HAFF Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Procedure and House Affairs

EVIDENCE

CONTENTS

Thursday, June 5, 2003

Á

1115

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

The Honourable Don Boudria (Minister of State and Leader of the Government in the House of Commons)

Á

1120

The Chair

Mr. Ken Epp (Elk Island)

Á

1125

The Hon. Don Boudria

The Chair

The Hon. Don Boudria

Mr. Ken Epp

The Chair

Mr. Jacques Saada (Brossard—La Prairie, Lib.)

Á

1130

The Hon. Don Boudria

The Chair

Mr. Don Boudria

The Chair

Mr. Jacques Saada

Á

1135

The Chair

The Hon. Don Boudria

The Chair

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

The Hon. Don Boudria

Mr. Michel Guimond

The Hon. Don Boudria

Á

1140

Mr. Michel Guimond

The Hon. Don Boudria

Mr. Michel Guimond

The Hon. Don Boudria

Mr. Michel Guimond

The Hon. Don Boudria

Mr. Michel Guimond

The Chair

Mr. Gerald Keddy (South Shore, P.C.)

The Hon. Don Boudria

Mr. Gerald Keddy

The Hon. Don Boudria

Á

1145

The Chair

Mr. Gerald Keddy

The Hon. Don Boudria

The Chair

Mr. Gerald Keddy

The Hon. Don Boudria

The Chair

Mr. Ken Epp

Á

1150

The Hon. Don Boudria

Mr. Ken Epp

The Hon. Don Boudria

The Chair

Á

1155

The Hon. Don Boudria

The Chair

The Hon. Don Boudria

The Chair

Mr. Jacques Saada

The Hon. Don Boudria

Mr. Jacques Saada

The Hon. Don Boudria

Mr. Jacques Saada

The Hon. Don Boudria

Mr. Jacques Saada

Â

1200

The Hon. Don Boudria

Mr. Jacques Saada

The Hon. Don Boudria

Mr. Jacques Saada

The Hon. Don Boudria

The Chair

Mr. Michel Guimond

Mr. Don Boudria

The Chair

Mr. Don Boudria

Â

1205

Mr. Michel Guimond

Mr. Don Boudria

Mr. Michel Guimond

Mr. Don Boudria

Mr. Michel Guimond

Mr. Don Boudria

The Chair

Â

1210

Mr. Don Boudria

The Chair

Mr. Don Boudria

The Chair

Mr. Mitch Bloom (Privy Council Officer, Privy Council Office)

The Chair

Mr. Mitch Bloom

The Chair

Â

1215

Mr. Don Boudria

The Chair

Mr. Mitch Bloom

The Chair

Mr. Don Boudria

The Chair

Mr. Don Boudria

The Chair

Mr. Gerald Keddy

The Chair

Mr. Gerald Keddy

The Chair

Â

1220

The Hon. Don Boudria

Mr. Gerald Keddy

The Hon. Don Boudria

Mr. Gerald Keddy

The Hon. Don Boudria

Mr. Gerald Keddy

The Hon. Don Boudria

Mr. Gerald Keddy

The Hon. Don Boudria

The Chair

Mr. Gerald Keddy

The Chair

Mr. Gerald Keddy

The Chair

Mr. Mitch Bloom

Mr. Gerald Keddy

Â

1225

Mr. Mitch Bloom

Mr. Gerald Keddy

The Chair

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

Mr. Don Boudria

Ms. Marlene Catterall

The Chair

Mr. Ken Epp

Â

1230

Mr. Don Boudria

Mr. Ken Epp

The Chair

Mr. Don Boudria

The Chair

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CANADA

Standing Committee on Procedure and House Affairs

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NUMBER 051

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Thursday, June 5, 2003

[Recorded by Electronic Apparatus]

Á  (1115)  

[English]

    The Chair (Mr. Peter Adams (Peterborough, Lib.)): Colleagues, Let us begin.

    The order of the day is Bill C-34—not Bill C-24, for the first time for some days—An Act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence.

    Our witnesses include the Honourable Don Boudria, Minister of State and Leader of the Government in the House of Commons. Minister, welcome to you. From the Privy Council Office we have Ron Wall, who is director of parliamentary relations; Ron, it's a pleasure to have you here. As well, we have Mitch Bloom, who is a Privy Council officer; Mitch, thank you for coming also.

    Colleagues, before I invite the minister to speak, I'd like to say this—we discussed this briefly yesterday. Minister, I'd be grateful if you and your colleagues would listen to it also.

    My thought is that, if anything, these hearings will end relatively early so that we can go in camera to consider some organizational matters. The organizational matters have to do with Bill C-34 and with our second report on Bill C-24.

    Minister, this is not for me to say to you, but if you could, be relatively brief. And then, colleagues—I'm in your hands, of course—if we could be relatively brief with our questioning, we could move to that organizational matter relatively early.

    Minister Boudria, I'd be grateful if you'd proceed with your remarks. Colleagues, we have copies of the minister's presentation.

[Translation]

    The Honourable Don Boudria (Minister of State and Leader of the Government in the House of Commons):

    Thank you, Mr. Chairman.

    First of all, before I say anything about Bill C-34, I would like to thank the committee for their excellent work on Bill C-24. Thank you for your commitment and your very good work.

    With me today are Mr. Wall and Mr. Bloom, whom we have already introduced. I am pleased to be here today to discuss Bill C-34, which concerns the Ethics Commissioner. The bill reflects all of the committee's recommendations for changes to the draft bill. We have included all the amendments you recommended, without exception.

    I would like to take this opportunity to recognize the excellent work of this committee on the draft bill; your contribution to shaping Bill C-24 has made it possible for us to improve it before referring it to you officially.

[English]

    As recommended by the committee, the appointment process has been changed to include consultations with leaders of all recognized parties in the House, followed by a motion. This process is consistent with the process used in several provinces, including Ontario and New Brunswick. It's also similar to the approach for agents of Parliament, such as the information and privacy commissioners.

    As proposed, appointments will also be considered by a committee of the House under changes the committee has proposed to Standing Order 111. As recommended by the committee, the term of the ethics commissioner has been increased from a single five-year term to a renewable five-year term. That's what you asked, and that's what we did.

    Before I go any further, I just want to remind colleagues that the House adopted some time ago the unanimous report of the first modernization committee. Recommendation 17, adopted unanimously by the modernization committee and then unanimously by the entire House of Commons, speaks of that appointment process that we have in this bill, and if someone wants me to later, I could read the entire recommendation. I'll not do it now, but I have it handy.

    This committee recommended that a mechanism for parliamentarians to request that the ethics commissioner examine the actions of a minister or secretary of state under the Prime Minister's code be extended to include parliamentary secretaries. This is what Bill C-34 does; it covers the parliamentary secretaries. It was not sufficiently clear in the previous bill. It clarifies it. That's what you asked; again, that's what we did.

[Translation]

    The Senate has also proposed changes. The Senate committee that studied the draft bill recommended a separate Senate ethics officer, given the Senate's traditions and the differences that exist between the Senate and the House. This is reflected in Bill C-34.

    This approach would be quite consistent with that of the United Kingdom. The House of Lords and the House of Commons have different officers. I was there just two weeks ago with some of my colleagues, and we noted that this is indeed what they do.

