Subcommittee on a Code of Conduct for Members Committee on Feb. 2nd, 2015

[The Chair, Conservative, Joe Preston]

We will get started.

Thank you all for being here.

Monsieur Denis and Monsieur Parent, welcome here as guests today. Hopefully, with some of your great advice, you can help us out and help this committee move forward a little bit.

I believe, Monsieur Denis and Monsieur Parent, that you have an opening statement together.

Monsieur Denis, please go ahead and help us out. We'll ask you questions afterwards.

[Richard Denis, Deputy Law Clerk and Parliamentary Counsel, House of Commons]

Thank you very much, Mr. Chair and members of the subcommittee. It's a pleasure to be here today.

Thank you for the invitation to appear before you and to provide some assistance in your study of the consideration of policy options for addressing complaints of harassment between members of the House of Commons, and the possible implementation of a code of conduct for members.

I am accompanied by my colleague, Mr. Pierre Parent, Chief Human Resources Officer for the House of Commons, who will also be able to greatly assist, considering his wide experience with the drafting, the implementation and the application of harassment policies. He contributed to the implementation of the policy on the prevention of harassment in the workplace for the House of Commons Administration and was recently involved in the development of the House of Commons Policy on Preventing and Addressing Harassment adopted by the Board of Internal Economy on December 9, 2014.

Through your clerk and the analyst, we were able to get a general sense of the questions that your committee is faced with. I will admit that these are complex issues and that any proposed solution to a question such as harassment requires thoughtful consideration, particularly in the parliamentary context.

In our preparations for today, we looked at what is done in other jurisdictions, as well as at how the House itself has handled perceived situations of harassment that have occurred on the floor of the House during past debates.

My presentation will outline the legal issues that may be taken into consideration when dealing with allegations of harassment between members, the main one being the unique work environment of members of Parliament by reason of their constitutional role, and the application of parliamentary privilege.

In the parliamentary environment it is not possible to have a single regime to address harassment issues. As you know, many groups of people are present on the Hill every day: members of Parliament, senators, employees of senators, employees of members, Senate personnel, House of Commons personnel, media, and the public at large. I also point out that in the case of employees of senators, they are employees of the Senate, whereas employees of members are employed by each member individually. All these people interact on a regular basis in an environment that can easily cause stress, friction, or difficult situations.

In the case of the House of Commons, there are at least three distinct groups of individuals who share the same work environment: first, the employees of the House administration; second, employees of individual members, House officers, and research officers; and finally, members themselves.

Two distinct employment regimes currently apply, one for the House administration and one for members' employees. Therefore, two distinct harassment-prevention policies have been adopted.

In the third case, now before you, between members themselves, one particular concern is how any code or policy could apply to or interact with proceedings in Parliament without curtailing or placing limits on the privilege of freedom of speech of members during debates.

To begin with, members are not employees of anyone in a legal sense. But, of course, they are accountable to their electors.

The House of Commons is a body of 308 individually elected individuals, who are summoned to form the House of Commons for a particular parliament. Therefore, any process to address harassment between members must be premised on, and respect, the unique constitutional role, functions and status of members of Parliament and the House of Commons itself, since members are equal among themselves.

As members of the subcommittee know, the House of Commons is separate and independent from the Senate, the executive and the courts. The Constitution Act, 1867, and the Parliament of Canada Act recognize that the House of Commons and its members hold, enjoy and exercise certain privileges, immunities and powers.

By virtue of parliamentary privilege, the House itself has exclusive control over its membership and the discipline of its members. This exclusive jurisdiction to discipline members includes the ability to regulate their behaviour or to limit what can be said or done in the Chamber. Here you can think for example about how certain rules of debate come into play, what is considered to be unparliamentary language, the use of cell phone or props in the House, etc.

Constitutionally, the House and its members are not subject to oversight by any outside person or entity. The House as a whole is the only body with the legal authority and responsibility for policing its membership. Since these rules are self-imposed by the House as a whole, their application cannot be considered to be a breach of the privilege of free speech.

The same would be true for a regime to address potential harassment between members. Any member who feels they are subject to unparliamentary or unacceptable behaviour or language on the part of another member may rise on a question of privilege and ask the Speaker to rule on the issue. Often the Speaker will be able to deal with the issue right away, but at other times the Speaker will find a prima facie case of privilege and open the matter to the House for debate. More often than not, such matters are referred to the Standing Committee on Procedure and House Affairs, which will look into the matter and report back to the House for adjudication. The House then has access to a range of penalties for dealing with those situations, including suspension or, in extreme cases, even expulsion.

