Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 7 - Evidence, September 18, 2006 - Afternoon meeting
OTTAWA, Monday, September 18, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, met this day at 1:10 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
Senator Oliver: Honourable senators, I call this meeting of the Legal and Constitutional Affairs Committee to order. We are meeting today to continue our study of Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability. The bill is more commonly known as the federal accountability bill.
As senators, our witnesses and members of the public both here in the room and across Canada on television know, this bill reflects a central portion of the new government's agenda, and it is one of the most significant pieces of legislation brought before Parliament in many years. I know that this committee will give the bill the extensive, careful and detailed study that it deserves.
We have held almost 35 hours of meetings and have heard from 42 witnesses. This week we will continue with a series of hearings on various aspects of the bill, including ethics, accountability, conflict of interest, political financing, the parliamentary budget office, and access to information and privacy.
Our first witness is Ian Greene, who will help us consider issues relating to ethics and conflict of interest. Ian Greene has taught public policy and administration in York University's political science department since 1985. At York, he has been Chair of the University Senate in 2003 to 2004 and was Associate Dean of the Faculty of Arts from 1997 to 2000. He is the Coordinator of the graduate diploma in Justice System Administration and Democratic Administration. Before joining York he had worked in the Alberta Public Service and in various other capacities.
The committee would like to warmly welcome you. After you make your presentation, honourable senators would like to engage in a series of questions and answers.
Ian Greene, Professor, Political Science, York University, as an individual: Thank you very much, Senator Oliver. This is my third visit to a Senate committee over the past few years and it is a great honour to be invited again. I apologize for giving you my notes at the last minute. It has been a busy time at the university. I am head of a college with 5,000 students. We have just finished orientation, and we had an international conference last week and an alumni event yesterday. I hope that you will bear that in mind when you are looking at my notes.
It is a great pleasure to be here. We are all products of our own past experiences. My own background related to public sector ethics goes back to my four years working for the Alberta Public Service in the 1970s and 1980s. I learned through that experience that most public servants and elected officials are ethical, but I was concerned that occasional lapses, both amongst appointed and elected officials, would cast aspersions on all public officials. These lapses could have been prevented through clear rules and a better educative process.
When I joined York University in 1985, I became interested in the whole issue of conflict of interest because that was the time of the Sinclair Stevens scandal. At that time, I began to do research and publish in the area of public sector ethics. Today, my research agenda still includes public sector ethics as well as judicial behaviour and public administration in general.
I am the Director of York's new graduate program in Public Policy, Administration and Law. I am committed to better education for more accountability to prevent conflict of interest scandals and to promote higher ethical standards. I hope our new graduate program can make a contribution for mid-career public servants in that regard.
It is important to put the reforms that are mentioned in Bill C-2 into their political context. The current federal ethics regime has been a long time coming. For many years, I had been advocating clear conflict of interest rules and a conflict of interest commissioner at the federal level. I must admit until two or three years ago, I had not given much thought as to whether there should be different commissioners for the Senate and the House of Commons or whether it should be the same for both, but appearing before your committee three years ago helped me consider that subject more carefully.
The new regime that was put into place a few years ago was a major change and there were a number of bumps along the road, as there would be for any change of this type. One of the bumps, unfortunately, was when the Senate decided that it would cooperate with the new regime only it could have its own ethics officer and its own rules that were home-grown within the Senate. After some consideration, it seemed to me that it was a good idea because ethics regimes do not work from the top down. If it is home-grown and the rules are developed in-house, people buy into it, and it is more likely to be effective. Regardless of which party holds the majority in the Senate, I do not believe any legislation will get through either House that abolishes the separate ethics officer for the Senate. We must contend with that political reality.
The other reality is that when Paul Martin elected Dr. Bernard Shapiro as the first Ethics Commissioner, he briefly consulted, as the legislation required him to do, Stephen Harper, then the leader of the opposition. However, it was a pro forma consultation, not a real one, which annoyed Mr. Harper and the relationship between Dr. Shapiro and Mr. Harper started on the wrong foot. That was unfortunate for the creation of a new regime, but we have to anticipate these are the kinds of bumps along the road. The Conservative's platform to have one conflict of interest commissioner for each House, along with Order-in-Council appointments, stems from this conflict between Mr. Shapiro and Mr. Harper. Sometimes, we must make the best of a bad situation.
I have studied the Gomery commission report, I have written an article on it and I like most of the Gomery recommendations. Many of the recommendations found their way into the federal accountability act. I like the majority of the content of the federal accountability act; however, because the bill was drafted so quickly, there are parts that were not clearly thought out. One of those parts, I believe, is having just one conflict of interest commissioner for both the Senate and the House of Commons. That is not likely to work, even if it could get through this house, and I do not think it will. I do not believe it will be a good idea.
The independent ethics regimes have worked well in the provinces because the commissioners spend the majority of their time talking with elected members — in the case of the Senate, it is Mr. Fournier talking with senators — about the nature of ethics and conflict of interest, to develop a trust relationship to answer questions. My fear is that one conflict of interest commissioner would find it difficult to establish that level of trust. You obviously must have an official reporting to the commissioner dealing with the Senate. However, because that person would be part of a larger regime and not the Senate's own officer, it would be more difficult to establish trust and credibility.
Just thinking back to the days of Sinclair Stevens, if only he had talked to the Assistant Deputy Registrar General about the nature of conflict of interest, he might have avoided many of his troubles. He did not talk to this official because he was not a high-ranking official and he was too busy. The person who meets senators and discusses the rules and their personal situations has to be someone with credibility with the Senate. I believe the current system provides for that credibility, and I would be loathe to tamper with it because of an election promise that may not have been thought out clearly.
My second concern is the way the new conflict of interest commissioner would be chosen. The appointment of Mr. Shapiro rightfully annoyed Mr. Harper. Why not look to the experience in British Columbia and Alberta where the legislature has a broad consultative process and asks people to apply for the commission? Bob Clark, the former Commissioner from Alberta, said that almost 300 people applied for the position. What is wrong with that application process? Why not have some sort of process where, if you did have one conflict of interest commissioner, each House would have a review committee that could look at the applications and then make recommendations. Another suggestion is to develop a process whereby the two Houses choose this official together. In that way, it would not have to go to the Prime Minister. It seems to me that whoever is chosen through that process would have more credibility and it would alleviate the kinds of unfortunate situations that surrounded Dr. Shapiro's appointment.
My third concern is that the restrictions on who can be appointed to the position of conflict of interest commissioner unnecessarily restrict the pool of potential candidates. I have been writing and arguing for many years that former judges make excellent ethics commissioners. I am delighted that Bill C-2, in a sense, takes advantage my research, but it reads it a little bit too closely in that I did not say that only former judges would make good ethics commissioners. Former judges certainly do, and in the near future, the majority of ethics commissioners will likely be former judges. I have read the blues from this committee's meetings of the past few weeks and Coulter Osborne and H.A.D. Oliver pointed out the benefits of having a judge appointed to the position. Having past experience as a judge prepares the commissioner for the proper frame of mind and helps the commissioner to deal with difficult situations dispassionately and sensibly. That does not mean people without that sort of background cannot also be good ethics commissioners. It is up to the House of Commons and the Senate to choose this person. If there is one single ethics commissioner, why not leave the field open and leave it to your judgment?
Those are my basic comments. Maybe you are grateful for how brief they are, which is caused by the fact that it has been a busy time with the start of the university year.
The Chairman: Thank you very much. You call them basic comments, but they have raised so many questions among honourable senators that virtually every senator has questions.
I was interested in your suggestion to have a broader recruitment process such as used in Alberta and British Columbia. From what I have read and seen in public life, Canadians have never been afraid to let it be known they are interested in certain positions such as a judge or lieutenant governor. I think Canadians will continue to let it be known that they have an interest in some of these positions. Therefore, why do you recommend the Alberta or B.C. proposal?
Mr. Greene: Under the current proposal, it says the Governor-in-Council shall appoint a conflict of interest and ethics commissioner after consultation with the leader of every recognized party. That proposal basically means the Prime Minister will suggest someone who would be a good candidate and the Prime Minister will discuss it with the leaders of the other parties.
The Chairman: Is there a veto mechanism?
Mr. Greene: Nothing in the legislation says they have to agree, but the name is mentioned and brought into cabinet. It does not necessarily mean that all the candidates who might be good in this position come to the attention of the Prime Minister.
The other fear I have is that the credibility of the commissioner might be affected by the process. I have a great deal of respect for Dr. Shapiro. He is a brilliant man and has a great deal of integrity, but because of the process from the beginning, his reputation was tainted unnecessarily. It was not tainted by anything he did but as a result of the process.
Senator Joyal: We are grateful to you for sharing your experience and reflection on this issue. We had the benefit of your contribution before, and it proved helpful in the end. I thank you for that.
I want to come back to the point raised by our chairman. As you have identified in your presentation, the Ethics Commissioner of the House of Commons and the Ethics Officer for the Senate exercise the privileges of each House over the discipline of their members. On that basis, you will remember, we argued many years ago that the two Houses should have their own regime.
In the case of the ethics commissioner we have been called to study in this bill, the ethics commissioner will have to oversee the Governor-in-Council appointees, the ministers of the Crown and the full-time and part-time staff, which amounts to more than 3,500 persons, as we were told by previous witnesses.
I can understand to a point why the Prime Minister should have a direct say as provided in the proposed section 81 of the act. It states:
The Governor in Council shall, by commission under the Great Seal, appoint a Conflict of Interest and Ethics Commissioner after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and the House of Commons.
When the Ethics Officer was selected in the Senate, a vote was taken. The Leader of the Government at the time made a formal commitment that he would not come forward with a name that had not been approved by the representative of the opposition party. He made that commitment. When the name was put forward, there was already agreement.
I thought that approach was wise. It confirmed that all sides of the house must be comfortable with the name to have the openness, frankness and genuineness of members going to the Ethics Officer to disclose, discuss and obtain an interpretation or advice.
In the case of the commissioner for the Prime Minister, that is why there is confusion between the commissioner who oversees MPs and the commissioner who oversees public office-holders. Because those two positions have been merged into one, the question then becomes, ``Who decides?'' Therefore, the Prime Minister ends up deciding for the other part of the House.
One can always say that the majority will carry the day because the appointment must be approved by resolution. Of course, in a situation of a minority government, I understand that the Prime Minister seeks the support of one of the two or three other parties, depending on the outcome of the vote.
Your advice seems to takes into account more the situation whereby two positions have been merged into one. As you have properly said, ideally MPs should have the capacity to decide among themselves on one name with a consensus built between the representatives of parties. In that way, the independence and objectivity of a person would not be questioned at the first opportunity.
What happened in the House was a situation where, when the first problem arose, objectivity was questioned and comments were made. We had a witness this morning who told us that the worst thing one could do with ethics is to politicize it.
Mr. Greene: That is right.
Senator Joyal: Can you comment on the particular situation in which we have merged the position of ethics commissioner for a public office-holder and ethics commissioner for MPs?
Mr. Greene: There are two questions there. One is with respect to the merger, and the other is the way that the officer should be appointed.
Regardless of the appointment system set up, the person chosen as the conflict of interest commissioner in a merged system will have difficulty gaining credibility with the Senate. The Senate is smaller than the House of Commons. Senators will feel they had less input into the process and the person who is chosen is not really their man or woman. That situation is unfortunate because it will make the educational task of the commissioner more difficult.
We need an ethics regime that has the best chance of working as it was intended to work. I am convinced that a separate officer for the Senate, as you have now, is likely to work better than if you had a merged system.
There are some disadvantages we can talk about later with respect to two different officers providing the same kind of advice. That is not the question before us at this moment.
The second issue is the way the person is selected. Senators were wise to ensure there is agreement between the majority and the minority in terms of selecting the Ethics Officer for the Senate. That is important. Perhaps, if senators continue to have their own Ethics Officer, there might be ways that process could continue to be improved.
For example, open up to having a search committee that would include senators from both sides; not only inviting people to apply for the position, but searching for the best people and asking them to apply.
Senator Joyal: One argument at the time to support the conclusion that it would be preferable for each House to have its own ethics commissioner and officer was based on the constitutional duty of the two Houses and the need to remain independent to perform their duties and check on one another. What you gave us this afternoon is not the constitutional argument or the legal argument but the practical argument. You insist that where we should draw the lessons to advise on this bill is in the practice, which is essentially the accessibility of the commissioner or officer, and the capacity for any member to get in touch with them and develop a personal relationship.
You suggest that if a commissioner or officer has too many people to oversee, analyze and certify, the bureaucracy around the commissioner will do the overseeing and a personal relationship will not be developed through the years.
Of course, the Senate has a preoccupation that the person who will occupy that position will stay there for a while, because senators stay in their jobs for a while, so it would be easier to develop that trusting relationship. You come to us with the conclusion that besides the legal and constitutional argument, sound administrative practice would mean having someone with whom we can establish a direct relationship. In so doing, the number of people to be overseen or advised must be limited; otherwise there is no efficient capacity to achieve that result. You base that conclusion essentially on your experience at the provincial level.
Mr. Greene: It is based on my experience at the provincial level but also my study of public administration. Once the purview of any particular public official becomes too great, it is hard for them to do their job as effectively as they otherwise could, depending on the nature of the position.
You are right: I approach this issue from a practical perspective because I believe that the great majority of senators and elected officials are people with high integrity, and they deserve the greatest respect by Canadians. Because of a number of scandals and other situations in Canada over the past 20 years, the public trust in their leaders has been eroded and that is unfortunate. I want to do what I can to ensure that whatever ethics system is set up works as it is intended to work. I approach it from a practical perspective.
However, from a constitutional perspective, one important reason for having a Constitution is to promote democratic accountability. Instead of looking at the black letter of the Constitution or having arguments about constitutional principles, it might be good to go back to that basic principle of democratic accountability and how can the ethics regime for the Senate promote democratic accountability that has proved to Canadians that senators are not in conflict of interest positions, that they are observing the highest standards of ethical accountability?
From that broad constitutional perspective, it is better to have a Senate Ethics Officer rather than a unified position.
Senator Joyal: I want additional information about your third concern that we should widen the field of potential candidates and not restrict the position exclusively to people with ``legal experience.'' What other criteria would you like to see in that clause of the bill in terms of background?
Mr. Greene: I am not sure that university professors necessarily have the practical experience required for an important position like this. It might be good to exclude university professors; I am not sure.
Rather than put criteria into legislation that is rigid and hard to change, I would favour a search committee. For a unified position the search committee would be struck by the House of Commons and the Senate. If the positions remain separate then the Senate has a search committee, and the committee decides what the criteria should be.
If there was such a search committee, I recommend that persons appointed to the position have an understanding of public practical ethics. They should have an understanding of inquiry processes. This is what judges are good at. They need to have an understanding of that inquiry process. They need to have a practical understanding of impartiality and how to be impartial in difficult situations. They need to understand natural justice, Canada's political system and Canada's history.
I recommend that the search committee consider including those criteria.
The Chairman: That list is interesting and similar to some criteria that previous witnesses have given to the committee, so thank you.
Senator Comeau: You mentioned in your comments that the Sinclair Stevens scandal led you to be interested in the whole concept of ethics. I was surprised to note that you had not bothered to qualify that in fact Sinclair Stevens was exonerated of the allegations made against him.
Mr. Greene: That is not quite true. I read that judicial decision with a great deal of interest, and what happened is that in the Prime Minister's rules at the time — Prime Minister Mulroney's code for his cabinet ministers — there was no definition of conflict of interest. That was a major shortcoming.
By the way, one thing I like about this legislation is that there is a good definition of conflict of interest. There was a lot of thought put into the definition so I like that.
However, there was no definition of conflict of interest so the judge said he had to use the common definition of conflict of interest. Sinclair Stevens said that was unfair because he should have had a chance to know that definition in advance, because he did not see it until the report came out. Mr. Stevens said he could have prepared his testimony in a different way, and that is true. That definition was unfair with regard to Sinclair Stevens but it did not change any of the facts as they were found by Mr. Justice Parker. That case is still a landmark in terms of understanding the development of conflict of interest regimes in Canada.
Senator Comeau: Are you suggesting that Sinclair Stevens was in the wrong?
Mr. Greene: No: I am saying that the report is a must read for everyone who wants to understand the development of conflict of interest rules in Canada. I am saying that we need a clear definition of conflict of interest. Thank goodness this legislation has it.
Senator Comeau: He is not exonerated but he is half exonerated?
Mr. Greene: That is the wrong term. He was in an unfortunate situation because there was no definition. On the other hand, if he had gone to see the Assistant Deputy Register General he could have avoided many of the troubles he got into.
Senator Comeau: I will not push it any further then.
You suggest one ethics commissioner for the House, one for the Senate and one for others, based on the fact that if we have our own ethics commissioner we would buy into the program much more readily than if we share one with others.
Mr. Greene: Not only would you buy in, but you would have someone to turn to for advice more quickly than would otherwise be the case. As I said before, someone would have clout because this person would be chosen by the Senate and would be an independent officer of the Senate. This person would have more clout than probably an official that would be appointed by this new conflict of interest commissioner to handle the Senate. Therefore the advice is likely to be taken more seriously. The senators are more likely to trust that advice than would otherwise be the case. That is my thinking.
Senator Comeau: That is your theory. However, I am not sure I buy into it. As a matter of fact, I might buy into the concept that this person has a great deal more experience. Administering various ethics regimes would give this person a vast globe of experience from which to draw, especially if I were to seek this person's advice as to whether I am walking on thin ice.
Mr. Greene: That is true, if we could reduce both the House of Commons and the Senate to 50 people. In that situation it could work. However, we have 308 members of Parliament.
Senator Comeau: This suggests there are all kinds of ethics rules being broken all over the place and that this person is so busy administering to ethics failures that somehow this person does not have time to see us. I am not sure that is the case.
Mr. Greene: If you look at the annual report of either of the ethics commissioners for Ontario or British Columbia, you will see they do not spend most of their time looking into allegations of broken rules because, as I say, most elected members are quite ethical.
Ethics is not an easy field. When you read any set of conflict of interest rules, there is always a grey area. You have to wonder: If I did this, would I be violating the rules?
When I was a public servant, every single day I had ethics issues that I had to answer. It would have been wonderful to have had an ethics counsellor to go to for advice from time to time. If you do not have someone who is readily available, sometimes you make the wrong decision and that is embarrassing.
Senator Comeau: You are suggesting that this person is so busy that he or she would not have time for us.
Mr. Greene: That is right.
Senator Comeau: I come back to my point, which suggests there is so much conflict going on out there.
