Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 5 - Evidence for March 31, 2004
OTTAWA, Wednesday, March 31, 2004
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:34 p.m. to study Bill C-14, an Act to amend the Criminal Code and other Acts; Bill C-17, an Act to amend certain Acts; and Bill C-20, an act to change the names of certain electoral districts.
Senator George J. Furey (Chairman) in the Chair.
The Chairman: Today we will be studying three bills. We will begin with Bill C-14, an act to amend the Criminal Code and other Acts.
We will then commence our study of Bill C-17. We will hear from Minister Saada and his officials.
Finally, we will hear the minister a second time on Bill C-20.
It is agreed, honourable senators, that we proceed to clause-by-clause consideration of Bill C-14?
Hon. Senators: Agreed.
Senator Nolin: I do not have a problem going to clause-by-clause consideration today. However, at the last meeting of the committee, in answer to a question raised by Senator Joyal, the department agreed to table guidelines with the committee. Do we have that documentation?
The Chairman: Ms. d'Auray is here. Perhaps she could come to the table for a moment so that we can ask her a question.
Senator Joyal, have you received anything?
Senator Joyal: No.
Ms. Michelle d'Auray, Chief Information Officer, Treasury Board Secretariat: Mr. Chairman, the guidelines are being drafted now. We will be pleased to share them with the committee once they are completed.
Because they are still at the drafting stage, I was not under the impression that we were to provide them in the week immediately subsequent to the meeting. They should be completed in a matter of days. I would be pleased to share them with you at that time.
Senator Joyal: If it will take but a few days, I have no reservations about moving to clause-by-clause consideration of the bill today. However, I suggest to members of the committee that we might want to have them before we move to the third reading stage of the bill. There were elements raised at our last meeting in relation to a preoccupation shared by members of the committee. Therefore, it would be proper for us to have them.
The Chairman: Ms. d'Auray, how quickly do you think the committee could be in possession of the guidelines?
Ms. d'Auray: I will have to check. I will commit to sending them to you by Friday, or sooner, if I can.
The Chairman: Is it the wish of the committee that we hold off on reporting the bill to the Senate?
Senator Nolin: We can report the bill. However, we will agree that we will not pursue adoption of the bill on third reading without at least having access to these guidelines. This involves an issue of privacy. Therefore, it would only be proper to see what kind of guidelines the government will support. It is a matter of satisfying ourselves that we are not giving away too much.
Ms. d'Auray: Mr. Chairman, in response to Senator Nolin's question, we are also sharing them with the Privacy Commissioner. Thus, we will also be receiving the Privacy Commissioner's safeguards.
Senator Joyal: Perhaps the Privacy Commissioner could confirm by letter that she has received them and that she is satisfied with the provisions. It would be helpful for us to have such a confirmation from the Privacy Commissioner. It might facilitate our consideration of them.
Senator Nolin: There may well be a translation problem, since it is most likely that they will be written in English. It would satisfy our concerns if you were to provide us with such a letter.
The Chairman: Thank you.
Honourable senators, we will continue with the clause-by-clause consideration of Bill C-14.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clauses 1 to 10 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 11 to 20 carry?
Hon. Senators: Agreed.
The Chairman: Shall clauses 21 to 24 carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Is it agreed, honourable senators, that the bill be adopted without amendment?
Hon. Senators: Agreed.
The Chairman: Does the committee wish to append any observations to the report?
Hon. Senators: No.
The Chairman: Is it agreed that I report this bill without observations to the Senate at the next sitting?
Hon. Senators: Agreed.
The Chairman: At that time, I will advise the Senate that we wish to wait for the guidelines before proceeding to third reading.
Honourable senators, we are now ready to commence our study of Bill C-17. I welcome to the table the Hon. Jacques Saada, Leader of the Government in the House of Commons and Minister responsible for Democratic Reform.
Because this particular bill seeks to make amendments in a number of different areas, the minister is accompanied by a rather large number of officials, each with their varying capacities and expertise. Because of the number, I will not identify each official now. Their names are on the agenda. I will ask that when officials come to the table to respond to a question, to assist the committee by stating their name, title and department for the record.
Before we commence with a presentation from the Hon. Jacques Saada, Senator Nolin wishes to make a point.
Senator Nolin: Thank you, Mr. Chair.
I would like to inform you that I will not be staying for the study of that bill. I want to declare a conflict. There is a proposed section in the bill that deals with a past responsibility of mine and I think it is proper for me not to attend and be part of the discussion.
I want that to be on the record.
The Chairman: Thank you very much, Senator Nolin.
Mr. Saada, did you wish to make a presentation before going to questions?
The Honourable Jacques Saada, P.C., M.P., Member of Parliament, Leader of the Government in the House of Commons and Minister Responsible for Democratic Reform: Thank you for inviting me here today to consider both Bill C-17, the Amendments and Corrections Act, and Bill C-20, an Act to change the names of certain electoral districts. Accompanying me are officials from departments, who will help me answer your questions.
Let me begin with Bill C-17. This is a house keeping initiative to ensure that our laws are as accurate and up-to-date as possible. This is the second technical corrections bill reviewed by this committee. Parliament passed the first such bill in 2002.
Mr. Saada: Several provisions relate to appointments, correcting French terms, clarifying definitions and making terms consistent with similar provisions.
The bill updates disability provisions for lieutenant governors consistent with recent changes for parliamentarians.
Clause 25 would amend the Salaries Act to provide disability benefits to lieutenant governors aged 65 years or over, consistent with changes provided to parliamentarians in 2001.
Clauses 10 to 17 would amend the Lieutenant Governors Superannuation Act to allow lieutenant governors to continue to contribute to their pensions in the event they become disabled and receive disability benefits, which is also similar to changes for parliamentarians made in 2001.
Bill C-17 would also make minor corrections to customs legislation dealing with the Canada-Costa Rica Free Trade Implementation Act and the Importation of Intoxicating Liquors Act.
Clause 28 of the bill will provide the necessary authority for consular service fees collected between April 1, 1998, and January 22, 2003. Since 1958, Canada has had consular service fees for the provision of specialized consular services. Draft regulations for an increase in consular service fees were approved by the governor in council for public consultation in 1997.
