Honourable senators, before proceeding to Orders of the Day, I have received a request from another senator to allow further consideration of the question of privilege raised by Senator Marshall. Although this is not common practice, it is not unprecedented, and I will allow it in the current case. Therefore, we will now hear any new arguments on the question of privilege.

Thank you, Your Honour. I rise to speak to the question of privilege raised by Senator Marshall regarding e-mails provided to the Senate Ethics Officer in the course of an inquiry under the Ethics and Conflict of Interest Code for Senators. For the benefit of all senators, as Chair of the Standing Senate Committee on Ethics and Conflict of Interest, I am rising to speak to this matter on behalf of the committee to provide information about the code as it relates to this question of privilege.

We are doing so to underscore that the inquiry process under the Code must remain confidential to guard its integrity and to protect everyone involved, including the senator who is the subject of the inquiry. As information about an inquiry has now been made public, the required confidentiality has not been maintained.

Let me state at the outset that neither I nor the members of the committee have specific knowledge as to the e-mails requested or received by the SEO, the process by which any e-mails were provided, or how they may be used in the SEO’s inquiry. Further, neither I nor the committee seek to presume or prejudge the outcome of any inquiry of the Senate Ethics Officer or Your Honour’s ruling in respect of this question of privilege. I note that the committee will be seized of the relevant inquiry report once it is completed and it has no advance knowledge of its contents.

Senators, the Ethics and Conflict of Interest Code for Senators, which binds all Senators, the Senate Ethics Officer and any person participating in an inquiry process requires confidentiality from everyone. Specifically subsection 48(8) of the Code states that:

Any person participating in the inquiry process is expected to respect its confidential nature and to cooperate with the Senate Ethics Officer.

Further, the SEO, when conducting an inquiry is required under subsection 48(6) of the Code to:

. . . conduct an inquiry confidentially and as promptly as circumstances permit.

Subsection 48(4) of the Code empowers the Senate Ethics Officer:

. . . to send for persons, papers, and records . . .

This may include e-mails of senators which are stored on servers of the Senate administration. There is a process by which the Steering Committee of the Standing Committee on Internal Economy, Budgets and Administration, more commonly known as CIBA, may release documents under the control of the administration to the SEO.

Under the Senate Administrative Rules, Division 2:00, Chapter 2.06, section 9(1):

The Senate Administration shall refer to the Steering Committee any request for access to unpublished records or un-published information

(a) about the Senate, a Senator or a former Senator; or

(b) in which a Senator or former Senator is identifiable.

This process is not administered by the SEO or the Standing Senate Committee on Ethics and Conflict of Interest for Senators.

The committee is of the view that any privileges that senators may have with respect to their e-mails may be limited by the Code. The interest of a senator in knowing that their records are shared must be weighed against the obligation of the SEO to conduct an inquiry promptly and confidentially and the need to protect the senator who is the subject of an inquiry.

Upon the completion of the next inquiry report of the Senate Ethics Officer, the committee will be able to examine the particulars of any procedural matters. Until then, I would encourage all senators to examine the Code and their obligations under it, including in respect of confidentiality.

I trust this information will be of assistance to you, Your Honour, in considering this question of privilege.

Thank you, Your Honour. I would like to respond to that. I wasn’t here for the beginning. I saw the announcement on the Senate Ethics Officer’s website. It says that, “in carrying out an inquiry, the Senate Ethics Officer has the power to send for persons, papers, and records,” which he did, and which I provided. I also provided records that he was not aware that I possessed. Whatever I had I gave to him.

I think that if the “persons, papers and records” also include e‑mails, I hope my Senate colleagues are aware of this in the future so that they will know that really, your e-mails are an open book.

The other point I would like to make, Your Honour, and to my colleagues, I don’t think I should have had to learn about this out in the hallways through the grapevine. I think that somebody in the Senate — and I don’t know whether Senate leadership or Senate administration, but for someone to have to just sneak up and tell me this, and to become aware that my colleagues knew of it, I think that is absolutely disgraceful.

