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Ethics and Conflict of Interest for Senators

Fifth Report of Committee Adopted

May 9, 2019


[16:04]

Honourable senators, I rise to address the fifth report of the Standing Committee on Code of Ethics and Conflict of Interest for Senators. I stand accused today by the Senate Ethics Officer of refusing to censor the free expression of Canadian citizens with whom he disagreed. The committee has agreed with the officer and issued a report that now urges this body of free debate to become a tool of censorship. I request that you reject the committee’s recommendations.

I make this request for three reasons. The first is the principle of free speech, precious to this chamber and to those Canadians who wrote to me. I have posted the letters of hundreds of Canadians on my website and it has been become a positive public forum. I will not act in a manner that interferes with the freedom of expression of the people I represent each day.

I note at this point that the penalty of the committee report is right out of Orwell’s 1984. According to the Supreme Court of Canada in the 1984 case of National Bank v. Retail Clerks’ International Union et al., this type of penalty is totalitarian and, as such, alien to the tradition of free nations like Canada.

The second reason to reject the committee report is the focus of the Senate Ethics Officer. Retired Simon Fraser University Professor Ehor Boyanowsky, after whom the Confederation of University Faculty Associations named the Ehor Boyanowsky Academic of the Year Award wrote a letter of support to me on May 2, 2019. This is what he wrote:

I commend you on your honest and forthright assessment of the residential school effects, positive and negative. Be assured that there are millions of people in Canada who support your stance, and should you think of any manner in which I could be of assistance do not hesitate to contact me.

Retired Judge Brian Giesbrecht of Manitoba wrote to me on May 3, 2019, with his article titled: Senator’s Thought Crime.

The article noted that my family included Indigenous members and then it asked this question:

So what is the senator’s real crime  — a crime deemed so egregious that she must be humiliated, shunned and even financially damaged and hounded out of public office? Her “crime” is refusing to go along with the politically correct version of the prevailing orthodoxy pertaining to Indigenous issues.

On May 1, 2019, I received a copy of a letter from Colin Alexander sent to the Senate Ethics Officer. It begins:

Pierre Legault, I have just read your report on the postings by Senator Lynn Beyak. As the former publisher of the Yellowknife News of the North who has family living in Nunavut, I found your reasoning and your conclusions shockingly unprofessional. The conclusions of the Senate Ethics Officer and the report of the committee are directed exclusively at my refusal to censor letters from Canadians on my office website. This is not a legitimate matter for the attention of the committee.

It is my submission that the Senate should only focus upon the speech of a senator on the floor of this chamber or upon the action of a senator outside this chamber where the action is contrary to law. If the Senate does not respect this legal bright line, then every act of a senator will become fair game for political opponents, including interactions in the office, home, bedroom and at church. This simply cannot be.

The committee report is contrary to the law of Parliament. On February 26, 2018, Senator Anne Cools, then-Dean of Senators, gave a speech that explained this point:

The idea and practice of this political or civil liberty . . . can only be lost or destroyed by the folly or demerits of its owner: the legislature...

Parliamentarians have not had freedom of expression threatened like this since the events that led to the enactment of the Bill of Rights by the English Parliament on December 16, 1689. Dear senators, if we do not enjoy freedom of expression we no long enjoy the protection of the rule of law, but instead become subject to the rule of individuals and their whims.

This is a critical day. Either senators are free to speak without fear of reprisal or we are not. I trust that this Senate will not abandon 430 years of liberty. The ancient right of freedom of expression should not be discarded on 15 minutes’ consideration.

The third reason to reject the committee report is explained in a letter that I provided on April 9, 2019, in response to letter received from them just the day before:

Dear committee members, first, I reiterate my request to provide a full response to the committee as directed by subsection 49(2) of the code:

The opportunity to be heard by the committee is meaningless if I do not have sufficient time to prepare. An additional two weeks is not unreasonable in light of fact that it took the Senate Ethics Officer 52 weeks to complete the report.

Second, this letter sets forth factual, legal and constitutional concerns with the report. My request for adequate time to respond is made so that I may prepare a comprehensive, line-by-line critique of the report.

