REPORT OF THE COMMITTEE
Wednesday, March 26, 2014
The Standing Committee on Conflict of Interest for Senators has the honour to present its
THIRD REPORT
Your committee, which is responsible on its own initiative for all matters relating to the Conflict of Interest Code for Senators, pursuant to rule 12-7(16) of the Rules of the Senate, has undertaken a study on the provisions of the Code, and reports as follows:
The Standing Committee on Conflict of Interest for Senators exercises general and constant oversight over the conflict of interest regime applicable to Senators. As part of this mandate, the Committee is regularly assessing and reviewing the Code to make improvements that respond adequately to events that come to light and to changes in our society. Accordingly, the Committee is now proposing amendments to the inquiry process under the Code.
The objectives of these amendments are
- to establish and confirm that Senators are aware of their obligations under the Code;
- to strengthen preventive measures under the Code;
- to establish a clear, fair and balanced inquiry process;
- to enhance the independence of the Senate Ethics Officer (SEO); and
- to increase the openness and transparency of the Senate conflict of interest regime.
Inquiry Process — General
Current Provisions
The current provisions of the Code on the inquiry process have remained mostly unchanged since the adoption of the Code in 2005. The Committee considers that amendments to the current provisions would result in a better, clearer and more structured inquiry process.
Proposed Amendments
The inquiry process would be streamlined. Each stage of the process (that is, the preliminary review, the inquiry by the SEO and the study by the Committee) would be established step by step, in clear and unambiguous language.
Rationale
These amendments would establish a clear, fair and balanced inquiry process.
Preventive Enforcement
Current Provisions
Under the current Code, Senators are not required to make an express periodic statement affirming that they have read the Code and are in compliance with it to the best of their knowledge.
Proposed Amendments
Senators would be required to file annually with the SEO a statement affirming that they have read the Code within the previous 30 days and stating that they are in compliance with it to the best of their knowledge.
Rationale
These amendments would establish and confirm that Senators are aware of their obligations under the Code. They would also strengthen preventive measures under the Code. This provision is the evolving norm in conflict of interest codes.
Preliminary Review
Current Provisions
A preliminary review is conducted by the SEO to decide if an inquiry is warranted to determine whether a Senator has not complied with his or her obligations under the Code. Under the current provisions of the Code, the SEO does not have to prepare an official document stating his or her conclusion as to the necessity of an inquiry.
Proposed Amendments
The SEO would prepare a preliminary determination letter stating his or her reasoned decision on whether a full inquiry is justified to determine whether a Senator has not complied with his or her obligations under the Code. This letter would be made public if the subject-matter of the inquiry is known publicly and no inquiry is justified. The preliminary determination letter would in all cases be provided to the Senator who is the subject of the review and, if applicable, to the Senator who initiated the review.
Rationale
These amendments would clarify the inquiry process by making clear the outcome of the preliminary review. They would also increase the openness and transparency of the Senate conflict of interest regime.
Initiating an Inquiry by the SEO
Current Provisions
Under the current Code, an inquiry is conducted by the SEO to determine whether or not a Senator has complied with his or her obligations under the Code. There are three different ways to initiate an inquiry:
- the Committee may instruct the SEO to conduct an inquiry;
- a Senator may request that the SEO conduct an inquiry, and the SEO will conduct such an inquiry if, after a preliminary review of the matter, he or she decides that an inquiry is warranted; or
- the SEO may self-initiate a preliminary review and, with the approval of the Committee, conduct an inquiry if he or she believes it is warranted.
Proposed Amendments
The Committee would no longer be empowered to instruct the SEO to conduct an inquiry. The Committee would also no longer have to approve an inquiry where the SEO believes an inquiry is warranted after having conducted a preliminary review.
Rationale
These amendments would establish a clear, fair and balanced inquiry process. They would enhance the independence of the SEO. They would keep the Committee at arm’s length from the inquiries and related processes conducted by the SEO.
Role of the Committee
Current Provisions
Under the current provisions of the Code, the Committee conducts its own investigation once the SEO has completed his or her inquiry report. Existing provisions were updated in May 2012 to ensure the integrity of the SEO’s inquiry report.
Proposed Amendments
The role of the Committee in the inquiry process would be clarified. It would no longer reinvestigate a matter already inquired into by the SEO. The role of the Committee would be to recommend the appropriate remedial measures or sanctions, based on the findings made by the SEO in his or her report.
Rationale
These amendments would establish a clear, fair and balanced inquiry process. They would enhance the independence of the SEO, and address the risk of interference in a fair hearing by the Senators on the Committee.
Sanctions and Remedial Measures
Current Provisions
The current provisions of the Code state that the Committee may recommend remedial measures or sanctions in its report to the Senate. They do not, however, enumerate remedial measures or sanctions that the Committee may recommend.
Proposed Amendments
The Code would list remedial measures or sanctions that the Committee may recommend after inquiry; measures would range from no action to suspension of senators.
Rationale
These amendments would clarify the inquiry process, and ensure the Committee’s role in assessing what is in the best interests of the Senator, the Senate and the public.
Suspension of Process
Current Provisions
The SEO and the Committee are authorized to suspend their inquiry or investigation when the same matter is investigated by proper authorities or charges have been laid. In practice, the process is suspended as soon as the matter is investigated.
Proposed Amendments
When a matter is under investigation by proper authorities, the SEO and the Committee would be authorized to suspend their preliminary review, inquiry or study only when it could prejudice the investigation by proper authorities or pursuant to a written request by proper authorities. However, once charges are laid, the preliminary review, inquiry or study would be suspended until final disposition of the charges.
Rationale
These amendments would clarify the circumstances justifying the suspension of the inquiry process. They would also strengthen the inquiry process by ensuring that the examination of a matter is suspended only when the circumstances so warrant, and would draw a distinction between a criminal matter (under other authorities) and disciplinary process for the Senate.
Public Communications
Current Provisions
The Code provides that the summary and other related documents of each Senator’s disclosure statement are made public and available on the website of the SEO. Aside from these provisions, the Code is silent on the information the SEO may provide to the public.
Proposed Amendments
The SEO would be expressly authorized to provide general information about the Senate conflict of interest regime to the public. He or she would also be authorized to inform the public of the status of a preliminary review or inquiry. Public documents relating to the general inquiry process would be posted on the website of the SEO.
Rationale
These amendments would make more information respecting the Senate conflict of interest regime available to the public. They would increase the openness and transparency of the Senate conflict of interest regime.
Recommendations and Coming into Force
These proposed amendments would replace the provisions of the existing Code dealing with inquiries and investigations with new ones, while also making some minor consequential amendments to other. The Code, with the recommended amendments integrated into it, is attached as an Appendix to this report.
Your Committee recommends that these proposed amendments be adopted.
Your Committee further recommends that these amendments come into force upon their adoption, provided that matters already under preliminary review or inquiry by the SEO or under investigation by the Committee remain governed at all stages of the process by the provisions of the Code as they read before these amendments come into force.
Finally, these amendments to the Code would require consequential amendments to the Rules of the Senate. Your committee further recommends, therefore, that the Standing Committee on Rules, Procedures and the Rights of Parliament undertake a study with the view to recommend the appropriate consequential amendments to the Rules of the Senate.
Respectfully submitted,
RAYNELL ANDREYCHUK
Chair