Mr. Greene: No. Most of this person's role involves meeting with people to clarify the grey issues and to educate with regard to the nature of the rules in the first place. Some of the questions are difficult, for example: What do I need to disclose? What should I not disclose? What are the assets I need to divest myself of if I am a cabinet minister? These are very complex issues. These are the kinds of things with which ethics commissioners deal. Very rarely do they have to investigate allegations of wrongdoing.
Senator Comeau: I am getting your point. This person would be so busy he would not have time for us.
Mr. Greene: To help you with the good things, yes.
Senator Comeau: You suggested in your opening comments that there should be clearer rules in the proposed bill. Our witness this morning said the rules were too clear, that we should go back to guidelines or principles. I suppose we are getting two different pieces of advice.
Mr. Greene: It is possible that I was not clear in my opening remarks.
In the 1970s and 1980s, when I was a public servant in Alberta, I felt that the ethics rules for public servants were not clear. This led to a number of problems. That is how I became interested in studying ethics as a whole both for elected and appointed officials.
The definition of conflict of interest is pretty clear in the draft legislation. You will never get a perfect set of rules, but I am content with this proposed legislation. It is the other points about which I am concerned.
Whether the rules are in legislation or whether there is a code like the Senate currently has, there are pros and cons to both approaches. To begin with, I was sceptical about putting the rules into legislation. I like the codes because of their flexibility, but they are in the legislation of both Ontario and British Columbia and have not had the harmful consequences that I feared.
Senator Comeau: You note that Mr. Shapiro had been criticized. Are you suggesting that that criticism was unwarranted and undeserved?
Mr. Greene: I would use the word unfortunate. When you try to get a new ethics regime in place and you try to get it to work well, these kinds of things are bumps along the road that you do not need.
Senator Comeau: The motivation for the criticism was unforeseen.
Mr. Greene: I do not think that is relevant. I am sorry that those incidents happened. They caused Canadians who were supportive of the ethics regime to think, ``It is just another ploy to convince us that politicians are ethical when we all know they are crooks.'' That is unfortunate because I have the greatest respect for honourable senators and MPs.
Senator Zimmer: Thank you, professor, for appearing before us today. You give us pause to reflect in another area.
Senator Campbell: A chief coroner could amply serve the position of ethics commissioner, but that is beside the point.
Senator Milne: Or ex-mayor.
Senator Campbell: I want to talk to you about Sinclair Stevens. You spoke about the allegations. I think this is a good case in point. It happened in 1985, and I think it was in 2005, if I am not mistaken, that the final judgment came out. Therefore, for 20 years someone was labouring under accusations. At the end of the day, as you point out, you can take a look at virtually any legal decision and say, ``Oh well, yeah, but...'' At the end of the day, you are guilty or not guilty, and that is the bottom line.
I do not think it is as simple as Mr. Stevens speaking to a commissioner or an ethics officer. If it were that simple, then the ethics commissioner should be a priest who can absolve us of our sins and away we go.
How do we avoid the issue of, ``Larry Campbell did this,'' and I cannot answer it? For the next 20 years, I go through this long process. Will an ethics commissioner change that process?
Mr. Greene: Yes.
Senator Campbell: I have not admitted to any offences today, unlike other honourable senators.
Mr. Greene: As a short aside, I believe 10 years ago you and I were on the Rafe Mair show on the same day. It is unfair to be accused of things, whether by a journalist or anyone else, and having those allegations hang over you for many years. Fortunately, he was not too hard on me, but I was a bit worried.
One of the reasons I have supported the development of independent conflict of interest commissioners or ethics commissioners in all jurisdictions in Canada is because of what happened to Sinclair Stevens. The media should never have had to look into conflict of interest allegations, following a great deal of research, and then put it out there when it may or may not have been true. This was the case because there was no definition of conflict of interest. As a result, it took 20 years to settle it all. It should never have happened.
Unfortunately, we in Canada, and every other country, hardly ever make advances in terms of improving our parliamentary procedures, unless there is some kind of scandal or some kind of big mistake. We all owe a lot to Sinclair Stevens for what he has been through because his experience led to vast improvements.
Around the same time as the Sinclair Stevens scandal, there were similar things going on in Ontario. A number of cabinet ministers were accused of conflict of interest. It was all through the media. Several legislative inquiries were going on at the same time. John Black Aird, the former Lieutenant-Governor of Ontario, was asked to make recommendations. He was the first to say we have to stop this sort of thing from happening. We need an independent ethics commissioner chosen by the legislature, and we need clear rules with a clear definition of conflict of interest. The commissioner is someone who has an educative function, who can also very quickly look into allegations, if there are any, and decide quickly whether they have any basis in fact.
This will prevent people from being unfairly accused and having their reputations ruined for years and year. It is a quick and fair way of resolving the issues, and in the provinces it has worked extremely well.
Senator Milne: This morning we were talking about clause 44(5) of this bill, which seems to be a gag order. It basically imposes a gag order on a senator or an MP who receives information from the public that a public office- holder may have breached the act. It is very extensive. It says, ``...while considering whether to bring that information to the attention of the Commissioner...'' and the gag order continues right until the commissioner issues a report.
This proposal looks to be absolute. We cannot even talk about the information with the staff in our offices, who are the ones who would help us look into a matter. I am concerned about how that gag order affects the ability of senators and members of the House of Commons to speak freely even in their respective chambers, which is a fundamental part of our duties.
Mr. Greene: That subclause seems to me to be an attempt to prevent having people's names unfairly dragged through the mud when all the facts are not known. I have not really considered whether this is the best way of doing it.
Senator Milne: This potential gag order would force a member of the House of Commons or a senator to immediately go public rather than going to the commissioner.
Mr. Greene: It might backfire and have that effect. It would be interesting to talk to the drafters about where this subclause came from. I do not recall seeing a section like this in the provincial legislation with which I am familiar. I am not sure what the purpose of putting it in here was. I think I know what it was intended to accomplish, but there may be a better way.
I would defer to the judgment of provincial ethics commissioners who have dealt with these situations. In their reports they encourage members not to divulge these things because it makes the system work better. They are critical of people who circumvent that informal procedure. It seems to work fairly well. I do not know if you need to have this in legislation.
Senator Milne: My second question is about the conflict of interest act as it is outlined in Bill C-2. Please turn to page 22. Clauses 38 and 39 of that proposed act deal with the granting of waivers and exemptions from post- employment rules. If the commissioner himself or herself decides to waive or reduce the amount of time that post- employment restrictions will apply to someone, then clause 39 applies. There are a number of criteria that go along with it, including the fact that the decision must be published in the public register maintained by the commissioner. On the other hand, if the commissioner himself gives an outright waiver or exemption, not just a reduction of the time, then clause 38 applies and, strangely enough, that does not have to be made public.
A shortening of the period of time must be posted publicly, but if you completely remove the period of time — an outright waiver — it does not have to be made public. I do not know where that came from. It may be due to the fact that originally a minister had this power and it was not reviewable.
Mr. Greene: Clause 38 refers to people covered under clauses 35 and 37, whereas clause 39 refers to people covered in clause 36. I think that is the difference. Clause 39 is stricter because it refers to all former reporting public office- holders except former ministers of the Crown.
Senator Milne: Now I am thoroughly confused. Perhaps you can give me a reason that one should be made public and not the other.
Mr. Greene: Off the top of my head, I cannot think of any. I think the same standards should apply and they should be open and public.
For some of the Order-in-Council appointees you may not need to have as many provisions because they are not in the public eye as much. However, for former cabinet ministers it would seem to me that the process has to be extremely transparent in order to have the trust of the public.
Senator Stratton: We seem to be hitting an area with which you are not entirely familiar. Perhaps you could take a look at it and get back to us on it.
Mr. Greene: I would appreciate having that opportunity.
The Chairman: You could send your note to the clerk of the committee.
Mr. Greene: Yes, I will.
Senator Day: Thank you, Professor Greene, for being here. When we were talking about qualifications for people to serve as ethics commissioners and about people moving from one profession to another to do these jobs, I thought about one of our former colleagues who was president of your university for a period of time, Lorna Marsden.
Mr. Greene: She is still the president.
Senator Day: Please pass along our regards to our friend and former senator.
I do not have many questions because you have given us a succinct presentation on some quite interesting points. I will, however, ask you about points that flow from the evidence of previous witnesses. You have talked about certain jurisdictions. You said that Ontario and Alberta or British Columbia have put into statute what was previously in a code. The issue that arose earlier is that in a code you typically have principles at the front end that help with interpretation. That creates a positive atmosphere as opposed to a ``must not do this'' or a ``must not do that'' atmosphere. Is it inappropriate to have principles of interpretation when you go to a statute?
Mr. Greene: Absolutely not. I believe that in both Ontario and British Columbia the legislation begins with some broad principles. In fact, that is the way that both the statute or the code should begin, because where there is a conflict between private and public interest, the public interest comes first. The purpose of the code is to promote the highest ethical behaviour, to promote the public interest in the country. If you start with those basic broad principles, everything in the code — and in this legislation it gets more detailed as you go through it — follows from those basic principles.
Senator Day: You are aware that the principles that were previously in the code for public office-holders are no longer in this particular legislation.
Mr. Greene: That is right. I was disappointed. Those principles have a long history, going back to the time of Brian Mulroney and before. They have evolved over the years and they were clearly thought out. It would be a shame to lose them.
Senator Day: I would like to talk about, for want of a better word, the buy-in, respect, acceptance of the process and the regime. You indicated that you are deeply involved in one way in expanding the public respect and understanding for ethics, which is through education. I appreciate the work that you are doing; it is extremely important.
We heard this morning that by putting into statute something that was a code that had more flexibility has a counter-productive effect in fact it creates some expectations and a lack of respect for the process. Do you buy into that theory? Have you done any thinking along those lines?
Mr. Greene: I have; in fact, I used to subscribe to that particular outlook. However, the legislation in Ontario and British Columbia does not seem to have had the harmful consequences that I thought it would.
I still like the idea of a code because it is more flexible; the provincial ethics commissioners can point out deficiencies and get them corrected more quickly. On the other hand, my students really like the idea of a legislated code because, for them, it carries more clout. They can more easily find it and it is more transparent.
Senator Day: Are they lawyers?
Mr. Greene: No, they are budding lawyers.
Senator Day: They are law students. That might explain why they like it in legislation as opposed to something less rigid.
Mr. Greene: I think either approach can work, depending on the good will of the people who are there to try to make it work. It depends on whether the MPs and senators feel more comfortable with a code or with legislation.
Senator Day: You commented that you had some reservations with respect to putting the code into legislation. You mentioned your reservation with respect to public acceptance and a buy-in of the process. Was that respect for the process?
Mr. Greene: No legislation is perfect and soon enough you find areas that you want to try to correct. You know how difficult it is to get legislation through the Senate and House of Commons; there are other, more pressing priorities, so it may be difficult to make the necessary amendments. Therefore, some glaring loopholes that were not anticipated might remain on the books for many years. You can change the code much more quickly, so that is one of my concerns.
Senator Day: If the code is put into legislation, will it not encourage public cynicism and a belief that there is more corruption and less ethical behaviour? Does that concern you?
Mr. Greene: That is not a big concern of mine, no.
Senator Day: That was a major concern of a previous witness.
Mr. Greene: Yes, I know Mr. Saint-Martin quite well and we have had discussions about this. Maybe he is right.
Senator Day: And maybe you are right. The final question I have is with respect to recommendation of three ethics commissioners. You say three, so there would be one for cabinet ministers, one for —
Mr. Greene: No, I suggest one commissioner for cabinet members and MPs, one for the Senate and one for the Order-in-Council appointments.
Senator Day: In my mind, I have been grouping that third one, dealing with cabinet ministers and other Order-in- Council people.
Mr. Greene: There is such an overlap between what cabinet ministers do and their role as members of Parliament, it would be wrong to have —
Senator Day: I appreciate that; I am glad I asked for that clarification; that is helpful.
Senator Stratton: When we talk about principles being enshrined in Bill C-2, as we have today, I am sure that you are aware that there are principles in the Senate set of ethics and the House of Commons set of ethics. Then you put a set of principles in Bill C-2. The problem becomes, who wins? We are defined, as Senator Day has pointed out, under the courts currently as public office-holders. So, you put a set of principles in the preamble of Bill C-2 and you have a set of principles under the House of Commons set of ethics and you have a set of principles under the Senate set of ethics. Which one governs?
Mr. Greene: Would not it be nice if they were all the same?
Senator Stratton: Yes, it would be, but that becomes the problem, because right now, they are not. As you know, the best way to govern is by each House establishing its own set of principles, and you agree with that.
Mr. Greene: This legislation will just apply to public office-holders as defined.
Senator Stratton: Under the courts, we are defined as public office-holders. That is where the confusion begins. However, I have been assured — and I am telling the members here — that when the government carries out its accountability action plan, that set of principles will be brought forward for public office-holders.
We will have two ministers here as witnesses that can verify that, hopefully.
Senator Milne: Professor Greene, when you are looking at proposed sections 38 and 39, and sending some of your thoughts to the clerk of the committee, perhaps you would also take a look at proposed section 37 of the proposed conflict of interest act. The proposed section is sort of slopping over into the lobbyists' portion of this bill. It has some ramifications here with the conflict of interest, the commissioner. The famous five-year ban on lobbying for former public office-holders is set out in the amendments to the Lobbyists Registration Act, proposed sections 10.11(3) and 10.12, on page 75 and 76 of this bill, so perhaps you want to note those pages. They authorize the commissioner of lobbying to exempt individuals from the ban on certain conditions. Proposed section 37 of the proposed conflict of interest act sets out provisions governing lobbying by former public office-holders within the post-employment period of two years for ministers and ministers of state, or one year for all other public office-holders after they leave office. Both those periods are less than the five years under the proposed lobbying act.
Equally confusing, under proposed section 38, the conflict of interest commissioner receives the authority to grant exemptions to the provision. There is an interconnection here that is quite confusing for everybody.
If you can take a look at the amendments to the Lobbyists Registration Act, it might prevent us from having to call the professor back when we talk about the lobbying segment of this bill.
Mr. Greene: I would be happy to do that. There are different provisions with regard to part-time workers where there are exemptions that are not reviewable. I will look at that whole package and am pleased that I have more time to put my thoughts together on that.
Senator Day: Since you are looking at that part of the bill, there is a reference to a reporting public office-holder, a public office-holder, and then under proposed section 10.11 of the Lobbyists Registration Act on page 75, there is a senior public office-holder.
Senator Stratton: We have been defined as a local public office-holder.
Senator Day: That was Mr. Hudson's point. If we need to clarify and amend, this is the time to do it, as opposed to afterwards when some individual must go through 20 years of the judicial process only to have the decision turn on something like this: the difference between reporting public office-holder and senior public office-holder. Now is the time to clarify these things. So if you could help us with that, it would be wonderful.
Mr. Greene: Overall, the simpler the piece of legislation, the more the same rules apply to everyone and the further ahead we are.
Senator Day: I agree.
Senator Joyal: Mr. Chairman, I wanted to come back to the appointment of the commissioner who has the responsibility to review the minister. The bill provides that the prime minister consult with the leader of the opposition. The prime minister is responsible for his or her appointments to cabinet. I can understand that the prime minister needs to consult with the leader of the opposition. However, in terms of the principle of responsibility, since the prime minister is ultimately responsible for his or her cabinet, I am not so sure that the prime minister would need the support of the leader of the opposition to appoint that person. For the public office-holder under Governor-General-in- Council, it is the decision of the executive when the government decides to recommend to the Governor General the appointment of Mr. X or Ms. X; the government is exercising its prerogative. It is different for a parliamentarian because parliamentarians should be master of their own House. This principle is fundamental to a sound committee between the two Houses of Parliament.
When we deal with the ethics of the executive or persons who are totally dependent on the prerogative of the executive to appoint, as I mentioned in those two examples of ministers and public office-holders under the Governor- General-in-Council appointees, I am not sure we need to go beyond that. As a parliamentarian, as much as I would not accept that the prime minister decide who will be the Ethics Officer or commissioner of the MPs and senators — and I agree with you that it should be done with a level of concurrence, and you have outlined a process — when we discuss the ethics of prime ministerial responsibility, a distinction is to be made in sound public administration principles of the executive role separate from the legislative role: a two-chamber Parliament.
Mr. Greene: That is an interesting point. You make a good point that if the Ethics Officer was simply an officer of Parliament and looked at MPs, but not at cabinet ministers in the role as cabinet ministers, then it is a purely parliamentary officer. If the cabinet is included, and it must be, it necessitates a different appointment process as being an Order-in-Council appointment process through the prime minister.
Parliament is looking right now at better systems for appointing judges — there is a certain similarity there, I think — and senators: I did not know if that would come up today or not. What would be wrong with a process that had an ethics commissioner for the House of Commons and the cabinet with a search committee that was driven by the House of Commons? The committee could make recommendations and provide a short list to the prime minister who could then make a selection, consult with the leaders of the other parties and then make an appointment. First of all, the process is educative; it would put the ethics regime on a higher scale. Second, the process would bring forward better candidates than might otherwise be found. Third, this person might have more credibility because of the involvement of the members in the selection.
Senator Joyal: To remain in the same framework of discussion, when the present Senate Ethics Officer performs his duties, he enjoys the same privileges as senators; he is protected. His freedom of speech and freedom of intervention is protected from court review. When the present commissioner, on the other side, exercises responsibility, the commissioner deals with the members of Parliament and is protected by the privilege of the members of Parliament because the commissioner exercises the responsibility of parliamentarians to discipline their members. When the same commissioner oversees the public office-holder appointed under Governor-General-in-Council, the commissioner is not exercising the privileges of Parliament. That is clear. The privileges are enjoyed by the members and the institution, not by Governor General appointees.
The level of autonomy of the institution of the commissioner confuses me when everything is merged under the same head. Then the dynamic of the position is triggered. Numbers carry the day. There is no doubt that if I had to oversee 3,500 appointees, versus 100 senators, I know where I would go. I would go after the person who takes decisions on a daily basis, not persons for whom the Constitution requests that they give their advice. I am not requested to decide; I am requested to give my advice to the Senate. My commission from the Governor General is to give my advice and consent, not to give contracts or allocate monies within programs and so forth. That is not my day-to-day decision, essentially. My day-to-day decision is at another level.
When you confuse the different institutional cultures within the same person, you have to conclude that one element will carry the other. In my perception, the way I have seen the situation evolve in the House of Commons over the years, you have to draw your own conclusion based on the experience of allegation and so forth. The dynamics at the end will totally serve the objective we want to attain with this bill — nobody is against accountability and everybody is for ethics — but how do we devise a system to achieve our objectives. By trying to merge everything under the same head, I am not sure there is a streamlining of interpretation, rules or that sort of thing. The system does not work naively into that context at all.
