Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 14 - Evidence, October 24, 2006
OTTAWA, Tuesday, October 24, 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 2:37 p.m. to give clause-by-clause consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: I would like to welcome honourable senators, members of the public in this room and viewers across the country who are watching this committee on television.
The Standing Senate Committee on Legal and Constitutional Affairs is meeting to resume consideration of Bill C-2. We have considered an extremely wide range of issues since we began this odyssey in June. For example, we have heard some 151 witnesses on such subjects as accountability, ethics and conflict of interest, parliamentary privilege, political financing, the parliamentary budget office, access to information, privacy, whistle-blowing, audit powers and procurement. We are now at the stage where we will begin to go through the bill, clause by clause.
Before we do this, I would like to remind honourable senators of a number of rules and procedures relating to clause-by-clause review. This bill is large, 214 pages. As previously noted, it covers a wide variety of issues. I know that senators from both sides are eager to ensure that in this committee we do the best we possibly can so that when the Senate takes up this bill again on third reading it has before it the best possible product.
Because of the large number of clauses, the complexity of some measures and the variety of amendments that may be offered, it is important that we take our time, that we do it carefully, and that we get it right.
The House of Commons held its clause-by-clause deliberations over several days. We have reserved today and tomorrow to deal with this stage of the process. Rushing is, therefore, unnecessary, and undue haste risks causing errors and confusion that can lead to unnecessary complexities and delays.
Therefore, if at any point any senator is not clear where we are in the process, please ask the chair for clarification. We must do our utmost to ensure that we, at all times, have the same understanding of where we are in this process of clause-by-clause review.
For example, because of the way the bill is drafted, it will be necessary to look at the impact of any given amendment on other parts of the bill. This process, obviously, can be confusing for most of us, so I ask you to be patient while we go through this part of the process.
Also, we will take occasional health breaks, which will cause a brief suspension of the hearings. I know it is better for the television broadcasts if we go in two-hour segments. This strikes me as being a reasonable length. As a general rule of thumb, I will suggest to honourable senators that we have a break about every two hours. Of course, this will be flexible. If we are in the middle of a clause-by-clause debate, I will not ask for a break just because we have reached the two-hour mark. Similarly, if it looks like a break would be helpful to allow honourable senators to have a few moments of quiet contemplation, I may propose a break sooner.
In terms of the mechanics of the process, I wish to remind honourable senators that when more than one amendment is moved in a clause, the amendments "should be proposed in the order of the lines of a clause." This is noted in Beauchesne in citation 697(2). Similarly, Marleau and Montpetit, at page 653, note, "amendments should be proposed following the order of the text to be amended."
What this means in common language is that we do not do line 10 before line four. Therefore, before we take up an amendment in a clause, I will be verifying by asking if there are any honourable senators who had intended to move an amendment earlier in the clause. If senators do intend to move an earlier amendment, they will be given the chance to do so. I hope honourable senators will be understanding of the chair when called upon to make such a ruling.
Senators are also aware that some of the clauses in this bill are quite long, indeed. For example, clause 2, which proposes to enact the conflict of interest act, runs from page 2 to page 33 of the bill. That is one clause. For convenience when dealing with such long clauses, I propose, and I seek your concurrence, that we go through each page asking whether there are any amendments to be offered to it. If there are many amendments on one page we may, if necessary, go through that page line by line rather than clause by clause.
This particularly applies to the following clauses: Clause 2, which runs from page 2 to 33; clause 28, which runs from page 44 to page 49; clause 40, which runs from page 52 to page 56; clause 121, which runs from page 103 to 109; clause 201, which runs from page 140 to page 156; and clause 203, which runs from page 157 to page 161. These are the clauses that run for more than five or more pages. Needless to say, if we ever to go through the shorter, but no less important clauses in the same way, we can do that.
One small point: If a senator is opposed to an entire clause, I remind the committee that the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause standing as part of the bill. In this matter, I refer senators to Beauchesne citation 698(6) that notes, "an amendment to delete a clause is not in order as the proper course is to vote against the clause standing part of the bill." Similarly, Marleau and Montpetit, at page 656, states that "an amendment is out of order if it simply attempts to delete a clause, since in that case all that needs to be done is to vote against the adoption of the clause in question."
A note about consistency: I wish to remind honourable senators that, because of the complexity of the bill, some amendments that are moved may have consequential effects on other parts of the bill. It is very important that the committee remain consistent in its decisions so that the decisions can be consistently applied throughout the entire bill.
I refer senators to Beauchesne, citation 698(2):
An amendment must not be inconsistent with, or contrary to, the bill as so far agreed by the committee, nor must it be inconsistent with a decision, which the committee has given upon a former amendment.
Once we start making decisions as a committee, the next decisions must be consistent with our decisions.
In the spirit of the statement, it would be very useful in this process if a senator moving an amendment could identify to the committee other clauses in the bill where the amendment would have an affect. Otherwise, it could be very difficult for members of committee to remain consistent in their decision making.
Staff will, of course, endeavour to track these places where subsequent amendments need to be moved and will draw those to our attention. We will put those before honourable senators. Because no notice is required to move amendments, there can, of course, have been no preliminary analysis of amendments to establish which ones may be inconsistent to others and which may be contradictory. If any honourable senator has any question about process or the propriety of anything going on, the way to proceed is to raise a point of order. The chair will listen to the argument, decide when there has been sufficient discussion on the matter of order and make a ruling. The committee, of course, is the ultimate master of its business within the bounds set by the Senate of Canada and a ruling by the chair can be appealed to the full committee by asking whether the ruling should be sustained.
On the issue of receivability of amendments, I wish to quote from a statement made by the late Senator Molgat on April 2, 1998, in a Speaker's ruling, wherein he said:
Let me begin with this general proposition. It is my view that matters are presumed to be in order, except where the contrary is clearly established to be the case. This presumption suggests to me that the best policy for a Speaker is to interpret the rules in favour of debate by Senators, except where the matter to be debated is clearly out of order.
If this applies to the Senate, it is my view that it would be sage practice for us to follow in a committee. If a committee decides an amendment is frivolous or aimed at preventing the orderly conduct of business, I would expect that there would be less sympathy to allowing debate.
As chair, honourable senators, I will do everything I can to ensure that all honourable senators wishing to speak have the opportunity to do so. For this, however, I will depend upon your cooperation. I ask all of you to think of other honourable senators and to keep remarks to the point and as brief as possible. Always remember that there are 11 other members of this committee who have an equal right to make an intervention.
Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the result of a voice vote or a show of hands, the cleanest route is to request a roll call vote, which will provide clear and unequivocal results. Senators are aware that any tied vote negatives the motion in question.
If there are no further questions, we will begin. Is it all right to proceed, honourable senators?
Senator Day: Mr. Chairman, first, I wish to thank you for that extensive review of the rules. That will be very helpful. I think we can cooperatively work through this horrendous task before us.
I want to point out that, because of the extensiveness of this bill, we will be having a spokesperson to present an amendment, depending on the subject matter. We will be moving between various senators, depending on the subject matter of the particular amendment.
The Chairman: In our case, we will have Senator Andreychuk, Senator Nolin and Senator Stratton doing the same thing.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability? Agreed or not agreed?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed? Agreed or not agreed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1, which contains the short title, stand postponed? Agreed or not agreed?
Hon. Senators: Agreed.
The Chairman: Clause 2, page 1 to 33, enacts the conflict of interest act. Shall clause 2 which enacts the conflict of interest act carry? Agreed or not agreed?
Senator Day: Not agreed. We have quite a bit of work to do on this particular clause, as you, Mr. Chairman, have pointed out. I think you indicated you will be going page by page?
The Chairman: Yes. As previously indicated, I will go through each page of this clause and ask if there are any amendments to that page. If there are, we will act accordingly.
Senator Day: Thank you.
Senator Ringuette: Mr. Chairman, because of the difference of the French and the English on the page and in the different clauses, will you be going as per the English side of the act or as per the French?
The Chairman: I am using the English side. Do senators have any amendments they wish to propose to clause 2, pages 1 to 33, which enacts the conflict of interest act on page 2?
Senator Andreychuk: I move:
That Bill C-2 be amended in clause 2 by replacing line 35 on page 3 with the following:
(d.l) a ministerial appointee whose appointment is approved by the Governor in Council; and
Could I get some direction? Would you like me to move it and then speak to it?
The Chairman: Would you like to speak to it, please.
Senator Andreychuk: Yes, I move this amendment. It is a technical amendment to address a gap noted in the definition of "public office-holder." Directors of Crown corporations, because they are part-time ministerial appointments subject to the approval of the Governor-in-Council, would not be captured under the existing definitions in Bill C-2. The original policy intent was to capture these individuals as public office-holders.
I believe there have been discussions with the law clerk and others, and some of these amendments that I will deal with make the act more consistent. They fill gaps that have been noted either by some of our witnesses, by our own Senate law clerk or by, indeed, senators themselves.
Senator Day: We can support that amendment, Mr. Chairman.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Ringuette: I would like to move the following amendment:
That Bill C-2 be amended in clause 2, on page 4, by replacing line 5 with the following:
"Governor in Council may appoint a person, but does not include the Senate or the House of Commons.".
The Chairman: Before you go further, do senators have any other amendments they would like to see before line 5 on this page? If not, please proceed, Senator Ringuette. Senator Ringuette, do you have copies of what you are reading?
Senator Ringuette: Yes.
Senator Day: Mr. Chairman, my understanding is that the clerk was provided with all our documents some time ago.
The Chairman: None of us have received any of them yet.
Senator Day: The idea was that we gave them to the clerk ahead of time so he could make copies for everybody.
The Chairman: That has not been done yet. I would like to proceed. Hopefully they will be photocopied soon.
Senator Day: Could you confirm that the clerk has received copies of all of them?
The Chairman: He has received them, but they are being photocopied. The photocopies are not ready, so we do not yet have copies.
Rather than delaying the proceedings, Senator Ringuette can proceed and we will try to follow without the written text.
Senator Ringuette: This is a technical amendment.
The Chairman: You are adding words after "may appoint a person." Can you tell us those new words again after "person"?
Senator Ringuette: "Governor-in-Council may appoint a person, but does not include the Senate or the House of Commons."
The Senate and the House of Commons are not public-sector entities.
The Chairman: Do you have any further comments you wish to make?
Senator Ringuette: No: It is a technical amendment.
Senator Nolin: Senator Ringuette identified that as a technical amendment. Is it possible, if we all agree, to hear from the department officials, perhaps from Mr. Wild, to tell us if they have looked at that technical amendment, and if not, the reason why not?
The Chairman: Could I ask someone from the department to come forward to the witness stand and respond to the question put by Senator Nolin. Mr. Wild is here on behalf of the Treasury Board.
Mr. Wild, have you had an opportunity to look at this particular amendment proposed by Senator Ringuette?
Joe Wild, Senior Counsel, Legal Services, Treasury Board Portfolio, Treasury Board of Canada: Not really in advance. However, I have a reaction to it, to ensure clarity, as to why the definition of "public-sector entity" was crafted the way it was and how it works vis-à-vis the actual proposed conflict of interest act.
The rationale behind why the public-sector entity was written in such a way that it could include the Senate or the House of Commons relates to trying to put in place a prohibition on public office-holders from contracting with the Board of Internal Economy.
For example, if the Board of Internal Economy is to perform some type of a contract of service or goods, by ensuring that the House and Senate are captured under "public-sector entity," it would prevent the board from contracting with a public office-holder or their family for that good or service within the exceptions in the act. Because there are public office-holders who sit on the board, the idea was to try to have a scheme whereby, for example, the Government House Leader who sits on the Board of Internal Economy would not be in a position to persuade that board to provide contracts that would benefit either himself or his or her family members.
Senator Ringuette: We already have in place, for example, the Senate Code of Ethics, which takes care of that, and in the House of Commons, I think that the rules of conflict of interest are very clear. I do not agree with the argument that has been put forward and therefore, I stand by the amendment that I am proposing.
The Chairman: Is there any other discussion? If not, it is your pleasure, honourable senators that the motion in amendment, carry?
Senator Day: Are we just voting on this one amendment, not the entire section?
The Chairman: No, just the one amendment. There is room for more on the page after this.
Do honourable senators want me to read it once again? Is it all right if I not read it again?
The amendment is carried on division.
Resuming debate on clause 2 as amended. If there are other amendments senators wish to propose to this clause, this is an appropriate time to put them forward. The clause is on page 4.
Senator Andreychuk: I have an amendment at line 20, so I do not know if there are any amendments between line 5 and line 20.
The Chairman: This is line 20 in the English version, so it will be (d).
Senator Andreychuk: I move:
That Bill C-2, in clause 2 be amended by
(a) replacing line 20, on page 4, with the following:
(d) a Governor in Council appointee, or a ministerial appointee whose appointment is approved by Governor in Council, who
(b) replacing line 24 on page 4 with the following:
(e) a Governor in Council appointee or a ministerial appointee whose appointment is approved by the Governor in Council, who
I move this as a technical amendment that ensures that full-time ministerial appointees whose appointments are confirmed by the Governor-in-Council are subject to the rules governing reporting public office-holders. The original policy intent was to capture these full-time ministerial appointees as reporting public office-holders, so the amendment does that.
The Chairman: Senator Day, this is considered a technical amendment.
Senator Day: Mr. Chairman, I have difficulty with the term "technical amendment." It is an amendment or it is not an amendment, and I am not convinced to support it or not support it because someone describes it with the adjective "technical." However, I would be happy to support this one.
Senator Andreychuk: Perhaps I could respond why I am using the word "technical." This is where I am trying to say the government has put out its original intent, and if parts of this act do not comply with that and we are putting forward amendments, it is not to reopen the government's position in any way. It is to ensure that the government's position is consistent.
If the term bothers you, I will drop it and not use it, and if I am introducing amendments, you will know that it is within that type of philosophy.
The Chairman: Senator Day, we have heard your representation.
Senator Day: I just want to make one other point. That is one of the clauses that we, "we" being the Liberal majority on this committee wanted to see done as well. We had discussion with the Department of Justice as a result of our opening up the lines of communication over the last day or so, so we are now able to say that has been shared with us. You have achieved the point that we all wanted.
The Chairman: Is it your pleasure, honourable senators that the motion in amendment carries?
Hon. Senators: Agreed.
The Chairman: Carried.
After dealing with an amendment, resume debate on clause 2 as amended, if there are other amendments that a senator would like to propose to this clause on this page 4, this is the proper time to make it. Is there anything else on page 4?
We go to page 5.
Senator Joyal: I move:
That Bill C-2 be amended in clause 2,
(a) on page 5,
(i) by replacing lines 26 and 27 with the following:
"4.(1) For the purposes of this Act, a public office holder is in an actual conflict of interest when he," and
(ii) by adding after line 32 the following:
"(2) For the purposes of this Act, a public office holder is in a potential conflict of interest when the public office holder's ability to exercise an official power, duty or function could be influenced by his or her private interests or those of his or her relatives or friends, or could be improperly influenced by another person's private interests.
(3) For the purposes of this Act, a public office holder is an apparent conflict of interest when there is a reasonable perception, which a reasonably-well informed person could properly have, that the public office holder's ability to exercise an official power, duty or function must have been influenced by his or her private interests or those of his or her relatives or friends, or must have been improperly influenced by another person's private interests.";
The Chairman: Senator Joyal, this is one of cases where all of the technical staff and none of the Conservative senators have received any of these documents, and that was a long amendment. I checked with the clerk to find out how much longer it will take before we can have some of the paper documents, and, apparently, there is a package several inches high and three people are photocopying now, and we do not have it yet.
Honourable senators, I am in your hands, shall we suspend for 15 minutes?
Senator Nolin: I do not know if Mr. Wild has access or read that amendment. Why do you not come to the table because we will definitely ask you questions on that. Did you have prior access to that?
Mr. Wild: I have not seen it.
Senator Nolin: Maybe we should suspend, just to make it proper.
The Chairman: Honourable senators, with your leave, we will suspend for five minutes, and I will check to see how much longer it will take to get the documentation.
The committee suspended.
The committee resumed.
The Chairman: Honourable senators, we now have the papers. Senator Joyal was making an amendment to Bill C-2, to amend clause 2 on page 5. Senator Joyal, you had read the entire section. Would you mind now giving an explanation of same?
Senator Joyal: Essentially, the amendment follows the testimony from Mr. Shapiro, the Ethics Commissioner from British Columbia, and other witnesses who have underlined that the conflict of interest code proposed in Bill C-2 refers to actual conflict of interest but does not cover potential or apparent conflict of interest.
The amendment aims to include potential and apparent conflict of interest and, of course, to make the consequential amendments in other places in the bill to reflect those changes. I want to mention that if we accept the amendment I am proposing, there are consequential amendments at pages 6, 9, 12, 14 and 18.
The Chairman: Mr. Wild, could you comment on the remarks of Senator Joyal?
Mr. Wild: I think the first point would be that when we look at proposed section 4 on page 5 at line 29, we talk about "provides an opportunity to further..." Certainly, from a Department of Justice perspective, we would read "provides an opportunity to further" as including a potential as well as an actual conflict of interest.
We would also point to the scheme of the proposed act under "General duty," proposed section 5 on page 6:
Every public office holder shall arrange his or her private affairs in a manner that will prevent the public office holder from being in a conflict of interest.
As well, Part 2 of the proposed act, which contains a series of compliance measures where you are doing disclosure beforehand of your assets and interest, is all about avoiding a conflict before it occurs, or before you are in the position of making a decision that would put you in a conflict of interest. The scheme of the proposed act is very much one that deals with both actual and potential conflict of interest.
The issue of apparent conflict is more difficult, as it is always a question of how the commissioner will interpret that perception in the end. The only point I would make about that is that if apparent conflict of interest is to be included in the bill, sections 5, 6 and 21 of the proposed conflict of interest act would have to be examined to ensure that they would work in a world where you would be dealing with a reasonable person's perception of whether there is an apparent conflict.
From the perspective of the department, we think the proposed act captures both "actual" and "potential." We are not sure that "apparent" is what should be captured, although "potential" can include "apparent." The line between what is apparent and what is potential is fairly fuzzy.
The Chairman: You said the phrase "provides an opportunity to further" hints at potential or apparent conflict of interest. What do you say specifically regarding the proposed amendment of Senator Joyal?
Mr. Wild: From our perspective, the amendment is not needed to capture potential conflicts. We believe proposed sections 4 and 5 already capture potential. The whole scheme and the compliance regime that is in Part 2 is designed to deal with potential conflicts of interest.
You deal with it up front by putting your assets on the table with the commissioner. The commissioner determines when you should or should not be involved in decision making on the basis of that. That deals with potential conflicts of interest already. That could also include apparent conflict.
If the commissioner is of the view that there is an appearance of a conflict or potential conflict, nothing in this language prevents the commissioner from making that finding and giving that recommendation.
I am saying two things. First, we do not view the amendments as necessary in order to capture the concept of potential or apparent conflicts of interest. Second, if you are going to be this specific in bringing in potential and apparent, then proposed sections 5, 6 and 21 will have to be looked at. I have not reviewed the other amendments that have been proposed, so if they have, they have. However, proposed sections 5, 6 and 21 would have to be examined to make sure they work under the scheme the senator is proposing.
Senator Andreychuk: Could I have a clarification? As I understand it, what we want to avoid is conflict of interest, potential or actual. That is certain. When you get into apparent, it seems to me you are getting into a vagueness of reasonableness. Whose reasonableness do you apply?
We would be better off zeroing in on actual and potential conflicts of interest, which are more certain and have a capability of being identified and precluded, if I may say that.
Mr. Wild: That is very much the focus of the proposed conflict of interest act.
Senator Baker: Mr. Wild, would you agree that the definitions of both "potential" and "apparent," are provided clearly in the suggested amendment by Senator Joyal. A "potential conflict of interest" means "could be influenced by his or her private interests," and an "apparent conflict of interest" would be one that a reasonably well informed person. That is the normal standard for judging such a thing; you would have to agree, in law. Therefore, if these definitions are given and those words are to be supplanted in the legislation, what are you saying? I suppose you are saying that it is not needed. There is the term "for greater certainty" and what is wrong with having "for greater certainty" in the legislation? Could you address that and at least agree that it is not abnormal or out of the question. It would provide for far greater coverage under this proposed legislation. This kind of thing should be judged on the basis of what a reasonable person would see as being a potential conflict of interest.
Senator Cowan: I wonder whether these terms are used in the existing codes of the Senate, the House and the conflict guidelines for cabinet ministers.
Mr. Wild: I can answer that with respect to public office-holders, including ministers, under the current code for public office-holders. The terms are not used as defined in this proposed legislation. The proposed conflict of interest act mirrors and borrows heavily from the language used in the current code for public office-holders.
Senator Cowan: It talks about conflict of interest?
Mr. Wild: Yes, and it contains the language "while providing an opportunity." The idea inherent in that is the potential. Again, the act is set up as a disclosure scheme so that you are disclosing up front and the commissioner is giving advice in order to avoid or to address your potential or actual conflicts.
The Chairman: Does that mean the words "actual", apparent" or "potential" are not used in the code?
Mr. Wild: To my knowledge those words are not used.
The Chairman: That is what I thought.
Senator Joyal: In the Conflict of Interest Code for Senators, the word "apparent" is used. I quote section 2(c): "To arrange your private affairs so that foreseeable, real or apparent conflict of interest may be prevented. "The word "apparent" is clearly stated in the Conflict of Interest Code for Senators.
I will quote the Ethics Commissioner, when he testified before the Senate Legal and Constitutional Committee. He said: "Although the bill does set out a definition of "conflict of interest" for the first time, there is no explicit mention of apparent or potential conflict of interest. If the intent of the proposed act is for the commissioner to deal only with situations of real conflict, then the current wording in the bill is probably appropriate. Otherwise, it could lead to ambiguity on the exact role of the commissioner."
In other words, the commissioner, based on his previous experience, stated that it is better to express clearly that the act covers the apparent conflict of interest in the way that it is stated in the Senate code and in the public office-holder code to prevent real, potential or apparent conflict of interest.
We are not reinventing anything here. Rather, we are stating quite clearly that the ambit of any Ethics Commissioner is not only the conflict of interest but also the apparent conflict of interest.
Honourable senators will remember when Mr. Shapiro and Mr. Wilson appeared before the committee they stated clearly that the most difficult situations are not plain and simple conflict of interest where you pronounce on the face of it. The most difficult situations are when the conflict is apparent or potential and doubt is raised that needs to be clarified through a study and final opinion of the ethics commissioner or ethics officer. We did not contravene the intent of the government by stating clearly in the proposed act that this is what it should be.
The Chairman: Honourable senators, we have had a good debate on this. Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Motion carried, on division.
Are there other comments on page 5? Seeing none, page 6, Senator Joyal.
Senator Joyal: I have a consequential amendment to page 6. I move:
That Bill C-2 be amended in clause 2,
(b) on page 6,
(i) by replacing lines 3 and 4 with the following:
"prevent the public office holder from being in an actual, apparent or potential conflict of interest.",
(ii) by replacing lines 10 and 11 with the following:
"the decision, he or she would be in an actual, apparent or potential conflict of interest.", and
(iii) by replacing lines 16 and 17 with the following:
"question that would place him or her in an actual, apparent or potential conflict of interest.";
Mr. Wild: I do not have anything to add. Those are at least two of the sections that I had mentioned you would want to follow through on.