[English]

    Several technical changes were made in Bill C-34 as well, Mr. Chairman. The new wording clarifies that ministers, secretaries of state, and parliamentary secretaries are subject to House or Senate codes when carrying out their duties as members of Parliament or senators.

    In other words, once you become a secretary of state or a minister or a parliamentary secretary, you're not subtracted from the present code; you're still a part of it. Everything is “in addition to”, so no one can be worried that someone will be subject to one code and it will somehow exonerate them from the other. That's not the case, just to be clear. It was never the intent, anyway.

    This ensures that public office holders who are also parliamentarians are subject to the Senate and House codes in the same way as every other parliamentarian. In addition, when carrying out their duties as ministers, secretaries of state, or parliamentary secretaries, they'll be subject, obviously, to the additional Prime Minister's code. So they're subject to both.

    Bill C-34 also requires that requests to examine the actions of ministers, secretaries of state, and parliamentary secretaries under the Prime Minister's code be made in writing and based on reasonable grounds. This is similar to the mechanism I'm told your committee is considering for your code for the House. We're incorporating the same language as we understand you're considering right now, again to be consistent, and doing it in a way that as much as possible reflects the views of your committee, Mr. Chairman.

Á  (1120)  

[Translation]

    Also, the Ethics Commissioner would be required to suspend an examination of the conduct of a minister, secretary of State or parliamentary secretary, where there are reasonable grounds to believe that an offence may have been committed, when an act of Parliament may have been breached. In other words, if the issue involves a breach of the law, if the matter must be handled by the police, then we stop the parliamentary examination and refer the case to the authorities, who then carry on.

    This is consistent with the process being considered under the code for the House. Your committee is also studying that code, Mr. Chairman, and again our response reflects the committee's recommendations.

    That concludes my presentation. I would be pleased to answer any questions the committee may wish to raise. I know that your committee has a very full agenda this morning, Mr. Chairman.

    The Chair: Thank you, Minister.

[English]

    Colleagues, as you can tell from the presentation, this is a response to our 27th report and to the report of the Senate on this matter. I appreciate that fact.

    I'd also remind you that we're faced with two things. One is Bill C-34, which is what we're discussing now, and the other is the changes to the Standing Orders—the codes the minister referred to. By the way, we can discuss them together, but in fact they're separate items.

    From our point of view, this is legislation that we are in the process of moving forward. The matter of the code, to which we've given a great deal of time, is a much more complicated technical matter. In the organizational meeting following this meeting, we'll be discussing both things: how we proceed with the legislation, but also how we continue the considerable work we've already done on the code.

    Minister, we have a practice here of six-minute exchanges. We move around. The answer and the question are part of the exchange.

    I have Ken Epp, Jacques Saada, Michel Guimond, and Gerald Keddy.

    Ken Epp.

    Mr. Ken Epp (Elk Island): Thank you, Mr. Chairman. Thank you, Mr. Minister, for being here.

    I would like to ask you some serious questions. The first one is about the appointment of the commissioner. I've tried to express in this committee and also in the House the concern we have about the true independence of this commissioner.

    I know you say he or she is just as independent as the Auditor General or some of the other officers of Parliament. But we have a continued concern, because this individual is going to have a unique role. That is, he or she will have jurisdiction over, basically, the life of members of Parliament. What this person rules, if an ethical question comes forward, could end the person's career—even though there's always that interpretation: what happens if the ethics commissioner says the person is innocent? There's always that lingering doubt in the minds of the people, and it could turn things politically.

    This is a person who must be highly respected and have the approval, I believe, of all members of Parliament. To ask for a unanimous vote in the House I think is excessive, but I'm very concerned when, if we have a majority government, the Prime Minister picks the person and there's a ratifying vote in the House. Why would the government members—whatever party it is, even if it might next time be the Canadian Alliance—not support, or what would prevent them from supporting, the choice of the Prime Minister over the objections of those in opposition?

    I would like to see some sort of super majority. I've been thinking about this. We could say, I know, that our legal counsel here told us that in the House the votes are all by simple majority, and that's required by the Constitution.

    We could say in here, “Notwithstanding any other practice of the House, the usual way of doing this will be...”, so that at least we have a legislated anticipation or expectation of a super majority—a two-thirds vote. I've suggested a majority of the parties in the House approving the appointment of this member so that we do not have a political steam-roller choice of this individual.

    I know under normal circumstances we don't expect that to happen, but we're here building rules that I think we have to look to as preventing the bad things that could happen in the worst-case scenario.

    What is your response?

Á  (1125)  

    The Hon. Don Boudria: I'm just looking at the provincial models here. We're largely, but not exclusively, modelling this on what they do. Most provincial jurisdictions have nothing of the sort. I'm not saying there aren't two that do; in fact, two of them do, namely B.C. and P.E.I. But for the rest, although they have similar positions, there's nothing like that. There are not the safeguards that we've put into our own mechanism.

    We unanimously adopted as a House a year ago what I'm going to say now:

The Committee recommends that the Government, following consultation with the opposition parties, should table a motion to appoint an officer of Parliament

—this is an additional officer--

    

and the individual should appear before the appropriate committee of the House before the motion is voted on. The appointment should be made only following approval of the appointment by resolution of the Senate and House of Commons; provided that in the case of the Chief Electoral Officer and the Clerk of the House of Commons, only the approval of the House should be required.

and it goes on to describe all of this.

    A year or a year and a half ago, we unanimously decided as a House that's how we would deal with the appointment of House officers.

    I've been House leader, except for a very short while, since 1997. I guess that now makes me the second-longest-serving government House leader in Canadian history—I'm told people don't usually last too long in this job. We have appointed four or five House officers. Every one of them has been appointed by unanimity since I've been there, and that was in the absence of the rules we have here.

    Does anyone legitimately think that for the ethics officer anything other than just about unanimity, probably, is the threshold anyhow? Obviously we're not going to put that into the Standing Orders, but the political legitimacy such an officer needs is very high. Could you imagine—and I'll use a lesser threshold, but still as important—appointing the access to information commissioner when 45% of the MPs were disagreeing that the person should be appointed? I can't see that the person would have any moral authority; it would be very difficult, anyway.

    It's the same with the others. Take the official languages commissioner. One has been appointed while we've been here—

    The Chair: Briefly, Mr. Boudria, please.

    The Hon. Don Boudria: Okay, I'm sorry.

    And there are Mr. Reid and Mr. Radwanski. Nobody objected to these appointments; they all went through that process.

    Mr. Ken Epp: I'm going to interrupt you, because my time is running out here.

    You're missing the point. All of these individuals deal with government. We are now talking about an individual who's dealing with individual members of Parliament. I would have thought like you about nine and a half years ago, but now that I've been here and have seen the political dimension of this place, I don't want that part to totally cloud the work of this individual.

    If we want Canadians to trust this ethics commissioner, we must make sure he is totally independent, and not an appointee of the Prime Minister, and not just checked off by the government party at the behest of the whip.

    The Chair: I'll cut it off there. I'd like to remind both the minister and the member

[Translation]

    that the chairman is still here.

[English]

And that, Ken, means speaking through the chair.

    Ken, if it's okay with you—this is an important line of questioning—I'll put you on the list again, virtually immediately.

    I have Jacques Saada, Michel Guimond, Gerald Keddy, and then Ken Epp.

