PROC Committee Report
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The Standing Committee on Procedure and House Affairs has the honour to present its
1. Pursuant to the order of reference from the House of Commons on October 6, 2005, the Committee is pleased to report as follows.
2. On September 26, 2005, Mr. Deepak Obhrai, MP, rose in the House of Commons on a question of privilege. He argued that the Ethics Commissioner, Dr. Bernard Shapiro, had not followed the proper processes for conducting an inquiry under the Conflict of Interest Code for Members of the House of Commons that is appended to the Standing Orders, and, thus, he maintained that Dr. Shapiro was in contempt of the House.
3. Specifically, Mr. Obhrai had two complaints. First, Dr. Shapiro gave an interview to Mr. Jack Aubry, a journalist with the Ottawa Citizen, and was quoted in a newspaper article that appeared on September 15, 2005 in newspapers across the country. Mr. Obhrai suggested that further comments attributed to Dr. Shapiro in a National Post article on September 16, 2005 compounded the problem. Mr. Obhrai noted that section 27(7) of the Conflict of Interest Code requires the Ethics Commissioner “to conduct an inquiry in private and with due dispatch.” Mr. Obhrai argued that the Ethics Commissioner’s comments to the media had damaged his reputation and unfairly prejudiced the investigation.
4. Mr. Obhrai’s second complaint was that he was not given the required written notice of the investigation and the charges against him, contrary to section 27(4) of the Code. Mr. Joe Volpe, the Minister of Citizenship and Immigration, had forwarded affidavits to the Ethics Commissioner and the Royal Canadian Mounted Police on May 9, 2005. Mr. Obhrai indicated, however, that it was not until August 4, 2005, and August 23, 2005 that he received letters from Dr. Shapiro informing him that an investigation had been commenced and advising him of the grounds for the investigation. Section 27(4) of the Conflict of Interest Code calls for a Member to be given reasonable written notice before an inquiry is conducted on the Ethic Commissioner’s own initiative. In addition, section 27(7) says that at all appropriate stages throughout the inquiry, the Member shall have reasonable opportunity to be present and to make representations.
5. Mr. Obhrai concluded by saying that he had lost all confidence in the Ethics Commissioner. He argued that by not following the rules, Dr. Shapiro should be found in contempt of the House.
6. In his ruling on October 6, 2005, the Speaker reviewed the genesis of the Conflict of Interest Code for Members of the House of Commons and the position of Ethics Commissioner to emphasize the fact that the Code contains rules that the House has adopted for itself and that it has mandated the Ethics Commissioner to interpret and apply.
7. With respect to the two allegations made by Mr. Obhrai, the Speaker indicated that they were troubling in themselves, and that the correspondence provided by Mr. Obhrai lent further weight to his case. The Speaker indicated that, while he had concerns about how this matter had progressed, it was unclear what role, if any, he had to play in ensuring that the Code is properly interpreted and enforced. A close reading of the Act and the Standing Orders indicates that the Standing Committee on Procedure and House Affairs is responsible for general oversight, and has the mandate to “review and report on all matters relating to the Conflict of Interest Code for Members of the House of Commons.” The Speaker noted that the Code is still relatively new, and, accordingly, felt that it would be beneficial both for the Office of the Ethics Commissioner and for the House if the Committee considered this matter. He hoped that this would afford the Ethics Commissioner an opportunity to explain the process by which inquiries are conducted, give Members a chance to raise any concerns, and through this dialogue clarify matters for all involved.
8. Although hesitant to rule that the conduct of an officer of Parliament constituted a contempt of the House in the absence of a thorough review and assessment by the responsible committee, the Speaker said that he was sympathetic to Mr. Obhrai in seeking guidance on what avenues are open to him to ensure that this very serious matter is resolved. In particular, he stated that he was concerned that the absence of a clear process to address these kinds of disputes leaves both Members and the Ethics Commissioner lacking the clarity to which they are entitled in the performance of their respective roles. Accordingly, the Speaker found a prima facie question of privilege.
9. Following the Speaker’s ruling, Mr. Obhrai moved the following motion, which was adopted by the House:
That the process by which the Ethics Commissioner is conducting inquiries in relation to the Conflict of Interest Code for Members of the House of Commons, in particular, the issue raised in the House by the hon. Member for Calgary East on September 26, 2005, be referred to the Standing Committee on Procedure and House Affairs.
