May 4, 2021
Honourable senators, I rise today on behalf of the Standing Senate Committee on Ethics and Conflict of Interest for Senators to speak to its second report. This report proposes amendments to the Ethics and Conflict of Interest Code for Senators in light of the new Senate Harassment and Violence Prevention Policy.
On February 16, 2021, CIBA tabled its fourth report. This report informed the Senate that a new harassment policy had been adopted by that committee. On March 30, 2021, the Senate adopted a motion to repeal the 2009 Policy on the Prevention and Resolution of Harassment in the Senate Workplace as well as the 2019 interim process for the handling of harassment complaints.
Given the imminent implementation of the new policy, our committee examined whether amendments to the code were advisable in light of the policy.
Right at the outset, I would like to explain and clarify the role and mandate of our committee. Under the Rules of the Senate, the Ethics Committee is authorized to address, on its own initiative, all matters relating to the code.
With respect to the new policy, however, our committee has no authority to determine or modify its content. The policy is within the exclusive purview of CIBA and thus beyond the mandate of the Ethics Committee. As such, this report concerns only the alignment between the new policy and the Ethics and Conflict of Interest Code for Senators.
Some senators have expressed concerns that the process provided under the policy to deal with harassment and violence does not extend to parliamentary proceedings because they are subject to parliamentary privilege. However, this implies that no recourse exists for misconduct that occurs during proceedings.
Let me remind senators of the mechanisms that currently exist to deal with inappropriate conduct in the chamber or during committee meetings. These include points of order and questions of privilege. In accordance with the Rules of the Senate and long-standing parliamentary procedure, senators may bring conduct that constitutes harassment and violence, and that occurs in the course of the Senate or Senate committee proceedings, to the attention of the Speaker of the Senate or the committee chair as the case may be.
The Senate and its committees, subject to the Senate’s authority, have the exclusive authority to regulate their own proceedings. If the Senate eventually adopts amendments to its rules regarding the harassment and violence that occurs during proceedings, our committee will then consider whether related amendments to the code are necessary.
Within the specific mandate of our committee, we believe amendments are necessary to align the code with the new policy.
In reaching this conclusion, our committee met in February to examine how the policy interacts with the code, and in March to discuss potential code amendments. Our committee also met with the Senate Ethics Officer, the SEO, to hear his views on the proposed amendments. His assistance was crucial in ensuring that any proposed amendment is consistent with his role and responsibilities under the code and the Parliament of Canada Act. It was also important to ensure his understanding of the proposed process under the code in matters related to harassment and violence.
Before considering potential amendments to the code, our committee examined the adequacy of the current process for cases involving a senator’s conduct that constitutes harassment and violence. We determined that the current approach under the code would be partly duplicative of and misaligned with the process under the policy.
Our committee noted that the current provisions of the code require that the SEO, when seized of an issue, first conduct a preliminary review and then, if warranted, an inquiry. This can take time and involves procedural requirements, such as notices to parties and interviews under oath.
Indeed, our committee was informed by the 2019 Meredith inquiry, wherein there were delays in the completion of the SEO’s inquiry caused in part by a need to re-interview persons who previously participated in an independent investigation concerning allegations of harassment. We sought to avoid similar issues arising in the future.
Further, our committee considered observations made by the SEO as part of the Meredith inquiry report wherein he clarified that his role should not usurp the role of the Senate as the employer in interpreting and applying Senate policies, and that he should not act under the code unless an allegation of harassment and violence has been substantiated by the Senate.
In addition to these considerations, our committee was guided by five key principles in its deliberations.
First, our committee is mindful of the realities of the workplace harassment resolution processes. It is important that any process under the code should seek to minimize any further impacts on a person who experienced violence and harassment.
Second, we considered the confidentiality and privacy of the parties as required under the policy and the applicable statutes. Amendments to the code should also safeguard the confidentiality of those involved. This would not, however, prevent the disclosure of certain information that is sometimes required, such as the name of a senator in a report brought to the Senate for decision.
Third, our committee was conscious of the importance of timeliness in matters related to harassment and violence. We also noted the six-month time limit provided by the policy for the completion of the resolution process. Thus, we believed that certain procedural requirements under the code should be modified when the SEO is provided with a report from an independent expert investigator under the new policy.
Fourth, our committee was mindful of the SEO’s limitations in investigating cases of harassment and violence. Applicable federal regulations require investigators to possess relevant knowledge, training and experience regarding harassment and violence in the workplace, something the SEO does not inherently possess. We believe that it is preferable to defer to the work of investigators who are experts in this area.