The Chairman: There being no further debate, in amendment to the motion that clause 2 carry, the Honourable Senator Joyal moved that – shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Senator Joyal: On page 6 after line 5, I have another kind of amendment for mention, not a consequential amendment. I move that on page 6 in the same package, third page —
Senator Andreychuk: We have to move and then go back?
Senator Joyal: Yes. We are following the lines, as the chair has mentioned. Essentially, let me explain the technical and then the substantial. The amendment on page 6 would be to delete subsection (2) of section 6 and delete the (1) of the first paragraph because the second paragraph disappears.
I move:
That Bill C-2, be amended in clause 2,
(a) on page 6,
(i) by replacing line 5 with the following:
"6. No public office holder shall make a", and
(ii) by deleting line 12 to 17;
Thus, we would delete proposed section 6(2) and 6(1) of the first paragraph because there will be only the one paragraph in proposed section 6 with that amendment. That is the technical aspect of the amendment. Let me speak to the substantial aspect of the amendment.
Honourable senators, we are dealing with the privileges of senators to participate in votes and debates of the House of Commons and the Senate. You will remember that when we heard the presentation from our legal advisor, Mr. Audcent, he stated that we were statutorily creating an exemption to the capacity of senators or members of Parliament to vote.
However, there is a provision in our code that if a senator has a conflict of interest, he or she, of course, cannot participate in the debate of the vote.
Section 16 of the Conflict of Interest Code for Senators states, in part, the following:
A Senator who has reasonable grounds to believe that he or she, or a family member, has a private interest in a matter before the Senate or a committee of which the Senator is a member shall not vote on that matter, but may abstain.
Honourable senators will remember that a senator at a committee who has a conflict of interest must come forward and make a declaration. The clerk notes it then reads it into the minutes. It is the same in the chamber.
In other words, the objective of that statutory provision is such that a senator or a member of Parliament who has a conflict of interest and is a minister of the Crown or a parliamentary secretary should abstain from voting.
In other words, we achieve the same results but do it within the privileges of senators or members of Parliament instead of doing it in a statutory way. That is the way we think we should deal with the privileges of members of Parliament. That is essentially the gist of the proposal I am putting forward in this amendment to proposed section 6.
The Chairman: Mr. Wild, do you have any comment on that? It is pretty clear to me from what has been explained by Senator Joyal.
Mr. Wild: It does exactly what the senator has outlined. The conflict of interest act would no longer be prohibiting ministers from voting on areas where they have a real conflict of interest. The code would be the mechanism by which one would have to rely.
The only point to make is that, in the past, we used to have statutory prohibition on members and senators sitting in the House or Senate under the Parliament of Canada Act. It was removed when the Ethics Commissioner position was created and the movement went to a code-based system.
It is just that this particular type of provision is not unprecedented or unknown in statute.
The Chairman: Honourable senators, if there is no further debate, the Honourable Senator Joyal moves that Bill C-2 be amended in clause 2 on page 6 — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carries.
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Resuming debate on clause 2, as amended.
Senator Joyal: Since we have adopted those changes and deleted subsection (2) of proposed section 6, I do not think I should be moving the other amendments I had on page 6 to lines 10 and 11 and lines 16 and 17, given that that proposed section has been dealt with. Therefore, I am not proceeding with the consequential amendment of the amendment where we have introduced the apparent or potential conflict of interest. I do not know if anyone is following me. It seems clear we should do it that way.
The Chairman: Are there any other honourable senators who have amendments they wish to propose on page 6? Failing that, shall we move to page 7?
Senator Day: Mr. Chairman, I am trying to follow three or four lists here at the same time. You will have to forgive me. I am not sure that "replacing lines 10 and 11 with the following" should be skipped over by my honourable colleague.
The Chairman: Senator Joyal, would you repeat your reasons for not proceeding with items 10 and 11.
Senator Joyal: From line 10 to line 17, on page 6, subsection (2) of proposed section 6, we have deleted subsection (2) of proposed section 6 in the previous vote. That is being deleted.
Senator Day: Lines 10 and 11 are at the end of subparagraph (1).
Senator Joyal: That is right.
Senator Day: I am sure you see it my way.
Senator Joyal: Yes. I think Senator Day is right. That is the second one that disappeared, because we have deleted subsection (2). To make it consequential with the previous amendment to proposed section 4, on the previous page, we should be moving to replace line 3 and 4 with "prevent the public office-holder from being in an actual, apparent or potential conflict of interest" to the end of the first paragraph of proposed section 6. That is the next one that disappears.
Senator Day: So, we are replacing lines 10 and 11?
Senator Joyal: Yes. Replacing lines 10 and 11 with the following: "the decision, he or she would be in an actual, apparent or potential conflict of interest."
Senator Day: So, that would continue. That is consistent with the earlier amendments; just picking it up. That clarifies it for me.
The Chairman: Is there debate on that new amendment, honourable senators? If not, in amendment to the motion that clause 2 carry, the Honourable Senator Joyal moves that item (b) — dispense.
Honourable senators, is it your pleasure that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
If there is nothing further, let us move to page 7. Is there any amendment any senator proposes to make to page 7?
Senator Joyal: On page 7, I should like to move:
That Bill C-2 be amended in clause 2,
(a) on page 7, by replacing line 9 with the following:
"(b) that is given by a relative or close personal friend; or";
We are being precise, giving a precision. The substance of the amendment is to restrict. "Friend" is such a generic term. In an audience of 200 people, we say, dear friends, but they are not all close personal friends. The words "close personal" restrict our concept of friendship.
The Chairman: Are there honourable senators who wish to comment on the proposed amendment and explanation by Senator Joyal?
Mr. Wild: The only thing I would add is that if you put "close personal" there, it is an extra step. The commissioner would have to ask if the individual in question was a close personal friend and there would be conversation around whether that person was a close personal friend or not.
Senator Cowan: The intent is to make it more restrictive in terms of the persons from whom gifts or advantages can be received. It seems to be an extension of what we are trying to achieve.
I would support the amendment.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chairman: Carried, on division.
Do honourable senators have any proposed amendments for page 7? Page 8? Page 9?
Senator Joyal: I have a consequential amendment on the issue of apparent or potential conflict of interest. It will take some time of the committee, but we must be logical with our approach.
I move:
That Bill C-2 be amended on page 9 by replacing lines 39 and 40 with the following:
"it would place the public office holder in an actual, apparent or potential conflict of interest."
The Chairman: That is consequential. This has been discussed before and we have heard Mr. Wild's opinion.
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chairman: The motion carries, on division.
Is there anything further on page 9? Page 10 ? Page 11, exempt assets? Page 12, recusal?
Senator Joyal: The same consequential amendment.
I move:
That Bill C-2 be amended by on page 12 by replacing line 10 with the following:
"he or she would be in an actual, apparent or potential conflict of interest."
The Chairman: Honourable senators, we have discussed this before. Is it your pleasure that the motion in amendment carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chairman: The motion is carried, on division.
Is there anything else on page 12? Shall we move to page 13?
Senator Joyal: I have a consequential amendment to proposed section 23 at the bottom of the page. I move:
That Bill C-2 be amended on page 13 by replacing line 37 with the following:
"in a 12-month period, the reporting"
The Chairman: Is there any discussion?
Mr. Wild: To ensure that everyone is clear about what is happening, even though the prior amendment specified "close personal friend", we would be removing "friends" altogether from the exception for the disclosure of gifts as opposed to inserting "close personal friends".
The Chairman: Senator Joyal, is that the correct interpretation?
Senator Joyal: That is the intention.
Mr. Wild: It creates a dichotomy, because previously in the proposed act there was a permissive scheme for gifts for relatives, and now close personal friends. Here the exception would have applied normally to relatives and friends, and you would be removing friends from the exception in terms of disclosure.
Senator Cowan: As I understand, one is a prohibition against receiving it and the other is reporting. Is that not correct? Proposed section 11 deals with accepting gifts and other advantages. The amendment that has been passed on division is that that would be restricted, that you would not be entitled to receive a gift or advantage unless it was received from a relative or close personal friend.
In proposed section 23 you are dealing with the reporting or disclosure of gifts. I think the intention of these provisions would be that even though you are permitted to accept a gift, you would have to report it under proposed section 23.
Is that correct, Senator Joyal?
Mr. Wild: That is what I am reading. I am just raising it to ensure that everyone is clear that that is what is happening and that is the intent. It is only relatives who would not be reporting; friends would be.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chairman: The motion is carried, on division.
Is there anything else on page 13?
We are now turning to page 14. Senator Joyal, do you have something near the top?
Senator Joyal: I have a consequential amendment.
The Chairman: Before moving to line 16, does any senator have any proposed amendment before line 16?
There being none, Senator Joyal.
Senator Joyal: I move:
That Bill C-2 be amended on page 14 by replacing line 16 with the following:
"recused himself or herself to avoid an actual, apparent or potential conflict of"
That is a consequential amendment to the previous one.
The Chairman: Does any honourable senator have any comment on that? This is a consequential amendment.
There being none, is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Senator Stratton: On division.
The Chairman: Carried, on division.
Senator Joyal: Honourable senators, I move:
That Bill C-2 be amended on page 14 by replacing line 21 with the following:
"identify the actual, apparent or potential conflict of interest that was avoided."
The Chairman: Do honourable senators have any comment?
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Senator Stratton: On division.
The Chairman: Carried, on division.
Senator Andreychuk: I move:
That Bill C-2, in clause 2, be amended by replacing line 24 on page 14 with the following:
"is appointed as a public office holder,"
This amendment was suggested by the Senate law clerk to correct a drafting error.
Senator Day: I am pleased to support this motion of the Conservatives to amend Bill C-2.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chairman: The motion is carried.
If there is nothing else on page 14, we will move to page 15.
Senator Cowan: I am looking at section 25(2) now. Perhaps Senator Andreychuk would look at it.
In the first line it talks about a "reporting public office holder" and in the third line it also talks about "a reporting public office holder." Is the honourable senator amending in the third line and not in the first line?
The Chairman: Mr. Wild, could you respond, please?
Mr. Wild: I would be pleased to explain it, Mr. Chairman.
The reference in the third line is talking about the time when the clock starts to tick for the 120 days, and it is based on the appointment. The reason we say "public office holder" is because that is what one is appointed as.
The reporting public office-holder is a defined subset of those who have been appointed as public office-holders. When you are appointed a public office-holder, you are either a reporting public office-holder or not for the purposes of the act, depending on whether you fall within the definition or not, but you are appointed as a public office-holder. That is why that is there.
Only the reporting public office-holders are required to meet the obligations set out in the section. It goes back to the scheme of how we have set it up. You are appointed as a public office-holder, and out of that subgroup we define reporting public office-holder.
Senator Cowan: So "reporting" stays in, in line 1, and goes out in line 3. Thank you.
The Chairman: We resume debate on clause 2. Is there anything else on page 14, honourable senators?
If not, page 15.
Senator Joyal: What I have is a consequential amendment concerning the definition of "close personal friend."
I move:
That Bill C-2, on page 15, line 1, be amended by replacing it with the following:
"or more, other than one from a relative"
The Chairman: Senator Joyal, that is consequential and flows from your earlier one.
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The amendment is carried, on division.
Resuming debate on clause 2, as amended.
Page 15, 16, 17 and 18?
Senator Joyal: On page 18, I have a consequential amendment to the parent or potential conflict of interest provision. I move:
That Bill C-2 be amended by replacing line 25 with the following:
"actual, apparent or potential conflict of interest in relation to the reporting"
The Chairman: Honourable senators, this is clearly again a consequential amendment. In the absence of a comment from Mr. Wild, is it your pleasure, honourable senators that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The motion in amendment is carried, on division.
Resuming debate on clause 2. If there is nothing else on page 18, let us move to the next page. Page 19? Page 20? Page 21? Page 22?
Senator Joyal: Mr. Chair, I will first move the amendment and then give the explanation. I move:
That Bill C-2 be amended in clause 2,
on page 22,
(i) by replacing line 1 with the following:
"38.(1) The Commissioner may, on application, exempt"
I then move:
That Bill C-2 be amended by replacing line 22 to 27 with the following,
"(3) The decision made by the Commissioner shall be communicated in writing to the person who applied for the exemption.
(4) If the Commissioner has granted an exemption in accordance with this section, the Commissioner shall publish the decision and the reasons in the public registry maintained under section 51."
The Chairman: Before I ask for an explanation of that from Senator Joyal, the honourable senator has moved from line 1 to line 22. Do any honourable senators have any comment on any of the lines between line 1 and line 22 before we deal with line 22?
If not, Senator Joyal, could you give an explanation of what these amendments are?
Senator Joyal: Mr. Chairman, the amendment deals with an exemption from somebody who requests to be exempted from the obligation under the act. When that person requests that exemption we think that should be a process that is quite clear and should allow for the publicity of the process.
In other words, the demand should be on application, so it should be in writing. The decision of the commissioner should be communicated in writing to the person who applied for the exemption. If the exemption is granted, the decision of the commissioner should be printed in the registry.
In other words, this amendment is to open the process for somebody who requests an exemption and to protect at the same time the person who seeks the exemption. Thus the whole procedure is in writing with the publicity normally attached to a decision that deals with the privileges of the person who seeks the exemption. It is to make the process open and clear in terms of its substance and outcome.
The Chairman: Mr. Wild or Ms. Tapley?
Mr. Wild: Are we just discussing line 1, or are we discussing lines 22 to 27 as well?
The Chairman: We are doing both.
Mr. Wild: I do not have any comment on line 1. I do not have any comment with respect to the substance of requiring that the reasons be communicated and be published in the public registry.
However, the amendment does delete the existing subsection (3). It replaces lines 22 to 27 with what follows here. It is removing the judicial review formula that has been placed on the commissioner in that there are very specific grounds that have been permitted for a challenge of the commissioner's decision in this regard. This amendment would open up someone to bringing an application for judicial review on any grounds that are far broader than what we have narrowly permitted here. There is a change happening in terms of the interrelationship between the courts and the commissioner in his decisions.
Senator Joyal: We are dealing with statutory situations here. If we define in a statute the rights of a person to be adjudicated by an arbitrator, who happens to be the commissioner, and if the reasons are in writing, then the person's rights should be protected in the normal course of the legal system of Canada, just as they are for any other decision.
If the process were abused, for instance, by the commissioner, the person could seek redress.
On the other hand, if the person gets the exemption, the reasons that the commissioner has given are made public so that the public can judge and react accordingly. If the person feels aggrieved by the decision of the commissioner to refuse the exemption, it is fair when you deny somebody a capacity that that person could seek redress if the person feels it is appropriate.
Senator Baker: Mr. Wild's objection is that it removes an appeal process. Was that your objection, Mr. Wild, that it was a statute-identified appeal process through the federal court and that that was being removed? Not your objection, I should say, but was that your point?
Mr. Wild: Mr. Chairman, I am neither objecting nor supporting; I am merely trying to point out the consequence of the amendment and the implication it has for the proposed legislation in terms of the scheme as it has been proposed to honourable senators.
The point is that that particular subsection was providing a specific basis on which a review of the commissioner's decision could be made under the Federal Courts Act. That narrowing would now be removed; that is the effect.
Senator Baker: Let me then ask Mr. Wild this: One could read this as a restriction on the appeal process to the commissioner's decision, and the reason why is in the wording. On page 38 of the bill, proposed subsection 38(3) states:
Every decision to grant an exemption under subsection (1) is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)
That is, I believe, on the grounds of being patently unreasonable. That is correct, is it?
Mr. Wild: Exactly what is happening in the proposed subsection is that it defines that the appeal would be an appeal on the basis of a judicial review of the commissioner's decision.
Senator Baker: Mr. Chairman, as you know as a professor of law, the standard of review of "patently unreasonable" is a restrictive standard of review. Normally, if that is not there — because this says you can only review it on the standard of being patently unreasonable — then the implication is that you could go through the normal process of reviewing a cabinet minister's decision or anybody else's decision simply by going to a superior court with an originating application for an order to strike down the decision.
Would you agree with that, Mr. Wild? I know you have to think about that.
Mr. Wild: I do, Mr. Chairman.
Senator Andreychuk: The amendments were provided for us. Is there any objection to having the officials who have been involved receive copies?
The Chairman: I believe they have.
Senator Andreychuk: We were just advised that they did not. I think Mr. Wild has them, but I am not sure that anybody else has them. Is there any objection to that?
The Chairman: Senator Day, is there any objection to the government officials who are working on this having the amendments?
Senator Day: I thought they had them.
The Chairman: Apparently, they do not. With your permission, they will be given them now.
Senator Andreychuk: While we are waiting, I would ask Senator Joyal this question: If you remove this section — and I think Senator Baker has pointed out what paragraphs 18.1(4)(a),(b) and (e) of the Federal Courts Act state — what review would you have? I heard a phrase "in the normal review." I would like to know what the definition of "normal review" would be then. I understand judicial review and administrative review. Refresh us on this please, because you obviously have looked at it.
Senator Joyal: It would be based on the fact that the person who seeks the exemption has established elements justifying the exemption and the reasonableness of the person's request in relation with the objective of the proposed act. The court would certainly take into account the purposes of the exemption allowed under the act and the reasons the exemptions that were refused should have been granted.
There would be an analysis of the arguments put forward by the person to request the exemption, on the basis of the request on application. That is why the first amendment is on application. In other words, the person has to state the reasons why he or she would seek the exemption. If there is a review process, then the various steps that came to the conclusion are open to the court for re-examination on the basis of their reasonableness.
Senator Andreychuk: It is a full review you are seeking.
Senator Joyal: It would be a normal review.
Senator Andreychuk: As we go from one court level to another.
Senator Baker: What would replace this, if this were removed, is that on application to the court, the court would decide the standard of reasonableness that would apply to that particular adjudicative body.
The strictest standard is "patently unreasonable," which is a very difficult standard to maintain. There are standards below that — reasonableness, simple reasonableness. I would suggest that the decision by the commissioner would fall far lower than patently unreasonable.
Therefore, read and interpreted in that way, this was a restrictive clause, restricting somebody's ability to be able to overturn or appeal a commissioner's ruling. Mr. Wild may want to comment, but I do not think he would disagree with that.
Mr. Wild: I will make a couple of points that may or may not help clarify things; I hope they will. First, proposed section 38 was amended during the House process. It used to be the minister who was providing that exemption, and that was changed to the commissioner.
The Chairman: Do you mean proposed subsection 38(3)?
Mr. Wild: Proposed subsection (1); it used to read that it was the minister who was providing this exemption on this basis, for this narrow group of people — ministerial staff who meet these criteria. During the process through the House, that got changed to the commissioner, because there is another authority for the commissioner to waive or reduce those applicable periods; that is set out in proposed section 39. There is a bit of an issue around the structure of the proposed act at this stage.
The other thing I will point out is that paragraphs 18.1(4)(a), (b) and (e) of the Federal Courts Act, referred to in proposed subsection (3), set the grounds for review on the basis of whether or not the commissioner acted without jurisdiction, acted beyond his or her jurisdiction or refused to exercise his or her jurisdiction; failed to observe a principle of natural justice, procedural fairness or other procedure that he or she was required by law to observe; acted or failed to act by reason of fraud or perjured evidence. Error of law or erroneous finding of facts would not be grounds.
Again, the scheme that was being contemplated was that once the decision was made as to whether or not someone has met these criteria and thus deserves the exemption — and again, originally it was a minister making this decision — that person would only be able to challenge that decision in court on the basis of that very narrow area. It is a recognition of the nature of the relationship between ministerial staff and a minister, and that we are talking about an employee-employer situation generally.
Again, the government was trying to constrain that avenue so that the decision of the minister to refuse or to grant the exemption would not get continuously dragged into the courts and go through a process.
The Chairman: The Federal Courts Act section 18 gives those grounds.
Mr. Wild: Correct.
The Chairman: You have just enumerated them, but an error in law is not one of them.
Mr. Wild: Correct.
Senator Cowan: As I understand the discussion, if this section were removed, then the rights of a person affected by the granting of an exemption would be extended. What the bill does is restrict the appeal rights, which would otherwise be in place.
The Chairman: That is the point Senator Baker was making earlier, that this is restrictive, and Mr. Wild agrees.
Senator Cowan: It might have been more applicable to the situation when it was the minister. Now it is the commissioner.
The Chairman: The information Mr. Wild has given us was that originally in the House of Commons it said "the minister" and they changed it to "the commissioner," which helps explain why this section is a bit surprising.
Senators, we have had quite a debate.
Senator Day: Mr. Chairman, perhaps I can be of some help. The reason for this somewhat inconsistent occurrence is, as Mr. Wild pointed out previously, the wording was "the minister" and now it is "the commissioner." There are already provisions about how to deal with decisions of the commissioner, and I am referring to section 66 of the act.
What we are trying to do here is give the same rights to staffers of the minister and the reporting public office- holders. The reason it was not changed in the House of Commons is that the amendment was made late. When we make these changes, the staffers will be treated the same. The appeal process is found later in the act at section 66.
Mr. Wild: I would only raise the point that section 66 puts the orders and decisions of the commissioner on the same grounds as the paragraph being deleted here. Every order of the commissioner is not appealable. All decisions under the act by the commissioner under section 66 are final and cannot be questioned or reviewed by a court, except in accordance with the provisions I just read out. Subsection (3) and section 66 are not in conflict. They are doing the exact same thing.
The Chairman: We have had extensive debate on this section.
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Resuming debate on clause 2 as amended, is there anything further on page 22? If not, is there anything on page 23? Is there anything on page 24?
Senator Andreychuk: There is a drafting error.
The Chairman: Did you say a technical error?
Senator Andreychuk: Drafting.
I move:
That Bill C-2 be amended in clause 2 by replacing in the English version, line 4 on page 24, with the following:
"a person under section 39 affects any obligation or".
The purpose of the amendment is to add the word "section."
Senator Day: We are happy to support that amendment.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Resuming debate on clause 2 as amended.
Senator Joyal: On page 24, line 7 opens proposed section 43. It will add subsection 1 after 43. I move:
That Bill C-2 be amended in clause 2,
(a) on page 24,
(i) by replacing line 7 with the following:
"43.(1) In addition to carrying out his or her,"
(ii) by replacing line 10 with the following:
(a) provide advice to the Prime", and
(iii) by adding after line 17 the following:
"(2) Subject to subsection (4), advice under paragraph (1)(a) may be provided on a confidential basis.
(3) If, in the course of responding to a request by the Prime Minister for advice under paragraph (1)(a), the Commissioner concludes that a public office holder has contravened this Act, the Commissioner shall provide the Prime Minister with a report setting out the facts in relation to the contravention as well as the Commissioner's analysis and conclusions.
(4) The Commissioner shall, at the same time that the report is provided under subsection (3) to the Prime Minister, provide a copy of it to the public office holder who is the subject of the report and make the report available to the public."
The Chairman: Could you give an explanation, please?
Senator Joyal: Essentially, when the Prime Minister requests a report from the commissioner and the report concludes that there has been a violation of the code, the report is given to the Prime Minister and the public office- holder and made public at the same time. In other words, it is a process that is transparent on the conclusion of the report that the commissioner has requested the Prime Minister to produce.