Following the consultation period, the regulations were implemented on April 1, 1998 but without the required step of seeking governor in council approval. When this error was discovered in December 2002, corrective action was taken by seeking governor in council approval for fees collected after January 2003 and by seeking the necessary authority for the fees collected between April 1998 and January 2003 by way of Bill C-17.
Last year, Parliament passed Bill C-39 to make technical corrections to parliamentary compensation, including compensation for chairs and vice-chairs of special committees consistent with that for chairs and vice-chairs of standing committees.
This amendment was not retroactive. Since Bill C-39 was passed, it has been suggested that compensation for special committee chairs and vice-chairs should be retroactive to January 1, 2001, the same date that compensation for standing committee chairs and vice-chairs took effect.
The bill provides compensation for Senate special committees in keeping with the principle of ensuring parallel treatment for the two chambers whenever possible.
I would like now to speak briefly about Bill C-20.
The Chairman: Mr. Saada, if I may interrupt you, we would prefer as a committee to deal just with Bill C-17 and perhaps entertain some questions, then move on to your presentation on Bill C-20. Is that okay with you?
Mr. Saada: Sure.
Senator Beaudoin: I was reading the document before me. There are many items like consular fees, retroactivity, et cetera. Is it part of Bill C-17 or is it related to another statute?
Mr. Saada: It is part of Bill C-17.
Senator Beaudoin: We very often have bills of that nature containing corrections, et cetera. However, sometimes it is more than corrections; it may be a matter of ``substance,'' and I want to be sure. For example, there was an error discovered in 2002 and corrective action was taken by seeking Governor in Council approval for fees collected after 2003, and by the necessary authority for the fees collected in January 2003. Could you explain that to me more clearly?
Mr. Saada: I would like to refer to those who know the history of the case better than I.
Mr. Michel Voghel, Legal Counsel, Department of Foreign Affairs: As the minister was explaining earlier, draft regulations were pre-published in Part I of the Canada Gazette, which was unfortunately not confirmed by the governor in council. The department began charging fees — what we are talking about here are increases in fees. Under the regulations, fees had already been charged, but the regulations referred to here, which were supposed to come into force on April 1, 1998, increased these fees because of the additional costs incurred by the department to provide the services. The services referred to here are notary services abroad incurred by Canadian missions abroad such as the translation and authentification of documents. This is the type of service provided by missions abroad.
Senator Beaudoin: Did you use the word ``notary''?
Mr. Voghel: Yes, when you are abroad and need a legal document there, you have to go to the embassy. A consul or a vice-consul will sign the document and give it to the local authorities. They accept it as proof of the document and its contents. The service is somewhat similar to that provided by notaries in Quebec. These provisions of the bill provide for that.
Senator Beaudoin: Is it retroactive?
Mr. Voghel: No, regulations are never retroactive. Because of this error, the department collected fees from April 1998 until January 2003. I discovered the error in 2002. The purpose of the bill is to correct the error retroactively. For the period from January 23, 2003 until now and later, there is no problem. The new regulations or rather the same regulations were passed, but on January 23, 2003.
The purpose of the bill is simply to correct this error, to make legal the fees billed to all these clients abroad between April 1, 1998 and January 22, 2003.
Senator Beaudoin: What was the problem with the lieutenant-governors? That seems simple to me but nonetheless—
Mr. Voghel: Someone else will answer that question.
Senator Beaudoin: You referred to recent changes for parliamentarians. How is this related to the salaries of the lieutenant governors?
Ms. Joan Arnold, Director, Pensions Legislation Development, Pensions Division, Treasury Board of Canada Secretariat: It is necessary to put it in the Salaries Act. This disability allowance is similar to one that was enacted for parliamentarians in 2001. As a matter of equity, it was decided that the same sort of disability arrangement should be made for lieutenant governors. That necessitates amendments to the Lieutenant Governor's Superannuation Act.
Senator Beaudoin: Does the federal authority pay them?
Ms. Arnold: Yes.
Senator Beaudoin: Do they want to make a comparison between the parliamentarians and the lieutenant governor?
Ms. Arnold: I am not sure what you mean by ``comparison.''
Senator Beaudoin: A comparison of the amount of money.
Ms. Arnold: No, it is a matter of having in place a disability provision that would allow lieutenant governors to have access to this type of benefit after age 65 in the same way that was enacted for parliamentarians in 2001.
Senator Beaudoin: It is to give to them the same treatment.
Ms. Arnold: Yes.
Senator Beaudoin: I see. Superannuation, of course, is the pension.
Ms. Arnold: Yes, sir.
Senator Beaudoin: What was the problem with the Canada-Costa Rica Free Trade Implementation Act?
Mr. Matthew Lynch, Privy Council Officer, Privy Council Office: Perhaps I can take a stab at that. We do have counsel here from the CCRA.
When legislation was enacted with respect to the Costa Rica free trade agreement, there was a provision to which the English version made correct reference but which was missing in French. The amendment we are proposing here would correct that in the French version of the act.
Senator Beaudoin: It is a disparity between the two languages. That is all it is.
Mr. Lynch: Yes.
Senator Joyal: I want to come back to that issue of consular fees. I do not know if Mr. Voghel will come back to the table. Also, I have a question for Ms. Arnold.
In your reply to Senator Beaudoin, you say that an administrative error was made which meant that the legal process that should have led to the enactment of new rates for a number of fees was never passed by order of the governor in council. The fees had been published in the Canada Gazette, but they never received approval from the governor in council.
Mr. Voghel: Normally, regulations are pre-published in the Canada Gazette as a way of consulting with individuals affected by them. In this case, that step was taken; however, because of an administrative error, once the department received the results of these minimal consultations, it did not — Fees of this type affect identified clients only in the case of things such as medication, or people with fishing licences, for example. In this case, many clients are involved and the regulations were not technically in force. In order to correct this error retroactively, we needed a provision of this type in this bill.
