Some senators are calling for a review of ethics rules after discovering that the Senate Ethics Officer can obtain their e-mails without their knowledge or consent – even if they are not the subject of an investigation.
Conservative Senator Elizabeth Marshall stunned many of her colleagues in the final days of the Senate’s June sittings when she rose to say that she had heard “through the grapevine” that the ethics watchdog had secretly obtained her e-mails.
“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,” she said.
At the time, Ms. Marshall did not say what the investigation was about and Senate Ethics Officer Pierre Legault declined to comment. However Mr. Legault addressed the controversy for the first time in a report released Friday.
That report found former Conservative senator Don Meredith had breached the Senate’s conflict-of-interest code and had engaged in both harassment and sexual harassment of Senate staff.
It was in the context of that roughly four-year investigation that Mr. Legault’s office obtained Ms. Marshall’s e-mails, as well as a large volume of other e-mails and documents from Senate administration.
The report said this was done with the approval of the three-member steering committee for the Senate’s powerful Committee on Internal Economy, Budgets and Administration (CIBA).
Sabi Marwah, the independent senator who chairs CIBA, had provided a cryptic comment that suggested his steering committee had in fact approved the ethics officer’s document requests. He indicated that such requests are allowed under the Senate’s rules and if senators don’t like it, they should change the rules.
Mr. Marwah said he was bound by confidentiality rules when it came to specifics.
“If we do not like that, I suggest we not debate that issue [of the e-mails],” he said on June 19. “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.”
Mr. Legault’s report said his office obtained “a significant amount of documentary evidence” from Senate administration, with CIBA’s approval. This included all e-mail exchanges between Mr. Meredith and nine of his former Senate employees.
Ms. Marshall was interviewed in connection to her past role as the Conservative Whip in the Senate during the period when Mr. Meredith was still in the Conservative caucus, prior to becoming an independent in June, 2015. He left the Senate in May, 2017.
Mr. Legault’s report includes a section that responds to Ms. Marshall’s public complaint. The officer states that Ms. Marshall had willingly provided some e-mails to his office upon request.
“But given her testimony that she experienced difficulty in recalling certain matters relevant to this inquiry, I took an additional step in order to exercise due diligence: I also sought the information from the Senate administration, through the CIBA. Senator Marshall is not the object of this inquiry but her evidence was relevant to it," he wrote.
Mr. Legault said he obtained five e-mails through this process, three of which Ms. Marshall had already provided.
As for Ms. Marshall’s concern that she was not informed, Mr. Legault said the rules give his office the power to “send for persons, papers and records” and he followed protocol by going through CIBA.
“There is no requirement that the Senate Ethics Officer first seek the consent of the senator whose e-mails are being sought,” he wrote.
Mr. Legault’s report expressed concern that the current rules prevent him from obtaining documents from Senate administration directly, which suggests he would prefer to have broader powers to obtain e-mails. He said the requirement to seek CIBA’s approval “caused a number of unnecessary delays in this inquiry, but it also raised issues concerning the independence of the Senate Ethics Officer in relation to the Senate.”
Following Ms. Marshall’s public complaint, several senators said they had no idea the Ethics Officer had the power to secretly obtain their e-mails.
Liberal Senator Percy Downe, a 16-year veteran of the Red Chamber, said he regularly receives confidential e-mails from public servants as part of his continuing study of the Canada Revenue Agency.
“I think we have to protect our e-mails or otherwise they will just have to mail me brown envelopes. But then, will people start going through our mail?” he said in an interview. “I would certainly want to look at those [rules] with a view to changing them.”