Mr. Greene: You have expressed several reasons why the two systems should not be merged and I agree with you; it would be counter-productive. It would interfere with the new ethics regime here in the Senate that is just beginning to grow up and make itself productive. I think it would throw a monkey wrench into that. That would be most unfortunate because it would convince Canadians that there are no ethics in politics, which is a frightening thought. Perhaps the government could accept a relatively minor amendment to keep the two separate regimes. There are many good aspects in the bill so why let it get hung up on this issue? I hope that the government will accept the advice of the committee on that point.
Senator Milne: Another point has arisen that causes me to think of some definitions in the bill. On page 13 of the bill, clause 23 of the proposed conflict of interest act, under ``Disclosure of gifts,'' states that a public office-holder or a member of his or her family cannot accept ``$200 from any one source other than relatives and friends in a 12-month period. `` On page 7, paragraph 11(2)(b) also uses the term ``friend,'' but the word ``friend'' is so wishy-washy in its meaning. Does it mean a close friend, a near friend, a next door neighbour or someone you might see every 10 years who is still a friend? Should such a term be used in legislation?
Mr. Greene: I am trying to remember how the bill defines ``friend'' in the first part.
Senator Milne: The bill does not define ``friend.'' That amorphous concept surrounds the word.
Mr. Greene: I am not certain that one could define ``friend'' successfully. Making such a definition would require advice from an ethics commissioner or an ethics officer.
Each year in Ontario, British Columbia, Alberta and other jurisdictions, the offices of commissioners produce an annual report outlining the common questions received by the commissioners and how, without divulging any confidentiality, the questions have been answered. That might include a discussion of what it means to be a friend and how close you have to be to be considered a friend.
Senator Milne: We might not want to list our friends.
Senator Joyal: I would suggest that a friend is one whose name appears on your Christmas card list.
Mr. Greene: The whole point is that we live in a rule-of-law regime wherein public officials cannot show favouritism and must treat everyone as equals. There is always a temptation to show favouritism to ones' friends, and many people who are cynical about politics think that this happens regularly.
Senator Milne: They might be political friends or personal friends.
Mr. Greene: That is exactly right. Most politicians are grateful to have a set of rules that allows them to behave ethically because most politicians want to behave ethically.
The Chairman: This has been most interesting, and we appreciate your responses, Mr. Greene.
Our next witness, honourable senators, is Mr. Duff Conacher, a member of the board of directors of Democracy Watch and chairman of the organization's Government Ethics Coalition and Money in Politics Coalition.
Mr. Conacher is the founder of Democracy Watch, a body advocating for democratic reform, government accountability and corporate responsibility. He is well-known as the author of a number of popular books and as a commentator on public affairs.
Mr. Conacher, the committee welcomes you to our deliberations. You have the floor.
Duff Conacher, Chairperson, Government Ethics Coalition and the Money in Politics Coalition: Thank you very much, both to the committee and to Senator Oliver, for the introduction and for the invitation to appear today on this very important piece of legislation, Bill C-2.
I will focus today on the gaps that Democracy Watch sees in the bill, specifically the 21 promised measures that have not been included in the bill but were promised by the Conservative Party during the election campaign. Unfortunately, these measures were left out. The platform pledged by the Conservative Party — to pass an accountability act containing more than 50 measures — was aimed at very key areas of ethics, lobbying, money in politics, cabinet appointments, government contracting, whistle-blower protection, access to information, and budgeting and auditing. Unfortunately, when the bill came out on April 21, of the 52 promised measures were missing. These key promises have been broken in ways that are not only disturbing; in some cases they also weaken what currently exists.
You have heard from the existing Ethics Commissioner and the former Ethics Counsellor on some of the missing rules that will not be included in the conflict of interest act as it is proposed, which is changing the cabinet and senior public official, public office-holder code into a law. They highlighted a couple of the rules; I would like to highlight a couple of others that are being taken out of that code.
One of the key rules under the principles section requires public office-holders to act with honesty. This is the only general measure that requires senior politicians, their staff and senior public servants to be truthful with the public and with the media. In taking the Conflict of Interest and Post-Employment Code and turning it into an act, the Conservatives are proposing to remove this rule, along with four others. It is disturbing to see this dishonest act because the promise was to take the existing code and turn it into law. It is dishonest to claim, as Treasury Board Minister John Baird has done, that he is taking the existing code and turning it into a law, when in fact the Conservatives are cutting out these five key rules, including the rule that requires honesty.
This is a key issue for Canadians, as was shown in the last election and as has been shown in every poll in the past decade: the lack of ability to hold parties accountable for promises made during elections, and the lack of ability to essentially have a process of complaint and investigation and, if deemed warranted, a penalty for being dishonest with the public, whether one is a cabinet minister or a public official.
Democracy Watch believes that if this rule is not put back into the conflict of interest act section of Bill C-2, MPs, in their roles as MPs, will be required to act with honesty — although the current Ethics Commissioner has refused to enforce that rule even though it is a clear rule in the code for MPs — and those more powerful than the MPs, the cabinet ministers, will not be required to be honest. This key area is one of the 21 promises that has been left out, and broken, with Bill C-2 as it is now.
Another key concern is that a loophole was introduced into this code for public office-holders by Paul Martin on his first day as Prime Minister. He redefined the term ``private interest'' for the purpose of the code and put in a rule that allows cabinet ministers and senior officials to be involved in matters with which they have a conflict of interest as long as the matter is of general application.
This is a giant loophole because almost everything that ministers do is of general application. For example, there is not a Royal Bank act; there is a Bank Act. There is not an insurance company's act that is specific to one company; there is a general Insurance Companies Act. This new definition of private interest, which is currently in the code and will be put into the conflict of interest act, means that it is almost impossible for a cabinet minister to be in a conflict of interest, even if they are dealing with a matter in which they have a direct financial interest, because their interest is defined as non-existent for the purposes of conflict of interest as long as they are dealing with a matter of general application. All laws are of general application, as are most policies, and ministers are not supposed to be involved in contracting. Again, 99 per cent of what cabinet ministers do, it will be legal to be in a conflict of interest while doing it if this loophole is maintained.
Other measures are missing from the act. According to the Conservatives' promise, the public was supposed to be allowed to file complaints with the Ethics Commissioner directly. The bill requires members of the public to have an MP or senator file a complaint on their behalf. That is, I believe, a violation of the public's Charter rights because they have to find a partisan politician to file a complaint and they may be non-partisan themselves, but it is also a general violation of the public's rights as employers of everyone in the government. The public should have the right to file a complaint directly and not have to find an employee to file a complaint against another one of their employees. It will turn every complaint into a partisan complaint. This loophole needs to be closed in order to have a more effective ethics enforcement system.
The penalties for violating the conflict of interest act should be increased. The Conservatives promised to give the commissioner the power to fine violators but only established a maximum $500 fine, which is meaningless to any cabinet minister earning $200,000-plus each year.
Secret, unethical lobbying will still be legal because the Conservatives broke their election promise to require ministers and senior government officials to record their contacts with lobbyists. Therefore, it will continue to be legal for some lobbyists to lobby, to not have to register, especially corporate lobbyists in for-profit corporations, because of existing loopholes in the law.
Many ministerial staffs will still be allowed to become lobbyists too soon after they leave their position because the ban on becoming a lobbyist for five years does not cover all staff and senior officials. There are far too many exemptions.
In the appointments area, the federal accountability act does not require cabinet to create the public appointments commission. It only allows cabinet to do so. As a result, it is likely that the commission will not be created, or if it is, it will soon be allowed to lie dormant or to be wound up and will not have to be maintained under the law at all, since Bill C-2 only says the cabinet ``may'' establish a public appointments commission, not that it ``shall'' establish and maintain a public appointments commission. Therefore, in the future there will still be no guarantee of an effective check on the power of the Prime Minister and cabinet to appoint about 3,000 key government and law enforcement positions.
Government institutions will be allowed to keep secret information that the public has a clear right to know because the Conservatives did not include eight promised measures in the changes to the Access to Information Act made in Bill C-2. Although there is another process going on to amend the Access to Information Act, Democracy Watch considers it a broken promise because the promise was to include those eight measures in Bill C-2. The other process is just beginning and is, as a result, about six months behind Bill C-2. There is no guarantee that it will wrap up in time to have open government law strengthened.
Whistle-blowers who are not public servants will not be effectively protected from retaliation because the public is not effectively protected under the federal accountability act. Bill C-2 does not even protect all public servant whistle- blowers. There should be a blanket protection in the bill for anyone who blows the whistle, no matter what their relationship with the government, inside or outside. However, there is no such blanket rule.
The identities of politicians and government officials who are guilty of wrongdoing could often be kept secret because in the bill there are not the measures needed to keep the Conservatives' promise to require the prompt public disclosure of information revealed by whistle-blowers.
A maximum reward of $2,000 for whistle-blowers was included in the first version of Bill C-2. That provision of the bill was totally taken out by the House of Commons. As a result, that is another broken election promise, as is the promise to establish monetary rewards for whistle-blowers.
There will also be no guarantee of truth-in-government budgeting because the independent parliamentary budget office that was promised to be created is not independent. Cabinet will be able to dismiss the parliamentary budget officer at any time, which will mean that this individual will not have the security of tenure to do their job, which is to point out the truth in the government budgeting projections. Therefore, we need an independent office and the bill needs to be amended to make that officer independent.
As well, there will be no guarantee of a procurement auditor, in the same way there is no guarantee of a public appointments commission, because, as with the commission, Bill C-2 only allows but does not require cabinet to appoint the promised auditor. Again, as with the commission, I believe that even if the auditor is created, because cabinet will not be required to maintain that office but will have discretion, we will soon see that office disappear.
Senators, these 21 promised areas will not be covered in the bill.
Many may think it is strange that Democracy Watch is appearing before an unelected body to request democratic reforms that an elected body has passed. We are asking you today to stand up for voter rights. Polls over the past 10 years have shown a high level of voter concern for all of these problems and the voters want change. Change was promised: 52 promises were made but only 31 have been kept. We think it is entirely legitimate for the Senate, even though it is an unelected body, to stand up for voters' rights, send the bill back to the House with the 21 measures in it and have the Conservative MPs decide whether they will vote to keep their promises or vote to break them and have that recorded. It has not been recorded throughout the deliberations on Bill C-2.
Democracy Watch's position is that the Senate does not have legitimacy in making significant other changes to the bill and certainly not in terms of weakening the bill. We believe that all of the other measures have proven to be needed by several scandals over the past few decades. We believe that the Senate, as opposed to weakening Bill C-2, should be focusing instead on strengthening its own conflict of interest code, especially the enforcement, given that the Senate Ethics Officer is in a position that is as bad as that of the former federal ethics counsellor was in terms of lacking independence and power. The Senate should be focusing on cleaning itself up as opposed to weakening a bill that has been passed by the House and that the public has demanded for quite some time.
I leave it at that, and I welcome your questions on any of the 21 areas. You should have before you a report on the 140 flaws in the proposed legislation. It is a long-term process to get all of these 140 flaws corrected in the federal government's accountability system, but it is needed because we need to have a system in every organization in Canada, especially those involved in governing. We need a system that requires everyone in the organization to act honestly, ethically, openly, representatively and without waste. We need these systems to be tight with strong rules, strong enforcement, high penalties and fully independent and empowered enforcement agencies. We need that not because everyone involved in the federal government or any organization intends to violate rules but because some people will try. History has proven that.
In line with the sayings that ``people do what you inspect, not what you expect,'' and ``when all is said and done, much more is said than done,'' we need an enforcement system that includes key elements. We need to close the loopholes and have strong enforcement and high penalties in these areas so that we will have an effective federal government accountability system and an effective and efficient federal government. That is what at stake today: No matter what issue or problem the federal government is dealing with, without these federal accountability systems, the federal government will not deal with problems effectively or efficiently.
The Chairman: Mr. Conacher, all I can say is, ``Wow.'' We have had more than 45 witnesses appear before this committee in our study of Bill C-2, and Bill C-2 is a big, complicated act. It has many sections, many statutes and many different areas — whistle-blowing, lobbying, conflict of interest — and you are the only witness before us who has commented on them all, so I say, ``Wow.''
A number of senators want to put questions to you on the various points that you have made, and I will start with Senator Comeau.
Senator Comeau: Mr. Conacher, what exactly is Democracy Watch?
Mr. Conacher: Democracy Watch is an organization that has existed since 1993. We have a board of three people and an advisory committee made up of four others. We all came together along with some others — there has been some turnover in the board — in 1993, to establish the organization. It is a non-profit, non-partisan organization and we work on the issues of government accountability and corporate responsibility in Canada, mainly at the federal level. Sometimes we intervene at the provincial and even municipal level.
Senator Comeau: My understanding is your website says that you seek funds from the public. Who provides your funding?
Mr. Conacher: Yes, we are supported by citizens from across Canada. As you know, I am here in my role as chair of the Government Ethics Coalition and Money in Politics Coalition, and we formally were part of the steering committee of the Open Government Canada Coalition. The platforms of those coalitions are reflected in what we are pushing for, and many of the groups in those coalitions also provide support to Democracy Watch.
Senator Comeau: I am glad you brought that up because we will not pursue that at the moment. You raise funds from the public. Are these tax-receipted funds?
Mr. Conacher: No. It is a non-profit organization, but not a charity.
Senator Comeau: Do you publish any financial statements to the public which provides the funds to you?
Mr. Conacher: Yes, we do, to all our members.
Senator Comeau: Do you have a financial statement on your website?
Mr. Conacher: No, we send them out to our members.
Senator Comeau: You send them out strictly to those who provide funding to you. If I were to provide $5 to your group, would you send me the audited financial statement?
Mr. Conacher: We do not always have our statements audited. We have a bookkeeper, but the statements are not always audited.
Senator Comeau: I understand that you were registered as a lobbyist some years ago.
Mr. Conacher: Yes.
Senator Comeau: I went through a huge number of departments that you lobbied. I note that you are no longer registered as a lobbyist. Does that mean you no longer lobby?
Mr. Conacher: I have been waiting for three years for a ruling on the lobbyist's code of conduct from the registrar's office. That code of conduct states that lobbyists must adhere with all relevant laws, including the Lobbyists Registration Act.
Senator Comeau: Is there any problem with that?
Mr. Conacher: If I could just finish, the code says not just adhere with the laws, but also the spirit of the laws. Technically, I do not have to register as a lobbyist because of the design of the current law. It has enormous loopholes, but I was registered out of good faith. However, when the law was last changed, the Liberal government decided not close the loopholes, so I appeared before the Senate committee and announced that I would deregister and would not register again because the law is not effective. It is not a Lobbyist Registration Act. It is a some-of-the-lobbyists-have- to-register act, and most of the lobbyists who do not have to register are corporate lobbyists. It is not a level playing field, and if the government decides to level the playing field, then I will be required to register, but right now, I am not.
Senator Comeau: Through a loophole, you are lobbying at the present time without being registered as a lobbyist.
Mr. Conacher: Yes, I am waiting for the ruling as to what the lobbyist code means.
Senator Comeau: You are telling us that we should respect the spirit of the law. In other words, ``Do as I tell you to do, but I will not do it myself, because I found a loophole.''
Mr. Conacher: We identified the loophole in 1994, and the last time I appeared before this committee was in 2003, I believe. How long does the government have to take before it levels the playing field?
Senator Comeau: Therefore, it is fair game for you to not to register as a lobbyist.
Mr. Conacher: I am not required to. I do not have to register as a lobbyist under the law. I do not spend 20 per cent or more of my time lobbying, and that is the threshold. If the Conservatives had kept their promise to require ministers and senior public officials to do the registering, then every time I contacted someone, it would be noted and it would be registered. That is the way the system should work and the way it should have been set up in the first place. With this bill, yet again, they are leaving it open. Literally, a corporation could have 100 lobbyists, each lobbying 19.9 per cent of their time, which means one day a week, and none of them would have to register. Secret lobbying is still legal, and it will be after this law. It is not my fault.
Senator Comeau: Let me refer to a couple of comments you recently made. You accused the government of breaking its promise to close the loopholes that allow ministers to vote on matters connected with their business interests. Are you holding by that comment?
Mr. Conacher: I am, very much so.
Senator Comeau: What about clause 6(2) on page 6 of the proposed conflict of interest act, which specifically says the following:
No minister of the Crown, minister of state or parliamentary secretary shall, in his or her capacity as a member of the Senate or the House of Commons, debate or vote on a question that would place him or her in a conflict of interest.
Mr. Conacher: As I mentioned in my presentation, if you look at the definition under clause 2 of the proposed conflict of interest act, it states that:
``private interest'' does not include an interest in a decision or matter
(a) that is of general application;
Ninety-nine per cent of what they do is of general application. Unless you remove that definition of private interest, they do not care what clause 6(2) says — they will never be in a conflict of interest.
Tony Clement owns shares in a pharmaceutical drug company. As far as I know, he may have sold them over the summer, but no announcement has been made. The company is widely held, but 25 per cent of its shares —
Senator Stratton: I own shares in the Royal Bank of Canada, and it is widely held.
Mr. Conacher: Yes, but you are not a cabinet minister.
Senator Stratton: What is the difference?
Mr. Conacher: The power that he has to make policy and regulations. Everything he deals with, except contracts, which he should not be involved with because that is what Public Works is supposed to be doing, is a matter of general application. There is no law that applies to one company, usually. They are almost always general application.
This loophole was introduced by Paul Martin and it undermines the entire act. Private interest does not include an interest in a decision or matter that is of general application, and 99 per cent of what they do is of general application.
Yes, clause 6(2) is a great measure, but it is meaningless 99 per cent of the time.
Senator Comeau: Do you want the specific prohibition to appear within the act itself rather than through the code?
Mr. Conacher: The act is taking the code, turning it into law and retaining a huge loophole. How can a cabinet minister who deals with the pharmaceutical drug industry at the same time own 25 per cent of a pharmaceutical drug company? That is not a conflict of interest regime that is in any way effective.
Senator Comeau: You accused the government of breaking its promise to publish all government public opinion research within six months of the completion of the project, where in fact the FAA only requires some government institutions to publish such research.
I will read the first few sentences of clause 180 of the FAA beginning with proposed section 15.1 of the Library and Archives of Canada Act:
Every department, as defined in section 2 of the Financial Administration Act, shall, within six months after the completion of any data collection done for the purposes of public opinion research...send to the Librarian and Archivist the written report....
Mr. Conacher: You are looking at clause 180 of the bill?
