Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3 - Evidence for June 27, 2006
OTTAWA, Tuesday, June 27, 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 7:03 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I would like to call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order.
We are meeting today to begin our study of Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability. The bill is more commonly known as the federal accountability bill.
As senators, our witness and members of the public both here in the room and across Canada on television know, this bill reflects a central portion of the new government's agenda and is one of the most significant pieces of legislation brought before Parliament in recent years. I know that the committee will give the bill the extensive, careful and detailed study that it deserves.
[Translation]
To begin this process, this evening we welcome the Honourable John Baird, President of the Treasury Board and Member for Ottawa West—Nepean. He is accompanied by representatives of the Treasury Board of Canada Secretariat.
Since he assumed office in February 2006, as President of the Treasury Board, Mr. Baird has been in charge of this important bill.
[English]
Before being elected to the House of Commons in 2006 for the riding of Ottawa West—Nepean, Mr. Baird was a member of the Legislative Assembly of Ontario from 1995 to 2005. Mr. Baird has served as Minister for the Ministry of Community and Social Services and Government House Leader. He also served as parliamentary assistant to a number of ministers including the Ministry of Labour, of the Management Board and Finance. In opposition he served as critic of finance, culture and health, and was Deputy House Leader.
[Translation]
Mr. Minister, the committee wishes to thank your for attending. You now have the floor. Later we will go on to a question and answer period, which will be very useful.
[English]
Senator Joyal: Mr. Chairman, I would like to raise a housekeeping issue. We have to replace the deputy chair of the committee, and I wonder if we should do that immediately.
The Chairman: Yes.
Senator Joyal: Honourable senators, I propose that the Honourable Senator Joseph Day replace the Honourable Senator Sharon Carstairs as acting deputy chair of the committee, empowered to act in the absence of the Honourable Senator Lorna Milne.
The Chairman: The motion is seconded by Senator Stratton.
Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried
The floor is yours, Mr. Baird.
[Translation]
Hon. John Baird, P.C., M.P., President of the Treasury Board: Thank you, Mr. Chairman. It is of course a great pleasure for me to be with you this evening.
[English]
Honourable senators, I am pleased to be here to present the federal accountability act and to provide an overview of the key measures that it contains. I gave a speech in Toronto this morning to the Public Affairs Association of Canada and was asked for an update as to where the bill sat. I said I was pleased to report that it was already in committee in the Senate. The Senate was working quickly; they were even sitting in the evening to begin its consideration. I want to thank you for beginning your consideration of the bill and for sitting after hours. It is much appreciated and acknowledged.
When the Prime Minister asked me to take on the work of developing the federal accountability act for Canada's new government, I knew that the work would be stimulating, yet demanding. Many people have worked relentlessly at every stage of the development and review of this bill, from policy development and legal drafting to the bill's introduction in the House of Commons, consideration of the bill at committee, to the report stage and third reading. Clearly a lot of effort has gone into bringing this important piece of legislation to honourable senators.
[Translation]
Over the past few months, the federal accountability bill has been examined with a microscope by my colleagues in the House, by a team of government lawyers, notably legal and constitutional specialists, by practising experts, by parliamentary officials and outside stakeholders. Canadians have also followed the progress of our work with a great deal of interest.
[English]
All of us have worked tremendously hard across party lines to make the federal accountability act one of the most important pieces of legislation that Parliament has ever presented to Canadians. We strongly believe that the act meets their expectations. It is one that builds on transparency, openness and accountability; one that builds trust in government; one that makes government more effective, efficient and, I strongly believe, more relevant; and one that, I believe, will help make government work better for the people of Canada.
[Translation]
On June 20, the House of Commons referred the federal accountability bill to the Senate for further study. The work your committee is about to undertake is a very important aspect of our democratic process. I am sure that it will lend even greater strength to this legislation. I can assure you that my colleagues, representatives of the government and I will remain at your disposal to provide you with information and answer any questions you may have throughout your deliberations.
[English]
I would like to acknowledge the work done by parliamentarians to this point, especially my colleagues in the House of Commons who served on the legislative committee that studied Bill C-2. Members from all parties worked tremendously hard to get the bill passed in a timely manner, not least of which the committee chair and my parliamentary secretary, as well as the four other government members of the committee.
The Liberal member for Vancouver Quadra was very thoughtful and brought a wealth of experience to the committee's deliberations. I was familiar with his background, but the depth of experience that Mr. Owen brought to the table was remarkable and very much aided the committee's deliberations.
Bloc Québécois members provided valuable input and New Democratic members were clearly dedicated to strengthening accountability in government and committed to delivering a tangible product for the Senate's review before the House of Commons' summer recess.
I want to thank members from all parties for all of their hard work in this regard.
This Senate committee has the mandate to examine legislation and matters related to legal and constitutional matters, and it is my pleasure to introduce the federal accountability act for your review.
This act is composed of five parts. Part I discusses conflicts of interest, election financing, lobbying activities and the activities of ministers' staffs. Part II is entitled "Compliance Measures" and is about better support of parliament and its work. Part III is on post-employment and introduces new rules for former public office-holders. Part IV discusses internal reforms in the public sector to strengthen oversight and accountability. Finally, part V is on how this act will reform procurement and contracting. Let me give you a few examples of how this bill will help us all be more accountable to Canadians.
[Translation]
Part 1 deals with important political reforms to ensure that elected representatives and public office holders make decisions in the interest of the Canadian population.
This part enacts the Conflict of Interest Act and establishes a framework of post-employment rules for elected representatives and their staff. It also creates a mechanism for processing complaints, and an investigation and penalty regime for non-compliance with the rules. The Parliament of Canada Act will be amended to provide for the appointment and office of the Conflict of Interest and Ethics Commissioner.
[English]
It will change the Public Service Employment Act to ensure employees in ministers' offices are treated in an equivalent manner to public servants by banning queue jumping from ministers' offices to the public service.
It will also amend the Canada Elections Act in a way that will safeguard the accountability of our parliamentary process, increase transparency and, most importantly, build trust in Parliament among Canadians.
In particular, the federal accountability act will reduce individual political contributions at the local and national levels to $1,000 a year, ban contributions by corporations, trade unions and associations, and limit cash donations to $20.
Part I of the act also enhances the Lobbyists Registration Act by prohibiting certain public office-holders from lobbying for a period of five years after leaving office, broadening the scope of the investigation by the commissioner and extending to 10 years the period during which contraventions may be investigated.
The bill also bans secret donations to political candidates and reforms the financing of political parties because we believe that money should not have the ear of government, the people of Canada should. In a nutshell, part I of the act will significantly reduce the influence of money in politics.
[Translation]
The measures provided in Part II of the bill are designed to support Parliament in the performance of its mandate, which is to keep government accountable by harmonizing the appointment and removal provisions relating to certain officers. For example, by amending the Parliament of Canada Act so as to put in place a parliamentary budget officer, the bill will ensure that parliamentarians and parliamentary committees have access to independent and objective sources concerning economic and financial matters.
[English]
The parliamentary budget officer will work with both the House of Commons and the Senate to provide parliamentarians with a clear picture of the estimates of the government, the financial context in which our country evolves, and estimate the real cost of initiatives in Parliament, including some bills presented to this chamber for Royal Assent. This is a very important part of the bill because it will provide parliamentarians with the important information they need to determine the impacts of proposed legislation.
Part III of the bill is about making government more open and transparent, ensuring the independence of the director of public prosecutions and protecting those in the public service who report wrongdoing. This bill enacts the director of public prosecutions act by creating the office of public prosecutions. The act ensures that this office has the required independence to pursue prosecutions that fall under federal law.
The bill also proposes to expand the coverage of the Access to Information Act to 17 new organizations, including seven agencies of Parliament, Crown corporations and their wholly owned subsidiaries and four foundations. By expanding the coverage of the Access to Information Act, the operations of government will become even more transparent and open.
Part III of the federal accountability act amends the Parliament of Canada Act to increase transparency by requiring members of the House of Commons to disclose all trusts to the conflict of interests and ethics commissioner. Members will be precluded from using trust funds to fund political activity and will have to wind trusts up or have them managed in a manner specified by the commissioner.
[Translation]
It will amend the Library and Archives of Canada Act in order to prohibit solely oral reports concerning public opinion research contracts and will oblige departments to issue reports on the results of research and make them available to the public within six months of gathering the data.
Finally, Part III will make a number of changes to the Public Servants Disclosure Protection Act, notably by setting up the Public Servants Disclosure Protection Tribunal in order to protect whistleblowers, Canadians and public servants.
[English]
Once this legislation is passed, Canadians will have the world's strongest regime for protecting those who expose wrongdoing, including a strong legislative framework to protect whistle-blowers — an independent tribunal in order to order remedies for reprisals.
Part IV of the act focuses on public sector reform by enhancing administrative oversight and accountability. The act amends the Financial Administration Act to clarify the authority of the Treasury Board on matters related to internal audit. It will also require a review of all grants and contribution programs every five years to ensure that they are relevant, effective and aligned with the expectations of Canadians.
[Translation]
Since internal audit functions will make for clearer responsibilities, the bill requires deputy heads to ensure an appropriate internal audit capacity and set up departmental audit committees. It also requires that Crown corporations create audit committees composed of members not involved in their internal operations.
[English]
Finally, Part V of the bill is about reforming procurement and contracting. The amendment of the Auditor General Act will expand her mandate and give the Auditor General increased authority to audit individuals and organizations that receive federal funding. The bill also will enshrine in the Financial Administration Act the principles of a fair, open and transparent bidding process and will establish the position of a procurement auditor to review procurement practices across government and provide an alternative dispute resolution mechanism for contractors.
[Translation]
The Government of Canada is one of the largest purchasers of goods and services in the country. Its procurement practices must be free of political interference and fairly enforced. All businesses, regardless of their size or location, should be able to exercise their influence in securing government contracts.
Mr. Chairman, this presentation aims to provide you with an overview of the principles underlying the federal accountability act and the measures it proposes to increase government transparency and accountability.
[English]
We believe that these measures will go a long way to helping restore the trust of Canadians in their government. This act is about re-establishing accountability and ethical behaviour at every level and about building a future in which Canadians can be further informed about government operations. It is about ensuring that Parliament, both the House of Commons and the Senate, has better information about the operations of government and the context in which they evolve, thus providing them with the tools that parliamentarians and ultimately Canadians need to better scrutinize and assess the results being achieved with taxpayers' dollars.
The federal accountability act before you today is even stronger than the one I presented in the House of Commons on April 11 thanks to the hard work of the House of Commons' legislative committee on Bill C-2. I strongly believe that Canadians expect to see all parliamentarians working together to ensure this important piece of legislation receives Royal Assent and becomes law.
I am confident that this committee will put the same energy and effort into making this bill one that all parliamentarians will be proud to present to Canadians. In closing, I want to thank all the honourable senators on this committee for the work they are undertaking on the federal accountability act. It is a serious and important task that lies ahead of you. My cabinet colleagues and I appreciate the work you will undertake on behalf of the people of Canada.
Mr. Chairman and honourable senators, I will be happy to respond to any questions, concerns, issues and comments that you may have.
Senator Day: Thank you for being here, minister. I will start by saying that the Senate often sits in the evening. Several of our committees sit in the evening on a regular basis. Although you were attempting to compliment us, I thought we should tell you that. You can go back and tell your colleagues that we do sit in the evening on a regular basis.
Mr. Baird: I have appeared before Senate committees on two occasions, one of which was in the evening, so I will report that back to Canadians.
Senator Day: We have another peculiar rule in that our committees do not normally sit when the Senate chamber is sitting, but because this bill is considered so important, we have special dispensation to sit while the house may be sitting. That gives you another indication of the great importance we attach to this proposed legislation.
