Government Operations committee  Thank you, Madam Chair. I'm Melanie Mortensen. I'm the parliamentary legal counsel in the Office of the Law Clerk and Parliamentary Counsel. In regard to solicitor-client privilege or work product privilege, these kinds of privileges do not limit the ability of a lawyer as witness to be able to reply.

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  This is a clarification, and it's also for your attention. With respect to the matter that Mr. Walsh addressed on section 29, if you look at proposed section 31: The Commissioner shall retain all documents relating to a Member for a period of 12 months after he or she ceases to be a Member, after which the documents shall be destroyed unless there is an inquiry in progress under this Code concerning them or a charge has been laid against the Member under an Act of Parliament and the documents may relate to that matter.

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  Thank you, Mr. Chairman. I have only two sections left to address: subsections 30(1) and 30(2). This deals with the submission of proposed rules to the committee—well, not to this committee but to the relevant committee. What this indicates is that basically the amendment is meant to clarify slightly the obligation of the commissioner in this regard.

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  I don't think it is. With all respect to the drafters who changed it, of course, I think it is what was intended at proposed subsection 30(1). I know guidelines have been published. It doesn't seem to have stopped that.

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  Yes, I know. But it says “shall submit any proposed rules for the administration”, and so on. It would imply “for approval”, but neither of these sections as drafted restricts the commissioner from doing it. Further, if you go on to section 32, it indicates: “The Ethics Commissioner may undertake educational activities for Members and the general public regarding this Code and the role of the Ethics Commissioner.”

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  In the same vein as this question, subsection 28(13) indicates: “The House may refer any report back to the Ethics Commissioner for further consideration, with or without instruction.” We have two comments. First—and this has to do with the committee's role—it may be appropriate to formally recognize the committee's role with respect to the commissioner, by putting something along the lines of: “upon recommendation of the committee, the House may refer any report back”.

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  I'll move along to subsection 27(7). There was a question here specifically regarding the French for “in private”, à huis clos, whether the latter does not accurately convey the English. We consulted our legislative drafters, and they indicated that there is more of a tendency now in legislative drafting to use English terminology as opposed to Latin terminology, so “in private” is more preferred.

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  Thank you, Mr. Chairman. I am moving quite a bit ahead. At subsection 28(13), this is once we have the report and the House is dealing with it. Subsection 28(13) indicates that “The House may report back to the Ethics Commissioner...”. I'm sorry, before I move to subsection 28(13), I am going to raise one issue at subsection 28(10).

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  Thank you, Mr. Chair. I'm going to move quite a bit ahead to subsection 27(2). This has to do with the conduct of inquiries and the proceedings on the conduct of inquiries. We have seen how the reports have been issued, and issues that have been raised in the House as a result of interpretation of the code and how the inquiries proceed.

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  Thank you, Mr. Chairman. I think that also would help in guiding members who do wish to bring allegations of non-compliance because it would suggest to them that they should point their attention to the sections of this code that are in the rules of conduct, and that helps to target what the inquiry is meant to actually address.

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  Thank you, Mr. Chairman. There is one more substantive issue at subsection 16(1), which is linked to section 18, and it may be that this was something that was intended.... I'm just going to point out what I'm talking about. Subsection 16(1) indicates: “A Member shall not knowingly be a party to a contract of the Government of Canada or any federal agency or body under which the Member receives a benefit.”

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  Thank you, Mr. Chairman. I think what we've identified here in this conversation is something that may seem reasonably straightforward but can always be improved. If this is what the members see and would like to have in the code, so that there is this distinction between their constituency role and their parliamentary role, and there is indeed something improper, and if it can be more clearly spelled out—if that's what the members wish to do, and this committee wishes to indicate that for the House's approval—then that's something that will permit a commissioner more guidance as to what is indeed appropriate.

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  Thank you, Mr. Chairman.

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  Okay. Section 5 says: A member does not breach this Code if the Member's activity is one in which Members normally and properly engage in on behalf of constituents. This section is quite general, it permits quite a bit of discretion--and that's appropriate--but when you look at section 8 on the next page, it indicates: When performing parliamentary duties and functions, a Member shall not act in any way to further his or her private interests or those of a member of the Member's family, or to improperly further another person's private interests These two sections together may be a bit confusing, so if there is an opportunity to more clearly designate what the parliamentary functions are and what are those constituency functions are, and to identify clearly where there are constituency functions that may in fact be parliamentary functions....

Subcommittee on Disclosure Forms under the Conflict of Interest Code committee  Thank you, Mr. Walsh; and thank you, Mr. Chair and all of the members. I haven't prepared anything formal, so I'm just going to proceed, identifying at each section where we wish to comment on anything that we saw in the code as it presently is or in the amendments that have been proposed, perhaps responding to the comments that are also identified on the side there.