    Jacques.

[Translation]

    Mr. Jacques Saada (Brossard—La Prairie, Lib.): Thank you for still being here, Mr. Chairman.

    I have two questions. I will begin with the question I believe is more basic. If I have no time for the second, I will come back on the next round.

    Throughout the discussions we have had on this issue before preparing our report, one of my primary concerns has always been to prevent complaints being used as a political tool, in cases where the person against whom the complaint is laid has no time to defend himself against the allegations, or where other circumstances make it impossible for him to defend himself.

    We have made some progress in our report, and I am happy to see that you have adopted the recommendations on reasonable grounds and ensuring that complaints are made in writing by a parliamentarian. What worries me is that the bill—unless I have not read it correctly—contains no confidentiality guarantees concerning the fact that a complaint has been laid.

    I am not talking about confidentiality with respect to the investigation, but confidentiality with respect to the very existence of the complaint, in a critical period where the person against whom the complaint has been laid may not have enough time to vindicate his or her actions before the public.

    In other words, should we not provide for some mechanisms to prevent the complainant from making the complaint public before the commissioner has reached some conclusions? The person against whom the complaint is laid will be a parliamentarian, who should be able to enjoy the same rights as any other citizen—he should be considered innocent until proven guilty. The complaint should therefore remain confidential, and the commissioner should not disclose the existence of that complaint until he has arrived at some conclusion.

Á  (1130)  

    The Hon. Don Boudria: In my view, these things should be in the code, rather than the legislation. You have to be careful, however, and not go too far. First of all, at the provincial level, the existence of a complaint is almost always known. We are in politics, after all, and what I am going to describe now may or may not be described as regrettable.

    Let us say that a journalist writes an article alleging that a given member of Parliament has done something that violates the code of ethics. In the House, the member asks whether his action really does violate the code of ethics. This is politics, after all. These things happen; they are related to our right and our responsibility to question one another in public. In my view, that accountability must be maintained.

    If things were otherwise, we could deal with it differently: we could refuse to answer any questions on our own conduct, using the fact that there is an ethics commissioner as an excuse. We could claim that we are no longer accountable to anyone. This could be dangerous, however.

[English]

    “Don't ask me about this anymore; there's an ethics commissioner. I don't ever have to answer a question about my behaviour.” It would be a thing that could perhaps go a little far if we're not careful. Anyway, no provincial scheme refers to that.

    As far as the evidence and everything else before the commissioner is concerned, I understand the deal already provides that it's not accessible; nor should it be. As a result of access to information and so on, that is only proper with any investigative process.

    Any tightening up you want to do in that regard, I suggest, is going to have to be in the code, but even there we have to be careful at the same time that we don't tarnish people unnecessarily, and on the other side that we don't make it so they're not accountable.

    The Chair: Jacques Saada, relatively brief—

    Mr. Don Boudria: It's a fine line.

    The Chair: And Minister, it wasn't Ken Epp who wasn't referring to the chair; it was you.

    Jacques Saada.

[Translation]

    Mr. Jacques Saada: I would like to come back to what I was saying before. I know that we have to find a balance, and I have a suggestion to make.

    For example, if a member wants to ask questions in the House of Commons about an issue relating to ethics or to the conduct of another member or of a minister, he could do that before the complaint was laid. But once the complaint was laid, he could not ask his question in the House of Commons, because the issue would be before the Ethics Commissioner.

    I am not worried about the kinds of questions that could be asked in the House. I am not worried about that; if we ask a question in the House of Commons and do not get a good answer, or do not get an answer right away, the media will be on it like a shot during scrums, and we will have to justify our actions. There will be a group that comes together to defend the person who has been accused.

    However, what worries me is what happens when Parliament is not sitting. Let us say that someone lays a complaint on the second day of an election campaign, and has waited to lay that complaint for days because the campaign was coming up and he did not want to be hindered by the rules. The person targeted by that complaint will have no opportunity to defend himself or herself. That is what worries me.

    I understand your concern. There are ways of finding mechanisms that strike a balance, but I am still very concerned. We are in politics, and some political objectives are not necessarily always noble. Unfortunately, we know that full well. That is just how things are. I would not like to see a process that is well intended end up harming those who have done absolutely nothing wrong.

Á  (1135)  

[English]

    The Chair: Minister, you have time for a very brief comment.

[Translation]

    The Hon. Don Boudria: All I can do is advise you and all parliamentarians to try to strike a better balance in drafting the code, without infringing on freedom of expression. That will be very difficult.

    However, it will be important for the concerns expressed by Mr. Sadaa to be somehow taken into account.

[English]

    The Chair: Michel Guimond, and then Gerald Keddy.

[Translation]

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

    Minister, I must acknowledge that you have taken the committee's recommendations regarding the process into account in the bill.

    I would like to gain a better understanding of how leaders will be consulted, and how the appointment process would work. If I understand correctly, the government puts forward a name or a list of names, consults with party leaders, and at the end of the consultation process tables a motion. What happens when the parties cannot agree? What happens if the parties do not unanimously agree on one person?

    The Hon. Don Boudria: Mr. Chairman, though the process has never been formalized, it has already been applied several times in the past. I remember a case where someone—I will not say who—wanted to stand for an important position as an officer of the House of Commons. The parliamentary leaders got together, each of the leaders consulted his party, and we were told that there would be no consensus. We informed the candidate and he withdrew, since he wanted everyone to approve his candidacy. He therefore did not officially stand for the position.

    Let us not forget that the standing orders continue to apply, we do consult the parties about candidates, but there is no rule about this, specifically. is not in the standing orders. Let me read you the exact wording in English:

[English]

“the Government, following consultation with the opposition parties, should table a motion to appoint an officer of Parliament”.

[Translation]

    So this is [Editor's Note: Inaudible]

[English]

“and the individual should appear before the appropriate committee”.

[Translation]

    So for a position like this, I take it for granted that the candidate would appear before this committee, since it is this committee that deals with privileges. The proposed candidate would testify before this committee, as did Ms. Adam when she was appointed Official Languages Commissioner, even though her appearance was not mandatory. If memory serves, Mr. Reid and Mr. Radwanski appeared before this committee as well.

    First we established a tradition, and then we established the rule. This is what we have been doing since 1997. This is the process we now want to enshrine in the legislation.

    Mr. Michel Guimond: How does the process work for appointing an Auditor General? Last year, we replaced Mr. Desautels after he completed his 10-year term. If I remember correctly, the Auditor General is appointed for a non-renewable 10-year term. Last year, he completed his non-renewable 10-year term, and Ms. Fraser was appointed to the position. So either I missed something, or I was not sitting on the Procedure and House Affairs Committee, but how exactly was the Auditor General appointed?

    The Hon. Don Boudria: The Standing Committee on Procedure and House Affairs is not involved in the Auditor General's appointment, Mr. Chairman, because the Auditor General's Office comes under a different parliamentary committee.

    The Auditor General was appointed during the brief period when I was not government House leader. However, I was not closer to the process for other appointments. I am told that in fact the same process was applied. In any case, that is when the new standing order 111 was adopted. This means the government did not actually have a choice: it had to have the support of the House of Commons. But House support for the Auditor General is not provided for in the legislation, but solely in standing order 111. We have required the support of the House ever since 1997, but standing order 111 now makes it mandatory, since the House concurred in the report of the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons, which was tabled about a year and a half ago—I do not remember the exact date—and since we have these new standing orders.