In the development of a code of conduct to address potential harassment complaints between members, it is therefore up to the House, if it so desires, to decide what type of conduct it considers improper, offensive, or otherwise reprehensible and would qualify as harassment, and which process should be used for raising these issues.

Finally, the development of a code of conduct for members or any other process for dealing with harassment should ensure that: the claimant and the respondent have the right to a fair process; issues are resolved at the earliest opportunity; independent third parties are available to assist the members involved, and the House if necessary, with finding a satisfactory solution; and finally, confidentiality is protected throughout the process.

Thank you for your attention.

We look forward to your questions.

[The Chair, Conservative, Joe Preston]

Thank you, Monsieur Denis.

As a reminder to the committee, we are in public today and televised. Whenever we have witnesses, we try to do that, so here we are.

My list starts with you, Mr. Warkentin, for seven minutes, please.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Chair.

Thank you, gentlemen, for coming this afternoon. We appreciate your insight on this difficult subject.

Mr. Denis, on the paragraphs that you just read with regard to the member's right to seek some type of remedy as it relates to a question of privilege or an attack on one's character, obviously we have the right now, through a number of provisions within our Standing Orders, to request that the Speaker rule on that. But in relation to paragraph 21, you outline that any process should be a confidential process. Obviously, there's a contradiction with what exists today and what we might desire in that there be a confidential process.

It seems to me that probably we're dealing with two different issues. One is an issue of harassment, the other is the issue of sexual harassment, and obviously there can be a blending of the two. I guess my question would be that if we could exclude issues of sexual harassment and deal only with issues of harassment in terms of.... Well, we don't know how we even would define that, I guess. Obviously, the House has provision.... Does the House have a provision to deal with an issue that is perceived harassment and relates to conduct that doesn't happen in the chamber, if it happens somewhere else in the precinct? What is the provision that the House has as oversight as it relates to something that's perceived as a harassment issue that would happen somewhere else in the precinct?

[Richard Denis]

At this point, there is no provision that deals with anything that would happen outside of parliamentary proceedings, or outside of the precinct. What we're dealing with are really the internal rules the House has in how it deals with its own proceedings, but nothing specific about harassment at this point. What you have are the rules that relate to debate, to unparliamentary language. As I said in my opening remarks, these are self-made rules. The House itself—and that's what you're faced with today—has to decide, if it wants to intervene, how it wants to define harassment and what kind of behaviour it wants to deal with or not.

[Chris Warkentin, Conservative, Peace River, AB]

The House has the ability to have provisions that relate to obviously inside the chamber, but also we have the right to have codes that address issues in the precinct as well. We also have provisions that relate to the rights of members if it involves having....

It seems to me that the Speaker has ruled in the past over issues that relate to things that are said in people's householders, or the inability to get to a vote on time because of some other provision on the precinct. So it seems that the House has ruled in some of these cases that may or may not involve harassment.

How does that differ from what you just talked about? It seems to me that the Speaker has ruled in the past. There has been a parliamentary prima facie case of—maybe not harassment—what could be defined as harassment when something gets said in a householder that somebody doesn't like.

[Richard Denis]

Yes, there have been lots of situations. I'll start with inside the House. As you can imagine and easily remember, we did go over the debates going back 20 years, and we found all sorts of situations for members in terms of altercations or threats or comments that were felt to be unacceptable. On all sorts of behaviour members rose on points of order and asked the Speaker to see whether or not there were prima facie cases. In most of the cases, there were not. Sometimes there would be, but most often these issues were either dealt with right away by the Speaker or else members would talk to each other and come to resolution. Apologies were made, situations were clarified, and things moved forward.

In terms of householders or outside the precinct, there have also been situations where members have said things in their householders. The famous one was Mr. Pankiw in a householder. That went to court. The decision was made, however, that the Canadian Human Rights Act did not apply because a householder was not considered to be a service according to section 5, I think, of the act, and therefore the courts had to intervene to look at it. In this case there was not a specific case of harassment

My point is that, as you yourself will know, there is a wide range of things that members can do or say that might not be acceptable to some but will be acceptable to others. What you're faced with is a situation where the House itself has to look at these cases, which is what you're doing right now, and ask what it is we're talking about. You started with this definition of sexual harassment versus harassment versus what could be other things. What do we do about it? Do we need a definition? How far do we want the House to go in dealing with it, as well? There are other ways.

[Chris Warkentin, Conservative, Peace River, AB]

On a separate note but equally important, it has been said in some places that the people in the House of Commons, members of Parliament, are not subject to criminal sanctions if they engage in criminal activity while in the House. My understanding is that this is not true; a criminal investigation could take place on the precinct if in fact criminal allegations surfaced.