Senator Comeau: On page 131.
Mr. Conacher: Only some institutions are required to file a copy of research conducted by an outside company under that clause.
Senator Comeau: It says ``every department.''
Mr. Conacher: If the research is conducted by an outside company, only some institutions are required to do so.
Senator Comeau: In the bill, ``every department'' does not mean every department, according to you.
Mr. Conacher: It means every department, but not when they have had the research conducted by an outside company. It is only internal.
The Chairman: Where does the bill say that?
Senator Comeau: The proposed section refers to ``any data collection done for the purposes of public opinion.'' I do not see it.
Mr. Conacher: If you look at the definition of ``department'' in section 2 of the Financial Administration Act, you will see that it does not cover all government institutions. It does not cover Crown corporations, officers of Parliament, foundations and organizations that spend taxpayer money or perform public functions.
Senator Comeau: Quite a few foundations are beyond the grasp of the Auditor General as it stands right now.
Mr. Conacher: Yes.
The promise was ``to ensure all government and public opinion research.'' They are defining government as department, and I define government as government, according to traditional definitions. It does not just include departments. That is why I am saying it is a promise partially kept.
Senator Comeau: Let me come back to your website. You responded to me a few minutes ago by saying that you do not issue tax receipts. However, you do have a link to the Democracy Education Network and are affiliated with that network.
Mr. Conacher: Yes.
Senator Comeau: Do they issue charitable receipts?
Mr. Conacher: Yes.
Senator Comeau: Does some of this funding go back to Democracy Watch?
Mr. Conacher: No. The Democracy Education Network and Democracy Watch have some joint projects and research.
Senator Comeau: Who appoints the board and advisors of Democracy Watch?
Mr. Conacher: We started with a board. As we had turnover, the existing board members —
Senator Comeau: Do you have a membership that appoints a new board?
Mr. Conacher: No, we do not.
Senator Comeau: You are self-appointed.
Mr. Conacher: Yes.
Senator Comeau: As a result of a loophole, you are able to lobby even though you are not registered to do so, and you are preaching to a group of people that we should be squeaky clean.
Mr. Conacher: I am suggesting to clean up the system. As I said, we went through three processes of amending the Lobbyists Registration Act with the Liberals and each time pointed out the exact same loophole. We are at the fourth process with the Conservatives, and the loophole has been left again, this time breaking a specific election promise to make the system effective and end secret lobbying.
Senator Comeau: You are very specifically admitting to me today that you are in fact lobbying.
Mr. Conacher: That is right, but we are not required to register. Secret lobbying is legal.
Senator Comeau: You are saying that this bill will allow you to continue lobbying on behalf of clients without having to register.
Mr. Conacher: That is right, as it will continue to allow a corporation to have 100, 1,000 or 10,000 people lobbying. As long as they lobby one day a week, they never have to register.
Senator Comeau: You are only lobbying one day a week, are you?
Mr. Conacher: Yes.
Senator Comeau: You are able to get through the loophole this way.
Mr. Conacher: That is right. However, for a non-profit corporation like Democracy Watch, if I had a second person lobbying, we have to pretend we are one person. Let us say we each lobby one day a week. We would have to pretend that we are one person, which means we are lobbying two days a week and we would have to register and both be listed.
Under this bill and ever since the Lobbyists Registration Act was created in the late 1980s, a corporation can have 100 lobbyists lobbying one day a week each, and they are all treated separately. Each one of them must lobby more than one day a week before they have to be registered.
However, for a non-profit corporation, a citizen organization, they combine themselves together in a legal fiction, pretend they are one person and add up all the time they are lobbying. For this fictional person, if it adds up to more than one day a week, then they must register.
It is not a level playing field between citizen organizations and for-profit corporations. The loophole is much greater for for-profit organizations. It is perverse in any case. Why would one want to allow secret lobbying? If you are unpaid, you do not have to register. That is an enormous loophole.
Corporations can use retired executives who are technically unpaid because they are just on a pension. They would have these people lobby all the people they got to know while in government, and they never have to register.
The promise should have been kept to require ministers and senior public officials to disclose who is communicating with them and trying to influence them.
Senator Comeau: Are you suggesting that if a private citizen meets a minister and lobbies to have a new wharf for fishing vessels, as an example, this person should be registered as a lobbyist?
Mr. Conacher: Yes, if they are connected with any type of organization, paid or unpaid.
Senator Comeau: You suggested that you would view someone who is retired from a corporation who would do this as being a lobbyist and therefore they should be registered as a lobbyist?
Mr. Conacher: They should be registered as a lobbyist if they are doing it on behalf of the organization. If they are not, then they are a voter and they are only expressing concerns as a voter. Amazingly, this is the fourth review of this bill in a dozen years and this giant loophole will once again be left open unless you correct it.
Senator Zimmer: Though you do not make much reference to it, I want to touch on the areas of political donations and financing. In point three of your presentation, 20 steps toward a modern working democracy, steps to empower Canadians as voters, you indicate where to extend the principle of ``one person, one vote'' to spending during election campaigns. I also want to ask you questions about the financial limits of donations, but can you expand on your philosophy on that principle?
Mr. Conacher: On election day we, and any democracy, uphold the principle of one person, one vote as a fundamental tenet. No one person can have more influence than any other on election day in terms of the government that is formed. Much of Democracy Watch's work every day is aimed at upholding that principle. Therefore no one person should be allowed to use any other means of influence between elections to have more influence over government than any other.
Now, how far can you go with that? Well, people know people: there are relationships. You cannot ever break down all those relationships and if someone calls who knows you, you are more likely to take the call than from someone you do not know.
However, with finance you certainly can. You can figure out the donation that an average Canadian could make as a maximum and then that should be the limit. Bill C-2 I think comes to that point with its $1,000 limit.
Senator Zimmer: Do you have any principles as far as what you think the limit should be either personally or corporately, and what would those limits be?
Mr. Conacher: Democracy Watch's position and the position of the Money in Politics Coalition is that the $1,000 limit is correct and the ban on organizational donations is also the correct position to take. We do not allow corporations, unions and other organizations to vote, for good democratic reasons, mainly because of the worry of whether they are representative. Therefore if they are allowed to use money then as a means of influence, who makes the decision? I have never seen any evidence of any corporate or union executive checking explicitly with shareholders or members before deciding how much to give one party or another. Because of those difficulties of organizational democracy internally, I do not think you want to do anything other than the ban.
We do not know that there are any problems right now with the new political finance limits because we have to test them first, and the Liberal leadership campaign is not an accurate test or reflection at all of what this bill is trying to do. If there are problems then the way to solve them democratically is to increase the public subsidies, because those subsidies, such as the per-vote subsidies, currently exist. If you have supportive voters then you get more funds. It is a democratic system.
Senator Zimmer: Would you ever approve of public subsidy being 100 per cent?
Mr. Conacher: No: Democracy Watch's position is that the public subsidy should be reduced from the level it is now, mainly because the figure was pulled out of the air to come up with an amount that would replace almost exactly the amount that the Liberals received at the time in corporate donations. Reduce the subsidy and have the $1,000 limit. Then every party would receive a base of funding, but the party that prospers would be the one that has the support of the most voters. The $1,000 limit with the tax deduction you receive is, in effect, about a $500 donation. That donation is an affordable level when the average salary in Canada is $30,000 to $35,000; $1,000 is what an average family can afford. The current individual limit now is $5,200, with the inflation increase.
Senator Zimmer: It is $5,400.
Mr. Conacher: Yes: That is not an affordable amount for an average Canadian. Therefore if you want to uphold the principle of one person, one vote, your limits must ensure that an average voter can actually be at the maximum.
Senator Zimmer: Have you done any analysis as far as what parties can spend during an election based on a one person, one member vote? Have you done any evaluation on how much parties can spend during an election?
Mr. Conacher: In 2005, the Conservative Party raised as much in donations as the Liberals raised each year in 2001 to 2003. The Conservatives have shown that under the current $5,000 limit — their average donation is much less than that, actually — they can still raise as much as was raised under the old system.
Lots of people have shown a lot of concern about this and they are using the leadership race as an example of the problems. The leadership race is not the same as party financing. I agree with how it was expressed by Eddie Goldenberg, which is that they made a mistake and did not deal with providing some sort of base to leadership candidates. The way to provide that is — again, a democratic method — to have the limits but have a matching system. A party leadership campaign candidate raises a certain amount from individuals, and then it is matched in public financing.
That is a democratic way to solve that problem and would not be such a concern with the current Liberal leadership race if we had a matching system in place, as they do in the U.S.
Senator Zimmer: You allow regular donations throughout the year but if a leadership race occurs in that year, you then match donations, which would allow them to do that.
Mr. Conacher: Already you can donate again to a leadership candidate the same amount as the limit, and that will be retained. However, a donation to a leadership candidate would actually be matched with public financing. If a leadership candidate raises $50,000, that $50,000 would be matched with public financing.
Senator Zimmer: Public financing.
Mr. Conacher: Exactly: Again, it just recognizes some realities. However, a prior discussion must take place before people start pointing out problems with the new limits. That discussion is, what amount is needed to run a riding campaign, a nomination race campaign, a national election campaign and a leadership campaign? Until we figure out what amount is needed to reach people in an effective way, we do not know what the target is, what the problem is. With a partially completed Liberal leadership race, we do not have any idea. It is possible this fall that one or two of the candidates will reach the limit of $3 million. Because they have not reached this limit over the summer is not really an indication, because in summer everyone traditionally has a difficult time raising money.
Senator Zimmer: One thing we are struggling with now is what are the limits. Recently I went through some research that indicated levels around the world and in Canada. There were a variety of levels: $8,000, $10,000, $15,000. Pierre Côté was here two weeks ago and he suggested $15,000 for a corporation and $5,000 for individuals. You are right: a lot of these numbers are pulled out of the air and there really is no relationship between openness, transparency and accountability to the limits. They are not related. You can be the same at all different levels. You really need to figure out exactly what those levels should be, and a variety of people have different suggestions. Therefore we are struggling with that and that is why we are questioning these witnesses for their input.
Mr. Conacher: Jean Moisan proposed having corporations, unions and other organizations donate up to a certain amount and it goes into a pool that is then distributed proportionally based on the results of an election. That is what we have at the federal level. It is called taxes. These corporations, unions and other organizations donate to the government, whether they want to or not — and then the money is distributed proportionally at $1.75 per vote obtained. I believe it is better to have the $1.75 because, again, I do not belief that organizational executives make representative decisions when they decide who to give to if they do not represent their members or their shareholders. They should not be given the power to use the members' and shareholders' money in a way that is non-representative. Also, the practice violates the one person, one vote principle, which is fundamental to any democracy.
Senator Milne: Mr. Conacher, you have been before this committee several times before, but I have your testimony before the House of Commons committee. You were asked whether you were related to the Conacher hockey players. You replied that, yes, your grandfather, your uncle and your great uncle, depending on which one, were all hockey players. Your great uncle broke my uncle's collarbone once upon a time, he ran into him so hard. It was not playing hockey but touch football. It seems to me the family is still putting me on edge.
Mr. Conacher: I apologize, very belatedly.
Senator Milne: I do not believe in retroactive apologies.
I often wonder why you bother appearing before the Senate. You asked to be heard here today. You started out by saying that the Prime Minister and the President of the Treasury Board, John Baird, have not acted with honesty. Right off the top you insulted the Prime Minister and the President of the Treasury Board. You then turned around and said to senators that we have no legitimacy to change the legislation because we are unelected.
It really bothers me when you come before us wanting us to change something but saying that we have no legitimacy to do so. Whether you like it or not, this is the way the political system works in Canada. It is the way it was set up by the Fathers of Confederation.
How long did your appearance before the House of Commons committee last?
Mr. Conacher: It was about 45 minutes, with another panellist.
Senator Milne: With another panellist.
Mr. Conacher: Half of that time.
Senator Milne: It was 45 minutes in total, with the questions as well. You have a page and a half here of testimony, if that.
Mr. Conacher: It was pretty evenly split.
Senator Milne: So, your presentation before them was probably about five minutes.
Mr. Conacher: The presentation, yes, and then probably 15 more minutes of questions.
Senator Milne: So you are here for one and a half hours, though. Does that make us a little more legitimate?
Mr. Conacher: Legitimate, yes, in terms of standing up for voters' rights.
As I made the point earlier, to go further and make significant changes or weaken the bill when it has been passed by the House, is not something that the Senate should be getting into. However, some people would say it is unusual that I even appear.
Senator Milne: It is not unusual. You come here fairly often.
Mr. Conacher: Not that often, actually. In terms of this particular case, voters have waited a long time. There have been many promises that have not been fulfilled. Many problems have been revealed over the past several decades. This is a historic opportunity.
The current ruling party made very specific promises during the election in the area of accountability, yet 21 of them have not been kept. This is a time when the Senate should be stepping in to ensure that those promises are kept. It is legitimate in that role but not in terms of weakening the bill.
Senator Milne: There are 21 different issues out of your 140 that you think we have some legitimacy on; is that right?
Mr. Conacher: No, there are 21 issues in terms of broken promises. It is out of the 52 that were promised by the Conservatives.
I do not think I am alone in this issue of questioning the Senate as an unelected body and its relationship with the House of Commons. I know you are dealing with that through a separate process. In this case, with such clear promises having been made about a major issue during the election, and with so many of them clearly broken, this is an opportunity for the Senate to stand up for voters' rights and the public interest.
Senator Milne: Mr. Conacher, speaking of legitimacy, you say you have deregistered yourself as a lobbyist because you do not spend 20 per cent of your time lobbying. Do you account publicly for how you spend your time? How do we have any way of knowing whether you spend more than 20 per cent of your time on lobbying?
Mr. Conacher: That is part of the current, flawed system, which is why the promise to end secret lobbying by requiring senior politicians and public officials to disclose who is lobbying them should have been kept.
Senator Milne: And perhaps heads of corporations or the head of your Democracy Watch should be accounting for the amount of time you spend lobbying, too, sir.
Mr. Conacher: You would not have to do that if you —
Senator Milne: If you were forced to register.
Mr. Conacher: Yes, if you reverse the onus. With no threshold of time, if I contacted or communicated in any way with a minister as someone connected to or representing an organization trying to influence a decision, or if I contacted ministerial staff at the senior decision-making levels, there would have to be a line drawn within the civil service. They would then register the communication and I would be registered as a lobbyist and subject to the Lobbyists' Code of Conduct.
Senator Milne: This may be an amendment that the Conservative Party might want to bring in to this bill.
Could I ask you one further question about something which appears on page 4 of your 20-page presentation? You talk about putting back in the conflict of interest act section of the federal accountability act, Bill C-2, the key rule that requires public officers to ``act with honesty.'' You say, ``because it is the only general measure that requires senior politicians, their staff, and senior public servants be truthful with the public and the media...'' You note that the rule is in subsection 3(1) of the current Conflict of Interest and Post-employment Code for Public Office Holders but it is omitted from Bill C-2.
What you are saying in effect is that you would like to go to a values-based system rather than a rules-based system. Bill C-2 is very definitely a rules-based system.
Mr. Conacher: The current code is a rules-based system as well. It is not a move from one to the other. It is a move from a rules-based system with a certain number of rules to a new rules-based system missing five of the existing rules; that is all it is. There are not ``values'' and ``rules.'' There are some called ``principles''; but if you look up the definition of ``rule'' in the Canadian Oxford Dictionary, you will see that it is defined as a ``principle.'' The words are synonymous. There are general principles and specific rules in the code now. If Bill C-2 passes there will be general principles and specific rules. Only five of the general principles are missing, including the one requiring honesty.
Senator Milne: Would you list the other four, please?
Mr. Conacher: The current Ethics Commissioner and former ethics counsellor highlighted the general rule that requires arranging private affairs. Once again, you need to take out that definition of ``private interest'' in a manner that will prevent real, potential or apparent conflicts of interest from arising, and requires resolving all conflicts of interest in favour of the public interest. The rule that requires making decisions with regard to the merits of each case we are not too concerned about because it is difficult to enforce. The third rule that prohibits use of government property for anything other than officially approved activity is in the current code at subsection 3(9), but it will be eliminated. The fourth is a specific rule in the current code that requires public office-holders to take care to avoid being placed or have the appearance of being placed under an obligation to any organization, any person or organization that might profit from special consideration on the part of the public office-holder. That is a specific rule, which is worded generally. It is not in the general principle section but it is obviously a general rule.
Thus, I share the concern of the current Ethics Commissioner and former ethics counsellor that these general rules are important because you need to have some of these general things required in all cases. You want to watch out for appearance of conflict of interest and have that as an actual standard. Of course, you want to have honesty in government. That is not ensured at all.
Senator Milne: Mr. Conacher, have you looked at the usage of the word ``friend'' in this bill? This morning, I was asking one of our witnesses about the use of that word in clause 23 on page 13 and in clause 11(2)(b) on page 7. These clauses talk about gifts or advantages and use what I consider an amorphous term, ``friend.'' Clause 23 states, in part, ``reporting public office holder or a member of his or her family'' with respect to accepting gifts from any source other than relatives and friends.
There are so many definitions of ``friend.'' It is such a personal term. People self-define friends. Senator Stratton spoke this morning of political friends, personal friends, close friends and someone you see maybe once every 10 years.
What meaning do you think the word ``friend'' has in this bill, and do you think the use of the word has any place in this bill?
Mr. Conacher: Not without a definition.
Senator Milne: And there is no definition.
Mr. Conacher: No. I agree.
The Chairman: Senator Milne asked you what I consider to be a significant question, and you did not answer it. You mention that you lobby but that you do not register as a lobbyist. She asked how we are to account for your time, but you did not answer the question. Do you have a daytimer? Do you keep computer records? Do you collate your lobbying time weekly or monthly? How do you keep track of your time?
Mr. Conacher: For an organizational lobbyist, an estimate is made over a six-month period.
The Chairman: How do you keep track of your time in lobbying?
Mr. Conacher: I know when I am communicating because I have both a daytimer and computer records of calls and emails, because any form of communication is covered.
The Chairman: How often do you collate?
Mr. Conacher: Over the six-month period, I keep track of it.
The Chairman: It is possible, therefore, that in one week you may be lobbying for three days and the next week not lobbying at all, since you do not do it on a weekly basis?
Mr. Conacher: That is correct.
The Chairman: Are there some weeks that you lobby for three days?
Mr. Conacher: No.
The Chairman: Are there some weeks that you lobby for two and a half days?
Mr. Conacher: That would be very rare, too.
The Chairman: However, it has occurred?
Mr. Conacher: Has it occurred? Two and a half days full-time, no, I would doubt that.
