[Recorded by Electronic Apparatus]
Thursday, May 9, 1996
.0903 
[Translation]
The Joint Chairman (Mr. Milliken): Order please. We suspended yesterday's meeting andI think our witnesses have not yet finished their presentation. Gentlemen, you have the floor once again.
Mr. Pierre Fortin (Director, Ethos Research Group): Mr. co-chairmen, ladies and gentlemen, good morning. We shall continue our presentation of the document distributed to you.
We were at point 6. We suggested that you adopt one single code of ethics for all parliamentarians. However, we would like to draw your attention to the need to include in that code of ethics specific provisions regarding ministers and parliamentary secretaries. The main benefit of such provisions would be to provide greater cohesion among the rules applying to the various offices.
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Our second suggestion is the drafting of a two-pronged code of ethics: one component would prescribe the duties and obligations of MPs and Senators derived from all the existing statutes and regulations, and the second component would set out the responsibilities of politicians in the form of major principles that in some cases would refer to the more specific standards set out in the first component.
Our seventh point is to recommend a backdrop to a code of ethics which would be based to some degree on practical experience since, as I pointed out yesterday, we have been working on these questions for a number of years. We would suggest therefore a preamble and also a number of chapters specifying particular duties and responsibilities. The preamble should include a brief reminder of the democratic ideals that inspired Canada's political institutions, and an explicit statement of the shared values of MPs and senators so that their conduct will help to affirm and promote this ideal. There would also be reference to values such as the public interest, the common weal, integrity, honesty, etc.
It should be noted that there are two types of codes of ethics, depending on the scope to be given to the code. There are codes based on specific pieces of legislation, as is the case for example with professional associations. But there are also other types of codes, which may be referred to as codes of honour and which do not contain any specific sanctions.
Chapter 1 would include a statement of duties and responsibilities to the public as a whole.
Chapter 2, which is an important chapter, would deal with conflicts of interest. We have indicated some such conflicts: disclosure of property and interests, the politician's and his close relatives'; operation of financial or commercial business; professional practice; offices held in a corporation, union, or a professional association; provisions concerning gifts, travel, dinner invitations, etc.
Chapter 3 contains a very important point which I think is of considerable concern to you: provisions governing appropriate conduct towards pressure groups and lobbyists. In any code of ethics you draft, I think that chapter should have a very important place.
Chapter 4 would focus on the duties and responsibilities towards MPs and senators. That also seems important to us. It would deal with certain provisions concerning parliamentary immunity, sharing of information, mutual respect, etc.
The fifth and last chapter could deal generally with the duties and responsibilities to other members of the party and the party itself. There is a question mark there because we believe it could be quite complex, since it concerns the need to follow the party line when moral issues are at stake. That issue can provoke considerable debate and even heated reactions.
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Under the last point, we suggest that someone be given responsibility for the enforcement of the code of ethics. We suggest, following the example of the Auditor General, that this person be independent of political power and that he or she be appointed by the members of the House of Commons and the Senate following a joint proposal by the Speakers of both houses of Parliament.
We also suggest a certain nomber of duties this person could perform. His or her primary role, which we consider important, would be to advise parliamentarians on any question relating to ethics and moral conduct or resulting from certain decisions concerning the application of the rules in the code of ethics. In this capacity, he could also play an education role with respect to parliamentarians, and even help new members. He could also regularly organize working sessions on specific questions. An ethics committee consisting of MPs and senators could help this person to effectively perform his or her duties.
The advisor's second role would be to monitor the application of the code of ethics. For this to be done, the advisor would need to have certain powers such as the authority to conduct investigations into allegations of breaches of the code, somewhat like trustees in professional organizations. To support him or her in this task, it might be necessary, if the committee wishes to give the code a disciplinary component, to create a kind of tribunal before which any person suspected of a serious breach of the code would appear. If he or she were found guilty, the tribunal could suggest a penalty to the House of Commons or the Senate, as appropriate.
In conclusion, we suggest that the advisor also be responsible for keeping information on the property and interests of parliamentarians. The advisor would be responsible for preparing a report containing a public declaration of property and interests and making it accessible to anyone wishing to consult it. In addition, like the Auditor General, this advisor would report once a year and note any breaches of the code or raise questions concerning its enforcement.
We began yesterday to bring certain points to your attention, and these are the issues we would propose for discussion purposes. I would point out once again that we are not specialists in the area of ethics for politicians. We believe that the long parliamentary experience of several of the members of your committee will no doubt be of great assistance to you in exploring this issue. Thank you.
The Joint Chairman (Mr. Milliken): Thank you very much, Mr. Fortin. That was an excellent presentation. I have only one question for the moment. Before preparing today's presentation, did you have the opportunity to read the evidence submitted to the committee over the past few months?
Mr. Fortin: Mr. Boulianne went through the minutes of your meetings. I have not read them all, but we have discussed them.
The Joint Chairman (Mr. Milliken): I would just like to say that your presentation, and particularly your ideas on the possible content of such a code of ethics, are excellent. Thank you for them.