Mr. Baird: I thank all senators.
Senator Day: I would like to focus on the various agents that are being created in this bill, and there are quite a few on the list. Do you distinguish between an officer of Parliament and an agent of Parliament?
Mr. Baird: There is a legal distinction, and I would look to the lawyers for an answer to that question.
Joe Wild, Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice Canada: An agent of Parliament is typically someone who is appointed by the Governor-in-Council, although there is involvement by the House and the Senate in that appointment, and who directly reports to the House and the Senate by tabling reports through the respective Speakers rather than through a minister. The typical list of agents of Parliament would include the Auditor General, the Information Commissioner, the Commissioner of Official Languages and the Privacy Commissioner. The additional agent that would be created by Bill C-2 is the commissioner of lobbying. Another one is actually created by Bill C-11, and that is the public sector integrity commissioner, which is the whistle-blowing commissioner.
An officer of Parliament in our parlance is different and is actually part of the institution of Parliament, which includes the librarian of the Library of Parliament, a parliamentary budget officer, as proposed in Bill C-2, and the conflict of interest and ethics commissioner. They would be officers of Parliament. There is a distinct method of appointment for those officers. The machinery of how they are located and resourced is distinct from that of an agent of Parliament, where their resources are still determined, by and large, in the same way as a department is. They are part of the executive for that aspect of their function.
Senator Day: Would the agent of Parliament normally have his or her salary determined in a different manner than the other individuals that you mentioned?
Mr. Wild: For the officers of Parliament it depends which house they are aligned with. The Board of Internal Economy, for example, determines the budget and the amount to be paid to the Library of Parliament for the parliamentary budget officer. We are in the middle of a pilot project with the agents of Parliament where there is more involvement from parliamentary committees in the budgetary process. Typically, their funding occurs in the same way as for any other department in that it is secured through appropriations and estimates that are done at the executive level as opposed to directly by the Board of Internal Economy.
Senator Day: The funding goes to the issue of independence and the importance of those agents being able to do the job they are expected to do — help parliamentarians conduct an overview of the executive. Mr. Wild, you had an opportunity to brief us earlier on the majority of these appointments. We read in the bill that of the agents that would be created, the majority seem to be not accountable to Parliament but rather to a minister, and a minister in turn reports to Parliament.
Mr. Wild: For an agent of Parliament, the reporting is directly to Parliament. The example is one agent of Parliament that will be created by Bill C-2 — the commissioner of lobbying. Other positions are created in Bill C-2 and an example is the director of public prosecutions, which is not an agent of Parliament but rather reports through the Attorney General. The actual selection process of the director of public prosecutions is distinct, given amendments that occurred during the deliberations of the House of Commons committee studying the bill in that the committee of the House of Commons approves the selection of the director of prosecutions. However, the reporting function is still through the Attorney General.
The other example would be the procurement auditor in Public Works and Government Services Canada. The reporting function is through the Minister of Public Works because the procurement auditor is not an agent of Parliament. It is independent, in a sense, in that it reports directly to the minister as opposed to the deputy minister. There are requirements as to what occurs once those reports are provided to the minister.
The officer is different. For the conflict of interest and ethics commissioner as an officer of Parliament, no reporting relationship is linked to a minister in the same sense. With respect to the code of conduct that applies to members of Parliament in the House of Commons, the report is directly to the appropriate committee of the House of Commons. With respect to senators and the Senate's code of conduct, the report is to the appropriate committee in the Senate. With respect to public office-holders and the Conflict of Interest Act, the report is to the Prime Minister.
Again, in our parlance only one agent of Parliament is being created under Bill C-2 — the commissioner of lobbying, which is a transformation of the existing Registrar of Lobbyists position. There are two additional officers of Parliament, if you will, in the conflict of interest and ethics commissioner, the parliamentary budget officer. Then there are other parts of the executive, such as the procurement auditor, being created under Bill C-2.
Mr. Baird: Under the previous government in this process, I was impressed with the pilot project for agents and officers of Parliament to have their spending reviewed by an all-party blue ribbon committee.
The Chairman: That came before the committee that Senator Day and I sat on last year, the National Finance Committee.
Mr. Baird: I was impressed with the idea, although I do not know whose idea it was. In our Federal Accountability Action Plan, the new government has committed to working with the other parties to continue that process because it is a good one. It could be argued and one could make a fairly good case that it is a bit awkward for the Auditor General to go cap in hand to a cabinet committee or the Treasury Board to ask for funding. It could be argued that there is a fundamental conflict in that regard. A number of folks raised this issue with me, and I was happy to include it in our action plan so that Parliament could have an opportunity to review it after two years.
Senator Cools: I would take issue with much of Mr. Wild's definitions, but I will leave that for another day. I want to ask about the distinction you make between agents and officers "in our parlance." I do not know who "our" refers to and I am not sure that "Parliament's parlance" would agree with you on some of those issues. I am always a little concerned when departmental people talk about Parliament and things that concern Parliament. There is an "our" and a "they." It always bothers me a bit.
How can we have an officer or agent of Parliament that does not answer to you? I have done a fair amount of research on the origin of the term "officer of Parliament" and it is very narrow and questionable. There has been much debate in this committee over the years about this question. Could you tell me again what an officer of Parliament is? I am clear on what an officer of the House is. You can say "parliamentary," but Parliament is always three independent parts, acting together on certain occasions, but it takes the independent agreement of each. When we talked about officers of Parliament, I was always under the impression that when it comes to Parliament being joined it was only really joined by Her Majesty, the Queen. In other words, there can be an order of the House of Commons or an order of the Senate, but there is not an order of Parliament. Departmental people do this all the time when they say, "This was tabled in Parliament today," or "Parliament adjourned for the summer," when they mean the House of Commons.
Parliament is three, separate, independent entities: the Senate, the House and Her Majesty. I am still not clear as to how one can produce a creature and say this is an agent of Parliament or this is an officer of Parliament, because it would be the first time in a master-servant relationship where the servant almost has greater powers than the master. There is a body of thought, as I am sure you know, Mr. Wild, that has circulated through this committee since the 1980s. I am trying to remember the particular Auditor General. I think it was Kenneth Dye. There was a lot of study then on the history of those positions. I am piggybacking on Senator Day, but there is great confusion, Mr. Wild, on the meaning of these terms, and I am not sure that you are helping.
The Chairman: Could I ask you to tell this committee the difference between an officer of Parliament and an agent of Parliament, as you understand it from Bill C-2?
Senator Cools: Where is the definition found, in your view?
Mr. Wild: These are labels that the government uses to distinguish between those entities that are part of the executive arm of government but that have independence in the sense that they provide oversight of executive power and report directly to the House of Commons or Senate with respect to the use of that power, such as the Auditor General, the Commissioner of Official Languages and so on.
We distinguish that from the officers, if you will, in that that label is meant to connote those people who are actually part of the institutions that serve the House of Commons and the Senate, such as the Library of Parliament, the parliamentary budget officer, the conflict of interest and ethics commissioner, where they are not overseeing the use of executive authority; they are actually a resource directly responding to the needs of parliamentarians, be they members of the House or members of the Senate.
They are labels. They function for the purpose of allowing us to, in essence, distinguish the two camps, which is important for our purposes in ensuring that we understand, from the machinery perspective, where they fit in terms of the role of the executive vis-à-vis those entities.
Senator Cools: I understand. The problem is that the Senate is increasingly viewed by many in government as a department of government. Just a week ago, I had someone tell me that our leader, Senator LeBreton, was the minister of the Senate, to which I said, no, she is the Leader of the Government in the Senate. The Senate is not a department with a minister like Mr. Baird is President of the Treasury Board, his department being the Treasury Board.
Mr. Baird: It is a secretariat.
Senator Cools: The secretariat is your department. It is different in structure and so on. The Prime Minister's department is the Privy Council Office.
Mr. Baird: With respect to Mr. Wild's definitions of an agent of Parliament or an officer of Parliament, I am reminded of the first book I was handed when I took politics in university, which was written by William F. Connelly. The whole thesis of his book was a contestable concept.
Senator Cools: They are highly contestable and dubious concepts.
Mr. Baird: Agreed.
Senator Cools: What we are doing is expanding the confusion.
Senator Day: Senator Cools has taken the opportunity to point out the confusion that exists in this area. When we analyze this bill and the various new offices that have been created, we are interested in determining independence and whether this is a position that will assist parliamentarians — the House of Commons and the Senate — in overseeing the executive to ensure that it is functioning properly. That is where Mr. Gomery said we fell down. He said that parliamentarians did not do their job. Perhaps they did not have all the tools and resources.
The Auditor General helps. We like the idea that the Auditor General provides us with information that then makes it easier for us to do our job. The creation of the new budget officer is a movement in that direction, to help parliamentarians do their job.
Some of the others, although they may be couched in wording that suggests they are helping parliamentarians, sound more like they are just performing an executive function.
Mr. Baird: It is a fair comment when you talk about helping parliamentarians. Let us take the example of the proposed commissioner of lobbying. Today, the Registrar of Lobbyists notionally reports to me as President of the Treasury Board, whereas he used to report to the Minister of Industry. Some felt that there was a bit of a conflict between the Registrar of Lobbyists, in his role of registering lobbyists, and the Department of Industry, which is one of the most heavily lobbied departments.
One of our objectives was to strengthen the independence and, as well, the public perception of independence. I have chosen, in the five months that I have been with the Treasury Board, not to meet with the Registrar of Lobbyists. I am a government actor, but I am also a political actor, and I would not want there to be a perception that I would be interfering in his role.
I do not have that concern with the Auditor General. She reports, through the Speakers, to the Senate and the House. She is on pretty firm ground as being not an agent of the government.
The same can be said for the proposed public sector integrity commissioner. What we want to do among average public servants is to create a belief, an understanding, a value that this is not part of the executive arm of government. You will not complain about your boss in government and have one of the people who reports to your boss be the adjudicator. We are hoping that it will help strengthen and create some confidence that it genuinely is independent. Does that in and of itself necessarily serve Parliament directly? I think it is a fair point that it does not.
Senator Day: In his report, Mr. Justice Gomery stated:
Canadians should not forget that the vast majority of our public officials and politicians do their work honestly, diligently and effectively and emerge from this inquiry free of any blame.
I also have a quote from you, Mr. Baird, of April 11, when you said that the accountability act "is the toughest piece of anti-corruption legislation ever tabled in Canadian history." You did not use those words today, but you did use those words previously. Is that an example of political hyperbole, or do you actually believe that this is anti-corruption legislation?
Mr. Baird: I strongly believe that it is anti-corruption legislation.
Senator Day: Based on what?
Mr. Baird: I do not dispute the conclusions of Justice Gomery with respect to the comment you read. I think it is not unfair to say you agree with both of them.
Canadian members of Parliament — in your case the Upper House and in my case the Lower House — have the experience of interacting with Canadians and know about the low esteem that many Canadians have of their government, of politicians and of officials as a result of the number of criminal cases and the breadth of the criminal investigation that have gone on.
A poll by Leger Marketing appeared in the Ottawa Citizen some months ago, and it had politicians ranked the lowest of any profession, right below used car salesmen. I should say that public servants were in the middle of the pack, deemed more trustworthy by three times as many people.
The Chairman: Lawyers were down low as well.
Mr. Baird: There is a huge concern. When people start to lose trust in their government, historically we have seen that there is a revolution. In some respects, it is an accountability revolution. It is a fair point to say that an overwhelming number of public servants get up every day and do an outstanding job. An overwhelming number of senators get up every day and do great work. An overwhelming number of people in the House of Commons do the same. Having said that, when you see the public numbers that low, it should be a cause for great concern.
