Hon. Marilou McPhedran: Honourable senators, my question is to the Government Representative in the Senate.

Senator Gold, I was pleased to attend the world’s largest annual women’s human rights conference at the UN last week, CSW66. As I sat in the grand hall of the General Assembly, I asked myself what more Canada could be doing to support Ukrainians who are fighting to save their democracy because there’s a stranglehold on the UN Security Council by the vetoes of its permanent members Russia and China.

As you know, Senator Gold, 141 countries supported the UN General Assembly resolution condemning Russia’s invasion of Ukraine last week. Only four countries voted against. My question to the government today is geared to what more Canada can do through Ambassador Bob Rae’s effective and respected presence in the UN General Assembly.

Since the Security Council is inaccessible and ineffective, will the Government of Canada act on the authority of the UN General Assembly to mandate peacekeeping operations at the request or with the consent of Ukraine and continue Canada’s distinguished history, including the idea of the Blue Helmets at the time of the Suez crisis, by leading — as suggested today by the Honourable Lloyd Axworthy and the Honourable Allan Rock — an initiative now at the UN General Assembly to assemble and deploy peacekeepers to protect humanitarian corridors in Ukraine?

Senator Gold: Thank you for your question and for reminding us, if we needed reminding, of some of the challenges that the United Nations system imposes on the democratic countries seeking to work together to address, in this case, atrocious crimes against humanity. Canada will continue to work with its allies to do whatever it can and will participate and play whatever roles are appropriate for it to play, with its allies, to address the plight of Ukrainians being attacked and killed by Russia.

With regard to the specific question, I will make inquiries. Whether I’m able to report back will be a function of the nature of the discussions and the confidentiality that may be attached, but I will certainly make inquiries.

Hon. Marilou McPhedran rose pursuant to notice of December 2, 2021:

That she will call the attention of the Senate to parliamentary privilege, the Ethics and Conflict of Interest Code for Senators and options for increasing accountability, transparency and fairness in the context of the Senate’s unique self-governance, including guidelines on public disclosure.

She said: Honourable senators, as a senator from Manitoba, I acknowledge that I am on Treaty 1 territory, the traditional lands of the Anishinaabe, Cree, Oji-Cree, Dakota and Dene, and the homeland of the Métis Nation.

I also want to acknowledge that the Parliament of Canada is located on the unceded, unsurrendered territory of the Algonquin Anishinaabe people.

[English]

Honourable senators, I rise today to be the first speaker in the Forty-fourth Parliament to inquiry 6, which calls the attention of the Senate to parliamentary privilege, the Ethics and Conflict of Interest Code for Senators and options for increasing accountability, transparency and fairness in the context of the Senate’s unique self-governance, including guidelines on public disclosure.

Before speaking today, I sought feedback from a range of experts including retired senators and I am grateful for their time and attention to this issue. As one said to me, name the elephant in the room, and so I will. Honourable colleagues, please be assured that my inquiry is addressed to all senators, and it’s not intended in any way to target a particular senator.

It may be recalled that I have introduced similar inquiries in each session since being appointed to the Senate, long before I resigned from the Independent Senators Group in October 2021.

Both the Senate and the House of Commons are equipped with ethics codes which, although similar, are nonetheless distinct and separate policies. Beyond the fact that the Senate code manages to be 20 pages longer than its Commons counterpart, the codes are largely similar in content but there are significant differences that make the Senate’s code less demanding.

For one example, income thresholds for disclosure are under $1,000 for House members and under $2,000 for senators.

A second example is that Senate disclosure provisions apply mostly to the senator and their spouse, whereas the House provisions cast a wider net to include income of family members.

Another is that their code’s purpose section explicitly requires MPs to:

(b) demonstrate to the public that members are held to standards that place the public interest ahead of their private interests and to provide a transparent system by which the public may judge this to be the case . . . .

But section 1(b) of the Senate code does not include such a clear and unequivocal statement of purpose.

As a fourth example, the House code articulates a third principle that the obligations under the code “. . . may not be fully discharged by simply acting within the law. . . .” Again, the Senate code contains no such reference.