Mr. Fortin: Thank you.
The Joint Chairman (Mr. Milliken): Are there other questions? Mr. Laurin.
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Mr. Laurin (Joliette): Mr. Chairman, I was not here yesterday and I hope I will not be asking questions which have been already been put.
You talked about a code of ethics for MPs and ministers. In your view, should such a code of ethics be the same for MPs and ministers? I see a problem here, in that ministers should not be faced with two codes of ethics and have to decide which they must follow according to the circumstances. How could that be avoided? I would like your views on that.
Mr. Fortin: I fully understand your question. In our brief, we suggest that there be only one code of ethics applying to Ministers, parliamentary secretaries and MPs. However, this single code could contain certain specific provisions regarding ministers, but its main advantage would be to provide greater cohesion among the rules governing the behaviour of politicians.
Mr. Laurin: Could a code of ethics also contain provisions which would apply to members of the public? In fact, it is often a member of public who places a politician in a tricky situation. Could a code of ethics also cover the conduct of members of the public with respect to politicians?
Mr. Fortin: That's a very good question! Following the adoption of Bill-120 in Quebec requiring parties providing health services and social services to draft a code of ethics, we have worked considerably on that issue and we suggested that there should in fact be a chapter of duties and responsibilities of users. But we did not consider including provisions governing relations between members of the public and their elected representatives.
Mr. Bruno Boulianne (Professional Researcher, Ethos Research Group): I think it would be quite difficult to regulate the behaviour of the public, given that the code applies to a specific group of people, namely parliamentarians. The public in general do not have any obligations towards an institution, except those which apply to every member of a society. Therefore, it would be quite difficult to regulate in this area. It might be possible to take a more informal approach, explaining what is generally expected or desired of the general public, but not necessarily laying down specific rules.
Mr. Laurin: As you will remember, in the past few years Parliament passed legislation governing lobbyists. Lobbyists are also members of the public. This group has been targeted and made subject to a specific code of conduct. My question is along the same lines. Without the establishment of strict and specific rules, would it be desirable to include in a code of ethics for MPs a section on acceptable conduct between the public and politicians, so as to explain to people in contact with MPs what is immediately unacceptable?
Mr. Fortin: What you're suggesting could be indicated in the preamble, in the form of certain principles which the members of the public must follow as a matter of civic duty, such as supporting their representatives, not seeking to bribe him or her or indulge in other such behaviour. It could be pointed in general terms that politicians who share this democratic ideal would also want to ensure that it was shared by the public as a whole. So I think it would be more appropriate to include that in the preamble.
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Mr. Laurin: Personally, I think it could help MPs in their contacts with the public. It could explain to the public, under the code of ethics, there are mutual expectations.
I also think it might be difficult to choose a person responsible for enforcing the code of ethics. MPs live in society, not in isolation. Whether we want to or not, in some aspects of our lives we are always in contact with someone who may himself be in a conflict of interest situation. That is whyI think that choosing a person for this position would be difficult.
Do you not think that criteria should be established for selecting the person to be appointed? And would you not also agree that one of the criteria should be that the person concerned must not have worked actively for a political party in the years prior to his or her appointment to the position, so as to avoid the party in power taking the opportunity to have the person they want appointed to the position? The majority in the Senate often belongs to the party in power. It could happen that the person appointed might interpret the code of ethics to the advantage of the majority party. Do you think such a criterion would be useful?
Mr. Fortin: Could someone briefly remind us of the criteria regarding the appointment of the Auditor General?
Mr. Laurin: Mr. Milliken is no doubt the person with the most experience.
The Joint Chairman (Mr. Milliken): I think he or she is appointed by Parliament through a resolution of the House.
Mr. Fortin: When he is appointed, are his political sympathies taken into account? That would answer the member's question.
The Joint Chairman (Mr. Milliken): Normally, the prime minister first proposes a name to the leaders of the other parties. After consultation, the name is proposed to the House. That is the process followed to appoint the Chief Electoral Officer and I think the same process is also used for the Auditor General.
Mr. Boulianne: I don't know whether it is possible under your Standing Orders, but we would agree that a name or names be suggested by the Speakers of the House of Commons and the Senate.I don't know if that is possible under the Standing Orders. There could therefore be an initial consensus from each House regarding the two individuals proposed, and subsequently a consensus could be reached on our name. The process would not necessarily be very long, costly or politicized. The person selected would have to meet the criteria of both Houses.
I would think that the first criterion would be the integrity of the individual concerned. As regards political sympathies, it is difficult not having any, but if the individual is recognized as being a person of integrity, honesty and probity, the members could decide whether to accept him or not as the person responsible for monitoring the code of ethics.
Mr. Laurin: Would the powers of that person be binding? I would like to have your view on that.
I think that the person would be more effective if his or her relationship with members was not a coercive one. A member could trust this individual and see him or her as an advisor. Often, we do not know what to do in particular circumstances. Therefore, it will be helpful to be able to consult this person in a spirit of total confidence. Even if the action had already occurred, the person appointed could still try to help the member to rectify what had been done rather than accusing him. In other words, the person would be there to help the MP. I really don't see how he or she could act both as an advisor and as a judge.
