| REPORT OF THE COMMITTEE | Thursday, October 26, 2006 |
The Standing Senate Committee on Legal and Constitutional Affairs
has the honour to present its
FOURTH REPORT
Your Committee, to which was referred Bill C-2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, has, in obedience to the Order of Reference of Tuesday, the 27th of June, 2006, examined the said Bill and now reports the same with the following amendments:
1. Clause 2, page 3: Replace line 35 with the following:
“missioner;
(d.1) a ministerial appointee whose appointment is approved by the Governor in Council; and”.
2. Clause 2, page 4: Replace line 5 with the following:
“Governor in Council may appoint a person, but does not include the Senate or the House of Commons.”.
3. Clause 2, page 4:
(a) Replace line 20 with the following:
“(d) a Governor in Council appointee, or a ministerial appointee whose appointment is approved by the Governor in Council, who”; and
(b) Replace line 24 with the following:
“(e) a Governor in Council appointee, or a ministerial appointee whose appointment is approved by the Governor in Council, who”.
4. Clause 2, page 5:
(a) Replace lines 26 and 27 with the following:
“4. (1) For the purposes of this Act, a public office holder is in an actual conflict of interest when he”, and
(b) Add after line 32 the following:
“(2) For the purposes of this Act, a public office holder is in a potential conflict of interest when the public office holder’s ability to exercise an official power, duty or function could be influenced by his or her private interests or those of his or her relatives or friends, or could be improperly influenced by another person’s private interests.
(3) For the purposes of this Act, a public office holder is in an apparent conflict of interest when there is a reasonable perception, which a reasonably well-informed person could properly have, that the public office holder’s ability to exercise an official power, duty or function must have been influenced by his or her private interests or those of his or her relatives or friends, or must have been improperly influenced by another person’s private interests.”.
5. Clause 2, page 6:
(a) Replace lines 3 and 4 with the following:
“prevent the public office holder from being in an actual, apparent or potential conflict of interest.”;
(b) Replace lines 10 and 11 with the following:
“the decision, he or she would be in an actual, apparent or potential conflict of interest.”.
6. Clause 2, page 6:
(a) Replace line 5 with the following:
“6. No public office holder shall make a”; and
(b) Delete lines 12 to 17.
7. Clause 2, page 7: Replace line 9 with the following:
“(b) that is given by a relative or close personal friend; or”.
8. Clause 2, page 9: Replace lines 39 and 40 with the following:
“it would place the public office holder in an actual, apparent or potential conflict of interest.”.
9. Clause 2, page 12: Replace line 10 with the following:
“he or she would be in an actual, apparent or potential conflict of interest.”.
10. Clause 2, page 13: Replace line 37 with the following:
“in a 12-month period, the reporting.”.
11. Clause 2, page 14: Replace line 16 with the following:
“recused himself or herself to avoid an actual, apparent or potential conflict of”.
12. Clause 2, page 14: Replace line 21 with the following:
“identify the actual, apparent or potential conflict of interest that was avoided.”.
13. Clause 2, page 14: Replace line 24 with the following:
“is appointed as a public office holder,”.
14. Clause 2, page 15: Replace line 1 with the following:
“or more, other than one from a relative,”.
15. Clause 2, page 18: Replace line 25 with the following:
“actual, apparent or potential conflict of interest in relation to the reporting”.
16. Clause 2, page 22:
(a) Replace line 1 with the following:
“38. (1) The Commissioner may, on application, exempt”; and
(b) Replace line 22 to 27 with the following:
“(3) The decision made by the Commissioner shall be communicated in writing to the person who applied for the exemption.
(4) If the Commissioner has granted an exemption in accordance with this section, the Commissioner shall publish the decision and the reasons in the public registry maintained under section 51.”.
17. Clause 2, page 24: Replace, in the English version, line 4 with the following:
“a person under section 39 affects any obligation or”.
18. Clause 2, page 24:
(a) Replace line 7 with the following:
“43. (1) In addition to carrying out his or her”;
(b) Replace line 10 with the following:
“(a) provide advice to the Prime”; and
(c) Add after line 17 the following:
“(2) Subject to subsection (4), advice under paragraph (1)(a) may be provided on a confidential basis.
(3) If, in the course of responding to a request by the Prime Minister for advice under paragraph (1)(a), the Commissioner concludes that a public office holder has contravened this Act, the Commissioner shall provide the Prime Minister with a report setting out the facts in relation to the contravention as well as the Commissioner’s analysis and conclusions.
(4) The Commissioner shall, at the same time that the report is provided under subsection (3) to the Prime Minister, provide a copy of it to the public office holder who is the subject of the report and make the report available to the public.”.
19. Clause 2, page 25: Delete lines 4 to 21.
20. Clause 2, page 25:
(a) Replace line 22 with the following:
“(7) Subject to subsection (8.1), the Commissioner shall provide the”; and
(b) Replace lines 26 to 31 with the following:
“request.
(8) Subject to subsection (8.1), the Commissioner shall, at the same time”.
21. Clause 2, page 25: Replace, in the English version, line 32 with the following:
“that the report is provided under subsection (7),”.
22. Clause 2, page 25: Add after line 37 the following:
“(8.1) If the Commissioner determines that the request was frivolous or vexatious or was made in bad faith or the examination of the matter was discontinued under subsection (3), the Commissioner shall provide the report only to the member who made the request and the public office holder or former public office holder who is the subject of the request, and shall not make the report available to the public.”.
23. Clause 2, page 26:
(a) Replace lines 15 and 16 with the following:
“46. Before providing advice under paragraph 43(1)(a) or a report under section 43,”;
(b) Replace line 22 with the following:
“out in a report under section 43, 44 or 45 that a”; and
(c) Replace line 28 with the following:
“48. (1) For the purposes of paragraph 43(1)(a)”.
24. Clause 2, page 27: Replace line 17 with the following:
“43, 44 or 45; or”.
25. Clause 2, page 28: Replace line 16 with the following:
“section 86 of the Parliament of Canada”.
26. Clause 2, page 28: Add after line 26 the following:
“(c.1) decisions on exemption applications under section 38 and the accompanying reasons;”.
27. Clause 2, page 28: Replace line 35 with the following:
“recusal under subsection 25(1) or section 30,”.
28. Clause 2, page 31:
(a) Replace line 38 with the following:
“later than two years after the day on which the”; and
(b) Replace line 40 with the following:
“matter of the proceedings and, in any case, not later than five years after the day on which the subject-matter of the proceedings arose.”.
29. Clause 2, page 32: Replace lines 29 and 30 with the following:
“(2) Nothing in this Act abrogates or”.
30. Clause 2, page 32:
(a) Replace line 35 with the following:
“at any time within but not later than two years”; and
(b) Replace line 39 with the following:
“five years after the day on which the subject-”.
31. Clause 2, page 33: Replace lines 7 and 8 with the following:
“67. (1) Within five years after this section comes into force, a comprehensive review”.
32. Clause 3, page 35, line 4: Replace in the French version with the following:
“aux conflits d’intérêts et à l’éthique en conformité avec l’article 44 de”.
33. Clause 3:
(a) Page 33:
(i) Replace lines 26 and 27 with the following:
“tion in the office of the Ethics Commissioner”, and
(ii) Delete line 40; and
(b) Page 34:
(i) Replace lines 1 and 2 with the following:
“(3) Every reference to the Ethics Commissioner in any”,
(ii) Replace, in the English version, line 4 with the following:
“other document executed by that person is”,
(iii) Replace lines 9 and 10 with the following:
“administrative proceeding to which the Ethics Commis-”,
(iv) Replace line 17 with the following:
“Ethics Commis-”, and
(v) Replace lines 21 to 23 with the following:
“possession or control of the Ethics Commissioner relating to the exercise of his or her powers, duties and”.
34. Clause 4, page 35: Replace line 34 with the following:
“Commissioner or Senate Ethics Officer”.
35. Clause 5, page 36:
(a) Replace lines 5 and 6 with the following:
“committee or member of either House, the Senate Ethics Officer or the Conflict of Interest and Ethics Commissioner”; and
(b) Replace line 8 with the following:
“powers referred to in section 86 of the”.
36. Clause 7, page 36:
(a) Replace line 19 with the following:
“(c) with respect to the Senate and the office of the Senate Ethics Officer, the Speaker of”;
(b) Replace line 24 with the following:
“er of the House of Commons,”; and
(c) Replace line 32 with the following:
“Commons, Library of Parliament, office of the Senate Ethics Officer and office”.
37. Clause 10, page 37:
(a) Replace line 14 with the following:
“House of Commons, Library of Parliament, office of the Senate Ethics Officer or”; and
(b) Replace line 21 with the following:
“Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest”.
38. Clause 11, page 37: Replace line 27 with the following:
“of Parliament, office of the Senate Ethics Officer and office of the Conflict of”.
39. Clause 12, page 38:
(a) Replace line 3 with the following:
“Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest”;
(b) Replace, in the English version, line 8 with the following:
“Commons, Library of Parliament, office of the Senate Ethics Officer or office of the”;
(c) Replace, in the English version, line 14 with the following:
“ment, office of the Senate Ethics Officer or office of the Conflict of Interest and”;
(d) Replace, in the English version, line 17 with the following:
“Library of Parliament, office of the Senate Ethics Officer or office of the Conflict”;
(e) Replace, in the English version, line 22 with the following:
“Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest”;
(f) Replace line 25 with the following:
“House of Commons, Library of Parliament, office of the Senate Ethics Officer or”;
(g) Replace, in the English version, line 33 with the following:
“Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of”;
(h) Replace line 39 with the following:
“House of Commons, Library of Parliament, office of the Senate Ethics Officer or”; and
(i) Replace, in the English version, line 44 with the following:
“Commons, Library of Parliament, office of the Senate Ethics Officer or office of the”.
40. Clause 13, page 39:
(a) Replace line 7 with the following:
“Commons, Library of Parliament, office of the Senate Ethics Officer or office”;
(b) Replace, in the English version, line 20 with the following:
“Parliament, office of the Senate Ethics Officer or office of the Conflict of”;
(c) Replace, in the English version, line 29 with the following:
“Parliament, office of the Senate Ethics Officer or office of the Conflict of”; and
(d) Replace, in the English version, line 41 with the following:
“of Commons, Library of Parliament, office of the Senate Ethics Officer or”.
41. Clause 14, page 40:
(a) Replace line 5 with the following:
“of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest”; and
(b) Replace, in the English version, line 14 with the following:
“Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest”.
42. Clause 15:
(a) Page 40:
(i) Replace line 22 with the following:
“of Commons, Library of Parliament, office of the Senate Ethics Officer or office of”,
(ii) Replace, in the English version, line 28 with the following:
“Library of Parliament, office of the Senate Ethics Officer or office of the Conflict”,
(iii) Replace, in the English version, line 36 with the following:
“Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of”, and
(iv) Replace line 41 with the following:
“House of Commons, Library of Parliament, office of the Senate Ethics Officer or”; and
(b) Page 41:
(i) Replace line 3 with the following:
“Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest”, and
(ii) Replace, in the English version, line 9 with the following:
“Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of”.
43. Clause 16, page 41: Replace line 19 with the following:
“mons, Library of Parliament, office of the Senate Ethics Officer or office of the”.
44. Clause 17, page 41: Replace line 27 with the following:
“Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of”.
45. Clause 18, page 41: Replace line 35 with the following:
“House of Commons, Library of Parliament, office of the Senate Ethics Officer or”.
46. Clause 19, page 42: Replace line 6 with the following:
“of Parliament, office of the Senate Ethics Officer or office of the Conflict of”.
47. Clause 20, page 42: Replace line 15 with the following:
“(c.1) the office of the Senate Ethics Officer and the office of the Conflict of Interest and”.
48. Clause 21, page 43: Replace line 3 with the following:
“House of Commons, Library of Parliament, office of the Senate Ethics Officer or”.
49. Clause 22, page 43:
(a) Replace line 15 with the following:
“Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of”; and
(b) Replace line 21 with the following:
“Commons, Library of Parliament, office of the Senate Ethics Officer or office of”.
50. Clause 23, page 43: Replace line 36 with the following:
“Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of”.
