Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3 - Evidence for June 28, 2006
OTTAWA, Wednesday, June 28, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which
was referred Bill C-2, providing for conflict of interest rules, restrictions on
election financing and measures respecting administrative transparency,
oversight and accountability, met this day at 1:30 p.m. to give consideration to
Senator Donald H. Oliver (Chairman) in the chair.
The Chairman: Honourable senators, this is our second meeting on Bill
C-2 providing for conflict of interest rules, restrictions on election financing
and measures respecting administrative transparency, oversight and
The bill is more commonly known as the Federal Accountability Act. As
senators, our witnesses and members of the public both here 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.
Yesterday, we heard from the president of the Treasury Board Secretariat, the
honourable John Baird. Today, we will hear from other witnesses and we will
carry on with our meetings. After those hearings, the Committee will consider
the bill clause by clause in order to decide if it will recommend amendments to
Today we have officials from the Privy Council Office. We are joined by Ms.
Kathy O'Hara, Deputy Secretary to the Cabinet, Machinery of Government; Mr. Dan
McDougall, Director of Operations, Legislation and House Planning; Mr. Patrick
Hill, Acting Assistant Secretary, Machinery of Government; Mr. Marc O'Sullivan,
Acting Assistant Secretary to the Cabinet; Mr. James Stringham, Legal Counsel,
Office of the Counsel to the Clerk of the Privy Council; and Mr. Marc Chénier,
Counsel, Legislation and House Planning, Privy Council Office.
After your opening remarks, the tradition of the committee is to open the
floor for questions by honourable senators.
Kathy O'Hara, Deputy Secretary to the Cabinet, Machinery of Government,
Privy Council Office: Thank you, Mr. Chairman. I have a short preliminary
statement to make.
Page 2 indicates the four areas we will touch upon today — political
financing, conflict of interest, the appointment and removal of processes for
agents of Parliament and government appointments.
Page 3 summarizes the key elements of the legislation with respect to
political financing. The objective of this section of the bill is threefold. It
is to try to eliminate undue influence in the system — eliminate any loopholes
in the current system — and clarify and simplify the rules. Measures are also
aimed at encouraging a connection of the parties to a broader base of the
Through the legislation, the current $5,000 contribution limit would be
reduced to $1,000. As you know, there are actually two limits — a $1,000 limit
per year for contributions to each party at the national level, and then an
additional $1,000 per year to each party at the local level. The local level
means registered associations, nomination contestants and candidates.
There are also contribution limits of $1,000 for contributions to an
independent candidate and also to an MP's own candidacy. Another provision of
the legislation is that only individuals can make contributions to political
parties; unions, corporations and associations cannot.
The additional elements are identified on the following pages. For example,
there will be a ban on any cash donations of more than $20, and also any
donation more than $20 must be receipted. Currently in the legislation, the
limit is $25.
The limitation period for Elections Act offences — this is for the
commissioner to investigate and prosecute any offences under the Elections Act —
is increased to five years from when the commissioner becomes aware of the facts
of a case, but no later than 10 years after the offence is committed. This
provision is in response to a recommendation of the Chief Electoral Officer.
Page 5 identifies other changes. There is a prohibition against electoral
district associations and parties transferring trust funds from the association
or the party to a candidate. There is a prohibition against candidates accepting
gifts that could reasonably be seen as attempts to influence them. This
provision is to address the issue that candidates are not currently covered by
the Code of Conduct for Members of Parliament. Any gift that has a value of more
than $500 must be disclosed by the candidate to the Chief Electoral Officer.
Members of Parliament are required to wind up most of their trust funds — not
family trust funds — and also, they must be able legally to wind up their trust
funds. Not all trust funds are in the name of the member of Parliament. In
addition, when they wind up their trust funds, they cannot use those proceeds
for political purposes.
The second section we want to talk about is the conflict of interest act.