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Mr. Fortin: Everything depends on the type of code of ethics that you want. As I said earlier, if you decide to have a code of honour, there would be no sanction. In that case, the advisor would really be an advisor, and, as you said, an MP could go and consult him or her in a spirit of total confidence, explain the circumstances and ask for clarification. Or the MP might ask a specific question, and the advisor would arrange a meeting of MPs and senators to work together on resolving the problem. The person appointed would then act as a group leader.
You can give the person appointed certain powers, but those powers would be relative because the House of Commons will be responsible for determining the sanction. The advisor could not have responsibility for deciding on the sanction because that would mean there was somebody above the House of Commons. In our Parliamentary tradition, I don't think that would be possible.
Mr. Boulianne: The ethics advisor would not necessarily have to apply sanctions. You could have an office called ``office of the ethics advisor'', with one person acting as an advisor and perhaps another as an investigator. Therefore, you could consider an office with people performing different duties. But if you appoint only one person, he or she would have to act as advisor, investigator and judge. We should consider an office similar to the office of professional corporations, where you have a trustee and people involved in investigations. That office operates in the same way as a tribunal or court, where anyone accused can defend himself or herself.
Mr. Laurin: Have you also thought about ways of amending the code of ethics? Should that be a difficult or complicated process, so as to ensure that the code is amended as infrequently as possible or only for very serious reasons, or should the process used to amend it be a flexible one? As we know habits and customs change, but if it is too easy to amend the majority party might be tempted to do so in order to justify the conduct of certain members. However, if it is too complicated, you might end up with archaic or obsolete provisions. Conduct considered unacceptable 20 years ago could be perfectly acceptable today. Have you thought about that?
Mr. Fortin: As regards codes of ethics in general, we have worked for several groups and associations which have developed their own code of ethics. One of the main points which we stress is that a code of ethics must accurately reflect shared values, that is to say it must be based on a consensus among the people whose conduct it will govern. That is the first very important point. All of you around this table here represent your colleagues, and before proposing a code of conduct to be submitted to the House of Commons or the Senate, I would suggest that you conduct extensive consultations with your colleagues, so as to reach unanimity or at least a consensus. That is the first point.
Second, it is also important to stress that a code of conduct is a tool, an instrument, and that it will inevitably have to be reviewed and corrected over the years. That could be one of the roles of the advisor, a position which we propose should be created. The advisor would be aware of what is going on in parliamentary institutions, and could propose revisions to the code.
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Mr. Laurin: In your view, should the adoption of a code of ethics be the subject of a free vote in the House, or would members would have to follow the party line?
Mr. Fortin: Personally, I think that given the importance of the code, it should be a free vote. I think that transcends party lines, and I don't think anyone would have any difficulty accepting that.
Mr. Laurin: That's all for the moment.
[English]
The Joint Chairman (Mr. Milliken): Dr. Pagtakhan.
Mr. Pagtakhan (Winnipeg North): Should the proposed appointee, the nominee before appointment, appear before a joint committee of the House of Commons and Senate prior to final appointment? Again, this is perhaps like the republican system where an appointee to an important body appears before a committee for inquiry, for questioning. How do you see that process? Does it have any value in Canada?
[Translation]
Mr. Boulianne: If we begin by investigating the individual, I think there would be a problem. If there are suspicions about the person even before he or she assumes the position, then perhaps it's not the right person for the job. Therefore, and I don't think we should have to do that; otherwise, the discussion might degenerate into political considerations. If a consensus has been established and there is a strong probability of a vote in favour of the person concerned, I don't see why he or she should have to undergo a strict selection process so as to determine that they meet acceptable manners. Personally, I wouldn't go that far.
[English]
Mr. Pagtakhan: What kind of meeting or process must take place to ensure that consensus is arrived at in the proper way? Should it be an informal individual meeting between the speakers of the Senate and the House? How do you arrive at that consensus?
[Translation]
Mr. Boulianne: We simply thought that the Speakers, who have worked with the members of each House, could submit a list of names. If the Speakers agree on one or two names, a particular name could then be submitted to each of the Houses. The person could be accepted if, for example, he or she were approved by three quarters of the members of each House. The process must not be overly complicated or time consuming, since otherwise it would be impossible to reach agreement.
[English]
Mr. Pagtakhan: I'm still not clear. Are you suggesting that all members of both houses submit names of nominees to the two speakers in the first instance?
[Translation]
Mr. Fortin: No. We did not focus on the technical process. In the brief, we suggest that a person be proposed by the Speakers of each House and that the appointment of the individual concerned be submitted to the House of Commons and the Senate. My colleague and I thought that three quarters of the votes in each House would be sufficient to have a person appointed as the ethics advisor.
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As regards the procedure in the Senate and the House of Commons, we did not go into details. I think you have more experience than us and you know what process you generally use in order to agree on the appointments of individuals to particular positions. Therefore, we did not address this issue.
