encourage these people so that they would accept appointments to the Senate to maintain their outside interests and to be continue to be active. Is this something you could live with, or do you think it's dangerous?
Mr. Evans: I don't think it's too dangerous. When you come onto committees where you have an interest - I don't mean five or ten shares or something - you declare that interest and you withdraw. You don't participate in the discussion and you don't vote on these things.
If it applies to a whole group like school teachers - that's whom we used to get all the calls from, because half the members were school teachers or their wives were - when something comes up having to do with school teachers, do we all have to leave the legislature? I said no because it applies to a large number. It's the same thing with firemen, agricultural loans. You don't have to.
When you get into a committee meeting, we ask you to declare your interest. Then the chairman will decide whether it's important that you should withdraw, and he will so indicate or you will indicate that yourself. But you need that experience.
Senator Angus: Sure you do. You mentioned the idea earlier of a member of the banking committee - and I happen to be a member of the Senate banking committee - having been a director of the Bank of Montreal.
We have today Senator Leo Kolber, who's been on that committee for many years. He's been a director of the Toronto-Dominion Bank for 23 years. It's well known - the media knows it; he wears it on his sleeve - that he makes a fantastic contribution at the Senate committee on banking matters. He's declared his interest. If there were ever a bill or something we were considering that would have a direct impact on his bank, he'd be gone.
Mr. Evans: That's right.
Senator Angus: But we need that expertise.
Mr. Evans: I don't find any problem with that.
Senator Angus: Thank you very much for that.
Senator Gauthier: I have a short question - and I'm not nit-picking. Is your job a full-time job?
Mr. Evans: No. When I took on the job, it was going to be a full-time job and it isn't. I don't feel I have to go there every day, but I feel I have to be available.
Senator Gauthier: Do you have an office?
Mr. Evans: I see them all personally. But if I go to Florida, I have a fax machine and a telephone there. If I go to a cottage, I've arranged facilities there. I don't go far.
Senator Gauthier: I notice that the Integrity Act was in amendment to the Legislative Assembly Act.
Mr. Evans: Yes, they had to make a couple of changes in the Legislative Assembly Act.
Senator Gauthier: We could do the same thing. We could amend the Parliament of Canada Act and include in there provisions for the integrity.
Mr. Evans: When we looked at the amendments they should be making, we say a lot of things that should be done in the legislative assembly that are not necessarily applicable to here.
Senator Gauthier: How big a staff do you have, sir?
Mr. Evans: Two. I had one, who was my secretary when I was the chief justice. She was the only one. Then I had to get a telephone receptionist, because we had too many things to do and too much correspondence. That's the extent of it.
.1800
Senator Gauthier: I asked you because you made a distinction between the Senate and the House of Commons with regard to the principles or the workings of the -
Mr. Evans: I speak with very little knowledge of that.
Senator Gauthier: Okay. You hit a chord with me, because there's an argument here as to whether we should have simple resolution of both houses or a legislative approach. I would favour the legislative approach, but that's my view. I guess we would have to do it through the Parliament of Canada Act.
Thank you, sir.
The Joint Chairman (Senator Oliver): I would like to ask two quick questions,Mr. Chairman.
Are the confidentiality statements you say you have on a computer or handwritten and in a file?
Mr. Evans: They're typed and in a file.
The Joint Chairman (Senator Oliver): Mr. Angus was asking questions about people who might have more than 100 shares in Bombardier. Would the issue not be that if it's a large public company, publicly traded, and you had, say, 5,000 shares of it, the 5,000 of a BCE is nothing compared to 100 shares of a very small corporation? Would that not be the test?
Mr. Evans: It depends. Is he a member of the executive council? If he is, he has to put it into a trust. If he is not a member of the executive, he can have 5,000 if he wants.
Mr. Epp: I would like to ask you what your relationship is to the Northwest Territories. I notice you're also involved there.
Mr. Evans: Yes, they have five trusts. I think the composition of their legislature is 28, which was mainly to get it started. We had a little more experience than they did. The chairman is from Nova Scotia, Ted Hughes is from British Columbia, two members are from the Northwest Territories, and then there is me.
Mr. Epp: Do they have legislation that is similar or the same?
Mr. Evans: Yes. Most of them took off on the Members' Conflict of Interest Act of Ontario and made certain amendments to suit themselves. We kept telling them not to make too many amendments, that we were trying to get this one through and they could take a look at it. They're all aware of this act.
Mr. Epp: Are all the other provincial codes in the country patterned after the Ontario one?
Mr. Evans: That's right.
Mr. Epp: Did it come first?