There was a study done looking at the public's view of the public service. We have work to do there to promote the good work that is done by members of the public service. In any number of these areas, we want to strengthen accountability, whether it is the parliamentary budget officer or perceptions of lobbyists.
I spoke at the Public Affairs Association of Canada this morning, which is an association of people who practise government relations. One of the members of the executive introduced me and explained that he had been a lawyer in his first career and is now a lobbyist. He was at a family wedding recently, and one of the people he met with while talking to his mother asked him what he did. He said, "I am a lobbyist." His mother, after the conversation, pulled him aside and said, "Ian, why don't you tell people you are a lawyer?"
We hope we can clean up all of the public perceptions. It is not just government officials or politicians but also those who interact with government.
Senator Day: Am I interpreting your comments correctly to mean that you are not saying this legislation flowed from Gomery and the Gomery report but rather is directed toward a perception that is out there, and you are not trying to say that what Gomery was investigating was the reason for this particular piece of legislation?
Mr. Baird: The sponsorship scandal, the HRDC scandal, the scandal involving the long gun registry and the concerns about the way lobbying is conducted and things that have built up over many generations — not exclusively under the previous government — are all products of that. The federal accountability act is a product of all of that.
Mr. Harper came forward with his federal accountability act on November 4, two or three days after the first report of Justice Gomery and long before his recommendations in his final report. It is safe to say that it was not something written in two or three days but something that was the product of looking at the extensive work Parliament did on political financing reform and on whistle-blowing. Those are things that came out of many of those issues.
Senator Day: It does not do us any good to perpetrate untruths. It does not do any good for any politician, of any colour or stripe to have untruths perpetrated. That is the point I am trying to make.
We talk about scandals. HRDC in the end turned out to be not the $1 billion boondoggle that was talked about but rather a very insignificant amount of money when you think about what that department was doing; however, we perpetrate an untruth by using a term like "scandal."
The same thing is happening with respect to sponsorship. Gomery had his findings but nobody listens to Gomery's findings any more. We keep talking about a scandal. I am suggesting to you that talking about "the toughest anti- corruption piece of legislation" does none of us around this table any good.
Mr. Baird: With respect, I disagree. The report of Justice Gomery assigned blame to a former Prime Minister.
Senator Day: No.
Senator Cools: He did not do that.
Mr. Baird: The former Prime Minister is in court to try to quash it.
Senator Day: That is not true.
Mr. Baird: We will agree to disagree.
Senator Robichaud: You cannot agree to disagree with something that is not true.
Mr. Baird: If you look at the substance of what came out of Gomery, the system failed. Money was stolen from taxpayers. A political party had to write a cheque for more than a million dollars to return money to taxpayers that made its way into that political party's pocket. That is an abomination, senator.
With respect to the people I work with every day in the House of Commons who are Liberal, I do not look across the aisle and see anyone responsible over there, but I do see a responsibility on behalf of Canada's new government, on behalf of Parliament and all of the parties to try to tackle head on some of the challenges and concerns that led to that.
Canadians look at what happened in the sponsorship program, and I think they would call it a scandal when we have to spend $30 million, with great respect, on a public inquiry. Then there are the number of people who have been sentenced to jail to date who pled guilty. The previous government undertook a huge number of lawsuits to try to recoup public funds. I call that corruption. I am not saying that there is criminal culpability, but in terms of accountability, as a minister, I believe I take responsibility for any decisions I make. If my deputy minister comes to me and says, "Minister, it is wrong for you to be involved in this area," and I overrule him and do involve myself in those things and problems develop later, then I have to take responsibility for that.
The Chairman: Thank you for that, minister.
Senator Ringuette: Mr. Minister, you just said, and I quote: I take responsibility for any actions that I take.
Mr. Baird: Decisions.
Senator Ringuette: I know that Treasury Board has the approval authority for procurement; is that not right?
Mr. Baird: No, we do procurement policy at Treasury Board.
Senator Ringuette: We were told this morning at a briefing that you have the approval authority.
Mr. Baird: We approve a small number of submissions. Percentage-wise, we approve a small number of submissions.
Senator Ringuette: Would you be approving the higher end stuff?
Mr. Baird: Yes.
Senator Ringuette: Would that include, for example, the four C-17s that you are buying without tendering?
Mr. Baird: We are not undertaking any large procurement in the Armed Forces without an open process allowing other people to bid.
Senator Ringuette: You are confirming here tonight that you will not be buying those C-17s without assuming due responsibility to have a tendering process on the purchase of these airlift planes? That is part of accountability.
Mr. Baird: I am confirming that when we go forward to purchase military equipment, there will be the opportunity for others to come forward before decisions are made and identify products that can fulfil the mandates. Those will be the same processes that were in place during the previous regime.
Senator Ringuette: I am asking you whether you have approved $3 billion worth of purchasing without tendering.
Mr. Baird: No.
Senator Ringuette: Your department has the approval authority?
Mr. Baird: For that size of project, yes.
Senator Ringuette: So there will be a tender process for this purchase.
Mr. Baird: I said that there will be an open process for the procurement of large military equipment. If people have alternatives, they will certainly have the public opportunity to come forward with those.
Senator Ringuette: I think they have.
Mr. Baird: Which of the alternatives have you identified?
Senator Ringuette: Maybe I can hand you my media file on the issue stating all the other possible alternatives that were not given due consideration.
Mr. Baird: If you would like to table it with the committee, I would be more than pleased to receive it.
Senator Ringuette: Absolutely. It is part of being accountable and responsible. I am saying that $3 billion worth of purchasing is a lot of taxpayers' money. As a senator, I believe in the principle of having more accountability. On the other hand, you cannot come here one day and say one thing and tomorrow do another. That is not accountable.
Mr. Baird: I am confirming, senator, that we will not.
I would like to respond to what you said. If my officials at the Treasury Board Secretariat tell me this is an area where as I as a political actor and head of the department should not be involved and in that capacity I am violating the processes that are established, and I say thank you for the advice and go ahead and do it anyway, then I am accountable.
When you have a junior person in one department dealing directly with the Prime Minister's Office and when the Clerk of the Privy Council puts something in writing addressed to the Prime Minister that says they are concerned, worried and bothered by this, the Prime Minister has every right to overrule it. At the end of the day, it is not criminal culpability; I think it is political responsibility.
The Chairman: Senator Ringuette said she had a file with contrary information in it and you asked that it be tabled. I will ask her to table it.
After you get the information, would you write a letter to the clerk so we could send that information to all members of the committee in order that they can hear your response?
Mr. Baird: Yes, I would be pleased to do that.
Senator Ringuette: While we are talking about tabling of documents, I would certainly like the minister here responsible for the tendering process to table the business and financial cases for the purchase of the four C-17 aircraft.
The Chairman: How does that relate to Bill C-2?
Senator Ringuette: We are talking about accountability.
The Chairman: We are studying Bill C-2 and that is why the minister is here.
Senator Ringuette: Mr. Chairman, we are talking about accountability. It is part of the process. You cannot look at accountability with only window-dressing.
Mr. Baird: I will look forward to receiving that alternative product that you said could compete.
Senator Ringuette: In the same way that I look forward to receiving your business case for the non-tendered purchase of the four C-17 aircraft.
The other question I have is with regard to political contributions. Last week two statements came from two different areas of the country. They do not seem to agree with what you are proposing.
One statement came from the Premier of New Brunswick, Mr. Lord, saying that at least for New Brunswick he sees political contributions in the amount of $3,000.
The other statement came from Quebec. It was from Superior Court Justice Jean Moisan who says personal donations in Quebec should increase from $3,000 to $5,000 and business donations should increase to $10,000 and $15,000.
When you submitted the figure of $1,000, had you done an analysis of current practice in the different provinces? How does it compare? I have done both. I have been a provincial politician and a federal politician involved in elections. It is one thing to get political donations in order to run in a small provincial riding, and it is a completely different issue in regard to running federally in a bigger riding. I am speaking from personal experience. Have you done any comparative studies to ensure that we are looking at a real amount of acceptable and required donations, bearing in mind that your proposal is not balanced with any kind of public funding as was the case in the previous bill three years ago?
Mr. Baird: We did not do a provincial comparison.
I, too, have provincial experience. In Ontario the ridings are the same federally and provincially. I contested three general elections, and the donation limit in Ontario is $1,000 from individuals. People seemed to get along fine.
Now, in Ontario we only get a 20 per cent rebate from the taxpayers. Federally we get 50 per cent, which makes it much more advantageous.
Senator Ringuette: Have you done any comparative studies?
Mr. Baird: As I answered at the beginning of my response, no.
I read in The New York Times this morning that the U.S. Supreme Court struck down a Vermont statute that established a $1,000 limit. I know in the United States they have a limit of $1,000 for presidential campaigns if you choose to opt into public financing. I think $1,000 is a reasonable amount.
We want to ensure that Canadians have the ear of government and not big money. That is an important part of earning back the trust and confidence of Canadians. There have been recent scandals. Over the last 20 to 30 years there has been a growing concern when all parties were in power federally and provincially in Canada. We are taking a major initiative to try to earn back the confidence of Canadians so they can have trust in their government. Ninety-nine per cent of Canadians contribute much less than $1,000.
I am only 37, but when I first got involved in politics there were no limits. You could donate whatever you wanted — $25,000 toward a political candidate. There was no limit on what you could spend in Ontario. One candidate during the 1985 provincial election spent a quarter of a million dollars. I do not think that is a good idea.
Senator Campbell: Mr. Minister, I welcome you here on behalf of British Columbia.
I hate the way we started off on this thing. We are going back to the big lie that politicians are going to jail or were convicted of something. It is a mixing of myth and fact and does not do any of us any good. It is like saying crime is on the increase in the country when clearly it is not.
I have two questions to ask. First, was any consideration given to third-party advertisement when you were going through this bill? Was there any consideration of that being seen as a contribution to one political party or another based on their views or their platform?
Mr. Baird: When we reduced the limit to $1,000, we significantly reduced the capacity for an organized interest to be involved.
With the limit being $5,400, which is what it is today, for an individual to contribute to a candidate, obviously the multiplier effect, if you have like-minded interests, is more significant, as we have seen in the recent Liberal leadership campaign.
Senator Campbell: I think that is another typical right-wing crappy low blow that you just delivered. Either you are here to work with us, or I am not, quite frankly, interested in talking to you. It has nothing to do with that.
Mr. Baird: Ms. Jennings —
Senator Campbell: You seem to have no difficulty in having other former politicians who have been tarred with the brush standing next to you, yet you want to continually start throwing crap around here. If that is what you want to do, then that is what we will do for you.
When I talk about third-party advertising, I am talking about people with an interest — for instance, right to life, pro-life, anti-abortion, pro abortion. These people could raise hundreds of thousands of dollars during an election and throw that in behind your campaign.
I am not talking about Larry Campbell buying a billboard for $4,400 that says, "John Baird does not know what he is doing." I am talking about hundreds of thousands of dollars that can be organized to go behind a campaign. Was there any consideration given to that?
Mr. Baird: I think established statutes are in place. They were brought in by the previous government to govern that.
Senator Campbell: As another example, I will mention the National Rifle Association. What has been established? What you are saying is that I cannot put together a whole bunch of people and raise money to support a cause. However, if I have an organization that supports a cause, they can spend whatever they want.
It is not only those organizations who support the Conservatives. It is those organizations who support any political party. I am not trying to be partisan about this.
Mr. Baird: There is already a statute in place to cover that.
Senator Campbell: How is that done? How does it fit in here? This is a contribution.
Mr. Baird: That is not touched. Mr. Chrétien's government brought in significant reform in this regard to limit the expenditures of interest groups when writs of election have been issued. We do not touch that in this bill. Whether the National Rifle Organization or a pro-life group wants to be involved with political parties, that is already covered by existing statute and legislation.