Once a request has been made by the Prime Minister to the commissioner and there is an investigation or analysis and the conclusion is that there has been a violation of the public office by the public office-holder, then the report is given to the Prime Minister and made available to the public. In other words, the report does not stay with the Prime Minister.
The Chairman: More transparency?
Senator Joyal: Exactly. This amendment is meant to achieve transparency.
On the other hand, confidentiality is protected under certain circumstances. We maintain that subject to subparagraph (4), if the person is found responsible for a violation of the code, then the confidentiality basis will not be maintained. As long as the person has not been found responsible of the violation, that information remains confidential.
For example, if the Prime Minister asks the commissioner to report on minister X, as long as the investigation is ongoing and minister X is found not to be responsible of a violation, then the information remains confidential. At the very moment the report concludes that minister X is found responsible of a violation, then of course the report has to be made public – not only given to the Prime Minister but to the public. That is essentially the purpose of the amendment.
Mr. Wild: The issue that I would raise for the committee's consideration is given the prior amendments made around including actual, apparent or potential conflicts of interest, this puts the Prime Minister in a potentially difficult situation as he has responsibilities, obviously, for public office-holders. Historically, under constitutional convention, this is the whole purpose and creation of the position of Prime Minister. It revolves around the appointment of the senior echelons of both the ministry as well as the public service.
This puts the Prime Minister in a position where if he wishes to seek advice in order to determine what he or she should do vis-à-vis any public office-holder, now we are talking about actual, apparent or potential conflicts of interest in order to constitute a potential violation or at least require the commissioner to make a determination as to whether someone should be recused.
It broadens the potential such that the result will be a commissioner's report stating that a violation occurred because, in his opinion, there was an apparent conflict of interest. That does not mean the conflict is actual, but it has the appearance of a conflict. It does not allow a prime minister to deal with the issue directly and in a confidential manner to the public office-holder but forces a prime minister into a position whereby he must question each time whether to seek the advice of the commissioner, knowing that if there is an appearance of conflict, it could ultimately result in a public report.
I propose simply that it could cause a significant chill on a prime minister's utilizing the services of the conflict of interest and ethics commissioner in order to obtain advice on issues dealing with public office-holders.
Senator Joyal: There is a contradiction in your argument. When we discussed the scope of the conflict of interest covered by the proposed act, you said that "apparent" and "potential" were already included in the bill. Now you tell us that because we have broadened it, it restricts the capacity of a prime minister to seek an opinion or a report from the commissioner. I do not see the problem. If a minister is found to be responsible for a violation of the obligations under the proposed act following an investigation and the report is given to the prime minister, then transparency commands that the report be made public. Otherwise, it becomes a matter only of someone acting on behalf of a prime minister and coming to the conclusion that there is a violation but everything still remains between the prime minister and the minister. That is not the intent of the bill.
The intent of the bill is such that if a person is found to be in conflict of interest or the appearance of conflict of interest, a prime minister is to take whatever initiative he or she feels appropriate under the circumstances. I do not see how you can determine that, in our making the bill more precise to cover the apparent or potential conflict of interest, we are infringing on a prime minister's prerogative.
Mr. Wild: There are two points to be made. First, the intent of my prior testimony was to focus on the potential. The definition of "appearance," as adopted, is broader than what we had been scoping within the proposed conflict of interest act. Your amendment broadened that area.
Second, public office-holders are able to seek confidential advice from the commissioner. The question is why a prime minister should be treated any differently. If matters get to the point where there are specific determinations made in terms of recusal, et cetera, bear in mind that a public registry is contemplated under the bill to address those outcomes. Therefore, I can suggest consideration of the testimony of the ethics commissioners from British Columbia and Ontario who talked about that need for confidentiality in order to ensure that there is an appropriate level of disclosure and use of their services and how important it is to have that relationship.
At the end of the day, it is a question of whether a prime minister, if he is of the view that any consultation with the commissioner could result in the matter going public, will use the services of that commissioner?
The Chairman: Are you suggesting that this amendment will substantially impair or tie the hands of a prime minister? Do you think that such a serious limitation is being imposed on a prime minister that it will fetter his discretion?
Mr. Wild: I would not call it a fetter on his discretion. Rather, I would say that under the scheme proposed by the government, a prime minister would be able to obtain confidential advice with respect to his or her appointees. Once the confidentiality is removed from that process, a layer of decision making is added. A prime minister must decide whether to ask for the advice, knowing that it could result in a public report and that it could generate a news story. That is the only question. If the discussion is confidential, it is easier to feel free to ask advice. It is far more difficult to do that when you do not know what the decision of the commissioner will ultimately be and whether that discussion will end up in a public report.
Senator Cowan: If the object of this is to identify and expose conflict of interests, then surely a prime minister would want to know about it. For a prime minister to not ask because it might result in an identification of conflict of interest does not make sense.
If a prime minister thinks there might be a conflict of interest, surely he or she would want to know about it and, therefore, would not be afraid to ask lest the answer might be yes.
Senator Nolin: The intent is to give the opportunity to a prime minister to seek the advice of a person who knows about the conflict of interest and to keep it confidential. At the end of the day, a prime minister will take the decision that he thinks is best. That is why the section is properly written as it reads. Otherwise, a prime minister will never consult the commissioner for advice.
Senator Joyal: I do not agree. A prime minister can seek the opinion as proposed subsection 43(a) provides. A prime minister can request the advice of the commissioner in respect of the application of this proposed act. It could be a broad opinion. I would want to know whether the minister is in compliance with the obligation to disclose and that the situation is not problematic so that a prime minister is able to appoint that minister to another portfolio, for instance, without any concerns for conflict of interest.
That information remains confidential because the minister affected is not in violation of the act. That remains totally within the ambit of proposed section 43. It is only when a prime minister asks if the person has been in violation of the act and an investigation concludes that there has been a violation that there then is a disclosure. That is the intent of the bill.
Otherwise, I would have a problem with an act that allowed a prime minister in receipt of a report concluding that a minister was in violation of the act to simply cover it up. That falls under the tradition that when a prime minister makes an appointment to cabinet, he tells the person that if ever he or she is found to be in violation of the law, they have to resign. That is stated clearly upon appointment.
If a potential minister knows that a violation of the act, no matter how serious, will be made public, then a prime minister can maintain his confidence. That is part of the decision and he must stand by the decision.
The Chairman: Honourable senators, we have had a good debate on this issue. In amendment to the motion that clause 2 carry, Senator Joyal moves that Bill C-2 be amended in clause 2 on page 24.
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Senator Joyal, are you still on page 26?
Senator Joyal: I am on page 25.
Senator Andreychuk: In terms of the motions I move, if you are in agreement, perhaps I could look to you, Mr. Chairman, to signal that I do not need to go through an explanation.
I move:
That Bill C-2, in clause 2, be amended by replacing lines 4 to 11 on page 25, under the "Confidentiality" subsection (5), with the following:
"While considering whether to bring to the attention of the Commissioner under subsection (4) any information that a member of the Senate or the House of Commons has received from the public, the member shall not disclose that information to anyone. If the member brings that information to the attention of the Commissioner, the mem-"
It then continues.
Senator Day: This was in the package we received this morning. It is separate from the other package. We now have four different packages we are following at the same time. I will have to ask you for an explanation, but I can tell you that we have an amendment that will go contrary to this. We will not be able to support this.
Senator Andreychuk: This was an amendment to clarify the reference to information referred to in proposed subsection (4) and align it with the purpose of proposed subsection (5). It is an amendment suggested by the Senate law clerk for clarification purposes. It is a facilitating amendment, as I understand it.
Senator Day: Unfortunately, we are unable to support this amendment. We have another amendment that will be forthcoming.
The Chairman: Senator Andreychuk, do you want to have a vote on your amendment or proceed to Senator Day's?
Senator Andreychuk: We should proceed on maintaining the amendment at this point.
The Chairman: Senator Andreychuk has moved an amendment and Senator Day has indicated that he is aware of the amendment but that there is not support from the opposition.
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chairman: Can we have a show of hands of those in favour of the motion? Three. Those against?
The proposed amendment is defeated.
Are there any other amendments on page 25?
Senator Baker: Yes, there are. Perhaps Senator Day could comment on the substantive nature of this particular amendment.
I move:
That Bill C-2 be amended in clause 2,
(b) on page 25, by deleting lines 4 to 21; and
That is why Senator Day pointed out he was not in agreement with the amendment and can now elaborate on the reasons for the deletion.
Senator Day: We are at page 25 of Bill C-2. We are dealing with propose subsections (5) and (6) on page 25. We are asking that these be deleted because it is imposing a gag order on parliamentarians.
The Chairman: A what on parliamentarians?
Senator Day: Gag order.
The Chairman: Can you explain what that means?
Senator Day: If you look at proposed subsection (5), it reads:
If a member of the Senate or House of Commons receives information referred to in subsection (4), the member, while considering whether to bring the information to the attention of the Commissioner, shall not disclose that information to anyone.
There may well be reasons why a parliamentarian wants to talk about this information, using the parliamentarian's right to do so in Parliament or otherwise.
We think it is contrary to parliamentary privilege to have a statute that says a parliamentarian, while considering what to do under this process, cannot speak.
The Chairman: I should like to hear from the Department of Justice on that.
Mr. Wild: There is certainly no prohibition on legislating this sort of clause. A member of the public who wishes to bring information forward to the commissioner must go through a member of the House of Commons or the Senate. The member of the public is expressing his or her desire that the commissioner do an investigation. Having that information come out before the commissioner has completed the investigation circumvents the purpose of having an investigation. It would be very difficult to continue to have an investigation if it were public or debated either in the House or the Senate. That was the purpose of this.
Senator Andreychuk: Senator Day, my understanding is that you are saying that if a member of the Senate or House of Commons receives information, he or she can consider what to do with that information. If I heard something, I may or may not act on it — I may think it is frivolous. However, if I thought it had substance and brought it to the commissioner, what I understand you are deleting is the fact that the member should not talk about it while the commissioner is investigating it or considering it. It is not that he cannot speak before or after, but surely in the interests of fairness, while the commissioner is assessing what you have brought to him, you should not be able to make judgments and comments somewhere else. You triggered him to do the evaluation and the completion.
Senator Day: I think you and I are a little bit off centre in this. What I am reading in proposed subsection (5) is that while the member is considering whether or not to bring the information to the attention of the commissioner, the member is not allowed, according to this statute, to talk about it to anybody.
That is contrary to parliamentary privilege.
The Chairman: Why include subsection 6, Senator Day?
Senator Day: Subsection (6) gives the commissioner the right, if the commissioner is of the opinion that a senator or a member of the House of Commons has failed to comply with subsection (5), which we are looking at, to report that member to the Speaker. We do not want the commissioner playing these games.
Mr. Wild: To clarify a comment that Senator Day made, I want to draw to the attention of the committee that subsection (5) deals with two things. First, it deals with the member considering whether to bring the information to the commissioner, but it also deals with the member bringing that information to the commissioner. That is the latter half of the section, that "the member shall not disclose that information... until the Commissioner has issued a report...."
Senator Day: That subsection goes more to what Senator Andreychuk was talking about, but it is still contrary to parliamentary privilege. In this instance, this statute purports to prevent a member of the House of Commons or the Senate from speaking, and that is contrary to parliamentary privilege.
Senator Andreychuk: Of course we have the right to govern ourselves if we pass this bill. It is a limitation we are putting on ourselves. We do it through our rules and through legislation. It seems to me that if we want a commissioner to be able to handle a matter, whether it is pre, during or post, you do not want them discussing it. It is an allegation up to that point, almost. It would be like police work. You do not want them using all kinds of avenues. If you are considering using the commissioner, I would not want you to prejudice what the commissioner is doing. It is a limitation we are putting on ourselves, not a limitation that is extraneous. It is in the interests of fairness and justice for the commissioner, and for the person who is accused, if I may use that term. Some restriction on the member to contemplate this and not prejudice a commissioner in their duties makes sense in confidentiality.
Mr. Wild: There is no requirement on a member to bring the matter to the commissioner. If the member decided it would be better to go public, they can simply go public and not refer the matter to the commissioner. They can make the decision not to go forward with it and go public with it instead. It does not necessarily preclude the member from making the information public provided that they have made their determination that they do not believe this information should be forwarded to the commissioner.
The Chairman: Senator Day, do you have anything further? Are you still prepared to proceed?
Senator Day: I am still prepared to resist the inclusion of these in Bill C-2 by proceeding with the amendment. In the wording "shall not disclose the information to anyone," "anyone" is pretty strong. As Senator Andreychuk says, this is a restriction on the freedom of parliamentarians to do what parliamentarians need to do. It is self-imposed and I suggest that this is not what members of the House of Commons or the Senate want to do.
The Chairman: Is it your pleasure, honourable senators, that Senator Baker's motion in amendment carry?
Hon. Senators: Agreed.
Senator Stratton: On division.
The Chairman: Carried on division, strongly.
Senator Stratton: The "division" is strongly, not the "carried."
The Chairman: Resuming debate on clause 2 as amended. Is there anything further on page 25 after that major deletion?
Senator Baker: I have one that starts at line 22.
The Chairman: Can anything be left on that page after that major deletion?
Senator Baker: I move:
That Bill C-2 be amended on page 25 by replacing line 22 with the following:
"(7) Subject to subsection (8.1), the Commissioner shall provide the"
There is no subsection (8.1), but I am proposing a further amendment to include the new subsection (8.1). Since it directly relates, I will move that amendment now.
I move:
That Bill C-2 be amended on page 25 by adding after line 37 the following:
"(8.1) —"
The Chairman: There will be an intervening amendment before line 37.
Senator Baker: I am wondering how senators can consider the new line 22, which says "Subject to subsection (8.1), the Commissioner shall provide the", when there is no subsection (8.1). I therefore suggest we do the amendment to create subsection (8.1) and then go back.
The Chairman: You should bring it up for the purpose of debate now. We will consider the first part and once we have passed the proper line, we will come back to it.
Senator Baker: Without reading subsection (8.1), because that would not be the proper procedure, it will say that if a subject matter is found to be frivolous or vexatious, as Senator Andreychuk pointed out a few moments ago, this report will not be made available to the public.
The Chairman: Who will make that determination?
Senator Baker: It is if the commissioner determines. I can read out the entire paragraph, if the Chairman will permit:
"(8.1) If the Commissioner determines that the request was frivolous or vexatious or was made in bad faith or the examination of the matter was discontinued under subsection (3), the Commissioner shall provide the report only to the member who made the request and the public office holder or former public office holder who is the subject of the request, and shall not make the report available to the public."
Senator Andreychuk: That was not my point. My point was that the member has the discretion, before the member turns it over to the commissioner. This deals with after the member turns it over to the commissioner.
Senator Baker: I thought you were concerned about frivolous and vexatious requests.
Senator Andreychuk: I was at the start, and I am by the method —
Senator Baker: That is why I am introducing this amendment.
We go back to line 22, Mr. Chairman.
The Chairman: Mr. Wild, do you want to comment? We are replacing line 22 and lines 26 to 31; we are not dealing with the new subsection (8.1) at all.
Mr. Wild: You are not addressing the effect of subsection (8.1) at this moment?
An Hon. Senator: No, only line 22.
Mr. Wild: I have nothing to say about line 22.
Senator Baker: Exactly: We can move on.
The Chairman: We are having a debate on it now and you are allowed to comment on subsection (8.1) in debate.
Mr. Wild: The issue I would raise around subsection (8.1) is, if an accusation is public and the commissioner is investigating it, and it is proven to be frivolous, vexatious or in bad faith, or for whatever other reason, which is what subsection (3) brings in, and the commissioner decides not to go further, the person who has been falsely accused would never have made public the fact that the commissioner has decided there is no point in going forward with this investigation. It leaves a potential cloud over the "falsely accused." That is the implication.
Senator Andreychuk: I made the point that a member has the right to make an assessment on information. If they think it is vexatious, they would never bring it to the commissioner. If they brought it to the commissioner and it was not disclosed troubles me in terms of the person who is being accused and not the accuser. As these things go into the public domain, I think they need a right of response at some point, or at least a right to know what was being done by a commissioner. It is no longer an opinion or a thought. There has been some sort of an investigation, some sort of dealing with the issue. To keep everything confidential then is not within the kinds of rules I would advocate. With respect, I think we will part company on this one.
Senator Cowan: As I understand the amendment, if you had one of these frivolous, vexatious, bad faith complaints or requests, then the person who has made the request and the person who is the subject of the request receive copies of the report dismissing it. The person against whom the vexatious or frivolous complaint has been made, whom Senator Andreychuk wants to protect, as do I, then has a report saying that this complaint has been looked at and the commissioner has exonerated that person.
The Chairman: Do you think the damage has been done by then to the innocent person?
Senator Mitchell: I agree with Senator Cowan. If damage was done by then, as you say, it would be done whether the commissioner released it or whether the subject released it. I believe the subject should be given that determination. There is nothing lost if the subject has that determination, rather than the commissioner.
Senator Baker: Mr. Chairman, if something is not made public, if it is not in the public domain and it should never be in the public domain, then this amendment corrects it. If we let things stand as they are, then every single political move made by some politician who only wants to destroy somebody's credibility is open to public disclosure because the present wording says it must be released.
If something has not been made public, at least there is a protection there that it may never be made public. If it is, then of course the person, as the senator pointed out a moment ago, has the option of releasing it himself or herself.
The Chairman: Pretty fair.
The last word is to you, Mr. Wild, if you have one.
Mr. Wild: I would add only that what the senator has described is not exactly what this subsection does. It does not say that the report would not be made available to the public if the issue itself was not already in the public domain. There is no requirement that specifies that the commissioner is not to make the report public only if the complaint itself is not public.
The complaint could well be public and, in fact, we could remove the sections that would have required a member not to disclose information coming from the public around this.
The only other thing I would add is we always talk about ministers when we think about public office-holders. It is a reminder that the class of public office-holders includes deputy ministers, associate deputy ministers, a host of public servants and other appointees to boards who are not ministers and not in the public eye to the same extent. While it is true that these complaints tend to flow primarily around political actors, if the report exonerates someone completely from the request, the government's position was that there was no reason why that should not be made public, and it would actually assist in potentially repairing any damage done to reputation.
The Chairman: We have had substantial debate on this.
I want honourable senators to know that what we are now voting on will not be the new subsection 44(8.1). We will only be doing the first part, and I will come back to that after Senator Andreychuk makes her next intervening motion. We are doing only the first part now and we will come back to subsection 44(8.1) later.
Honourable senators, is it your pleasure that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The motion is carried, on division.
Senator Andreychuk: I wish now to deal with line 32.
I move:
That Bill C-2 in clause 2 be amended by replacing in the English version line 32 on page 25 with the following:
"that the report is provided under subsection (7),"
The Chairman: Can you explain what that amendment means?
Senator Andreychuk: This amendment is required due to subsection renumbering following the amendments in the House of Commons. This amendment is not applicable to the French version as there are no subsection references in that version. For consistency, the English version requires subsection (7).
The Chairman: Will the deletions of subsection (5) and (6) also affect your renumbering?
Senator Andreychuk: No, because we did not touch this one, as I understand it.
The Chairman: I guess the renumbering will take place by computer.
Senator Day: We agree that amendment should be made.
The Chairman: Honourable senators, is it your pleasure that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: We now will hear from Senator Baker.
Senator Baker: I wish now to deal with subsection 44(8) and the words following "the Commissioner shall... make the report available to the public." I move:
That Bill C-2 be amended by adding after line 37 the following:
"(8.1) If the Commissioner determines that the request was frivolous or vexatious or was made in bad faith or the examination of the matter was discontinued under subsection (3), the Commissioner shall provide the report only to the member who made the request and the public office holder or former public office holder who is the subject of the request, and shall not make the report available to the public."
The Chairman: Honourable senators, you will recall that we have had an extensive debate on this brand new subsection (8.1). Is it your pleasure that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The amendment is agreed to, on division.
Resuming debate on clause 2 as amended. Is there anything further on page 25?
If not, honourable senators, then we move to page 26. Is there anything on page 26?
Senator Baker: I move:
That Bill C-2 in clause 2 be amended
(b) on page 26,
(i) by replacing lines 15 and 16 with the following:
"46. Before providing advice under paragraph 43(1)(a) or a report under section 43,",
(ii) by replacing line 22 with the following:
"out in a report under section 43, 44 or 45 that a", and
(iii) by replacing line 28 with the following:
"48(1) For the purposes of paragraph 43(1)(a)", and
Senator Day was to inform us as to the logic.
The Chairman: Before I go to Senator Day, do any other senators have a proposed amendment before line 28? Failing that, Senator Day, could we have an explication?
Senator Day: This is a consequential amendment to changes that we have made. We are adding proposed section 43 to these documents, and proposed section 43 is an amendment we made a short while ago.
The Chairman: Is that (8.1)?
Senator Day: This is the advice to the Prime Minister. We are just bringing proposed section 43 in to list the different areas where reports will be forthcoming from the commissioner.
Mr. Wild: I have nothing to add, Mr. Chairman. These are completely consequential to the prior amendments that have already been adopted.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Senator Stratton: No.
Some Hon. Senators: Agreed.
The Chairman: Carried, on division.
Honourable senators, we are now resuming debate on clause 2, as amended.
Are there any further amendments to page 27?
Senator Baker: Yes, I move:
That Bill C-2, be amended in clause 2,
(c) on page 27,by replacing line 17 with the following:
"43, 44 or 45; or".
In other words, it would be adding proposed section 43 before proposed section44.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Motion in amendment carried, on division.
Is there anything further on page 27? Is there anything on page 28?
Senator Baker: On page 28, yes; line 16 on page 28.
The Chairman: You are referring to the Parliament of Canada Act. To which amendments are you referring? Is it called SEO amendments?
Senator Baker: No, we are at page 28.
The Chairman: It is still conflict of interest.
Senator Baker: I move:
That Bill C-2 be amended in clause 2,
(b) on page 28, by adding after line 26 the following:
"(c.1) decisions on exemption applications under section 38 and the accompanying reasons;".
The Chairman: Senator Day, before you go on, the clerk has just called something to my attention. Right now, we are dealing with page 28, line 26, with a proposed amendment from Senator Baker. The clerk called to my attention that he looked through some of your other papers — that Bill C-2 be amended on clause 2, on page 28 on line 16 — so there is an earlier amendment to this one. We really should be doing line 16 first.
Senator Day: Thank you for bringing that to our attention. If only I could find it.
The Chairman: That is something called "SEO Amendments."
Senator Day: That is the Senate ethics officer. I thought we were going to deal with those a little bit differently. Both sides and our legal advisors have had a chance to review these and they are in agreement, not necessarily with the principle, but with the wording.
The Chairman: The normal clause by clause is to go clause by clause, page by page. In the absence of a special leave from this committee to jump around and do it in a different way, then we would have to have that leave. The agreement was that when there was a line before the line for which a senator wanted to propose an amendment, we should do that line first for purposes of consistency and orderliness.
Here is a classic situation where he is proposing an amendment to line 26 when, in another one of the piles of amendments, there is an amendment to line 16. What is the wish of the committee? How does the committee wish to proceed? Perhaps Mr. Michel Patrice could give us a proposal.