51. Clause 24, page 44: Replace line 3 with the following:
“Parliament, office of the Senate Ethics Officer and office of the Conflict of Interest”.
52. Clause 25, page 44: Replace line 14 with the following:
“Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest”.
53. Clause 26, page 44: Replace lines 19 to 21 with the following:
“26. Subsection 20.5(4) of the Parliament of Canada Act is replaced by the following:
(4) For greater certainty, the administration of the Conflict of Interest Act in respect of public office holders who are ministers of the Crown, ministers of state or parliamentary secretaries is not part of the duties and functions of the Senate Ethics Officer or the committee.”.
54. Clause 28:
(a) Page 44:
(i) Replace line 31 with the following:
“recognized party in the House of”, and
(ii) Replace lines 33 and 34 with the following:
“resolution of that House.”;
(b) Page 45: Replace line 19 with the following:
“Council on address of the House of”;
(c) Page 46:
(i) Replace lines 26 and 27 with the following:
“shall be considered by the Speaker of the House of Commons and”,
(ii) Replace line 34 with the following:
“sioner referred to in sections 86 and 87; and”, and
(iii) Delete lines 39 to 44;
(d) Page 47:
(i) Delete lines 1 to 23, and
(ii) Replace line 24 with the following:
“86. (1) The Commissioner shall perform the”; and
(e) Page 48:
(i) Add after line 7 the following:
“86.1 (1) The Commissioner, or any person acting on behalf or under the direction of the Commissioner, is not a competent or compellable witness in respect of any matter coming to his or her knowledge as a result of exercising any powers or performing any duties or functions of the Commissioner under this Act.
(2) No criminal or civil proceedings lie against the Commissioner, or any person acting on behalf or under the direction of the Commissioner, for anything done, reported or said in good faith in the exercise or purported exercise of any power, or the performance or purported performance of any duty or function, of the Commissioner under this Act.
(3) The protection provided under subsections (1) and (2) does not limit any powers, privileges, rights and immunities that the Commissioner may otherwise enjoy.”,
(ii) Replace line 8 with the following:
“87. The Commissioner shall, in relation to”,
(iii) Replace line 12 with the following:
“88. (1) Personal information collected by the”,
(iv) Replace line 23 with the following:
“89. The Commissioner may authorize any”,
(v) Replace line 30 with the following:
“90. (1) Within three months after the end of”,
(vi) Delete lines 32 to 35,
(vii) Replace lines 36 and 37 with the following:
“(a) a report on his or her activities under section 86 for that year to the Speaker of the”, and
(viii) Replace lines 40 and 41 with the following:
“(b) a report on his or her activities under section 87 for that year to the Speaker of the”.
55. Clause 28, page 46: Replace line 29 with the following:
“Board, who shall lay it before the”.
56. Clause 29, page 49: Replace line 12 with the following:
“Parliament, office of the Senate Ethics Officer and office of the Conflict of”.
57. Clause 30, page 49: Replace line 17 with the following:
“of Parliament, office of the Senate Ethics Officer or office of the Conflict of”.
58. Clause 31:
(a) Page 49: Replace lines 20 to 22 with the following:
“of the Act is amended by replacing paragraph (e) with the”; and
(b) Page 50: Replace line 1 with the following:
“(e) the office of the Conflict of Interest and”.
59. Clause 32, page 50: Replace lines 4 to 6 with the following:
“32. Paragraph 85(c.2) of the Act is replaced by the following:
(c.2) the office of the Conflict of Interest and”.
60. Clause 33, page 50: Replace line 20 with the following:
“Parliament, office of the Senate Ethics Officer and office of the Conflict of Interest”.
61. Clause 34:
(a) Page 50: Replace line 31 with the following:
“Parliament, office of the Senate Ethics Officer and office of the Conflict of Interest”; and
(b) Page 51: Replace line 1 with the following:
“ment, office of the Senate Ethics Officer or office of the Conflict of Interest and”.
62. Clause 35, page 51: Replace, in the English version, line 20 with the following:
“a person under section 39 affects any obligation or”.
63. Clause 37:
(a) Page 51:
(i) Replace lines 36 and 37 with the following:
“into force and the day on which section 24 of the Public Servants Disclosure”, and
(ii) Replace line 41 with the following:
“adding the following after section 67:”; and
(b) Page 52: Replace lines 1 and 2 with the following:
“68. If a matter is referred to the Commissioner under subsection 24(2.1) of the Public”.
64. Clause 38, page 52:
(a) Replace line 25 with the following:
“committee or member of either House, the Senate Ethics Officer or the”; and
(b) Replace lines 28 and 29 with the following:
“powers referred to in sections 41.1 to 41.5 and 86 of the Parliament of Canada Act.”.
65. Clause 40, page 56: Replace, in the French version, line 13 with the following:
“a) dont il sait ou devrait normalement savoir qu’elle contient des rensei-”.
66. Clause 44, page 58: Add after line 5 the following:
“(4) Section 404.2 of the Act is amended by adding the following after subsection (6):
(7) For greater certainty, the payment by or on behalf of an individual of fees to attend an annual, biennial or leadership convention of a particular registered party is a contribution to that party.”.
67. Clause 46:
(a) Page 58:
(i) Replace line 30 with the following:
“(a) $2,000 in total in any calendar year to a”,
(ii) Replace line 32 with the following:
“(a.1) $2,000 in total in any calendar year to”,
(iii) Replace line 36 with the following:
“(b) $2,000 in total to a candidate for a”, and
(iv) Replace line 39 with the following:
“(c) $2,000 in total to the leadership contest-”; and
(b) Page 59:
(i) Replace line 15 with the following:
“(a) contributions that do not exceed $2,000”,
(ii) Replace line 20 with the following:
“(b) contributions that do not exceed $2,000”, and
(iii) Replace line 25 with the following:
“(c) contributions that do not exceed $2,000”.
68. Clause 46:
(a) Page 58: Add after line 40 the following:
“(1.1) In respect of any calendar year in which two or more general elections are held, the limits under paragraphs (1)(a) and (a.1) are the amounts set out in those paragraphs multiplied by the number of general elections held in that calendar year.”; and
(b) Page 59: Add after line 28 the following:
“(4) Section 405 of the Act is amended by adding the following after subsection (4):
(4.1) In respect of any calendar year in which a nomination contestant or candidate of a registered party campaigns as a nomination contestant or candidate in two or more general elections, the contribution amount referred to in paragraph (4)(a) is the amount set out in that paragraph multiplied by the number of general elections in which the nomination contestant or candidate campaigned in that calendar year.”.
69. Clause 56:
(a) Page 63: Replace line 20 with the following:
“required period) or paragraph 92.6(b) (pro-”;
(b) Page 64:
(i) Replace line 5 with the following:
“92.6(a) (providing statement containing”, and
(ii) Replace line 7 with the following:
“ingly contravenes paragraph 92.6(b) (pro-”.
70. Clause 59, page 64:
(a) Replace line 31 with the following:
“later than two years after the day on which the”; and
(b) Replace line 34 with the following:
“than seven years after the day on which the offence”.
71. Clause 67, Page 66:
(a) Replace line 13 with the following:
““designated public office holder” means”; and
(b) Replace lines 18 and 19 with the following:
“(b) any other public office holder who, in a department within the meaning of paragraph (a), (a.1) or (d) of the definition “department” in section 2 of the Financial Admin-”.
72. Clause 67, page 67: Replace line 2 with the following:
“to (4), as if the person were a designated public”.
73: Clause 69, page 69: Replace line 19 with the following:
“(g) the fact that the undertaking does not provide for any”.
74. Clause 69, page 69: Replace lines 30 to 32 with the following:
“the individual as a designated public office holder and the date on which the individual last ceased to hold such a designated public office;”.
75. Clause 69, page 70: Replace lines 4 to 6 with the following:
“month involving a designated public office holder and relating to the undertaking,
(i) the name of the designated public office”.
76. Clause 70, page 72: Replace lines 38 and 39 with the following:
“month involving a designated public office holder,
(i) the name of the designated public office”.
77. Clause 70, page 72: Replace lines 7 to 9 with the following:
“qualified the employee as a designated public office holder and the date on which the employee last ceased to hold such a designated”.
78. Clause 73, page 74: Replace line 22 with the following:
“present or former designated public office holder”.
79. Clause 73, page 74: Replace line 30 with the following:
“(2) The Commissioner shall, in a report under”.
80. Clause 73, page 74: Replace, in the English version, line 32 with the following:
“present or former designated public office holder to”.
81. Clause 75, page 75:
(a) Replace line 13 with the following:
“individual ceases to be a designated public office”; and
(b) Replace line 42 with the following:
“(a) was a designated public office holder for a”.
82. Clause 75, page 75: Replace line 21 with the following:
“that organization if carrying on those activities would constitute a significant part of the individual’s work on its behalf; and”.
83. Clause 75:
(a) Page 75: Replace, in the English version, line 29 with the following:
“of any designated public office that was held only”; and
(b) Page 76: Replace, in the English version, line 1 with the following:
“(b) was a designated public office holder on an”.
84. Clause 75, page 76: Add, after line 8, the following:
“10.111 No individual who has a contract for services with a department or other governmental organization, and no individual who is employed by an organization or corporation that has a contract for services with a department or other governmental organization, shall carry on, in relation to a public office holder who is employed by or serves in that department or governmental organization, for a period of five years after the day on which the contract ends,
(a) any of the activities referred to in paragraph 5(1)(a) or (b) in the circumstances referred to in subsection 5(1); or
(b) any of the activities referred to in paragraph 7(1)(a) on behalf of an organization or corporation, if carrying on those activities would constitute a significant part of the individual’s work on its behalf.”.
85. Clause 75, page 76: Replace line 10 with the following:
“Act as if they were a designated public office holder”.
86. Clause 79, page 80: Replace lines 16 to 22 with the following:
“any position occupied by a public office holder as a position occupied by a designated public office holder for the purposes of paragraph (c) of the definition “designated public office holder” in subsection 2(1) if, in the opinion of the Governor in Council, doing so is necessary for the purposes of this Act;”.
87. New clause 79.1, page 80: Add after line 22 the following:
“79.1 The Act is amended by adding the following after section 13:
PROHIBITION
13.1 No individual shall obstruct the Commissioner or any person acting on behalf or under the direction of the Commissioner in the performance of the Commissioner’s duties and functions under this Act.”.
88. Clause 80, page 81:
(a) Replace line 7 with the following:
“than two years after the day on which the”; and
(b) Replace line 10 with the following:
“later than five years after the day on which the”.
89. Clause 80, page 81:
(a) Replace line 12 with the following:
“14.01 (1) If a person is convicted of an offence”; and
(b) Add after line 22 the following:
“(2) Any person who fails to comply with a prohibition of the Commissioner under subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding $50,000.”.
90. Clause 88, page 83: Replace line 35 with the following:
“designated public office holder with the rank of”.
91. Delete clause 89, pages 85 to 86.
92. Clause 99, page 88: Replace, in the English version, line 25 with the following:
“41.3 (1) If a trust disclosed by a member of the House of Commons”.
93. Clause 101, page 91: Replace line 16 with the following:
“House of Commons, Library of Parliament, office of the Senate Ethics Officer or”.
94. Clause 106, page 92: Replace lines 39 and 40 with the following:
“(c) special adviser to a minister.”.
95. Clause 107, page 93:
(a) Replace line 7 with the following:
“107. (1) A person referred to in subsection”; and
(b) Add after line 16 the following:
“(2) A person who, on the coming into force of this section, is employed in the circumstances described in subsection 41(2) or (3) of the Public Service Employment Act, as it read immediately before the coming into force of subsection 103(1) of this Act, and who would have had priority for appointment in accordance with subsection 41(2) or (3) if the person had ceased to be so employed immediately before the coming into force of subsection 103(1), shall be given priority for appointment in accordance with subsection 41(2) or (3), as the case may be, when they cease to be so employed.
(3) For the purposes of subsections (1) and (2), priority for appointment under subsection 41(2) or (3) of the Public Service Employment Act, as it read immediately before the coming into force of subsection 103(1) of this Act, shall be determined as if sections 100 and 102 to 105 of this Act had not been enacted.”.