Á  (1140)  

    Mr. Michel Guimond: So Ms. Fraser would have appeared before the Public Accounts Committee, since that is the committee that deals with matters relating to the Auditor General. She would have appeared before the Public Accounts Committee, where her candidacy would have been discussed. That is what I understand.

    The Hon. Don Boudria: If necessary, yes, Mr. Chairman. But we should bear in mind that her case was somewhat different; she was the Deputy Auditor General. Everybody knew her. So I do not know whether the committee chose to interview her or not, since everyone already knew her. Her case might have been somewhat different from that of Ms. Adam, who came from the University of York and who was interviewed by the parliamentary committee. Only after the interview was her candidacy put forward. Her case was somewhat different, because she was not known. However, everyone knew Ms. Fraser in advance, and since she was probably appearing before parliamentary committees about once a week, I really cannot say whether the committee decided to interview her. But she was the Deputy Auditor General, a career official who had been there for many years.

    Mr. Michel Guimond: She was not a career official, but had a career as an accountant; I worked with her.

    You are talking about Ms. Sheila Fraser?

    The Hon. Don Boudria: Yes. She had been an official, the Deputy Auditor General, for some time.

    Mr. Michel Guimond: For one year.

    The Hon. Don Boudria: In any case, all the committee members knew her.

    Mr. Michel Guimond: I just wanted to clarify the term “career official”.

    Thank you.

    The Chair: Thank you, Michel.

[English]

    Gerald Keddy, and then Ken Epp.

    Mr. Gerald Keddy (South Shore, P.C.): Thank you, Mr. Chairman.

    I have a couple of questions on the issue of disclosures and the situation where we will have two codes that apply. I'm still not clear on the disclosure of private interests by the spouses of parliamentarians and the children of parliamentarians. I don't see why there's a difference between the House code and the Prime Minister's code.

    The Hon. Don Boudria: Mr. Chairman, what you and your colleagues put in the code is going to be what you decide; the government is not telling you what to put in the code. I can only remind you, though, that Milliken-Oliver said it didn't work without that. I believe your committee also came to that conclusion some time back. And of course it's already the case for ministers. My wife has to disclose now; that's already the case.

    In the case of dependent children, having my hair cut means they've left and are on their own now. They're not living at home, so it doesn't apply, and by the time I was named to cabinet, they had already gone.

    Certainly my spouse does have to disclose; that's under the ministerial code. But what you put in your code is your business. If I refer to Blenkarn-Oliver—I was on that committee—or Milliken-Oliver, which made similar recommendations, or the provincial ones, or the U.K. one, or of course your own testimony that you heard for your interim report, I conclude that you, Mr. Chairman, and your committee have already come to that conclusion.

    But I don't want to tell you what to do in the code. This is only the implementing bill we have before us, not the code. It's ultimately for members of this committee to work on.

    Mr. Gerald Keddy: Thank you, Mr. Chairman.

    I guess I'm new to the committee and have to get up to speed on this particular piece of legislation, but it's still my understanding there is a discrepancy between the codes. On the issue of the disclosure for spouses and dependent—or even independent—children, I would think the codes for the Prime Minister and the House of Commons would be the same. I would think they would have to be for continuity, but I'm asking....

    The Hon. Don Boudria: I think that's a perfectly reasonable way to approach it. It's already the case for ministers. Your interim report said you wanted to do that, and I hope you pursue just that. If you're asking my opinion, I think it would be difficult for the code to work at all without that, but then I'm only reiterating what this committee has said already.

Á  (1145)  

    The Chair: Gerald, if I could comment, you understand that we're in the process of getting our heads around this again. I realize your particular case, but we've been round this a number of times. Given the other business we've had, we're just getting at it again.

    But the matter of disclosure and the two levels of it is something we're going to have to consider very seriously. So you put your finger on something very important.

    Mr. Gerald Keddy: I guess the other issue becomes that of contracting with the Government of Canada.

    As we've been more than a little busy, I've not had an opportunity yet to read this bill, but what are the rules? Are there going to be different rules for ministers of the Crown versus members of Parliament? I would see a difference in the two roles.

    The Hon. Don Boudria: Again, Mr. Chairman, this is the code material—not the bill material.

    To maybe take a minute to describe how the process works, we've established the bill to create the structure for the commissioner in the House and the officer of the Senate. As for actual codes, the House will produce its own and the Senate will produce its own, and there's already the Prime Minister's code, of course. But it's in addition and doesn't replace what the committee is going to do. What you include in there is what you are going to decide.

    Meanwhile, in the provisions of the Parliament of Canada Act, the reference to what is called a “public work” is a rather vague term. What's a “public work”? Clearly, in 1867 it would have meant a bridge and a culvert, but it probably wouldn't have meant computer programming, given that most people hadn't got their heads around that one at the time. But most of us today, Mr. Chairman, will probably think that either of those are just as valuable or just as much a “work” as the other, although the latter was not envisaged.

    Those are things that you and your committee will have to put in your code. Of course, there's no doubt that a minister can't contract with the Crown. A minister can't even have outside employment of any kind. Heck, we can't even drive our own car!

    The Chair: Gerald, this is useful for all of us, as I know it is for you. Please continue.

    Mr. Gerald Keddy: I have one further quick question, and I assume there will be another round of witnesses. But for the minister directly, have you had direct contact with the British House of Commons on how their code is applied, or the Congress or the Senate in the U.S.? And does there seem to be a preference, since other countries have obviously faced the same situation? There has to be a conflict of interest code, and an ethics commissioner has to be elected or appointed. Where do you see a good example?

    The Hon. Don Boudria: Mr. Chairman, I did meet with the commissioner of interest—which I think is the appropriate name—in London about two weeks ago. I could table the actual name of the official I met. He is on the house side at Westminster, and he described to me the distinction between the officers of the two houses. That's where I found out there were two of them, which is same as in our bill. I did not meet with the officer responsible for such things in the House of Lords.

    Last summer I also met with the B.C. officer, the Alberta officer, and with the Ontario and Quebec officers. In the case of Quebec, I did not meet the number one official, but I think I met the number two official at the time.

    So to answer the question directly, I have met with people who hold parallel functions in B.C., Alberta, Ontario, Quebec, and the U.K. House of Commons.

    The Chair: Ken Epp, and then Jacques Saada.

    Mr. Ken Epp: Thank you, Mr. Chairman.

    I don't think there's much point in pursuing further this issue of the appointment. I think I've made myself clear and will continue to do so. I would simply point out that in a jurisdiction like British Columbia, they have an all-party committee that actually recruits the commissioner, and then the process goes from there, instead of it being initiated by the Prime Minister as his or her personal appointment.

    I want to ask a question in another area, and that is with respect to the rules. In our parliamentary system we have two kinds of individuals in the House of Commons, the backbench members of Parliament and the members of the government. We have two different codes applying here, and the general description is that under Bill C-34, the ethics commissioner and the code of conduct will apply to all members of Parliament, including cabinet ministers, with respect to their role as members of Parliament. Then there is this other code affecting cabinet ministers, which is the Prime Minister's code. I think we have a bit of a dilemma here, because if there's a complaint about a person who is both a member of Parliament and a cabinet minister, the commissioner is going to have to choose whether or not the individual in the particular instance of the complaint falls under the Prime Minister's code or the under the ethics code of the House of Commons.