The Chairman: Could you check your records and send a record to the clerk?
Mr. Conacher: Yes. Again, that is the flaw in the system. If you require, as was promised in the election, senior ministers, ministerial staff and public office-holders to be disclosing themselves, you know what is happening and who is contacting whom, and anyone contacting anyone for any length of time would be a lobbyist and therefore covered by the Lobbyists' Code of Conduct. Not only is secret lobbying currently illegal; unethical lobbying is illegal as well. If you are not registered as a lobbyist — and you have to be paid and cross the 20 per cent threshold to do so when you are in an organization — then you are also not covered by the Lobbyists' Code of Conduct and as such you can lobby in unethical ways.
Senator Day: Mr. Conacher, where in the regulations will I find an average of less than 20 per cent over six months for a not-for-profit organization?
Mr. Conacher: The phrase used is ``significant period of time,'' I believe, and ``significant'' has been defined by the lobbyist registrar to mean 20 per cent. In a non-profit organization, again, you have to create that legal fiction of being one person if you are a team, each lobbying part of their time. In a corporation you do not; you can have 1,000 people lobbying one day a week and many others lobbying unpaid, and none of them has to be registered. The 20 per cent threshold is the commonality between for-profit corporations and other organizations.
Senator Day: You have us at a bit of a disadvantage here, or perhaps we have put ourselves into it, because we have not delved into the lobbying aspects of this bill yet in any way. We will deal with that as a subject matter later.
Mr. Conacher: If you look at the registrar's testimony before the House in the spring, you will find his statement that the law is not enforced and it never has been.
Senator Day: We will be better prepared on that issue and we may have you come back if you want to speak to that issue when we get into it.
It is unfortunate that we got your 20-page document as you started to speak. It would have been helpful to have had an opportunity to review it in some detail, to give us an opportunity to ask more penetrating questions. I read in your report that you will outline 140 flaws respecting Bill C-2. I was listening to you and reading at the same time. I heard the 13 points you went over, but I cannot find the 140 flaws enunciated.
Are there 140 flaws outlined in this 20-page document?
Mr. Conacher: Yes, starting on page 3 and going right through to the last page.
Senator Day: If I add those up, there will be 140?
Mr. Conacher: That is correct, subsections 3(a) to 3(w).
Senator Day: I will undertake to read those. I appreciate you giving us that in that detail.
Mr. Conacher: I could say that it was my pleasure, but it actually was not much of a pleasure trying to dissect this complicated and complex omnibus bill.
Senator Day: It is complex, which is why we are going through it in stages, dealing with different subject matters, to try to keep ourselves organized.
Does Democracy Watch have an equivalent U.S. group?
Mr. Conacher: There are too many groups to name in the U.S. that work on these issues, some specifically on government ethics, some specifically on money in politics, but also some that work on a wide variety. Common Cause would be the closest equivalent.
Senator Day: Do you get into issues such as which system is better, the Republican system or the Westminster parliamentary system?
Mr. Conacher: Given general legislative gridlock on those grander issues, we have not really tackled them because there have been enough issues where there have been windows of opportunity for change.
Senator Day: Do you make any statement as to which is more democratic, to have a cabinet minister in Canada or a secretary of state in the U.S. appointed or elected?
Mr. Conacher: No, not in the overall grand issue of how we constitute our cabinets in the two countries. If we had a long discussion on the appointment process, I may then be able to come to a conclusion as to which is more democratic.
Senator Day: Perhaps we could talk about the appointment process versus elections. In general elections nowadays, 50 to 60 per cent of eligible voters vote and a candidate can be elected by 35 per cent of the voters. Between 17 and 20 per cent of eligible voters choose a government. Is that democratic? What can we do to make that better? Should there be mandatory voting?
Mr. Conacher: I do not think that mandatory voting is the way to go. At the federal level, we need the ability to refuse your ballot, as you can in Ontario, that is, the ability to say, ``There is not a candidate I support in my riding,'' for whatever reason.
Senator Day: So none of the above?
Mr. Conacher: Yes. You can do that now by spoiling your ballot or just not showing up, but if you spoil your ballot, no one knows why. Most people assume you do not know how to mark an X in a circle, which is not a very complimentary thing to have assumed about you. In Ontario, you can refuse your ballot. Sometimes people spoil their ballot because not all parties run in all ridings, but those people have no outlet now. Having that measure of refusing your ballot would be a step forward in the electoral process.
Senator Day: Do you think about or discuss runoff elections and the top two, so you have a 50 per cent-plus-one winner?
Mr. Conacher: Yes: That whole area of proportionality and trying to make the legislator more representative is a difficult task without having some downside. Some systems want to have lists that would be appointed; therefore, there goes the accountability to a voter in a constituency. Instead, there would be accountability to the executive of the party, which is not necessarily a democratic step forward.
Most proposals for proportionality say they are worried about small parties so they propose a threshold. Most advocates right now say if you look at the seat totals versus proportion of vote, about 15 to 20 per cent of people's votes are wasted, which is the term they use.
If the threshold was 5 per cent, and your party did not get over 5 per cent, the party would not get a seat. Three small parties could each win 4.9 per cent of the vote and not get a seat. Yet 4.9 per cent times 3 is 14.7 per cent, so 15 per cent of the votes are wasted again.
We are not really looking at it as a key problem with the government. We think that the forces in place generally mean that even if a party wins, they must compromise in some ways due to the forces of the opposition parties, the media, public concern and the electoral system currently. We think the more pressing problem is to have an effective system that ensures that everyone in the government is effectively required to act honestly, ethically, openly, representatively and to prevent waste.
Senator Day: If you had all those rules, do you also need elections for all these positions?
Mr. Conacher: Yes, I think so, in terms of determining the mandate of parties.
Senator Day: You can determine the mandate by the House of confidence, which is the House of Commons. In your not very complimentary comments about the Senate in terms of credibility, does that necessarily go to the issue of elections or could it also be a more open appointment process?
Mr. Conacher: Are you talking about changing the Senate?
Senator Day: I want to your comments with respect to democracy. I want to understand how you define democracy.
Mr. Conacher: Start with the principle of one person, one vote on election day for forming a government. We are in a federation. I think we will always have an issue of representation by population. We will say that in a federation, some areas are less populated than others, but if we want to remain together as a federation, we need some sort of equalizing.
Some people will say a vote does not count the same in British Columbia as it does in P.E.I., which it currently does not based on riding size and things like that. However, we are in a federation and if we are committed to it that is how you keep a federation together: by compromising in some areas.
Senator Day: As long as you have that confidence House and those rules in the House of Commons, why can we not have an open appointment process for senators, judges and senior members of the government, who are powerful people? Why do you advocate elections for all these other people?
Mr. Conacher: For senators, I think it is best overall. We have to deal with the issue of a hierarchy in the House in terms of power. When you talk about how to deal with that hierarchy and how to ensure that even members of the ruling party who are parliamentarians — not part of the government cabinet, executive branch — will play a role in holding that executive accountable, we need to address that key area. Democracy Watch's position is, it is better to address that key area within the House than with a separate body.
Senator Day: But the media helps to hold the government accountable. The media play a role in that. They are not elected.
Mr. Conacher: That is true. Media accountability is an issue. I am sure if you asked every single person who comes before you as an advocate about media accountability, and several others in their other roles, they would say yes, it is a key issue. We have libel laws but they do not necessarily deal with fairness of the media's presentations, or do not always deal with accuracy even.
For example, the former Ethics Counsellor was called a ``watchdog'' by the media for the 10 years he was in the position. One would think the definition of watchdog would include independence and powers. He had neither, but they called him a watchdog. If you want to talk about media accountability, I can give you a decade's worth of frustration about someone who was not a watchdog being called a watchdog.
Senator Day: You probably do not have to convince us about frustration with respect to the media.
Small political parties have appeared before us. We are talking about trying to be open and fair. You raised the issue of thresholds for small political parties — and there are court cases with respect to funding for small parties and being recognized on ballots by virtue of their size. The small parties suggested that they do not have the same ability to raise funds as the big parties, and they need the ability to raise funds from a few large donors.
They say they are not challenging anyone; they will not influence adversely government policy by virtue of the fact that they have one or two major donors. What is your thought on small parties being caught up in the same set of rules that, in effect, jeopardize their existence?
Mr. Conacher: If it jeopardizes their existence, it is because they do not have supporters.
Senator Day: They do, but their supporters are few. What is the magic in saying $5,000 or $1,000?
Mr. Conacher: If their supporters are few, then they should have little profile or support. That is the democratic system.
Senator Day: You are happy to see the $1,000 apply to the small parties as well as the large parties?
Mr. Conacher: Yes.
Senator Day: You are happy that the maximum is $1,000 as opposed to $5,000?
Mr. Conacher: Very much so.
Senator Day: When the previous government came in with a maximum of $5,000, you advocated the maximum should be $1,000: is that correct?
Mr. Conacher: Yes, indeed. We have had that position since we formed the Money in Politics Coalition in 1999 — for ourselves, even before then, but it has been the coalition's position since then.
Senator Day: Why $1,000? On what basis did you choose $1,000 and not $500?
Mr. Conacher: We looked at average salary. The income level is $30,000 to $35,000 in Canada now. With a $1,000 cash donation, you get $500 back but not immediately, obviously. We think that amount is reasonable; $5,000 is not reasonable because that is about 15 to 20 per cent of someone's income.
Senator Day: You did not look at average donations, for example. If you did, you would not have chosen $1,000 because the average is significantly less than that.
Mr. Conacher: Yes, we are allowing some leeway. However, the leeway is not so great that one person can prosper five times more than someone else because they are supported by wealthy interests. That is an average, but the median would be a more accurate number to look at. I am not sure whether Elections Canada actually puts out those figures of a median donation level, but I think that number would be a more accurate representative of how close you are to the right number with $1,000.
You have to remember the public financing as well. The parties share $26 million a year now, depending on the proportionality of their votes. One thing that would help parliamentarians to be parliamentarians is if a proportion of that $26 million — the $1.75 per voter — was distributed to riding associations. The money now goes to party headquarters. That means a lot of candidates are sitting there saying, I cannot raise money: give me money, party headquarters. Then you have loyal MPs if they are elected, because they did not get there on their own.
Senator Day: Under the previous law, the $1,000 corporate donation went to the local riding association.
Mr. Conacher: That is right. The public financing is replacing that, so the portion of the public financing should be going to the riding association. It would give them some independence from the party executive, the leader and also the party headquarters. We have to have a discussion about what is needed to win. There are limits at the riding association and at the national level for running campaigns. There are not limits in law for the leadership campaigns. What is actually needed to run a campaign that would have a chance of winning in any riding or nationally? That is where we should be determining whether we need to increase or decrease public financing.
Senator Day: I appreciate your giving us your report outlining 140 flaws of this legislation; I will be interested in comparing those to the flaws discovered by others.
Senator Joyal: Mr. Conacher, I have a question regarding the bottom of page 5 of your brief, where you contend:
...that any member of the public or organization may file a complaint with the Conflict of Interest and Ethics Commissioner...to end, finally, the denial of the fundamental Charter of Rights and Freedoms — protected right of voters to complain about their employees...
Do you have a legal background study that you could cite to support your assertion that a Canadian citizen does not have a right to formally complain to the Ethics Commissioner but does have a right under the Charter of Rights and Freedoms to seek redress in a court of law in Canada?
Mr. Conacher: I am talking about the right to freedom of association. Forcing an individual voter to associate with a partisan MP or senator, because they are aligned with a party, in order to file a complaint, is a violation of the freedom of association right.
Senator Joyal: That is your interpretation of the Charter?
Mr. Conacher: Yes. We contend that that provision is unconstitutional. A person may be non-partisan and may want to make a public interest complaint because he is concerned. It does not make sense to insist that every complaint that goes to an ethics commissioner must have a partisan basis. That taints the whole system and renders it ineffective.
Senator Joyal: Would you be ready to challenge that provision, based on your interpretation of freedom of association under the Charter? It is an important principle if you are convinced your interpretation of the Charter is correct. Of course, Democracy Watch can go to court and sometimes win and sometimes not win.
Mr. Conacher: So far so good.
Senator Joyal: So far so good, but if it is such an important conclusion from an analysis, it would be worth going to court to test it.
Mr. Conacher: We are going to court.
Senator Joyal: You are going to court on this one.
Mr. Conacher: Yes, because the Ethics Commissioner has refused. The current code has even more onerous provisions in it, in terms of the public. The Ethics Commissioner is saying that there is a bar against taking complaints from the public. The former Ethics Commissioner did take complaints from the public. I do not think the technical bar exists, so we may win on that ground. The Ethics Commissioner has refused to review two of our complaints because we are not a senator or an MP, so we are going to court over that issue.
Senator Joyal: Are you already in court or do you intend to file a declaration?
Mr. Conacher: We will be filing very soon.
Senator Joyal: You will be filing a declaration?
Mr. Conacher: Yes, for a judicial review of those two decisions.
Senator Joyal: You are seeking a judicial review of the current Ethics Commissioner's two decisions to refuse to take two of your complaints.
Mr. Conacher: That is right. In some ways I think Bill C-2 makes the situation worse. The law currently says that the Ethics Commissioner shall investigate when a senator or an MP files a complaint against a public office-holder. Nowhere does it say that the Ethics Commissioner cannot investigate other complaints.
Senator Joyal: There is no prohibition, per se.
Mr. Conacher: No, there is not.
Senator Comeau: Under Bill C-2 he can.
Mr. Conacher: Under Bill C-2, that is correct. That is why I say that the bill will make matters worse, although it provides for a process to go to a senator or to an MP. However, the bill does include a bar, which is not in the current law. Now, the Ethics Commissioner is saying no. We are saying, ``You are the only Ethics Commissioner, the enforcer of the code. You are an administrative decision-maker. If you have evidence of the code being violated, it is part of administrating the code to investigate, and not only if a senator or an MP files the complaint.''
We will be testing that principle and we will bring up the Charter right as well. We are not testing this proposed act, but hopefully we will have a win in court that will say that this part of this bill is unconstitutional based on Charter grounds. The court may decide just on the technical grounds that the commissioner has to look at these two complaints, because they provide reasonable grounds. We will see what happens.
Senator Joyal: The court has to pronounce on the rights.
Mr. Conacher: Exactly.
Senator Joyal: Are you part of the litigation that small parties have taken to court challenging the previous Bill C-4 on the 2 per cent limits and 5 per cent limits to be admitted to public financing?
Mr. Conacher: No, I am not. I do not see a real danger to admitting them, because there is not a lot of money at stake.
Senator Joyal: I have calculated myself; it is minimal.
Mr. Conacher: It is tens of thousands.
Senator Joyal: It is minimal.
Mr. Conacher: The proportionality of votes is a different issue.
Senator Joyal: Ten days ago we had witnesses from small parties, and it was quite clear that they intend to challenge some of the sections of Bill C-2, especially the $1,000 limit. They claim that the $1,000 limit affects them more adversely than the larger parties because they do not have access to the public financing. In other words, you cannot have it both ways. Is it your position that, if the law is maintained as it is, with the 2 per cent and the 5 per cent thresholds, the $1,000 limit could be unconstitutional on the principle the small parties have raised of minimal impairment?
Mr. Conacher: No, I do not think the law will be declared unconstitutional. A clear safeguard is to allow the small parties into the public financing process; it would be a minimal cost. However, that public financing is a subsidy, and those thresholds will be upheld. The initial challenge was the right to exist as a party. The right to exist as a party does not guaranty the right to prosper as a party. To prosper as a party you have to have supporters.
Senator Milne: To return quickly to my point about friends, look at page 53 under the proposed amendments to the Canada Elections Act. Again, we have this double standard showing up in the bill.
Mr. Conacher: Which section is it, please?
Senator Milne: Section 92 would be amended by adding 92.2(1) and (2) in respect of the Canada Elections Act. It states:
92.2(1) No candidate shall accept any gift or other advantage that might reasonably been seen to have been given to influence him or her...''
(2) Despite subsection (1), a candidate may accept a gift or other advantage that is given by a relative.
Candidates cannot accept gifts but a minister, according to page 13, can accept a gift from a self-defined friend, such that if they have defined that person as a friend, then they do not have to declare the gift, no matter how large it is. I am trying to reconcile the different parts of this bill. There is no consistency between them at all. Would you agree?
Mr. Conacher: Yes. In that area you have to be careful of those exemptions for gifts and other advantages. In all of the areas, whether in the context of an election campaign donation or the general code. There was the great definition challenge of ``spouses'' and ``dependants'' when they were first added to the code. We were faced with a similar challenge. As I mentioned earlier, no matter what you do with a government system of one person, one vote, some people will still have more influence because they are friends so you will take their call because you are catching up on other things.
Senator Milne: You cannot accept the gift if you are a candidate but you can accept if you are a minister and you decide it is from a friend.
Mr. Conacher: Yes. No matter how good the appointment process is to ensure independence of attitude of the enforcer, they draw the wrong line. They are opening a huge loophole and their attitude might be what can we do about it and let us keep it wide open. They are allowed to make secret rulings and will continue to be allowed to do so under this bill. A cabinet minister will be able to say that he or she has received a gift.
Senator Milne: Ministers would not have to declare the gifts because they can decide the gifts are from friends. They do not have to report.
Mr. Conacher: That is true initially but there is a clause such that when doubt exists, a minister is supposed to consult with the ethics commissioner. However, that consultation can be held in secret and the commissioner could be a friend of the cabinet minister too. All the friends work together to ensure that a huge loophole is exploited in a way that it should not be permitted.
Senator Cochrane: I am still not sure about your funding sources. Which groups do you target? Do you target one group more than another group? Do you target seniors more than you target young people or is a mix of ages targeted?
Mr. Conacher: There is a mix of ages. We believe that no matter what issue or problem you are concerned about in society, you should be concerned about how the process is working and whether the requirements are effective overall in being honest, ethical, open, representative and waste preventing. We approach groups of all kinds across the country. Our coalitions comprise groups from five to 10 different sectors.
Senator Cochrane: Do you have a list of donors?
Mr. Conacher: Yes, we have a list of organizations and individuals. The groups in our coalitions are on our website.
Senator Cochrane: Is it a published list?
Mr. Conacher: Yes.
Senator Cochrane: For example, if I wanted to donate to Democracy Watch, how would you present that to me? What message would you give to me to ensure that I would contribute to your organization?