Senator Joyal: But between us — so to speak, because the television cameras are here, so many people can hear us — how could such a thing happen? I think there are enough legal advisors in the department. There was definitely one individual — and I will use the most diplomatic term I can find — who was not being very attentive, because the next day the new rates were implemented without the necessary authorization. That is a serious professional error. I have no objection to your asking parliamentarians to validate the rates, because you do not want to have to run around paying back money to people who may have paid too much. I can understand that, but it is not enough for us to simply approve your request without being reasonably sure that some administrative action was taken with respect to the individual who made this mistake. He or she needs to wake up to the fact that professional errors have important legal consequences. What steps were taken in the unit in question to ensure that this individual was asked for an explanation and provided one and that disciplinary measures were taken if necessary?
Mr. Voghel: You are speaking about one individual. In the machinery of government, the problem stems from the fact that a number of individuals are involved. In the regulatory process, there is the client department, the people who work with the minister, the Privy Council, and many other individuals involved in a matter such as this. Systems were being computerized in 1998, and the individual responsible at that time, who is now retired, thought in good faith that the regulations had been passed by the governor in council and that they should be implemented. These regulations are applied by missions abroad — our embassies and consulates. All the information had already been sent out to everyone.
We noticed the error because someone asked a question about these regulations. We noticed that the regulations had never been approved by the governor in council.
Senator Joyal: On behalf of the taxpayers of Canada, I would like to thank you for noticing this. My comments are in no way personal. We should be giving you a medal for discovering that. My concern is that this was a serious omission, because it involved taxpayers' money.
Before we say that this is not serious, that it happened once and will not happen again, we should point out that if someone in the private sector had made such an error, there would have been some consequences.
In the other place, a study is underway at the moment to determine who authorized certain actions and who did not. We cannot simply pass legislation later and say that this is not very serious because in two years we will pass a bill and validate everything that has happened. That is not how the Parliament of Canada works. We must hold the government responsible for both the good and bad things it does.
You may not be the head of the unit involved, but I will not feel I have done my job fully if I am not convinced that such a mistake will not happen again and that the individuals responsible had to assume their responsibility.
Mr. Saada: In 1997, the Privy Council Office did establish a Regulatory Affairs Secretariat supposed to centralize information about issues of this type. This happened in 1998, probably during the time when the secretariat was being set up. It was probably not operating in the way it does at the moment.
The responsibility of this secretariat is to provide better oversight of the prepublication and final approval of regulations. Your concern is most legitimate, and I think the situation has been corrected. We are now correcting things that should have been noticed immediately. However, I think it is relatively reassuring to note that we are correcting procedures through the establishment of the secretariat and we are passing legislation to correct the administrative error that was made at the time.
Senator Joyal: I have no problem with the legislative approach taken to correct the error, which is not administrative, in my opinion. Passing regulations is a legal process; this was a legal error, an error made in the legal process for adopting regulations. It is not that someone made a mathematical error, it is someone who failed to perform an important professional function: namely, ensuring that the regulations were drafted, sent to your division, placed on the agenda of cabinet, appropriately stamped and then sent back to the department in question.
This is not something innocuous, it is a specific and rigorous legal process. When the machinery fails, we have to try to determine whether it is a flaw in the system or simply a lack of attention on the part of an individual, which could be explained by all sorts of reasons.
If you tell me that the system was changed and that some things fell through the cracks because of a new computer system, we must have some assurance for our part that these flaws have been corrected.
Mr. Saada: Yes, senator. The establishment of this secretariat does give us significant assurances that problems of this type are much better monitored, and consequently are not likely to recur.
Senator Joyal: Could we have a list of the fees that were increased?
Mr. Voghel: They are published in the regulations, if you would like to see them.
Senator Joyal: Perhaps you could give a copy of this to the clerk so that we can see what fees are involved.
The Chairman: Do you have it with you, Mr. Voghel? Perhaps we could have someone pass it up and have it distributed to committee members.
Senator Pearson: I will follow up on Senator Joyal's question. When I first came to the Senate, I spent a year or so on the Scrutiny of Regulations Committee. It would seem to me that this should have turned up at that committee because it is the kind of thing we looked for, whether it was ultra vires, although someone had to bring it to the attention of the committee. Has the Scrutiny of Regulations Committee ever looked at this?
Mr. Voghel: I cannot answer that, but the regulation was in force and the same services were charged for at the lower tariff. It has been like that since —
Senator Pearson: It was simply an augmentation.
Mr. Voghel: Yes. The list is exactly the same. It is because costs of the services had increased and the department did not want to subsidize them and thereby compete in the private sector with lower fees than notaries would charge.
Senator Pearson: I wondered how someone finally noticed. You do not have to answer that question; it probably is not possible. However, I think that one of the roles of the Scrutiny of Regulations Committee is to continue to look at these things to ensure that the law is in place to support the regulations. I suppose this works with the secretariat that you described?
Mr. Saada: Yes.
Senator Andreychuk: In fairness to the Scrutiny of Regulations Committee, they have before them the regulations that departments bring and the members scrutinize them to see whether they are in line with the act, constitutional and within the mandate, et cetera. I do not think they could go out and find problem regulations unless they had many more staff.
Is this an isolated incident? We have many regulations and it is a theme in committee that too much is going into regulations. Obviously, this kind of situation could arise more often when the bureaucracy is trying to cope with so many regulations, especially those dealing with built-in increases.
I have some questions for the minister in respect of his responsibility for democratic reform. That is an intriguing title, and I think Canadians may be looking for some democratic reform. Minister Saada, my questions will not come as a surprise to you because I am sure your staff has briefed you well. Senator Lynch-Staunton is our critic on this and he raised the fundamental point that Parliament passes laws that provide authorities. It seems that Privy Council is now taking liberties that are interesting and intriguing. The Privy Council has taken to using the term ``to be styled as'' to arbitrarily change titles given in statute. The current Executive Director of the National Round Table on the Environment and Economy is using the correct title under the terms of her appointment. However, her predecessor was first appointed as executive director and subsequently reappointed with the magic phrase ``to be styled as,'' and thereafter used the title of ``president.''
Could you elaborate on your philosophy of changing every title, it appears, to ``president'' under clauses 19 to 24 of Bill C-17?