[English]
Mr. Pagtakhan: But even in the absence of any suspicion, even just on the basis of exploring to know more about the potential nominee, how would you go about knowing that?
Let us assume that a name has indeed been proposed by the two speakers. Let us assume that each house will handle the issue separately unless there is a joint session of Parliament. How do you expect the individual members to vote intelligently on the nominee without prior inquiry at a more detailed level?
[Translation]
Mr. Fortin: I think that is an interesting suggestion. You could decide that the person whose name was selected be asked to appear before the committee. Before voting on the appointment, he or she could be interviewed by MPs or senators who would like to know more about him, his values, his view of the position, his perception of the code of ethics, his main concerns regarding ethical issues, etc. That could be suggested. Anyone interested in obtaining more information on the views of the person selected would thus have the opportunity to ask him or her about them.
[English]
Mr. Pagtakhan: I am not suggesting that it be the process at all. I am raising the concern because such a concern has been raised in different settings over a period of time.
[Translation]
Mr. Fortin: Exactly.
[English]
Mr. Pagtakhan: However, Canada is rich in a history wherein our appointing process is quite different from that of the United States. It has worked well for Canada. Our appointments of the Auditor General and the Chief Justice of the Supreme Court are examples. I think they point to the fact that the appointment process has worked well, because the independence of the offices has been maintained, with the appointing authority knowing that a requirement for integrity and expertise is always there. Would we not adopt the same process of appointment should we proceed to search for such a person, similar to the appointment of an Auditor General, for example, or the Chief Justice of the Supreme Court of Canada?
[Translation]
Mr. Fortin: If you consider that appropriate, I have no objection. I am really not very familiar with the process followed in that regard. It could be an excellent suggestion.
Mr. Boulianne: That is why I gave the answer I did to your first question; in my view, your could proceed the same way as you do with other appointments. Why change the ground rules for this individual? You could change the process for all appointees, but not just the one person. I think that the same system should be used for all appointees.
[English]
Mr. Pagtakhan: With reference to your presentation respecting the need for this appointed person to monitor the system, would you go as far as to suggest that the person make an annual report to the two houses of Parliament, very much like the Auditor General?
[Translation]
Mr. Fortin: Yes. I really don't see any problem.
[English]
Mr. Pagtakhan: What is the value that will be derived from such an exercise?
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[Translation]
Mr. Boulianne: I think that openness is a key point. Canadians would then know what is happening. Things would be open and transparent; they would know who does what, who didn't do what, and who made a mistake which, according to the rules, may be considered serious or minor. If allegations have been made, the individuals concerned could be cleared of them; in other words, following an investigation anyone unjustly accused could be cleared of any blame. Therefore, the system would be open; you could decide whether the sanctions are justified and also whether there will be a political sanction. The constituents would do their part by reelecting or defeating a member, as they deem appropriate.
I think you have to have the most open system possible, so that Canadians can see what is done. That is why I believe that these things are necessary. There is also a consequence, since there would be pressure on those individuals who fail to comply with the rules.
Mr. Fortin: I would like to come back to what one member said, namely that the whole process could help to educate the general public. The code of ethics would apply to MPs and senators who are performing duties in a specific context, facing moral choices to which we referred yesterday, and required to maintain their integrity and honesty in the face of many pressures. As my colleague pointed out, if the discussions are transparent and the advisor effectively discharges his responsibilities, we will also help to educate the general public about their relationship with their political representatives. I think there could be a positive impact here.
[English]
Mr. Pagtakhan: So in a sense there would be an ethics audit on a yearly basis, and if no infraction is in fact found in the given year - or hopefully in many, many years - it will sustain the integrity of Parliament. I can see the potential value of such a process.
If that process were to take place, would you suggest that the report then be automatically tabled before a given standing committee of both houses, a joint committee?
[Translation]
Mr. Fortin: Yes, there could be. I would suggest that this report be distributed as widely as possible to the general public. As I and others pointed out yesterday, one of the studies we carried out on behalf of the Royal Commission on Electoral Reform and Party Financing showed that Canadians were very cynical about politicians. The public sometimes tend to judge politicians too quickly.
As a matter of fact, if the whole process is transparent it will not only help to clean up our political mores - that positive aspect must be pointed out - but also to counter the too hasty and easy judgements we make about our political men and women.
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If the report is written in that vein - I'm coming back to what I was saying at the outset, it could, in a way, contribute to educating the public as to the relationship that should exist between them and the their representatives.
[English]
Mr. Pagtakhan: I have one last question. What advice will you give to members of that committee when examining that report so as not to create any undue and unfair inquiry, knowing that you always search for integrity and at the same time you do not like to have a public trial, so to speak, unduly? How do you balance that, knowing the political nature of the houses and sometimes the given partisanship?
[Translation]
Mr. Boulianne: I'm not sure I fully understood your question, but I would answer that the report would set out what happened during the year. If the office of the ethics advisor had undertaken an equitable investigation based on the criteria and regulations of the code of ethics and come to the conclusion that there had been, in fact, some transgression of the rules, the matter would have already been under the glare of publicity and brought to the attention of the House. The report would be more of a general overview of what happened with the implementation of the code during the year and collect the details to paint an overall picture of the year just ending.
