Set out below is a letter to the editor by Democracy Watch Coordinator Duff Conacher which was published in slightly different, edited form in the December 1, 2008 issue of the Hill Times
Senate Ethics Officer Jean T. Fournier and Senator Serge Joyal may both claim that the independence of the Senate Ethics Officer is guaranteed by the Parliament of Canada Act, and therefore that the Officer's legal independence in relation to Senators matches the independence of the Conflict of Interest and Ethics Commissioner in relation to Cabinet ministers, Cabinet staff and appointees, and MPs, specifically with regard to investigations (Letter and article, Hill Times, November 24, 2008).
However, their claim is clearly not true.
Yes, the Act sets out that both the Officer (sections 20.1 to 20.7) and the Commissioner (sections 81 to 90) are appointed in similar ways, and both have fixed terms and can only be dismissed for cause, and both have some control over their budget levels and full control over staffing of their offices, and both are under the general direction of a committee of the Senate or the House.
However, the Act says nothing about the Officer's and Commissioner's powers to investigate allegations of violations of the House and Senate ethics codes.
The Ethics Commissioner, under section 26 of the Conflict of Interest Code for Members of the House of Commons, is empowered to issue binding opinions to members concerning compliance with the Code, and to publish a summary of each opinion. Under section 27 of the Code, the Commissioner is required to undertake an inquiry into allegations of a violation if a member or the House as a whole requests it, and is empowered to launch an inquiry if the Commissioner believes it is warranted.
Under section 28, the Commissioner is required to make the inquiry report public, and is empowered to recommend penalties if a member has violated the Code. It would be better if the Commissioner had the power to penalize violators, instead of leaving it to MPs (who are all in a conflict of interest when it comes to penalizing another MP).
In contrast, under section 32 of the Conflict of Interest Code for Senators, a committee of senators decides what assets and liabilities have to be disclosed if a senator disagrees with the Senate Ethics Officer's opinion about the disclosure. While the Officer can issue binding opinions to senators under section 26, the Officer cannot publish a summary of an opinion without the approval of the committee of senators.
Under subsection 44(8), the Officer cannot launch an inquiry into allegations that a senator has violated the Code unless the committee approves it. Under subsection 44(13), the Officer cannot obtain testimony or evidence without the approval of the committee. Under section 45, the Officer's inquiry report is submitted only to the Committee, with the Committee making it public after meeting in secret with the senator. The committee of senators, not the Officer, recommends penalties (if any) to the Senate.
These are not small differences, and all Canadians should be concerned that the Senate Ethics Officer and Senator Joyal (and, presumably, at least a majority of senators who approved the Senate's Conflict of Interest Code) fail to recognize that the Senate Ethics Officer lacks much-needed independence for conducting investigations and reporting the results.
Given these and other key loopholes in the fundamental good governance rules contained in the Senate's Code, senators should not wonder at all why many Canadians raise serious questions about the accountability and ethics of the Senate.
Duff Conacher, Coordinator
For more details, go to Democracy Watch's Government Ethics Campaign