I think that the way the Senate Ethics Officer is carrying out his investigation — he might be a Senate Ethics Officer, but the manner in which he is carrying it out is unethical. He should have told me. I was cooperating, and he should have told me. The last e-mail — the last correspondence I had from that office was to thank me for my cooperation and assistance.

Honourable colleagues, there is nothing I can do for myself. Be aware, your e-mails are open to the Senate Ethics Officer, and I would say now probably to other offices of Parliament. Thank you, Your Honour.

Your Honour, I also want to be brief on this debate. What I find particularly disturbing with this whole exercise is that the Senate Ethics Officer has taken it upon himself to make requests of e-mails and documentation in the course of an inquiry, an investigation of a senator, which is one thing. As we all know, as senators, when the Senate Ethics Officer carries out an investigation, he informs the senator in question that he is carrying out an investigation. But when he reaches out in the course of an investigation on a senator, in another senator’s e‑mail files, when that particular senator has cooperated with the Senate Ethics Officer, has met with the Senate Ethics Officer, and yet he chooses to go to steering of Internal Economy to get access to any senators’ e-mails who are not formally under investigation, because from what I understood from the question of privilege from Senator Marshall, she has not been informed by the Senate Ethics Officer that she is under investigation.

If the Senate Ethics Officer has the capacity to reach into the Code and into our personal e-mails, our Senate e-mails when senators are not under investigation, that is something that we should all be very concerned about.

Can I ask Senator McPhedran a question?

I’m sorry, Senator Marshall. I’m looking for input into your question of privilege that will help me. We can’t turn it into a debate because it’s not a forum for that. If you have something, Senator Marshall, at any time that you wish to add that you think can be of assistance to me on your question of privilege, feel free to comment.

I’m sorry, I would like to add. I think that one of the big issues I had with this situation is that people in the Senate knew and never told me, that I had to find out through the grapevine. I think that that’s a disgraceful way for the Senate, a big institution like the Senate, to operate. That somebody did not have the courtesy to say to me, somebody in authority to say to me, “Excuse me, Senator Marshall, I think you should be aware of this.”

Instead, everybody went on their merry way and said nothing, until somebody was kind enough to tell me something through the grapevine.

Thank you, Your Honour. I’ll be very brief. I was disturbed yesterday when Senator Marshall first raised her issue and her opening words were about the tone of the investigation at the beginning. Then she followed that up with what actually happened to her. I was not aware of this policy, either, and it may be something we want to look at as to what the rules and restrictions are. If all the e-mails were exposed, can they look at everything? How do they sort them?

For example, I receive confidential e-mails from CRA employees about things they think are outrageous in the agency so I can follow them up on behalf of the public. They are whistle blowers, if you will, people who are, in some cases, anonymous and in other cases are not. They are very brave individuals because they would lose their jobs in many cases.

They are not giving me confidential tax information; they are talking about policies that are wrong in the agency. This is a serious concern if we have to start working, as many in the federal government do, to get around the Access to Information Act and Privacy Act by going with disposable notes, not writing things down and having two individual BlackBerrys. It’s a serious problem.

I am very concerned about what Senator Marshall said. She doesn’t need me to speak to her integrity and professional credentials, but we should all know she is a chartered accountant by experience. She is the former Auditor General of Newfoundland and Labrador, a former MLA and a former cabinet minister. I worked with her for years on the Internal Economy Committee. She has the highest integrity possible and I’m deeply disturbed by what I heard today that happened to her.

Thank you, Your Honour. On this particular situation, I will not comment on the specifics of the situation because it is bound by the confidentiality of the steering committee. However, I would say that a situation where a request was made to CIBA, to steering or to administration in this matter for records — any records — the first thing we would do is get the advice of a law clerk. The second thing we would do is make sure we in steering followed the rules of the Ethics and Conflict of Interest Code scrupulously, and basically those are the two things we would follow.

In terms of advising senators, we are bound by the code of confidentiality that is in the Ethics and Conflict of Interest Code, so if we do not like that, I suggest we not debate that issue. We should change the Ethics and Conflict of Interest Code and update it to eliminate what we don’t like and what we consider unreasonable.

Thank you.

I would like to thank all senators for their input into this very important issue and this important question that Senator Marshall has raised. I will continue to take the matter under advisement.