10. The Committee heard from Mr. Obhrai on October 18, 2005, at which time he elaborated on his objections to the process that had been followed by the Ethics Commissioner. Mr. Obhrai tabled with the Committee a detailed chronology of events, and copies of the relevant documents. Dr. Shapiro, the Ethics Commissioner, appeared before the Committee on three occasions – October 20, 2005; October 25, 2005; and November 1, 2005. In addition, Mr. Rob Walsh, the Law Clerk and Parliamentary Counsel of the House of Commons, also appeared before the Committee on October 25, 2005, to discuss a number of the issues raised by this case, and to provide much-appreciated advice.
11. At the outset, the Committee notes that it is not its role or mandate to consider the substance of the complaints against Mr. Obhrai. Instead, the Committee is concerned only with the process, or procedures, under the Conflict of Interest Code for Members of the House of Commons.
12. Before dealing with the specific complaints of Mr. Obhrai, the Committee wishes to make some general observations about the Conflict of Interest Code and the Ethics Commissioner.
13. We concur with the Speaker that the Conflict of Interest Code has introduced a new regime, and one that is acknowledged by all to be a work-in-progress. It is inevitable, at this stage in its development, that issues and concerns will arise from time to time. These need to be addressed by means of a dialogue between the Ethics Commissioner and the House of Commons, through this Committee. Indeed, at the beginning of the current Parliament, the Committee established a Subcommittee on the Disclosure Statement under the Conflict of Interest Code for Members of the House of Commons, in response to concerns that were expressed by Members with respect to the new Confidential Disclosure Statement.
14. At the same time, members of the Committee are very disturbed at what was heard about the operation of the Office of the Ethics Commissioner, and, in particular, the handling of complaints and investigations. We are concerned about an apparent absence of rigour in the Office in the development of proper processes. This has resulted in the lack of attention to detail and the requirements of due process in this case. It appears to us that the Office of the Ethics Commissioner is not sufficiently familiar with the provisions of the Conflict of Interest Code for Members of the House of Commons, nor is the Office meticulous in ensuring that these provisions are observed in both their letter and their spirit. Within the Office, there appears to be an unacceptable confusion or blurring of the distinctions between the Conflict of Interest and Post-Employment Code for Public Office Holders, which applies to cabinet ministers, parliamentary secretaries, and the 3,000 to 4,000 public office holders, and has been in existence for many years, and the Conflict of Interest Code for Members of the House of Commons, which was adopted by the House in the spring of 2004. We appreciate that the Office of the Ethics Commissioner is, to some extent, a newly created entity, and there have been growing pains since Dr. Shapiro was appointed in May 2004. Nevertheless, Members of the House of Commons are entitled to expect a higher level of professionalism than has been displayed to date.
15. Under the Conflict of Interest Code for Members of the House of Commons, the Ethics Commissioner and his staff are charged with very sensitive responsibilities. Members of Parliament are required to disclose fully their financial affairs and other personal information. In addition, the Commissioner is required to investigate alleged breaches of the Code in an objective, professional and timely manner, without any perceptions of bias. In order for the system to work, it is essential that Members have complete confidence in the Commissioner, his staff, and the process. Mr. Obhrai’s allegations raise serious concerns among Members, and serve to undermine the credibility and integrity of the system. As Mr. Walsh expressed it, the Code envisaged non-compliance by Members, but here we are dealing with alleged non-compliance with the Code by the Commissioner.
16. When the Conflict of Interest Code for Members of the House of Commons was developed by this Committee, one of the key objectives was that the Ethics Commissioner would be independent. It was felt that for purposes of public confidence and credibility, all elements of partisanship in the administration of the Code, and the conduct of investigations, should be eliminated. It was for this reason that the Ethics Commissioner was given exclusive jurisdiction over the day-to-day administration the Code. This Code, however, was adopted by the House of Commons, pursuant to a resolution, and its existence rests on the parliamentary privileges of the House. Since the establishment of the Code rests on the House’s privilege of regulating its internal affairs and its jurisdiction over its own Members, the House is ultimately responsible for the Code. It has delegated this oversight responsibility to this Committee. As the Committee explained in its 40th Report, of the Second Session of the 37th Parliament, which was tabled in the House on June 13, 2003, “We propose that general oversight of the Code and the work of the Ethics Commissioner would fall to the Standing Committee on Procedure and House Affairs. Its work would include reviewing the Ethics Commissioner’s annual report, reviewing rules that he or she may propose and reporting the rules to the House for final approval. Moreover, we recommend that the Committee conduct a comprehensive review of the Code every five years. We have chosen this Committee because it is the senior House standing committee and, because of its membership, is in an excellent position to assess the views and experiences of Members.”