Third, in light of the refusal to afford me time to prepare, I will succinctly set forth my response to the report.

First, there is a reasonable apprehension of bias. The Senate Ethics Officer found my decision to trust you, the Senate, rather than the Senate Ethics Officer on the question of whether I breached the code “to be an aggravating factor in this case.” The Senate Ethics Officer acknowledged that his conclusion was “not germane to the issues,” but that did not stop him. This is a display of annoyance or exasperation. This is an emotional response; it is not a professional response. This annoyance demonstrates bias and taints the entire committee report.

My next point was that the Senate Ethics Officer had no jurisdiction to conduct his inquiry. The Senate Ethics Officer did not have jurisdiction to review the letters in issue, as the letters were from Canadians exercising rights protected by the Charter of Rights and Freedoms. I did not write the letters, or adopt the words or the reasoning of the letters. Every year, senators and members of Parliament receive and table hundreds of thousands of letters and petitions from Canadians. It is neither possible nor desirable for us to censor each line and each sentence of every letter.

The proper test to be applied in these circumstances was highlighted by the Senate Ethics Officer on page 15 of his report when he noted that Chief Justice McLachlin proposed that a publisher of a statement accessible by hyperlink or endorsement of the content of the hyperlinked text would not be responsible. I invite the Senate to adopt this test and find that I am not responsible for the words chosen by Canadians when they write to me.

The Senate Ethics Officer found that I did not in my conduct or actions discriminate on any basis or express discrimination. The only conduct or action that is condemned is my refusal to censor Canadians and shut down debate about sensitive issues on which Canadians have expressed various opinions.

In the letter, I stressed concern that the Senate Ethics Officer usurped the role of the Speaker. Senators should jealously guard their right to free speech. The Speaker of the Senate always has. On page 17 of Senate Ethics Officer report, it is noted the Speaker has not yet determined whether a senator’s website is protected by privilege. The Senate Ethics Officer should not have proceeded to make a determination on this question in the place of the Speaker. The Senate Ethics Officer should have waited for this issue to be determined by the Speaker or the Senate itself. The reason for deference is obvious: The Senate Ethics Officer should not be making back-door rulings for the Speaker.

My privacy was unlawfully impaired by the Senate Ethics Officer.

Section 56 of the code protects a senator’s right to privacy. In his public report, the Senate Ethics Officer made extensive reference to private conversations that he had with me. His writing style was convoluted and contradictory, moving back and forth between various subjects and confusing to anyone reading the document. His approach violated my privacy rights under the code and disrespects the Senate and every member of the Senate. Subsection 57(3) of the code is very explicit about the importance of confidentiality. The extensive and unlawful breach of my privacy is such that the committee report should be rejected.

The Senate Ethics Officer’s consultation with experts violated my right to privacy. The Senate Ethics Officer breached my privacy rights when he consulted two volunteer experts whom he did not retain or pay as experts. The participation of volunteers who are not contracted and sworn to confidentiality is highly improper and expressly forbidden by sections 53 and 56 of the code.

Finally, the committee report is based upon ultra vires considerations. The entire report is ultra vires because the Senate Ethics Officer brought into consideration the legal concept of conduct unbecoming from the rules of Law Society of Ontario. The role of senator is that of public representative. It is not anything like the role of a legal professional. They are not two of a kind.

More important, there is nothing in the code to authorize the Senate Ethics Officer to take into account rules that a law society would take into consideration. When the officer took into account the Rules of Professional Conduct of the Law Society of Ontario, he took into account an irrelevant consideration. The law does not allow this.

As the committee report was based upon the Senate Ethics Officer’s report, it suffers from the same dysfunction. I conclude that the Senate Ethics Officer did not accurately reflect the views of Professor Richard Moon. I’m convinced that the professor would agree that it is my first duty to protect, respect and facilitate free speech. This is what Professor Moon wrote this year in Constitutional Forum: “Freedom of expression has little substance if our trust in the autonomous judgment of the individual is the exception. It has no substance. It is protected only when we agree with its message or consider the message to be harmless. The problem with this approach to free speech protection, an approach that formally acknowledges the premises of free speech but supports limits on speech that carries a harmful message, is that it puts the whole edifice at risk.”