I once served in a country where no one but the president of the country could use the term. It is intriguing that we are going the other way and calling everyone ``president.'' It is hard to figure out what they really do. I want to know about your current thinking on democratic reform and what is most appropriate, so that citizens can understand the level of importance of a certain job within the scope of the government.
Second, will you cease the practice in the Privy Council of taking liberties and using this very curious phrase, ``to be styled as?''
Mr. Saada: That is a very interesting question indeed. I was expecting many questions, but not on the issue of democratic reform. My understanding of the issue is as follows: The actual functions performed by the individual should dictate the title. It is my understanding — and please correct me if I am wrong — that in French, the role described here is in fact the role of president and not executive director. In similar agencies, for instance, persons in that position would be called ``president,'' not ``executive director.'' It is not really a matter of a policy; it is a matter of coherence and consistency.
Senator Andreychuk: If an act is passed designating a president, ``president'' should be used. If the act refers to an executive director, ``executive director'' should be used. It seems to me that the Privy Council has taken liberties in the past that do not belong in a democratic system.
As I pointed out — and if I used ``president,'' I want to correct that — section 13 of the Canadian Centre for Management Development Act specifies that the chief executive officer is to be called ``principal'' of the centre and hold the rank and status of a deputy minister. However, the Order in Council appointing Janice Cochrane on June 16, 2003, stated she would hold that position and ``be styled as president.'' I want to know which way the government is going. If you are trying to regularize things, why did you not bring an amendment under Bill C-17 for changes to the Canadian Centre for Management Development Act?
Mr. Saada: Do you mind if I ask for help from my officials on this issue?
Mr. Wayne McCutcheon, Acting Deputy Secretary to the Cabinet, Privy Council Office: Honourable senators, I act as Acting Deputy Secretary to the Cabinet in the Privy Council Office for senior personnel. I will endeavour to answer your question.
I am not sure specifically about ``principal'' of the Canadian Centre for Management Development. The former Bill C-25, the Public Service Modernization Act, establishes a new school of public service. I think perhaps it is in that legislation that the name is being officially changed from ``principal'' to ``president.''
Senator Andreychuk: I want some assurance that whatever the act states continues to be used. There should be no change to that status elsewhere. Parliamentarians have the right to know what they are passing. If we pass legislation specifying the rank of president or executive director, it should not be changed unilaterally in the Privy Council Office. To me, that is symptomatic of disrespect, if I may say so, for the democratic process. I want to be assured that this will not continue and that if the government has changed to a new system and wants to regularize it in some way, that there has been some scanning of all acts. We need to be able to explain to people what is going on.
Mr. McCutcheon: I agree. It is rarely the case that individuals are styled to use a title that is different than that set out in statute. It tends to occur when there is a reorganization of the machinery of government. If a new department is created, for example, by an Order in Council, as has happened recently and in the past, the individual may be appointed under an existing statute. To ensure clarity with regard to the appointment, the person may be styled to use the title created by the Order in Council.
Senator Andreychuk: Mr. Minister, that is the point I am trying to make. If we are talking about democratic reform, then we want to shore up the legitimate role of Parliament. Orders in Council should not be used to circumvent legitimate acts passed by Parliament, for whatever reasons, whether you think it is better management or what have you. If we passed a statute that designated a certain role, there were reasons for judging the responsibilities within that context and that should not be changed by Order in Council. The phrase I find offensive is ``to be styled as.'' That is not a term that I am used to as a parliamentarian, nor is the public used to it. You are ``designated as'' and ``given the functions of.'' What does ``styled as'' mean? That is a bit of a rhetorical question, but you can answer if you have a response.
Mr. Saada: Unfortunately, I am not able to give you a substantive response on that. I want to share with you my surprise, too, when I heard that my position was actually ``styled'' and I was wondering what it meant.
The point is taken. If there are any further developments, I would be pleased to report back to you. However, I need more substance behind my answers, so I will refrain from elaborating only on theory.
Senator Andreychuk: The same is also true of some other changes that you propose in the French. There is some confusion about the use of ``commissaire adjoint'' and ``commissaire délégué.'' I hope the government will regularize the appropriate titles and assure us that it is not happening elsewhere. It leads to a misunderstanding of the functions as construed in English and in French. The point was raised on the floor of the Senate. I raise it again because Bill C- 17, in clauses 2 through 5, proposes to change the statute, supposedly because the translation of the title is incorrect.
Has there been a systematic check to ensure that we mean to use ``adjoint'' and ``délégué'' as set out here? There has been some confusion. Are we making changes piecemeal or has there been a systematic look at regularizing titles?
Mr. McCutcheon: The answer is yes. As the proposed legislation is now drafted, there is standardization. It has now become common terminology to use ``deputy'' and ``délégué,'' whether for this organization or for the new border services agency.
I agree, senator, that standardization and consistency are important, so people know, in referring to a particular position, the level of that position in the hierarchy of the organization.
Senator Andreychuk: I was asking some of those questions in conjunction with our critic on this bill.
We are bringing in retroactive pay for special committee chairs and deputy chairs. As the new minister for democratic reform, are you in favour of paying chairs and deputy chairs to do their jobs? Do you think that was a good move? Do you think that this detracts from what I call ``service'' and assuming responsibilities as a parliamentarian?
Mr. Saada: I am very much in favour of this.
It is not a matter of pleasing the person who is actually occupying the chair. It is a matter of recognizing the extra work that this person must perform. It is quite appropriate, in my view, that those who have a responsibility over and above the normal call of duty should have that recognition factor, in the same fashion as whips of all parties are paid more than M.P.s with no title and the opposition leaders in the Houses are paid more. It is, generally speaking, a well- accepted way of recognizing some hierarchy within the system.
Senator Andreychuk: Just a final point: If we had a democratic system in which there was a transparent and free vote to elect chairs and deputy chairs in both Houses, your logic would be fine.
Mr. Saada: If I may, you are entering into an area on which I feel a little more comfortable with technicalities. As you know, in the House of Commons — and you will forgive me if I do not know exactly how the Senate system works — we have adopted a system whereby chairs of committees are elected by secret ballot by the members of the committee. That has been implemented on a temporary basis. In the democratic reform package that I tabled in the House of Commons in February, we proposed that this measure become permanent. The chairs and deputy chairs of committees are elected by all the members of the committee by secret ballot.