17. During the Committee’s hearings, reference was made to section 30 of the Code, which provides as follows:
(2) Any rules approved by the Committee shall be reported to the House and shall come into effect when the report is concurred in by the House.
18. The Committee notes that at the time of our hearings no proposed rules had been submitted to it by the Ethics Commissioner. By letter dated November 10, 2005, Dr. Shapiro submitted to the Committee all of the “rules for the administration” that have been developed so far by his office. The Committee intends to review these to determine that the procedures set out in the Code are complied with. During his first appearance before the Committee on this matter, on October 20, 2005, Dr. Shapiro provided summaries of the processes to be followed for the various types of inquiries that may be undertaken pursuant to the Code. While these are helpful, this does not obviate the need for these procedures, and others, to be formally submitted to the Committee and to be approved by the House.
19. In a similar vein, Mr. Obhrai’s complaints, and Dr. Shapiro’s explanations, raise concerns about the interpretation to be given to various terms that are used in the Code. For instance, what is “reasonable written notice” (section 27(4))? What does it mean to conduct an inquiry “in private,” or, in the French text, “à huis clos” (section 27(7))? What is entailed in giving Members “reasonable opportunity to be present and to make representations to the Ethics Commissioner in writing or in person by counsel or by any other representative” (section 27(7))? These terms are used in the conflict of interest codes in other jurisdictions, and, presumably, guidance can be obtained from their experience.
20. The Committee wishes to clarify one issue that was raised during consideration of this question of privilege. Dr. Shapiro repeatedly claimed that he was unable to provide information to the Committee because of the confidentiality provisions in the Code. In one case, the Committee agreed to go in camera, so that answers to certain questions could be obtained. As was pointed out at that time, this places the Committee in a difficult position as the answers are not part of the public record.
21. The confidentiality provisions are integral to the Code, and were designed to ensure that the highly personal and sensitive information that is gathered by the Ethics Commissioner is fully protected. While the House will fight to uphold these provisions with respect to anyone outside of the House, they cannot be used to withhold information from the chamber itself. The House, by virtue of referring this question of privilege to the Committee, has authorized the Committee to obtain all relevant information, and can be taken as having thereby authorized the Ethics Commissioner to provide information – in a responsible way – to the Committee. Moreover, as Mr. Walsh explained, a parliamentary committee has the undoubted right to ask any questions it wishes of a witness, and the witness does not have the discretion to answer or not. The Committee did not insist on Dr. Shapiro answering certain questions in public, but it could have done so. It should also be noted that, while not required by the Committee, Mr. Obhrai wrote a letter dated October 21, 2005 to the chair of the Committee in which he waived any confidentiality that might have applied to an investigation of him by the Ethics Commissioner.
22. With respect to the specific complaints raised by Mr. Obhrai, the Committee has concluded as follows:
23. First, there is the issue of notice to the Member concerned that an inquiry has been commenced. Section 27(4) of the Conflict of Interest Code for Members of the House of Commons provides as follows:
The Ethics Commissioner may, on his or her own initiative, and on giving the Member concerned reasonable written notice, conduct an inquiry to determine whether the Member has complied with his or her obligations under this Code.
24. There are three ways in which an inquiry can be commenced under the Code: through a reference from the House; through a request for an inquiry from an individual Member; or through an inquiry initiated by the Ethics Commissioner himself. As Mr. Walsh pointed out, there is a lack of consistency in the requirement or notice to the affected Member in section 27 of the Code, which generally requires written notice only in the case of a self-initiated inquiry. Dr. Shapiro himself, in his appearance on November 1, 2005, however, agreed that the rules of natural justice and procedural fairness require in every case that the Member in question be provided with sufficient notice so that the Member is aware of the allegations being made against him or her. Clearly, the provisions of section 27 will need to be reviewed, and probably amended. There is, however, nothing to stop the Ethics Commissioner from developing processes to ensure adequate notification pending the adoption of amendments.