This act enshrines in law the regime that is currently in the Conflict of
Interest and Post-employment Code for Public Office-holders. In addition to what
is in the legislation, the federal accountability action plan that accompanied
the legislation noted that the government would welcome the opportunity to work
with members of Parliament — members of the House of Commons and senators —
should they desire to enshrine their respective conflict of interest codes in
It also signalled that the document that Privy Council releases with every
change of government, which is currently entitled, Accountable Government: a
Guide for Ministers, will be revised. The current code that dealt with
ethical issues is now addressed through the accountable government document
since the conflict of interest act is essentially enshrining a conflict of
interest regime, not a conflict of interest and ethics regime. The ethics part
is now covered and addressed through the accountable government document.
Page 7 identifies other changes that have been made through the legislation,
in addition to codifying or enshrining the code in statute. For example, the
conflict of interest and ethics commissioner has the power to impose monetary
penalties up to a maximum of $500 for administrative issues, to address
administrative compliance issues — failure to file within deadline is one
The act clarifies that the commissioner cannot be overruled; that the report
of the commissioner is final and cannot be altered.
The act clarifies — this item is on page 8 — that ministers cannot vote on
matters connected with their business interests, where voting puts them in a
conflict of interest.
Page 9 identifies other changes we made to the act. One was discontinuing the
use of blind management agreements. Previously, the code allowed divestiture of
controlled assets either by selling in an arm's length transaction, putting the
assets into a blind trust or putting them into what are called blind management
agreements. The third option will no longer be possible.
The act provides that the commissioner may consider information from the
public, but the public would provide the information to a member of Parliament
or a senator, and then the senator or the member of Parliament would pass on the
complaint to the ethics commissioner. Previously, the Ethics Commissioner
investigated complaints with respect to ministers and parliamentary secretaries;
but the legislation is now broadened so complaints can be made about any of the
approximately 3,600 public office-holders. The act also gives the commissioner
the express power to self-initiate an examination and not wait for a complaint
to be brought forward.
The act expands the definition of public office-holders to include
ministerial advisers. These advisers are people who occupy a position in the
minister's office and provide advice on policy or program, or financial advice —
matters of that nature — but are not necessarily remunerated.
The act creates a new conflict of interest and ethics commissioner position.
This position has an expanded mandate. The commissioner is responsible for
administering the House code, the Senate code and the public office-holder code,
as well as providing confidential policy advice on ethical issues to the Prime
The act now requires the commissioner to have either judicial or
quasi-judicial experience or, as a result of amendments made to Bill C-2 when it
was before the House, to have served either as the Ethics Commissioner or the
Senate Ethics Officer.
The third area we will touch upon today is the process for appointing agents
and officers of Parliament. The current appointment process is uneven. There are
different appointment processes for the agents of Parliament in their various
statutes. This process standardizes appointments so that consultation is
required with opposition parties and approval by resolution of the Senate and
the House of Commons. There is also a new standardization of the approach to
On the next page is the standardization of removal provisions for the
officers and agents of Parliament. In the bill, removal now is for cause on
address of the Senate and the House of Commons.
The fourth and final area I will touch upon is the section that deals with
government appointments. The bill authorizes the establishment of a public
appointments commission, whose role is to oversee, monitor, review and report on
the selection process for appointments by Governor-in-Council to agencies and
boards, commissions and Crown corporations with the intent of ensuring that
these appointments are made in a fair, open and transparent manner, and are
based on merit.
Another change is the treatment of the priority appointments for ministers'
exempt staff. They are eligible to compete for appointments for one year
following their departure from a minister's office; and those appointments are
made on merit.
There is also provision with respect to the appointment of returning
officers. The bill provides for the establishment of a standard of
qualifications process by the Chief Electoral Officer and a merit-based
selection process for returning officers. They will be appointed for a term of
10 years and they could be reappointed, after consultation with leaders of
Mr. Chairman, that is my presentation. I point out that I am accompanied by a
team of experts that worked on these sections of the proposed act. Each of us is
able to respond to any questions.
The Chairman: Thank you. You have covered a great deal comprehensively
in a short period of time. There will be many questions.