[Richard Denis]

Yes: the Speaker is the guardian of the privileges of the House, and all matters that relate to access to the precinct must first be approved by the Speaker. Without getting into anything specific, first, in any kind of suspected criminal activity, assuming there are reasonable grounds to believe a criminal offence has been committed by someone, access to the precinct has to be given by the Speaker. If that's given based on the facts presented, then arrangements can be made for further investigations. But the precincts themselves in terms of access are protected by the Speaker.

[The Chair, Conservative, Joe Preston]

You have about five seconds left, sir, so I'll stop you there, if you don't mind.

[Chris Warkentin, Conservative, Peace River, AB]

Okay. Thanks.

[The Chair, Conservative, Joe Preston]

Ms. Crowder.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair.

I want to thank you, Monsieur Denis and Monsieur Parent, for coming before the committee today. I appreciated your testimony, in particular your closing statements, where you were talking about a couple of things: the right to a fair process and independent third parties. I think generally speaking Canadians would expect, even though we're in a unique set of circumstances, that we would have some fair, impartial process.

I want to turn just for a moment to O'Brien and Bosc, page 215 in the English version, with regard to the conflict of interest code for members. Of course I won't read the four objectives, but I want to touch quickly on them. In part (a) it says “maintain and enhance public confidence”, and in part (b) it says “provide a transparent system by which the public may judge this to be the case”. They're talking about members not putting their private interests ahead of their public interests.

Do you think we could use something like the conflict of interest code for members, not the conflict of interest code itself but the mechanism of having a third party process, appended to the Standing Orders to make sure there is that fair, transparent process so that Canadians could actually judge if how we're investigating ourselves is done appropriately?

[Richard Denis]

The answer is yes, in the sense that the process that would be put in place—looking for fairness, objectivity, a third party—would somehow be developed involving someone who could look at the situation and have the confidence of everyone.

However, once the process was gone through and a decision and a recommendation had been made, this recommendation would have to come to the House, because ultimately it is only the House that can make a decision about its membership and the right to sit. Ultimately if a member were found to be guilty of having committed something reprehensible against a code of conduct, the House would have to be made aware of it and make a decision.

This also brings up issues that perhaps Monsieur Parent may want to comment on in terms of how we are able to keep the confidentiality of the process when in fact the guilty plea comes to the House for adjudication, because that would bring about other questions. If I'm voting on someone's right to sit—for example, assuming we're talking about extreme cases—I'd like to know the facts. Are we prepared to see all this dealt with in public?

In our thinking, we're looking at whether there are alternative ways the House could have a process to look at these issues but still keep the confidentiality and impartiality. These are not simple issues, as I said, but I just want to bring that to the committee's attention in terms of consequences.

But on your question about a third party process to look at the process and the questions and investigate, sure, that could certainly be put in place.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

If I have time I might come back to what the other process was, because I think there is another matter in terms of what harassment is. In the order of reference it doesn't talk about it. It simply says, “...a code of conduct for Members for the prevention and resolution of harassment in the workplace”.

I spent some quality time again with O'Brien and Bosc this weekend, going through privileges and immunity. Of course, there is no definition of “harassment” there but it has language such as “freedom from obstruction, interference, intimidation and molestation.” There are many other ways that language comes through.

I understand that members are different from staff and administration. When I turned to the Treasury Board definition of “harassment”, it has two definitions, one for “harassment” and one for “sexual harassment”. Under “harassment”, it says it is behaviour that:

...demean[s], belittle[s], or cause[s] personal humiliation or embarrassment, and any act of intimidation or threat.

When I turned to the House of Commons document it says:

It comprises any objectionable conduct, comment or display made either on a onetime or a continuous basis that demeans, belittles or causes personal humiliation or embarrassment to an employee.

That's for employees and that's for administration and other staff of the House of Commons.

I struggle a bit with why we would try to have a different definition of “harassment” for members of Parliament from what we would have for staff or employees. Surely we should be able to uphold a standard that all Canadians could respect, instead of saying that you can't harass an employee but you can harass a member of Parliament in the same way.

I also understand that Parliament can make its own rules. We are in charge of making our own rules so there is nothing to prevent us—or is there?—from adopting a definition of “harassment” that's similar to the Treasury Board's or to the House of Commons' definitions of “harassment”. Is there anything that actually prevents us from making those rules?

[Richard Denis]

No, nothing prevents you from making those rules. As I said earlier, this committee can recommend to the House any kind of definition for what you feel a harassment situation would be, but it is really up to the House itself to decide.

