Subcommittee on a Code of Conduct for Members Committee on Feb. 23rd, 2015

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

That is it for me. Is there any more time?

[The Chair, Conservative, Joe Preston]

There's about one minute left in your round.

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

Mr. Heard, you talked about a fair and transparent process. Are there a couple of key elements that need to be in place for that to be deemed a fair, transparent process?

[Prof. Andrew Heard]

One question I have is whether one can rely on the existing model for MP staff harassment to go through the whip. The Senate harassment policy goes through the whip. There's a question whether there could be sufficient public confidence that the whip would deal with internal matters satisfactorily. There is a question in my mind as to whether transparency can occur through a model that depends upon the party whip, or whether the party whip needs to work with, let's say, the chief human resources officer or a commissioner, and so on, in tandem, or whether that should be taken completely out of the whip's purview.

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

Yes, we've raised concerns about having the whips involved as well.

I'm pretty sure I'm out of time.

[The Chair, Conservative, Joe Preston]

Yes.

Madam Bennett.

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

Thank you.

I think it is this issue of the whips that is upsetting people. I think the issue is for people to enter into a process where at the beginning they're seeking advice as to describing what happened and finding out whether it's mediation, restorative justice, or what other possible avenues are open. I think what some people have said is that if there's a trusted female who is identified as being the person, you go with that, and somehow people are more likely to report and then hopefully have it settled.

Can you see that there would be a place where it would have to come to the House if it seemed that the recommendation was that this person should no longer serve? That's really what we do. Our job is to say this isn't in keeping, as though they had been found guilty of an offence. Is there a way of setting some possible disciplinary levels, so that only certain ones have to come back to the House?

I've forgotten my other one. Anyway, answer that and I'll remember what the other thing was.

[Catherine Beagan Flood]

In my view, I think that would be possible, to have a procedure for discipline that is less serious, that is recommended solely by the outside investigator who is responsible for this process or the appeal panel, if there is an appeal, if you were to adopt a process that's similar to the policy that applies to members as employers. As Professor Heard had mentioned, even when it does go to the House, you may be able to anonymize the facts sufficiently to protect the identity of the complainant.

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

Professor, just for a second, in medicine it only becomes public if they're found guilty, right? In medicine, the chief of your department or your hospital is only made aware of the allegation if there's found to be some truth in it. I think in this situation there is some concern that the whips would want to know right away if there's an allegation. I just wonder if you could help us through that.

[Prof. Andrew Heard]

It is very problematic, and I don't have any ready answer. I can share that there are three layers of problem-solving that I could see. One is at the initial lower level where it is really an interpersonal issue where mediation and reconciliation can occur, and that's a good, positive healing thing for having a positive work environment.

The next one is at what I would call the political level where the whips I think have a legitimate interest in knowing whether a member should be reassigned to different duties. There's a layer of essentially informal political sanctions that could be in place, such as taking somebody off the preferred committee meetings, taking them off the travel list, and so on. There's a range of medium-level sanctions a whip can impose, which I think are meaningful and can bring a message home to an MP.

But beyond that, there's a question of whether someone's behaviour raises the question of whether they are fit to remain a member of the House, and that to me is a very high bar to reach. But once you reach that level, then I really do think that's a decision that should be dealt with in the normal way through the House.

[Catherine Beagan Flood]

I agree with the analysis that you could have a multi-levelled approach that offers different levels of confidentiality depending on the severity of the sanction, but in all cases attempts to preserve the confidentiality of the complainant.

[The Chair, Conservative, Joe Preston]

Thank you.

We'll go to Mr. Warkentin.

I think I'll use about three-minute rounds here, folks.

[Chris Warkentin, Conservative, Peace River, AB]

Sure, very good.

I will just get back to asking the question about the ability for this body to intervene in the personal lives of members, because oftentimes relationships do spring up, or non-reciprocating relationships. I don't know how you define that. But people find themselves in personal locations, and obviously that impacts the workplace maybe down the road.

But in terms of activities, what can this body do reasonably as it relates to people's personal lives in personal locations, as could any employer, I guess?

[Prof. Andrew Heard]

What you can do depends on the instrument you've employed. If this is done along the lines of the conflict of interest attached to the Standing Orders, I think it has to be related to formal parliamentary functions, which as you recognize is only a limited subset of an MP's contact with other MPs.

My initial concern, using that approach, is that you may only cover a subset of possible interactions. Parliament can legislate anything it likes so it may be you need to go to a legislated authority for an expanded range. The trouble is where you break that off. You have the House of Commons functions and there are party functions as well, which are in a sense meshed in by independent, and then there's a whole range of civic and private relationships as well. It may be that you can only easily control one subset at this stage. The caveat to that is that the House can remove a member for any reason for anything done in their private life. If you are found beating your spouse, and so on, the House can remove you for that private behaviour as rendering you unfit. Working backwards, one should be able to say, if this will render you unfit we can regulate it.

[Chris Warkentin, Conservative, Peace River, AB]

Usually that would require a criminal sanction for the House to act. It would be uncommon for the House to act simply on allegations.

[Prof. Andrew Heard]

No. You would need to establish facts. I strongly believe you do not need a criminal finding of guilt to remove a member because that's a technical thing: are you guilty of that charge? From a political point of view the suitability of the House is: have you done things which undermine our confidence in your ability to function as an MP? That can fall far short of the criminal finding, but you do need some finding of fact to base that on.

[Chris Warkentin, Conservative, Peace River, AB]

Yes. It would have to be public then.

[Prof. Andrew Heard]

You could make the facts anonymous but the facts should be known.

[The Chair, Conservative, Joe Preston]

Thank you.

We'll move to Ms. Crowder.

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

I'm going to give Ms. Beagan Flood an opportunity to respond to that.

Earlier you started to read the definitions of how our lives are not all that personal and all the different kinds of things that we're engaged in that are considered part of our roles and responsibilities.

Could you go back to that?

[Catherine Beagan Flood]

It was the definition in the policy that applies to members as employers. It is quite broad already so it includes locations in situations including business travel, conferences, and work-related social gatherings where House of Commons-related activities are performed and where inappropriate behaviour or comments might reasonably be perceived to have a subsequent impact on work relationships, environment, or performance. To me that is already a very broad definition in general for relationships that are truly personal, truly private, and completely outside of any connection to parliamentary functions.

The ordinary law would usually apply to those relationships; certainly, the criminal law, if any criminal activity were to take place. As you get into the completely personal realm it becomes more difficult for the House to regulate that behaviour. At the same time the behaviour that could be regulated as being connected to parliamentary activities is quite broad because you engage in so many activities that are in some way connected to parliamentary or party functions.

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

It would seem reasonable I would think, if we're using that kind of definition with regard to employees, to apply that same definition to members of Parliament. I can't see a downside to it.

[Catherine Beagan Flood]

I expect that the definition was chosen specifically because it captured all the employer-employee relationships between MPs and their employees that were likely to give rise to potential harassment claims.

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

Professor Heard, can you comment on the particular definition that Ms. Beagan Flood just read?

[Prof. Andrew Heard]

I think it is a good one. The Senate policy on harassment is slightly more ambiguously worded and I think I approve of it a bit more.

It says that the policy applies to “work-related activities conducted away from the Senate workplace” in addition to things conducted in the workplace. All work-related activities conducted away from the Senate workplace covers a wide range of potential things. I think it's slightly wider than the existing Commons policy.