Finally, we noted that context is important and the circumstances of any two cases may be quite different. Accordingly, any amendments to the code should provide our committee with the flexibility necessary to fulfill its obligations and respond to different situations as they arise.
In light of these principles and to align with the requirements of the policy, our committee proposes to amend the code by adding new provisions that would apply specifically to a senator’s conduct that may constitute harassment and violence. For clarity, this new code process is only engaged if the SEO receives a final investigation report as a result of an investigation under the policy.
I will now provide an example of how our committee sees the sequence of events with the proposed code amendments.
If senator X is the subject of an investigation under the policy, the final investigation report would go to the SEO. Under our proposed amendments, the SEO would provide it to the Ethics Committee as soon as possible. The SEO would take no additional action at that time. He would neither conduct a preliminary review nor an inquiry. However, the Ethics Committee could ask the SEO for recommendations in respect of potential remedial, corrective or disciplinary measures. With or without the SEO’s recommendations, the Ethics Committee may recommend sanctions to the Senate in a public report that would name the senator. Or the Ethics Committee might refer the matter to CIBA or its subcommittee confidentially for remedial or corrective measures such as additional training.
The proposed amendments mean the SEO would only provide the Ethics Committee with the report of the investigator and, if necessary, a recommendation. The Ethics Committee considers whether the recommendations are appropriate to the Senate or CIBA. Neither the Ethics Committee nor the SEO would conduct their own investigations nor would they serve as any sort of appeal mechanism.
Now that I’ve explained the steps of the process, I would like to turn your attention to the specifics of the new provisions we are recommending.
First, our committee recommends that the code provide a new rule of conduct section 7.3 stating: “A senator shall refrain from engaging in conduct that constitutes harassment and violence.”
We believe it is important that the code includes a provision that directly addresses harassment and violence.
Second, we recommend adding a new provision to deem a finding of an investigation report that a senator engaged in harassment and violence to be a breach of section 7.3. Thus, by engaging in conduct that an independent expert investigator determines to be harassment and violence under the policy, a senator breaches their obligations under the code. This amendment recognizes and respects the expertise of the independent investigator. It also seeks to minimize the risk of further victimization by precluding the SEO from conducting an additional investigation.
Third, we propose a new section to require that the SEO provide the final investigation report under the policy to our committee as soon as possible without conducting a preliminary review or an inquiry. The committee is authorized to direct the SEO to provide recommendations regarding remedial, corrective or disciplinary measures in relation to a breach of the new section 7.3.
These amendments would streamline the process under the code when the SEO has received a report resulting from the policy, avoid redundant procedures that would already have been undertaken by the investigator and facilitate meeting the six-month time limit provided by the policy for the completion of the resolution process.
Four, we recommend a new section to require that the committee redact information that could identify parties involved in a resolution process unless their consent is obtained.
It is important to note that these changes do not compromise procedural fairness for any participant in a resolution process because the policy already establishes that all parties would receive the investigator’s final report at the same time. As for our committee, we would be provided a copy of the same report, on a confidential basis, as soon as it is received by the SEO.
It should also be noted that the obligation to preserve the confidentiality of the parties will not prevent the Ethics Committee from disclosing certain information when required by the code, such as in our committee’s reports to the Senate recommending disciplinary measures to a senator.
As well, extraordinarily, the process would prevent any suspension of work on the part of the SEO in relation to an investigator’s report because there is potential criminal activity or because the senator ceases to serve. Our committee felt it was important to minimize delays and ensure the speedy resolution of the process such that the committee will always receive the final investigator’s report under the policy as soon as possible.
These proposed amendments are the result of careful examination and deliberation by our committee. If this report is adopted, the code would provide a streamlined mechanism for the SEO and the Ethics Committee for dealing with harassment and violence that aligns with the new policy.
Our committee therefore recommends that the amendments come into force either upon the adoption of this report, provided that the policy is in force, or upon the coming into force of the policy.
Honourable senators, I would like to conclude with a reminder that the code is an evolving document. From time to time, amendments are necessary to ensure that its provisions are both current and free of ambiguity and to enhance public confidence in the Senate and senators.
Our committee believes that these recommendations reflect the Senate’s desire for the code to keep pace with the contemporary needs and realities of the institution. They would also ensure that the Senate’s regime for addressing certain types of misconduct is clear and consistent.
By adopting these recommendations, the Senate would once again reassert its commitment to holding senators to the highest standards of conduct through a process that responds to the changing needs of the Senate.