Canada's Original Think Tank

Committee of the Whole — Senate Ethics Officer

Committee of the Whole — Senate Ethics Officer

Committee of the Whole — Senate Ethics Officer

Senator Serge Joyal: 

Welcome, Mr. Legault.

I would like to centre my question more on your status as defined in section 20 of the Parliament of Canada Act. I’m quite sure you’re familiar with that section. It’s the section that deals with your status as Senate Ethics Officer. Subsection 20.5(2) deals with privileges and immunities. I don’t know if you have that Parliament of Canada Act section with you today or not, but I would like to quote it to you.

Subsection 25.2(2), entitled “Privileges and immunities” reads as follows:

The duties and functions of the Senate Ethics Officer are carried out within the institution of the Senate. The Senate Ethics Officer enjoys the privileges and immunities of the Senate and its members when carrying out those duties and functions.

This section, to me, is very important because, among the officers of Parliament, you are the only one who in the act enjoys the same privileges and immunities of the Senate as an institution and of senators individually. As you know, those privileges have a constitutional status according to section 18. You are a lawyer; you know that section of the Constitution very well.

What scope do you give to those privileges and immunities inasmuch as you are concerned in the performance of your duties as Senate Ethics Officer?

Mr. Pierre Legault: Thank you very much for your question, Senator. I have to admit, it is a particularly interesting and fascinating one. I will make a few preliminary remarks before getting to the substance of the question.

I will never pretend that because I have those same privileges and immunities that, in fact, I’m equal to a senator. I’m your adviser; I’m not a senator. Those privileges and immunities are not there for my own sake. They are there simply so I can support you as individual senators but, perhaps even more importantly, as an institution, as the Senate itself. Those exist so that the Senate can continue conducting its affairs and is not forbidden or does not face obstructions that, in fact, would make it difficult to do so.

Interestingly, those privileges and immunities come from a long time ago. I believe they started in the eleventh or twelfth centuries in England. They were picked up by the Constitution of Canada back in 1867. It was recognized that these should be similar to what existed in Britain at the time, but also that they should be restricted, not a free-for-all. Those are picked up by the Constitution. They are reflected as well in the Parliament of Canada Act.

There are two types of such privileges and immunities. One is attached to individual senators. The most important one of those is the freedom of speech so that you have the liberty to express yourself in the Senate here and say what needs to be said without fear of being sued for defamation, for example, if you were to step out.

That freedom of expression, of speech, wouldn’t apply to my position. This may be the only time I will be in front of you. The freedom of speech that you exercise in this room isn’t always from the point of view of how it would apply to me. However, to the extent that I do a review, investigation, inquiry and I have a report, those documents would be protected as well by that freedom of speech. There are other privileges and immunities that arise from the history that we’ve just described, the freedom from harassment and civil processes, exemption from jury service or privileges relating to members being summoned as witnesses.

One of my favourites is that senators have privileges against obstruction, interference, intimidation and molestation. I take comfort in the fact that I could not be molested in the fulfilment of my duties. Indeed, this means that people could not try to intervene physically to stop a senator or member of the House of Commons to physically go in the chamber and fulfill their duties.

There are also some corporate privileges and immunities that arise out of our constitutional history and conventions. Some of the most important ones are the very reasons why we are here today. You have the right constitutionally, by convention as recognized by the case I was mentioning, to regulate your own constitution, the way you debate and the way you discipline yourself. The code is the end result of those privileges and immunities. Therefore, if I were to be confirmed as Senate Ethics Officer, it means that I would be implementing what you have decided arising out of those privileges.

I don’t know if that answers your question, senator. I would be happy to elaborate further if you wish.

Senator Joyal: I would like to concentrate on the nature of your function, which is in fact to be part of the exercise of discipline of the Senate and of senators individually or collectively.

Do you see there is a potential conflict between the fact that you enjoy the same privileges as a senator in the Senate in the exercise of the privilege of discipline and the fact that you nevertheless are not a senator? You are not appointed under commission and under the Great Seal of Canada, signed the Governor General of Canada, to sit in this chamber according to the section of the Constitution that you well know. How would you define the scope of the exercise of the privilege of discipline, as much as you are granted it, with the one that the senators have according to section 18?

Mr. Legault: Well, under the Parliament of Canada Act, the Senate Ethics Officer, on resolution of the Senate and on the approval of the Governor-in-Council, is also appointed under the Great Seal of Canada. If senators are appointed under that seal, the incumbent of this position is also appointed under that seal, but obviously for very different reasons and for very different functions.

The position and the code in a sense arise out of the way you have seen fit to regulate your own affairs. In that respect, yes, while being, as expressed in the Parliament of Canada Act, part of the Senate, my functions are very different. I don’t personally see that there is a conflict because everything proceeds from our constitutional convention.

Senator Joyal: Let me be more precise.

You exercise the privileges of discipline. We individually exercise the privilege of discipline. What happens if you have an interpretation in a case, an affair or an investigation in relation to a senator, and the same position that we might have, but differently on the same issue, and we still have the privilege of discipline?

Mr. Legault: Thank you very much, senator, for clarifying your question. I do not have the power of discipline. I have the power to do a preliminary review. I have the power to do an inquiry. I can start both on the basis that it is self-initiated or at the request of a senator. I can make a recommendation, but at the end of the day, the report will go to the committee. The committee will make a recommendation to the Senate, and it is senators as a Senate who will decide on the measure to be applied to your colleague in the Senate.

Therefore, while I can investigate, I cannot decide what measures will be applied. That is yours. I don’t have that power.