The advantage of that report is that it would give the public an idea of the real state of affairs instead of describing an apprehended situation or a fantasy. It would present a real and clear situation based on facts. It would give a list of the allegations and investigations as well as the results that wound up nil because there actually was no conflict of interest or no specific rule had been breached. It would give a list of reprimands indicating what they are. It would be more of an annual report on the state of the matter of integrity. I hope I've answered your question.
Mr. Fortin: It would be something like what professional organizations do when they produce reports on the decisions they've had to make concerning deviant professionals, every year, I think.
[English]
The Joint Chairman (Mr. Milliken): Mr. Epp.
Mr. Epp (Elk Island): Thank you. My apologies for being a little late. I hope I don't cover ground that has already been covered.
I'm very curious about the whole idea of the code of ethics as you've presented it. You argue in your paper against having too much detail, because you get that angelic thing and the problem of setting the standards so high that no one can reach them, and yet if we don't have some minimum standards then what's the use of a code?
So I would like to know if you could give us some examples of the kinds of things that you think should be in the code.
The Joint Chairman (Senator Oliver): Look at pages 9 and 10 of their brief.
[Translation]
Mr. Fortin: Yesterday, I drew the attention of the members at the meeting to three problems to be avoided when drawing up a code of ethics. The first one, and you brought it up briefly, is that of angelism: the mark is set so high that, in the end, it's just not applicable. A second problem is overregulation that is so nitpicking it becomes unacceptable, it becomes a joke and only serves to increase public cynicism.
What we're suggesting, if it were possible and you were to accept it, is a double-barrelled approach.
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First, you list everything affecting the behaviour of the members of both Chambers and punishable by law. The second would be drawn up in perhaps a broader fashion although referring to the legislation and regulations. So you'd have two presentations, one of which might perhaps set out some very concrete things. I also think it's important for the code of ethics to leave some room for the users' creativity and responsibility. Perhaps it could be drawn up in such a way as to not paralyze that creativity.
[English]
Mr. Epp: Okay. I would like to ask, though, that we get into the specifics.
Should there be a limitation on a member of Parliament or a senator having outside employment? Should there be a statement in our code that says that he may have other income provided it does not infringe on the time required to do the job as an MP or a senator? Should there be only a requirement to disclose gifts received, or should there be a limit on the size of gifts received? Do you think we should get into those specifics, or should it just be a general statement?
[Translation]
Mr. Boulianne: You have to be very careful. At the beginning, you didn't want us to be too specific. We didn't say there should be no specifics, but rather that the rules shouldn't be multiplied uselessly which doesn't mean you can't become specific. You can have some specific rules without necessarily multiplying them to excess. Being specific means that you actually want to regulate.
As for outside employment of members, we didn't give any thought to that. I must admit I'm in a bit of a quandary when I hear about outside employment for a member of Parliament. People vote to have members representing them. If members want to represent people properly, I don't really see how they could do it if they're holding down an outside job. I'm still wondering. I don't think people want to have MPs more or less representing them. When I see how hard members actually work,I wonder where they could find the time to hold down another job. I really don't have any answers for those questions.
I think we should regulate gifts and set limits. I think there are limits of something like $200 or $250 per person already for ministers. Why not impose that kind of limit on MPs and senators while still remaining reasonable. Can you forbid all and any gifts. Some would say that has to be done. Is it reasonable? Could we have rules about the limits of conviviality while still being reasonable? People's lives can't be circumscribed by legal rules to such an extent there is no humanity left. There has to be some respect for human nature. You have to show some trust, but at the same time you have to set limits for those who might want to stray a little too far. That's my way of seeing it.
[English]
Mr. Epp: Mr. Chairman, the brief received has been very complete and is a very good summary. Those are the only two questions I had beyond all the good information that was in here.
The Joint Chairman (Senator Oliver): I would like to follow up on some of the things that he said.
I'd like to add my congratulations to those of the co-chair, Mr. Milliken, that your presentation has been absolutely superb and very helpful to us. It has really given us a philosophical and architectural background upon which we can build a code, so thank you for that.
I did have a couple of questions from page 9 of the English text. You say that this preamble would have the merit of providing a key to the interpretation of the provisions. In some statutes they have a definition clause where they actually define things rather than relying upon the general words of a preamble. Were you also thinking that there would be a definition section where you would actually define words, terms and concepts? More specifically, were you thinking that we should attempt to define conflict of interest? That's my first question.
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[Translation]
Mr. Fortin: The meaning of this key to the interpretation of the provisions is more philosophical in nature - you referred to it before - than a matter of definition because we're not lawyers. The key to the interpretation placed on the provisions and the substance of the code will, first of all, be the democratic ideal we all share as Canadians; secondly, we will have to state that this ideal supports values that we are not ready to sacrifice and that are the envy - no use hiding this fact - of many countries all over the world. This, then, is the affirmation of the democratic ideal resting on certain values. Third, we will have to look at the scope of the code and that job belongs to you because as we mentioned yesterday there are two possibilities. Is it a code that leads to sanctions or a code of honour, or a mix of the two? It's in that sense that the preamble is the key to the interpretation of all the rest.