96. Clause 108, page 93: Replace, in the English version, line 37 with the following:
“of that province to those provisions.”.
97. Clause 108, page 94: Replace lines 1 to 4 with the following:
“(4) Sections 41 to 43, subsections 44(3) and (4) and sections 45 to 55, 57 and 60 to 64 come into force on January 1 of the year following the year in which this Act receives royal assent.
(4.1) Sections 63 and 64 do not apply in respect of monetary contributions made before the day on which those sections come into force.”.
98. Clause 110, page 95: Replace lines 5 and 6 with the following:
“commission under the Great Seal, appoint an Auditor General of Canada”.
99. Clause 116, page 97: Replace line 26 with the following:
“(3) The Governor in Council shall select the”.
100. Clause 116, page 97: Replace line 29 with the following:
“the Leader of the Government in the Senate and the Leader of the Government in the House of”.
101. Clause 116, page 97: Replace lines 30 and 31 with the following:
“Commons, by a committee composed of the Leader of the Government in the Senate, the Leader of the Opposition in the Senate, the Leader of the Government in the House of Commons, the Leader of the Opposition in the House of Commons, and the Parliamentary Librarian.”.
102. Clause 116, page 97: Replace line 37 with the following:
“(a) provide independent analysis to the Senate”.
103. Clause 116, page 98:
(a) Replace line 3 with the following:
“that committee into the”; and
(b) Replace lines 26 to 32 with the following:
“those estimates; and
(d) when requested to do so by a member of”.
104. Clause 116:
(a) Page 98: Replace, in the English version, line 47 with the following:
“of this section, to free and timely access”; and
(b) Page 99: Replace, in the French version, line 1 with the following:
“connaissance, gratuitement et en temps opportun, de”.
105. Clause 120, page 102:
(a) Delete lines 22 and 23; and
(b) Delete lines 27 to 30.
106. Clause 121, page 105: Replace lines 19 and 20 with the following:
“(a.1) a person named by the leader in the Senate of each recognized party in that House;
(b) a person named by the leader in the House of Commons of each recognized party in that House;”.
107. Clause 121, page 105: Replace lines 27 to 34 with the following:
“(2) The selection committee shall identify and assess candidates for appointment to the office of Director, each of whom must be a member of at least 10 years’ standing at the bar of any province, and the committee shall recommend to the Attorney General three assessed candidates whom it considers suitable for appointment.”.
108. Clause 121:
(a) Page 105: Replace lines 41 and 42 with the following:
“to a committee of the Senate, of the House of Commons or of both Houses of Parliament designated or established for that purpose.”; and
(b) Page 106:
(i) Replace line 2 with the following:
“committee referred to in subsection (4) gives its approval,”, and
(ii) Replace, in the English version, line 5 with the following:
“or, if the committee does not give”.
109. Clause 121, page 106: Replace line 13 with the following:
“Senate and House of Commons to that effect. The Director”.
110. Clause 142, page 117: Replace line 10 with the following:
“applies to any of its wholly-owned subsidiaries within the”.
111. Clause 143, page 117: Replace line 40 with the following:
“regulations, provide timely access to the record in the”.
112. Clause 144, page 118:
(a) Replace lines 13 and 14 with the following:
“(c) the Information Commissioner;
(d) the Privacy Commissioner; and
(e) the Commissioner of Lobbying.”; and
(b) Replace line 16 with the following:
“institution referred to in any of paragraphs (1)(a) to (e)”.
113. Clause 145, page 118: Replace line 29 with the following:
“Elections Act, the Chief Electoral Officer may”.
114. Clause 147, page 119:
(a) Replace lines 24 and 25 with the following:
“Board;
(d) VIA Rail Canada Inc.; or
(e) the Canada Foundation for Sustainable Development Technology.”; and
(b) Replace line 32 with the following:
“(e); or”.
115. Clause 148, page 120: Add after line 10 the following:
“20.3 The head of the Canada Foundation for Sustainable Development Technology shall refuse to disclose a record requested under this Act that contains advice or information obtained in confidence by the Foundation relating to applications for funding, eligible projects or eligible recipients, within the meaning of the Canada Foundation for Sustainable Development Technology Act, if the Foundation has consistently treated the advice or information as confidential.”.
116. Clause 148, page 120: Add before line 11 the following:
“20.4 The head of the National Arts Centre Corporation shall refuse to disclose a record requested under this Act if the disclosure would reveal the terms of a contract for the services of a performing artist or the identity of a donor who has made a donation in confidence and if the Corporation has consistently treated the information as confidential.”.
117. Clause 150, page 120: Replace line 37 with the following:
“government institution or any related audit working paper if a final report of the”.
118. New clause 150.1, page 120: Add after line 41 the following:
“150.1 The Act is amended by adding the following after section 26:
26.1 Despite any other provision of this Act, the head of a government institution may disclose all or part of a record to which this Act applies if the head determines that the public interest in the disclosure clearly outweighs in importance any loss, prejudice or harm that may result from the disclosure. However, the head shall not disclose any information that relates to national security.”.
119. Clause 159, page 123: Add, in the English version, after line 14 the following:
“68.3 This Act does not apply to any information that was already under the control of the following Foundations before the coming into force of section 166 of the Federal Accountability Act:
(a) the Asia-Pacific Foundation of Canada;
(b) the Canada Foundation for Innovation;
(c) the Canada Foundation for Sustainable Development Technology;
(d) the Canada Millennium Scholarship Foundation; and
(e) The Pierre Elliott Trudeau Foundation.
68.4 This Act does not apply to any information that was already under the control of the Office of the Auditor General of Canada before the coming into force of section 167 of the Federal Accountability Act.
68.5 This Act does not apply to any information that was already under the control of the Office of the Chief Electoral Officer before the coming into force of section 168 of the Federal Accountability Act.
68.6 This Act does not apply to any information that was already under the control of the Office of the Commissioner of Official Languages before the coming into force of section 169 of the Federal Accountability Act.
68.7 This Act does not apply to any information that was already under the control of the Office of the Information Commissioner before the coming into force of section 170 of the Federal Accountability Act.
68.8 This Act does not apply to any information that was already under the control of the Office of the Privacy Commissioner before the coming into force of section 171 of the Federal Accountability Act.”.
120. Delete clause 165, page 126.
121. New clause 172.01, page 127: Add after line 31 the following:
“172.01 Schedule II to the Act is amended by adding, in alphabetical order, a reference to
Canada Elections Act
Loi électorale du Canada
and a corresponding reference to “section 540”.”.
122. Delete clause 172.1, page 127.
123. New clause 179.1, page 131: Add before line 17 the following:
“179.1 The definition “government institution” in section 2 of the Library and Archives of Canada Act is replaced by the following:
“government institution” has the same meaning as in section 3 of the Access to Information Act or in section 3 of the Privacy Act or means an institution designated by the Governor in Council.”.
124. Clause 180, page 131: Replace lines 17 and 18 with the following:
“180. The Act is amended by adding the following after”.
125. Clause 182, page 132: Replace line 32 with the following:
“applies to any of its wholly-owned subsidiaries within the”.
126. Clause 191:
(a) Page 136: Add after line 43 the following:
“Asia-Pacific Foundation of Canada
Fondation Asie-Pacifique du Canada”; and
(b) Page 137: Add after line 7 the following:
“The Pierre Elliott Trudeau Foundation
La Fondation Pierre-Elliott-Trudeau”.
127. Clause 194, page 137: Add after line 27 the following:
“(2.1) Paragraph (d) of the definition “protected disclosure” in subsection 2(1) of the Act is replaced by the following:
(d) when lawfully permitted or required to do so.”.
128. Clause 194, page 137: Add after line 36 the following:
“(3.1) The definition “reprisal” in subsection 2(1) of the Act is amended by striking out the word “and” at the end of paragraph (d) and by replacing paragraph (e) with the following:
(e) any other measure that may adversely affect, directly or indirectly, the public servant; and
(f) a threat to take any of the measures referred to in any of paragraphs (a) to (e).”.
129. Clause 194, page 138: Add after line 12 the following:
“(4.1) The portion of the definition “public sector” in subsection 2(1) of the Act after paragraph (c) is replaced by the following:
However, subject to sections 52 and 53, “public sector” does not include the Canadian Forces.”.
130. New clause 200.1, page 139: Add after line 43 the following:
“200.1 Subsection 16(2) of the Act is repealed.”.
131. Clause 201, page 140: Add before line 7 the following:
“19.01 For the purposes of the provisions of this Act relating to complaints in relation to a reprisal, any administrative or disciplinary measure taken against a public servant within one year after the public servant makes a disclosure concerning a particular matter under any of sections 12 to 14 shall be presumed, in the absence of a preponderance of evidence to the contrary, to be a reprisal.”.
132. Clause 201:
(a) Page 140: Replace line 16 with the following:
“one year after the day on which the complainant”; and
(b) Page 141:
(i) Replace line 1 with the following:
“(b) the complaint is filed within one year after”, and
(ii) Replace line 13 with the following:
“within one year after the later of”.
133. Clause 201, page 154: Replace lines 39 and 40 with the following:
“(f) compensate the complainant for any”.
134. Clause 203, page 159: Replace, in the English version, line 7 with the following:
“an investigation;”.
135. Clause 203, page 160:
(a) Replace line 30 with the following:
“constitute a wrongdoing or reprisal is $25,000.”;
(b) Replace line 39 with the following;
“more than $25,000.”; and
(c) Replace line 43 with the following:
“and (5) is at the discretion of the Commissioner.”.
136. Clause 207, page 162: Add after line 29 the following:
“(1.1) Where the Commissioner is of the opinion that it is necessary for the purpose of an investigation to obtain information from outside the public sector, the Commissioner may use his or her powers under subsection (1) to direct that such information be provided.”.
137. New clause 207.1, page 162: Add after line 29 the following:
“207.1 Section 34 of the Act is repealed.”.
138. Clause 221, page 171: Replace lines 39 and 40 with the following:
“33 of that Act if the information identifies or could reasonably be expected to lead to the identification of a public servant who made a disclosure, or a person who provided information or who cooperated in an investigation, under that Act;
(b) obtained by him or her or on his or her behalf in the course of an investigation into a disclosure made under that Act or an investigation commenced under section 33 of that Act, unless he or she is of the opinion that it would be in the public interest to disclose the record;
(c) created by him or her or on his or her behalf in the course of an investigation into a disclosure made under that Act, or an investigation commenced under section 33 of that Act, if the investigation is not yet completed; or
(d) received by a conciliator in the course of”.
139. Clause 221, page 172: Replace line 12 with the following:
“under that Act if
(a) the information identifies or could reasonably be expected to lead to the identification of a public servant who made a disclosure, or a person who provided information or who cooperated in an investigation, under that Act; or
(b) the investigation is not yet completed.”.
140. Clause 223, page 174: Replace line 15 with the following:
“disclosure under that Act and the information identifies or could reasonably be expected to lead to the identification of a public servant who made a disclosure, or a person who provided information or who cooperated in an investigation, under that Act.”.
141. Clause 224, page 174: Replace lines 20 to 28 with the following:
“22.2 (1) Subject to paragraph 22(d) of the Public Servants Disclosure Protection Act, the Public Sector Integrity Commissioner shall refuse to disclose any personal information requested under subsection 12(1) that was obtained or created by him or her or on his or her behalf in the course of an investigation into a disclosure made under that Act or an investigation commenced under section 33 of that Act if the information identifies or could reasonably be expected to lead to the identification of a public servant who made a disclosure, or a person who provided information or who cooperated in an investigation, under that Act.
(2) Subsection (1) does not apply if the public servant or person who is or could reasonably be identified consents to disclosure of the information.”.
142. Clause 224, page 174: Replace line 35 with the following:
“disclosure under that Act if the information identifies or could reasonably be expected to lead to the identification of a public servant who made a disclosure, or a person who provided information or who cooperated in an investigation, under that Act, unless the public servant or person who is or could reasonably be identified consents to disclosure of the information.”.
143. Clause 226, page 175: Replace lines 12 and 13 with the following:
“section 45 of the Conflict of Interest Act comes into”.