Senator Andreychuk: It is a shame you cannot comment on the Senate. It would be interesting to get your response.
The Chairman: We have about 10 minutes left on this bill and I want to go to a second round for Senator Joyal and Senator Beaudoin, but before that, Senator Jaffer has a quick question.
Senator Jaffer: On clause 28, is it the validity of the consular fees collected between April 1998 and 2000? The fees have been collected so this is retroactive?
Mr. Voghel: Yes, that is correct, the fees were collected and, of course, they exceeded the legal authority under the regulation.
Senator Joyal: I will make a statement following on from the question and comment of Senator Andreychuk.
Personally, I am opposed to payment for the chair and deputy chair. I think it essentially adds an element of what I call ``reward benefit'' to the system. I think it has a detrimental effect on the independence of members, because there is no question that money attracts more interest than anything else. To me, to introduce such an element into the system questions directly one of the key elements at the base of the so-called democratic deficit, which is essentially the independence of members of Parliament. If members of Parliament, be they from the Senate or the House of Commons, are not motivated by any other consideration than to speak, if they are members in the other place, for their constituents, and if they are in this place, according to their conscience and knowledge of the issue, to me the system is preserved. However, when you introduce all kinds of distorting elements of reward and benefit, you change the fundamental nature of the role.
I have stated it when a salary bill was introduced. I stated it again yesterday in the debate over the ethics commissioner and so forth. Mr. Minister, I bring that to your attention. It is always visible, whether you check how the chairs or deputy chairs of committee voted, or vice versa. We look at the vote and we draw conclusions.
In terms of the position and the independence of members, it causes a cloud over the transparency principle. If we want, essentially, to free the member, as the democratic deficit objective says, we have to remove those distorting elements from the system. That is my position. I am happy to restate it here publicly, and especially in front of you, because I am not the only one who holds that view. We have seen the system in place and we have been able to analyze what happened and come to conclusions.
I do not want to contradict you, but I think it is fair to say that a member who comes to a committee meeting spends as much time reading the bill and trying to understand what is being done as the chair. There are members, of course, who come to a committee with their school bag under their arm and open it in front of the teacher, and there are those who prepare themselves. It is up to each of us to do the work, but the chairs have no choice, because they are presiding and they cannot open the file for the first time when they arrive here. Some members can do it, but not all. You maintain that kind of attitude in the system by giving privileges to the chair. It has all kinds of unintended consequences and I do not support the principle of rewarding the chair and deputy chair. If people have a keen interest in an issue and expertise to share, it is up to them as a member of Parliament to come forward and convince their colleagues that they should be invested with the responsibility of chairing a committee, be it a special committee or a standing committee of the house. That is my personal position.
Mr. Saada: Mr. Chairman, may I answer? In my experience, which is not that long but still includes a few years in Parliament, I do not remember having met any parliamentarians who were running for chair for the extra income, but because they wanted to make a difference in a committee. I understand the honourable senator's argument. With all due respect, I do not share it. When you chair a committee, it involves much more work than simply being a member. I am not saying that members of committees do not work; that is not my point. My point is you have coordination functions, relationship functions with other committees sometimes, relationships with government and legislation sometimes, and work on the agenda. Those are not necessarily part of the everyday life of every member of a committee.
The chairs, as you know, do not vote, so they do give up a direct influence in the committee. They vote only in special circumstances.
It seems to me that some of your concerns are being addressed by the measure we have taken in terms of democratic reform. When a group of parliamentarians sitting around the same table designate by secret ballot who will be the chair, it is like a group of people designating who will lead them in the work that has to be done. I would also remind you that different legislation deals with these matters in different fashions.
For instance, in the Province of Quebec — and I stand to be corrected on details, but the principle is right — as a member of the National Assembly you receive a base salary. You receive extra salary if you sit on committees, and further extra income if you are a chair.
All parliaments deal with these issues in their own way. As regards the basic principle, if we apply the principle you mentioned, honourable senator, that would mean that all parliamentarians — and I am speaking particularly about the House of Commons, not the Senate — are all elected.
Consequently, at the outset, they do the same thing. Should the same principle be applied to parliamentary secretaries, whips or party leaders? There is a host of individuals who work from the assumption that they were elected to the House of Commons to do the work of a parliamentarian. Our tradition is to recognize that greater responsibilities entail higher salaries.
Senator Joyal: I do not want to argue with the minister, but we have existed for 130 years without rewarding the chair and deputy chair. It is not that the system was ineffective, or that the system has been more effective in the last five years since we started rewarding the chair and deputy chair. If it were that obvious that we needed to reward them, some earlier Parliament would have come to that conclusion.
Senator Beaudoin: On the question of the chair and deputy chair, I generally agree with what was said by Senator Andreychuk and Senator Joyal.
Coming back to Bill C-17, I say that we have always acted with by-laws to change the figures and the money paid. Was it a money bill? You are saying that when this error was discovered, the Governor in Council took corrective action. Is it by regulation, by order in council or what?
Mr. Voghel: It is by regulation. The fees were increased by regulation.
Senator Beaudoin: Did you have the power to increase them?
Mr. Voghel: Yes, under the Financial Administration Act.
Senator Beaudoin: Is it by simple regulation?
Mr. Voghel: Yes, under section 19.
Senator Beaudoin: Was this retroactive?
Mr. Voghel: No. This bill is to make it retroactive for the period that was not covered by regulation.
Senator Beaudoin: I see. As my colleague has said, for many years now, perhaps 30 years, we have been legislating more and more by regulation. We are going much too far in that area. The statutes are very general and imprecise, and everything that is important is done by regulations. It should be the reverse, because delegated legislation should come within the articles of the act, and this is not what we say.
I say that because I wish that to be in the record, that too much is left to regulations. If there is a tendency to change the sums of money by regulations, and that is authorized by the statute, it is correct to me, but I want to be sure that this is what is happening in practice.
Mr. Voghel: What you have in practice is section 19 of the Financial Administration Act. That authorizes the Governor in Council to make regulations to recover the costs of offering services to Canadians abroad.
