This site will look much better in a browser that supports web standards, but it is accessible to any browser or Internet device.

Skip to Content

Speech in Senate Chamber: Senator Cools supports Senator Bryden's amendment to Bill C-4, An Act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence.

Senator Cools: Honourable senators, I rise to support Senator Bryden's amendment.

Honourable senators, the first principle is that Parliament and its members are not to be subjugated or subordinated to the servants of the Crown, that is the King's ministers, counsellors or judges, for any reason whatsoever. From 1689 on, Parliament set out in practice and statute to banish office-holders and Crown servants from its bosom, both as its members and as its personnel. In Canada, these acts were called the independence of Parliament acts. Our own Parliament of Canada Act was created to do this. Its first planks were these several independence of Parliament acts. These acts form the Senate and House of Commons Act, the predecessor of the Parliament of Canada Act that Bill C-4 would amend. These acts banned office-holders and Crown servants from sitting and voting as members of Parliament. Until 1931, cabinet ministers had to resign as members of the House of Commons and seek re-election. Ministers, Crown servants and office-holders could not be members of the House of Commons without their constituents' agreement.

Honourable senators, the revolution and its settlement act, the Bill of Rights in 1689, laid out these constitutional notions that are the foundations of our Constitution, saying that the King used his Crown servants to subvert the liberty of the realm. It said that the King:

. . . by the Assistance of divers evil Counsellors, Judges and Ministers employed by him, did endeavour to subvert . . . the Laws and Liberties of this Kingdom.

Parliament and its members are to be free from coercion by the Crown office-holders, in short, free from the pleasure or displeasure of the King, today the Prime Minister's Office. Our Constitution bans office-holders from Parliament except under severely proscribed conditions. The proscribed conditions are ministerial responsibility and also the terms and conditions of the appointment of Parliament's own officers.

Honourable senators, Bill C-4 is a corruption of the Parliament of Canada Act itself. It is contrived to defeat that act and to defeat constitutional law from 1689 as embodied in Canada by the British North America Act, 1867. Bill C-4 also contrives to defeat Parliament's own law, the law of Parliament.

Honourable senators, I wish to speak to the Senate ethics officer, its tenure of office, its removal from office and its financial accountability.

First, financial accountability: Bill C-4, by clause 2, amending section 20 of the act, proposed sections 20.4(7) and 20.4(8), will place the determination of the Senate ethics officer's budget and financial actions beyond the reach of the Senate. This is most unparliamentary. The Senate will have no role, no administrative supervisory or constitutional role, in determining the budget of its own so-called ethics officer. This officer will be able to write a blank cheque. In fact, this Senate officer's budget process wilfully shuts out the Senate, unlike the budget process of the other Senate officers. The other Senate officers' budget needs are proposed as part of the Senate's total budget, the total appropriation. The Senate's sole option on this officer's estimates would be an adverse vote and its political consequences. Such adverse votes are rare and in this instance would not be practicable. Therefore, this ethics officer, in practical terms, will have a blank cheque decided solely by the President of the Treasury Board and the officer. Bill C-4 contrives the finances of this officer to be beyond the reach of the Senate. This is objectionable, unusual and it is not Parliament's control of the public purse.

Honourable senators, I come to the very important matter of the appointment and tenure of this ethics officer. The Leader of the Government in the Senate, Senator Austin, has told us that the Senate ethics officer is exactly the same as the other Senate officers and that this new appointment is consistent with constitutional principles. In fact, on March 24 I put questions to him directly about the Senate ethics officer as compared to one of our Senate officers, the chief one, the Clerk of the Senate. Senator Austin is quite wrong and I propose to show honourable senators how and why. I propose to show that this position is most unlike that of the other Senate officers and is a novel creation, totally novel. I will also show that it is more lucrative and powerful than that of the other Senate officers. It will be at the top of the heap. In fact, it is not a Senate officer at all but some new constitutional creature that I choose to call a parliamentary Godzilla.

Honourable senators, I shall compare the tenure of office, the salary and the terms of the appointment of this new Senate officer with the Clerk of the Senate. The Senate clerk is also the Clerk of the Parliaments, as the Clerk of the Commons is the Under-Clerk of the Parliaments. Further, the Senate clerk is the chief of all the Senate officers and has charge of all the Senate staff and the day-to-day staff operations. He is also the custodian of our records and the endorser of our proceedings. Whereas the proposed new position has a tenure of seven years with a possibility for renewal and for removal from office by address of the Senate, our Senate clerk's tenure is during pleasure with no fixed term of appointment or renewal. Further, his removal from office is not by address at all, as Senator Austin wrongly said a few days ago. Our clerk's removal is at pleasure. He may be removed at a moment's notice without notice to him or this house. This new position is quite unlike that of our clerk.

On the question of rank and salary, our Senate clerk, unlike the proposed new position of ethics officer, does not have the rank of deputy minister. Neither does he have a deputy minister's salary. The Senate clerk's salary is lower than that of a deputy minister's salary. Further, our clerk's budget and financial needs are prepared and submitted to the Standing Committee on Internal Economy, Budgets and Administration and are processed and described as a part of the Senate's total budget, which is voted on and approved by this house prior to submission of the President of the Treasury Board, all quite unlike this new proposed Senate ethics officer.