144. Clause 227, page 175: Replace line 32 with the following:
“1.1 (1) The Governor in Council shall estab-”.
145. Clause 227, page 176: Replace line 38 with the following:
“Governor in Council that a person be appointed or reappointed”.
146. Clause 227:
(a) Page 176: Replace lines 40 and 41 with the following:
“consult with the leader in the Senate of each recognized party in that House and the leader in the House of Commons of each recognized party in that House. An announce-”; and
(b) Page 177: Replace lines 2 and 3 with the following:
“each of the Speakers of the two Houses of Parliament for tabling in their respective Houses.”.
147. Clause 227, page 176: Replace line 32 with the following:
“of public servants and appointees involved in appointment”.
148. Clause 227, page 177: Replace line 5 with the following:
“during good behaviour for a term of seven years”.
149. Clause 228, page 177: Replace line 28 with the following:
“sections 183, 184, 186 to 193 and 227 of this Act”.
150. New clauses 244.1 and 244.2, page 181: Add after line 30 the following:
CANADIAN TOURISM COMMISSION ACT
“244.1 Subsection 11(4) of the Canadian Tourism Commission Act is replaced by the following:
(4) The directors appointed under subsection (1) hold office during pleasure on a part-time basis for a term not exceeding four years.
244.2 Subsection 12(3) of the Act is replaced by the following:
(3) The directors appointed under subsection (1) hold office during pleasure on a part-time basis for a term not exceeding four years.”.
151. Clause 259, page 187: Add after line 12 the following:
“16.21(1) A person who does not occupy a position in the federal public administration but who meets the qualifications established by directive of the Treasury Board may be appointed to an audit committee by the Governor in Council on the recommendation of the President of the Treasury Board.
(2) A member of an audit committee so appointed holds office during pleasure for a term not exceeding four years, which may be renewed for a second term.
(3) A member of an audit committee so appointed shall be paid the remuneration and expenses fixed by the Governor in Council.”.
152. Clause 306, page 203: Replace line 4 with the following:
“22.1 (1) The Governor in Council shall”.
153. Clause 306, page 204: Replace line 22 with the following:
“(4) The Procurement Auditor may re-”.
154. Clause 306, pages 203 and 204: Replace the expression “Procurement Auditor” with the expression “Procurement Ombudsman” wherever it occurs, with such modifications as the circumstances require.
155. Clause 307, page 204: Replace lines 41 to 43 with the following:
“in subsection 22.1(3);”.
156. Clause 307:
(a) Page 204: Replace line 40 with the following:
“tions of the Procurement Ombudsman referred to”; and
(b) Page 205: Replace line 7 with the following:
“Procurement Ombudsman may make in response”.
Your Committee has also made certain observations, which are appended to this report.
Respectfully submitted,
Donald D. Oliver
Chair
Observations to the Fourth Report of the Standing Senate Committee on Legal and Constitutional Affairs
I. Introduction
Throughout the course of Parliamentary history and regardless of the political stripe of the government in power, your committees have at times found that the claims of a government concerning a particular legislative initiative are not faithfully mirrored in the testimony of the witnesses called on to speak to the merits of the bill. This unfortunately has occurred once again with Bill C-2. The disconnect between claims and reality has been exacerbated in this case by the government’s decision to emphasize form over substance in its determination to immediately table this extraordinarily complex and far reaching omnibus legislation as its very first legislative act upon assuming office.
When purely political imperatives are allowed to triumph over sound principles of governance, the public good is not well served.
Though we were advised by Minister Baird that the bill had come to the Senate only after having been “examined with a microscope” by his colleagues in the House of Commons, and “by a team of government lawyers…and constitutional experts,” (3:11) we were subsequently told by the government to reconsider immediate passage of the bill as we had received it because it had 42 second thoughts, or amendments, that it needed to have made to the centerpiece of its legislative program. Apart from those amendments, there were another half dozen obvious drafting errors which escaped the attention of the microscope in the other place, but fortunately not of your Law Clerk.
Our examination of Bill C-2 also included testimony, where we heard from over 150 witnesses in 30 days of hearings. This process uncovered more than technical and drafting errors. Though we were told that the goal of the legislation is to bring greater transparency and overall accountability to government operations, witnesses testified that the effect of some of the proposed amendments to the existing law would have the perverse effect of achieving the opposite result. In fact, though the government claims that Bill C-2 is grounded in and follows the recommendations proposed by Justice John H. Gomery in his report, Professor Denis Saint-Martin of the University of Montreal testified that “the two are totally in opposite directions; in terms of recommending what needs to be fixed, the two approaches are totally different” (7:30).
In this report we wish to highlight some of the evidence that we heard as well as to draw specific attention to some of the more important amendments that need to be made if the Accountability Bill is to more closely live up to its name. Unfortunately this report is unable to provide full commentary on all of our proposed amendments. Nor is it able to document all the concerns brought forward by witnesses. This abbreviated report is a direct result of the government’s insistence that Bill C-2 be put into force with haste. Under the circumstances, it is not possible to provide a comprehensive report on the full implications of a 214 page legislative proposal which amends over 40 existing statutes.
David Hutton, Coordinator of the Federal Accountability Initiative for Reform (FAIR) described the drafting process that was employed to craft Bill C-2 as “deeply flawed,” and complained that the bill “is complex and is full of loopholes when you dig into it. I feel that the committees have been given an impossible task, namely trying to turn this into effective legislation that meets intent” (9:98). We could not agree more.
Although it is disappointing that the government has resorted to such a flawed process to craft this legislative response to the calls for greater accountability, that fact only reinforces the importance of the task we were assigned by the Senate. This report on Bill C-2 is another example of why Parliament relies on a “chamber of sober second thought” to review the sometimes unintended consequences of legislation and let the intercession of time and reflection play its role in helping attain good order and government for all Canadians.
II. Conflict of Interest and Ethics Commissioner
The first part of Bill C-2 covers conflict of interest and ethics issues for Parliamentarians and senior government officials, known as public office holders, who are appointed to their positions by the government through an Order of Cabinet (Governor in Council appointments). The bill proposes a stand-alone statute, namely the Conflict of Interest Act (CIA). This new Act would set out the duties, powers and responsibilities of the new Conflict of Interest and Ethics Commissioner in so far as Ministers, their staff and public office holders are concerned. The CIA would include a code of conduct these individuals would be required to follow.
Part I of Bill C-2 also makes amendments to the Parliament of Canada Act, which is the statute that establishes the appointment process for the current Ethics Commissioner, as well as the Senate Ethics Officer. Bill C-2 would eliminate both the Commissioner for the House of Commons and the Senate Ethics Officer positions and transfer their responsibilities to the new Conflict of Interest and Ethics Commissioner. Unlike the Code of Conduct for Public Office Holders, the codes of conduct for the members of the two Chambers will not be placed in the legislation, but rather will remain within the ambit of the Standing Orders and of the Rules of the respective Houses of Parliament.
The major change proposed in Part I of Bill C-2 is therefore the merging of the two current ethics positions into one, so that the new Conflict of Interest and Ethics Commissioner will have jurisdiction over all Members of the House of Commons, Senators and public office holders.
Your committee heard no convincing evidence to support this move to decrease the number of ethics officers from two to one, particularly when the government has stressed its commitment to strengthen the current regime. Your committee is far from convinced that placing into the hands of a single Commissioner the responsibility of overseeing three codes, of overseeing all members of the Senate and of the House of Commons, as well as thousands of public office holders, and then making him or her accountable to three separate and constitutionally independent authorities, i.e. the Executive, the House of Commons and the Senate, will enhance the existing system. The evidence we heard does not support this proposal, either as a matter of parliamentary practice and privilege, the constitutional separation of powers, or even common sense. In fact, the evidence would favour three separate officers, giving each a separate and distinct area of responsibility. Nevertheless, if the House of Commons is comfortable with giving a single Ethics Commissioner responsibility for the oversight of their activities as well as oversight of the activities of individuals responsible to the Executive (Ministers and Order in Council Appointments), that is its prerogative. The Senate, however, has long taken the position that the separation of powers contained in our constitution clearly envisages the House of Commons and the Senate as separate and independent chambers. That independence needs to be reflected in the independence of those who support its functions, including a clearly independent and separate Senate Ethics Officer. Nothing in the evidence we heard has persuaded your committee that the Senate should reverse its long held and often expressed position. In fact, the evidence has made it clear that the current arrangement is working and working well. There was absolutely no testimony of any problem or difficulty with the existing system that would require change. In fact, the most persuasive testimony was that which warned about the negative consequences of what is being proposed in this respect.
Your committee does not believe it is necessary to enter into a lengthy discourse on the merits and advantages of a separate and independent Senate Ethics Officer in view of the lengthy debate that has already taken place over the years. One needs only examine the most recent proceedings around Bill C-4 in 2004 and Bill C-34 in 2003, where the merits and conclusions concerning an independent Senate Ethics Officer were strongly put by members on both sides of the Chamber. Consequently, your committee recommends that Bill C-2 be amended to keep in place the existing system in so far as the Senate Ethics Officer is concerned.
Unfortunately, Part I of Bill C-2 also makes several questionable proposals with respect to the duties and responsibilities of the new Commissioner in his or her dealings with public office holders that cause concern.
Many witnesses, led by the current Ethics Commissioner Bernard Shapiro and the former Ethics Counsellor Howard Wilson, believed it very important to include a preamble in the new Conflict of Interest Act, clearly setting out the guiding principles to be followed by public office holders in the performance of their duties. Such a preamble is in the current Prime Minister’s Code for Public Office Holders, and has been in every Prime Minister’s Code going back to the Right Honourable Brian Mulroney. We are unclear why, for the first time in 20 years, this practice will no longer be followed. We urge the government to draft such a statement of guiding principles for public office holders and to add it as a preamble to the new Conflict of Interest Act.
We are also very puzzled about why the definition of “conflict of interest” has been narrowed significantly by removing the words “apparent and potential”, words that have found an important place in the codes that all Prime Ministers have put into place for their ministers and for their senior public office holders. Justice not only needs to be done, it also needs to be seen to be done, and this is nowhere more true than in the political environment. Consequently, your committee is amending Bill C-2 be to ensure that the definition of conflict of interest includes apparent and potential conflict of interest.
In this same vein where appearances can be very important, your committee has concerns about section 44 of the proposed new Conflict of Interest Act. This section provides that a member of either Chamber of Parliament who has reasonable grounds to believe that a public office holder has contravened the Act may ask the Commissioner to examine the matter. The difficulty with the provision is that even if the Commissioner quickly concludes the request “was frivolous or vexatious or was made in bad faith” and discontinues the investigation, he/she must nevertheless produce a report, give it to the public office holder in question and to the complaining member of Parliament, as well as to the prime minister and then “make the report available to the public.”
Your committee finds it difficult to understand why an accusation that was made privately and in bad faith, and then found to be without any merit whatsoever, needs to be repeated publicly by the Commissioner, thereby impugning the reputation of the blameless public office holder by raising an issue publicly that should never have been raised at all in the first place. Your committee recommends that under the circumstances described, the Report of the Commissioner would be provided to only the member who complained and to the public office holder complained of. The public office holder would then have the option, as the innocent party, of deciding whether it was necessary to publicly release the report of the Commissioner exonerating him/her from the scurrilous accusation. The potential for mischief in section 44 is compounded because it is worded to specifically apply to former office holders, thereby opening the door for members of one Parliament to launch “frivolous or vexatious… bad faith” complaints to the Commissioner about the public office holders associated with earlier Parliaments and administrations.
This naturally leads to the question about how far back in time one can go to complain about the behaviour of former public office holders. Though this question was not specifically addressed in the testimony we heard, section 65 of the proposed new Conflict of Interest Act states:
Proceedings under this Act may be taken at any time within but not later than five years after the day on which the Commissioner became aware of the subject-matter of the proceedings and, in any case, not later than ten years after the day on which the subject-matter of the proceeding arose.