Mr. Conacher: On the government accountability side and the corporate responsibility side, our general message is that the system is the scandal and that you should not be surprised by scandalous activity because the system is full of loopholes that encourage such activity. Not everyone is trying to exploit the loopholes but the loopholes exist. Human history has shown that within any organization where there are loopholes, people will try to exploit them. In both areas we are trying to close those loopholes so that everyone in the powerful institutions of society, both government and corporate, and other organizations will be effectively required to behave honestly, openly, ethically, representatively and to prevent waste. That is our overall goal. Bill C-2 is pretty much 10 years worth of our work.
Senator Cochrane: How much would this cost?
Mr. Conacher: We accept donations of any size.
Senator Stratton: Mr. Conacher, you are saying that Bill C-2 represents 10 years of your work and you feel quite good about it, recognizing that it has faults, you have told us. When you say 10 years of your work is being represented in this bill, that leads me to conclude that you are fairly positive about the bill.
Mr. Conacher: The bill is a significant step forward in many areas, although it was promised to be much more. By our calculations, we have been pushing since 1993 for 40 of the 52 things that were promised. However, only 20 of the 40 made are in the bill.
Senator Stratton: I want to go to the essence of the matter. Bill C-2 was introduced in June, I believe.
Mr. Conacher: It was introduced in April.
Senator Stratton: On April 11 it was introduced and passed the House of Commons on June 21. It was a first step for a new young government, which has done a fairly credible job, particularly when you look at how the matter of the bill ties into other things. While the bill does not have specifically a statement of principle, I have been informed and I have informed the committee that the commitment is to a set of principles established for the public service.
Mr. Conacher: Yes.
Senator Stratton: In that way, public office-holders will be included. The record to date shows that when the Prime Minister says something, he usually does it, although there are exceptions. For example, the $2,000 reward for whistle- blowers was not included. The Legislative Committee of the House of Commons thought it unethical to offer a reward and determined that people should do it for the right reasons rather than for the wrong reasons. It was in the bill initially but was deleted by amendment.
My other concern is that you said that whistle-blowers who are not public servants would not be protected from retaliation. I have a problem with this and I think that all members of the committee feel a great deal of ease with this whole area of proposed legislation because it is extremely difficult to legislate. However, clause 214 proposes changes to section 40 of the Public Servants Disclosure Protection Act to provide a prohibition against employers from taking reprisal against an employee who has reported wrongdoing in the public sector. This is also an indictable offence. The only groups of public servants not included are the Canadian Security Intelligence Service, Correctional Service Canada and the Canadian Armed Forces, who have their own disclosure regimes. You talked about whistle-blowers that are not public servants; are you talking about the public at large?
Mr. Conacher: Yes.
Senator Stratton: I do not know how you would legislate that.
Mr. Conacher: Also, the definition of ``public sector'' does not include —
Senator Stratton: Concerning the definition of ``public sector,'' I have replied by saying that clause 214 of the proposed federal accountability act, proposes a new subsection, 42.1(1), of the PSDPA to provide a prohibition but that CSIS, the CSC and the Armed Forces have their own regimes and would not be included here. I do not know how you would protect the average Canadian from reprisal in law. That is my real concern.
Let me ramble a bit more. My major concern is this: I do not know how you do it in the civil service, despite what you put in law. You hope not to go overboard, but you might go overboard. Civil servants are deathly afraid of doing anything that would cause someone to whistle-blow on them. That is the fundamental principle by all of this. There is a fine line to walk, so how far do you go? Almost everyone, about 99 per cent, in the civil service works very hard. How do you define what is that fine line? It is not that I do not want it; I want to know how to define it to your satisfaction.
Mr. Conacher: First, to return to the definition of ``public sector,'' it does not include, for example, politicians' offices or all Crown corporations or all officers of Parliament — and, again, all foundations that spend taxpayers' money perform public functions. Not all public servants are protected. For the ones you have mentioned, there is a legitimate reason to keep them out of the Bill C-2 regime, but not all others. There was a promise to remove the government's ability to exempt Crown corporations and other bodies under the proposed act, and I do not believe that has been fulfilled.
If you are to protect one sector, a key one is to extend it to suppliers of the government. They are members of the public, but they are not covered at all by this. Where do they go to blow the whistle if someone says, ``You will get the contract if I get the money.'' Where can they go? You can say they can go to the police. Do the police have the power to protect them from reprisals, where their company never gets awarded a contract again?
It is not just Jane or Joe walking in off the street; these are people who interact with the government all the time. The ability under the Criminal Code to go to the police is not enough; there needs to be a civil process. All agencies, boards and commissions must be covered. We have seen the problems with the Immigration and Refugee Board of Canada, which, if there were a whistle-blower protection system, might have come out sooner about a board member essentially taking bribes. There are all sorts of people who interact with the government all the time, and they may be witnessing rules, policies, laws, and regulations being broken.
How do you protect them from reprisal? Our suggestion was that the whistle-blowing complaints, when this was all being worked on, should go to the specific regulatory agencies that cover those sectors. This office will have to work with a lot of those sectors, if they get complaints that are very specific to certain laws being broken, because that one office would not have the expertise. You can put the power to protect from reprisal with the regulatory agency that covers various sectors.
Protecting from reprisal will be very difficult though, as you say, in the public service, and overall having this function without it having a chill. However, it is necessary. The more people you extend to the whistle-blower protection to, the more effective and efficient government you will have overall in terms of addressing the issues and problems in society.
Senator Stratton: That is a very good answer, and one that intrigues me because I still am reluctant to believe that you can legislate that kind of thing without chilling to the degree that would be totally open and honest. I cannot get my mind around that; maybe I am wrong. I would like to see it happen, but I have seen too many instances where people — not necessarily in the public sector; in the private sector — have gone to their boss and made the complaint. The next thing you know, they are put out the door, or they are put out in left field, and nobody will admit to it and nobody will admit that they did anything to affect that.
I have a great deal of trouble with that. My real concern is putting that chill where people are afraid to make decisions because of that concern. I do not think you have the first part, namely, what you want, without addressing the second part of that. You must be able to address both. You cannot simply impose the rule and not expect the chill to take place.
Mr. Conacher: It happens with every new law because no one knows what the law means until a court says what it means. You have chills all over in every area. That is why you want to have very specific rules that people must follow — so they know where the line is and what the lines are that they do not want to cross. You want those public interpretations of those rules to be out there. That is why it is so dangerous to allow all the ethics watchdogs to make secret rulings, which they are under this.
Senator Stollery: You recognize the point I make, though.
Mr. Conacher: Oh, yes; it is very difficult.
Senator Stratton: Remember that Crown corporations are included. It is under Bill C-11 that they have those protections for whistle-blowing. The day you come up with the answer for the chill, I will accept your other proposal.
The Chairman: Mr. Conacher, on behalf of the committee, I wish to thank you for attending here today and for answering questions put by honourable senators.
Honourable senators, our next witnesses will be from the First Peoples National Party of Canada and the New Democratic Party of Canada.
Mr. Conacher: Thank you, again. I would be happy to come back, if the committee has more specific questions, after you read the full submission.
The Chairman: Our next witnesses represent different political parties. From the New Democratic Party of Canada, I am pleased to welcome Éric Hébert, Federal Secretary. We are also joined by Jerry Fontaine, the President of the First Peoples National Party of Canada.
We would like to proceed by having each of you make a brief presentation, following which, honourable senators will have questions and we can engage in a question-and-answer period. I do not know which of you would like to go first, but I will let you decide between yourselves. Welcome to the committee.
Jerry Fontaine, President, First Peoples National Party of Canada:
[The witness spoke in his native language.]
I introduced myself in the Ojibwa language, which is my first language. My name is Jerry Fontaine. I am from the Anishinabe nation of Sagkeeng in Manitoba, and ``Manitoba'' in our language means ``the place where the creator sits.'' I bring greetings from Manitoba.
On behalf of the First Peoples National Party of Canada, I would like to express my thanks to the Standing Senate Committee on Legal and Constitutional Affairs for providing the First Peoples National Party of Canada an historic opportunity to make a presentation respecting Bill C-2.
The First Peoples National Party of Canada, as you are well aware, is new to the Canadian political arena. Therefore, we honour our obligation to our ancestors, to the people who support the principles of the party and to our future — Bee-duh-buhn — by making a presentation to your committee.
Our elders speak of the importance of representing the interests of our people, our constituents, and, in doing so, we must find balance and harmony. We come here not to pass judgment nor lecture anyone on a parliamentary system that is badly fractured, controlled by power brokers and regional interests. We come here not to speak of corruption or the use of public office for gain. We come rather to speak of equality of opportunity, respect, honesty, humility and truth.
The First Peoples National Party of Canada was born of the dreams of Chiefs Pontiac and Tecumseh of achieving self-determination for the dispossessed and poor, respect for all Canadians and, for Anishinabe peoples, a right to govern and assert our sovereignty.
Why are we involved in this parliamentary process? Bill C-2, we are told, is an attempt to address the lack of accountability in the political process. This is a gargantuan task. How do we minimize the role of money and finances? It is generally understood that finance is a necessity of political life. Having stated this, we recognize as well that it can at various times create problems. It is an interesting dilemma, to be sure. I am quite certain that a process that seeks to control corruption in the financing of political parties and election campaigns is likely to be different than one that seeks to promote fairness. This process and the resulting Bill C-2 must recognize and respect this fundamental difference. This will determine success and failure. Again, we are not here to cast stones. To us, fairness and equality of opportunity is what Bill C-2 should strive toward.
There are many glaring examples throughout the world of political indifference to the financing of the political process. We have seen situations where political contributions have contravened laws on political financing as we saw in Kohlgate in Germany in 2000, the Israel affair in 2000, and the Filesa affair in Spain in 1991, which ultimately led to the defeat of Prime Minister Felipe Gonzalez. We have seen the unauthorized use of government resourcing for partisan political purposes, as was the case with the White House coffee receptions and sleepovers in the Lincoln room, which Clinton used for raising funds in his 1996 re-election campaign. I have to add that that was one of the more innocent examples.
More common and often practiced is the use of public funds to pay staffs that carry out partisan activities. Jacques Chirac, while Mayor of Paris, used patronage posts to save his party from the need of raising private funds. We have seen examples of blatant acceptance of money in return for the promise of a favour in the event of election into office.
The number of nations that have experienced this type of violation is staggering, from smaller countries such as Antigua and undeveloped countries such as New Guinea and Cameroon to major powers such as the United Kingdom and the United States. The point of all this is simply that political financing purity is not that easy. Hence, your committee's gargantuan task.
The First Peoples National Party understands only too well, what the costs of campaigning are by nature prohibitive and exclusive. How many Canadian and Anishinabe citizens have been discouraged from seeking public office because of the lack of financial resources? The consequences are obvious and election campaigns become the exclusive fiefdoms of the ``have.'' Unfortunately, the views of those with the most money are disproportionately heard. Is that what Bill C-2 is attempting to change?
Far too often, political parties woo and then seduce the corporate community to raise funds for multimillion-dollar campaigns. Does that create ample opportunity for influence peddling and fodder for wrongdoing? The First Peoples National Party of Canada firmly believes that every nation must have choice and balance. It is interesting that for balance in the political process we must have strong opposition. Choice and balance make democracy strong and vibrant.
The goal of the First Peoples National Party of Canada is to establish a long-term agenda and action plan for all Anishinabe peoples and the dispossessed. The First Peoples National Party of Canada supports Bill C-2 and its clean political and campaign financing objectives, as it may give parties such as the First Peoples National Party of Canada a stronger voice in the Canadian political process. It is our hope that Bill C-2 will throw open the doors for democracy and political participation and allow more Anishinabe citizens to seek public office and increase voter turnout. This, in turn, will empower our communities to identify our own leaders and to have those leaders address our issues and to speak on our behalf.
The right to vote is a fundamental political right. It is a right that the First Peoples National Party of Canada believes in because increased and empowered political participation can revitalize representative democracy.
Bill C-2 must allow constituencies to focus entirely on their issues. I emphasize ``their issues'' because it is the people who should dictate direction, not corporate or special interests. Bill C-2 must focus on levelling the playing field, on opening up the political process to better and more representative candidates and, of course, make our elected representatives more accountable to the people.
The First Peoples National Party of Canada professes no expertise in political party and campaign financing. However, we leave you with our recommendations by asking the following questions: What should we propose? Should we propose a balance between public and private financing? Should we propose stringent rules concerning private donations? Should we propose a threshold on parties' expenditures linked to election campaigns? Should we propose complete transparency of party accounts? Should strict accounts of all revenue expenditures be submitted annually to an independent audit authority, which will be made public with complete declaration about the identity of donors? Should we propose the establishment of an independent audit authority and meaningful sanctions for those who violate the rules? Should we propose to establish criteria ensuring balance between government financing, the electorate and party support? Should we propose and encourage political participation in the political process, including individual financial support? The First Peoples National Party of Canada recognizes very well that membership fees and non-controversial sources of finances are not sufficient to offset the expenditures of the political process.
Political parties should receive financial contributions from government in order to prevent dependency on private donors and to guarantee equality of opportunity. Government financial contributions should be calculated in ratio to voter support, evaluated on votes cast, seats won. This would enable new parties such as the First Peoples National Party of Canada to enter the Canadian political process and compete on a level playing field.
[The witness spoke in his native language.]
I just stated that I am very honoured to have this opportunity to speak to the ladies and gentlemen here today. It is with all my heart I say ``meegwetch,'' and I bring greetings from my people, ``meegwetch'' in the spirit of Pontiac and Tecumseh, and all my relations.
[Translation]
Éric Hébert, Federal Secretary, New Democratic Party of Canada: Mr. Chairman, I am the Federal Secretary of the New Democratic Party of Canada. I should like first to thank you for inviting me to come and express our views on the changes proposed in Bill C-2.
It is not hard to imagine that the NDP, as any other political party, will focus primarily on matters of financing and legislation surrounding the changes to the Elections Act, which is an area which greatly affects us. It is for those reasons that I shall restrict my comments on the other issues related to the bill while still putting more emphasis on the proposed changes to the Elections Act.
[English]
I see this as a continuation of the important work that was done in Bill C-24 in 2003. This is an important step forward in making politics more accessible and more accountable. For those reasons, it is an important step further along that journey. However, there are some aspects to the legislation that I would ask senators to be sensitive to, particularly when it comes to the inadvertent impacts that the proposed legislation will have on our local levels of organizing.
I say this not as someone who works at the local level but as someone who works at the national level and feels equipped to deal with a lot of the issues that this bill will bring forward. I am concerned for a number of the volunteers in all political parties who, as you know, work very hard at the local level to achieve many of the demands that we put upon them. I also worry about some of the aspects of this legislation and how they may actually impact upon them.
First, let me tell you that the lowering of the cap on individual contributions is a very healthy thing. It is something that the NDP had called for when Bill C-24 was put forward. We believed that particular limit was too high when we looked at it. We believe this $1,000 limit is a healthy one.
I ask senators to consider that the $1,000 limit not be indexed to inflation, or at least that you bring in line the indexation with 2006 and not 2004.
We support the changes when it comes to not allowing corporate and union contributions whatsoever. We brought this concern to the House of Commons when they invited us to speak on Bill C-24, and a change we feel helps us clarify many of the things that seem to be unclear.
Under the current law, the $1,000 contribution limit by unions and corporations is applied in such a way that confuses a lot of folks. For example, the local union in B.C. that controls its own money could make a $1,000 contribution to a local candidate. A local from the same union in Nova Scotia could make a $1,000 contribution. Inadvertently, that union would break the law, not necessarily realizing that an arm of their union has done the same thing elsewhere.
This is also true for corporations that are not franchises or that have various levels of structure. For those reasons, we are glad to see this change to eliminate these contributions altogether.
[Translation]
The elimination of cash contributions of $20 ties our hands and it concerns us. If somebody wants to make a $30 contribution, it has to be done by cheque, money order or credit card. I fully understand the reasoning behind these changes which aim at ensuring a greater degree of transparency in the system and identifying the source of the contributions.
My greatest concern has to do with the town hall meetings and the electoral associations. Not only the district association but the person making the contribution either by credit card or cheque, incur in some cases additional costs and we would like to find a solution to this problem.
On the other hand, we find that there are some positive elements in the bill but I will not focus on them. I just wanted to make you aware of our concerns with regard to possible influence peddling through gifts, goods and services, et cetera.
The bill also requires the candidate or his official agent to file a report which translates into an increase in the number of tasks for our district associations. I would suggest that you keep this aspect in mind and not impose a penalty for not filing their report on time, the same way as we often do in the case of district associations which do not file their report on time. Let us not add to the burden by forcing a visit to the provincial superior court in such cases and let us not require an appearance before a judge to apply for an extension for filing the report. The bill must give the Chief Electoral Officer the authority to accept the delayed report with some explanations, the same way as a riding which filed its annual financial report beyond the deadline had the right to properly apologize so that people would not be forced to appear too often before a judge.
There are several other elements I wish to discuss but they will surely come up in our discussions. I look forward to answering your questions.
[English]
The Chairman: Thank you very much for two excellent presentations.
Mr. Hébert, I think I know what indexing to inflation means. However, I am not clear whether you are for it or against it. As I understand what you have told us today, the NDP would like to see the limit capped at the current $1,000. The party would prefer this amount not be indexed to inflation, yet you go on to say that you would like to bring the indexation in line with 2006 rather than 2004.
Mr. Hébert: I am giving you two different scenarios. I would prefer to see the $1,000 capped limit as the limit in current dollars perpetually, so it is always $1,000 and not indexed to inflation.
However, if you decide that it absolutely must be indexed to inflation, then I ask you to consider indexing it to 2006 dollars rather than 2004 dollars so that at least the increase in the maximum allowable donation is not on a steady incline. That incline, I fear, contributes to less accountability rather than more.
The Chairman: If inflation is running at 2 or 3 per cent a year, what do you think the limit will be like in ten years without indexation?
Mr. Hébert: I suspect there will be many changes to the Canada Elections Act before we get to that point. In the meantime, I think $1,000 is plenty in terms of contribution.
Should the inflation rate go up to very high amounts, we can always examine further changes to the act. Generally, we prefer the limits to stay low and not go up continuously for the purposes of those who can afford it.
Senator Zimmer: Gentlemen, thank you for your presentations.
I would like to declare a non-conflict of interest. It is always nice to see Mr. Fontaine, and I declare my friendship with him.
I am trying to put some of these things together here. Mr. Hébert, maybe I can start with you. You talked about lowering the cap from $5,000 to $1,000. In an organization that is 80 per cent — these laws brought in about two years ago — an assessment or evaluation has not been done on that. Second, it has only been two years since that change occurred. The change to $1,000 is dramatic.
Without any assessment at this point on that, why would you support such a large change down to $1,000?