Before turning first to the Deputy Chairman of the Legal Committee, I want to
ask a question. In the House of Commons the Legislative Committee on Bill C-2
heard from more than 70 witnesses. A number of witnesses had legal concerns and
constitutional concerns, both of which fall under the mandate of this committee.
I want to ask about one concern expressed by a number of witnesses in the other
place. Reducing contribution limits and banning all corporate and union
contributions to political campaigns might violate the Canadian Charter of
Rights and Freedoms, which guarantees freedom of expression under section 2. Can
you comment on that?
Ms. O'Hara: Our advice to the Department of Justice has been that this
section of the proposed legislation is consistent with the Charter and, I would
say, can be defended in that respect.
It is consistent with democratic values because the objective of the section
of the bill is to create a level playing field and to ensure that no party in
the system can exercise undue influence, for example, by making a large
contribution. The argument is, it is consistent with democratic values and
practice. The evidence indicates that most contributions are under $1,000. The
proposed legislation is consistent with practice. We also note that it is
consistent with other —
Senator Cools: Whose practice? Ms. O'Hara is whizzing through many
statements that have huge assumptions behind them. Perhaps we could slow it down
a bit and do them one at a time.
Whose values? What is a value anyway — huge assumptions?
The Chairman: We have a list of senators who want to ask questions.
Senator Cools: This is part of the problem. Enormous assumptions are
made. They are recited in rapid succession and in that way, they elude being
Ms. O'Hara: When I refer to practice, I refer to contributions made in
2004. We know what kind of contributions were made.
The Chairman: That practice is in respect of the January election in
Ms. O'Hara: We know what contributions were made and we know that 99
per cent of them were made by individuals for less than $1,000 each. The average
contribution was about $172. The other argument is that the proposals are
consistent with what is done in other jurisdictions, both in Canada where
Manitoba and Quebec have these kinds of provisions, and in other countries such
as the United States, France and the United Kingdom. Those kinds of arguments
would be made and so our view is that it is consistent with the Charter.
Senator Day: I will begin with a specific question to help illustrate
the difficulty with many small details in this bill.
Bill C-2, Part I, Conflicts of Interest, Election Financing, Lobbying and
Ministers' Staff, the conflict of interest act, contains four parts. I would
like to go to Part I, Conflict of Interest Rules, in Part I. Why can we not have
a bill that enacts the Conflict of Interest Act? It took me three days of
reading to figure out that some parts are parts of parts and not part of the
whole. It is difficult for someone who has not lived this bill as you have done
for the last while. Likely two or three bills could have come out of this one
bill. Who made the decision to put this all in one bill? Part I, the Conflict of
Interest Act, could be a bill unto itself.
Senator Cools: This bill is a conglomerate bill with so many bills in
Ms. O'Hara: It is an omnibus bill. The government made the decision
Senator Cools: No, an omnibus bill is about many different things.
This bill is several bills.
Ms. O'Hara: The government made the decision to enact in one piece of
legislation all the elements that would come under a federal accountability act.
I am not a drafter but perhaps Mr. Chénier wants to answer from that standpoint.
There is a substantive reason. This bill is considered to be a package, as
Minister Baird described it last night. The view is that all these measures are
related and so they are intended as a package to increase transparency and
accountability in government. The bill is called the federal accountability act.
While it is true they come under different pieces of legislation, they are
related because they all contribute to increasing accountability. The drafting
works in that they can be identified as separate parts of this proposed
Marc Chénier, Counsel, Legislation and House Planning, Privy Council
Office: I know proposed legislation that amends so many other acts is a bit
confusing. The bill is divided into five parts and each part is meant to address
a particular area of government campaign promises in respect of its
accountability platform. The table of contents shows Part I and underneath,
another Part I. That is because the first part of Part I is an act unto itself —
the new conflict of interest act, which is divided into parts. Part I includes
an act that is also divided into parts. Does that make any sense?
Senator Day: It makes sense but it took me a while to figure it out.
If it had been part A of Part I, I might have figured it out faster.