Your committee has serious misgivings about a proposal whereby the Commissioner could wait up to five years after learning of a matter before instituting a proceeding, or in other words, before taking a prescribed action under the Act. Surely the Commissioner should be required to act more quickly after first learning of a problem. Similarly, being able to initiate actions for as long as 10 years in total following the event in question provides an inordinate length of time to pursue a matter, particularly when as we heard from former Chief Justice Antonio Lamer that the limitation period in Canada for summary conviction offences is normally only 6 months, according to the Criminal Code.
The proposed 5 year/10 year limitation period contained in section 65 of the new Conflict of Interest Act is repeated in the sections of Bill C-2 which amend the Canada Elections Act and the Lobbyists Registration Act. In all cases, your committee believes that those responsible for ensuring the enforcement of these statutes should be expected to take the appropriate action within two years of learning of the difficulty, and certainly within seven years of the incident taking place. Justice should not be delayed.
Another provision in the proposed Conflict of Interest Act that causes your committee difficulty is section 43, which provides that the Prime Minister may obtain confidential advice from the Commissioner about the application of the new Act to individual public office holders. In normal circumstances this should not be a problem, but in a case where the Commissioner decides to conduct a full investigation into the conduct of a public office holder because of the serious nature of what the Prime Ministers is requesting to know, any conclusion the Commissioner then reached and conveyed to the Prime Minister under section 43 would be kept secret. Even if the conclusion reached by the Commissioner was that serious wrong doing had taken place, the only person who would ever know under the Accountability Bill would be the Prime Minster.
While we agree that a Prime Minster should be able to seek and receive confidential advice from the Commissioner, we do not agree that in the circumstances described above the Prime Minister should be able to keep the information received from the Commissioner secret.
Your committee therefore has amended Bill C-2 so that where the Prime Minister requests confidential advice under section 43 and the Commissioner concludes, after conducting an investigation, that a breach of the Act has occurred, that conclusion must be publicly disclosed.
Your committee was surprised that in addition to seeking to keep all dealings with the Commissioner secret, the Prime Minister would be seeking to impose what amounts to a gag order on Members of Parliament concerning possible wrong doing by public office holders, which of course include his or her ministers. Sub sections 44(4) and (5) of the new CIA state that when a member of the Senate or House of Commons receives information “from the public… indicating that a public office holder or former public office holder has contravened this Act,” the member, “while considering whether to bring that information to the attention of the Commissioner, shall not disclose that information to anyone.” It would be a breach of the Act if the member sought advice from anyone whatsoever about what to do with this information, even advice from his Parliamentary colleagues or party leader. Furthermore, if the member then decided to bring the information to the attention of the Commissioner, subsection 44(5) goes on to say that “the member shall not disclose that information to anyone until the Commissioner has issued a report”. There is no requirement that the Commissioner issue a report within a certain period of time.
This prohibition, or gag order, applies only to the Parliamentarians who receive the information from the public and not to anyone in the public itself.
Your committee finds this attempt by the “New Government of Canada” to muzzle Members of Parliament in order to prevent them from discussing with anyone information received from ordinary Canadians about possible wrongdoing by Members of Cabinet and other senior public office holders to be offensive in the extreme. Although we are hesitant about making recommendations that touch on the rights and privileges of the members of the House of Commons and recognize that its members approved this restriction on their actions, your committee nevertheless believes that this prohibition offends the historic and essential privileges of all parliamentarians and must be removed.
III. Political Financing
The proposed changes to political financing contained in Bill C-2 were described by Minister Baird as building on major reforms that were put into place in 2003 in Bill C-24 by the former Chrétien Government (S.C. 2003, c.19). “[T]he measures adopted by the Thirty-seventh Parliament were good, and we are proposing to go farther” (3:50).
Your committee, however, is puzzled that the government would initiate these further changes without awaiting the results of the statutory review mandated by C-24. Bill C-24 was the most significant reform of political financing since the Election Expenses Act of 1974 and consequently contained a clause that called for a House of Commons Committee to conduct a review “to consider the effects of the provisions of this Act concerning political financing.” According to s.63.1 of Bill C-24, that review would take place after the Chief Electoral Officer submitted his report to the House of Commons following the first general election held under the new financing rules. The first part of that report was tabled by Mr. Kingsley in September of 2005. He has said that he will present a second report that would deal with political financing reforms. However, instead of now awaiting Mr. Kingsley’s report on political financing and having a review of those new financing laws by a House of Commons committee, as required in Bill C-24, the government has decided to bring forward major new changes to those same financing laws in this bill, without any review whatsoever. To now proceed with further significant changes without having the benefit of that review does not appear to be the most rational way of dealing with such a critical element of our democratic electoral process.
Your committee was even more surprised when after being asked whether the government had done any comparative studies on how other jurisdictions treat political donations, Minister Baird replied: “We did not do a provincial comparison.” (3:26). Mr. Leslie Seidle, the former Senior Research Director at Elections Canada, and now with the Institute for Research on Public Policy expressed the view that “If no comparisons were done with provincial experience, I wonder what has happened to our policy development within the Government of Canada” (7:122).
Perhaps the reason that a formal provincial comparison was not undertaken was because the government already knew that the contribution limits it was proposing in Bill C-2 federally were not in line with what now exists provincially.
Currently, at the federal level, individuals are permitted contribute a maximum of:
1. $5,000 to a registered political party and its constituency association collectively in a calendar year
2. $5,000 to a non-registered party candidate in a particular election; and
3. $5,000 to leadership contestants in a particular leadership contest
Unions and corporations are allowed to contribute a maximum of $1,000 in any calendar year to local constituencies and candidates collectively.
Bill C-2 would prohibit all union and corporate donations and would significantly reduce the amounts individuals are able to contribute to political parties and their candidates. Instead of the current $5,000 limit, Canadians would be able to contribute a maximum of $1,000 to leadership hopefuls as well as to candidates of unregistered parties. The current maximum of $5,000 for registered parties, their candidates and constituencies would be reduced to $2,000, to be equally divided between the party itself and between the local constituencies together with its candidate.
All theses limits are well below what is permitted in virtually all provinces. In fact, several provinces have absolutely no contribution limits for political donations as can be seen from a comparative analysis conducted by the Library of Parliament which is attached as an appendix to this report. For those provinces that do have contribution restrictions, their limits are normally much higher than what is proposed in Bill C-2.
The limits in Alberta, for instance, for individuals wishing to contribute to the electoral process within their province during a provincial election would be up to 30 times higher than the limit of Canadians wishing to support the political party they thought could best represent their interest during a federal election. It is difficult to justify a measure producing such disparity, particularly when a scheduled federal review of the political financing system is cancelled in order to bring about this result.
Witnesses before your committee, especially representatives of smaller political parties, were concerned that the reduced political contribution limits would severely impair their ability to raise needed campaign funds. Some of the smaller political parties, in particular, noted that they are dependent upon relatively large contributions from a small number of contributors.
Will Arlow, of the Canadian Action Party, described the new limits as “punishing” and “as hostile to small parties” (6:60). Marvin Glass of the Communist Party of Canada opined that “The main point here is that this makes small parties a self-fulfilling prophecy. The proposals you make are almost guaranteed to keep us small” (6:87).
The government has failed to produce any evidence whatsoever that the existing limits are somehow undermining the electoral process at either the federal or the provincial level, where contribution limits are generally higher than those being proposed in Bill C-2. This failure of the government to support its proposals on electoral financing with any empirical evidence raises concerns about the true consequences of these major changes. Mr. Arthur Kroeger, chair of the Canadian Policy Research Networks and a former Deputy Minister in five federal government departments, told us:
“What problem are we trying to solve? Were there abuses when the level was $5,400? I do not know. I do not remember reading of any such abuses. Were there abuses that merit the reduced levels of contributions that were permitted by business and unions? If you cannot identify the problem that justifies a provision in the bill, then have you lost balance and have you pushed things too far? Those are questions in my mind…Do we truly need to go that far to achieve good governance and are we risking harm? It is possible” (3:107).
The reason for this concern is the important role political donations play in our democratic electoral system, and the importance of ensuring a balanced approach where adherents of all political parties can participate equally. The motivation behind measures to enhance the accountability of government and improve the electoral process should not be motivated by partisan political considerations, as was suggested by a number of our witnesses.
Professor Leslie A. Pal of Carleton University testified:
“For me, as a matter of democratic practice, one of the most fundamental aspects of democracy is for people to be able to support political parties and other representatives of their political interests…The political party in power has a better capacity to raise individual donations as compared with its competitors. Speaking frankly, the introduction of these limits plays well politically. It also plays well strategically to the capacities of the current government” (4:12).
Your committee believes that reductions proposed in this legislation need to be ameliorated, particularly after hearing the virtually unanimous testimony from the representatives of the smaller political parties about the serious harm these limits would do to their ability to participate in the political process. Consequently, the contribution limits to leadership contestants and to candidates of unregistered parties should be decreased to $2,000 instead of to $1,000 as proposed in Bill C-2. Likewise, the contributions limit for registered political parties should be $2,000, as well as for local constituencies and their candidates. Furthermore, to clarify the problem some parties are having in determining whether to include their convention fees as political contributions, the $2,000 limit for registered political parties should explicitly state, for greater certainty, that this limit does indeed include convention fees, as has been intimated by Mr. Jean Pierre Kingsley, Canada’s Chief Electoral Officer.
This bill proposes to eliminate in its entirety the already modest amounts unions and corporations may donate at the local constituency level. Your committee recommends that the government reconsider this ban, particularly in view of the evidence presented by the smaller parties who it appears may be inordinately affected. In addition, Pierre F. Côté, for almost 20 years, the former Chief Electoral Officer of Quebec expressed his opinion that in mirroring the corporate and union bans that were instituted in his province in 1977, this legislation “seems to want to repeat the same mistakes” (6:114) Finally, questions were raised by our witnesses about the constitutionality of this provision, including by Professor Errol P. Mendes, of the Faculty of Law at the University of Ottawa who feared that they offended our Charter of Rights and Freedoms. In light of what we heard, your committee believes that this total ban on union and corporate contributions needs to be carefully re-examined in a larger review that the government should initiate into political financing, as was provided for in Bill C-24.
As a final note on this issue, your committee is surprised that a government, whose party was able to grow from very modest beginnings to its current position of strength by taking full advantage of the existing party financing laws would now, upon attaining power, propose to change those same laws to the clear detriment of today’s smaller parties. Some of these smaller parties are today attempting to spark public movements much as the early Reform Party adherents did years ago. One would have thought that those individuals in Canada’s New Government who trace their heritage back to the early days of the Reform Party would have some empathy for those now struggling with the same challenges they faced and would not intentionally add to their already considerable burdens.
IV. Lobbying
Bill C-2 would impose numerous and onerous new filing obligations on individuals, corporations and organizations that lobby the federal government. It would also impose a 5-year ban on former ministers, ministerial staff and certain senior public servants from engaging in lobbying activities.
Your Committee heard testimony from witnesses across the political spectrum. The common refrain was that the 5-year ban is excessive, unwarranted and will have the effect of depriving the government of the services of capable, qualified Canadians who will not wish to face such a ban after they leave public service. Notably, none of the witnesses would themselves be affected by this policy. In fact, the bill is in their self-interest because the effect of the changes would be to reduce future competition.
We share the strong reservations of these witnesses about the wisdom of this policy choice. However, we also recognize that this is a policy that was an important plank of the Government’s platform in the recent election. Accordingly, we do not propose any amendment to this 5-year ban. However, we urge the Government to monitor the impact of this policy, both on former public servants and on the Government’s continued ability to attract highly qualified individuals to government service.
The last set of major amendments to the current law, the Lobbyists Registration Act, have been in force only since 2003. Parliament had not yet even reached the time for the planned 5-year review of that Act, before the current Government proposed to change it with Bill C-2. Your Committee heard repeatedly that the real problems do not arise from defects with the law as it currently exists, but from those individuals and organizations that do not comply with the law – the unregistered lobbyists.
We regret that Bill C-2 does not address this problem. Your Committee tried to hear from advocacy groups that are not registered lobbyists under the current Act. We invited the National Citizens Coalition to appear before us. We wanted to better understand why large organizations such as the National Citizens Coalition whose relentless advocacy initiatives would be seen as lobbying by most Canadians are not registered as lobbyists under the Act. Their testimony could have assisted us in assessing how best to approach the problem that had been repeatedly identified to us by witnesses. To our disappointment, they declined our invitation to appear and would not publicly testify.