Mr. Hébert: My sense is that certainly political parties are doing assessments of their contributions on a regular basis. I certainly know that our party looked carefully at what that change meant to our donor base. We know that a good chunk of our donors, about 20 per cent, contribute more than $1,000 in a given year. We accept that reality in terms of the impact that it will have on political party financing.
Should there be more examination in terms of how public financing versus private financing actually impacts people, I think we have had enough time and certainly enough reports to be able to examine the impact on political parties.
I am not a hundred per cent sure that we need to spend more time examining. I think there is certainly a clear understanding that lowering the caps actually has a beneficial view at least from the public in terms of the accountability of political parties and where their financing comes from.
Senator Zimmer: I will say this again, and I have said the same thing to other witnesses: The words of open transparency and accountability have no relation to the limits. You can be open, transparent and accountable at a dollar or a million dollars, or not accountable at both. To me, there is no relationship between the two.
Second, I do not think we have had enough time to evaluate this. It has probably been about a year since doing that, but some use the example now that 80 per cent of the donations are $200 or less. I think that is probably the right way to go. I do not believe we have had the opportunity to examine it far enough. What are your thoughts on that?
Mr. Hébert: Once again I believe there is an optics issue. As political parties who sit in the House of Commons and who represent our democracy, we need to ensure that a system is in place that is, from the optics of the ordinary voter, as fair as possible.
Despite the fact that a dollar might have influence, I think most people see a dollar as not having as much influence as a $2,000 or $3,000 contribution. At least in the optics of the matter I think it is worthwhile. I do feel we have had time as political parties to examine the impact. Now certainly, you may decide as senators that you want to spend more time doing so, but the optics alone make the case for us.
Senator Zimmer: I want to move on to the elimination of the cash contribution, lowering it to $20. I thought you would probably support that since you have said lower is a better perception. You have talked about a $30 limit. What limit would you put on it, if not $20?
Mr. Hébert: The issue of cash donations is one that can easily be caught by the same sort of situation. As long as the $100 donation can be traced to the person that made the donation that is the best way for us to proceed. Now, whether there is a limit of $30 or $100, to be honest with you, makes less of an impact to me as it does that we document the donations properly. I think political parties are doing that very well at this point; perhaps less so in the past, but certainly better at this point in terms of documenting the sources of revenue.
Certainly when the money is spent, they will have to include the expenditures in their reports. I believe that they will have to prove the source of the money so that is the key part of how we deal with things. Now, whether it is traceable is the issue, not whether it is actually written by cheque or whether it is a cash donation.
Senator Zimmer: Mr. Fontaine, I want to ask you a couple of questions. On page 8 of your brief, you say your organization ``professes no expertise in political party and campaign financing,'' while on the previous page you say that your organization ``...supports Bill C-2 in its `clean' political and campaign financing objectives.'' There seems to be a bit of a discrepancy there. You say you do not have any expertise in those areas, yet on the other hand, you say that you support the existing Bill C-2. In addition, what do you mean by ``clean political campaign financing objectives?''
Mr. Fontaine: In terms of Bill C-2, we have been told that the intent of it is to improve accountability, openness and transparency. We agree with that intention. It is the general principle to which we hold firm.
What was your other question?
Senator Zimmer: What are you referring to when you say ``clean?''
Mr. Fontaine: Basically, again, the intent of Bill C-2 is to promote transparency and accountability. The rationale behind that is that the political process up until now has not been open, has not accountable and has not been transparent. The intent, I take it, is to promote accountability and to clean up what needs to be cleaned up.
Senator Zimmer: Another comment you have is a ``balance between public and private financing.'' Do you have a formula or an idea of what you mean, or is that more of a generic statement?
Mr. Fontaine: It is more of a generic statement. Again, private financing of a First Nations political party would be difficult because most of the support we get is from the people at the reserve level. Many of our people do not have the financial wherewithal to make large financial contributions to the process, so smaller parties, such as the First People's National Party, would require some type of public assistance to be able to participate in the process.
Senator Zimmer: Another comment you have is a threshold on parties' expenditures linked to election campaigns. Do you have an idea of where the limits should be?
Mr. Fontaine: In the last federal election, the First Peoples National Party of Canada spent $4,000. I think that amount is very different from what either the Conservatives or the Liberals spent.
Senator Zimmer: Do you have any recommendations on the level of donation?
Mr. Fontaine: No, I do not.
Senator Comeau: Mr. Fontaine, I want to go to recommendation 8 of your presentation, on page 9, where you suggest:
Political parties should receive financial contributions from government in order to prevent dependency on private donors and to guarantee equality of opportunity. Government financial contributions should be calculated in ratio-to-voter support; evaluated on votes cast; seats won.
My understanding is that you get back $1.79 for every vote cast. Are you suggesting that you would like to see this changed and that it would be calculated on the number of seats that you win? At the present time, probably in your circumstances, that might actually reduce the amount.
Mr. Fontaine: The focus of that was primarily to look at this notion of proportional representation in government. For a small party like the First Peoples National Party of Canada proportional representation is an avenue that would allow us to participate more fully in the political process. Obviously, Bill C-2 does that as well, but also proportional representation would enable smaller parties such as the First Peoples National Party of Canada an opportunity to gain a seat in Parliament.
Senator Comeau: It is important that you make that distinction, but this would be quite valuable on votes cast in Bill C-2 based on proportional representation. I read it under the current system, which would be probably unfavourable to you, unlike proportional representation.
Mr. Fontaine: We support that.
Mr. Hébert: Just so you know, political parties that do not get 2 per cent of the national vote do not qualify for that $1.79 per vote. One thing that the NDP has been saying in committees in the past is that we would really like to see all parties have an equal share of their $1.79 per vote because it actually values some votes over others. I do not want to speak for my colleague, but I would strongly encourage people, if they were looking at changes, that they consider that all political parties should be entitled to the same per vote subsidy than the parties that get 2 per cent or more of the vote.
Senator Comeau: That is an extremely important point you just raised and it had slipped my mind that in fact there is a limit to how much comes back.
Senator Zimmer: About 10 days ago, four small party representatives appeared as witnesses, and Mr. Arlow emphasised that the limits remain at $1,000 and $5,000. All of the witnesses were very adamant about the limits. What are your comments on that? All four witnesses were members of small political parties.
Mr. Hébert: It would be difficult for me to guess at their motivations, and I cannot even speak to which of those parties were here. However, I can say that in a lot of cases smaller parties do tend to rely on a very small number of donors, and so it would seem logical in my mind that they would prefer to have higher limits rather than lower limits for the purposes of their own funding. I would suggest that giving them access to the $1.79 is a better and a more fair method than playing with limits that then affect all the political parties that would also be able to play in that same realm.
Mr. Fontaine: The First Peoples National Party of Canada recognizes the importance of financing and the impact financing has on our participation. Of course we still support the $1,000 and $5,000 limits. There is no question about that.
Senator Campbell: They liked to leave it here because a small party may have two or three people who would donate $5,000 each, which was a significant amount to their total pot.
The Chairman: There was one party where someone was actually giving $20,000.
Senator Campbell: Yes, $20,000, right.
Senator Comeau: I imagine it would help make a dent in the financing.
As I understand it, and my colleague and I were just talking about this, there is some kind of a court challenge at the present time on this 2 per cent limit. Are you aware of the status of that?
Mr. Hébert: I believe it is still before the courts. From what I understand, we may not hear more about it until the end of this year. Despite the fact that we are not actively involved in the case, we support the challenge.
Senator Comeau: I want to come back to the question raised by the chair regarding the $1,000, and how you want it to be anchored at $1,000 rather than indexed to inflation. This point suggests to me that you sense that $1,000 is still too high.
Mr. Hébert: If you ask the average political party contributor, or any charitable contributor in this country whether $1,000 is something they could afford in a given year, most people would find that amount difficult to imagine. You must factor in that the $1,000 limit actually applies to federal parties separate from parties at the local level. Thus, technically, the limit is closer to $2,000. You must add to that limit leadership campaigns which have an additional $1,000 limit. You are then into the realm of significant contributions and falling back into the trap of giving the impression that people can buy influence.
For that purpose, keeping the $1,000 at the $1,000 limit is useful and important.
Senator Comeau: This step would be the first in eventually seeking an amount more in line with what the average Canadian can afford to contribute to a political party?
Mr. Hébert: That is right.
Senator Comeau: There is still the question of the income tax deductibility of these amounts, of course. I am not sure if the tax deduction reduces it by 50 per cent, but let us say it does. Based on the income tax deduction, the maximum donation is reduced to $500 at that point. At this point are we closer to what you consider that an average Canadian is able to contribute?
Mr. Hébert: I am afraid I do not understand the question.
Senator Comeau: You are allowed an income tax deduction of $1,000.
Mr. Hébert: Yes, of the first $1,275. The rate varies so that the first $400 is at 75 per cent, the next $350 is at 50 per cent and the rest is at 33.75 per cent.
Senator Comeau: If you had written the legislation, what would be your ideal figure? Let us say the $1,000 is not where you would like it to be. What should we have aimed for?
Mr. Hébert: That is a good question. The complexity is in being able to give $1,000 at each place. Given that fact, it is easier to imagine a limit closer to $1,000 in total contributions. You also have to be reasonable in terms of what you ask people to contribute. People want to contribute. There is a fine line that we cross. A maximum donation of $1,000 across the board would probably make it easier.
However, as stated in the statement before you, one thing we are also pleased to see is separate limits for the local level and the federal level. In fact, you are not fighting within the party for the same donations. Inevitably, that is what happens. With a $1,000 limit across the board, you end up in a situation where riding associations compete with the federal party for those same contributor dollars, and that becomes difficult.
Despite our desire to have a lower limit across the board, we see this as the fair division, if you will, of fundraising objectives among the parties.
Senator Comeau: A great deal of this would be solved if we were to follow your suggestion that we move to proportional representation.
Mr. Hébert: Sure.
Senator Joyal: Mr. Fontaine, the name of your party intrigues me. It is First Peoples National Party of Canada, and you introduced yourself as a member of the Anishinabe First Nation.
Is the objective of your party to include all the First Nations of Canada within the ambit of your objective?
Mr. Fontaine: That is one objective. More succinctly, in my language, Anishinabe means human being. If we all consider ourselves human beings, then we all consider ourselves first peoples of this land. That distinction needs to be made with respect to first peoples.
Senator Joyal: How many First Nations groups or communities are represented in your party's membership now?
Mr. Fontaine: Most First Nations in Canada are represented within the party. We also have non-Anishinabe people who are members as well. We had a non-First Nations candidate who ran in the last federal election in British Columbia.
Senator Joyal: How many candidates did you have in the last election?
Mr. Fontaine: We had five. We received official party status two weeks into the campaign. Basically, we had two weeks to register our candidates. We went with five, even though we could have had more.
Senator Joyal: You are a recent creation?
Mr. Fontaine: Yes, we are.
Senator Joyal: How many years have you been in activity?
Mr. Fontaine: The party was formed in December of last year. The First Peoples Party was actually started in 1995 in the province of Manitoba.
Senator Joyal: Are you supported by the Assembly of First Nations or by the Métis National Council?
Mr. Fontaine: We have no link at all with the other Aboriginal associations in Canada.
Senator Joyal: You are totally independent.
Mr. Fontaine: Yes.
Senator Joyal: How many people do you have in terms of membership?
Mr. Fontaine: We probably have upwards of 3,000.
Senator Joyal: As I understand it, you did not receive any reimbursement of electoral expenses from the last election, not having met the threshold.
Mr. Fontaine: Not yet.
Senator Joyal: That is because you did not receive 2 per cent of the national vote or 5 per cent in any riding?
Mr. Fontaine: That is right.
Senator Joyal: Are you aware that a group of small parties have challenged that provision of Bill C-4, the previous electoral financing bill which is now being implemented, on the basis that it treats the small parties unfairly? With a reduction to $1,000, you will have even less access to the individual capacity of supporters to contribute to your party. On the other hand, your party will not have access for a while to the government reimbursement of electoral expenses. We were told 10 days ago by at least three out of four representatives of small parties that they intend to challenge that section of Bill C-2 if it comes into force with the limit of $1,000, because the parties will be hit twice. Is it your intention to consider joining that legal challenge?
Mr. Fontaine: This is the first I know of it. Obviously, I would have to take it back to the party executive for discussion. I am not clear in terms of how much it would impact the First Peoples National Party. To try to speak about it would be speaking out of turn. I am not really that familiar with it, which is why I was somewhat concerned when Senator Zimmer asked me the question.
Senator Joyal: What is the total budget of your party now, on an annual basis?
Mr. Fontaine: We do not know that because we have only been in operation since December. We are a very small party. Many people who are involved in the party are volunteers. Young people, women and elders are involved. Each and every one of these people can make their contribution in terms of volunteering and in-kind contributions, whether it is paper or something else. As you can see, my presentation is on paper that was used before. We make use of that kind of volunteer activism.
Senator Joyal: Do you have any paid staff?
Mr. Fontaine: We do not have paid staff. Again, the leader and the executive are volunteer workers. The office is relatively small. Again, it is in the leader's house. We started in December of 2005, and we are moving forward.
Senator Joyal: What is the largest contribution that you have received in terms of citizens' contributions within the framework of Bill C-24?
Mr. Fontaine: Again, the majority of our contributors are people at the reserve level. We receive contributions of $20, $50 and $75 — whatever people can contribute, with $500 the largest donation. More important for us is when they volunteer their time to help build this party. We are new to this political process and have not addressed some of the more detailed questions in terms of how to establish financing and how political parties address their concerns from a financial perspective.
Senator Joyal: Have you filed all the required reports with the Chief Electoral Officer?
Mr. Fontaine: Yes, we have.
Senator Joyal: You are able to meet the obligations under the electoral act to provide an audited report and so forth?
Mr. Fontaine: Yes, our auditor from Winnipeg signed off on reports for all five candidates.
Senator Joyal: You have enough money to hire auditors to do that kind of paperwork.
Mr. Fontaine: Yes, we do have the money to do that.
Mr. Hébert: You should know that the audit fees are also paid by Elections Canada up to a maximum, so it does not put that kind of a burden on the parties, with the exception of the fact that in the case of candidates only very low audit fees can be paid. In some cases, parties that are much smaller are burdened with some additional costs. That is unfortunate and we have been claiming for many years that the audit fees should be more reflective of actual cost. We have been making that case as well. Certainly it is the case for riding associations that have to have their audits done, but it is less the case for candidates, unfortunately.
Senator Joyal: We cannot impose, on one hand, the financial obligation of reporting and deny them access to public financing on the basis of the number of votes cast in an election and, on the other hand, limit them to a certain amount of money. If we do, they will be unable to do their canvassing and their advocacy work for their objectives.
Mr. Fontaine: It was asked why the First Peoples National Party of Canada supported Bill C-2 despite the fact that we did not profess any expertise in this area. Generally speaking, Bill C-2 would provide the First Peoples National Party an opportunity to participate. Second, the political process for our people has been closed. In some cases we do not have the financing; we do not have the ability to secure major donors. All of that is closed. We see Bill C-2 as a vehicle to level the playing field. The fact that we had five candidates run in the last federal election speaks volumes for peoples' initiative, their willingness to volunteer and their willingness to pursue a dream. That is what the First Peoples National Party of Canada wants to do. If Bill C-2 is a vehicle that helps us reach that goal, then we will support it even though we might not know the details. I support with all my heart the general philosophy and the principles behind the proposed legislation.
Senator Milne: Mr. Fontaine, you said that you had raised $4,000 for the last election and you ran five candidates. In what areas of Canada did you run those candidates?
Mr. Fontaine: We had one candidate in B.C., two in Alberta and two in Ontario.
Senator Milne: None in your home province?
Mr. Fontaine: I am in Ontario now at Sault Ste. Marie. I lecture at Algoma University and Laurentian University. We had opportunities to run people in Manitoba, but we did not. It was a timing issue.
Senator Milne: I congratulate you on your initiative. I find it absolutely amazing that you can run five candidates. To meet even the minimal expenses of a candidate just to register is absolutely incredible on $4,000.
Mr. Hébert, you spoke to us about identification of gifts of goods and services that are intended to buy influence. The concern has been brought to my attention today about how the bill deals with gifts. A candidate is prohibited from receiving a gift that might be expected to influence their position if elected. They are totally prohibited from receiving a gift of that nature. Yet, once elected, if the candidate becomes a cabinet minister, he or she is allowed to receive gifts from self-defined ``friends'' and not report the gifts. There is absolutely no requirement upon a minister to report a gift if he or she has defined it as coming from a friend.
It seems to me that there is quite an imbalance between the stricter requirements on candidates who are not elected and someone who is in a position to influence decisions of the government. Do you think that should be corrected in the bill, sir?
Mr. Hébert: I heard you mention this earlier and, to be honest with you, it is the first time I have heard this particular criticism of the bill, so I have not spent a tremendous amount of time thinking about it. I can tell you that candidates and ministers, apart from their difference in responsibility, are actually quite different creatures when it comes to the Canada Elections Act. In the Canada Elections Act, a candidate is a candidate for a period of, potentially, 36 days, and only longer if the election campaign is longer. As to the ability to receive gifts, if it is your birthday on E- Day minus 32, you can still receive a gift, or you could always hold off until the campaign is over, just to be clear. A minister, however, takes the responsibility for a much longer period of time, and how does one determine whether a gift buys influence when, under normal circumstances, a person can receive gifts? That may be part of the challenge with this legislation. To be honest, I have not given this enough thought to be able to suggest whether there is a significant discrepancy.
As I have mentioned at previous committees, there is a real problem with recognizing when someone is officially a candidate. The Canada Elections Act currently says you are a candidate the moment you register as a candidate during the election period. However, candidates are often candidates when they are nominated months before the election.
Senator Milne: Some have already been nominated for the next election.
Mr. Hébert: As a result, you find yourself in a situation where candidates could receive gifts well before the election happens. In fact, it could be buying influence but it is not covered by the Elections Act because they are not identified as candidates.
We have long said you have to be identified as a candidate when you are nominated. That is the moment when your recognition as a candidate should take effect. At least from that perspective, I will offer you my analysis, even if I may not be able to provide you with a detailed answer on ministers.
Senator Milne: Do you think there should be restrictions on third party advertising during campaigns? How does the NDP view the use of third party advertising?
Mr. Hébert: It is one area of significant concern to us. We are worried that inevitably non-profit organizations, charitable organizations and other organizations end up playing a role, if you will, of pushing people toward political parties despite the fact that these organizations are not able to contribute. In a way, it is a soft contribution mechanism that we are concerned about.