Senator Campbell: If I belong to an organization that is opposed to the gun registry, for instance, I can spend millions of dollars.
Mr. Baird: No, you cannot.
Senator Campbell: How will you stop me? If it is not part of your political campaign, how can you stop me? If I put an advertisement in the paper tomorrow saying that the National Rifle Association is against gun control and why, how can you stop me?
Mr. Baird: I encourage you to check the statutes. I think you will find that Mr. Chrétien brought in significant —
Senator Campbell: It is not "think." What do the statutes say? Tell me why that could not be covered.
Mr. Baird: Mr. Chrétien put in specific prohibitions and strict limits on public interest groups who want to be involved in political campaigns.
Senator Campbell: Mr. Wild, do you know anything about that?
Mr. Baird: If you want to ask Mr. Wild, go ahead, but if you check the statutes —
Senator Campbell: It is during the writ period.
Mr. Baird: Those are currently limited.
Senator Campbell: What about right now? There is no writ dropped currently.
Mr. Baird: I have never heard anyone suggest we should do that. If you want to propose that as an amendment, I would be happy to review it, but I have never heard anyone suggest that we limit freedom of speech —
Senator Campbell: I will send you some articles on that.
My next question —
Mr. Baird: There is no limit for political parties in that period, Senator.
Senator Campbell: My next question is this —
Mr. Baird: I would like to respond to the first comment.
Senator Campbell: The next question is this —
Mr. Baird: I would like to respond to the comment that you made — the attack that you made on me, senator. You talked about organized interests being involved in political campaigns. I was responding with reference to the effect of cumulative donations in that context, and I think the question about motivation —
Senator Campbell: No, you were talking about the big lie, as usual. You went back again to another issue.
Mr. Baird: Senator, I think it is unfortunate that you are choosing to question my motives. I do not question yours.
Senator Campbell: I am not questioning your motives at all.
Mr. Baird: The kind of language you are using is beneath the dignity of this place.
Senator Campbell: I am not questioning your motives at all. You are exactly what I expect.
I have a second question. I would like to know why, in your wisdom, you decided that the House and the Senate should be thrown together under one ethics commissioner when, as was already explained by Senator Cools, there are three distinct groups within that area. We have already gone through this twice in the Senate and now it is back here again. I do not understand it. It has always been argued. It is already there; it is a waste of time. Why are we back there again?
Mr. Baird: The people of Canada, through their elected representatives and the House of Commons, chose to accept the government's recommendation to combine the two positions. I believe that a single, consistent individual with quasi-judicial or judicial training, background or experience would help deal with the ethical conduct of parliamentarians in both Houses. You may choose to agree or disagree. I think that proposal has great merit and that the House of Commons thought it had great merit. Not a single member of the House of Commons cared enough to stand up and be recorded as opposing this bill. I suggest that if there was a concern they would have done that. Not a single member of the House of Commons wanted to go on record saying they oppose this bill.
Senator Campbell: You will not have that problem in the Senate. I want to thank you for coming. I hope that at some point your government starts making laws based on reality rather than on polls.
Senator Cools: I found the last few minutes disturbing. I hope that we do not have any more of that. I do not like that kind of thing.
I have a couple of questions. Minister, I want you to understand that there are, sitting around this table, some very good senators with a high degree of intellect and a fair amount of experience under their belts. In my view, no one here is trying to hurt you, although the exchange sounded somewhat bitter. I am trying to temper the record.
I want you to understand, minister, that some people here, myself included, have a fair amount of experience. I have done a lot of study on some of these issues, and it would be nice if the government would take heed of that.
Accountability is an interesting thing. You said that this bill is to clean up public perception. You did not say it was to clean up government departments. Your words were "to clean up public perception." You do not engage machinery of government and machinery of Parliament to clean up perception. You clean up laws and clean up the machinery of government, but not public perception.
So far, you have not established that a single proposal in this rather huge bill — and I am sympathetic to the conditions that created this bill — will actually do what you say it will do. You offer very little proof or evidence. However, you are high on perception and public polls. The polls should also show you that people are aware that they are being misled much of the time. The business of politics should not be like an advertising campaign. We are not selling deodorant or fragrance.
The Chairman: Please ask the minister a question in order that he can respond.
Senator Cools: I am talking to the minister and trying to be useful. You do not have to ask me to put a question. I can have a debate with the minister without asking a question, sir. Everything does not have to be in the form of a question: Will you or will you not? That format is for children. This whole system is becoming one for children. Eat your Pablum and go home; ask no questions; do not think — vote, but do not think.
In any event, minister, you have not yet shown that this bill will do what you say it will. I do not expect you to be a prophet and look into the future, but I would like something more concrete.
I will come to the more substantive part of my question and quote a professor who appeared before this committee some months ago of whom Senator Oliver thinks very highly. His name is Peter Aucoin. I want your reaction to something he said in a recent paper entitled Naming, Blaming and Shaming: Improving government accountability in light of Gomery. He is talking about the Conservative Party and says:
What is noteworthy here is that the capacity of Parliament to hold ministers and officials to account is considered almost exclusively in terms of Parliament's agents and not MPs themselves.
He continued:
One could almost say that MPs have agreed to "contract-out" the duty of Parliament to hold ministers and officials to account to their Parliamentary agents.
He used a harsher term. He said we are not delegating parliamentary duties but contracting out with someone else. It seems to me this point is the nub of the matter and this is why I do not understand. I have been in this place for some time and I have watched successive governments that will not allow the Houses of Parliament to function as a Parliament: to do what parliamentarians are supposed to do. There is a threat of being kicked out of caucus and, as you said a few moments ago, not one person in the House of Commons would stand up to object to certain things.
Minister, I have sat in caucuses and have heard prime ministers tell members that they will not sign their nomination papers if they do certain things. Therefore, the fact that no one has stood up does not do anything for me. The fact of the matter is that real accountability means that this system should function as a system and perform its proper constitutional purpose and its proper constitutional role. The major constitutional role is that these houses and their members are supposed to operate with a high measure of independence from each other.
This government and previous governments are not allowing that to happen. I say that, minister, with great sincerity, because I came to a great rupture with another party because they would not let the Houses, MPs and senators function. This problem is part of my concern. I will give an example, minister.
This bill is yours, this bill is important, but on the floor of the Senate over the past few days, our questions have not been answered. Is that accountability? We are passing a bill, you say, to improve public perception. However, on the floor of the Senate chamber, no one will answer any questions. I do not belong to the group that says, "Go to committee." Only half a dozen senators would be at committee.
Minister, this perspective is a bit rigid and sometimes sounds utterly ruthless. I do not mean to hurt you, because you are young and enthusiastic, and that is what we need. We need a lot of energy here.
Mr. Baird: Improving the public perception is definitely a goal of the Federal Accountability Act. It is not the exclusive goal, but one of them. I would not take that as one goal. If you could sum up all the measures combined in one goal, it is a culture change.
I will give the example of access to information. The Access to Information Act, which was passed by Mr. Trudeau and went into effect in the Mulroney years, is not successful for what information people request. It is successful because of the behaviour it changes knowing that you could be held publicly accountable through the release of information, whether the information is expenses, the cost of a project or a policy decision. All actors in government are now more mindful of that.
I know that my expenses as a minister of the Crown are publicly available. I drove to Quebec City by car because it was cheaper. I took the train back from Toronto where I gave a speech earlier today — not that I can always do that, because I cannot, but I know I will be held to account, so it changes behaviour.
The culture change is very much something we are attempting to do. We want to change the culture so that a public servant can come forward with a grievance and create a culture change among senior public servants that they had better be treated fairly. Knowing that someone can come forward when they see something — whether it is corruption, a waste of taxpayers' money or unethical behaviour — if they know that people can come forward and that the government will promote the value that people should come forward and it is the right thing to do, will change behaviour. Bad actors will not act as badly, or will think twice.
You spoke of contracting out the role of members of Parliament.
Senator Cools: Those are Peter Aucoin's words, not mine. I quoted him.
Mr. Baird: The parliamentary system is an evolving one. When the first Parliament sat in 1867, 1868, government played a considerably smaller role. We now have a budget of some $200 billion. The parliamentary budget officer is designed not so much as the academic you quoted, to contracted out, but, as Senator Day said, to better equip members of Parliament to hold the government accountable through Parliament, the public, the media and through involvement. That accountability is a good thing.
The goal is not narrow. I do not profess that this bill is the be-all and end-all, and that another bad thing will never happen. It is my opinion that from the view of the Prime Minister and, frankly, probably the view of most members of the House of Commons — I cannot speak for them, but I suspect it is their view — that it is not enough simply to change governments.
Canadians expect that government will be changed and the way we govern will be changed. That change is not just political actors, public service actors, lobbyist actors, or criminal and other prosecutions under federal law. Everyone who works in the governmental environment will be changed, and that is the big motive.
Senator Cools: Will you tell me about your constitutional basis for the clause 81(2) in the bill. The section of the bill is in respect of the appointment of the conflict of interest and ethics commissioner. The clause sets out qualifications, and yet these qualifications are not really qualifications, per se. They are what one would perhaps term "the government's prerequisites."
I understand the motivation and the good intentions that are actuating you. The clause causing me concern is clause 81(2)(a).
(2) In order to be appointed under subsection (1), a person must be
(a) a former judge of a superior court of Canada or of any other court whose members are appointed under an Act of the legislature of a province.
Minister, that clause is so retrogressive. All parliaments, especially in Canada, had to work hard to remove the judges from politics. It was only recently — possibly 1935, or thereabouts — that ministers, when they were appointed, did not have to resign their seats and run again in an election. They had to go back to their constituencies for approval to become ministers.
That was all part of the phenomenon of the Houses of Parliament ousting Crown servants from their midst. It seems to me that you are turning history back 130 years by bringing judges into our midst. You could appoint anyone you want. You do not have to specify it in a statute.
That bothers me. I do not care if you go and find an exceptional former judge. Some judges would have a hard time functioning in this place, I am sure. However, I do not understand why that requirement has to be put into a statute.
I raised this same objection when, some years ago, on the question of MPs and senators' salaries. The Prime Minister's salary was tied to the Chief Justices, if you recall. I raised the same objection then, because this proposal is repugnant to Parliament because of the historical position that these institutions and personnel are supposed to have in relationship to each other.
It is a deep parliamentary question. There is no need for you to answer today. You can think about your answer. I will be happy to give you more information. I understand where you stand on this, Mr. Baird, and I know that you mean well. That is more motivation to write the legislation well.
Perhaps you can think about it, because the act is so wrong and so bad.
Mr. Baird: I find it interesting you mentioned that section because I personally advocated for that section.
Senator Cools: It is on page 44, at the bottom.
Senator Day: It is clause 28 of the bill itself.
Mr. Baird: I have it.
Senator Cools: Clause 28 of the bill itself, and it will become clause 81 of the Parliament of Canada Act.
Mr. Baird: I will give you the rationale for my pushing to have this clause put in. In Ontario, we had an ethics regime brought in by the NDP government in 1993-94 but only proclaimed in 1995. It had genuine all-party support. Mr. Rae came into power in 1990 and wanted to raise the standards of ethical conduct. He came forward with a conflict of interest code that he authored himself and that he wanted to hold his own government to account for. He found himself in trouble, because there was no end of problems. There were more ministerial resignations in the Rae years, but not for huge lapses in judgment. The code had the most arcane points. Actually, people resigned for the most obscure reasons. Therefore, all parties came forward with the legislation. It enshrined in law a conflict of interest code.