Mr. Evans: Yes, it did.
Senator Gauthier: No, Quebec's.
Mr. Evans: Oh, Quebec had one. I'm sorry.
Senator Gauthier: It is much stronger than the Ontario one.
Mr. Epp: Okay. I have another question, which is totally unrelated. How do you prevent frivolous complaints? The way I read the document from Ontario, it's either the assembly in total or an individual member who can begin the investigation and ask for information.
Mr. Evans: Or the executive. Yes.
Mr. Epp: How do you prevent, as I said, frivolous complaints?
Mr. Evans: That's one of the difficulties confronting us now, and that's why I wanted to have the parties agree that somebody in each caucus would vet these things. We don't get too many frivolous complaints. I tell them, when something doesn't seem to be very important, that it's a nickel and dime affair. I say I don't think they should proceed with it, but if they feel they want to proceed, follow the channels.
Mr. Epp: I don't know whether you're at liberty to say this, but I would really like to know how many complaints and investigations you have actually had in the last, say, three years.
Mr. Evans: I would say about six. They're set out in our little report. I guess you don't have a copy of it, but I can make sure you all get a copy of our annual report. I will bring copies on Monday, if you wish.
Mr. Epp: I would appreciate receiving a copy -
Mr. Evans: Some of the inquiries are very...we make anonymous a bunch of inquiries and put them in the report so the new people coming in can review them and have some idea of what we're trying to do. The hard ones and the complicated ones you can't make anonymous, because they will know who filed or who asked the question. We have to dance around that a bit.
I'll bring some on Tuesday.
Mr. Epp: The legislation provides that the assembly can only say yes or no to your recommendation and there are only five things you can recommend.
Mr. Evans: That's right.
Mr. Epp: Is that satisfactory? Would you recommend that to us here?
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Mr. Evans: Yes. I think it's the obligation of the assembly to finally make a decision as to any penalty they want to impose. I think that's a protection for them and I think, yes, the commissioner for sure.
Mr. Epp: But they cannot make any difference from what you recommend. Does that not limit them?
Mr. Evans: They can say yes or no. That's true.
Mr. Epp: Why is that limitation there? I think I know, by the way, and I like it, but I just want this on the record.
Mr. Evans: You have to put in some penalties to make it effective. You have to put that in the act so they'll know what they're faced with if they get into difficulties. Maybe it's an in terrorem argument, but that's really what it was for. You'd like to make sure that whoever has this job is not going to go off on a tangent and try to put somebody out of the House to declare the seat vacant. You have to have some protection. How better than bringing it before the House?
Mr. Epp: Do you ensure that when this comes before the House it's handled by free vote?
Mr. Evans: I just make the report to the House and they -
Mr. Epp: But there's nothing in the legislation that requires that this be a free vote in the House?
Mr. Evans: No.
Mr. Epp: To me, Mr. Chairman, if I can just alert us all as a committee -
The Joint Chairman (Mr. Milliken): How could you, Mr. Epp? [Inaudible - Editor] have a secret vote.
Senator Gauthier: Well, that's the only free vote there is, isn't it?
Mr. Epp: Yes, it should be. Let the record show that if we do something like this, it should be by secret ballot in the House if that's the way we're going to go.
Senator Gauthier: That's the only way you can go.
Mr. Evans: I suppose the House is master of its own process, so I don't touch that.
Mr. Epp: Okay, I rest my case. That's as close to a lawyer as I'll ever be.
The Joint Chairman (Mr. Milliken): You're moving closer every day, Mr. Epp.
Mr. McWhinney.
Mr. McWhinney: Following Senator Gauthier's question, would you agree that the practical distinction between adopting any recommendations we may make in the form of a resolution or joint resolutions as opposed to legislation would be in terms of the sanctions or penalties: that a resolution would limit the chambers to sanctions within the power of the House, whereas legislation might also include external measures? Would you agree with that?
Mr. Evans: Yes.
Mr. McWhinney: I'd like to take up one point from Mr. Epp's comments. It would clearly be within the inherent power of the legislature or of Parliament to apply penalties going beyond those included in the act.
Mr. Evans: Yes.
Mr. McWhinney: I hope we will not get into radical revisions of parliamentary procedures in the interstices of a report on privilege or conduct.
Thank you, Mr. Chief Justice.
The Joint Chairman (Mr. Milliken): That concludes the questions and comments. I want to thank you, Mr. Evans, for taking the time to come today. We have appreciated your testimony very much and found it most helpful. We'll see you again on Monday, and we look forward to that. Thank you.
I declare the meeting adjourned.