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

[Richard Denis]

And conducting personal business.

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

So if there was a code of conduct on behaviour.... There's an ethics commissioner who is supposed to make sure we're behaving ourselves on the ethics side. Would it be the third party? Again, it would have to be somebody other than the House of Commons that enforced any breach in the code of conduct.

[Richard Denis]

Just to be clear in terms of a code of conduct, what we see in codes of conduct typically is more about general behaviour of members. I have the one from England here. It's a concept of selflessness, integrity, objectivity, accountability, openness, honesty, leadership—personal behaviours that are expected. Here the mandate of this committee, as I understand it, is dealing just with harassment. So if you were to deal with a code of conduct, it would have to deal only with the question of harassment.

The problem we see in this context is that members of Parliament are, as I said, independent. They're equal, so it's theoretically one against a person at the same level. You don't have this employer-employee relationship on which all the different policies typically are based. That's why you would have an employer who has sanctions.

Here you're amongst equals, so you have to decide what—

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

Let's go back to the beginning. Is there anything right now that you think—

[The Chair, Conservative, Joe Preston]

Ms. Bennett, thank you. You're past time. I let it go longer because we were getting a good answer.

We'll go on to Ms. Crockatt, for a four-minute round, please.

[Joan Crockatt, Conservative, Calgary Centre, AB]

Thank you very much, Mr. Chair, and thank you very much, Mr. Denis, for your testimony today.

I think my colleague Mr. Warkentin keyed in on one of our challenges here, and that is providing some distinction between harassment in general, sexual harassment, and I think there's a third one, which is sexual assault, that may come up. Obviously, the third, sexual assault, is a criminal matter. We've chosen to start with the definition of “harassment”, which I think is actually the thorniest challenge of the three of these issues.

I'm wondering how you would define harassment for members of Parliament as being different from how you might define harassment for members of the general public.

[Richard Denis]

Again, I'll ask Monsieur Parent to intervene after this, but you're talking about equals. You don't have a relationship of hierarchy. So that's one thing that creates a difficulty in terms of what harassment is or could be. You are not dealing with situations of, for example, an employer and an employee, where there's the hierarchy, there's the perceived threat of consequences if harassment happens.

In this case here, by being equals, it's the House itself or this committee making a report proposing solutions in terms of what the consequences could be. For us that's a big difference in terms of defining what “harassment” is, because of the rules of debate and things that are said and done in the context of your jobs. There are a lot of things that happen by the pure nature of the work. You're looking at the extreme situations that you'd like to define. We could probably help you with a definition if you want to go that far, but with any definition, as always—we draft laws all the time—it's difficult. But that might be the only way for this committee to come up with something that's concrete enough.

I don't know if Pierre wants to add something.

[Pierre Parent, Chief Human Resources Officer, House of Commons]

I think one of your greatest challenges in the dealings of the subcommittee is that you're dealing with definitions that were meant and designed for a relationship between an employer and its employees. It is difficult. I think you hit it right on the nail that there's an absence of a single figure of authority that would represent the employer that could impose the sanctions or disciplinary action. Basically, these definitions were designed in an employment relationship. Now you have the challenge to transpose that into a context where you're all equivalent, and there's no one to make a decision and to take sanction.

The question you may want to ask yourselves is whether that definition is the right one, rather than starting with the definition. I was heavily involved in the drafting of this policy, and I admit that I did a lot of copy and paste, mainly on our own in the House administration, where we manage the harassment prevention policy. The policy we have at the House administration is heavily modelled on the Treasury Board and other employers. So that's the context. It's an employer-employee relationship, and that policy was designed in that context.

[Joan Crockatt, Conservative, Calgary Centre, AB]

Very quickly, we've got charter rights too, obviously to protect freedom of speech. Is there any way to actually draft an effective policy that protects free speech and still fully censures harassment?

[Richard Denis]

Yes. Again it would be an exercise in drafting it. But just in terms of the charter, we need to be aware of something unique about members of Parliament and the charter. The Supreme Court has said that the charter, which has constitutional status, and privilege, which has constitutional status as well, are equivalent. One cannot override the other. You are dealing with two equal constitutional rights here: the right of members of their privileges versus the charter. Typically the charter would not apply. So again, what do we do? We come up with a definition or concept and that's where you put the rules that you would like to apply.

[The Chair, Conservative, Joe Preston]

Thank you.

Your chair is smiling because with each question I am getting deeper into the abyss of “holy crap, what are we dealing with here?”

Ms. Freeman, four minutes for you please. See how deep you can dig the hole.

[Mylène Freeman, NDP, Argenteuil—Papineau—Mirabel, QC]

I'd like us to get back to the importance of confidentiality. There seems to be some thought around...if we were to build it out of the standing orders and have a code of conduct that stood like a code of ethics. How would we then come back to imposing some kind of sanction if we took that kind of model?

Have you given any thought to what a confidentiality process would look like? Thinking about that brings up for me how important it is going to be for us to have formal disciplinary measures that then come to the House or that can then be sent to the police and having a different option where we could stay confidential to the end, where it would be something more informal. If you could both talk about your thoughts on that it would be helpful, I think.

[Richard Denis]

Yes, we certainly have thought about it. I'll go back to what I said earlier. Any formal process, whether it's an independent assessment done by a third party with a recommendation that would end up on the floor of the House...has the risk that the information and facts would come out.

What we see as a possible solution is what we see for example in the policy on the Senate side, especially with parties. It is the whips internally who become the persons, following an investigation with a recommendation or report, who are given the report. They are tasked to deal with the internal discipline of the member in their party, assuming you have two whips. In the case of independents, you could have someone like the Clerk of the House or the chief human resources officer who could run that process, so you would have a system that at least allows you to keep the confidentiality. If you end up with a neutral third party doing the analysis and the recommendation, fairly listening to both parties, and making sure we have a clear process and everyone has confidence in them, then you come up with a recommendation that goes to the whips. The whips between themselves can deal with the issue, decide on the sanctions, and move on.