[English]
The Joint Chairman (Senator Oliver): I was wondering if you could give us a bit more of your own view as to what would be included, and a brief reminder of the democratic ideal that informs Canada. Could you give us a couple of specifics on that?
The reason I'm asking the question is that the one sentence in your whole text that really makes me think is on page 6, where you're talking about the three main moral issues facing politicians. You say that one is personal interest, another is the interest of the party, and the third is the interest of the people of Canada as a whole. You ask if the public interest can be anything more than a screen masking individual interests. That seems to me to make it quite narrow. I would have thought that we as a committee should be looking at it in the opposite way. Should we not, as the basis of the principles that we want to put in this code, be looking at the very highest principles that have almost universal application rather than something arising from our primitive self-interest?
[Translation]
Mr. Fortin: We're talking about the interpretation of interests, those of the public, the parties and the individuals. Within the context of our democratic ideal, the public interest dictates that there be political parties in Canada. Their presence is extremely important as it promotes democracy: if we had a single party promoting a singe interest, we would have problems and we would not be living in a democratic country. So we think that the interests of the Canadian people as a whole are advanced by the political parties which, while promoting the interests of the whole population still promote more specific interests.
Thirdly, whether politicians, men or women, academics or ordinary citizens, we also have our own personal interests. As a French sociologist put it, even though one shows indifference, this indifference points to some interest. It's a matter of joining all those different interests together. It's quite normal that as a representative of the population, your ideal is no doubt to represent as much as possible the interests of the majority of people.
.1000
On the other hand, that inevitably goes through the filter of your own personal interests. Talking about personal interests being joined together in the pursuit of a common good is not necessarily immoral. If our political men and women had no convictions, what would be the result? I don't think that would further the democratic ideal we all share. Does that answer your question?
[English]
The Joint Chairman (Senator Oliver): Yes, you have. Thank you.
[Translation]
Mr. Boulianne: I'd simply like to add that we should never forget that politics goes hand in hand with conflict of interest. I'm not talking about conflict of interest on a personal level, but the conflicting interests of the different groups that make up society. It seems to me that politics is where one tries to harmonize as best as possible those conflicts - and I'm putting the emphasis on as best as possible - but without ever attaining an ideal state of affairs. So we have to define public interest.
Each party already represents the specific interests of a given group in society. By putting in common those interests we try to transcend somewhat the interests of each one of those groups to come to a compromise which is perhaps the common interest. Maybe that's how you define the common interest. Maybe it's when you manage to go a bit beyond the interests of each one of the groups and to arrive at a compromise solution to find some middle ground in the conflict. It's very difficult.
[English]
The Joint Chairman (Mr. Milliken): Dr. Laurin.
[Translation]
Mr. Laurin: Should the recommendations of the ethics advisor be in the public domain?
Mr. Fortin: I think it should be public. You said recommendations. What do you mean by ``recommendations''?
Mr. Laurin: I'll give you an example. As an MP, I go and see the ethics advisor and ask him for advice as he is an advisor. I ask him how I should behave in a given situation and he answers my question. Should the answer he gives me be in the public domain?
Mr. Fortin: That depends. It could be the opportunity for the advisor to encourage broader debate on that matter, but he should not divulge any specifics.
Mr. Laurin: Actually, the government does have an ethics advisor, doesn't it?
Mr. Fortin: Yes. He is attached to the Prime Minister.
Mr. Laurin: No one knows what he does. The Prime Minister can very well say that he consulted him or not and may also not say so. So nobody knows anything that goes on. When he gives me advice, I can say to heck with it, I don't accept it and just keep on doing what I want. So what is the weight of his recommendation if it's not in the public domain?
In my opinion, that's the strength of Canada's Auditor General. When he makes a recommendation, it's in the public domain and everyone can see whether the person in question has followed the Auditor's advice or not. In my opinion, if the advisor's recommendations are not in the public domain, they'll have far less weight and he won't have any power himself.
Mr. Boulianne: I understand your question better. It could appear in his annual report. It would not be necessary to name anyone, it would simply be enough to set out those cases where advice was sought during the year, the follow up, what happened, and whether the parties involved accepted and respected the advice given without any problem. The advisor could indicate this in his annual report.
Mr. Laurin: Do you not distinguish between the tabling of an annual report and the fact that the advisor's activities are in the public domain. To write up the annual report, you set up another team of officials that are specially paid. If the advisor's normal activities showed there were no problems, then I wouldn't need his report. But if I see that there was a problem situation, I could put questions in the House to Mr. So-and-so and ask him if he went to see the ethics advisor and if he got any answer. What I'm interested in is the advice that was given in controversial situations.