Michel Patrice, Parliamentary Counsel, Legal Services, Senate of Canada: The motion before you deals with page 28 line 26. That was a consequential amendment to a previous amendment that you adopted, on division. You should dispose of that and do a clause-by-clause analysis. The members should propose an amendment, the topic and the consequential, as a topical thing. Then you can go back to clause 2 of the Senate Ethics Officer, SEO, package. Clause 2 can always be amended because it has not been disposed of yet. Once the motion in amendment that is before you is disposed of or questioned again, it will be this: Shall clause 2, as amended, carry?
The Chairman: I am not there yet because we have not come to page 33, which is the first clause 2.
Mr. Patrice: Clause 2 is still not disposed of but there is still an amendment from one side on clause 2.
The Chairman: Are you saying that we should not complete all of clause 2 before we jump to something different?
Mr. Patrice: Rather then go page by page, you should go amendment by amendment. Each side wants to move a series of amendments to clause 2. Rather than proceed page by page, proceed amendment by amendment on clause 2. In that way, you will dispose of them as they arise.
Senator Baker: As you pointed out, Mr. Chairman, there are only a couple of matters left to be dealt with under clause 2. Then, there is a sequence of amendments that are approximately the same that apply to the rest of the bill.
You are feeling that perhaps we should complete it in order as you have been doing until we finish with clause 2 and then deal with the other clauses.
The Chairman: That would be my preference, honourable senators, but I am totally in your hands.
Senator Nolin: Just to complicate clause 2, I have just received other amendments from my colleagues. Let us take page 4, which we have already dealt with, where there is another amendment.
Senator Ringuette: The first one in that package has been done.
Senator Nolin: Is it the same for page 25?
The Chairman: We are on page 28.
Mr. Patrice: My suggestion is that you continue to deal with clause 2, bring your amendments to clause 2 as they come in and dispose of them.
The Chairman: Regretfully, that is what we thought we were doing, but we now find out there were amendments to clause 2 before we reached page 28 that were not brought forward.
Senator Baker: You have been doing this right, chair.
The Chairman: Let us proceed.
Senator Baker: I move:
That Bill C-2 be amended in clause 2, on page 28, by replacing line 16 with the following:
"section 86 of the Parliament of Canada Act ".
The Chairman: I realize that I am not supposed to ask questions, but I want to know what that amends.
Senator Day: That is one of the consequential amendments to the creation of a senate ethics officer. There are probably 35 or 40 consequential amendments.
The Chairman: Honourable senators, is it your pleasure to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Senator Baker: I move:
That Bill C-2 be amended by adding after line 26 the following:
(c)(i) decisions on exemption applications under section 38 and the accompanying reasons;
The law clerk has expressed the opinion that it is consequential to the previous amendment.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Honourable senators, is there anything on page 29? Line 35, Senator Andreychuk?
Senator Andreychuk: I do not have it.
The Chairman: The government does not have the government amendment but the opposition has it.
Senator Andreychuk: I move:
That Bill C-2, in clause 2, be amended by replacing line 35 on page 28 with the following:
"recusal under subsection 25(1) or section 30."
Mr. Wild: The purpose of the amendment is to reflect that the orders of the commissioner could require a public office-holder who is not a reporting public office-holder to have to register the recusal. The way the proposed section is currently worded, it only referred to proposed subsection 25(1), applying only to reporting public office-holders. It is a technical amendment to ensure that all potential public office-holders, whether under a specific requirement of the proposed act or an order by the commissioner, would have to do their recusal in such a way that it does not reveal cabinet confidences.
Senator Day: I would ask for a moment to read proposed section 30 to understand the link.
The Chairman: Does any other honourable senator wish to comment on Senator Andreychuk's proposed amendment?
Senator Day: Thank you. I think this side can support the amendment.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The motion in amendment is carried, on division.
Is there anything else on page 29, on page 30, on page 31?
Senator Baker: This amendment was originally proposed by Senator Joyal, but I will propose it in his stead since he had to leave.
The amendment, Mr. Chairman, would change five years to two years and add five years to the end of the clause. I move:
That Bill C-2 be amended in clause 2,
(a) on page 31,
(i) by replacing line 38 with the following:
"later than two years after the day on which the", and
(ii) by replacing line 40 with the following:
"matter of the proceedings and, in any case, not later than five years after the day on which the subject- matter of the proceedings arose."
If the chair wishes, I can provide a brief explanation for why we propose that amendment.
The Chairman: Senator Andreychuk, I understand you have an amendment to that?
Senator Andreychuk: If this one passes, we will deal with that.
The Chairman: Do you want to propose it as a sub-amendment so we can deal with them both?
Senator Andreychuk: Can it be a sub-amendment? I thought it was substance.
The Chairman: It is a proper subject matter for a sub-amendment. If you want to move it, then we can deal with them both at once.
Senator Andreychuk: I can move it as a sub-amendment if the chair suggests that.
The Chairman: Do not bother if you do not want to. We can proceed with the main motion.
Senator Andreychuk: As I say, I have a question about that, but I do not want to lose the amendment. I will propose it as a sub-amendment.
I move:
That clause 2 be amended by replacing line 40 on page 31 with the following:
"matter of the proceedings and, in any case, not later than 10 years after the day on which the subject- matter of the proceedings arose."
Substantively, that means I am putting forward a provision of 10 years where the chief amendment was five years.
Senator Day: Senator Baker is probably the best one to explain this particular issue. It is repeated many times throughout. We had the same amendment in several different areas of the act.
Senator Baker: Let us deal with the sub-amendment, as the chair has proposed. The sub-amendment says that there would be a 10-year period after which the subject matter arose that a charge must be laid.
There are four different places in this bill under consideration in which the same subject matter will be debated. It is the same argument, so we might as well make it now on the 10 years.
Each one of them deals, as Mr. Wild so correctly pointed out, with minor offences, as you know as a professor of law, to be a summary conviction offence, not of a serious nature. As we all know, for indictable offences, serious matters, there is no time limit for bringing charges.
These are minor matters. We believe that amendment suggests that there would be a 10-year period in which to bring charges on a minor matter that is identified under the Criminal Code under summary conviction similar to a criminal matter that has six months under the Criminal Code. The reason for that is given in many judgments. It is because memories fade, people pass on, circumstances change, and one cannot remember minor matters that arose longer than six months ago.
The government is saying, go to 10 years. Our major objection there is the unfairness of it. Senator Joyal suggested earlier today in casual conversation that he believes this provision would probably contravene the Charter, but certainly it would be an abuse of process for somebody to bring a charge of a minor nature 10 years after the fact. We disagree with adding that amendment to the present clause.
The Chairman: Before I go to the question, Mr. Wild, do you want to make a comment on the five to 10 years? Then we will go to the sub-amendment.
Mr. Wild: We are doing the sub-amendment on the 10 years. I think we should be clear that within the conflict of interest act, which is where this particular amendment pertains, there are no criminal charges. We are talking about, at most, an administrative monetary penalty scheme. Otherwise, we are talking about the relationship between the prime minister and public office-holders and the commissioner in terms of making recommendations and reports as a result of investigations that the prime Minister may have to do something vis-à-vis the prime minister's relationship with the public office-holder. It could be discipline or what have you. There is not a criminal bent to the conflict of interest act scheme. There are no criminal charges.
The other point about the 10 years is that it leaves open the window to give the maximum amount of time that we think would ever be necessary for a commissioner to discover a matter and conclude an investigation. It is a statute of limitation question, and it allows a 10-year period.
Senator Baker: This provision sets a precedent in Canadian law. There is no such provision that I know of in any other act that allows this kind of levity to a summary conviction offence.
The Chairman: Mr. Wild, do you know of any such act?
Mr. Wild: This is not a summary conviction offence. There is no offence.
Senator Baker: It is a minor offence.
Mr. Wild: Under the conflict of interest act, there is no criminal offence. There is no summary conviction.
Senator Baker: There is a fine.
Mr. Wild: There is an administrative monetary penalty, which is distinct from a fine. It is a regulatory infraction. Administrative monetary penalties are not in the same vein as a fine. They do not result in a criminal record or conviction.
I cannot say whether it is unprecedented or not. I can say that the conflict of interest act does not criminalize the behaviour. The scheme around the treatment of violations is not a criminal scheme. There is nothing in the view of the Department of Justice in terms of a Charter or constitutional issue with having a 10-year statute of limitation period.
Senator Baker: On a point of order, I thought we were talking about this as it relates to the four cases that will come up so we do not need to repeat this argument all over. Mr. Wild will admit to you now that it is specifically identified as a summary conviction offence where the same time periods are under debate under other pieces of legislation in this bill, and it is distinct from an indictable offence that has in one case a $200,000 fine and five years in jail. I was talking about the four of them together so we would not need to go through the same argument in each case.
Mr. Wild: The point I am trying to make is that you need to be specific to the legislation you are dealing with because different circumstances and facts are at play under each of the legislative schemes. The conflict of interest act does not deal with criminal matters. In the Canada Elections Act, for example, where there is a movement from seven to 10 years as proposed, there is a valid reason behind the seven to 10 years. Yes, that does bring up summary convictions, but you need to be case-specific. The rationale behind the Canada Elections Act, and I do not want to go too far off topic, is a different principle. That is the only point I make. There are different debates because there are different fact scenarios under the Canada Elections Act than there would be under the conflict of interest act.
Senator Andreychuk: Senator Baker has made an eloquent case for dealing with the four areas differently. It is not correct to compare it with summary conviction. This stands alone. It is a penalty scheme. You can go into your Income Tax Act or any other penalty-type restrictions.
My concern is we are talking about public office-holders, and there is some merit in ensuring a proper investigation and time frame. We can monitor whether 10 years in the long run is correct, but it is a signal that public office-holders have a public trust in this area. We should be cautious when we exercise it. Consequences flow from that.
I can argue it can be too high in five years time. At the moment, 10 years is a value judgment of the department and the government, and a proper signal of the seriousness with which the government deals with this issue. It is a public policy objective, and the government wishes to maintain 10 years.
The Chairman: Honourable senators, Senator Andreychuk has moved as a subamendment that the words "five years" be replaced by the words "10 years." Is it your pleasure, honourable senators, to adopt the subamendment?
Hon. Senators: No.
The Chairman: It is defeated. We are now resuming debate on Senator Baker's original motion.
In an amendment on the motion in clause 2, the Honourable Senator Baker moved that Bill C-2 be amended in clause 2, on page 31 — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The motion is carried, on division.
That is page 30. Is there anything else on page 30?
Senator Baker: Those were two different matters we just voted on, right — two years and five years?
The Chairman: Yes.
Is there anything on page 31? Is there anything on page 32?
Senator Baker: Yes; page 32, line 35.
The Chairman: Does any honourable senator have an amendment prior to line 35?
Senator Day: We have another one on the same page.
The Chairman: Is there anything before line 29?
Senator Andreychuk: Yes. It has been brought to my attention that there should be another amendment; that Bill C- 2 in clause 2 be amended by replacing lines 23 to 25, which is on page 32, under the title "Activities on behalf of constituents," with the following:
64.(1) Subject to subsection 6(2) and sections 21 and 30, nothing in this Act prohibits a member of the Senate or the House of Commons who is a public office holder or former public office holder from engaging in those
The Chairman: I do not have it either.
Senator Andreychuk: I think the Liberal members received it but the Conservative members did not.
Senator Day: Is this lines 23 to 25 on page 32?
Senator Andreychuk: Yes.
Senator Day: Senator Baker was just dealing with lines 29 to 30.
The Chairman: This is before that; line 23 is before line 29.
Senator Day: Thank you, Mr. Chairman.
The Chairman: Senator Andreychuk or Mr. Wild, could you give a brief explanation of that?
Mr. Wild: It is simply to bring parity between proposed subsections 64(1) and (2). It is just to make the point that the same proposed subsections that are being identified as not abrogating or derogating — that is, the exception from what abrogates or derogates from parliamentary privileges or immunities — are being identified also around the prohibition of engaging in the activities that they would carry out.
Those proposed subsections are the recusals. If you are recused, you are not participating in a debate and carrying on an activity because you have been found to be in a conflict. It makes the point that if you recuse yourself because of the conflict, you will not do those activities.
The Chairman: Senator Day, do we have agreement on this?
Senator Day: No. This goes to the same issue we talked about earlier. It is in conflict in terms of privileges of parliamentarians, and it will be in conflict with our amendment that will be coming later. It would be nice if we could table all of these things together in a concept, but I guess we have not found a way to do it. I am in your hands; we do not support this amendment.
The Chairman: In amendment to the motion that clause 2 carry, the Honourable Senator Andreychuk moves —
Senator Andreychuk: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chairman: Could we have a show of hands? Those in favour of the motion? Those contrary? The motion is defeated.
Senator Baker: I move that on page 32, lines 29 and 30 be replaced with the following:
(2) Nothing in this Act abrogates or...
That would be the new line 29. In other words, we are extricating subject to subsection 6(2) and sections 21 and 30. We are starting with, "(2) Nothing in this act abrogates or..."
That is consequential to what we were discussing earlier.
The Chairman: Mr. Wild, this is a consequential amendment. Do you have a comment?
Mr. Wild: It is consequential, so there is nothing to add.
The Chairman: Honourable senators, in amendment to the motion that clause 2 carry, the Honourable Senator Baker moves that — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Senator Andreychuk: On division.
The Chairman: The motion is carried on division. Resuming debate on clause 2 as amended, page 32.
Senator Baker: On page 32, we revive the argument again, but in a different circumstance. What we are doing on page 32 is replacing line 35 with the following:
"at any time within but not later than two years"
and replacing line 39 with the following:
"five years after the day on which the subject—"
The reason for this motion will be the reason for similar motions of this nature, which is that to allow the authorities a five-year period after they know that an offence has been committed to bring a charge is unprecedented. Under the only other acts of Parliament we have — the environment act, the Fisheries Act, the pollution control act — it is two years from the time the minister became aware. The minister must show diligence in bringing charges.
To allow people, under this proposed act or any other act, a five-year period after the commissioner knew an offence had been committed, we believe creates a precedent that the general public may look upon and say, "They are letting the politicians off the hook for five years."
Mr. Wild: I draw to the committee's attention that the Old Age Security Act and the Canada Pension Plan both have provisions in them. Section 44(3) of the Old Age Security Act has a summary conviction offence and the limitation period is five years:
Any proceedings under this Act in respect of an offence may be commenced at any time within, but not later than, five years after the Minister becomes aware of the subject-matter of the proceedings.
With respect to the offence provision of Canada Pension Plan, section 90(2) contains the same limitation period. The only other point I would make again is that no criminal convictions or charges are contemplated by this proposed conflict of interest act.
Senator Baker: That has never been litigated. Neither one of those provisions has been litigated.
Senator Nolin: You have the precedence.
Senator Baker: You do not have the precedence. He is reading from the act.
Senator Day: That is something else that has to be changed.
The Chairman: Honourable senators, in amendment to the motion that clause 2 carry, the Honourable Senator Baker moves that — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The motion in amendment is carried on division. Is that the end of page 32?
Senator Baker: That is the end.
The Chairman: Moving to page 33, are there any proposed amendments?
Senator Ringuette: I have an amendment that reads as follows:
That Bill C-2 be amended in clause 2, on page 33, by replacing lines 7 and 8 with the following:
"67.(1) Within five years after this section comes into force, a comprehensive review".
The Chairman: Changing "royal assent and comes into force" is the difference?
Senator Ringuette: Yes. We are replacing lines 7 and 8 of proposed section 67(1) with: "Within five years after this section comes into force, a comprehensive review...".
This is to ensure that there is a comprehensive review process.
Senator Day: The act that is referred to in the first line is, presumably, the conflict of interest act, and that act is not the one that will be proclaimed. The conflict of interest act forms part of a larger piece of legislation which will be coming into force, which will receive the Royal Assent.
Mr. Wild: The honourable senators are absolutely correct. This clause was proposed by opposition parties. An attempt by the government to fix the problem at report stage failed. From a technical perspective, the fix would make the section operative vis-à-vis a five-year review of the conflict of interest act.
The Chairman: Is it your pleasure, honourable senators that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: The motion is carried unanimously.
Senator Andreychuk: We have one comment though. Having sat on this committee for years, I fully appreciate that when we get into technical areas we need the department, our law clerk, et cetera. However, it would have been helpful on this one and some others to have seen the amendments before the committee meeting so that we might have been in a position to be more facilitating where necessary.
This is not directed to Senator Ringuette; it is directed to all of us. We used to give each other some notice of amendments. We will struggle on this one. If there are any others of this nature, perhaps Senator Day can let us know.
Senator Day: Mr. Chairman, if I may, we finished evidence yesterday. We are still working on amendments as we are going through this. We do not have and have not seen the written amendments that we hope to put before this group tomorrow. We are pleased to be able to review, as we are going through, the amendments that the government is proposing. It is the time constraints that have caused this difficulty and are resulting in us having to review the amendments as we go through them.
The Chairman: Notwithstanding the difficulty, I think we are making good progress and doing a good job.
Is there anything further by way of amendment to page 33? If not, I would like to resume the debate on the clause after dealing with an amendment. If there are any other amendments senators would like to propose to clause 2, this is the appropriate time to do so. Does everyone what I am asking?
Honourable senators, shall clause 2, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 2 is carried on division. Progress is being made.
Honourable senators, before asking whether clause 3 shall carry, do honourable senators want to review a proposal made by Michel Patrice, counsel on behalf of the opposition, with respect to dealing with some provisions by sections, such as the ethics counsellor?
Mr. Patrice: My proposal is that you call clause 3 and any senator who has an amendment to clause 3 move it. You could dispose of that amendment and again call the clause until all the amendments to clause 3 are disposed of, regardless of the line and page on which they are located.
The Chairman: Is that not what we were doing?
Mr. Patrice: As we know, there will be an amendment proposed to clause 3 that will do multiple things in relation to pages 33 and 34. That amendment is in relation to the SEO amendment. If you dispose of it, you do not have to break it up by line numbers with intervening lines, which may occur with another topic.
Senator Day: That also deals with two pages, you will note, Mr. Chairman. You have been going page by page. However, this amendment runs over two pages. If we could deal with the subject matter and consequential amendments, it would be make it a lot easier for us.
The Chairman: Senator Day, we cannot do that unless there is leave given by every member of the committee to change and do the procedure that way.
Is there, honourable senators, agreement to proceed in the way suggested, that is, that we deal with the matter not clause by clause but by subject matter?
Mr. Patrice: Senator, you are doing it clause by clause; you are just not doing it line by line. You are keeping the clause by clause and you will call the clauses sequentially.
Senator Nolin: I agree. If it is possible to alert us every time we have such a complex series of subject matter which involve many lines on various pages, I would gladly say yes. However, as to giving you a blanket yes, no.
The Chairman: On that basis, is there unanimous consent, honourable senators, to proceed that way?
Senator Nolin: On that clause.
The Chairman: I am now on clause 3. It is agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Shall clause 3 carry?
Senator Day: We have an amendment to clause 3. It is part of the package that has been agreed to by counsel on both sides. This package is called "SEO," which is Senate Ethics Officer and all of the amendments are contained in it. There are probably 25 to 30 different clauses but I am proposing now to deal with clause 3.
The Chairman: Before you proceed, Senator Day, I would like to ask Mr. Wild a question.
Mr. Wild, have you seen these documents?
Mr. Wild: Yes, I have.
The Chairman: I have them in my hand for the first time now.
Mr. Wild: As part of the agreement between the Senate law clerk's office and the Department of Justice, I reviewed and worked with the Senate law clerk's office on ensuring that the package worked from a technical perspective. That should not be interpreted as any kind of policy acceptance by the Department of Justice of the government.
The Chairman: Technically, did you find anything wrong with the amendments in this package that I have just received?
Mr. Wild: Any technical errors that were discovered have been addressed.
The Chairman: They have been corrected and addressed.
Senator Nolin: Are you referring to all the clauses listed in that package or only clause 3?
Mr. Wild: That entire package.
The Chairman: Are all honourable senators in agreement? Do you understand what we are talking about? There is a new package which looks as if it has 30 or 40 pages. It says, "Bill C-2 SEO amendments/modifications concerning the ethics and senatorial ethics counsellor."
Senator Day: Rather than going through each of these it would be nice, since we have agreement, they are over many different clauses –
The Chairman: Would you like to make a motion, Senator Day?
Senator Day: I move that we as a committee agree to accept the wording with respect to each of these particular clauses in this document and that as we go through clause by clause they will be deemed as read at that time, and deemed to be included in any vote on that particular clause.
The Chairman: In other words, the chair does not have to read each and every amendment, am I correct?
Senator Day: That is correct.
Senator Andreychuk: I want to make it clear that I have understood Mr. Wild. He has reviewed these amendments with the law clerk to ensure that they are drafted correctly; however, it is not in conformity with the policy objective of the Government of Canada.
The Chairman: Mr. Wild made that clear earlier and that is on the record. We understand that.
Senator Andreychuk: I do not want it misunderstood that we are in agreement with these amendments, if there has been any agreement. To this point while Mr. Wild and Mr. Patrice have agreed, it has meant that we have agreed unanimously. These are technical agreements on drafting but not on the policy objectives.
Mr. Wild: That is correct.
Senator Andreychuk: I have one amendment on clause 3.
Senator Day: If we can agree to the motion from this side, then it will not be necessary for me to read this rather extensive amendment to clause 3.
We will go on to read Senator Andreychuk's amendment, which could deal with something completely different from the creation of the Senate ethics officer. The clause in this package dealing with clause 3 will also be deemed to be on the table. When we vote, we are voting for both at the same time.
The Chairman: Senator Day, the clerk of the committee has raised a technical problem with me and I have asked him to talk to Mr. Patrice about it. While he is doing that, perhaps for clarity you could move your motion again and we can proceed. You have now made a motion in respect of the Bill C-2 SEO amendments.
Senator Day: I move that we deem each of these as having been debated and when we deal with the clause that is referred to in any one of them, that be deemed to be put before this committee along with any other motions or amendments that are put.
For example, in respect of clause 3, rather than it being necessary to read a two-page amendment that was prepared by the Law Clerk of the Senate and reviewed for form by the Department of Justice, we can accept it as being in proper form. We will vote automatically on that or any other amendments put forward plus any document deemed to be put forward at that time on that section.
The Chairman: Thank you. The clerk of the committee has had a chance to talk to Mr. Patrice. Perhaps Mr. Patrice could explain the resolution of the issue raised.
Mr. Patrice: The clerk of the committee pointed out to me that Senator Day's proposal has never been proposed previously in committee. It is a kind of deeming of a vote. It would be quite unusual to proceed in that way.
Senator Day: It is not a deeming of a vote, and that is very important. We are not deeming a vote but rather we are dispensing with the reading of each amendment.
Mr. Patrice: When the chair calls, "shall clause 3 carry," it is important that the record show that Senator Baker moved clause 3. There should be a mover.
Senator Day: But it is not necessary to read it.
Mr. Patrice: You can dispense with it and just say it is consequential.
Senator Day: Then there is no point in any of it. We will carry on and do these. I have a motion on the table.