It is difficult to legislate ethics, but you can legislate conflict of interest, which is what we have done in the bill. When someone stands in judgment of the first minister, the cabinet and members, it is a pretty awesome responsibility. Members can solicit an opinion, both federally and provincially. We can say, "Listen, here is the situation; how should I act? Is it appropriate? Is it fair? Here is how I would like to deal with it." You want someone with training, background, experience, knowledge and expertise in that area, and I think that would strengthen the system.
Senator Cools: You could have said "with legal training," if necessary, which would cover a lot. You are very specific here.
Mr. Baird: It would cover a lot but not as much as we wanted to cover.
Senator Cools: Why would you want to put a judge in charge of members?
Mr. Baird: It would not be a judge but a former judge. I gave a speech this morning, and in the audience was Mr. Justice Coulter Osborne, who is the individual who holds this office in Ontario, with a significant amount of respect.
In my experience, I filed an ethics complaint against a minister when I was an opposition member, and it was thrown out. The minister resigned six months later over exactly the same issue, but it was thrown out. I was asked, "How do you respond to this?" I said, "I obviously disagree with it." However, at the end of the day, he is the one that the Ontario government asked to render an opinion. I disagreed with his decision, respectfully, but I accepted it. The issue died, and people moved on.
I hope that we have someone who has the experience that I think we have in the Canadian judiciary. The Canadian judiciary is well respected abroad. It is by and large well respected in this country.
You made a statement I found interesting. You talked about how Parliament has worked hard to remove judges from politics.
Senator Cools: From the chambers as well.
Mr. Baird: In some respects, certainly in my lifetime, Parliament has done exactly the opposite.
Senator Cools: The governments have done that. The governments brought them in, not Parliament. Governments have done that.
Mr. Baird: With the Charter, we have invited the courts to consider political issues, and I do not think that is necessarily a bad thing.
Senator Cools: Governments all move on the initiative of the attorneys general. It is governments, not Parliaments.
Mr. Baird: It was passed by both Houses of Parliament here and by the provincial house in Ontario. I am a child of the Charter.
Senator Cools: We have many tribunals, for example, the National Parole Board, where they deal with judicial tasks, and their qualifications do not include that there be former judges of any court. It would be well served.
Mr. Baird: I do not want to equate adjudicating criminals getting out of jail with elected officials and parliamentarians.
Senator Cools: Parole is remission and clemency. It is different.
Senator Stratton: May I raise a point of order? If we continue in this fashion, we will be here for four hours. I raise the point that if you go on like this, you will be into four hours, allowing 20 to 25 minutes per questioner. I make the point.
The Chairman: I would like to move on to Senator Joyal.
[Translation]
Senator Joyal: Mr. Minister, I would like to come back to the matter of combining the positions of the Senate Ethics Officer and the Ethics Commissioner of the House of Commons.
As you know, both Houses have had the opportunity in the past year to try out a new system, and our House of course has been informed of the problems that the other place has had with its Ethics Commissioner. But as far as the Senate was concerned, the system worked in a relatively acceptable way.
In response to the question from one of my colleagues, to explain the combination of the two positions in the bill, you explained that Canadians wanted it, that they had voted for it. I have read the Conservative Party's program and there are actually some proposals to consolidate the status of the Ethics Commissioner of the House of Commons, but nowhere in the Conservative Party's program is there a suggestion that the two positions be combined.
How is it that, between the end of the election campaign and the six weeks spent drafting this bill, the government changed its mind and decided to flout the principles of the independence of the two Houses of Parliament when it comes to enforcing discipline or enforcing ethics within either of the two Houses?
Mr. Baird: If I gave you that impression, it was not intentional. You are right, of course, about the fact that not everything is contained in our Action plan or our bill, but our election campaign in this area only accounted for four pages. We made a lot of decisions before introducing this bill in the House of Commons and the Senate.
[English]
From personal experience, I can tell you we had a difficult job recruiting someone to take on the role in Ontario. We were looking for someone with some specialized expertise. It was quite difficult. Important things are often difficult to accomplish. If we could find someone that had the skill set, the expertise and the confidence of both houses — the Senate and the House of Commons — we would be well served to establish a centre of expertise on these issues.
For example, two members of the cabinet are in the Senate today. They are in the executive branch. To have two ethics commissioners ruling one member seemed to be rather curious. You would have one ethics regime for some members of the executive branch, and another ethics commissioner for others. In terms of raising the bar on the person's qualifications, given the fact that they do not deal exclusively with the legislative branch but also with the executive branch, both for ministers and parliamentary secretaries, it seemed to make good sense. If you had a skilled individual who had the confidence of both Houses, you would be wise to establish that centre of expertise to ensure consistency as well.
Senator Joyal: How do you manage with the principles of parliamentary privilege that have been restated by the Canadian courts time and time again that each House should have the responsibility for policing its own members and that the Ethics Commissioner, an executive appointee, would not become an arm of the government in the independence principle of the Senate?
Mr. Baird: We do not want the Ethics Commissioner in any way, shape or form to be seen as an arm of the government. The office would lose its utility and the confidence not just of members but also of the public. We want an individual who is appointed and reports to Parliament, not to the executive branch. That point is terribly important.
We appointed Mr. Justice Coulter Osborne provincially. Finding someone to take on the job was a difficult task. As I said about things that are difficult, the task is important, and important things are often difficult to do. We could not get all three parties to agree. The government and official opposition, 91 per cent of the members of the house, agreed, and sometimes that happens.
However, there is a process for the consistent appointment of these officers. It has to be approved by both the House of Commons and the Senate, much as the Auditor General serves both Houses, and much as the Information Commissioner, the Privacy Commissioner and the Commissioner of Official Languages can support the work of committees in both Houses and members in both Houses. In my view, this is not different. I can appreciate there would be an honest difference of opinion.
Senator Joyal: As you will understand, there is something fundamentally different between all the officers you have mentioned by name, that is, the Auditor General, the Commissioner of Official Languages, the Chief Electoral Officer, the Privacy Commissioner and Information Commissioner, et cetera, and the four other officers that the bill establishes. The Senate Ethics Officer and the Ethics Commissioner of the House of Commons both exercise the privileges of both Houses. They have the responsibility of maintaining the privileges of individual senators, so this is a specific role in the machinery of Parliament.
Inasmuch as you put that into legislation, you invite the courts to intervene into parliamentary activities, which is where the greatest question is about merging the two and legislating the conflict of interest code, as you have proposed for some of the public office holders. That is an important element in parliamentary operation.
Mr. Baird: Judicial involvement and oversight is not something new. I read something in the paper this morning that talked about one member of the House of Commons actually not being a member of the House of Commons for a few hours because he had to apply for a legal extension for being 15 minutes late on making an election filing.
In the past, I can think of one Member of Parliament who took his seat, even cast a vote in the House of Commons and was removed by a judge and replaced by another individual. That is not new.
Senator Joyal: We cannot, on the one hand, complain that the judges and the tribunals are too involved in government and parliamentary operations and, at the same time, create legislation whereby we open the door to more intervention by judges into the proceedings of Parliament. That is a fundamental constitutional issue, apart from the arguments that you have given us that it is difficult to recruit an able candidate to fill the position.
Parliamentary principles are at stake in this proposal, which are as important for the House of Commons as they are for the Senate. I have difficulty understanding the reasoning of the government with regard to those clauses of the bill. As I said, we have a system that was put in place in the last year, and no one has been able to show, as far as I can see, that the system did not function in a satisfactory manner in the Senate.
In the House of Commons, we know what happened. There was over-politicization of the system. You know the problem better than any of us around the table.
We have reservations when the proposal in front of us is to drag the Senate into the same regime as the House of Commons, given the experience in the last year of the Ethics Commissioner in the other place. No one has proven to us that there will be an additional benefit of merging the two and putting all that into a statute whereby the judges will be invited to intervene in the business of Parliament.
Mr. Minister, you are nodding, but the minutes of the committee do not register that.
Mr. Baird: I am not the first individual, minister, actor in the executive branch or parliamentarian, for that matter, to propose or talk about the idea of a merged office. That proposal has been talked about in recent years by members of other political parties.
I should point out though — this is an important distinction — that with respect to the proposed conflict of interest act, I talk about codifying it rather than having the head of government write it. The conflict of interest act covers only the executive actors in government, namely, ministers and parliamentary secretaries, so it would cover only the two senators who serve in the executive branch. We do not touch the Senate code or the members of Parliament code. That distinction is important. I am sure you are aware of that, but I wanted to underline for members of the committee and others who may be watching or reading this later that we did not touch the non-executive branch part.
Senator Joyal: I have to point out that in the companion document to the original proposal, the government considered legislating or putting into statute the conflict of interest code that was part of the further intention down the line. That is what I read in the text.
Mr. Baird: I will confirm that at no time has that been considered. I think the Prime Minister might have invited both Houses to look at their codes. However, there is no second shoe to drop, so to speak, beyond suggesting that both Houses wanted to consider changes to their own codes, as you do from time to time on most important issues. They are free to do so. There is no plan to do anything in that regard.
Senator Joyal: If I can move to another topic, your predecessor as President of the Treasury Board announced in the short period of his tenure a large number of controls, new regulations and financial oversight over the administration. I wonder if all those announcements have already been implemented. I doubt it because they were so overwhelming. It takes the administration a reasonable period of time to digest change.
You now come with another stack of important and fundamental changes to the system. How can we be assured that the system will not be so overwhelmed with additional controls, rules, oversights, new tribunals, commissioners to public integrity, et cetera, that in fact we will change the system in a way that it will not be as creative or efficient as one would expect. I wonder if we have not bought into an overstatement of rules to control everybody and your shade in the back. You know very well that the Public Service Commission of Canada will face a major problem of recruiting new public servants in the years to come. If the perception and reality of government is that when you enter the public service you enter Big Brother, I wonder if you will be able to manage the public service in the way you think.
The government must address this important issue and we must address it when we legislate in such detail the system we want to put into place through this legislation. If you raise that issue, you are accused of not having accountability and transparency. The reality is the system can take only so much before being damaged and before inciting new recruits to take their chances in the private sector.
Has the government considered that aspect in its evaluation or in its haste to draft a bill that was meant to reassure everyone that the Public Service of Canada was lean, clean, trustworthy and entering a new era? We like to put those kinds of labels on the initiatives of government.
Mr. Baird: Those are wise words. I completely agree with everything you said.
With regard to my predecessor, I think with the best of intentions there had been significant problems with respect to the misuse and abuse of taxpayers' funds. If I was in his position, I probably would have done the same thing.
I came forward with a significant number of new rules and regulations to say if these 20 rules would not accomplish this, maybe these 50 will. I think the previous government had the best of intentions. I have never doubted that.
Unfortunately, his predecessor had done the same things involving a number of successive Auditor General's reports, and the rules began to mount up. You have summarized the problem better than I could have.
We want to be mindful that we do not stifle innovation within government and within the public service. We do not want to become risk averse in government as a whole. As long as human beings are involved, mistakes will be made. I think you are judged on how you deal with those mistakes perhaps just as much as what the mistakes were to begin with.
I was concerned about doing this in tandem with the federal accountability act and the action plan because I did not want to send mixed messages that while we are putting one foot on the gas, the other foot was on the brakes. We would be seen as not championing accountability.
The Auditor General told me a story about a grant recipient who received $5,000. It was for a non-profit group. A 75-page contribution agreement was drawn up. Is there any charity or non-profit group anywhere in the country who would have the skills or expertise to determine that? I do not know. If you tell me about any public servant who can oversee properly 75 pages of rules and regulations, it is not going to happen.
Justice Gomery also told me he thought those rules and regulations were overkill. He commented on it in his second report and certainly told me in a meeting I had with him. The regulations were brought in just before the report came out. If I was the President of the Treasury Board at that time and knew the report was coming out, I would have wanted to get ahead of it as a smart political thing to do.