However, when coming up with a definition, you have to think also of all the permutations or situations that members are faced with in the course of a normal debate. You might be dealing with the extreme cases, which you want to cover, but any kind of definition would become an imposition on the behaviour of members. This is fine but it could also curtail certain situations that right now are part of the normal life of parliamentarians—debating, arguing, sometimes getting angry, and those kinds of things.

A definition would have to take into account its consequences on the free speech that members also expect to be able to exercise.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

We have only 30 seconds left. That's a whole different conversation, which I won't be able to get into in 30 seconds, but thank you very much.

[The Chair, Conservative, Joe Preston]

Ms. Bennett, you have seven minutes.

[The Honourable Carolyn Bennett, Liberal, Carolyn Bennett]

Thank you very much.

I'm going to return to the point that caused us some difficulty last week. Do you think there are any gaps right now that need to be closed to deal with behaviour within the House?

[Richard Denis]

What do you mean, exactly—gaps in the rules and policies?

[Carolyn Bennett, Liberal, St. Paul's, ON]

I mean the rules of privilege and the process. I think what we've really been asked to do here is to look at the behaviour outside the House. That seems to be where the big gaps would be.

Maybe you can just let us know later if there's anything that needs to be tightened in terms of behaviour in the House in order to make people feel it's a safe workplace. Otherwise I think the work of this committee deals mainly with things outside the House, because of, as you've just demonstrated, what's going on there.

I think we've decided we will need some cases of normal politics, and we would love if you had any anonymous examples of cases that you think would be troubling under the normal process within the House, things that maybe would be referred to some third party. Maybe the behaviour in the House is related to something that's happening outside the House, or there's a context that needs to be confidential, or something like that.

We're really interested in finding some cases. We know tough cases make bad law, but somehow, in order for us to get it right, we do need to know what we're dealing with in terms of a code of conduct.

When we looked at the definition from the House of Commons policy, the abuse of authority section didn't seem to really apply, and there were a number of things in the sexual harassment definition that didn't seem to apply: “if there was an opportunity for training or promotion”, we couldn't quite see how that would apply to members of Parliament. I think the analysts are going to try to take out those bits that seem to be mainly about an employee-employer relationship rather than a member-to-member relationship.

If we struggle with the definitions, we then have to sort out training and enforcement. We're probably going to have to sort out process on our own.

In terms of training, it seems that the Speaker has no real power to tell members of Parliament, “You'd better get yourselves trained in terms of the way you deal with one another or deal with employees”. As I explained to committee members last week, in order for me to keep my privileges at the hospital, I have to do a 40-minute e-training, e-learning session on harassment. I have to pass that test and know where to go and what to do if I'm going to keep my privileges.

I'm not aware that there's any power the House of Commons or Speaker could have, unless they could withhold our monies or our budget. What happens if people just refuse to get trained once we design a training program? Again, what power does the House of Commons have to enforce whatever process it comes up with? Particularly, if confidentiality is so important, if somebody goes all the way through this process promising to be confidential and then it isn't, do we, as the House of Commons, have any power? We're not like the Senate, in which people are employees.

One other gap I was asking about is that when we finish our work here, there will still be a gap regarding any misdemeanours or accusations between the two chambers. If it's a senator and an MP, I don't think we know quite how we could finish this work without actually having that sorted out.

[Richard Denis]

In terms of enforcement, this is the same situation I explained before. It's the House, ultimately, that will have to decide what kinds of sanctions it wants to impose in the specific circumstances. It will have to analyze and decide. The Speaker himself is in no position to impose a sanction, specifically in a case where we're talking about harassment, for example, outside the parliamentary context. Anything that would be personal or happen outside of work would have to be considered by this committee.

Do we want to go that far in terms of dealing with these situations, or not? If you look at the code in England, it specifically excludes anything that deals with the conduct of a member in their private or personal lives. There's an exclusion right there saying that anything that's personal is not covered by their code of behaviour or code of conduct.

[Carolyn Bennett, Liberal, St. Paul's, ON]

So if we wrote a code of conduct and it's viewed that in a process somebody has breached that code, it would then have to come back to the House of Commons for a decision on what to do about it.

[Richard Denis]

The code itself would say that in this situation, such and such sanction would apply, and then depending on the gravity, if you wish, it would be exponential in terms of gravity for the member. By putting in a code, it would now be the House deciding what kinds of sanctions it wants to impose. If not, based on a situation.... But if you have a code, then at that moment the House would have to decide based on—

[Carolyn Bennett, Liberal, St. Paul's, ON]

The code of ethics that we signed tends to deal mainly with Elections Canada and those kinds of things.