Mr. Chairman, Ms. Mortenson draws to my attention what I take to be the corresponding provision in the Parliament of Canada Act relative to public office holders, in which the language is “The Ethics Commissioner shall notify the relevant authorities”. It doesn't say notify what; it just says “shall notify the relevant authorities”. You could dance on words for the day and night. Lawyers dance on words. That's what they go to court about. And they litigate. I think one should do one's best to be precise and as clear as possible when what you're talking about is something that could have serious and profound implications for a member of Parliament. The credibility of this process in which members are handing over information has to be assured to members of Parliament, as does the idea that the information they're handing over won't get into the possession of third parties to their prejudice.
If there's an investigation under way regarding a possible criminal offence by the police, they can go to the member and demand documents. They can go any number of places where their investigation may lead them.
As you said earlier, Ms. Young, indeed the police could ask for documents that are in the possession of the Ethics Commissioner, but they would have to face the challenge of whether it's protected and not available to them, and the member could intervene, through counsel, to oppose the handing over of those documents automatically if the law supported that, that being the case. It's important that the handing over of the documents isn't done automatically or routinely and then afterwards it's found that it shouldn't have happened. Afterwards it is often too late, and the damage has been done.
I think the credibility of the Ethics Commissioner's function, his office, demands that members be assured that the information they provide the Ethics Commissioner is provided to the Ethics Commissioner for the purpose of the code and only for the purpose of the code. But this provision, in my view, is meant to indicate that the other commissioner, if he has reason to believe a criminal offence has taken place, is not to be made complicitous in that criminal offence by being required to be silent about it.
Privilege doesn't protect criminal conduct. It never has. So in my view, I take this provision to be one that's meant to enable the Ethics Commissioner to say, in effect, to the investigating police or the appropriate authority, “You might want to look into this matter involving so and so. I think there may be an offence under section so and so.” He may describe generally why he believes that, in general language. The general language or comments of the Ethics Commissioner are not themselves evidence of an offence, but they may be indicative of a possible offence that leads the police to conduct an investigation. I'm just saying that there might not be anything wrong with that, but taking the documents and handing them over, when they themselves could then become the basis for a charge—that's what I have a problem with.