Mr. Patrice: I would suggest not going line by line, regardless of where it is located in clause 3.
The Chairman: The table agrees with you. If we do not go line by line, what do you propose?
Mr. Patrice: The first one who gets the floor should move his or her motion in amendment to clause 3. Dispose of it. Then go to the next motion and dispose of it.
The Chairman: Agreed. Honourable senators, we asked earlier if clause 3 shall carry and we said no. Is there an amendment?
Senator Andreychuk: I have an amendment to correct a drafting error in the French version.
I move:
That Bill C-2, in Clause 3, be amended by replacing, in the French version, line 4 on page 35 with the following:
« aux conflits d'intérêts et a l'éthique en conformité » —
Senator Day: Dispense.
The Chairman: In amendment to the motion that clause 3 carry, Senator Andreychuk moved — shall I dispense?
An Hon. Senator: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Resuming debate on clause 3, are there other amendments?
Senator Day: I move:
That Bill C-2 be amended in clause 3, follows,
(a) on page 33,
(i) by replacing lines 26 and 27 with the following:
"tion in the office of the Ethics Commissioner", and
(ii) by deleting line 40; and
An Hon. Senator: Dispense.
The Chairman: All senators have it in front of them.
Senator Day: Yes, and it has been reviewed by both counsel and approved per form.
The Chairman: Honourable senators, in amendment to the motion that clause 3 carry, Senator Day moved that — shall I dispense?
An Hon. Senator: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Honourable senators, shall clause 3, as amended, carry?
Some Hon. Senators: Agreed.
Some. Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 3.(1) carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Honourable senators, shall clause 4 carry?
Senator Day: We have an amendment that falls under the same general subject matter of our motion to create a separate Senate ethics officer.
I move:
That Bill C-2 be amended in clause 4 —
An Hon. Senator: Dispense.
The Chairman: Mr. Wild, did you have a comment?
Mr. Wild: No, it is consequential.
The Chairman: Honourable senators, in amendment to the motion that clause 4 carry, the Honourable Senator Day moved — shall I dispense?
An Hon. Senator: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Honourable senators, shall clause 4 carry?
Some Hon. Senators: Agreed.
Some. Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 5 carry?
Senator Day: I have an amendment. I move:
That Bill C-2 be amended in clause 5, on page 36 —
An Hon. Senator: Dispense.
Senator Day: Thank you. It is another consequential amendment.
The Chairman: In amendment to the motion that clause 5 carry, the Honourable Senator Day moved — shall I dispense?
An Hon. Senator: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Honourable senators, shall clause 5, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 5 is carried, as amended, on division.
Honourable senators, shall clause 6 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 7 carry?
Senator Day: We have an amendment. I move:
That Bill C-2 be amended in clause 7, on page 36 —
An Hon. Senator: Dispense.
Senator Day: It is another consequential amendment to the creation of a Senate ethics officer.
The Chairman: In amendment to the motion that clause 7 carry, the Honourable Senator Day moved that — shall I dispense?
An Hon. Senator: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Honourable senators, shall clause 7, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Honourable senators, shall clause 8 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 9 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 10 carry?
Senator Day: I move:
That Bill C-2 be amended in clause 10, on page 37 —
An Hon. Senator: Dispense.
Senator Day: This is another consequential amendment.
The Chairman: Honourable senators, in amendment to the motion that clause 10 carry, the Honourable Senator Day moved — shall I dispense?
An Hon. Senator: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chairman: Carried, on division.
Shall clause 10 carry, as amended?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 11 carry?
Senator Day: No. I move:
That Bill C-2 be amended in clause 11 on page 37 —
An Hon. Senator: Dispense.
Senator Day: Thank you. Another consequential amendment.
The Chairman: That being the case, honourable senators, in amendment to the motion that clause 11 carry, Senator Day moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall clause 11 carry, as amended?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 11, as amended, is carried, on division.
Shall clause 12 carry?
Senator Day: I move:
That Bill C-2 be amended in clause 12, page 38 —
Hon. Senators: Dispense.
Senator Day: It is another consequential amendment.
The Chairman: I heard honourable senators say "dispense." On this amendment, there are two pages. Are honourable senators aware that there are two pages?
Senator Day: Honourable senators have it in front of them.
The Chairman: Honourable senators, in amendment on the motion that clause 12 carry, the Honourable Senator Day moves – shall I dispense the two pages?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Honourable senators, shall clause 12 carry, as amended?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 12 is carried, as amended, on division.
Shall clause 13 carry?
Senator Day: I have an amendment, Mr. Chairman. I move:
That Bill C-2 be amended in clause 13, at page 39 —
It is another consequential amendment that honourable senators have in front of them.
The Chairman: That being the case, in amendment to the motion that clause 13 carry, the Honourable Senator Day moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: On division.
Some Hon. Senators: Agreed.
The Chairman: Carried, on division.
Shall clause 13 carry, as amended?
Some Hon. Senators: On division.
The Chairman: Clause 13, as amended, is now carried on division.
Shall clause 14 carry?
Senator Day: I move:
That clause 14 on page 40 be amended by replacing line —
Hon. Senators: Dispense.
Senator Day: It is another consequential amendment, Mr. Chairman.
The Chairman: In amendment to the motion that clause 14 carry, the Honourable Senator Day moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 14 carry, on division, as amended?
Hon. Senators: Agreed.
The Chairman: Shall clause 15 carry?
Senator Day: I have another consequential amendment. I move that clause 15 be amended as per the document in front of you.
The Chairman: Honourable senators, in amendment to the motion that clause 15 carry, the Honourable Senator Day moves — shall I dispense?
Senator Day: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 15, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 15 carries, as amended, on division.
Shall clause 16 carry?
Senator Day: Mr. Chairman, I move:
That clause 16 be amended by replacing line 19 —
Some Hon. Senators: Dispense.
The Chairman: In amendment to the motion that clause 16 carry, the Honourable Senator Day moves — shall I dispense?
Some Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall 16 carry, as amended?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 16 is carried, as amended, on division.
Shall clause 17 carry?
Senator Day: Mr. Chairman, I move that clause 17 be amended —
Some Hon. Senators: Dispense.
Senator Day: It is another consequential amendment that is before honourable senators.
The Chairman: In amendment to the motion that clause 17 carry, the Honourable Senator Day moves that — shall I dispense?
Senator Day: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall clause 17 as amended carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 17, as amended, is carried on division.
Shall clause 18 carry?
Senator Day: Mr. Chairman, I move that clause 18 —
Some Hon. Senators: Dispense.
The Chairman: In amendment to the motion that clause 18 carry, the Honourable Senator Day moves —
Some Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 18, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 18, as amended, is carried on division.
Shall clause 19 carry?
Senator Day: Mr. Chairman, I move that clause 19 be amended —
Hon. Senators: Dispense.
The Chairman: Honourable senators, in amendment to the motion that clause 19 carry, the Honourable Senator Day moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall clause 19, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 19, as amended, is carried on division.
We will take a slight pause to find some paperwork. As soon as we do that, the next words out of my mouth will be, "Shall clause 20 carry?" but they have not come out of my mouth yet.
Senator Day: All of these amendments relate to the one issue of the Senate Ethics Officer. We recognize that "on division" means that honourable colleagues from the Conservative Party are not supporting this initiative.
Senator Nolin: That is my privilege. It is my privilege to say "on division." I do not need to tell you why I do that.
Senator Day: You are absolutely right.
Senator Andreychuk: I am sure that will carry through.
Senator Day: Perhaps we should explain to those watching at home what "on division" means.
Senator Nolin: I thought you did that this morning during the press conference.
Senator Day: I thought you said during third reading. We have not got there yet.
Senator Nolin: We will do that in third reading.
Senator Day: On division?
Senator Andreychuk: We will see. Stay tuned.
Senator Day: Mr. Chairman, I move:
That clause 20 be amended on page 42 by replacing —
Some Hon. Senators: Dispense.
The Chairman: In amendment to the motion that clause 20 carry, the Honourable Senator Day moves — shall I dispense?
Some Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall clause 20, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 20, as amended, shall carry on division.
Honourable senators, shall clause 21 carry?
Senator Day: Honourable senators, I move:
That clause 21 be amended —
Some Hon. Senators: Dispense.
The Chairman: In amendment to the motion that clause 21 carry, the Honourable Senator Day moves — shall I dispense?
Senator Andreychuk: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall clause 21, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 21, as amended, is carried on division.
Shall clause 22 carry?
Senator Day: Honourable senators, I move:
That clause 22 be amended —
Some Hon. Senators: Dispense.
The Chairman: In amendment to the motion that clause 22 carry, the Honourable Senator Day moves — shall I dispense?
Some Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall clause 22, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 22, as amended, is carried on division.
Shall clause 23 carry?
Senator Day: I move:
That clause 23 be amended —
Some Hon. Senators: Dispense.
The Chairman: In amendment to the motion that clause 23 carry, the Honourable Senator Day moves — shall I dispense?
Some Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall clause 23, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: Dispense.
The Chairman: Clause 23, as amended, is carried on division.
Shall clause 24 carry?
Senator Day: Honourable senators, I move:
That clause 24 be amended —
Some Hon. Senators: Dispense.
The Chairman: In amendment to the motion that clause 24 carry, the Honourable Senator Day moves — shall I dispense?
Some Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall clause 24, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 24, as amended, shall carry, on division.
Honourable senators, shall clause 25 carry?
Senator Day: Mr. Chairman, I move:
That clause 25 be amended —
Some Hon. Senators: Dispense.
The Chairman: Honourable senators, in amendment to the motion that clause 25 carries, the Honourable Senator Day moves — shall I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 25 as amended carry?
Some Hon. Senators: Agreed.
The Chairman: It is agreed that clause 25 as amended shall carry, on division.
Shall clause 26 carry?
Senator Day: Honourable senators, I move:
That clause 26 be amended —
The Chairman: In amendment to the motion that clause 26 carry, the Honourable Senator Day moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 26 as amended carry?
Some Hon. Senators: Agreed.
The Chairman: Clause 26 is carried as amended, on division.
Shall clause 27 carry?
Some Hon. Senators: Agreed.
Senator Day: I have no amendment to clause 27.
Hon. Senators: Agreed.
The Chairman: Clause 27 is carried, honourable senators.
The Chairman: Shall clause 28 carry?
Senator Day: Honourable senators, I move:
That Bill C-2 be amended in clause 28,
on page 44,
(i) by replacing line 31 with the following:
"recognized —
Hon. Senators: Dispense.
The Chairman: Is this a consequential amendment as well?
Senator Day: Yes, they are all consequential.
Senator Andreychuk: If there is an agreement I can do mine after, there is no problem.
The Chairman: In amendment to the motion that clause 28 carry, the Honourable Senator Day moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Senator Andreychuk: On division.
Some Hon. Senators: Agreed.
The Chairman: Shall clause 28 as amended carry?
Some Hon. Senators: Agreed.
Senator Andreychuk: I have a further amendment to Bill C-2. I move that Bill C-2, in clause 28, be amended by replacing line 29 on page 46 with the following:
"Board who shall lay before the".
This clause relates to the inclusion of the estimates for the Conflict of Interest and Ethics Commission and the estimates of the government and procedure for the laying of those estimates before Parliament.
Senator Day: We saw this amendment at noon hour today and we agree to support it.
Senator Andreychuk: Thank you.
The Chairman: In amendment to the motion that clause 28 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: The motion of Senator Andreychuk is carried.
Honourable senators, shall clause 28 as amended carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried as amended, on division.
Senator Day: Just for clarification, clause 28 was amended in two different manners.
The Chairman: That is correct.
Honourable senators, shall clause 29 carry?
Senator Day: Honourable senators, I move:
That the clause 29 be amended —
Hon. Senators: Dispense.
Senator Day: It is consequential as well.
The Chairman: In amendment to the motion that clause 29 carries, the Honourable Senator Day moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: On division.
The Chairman: Shall clause 29 carry as amended?
Some Hon. Senators: Agreed.
Senator Andreychuk: On division.
The Chairman: Clause 29 as amended shall carry, on division.
Shall clause 30 carry?
Senator Day: I have an amendment, honourable senators. I move:
That clause 30 be amended on page —
Senator Andreychuk: Dispense.
The Chairman: In amendment to the motion that clause 30 carry, the Honourable Senator Day moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Senator Andreychuk: On division.
The Chairman: Shall clause 30 as amended carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 30 as amended shall carry, on division.
Shall clause 31 carry?
Senator Day: Honourable senators, I move:
That clause 31 be amended —
The Chairman: In amendment to the motion that clause 31 carry, the Honourable Senator Day moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall clause 31 carry as amended?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 31 as amended shall carry, on division.
Shall clause 32 carry?
Senator Day: I move that clause 32 be amended.
The Chairman: In amendment to the motion that clause 32 carries, the Honourable Senator Day moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 32 as amended carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: It is agreed that clause 32 as amended shall carry, on division.
Honourable senators, shall clause 33 carry?
Senator Day: I move that clause 33 be amended.
The Chairman: In amendment to the motion that clause 33 carry, the Honourable Senator Day moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 33 as amended carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 33 shall carry as amended, on division.
Shall clause 34 carry?
Senator Day: Mr. Chairman, I move:
That clause 34 be amended —
The Chairman: In amendment to the motion that clause 34 carry, the Honourable Senator Day moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 34 as amended carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 34 as amended shall carry, on division.
Shall clause 35 carry?
Senator Day: I understand that our colleagues have an amendment.
Senator Andreychuk: Honourable senators, I move:
That Bill C-2, in clause 35, be amended by replacing, in the English version —
Senator Day: Dispense. We have had a chance to review it and we agree with the amendment.
The Chairman: In amendment to the motion that clause 35 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: The motion is carried unanimously?
Hon. Senators: Agreed.
The Chairman: Clause 36 is carried.
Shall clause 37 carry?
Senator Andreychuk: Honourable senators, I move:
That Bill C-2 be amended in clause 37 —
Senator Day: Dispense. We agree with the amendment.
The Chairman: In amendment to the motion that clause 37 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 37 carry as amended?
Hon. Senators: Agreed.
The Chairman: Clause 37 shall carry as amended.
Shall clause 38 carry?
Senator Day: I move:
That clause 38 be amended —
The Chairman: In amendment to the motion that clause 38 carry, the Honourable Senator Day moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 38 carry as amended?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 38 as amended shall carry, on division.
Shall clause 39 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 40 carry?
Senator Andreychuk: I move:
That Bill C-2 in clause 40 be amended by replacing —
Senator Day: Dispense. We agree with the amendment.
The Chairman: In amendment to the motion that clause 40 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 40 as amended carry?
Hon. Senators: Agreed.
The Chairman: Clause 40 as amended is carried.
Shall clause 41 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 42 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 43 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 44 carry?
[Translation]
Senator Nolin: I would like to move the following amendment to Bill C-2, at clause 44, by adding after line 36 at page 57 the following:
Exclusion: Participation rights
(4) The fee paid by an individual to register at a convention of a registered political party does not constitute a contribution if the cost of organizing the convention is equal or superior to the total of the registration fees paid by all the individual participants. However, if the cost is inferior, the excess, divided by the number of participants having paid registration fees, will constitute a contribution paid by each of those individuals.
[English]
The Chairman: Do you want to say something, Senator Zimmer?
Senator Zimmer: I missed part of that.
Senator Nolin: I am familiar with the debate that has already taken place. For me, a contribution to a political party has always been a profit of an event. This amendment proposes that only the profit portion of the fees related to a convention, that the donation be divided by the number of people who have paid the fees.
Senator Day: We agree with the Chief Electoral Officer, Mr. Kingsley, who stated that the profit a political party may make at a political event has nothing to do with political expenses. Therefore, we will be voting against this motion. We believe convention expenses are properly under the Canada Elections Act. If there is any confusion, it should be made clear that they are included. Therefore, we will be voting against this amendment that we believe to be contrary to an open and accountable political regime.
The Chairman: Honourable senators, in amendment to the motion that clause 44 carry, the Honourable Senator Nolin moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chairman: All those in favour of the motion will please raise their hands? All those opposed to the motion? The amendment is defeated.
Senator Zimmer: We have another amendment, Mr. Chairman.
The Chairman: On section 44?
Senator Zimmer: Yes. I move:
That Bill C-2 be amended in clause 44, on page 58, by adding after line 5 the following:
"(4) Section 404.2 of the Act is amended by adding the following after subsection (6):
(7) For greater certainty, the payment by or on behalf of an individual of fees to attend an annual, biennial or leadership convention of a particular registered party is a contribution to that party.".
The Chairman: Do you want to explain that a bit? What do you mean by "a contribution?"
Senator Zimmer: What we are suggesting is that a convention fee is considered a contribution to the party and would be included in a donation to a registered party. Instead of having it as a separate amendment, there are no black holes. It is open, transparent and accountable. It would be included in the donation to the national party.
Senator Nolin: Let us suppose that the cost of a convention is $100,000 and that that cost is covered by the attendees. If it is a contribution, it means that those who paid the fees receive a tax receipt.
Senator Zimmer: That is correct.
Senator Nolin: Do you think it is acceptable that Canadians are paying for your convention?
Senator Zimmer: No.
Senator Nolin: Senator Mitchell, do you think it is okay?
Senator Mitchell: I think, Senator Nolin, the reason you are so sensitive about this is because your party —
Senator Nolin: Forget about my motivation. I am asking you a question, sir.
Senator Mitchell: I have the floor.
Senator Nolin: I am asking you a question.
Senator Mitchell: I am making a statement, Senator Nolin. I know you are sensitive about this because your party probably contravened the Canada Elections Act by paying your fees and not counting them even though the Canada Elections Act would dictate that they should be counted as a contribution to the party.
Senator Nolin: Mr. Chairman, I asked a question of Senator Zimmer. The answer I got from Senator Zimmer is, no, it is not acceptable. Senator Mitchell jumped into the discussion.
Senator Zimmer: When I said no, I meant it should be included in the donation. We want to increase the limit of a donation to a national party to $2,000. I meant "no" to what you were suggesting. It should be included in the donation to the party nationally, which we want to increase to $2,000. Therefore, that would be included in it.
Senator Nolin: My question was about the tax scheme. When an individual is making a contribution to a party, that person is entitled to receive a tax receipt, deductible from the tax he or she has to pay at end of the year. My question is this: Is it acceptable if the cost to organize the event or convention equals the amount of contribution that was received by a political party —
Senator Zimmer: They would not get a receipt.
Senator Nolin: — so that, at the end of the day, the taxpayer of Canada would pay for that convention?
Senator Zimmer: I understand. We do that now. If we have a convention, we take out the costs of the convention and they get a receipt for the difference.
Senator Nolin: That is my point, which is why I made the amendment.
The contribution is only the profit — what is over the cost of organizing the convention. It is not all contribution.
Senator Zimmer: I am not sure I understand the honourable senator's question.
Senator Nolin: Maybe Senator Mitchell who knows more about that can help?
Senator Day: The Chief Electoral Officer said that profit had absolutely nothing to do with your obligations and requirements under the Canada Elections Act. Stop talking about profit; he is a commissioner.
The Chairman: In order to keep some decorum here, we can only have one person speaking at the time. Senator Nolin has the floor.
Senator Nolin: I will refrain from using the word "profit" and use the word "contribution," because you are using that word.
My point is very simple: If the contribution is the entire payment made to a political party to pay for the organization of a convention, then it means that the entire contribution equals a donation. If it was a donation, one is entitled to a tax receipt. That is where I have a problem.
Senator Mitchell: A couple of points.
First, if an individual makes a contribution to the party, and the party, in turn, rents a hall or an office for an election campaign, they are renting space. Similarly, in the case of a convention, when an individual makes a contribution to the party for a convention and the party goes out and rents space for the convention. I do not see what the difference would be, so I do not understand your problem.
What we are concerned about is what happened in your convention, where we do not know how many corporations actually funded your delegates to go to your last convention, contrary to what the Chief Electoral Officer has ruled.
The problem is that you could set up a convention, cover all your expenses outside the realm of the proper public listing and transparency, which is so important to this bill — cover all those expenses by contributions from any number of corporations. That would be in absolute contradiction to the sense of this bill, which has been brought in by your government, to say no corporations can contribute.
So it seems to me, Senator Nolin, you cannot have it both ways. If you are so upset, on the one hand, about paying for a hall for a convention with contributions, why would you not be equally upset about paying for an office for an election with a contribution? It is space here, and space here.
What we are trying to get past is your predilection, indicated in the last convention, to have corporations — although we do not know for sure, but it could well be — massively fund your convention and therefore create obligation, which your own government is trying to prevent. I am not finished.
[Translation]
Senator Nolin: I would like my friend to stick to the content of the amendment. I am ready to talk about the amendment.
[English]
If the honourable senator wants to talk about the history of my party compared to the history of his party, we can open the discussion.
Senator Mitchell: It has to be within the realm of this particular issue. I understand why you are so upset. Right now, Mr. Kingsley has ruled against your party and the way that you handled your contributions to the last convention. The people of Canada and your own party should be concerned about it.
The Chairman: Honourable senators, we are debating now and having a discussion now on an amendment proposed by Senator Zimmer.
Senator Cowan: It is our understanding that the law as it currently stands is reflected in Senator Zimmer's amendment. He has put it here for greater certainty. Our position is that this gives greater certainty to the current law.
We are not proposing any change to the law as we in the Liberal party understand it, as we have abided by, in the Liberal Party, and has been ruled on by the Chief Electoral Officer. It is not a change we are proposing; we are simply putting it in here for greater certainty.
There seems to have been some misunderstanding or difference of opinion between the Conservative Party and the Chief Electoral Officer. We accept the Chief Electoral Officer's interpretation of the law as it now stands, but for greater certainty we propose this amendment.
Senator Andreychuk: I think what we are trying to do here is get greater accountability and greater acceptance for all political parties in Canada and not to go over past history. The accountability issue came up because we want to do better tomorrow than we did yesterday. It does not serve us well in the Senate to bring in the kind of debate that, perhaps, occurred in the House of Commons.
I respect Senator Zimmer for bringing in this recommendation for greater certainty. From our point of view, we do not believe that it is acceptable — "necessary" would be a more appropriate word.
I think that we should stick to the merits of our positions and not go over old history. I do not think it serves us well.
[Translation]
Senator Nolin: If you will allow me, I believe a mistake was made during my colleague's diatribe, Senator Mitchell. Mr. Kingsley said what was in the act but he did not express any opinion about what happened during our convention. The issue is being considered at this time by the Commissioner of Elections and it will be up to that official to determine if we have acted properly or not.
And I give you my word, Senator Mitchell, that we will pay whatever has to be to correct any mistakes if we have acted improperly.
[English]
Senator Zimmer: Senator Nolin, our purpose in doing this was to show very clearly that we wanted to be open, transparent and accountable. We did not want to hide it.
We discussed the possibility of making a separate amendment, making an exemption. We decided not to do that. We wanted to make it open and clear. As Senator Cowan has indicated, it was for greater certainty. We wanted to make it clear that we had no intentions of hiding anything like this.
We felt conventions are expensive. In fact, I understand from the previous Bill C-24 that the authors of that bill indicated that there was an error and they made a mistake on the fact that they did not allow for conventions — either donating to, or the cost of them. It is an issue we felt we had to deal with and we thought the best way to do that in an open way was to put it up front and include it in the donation to the election to the national party.
