KEY PROVISIONS OF BILL C-2, THE FEDERAL ACCOUNTABILITY ACT,
AS THEY AFFECT THE OFFICE OF THE SENATE ETHICS OFFICER
Clause 26 and 27 of the Bill would repeal sections 20.1 to 20.7 and sections 72.01
to 72.03 of the Parliament of Canada Act (the Act). These are the provisions in the Act
that establish the positions of Senate Ethics Officer and Ethics Commissioner and the
parameters within which these Offices are to function.
Clause 28 of the Bill would add sections 81 to 91 to the Act. These provisions
essentially create a new position entitled the Conflict of Interest and Ethics
Commissioner (the Commissioner).
In other words, there would be only one
Commissioner with increased responsibilities. He or she would administer and interpret
three sets of rules, i.e., those applicable to senators, those applicable to members of the
House of Commons, and those applicable to public office holders.
Clause 2 of the Bill would enact the Conflict of Interest Act, thereby codifying the
conflict of interest rules for public office holders in law. Senators and Members of the
House of Commons would continue to be subject to the existing rules, i.e., the Conflict of
Interest Code for Senators (the Senate Code) would still govern the conduct of senators,
while the Conflict of Interest Code for Members of the House of Commons (the House
Code) would continue to apply to members of the House. These codes of conduct would
not be codified in law.
Proposed subsection 81(1) of the Parliament of Canada Act establishes the
appointment process for the new Commissioner.
It is essentially identical to the
appointment process for the existing Senate Ethics Officer (and that for the Ethics
Commissioner) under the current provisions of the Act. The Governor in Council would
appoint the Commissioner after consultation with the Leader of every recognized party in
the Senate and the House of Commons and with the approval by resolution of the Senate
and the House of Commons. (The first reading version of the Bill had set out in
subsection 81(3) how the votes of these resolutions were to take place; the resolutions
were to be based on a secret ballot of the members of each House. A motion was adopted
in the House of Commons to delete this subsection at committee stage and then again at
report stage in the House.)
The qualifications for the appointment of the Commissioner are set out in
proposed subsection 81(2) of the Act. Under this provision, in order to be considered as a
candidate, a person must be a former judge of a superior court in Canada or of a
provincial court, or a former member of a federal or provincial board, commission or
tribunal who, in the opinion of the Governor in Council, has demonstrated expertise in
the area of conflict of interest, ethics, financial arrangements, or professional regulation
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and discipline. The first reading version of the Bill left the qualifications at that. But a
new category was adopted as the Bill was making its way through the House of
Commons to include a former Senate Ethics Officer or a former Ethics Commissioner.
Nova Scotia is the only jurisdiction in Canada in which the qualifications for the Conflict
of Interest Commissioner are set out in the legislation setting up the office (section 26 of
the Members and Public Employees Disclosure Act).
Most of the provisions respecting the Senate are identical to the current provisions
of the Parliament of Canada Act. Some of these provisions are outlined below.
One of these is the proposed subsection 86(1). It provides that the Commissioner
must perform the duties and functions assigned by the Senate for governing the conduct
of members of the Senate.
A second is that, under the proposed 86(2) of the Parliament of Canada Act, the
Commissioner would enjoy the privileges and immunities of the Senate and its members
when carrying out his or her functions.
A third is that, under proposed subsection 86(3) of the Act, the new
Commissioner would be required to carry out his or her duties under the general direction
of a Senate Committee established by the Senate for that purpose. The Senate has
established the Standing Committee on Conflict of Interest for Senators. Bill C-2 does
not propose to alter the role of this Committee.
Moreover, there is no proposal to modify the obligations of senators under the
Conflict of Interest Code for Senators. In other words, the conflict of interest rules for
senators would remain unchanged.
Finally, proposed paragraph 91(1)(a) would require the Commissioner to submit
an annual report to the Speaker of the Senate on his or her activities respecting the Senate
Code. She or he would also be required to table two other reports, one respecting the
House Code, as well as one respecting his or her responsibilities with respect to public
office holders under the proposed Conflict of Interest Act.
Although most of the provisions in Bill C-2 involving conflict of interest in
relation to senators do not differ from the existing provisions contained in the Parliament
of Canada Act, one change relates to section 20.6 of the Parliament of Canada Act as it
now reads. That section provides that the Senate Ethics Officer, and anyone acting on his
or her behalf, is not a competent or compellable witness with respect to any matter of
which he or she has knowledge through the exercise of his or her powers under the Act.
Moreover, the same provision provides the Senate Ethics Officer, and anyone acting on
his or her behalf, with protection against civil and criminal proceedings for anything done
in good faith in the performance of his or her duties and functions.
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At present, a similar section exists in the case of the Ethics Commissioner,
namely, section 72.12 of the Parliament of Canada Act. Both of these provisions would
be repealed under Bill C-2.
The new Conflict of Interest and Ethics Commissioner would, however, be
provided with this protection in the case of his or her work respecting public office
holders under section 50 of the new Conflict of Interest Act, which would be enacted by
clause 2 of the Federal Accountability Act.
Under the current law, the Senate Ethics Officer and the Ethics Commissioner are
also excluded from the application of the Federal Courts Act, precluding judicial review
by the Federal Court of their actions. While Bill C-2 would remove the protection
provided under the Parliament of Canada Act, the Bill if passed would continue to
preclude judicial review by the Federal Court with respect to the exercise of the
Commissioner’s powers under the Parliament of Canada Act (clause 5 of Bill C-2).
Clause 3 of the Bill contains a number of transitional provisions. One of these is
subsection (1) of clause 3. It provides that an employee in the Office of the Senate Ethics
Officer or the Office of the Ethics Commissioner continues in that position in the new
office of the Conflict of Interest and Ethics Commissioner when section 81 of the
Parliament of Canada Act, as enacted by clause 28 of the Federal Accountability Act,
comes into force (i.e. when the provisions establishing the new office come into force).
Another is subsection (5) of clause 3 of the Bill. It provides that all information
that is in the possession of the Senate Ethics Officer and of the Ethics Commissioner
relating to the exercise of their powers, duties and functions will come under the control
of the new Conflict of Interest and Ethics Commissioner when clause 3 of the Bill comes
into force.
Office of the Senate Ethics Officer
September 2006