    It says clearly in the legislation that if there is a question about this or about the two rulings, then the Prime Minister's code shall prevail.

    I'm going to ask a pretty distinct question here. When he was being questioned about the deals with the hotel in his riding, we had the Prime Minister say he was just doing the work of a member of Parliament. Would that mean that if a complaint were issued with respect to that specific issue, the commissioner would then take the Prime Minister's word and deal with the members of Parliament's code on this issue, or would the Prime Minister's code prevail?

    Of course, then there's another curious question. Who then is the commissioner going to report to, since it says that in matters of cabinet ministers and other public officer-holders, the commissioner reports to the Prime Minister? So if there's a complaint about the Prime Minister, the commissioner is going to report to the Prime Minister. Well, big deal.

    I think we have a bit of a gap here.

Á  (1150)  

    The Hon. Don Boudria: First of all, I'm going to leave out the personal references to any member of Parliament, whether that person is Prime Minister, leader of the opposition, chair of the National Citizens' Coalition, or anyone else.

    Some hon. members: Oh, oh!

    The Hon. Don Boudria: That's neither here nor there.

    Mr. Ken Epp: Well, it is, because it's the whole issue here.

    The Hon. Don Boudria: On the first point of the issue of the appointment process, no other officer of Parliament would have what the member is advocating. This very committee has not recommended what the member is asking; it made a unanimous report, and we've followed every recommendation it has made, bar none. So everything this committee asked for is in there. So that's the answer to that part of the question.

    Regarding the Prime Minister's code and the code for members of Parliament, the Prime Minister's code as it pertains to members of Parliament is, of course, in addition to, but does not replace. It applies to everybody. Someone who did not offend in any way the code for members of Parliament, Mr. Chairman, obviously has not offended that code. So when the ethics counsellor seeks to...he starts at the bottom to see if they've offended that code, and when you reach that threshold, if they haven't, he just keeps going up to keep finding if they have done so in the superior code. It's not rocket science. That's the way it's done.

    I am told the provincial commissioners who testified before this committee testified that system works well for them. That's the system they have.

    Now, I believe this business about any misdeed only being reported to the Prime Minister, is not accurate in this regard, Mr. Chairman. I'll get back to the answer here as to who the reports are made public to, but it goes beyond simply having that issue made to the Prime Minister. There are other thresholds of accountability.

    Someone is getting the information for me now, but perhaps I can interject that answer as part of a follow-up question.

    The Chair: Can I just say on behalf of the committee, because I know Gerald is thinking these things are new, any thoughts you and your colleagues have on this matter of how you interpret the duties and functions of the office of a member of the House.... Following some sort of complaint, if you imagine the commissioner thinking it through, he or she would say, were they acting as a member of Parliament, or were they acting as a minister? I am referring to proposed subsection 72.05(1) in the bill. If you think about that—and I'm sure you could think about a whole list of things that would qualify the person as acting as a minister or member of the cabinet—I wonder if the commissioner is almost always going to come down on the side of working within the ministerial code in the case of a minister, rather than the code for members of Parliament.

    Would it then not be more straightforward just to say, well, you know that ministers of the Crown always come under the ministerial code, even if in some way they're performing their duties and functions as members of the House?

    Minister, I think this is an important aspect to us in trying to design this legislation so that the person taking this very important office has as much guidance as possible.

Á  (1155)  

    The Hon. Don Boudria: If I may, Mr. Chairman, I think that perceptually and otherwise, if I were here asking for ministers to be exempt from the code of members of Parliament, I think you'd probably all say no to me.

    The Chair: I can accept that conceptually, but I'm thinking about the mechanics of this person trying to sort it out. That's all.

    The Hon. Don Boudria: Again I refer to the provincial commissioners, who didn't seem to have any difficulty with that proposition at all. In virtually all cases, everything that is asked of a minister as a minister is almost always superior or more severe, if I can put it that way, than what is asked of someone who's not a minister. So perhaps it would almost automatically have that result anyway.

    The Chair: I don't normally do this and would like to stop, but you did say, “almost always”. The question is, if you were a person having to follow some rules, how much simpler would it be to say “always”? While I understand you can't quite say that, I have difficulty separating the two, and I suspect the commissioner would have the same difficulty.

    Jacques Saada, Michel Guimond, and Gerald Keddy.

[Translation]

    Mr. Jacques Saada: Thank you, Mr. Chairman.

    I will begin with a comment, and then ask two questions.

    If I remember correctly, minister, in the 1993 Red Book we had already said that we would create the position of Ethics Commissioner, and that the Ethics Commissioner would be accountable to Parliament. I am very happy that we have come to this point, and that Parliament will be able to have its say.

    Following up on what Mr. Guimond was discussing a few moments ago, there is something I would like to confirm. If I understand correctly, there will be a four-part approval process for the Ethics Commissioner. On the government's initiative, all parties will be consulted. Once the party leaders give their consent, a motion will be tabled in the House to have the candidate approved. Once the motion is passed, will the candidate then be invited to appear before the committee?

    The Hon. Don Boudria: Before that.

    Mr. Chairman, may I answer that question?

    After the motion is tabled, the candidate will be invited to appear before the Parliamentary committee. The motion will be voted on in the House after the candidate has been interviewed by the committee.

    Mr. Jacques Saada: So it is a three-part process, not a four-part process. First, there will be consultation among party leaders, then the candidate will appear before the committee, and then the motion will be put to a vote.

    The Hon. Don Boudria: Yes, it would have to be put to a vote and passed.

    This is under Standing Order 111.

    Mr. Jacques Saada: I will ask my next question during our clause-by-clause study of the bill, but I would like to put it to you first.

    The English version of subclause 72.95(1) states:

72.05 (1) The Ethics Commissioner shall perform the duties and functions assigned by the House of Commons for governing the conduct of its members when carrying out the duties and functions of their office as members of that House.

    The French version is equivalent to the English.

    Are we to believe that the conduct of members carrying out their duties could severely breach the code of ethics, and consequently, that the terminology used here may be somewhat too invasive in relation with what we are trying to do?

    The Hon. Don Boudria: Mr. Chairman, I don't know if that is what we are talking about, but if so, it would of course go beyond ethical considerations. We could be talking about a breach of the law. There is another provision stipulating that, in such cases, the commissioner suspends his examination and refers the case...

    Mr. Jacques Saada: Let us say that I make a false statement in a public place. If I do that in the House—that is, if I knowingly make a false statement in the House—then it is a question of privilege. If I make a false statement outside the House, as I could well do quite knowingly, then it is a lie, or an erroneous statement. This is not really a matter of ethics, but the matter does concern the accuracy of my statements. Yet my conduct is nonetheless at issue.

    In other words, if the Ethics Commissioner has the power to govern conduct, are we not going too far with this wording?

  (1200)  

    The Hon. Don Boudria: I don't think so, but I can certainly ask Privy Council officials to look carefully at the terms involved. We are of course talking about conduct pursuant to the code that governs it, or rather in this case the two codes that govern it, and the conduct in question must be covered by those codes.

