Evidence of meeting #9 for Subcommittee on Disclosure Forms under the Conflict of Interest Code in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was code.
A recording is available from Parliament.
Law Clerk and Parliamentary Counsel, House of Commons
Are you at subsection 41.3(4)?
Conservative
Gary Goodyear Conservative Cambridge, ON
Correct. I think it is directly related to trusts.
Now, that's not quite directly what I'm asking. I'm just noting that there's reference made in Bill C-2 that certain standards with respect to trusts, I would imagine, cease to have an effect after the day the member ceases to be a member.
Once retired, defeated, or whatever , it seems this doesn't apply to the member, whereas the code that we're dealing with, the conflict of interest code, does not apply during writs.
So I suppose I have questions for your opinion: Should it apply during writs? Should it follow after the defeat of a member? Should it have effect on a member after his or her defeat?
Law Clerk and Parliamentary Counsel, House of Commons
Just now as you're speaking, Mr. Goodyear, I've asked Ms. Mortensen to give me a copy of the code. Is there a provision in the code that you have in mind that indicates--
Conservative
Gary Goodyear Conservative Cambridge, ON
Well, in the draft procedural guidelines in front of me, am I correct, Margaret, that there are...?
Conservative
Gary Goodyear Conservative Cambridge, ON
I'm not correct. So the code ceases to be in effect after the member is no longer a member of the House.
Committee Researcher
You're quite correct in referring to the draft procedural guidelines, saying that they are seven years retroactive. That is the piece of work from the Ethics Commissioner.
We are mystified as to where he got that figure. When you think about it, once a member ceases to be a member, he does not come under the jurisdiction of the Standing Orders and therefore of the code. Keep in mind further that the Ethics Commissioner only investigates and reports to the House the decision as whether to impose a sanction...whatever to do. Once a member is no longer a member of the House, the House has no jurisdiction over that person.
So we are baffled as to where that seven-year figure came from.
Conservative
Gary Goodyear Conservative Cambridge, ON
We're going to deal with that at some point, but not right now.
Can I ask Mr. Walsh one more question, if I have time left?
The security and confidential safeguard guidelines by the Office of the Ethics Commissioner seem to be pretty good. I'm not concerned with that, but what I'm concerned about is whether or not the staff at the Ethics Commissioner's office is trained well enough to know the difference between the two different codes—the one for public holders and the other for members.
I think the code spells out pretty well that any information in the Ethics Commissioner's office, etc., is covered by parliamentary privilege. But my concern is whether or not the staff is trained well enough to understand what that means.
I suppose the question is direct: are you comfortable that members' privileges are in reality protected to the level and the degree that they should be in the code?
Law Clerk and Parliamentary Counsel, House of Commons
First, Mr. Chairman, the fact that the provision is in the code is good enough for me regarding privilege, because that's where it should be.
No, I'm not satisfied with respect to those provisions of Bill C-2, which I mentioned, because I'm saying that the privileges of members of the House are diminished by those various sections, and most pertain to recusal and to those members of Parliament who are ministers or parliamentary secretaries.
In that respect, in my view, the privileges of the members of the House, and in the House collectively, are not adequately respected in terms of the House having control of this matter. Once you put it in the statute, it's beyond the House's control to manage consistent with its privileges of having exclusive authority over its members and the discipline of its members.
Now, on the question of the staff of the Ethics Commissioner's office, I hesitate to make a comment of the kind your question invites, insofar as I have not been over here. I have not met or worked with the staff over there.
I am concerned, however, that when you have one Ethics Commissioner dealing with two groups of distinct individuals, or two distinct functions certainly, and where there's some mixing of the source of the authority—the code attached to the Standing Orders on the one hand, and the statute and the Prime Minister's code in the statute on the other hand—it could ultimately be a problem. In the last two years, we've seen the Ethics Commissioner have trouble remembering—or he seems to be having trouble remembering—which code he's acting under.
This is compounded by the fact that he may have a fact pattern involving a mix of persons under both codes. So there is a problem operationally at some level in the discharge of the Ethic Commissioner's functions. From time to time, we saw that there wasn't adequate cognizance of the distinction between the member's position and the minister's position.
That much I would say, but I certainly wouldn't want to comment on the competence of the people in the office.
Conservative
Gary Goodyear Conservative Cambridge, ON
A final comment is that it sounds as though the code is adequate enough on this level. We can't fix what isn't broke; it just has to be followed, which ultimately is the reason we're here.
I'm good. Thank you.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chair, there are some problems with the code. We haven't come to that yet.
Conservative
Conservative
Bloc
Pauline Picard Bloc Drummond, QC
Thank you, Mr. Chairman. Good afternoon, Mr. Walsh.
I am interested in the whole issue of trusts. You made a really brilliant study of Bill C-2. I was sitting on the committee when you spoke about it.
You also raised a few important legal issues regarding the bill. One of the problems arose while we were reviewing the forms. I am referring to part 4 of your document, entitled “Members and Trusts”. The document says, and I quote:
Bill C-2's regime on trusts would create a number of difficulties related to the constitutional autonomy of the House of Commons and its members. Given that the questions arising in respect of members' trusts would be determined under a statutory regime, actions taken under the act in respect of members' trusts may be subject to judicial review.
Could you give us a detailed explanation of the issue that you raised in your text, and give us some solutions to help us in our work on the Conflict of Interest Code and the declaration forms used by the members?
Law Clerk and Parliamentary Counsel, House of Commons
Do we have the document? Are you referring to the report presented to the committee a year ago? I think it is in part 4.
Law Clerk and Parliamentary Counsel, House of Commons
If I remember correctly, it has to do with the fact that subsections 41.1 to 41.5 of the act would allow courts to settle problems encountered by members with regard to their trusts. In our opinion, it is not good to give the courts any power to intervene in matters related to trusts.
I am sorry, Madam, but I do not have the text in hand.
Bloc
Pauline Picard Bloc Drummond, QC
We can get by without it.
I am referring to sections 17, 18 and 19 of our code.
Law Clerk and Parliamentary Counsel, House of Commons
Which part are you interested in?
Bloc
Pauline Picard Bloc Drummond, QC
I am interested in part 4 of your document, entitled “Members and Trusts”.