The only thing that this regulation does is to recover the cost to the government of offering these services. You cannot provide for all types of services that are offered through legislation because there are so many. This is part of the schedule to the regulations. The principle of section 19 of the Financial Administration Act is simply that if the government incurs a cost for offering a service, such as authenticating documents — we offer these services abroad to anybody — we recover the costs. That is all we do.
Senator Beaudoin: When you change lieutenant governors' superannuation, and compare it with the salaries that are paid to some other groups, is this done by regulations only?
Ms. Arnold: I am not sure if I understand the question. The disability allowance details will be set out in regulations. That is correct.
Senator Beaudoin: It is in the regulations. When you decide, for a very good reason, to say, ``We will treat the lieutenant governor in the same way as we treat some other civil servants or officials,'' is this done only by regulations?
Mr. Saada: You have asked two questions. I will give more detail on the first question and let Ms. Bougie give you the answer to the last question. As to your concern about parliamentary oversight of user fees, as you know, we, meaning the House and the Senate, have both passed Bill C-212, which increases parliamentary oversight on the establishment of user fees. This is brand new. It was passed very recently.
As to the second question, I pass that to Ms. Bougie.
Ms. Ginette Bougie, Director, Compensation and Classification, Privy Council Office: Lieutenant Governors are often appointed at a more advanced age. Like all members of Parliament, they are covered by a disability insurance plan until age 65.
If a lieutenant-governor leaves his position before completing the five-year mandate and is over age 65, he or she will have neither a salary nor insurance. Such individuals would not be eligible for a pension either, because under the Lieutenant Governor Act, a minimum of five years' service is required to qualify for the pension.
Moreover, parliamentarians over 65 who find themselves in the same situation receive an allowance equal to 70 per cent of their salary, under the Members of Parliament Retiring Allowances Act.
The same applies under the Lieutenant Governors Superannuation Act. This gives them an allowance equivalent to the amount they would receive if they were still in their position or if they were under 65. They can continue to contribute to the pension plan and after five years, they get a pension. That guarantees them some income for the surviving spouse should the lieutenant-governor die.
The Chairman: We have Minister Saada here for one other bill, and if we need the officials to come back for further hearings on Bill C-17, we will have them.
Senator Joyal: I hope that Ms. Bougie and Ms. Arnold will be back for this. There is a complexity in Bill C-17 at the bottom of page 6.
The Chairman: We will continue with the second bill and we will take your suggestion under advisement.
We now invite Mr. Saada to introduce Bill C 20, to change the names of certain electoral districts. I understand that Mr. Perrault is accompanying the minister for this presentation.
Mr. Saada: Bill C-20 is the result of concerns expressed by M.P.s from three of the four parties about the new names chosen for their ridings under the new electoral map.
Under the 2003 Representation Order proclaimed on August 25, both the boundaries and the names of many ridings were changed following the reports of the provincial electoral boundaries commissions. This followed a process of public hearings and parliamentary input under the Electoral Boundaries Readjustment Act.
Bill C-20 changes the name of 38 electoral districts contained in the new representation order. Apart from one addition that I shall describe in a moment, the bill is identical to Bill C-53 from the previous session. Bill C-53 was passed by the House of Commons last October with the consent of all parties and had received second reading and referral to this committee when Parliament was prorogued last November.
The government introduced Bill C-20 on February 23, 2004, at which time it received unanimous support for passage at all stages.
As with Bill C-53, the government made it clear that the legislation would only proceed with the consent of all parties in the other place. This was achieved in the case of both Bill C-53 and now, Bill C-20.
Bill C-20 is identical to its predecessor bill in all respects but one. It contains a coming-into-force clause, by virtue of which the riding name changes would take effect on September 1, 2004. This will accommodate concerns expressed by Elections Canada about their ability to implement the riding name changes at this time. As Mr. Kingsley indicated in his testimony before this committee, Elections Canada is now coping with several operational pressures because of the coming into force of Bill C-24 on January 1, 2004, the implementation of electoral redistribution and general election readiness preparations. This delayed coming-into-force date will give Elections Canada time to adjust to and implement the riding name changes while coping with these immediate pressures.
Of course, the government recognizes that the name of the riding is important to the members of Parliament and the people they represent. The proposed changes are intended to be reflective of geography, history and other identifying characteristics of the electoral districts in question. The key difficulty arises from the fact that the electoral boundaries and the names are determined by electoral boundary commissions at the same time. This means that the opportunity to comment on the proposed names of ridings has passed before the boundaries themselves are finally established.
It may be difficult, in some cases, to properly name the riding, taking into account its specific geographical and other features, until its boundaries have been completely defined. Bill C-20 responds to that concern, based on the advice of the members affected and the consensus of the parties.
Mr. Chairman, I would like to note that this bill is not the first of its kind. Parliament has intervened to change riding names several times in the past.
In fact, 57 riding name changes have been carried out, by four separate acts, since the 1996 representation order was proclaimed. This underscores the importance of riding names to members of the House of Commons.
Allow me to thank you for considering both bills at the same time. I would be happy to answer your questions.
The Chairman: Thank you, Minister Saada.
Senator Beaudoin: I would like to know at the outset whether you intend, Mr. Chair, to adopt this tonight because it seems to —
Some Hon. Senators: No.
The Chairman: No.
Senator Beaudoin: I want to be sure. This issue of changing the description is strange, in a way. There seems to be no strong principle as the basis of the argument to change the name of a circumscription. Why do we accept that in principle in our statutes?
Mr. Saada: We require a legal framework through which these names are given. We are faced with a number of contradictory constraints. First, the commissions that deal with the boundaries and the names are at arm's-length from any political party and from government. Therefore, they make the decision based on their judgment. On the other side, a number of members of Parliament are not necessarily satisfied with the names proposed by the commission.
Senator Beaudoin: We understand that.
Mr. Saada: The approach that my predecessor took at the time of Bill C-53, and I have continued the practice, was that we cannot indulge in riding name changes on a political basis. The only way of doing it on a rational basis, and which maintains the arm's-length spirit, was to determine consensus and unanimity among all political parties so that no single party could be accused of playing politics with the issue.