    If an individual's conduct is found unacceptable by some people, but the individual has violated neither the law nor the codes, then it must be determined whether the commissioner considers he has the authority to tell that individual that—for example—he spends too much time in bars and this is not acceptable. If going into bars is not covered by the code, then the commissioner does not have that authority.

    Mr. Jacques Saada: So, minister, what you are saying implies that you see no inconvenience to adding that restriction to the wording, to ensure that only conduct covered by the code comes under the commissioner's authority. It remains to be seen how this would be formulated.

    The Hon. Don Boudria: Well, if that is not clear, of course we could add something to the wording. I thought it was there already, since this provision says: “The Ethics Commissioner shall perform the duties and functions assigned by the House of Commons...”. The French states:

[English]

“The Ethics Commissioner shall perform the duties and functions assigned ...for governing....” So the “assigned” is the code, or the code is what is assigned to him.

    But having said that, I think the question is that it doesn't say he's not responsible for things not assigned. It only says he's responsible for the things that are assigned, which presumably could mean that he could go beyond them. It's an interesting question, and I'll ensure that the language is clear.

[Translation]

    Mr. Jacques Saada: Well, I am asking the question and I would like advice on this, please.

    The Hon. Don Boudria: Of course. We will ask the lawyers.

[English]

    The Chair: Michel Guimond.

[Translation]

    Mr. Michel Guimond: Thank you, Mr. Chairman.

    Minister, when the Ethics Commissioner is investigating a complaint regarding the conduct of a minister or parliamentary secretary, there is a decision he has to make before he begins an investigation. He must decide whether a complaint laid against, say, Mr. Boudria, pertains to Mr. Boudria in his role as government House leader, as minister of the Crown, or as member of Parliament. This is something he must decide so that he can determine which code applies. Is that not so?

    Mr. Don Boudria: Yes, in part. Depending on how the Ethics Commissioner goes about his duties, I think I can simply say that he must first determine whether a complaint is valid.

[English]

    The Chair: With respect, Michel, excuse me, but I think the point is that as the bill is written, the commissioner operates under one code or the other.

    Minister, you've hinted earlier that it was possible to go from one to the other. You might say, well, we're on this one, but now we move.... But it seems to us that it's either one or the other.

    I'm sorry, Michel, but please continue.

[Translation]

    Mr. Don Boudria: Of course, the commissioner will look at both codes if the complaint has been laid against a minister. If it has been laid against a backbencher, then it is quite simple.

    But when the complaint is laid against a minister, the commissioner will first check the code of ethics for members of Parliament and see whether there are any grounds for the complaint. If not, the complaint is invalid under that code. But before saying that the complaint is invalid altogether, it has to be considered under the other code. If something is found, then the commissioner reports in accordance with procedures.

    When a minister is involved, the rule is that the member of Parliament who laid the complaint receives the Ethics Commissioner's report at the same time as the Prime Minister and the person about whom the complaint was laid. The report is published.

    The report is therefore public. This also answers Mr. Epp's question.

  (1205)  

    Mr. Michel Guimond: When I read subclause 72.05... and I am really not trying to split hairs here--

    A voice: How will they translate that?

    Mr. Don Boudria: I hope they forgot that bit.

    Mr. Michel Guimond: Yes, because when I talked about splitting hairs, I was referring to very small details. I really don't want to do that, I don't want to get hung up on very small details. But according to my interpretation of 72.05, the commissioner is still not deciding on whether a complaint is in order. He first has to decide under which code the complaint will be examined, and then whether it is in order.

    You said that first the commissioner would determine whether a complaint was valid, and then determine which code would apply. That is not how I understand the process. Perhaps I am not reading this correctly...

    Mr. Don Boudria: I did not say he would announce whether the complaint was valid. I said he would investigate to determine whether the complaint was valid. He probably does all this together, before making his determination, because a complaint may be invalid in one case but valid in another. The complaint may be so farfetched... For example, let's say that someone lays a complaint stating that Mr. so-and-so talks to the stars, or something like that. It's easy enough to say this complaint would not be valid.

    But otherwise, as long as the complaint is serious, I imagine that the Ethics Commissioner and any provincial counterparts who appeared would examine the entire issue to determine whether the codes were in fact being violated. They would assess which specific code was being breached, as they were studying the issue. It is all part and parcel of the same process, and there is no particular sequence that I have identified for determining the validity before the complaint is announced and investigated.

    Mr. Michel Guimond: In any case, this should be considered more carefully.

    But what I really want to know was whether the Ethics Commissioner's decision on which code applies can be appealed. If it can be appealed, then what is the appeal process?

    In other words, if I have laid a complaint against you, and the Ethics Commissioner decides that the ministers' code applies while I am convinced that the members' code applies, then how can I appeal the commissioner's decision?

    Mr. Don Boudria: All decisions made by the commissioner are made by virtue of our rights as parliamentarians. The commissioner is an officer of the House. At least, ours would be an officer of the House and there would also be a commissioner for the Senate, who would be an officer of the Senate. The bill provides for two different officers, following the recommendations made by both Houses.

    Under Standing Order 108(2), any issue can be brought before a parliamentary committee. The Ethics Commissioner, as an officer of the House, would report to a parliamentary committee, your committee. This would give parliamentarians the opportunity to ask the commissioner why he had made a given decision, for example.

    All reporting requirements for officers of the House would continue to apply, such as the reporting requirements for the Official Languages Commissioner, or any other officer of the House. Moreover, in addition to regular reports, there will an annual report by the Ethics Commissioner, to be reviewed by this parliamentary committee. All these requirements would continue to exist since the Ethics Commissioner will be an officer of the House of Commons.

[English]

    The Chair: Minister, excuse me. Michel, it's over time.

    Before I go to Gerald and then to Marlene Catterall, I want to say the committee is well on the way with this process. We've heard the witnesses. We've heard from the provinces. We understand how the provinces function. We've had a round table of MPs. We've had comments back from members of Parliament. We produced our report, and as at least one of our colleagues indicated, we greatly appreciate the way you've responded to the points in our report.

    As chair, I feel we're well on the way with this process. We're down to all sorts of detail. On this matter that Michel is discussing, this matter of the degree of separation or the links between the two codes—and this isn't a point of view, Minister, around the legislation. I don't know if you have someone there with you from Privy Council or a lawyer. I know you're very close to being a lawyer, but proposed subsection 72.05(4) says in the English:

For greater certainty, the administration of any ethical principles, rules or obligations established by the Prime Minister for public office holders, and applicable to ministers of the Crown, ministers of state or parliamentary secretaries, is not within the jurisdiction of the Ethics Commissioner under subsection (1) or the committee.

    Now subsection (1) refers to proposed subsection 72.05(1). It is the section that refers to the members' code. It may not be possible to say really what the linkages are between the two, but the point I was making before is that it seems to me, faced with whatever problem, the commissioner has to rule that it's one code or the other and stay with it. Do you or your colleagues have any thoughts about proposed subsection 72.05(4), which it seems to me is where it says these two are separate? They're just separate.

    Again, you were talking conceptually before. Conceptually, we're all members of Parliament; some of us are cabinet ministers and parliamentary secretaries. So conceptually you would think, well, we all behave according to this base code and should be judged on it as well as on a code applying to ministers. Have you or your colleagues any thoughts about that?