Mr. Chénier: Eventually, the conflict of interest act will be a
statute unto itself as part of the Statutes of Canada, so it will be clearer to
Senator Day: There seems to be a desire on behalf of the current
administration to do things in fives. As a result, I had five priorities in my
In this Conflict of Interest Act, which is part 1 of Part I, I would like you
to go to clause 11 on page 6 about gifts and other advantages. It states:
11(1) No public office holder or member of his or her family shall accept
any gift or other advantage...
(2) Despite subsection (1), a public office holder or member of his or her
family may accept a gift or other advantage...
(b) that is given by a relative or friend;
Clauses 23 and 24 suggest that gifts to relatives or friends do not have to
be disclosed. Does that exemption create a possibility for some difficulties,
because the phrase, "gifts from relatives or friends," is vague. Who is a
friend? Everyone is a friend when they have something to give you. Can you help
me with that exemption?
Ms. O'Hara: The concern was that if gifts from relatives and friends
were not exempted, there would be situations where candidates could not accept
Christmas presents from family members if, in fact, the legislation were to
coincide with the Christmas period. This measure is intended to capture gifts
that could be seen reasonably to influence the public office-holder. The view
was that Christmas presents from relatives and friends were not intended to do
that, so that is why those gifts are exempted.
Senator Day: Clause 23 provides for a $200 limit, so that clause would
encompass most Christmas gifts. It is not necessary to disclose anything under
$200, but if the gift over $200 is from a friend, would you think that might be
an opportunity for abuse, logically?
Ms. O'Hara: If the gift is over $200, you have to disclose it.
Senator Day: Other than gifts from relatives or friends: If a gift
over $200 is from a relative or friend, the way I read it, it is not necessary
to disclose it. Am I correct?
Patrick Hill, Acting Assistant Secretary, Machinery of Government, Privy
Council Office: The substantive provisions, including the ones that you are
directing us to, are provisions that have formed part of the current conflict of
interest regime for public office-holders. Those rules, in a general sense, have
been in place since at least 1985.
The objective of these provisions is to balance the goal of transparency, on
the one hand — that is why we have the requirement that certain gifts over the
threshold be reported and publicly declared — with an administrative regime that
governs some 1,200 full-time public office-holders.
The balance that has been struck here — and this balance has not changed
substantively from the current regime, or even from earlier iterations of the
current regime — is to require disclosure to the commissioner and public
declaration of gifts over $200. This provision meets the transparency goal.
Those gifts are now published on the Ethics Commissioner's website.
The exemption in respect of family and friends is designed to avoid the
administrative burden of every public office-holder having to report every
Christmas gift over $201.
A case in point could be a gift from one's spouse or a close friend with a
value of $500 or $1,000. That gift is not now, nor will it be under this act, a
reportable or declarable gift.
Senator Day: You purport to put in statutory form in this bill, in
Part I, a code that already exists. Was that code reviewed substantively or have
you just lifted it out and said you will put this in and make it part of a
statute, as opposed to it being a more flexible code?
Ms. O'Hara: As I mentioned in my presentation, for one thing, this
legislation is focused entirely on conflict of interest, whereas the broader
public office-holder code is intended to be an ethics and conflict of interest
What we had to do, as the provincial statutes in this area do, is to focus on
the conflict of interest elements of the code. That focus is reflected in Part
I. Elements that dealt with ethical issues in the previous code will now be
reflected in a revised version of a document called, Accountable Government.
Senator Day: In lifting out the conflict of interest aspects of the
code and putting them in this statute, did you look at those from a substantive
point of view or was your exercise only to lift them out and put them in here?
Ms. O'Hara: The drafters can talk about what is required when moving
from a code to a statute, because drafting issues were at play. We also added
elements to the legislation that were not in the original code.
Senator Day: The particular one that I am focusing on, gifts from
relatives or friends, did you look at that element from a substantive point of
Ms. O'Hara: No.
Senator Day: I just wanted to find out what exercise you carried out
in that regard.
We are focusing on one clause out of 217 or so. There are many parts to it,
so it takes us a while to get a feeling for Bill C-2 in all its manifestations.
How many public servants worked on bringing this together in the six weeks it
took to come up with this bill?