We have done a number of things. First, about two or three weeks ago I appointed a blue ribbon panel composed of Frances Lankin, President of the United Way of Greater Toronto; the former Chair of the Management Board of Ontario, a New Democratic cabinet minister; someone who worked as a public servant union negotiator and is a public servant herself; Ian Clark, a former Secretary of the Treasury Board, a well-respected public servant; and Marc Tellier from the private sector. This panel will work together with officials and bring forward to the government policies and processes to reduce that web of rules.
We also have three reviews ongoing to provide balance between oversight and efficiency. The goal of the Treasury Board policy suite review is to reduce the rules by 50 per cent and to have clear and specific expectations that can be followed.
In drafting Bill C-2, we did not want to impose a significant amount of new rules. We tried to clarify that deputy ministers are accountable to parliamentary committees for the powers they hold. We confirmed the internal audit policy. I think we are very cognizant of that.
We are creating many new offices. The Registrar of Lobbyists has become the Commissioner of Lobbyists. We have created greater independence so we do not establish a new office. We are mindful of that.
I have not thought about recruiting new people. We want to keep the existing ones. It is ridiculous for public servants to spend a thousand dollars to ensure we do not lose a dollar.
The legislation must be fair for ministers, Parliament, the public and the media to understand that there will be mistakes. You and I will make mistakes, as will public servants.
Senator Joyal: Did you put a price tag on implementing Bill C-2 as it stands now?
Mr. Baird: The cost was released as part of the budget: $57 million. I am hoping the bill will save us money.
Senator Hays: I found your exchange with Senator Joyal fascinating.
My bias going into this process from what I know of the bill is that the weight of rules and additional requirements imposed upon public servants and others will be oppressive. However, we are at the beginning of the process. Things will unfold and I will see whether that is borne out.
That issue is not what I wanted to ask about, although you might want to comment further. I think your response to Senator Joyal is a positive one that you sense that may be the case. Review and work is being done to see whether that is true. That will come out in the committee's work.
My question arose before the bill was dealt with in the House and it remains there. It relates to Part IV of the bill dealing with the mandate, the powers of the commissioner and the role of the Prime Minister vis-à-vis the conflict of interest and ethics commissioner.
The way in which a matter comes before the commissioner is dealt with in clause 44 if it is a request by a parliamentarian, and in clause 45 if it is an examination upon his or her own initiative. Further, as outlined in clause 43, the matter can come before the commissioner via the Prime Minister. The result is different depending on how the matter comes before the commissioner.
In particular, if the matter is upon the request of a parliamentarian or on the commissioner's own initiative, the bill, in clause 47, provides that the result will become public. It specifically states:
A conclusion by the Commissioner set out in a report under section 44 or 45 that a public office holder or former public office holder has or has not contravened this Act may not be altered by anyone but is not determinative of the measures to be taken as a result of the report.
I have the wrong clause. I should be quoting from the subclauses of 44 and 45 themselves. I will come to that in a moment.
Hopefully it is enough to say that under clause 44(8) and 45(4) the results of the report will be made available to the public. However, under clause 43 where the investigation is initiated by the Prime Minister, they will not be made public.
Can you provide an explanation of how these clauses are intended to work and why that is the case?
Mr. Baird: In Ontario, they have legislated a conflict of interest code under which members can ask for an opinion and others can make a formal complaint against an individual. It encourages self-examination of behaviour. That code is a good precursor.
Mr. Wild: Clauses 44 and 45 are just that, complaint mechanisms. Clause 43 not only to provide confidential advice to the Prime Minister. Subclause (b) is to provide confidential advice to any public officeholder. The people who are subject to the conflict of interest act can seek confidential advice from the commissioner on how they should arrange their affairs or whether they have a potential conflict before they find themselves in a conflict situation. The idea of clause 43 is to provide confidential advice to the public officeholder as well as to the person responsible for the appointment of those public officeholders, that is, the Prime Minister.
That clause is distinct in the nature of what that is about, which is confidential advice compared to clauses 44 and 45, under which complaints are brought forward or self-initiated where the commissioner believes there is a contravention.
Senator Hays: Clause 43 does not envisage a matter being brought to the commissioner's attention in a complaint but, rather, only a matter that is brought to the commissioner's attention to seek advice about whether the matter will cause problems under the code?
Mr. Wild: Clause 43(a) contemplates the Prime Minister approaching the commissioner for confidential advice with respect to the application of the act. The Prime Minister could say, "Commissioner, I believe that a minister is in contravention. I would like your advice on that." The result of that advice may be the Prime Minister suggesting the minister should resign or recuse themselves from certain conversations in cabinet.
The advice the Prime Minister seeks could have a real-life situation where an actual contravention is occurring, but the section has a different dynamic than the complaint mechanism, that is, someone coming forward and saying, "I have evidence to suggest that this person is in contravention," and then the commissioner triggers his inquiry. The clause is very much about the Prime Minister, who is the boss, having to obtain advice on how the Prime Minister should organize the cabinet and affairs with respect to the ministry.
Senator Hays: Under clause 47, results of the work by the commissioner and the commissioner's report are not made public. I can understand that if the matter is a prospective one in terms of the Prime Minister saying to ministers, "You should seek the advice of the commissioner on how to arrange your affairs so as not to be in breach of the code." However, I take from your answer that the clause also could operate in a situation where the Prime Minister has information or reason to believe that one of the public officeholders may have done something in breach of the code. I do not understand why that information would not be made public. It is no different from the Prime Minister initiating an investigation than it would be for a parliamentarian or the commissioner on his own.
Mr. Wild: Under the scenario you are painting, it is up to the commissioner. As long as the commissioner has reasonable grounds to believe there is a contravention, the commissioner can self-initiate the examination.
Senator Hays: In that case, would the results be made public?
Mr. Wild: Yes: To clarify, because you were referring to clause 47, that clause says that the final conclusion under clause 44 or clause 45 is not to be altered by anyone. It is not speaking to the public nature of it.
Mr. Baird: At the provincial level in Ontario we did not have the capacity to self-initiate. The commissioner can self- initiate anything that the commissioner finds must be public.
I won an $1,800 watch, and that was mentioned in a magazine. Before I even knew that I had won the watch, the commissioner's office called and said, "You're not taking that watch, are you?" It shows you that in one respect, at least administratively, the capacity to self-initiate had a tangible benefit. I did not seek a confidential ruling on whether I could accept the watch and give it to charity, which I did.
Senator Hays: That was good of you, minister. We will not ask the charity.
Mr. Baird: It was the Queensway-Carleton Hospital.
Senator Hays: Am I right that there is a different treatment in terms of publication in the event the commissioner turns up a problem that is initiated by the Prime Minister under clause 43(a), than there would be under other investigations initiated by a parliamentarian or the commissioner on the commissioner's own initiative?
Mr. Wild: Again, treatment depends on the nature of the interaction occurring. If the relationship is one strictly of the commissioner providing confidential advice and there is no investigation, then there is no requirement that that advice be provided publicly. It is meant to be confidential.
If, as a result of that confidential conversation, the commissioner has reason to believe — because there is no restriction on the basis on which the commissioner can come to this reason to believe — that a public officer-holder is in contravention and the commissioner wants to initiate an examination, that is certainly possible under clause 45, and the results of that examination would be public.
Mr. Baird: I regularly seek counsel and advice from the Office of the Ethics Commissioner. I think that is important. It indicates that one takes the code seriously.
Senator Hays: I understand that. The issue is where the Prime Minister thinks it necessary to remind a minister or a public officeholder, and how that plays out.
Clause 47 has to do with alteration of the commissioner's report. If I read it properly, it may not be altered by anyone, but the clause refers only to clauses 44 and 45, not to clause 43. In the example of advice, I understand that. However, in the example where the Prime Minister, under clause 43, has sought the commissioner's confidential advice because of a concern over a public office-holder being in breach of the code, then I am not sure why that situation would not be protected in terms of no alteration in the same way that clause 44 and 45 are.
Mr. Wild: Under clause 43 it is still advice. Regardless of the circumstances under which the Prime Minister seeks the advice, it is still advice that the Prime Minister seeks about how to handle the matter. If the end result is that the Prime Minister ignores the advice and the public office-holder in question is now in contravention of the act, the commissioner could decide to self-initiate the investigation, or someone else could bring the complaint to the commissioner once they noticed that contravention.
Under either scenario you are into the investigation phase, and that is what clause 47 deals with, again because a distinction is drawn in the act between the nature of advice and the type of relationship one expects when one seeks confidential advice from a conflict of interest commissioner versus the investigative role of the commission.
Senator Hays: However, it is possible that the matter would originate under clause 43 and remain under clause 43 and mischief would be found rather than the commissioner taking the second step and saying, "I have notice of this because of clause 43, but now I'll put it under clause 45." Do you understand my question?
Mr. Baird: If mischief is found, it will be in the ability to self-initiate. A complaint will initiate itself with due haste. If you look at my example of the watch, let alone if they received a request, they could quickly identify that there was the justification.
Senator Andreychuk: I thought we would all have equal chance to ask questions. It is difficult to come at the end of the list. For the record, and my own assurance, did you seek and file a certificate indicating to cabinet that this act complied with the Charter of Rights and Freedoms? We ask that traditional question in this committee.
Mr. Baird: The Attorney General filed the certificate. Those are in the eye of the beholder, obviously.
Senator Andreychuk: Has your new government changed the process, or is it the same?
Mr. Baird: To my knowledge, it is the same.
Senator Andreychuk: It seems to me the perception of justice is as important to Canadian citizens as justice itself, and I learned that the hard way in court. I believe that people want parliamentarians to live by certain standards, and they want to be sure that the standards apply equally amongst all parliamentarians.
I understand the provincial codes and they are easy for citizens to understand. The codes are legislated and administered. Here, we have self-administered conflict of interest codes in the sense that we determine what goes into the codes, both the House and the Senate, yet you have now combined the people as one person, and you have put your emphasis there. Why did you not go one-step further and codify it like many of the provinces?
Mr. Baird: Codified in what respect?
Senator Andreychuk: Have a legislated conflict of interest code as opposed to allowing, from time to time, senators and the House of Commons to set their own code.
Mr. Baird: We made a deliberate decision only in the commitments that the then Leader of the Opposition made. Prior to an election being held, he made a commitment on the conflict of interest codes for the executive branch, for ministers and parliamentary secretaries. It was not part of our plan to revisit the Senate code or the House code.
As I reflect on Senator Joyal's comments, there might have been something in one of the documents we put forward where there was an invitation where, if each House wanted to investigate changes or looking at their codes, they were free to do so, and they may or may not want to. We legislated the codes for ministers and parliamentary secretaries. We did not touch the other codes.
Senator Andreychuk: That leads me to believe from the issue of confidence that it was not what is in the codes that troubled you or the citizens; it was more around ministers and government. Am I correct?
Mr. Baird: Correct.
Senator Andreychuk: Why did you combine the various ministers? You used the example of the two ministers in the Senate, and that it is easier and more efficient to have one person administer the various codes. However, the rest of us are not ministers, and we wonder why the previous government tried a number of times to combine the two into one conflict officer. Why did you go back to doing that?
Mr. Baird: We did it for consistency of advice and consistency of interpretation. As I said, this is not the first time someone wanted to combine the two positions. There was perhaps wisdom in that previous attempt.
Senator Andreychuk: You had that experience, but nonetheless, you still felt it was valid to combine the two.
Mr. Baird: Yes, we recognized the necessity of consistency of advice and interpretation, the fact that you have executive members in both Houses, a centre of expertise. It is not just the commissioner; it is his or her team.