There is also a significant difference between the two houses in that the mandated five-year review of the MPs’ code — which is occurring now — is being conducted in public by the Standing Committee on Procedure and House Affairs. In presenting his report to the review committee, the Conflict of Interest and Ethics Commissioner stressed that his recommendations for changes:

. . . aim to safeguard public trust in the integrity of the House of Commons and its Members, and in their endeavour to fulfill their public duties with honesty all while upholding the highest standards.

Recently, I sent a non-confidential letter — not my first such letter — to all members of the Senate Standing Committee on Ethics and Conflict of Interest for Senators. Today I seek to ensure that some key points in that letter are on the public record for the consideration of all senators, because we are all responsible, collectively and individually, for our ethical conduct and for upholding the honour of our institution and our titles.

Honourable colleagues, is this really a responsibility we should be farming out to a Senate committee, no matter how honourable and principled senators on that committee may be?

In my letter, I proposed that Senate self-governance would benefit from clarifying amendments and a consolidation of interpretive commentary to our ethics code to provide greater guidance in relation to extra-parliamentary activities, and I provide several suggestions for both process and content for further study.

Today I would like to highlight several opportunities for a more fulsome review than addressed in recent Conflict of Interest Committee reports, namely the seventh report in the Forty-second Parliament, released in 2019; and the second and third reports in the second session of the Forty-third Parliament, released in 2021.

Honourable colleagues, we would all benefit from clear amendments to the ethics code and guidance regarding the code’s application to extra-parliamentary activities. In doing so, it is likely that public skepticism of the Senate and its members could be reduced.

The ethics code, the Conflict of Interest Committee’s directives and the Senate Ethics Officer’s interpretation of the ethics code in recent inquiry reports make it clear that the ethics code applies to senators’ extra-parliamentary lives. However, some senators’ awareness of the code’s application outside the context of their senatorial duties seems to be quite limited.

It seems reasonable that we all want an ethics code that balances between allowing senators to be community and social leaders while prohibiting situations that would cause substantial public doubt in our ability to serve Canada in the public interest.

Section 2(1) of the ethics code sets out a requirement that “Senators shall give precedence to their parliamentary duties and functions over any other duty or activity . . . .”

More broadly, section 7.1(1) of the code provides that “A Senator’s conduct shall uphold the highest standards of dignity inherent to the position of Senator.”

Arguably, then, no action we take in public or private can be isolated or shielded from the added authority and responsibility we carry every day as members of the upper chamber.

Indeed, in a March 9, 2017, SEO inquiry report regarding disgraced former senator Don Meredith, it was specified that while 7.1 does not “. . . invite a free-standing analysis of whether certain conduct merits moral condemnation . . . ” it certainly does, however:

. . . require an evaluation of whether alleged conduct (a) undermines the standards of dignity inherent to the position of Senator, such that, for example it impacts a Senator’s professional reputation, integrity or trustworthiness, or (b) may have an adverse impact on the reputation of the office of Senator or the Senate as an institution.

These 2017 criteria have been restated in subsequent SEO communications, such as the March 19, 2019, SEO inquiry report regarding former senator Lynn Beyak. As well, a published opinion by the SEO, prepared at the request of distinguished former senator André Pratte, issued April 10, 2019, conclusively held that these criteria were clearly applicable to all matters that arose in relation to a senator’s “outside activities,” such as “. . . being a director or officer in a corporation, association, trade union or not-for-profit organization . . . .” — those words being direct quotes from section 5(c) of the ethics code.

In particular, Mr. Pratte is to be commended for openly sharing the SEO’s opinion, which took the view that section 5 of the code limits outside activities to those that can be undertaken while fulfilling senators’ other obligations under the ethics code, including with respect to maintaining the public’s confidence in the senator’s integrity.