The Chairman: Honourable senators, we are now voting on the amendment of the Honourable Senator Zimmer.
Shall the amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The amendment is carried on division.
Resuming debate on clause 44 as amended. If there are other amendments a senator would like to propose to this clause, this is the appropriate time to bring them forward.
There being none, shall clause 44 as amended carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 44 as amended is carried on division.
Shall clause 45 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 46 carry?
Senator Zimmer: I move
That Bill C-2 be amended in clause 46,
(a) on page 58,
(i) by replacing line 30 with the following:
Senator Andreychuk: Dispense?
The Chairman: Dispense.
Senator Zimmer: And page 59.
The Chairman: Comment?
In amendment to the motion that clause 46 carry, the Honourable Senator Zimmer moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Shall clause 46 as amended carry? Is there another one for 46?
Senator Zimmer: I move:
That Bill C-2 be amended in clause 46,
(a) on page 58, by adding, after line 40, the following:
Senator Nolin: Dispense.
Senator Zimmer: I move:
That Bill C-2 be amended in clause 46,
(b) on page 59, by adding after line 28 the following:
The Chairman: The clerk is looking for a particular amendment. I have been asked to hold for a couple of seconds.
In amendment to the motion that clause 46 carry, the Honourable Senator Zimmer moves — shall I dispense?
Senator Day: We have a comment on the motion in the first —
Senator Mitchell: Before we pass the motion, I would like to address the reason for the first amendment to clause 46. From Bill C-24, the existing funding limit was dropped from roughly $5,200 down to $1,000 in a variety of categories by Bill C-2. We have, in turn, increased that to $2,000. There is still a reduction from Bill C-24 from the existing circumstance, but it is not as steep a reduction.
I would like to address for the record why that is important. It is important that we remember, despite the kind of disrepute —
Senator Nolin: Mr. Chairman, we have already adopted this clause.
Senator Mitchell: But we have not accepted the clause.
The Chairman: This is a second amendment on the same clause.
Senator Nolin: Mr. Chairman, if you read the amendment that is proposed by Senator Zimmer, it has nothing to do with that $2,000; we have already dealt with that.
Senator Mitchell: Mr. Chairman, my argument is that we would still have to vote on the clause as a whole, so my comments are well within order.
The Chairman: You are correct; the clause is still open.
Senator Andreychuk: If Senator Mitchell wishes to go back to it, he should ask for leave to revert back to that amendment.
The Chairman: We have had one amendment to the clause and you can have many amendments to the same clause. We have not voted on the clause per se and so the clause is still open for debate.
Senator Mitchell: I am debating the clause.
Senator Nolin: But we are studying an amendment now.
The Chairman: We are studying a specific amendment under clause 40.
Senator Mitchell: I can wait until that specific amendment; but before the vote on this clause, I would like to make my comments.
The Chairman: You should be speaking to the particular amendment; and if there is another one that is more appropriate, that is when you should be speaking.
Senator Mitchell: I can speak to the clause in general.
The Chairman: That is correct.
In amendment to the motion that clause 46 carry, the Honourable Senator Zimmer moves — shall I dispense?
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The motion in amendment is carried on division.
We are back to the general debate on clause 46, as amended.
Are there further amendments to clause 46 as amended?
Senator Mitchell: To reiterate, the existing case is that funding limits are $5,200 roughly and they were dropped by Bill C-2 to $1,000. We are increasing them to $2,000. There is still a reduction.
The increase is for this reason: Despite the fact that there is much controversy around political parties in the sense that they are in some disrepute, the fact of the matter is that political parties are an extremely important institutional structure in our parliamentary system. I should remind honourable senators that the parliamentary system is the most successful system of government on the face of the earth today and it has lasted for hundreds of years. One of the reasons it has lasted so successfully is because it provides two very important features of the parliamentary democratic process; it packages ideas and, in doing so, it gives people an alternative for government. Second, it is a way to build consensus; and successful democracies are successful because they have ways to build consensus. We are fortunate to have a political party system that has done that admirably over the decades.
However, they need some funding to be able to do that. If we reduce it so far, we begin to squeeze the life out of these parties and their ability to perform that important role.
At the same time, corporations will have unlimited resources to debate any political issue that they might like. For example, they might take out ads on income trusts; and the National Citizens' Coalition can raise unlimited resources to set up billboards all across the country on any political issue it wants. It has done so in the past. Also, think tanks are not limited in this way; they can contribute to the public policy debate and the democratic process without real limits of any kind.
My point is that while all these other groups in society will be able to participate aggressively and without real limit in the public policy debate, ironically, political parties will have more and more of the life squeezed out of them in this onslaught to reduce their funding limits.
What is the right level? It is judgment; however, we would say that $1,000 is simply too low and increasing it somewhat is more reasonable. It gives a chance for your party and our party and, more importantly, even smaller parties like the Reform Party once was and the Conservative Party of the past once was —
The Chairman: Senator Mitchell, I think we have your point.
Senator Zimmer: I will be brief. I have four points. First, in the previous act, Bill C-24, they indicated there should be an analysis. We are only about two years into that. Picking up on what Senator Mitchell just said, we really have not had an opportunity to analyze that. I know some parties have done a bit of that but it is a little rough. Second, smaller parties indicated very clearly that if we drove it down too far, they would find a way; they would underground us. We do not want to encourage that.
Third, we did not include corporations. There is an observation on companies and corporations, but we did not include that. We are trying to find an objective for going from $5,000 down to $1,000. We are saying, do not be as dramatic but still reduce it and follow that line of thinking. That is how we came up with these recommendations, and we considered all those factors, including corporations, unions and smaller parties.
The Chairman: Mr. Wild, do you want a final word before I put the question?
Mr. Wild: I have no technical comments on the amendments that have been moved in general. Obviously, there is a policy difference between what government has proposed and what is accomplished through the amendments.
Senator Day: Question.
Senator Andreychuk: I want to put one comment on the record. All others have had an opportunity to contribute in the debate, and the political parties are at somewhat of a disadvantage.
I think some would argue that the political parties have more levers and access to the political machinery and to the parliamentary process.
Senator Zimmer has put out some points as to why $2,000 might be a better amount, but with respect, the government has chosen $1,000. I think there has been sufficient evidence on the record to point to why the government did that and how they came to that conclusion. I do not want to go into that this evening, but I would like to remind you that it is there on the record.
Senator Zimmer: I appreciate that. That is why I indicated your party has done a bit of an analysis. I do not think other parties have yet, but you have some good facts on that, and I can understand how you arrived at the number you arrived at. I understand your point.
The Chairman: Honourable senators, shall clause 46 as amended carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 46 as amended shall carry on division.
Shall clause 47 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 48 carry?
Senator Zimmer: I have another amendment on 46, page 59.
Senator Day: We have done that.
Senator Zimmer: Sorry.
The Chairman: Shall clause 48 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 49 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 50 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 51 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 52 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 53 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 54 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 55 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 56 carry?
Senator Andreychuk: I move:
That Bill C-2 be amended in clause 56,
(a) on page 63, by replacing line 20 —
Senator Day: Dispense. Honourable colleagues have shared this amendment with us. We have had a chance to review it, and we agree with it.
The Chairman: In amendment on the motion that clause 56 carry, the Honourable Senator Andreychuk moved — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried unanimously. Shall clause 56 carry as amended? Carried unanimously.
Shall clause 57 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 58 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 59 carry?
Senator Zimmer: I move:
That Bill C-2 be amended in clause 59, on page 64,
(a) by replacing line 31 with the following:
"later than two years after the day on which the; " and
(b) by replacing line 34 with the following:
"than five years after the day on which the offence".
Some Hon. Senators: Hear, hear!
The Chairman: Senator Zimmer, would you mind giving a brief explanation, please?
Senator Zimmer: The reason we consider that is because we want to be consistent with other sections, and the amendment deals with offences and a reasonable time parameter and brings some finality to it. Also, the majority of the offences are minor ones. For those three reasons.
The Chairman: Mr. Wild?
Mr. Wild: Mr. Chairman, I think it is important for the committee to be aware there may be one unintended consequence with respect to this amendment, particularly the five years after the day in which the offence is committed, the latter part of the amendment.
A candidate can receive contributions the day after the last general election. It could be up to five years before the next general election. I realize that has not happened in recent history, but we have many examples where it has.
The filing of the report declaring contributions only occurs after the completion of the election. The Chief Electoral Officer and their commissioner are not in a position to receive information to determine whether a contribution has violated the act until after the election.
If you are in my hypothetical election, contributions received the day after, five years, next election, report filed some months after that election, there is no possibility to investigate that offence if there is one.
Senator Baker: Two elections back?
Mr. Wild: There has been an election; I receive my contribution after the election, so the day after the election I start fundraising again.
The Chairman: Then five years pass.
Mr. Wild: Five years pass before the next election. I have been fundraising throughout that five-year period, but that contribution the day after that last election — and I am not filing my report until after five years have gone by — there is no jurisdiction for the Chief Electoral Officer or the commissioner to conduct an investigation with respect to that contribution received the day after that last general election. That is part of the reason why the Canada Elections Act currently has a seven-year time limit and why we propose to move it to 10 years.
The Chairman: Honourable senators, if one would like to make a statement, please do so through the chair so everyone can hear what is said.
Senator Nolin: Some are raising the point that political parties, local associations now since Bill C-24, must file a report annually.
The Chairman: That is correct.
Senator Nolin: In the example raised by Mr. Wild, he is not referring to the local association. He is referring to a past candidate who does that over and beyond the law. Of course the candidate cannot do that. That is why the candidate will be prosecuted when we find it.
Senator Mitchell: Then his argument does not apply because the report will not matter anyway.
Senator Nolin: It is not on the report, but the candidate will use that money, I assume under your hypothetical example, during a future election and the system will find out about that donation.
Mr. Wild: You can start raising money as a candidate, and so you are raising money as a candidate: it is not a riding association and not a party. You could be thinking potentially you will be a candidate. You may not even have won a nomination yet to run. The report is not required until four months after the election.
The problem is that you could have a five-year-plus-four-month window before there is any possibility of the Chief Electoral Officer having the information required to even determine if there was a violation, and the Chief Electoral Officer is already stopped by a five-year limit from being able to go forward with any kind of investigation.
Senator Cowan: As I read it, it is now five years after the day on which the commissioner became aware of the facts. Now we are saying it should be two years after the date on which the commissioner became aware of the facts.
Mr. Wild: That is not the part of the motion I refer to. I refer to the latter part, moving the proposal of 10 years, which is not premised on knowledge, to five years. I want to be clear, I am talking about candidates, and candidates do not file on an annual basis.
Senator Nolin: To pursue your example, if I may, it could be an individual's first time as candidate, so the candidate could have raised money seven years ago.
Mr. Wild: Yes.
Senator Nolin: Then the candidate decides when the individual becomes a candidate to issue receipts for donations that the individual received seven years ago, which is illegal. We all agree it is illegal, but we want that to be prosecuted properly.
Senator Baker: It is when the receipt is given that the offence happens.
Senator Nolin: It is even in respect of collecting money for an event that was not supposed to be.
Senator Baker: You can get him on the offence; you can get him on the receipt.
Senator Nolin: You cannot solicit money for a political donation if you are not a candidate.
Senator Ringuette: Let us not confuse the issue. If a proposed candidate has illegally solicited and received donations for a four- or five-year period, that is one thing. However, the act says that the commissioner has a two-year period after becoming aware of the facts. Someone could have raised money in 2001 or 1998, but the precise moment the two years starts is when the commissioner has knowledge of the offence.
I do not agree with Mr. Wild's example or other examples that have been raised, because it is from the time that the commissioner acknowledges that there is a potential offence and he then starts to investigate.
Mr. Wild: Under the existing Canada Elections Act, section 451(4) reads:
The documents referred to in subsection (1) —
— statement of contributions and so on —
— must be provided to the Chief Electoral Officer within four months after
(a) the day set for polling day; or
(b) the publication of a notice of the withdrawal or deemed withdrawal of the writ for the election, in any other case.
Section 451(1) reads:
The official agent of a candidate shall provide the Chief Electoral Officer with the following in respect of an election:
(a) an electoral campaign return, substantially in the prescribed form —
— and so on; the auditor's report —
(d) a declaration, in the prescribed form, made by the official agent...and
(e) a declaration in the prescribed form made by the candidate...
The Chairman: What is the effect of that?
Mr. Wild: The effect is that the information required in that form may not be provided until four months after an election. If there is information that has to go into that form that relates to contributions and they were received the day after the prior election, and you have a five- year period in between, under this proposed amendment the Chief Electoral Officer would not be able to either enforce the filing of that prescribed form nor investigate a violation around it because the latter part of that motion says that regardless, it does not touch on knowledge, it is five years from the date the offence occurred.
Senator Ringuette: No, it is after the date on which the commissioner becomes aware.
Mr. Wild: Keep reading.
One last thing that may or may not assist. The Chief Electoral Officer himself recommended the movement to 10 years. It is very much, as far as I understand it, related to the issue that I am bringing forward today.
Senator Baker: Mr. Chairman, the Canada Elections Act started out with a two-year limit, then went to a five-year limit, and now it has gone to a seven-year limit. It has changed fairly rapidly over the years. Some cases have been litigated around the very subject you just raised. For example, the recent decision of R. v. Nunziata dealt with that particular occasion of an official agent who collected money on behalf of an independent candidate. The law was reviewed fairly thoroughly by the judge in that case. I read it to be different from what you just described, that the actual offence took place with the collection of the money five years and four months previous to the filing of the return, or the non-filing of the return in Mr. Nunziata's case. I read that differently. Have you read any case law on it? I am just saying that I have a different interpretation from reading that judgment and that was only two months ago.
Mr. Wild: My understanding is that the Nunziata case is precisely the reason that drove the increase in the time limit to seven years under Bill C-24. The time frame of 18 months after the commission of an offence, which is how it used to be, did not allow the Chief Electoral Officer or the commissioner to prosecute most offences, so that was moved to the two years, and the seven years was brought in as part of that movement.
I do not have much more to offer on this point, quite frankly.
Mr. Wild: Mr. Marc Chenier is legal counsel with the Privy Council Office and has been instructing on the portion of the bill dealing with the electoral clause.
Marc Chenier, Counsel, Legislation and House Planning, Privy Council Office: Senator Baker is correct in saying that it used to be 18 months after the commission of the offence. That was the limitation period before Bill C-24 in 2003. In most cases, as Mr. Wild noted, that did not allow for offences to be investigated or prosecuted because often they would come to the attention of the commissioner or the Chief Electoral Officer after the expiration of the 18 months. In Bill C-24 the limitation period was increased to seven years after the commission of the office, and that was seven years because of the maximum amount that could occur before an actual wrongdoing would come to light.
The Chairman: Mr. Wild has told us the Chief Electoral Officer has asked that the seven years be increased to 10.
Mr. Chenier: That is right. That was in his latest report to Parliament tabled in September of last year.
Senator Andreychuk: I want to be clear that if it were five years, we would do better than we did before. If I understood Mr. Wild, there is still that window. If an election were called on a real five-year period, five years would not be sufficient; you would need something more than that. That is one exemption that would occur if we went to five years and would not then be consistent for any election at any time within our legal and constitutional system.
Mr. Wild: We are currently at seven years, so the five years is already taking it down by two years. It was felt that seven years was necessary after the incident and which was done by Bill C-24. Bill C-2 bumps it up to 10 years, in line with the report to Parliament filed by the Chief Electoral Officer. The risk that we are trying to identify is that if it is dropped to five years, there is a possibility that you will miss and freeze out certain investigations or violations.
Senator Cowan: Is it now two and seven?
Mr. Wild: Yes, that is right; it is currently two and seven.
Mr. Chenier: It is now 18 months after the commissioner becomes aware of the offence, up to a maximum of seven years after the offence was committed.
Senator Cowan: Excepting Senator Baker's point that anyone who is in the position would like to have as long as possible. If you had 50 years, that would be fine, but there is a balance to be struck. Obviously, you need to be fair to give the investigation and the charging officers time to do what they have to do, but they must do it in a reasonable time. On the other hand, we must be fair to the people who will be affected by this, as Senator Baker said earlier.
I have not read the report to which you refer.
What is wrong with it as it is now: two and seven?
Mr. Chenier: Now, it is 18 months and seven years.
Senator Cowan: Is there any litigation, any case where 18 months was found to be insufficient?
Mr. Chenier: Unfortunately, we never know because the commissioner is not able to ask for more right now.
Senator Cowan: I understand, but he is asking in his report: he wanted what is referred to here.
Mr. Chenier: He does not address the knowledge part.
Senator Cowan: Why is two years not enough, and you would need to go to five?
Mr. Chenier: The first part is the knowledge part.
Senator Cowan: We are talking about after the commissioner has knowledge of the offence. I am thinking seriously about your second point if the election cycle is as it is — I had not thought of it that way, but on the first part the commissioner has the information. Why can the commissioner not lay a charge within two years after that point in time?
Mr. Chenier: At this point in time, the commissioner does so within 18 months, and it can be a challenge, of course, because you need to contact witnesses. You need to investigate the incident, so 18 months must be a challenge.
Senator Cowan: As Senator Baker pointed out earlier, if you made it 10 years, then people move, they die, they forget. Time goes on.
Mr. Wild: For that part, it is only five years. For that knowledge part, we are talking about five years to ensure there is enough time to complete an investigation.
Senator Cowan: I hear what you say about the seven years, and I think about that, but the idea that someone who has knowledge of an offence would require more than two years: maybe they need more staff. That is the point. If you need more resources, that is one thing, but if you need more time to do what you should be able to do, I find it difficult to understand.
Mr. Chenier: With electoral litigation, it is feast or famine. After an election period there is an onslaught of cases that the commissioner must investigate all at once, whereas in other periods it is more relaxed.
I think that is probably why a five-year period would be considered an advantage over an 18-month period. After every election, the commissioner can have 700 to 1,000 investigations ongoing at any one point. That is a lot of investigations to conduct in 18 months.
Senator Andreychuk: I understand the point that Senator Cowan is making about why the five years, and you are responding that the commissioner needs the time to investigate because they come in en masse and to do a reasoned job, the commissioner needs more time.
Back to the other part, it went to seven years under Bill C-24, as I recall, and it was in this committee. This committee passed it and I think the Senate passed it. At that time, were either one of you making representations? I do not remember.
Mr. Wild: Certainly, not me.
Senator Andreychuk: I have a vague recollection that there was more time needed, but I wonder whether it covered the point, Mr. Wild, that you make now, that 10 years covers that window of possibility if we go to a five-year span between elections. Do you recall if that issue was raised in Bill C-24? I do not have any recollection of anything like that.
Mr. Chenier: I was at Elections Canada at that time, and I remember that the example was given at committee of someone who is deemed to have been a candidate up to the time he or she received his or her first contribution. Again, this can be five years in the past, considering our election calendar, and those donations to a candidate would only be disclosed four months after the election when the individual actually ran. It was calculated so you got your five years plus four months — we are up to five years and four months — and then 18 months for the commissioner to investigate. That brings you to six years and a half, so they rounded it off to seven, just for the ease of it.
The Chairman: Honourable senators, we have been on this one issue a long time, and I have certainly heard much debate and argument on both sides. I would like now to turn to Senator Zimmer who wanted to speak after everyone else had made their views, and he now has the floor.
Senator Zimmer: In consideration of moving from seven years to 10, I do not think we ever had enough time to analyze it for Bill C-24. However, in light of the conversation that just occurred and the testimony, I want to amend my motion to seven years from five. In view of the conversations that occurred and the testimony, I would like to move it to seven, back to where it was.
The Chairman: Honourable senators, to amend his own motion, we need the leave of the committee. Does the committee give Senator Zimmer leave to amend his own proposed amendment?
Hon. Senators: Agreed.
Senator Day: I understand he is amending the five years to seven years in clause (b) of his motion.
The Chairman: In clause (b) of what section, so we have it exactly here?
Senator Zimmer: Clause 59, page 64:
(b) replacing line 34 with the following:
"than seven years after the day on which the offence".
The Chairman: Honourable senators leave is given, and Senator Zimmer has amended his motion. To let you know where we are, we are now voting on the amendment as amended by Senator Zimmer. Shall the amendment, as amended, carry?
Hon. Senators: Agreed.
Senator Nolin: On division.
The Chairman: On division.
We are resuming debate on clause 59, as amended. Are there any other amendments proposed to this clause? If so, this is the appropriate time to do it.
Senator Nolin: My only comment would be to say to my colleagues that it would be the first time in the history of Parliament we would second-guess an officer of Parliament. Usually, when we receive the request from the Chief Electoral Officer or the commissioner, we follow that.
The Chairman: Honourable senators, shall clause 59, as amended, carry?
An Hon. Senator: On division.
Some Hon. Senators: Agreed.
Senator Cowan: I wonder if my colleague is correct in that. It seems to me there would have been reports of a Privacy Commissioner and various other officers of Parliament that this government has not accepted and recommendations, say, of the Privacy Commissioner, the Information Commissioner, and so forth.
Senator Nolin: My comment was on section 59 of Bill C-2.
Senator Cowan: I understood Senator Nolin to say this would be the first time that the recommendations of an officer of Parliament have not been accepted, and I wonder whether that is correct.
Senator Nolin: Maybe I will read back the meaning.
[Translation]
Senator Nolin: It would be the first time, I believe, that Parliament would not accept a recommendation of the Chief Electoral Officer as an officer of Parliament.
[English]
The Chairman: Shall clause 59, as amended, carry?
Some Hon. Senators: On division.
Some Hon. Senators: Agreed.
The Chairman: Clause 59 as amended is carried on division.
Shall clause 60 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 61 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 62 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 63 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 64 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 65 carry?
Senator Day: We are into a different subject matter here in clause 65.
The Chairman: Yes, the Lobbyists Registration Act.
Senator Day: We just finished subject matter. I have to readjust myself.
The Chairman: We are now at what is called the Lobbyists Registration Act, clause 65.
Honourable senators, shall clause 65 carry?
Senator Day: I do not see any amendment.
Hon. Senators: Agreed.
The Chairman: Shall clause 66 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 67 carry?
Senator Andreychuk: I move:
That Bill C-2, in Clause 67, be amended by
(a) replacing line 13 on page 66 with the following:
"designated public officer holder" means
(b) replacing lines 18 and 19 on page 66 with the following:
(b) any other public office holder who, in a department within the meaning of paragraph (a), (a.1) or (d) of the definition "department" in section 2 of the Financial Admin-
Senator Day: Can we have an explanation on this?
Senator Andreychuk: The definition of public office-holders includes senators and the definition of senior public office-holders does not. The Senate Law Clerk indicated his concern with the fact that the assistant deputy ministers are included in the senior category. Changing the title of the public office-holders included under the lobbying act from "senior" to "designated" will better respect the range and hierarchy of positions to be included under this definition. There are also some consequential motions to amend this title as we go through the bill.
I do not know if either Mr. Patrice or Mr. Wild would like to make any further comments.
Senator Day: We like the first part; we understand that. It is easy. We thank you for that.
The second part, I am not certain of yet.