We urge the Government to consider this problem of unregistered lobbyists which was also identified by Mr. Justice Gomery as an issue of concern. For example, we note that while the Act is being renamed “the Lobbying Act”, andthe new agent of Parliament created under the Act is named “the Commissioner of Lobbying,” and “lobbyists” and “lobbying” are used repeatedly in headings and marginal notes throughout the proposed Act, nevertheless the terms “lobbying” and “lobbyist” are not defined anywhere in the legislation. We recognize the difficulties in defining these terms, but wonder if this absence is a loophole that enables individuals and organizations to avoid registration while advocating for causes in a manner that most Canadians would see as lobbying under the common sense meaning of the word.
Your Committee believes that true transparency requires that the public have the ability to know which individuals, corporations and organizations have and use access to Government for professional reasons; for reasons that extend beyond their own narrow, individual, self-interests. We urge the Government to consider defining the terms, and ensure that the Act is respected and complied with by all appropriate advocacy groups that lobby the government.
Witnesses before your Committee also identified the problem of firms that enter into contracts with particular government departments to provide policy assistance, and who then lobby those same officials on behalf of private clients. As a witness who spoke to us on this point said, “You can play around with the language of firewalls all you want, but anything short of a complete prohibition would simply be chasing your tail.” (11:68) We were disappointed to see that nothing in Bill C-2 even attempts to address this problem. Your Committee is proposing an amendment that would prohibit this activity.
Your Committee is in the difficult situation of being asked to pass a bill where critical details will be set out in regulations, yet no one who appeared before us was in a position to tell us what these regulations will provide. The Government’s urgency in having Parliament pass Bill C-2 has not been reflected in its treatment of the necessary regulations, which may not be available until June 2007. As Mr. Alain Pineau, National Director of the Canadian Conference of the Arts, told us:
“A briefing session was organized under the leadership of Mr. Perrin Beatty of the Canadian Manufacturers and Exporters. There were about 15 people in the room. It was made clear to us that the legislation had been put together at incredible speed, that it was extremely complex and that they could not answer many of the questions addressed to them. They kept saying, “Well, you will see that in the regulations, and according to the timetable under which we are working now, you will know in detail what you will have to report probably by June 2007.” (11:45)
We also heard extensive testimony about the anticipated burden of the new reporting requirements that would be imposed under this bill on everyone who has dealings with the government. We are concerned that individuals and organizations with the greatest knowledge of particular issues, who historically have been happy to share their knowledge and expertise with government officials charged with developing public policy in a particular area, will now be reluctant to engage in the public policy-making process because of this new regulatory minefield.
Policy-makers may find themselves hearing the views only of those organizations that have the resources to be able to file the reports required under the law. Businesses with pockets deep enough to afford their own full-time lobbyists, whether in-house or not, who are equipped to make the required filings, may not accurately represent the full spectrum of issues and policy options. Canadian public policy development will not be well served if they come to hold even more sway in government circles, as some of our witnesses feared they would under this legislation.
A related concern is the impact these reporting requirements will have on not-for-profit organizations, many of which already struggle to do their work with limited resources. We agree that it is important to see, through the registration and filing process, who is being given access to our decision-makers, and how much access they are able to obtain from decision-makers. However we are concerned that this bill, which claims to be about openness and transparency, in fact will limit dissenting voices and keep Canadians – except those wealthy individuals, corporations and organizations that can bear the cost of complying with the law (or choose to interpret the law as not applying to them) – away from the very government which is there to serve them.
Another frequently heard concern was that the reporting obligations will not adequately protect commercially sensitive and confidential information, giving competitors an unfair advantage. We believe that this is an issue that, together with others, can be addressed in carefully drafted regulations. We note, however, the lack of consultation that preceded the tabling of Bill C-2. This must not be repeated during the drafting of the regulations. The Government has an obligation to consult with those who will be directly affected by this law, to ensure that the goals of accountability and transparency are attained without damaging their legitimate interests.
Your Committee has three final comments with respect to the new 5-year ban on lobbying for former senior public office holders. We were surprised to see that Bill C-2 would have made it significantly more difficult for former senior public office holders to join organizations such as not-for-profit organizations, than to leave office and join corporations. As drafted, the 5-year ban distinguishes between the two. Guy Giorno, former Chief of Staff and Counsel to then-Premier of Ontario Mike Harris, described the problem in the bill as follows: “A senior public office holder who goes to a not-for-profit or a partnership and spends 1 per cent of his time lobbying would be covered [by the ban], whereas one who goes to work for a corporation and spends 19.999 per cent of his time lobbying would not be covered.” (11:37) This is wrong. Like Mr. Giorno, we believe this was not intentional, but rather another example of the too-hasty drafting of Bill C-2. We propose amending this provision, to apply the same standard to organizations that would be applied to corporations.
We were concerned to see possible inconsistencies between the lobbying prohibitions set out in the new Lobbying Act and those contained in the post-employment provisions of the new Conflict of Interest Act. We suspect this overlap and possible inconsistency is also the result of the exceptionally short time frame in which this lengthy, complex bill was drafted and examined in the other place. We are advised that the provisions of the two Acts on this issue are cumulative, and should not, as we fear, result in “forum-shopping” for the best result from either the Conflict of Interest and Ethics Commissioner and Commissioner of Lobbying, each of whom has authority to grant exemptions to the lobbying prohibitions under his or her own Act. We expect the Government to monitor this closely.
Finally, we wonder why former members of the Senate and House of Commons are not included in the 5-year lobbying ban. As a witness asked rhetorically, “You are trying to tell me that a 20-year old staffer who is keeping a minister’s schedule is banking political currency at a rate that exceeds that of a backbencher?” (11:77) We agree. We are not convinced, as stated above, that the 5-year ban is the right policy choice. But if it is determined that it is sensible and necessary, and has not had the effect of deterring Canadians from public service, then we propose that consideration be given to extending it to former members of the Senate and House of Commons, as well.
V. Access to Information Act and Privacy Act
Senator Stratton: What I want is a general agreement or concurrence with what is the intent of what we are doing here with this bill.
Alan Leadbeater, Deputy Information Commissioner: …No, I do not agree with your general premise that this will increase accountability. This is smoke and mirrors. (8:26)
It is probably fair to say that the most difficult parts of Bill C-2, both to properly understand and then to attempt to fix, are the amendments to the Access to Information and Privacy Acts. The Conservative Party, made much of its intent to “force the government to open its windows” during the recent election campaign. However, it became patently clear to your Committee during the weeks of testimony on Bill C-2, that immediately upon assuming power, “Canada’s New Government” did its best to slam all windows and doors shut.
The amendments to the Access to Information Act seem drafted to confound and mystify, with provisions scattered throughout the 214-page bill. Exceptions are grafted upon exceptions, and there is strangely divergent treatment of apparently similar information, depending where it is held in the government. The bottom line, though, is clear: instead of legislating openness and transparency, this Conservative Government is attempting to legislate shadows and secrecy. In many cases, information was to be kept secret forever – protection greater than that afforded Cabinet documents, and one designed to facilitate unprecedented control over the Canadian public’s right to know about the actions of its government. The provisions would extend to future generations of Canadians, and rob them of their ability to discover their history.
Trying to bring coherence to this complex web of amendments was probably the most difficult task before your Committee. In brief, our amendments do the following:
Your Committee would amend s. 4(2.1) of the Access to Information Act to include an obligation for the heads of government institutions to respond to access requests on a timely basis. This responds to testimony heard about the length of time it frequently takes the government to respond to requests. The Canadian public is not well served when requests for information are not answered until a year – and in at least one case, two years – after they are made.
We also introduced a general “public interest override” clause, that will authorize the disclosure of information where it is clearly in the public interest to do so. Your Committee heard a number of witnesses who spoke of the value of such a provision. It has worked well in a number of provincial access to information statutes. We believe it is an important statement of principle and a critical addition to the bill.
We heard a great deal of evidence about the differing treatment under Bill C-2 of the various Officers or Agents of Parliament. The Bill would have opened up the records of some, while burying records of others indefinitely. Your Committee believes that this is wrong. Our amendments seek to treat all Officers and Agents of Parliament the same. They will open access to records created by or on behalf of the various officers and agents of Parliament in the course of investigations and audits once the investigation or audit and all related proceedings are concluded. This includes access to draft audits and working papers, including those of the Auditor General.
We appreciate the concerns expressed by the Auditor General about the risks of opening a draft to public scrutiny. We are confident that these risks can be managed. Most importantly, experience has demonstrated the value of public access to such documents. Accordingly, we have concluded that the draft audits and working papers should be accessible after the audit and all related proceedings have been completed.
We also introduced amendments to similarly open up draft documents and working papers related to internal audits. These kinds of records have proven indispensable in the past. Canadians should have access to them once the audit has been completed.
As noted above, your Committee was surprised to see that different officers or agents of Parliament were treated differently under Bill C-2. Under our amendments, this will change. The exceptions carved out by Bill C-2 for the Auditor General and the Commissioner of Official Languages will no longer apply, and our amendments would bring the Commissioner of Lobbying within the same regime.
Your Committee struggled with the appropriate level of access should be provided with respect to the work of the new Public Sector Integrity Commissioner. We noted the representations from whistleblowers themselves and from the current Public Service Integrity Officer, telling us that Bill C-2 provided excessive secrecy and would prevent Canadians learning about wrongdoings in government. At the same time, we were concerned to ensure that public servants would be assured of the necessary protection throughout the process. Our amendments follow the approach proposed by Dr. Keyserlingk, the current Public Service Integrity Officer, and seeks to strike the right balance between these competing concerns.
One aspect of Bill C-2 that was generally regarded as an advance was the decision to bring Crown corporations and foundations within the umbrella of the Access to Information Act. However, your Committee was however concerned to discover the almost haphazard way in which certain organizations were brought within the scope of the Act, while others were excluded. Certain protections were afforded some entities but denied to others engaged in the same activities and sometimes dealing with the same information. This made no sense to us.
We heard from the Sustainable Development Technology Foundation, an organization that works with Canadian businesses to bring clean innovative technologies to market. This Foundation was never consulted during the drafting of Bill C-2 and first learned that they were being brought under its umbrella when the bill was tabled in the House of Commons. No protection was afforded for the trade secrets and commercial and proprietary information of the Canadian businesses with which they work.
This was particularly strange, as the Foundation funds companies that later often turn, at a subsequent stage of commercialization and development, to the Business Development Bank of Canada for assistance. Provisions in the Act already protect trade secrets and commercial and proprietary information in the hands of the Business Development Bank. It is passing strange to acknowledge that such information is to be protected at the later stage, while forcing its disclosure – including to potential competitors – at an earlier stage of the process, when in the hands of the Sustainable Development Technology Foundation. Our amendments correct this anomaly and bring the protections in line.
Perhaps the most disturbing testimony we heard concerned the treatment of the National Arts Centre and the Canadian Wheat Board. Both appear to have been the unfortunate victims of partisan politics during the highly-pressured consideration of Bill C-2 in the House of Commons.
The National Arts Centre knew that for the first time, it was going to be brought within the scope of the Access to Information Act. A special provision was originally included in Bill C-2 to allow it to keep confidential the terms of its contracts with performers, and also its list of confidential donors. Such a clause was in the bill at first reading in the House of Commons. Representatives of the National Arts Centre appeared before the legislative committee studying Bill C-2 in the House of Commons, and all appeared to be in order. The NAC later learned that this clause was deleted. Jayne Watson, Director of Communications and Public Affairs for the National Arts Centre described for us what happened:
Ms. Watson: I was present at the committee. As Ms. Foster noted, the committee appeared to go well. We had no opposition at all. A member of the committee who was not present during our presentation, Member of Parliament Pat Martin, showed up at a later point in the committee and proposed this amendment. The amendment was voted on and accepted. It completely caught us off guard, because we had been warmly received by the committee at that time.
Senator Day: We need more information. Mr. Martin heard none of the debate, none of the discussions, and he came in late in the event and proposed an amendment. Did he tell you why? Did he tell you he did not like the National Arts Centre?