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Mr. Boulianne: I'd answer yes to your last question. Actually, he'd have to set it out. On the assumption that a specific problem was raised by a specific person, then we'd have to know if that person got advice or not. If that person was advised not to go beyond a certain limit to avoid a conflict of interest and there is a breach of the rules, I think we have the right to know whether that person was fully aware of the consequences or not.
But for someone asking advice to be reassured or know what to do, I don't see why that would be made public because there's no offence. If it were made public, everybody would wonder and maybe become suspicious. So you have to be careful.
On the other hand, in those more specific cases where the rules were transgressed, you could seek information as to whether the person knew what was being done or if a warning had been given.
Mr. Fortin: It all depends. If you consider the code of ethics as very important and it transcending political parties and that there's a consensus amongst members and senators, then I think that the code of ethics and requests for advice will be held in high regard by all and that would be an important point that could be raised during discussions on problem situations.
If the code of ethics is only ``window dressing'', if it's simply to improve your public image because the people have some doubts about the ethics of some of their representatives, then I think it's useless. As we pointed out in our brief, a code of ethics is useless if the values that serve as a basis for the code are not shared and if the reasons for its creation are not material but simply to polish your image because the population has all kinds of prejudice against you and so forth. However, if it really proceeds from responsible men and women creating the tool because they have difficulty solving a certain number of complex problems, I think it could be raised in debate in the House.
On the other hand, I think it may be interesting for the Canadian population to konow, through the advisor's report, that its representatives do have questions. How far can they go when someone offers them a gift, a trip or wines and dines them? I think people might like to know, without any names being given, that the advisor's attention was drawn to this kind of matter several times during the year. I also think it might have a very beneficial impact not only on MPs but also on the public. It would mean that finally, despite all the prejudice we entertain towards our political representatives, we can see that those people have a high sense of morality and wonder how far they can go in situations where they think they might be in conflict of interest.
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Mr. Laurin: In the last paragraph, on page 10 of your presentation, you say the advisor's second role would be to monitor the application of the code of ethics and that for this to be done, the advisor would need to have certain investigative powers. I'd like some clarification because those two elements seem contradictory. If I were to consult an advisor who didn't give me the right advice, he'd be responsible for monitoring whether I had followed that advice or not. It seems to me he's both judge and jury in this investigation because, when he gives me advice, he can very well interpret this in a different way than I would. If he investigates my behaviour based on advice he gave me, it seems to me that he's in conflict of interest. Why do you say he should be doing that?
Mr. Boulianne: I've already answered one question in that area and I'll repeat my answer. When you think of the advisor, you have to think in terms of his organization. It may be someone listening to people and advising them on specific cases while someone else could be charged with investigations. If you want to solve that conflictual problem, you're listening to people with one ear but on the other hand you have to slap the wrist of whoever was talking to you. At that point, I think you have to split those two functions between two different people.
Mr. Laurin: Would those two people answer to the same office?
Mr. Boulianne: I think they should answer to a committee. I'm referring here to ethics committees. For example, I'm part of an advisory committee for ethical decisions. We get mandates from people who have questions. They tell us about something they've done and ask us whether the way they acted was correct. We think about the question, suggest ways and means for a solution without necessarily slapping people down, but we do tell them they could do this or that. I think that in a same office people don't have an obligation to say who advised them. In that sense the work could be divided but they would answer to what could be called the office of the ethics advisor or an ethics committee. You choose the option you prefer.
[English]
The Joint Chairman (Mr. Milliken): Dr. Pagtakhan.
Mr. Pagtakhan: Thank you, Mr. Chairman.
I'd like to pursue the question of the authority, or perhaps the code itself. In the first instance, knowing the need for flexibility, which you have espoused, do you see the code of ethics as a piece of law or as a code passed as a motion of the House? In other words, is it statutory or non-statutory?
[Translation]
Mr. Fortin: We were actually saying that two options were available. It's up to you to choose. If you want to pass that kind of legislation, it will of course contain specific provisions that could impose sanctions or even ousted from the House. But there's also the other model which is that of a code of honour; I wouldn't cast that idea aside. The most important is for the community to have a tool, an instrument to help us act more responsibly. You're just creating a tool, an instrument, a code, an advisor and his collaborators to help you solve the complex problems you meet.
On the other hand, if an MP or a senator's behaviour results in an offense against the Criminal Code, then you don't need a code of ethics. A charge can be laid under the provisions of the Criminal Code. Everything depends on the focus you want for your code of ethics. Personally, I would recommend a code of honour.
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[English]
Mr. Pagtakhan: The authority in terms of recommendations to the House will always be by the nature of the recommendations. The ultimate decision to enforce such a recommendation should reside in the houses of Parliament. That is your submission?
[Translation]
Mr. Fortin: You're in a better position to answer that question than we are, but it seems to me that no one can set himself above the House of Commons; the House must decide.
[English]
Mr. Pagtakhan: Thank you.
Following on the question of my colleague about the inquiry, who may start it and how is it started? We have discussed already the need for ongoing monitoring, but in terms of a request for an inquiry from any member of either house or of Parliament, should it be allowed to go directly from one member to the authority, or should such a request be by way of reference from the House?
