Actually, Mr. Chairman, we agreed that I would intervene on the next item, subsection 29(1). This is a troublesome area pertaining to the obligation of the Ethics Commissioner to refer a matter to the proper authorities where he believes there's been an offence under an act of Parliament. Of course, the worst-case scenario is that the act of Parliament is the Criminal Code and, by reason of information obtained by the Ethics Commissioner, he believes that there's been a criminal offence committed, perhaps by the member under inquiry or perhaps by some third parties, but in any event, he believes a Criminal Code offence has occurred and he's to refer “the matter”. Well, what is "the matter”?
He sends an e-mail to say, “You may want to look into the idea that so-and-so may have been involved in fraudulent conduct against the senior citizens of northern Ontario” or he might want to say, “Here are all the documents I have pertaining to this matter; you might want to review these.” It's the latter scenario that presents a problem, in my view. I don't have any problem with there being a heads up, you might say, by the Ethics Commissioner to these so-called proper authorities, although it might be nice to get more clear about what we're talking about. But it's the handing over of documentation that is evidence.
These documents or other information provided orally by the member to the Ethics Commissioner are provided under a legal obligation of the code to do so, and there's sort of a rule of evidentiary law that you can't take information you have from someone who has provided it under compulsion of law and then turn around and use it for some other purpose, or give it to some third party for whom it was not intended. If you allow that, of course, you're causing people to incriminate themselves unwittingly. So in fairness to the individual providing the information under a legal obligation, it's used for the purpose for which it's given and not for any other purpose.
I'm a little concerned that when we have this provision...and we've had discussions with the ethics office about this--indeed, quite extensive discussions--and with the third parties involved, as to what the various rights and claims and entitlements are when these third-party investigative authorities want to have access to certain documents.
Our view—and this is not the Ethics Commissioner talking; this is my office talking, but I shared this view with the Ethics Commissioner—is that while these documents and information are privileged, coming from members—I'm not talking about public officer holders now, we have to maintain these two roles and be distinct here—this information is received by the Ethics Commissioner pursuant to a parliamentary function. And in my view, it's privileged--whatever it may suggest by virtue of its content, it's privileged--and ought not to be made available to third parties without, at the very least, the approval of the Speaker or the House. I don't mean the member, I mean the Speaker or the House. It's the privileges of the House we're talking about here.
Now, the scenario is, what if the police came up with a warrant and they slapped the search warrant on the Ethics Commissioner? Well, we can get search warrants on the Hill; there's nothing unusual about that. But there's a process for this, and you go through the Speaker. The Speaker doesn't intervene to try selectively to provide documents to the police, but rather, the police, with the approval of the Speaker, go to where they want to conduct their search, with a lawyer from my office in attendance simply to observe that everything appropriate is carried on, that nothing inappropriate is carried on.
The Speaker's role here is not to decide whether he will or will not allow a search warrant to be effected, but rather to see that it takes place in a way that's not interfering with parliamentary proceedings and is not in any way disruptive of those proceedings or the parliamentary business. But in every other respect, the legal process is cooperated with and it takes place. I hasten to say this is not a common practice, by the way.
The same rule would apply with the Ethics Commissioner's offices located, as they are, off the Hill. They're still a part of the precincts, in my view, because that's where parliamentary business is carried on with respect to members, but they're not part of the precincts with respect to public office holders. Whether the Ethics Commissioner has a wall in his office somewhere keeping these things separate, I don't know, but in principle that's the case. I've taken the view with the Ethics Commissioner that he ought not to provide this information, these documents, to the third parties.
We came to an understanding that in the event he were served by proceedings of that kind, he would give me notice that he has that. Then I would do whatever I thought was appropriate on behalf of my client, the House of Commons—not the member in question, although indirectly on behalf of the member—that was appropriate to defend the privileges of the House. The Ethics Commissioner might have his own counsel and the police, indeed, might have their own counsel, and the matter might go on. We might allow the documents to go forward, be sealed, and kept under seal until the legal issue had been addressed and resolved, whatever.
But that was the understanding I had with the Ethics Commissioner's office, that he wouldn't do that without telling us that he had received this warrant, and then we would have an opportunity to intervene.
But that begs the question as to whether in fact he's entitled to do this at all. This is not a parliamentary procedural question, it's a legal question of what is privilege and what is the ambit of privilege. Ultimately, all legal questions are determined by the courts, and so at some point this may well end up in the courts for a determination.
But currently, in my view, he ought not hand it over. In this provision, as it reads, “refer the matter to the proper authorities”, I'm just not sure what that means. It's dangerously ambiguous. We can come back to you with some suggestions in that regard, but I think it warrants closer study.