Ms. Watson: No. I called Mr. Martin afterwards and tried to find out from him what his reasoning was, but I was not able to determine the thought process. (8:111)
We examined the clause as originally proposed for the National Arts Centre. We agree that it is critical for an arts organization to be able to assure donors who wish to remain anonymous that their confidence will be respected and upheld. We similarly understand the need to be able to withhold the terms of contracts the NAC negotiates with performers. We do not understand why this clause was deleted, nor was any explanation provided to us. Accordingly, your Committee proposes reinstating the protective provision for the National Arts Centre.
The situation was not dissimilar with respect to the Canadian Wheat Board. That organization – which we were told receives no federal government funding in the normal course – was not part of the Access to Information Act when Bill C-2 was originally tabled in the House of Commons. The Board did not appear before the legislative committee studying the bill. It saw no reason to make representations, as the Bill would not apply to its activities. With no consultation, they learned after the fact that they had been added to the Act pursuant to a motion introduced by the same Member of Parliament, Mr. Pat Martin.
We agree with the Canadian Wheat Board that it should not be subject to the Access to Information Act. It does not receive any public funding. It is neither an agent of the Crown nor a Crown corporation. We believe that the Canadian Wheat Board, like the NAC, was added to the Schedule for unfathomable reasons. That is not how public policy should be made in this country. Your Committee proposes amend the Bill to remove the Canadian Wheat Board from the Access to Information Act.
We are also concerned that as drafted, the Access to Information Act would apply retroactively to all information held by the various entities now being brought under the Act, no matter when or how that information came into their possession. We are concerned that businesses or individuals may have provided information, even years ago, to an organization, confident in the belief that the information would be kept confidential. To change the rules now would be wrong. As a matter of principle, we believe that laws should have a retroactive application or effect only rarely and only because of compelling reasons. NO such reasons were advanced to us. Consequently, your Committee has amended the Bill to provide that the Access to Information Act will only apply to these new entities with respect to information they create or obtain after the date the entity becomes subject to the Act.
In addition to these major amendments we propose to the Access to Information Act provisions of Bill C-2, we have the following observations.
We noted that the Privacy Commissioner and the Information Commissioner are each now subject to their own acts, namely the Privacy Act and the Access to Information Act. However, as the Privacy Commissioner told us, no provision has yet been made for circumstances where there may be a complaint about the Commissioner under his/her own statute. The Commissioner should not be placed in a position to examine a complaint against his or her own office. We join with the Privacy Commissioner in urging the Government to delay the entry into force of these measures until an appropriate mechanism to address this situation is identified and in place.
Instead of introducing the package of amendments to the Access to Information Act that was promised by the Conservative Party of Canada during the last election, the current Government has tabled a discussion paper on reform of the Act. We appreciate the need for careful study of legislative proposals and are pleased that this Government is prepared, at least in the matter of the Access to Information Act, to give Parliament the time it needs to study a proposal. We hope, however, that the government will not use this study as an excuse to delay unduly the introduction of a full package of necessary amendments to the Act.
We urge the Government to ensure consistency in the treatment of various entities. The experience of Sustainable Development Technology Canada provides a cautionary tale of the problems that can result from inconsistent treatment.
During our hearings we heard that only 49 of the 246 Crown corporations, agencies and foundations will be covered by the Access to Information Act. As one witness told us:
“[W]hy are the Canadian Blood Agency and the Nuclear Waste Management Organization not covered by the Access to Information Act? These organizations deal with subjects vital to the public’s health and safety and are not profit driven. Even the Seaborne panel that set up the nuclear waste agency advised that it be covered by the Access to Information Act, but it never was. The decision seems to be, to use an old cliché, a no-brainer.” (8:200)
We note that under the Bill, the Governor in Council is authorized to make regulations prescribing criteria for adding a body or office to the Schedule of other government institutions. We believe, and the experience of the Canadian Wheat Board with Bill C-2 underscores the need for this. The criteria should be set out in legislation so that it can be fully considered and debated by both Houses of Parliament.
During your Committee’s study of Bill C-2, there were press reports suggesting that the identity of a person who requested access to information under the Act, had been shared among government officials who were reviewing the request, including members of ministers’ staffs. We believe that Canadians have the right to request information from their Government without people in political positions knowing who they are. This is a central principle of our Access to Information Act and a critical element of our privacy protections. We strongly condemn any actions by government officials – whether political staffs of ministers or members of the public service – that violate these principles. We urge the Government to ensure that the provisions of the law are known, understood and upheld by all.
Bill C-2 also introduces amendments to the Privacy Act. The Privacy Commissioner (who, like the Information Commissioner, was not consulted during the drafting of Bill C-2) appeared before your Committee. She stressed that “privacy is key to achieving the goal of greater accountability in government. Bill C-2 makes some amendments to the Privacy Act, but much more needs to be done to make this nearly 25-year old law meet modern privacy requirements. A real Privacy Act reform is a pre-condition for achieving true government accountability and transparency.” (8:135)
Because the Privacy Act is so out-dated, the Commissioner found herself in the unusual position of arguing that Crown corporations not be brought within the Privacy Act, as Bill C-2 proposes, but rather left where they are, so they fall within the modern private sector privacy statute, the Personal Information Protection and Electronic Documents Act (PIPEDA).
We urge the government to make it a priority to work closely with the Privacy Commissioner – not to exclude her, as happened in the drafting of Bill C-2 – and to modernize the Privacy Act by taking action on the report the Privacy Commissioner tabled with the House of Commons Standing Committee on Access to Information, Privacy and Ethics in June.
VI. Whistleblower Protection
The Public Servants Disclosure Protection Act (Bill C-11), prepared by the previous Government, was passed by the last Parliament, after extensive study, on November 25, 2005, immediately before the dissolution of Parliament. Almost one year has passed since then, yet the current Government has refused to proclaim that Act into force. As Michelle Demers, President of the Professional Institute of the Public Service of Canada, told your Committee:
“While there are many changes [in Bill C-2] we support, we must point out that Bill C-11, the Public Servants Disclosure Protection Act, which received Royal Assent last year, remains unproclaimed and without effect. We have fought for these protections for more than 15 years and have watched many initiatives come and go with the fortunes of politics. Had Bill C-11 been proclaimed, at least our members would have been protected.” (10:109)
The current Government has regrettably refused to proclaim the Act into force, holding its protections hostage to the fate of Bill C-2, while accusing the Senate of Canada and your Committee of “foot-dragging” to impede Bill C-2’s “significant reform in…improved protections for whistleblowers.” [Minister John Baird, “An achievement in foot-dragging”, Ottawa Citizen, October 21, 2006.] This is simply false and an affront to those courageous Canadians who have stepped forward to disclose wrongdoings. In point of fact, we heard during our hearings, Bill C-2 characterized as a “cruel delusion” in its whistle-blowing protection (9:108). Joanna Gualtieri, Director of the Federal Accountability Initiative for Reform (FAIR) and one of the most prominent, determined and passionate advocates for whistleblower protection in Canadian history, told your Committee:
“I have reflected on the fact that it has been said that the senators really must pass this bill because, if they do not, they will be seen to be turning their backs on accountability. We genuinely believe that the Senate’s finest hour will be found in being proponents of accountability. That will be done by getting back to the drawing board and doing this right. We have waited a long time for whistle-blowing protection. The public service and Canadians are dependent on you to implement this correctly.” (9:98)
Your Committee was conscious of the long delays already suffered in making federal whistleblower protection a reality. Accordingly, we focused our amendments on those provisions that we believe are the most critical.
Minister John Baird wrote in the Ottawa Citizen that under Bill C-2, the Public Servants Disclosure Protection Act “will be extended to all federal bodies.” This is false. The Communications Security Establishment and the Canadian Security Intelligence Service would not be covered. Your Committee believes this is wrong. Our amendments will make good on that promise, and extend the protection of the Public Servants Disclosure Protection Act to members of these federal bodies. In the post 9/11 world, particularly in light of the significant additional expenditures on defence and security, we want assurance that our counter-terrorism agencies are operating scrupulously within the law. We want members of CSIS and CSE to feel confident in coming forward to report any wrongdoing.
Your Committee also proposes replacing the current definition of “reprisal” with a borader, open-ended one. This amendment, first identified by Mr. Justice Gomery but ignored by the current Government, was characterized as “critical” by Ms. Gualtieri, and emphatically supported by Allan Cutler, another prominent Canadian whistleblower. We remain puzzled about why the government would have dismissed Mr. Justice Gomery’s recommendation and instead proposed a much more restrictive definition of what constitutes reprisals by employers against whistleblowers.
Our amendments will also reverse the onus in cases involving reprisals. We recognize that just as there are a myriad of ways in which an employer can take reprisal against an employee disclosing wrongdoing, so are there many ways an employer can credibly claim that what is being done is not reprisal. Our amendment would provide that if the action complained of occurs within a year of the protected disclosure, then it is presumed to be a reprisal, and the burden of proving that it was not shifts to the employer.
Bill C-2 imposes a 60-day limitation period for a public servant to file a complaint. This was described to us as far too short a time. Mr. Cutler told us, “A good employee, who has goodwill, will run out of the time period because management has great power and ability to stall and use up all the time. Sixty days is not enough, and that must be fixed.” Our amendment extends this to one year.
Your Committee was dismayed to see that Bill C-2 imposed a statutory upper limit of $10,000 on the damages that could be awarded by the new Public Servants Disclosure Protection Tribunal for pain and suffering. Ms. Gualtieri described this provision as “another provision in the bill that is an assault on public servants.” (9:123) Your Committee has amended this provision to remove the statutory upper limit, and leave the assessment of these damages to the discretion of the Tribunal.
We were also taken aback to see the limits on fees for legal advice that the Commissioner could order reimbursed to whistleblowers. Subsections 25.1(4) and (5) would have imposed a cap of $1,500 that could be reimbursed to a whistleblower for legal advice; in “exceptional circumstances” this could be raised to $3,000, under subsection 25.1(6).
As Ms. Gualtieri said, this is “surreal”. While we recognize that awards are unlikely to truly allay the cost of legal advice, your Committee has proposed, as a means to somewhat “level the playing field” between the whistleblower and the employer, that the Commissioner be authorized to order reimbursement for legal advice in an amount equivalent to that provided in Treasury Board guidelines.
Your Committee has also adopted a number of the recommended amendments put forward by Dr. Edward W. Keyserlingk, the current Public Sector Integrity Officer. We were disheartened to hear that Dr. Keyserlingk, like the vast majority of the officers, agents and advisers who now serve Parliament and the Executive in the areas covered by Bill C-2, was not consulted by the drafters of the bill for advice and input during its preparation. Insofar as we could, we have sought to rectify this, and incorporated many of his proposed amendments.
Giving effect to his recommendation, however, for procedural reasons, was not always possible. For example, it was proposed by Dr. Keyserlingk and others, that we amend the bill to allow private sector contractors and grant recipients access to the federal Commissioner to file a complaint and to receive remedial orders from the Tribunal. The Conservative Party had promised in its election platform that it would include this protection in whistleblower legislation. It was conspicuously absent from Bill C-2, and because of this, your Committee is advised that such an amendment would now be beyond the scope of the bill and therefore outside our power to introduce. In addition, questions of the enforceability of these provisions were raised. In the circumstances, we do not propose this amendment at this time, but strongly urge the Government to explore ways in which this protection could be so extended, including in the standard contractual terms for contractors and grant recipients.
To conclude with this part of the Bill C-2 package, your Committee heard powerful testimony from witnesses who clearly felt betrayed by the contents of this legislation. Promises had been made that were then ignored when the bill was drafted. Thought the Government, as recently as a few days ago sought to perpetuate the myth that Bill C-2 “would give real protection for whistleblowers,” the testimony heard by your Committee told a very different story.
VII. Public Appointments Commission
Bill C-2 would authorize the Governor in Council to establish a Public Appointments Commission to oversee, monitor, review and report on the selection process for Governor in Council appointments.