In other words, it should always come from the House itself or from the Prime Minister's office. It is not a case of 295 members having the ability to request and then the authority is obliged to perform.
[Translation]
Mr. Boulianne: Personally, I would go beyond the House. I know that in some provinces the population can also make a complaint while in others, it's up to the MPs themselves; in other words, a citizen with a complaint to make would go and see a member of an opposing party and have that member raise the question. So there are multiple processes that can be used but the people have to make a commitment and get involved in political life.
The code is also their code. The code belongs to one of their institutions. In that sense, it's a code to which they also have access allowing them to monitor the progress of political life. So they must be involved. This isn't the concern of members only. You also have to be careful not to make it into an instrument that would allow you to dump on your neighbour or be used for political manoeuvring. At the outset, the investigation would have to be carried out discreetly to avoid smearing everyone.
Mr. Fortin: There's a whole philosophy behind that. Do we want to engage in a witch hunt?I don't think that's the objective. I'll come back to my basic idea; it's a tool, an instrument. It's not a way to get more control over our political representatives, it's just another way to help them do their work as well as possible. All depends on the focus and the view we have of this code of ethics. Let's put some trust in the sense of responsibility of our elected representatives. Let this code of ethics be considered as an instrument, a tool to help them perform their duties better.
Let's not forget we have the Standing Orders of the House of Commons, the Standing Orders of the Senate, the Criminal Code and all kinds of other laws that have teeth and that can be used to punish improper behaviour that can sometimes even be criminal. However, the code of ethics rests on a different perception of the Criminal Code.
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The code of ethics is an instrument made to serve the sense of responsibility and creativity of those using it.
In light of the idea advanced earlier, we could write into the preamble that the Canadian population is also involved in the process of improving our political morals and that this is not a matter of duty only for its representatives because the people also have duties towards their representatives by making it as easy as possible for them to discharge their duties as elected representatives and by not placing them in situations of conflict of interest, situations threatening their integrity, their honesty and their probity.
[English]
Mr. Pagtakhan: What should be the term of office for such a responsible authority, and what nature of office should it be - tenured or...?
[Translation]
Mr. Boulianne: No, absolutely not. In Ontario, it's a five-year period. I think this approach is very interesting because that kind of duration often allows for bridging between two terms. If one party remains in power for four years and then holds an election, the person responsible for enforcing the code of ethics can bridge the gap.
Mr. Fortin: Maybe we could use the example of the Auditor General. Isn't he appointed for a seven-year term?
Mr. Boulianne: I think a five- to seven-year term would help the institution maintain some sort of stability. The person in charge would be in a better position to follow the evolution of the situation and suggest guidelines or changes. The person must be given the time necessary to become familiar with the area and undertake educational work. We insist a lot of course on this matter of education which is the base of the whole thing.
As far as a code of ethics is concerned, we could just pass regulations. But they wouldn't serve much purpose because they'd only be one more code to stick in your drawer and that would be the end of it. We consider the code is an incentive to think, to learn certain things and to educate oneself.I think this approach is more interesting because the code isn't needed anymore once all that has been done. It's known, people have thought about it and made it part of their lives. Educating people is the main point here. It helps them make decisions and think about things, taking into account certain regulations and other elements. I think the result is more interesting.
Mr. Fortin: I'd like to emphasize one point. If you think you should vote yourselves a code of ethics, I would suggest you call upon the greatest number of senators and members possible when you write up and identify the fundamental values you want to promote through the code of ethics. If, on the contrary, the code comes from a higher authority, even if you do represent your colleagues, if it comes from on high, it will have less influence than if parliamentarians can make sense of it and identify with it.
When I worked with many associations that passed their own code of ethics, the nicest gift we could get, when it was passed by the board of directors, was to hear people say that it made sense to them. What they had said, what they had thought, the compromises they had reached were all there and they could find their way through it. As a member pointed out, it's not a final document. It can be perfected; it can be changed. It will evolve over the years. Questions get more complex and change; new questions are brought to our attention and maybe even threaten our integrity. So the code is something to help us during our journey and along the way and is always subject to improvement.
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The Joint Chairman (Mr. Milliken): On behalf of the members of the committee I'd like to thank you for your presentation, Mr. Fortin and Mr. Boulianne. They were both quite interesting and I'm sure your ideas will be most useful to us during our deliberations. Once again, thank you very much. I greatly appreciate your having stayed here last night to appear again today.
[English]
Thank you very much, all members. This concludes two hours of excellent testimony. We resume on Monday at 9 o'clock for a four-hour session, followed by a working lunch, if we have time for the lunch, depending on what happens in the House. Then on Monday afternoon we will resume at 3:30 until 5 o'clock.
These are working sessions with no witnesses. We will be in camera and discussing possible contents of a report. I'm not saying we're discussing a report. We're working on the contents of the report so our researchers can proceed with some more drafting.
I hope all members will be able to be here and participate in those discussions. As indicated by the witness, we should have as wide a representation as is necessary in this, and that's the purpose of these meetings next week. I look forward to seeing you then.
I declare the meeting adjourned.