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
Senator Donald H. Oliver (Chairman) in the chair.
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.
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.
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.
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
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.
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
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.
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.
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.
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
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
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.
Part 1 deals with important political reforms to ensure that elected
representatives and public office holders make decisions in the interest of the
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.
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
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.
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.
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
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
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.
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
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.
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
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.
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
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
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
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
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
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
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,
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
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
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
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
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
Senator Ringuette: Mr. Chairman, we are talking about accountability.
It is part of the process. You cannot look at accountability with only
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
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
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
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
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
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
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
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
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
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 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
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
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.
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
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
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
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.
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.
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
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
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
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
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
Mr. Minister, you are nodding, but the minutes of the committee do not
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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.
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
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
Senator Robichaud: We will have many suggestions on how to make this a
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 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
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
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,
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
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
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
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
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
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
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
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
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
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.