That way you keep confidentiality and hopefully discussions between the whips helps things move on.

[Mylène Freeman, NDP, Argenteuil—Papineau—Mirabel, QC]

I'm sure that Carolyn will want input on this too.

For me there is a concern around making it a whip-driven process. Is there any way that we can give an option to the complainants to remain confidential at all times and perhaps to deal with it? I think it makes all of us uncomfortable and members uncomfortable to think there would be different ways of dealing with it, depending on whether you are in a party or an independent, and whether the person you are now having a problem with is independent or not.

Is there a way we could have a confidential complainant-driven process that would be not whip-driven at all and could see no official complaint process or discipline afterwards? Are there ways of doing that, that would be safer for the complainant?

[Pierre Parent]

We struggled with that very question when we did the harassment policy for members as employers.

The compromise that we came up with is that the complainant can go to the member as an employer, the whip, or the chief human resources officer. It is the choice of the complainant. Once the complaint has been filed with one of these three persons, it is clear in the policy that the responsibility to keep the complaint confidential is with one of these three persons, whoever that person would be.

That could maybe be one of the solutions. I agree with Mr. Denis on having a clear process and the responsibility of those who receive the complaint, whoever that person would be, to keep it confidential.

[The Chair, Conservative, Joe Preston]

Thank you.

Thank you, Ms. Freeman.

I will go to Ms. Block for four minutes, please.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Thank you very much, Mr. Chair, and thank you as well for joining us today.

I'm going to take us back to some of the challenges. I agree with the chair. As I've listened to your answers to the questions of my colleagues, it appears this is a greater challenge than I think we thought at first. It is a very challenging issue to be taking on.

Given what we currently have in place, defined through parliamentary privilege and contempt of Parliament, and given what most have highlighted in all the documents I've read with regard to the unique aspect of Parliament, do you have any suggestions on how we construct a code of conduct that recognizes this uniqueness and that can interface well with what's already in place when it comes to parliamentary privilege and contempt of Parliament?

[Richard Denis]

Again, by looking at what we found in other jurisdictions, for example Quebec, western Australia, and I was referring to England and the Senate—not the Senate specifically—you will have a code of conduct dealing with more than harassment, as I explained, but essentially the same principle, where everything in there is still subject to the rules of parliamentary privilege. All these rules continue as they exist except you have a process as well to deal with specific situations of harassment.

The process would be there maybe to try to solve the issue, come up with a recommendation and hopefully a solution, yet the member and other members keep the right to raise the issue on the floor of the House if they feel, for example, that they were wrongly accused. That's always a privilege of members: to rise on a point of order and ask the Speaker to rule specifically on this. That reservation, subject to clauses in the code on parliamentary privilege, might be a way to explore this question.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Given your answer, is there anything defined in parliamentary privilege or contempt of Parliament where there would be gaps when you look at constructing a code of conduct that may include harassment? Can you foresee or identify any gaps in the rules we currently have?

[Richard Denis]

Going back to what we said, the whole issue of dealing with parliamentary proceedings, what happens in Parliament—you're doing your role in the chamber of course, in committees, sometimes outside in public—there's a line somewhere that you have to trace. How far do we go into people's personal life or into situations that are outside of your role as parliamentarians? We certainly see that gap as a big one.

The other one is anything that you put in place should not conflict with all the rules that already exist. Essentially, as we've mentioned before, you look at O'Brien and Bosc and pretty much everything in the book has been considered at some point, except that right now harassment is obviously a very sensitive and difficult topic to deal with. How do we integrate all of this into the rules? Keeping the tradition and what exists versus being able to deal with a complex situation, that's the challenge. I'm not saying it cannot be done, but it warrants some thought.

[The Chair, Conservative, Joe Preston]

Thank you, Ms. Block.

I'll move to Mr. Warkentin for four minutes.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you.

I think this is what concerns all of us. Obviously we want to build an environment in which harassment doesn't happen or where sexual harassment doesn't exist, but we have to consider that any rules that might constrain on one level may constrain on another. The major constraint that I'm concerned about is the right to free speech. While things we say can be offensive to one another—that happens on a regular basis—I think that's probably something Canadians are well aware of. We wouldn't want to constrain that because that, of course, is the bedrock of the democracy we purport to defend.

Is there a way to conduct ourselves, to have a policy that would protect in large part from...I should just back up a little. A significant portion of the discussion surrounding harassment can involve what is said to one another, both in formal and informal settings inside and outside the House. This is a place of debate, as a courtroom would be a place of debate. There aren't a whole lot of other workplaces that are quite the same. If you're going to engage in debate, the possibility is that you will offend one another. I think we would like to have a definition that would ensure we would protect people from harassment, but still preserve absolutely without question the right to free speech. In your opinion, is that possible?

[Richard Denis]

It would be very difficult because of perception. You arguing a point might be perceived by the person across as offensive, as unacceptable. From your point of view, it's totally fine, and you have 307 people, except the Speaker, who have their own opinion about it. How do we reconcile all of this? Freedom of speech, of course, is one of the most fundamental principles of privilege and it's the reason Parliament can function.

Limiting it in any way is certainly potentially dangerous, so any limit to free speech has to be done with a consciousness about the consequences. There are still possibilities for how you could define where the line is and how far you can go in what you say or how it's perceived. Then again, it's a question of definition for this committee to consider. But it's possible.

[Chris Warkentin, Conservative, Peace River, AB]

So you're not offering us the answer?

[Richard Denis]

I will not—