At this point, let me clarify the process that led to my April 9 letter. I have documentation that I responded in a timely manner to every deadline set by the Senate Ethics Officer and the committee. Yet after a 52-week process of investigation, including a five-month delay by the SEO from July to December 18, the committee refused my request for two weeks to prepare for a hearing on the Senate Ethics Officer’s report.

The committee unfairly and inaccurately cites my alleged delays as the reason of the consequences, which for me are excessively severe.

Let me close with these comments. Renowned Canadian journalists and academics took the time to read every letter on my website. They did not find anything racist, and they publicly said so. Their correspondence was sent to the Senate Ethics Officer but not referenced anywhere in the report.

Telling the truth is sometimes controversial but never racist. The Senate’s reputation has been enriched by my stand, as clearly stated in thousands of letters from Canadians that I submitted to the Senate Ethics Officer. Many of the letters spoke of the pride and respect for the Senate and for me because of the dignity, honour and integrity I bring to the Senate through my honesty and consistency. These letters were not referred to in the report either, and one must ask why.

The only time the website reflects negatively on the Senate of Canada or is hurtful to grassroots Indigenous people is when the media inaccurately portray comments, including senators and members of Parliament who are asking to take down hatred when none exists. It is dishonest and irresponsible, as is quoting only portions of letters from thoughtful and compassionate Canadians and leaving out the true context of their ideas.

Likewise, letters of support were submitted to the officer from three Indigenous women. One is a chief. The letters were not included in his report. I believe those three women are in a far better position to judge than the Senate Ethics Officer.

Lastly, members of my family, my friends and my associates in my region are a mix of Indigenous and non-Indigenous Canadians. We are intermarried and integrated — not assimilated — as we each proudly preserve our cultures. We share schools, hospitals, churches, businesses and amenities, working together and supporting one another. We are resourceful and resilient. We have found a way to share and live together, and thrive, a superb model for all of Canada. Occasionally, outsiders come from what the grassroots call “the industry” and try to divide us. We did not succumb, and we grew stronger and more united than ever.

My website has been lauded as one of the most positive, comprehensive and informative available on Indigenous issues. There are hundreds of thousands of Indigenous people across Canada who consider themselves victors, not victims, and many want to tell their meaningful, positive and inspiring stories. I’m proud to have a positive forum for Canadians to do that.

The problems of today —

The Hon. the Speaker
[16:19]

I’m sorry for interrupting, senator, but your time has expired; are you asking for five more minutes?

The Hon. the Speaker
[16:20]

Is leave granted, honourable senators?

[16:20]

I am proud to have a positive forum for Canadians to do that. The problems of today — inadequate housing, boil water advisories, fire, mould and disease — are a result of failed current government policies and have nothing to do with the past colonization, settlers or schools. Pierre Elliott Trudeau said:

We could mount pressure groups across this country on many areas where there have been historic wrongs. I do not think it is the purpose of a Government to right the past. It cannot re-write history. It is our purpose to be just in our time . . .

I agree with him. I voted for him.

Honourable senators, we must find a way to work together. A young man in my region was not joking when he suggested the residents of a Far North reserve move to the fancy homes and condos of the “fat cats” in Ottawa and that they, in turn, move to that reserve for a year. It would not take long for solutions to be found.

I ask those colleagues who have told me you are unfamiliar with the plight of many of our Indigenous people to take a few minutes to read, “The Whole Truth/A Meaningful Way Forward,” on my website. It sets forth the belief that there is a positive path that can be followed.

Finally, honourable senators, I ask you to reject the committee report so that I may continue my valuable work on behalf of grassroots Indigenous Canadians in my region who have no voice. In turn, I will always respect and value yours. I do not understand this rush to judgment, and I would humbly ask one of you to take the adjournment for the weekend to give senators a chance to consider my remarks.

Thank you.

Senator Harder
[16:21]

I would call the question on the motion before us.

The Hon. the Speaker
[16:21]

Are senators ready for the question?

The Hon. the Speaker
[16:22]

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to, on division, and report adopted.)