In the process, some changes were proposed by different parties and were not accepted for reasons that pertain to the geography or other valid consideration. Of course, in keeping with the spirit of my predecessor's view on this discussion, I had to decline, unfortunately, some requests from my own party to ensure that I did not flaw the process.
My riding is not here so I can feel free to talk about it and tell you why we sometimes feel the urge to request a change on a very sound basis. My riding is Brossard-La Prairie. There had been a first proposal by the commission to change the name by dropping La Prairie. We had an opportunity to explain why we should maintain the latter — it was the birthplace of the riding. There is historical value to the name because that was where the first train tracks were set in Canada and where the telegraph was implemented. The whole area used to be called La Prairie before the division. We were able to put these arguments before the commission, and the commission listened and decided. In my case, I was happy because the commission recognized the need.
Now, the process calls for parliamentary review. Parliament will review the proposals and make further recommendations.
Ultimately, the decision is in the hands of the commission. There are some legitimate reasons why members of Parliament from all parties still feel that something has not gone right and needs to be corrected. That is how the process took place.
Senator Beaudoin: They were not satisfied with the proposal of the commission?
Mr. Saada: Either the name changes did not correspond to the geography or were not adequate in regard to the concerns expressed by the local communities. Very often, they came with a mandate in favour of it from the communities.
Senator Beaudoin: What is the remedy in the act?
Mr. Saada: I would again emphasize that the only way this could be legitimate would be to put forward only the riding name changes agreed upon unanimously by the political parties. That is what Bill C-20 has produced.
Senator Beaudoin: That is the only remedy we have?
Mr. Saada: We have legislation. We could have gone with 38 different pieces of legislation but we grouped them under one umbrella. This umbrella had the acceptance of all political parties.
Senator Smith: Maybe you can comment on this. My figures show that the Conservatives sought the most changes. They requested changes for nine, roughly half of their ridings. Second is the Bloc, which asked for 11, being 30 per cent of their ridings. The Liberals asked for only nine, about six per cent of their ridings. The Alliance asked for 9, which is about 15 per cent. The NDP did not ask for any, but it did veto a couple. One member from Toronto urged me to solve this. I said, ``Look, you had an agreement. The process as developed required unanimity; if it were not unanimous, it would not happen.'' As I understand it, after first reading, this bill passed all stages in one day.
Mr. Saada: That is correct. One of the requests from the opposition parties was to make sure we did not go through the committee work again. They were afraid — and I am not questioning the intent. I am stating what they mentioned to me — that if it went back to committee, the majority would prevail and it would change the spirit of the agreement. You are quite correct. It went through this process with that in mind.
Senator Smith: If the Commons could see fit to go through all the stages in one day, I would think we could at least have an open mind on that subject.
Senator Andreychuk: The Commons does not have an open mind. They have a vested interest; these are their ridings and their constituencies. We are more neutral; that would be my point.
Again, I found this exercise to be unusual with respect to democratic reform. We are constantly adding names. Then we change the order of the names. I am preoccupied with getting people to a polling station to vote. As the names get longer and longer, the process becomes more complex. I know this is not just a Canadian problem; it is happening in other democracies.
There is a certain body of people, those who are elected and who want to be elected, who seem preoccupied with highlighting a particular area within a riding. They must think it is of some benefit to them. I would like to think they are doing it because of geography and to balance the regions. I am becoming increasingly skeptical about that. Should there not be some discussions looking at this again? We should have more simple names.
In Regina we do not change that much; our population is not going up. However, we have had name changes. The first thing I have to do, even as a member of Parliament, is figure out what riding I live in. I have to try to figure out what part of Regina I am in when the boundaries change and what the new name is. I sometimes think those steps are impediments to people on the day of the vote.
It is an interesting exercise. I am sure it sounds well to say I represent ``Brown—Smith—Jones—whatever,'' but I think it is a very strange exercise. I would hope the process would be neutral, but I am afraid it is based on vested interests.
Mr. Saada: Senator, if I may, I would be delighted to try to address your skepticism. You are referring to democratic reform and how people who are elected can best increase the representation of people in their own constituencies. This exercise is the outcome of just that.
I will not give you statistics for each riding name change, but to illustrate a point, I refer to the presentation I made before the commission on this issue. The four city councils involved had endorsed the proposal. Thirty-eight community organizations in the riding had endorsed the proposal. All the mayors since 1970 of the largest city in my riding endorsed the proposal. The Bloc Québécois and the Conservatives had endorsed my proposal. That is democracy at its best.
In my view, that is proof positive that it is a true representation of the communities.
Let me speculate here for a second. If you want to run for office in a riding and you are not in tune with the aspirations, needs and wants of a community, you are at a disadvantage. I do not know of anybody who would, just on his or her own inspiration, decide to ask for a name change if it is not in tune with what the community feels and wants. It would be suicidal.
In my view, it is not a matter of self-interest. It is a matter of giving yourself the best chance to be elected because you are the best person, or you try to portray yourself as the best person, to represent the community. That is what a candidate for Parliament should do. He or she should portray himself or herself as the best possible representative of the community.
This is my last point, Mr. Chairman — unfortunately, because this is a passionate and exciting debate and I truly believe in this — but the issue of boundary changes would not be conducive to getting people to vote. It is all a matter of balance. As you know, the way this process is designed, population is assessed by census, province by province. The average is determined. The law says that you can have a leeway of 25 per cent more or less, with some exceptions, in order to have, as far as possible, fair demographic representation. There are other factors to take into account — history, community of interest and so forth. The boundary changes are triggered by a concern for better representation.
As proponents of democratic reform and citizen engagement and empowerment, we must make these changes. If the changes trigger difficulties with people getting out to vote, then we should address how we invite people to vote. We should inform them. We should not fight against the representation issue that comes with boundary changes.
Senator Andreychuk: I will not go into boundary changes. I think there is more to that, but I am still rather skeptical about all of these name changes. I know branding is important. If there is a continuum of a name and a history, it gives people a level of comfort when voting. I made my case and you made your case. Thank you.
Senator Joyal: Three years ago, this committee produced a report containing some very specific recommendations about the approach that should be adopted for all these matters relating to changing riding names. Was this report drawn to your attention before you came before us with this bill?