The Chairman: Mr. Wild is about to enlighten you.
Mr. Wild: The second part, (b), does a couple of things. Instead of saying "any individual" it reorients it to "public office holder," which is the key core definition existing in the lobbying act as it is. You have the key core category of public office-holders, and then you have "designated public office-holders," which are meant to be a subset of public office-holders.
The word "individual" was causing a bit of discrepancy, ensuring we were staying within the set of public office- holders. The rest of it is again to address a concern that had been raised by the Senate Law Clerk that we were capturing the staffs of the House, the Senate, the Senate Ethics Officer and so forth. Hence,. there are two things missing, a (b) and a (c) from that list within the meaning of paragraph (a), (a.1) or (d). The (b) is commissions of inquiry and the (c) is the staff of the House and Senate and so on.
It is removing them out of the requirement on the designated public office-holder.
Senator Day: That is helpful. We can support that.
The Chairman: In amendment to the motion that clause 67 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 67, as amended, carry?
Senator Day: There is another one.
Senator Andreychuk: There is one more.
I move:
That Bill C-2, in Clause 67, be amended by replacing line 2 on page 67 with the following:
to (4), as if the person were a designated public
These are consequential amendments.
The Chairman: Consequential.
Senator Andreychuk: To the one we just moved.
Senator Day: Did you say that is consequential?
Senator Andreychuk: Yes.
The Chairman: Senator Andreychuk said it was, and I was repeating it to ensure I heard it correctly.
Senator Andreychuk: To the amendment we just passed.
Senator Day: Yes. We support that.
The Chairman: Honourable senators, in amendment to the motion that clause 67 as amended carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Honourable senators, shall clause 67, as amended twice, carry?
Hon. Senators: Agreed.
The Chairman: Clause 67 as amended is carried unanimously.
Shall clause 68 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 69 carry?
Senator Andreychuk: I move that Bill C-2 be amended in clause 69 by replacing lines 30 to 32 on page 69 —
Senator Cowan: I have line 19.
Mr. Patrice: It is a government amendment.
Senator Cowan: I move:
That Bill C-2 be amended in clause 69, on page 69, by replacing line 19 with the following:
"(g) the fact that the undertaking does not provide for any".
The Chairman: Could you give us an explanation?
Senator Cowan: Yes. We are simply replacing the word "it" with "the undertaking" to make it clear that it is referring to an undertaking required to be filed by a consultant lobbyist under section 5 of the Lobbyists Registration Act. It does not change any intent.
Senator Andreychuk: We are prepared to accept that.
The Chairman: Mr. Wild?
Mr. Wild: Given that the French is "le fait que l'engagement ne prévoit aucun paiement," I do not have a problem with it and I view it as a technical amendment.
The Chairman: In amendment to the motion that clause 69 carry, the Honourable Senator Cowan moves — shall I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
Senator Andreychuk: I move:
That Bill C-2, in Clause 69, be amended by replacing lines 30 to 32 on page 69 with the following:
the individual as a designated public office holder and the date on which the individual last ceased to hold such a designated public office;
This is a consequential amendment to changing the words from "senior" to "designated," which we just passed. There are a series of them.
The Chairman: Senator Day?
Senator Day: We support that.
The Chairman: In amendment to the motion that clause 69 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 69, as amended twice, carry?
Senator Nolin: Here is another one.
The Chairman: Clause 69?
Senator Andreychuk: On page 70. I move:
That Bill C-2, in Clause 69, be amended by replacing lines 4 to 6 on page 70 with the following:
month involving a designated public office holder and relating to the undertaking,
(i) the name of the designated public office
This is also a consequential amendment from when we changed "senior public office-holder" to "designated."
Senator Day: We support that.
The Chairman: In amendment to the motion that clause 69 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 69, as amended three times, carry?
Mr. Patrice: There is another one.
Senator Andreychuk: No, there is clause 70.
The Chairman: I repeat, shall clause 69, as amended three times, carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 70 carry?
Senator Andreychuk: Clause 70. I move:
That Bill C-2, in Clause 70, be amended by replacing lines 38 and 39 on page 72 with the following:
month involving a designated public office holder,
(i) the name of the designated public office
This is also a consequential amendment from senior to designated, which we just passed.
Senator Day: We are pleased to support that.
The Chairman: In amendment to the motion that clause 70 carry, the Honourable Senator Andreychuk moves – shall I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 70, as amended, carry?
Mr. Patrice: There is another one.
Senator Andreychuk: I am sorry.
Senator Day: These are all government amendments.
The Chairman: Thank you for letting me know.
Senator Day: I thought our viewers should know.
Senator Andreychuk: There is a consequential amendment on the changing from senior to designated. Therefore, I move:
That Bill C-2, in Clause 70, be amended by replacing lines 7 to 9 on page 72 with the following:
"qualified the employee as a designated public office holder and the date on which the employee last ceased to hold such a designated"
Again, this is changing from senior to designated.
Senator Day: That is a consequential amendment, and we accept that amendment from the government.
The Chairman: In the amendment on the motion that clause 70 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Senator Andreychuk, do you have another?
Senator Andreychuk: No. Those are all under clause 70.
The Chairman: Shall clause 70, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 71 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 72 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 73 carry?
Senator Andreychuk: Perhaps you could keep looking over here. It is line 22. Which one is yours?
I move:
That Bill C-2, in Clause 73, be amended by replacing line 22 on page 74 with the following:
"present or former designated public office holder"
Senator Day: Dispense.
Senator Andreychuk: This is also a consequential amendment.
Senator Cowan: My amendment on line —
The Chairman: Senator Cowan, just wait for a moment. I want to complete Senator Andreychuk's amendment first.
In amendment to the motion that clause 73 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
Senator Cowan: Line 30 on that page, Mr. Chairman. I move:
That Bill C-2 be amended in clause 73, on page 74, by replacing line 30 with the following:
"(2) The Commissioner shall, in a report under".
We are simply replacing the word "may" with the word "shall."
The Chairman: Honourable senators, in amendment to the motion that clause 73 carry, the Honourable Senator Cowan moves — shall I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
Senator Andreychuk: Could we get an explanation, please?
The Chairman: An explanation of the "shall" and the "may?"
Senator Andreychuk: Yes.
Senator Cowan: Proposed section 9.1(2) says that the commissioner may in a report under section 11 report on a failure on the part of a present or former senior public office-holder to respond. I suppose there is a consequential amendment as well there from your part.
Senator Andreychuk: Yes.
Senator Cowan: Proposed section 11 is the annual report and proposed section 11.1 is a special report that the commissioner is in one case authorized or required to —
The Chairman: Do you want it to be made mandatory?
Senator Cowan: Yes. If there is a failure, we can see no reason why he should not be required to report that to Parliament.
Mr. Wild: The only technical issue from my perspective is trying to work through the fact that proposed section 11.1 is a "may," so the special report is a discretionary one. There is no requirement.
I want to ensure I am going through this properly. I am a little concerned that putting a requirement on the commissioner to have to report under proposed section 11 or 11.1 on the failure will be read as though the commissioner will no longer have discretion and will have to make special reports to Parliament as opposed to deciding instead, because the failure is insignificant, to simply report it in the annual report.
I am not sure I am clear on whether that is the intent or where this is going.
The Chairman: Senator Cowan?
Senator Cowan: The annual report is mandatory.
Mr. Wild: Right.
Senator Cowan: Proposed section 11.1 is a special report.
Mr. Wild: Special reports are generally discretionary because they can happen at any time when the commissioner feels that there is a matter that warrants such a report.
Senator Cowan: My response would be that if he prepares a report, then it has to contain the infraction. If he decides in his discretion not to prepare a special report, then, obviously, there is nothing to be included.
Mr. Wild: I can come up with one scenario for you to think about; there might be infractions that are not serious that normally he would put in the annual report. However, if the government were looking at doing amendments to the Lobbyists Registration Act and he were to decide to issue a special report to Parliament with respect to his reaction to those draft amendments proposed, it would require him to include those infractions when it has nothing to do with the subject matter of the special report itself.
Senator Cowan: Is he required to submit a special report? I thought it was at his discretion to do so.
Mr. Wild: It is, but if he exercises the discretion to issue the special report, he would have to include the infractions as opposed to waiting to put them in the annual report if he chooses to write a special report on a completely unrelated topic to infractions specific to a policy question around the act. I believe that I understand the intent.
Senator Mitchell: We could leave it to the end.
Senator Cowan: As long as he reports on it at some time. The way it reads now, it is not necessary that he report on the infractions. It says that he "may report" on the infraction. We are suggesting that he "must report" on the infractions. Whether he reports on it in his special report or in his annual report, I do not think matters.
Senator Baker: Could Mr. Wild tell us whether there is any requirement for the commissioner to report in this case on the failure of the public office-holder to respond or the unsatisfactory response of the public office-holder?
Is there a requirement for the commissioner to so respond concerning those particular instances in any other part of the report? That is Senator Cowan's main point. If you have an unsatisfactory response or no response, would this require the commissioner to report on it at some time?
Mr. Wild: If it is in the frame of an investigation, then the commissioner has a mandatory requirement to report. That is in proposed section 10.5 on page 79, which outlines all the requirements. If there is an infraction relating to the investigatory powers of the commissioner, then it is mandatory that it follows with the report. Outside of that, the annual report would be the other mandatory report.
Senator Cowan: The difficulty is with proposed section 11.1 and not with proposed section 11.
Mr. Wild: That is correct.
Senator Cowan: Perhaps it could be: "shall report..."
Senator Mitchell: It says, "or," so there does not need to be a problem with 11.1 because he is going to do it in 11. Mr. Wild's concern with 11.1, a special report, is not the case.
Senator Cowan: If the commissioner did not feel it was significant enough to put in a special report, he could put it in the annual report and that would be sufficient.
Senator Mitchell: Yes.
The Chairman: Mr. Wild, last word to you.
Mr. Wild: I am not sure that I should have the last word.
I understand the point. I have a bit of discomfort as to whether the commissioner retains the discretion to decide in which report to put the infraction. If the infraction has occurred and he decides to go ahead with the special report, I want to ensure that he does not have to colour the contents of the special report with a report on an infraction, if it is minor enough to be reserved for the annual report.
Senator Andreychuk: I have some sympathy for the amendment but we are not sure what the unintended consequences might be. I would suggest from the government side that we abstain from this. That would be one way to determine whether we agree. I have a sense that the majority side will proceed in any event but if we can be persuasive at third reading, then you might wish to withdraw it.
It is too late in the evening now to figure out whether we can hold this portion in abeyance and come back to it in some way. I see heads nodding so I would suggest that I abstain and give some due diligence.
Senator Mitchell: The rest of section 11.1 clarifies this and makes our point even stronger where it says, "...if, in the opinion of the Commissioner, the matter is of such urgency or importance that a report on it should not be deferred until the next annual report."
That means the commissioner can defer it past the special report to the next annual report at his discretion. There is a double indemnification against Mr. Wild's concern and I do not think it is a concern. Proposed section 11.1 on the special report gives the commissioner the either/or option.
The Chairman: Five minutes ago I think I said that Mr. Wild has the last word, after which I will put the motion.
Senator Day: I am not sure but with all due respect to Mr. Wild, once he has explained the position to us, we are putting him in a position of debate with us on the issue. I do not think that is fair to him, although he is good at it because he has convinced us on two or three points. He is here as a resource person and not as an opponent on debate.
The Chairman: He will have the last word now.
Mr. Wild: I was hoping in the time this was taking that my colleague would have come back with a word from some of our drafters to ensure that my concern is as unwarranted as some here are trying to convince me it is. I like to be up front about things. If my concern is unwarranted, that is great, because I do not want to unduly delay the consideration of the bill.
Senator Andreychuk: A point of order, Mr. Chairman, Mr. Wild has been put under scrutiny two or three times now. I understand that Liberal senators want to proceed with the amendment, and they have the majority. On the government side, we are abstaining to give due deliberation. I think we can proceed.
The Chairman: I am painfully aware of who is the majority and who is the minority.
Senator Andreychuk: You will be even more painfully aware.
The Chairman: In amendment to the motion that clause 73 carry, the honourable Cowan moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Senator Andreychuk: Abstain.
The Chairman: We need a moment. We have been asked for abstentions and the proper way to do it is with a roll call. I would ask the clerk of the committee to do this.
Senator Baker: Could you put the complete motion and then, as you suggest, put the motion again to see if there are any abstentions.
The Chairman: As a matter of fact, there were. I was told it could only classify if I recorded the abstention. There is a proper way and a wrong way to do it so we will call for a roll call.
Senator Andreychuk: Mr. Chairman, on a point of order, in the usual good Senate fashion, we have deliberated the point so long that the officials have had an opportunity to look at it. I am prepared to accept their advice now that they will accept this amendment. Therefore, we do not have to worry about the abstention and we can go by unanimous agreement.
The Chairman: I have already put the motion but I will put it again to ensure the record is correct.
In amendment to the motion that clause 73 carry, the Honourable Senator Cowan moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: We have another motion.
Senator Andreychuk: I move:
That Bill C-2 be amended in clause 73 by replacing —
Senator Day: Dispense.
Senator Andreychuk: This is also a consequential amendment on the changing from "senior" to "designated."
Senator Day: This side is prepared to accept the motion.
The Chairman: In amendment to the motion that clause 73 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 73, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 74 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 75 carry?
Some Hon. Senators: No.
The Chairman: There are six or seven amendments on this one. We will start with Senator Andreychuk, with the four government amendments.
Senator Andreychuk: I move:
That Bill C-2, in Clause 75, be amended by
(a) replacing line 13 on page 75 with the following:
Dispense?
It is a consequential amendment, again from "senior" to "designated."
The Chairman: In amendment to the motion that clause 75 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
Senator Cowan: I move that Bill C-2 be amended, in clause 75 on page 75, by replacing line 21 with the following — and you have the text.
The intent is to align the wording in (b) with (c). You will note that the words "that corporation if carrying on those activities would constitute a significant part of the individual's work on its behalf" do not appear in (b). The purpose of the amendment is to add it to (b) and therefore align the two proposed sections — one for individuals employed by organizations with the one that deals with individuals employed by corporations.
Senators will recall this was suggested by Mr. Giorno during his testimony.
The Chairman: Does anyone have a comment?
Senator Day: I like it.
Mr. Wild: The amendment does represent a policy shift from the current lobbying registration as well as the restriction on lobbying activity proposed in Bill C-2. It would take organizations where currently any time spent by an individual would require them to register as a lobbyist — well, I guess in this case we are only talking about the five- year ban.
There is a policy distinction that was drawn in the bill between corporations — where the requirement is known in the vernacular as "the 20 per cent rule" — versus not-for-profit organizations, whose sole raison d'être is and can be policy development and lobbying government with respect to their specific interests.
It was for that reason that the organizations were never brought under the 20 per cent rule; it was just anyone who spends any time. I would just point out that the effect of this is to allow more unregulated lobbying activity to occur by not-for-profit organizations than would occur presently.
The Chairman: Honourable senators, in amendment to the motion that clause 75 carry, the Honourable Senator Cowan moved — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Senator Nolin: On division.
The Chairman: The motion in amendment is carried on division.
Senator Andreychuk, "replacing, in the English version, line 29 on page 75" is the one I think you are looking for.
Senator Andreychuk: I thought you had two, Senator Cowan.
Senator Cowan: Yes, I do, but mine is on the next page.
Senator Andreychuk: I move that Bill C-2, in clause 75 —
Hon. Senators: Dispense.
The Chairman: In amendment to the motion that clause 75 carry, the Honourable Senator Andreychuk moved — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: The motion in amendment is carried.
Senator Cowan, did you have something?
Senator Cowan: Does Senator Andreychuk have another at the bottom of page?
Senator Andreychuk: I have line 10 on page 76.
Senator Cowan: What about line 42?
The Chairman: I think, Senator Cowan, she carried the whole thing.
Senator Cowan: She carried the two? On page 76?
Senator Baker: One is 42; then she is supposed to have one at the top of the next page.
Senator Day: Read the one at line 8 before her. Line 10, so Senator Cowan has a motion —
Senator Cowan: There may be one at line 1 on page 76. I see it on line —
Senator Andreychuk: You dispensed; they are both there. Line 9 and line 1 on —
Senator Cowan: Line 29, and what about line 42 on page 75?
The Chairman: Honourable senators, we are still on clause 75.
Senator Day: On page 76, line 8 — thank you, Mr. Chairman. That was done two motions ago.
Senator Cowan: I move that Bill C-2 be amended in clause 75 on page 76 by adding after line 8 the following — senators have the text of that.
The intent is to prevent persons who contract with the government for services from turning around and lobbying the government for the period of five years that is set out in the act. The problem which is sought to be dealt with here is firms or individuals who, on the one hand, have a contract to provide services to the government and then turn around and lobby on the other side. That is the purpose of this, and I believe all senators have the latest revision of that proposed section.
The Chairman: A new page was just brought around to senators, and I want to ensure they have the right one. It should say clause 75, page 76, motion. There is not a date or time on it, but "draft confidential, October 24, 2006," is the one we are now dealing with.
Senator Cowan: There have been two versions today, but the one that was just passed around is the one we are dealing with.
The Chairman: At the very bottom, it says "new OPT document"; does everyone have that? We should be singing from the same song sheet.
Senator Day: The document should have two paragraphs (a) and (b); that is the only one that has had those.
Mr. Wild: The effect of this particular amendment is certainly a significant policy shift from the way the lobbying act is proposed under Bill C-2. Currently, there are approximately 5,000 registered lobbyists. This amendment, in particular the notion that an individual who is employed by an organization or corporation that has a contract for services with a department or other governmental organizations — so an employee of an organization that has the contract — would not be able to, for five years, engage in any of the lobbying activities that are described in paragraphs (a) or (b). That would mean that potentially hundreds of thousands of people who are employed in an organization but who have no connection with the government work —
The Chairman: Hundreds of thousands?
Mr. Wild: — would be banned from lobbying for that period. As I read the amendment, I do not see anything that says that the individual who is employed by the organization is actually working on the contract. If you took a company like IBM, for example, with thousands of employees, if IBM has a contract for service with the government, all of the employees within IBM would be subject to the ban in terms of dealing with whichever department IBM would have a contract with.
I am not clear on the policy intent behind it. However, at least in my quick reading of this in the few minutes we had to look at it, that is the implication that arose for me.
Senator Cowan: Of course, anyone who would want to get into the lobbying business who was in the situation that you describe could apply for an exemption.
Mr. Wild: The only issue then would be whether the commissioner of lobbying has the capacity to handle potentially thousands, if not hundreds of thousands, of requests for exemptions from the large companies with whom the government does business.
Senator Cowan: It is not likely that hundreds of thousands of employees of IBM or anyone else will turn from being employees of IBM to lobbyists.
Mr. Wild: Again, it is paragraph (b) that broadens things. They could be moving from one to another.
Senator Cowan: That is clearly the intention of the amendment. We are trying to capture more of this, because the evidence that I heard before the committee was that one of the problems was caused by people who were, on the one hand, selling services to the government and, on the other hand, lobbying the government.
The Chairman: Duff Conacher said that he was lobbying and that he was not going to register. That is what he told the committee.
Senator Cowan: That is another problem, but I am dealing with the firms who are registered. It would seem to us that this is a sensible extension and a sensible additional protection.
As an example, if I were an IBM employee who decided to leave IBM and become a lobbyist, I would apply for an exemption. If I have nothing to do with the contract, I would expect the commissioner to issue me with an exemption. A copy of that exemption is then filed in a public registry. It enhances the purposes of the proposed legislation.
Mr. Wild: The only technical issue is that currently the exemption scheme is geared to designated public officer- holders. It is not sufficient to give an authority for the commissioner of lobbying to deal with anyone other than designated public officer-holders, which is a specific, defined group. In this amendment, we are talking about individuals, and they are not included, so to go down the path you are suggesting, you would have to revisit the exemption schemes within the act to ensure you were building in these potential people so that they could have access to the scheme, or create one for them specifically.
The Chairman: Honourable senators, in amendment to the motion that clause 75 carry, the Honourable Senator Cowan moves that — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Senator Andreychuk: On division.
Senator Nolin: On division.
The Chairman: Agreed, on division.
Senator Andreychuk: I wanted to make a comment that I will not be supporting this because the exemption scheme was set up for a different purpose. I do not think it is within the public policy framework that the government is putting forward that those who have nothing to do with a contract with the government should have been trapped. Before we go down that route, it would be a significant policy shift, and I do not support it for that reason.
The Chairman: Senator Andreychuk, do you have another amendment to clause 75?
Senator Andreychuk: I move that Bill C-2, in clause 75, be amended by replacing line 10 —
Senator Day: Dispense.
Senator Andreychuk: It is also a consequential amendment from "senior" to "designated."
The Chairman: In amendment to the motion that clause 75 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: The motion is carried.
Honourable senators, shall clause 75, as amended, carry?
Hon. Senators: Agreed.
Senator Andreychuk: On division.
The Chairman: Clause 75, as amended, shall carry, on division.
Shall clause 76 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 77 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 78 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 79 carry?
Senator Andreychuk: I move:
That Bill C-2, in Clause 79, be amended by replacing lines 16 to 22 on page 80 with the following:
any position occupied by a public officer holder as a position occupied by a designated public officer holder for the purposes of paragraph (c) of the definition "designated public officer holder" in subsection 2(1) if, in the opinion of the Governor in Council, doing so is necessary for the purposes of this Act;
It is more than a consequential amendment. It is to broaden the regulation-making authority for maximum flexibility in designating public officer-holders not caught by the existing definition for senior public officer-holders.
Senator Day: We are prepared to support this.
The Chairman: Honourable senators, in amendment to the motion that clause 79 carry, the Honourable Senator Andreychuk moved — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Is there anything else in 79?
Senator Cowan: I have 79.1. Do you want to deal with 79 and then go to 79.1?
The Chairman: Is 79.1 a proposed new section of the bill?
Senator Cowan: It is.
The Chairman: This would be the appropriate time to have it.
Senator Cowan: It is the last page in the package.
The Chairman: Senator Cowan, I made a mistake. I forgot to carry 79.
Honourable senators, shall clause 79, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Now Senator Cowan, you have 79.1.
Senator Cowan: On page 80, I am proposing a new 79.1.
I move:
That Bill C-2 be amended, on page 80, by adding after line 22 the following:
79.1 The Act is amended by adding the following after section 13:
PROHIBITION
13.1 No individual shall obstruct the Commissioner or any person acting on behalf or under the direction of the Commissioner in the performance of the Commissioner's duties and functions under this Act.
It is the purpose to create an offence of obstruction of the commissioner.
The Chairman: An offence under —
Senator Cowan: Under the act, because at the moment it is not an offence to obstruct the commissioner. It seems to us that, if an individual obstructs the commissioner, it ought to be an offence.
The Chairman: Mr. Wild, did you want to comment?
Mr. Wild: There is a specific offence provision in the lobbying act — it is actually at the bottom of page 80:
14(2) Every individual who contravenes any provision of this Act —
— and then there are certain exceptions —
— or the regulations is guilty of an offence and liable on summary conviction to a fine not exceeding $50,000.
This particular prohibition would fall within that offence provision.
Senator Cowan: We are creating the offence.