Your Committee was regrettably unable to study this proposal as thoroughly as it wished. We asked four Deputy Ministers to appear before us, so that we could learn about the appointment process that is currently in place. The Government failed to produce any of the four requested Deputy Ministers. While we understand that scheduling issues are always a concern, we were disappointed that the Government, while proclaiming Bill C-2 to be of the highest priority and urgency, nevertheless failed to produce a single requested Deputy Minister to speak to this issue.
We support the proposal of a Public Appointments Commission. As mandated in Bill C-2, the Commission would not be responsible for vetting particular appointments, but rather would be responsible for establishing a “fair, open and transparent” appointments process, and ensuring that all appointments are based on merit. The credibility and success of this Commission will depend in large part on the quality of the code of practice they establish. There is no statutory requirement that this Code be placed before Parliament or the public. We urge the Government to make this Code public, as soon as it has been prepared, so that the public and Parliamentarians may review it and make representations on its merits or anticipated problems. It would be questionable at best to seek to open up the appointments process to greater transparency and accountability, while failing to allow Canadians to see and comment upon the Code proposed to govern that process.
The major amendment we have made to these sections of Bill C-2 is to require that the Commission be established. We are aware of press reports that suggest that because the first candidate put forward by the Prime Minister to chair this Commission was not acceptable to the committee in the House of Commons who reviewed that proposal, the Prime Minister will use his discretion and simply not establish the Commission. We believe that is wrong. Bill C-2 includes provisions for the establishment of the Public Appointments Commission; we have been told throughout our deliberations that this Bill is a priority for the Government, and “a central portion of the new Government’s agenda”. We take the Government at its word that the proposed Commission is important to ensure accountability and transparency in the appointments process. If so, then the Act should make it mandatory that the Commission in fact is established, and not left to the discretion of the Prime Minister.
VIII. Director of Public Prosecutions
Your Committee heard testimony that raised doubts about the merits of establishing the new Director of Public Prosecutions. The first testimony we heard on the issue was from Arthur Kroeger, chair of the Canadian Policy Research Networks and former Deputy Minister in five federal government departments. He told us:
“If the legislation had been written by a government with more experience in office, it may not have some items in it that it does, which I will explain in a minute. There is the other problem that some of the contents of legislation were, I think, developed during an election campaign, and there is always a risk of a bit of overkill for the sake of achieving a public effect during an electoral contest, which is readily understandable. The director of public prosecutions, to which you refer, is a good example of measures where the bill goes fairly far and adds some items. I am not clear as to what problem it intends to solve. You have a deputy minister of justice; you have an assistant deputy minister, whose function is prosecutions. Virtually, all prosecution is handled under the Criminal Code and administered by the provinces. I am puzzled as to why the position was necessary, and, in particular, if you already have a deputy minister of justice, why would you create a second deputy minister position to manage a function that, at least viewed from outside, seems to be rather limited. That is an example where it might have come out differently had people of more experience been directly involved in writing the legislation. There may be a problem there that I am not aware of, but I was puzzled by that particular position.” (3:100)
The Minister of Justice admitted that there is no problem with prosecutorial independence at the federal level. He testified, “The men and women who constitute the Federal Prosecution Service have been faithful guardians of prosecutorial independence. We are not here to correct a problem that has already occurred; we are here to prevent problems from arising in the future.” (3:130)
The new Director of Public Prosecutions would not only be responsible for prosecutions that traditionally were handled by the federal prosecutorial service. Under Bill C-2, responsibility for all prosecutions under the Canada Elections Act would be taken away from the Commissioner of Elections, and given instead to the new Director of Public Prosecutions.
The Commissioner of Elections is appointed by the independent Officer of Parliament, the Chief Electoral Officer of Canada. Together they form the backbone of Elections Canada. The Commissioner’s integrity and impartiality has never been impugned. Elections Canada is highly respected throughout Canada and around the world. Dr. Peter Aucoin, who appeared before your Committee as a witness, wrote a recent paper for the Organization of American States, in which he discussed the Commissioner’s role in enforcement of the elections system. He then continued, “The Chief Electoral Officer/Elections Canada structure has long been an established and respected institution in the electoral process. Their independence of government and impartiality in respect to partisan politics is universally accepted, or at least as nearly universal as can be in a partisan-political environment. The staff of Elections Canada is professional and technically competent.”
We agree. We asked the Chief Electoral Officer, Jean-Pierre Kingsley, whether he personally feels that the proposed transfer from the Commissioner to the proposed Director of Public Prosecutions was necessary. He was unequivocal: “I do not personally think that such a change was necessary.” (7:158) The Chief Electoral Officer of Canada elaborated, telling your Committee, “The bill does not address any particular matter that may have been problematic in the past for the commissioner.” (7:158)
Once again, we had a solution in search of a problem and your Committee was confronted with a policy decision by the current Government whose merits seem questionable based on the testimony from expert witnesses. However, again we recognize that this policy was an important plank in the Conservative Party’s platform in the recent election, and we are reluctant to reject it altogether. The former Chief Justice of Canada, Antonio Lamer, while pointing out to us that we have been living without a Director of Public Prosecutions at the federal level since Confederation, nevertheless suggested that the justice system cannot have too many eyes giving a “second look” to a proposed prosecution.
We were, however, concerned to see the proposed appointment process for the new Director of Public Prosecutions. The Government has suggested that the new Director of Public Prosecutions will ensure prosecutorial independence from political concerns or interference. In other words, the purpose is to de-politicize prosecutions beyond any doubt. However, when your Committee began to scrutinize the details of the proposed legislation, we were surprised to see the degree of control exercised by the Minister of Justice in his or her capacity as Attorney General, over the selection process for the person being chosen to serve in this position.
As proposed in Bill C-2, the Minister of Justice would have absolute control over the list of candidates for the position of Director of Public Prosecutions. The Minister would propose a list of 10 names; that list would then be passed to a selection committee; and the selection committee would choose 3 candidates from the list – but pursuant to the statute, they could only choose from among the Minister’s list. There are many excellent safeguards included in the Bill, including the carefully constructed composition of the selection committee, designed to achieve both a high level of legal knowledge and political impartiality, as well as the requirement for approval of the appointment by a parliamentary committee – but throughout the whole process, the choices and discretion are confined within the parameters set by the Minister, namely his or her list of 10 names.
Your Committee is proposing to amend this. We propose that the selection committee will compile the list of candidates, and then the process as set out in the Bill will continue, with the choice of final candidate made by the Minister and then referred to a parliamentary committee.
We also noted that the section was drafted to refer to approval by “a committee designated or established by Parliament for that purpose.” This language is inaccurate under our parliamentary system, as “Parliament” does not designate or establish committees. We have corrected this language.
IX. Conclusion
Your committee was encouraged that when Minister Baird was asked whether the government “would be ready to receive amendments from the Senate,” he concluded his response by saying: “if you have ideas and suggestions to make this bill a better bill, I welcome them” (3:50-1). Your committee firmly believes that the “ideas and suggestions” contained in this report would make this bill a better bill and would result in an Act that took a significant step forward in providing Canadians with greater transparency and accountability from their Government.
APPENDIX
PROVINCIAL COMPARISONS OF POLITICAL CONTRIBUTION
LIMITS AND SOURCE RESTRICTIONS
NEWFOUNDLAND AND LABRADOR
Elections Act, 1991, S.N.L. 1992, c. E-3.1
A. Contribution Limits
N/A
B. Source Restrictions or Prohibitions
Individuals, corporations and trade unions can make contributions to registered parties and candidates (s. 282(1)).
There is no mention of constituency associations, leadership contestants or nomination contestants.
PRINCE EDWARD ISLAND
Election Expenses Act, R.S.P.E.I. 1988, c. E. 2.01
A. Contribution Limits
N/A
B. Source Restrictions or Prohibitions
Contributions to registered parties and registered candidates may be made only by individuals, corporations and trade unions (s. 11(1)).
NOVA SCOTIA
Members and Public Employees Disclosure Act, S.N.S. c. 4
A. Contribution Limits
N/A
B. Source Restrictions or Prohibitions
Contributions may be made to a recognized party, a candidate and an electoral district association (s. 3(e)).
Contributions may be made by individuals, partnerships, organizations, corporations, and unions (s. 8(b)).
NEW BRUNSWICK
Political Process Financing Act, S.N.B. 1978, c. P-9.3
A. Contribution Limits
A maximum of $6,000 during a calendar year to (s. 39(1)):
§ each registered political party or to a registered district association of that registered political party, and to
§ one registered independent candidate.
B. Source Restrictions or Prohibitions
Individuals, corporations and trade unions may make the maximum contribution.
Contributions may only be made to a registered political party, registered district association and to one registered independent candidate (ss. 37, 38).
QUEBEC
Election Act, R.S.Q. c. E-3.3
A. Contribution Limits
A maximum of $3,000 to each party, independent Member and independent candidate, collectively, during the same calendar year (s. 91).
B. Source Restrictions or Prohibitions
Only individuals may make a contribution. (s. 87)
ONTARIO
Election Finances Act, R.S.O. 1990, c. E.7
A. Contribution Limits
The maximum contributions a person, corporation or trade union may make are (s. 18(1)):
§ $7,500 to each party in any calendar year, and in any campaign period, as if it were a separate calendar year;
§ $1,000, in any calendar year to each constituency association;
§ an aggregate of $5,000 to the constituency associations of any one party, in any calendar year;
§ $1,000 to each candidate in any campaign period; and
§ an aggregate of $5,000 to candidates endorsed by any one party, in any campaign period.
B. Source Restrictions or Prohibitions
Individuals, corporations and trade unions may contribute to parties, candidates and constituency associations.
MANITOBA
Elections Finances Act, C.C.S.M. c. E32
A. Contribution Limits
Individuals may contribute a maximum of:
§ $3,000 in a calendar year, to candidates, constituency associations or registered political parties or any combination of them (s. 41(1.1));
§ $3,000 to one or more leadership contestants during a leadership contest (s. 41(1.1.1)).
B. Source Restrictions or Prohibitions
Only individuals may contribute to a candidate, constituency association, registered political party or leadership contestant (s. 41(1)).
SASKATCHEWAN
Election Act, 1996, S.S. 1996, c. E-6.01
A. Limit on Contribution Limits
N/A
B. Source Restrictions or Prohibitions
N/A (except for Canadian citizenship requirement)
ALBERTA
Election Finances and Contributions Disclosure Act, R.S.A. 2000, c. E-2
A. Contribution Limits
Contributions by individuals, corporations, trade unions or employee organizations to registered parties, registered constituency associations or registered candidates must not exceed:
§ In any year (s. 17(1)(a):
Ø $15,000 to each registered party;
Ø $1,000 to any registered constituency association; and
Ø $5,000 in the aggregate to the constituency associations of each registered party.
§ In any campaign period (s. 17(1)(b)):
Ø $30,000 to each registered party less any amount contributed to the party in that calendar year;
Ø $2,000 to any registered candidate; and
Ø $10,000 in the aggregate to the registered candidates of each registered party.
B. Source Restrictions or Prohibitions
Contributions may be made by individuals, corporations, trade unions and employee organizations.
BRITISH COLUMBIA
Election Act, R.S.B.C. 1996, c. 106
A. Contribution Limits
Registered political parties or constituency associations may accept a maximum of $10,000 in permitted anonymous contributions (s. 188(1)).
Candidates, leadership contestants and nomination contestants may accept a maximum of $3,000 in permitted anonymous contributions (s. 188(2)).
B. Source Restrictions or Prohibitions
An unregistered political party or unregistered constituency association and charitable organizations are not permitted to make a political contribution.
YUKON TERRITORY
Elections Act, R.S.Y. 2002, c. 63
A. Contribution Limits
N/A
B. Source Restrictions or Prohibitions
The wording of the relevant legislative provisions suggests that only registered political parties and candidates may receive contributions (ss. 370-385).
NORTH WEST TERRITORIES
Elections Act, R.S.N.W.T. 1988, c. E-2
A. Contribution Limits
An individual or a corporation may contribute a maximum of $1,500 to a candidate during a campaign period (168(2.1)).
A candidate may contribute a maximum of $30,000 of his or her own funds to his or her own campaign in the pre-election and campaign periods (168(3)).
B. Source Restrictions or Prohibitions
Only individuals and corporations may make contributions to a candidate during an election period (168(2)).