25. One of the issues that arose in the context of this case involved the question of when an inquiry under the Code formally commences. Dr. Shapiro noted that he is required under the Code to determine whether a request for an inquiry is “frivolous or vexatious or was not made in good faith, or that there are no or insufficient grounds to warrant an inquiry” (section 27(6)). It appears to be the position of Dr. Shapiro that up until late July 2005 his office was involved in determining whether the affidavits submitted by Mr. Volpe warranted an inquiry. As was pointed out, however, people outside the House were interviewed, and as of the beginning of June 2005, the Office of the Ethics Commissioner was in the process of retaining a lawyer in India to help investigate the allegations against Mr. Obhrai. Mr. Walsh, while noting that at present the matter is a question of judgment, was of the opinion that an inquiry begins as soon as contact is made with someone outside the Office of the Ethics Commissioner or the House. In this regard, the Committee notes that the task of the Ethics Commissioner is similar to that of the Speaker on a question of privilege: the Speaker is to determine whether, on the basis of the facts as provided, if they are proved, a prima facie case of privilege exists. It may be that the Ethics Commissioner needs to make some preliminary investigation, and that this is necessary in order for him to make a determination under section 27(6). For the protection of Members, however, we believe that such investigations should be kept to a minimum. It is always open to the Commissioner to discontinue an inquiry that has begun if he determines that it is frivolous, vexatious, and so forth.
26. There appears to have been confusion in the minds of Dr. Shapiro and his staff as to what subsection of section 27 was involved in Mr. Obhrai’s case. As noted, Mr. Volpe forwarded to Dr. Shapiro two affidavits regarding Mr. Obhai. Members of the House are entitled to request that the Commissioner conduct an inquiry, but when the Code was being drafted, the Committee was extremely careful to require that this request take a particular form. Section 27(2) requires three conditions for a request for an inquiry from a member to be valid:
27. It is clear that Mr. Volpe’s letter of May 9, 2005 did not comply with these three requirements. It is, therefore, difficult to understand why as late as July 18, 2005, Dr. Shapiro was maintaining that this was an inquiry pursuant to a request from a Member under section 27(1) of the Code. Indeed, it was Mr. Obhrai who had to correct this misapprehension.
28. The Committee believes that it is essential that the notice given to Members who are the subject of inquiries clearly specify the nature of the complaints against them, and precisely what provisions of the Code are alleged to have been contravened. Mr. Obhrai indicated that while he received a formal notice of the inquiry from Dr. Shapiro on August 4, 2005, he was not advised by the Ethics Commissioner what he was being investigated for until August 23, 2005. As Mr. Obhrai stated in the House, “This was a total of 103 days from the first interview with my sister-in-law on this matter.” Nor is it clear that notice was ever provided of which sections of the Code it was alleged had been violated.
29. Mr. Obhrai’s second complaint relates to the quotes attributed to Dr. Shapiro in the media in mid-September 2005. He explained that on September 14, 2005, his office had received an e-mail saying that Jack Aubry of the Ottawa Citizen would like to get his comments on the Ethics Commissioner’s investigation against him. When he asked Mr. Aubry how he found out, he was told that when Mr. Aubry was interviewing Mr. Shapiro he was told that Mr. Obhrai was being investigated. “He also said that Mr. Shapiro told him that he had material that suggested something inappropriate was happening.” The next day, on September 15, 2005, articles appeared in major newspapers across the country. In these articles, Dr. Shapiro is quoted as saying, “I have some material that suggests something inappropriate was happening,” and saying that Mr. Obhrai was under investigation. Mr. Obhrai also noted that in an article that appeared in the National Post on September 16, 2005, by Mr. Aubry, Dr. Shapiro is quoted as saying “But what we've got is a bunch of people who are trying to do exactly the right thing who sometimes do the wrong thing.”
30. Section 27(7) of the Conflict of Interest Code for Members of the House of Commons states:
The Ethics Commissioner is to conduct an inquiry in private and with due dispatch, provided that at all appropriate stages throughout the inquiry the Ethics Commissioner shall give the Member reasonable opportunity to be present and to make representations to the Ethics Commissioner in writing or in person by counsel or by any other representative.