Honourable senators, I come now to the all-important terms of the appointment of the Senate clerk. Parliament has no power to appoint its own officers. These office-holders are appointed by the Queen using different royal instruments. The Queen is the enacting power that gives statutes the force of law. So too it is the Queen's commissioned power that gives appointments their legal force. Centuries ago, Parliament needed personnel with the legal force that only the King could give, but Parliament was hostile to office-holders. This is a thorny constitutional question. The power of the King was needed, but the personal control of the King through his servants, office-holders, was unwanted. Parliament needed officers who were legally viable to do its work, yet such legal viability, then as now, could only be found in the King's appointment, in the King's royal grant of power.

Parliament's need of legal power for its officers and its aversion to Crown servants both needed to be satisfied. Both constitutional questions had to be resolved, particularly in those days when house officers, our clerks, were sometimes also members of Parliament.

Honourable senators, this constitutional resolution was achieved in the 1700s by the modifications of the terms and conditions of the appointments of the House of Commons officers and their prescribed oaths. These officers' oaths of office are definite expressions of the law in which the King's intention in his letters patent and the duties of the House officer are both joined. Parliament for centuries has prescribed the oaths to be sworn by the great officers, who include the Clerks of the Senate and of the House of Commons.

Honourable senators, Senate records show this. Specifically, on March 15, 1994, Speakers Roméo LeBlanc informed us that Paul Bélisle had been appointed Clerk of the Senate and the Clerk of the Parliaments. On parliamentary usage, Speaker LeBlanc said:

Honourable senators, I have the honour to inform the Senate that, by the usage of Parliament, the Clerk of the Senate is required to take the oath of office before the Honourable the Speaker of the Senate.

The Debates of the Senate tells us that same day that "The oath of office was administered by His Honour the Speaker."

Honourable senators, our clerk's oath dates back to at least the 1700s. Its origin is not the oath of the U.K. Clerk of the House of Lords, but it is that of the U.K. Clerk of the House of Commons.

The Journals of the Senate that same day reported Paul Bélisle's oath, that:

Ye shall be true and faithful, and troth ye shall bear to Our Sovereign Lady Queen Elizabeth the Second, . . .

The Journals continued to the critical portion of the oath of the Clerk of the Senate:

Ye shall also well and truly serve Her Highness in the Office of Clerk of the Senate of Canada, to attend upon the Senate of Canada, making true entries and records of the things done and passed in the same.

Honourable senators, the Clerk of the Senate attends upon the Senate. This lengthy oath ended:

Ye shall well and truly do and execute all things belonging to you to be done appertaining to the Office of Clerk of the said Senate. As God you help.

Honourable senators, the Clerk of the Senate swore an oath of the great officers, which is a constitutional complement to his letters patent. His appointment is a grant of office, which grant is modified to meet Parliament's constitutional and representative role. The grant of office places a condition on the Senate clerk. That condition is to serve the Senate; that is, to "attend upon" the Senate. Our clerk is a Crown servant, but simultaneously he is a Crown servant who is pledged to be the servant of the Senate. Our Senate clerk is the Queen's grant of office. He is a royal gift to the Senate. This affirms the Senate's independence.

Honourable senators, the origin of the oath of the Clerk of the Senate is a constitutional accommodation between the King and the Commons. Our Senate clerk's oath is exactly the 1700s House of Commons clerk's oath in the U.K. The words are the same except that the "Senate of Canada" is substituted for "Commons." The words of the oath of the 1700s Commons clerk were:

Ye shall also well and truly serve His Highness, in the office of "Under Clerk of his Parliaments, to attend upon the Commons . . ."

The critical words are "attend upon," as distinct from "attend at" or simply "attend." The literature shows the distinction.

Honourable senators, in musing that the Senate clerk is prescribed to swear an ancient U.K. House of Commons clerk's oath, we must recall that by the Constitution Act, 1867, section 18, both the Senate and the House of Commons powers and privileges are those of the U.K. House of Commons. Our Senate clerk is a peculiar Canadian constitutional entity. He is styled the Clerk of the Parliaments after the U.K. House of Lords clerk, but his oath is an ancient U.K. House of Commons clerk's oath.

The Senate and the House of Commons clerks of Canada were constituted as gifts of the Crown to the Houses on the condition that they became the servants of the Houses. It is not accurate to say that this appointment of the Senate's ethics officer is the same as all other appointments and that it is the same as this one. Clearly, it is not the same. Clearly, the mode of appointment and the mode of the oath were developed over centuries to reflect the constitutional development of the institutions.

Honourable senators, that is why I am prepared to say that Senator Austin is wrong and that Senator Bryden is right. Senator Bryden's amendment to say "counsellor," rather than the creation of an unknown officer, is truer in fact to the constitution of the Senate and to the notion of the independence of the Senate. I would support it because I believe that Senator Bryden's amendment is truer. Given that it is inherently true, it lends itself to the promotion and the support of ethical behaviour.

Honourable senators, there has been much talk about optics and appearance. I find myself dismayed when told that Bill C-4 is needed because it will form part of a communications package or part of a public relations package. That causes me a great deal of concern because for centuries we had distinct ways of obtaining ethical behaviour. One way, for example, was to uphold the notion of the oath of allegiance, which used to govern most ethical behaviour. This bill bothers me; and it bothers me that the concerns of the Senate have not been contemplated.

Honourable senators, there is no bill and there is no piece of legislation that could create one single ethical person. The question of ethics as a question of morality and the question of integrity, to my mind, are the cornerstones, if not the anchor stones, of public life. The methods by which we create and sponsor ethical behaviour are by being true to the institutions, to the principles, to the convictions and to our oath. If one were true, one would find that from truth alone a certain kind and quality of ethical behaviour would flow.

The remainder of this day's Senate Debates are available here.