If you limit that, I understand there are some Charter issues about freedom of speech that concern people who are around this table, and certainly who sit in the House of Commons. I understand the desire not to go against the Charter in that spirit.
I am afraid I do not have a foolproof method of Charter-proofing any legislation that could try to prevent third- party spending in that way. At least now we have limits on third-party spending. At least now they are required to register. While I wish they were not in the system, I have yet to come up with a mechanism that would prevent them from being there.
Senator Milne: If we pass this bill without amending certain parts of it, when do you think the election financing provisions of this bill should come into effect?
Mr. Hébert: I believe the provisions should come into effect when the bill is officially brought into law, when it is given Royal Assent, whether that is next month, in March of next year or whenever that might be. I think it is our responsibility to pay attention to it the moment it is given Royal Assent.
Senator Milne: You have just come out of a big meeting in Quebec City.
Mr. Hébert: We have.
Senator Milne: How much were the delegate fees for your meeting?
Mr. Hébert: Our delegate fees were the lowest they have been since 1977, which financially has an impact on the party's functioning as well, but we believe that the internal democracy of the party is important. Our fees were $95 for delegates. We feel that if you are elected at the local riding level, that should be significant enough to allow you the ability to get there. Because Canada is such a huge country, just the travel expenses for a lot of these delegates are so large that you do not want to add an extra impediment. Therefore, generally speaking, our delegate fees are very low.
Senator Milne: Do you plan to provide receipts for those fees?
Mr. Hébert: We receipt all our convention fees fully as contributions.
Senator Milne: Do you think those fees should count against the $5,400 limit? I think that situation applies in the present Bill C-24.
Mr. Hébert: It currently does and we believe it should continue.
The Chairman: What did the $95 cover?
Mr. Hébert: The $95 covers basically the delegate's access to the floor and these sorts of things. It helps us to defray costs around producing binders.
The Chairman: Room rental and so on?
Mr. Hébert: Yes, it helps to pay for that. It does not nearly cover the cost of that but it does help to defray some of those costs.
The Chairman: In your presentation, you have a summary at the end. In it, you say that you would like to have seen other elements in the bill, and the first is fixed election dates. I thought that there was —
Mr. Hébert: Yes, it has been addressed in terms of another piece of legislation.
The Chairman: Then you talk about proportional representation. When Ed Broadbent was in the House, I think he chaired a committee that looked into that, so some work was done on that.
Mr. Hébert: I am afraid the work seems to have stalled on that particular piece, much to Parliament's detriment.
The Chairman: The next one is expense limits on leadership contests. You say that leadership contestants are the only electoral entities to be exempt from campaign spending limits, which leads to the ability or perception that a leadership contestant can buy success in a registered party's leadership race. Earlier, in responding to a question from Senator Milne, you said that Canada is a huge country and that it costs a lot to travel around. If you come from a small town, say in Nova Scotia, and you run for the leadership of a party like yours and you must go all the way to Western Canada and so on, do you think there should be something special involved in terms of limits for a leadership campaign of a national party?
Mr. Hébert: I think the limits should not be too low, but on the other hand, I also do not think that you should be able to buy a leadership race by spending millions of dollars. A fair limit must be put on those contests.
The Chairman: What is a fair limit for a leadership contest in a country as big as Canada?
Mr. Hébert: In our last leadership race, the limit was $75,000.
The Chairman: For transportation as well?
Mr. Hébert: Yes, for transportation as well. That limit required our candidates to be careful about the way they travelled, but it also provided a bit of fair access to the system as well. It meant that if you did not have $1 million to throw into a leadership campaign, you could still participate at the same level as everyone else.
Senator Stratton: We are all getting a little punchy, I think. It is the end of a long day.
Mr. Fontaine, it is interesting to hear of your new party amongst First Nations. To your knowledge, are there any other First Nations parties in genesis form to date?
Mr. Fontaine: There is another party from Manitoba; I think it is called the People's Political Power of Canada. It is basically situated in Manitoba.
Senator Stratton: Just provincially?
Mr. Fontaine: No, they have applied for federal recognition.
Senator Stratton: Is it the Southeastern Tribal Council or something like that?
Mr. Fontaine: No, southeast is not involved.
Senator Stratton: My question is to both of you, because I was recently in the Republic of Congo observing their election there in late July. They had 33 candidates for president. They had 250 candidates for one seat in the House of Representatives. Those numbers are staggering. Mind you, it is the first election in 40 years and there will be a runoff, I think, on October 25 or 27, if they stop shooting.
The question that concerns me, and I think all of us, is if we are to make this an open and democratic process, which we want to see, because I believe in proportional representation, how can we more appropriately allow this to happen and still have an open and democratic process?
My concern is that if everyone wants equal time on television and equal time at all-candidates debates, the wheels start to come off. Can I have your reactions to that, as to where you think the limits would be?
I think the other four parties that were here had a consensus there would be around 15. However, I discovered your party, Mr. Fontaine, and two in Manitoba alone federally that I was not aware of, so we start to worry about the numbers if you took the threshold away and allowed any number of parties to compete and demand equal time on television and at all-candidates' meetings.
Mr. Fontaine: From my perspective, there should be no limits on democracy. If an individual or a people organize to participate, they should have that right to participate. How one controls that participation in terms of television and radio and whatever else media outlet that one wishes to use for debates and so on, I am not sure.
What are the limitations? You could have a 4 per cent vote threshold; you could have a number of thresholds. The more important aspect in terms of proportional representation is having this opportunity to participate and having an opportunity to represent the needs of one's people in Parliament. I think it is important to be able to address those needs from your own people's perspective.
Belgium and a number of countries in the European Union have proportional representation. The first Peoples National Party points to New Zealand as an example that Canada can follow primarily because it provides seats for the Maori. It also allows for proportional representation within Parliament. At any given time, their Parliament can have four Maori people to 12 to 18. From that perspective, I do not see limitations or restrictions to participation as necessary at this point.
Mr. Hébert: I suggest there is a very significant difference between a minimum barrier for proportional representation and political party financing. The reason for that is quite simple: At some point you have to have a minimum amount to be able to start having representation. If one vote means one representative then at some point it does not make any sense because you could suddenly have a House of Commons with a million people. There does have to be some sort of threshold.
When it comes to a person's vote and the financial weight of that person's vote, it is actually not fair to smaller parties that they do not get the same weight as other parties. There is a big difference in my mind about what is practical in terms of being able to govern the country and what is practical in terms of promoting democracy and supporting smaller parties. The smaller parties need the support from even a small number of people and that is reflected in the financial support they get as well.
Senator Stratton: I have just one follow-up. The conclusion reached in the Congo example would be that in time, over the next few elections, these smaller parties would converge. I expect that if we did come to proportional representation and there was a proliferation of parties, the same thing would happen. If you want to have power, you have to have strength, because otherwise, you will not exist or you will exist at a subsistence level and not accomplish anything. Would you agree with that?
Mr. Hébert: I think you are right, but I would add that for a long time Canada functioned without minority governments, and I think we are starting to understand what it means to be in a minority government again. It is taking us some time to adjust. Over time, even if there were a larger number of parties represented in the House of Commons, we then would learn what coalition governments are about and operate in a way that is actually more reflective of the opinions of the population. So, while I know you support proportional representation, I suggest that part of it is practice, and getting into the habit of knowing how to express the politics of the people who elect us.
Mr. Fontaine: Numerous studies have shown that First Nations peoples are the fastest growing population in Canada. The First Peoples National Party of Canada knows that if First Nations people were to vote in a block, we would be looking at 23 seats in the House. In the longer term, we would be looking at 86 seats. Again, it is not subject to one region, it is all across this country, from the West Coast to the East Coast, and from the North to the South. That is the type of representation and movement that we are looking at. We have taken a small step, but it is a small step nonetheless. It has gotten people involved and interested. I was interested to hear that the NDP had a $95 registration fee. At our convention we charged $5. Why $5? What is the significance of $5? Our treaty money is the significance.
Many of the people made the effort to attend the meeting in Winnipeg. People travel on their own cost; people donated time. We had over a hundred participants. That is a start. We had young people, elders, women, and the fact that our leader is an Anishinabe speaks volumes to where we want to be.
The Chairman: Like Senator Milne, I was impressed at the number of people that you had engaged in the last federal election on a very, very limited budget. I wanted to know if all of them are prepared to run again. They have had experience from one campaign, at least. If we had an election in two or six months down the road, are they all prepared to run again?
Mr. Fontaine: Yes, they are, and, in fact, we are looking at probably a slate of 23 candidates for the next election.
The Chairman: Congratulations.
Senator Day: Thank you. Mr. Fontaine, is the First Peoples National Party of Canada a registered political party?
Mr. Fontaine: Yes, it is.
Senator Day: And you do not find the paperwork too onerous?
Mr. Fontaine: Not for me, it is not, but for the president and the people that volunteer, it is. They find it cumbersome. Many of the volunteers are mothers, grandmothers and young people from the universities and obviously, they donate whatever time they can give. Yes, they find it onerous. I try to make light by saying I do not because I really do not get involved in that detail. I give my thanks, I say ``meegwetch'' to the people who do that work and I appreciate their help.
Senator Day: You are speaking on behalf of your party then and you are not supporting an increase. The other small parties that appeared before this committee saw that knocking the amount down to $1,000 as a conspiracy against small parties. They would like to see an increase on the $5,000 but they could live with the $5,000.
Mr. Fontaine: I want to preface my comments by saying we are new to this process. We do not know the details in terms of how that will impact us right now. I want to come back to the notion that a lot of the work is being done by volunteers and hopefully at some point you will have First Nation chiefs and councils and administrations providing some assistance and some financial support. We look at Bill C-2 as just a door that allows us to enter into this process and the details in terms of going from $5,000 to $1,000, all of the details, we do not know how they will impact us as yet. Perhaps in a year we will have a totally different perspective and position.
Senator Day: I am not sure how Bill C-2 allows you to enter the process.
Mr. Fontaine: It is my perspective, from what I have heard and thus gained, that the bill promotes accountability and is looking to establish transparency in this process. If the bill does that, then it will level the playing field. There will not be a secret pot of money that you can draw from.
Senator Day: It is reducing campaign contributions from $5,000 to $1,000. Two years ago, legislation created a limit of $5,000, and Bill C-2 is reducing it to $1,000.
You said that Bill C-2 must allow for constituencies to focus entirely on their issues. I emphasize ``their issues'' because it is the people who should dictate direction, not corporate or special interests. You said you are new to the process, and I do not want to go into specifics if you do not want to. You are saying generally that any legislation with respect to the election process should focus entirely on the issues of the people. Is that what you are saying?
Mr. Fontaine: That is what I am saying.
Senator Day: I appreciate your help on that.
Mr. Hébert, I wish to follow the helpful brief that you gave to the committee. In the second paragraph, you said that it is the NDP's hope that amendments can be made to the proposed legislation to help resolve some of these challenges. Now is the time to talk about amendments. I saw one of the clarifications or possible amendments and I want to hear your comments on whether there should be a specific amendment vis-à-vis the central processing of donations made at the constituency level. You are concerned that that might be reflected as a national donation and, therefore, limit the amount you can raise. Have you received a ruling or an indication that you will need a specific amendment for that? Would that not be simply an accounting issue?
Mr. Hébert: Indeed, it would be more than an accounting issue, because where the money is deposited, it is considered to have been received. If the federal party is taking a contribution that a local riding has decided to receive and it is being processed by the federal party, whether a credit card donation or a cheque or other, our receiving it makes it a contribution to the federal party because we deposited it. The moment we return it to the riding it becomes a transfer. You get to see it because the system is transparent from that perspective. However, it means that for a $100 donation, for example, the federal party can fundraise only $900 from that same donor after that point. On the other hand, the riding still has the full $1,000 to be able to fundraise from that individual. It would be nice to see an amendment that would allow donations clearly targeted for riding associations to come through the federal office or through the national office of a party so that the contribution, clearly and in a marked way, would not count towards the donor's limit to that entity, if you will.
Senator Day: Could you not put it in a separate clearing account, for example?
Mr. Hébert: No, because that would not be allowed.
Senator Day: Is there a clause of Bill C-2 that should be amended, or should a new provision be added to the bill?
Mr. Hébert: It would have to be a new provision. You are talking about levelling the playing field and how that happens in Bill C-2. For political parties, it is always easier to go to a handful of people and ask them for money and move on. It forces political parties, our party included, to broaden their bases so much more so that they will appeal to a wider number of donors to be able to do the work that allows us to be successful.
It is not only about financing but also about broadening the base and being in touch with the grassroots. All political parties should take that on as a challenge and as a good thing for us to do, not as an insurmountable obstacle. It will be more work on our part but it is a healthy thing for our democracy.
Senator Day: You indicate that some of the filings and reports at the volunteer riding level are quite onerous and so your party tries to help out as much as possible from a central point of view.
Mr. Hébert: We help out as much as we can. The fact is that there are 308 riding associations and each has a relationship with Elections Canada. At times, they make mistakes. We always have to follow up on those to ensure that everything is clear. We do not mind carrying an administrative burden to make the CEA work. We hope that our riding associations are not doubly challenged by the amount of work that would go into it for them. In large part, there are penalties for their lateness on certain reports, such as the one on gifts. That is one of the examples where we could allow freedom to the Chief Electoral Officer to give them some flexibility if there is a good reason. That would be a useful amendment to the CEA that would then not require our poor volunteers to have to appear before a judge, explain why they were late with a report and go through all those hoops. Certainly, that would be a positive amendment.
Senator Day: You list a number of other areas, such as expense limits for leadership candidates. These would be new initiatives that you would like to see, as opposed to current wording in Bill C-2 that you find problematic.
Mr. Hébert: We would have liked to see these items addressed in C-2 when it was introduced. Clearly, these are outside the scope of the bill. We would hope they would be addressed because they were not addressed in the bill.
Senator Day: You said that it is your hope that amendments can be made to this proposed legislation. Have you outlined for the committee all of the points in your presentation where amendments should be made to Bill C-2?
Mr. Hébert: You will find most of those addressed in the brief.
Senator Day: I have been following the concluding paragraphs where you mention a number of proposed amendments that have been presented to another legislative committee.
Mr. Hébert: Yes, the House and Procedural Affairs Committee of the House of Commons has asked the political parties to provide an extensive review of the Canada Elections Act and processes, which include everything from audit fees to reporting structures. The review is extensive. We had numerous recommendations to make at that level, but I did not think it would be useful to burden this committee with them.
Senator Day: Do any of those affect Bill C-2?
Mr. Hébert: No, the ones extracted from that report on Bill C-2 are included in the brief before the committee.
Senator Day: With respect to $95 per convention, you indicate that the amount is tax receiptable and that you include that as part of the overall limit?
Mr. Hébert: Yes.
Senator Day: I want to clarify whether this covers only part of the actual costs.
Mr. Hébert: It does not come close to covering the costs. Our conventions are always more expensive than what we can bring in in revenues for delegate fees. Often, we will have fundraising events to try to help subsidize those costs. The amount of $95 does not cover the costs. We believe it to be simply the price a party needs to pay for its internal democracy.
Senator Day: It is a method of building your party.
Mr. Hébert: It is not only about building the party but also about ensuring that our internal democracy is healthy, and New Democrats care a great deal about that. As a result, we pay the price for it.
Senator Day: Would the additional cost come out of the general funds of the party?
Mr. Hébert: Yes.
Senator Day: Mr. Fontaine, would your additional costs come out of general revenue?
Mr. Fontaine: It would come from income contributions, people that donate space, food costs and the like.
Senator Day: All of those things have to be declared as benefits. Obviously, if you want to break even with respect to a convention and you do not want to take it out of your general funds, the amount that you have to charge would be significantly higher.
Mr. Fontaine: Yes. The intent is not to break even but to reach out and build the party. You asked me earlier about the donation decrease from $5,000 to $1,000. Obviously, as a new party, we will not have too many donors that have $5,000, but we do have a lot of people who are willing to donate $50 and $20.
Senator Day: That is what we all have to do.
Mr. Fontaine: That is more important to us.
Senator Day: For your information, some of the smaller parties that are narrow-issue parties have individuals that are prepared to give them a significant amount, one individual, $20,000, for an animal rights party, that kind of thing. That is why it is a little different for some parties than for others. Their desires will be sacrificed because of the desire for accountability.
Could you tell me, finally, Mr. Hébert, how increasing the time within which somebody can be prosecuted for an offence under the Canada Elections Act from seven to 10 years increases accountability?
Mr. Hébert: In the Chief Electoral Officer's opinion, and certainly in ours, if you allow a greater amount of time to pass, you get to know more about the circumstances that usually take place and are then better able to determine how to prosecute those issues. Generally speaking, the increase of time allows that type of flexibility, which is quite useful.
Senator Day: You are aware — and I wish to know if you support this — that the decision to prosecute is being taken away from the Chief Electoral Officer and being given to the proposed new federal prosecutor, a quasi- independent federal prosecutor.
Mr. Hébert: That is not an element I have heard before.
Senator Day: I would ask you to take a look at that and correspond with the clerk as to whether you think that is a good idea.
Mr. Hébert: Sure.
Senator Zimmer: Gentlemen, this has come up a couple of times. Of the small parties that were here — the Libertarian Party of Canada, the Animal Alliance Environment Workers Party of Canada, the Canadian Action Party, et cetera. Mr. Fontaine, as Senators Oliver and Milne said, I commend you for what you did in Manitoba, for starting up your party in December and running five. You said it was a small step. Maybe. There was a man 35 years ago who said that he had taken a small step for mankind, but it is now a giant step. I wish you good luck in your party.
The new legislation and amendments will ban in-kind donations from corporations. That being the case, you can still get donations — paper and things like that — from individuals but not from companies. Would your ability to raise funds be impeded if legislation bans in-kind donations from companies and corporations?
Mr. Fontaine: No, I do not think so. Again, I should have referenced this as well. The approach that the First Peoples National Party of Canada is taking is more of a civil rights-type of approach. Travelling to a lot of communities will be costly, but we look at that kind of involvement and that kind of participation as fundamental to this. Will there be an impact? We do not know, but we will deal with it when the time comes. Again, we have a number of people going door to door looking for small donations. Again, we do not have generous benefactors that are able to give us $10,000 or $20,000; but we have donors who give us $10, $50.
Senator Zimmer: Thank you, Mr. Fontaine. I wish you the very best. Thank you, gentlemen.
The Chairman: Thank you both for two very excellent presentations. We have had an opportunity to learn a great deal from you and it has helped us in our study of this bill.
Honourable senators, I shall now adjourn this meeting. The committee will meet tomorrow at 9:30 a.m. to continue its study of Bill C-2.
The committee adjourned.