Mr. Wild: There is an offence for contravening the act, so there is an obligation under the act. There are already offence provisions for that. I am trying to think of the scenario for obstruction. I am not sure how one would obstruct without actually contravening the act. There is no particular harm in it.
[Translation]
Senator Nolin: In French, it is quite clear.
[English]
Senator Andreychuk: I would think the act covered any contravention so it seems to me one of the ways you might not comply with it could be tantamount to obstruction if we wanted to go that way, but we have done it the other way, compliance. I am wondering if there was a specific case of obstruction that led you to want this amendment as opposed to full compliance with the act, which means undertaking and working with the commissioner.
Senator Cowan: I cannot point you to a particular section, Senator Andreychuk, but it seems to me there were sections in this and other acts where it is an offence to do or not to do certain things. We are simply adding to the list that obstruction of the commissioner is an offence, and then Mr. Wild points out that that would be a contravention under 14(2) at the bottom of page 80, which would be punishable as set out in that section.
Senator Day: My recollection is that this recommendation was from at least one of the witnesses we had before us.
The Chairman: I do not remember that. Honourable senators, it is moved by Senator Cowan that the bill be amended by adding a new clause, 79.1. Shall I dispense?
Hon. Senators: Yes.
The Chairman: Shall new clause 79.1 carry?
Some Hon. Senators: Agreed.
Senator Nolin: On division.
The Chairman: New clause 79.1 is carried, on division.
Shall clause 80 carry?
Senator Cowan: I move:
That Bill C-2 be amended in clause 80, on page 81.
(a) by replacing line 7 with the following:
"than two years — "
Some Hon. Senators: Dispense.
Senator Cowan: The two and five.
Senator Nolin: Senator Baker will give us the explanation why or why not.
Mr. Wild: It is obviously a policy shift from what the government proposed in the bill, and I do not have any additional arguments or points to make.
The Chairman: An amendment to the motion that clause 80 carry, the honourable Senator Cowan moved — dispense?
Some Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Senator Andreychuk: On division.
The Chairman: Carried, on division.
Shall clause 80 carry as amended?
Senator Cowan: No. Page 81:
That Bill C-2 be amended, in clause 80, on page 81.
(a) by replacing line 12 with the following:
"14.01 (1) If a person is convicted of an offence;"
All we are doing there is to add 14.01 (1) because we propose to add a new subsection (2).
The Chairman: In amendment to the motion that clause 80 carry, the Honourable Senator Cowan moved — dispense?
Senator Cowan: It is all one amendment. I thought there was a "dispense."
The Chairman: Shall I dispense?
Hon. Senators: Yes.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Senator Andreychuk: On division.
Hon. Senators: Agreed.
The Chairman: Shall clause 80, as amended, carry?
Senator Nolin: On division.
The Chairman: Carried, on division.
Shall clause 81 carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 82?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 83 carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 84 carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 85 carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 86 carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 87 carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 88 carry?
Senator Andreychuk: I have a consequential amendment:
That Bill C-2, in Clause 88, be amended by replacing line 35 on page 83 with the following:
"designated public officer-holder with the rank of"
The Chairman: Honourable senators, an amendment to the motion that clause 88 carry, the Honourable Senator Andreychuk moves — dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Are there others to 88? Shall clause 88, as amended, carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 88.1 carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 88.11 carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 88.2 carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 89 carry?
Senator Day: No, Mr. Chairman, I was going to interrupt you to tell you that I had an amendment, but I do not have one. I will vote against this particular clause, 89.
The Chairman: Shall clause 89 carry?
Senator Day: No.
Some Hon. Senators: Agreed
The Chairman: Senator Day, could I have a bit of debate to know what the issue is?
Senator Day: Yes. I would be pleased to tell you why I am not voting for it, but I am not certain why my colleagues might not.
The Chairman: They are following their leader.
Senator Day: This clause involves a consequential amendment to the Access to Information Act found in the Lobbyist Registration Act. This section gives the commissioner of lobbying the power to withhold documents that were obtained during the course of an investigation, but only until the investigation is completed. It is my intention to simply remove that section and later amend section 144 under the Access to Information Act of this act to include the commissioner of lobbying in the listed officers of Parliament under that act. In the first reading version of Bill C-2 the officers of Parliament were treated distinctly from other officers of Parliament; this officer of Parliament being the Information Commissioner.
After amendment in the House of Commons, where subsection (2) was added to section 89 that we are looking at, the provisions listed here are similar to those found in clause 144, and previously they were not. After the amendments they became similar, and for good drafting reasons we feel that when we get to clause 144 we will be asked to include this exception in that one section rather than having a separate one.
The Chairman: Could I ask Mr. Wild to give the view of the department?
Mr. Wild: The reason that the department put the access regime of the commissioner of lobbying under the lobbying act was because of coming into force and coordinating amendments. It was simpler for us to place it here rather than under the Access to Information Act portion of the bill for purely technical reasons to alleviate any possible problems around coordinating amendments, depending upon the timing of when certain things come into force. Unlike the others listed in the section under the part of the bill that amends the Access to Information Act and includes the existing agents of Parliament, the commissioner of lobbying is the only one that does not exist yet. When it will come into force will be very different than when we would necessarily bring in the other agents of Parliament.
It was merely for that purely technical reason that we had it here. As long as we work out the coming into force issues on the other side there should not be any major issue with moving it to the other section.
Senator Nolin: If we hear from Senator Day, what would be the other amendment? Would you achieve what was just explained?
Senator Day: You will see the scheme of not having to reveal certain documents under the Access to Information Act until a report comes out. Then when the final report is out, all of that other information will become available. That scheme is repeated many times in the Access to Information Act. Due to the amendments in the House of Commons, we believe that now the commissioner of lobbying fitting into that same scheme is better dealt with in the group. It is only a matter of neatness in drafting.
The Chairman: Can I ask Mr. Wild if there would be any unintended consequence or consequential consequence from deleting this clause, should it fail or succeed on the motion of Senator Day?
Mr. Wild: It certainly presumes that the motion to amend clause 144 will be successful.
Senator Day: That is somewhat presumptuous of me. For that presumption, I apologize.
Mr. Wild: I am trying to imagine if there would be a coordinating amendment problem or not, with clause 91, when they are actually brought in under the proposed act.
It is hard for me to say off the top of my head. Coordinating amendments are so technical; I would have to get some expert advice from my drafters to say for sure that there was no issue. I do not think there will be. I think, generally, it will work out. That is the best I can offer.
Senator Andreychuk: On this particular amendment, just on a personal basis, I hear that for administrative purposes, if I can use that word, it is better where it is. It may look better and it may be tidier to put it elsewhere, but from an administrative point of view, to signal where it is within the proposed act, appears to have been where our bureaucrats came out with it. They are going to have to administer this by and large and so I yield to them as to what they believe is a better way to trap and to follow these sections.
We know that often things get lost in large bureaucracies. I yield to them on that. I do not think we are talking here about a fundamental difference. What we are talking about is administration. They are giving us their best suggestion and I yield to that. I do not think it is with any disrespect to Senator Cowan's suggestion.
Senator Day: If honourable senators wanted to turn to page 118, clause 144, you can see a list. It would be my intention to move to add the commissioner of lobbying as one of those individuals.
Senator Andreychuk: I understand that. It would be neat to have.
The Chairman: You mentioned that during the witnesses. I remember that.
Honourable senators, shall clause 89 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
Senator Andreychuk: Could we get a clarification of what you are doing?
The Chairman: We have had some discussion because Senator Day said that he will be voting against clause 89. His colleagues said they will vote against it as well. That will have the net effect of defeating the clause, so we opened it up to discussion to find out if there were consequences of defeating that clause. We have had a discussion of that now and I am calling the question.
Shall clause 89 carry?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chairman: It does not carry.
On division.
Shall clause 90 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 91 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 92 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 93 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 94 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 95 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 96 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 97 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 98 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 99 carry?
Senator Andreychuk: It may explain why I was saying when we start amending things sometimes things get lost.
I move:
That Bill C-2 be amended in clause 99, on page 88, by replacing, in the English version, line 25 with the following:
"41.3(1) If a trust disclosed by a member of the House of Commons".
I move this to clarify that the member referred to in this clause is a member of the House of Commons. This is an amendment to ensure that only members of the House of Commons are included in this case and not members of the Senate.
Senator Day: We can support that motion and thank you for bringing it.
The Chairman: In amendment to the motion that clause 99 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 99 carry as amended?
Hon. Senators: Agreed.
The Chairman: Carried unanimously as amended.
Shall clause 100 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 101 carry?
Senator Day: I have a consequential amendment to our series of amendments creating the special Senate ethics officer. You will be pleased to know it is the final of those consequential amendments. I move:
That Bill C-2 be amended in clause 101, on page 91, by replacing line 16 with the following —
Senator Nolin: Dispense.
The Chairman: In amendment to the motion that clause 101 carry, the Honourable Senator Day moved — shall I dispense?.
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On Division.
The Chairman: Shall clause 101 carry as amended?
Some Hon. Senators: Agreed.
Some Hon. Senators: On Division.
The Chairman: Clause 101 is carried on division as amended.
Shall clause 102 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 103 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 104 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 105 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 106 carry?
Senator Nolin: No.
[Translation]
Senator Nolin: Mr. Chairman, I move:
That Bill C-2 be amended in clause 106, on page 92, by replacing lines 39 and 40 with the following:
(c) special adviser to a minister.
[English]
The idea is to remove special advisers to deputy and deputy heads in departments.
[Translation]
Senator Day: We support this amendment.
Senator Nolin: You agree?
Senator Day: Yes.
[English]
The Chairman: On amendment to the motion that clause 106 carry, the Honourable Senator Nolin moves – may I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 106 as amended carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 107 carry?
Senator Day: No, I have an amendment, Mr. Chairman. Does everyone have a copy of it? It is quite lengthy.
I move:
That Bill C-2 be amended in clause 107, on page 93 —
Senator Nolin: We have a copy of that. Dispense.
Senator Day: The purpose for this, honourable senators, is basically to preserve. You will note that this is a transitional provision. If you look at the latter part of the clause, that for a period of one year following the day on which the person ceased to be employed, this is somebody who has priority status and has earned that priority status. It is a right that they have earned as a civil servant. The last line is the problematic one. If that day is prior to the coming into force of this proposed section, that provides that the person with priority status can continue to have that status for one year after they cease their position but they must resign before this proposed act comes into force.
We are trying to rectify that and say that priority status is an earned right and that someone should not be forced by virtue of the coming into force of this legislation to, in effect, give up their current position in order to maintain that right. It is a type of retroactivity that we are trying to avoid.
The Chairman: Did this arise from the representation of the Public Service Commission?
Senator Day: In a discussion that we had, yes.
Mr. Wild: I would note exactly that. The amendment differentiates between those who cease prior to the coming into force who have earned the status and those who continued on after they have earned the status. Those who continue on after they have earned the status have that priority preserved for as long as the current act allows, while those who cease have it only for one year.
The Chairman: What is the position of the department and the government on this recommendation?
Mr. Wild: The policy position of the department is that those who continue to be employed after the coming into force should fall under the new proposed rules, which is not a priority status but instead eligibility to compete in the internal competitions.
Senator Day: They would lose their earned priority status. That is what we are trying to avoid.
Mr. Wild: Right. It shifts it from being able to be on the priority list to go into a position without competition to requiring to compete on the same playing field as existing public servants.
Senator Day: We have tried, where possible, to avoid this kind of retroactivity where it is mentioned in the bill.
The Chairman: Honourable senators, in amendment to the motion that clause 107 carry, the Honourable Senator Day moved — shall I dispense?
Hon. Senators: Dispense.
Senator Day: Is it your pleasure, honourable senators that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On Division.
The Chairman: Shall clause 107, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On Division.
The Chairman: Carried, on division.
Shall clause 108 carry?
Senator Zimmer: Mr. Chairman, I have an amendment.
Senator Ringuette: I have an amendment to clean up the language. I move:
That Bill C-2 be amended in clause 108, on page 93, by replacing, in the English version line 37 with the following:
"of that province to those provisions."
It removes "the."
The Chairman: Reaction, Mr. Wild?
Mr. Wild: The amendment corrects a great drafting error and we appreciate the assistance.
The Chairman: Honourable senators, in amendment to the motion that clause 108 carry, the Honourable Senator Ringuette moved — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Senator Zimmer has an amendment to clause 108.
Senator Zimmer: I move:
That Bill C-2 be amended in clause 108, on page 94 by replacing lines 1 to 4 with the following:
"(4) Sections 41 to 43, subsections 44(3) and (45) and subsections 45 to 55, 57, and 60 to 64come into force on January 1 of the year following the year in which this Act receives Royal Assent; and
(4.1) Sections 63 and 64 do not apply in respect of monetary contributions made before that day on those which sections come into force.".
The Chairman: So that the public is aware of the reference, would you explain, as briefly as possible, the amendment.
Senator Zimmer: It makes it easier if donations are made on a calendar basis because of receipting. Otherwise, the further it moves into a new year, the more problems occur in confusion with donors, whereby if it comes in the middle of the year and they go over, then you have to return funds. Administratively, it is much simpler and it is a nightmare the further you move into the year.
Senator Nolin: Mr. Wild, you had a colleague with you a few minutes ago.
The Chairman: Mr. Chenier is still there.
Mr. Wild: To provide information for the committee on the coming into force, it would be the ban on contributions by individuals, new contribution limits and the ban on cash donations would be under the coming into force that is proposed by this section.
The only thing under the proposed electoral financing amendments in Bill C-2 that would come into force on Royal Assent would be the new limitation periods.
Senator Nolin: One of the very good arguments of our colleague is whether it is to be retroactive to January 1 of the year of the coming into force of that proposed section. What about donations given between that January 1 and any date in this year over the $2,000 limit, depending on what is approved?
Mr. Wild: Are you referring to this calendar year as opposed to January 1 of the following year?
Senator Nolin: Yes, I am following the argument of Senator Zimmer.
Mr. Wild: As presented in Bill C-2, if you had already contributed $5,000, you would not be eligible to contribute any additional funds because the new limit would be $1,000. However, you would not have to return any funds that you contributed over that $1,000. The $4,000 difference —
Senator Nolin: Do you mean the political organization will not be forced to reimburse the donor?
Mr. Wild: That is right, or, for that matter, have the overpayment, if you want to call it that, sent to the Chief Electoral Officer. It does not work that way. If you had contributed $500, you would be able to contribute only $500 after the coming into force under the current coming into force provisions of the Canada Elections Act. If you contributed $2,001, you would not be able to contribute any additional money but you would not be forced to return the $1 that you paid over the limit.
The Chairman: The gentleman on your left is an expert with the Chief Electoral Officer and Privy Council Office. Would he want to add anything to what you have said in respect of the amendment?
Mr. Wild: No. He does not.
Senator Stratton: I have a question for Senator Zimmer. Are you willing to accept the coming-into-effect date of December 31, 2006?
Senator Zimmer: One day before what is proposed. What is your rationale?
Senator Stratton: I am asking a question of you.
Senator Zimmer: I see. You would finish at the end of the year. I have no problem with that. You want the fiscal year-end to be the calendar year-end. Many organizations on a calendar year end on December 31.
Senator Stratton: It is like a taxation year ending December 31.
Senator Cowan: It is December 31 in the year in which it comes into force.
Senator Stratton: I am saying December 31, 2006.
Senator Cowan: Senator Stratton is assuming that we will have —
Senator Stratton: I have asked the question of Senator Zimmer and he has said, yes.
Senator Mitchell: I would like to hear from Senator Cowan, please.
The Chairman: Honourable senators, I will put the question.
In amendment to the motion that clause 108 carry, the Honourable Senator Zimmer moved — shall I dispense.
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 108, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 109 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 110 carry?
Senator Day: We have one amendment.
Senator Cowan: I move:
That Bill C-2 be amended in clause 110, on page 95, by replacing lines 5 and 6 with the following:
"commission under the Great Seal, appoint an Auditor General of Canada.".
The intent of the amendment is to remove the words "a qualified auditor as Auditor General of Canada." It is sufficient to say that the Governor-in-Council shall appoint an Auditor General.
Mr. Wild: In an effort to assist the committee and to provide a bit of background as to where the "appoint a qualified auditor" came from, those words were specifically requested by the Auditor General of Canada during consultations with the government when we were developing Bill C-2. They were inserted at her request.
Senator Cowan: We did not know what the term "qualified auditor" meant. It seemed sensible to allow the Governor-in-Council to appoint an Auditor General with the usual consultations that are required. It is impossible to imagine that someone unqualified could be appointed after such consultations and discussions. It simply seemed to be a phrase with no precise meaning.
The Chairman: You have expressly removed the word "auditor."
Senator Day: It is not "accountant" we are removing. We are removing "auditor."
The Chairman: It is the Auditor General.
Senator Andreychuk: It seemed to me we had witnesses who told us about those people who carry capacities of auditing, a couple being chartered accountants and public accountants, but there is a new breed that may be surfacing: not forensic, that is different. You are still under summary convictions, I can tell.
I think putting in a qualified auditor would then put it back to the profession to define what qualified is. Then I do not think we have to go there.
I agree with the way it is, that qualified auditor as Auditor General stay there because I want that capacity of qualified rather than not being sure where we were —
Senator Cowan: Perhaps you could tell me what that means.
Senator Andreychuk: The professions we recognize in Canada will be able to tell us what a qualified auditor should be.
Senator Day: The Auditor General said that is an undefined term. We had the professional associations in, and they said it is an undefined term.
We are amending section 3 under the Auditor General Act. If you look at section 49 on page 95, you will see:
The Governor in Council shall, by commission under the Great Seal appoint a Commissioner of Official Languages.
We were trying to use the same drafting approach. Following my honourable colleague, we should state that a qualified commissioner should be appointed.
The Chairman: You made your point.
Senator Cowan: If you look at clause 116 on page 97 where we deal with parliamentary budget officers, it simply says, "The Governor-in-Council shall, by commission under the Great Seal...."
The Chairman: This is called gilding the lily. We have the point.
Senator Cowan: Now I have your support, Mr. Chair. I will not ask anymore.
The Chairman: I would not say that.
Senator Cowan: We know how you will vote.
The Chairman: In amendment to the motion that clause 10 carry, Senator Cowan moves – shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 110, as amended, carry?
Some Hon. Senators: On division.
Some Hon. Senators: Agreed.
The Chairman: Clause 110 shall carry as amended, on division.
The Chairman: Shall clause 111 carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 112 carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 113 carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 114 carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 115 carry?
Some Hon. Senators: Agreed.
The Chairman: Now we are at clause 116.
Senator Day: Thank you. We are starting into a new subject matter here with the parliamentary budget officer, and we have run out of amendments. We have some here, but they are not complete. We will complete them overnight and provide them as soon as possible to the clerk for distribution to everyone, which will make things flow more quickly tomorrow.
I notice the government has an amendment or a couple of them for this clause, but it would be convenient because we may well have some for this section as well. We do not have them ready to present.
The Chairman: Let us complete the government's amendments on clause 116, then.
Senator Day: We cannot vote on it.
Senator Andreychuk: We can vote on the amendment.
Senator Day: We can vote on the amendment but not on the section.
The Chairman: That is fine. Let us do as much as possible, otherwise tomorrow will be a big day.
Senator Day: We are doing well, Mr. Chairman.
Senator Andreychuk: I move
That Bill C-2, in Clause 116, be amended by:
(a) replacing line 3 on page 98 with the following:
"that committee into the"
(b) replacing lines 26 to 32 on page 98 with the following:
"those estimates; and
(d) when requested to do so by a member of"
Senator Day: We support that.
Senator Andreychuk: Thank you.
The Chairman: Honourable senators, an amendment to the motion that clause 116 carry, the Honourable Senator Andreychuk moves — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Carried unanimously.
Senator Andreychuk: Those were two I had together.
The Chairman: Senator Day, do you have any amendments on anything else that we can complete now?
Senator Day: It is ten o'clock, but we should allow our staff to go back and work on the further amendments so that we can go ahead tomorrow. We will be much more efficient if we proceed in that manner.
I am of the view that our amendments will be many fewer in the second half of Bill C-2. I propose that we adjourn at this stage to reconvene tomorrow at twelve o'clock.
The Chairman: The agreement of the leadership is that we adjourn until ten o'clock, and the notice has gone out until ten o'clock tomorrow morning. What is the wish of honourable senators?
Senator Day: We need the time to get ready to work efficiently here. We do not have our amendments prepared for the latter part of this. We finished evidence yesterday.
Mr. Chairman, we ask to reconvene at twelve o'clock. We will not break for lunch. We can eat beforehand and go right through until a later break.
Senator Stratton: I was simply going to say, if you start later you end later. You are in agreement with that?
Senator Day: We will finish tomorrow.
The Chairman: One of my concerns is the staff who must prepare the report and have it ready to be tabled on October 26. If they do not finish until ten o'clock, they would literally have to work all night to have a report ready to be tabled in both official languages.
Senator Day: We will work all night tonight. You look after your staff, and I will look after mine.
The Chairman: Can we compromise? Can we start at eleven o'clock tomorrow morning?
Senator Day: Let us start at two o'clock.
The Chairman: You said twelve o'clock, so I compromised and said 11 o'clock.
Senator Day: Mr. Chairman, we have canvassed all our staff. They have asked us to start at two o'clock. I am compromising by suggesting we start at twelve o'clock without lunch.
I am not asking this lightly. I suggest we could be ready to go hopefully with all our amendments if you give us the time to prepare them.
Senator Andreychuk: I have been on this committee for a long time, and I must say that I had hoped after we finished debate on Bill C-2 that we would have a meeting to discuss how we should operate.
For almost 10 years on this committee, I was asked at times to be prepared to vote on a bill right after the witnesses spoke to it. I think it was when Senator Milne came in that she allowed an overnight reflection, and we had to be ready with any and all amendments.
I find it rather curious that we have a totally different pace and organization now that I am sitting on the government side. For 10 years sitting in the opposition, I wondered why the rules changed when you are the majority. Those were the rules that were instituted and that we had to live by. You were the majority then and are still the majority now.
I yield to what you are doing, but I find it curious that on acts where I felt there were substantive amendments that were necessary and time to draft them, we were told we had to go the next morning.
As I say, I find this unusual. I hope it will not be the pace and it changes from here on in.
Senator Day: I hope we will never see a piece of legislation like this again, frankly.
Senator Andreychuk: I can point out pieces that were equally as complex, and we were not yielded. The Public Safety Act changed more pieces of legislation.
Senator Day: No, it did not.
Senator Andreychuk: I wanted to make that comment. I will yield to whatever the will of the group is.
Senator Cowan: I suspect my colleagues on the government side have significantly more resources available to them than we have had to accomplish this, and we are doing the best we can. I agree with Senator Day.
Senator Day: I am hopeful we will not need to put this to a motion but will have a consensus and agreement. I am in your hands, Mr. Chairman.
The Chairman: We know how votes go in this committee. If you request 12 o'clock, honourable senators, the wish of Senator Day and the rest is that this meeting adjourn until twelve o'clock tomorrow. The meeting is now adjourned until twelve o'clock tomorrow.
Senator Day: Thank you for your understanding and cooperation.
The committee adjourned.