    And Gerald, you'll excuse me doing this.

  (1210)  

    Mr. Don Boudria: It doesn't mean they're exempt from the other, though, Mr. Chairman. If my reading of it is accurate, it means that--

    The Chair: This is new, you realize, and it implies to me that, if there's a conflict, the Prime Minister's code applies and the commissioner stays with it.

    Mr. Don Boudria: Well, yes...I'm trying to think this through as I'm going through this here, but it certainly means that if someone has committed an offence against the Prime Minister's code, that's what would be reported, providing of course the person is a public office holder. It doesn't apply to the others because they're not public office holders--in other words, what is called in parliamentary jargon a “public office holder”, meaning parliamentary secretary, minister, secretary of state.

    Mr. Bloom is with me here,and I wonder if he can add to that. The reporting mechanism is slightly different as well for both, as we identified.

    The Chair: I think we understand that. It's this point of decision that the commissioner will be faced with.

    Mitch Bloom.

    Mr. Mitch Bloom (Privy Council Officer, Privy Council Office): Yes, the addition of proposed subsection 72.05(4) serves as a corollary and a balance to proposed section 72.07. We had to be clear in the drafting of the statute at what point and what rules would apply, because there are many provisions after proposed section 72.07 that apply to the administration of the Prime Minister's code far in excess of what deals with the House code, which will of course be dealt with in the code itself.

    This provision simply draws that distinction and explains that the application of the rules in proposed section 72.07 and thereafter are the ones that apply in the administration of the Prime Minister's code—nothing more, but nothing less.

    The Chair: The reference to subsection (1) or whatever it is, by having that in, does this say these two codes are completely separate?

    Mr. Mitch Bloom: In fact, there are two codes. That's correct.

    The Chair: No, the minister implied that you could ladder between the two.

  (1215)  

    Mr. Don Boudria: I'm sorry, I didn't say that, Mr. Chairman.

    The Chair: I thought earlier on when you were discussing it there was an implication that you could move from one to the other. You'd be investigated under the one. It would have to be a minister to be involved with the two, to be investigated as a member of Parliament and then it could ladder into the other code. That section implies to me that it can't.

    Mr. Mitch Bloom: In effect, when we researched this, this is a dilemma that exists whenever you have two codes applicable. In fact, in the U.K., as part of recent consultations with the commissioner of standards there, he himself said that there will be situations when the facts are brought forward and he will be examining the application of both codes and whether they apply. There are often situations there where both codes do apply, although to different aspects of a particular situation. In some respects, the member was acting in his or her capacity as a member of Parliament, while in others it was in his or her executive capacity as a minister. Both could be applicable even to the same scenario but different aspects of it.

    The Chair: Okay, I don't want to stall this thing now, but given how far along we are with this thing, my earlier question was.... Anything you can do with material that interprets duties and functions of their office as members of the House that are in the MPs code, and any examples you can provide of activities ministers engage in that could be characterized as relating to their functions as members, as distinct from their functions as ministers....

    I will leave that. I don't want to stall things, but this has been brought up in different ways and it is important for us at this point to get all we can. It's a dilemma, and as Mitch just said, maybe it's a dilemma and it's there everywhere and it can't be resolved, but we need to make a decision on this matter very soon.

    Mr. Don Boudria: Perhaps, Mr. Chairman, we could send a letter to the committee further elaborating on those two points.

    The Chair: Communications by any means, with any members or with the chair.

    Gerald Keddy.

    Mr. Don Boudria: I will do it through the chair so that everybody gets it.

    The Chair: Thank you.

    Then Marlene Catterall.

    We should proceed. As I said earlier on, we have other things to do.

    Mr. Gerald Keddy: Not to beat the issue to death, but it seems to me we are going to run into a major conflict if there is a member of Parliament who commits an offence under the code and the charge isn't laid under the appropriate code and is therefore not applicable. What I'm saying is the offence may be applicable under one code but not under the other. I understand the reasoning for having a separate code applying to ministers of the Crown and parliamentary secretaries, but the perception that would be there if it was a minister of the Crown and the charge wasn't applied—I'm trying to think of an example, but I don't have enough background on this yet—that it's just not going to work. That's just a statement.

    I have another question that I think is as much to perhaps the chair of the committee as to the minister. I appeared before a committee as a witness and asked several questions. One of them at the time was the situation in Britain. Under the British code, there is a section that regulates media, and I wonder whatever became of that. Was there ever any back-up or any further discussion?

    The Chair: The round table that you're referring to we have to consider, and we have the summary of the information, but we haven't discussed that point yet. Is that correct, colleagues?

    It's been considered, but we haven't formally considered it.

    Mr. Gerald Keddy: Okay. The other question is on gifts. I'm looking at this and thinking that we have it backwards.

    I can understand the reasoning that went into it. It says under the Prime Minister's code the acceptance of a permissible gift must be publicly declared if its value exceeds $200. Under the House code the threshold is $500. I don't quite understand the discrepancy. I realize that the $500 gift to the minister may be seen as a way to influence a minister or parliamentary secretary, but I'm not sure we've taken into consideration here that ministers and parliamentary secretaries would be more likely to get more expensive gifts. If it's okay for a member of Parliament to receive a $500 gift, quite frankly, I don't see why it's not okay for a minister to receive a $500 gift.

    The Chair: Mr. Boudria.

  (1220)  

    The Hon. Don Boudria: Very briefly on this point, I asked that question of the U.K. official. It was an interesting point. They use a mathematical formula—a rather high one, in my opinion, but nonetheless they have a formula of 1% of the salary of the official. So if the official is paid $200,000 a year, that makes it $2,000. I think the public is interested in amounts below that. It doesn't have to reach that level before the public's interested. Anyway, that's their view.

    And they don't forbid anything, by the way. We have a forbidding provision—I believe it's $1,000 for ministers; I don't know what members are going to put in their own code. But they have no forbidding provision at all, only a disclosure one, and it's as a percentage. The higher the income one makes in fact makes it less severe.

    I think this committee has it the right way. I think it should be more severe on ministers—not that I'm looking for punishment here—because they exercise an executive function. So I don't think that's the wrong approach.

    Mr. Gerald Keddy: I'm just trying to think of where the gifts come from. If you are travelling abroad and are given a gift by an embassy, there's very little they can do to influence your job back in Canada, to in any way influence the government.

    The Hon. Don Boudria: That's for the committee to decide.

    Mr. Gerald Keddy: I would question the rationale there, that's all.

    The other thing is, again, we get into the two codes. If the minister accepts a gift worth $300 from a constituent and the House code is applied, it would be fine. Yet, if it was considered under the Prime Minister's code, it wouldn't be fine. So, again, there's a discrepancy.

    The Hon. Don Boudria: If I may, in that case the person is always a minister, no matter where receives the gift.

    Mr. Gerald Keddy: But the gift may apply under the House code and not under the ministerial code.

    The Hon. Don Boudria: I would see it differently.

    Mr. Gerald Keddy: Well, then, maybe we'll ask for an expert opinion here, if you don't mind, Mr. Chair.

    The Hon. Don Boudria: If I could just continue, then anyone else can add. That would be quite fine.