Ms. O'Hara: The Treasury Board people would be in a better position to
report on that. A number of departments were involved in various sections of the
legislation, and then there were policy people from the departments, as well as
people from the Department of Justice who actually drafted the legislation.
Between 30 and 40 people were involved.
Senator Day: Were all of you involved?
Ms. O'Hara: Yes.
Senator Day: Were you involved in any aspect of this bill before the
change of regime, before government changed?
Ms. O'Hara: Yes: Machinery of Government has always been responsible
for drafting the conflict of interest code. As I mentioned in my presentation,
the code is reviewed every time a new administration takes office. Patrick Hill
had been involved in redrafting the code that was released on February 6, 2006.
Marc Chénier, I think, had arrived by the time we drafted Bill C-24, so he has
been involved in political financing issues.
Senator Day: Mr. Hill, did you do your redrafting between January 23
and February 6?
Mr. Hill: That is the practice for every transition of government.
Senator Day: Were you doing some anticipation?
The Chairman: He is a public servant.
Senator Day: Sure he is. He has to be ready for every eventuality.
Ms. O'Hara, can you look at page 14 of your presentation and tell me what
your understanding is of "after consultation." What is understood by the word "consultation" among the leaders of recognized parties?
Ms. O'Hara: My understanding is that often what happens is that the
Government House leader consults with his or her counterparts. Sometimes it is
done at that level, through the House leaders of the various parties; sometimes
it is done by the leaders of the parties themselves. It can vary. The
legislation does not specify. Consultation has to be with leaders, but it is
sometimes done through House leaders.
Senator Day: Can we take that to mean "advise"?
Ms. O'Hara: No: The legislation uses the specific word
Senator Day: Have you any understanding as to what that term means,
from a practical point of view?
Ms. O'Hara: I do not believe it is defined in the legislation. It
means talking to the leaders of the opposition parties with respect to a
possible candidate for a returning officer or other position.
Senator Day: Do you anticipate the possibility of one of leaders to
say, "I do not like that"? Then what would the government do in that instance?
Ms. O'Hara: We are now speculating about something that, in fact, is a
brand new process. We are consulting with the leaders of the recognized parties
on returning officers.
Marc O'Sullivan, Acting Assistant Secretary to the Cabinet, Privy Council
Office: This section refers to consultation by the Chief Electoral Officer
for the reappointment of returning officers. Consultation indicates the
intentions. Because the legislation does not specify how to resolve any
difference of opinion, it is then a matter for the judgment of the person
undergoing the consultation to determine whether it is better to proceed
nevertheless or to ensure everyone is onside.
There are other provisions as well for consultations on other appointments.
It is the same matter. In consulting the leaders of every political party, they
have to determine whether they are willing to go ahead with or without the
support of everyone; whether they must have a general consensus. Here the
accountability is clearly with the Chief Electoral Officer. The Chief Electoral
Officer will be accountable for how returning officers are appointed and,
therefore, will have to explain to Parliament — the Chief Electoral Officer is
called to account before Parliament — a situation where he or she appointed
someone over the objections of the political leaders that were consulted.
Senator Day: That is helpful. The only other point I have at this
round is on page 4 in your presentation. We are talking about the Canada
Elections Act. The last page that we just looked at, where the Chief Electoral
Officer is given the authority to appoint the returning officers in each of the
areas, a new step is taking place. We are also talking about the Canada
Elections Act here on page 4. Then on the second line of the second bullet, it
reads that the limitation period in the Canada Elections Act of offences will
increase to five years. You said in your presentation that recommendation came
from the Chief Electoral Officer. Who is the commissioner about whom we are
Ms. O'Hara: The title is Commissioner of Canada Elections, who
actually investigates offences under the Canada Elections Act. It is a separate
Senator Day: Is this delegation new as well?
Ms. O'Hara: This delegation is not new. It has always been in place.
The time the commissioner has to investigate — the commissioner will not
prosecute any more — has been extended, but the investigatory power has always
been with the commissioner.
Senator Day: The Chief Electoral Officer presumably has a higher rank
so he makes a recommendation. Did you say this was the result of a
recommendation from the Chief Electoral Officer?