Mr. Saada: No.
Senator Joyal: Did you see the comments made by the Chief Electoral Officer when the committee was studying this issue and made some recommendations in connection with the bill we were studying, which had to do mainly with the same type of name changes?
To give you some context, the Chief Electoral Officer made some very specific recommendations about the system that should be set up to replace repeated requests for name changes for each election and each census.
After the next election, a member of Parliament will be elected somewhere who will want to change the riding name as well, and so on. The Chief Electoral Officer developed a much stricter approach than the one used at the moment, which consists in merely convincing one's colleagues from the other political parties, who have no interests at odds with the member of Parliament requesting the change, and then proceeding by means of the legislative approach.
Mr. Saada: Could you send me a copy of these more rigorous criteria suggested by the Chief Electoral Officer?
Senator Joyal: I do not want to speak for him, but I remember that one of the things he suggested was to limit the number of words on the ballot. If it takes four lines to name a riding on a ballot, this could be a technical problem for the computer system. There were others as well.
We would certainly like to hear his evidence on this, because what you are describing to us today flows out of the electoral boundary redistribution process. This is an attempt to correct a decision made by the Electoral Boundaries Commission which apparently did not comply with the representations made by members of Parliament or individuals with an interest in the process for adopting a new electoral map.
You have determined the sequences quite well, but there is ``a process'' and ``a process.'' If we have to add another step to the implementation of new electoral boundaries, which would be to give members a final opportunity to present their request again, we might as well amend the act accordingly. The idea would be to ensure that this occurs naturally in the legislation, so that it is not always necessary to come back to Parliament to correct representations that would not have to be made before Parliament again if this additional step in the electoral boundary readjustment process were recognized.
It is a matter of knowing how this system works. I would refer you again to the report produced by our committee a few years ago as a result of the representations made by the Chief Electoral Officer, who is the same person then as now.
Mr. Saada: First of all, I will be pleased to read this report. While I would like to read the document to understand it and find out what it states in detail, I would like to mention two points: the first has to do with limiting the number of words in a riding name. Sometimes regional sensitivities are such that trying to limit the words in the name of the riding for administrative reasons amounts to an attack on the very identity of the riding, because one of its components is excluded. Let us take the example of Argenteuil—Mirabel. We are well aware of how strong the regional sensitivities are on both sides in this case. I would have some reservations about trying to have shorter names, in other words an administratively justifiable objective, if this had a negative impact on an extremely important local reality.
I will read the report more thoroughly to make sure I understood what is meant, but I would have some reservations about that argument. The other problematic matter is this. And I must say that I am completely open to any suggestions in this regard. The process that leads to the readjustment of electoral boundaries, name changes, and so on, provides, once the commission has made its initial evaluation, for public consultations leading to a second report. This report is tabled in Parliament.
Once that is done, parliamentarians have their say and the commission makes its final decision. As you know, the recommendations are implemented automatically by an order in council. If the final decision of the commission includes a change that has an impact on a riding, there is no way to appeal the decision.
Let us take the example of Brossard—La Prairie. Imagine that no change was suggested. We come to the final step in the process. The commission makes its decision and it becomes binding. However, in the commission's final decision, following various representations, my riding has been changed. I have no way to appeal the decision. If the name of the riding is changed because the boundaries are changed, there is nothing I can do. That is why we need a mechanism that allows for some flexibility.
Would that be a legislative mechanism such as this, or would it be a different mechanism? I tell you sincerely that I am quite open to all suggestions, but I do think that there is a problem that concerns members of Parliament generally. However, I do not have the solution to the problem for the time being. I know that it exists and I am open to any recommendations you may have.
Senator Joyal: The minister understands the problem well, and now we would like to correct the system to ensure that we do not have to deal with the legislation on a repetitive basis.
Senator Beaudoin: I have been looking at bills of this type for a long time. You say it is based on history. That is quite strange. What history? If, for example, it is the riding of Laurier—Macdonald—Mackenzie King, there is no problem. But some ridings have terrible names. That does not mean that they are not historical, but still, who makes the decision? Who decides about the historical component? This is important, and the arguments do not always stand up. Is there a system in place to deal with historical considerations? Because it seems to me that this is not our history.
Mr. Saada: I do not want to be misunderstood. I would just like to say that history was one of the factors that meant that there could be problems with names. To answer your question specifically, technically speaking, it is the commission that decides which names should be used and which should not.
We must understand the definition of history at the regional level. Communities are in the best position to know their history. People in a particular riding may say that a certain event happened there and that it is part of who they are. The event in question may not necessarily be in the history book or in the archives, but it is part of the local riding history. The people who live there are in the best position to know that and to make representations on it.
The commission takes this into consideration and decides whether or not to uphold the argument. The only way to oppose a decision one finds unsatisfactory is precisely the matter raised by Senator Joyal. I was very pleased that he raised the issue as to whether we should continue with this process or adopt a different one that would avoid situations such as these.
Senator Beaudoin: How would we do that?
Mr. Saada: I requested the cooperation of all those who would have to help me understand the other options to achieve this. Obviously, I may have others in mind that I am not prepared to discuss because we are still at the preliminary stage for the time being.
However, I do know that you have put your finger on a problem that we have also identified. By working together, we will find the best solution. The only solution we have right now is the legislative approach that we have taken. If there are others, I would like to hear the advantages and drawbacks of each one.
The Chairman: Mr. Saada, I would like to thank you and your officials for your appearance here this evening. It has been informative and helpful to our deliberations.
Honourable senators, we will meet tomorrow morning at 11:45 a.m. and we will be hearing from the Chief Electoral Officer, Mr. Kingsley. Senator Joyal, you have a point?
Senator Joyal: As a follow-up to the testimony of the minister and the upcoming testimony of the Chief Electoral Officer, would it be possible to get the clerk of our committee to revive the report that we published some years ago, on the process of amendment to the electoral act in relation to the riding changes?
The Chairman: Absolutely, an excellent suggestion.
Senator Joyal: Then we will have it in our hands when we hear from the Chief Electoral Officer.
The Chairman: Excellent suggestion. Thank you.
The committee adjourned.