Senator Andreychuk: Transparency, to me, is as important as many of the rules. If citizens know what the government is doing, know what Parliament is doing, they can judge for themselves. Can you tell me how this act strengthens the access to information so that the citizens can know what the government is doing, make some assessments on it and get into the dialogue? Can you expand on the access to information?
Mr. Baird: In a number of respects, we have included a number of foundations under the Access to Information Act. The previous government made some financial decisions, as governments often do when they have a surplus at the end of year, to use that money to set up a foundation to provide good. Given the accounting constraints on government — for example, you take $1 billion and put into a foundation where no one objects to the goals of the foundation. However, the minute it is called a foundation, the accounting rules require it not only to be arm's length, but beyond arm's length, independent and free from control.
We are hoping that transparency can be provided by including the foundations and agents and officers of Parliament, by some of the big Crown corporations. Whereas, years ago, some department may have delivered the mail, now, a Crown corporation does it. VIA Rail is another example.
We had a productive discussion on access to information at committee. Government members on the committee supported some opposition members' amendments with respect to enhancing access to information. We have also tabled a draft bill written by the Information Commissioner and a discussion paper before another committee on which we are looking forward to getting their counsel.
Senator Andreychuk: Is this bill the start of other initiatives that the government needs to take before full confidence can be restored in a modern accountability system?
Mr. Baird: Full confidence is a goal, an objective, a destination. This bill goes farther than any government has ever proposed or any House has ever proposed in the case of measures to strengthen it. That is a good thing. We hope to see additional measures come out of the committee. In some respects, Parliament also turned down some other proposed measures. In some respects, there was an opportunity to go farther, and to be honest, both opposition and government members voted for or against. The product before you today certainly goes farther than any government, any legislative product, at least at this stage, than we have ever seen in Canada. That is a good thing. The "follow the money" also speaks to transparency, because increasingly, all governments of all political stripes use outside organizations to accomplish a public good, and the capacity to follow the money certainly does strengthen transparency because obviously, the Auditor General's findings are public.
Senator Zimmer: This is very important legislation, as you said, and I know my honourable colleagues also take it seriously. In concert with Senator Ringuette's question about the area of political donations, an area with which I am familiar. I am concerned about the changes from the $5,000 level to the $1,000 level. If you read what we propose, in the first part, the maximum changes from $5,000 to $1,000, but there are two options, so it really is from $5,000 to $2,000.
What feedback did you obtain from the witnesses to support that change, and did they strongly indicate that that type of reduction should take place? As I say, that is fairly drastic in any arena.
Before you answer that question, I will offer a comment or a caution. I have done fundraising over the years, not only political but through many communities in this country, and many of the decisions based on good facts should be done that way and not on perceptions. I know the words "open, accountable and transparent" are great and noble. We should all follow that code of conduct, and I know all honourable members in both Houses do on and off this Hill.
I have been around here for about 35 years, and I continue to be amazed with the hard work, dedication and professionalism shown by all members. Each member follows the rules of open, accountable and transparent. There is a caution in that these words sometimes get over-used and misused to justify actions.
Clinically speaking, there is no relationship to open, transparent and accountable to justify the amounts we may agree to. Perception is reality, as you said earlier. You can go around this room, and everyone will probably come up with a different figure. My question is: When the witnesses appeared, did they give strong indications what those levels should be? I know there are facts taken from provincial amounts, but as Senator Campbell also indicated about the HR boondoggle, the problem with that was, in the minds of the public, we think $1 billion, or they do. When all reality came to play, the reason it was delayed for seven months was that all of the files were in files, not computerized. It took seven months to find out we were about $25,000 to $50,000 short, again, unacceptable, but what happens in the mind of the public is that the reality to them is $1 billion.
I caution again on the answer that "open, accountable and transparent" is good and it can sometimes direct us to a desired action, but my comment is: Let us make sure that if we do go to those numbers, they are based on indisputable hard facts. The question again is: Did the witness indicate very strongly that we should arrive at these numbers?
Mr. Baird: I was not a member of the legislative committee that examined Bill C-2. It is fair to say that the committee members were unconvinced by anything they heard to change the $1,000 limit. There was an amendment at committee I believe to increase it to $3,000, which was rejected by the committee. Establishing a number is, by its very nature, arbitrary. We establish an age for someone who can drive. You can find many 14-year-olds mature enough and capable of driving a car and many 37-year-olds who are not. By its very nature, it is arbitrary.
What would have been acceptable in the public's eyes a number of years ago might not be acceptable today. Prime Minister Chrétien had 30 years of experience, held virtually every cabinet portfolio, and was elected to Parliament when Diefenbaker was Prime Minister and Kennedy was in the White House. One of Mr. Chrétien's last acts on campaign finance reform was a result of that life-long experience. As an observer, I wondered if he went over the top. I wondered whether he went too far. There was a lot of concern about that reform. As a new candidate running for office, I was concerned. Would I be able to fund raise? At the end of the day, you had to get a little bit from a lot of people rather than a lot from a little. In the end, I agreed with the direction. I might not have at first, but my personal experience agreed that the principle was a good one.
It was a good start, and we had to go the rest of the way to build that public confidence, particularly on the union and business side. That was done in Manitoba a few years ago and in Quebec a generation ago. A $2,000 amendment was put forward to committee, and the committee, based on what they heard, did not accept that amendment. The reality is that I think about 99 per cent of people donated less than $1,000.
A member of the House of Commons asked a question to one of our ministers the other day, and I took the question and replied, "What do you think the perception is of this company giving a $25,000 contribution to a past political campaign of yours," suggesting it was very negative. That is what we are trying to clean up. That perception is important, because people will think contribution is buying the ear of a decision maker. That erodes public confidence in government. Therefore, the measures adapted by the Thirty-seventh Parliament were good, and we are proposing to go farther.
Senator Zimmer: For the record, I agree with more individuals with smaller donations, because to me that builds the grassroots of a political party. I certainly agree with that amendment. Are there any other amendments that you would like to bring forward at this time that we have not discussed?
Mr. Baird: None jump to mind. Obviously the bill did face some 200 odd amendments. We won some and we lost some.
[Translation]
Senator Robichaud: Mr. Minister, you said something that set me thinking. You said that no Member of the House of Commons dared to vote against this bill. When the term "dare" is used, it implies that one is on a slippery slope that could lead to consequences.
I hope that you are not telling us that, if in the Senate we dare to make some amendments and refer the bill back to you, there could be consequences. For I can clearly see that this is quite possible and that I myself would even be prepared to make some recommendations. I would just like to ask you to clarify the tenor of your words.
Mr. Baird: I would like to say two things. First, during the debate on second reading of the bill, we of course had the strong support of the Conservative Party and verbal support from the NDP; we received good comments from the Bloc Québécois. I was in the House when Mr. Hawn gave his speech, in which he said that the official opposition supported the bill. And I know that Mr. Arthur also supported the bill. I am going to continue in English because I wish to be clear.
[English]
I think it would be somewhat presumptuous of a rookie member of the other place five months into the job to come into this committee and suppose to tell senators how to do their jobs. I am not doing that. I am asking for expeditious consideration, and I think the Senate has responded by debating the bill and forming the committee so quickly, as I mentioned at the outset of my remarks. I have noticed a good number of the interventions and comments and questions of the committee have demonstrated a huge amount of knowledge and insight around this table. Just as members of the legislative members of the committee did their work and fulfilled their responsibilities, I know members of the Senate will do the same thing.
Senator Robichaud: You would be ready to receive amendments from the Senate.
Mr. Baird: A bill that received virtually unanimous support in the House carries some weight, but I will not presuppose to tell you how to do your job, senator. You have all been in this place longer than I have, and I respect that. If you have ideas and suggestions to make this bill a better bill, I welcome them.
Senator Robichaud: We will have many suggestions on how to make this a better bill.
Mr. Baird: I hope you will be mindful that this was a key element in the government's election platform and that all four political parties supported it in the House of Commons with speedy consideration. I would humbly suggest that it would be wise to put that into the equation as well.
Senator Robichaud: There you go again, Mr. Minister.
Senator Stratton: Ms. Cartwright and Mr. Wild briefed us this morning. We asked them how they arrived at the donation figure of $1,000. Mr. Wild responded that 99 per cent of donations are under $1,000. I just reaffirm that in a note to Mr. Wild, to get a sense of perspective as to the amount of donations to the political parties. I hang my hat on that as a strong argument for donations under $1,000 to all political parties. However, that is not really my question.
My question has to do with whistle-blower protection. I am from Missouri on this one because I do not think we can protect both civil servants and private citizens with whistle-blower protection; perhaps private citizens, but I am concerned about the bureaucrats.
The other place passed Bill C-11 before the last election and now Bill C-2 has a number of new measures to protect public servants. Why do you think that both Bill C-11 and this bill will do the job to protect both civil servants and private citizens?
Mr. Baird: My parliamentary secretary was a member of the Standing Committee on Government Operations that considered and passed Bill C-11. There were huge and substantive alterations to Bill C-11 when it was in the lower house committee. Many public servants felt, as I felt and as did our party, that the measures, while well-intentioned and in the right direction, did not go far enough. The huge changes in committee went in the right direction but again, not far enough. We want to effect a culture change for both management and the front-line public servants, that if they see wrongdoing, corruption, unethical behaviour or a waste of taxpayers' money, they will be confident that if they come forward, they will be protected.
I am partial; I represent a constituency that includes a significant number of public servants. We all represent different parts of the country and, historically, most of my predecessors who are members from Ottawa or Gatineau have always been mindful of protecting the institution of the public service, so we hope these measures will effect a culture change. As I said with regard to access to information, the success of this bill will be that it will stop something unethical from happening in the first place. If people know that it is not in the culture to do unethical things, they will be mindful of that before they take any unethical action.
Senator Stratton: The problem I have is that someone could come forward with a frivolous whistle-blowing complaint; in other words, it is a frivolous accusation on the part of that person. How do you protect against such an occurrence?
Mr. Baird: That is a fair point of which we are very mindful. The most recent report from the Public Service Integrity Officer indicated there were only three or four cases of wrongdoing. Again, it comes back to the comment that Senator Day made at the outset that the overwhelming number of things are right, not wrong.
We put in measures to protect reputations. If person "x" makes a complaint against person "y," it will not be made public if the complaint is found to be frivolous and vexatious. We want to protect the reputation of people accused of wrongdoing where the accusation has no basis in fact. We are mindful of that. I argued strongly for that because I felt as someone advocating greater protection for the whistle-blower I had a twin responsibility to those people who might be falsely accused, because people's reputations in life are important and even more important in the public milieu.
Senator Stratton: If someone blows the whistle, that person is labelled as such even if the complaint is valid. That is the basic fear of anyone blowing the whistle. I do not know how legislation can overcome that perception. Do you care to respond?
Mr. Baird: I do not disagree with you. We are trying to effect a culture change. The commissioner has a right to determine that he or she will not proceed with a case. A good example is a case of gun violence in Toronto where, in broad daylight 100 witnesses see a shooting, yet none comes forward with information. People have to live in that milieu after the fact and that is tough.
Senator Moore: I want to follow up on Senator Zimmer's question in relation to political donations particularly with respect to corporations. The bill reads that corporations may not donate to a political campaign. Why would a corporation be excluded from participating in the political, democratic process in Canada? I have had many people ask me that, corporate officers and so on; why would you exclude a company from that aspect of the political process?
Mr. Baird: Corporations do not vote. With the wealth of experience of all those cabinet jobs and being in government and opposition under four prime ministers, former Prime Minister Chrétien eliminated corporations and unions from donating to political parties and just left in local candidates. Again, Mr. Chrétien took the right direction; we just did not go all the way. That is why the bill proposes to do that. Corporations do not vote; people vote.