Ms. O'Hara: It was a recommendation to the House Standing Committee on
Procedure and House Affairs. The Chief Electoral Officer prepares a report after
every election. I do not remember in which of his reports to the standing
committee he made this recommendation.
Senator Andreychuk: Having had the benefit of having looked at this
bill, I do not find it as complex as some of the other bills with which we have
had to deal, most notably the Income Tax Act, the Criminal Code and, most
recently, the Public Safety Act, which touched virtually everyone from
emergencies to health to anti-terrorism. This bill is confined to one subject
One thing that this committee does and has done well is to look at the
government's intent in passing the law, and to see if it is workable. In other
words, how will the administration flow from this? With that in mind, on page 9
of your presentation you talk about complaints no longer being limited to
ministers and parliamentary secretaries but can be brought against any of
approximately 3,600 public office-holders.
Have you costed out what this change will entail administratively, both in
person years and in dollars? You are creating a new regime, if I may call it, of
How have you factored in that some of these other public office-holders were
reporting and had disciplinary aspects to their positions previously? Will there
be a conflict with the routine of how they report within their own fields, now
that they have to go through this conflict of interest process? In other words,
how will you blend the two?
Ms. O'Hara: The legislation actually replaces the code so we do not
have to blend in that sense. Are you thinking in terms of the public
office-holders covered by the MPs' code?
Senator Andreychuk: I am thinking of the code. First, how will you set
this change up. What is the practical way in which you will administer it and
what is the cost?
Second, informally and formally, these public office-holders, as part of
their administrative tasks, went to certain people about their job and they did
not really say code of conduct per se: they reported about their relationships,
how they work, and their difficulties, some of which would have been the code.
You are now changing that process that has been tested into a new one. How will
the changeover occur, or how will the two processes work together?
Ms. O'Hara: On the first issue, Minister Baird mentioned yesterday
that the entire legislation has been costed at a global amount, and when the
legislation goes through its entire process, individual departments affected by
elements of the legislation will bring forward their costs. Those costs will go
to the Treasury Board for approval of the funding.
This bill will be hard to calculate because we are anticipating. We know the
size of the Ethics Commissioner's office today. It has 35 full-time employees.
We know its budget. We know what the current number of complaints are with
respect to the current population covered under the current code. This bill
represents a significant expansion of the eligible population, but whether it
will lead to an increased number of complaints is another issue. We will
probably do a guesstimate. Often in those cases you provide funding to the
organization up to an amount so that if you are right in your calculation of how
many more complaints there will be, you actually have provided sufficient
This one will have to be a bit of guesstimate because we are thinking through
how many more complaints there will be.
The process itself will not change. If you are currently covered by, and
currently complying with, the code, all the disclosure elements in the current
code are just moved into the legislation. In fact, you should not see any change
in the disclosure. I cannot think of any change to the disclosure regime itself.
The public office-holders currently covered by the code will not see a change.
Senator Joyal: That is so unless they have a problem of interpretation
and then it goes to the court, because once you put the code in a statute,
anyone affected by a decision can go to a court to seek redress; whereas before,
redress was totally within the prerogative of the executive.
Mr. Hill: If I can clarify, the population of public office-holders,
the 3,600 people of which we speak, has not been expanded by the act, except for
the one small expansion to include so-called ministerial advisers, who are a
newly defined group in the regime. Of the 3,600 people captured by the new act,
all those people are currently subject to the disclosure and reporting
requirements currently found in the code. The expansion, if you will, is a
clarification that insofar as an MP or senator wishes to launch a formal
complaint, currently those complaints may be launched only in respect of
approximately 60 ministers and parliamentary secretaries. Should the act receive
Royal Assent under the new regime, complaints may be brought in respect of all
3,600 public office-holders. My understanding is that the Ethics Commissioner's
office receives complaints, concerns or inquiries with respect to the broader
population as a matter of course. It will be a matter of practice before we can
determine how many complaints are, in fact, brought forward.