31. Dr. Shapiro explained that he believes that the fact that an inquiry is under way can be made public, but that the substance of the inquiry must be kept confidential. He pointed to the fact that section 27(5) of the Code states that “Once a request for an inquiry has been made to the Ethics Commissioner, Members should respect the process established by this Code and permit it to take place without commenting further on the matter.” The intent of this provision is clear – once a matter is under investigation by the Ethics Commissioner, Members should refrain from commenting publicly until the investigation is complete. In order to know when to refrain from commenting, Members need to know when an inquiry has been commenced.
32. The difficulty in this case is that the quotes attributed to Dr. Shapiro appear to members of the Committee to go beyond merely confirming the existence of an inquiry, and seem to be passing some judgment on the case. This may not have been Dr. Shapiro’s intent. He told the Committee that he had responded to a request for an interview on his first year in office, and that he was not expecting to be queried on specific cases. He further advised that he had not kept a tape of the interview, nor had he been provided with one, but the comments attributed to him appeared to be likely, and he does not deny making them. During his appearance before the Committee, Dr. Shapiro acknowledged that if he had to do it over again, he would have acted differently.
33. In this case, the members of the Committee unanimously believe that the only appropriate response to questions from the media about the Obhrai case would have been “No comment.” Many officials are called upon to decline to comment publicly on specific cases. As an officer of the House, who is charged with dealing with matters that are frequently of great public interest, the Ethics Commissioner must be sensitive to the challenges of communications with the media. The Ethics Commissioner must develop strong communications and media skills.
34. Members of Parliament are public figures, and their reputations and integrity are among their most valuable assets. We are all cognizant of the public cynicism that exists regarding our political system. When the Conflict of Interest Code for Members of the House of Commons was being developed, considerable concern was expressed that unfounded allegations could be made and that these could irredeemably damage Members. This is why protections were built into the Code. It is also why inquiries are to be conducted in private. It is, therefore, essential that no public comments be made about on-going inquiries, other than to confirm their existence. Even this causes some members of the Committee discomfort, as it may give rise to unfair assumptions.
35. In the course of our testimony, the Committee became aware of certain amendments to the Code that should be considered. These include:
· Precision as to the standard for the Ethics Commissioner to begin a self-initiated inquiry;
· Addition of a requirement that a Member be provided immediately with written notification of inquiries in all cases, including notification of the section(s) of the Code under which a violation is alleged, and a period of time within which the Member can provide a response or explanation;
· Clarification as to when an inquiry begins and is terminated or suspended;
· Explicit requirement for the Ethics Commissioner to notify the Speaker that an inquiry has commenced, as he has been doing;
· More clarity as to the limits on the Ethics Commissioner in speaking publicly;
· Meaning of the terms “in private” and “in camera” in the context of an inquiry; and
· Details on what should be included in the Ethics Commissioner’s annual report to the House.
36. At this point, however, the Committee wishes to confine itself to the more narrow question that was referred to us; that is, whether the Ethics Commissioner has committed a contempt of the House.
37. After careful review of all of the testimony and evidence, and the issues involved in this case, the Committee has come to the conclusion that the Ethics Commissioner did not comply with the provisions of the Conflict of Interest Code for Members of the House of Commons. Thus, he was in contempt of the House of Commons. The Committee, however, is prepared to accept that these instances of non-compliance were not deliberate or intentional.
The Committee finds that the Ethics Commissioner was in contempt of the House of Commons. In the circumstances, however, it does not recommend any sanctions or penalty.
38. The Committee wishes to place on the record its concern that the procedures and processes under the Code need to be much more carefully developed and scrupulously followed to ensure this kind of experience is not repeated. The risks to Members, and the very integrity of the Code, demand nothing less.
39. The Committee also wishes to indicate that it expects the proposed rules for the administration of the Code to be submitted to it at the earliest opportunity, in accordance with section 30(1) of the Code. In addition, the Committee intends to use its general supervisory powers over the Code – Standing Order l08(3)(a)(vii) and section 33 of the Conflict of Interest Code for Members of the House of Commons – to review the Code and to recommend changes to correct flaws or anomalies that have been identified.
A copy of the relevant Minutes of Proceedings (Meeting Nos. 47 to 52) is tabled.