Colleagues, the Senate Conflict of Interest Committee has the mandate to consider, on its own initiative, all matters relating to the ethics code, so I have requested action on eight points of inquiry, and that they be placed on the Conflict of Interest Committee’s agenda for the Forty-fourth Parliament, and that they remain on Conflict of Interest’s agenda until each point has been examined openly and thoroughly by the committee, including by way of one or more public hearings for which any senator can suggest witnesses to be heard and information to be examined and reported on in a public report from the committee in response, to be tabled in the Senate without delay.

Please allow me to summarize my eight points of inquiry as follows. Regarding consultancy arrangements, one would be that the Conflict of Interest Committee conduct a comprehensive comparative review of ethics codes for parliamentary bodies guided by the Westminster model regarding parliamentarians entering into consultancies, whether by formal contract or informal agreement for any payment in money or compensation of any kind from government departments, corporations, organizations, individuals or any other entity based in Canada or in any other country, to identify amendments to the ethics code regarding (a) what form of public disclosure should be required; and (b) whether those parliamentarians should be voting on legislation covering topics that they have consulted on and received compensation in any form for such consultation.

Regarding board memberships and advisory boards, the second is that the Conflict of Interest Committee conduct a comprehensive comparative review of ethics codes for parliamentary bodies guided by the Westminster model regarding parliamentarians being paid and/or compensated and/or rewarded in any manner as board directors or advisers of for-profit or not‑for-profit corporations or of any government corporations or other organizations, individuals or any other entity based in Canada or in any other country, to identify possible amendments to the ethics code regarding (a) what form of public disclosure should be required; and (b) whether those senators should be voting on legislation covering the industries or topics that they have consulted on and/or from which they received compensation in any form.

The third is regarding business dealings among senators: included in the comprehensive review addressing the issue of disclosure by senators who are business partners or in any way engaged together in business activities geared to making a profit, receiving compensation in any form over and above their Senate salaries.

Another is regarding parliamentary privilege and accountability regarding the SEO’s authority and function under the ethics code to address if there is a need to provide for a check and balance within the SEO function: Conflict of Interest should examine parliamentary privilege, as it is applicable to the SEO, through a lens that would allow for meaningful scrutiny over the SEO operations, thereby increasing accountability without undermining the essential functioning of the office or duties of confidentiality to people involved in an SEO investigation.

Number five is that Conflict of Interest should assess and report publicly on the extent to which the SEO may claim parliamentary privilege to create a cloak of confidentiality and privilege over administrative and procedural practices or operations that do not breach confidentiality promised by the code, because parliamentary privilege is not without limits.

My next point is to investigate whether a needed check and balance would be provided by adding procedural rights for non-parliamentarians impacted by SEO inquiries.

Number seven would add a mechanism for error correction. As such, in reviewing possible amendments to the ethics code, Conflict of Interest should consider how to implement an effective appeal process within the ethics code, as the SEO’s rulings are not subject to judicial review while acting under a recognized category of parliamentary privilege.

Number eight is with regard to commentary to increase understanding of the Senate ethics code: Some ethics codes compile and include commentary accompanying the codes’ dispositions. This commentary serves as an educational tool and as an informational resource.

The Code of Conduct for Members of the Legislative Assembly of the Northwest Territories contains detailed commentary accompanying its provisions. Similarly, the Canadian Judicial Council’s Ethical Principles for Judges contains detailed commentary.

Honourable senators, we are here to serve Canada and are generously paid from public funds to do so. Is it not reasonable for the public to expect that the absolute and unique self‑governance granted to the Senate of Canada, entirely funded by public money, should meet the highest threshold for good governance with clear, enforceable standards of accountability and transparency?

In my letter to the Standing Senate Committee on Ethics and Conflict of Interest for Senators, I set out the points shared with you today in more detail. Now I invite all senators to consider and respond to these points, or to speak to any other matter related to the code, including current interpretations of what conduct should or should not be protected by parliamentary privilege. This is your opportunity to decide what aspects of our unique self-governance merit further contemplation by contributing to the exploration in an open, transparent and collegial manner in the public interest. Thank you, meegwetch.

(On motion of Senator Pate, debate adjourned.)

(At 5:22 p.m., the Senate was continued until tomorrow at 2 p.m.)