    The way I see it, the minister is always the minister, whether someone was within their constituency or not. No doubt the commissioner will look at it and say, well, this doesn't seem to offend the House code, put it aside and say, ah ha, it's not all right under this one, however.

    There's one final thing I'd like to say. Mr. Keddy may be under the impression, Mr. Chairman, that you lay a complaint under a code. That's in fact a determination made by the commissioner. You don't lay a complaint under a code and then say, oops, that was the wrong one, should I try again under the other one. The commissioner makes that determination in the case of a person who's subject to both.

    I think perhaps the problem Mr. Keddy has identified may not in fact be quite as severe as he thinks it is.

    The Chair: With due respect, I think he is identifying a dilemma you yourself referred to that exists. Perhaps in the end we leave it as a dilemma.

    But the example he tried to give was that there was a minister--and you yourself would be a really good example of this because you do a lot of constituency work--behaving as the MP. You go on one of these things as the MP. The service club always has the MP there, and they give him an expensive tie or whatever it is; and they've always done it. And there are a number of other examples.

    Anyway, Gerald, are you okay?

    Mr. Gerald Keddy: I'd like to hear--

    The Chair: Well, maybe not “okay”....

    Mr. Gerald Keddy: --the legal opinion on this.

    The Chair: The chair recognizes Mr. Mitch Bloom.

    Mr. Mitch Bloom: On the question of the gifts, there are two things to consider. First of all the standards that are set are set differently because somebody may be receiving the gifts in different capacities. So, yes, I concur. As the minister said, it is up to the ethics commissioner to make the determination of what capacity the gift was received under. That is the way the section applies; you're correct in your assertion.

    The fact that the Prime Minister is set at a higher standard has also always been the history, and it's appropriate. It's similar to other jurisdictions where there is an expectation that it would be more stringent.

    Mr. Gerald Keddy: So in essence, then, a minister of the Crown can receive a gift worth more than the $200 limit set for ministers, if it was under the House code.

  (1225)  

    Mr. Mitch Bloom: Yes, but as the minister said from experience, it's based on what capacity he saw himself to be acting in.

    Mr. Gerald Keddy: I just see some looseness in the discrepancy there. I would sooner see the same numbers and tighter rules.

    The Chair: I have Marlene Catterall up next and I'm going to wind this up. We can resume if you'll give me a moment.

    You yourself just said the minister is always a minister. If that's the case, the minister is always under the one code. I know it's logic and, as Michel says, splitting hairs and stuff like that, but I think there may be some important hairs there that are being split.

    We have Marlene Catterall, colleagues, and then if it's okay I'm going to wind it up.

    Marlene.

    Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): It seems to me the legislation is based on the assumption here that the standards for ministers and parliamentary secretaries are always higher. That may or may not be the case. Parliament may from time to time amend its own code of conduct and put in requirements that are inconsistent. What the legislation has chosen to do to resolve that is to say, if you're a minister or a parliamentary secretary, the Prime Minister's code always applies.

    As Gerald has pointed out quite nicely, there may be either some conflicting or some complementary requirements. Does it mean, as a minister and a member of Parliament, you can accept gifts of up to $700, or doesn't it?

    There are different ways of resolving this in other legislation: one, you could write it to assume that the standards of the parliamentarians code also applies to ministers; two, you could include a provision that, where there's any doubt, the more stringent requirement applies to ministers and parliamentary secretaries, which is fairly standard legislative language; or three, you could simply require that the code for members of Parliament is a part of the ministers code, so they would always be judged according to all the standards in both.

    Now I think those are options that would resolve the dilemma the committee members have laid out very clearly. I would appreciate the committee hearing from you on how you might chose to resolve this, but I think it does need to be resolved.

    Mr. Don Boudria: Given that perceptually the facts are already as Mrs. Catterall says they are, if you try to defend yourself in front of the media by saying, well, I received a $500 gift but I didn't think I was really a minister when I received it; I thought I was an MP because the guy's a constituent, it doesn't work. You can't win that argument, anyway.

    For greater certainty, I would say whenever there is a difference it should always be the more severe of the two that applies. I think that's the perceptual--the political--reality anyway. I don't see, really, unless someone can demonstrate to me why it would be otherwise, why it wouldn't be that way all the time. Frankly, the political reality is that you would hardly get away with anything else anyhow. That's just the way it is.

    Ms. Marlene Catterall: I think as we go into this, Mr. Chair and other members, it's important to remember that we're trying to avoid problems, to help members of Parliament, whether they be ministers or not, avoid putting themselves in a situation where they would have to face those kinds of questions in the media. The purpose of this code and this legislation and this position is not to catch people doing something wrong; it's to help them avoid doing something wrong inadvertently. I hope we keep that in mind as we go through this.

    The Chair: Now we go to Ken Epp, very briefly.

    Mr. Ken Epp: Mr. Chairman, our witness just said that a minister is always a minister, and I think that's probably true, but does that mean basically, in effect, a minister is exempted from the MPs code? If there's an investigation, the rules for reporting--what is kept confidential and everything--are substantially different.

    I think this is one area where the MPs code is stronger than the Primer Minister's code in terms of public disclosure of the results of an investigation. It seems to me he has just indicated, I guess, the same dilemma the ethics commissioner would face if he were making a choice. If he said a minister is always a minister, I don't think it's a satisfactory result for us.

  (1230)  

    Mr. Don Boudria: No, no, it's the opposite, with respect.

    What I'm indicating, Mr. Chairman, is that I don't think politically you can get away by saying you should apply to yourself the less severe of any two tests. You just wouldn't be able to do it. That's the indication I'm essentially giving to all of us.

    I guess it was Mrs. Catterall who said it, but it's true that today the ministers' tests are almost always, if not always, more severe than the MPs' tests. But I don't know, maybe this committee will meet in six months, invest some time, and develop a particular clause of the code that would then do the opposite.

    Well, again, I would say it would be very hard for a minister to say that such and such was not his mindset at the time, because politically it's very difficult for someone to say the softer of the two tests should apply. That's the reason I said it.

    Mr. Ken Epp: Mr. Chairman, if the ultimate test is how things look politically, then why do we even have a code?

    The Chair: Again, Minister, I'm going to wind this up. I regret it. This has been very, very useful. I have to say that to you.

    We will be grateful for anything you and your colleagues can provide to us, as I mentioned, in writing or in any other way, and particularly on this matter. So if a minister is always a minister, what does the part of proposed subsection 72.05(1) mean that says--and I'm paraphrasing here--when carrying out the duties and functions of their office as members of Parliament? If it is clear that the two are different, what is the meaning of that section? We'd be grateful for your comments on this.

    Mr. Don Boudria: Very well.

    Thank you, Mr. Chairman, for allowing me the time to be with members this morning. Again, I want to thank the committee for the work they did in the report on the draft bill, which of course was accepted in its entirety to form Bill C-34, which is presently before your committee today.

    The Chair: Colleagues, as you know, we have other work. So on your behalf, I'd like to thank the Honourable Don Boudria and his colleagues from the Privy Council, Mitch Bloom and Ron Wall. Gentlemen, we thank you very much.

    Ladies and gentlemen present, we're going in camera to discuss how we work in future on this, Bill C-34, and on Bill C-24. Would everyone please leave now, except for the staff of members who are here and the members of Parliament? I'm going to suspend for about two minutes.

    [Proceedings continue in camera]