Senator Moore: What about individuals who do not vote, such as people under the age of 18? Should they be allowed to donate to a political campaign?
Mr. Baird: The bill before you does not contemplate that question.
Senator Moore: I know, but the situation just arose and your committee did not address it.
Mr. Baird: The committee did deal with it. One member of the committee, Ms. Jennings from Notre-Dame-de- Grâce—Lachine, came forward with an amendment suggesting 14 years of age. For a number of reasons, the committee rejected that suggestion. There were some competing amendments because of a recent scandal concerning 11-year-olds donating $5,400 to political parties.
Senator Moore: You throw around the word "scandal" loosely. The rules did not deny it.
Mr. Baird: The rules did not deny it.
Senator Moore: Therefore, it is not a scandal. It might be inappropriate or undesirable. I would not do it; you might not do it.
Mr. Baird: A scandal does not have to involve something illegal.
Senator Moore: Are you prepared to go out on the street and accuse someone of doing something that is improper or illegal?
Mr. Baird: I do not suggest for a moment that an 11-year-old donating $5,400 to a political party is illegal. It is a practice to which many Liberal members of Parliament took great offence. That is why Ms. Jennings brought forward the amendment.
Senator Moore: As I do too, personally.
Mr. Baird: Frankly, I do not think it speaks for the values of the Liberal Party.
Senator Moore: I do not think it speaks for the values of any party.
At what age do you think people should be able to donate?
Mr. Baird: Some people think it should be the voting age. I was a delegate to a leadership convention when I was 15 years old to vote for who would be the Premier of Ontario. I have run in four election campaigns and the concept of fundraising from children is not a concept with which I am familiar.
There were competing amendments in the legislative committee in the House. I certainly did not take exception. You have to ask yourself, are there many 11-year-olds who would make an independent decision to donate to a political party?
Senator Moore: I think we all agree about that.
Mr. Baird: This is the real issue. Does an 11-year-old have the capacity to make a decision to donate $5,400 to a political party? I do not know anyone in Canada who would believe that. Perhaps I am wrong, but I do not know anyone who would accept that judgment — that an 11-year-old could or ever has made that decision independently.
Senator Moore: I am asking you to put an age that you think would be appropriate. You thought maybe the age of 18 would be appropriate. At 18 years of age, a person is old enough to join the country's military and to vote.
Mr. Baird: I do not have an answer to that tough question. There were competing amendments. Should they come out of the parents' limit? Would you exempt a membership fee? Some political parties take their delegate fees to a convention as being a donation. My party at the last convention did not. I do not think you would want to do anything that would stop young people from being involved. There are many young people under the age of 18 who participate in all political parties. In my federal political party, you do not get a tax receipt; it is not counted as a donation. In my provincial party, you do. It depends on how political parties operate. I would not want to see anyone disenfranchised.
I had a conversation with a number of Liberal MPs on this point. Would the 15- or 16-year-old's fee of $10 or $20 be counted as a donation — or their registration to a conference, a policy convention, et cetera?
Senator Moore: I find the timing of this proposed legislation to be peculiar vis-à-vis the Liberal leadership convention, which was already in motion before this legislation was introduced. What about the obvious public perception that you are changing the rules or moving the goalposts after the game has begun? Do you think that is fair?
Mr. Baird: Candidates for nomination experienced the same thing in the run up to the 2004 election, where they came under a new regime midway through their campaigns. In my own constituency, there was as candidate running for nomination who had to embark on the new set of financial rules midstream, so that is not new.
Senator Moore: I do not think that was after the writ was dropped though, was it?
Mr. Baird: The nomination meeting had been called and they were contesting the nomination. Part of the nomination period was under the old regime and part of the nomination campaign was under the new regime.
There was one member of the committee, from the official opposition, who came forward with an amendment on children because she wanted to clean the mess up. I think she was well intentioned; I do not question her motive.
I want to emphasize that Bill C-2 is retrospective. If someone donated more than $1,000, it would not be required to give the money back. If someone has donated $5,000 to the Conservative Party, or to a leadership candidate the party does not have to return the money. The Green Party, for example, is having a leadership contest.
Senator Moore: What happens if they have given to provincial candidates in provincial contests and the amount is $5,400?
Mr. Baird: That does not come out of this limit. The provincial donations would not come under this limit.
Senator Moore: Okay, so you take that out and they want to go to the convention — in our case, the Liberal Party of Canada's leadership convention — they would be over the amount.
Mr. Baird: I can tell you, senator, I have heard this. I did not even know, up until the last week, what the delegate fee would be to a convention. In the last number of months, I was putting the paper together to do my own income taxes, and I did not get a tax receipt for our convention — not a leadership convention but our annual meeting in Montreal. It was never raised by anyone in the drafting of the bill, as far as a delegate fee goes.
Senator Moore: That is quite politically naive; it surprises me.
Mr. Baird: I have never heard of a $995 registration fee. I only heard about it in the last week. As for a delegate fee, that was never even contemplated.
Senator Moore: With regard to the whistle-blower proposals and the questions of Senator Stratton, you said that the intent was to put in place a culture change; it is not in the culture to do unethical things. Are you suggesting that the current culture is that people can do unethical things or that culture exists?
Mr. Baird: As Senator Day said at the beginning, there are a small number of people in any group — whether they are politicians, doctors, business people, plumbers, what have you — who will act unethically. There are 99.9 per cent of people do not commit criminal offences, but we still have a strong and effective Criminal Code. To assume that unethical behaviour is rampant within the federal government is wrong.
Senator Moore: So, you are not saying that you think that the present culture is unethical.
Mr. Baird: As Senator Stratton commented, the present culture makes it difficult to come forward, morally or socially.
Senator Moore: That is different from behaviour — that is about reaction.
Mr. Baird: When a person is worried about losing a job that drives the person to a completely higher level. The person wants to come forward and make a report; whistle blow, and is prepared to take the heat for it. However, the person has to consider the consequences vis-à-vis the mortgage payments and the cost of raising two children.
Senator Moore: Your answer is that you do not think there is a culture where unethical behaviour is okay. Are you saying it does exist? I am confused.
Mr. Baird: The government would like to see a culture where people, if they see wrongdoing, feel confident if they come forward, they will not be —
Senator Moore: That is not answering the question.
Mr. Baird: That is my response.
Senator Moore: It does not answer the question; it is your response.
Mr. Baird: I disagree with you on this point.
Senator Moore: Let me put it to you. You said that this section of the bill is designed to say that it is not in the culture to do unethical things. Do you think that the culture now is to do unethical things, "yes" or "no"?
Mr. Baird: I knocked on a lot of doors in the recent election campaign. Many public servants said they would be afraid to come forward and report wrongdoing because of the possible consequences.
Senator Moore: That is reporting; that is not the same as whether or not you think that people are out there thinking they can take advantage. I am not aware of that. I do not think our civil service is that low. I think it is more professional than that and I think it is an insult to suggest that.
Mr. Baird: There is a report, commissioned by the previous government, that points out many good things but many bad things as well. It is posted on our website. The Statistics Canada report indicates that morale is low and the Professional Institute of the Public Service of Canada and the Public Service Alliance of Canada indicate that the state of morale in the public service is low. The public servants often feel beat up as an institution. It is a key priority for me to try to boost morale in the public service.
Senator Moore: We are all about boosting morale. Your party's comments have created these buzzwords of "rampant corruption." No wonder these people think they are downtrodden.
Along with the authority to make those statements comes the responsibility to be accurate. I do not think the civil service is rife with corruption or an unethical culture. I am sorry, I do not agree with you.
Mr. Baird: I have never said that the public service was rife with corruption.
Senator Moore: You said that is why you think they are feeling down so frequently. Who keeps reminding them? I have never said it.
Mr. Baird: If you look at the morale within the public service you will find that it has been a key driver in local politics. There was a time three years ago when one party had every seat in this region and why they have only two today.
Senator Moore: I have one more question, chair, regarding the reputation of the accused, about which I am very concerned. What happens to the reputation of the accused if found not guilty? There is no way that all of this will be kept secret, minister.
If someone blows the whistle and the accused is not guilty, how will the accused have his or her reputation restored in the civil service and community? This simply states that no person shall take any reprisal against the servant who whistle-blows but what about the person who is innocent? What will we do to protect that person? If one person is caught up and loses his or her reputation, this will all be for naught.
Mr. Baird: Specific measures are in the bill to the extent possible. We are opening up access to information and we have specific measures for a blanket exemption. I agree with you, senator, that specific measures to provide a blanket exemption from any release of information where someone has been falsely accused. I feel an important responsibility to do that. As to the extent that people want to make false or malicious arguments, if Bill C-2 does not pass they still have the capacity to do that and deal with reputations.
Senator Moore: I do not know where the sanctions are to prevent that and how that person will be put back to where he or she was before the accusation was made.
Mr. Baird: You are wisely concerned. There is nothing in Bill C-2 that would make that worse in my judgment.
Senator Banks: My question is mundane by comparison to the others and has to do with procurement. This morning, when your officials gave us a briefing on this bill, one of the points made was that the governance of procurement would be principle-based as opposed to rules-based. The question asked was: Is that somewhat of a moving target and would it be theoretically possible that someone could have complied with the rules all the way through a process to its end and then found by the application of that principle, which was not set out in the rules, that it had been done incorrectly by some other judgment? The answer from your officials was: It was at least theoretically possible. Have you considered that possibility?
Mr. Wild: We had this discussion at the briefing and the point that I was making then is part of the review of procurement and part of the entire policy review, for that matter, is trying to look at things from the perspective of what needs to be in an actual rule, what can be done through principles, and how to find the right balance in the system. In that way, you can allow creativity and innovation based on principles without requiring a 100-page policy that dictates ad infinitum a rule for every possible permutation and the limits of trying to do a rules-based system where you have to anticipate every possible permutation.
The point I was trying to make is that this is all a question of balance and of finding the right number of rules, as well as instilling the right culture of principles so that people understand on a principled basis the right kind of decision to make. They would be able to understand the values of the government, of being a public servant and how to make a decision on the basis of those values, as well as in compliance with rules. If they understand, grasp and live the values, we can reduce the actual number of hard and fast rules because we know they will make the right decisions.
Senator Banks: I appreciate that. That is what you said this morning. However, a purchaser of a good or service and the supplier of the good or service could have gone through the entire process, signed a deal, as I understand the new regime, and done so with both believing that they were acting according to the rules, which derived, one assumes, from some principles. Could they be found, after the fact, to have not been dealing within the principles, notwithstanding that they had dealt within the rules?
Mr. Wild: There is a real nuance that I am trying to get across, and I am not being successful. The requirements under trade agreements and under government contract regulations are such that the rules require you to have an open, transparent bidding process with criteria set out up front with clear measures as to how you will conduct your evaluation, et cetera. I am not talking about any of that necessarily changing. Rather, I am talking about things that are a little softer around the edges — around deciding exactly how you develop your criteria or how you develop the means of evaluation. Currently, most of those things are prescribed in hard and fast rules. It might be that at the outset as you are developing your procurement mechanism you wish to go through, if you have a principles-based approach and people understand the concept of best value instead of having to follow some preordained step-by-step process, which is the same regardless of the value of the procurement, they can make a proper judgment call as to how to still have an open transparent bidding process but not necessarily one that has to go through the exact same kind of layers that are necessary if the value is $100 million versus $100,000. It is all part of a procurement policy review process as well as the panel that is looking at the whole host of existing procurement rules to determine how government can best get value with the private sector without unduly burdening the private sector.
Senator Banks: I hope that I will not see a bogey man under the bed.
The Chairman: On behalf of the committee, I thank Minister Baird, Ms. Cartwright and Mr. Wild for an extended stay for our first hearing on Bill C-2.
The committee adjourned.