The other point on this issue is that, currently, in respect of the
complaints that may be brought against ministers, a threshold requirement is
that the senator or MP who brings the complaint forward must have reasonable
grounds. That provision is designed to ensure that the complaints that are
brought forward are meritorious.
On the question of judicial review, a number of measures are within the act,
and Mr. Stringham can help us with that, namely, the attempt, to the extent
possible, to limit judicial review. By way of observation, all the provincial
regimes are now statutory. We should also point out that matters of judicial
review, when brought forward, are reserved to the court on the threshold
question as to whether there is a case properly brought before the court. I will
leave it to Mr. Stringham to walk through some of the discrete measures in the
legislation to limit that prospect.
James Stringham, Legal Counsel, Office of the Counsel to the Clerk of the
Privy Council, Privy Council Office: As I understood the senator's question,
it was with respect to the conflict of interest act and judicial review under
the conflict of interest act alone. I will expand the discussion about judicial
review in general and how we attempted to preserve the protections, privileges
and immunities for the Senate and House of Commons with respect to judicial
In that regard, I will commend to the attention of committee members the
proposed provisions to be added to the Parliament of Canada Act, namely, clauses
86, 87 and 88, which set out three distinct roles for the new conflict of
interest and ethics commissioner. Clause 86 is in regard to the commissioner's
role vis-à-vis the Senate, clause 87 the commissioner's role vis-à-vis the House
of Commons and clause 88 the commissioner's role vis-à-vis public office-
holders under the conflict of interest act.
Clause 86 patterns itself on the existing section 20.5 of the Parliament of
Canada Act, which describes the role of the Senate Ethics Officer, and, as in
section 20.5, this new provision, clause 86, seeks to preserve the immunities,
privileges and powers of the Senate. The provision seeks to protect the
commissioner in his or her actions with respect to the Senate and undertaking
the roles that the Senate accords to the commissioner.
Clause 5 of the federal accountability act, on page 35, starts off with
"Subsection 2(2) of the Federal Courts Act is replaced by the following," and
it goes on to ensure that when it comes to judicial review in the Federal Court,
when the commissioner is acting in his or her role with respect to the Senate or
the House of Commons, the commissioner is not to be considered a board
commission or tribunal for the purposes of the Federal Court. This clause
essentially says that the commissioner is not some body that will be reviewable
under the Federal Court Act. This provision is similar to the one in the
existing Parliament of Canada Act, with the one exemption that the commissioner
in his or her role with respect to the conflict of interest act is not so
The Chairman: Is there any other way the role can be reviewable by a
court, or is that language all-inclusive?
Mr. Stringham: It is all inclusive with respect to the Federal Court.
There is perhaps an open question with respect to superior courts of the
provinces. Unfortunately, that question must be answered. With respect to that
issue, the committee may wish to take comfort from the recent court rulings, in
particular, the Supreme Court decision in Vaid where, I believe, the
court made it clear that when it comes to internal discipline in the Senate, the
House or a legislative assembly dealing with its own members in matters of
discipline, the courts will not go into this area. It is an area of
parliamentary privilege and will not be subject to judicial review.
Senator Andreychuk: I want to go into the policy on the public office
holders to include ministerial advisers. Over the years, both provincially and
federally, I have watched with great sympathy when ministers were made
accountable on issues that are within their jurisdictions. I also have a great
sympathy for deputy ministers who have to implement many of those laws, but
there have always been a cadre of people around ministers who give advice but
are rarely accountable, and this provision seems to touch these people in how
they conduct themselves.
How will you know the informal advisers from the formal advisers in
application? I understand the section, and I understand how you are trying to
exclude good advice given voluntarily by party leaders and members, but, in
practice, how will you define ministerial advisers? Will you have protocols?
What systems will you put in place so people understand what an informal adviser
is, as opposed to ministerial advisers who are trapped by this act?
Ms. O'Hara: You are right. This provision was a challenge to draft, to
capture the right population. I note two elements: one is that the person has to
occupy a position in the office of a minister and has to provide policy program
or financial advice to that minister in respect to powers and duties of that
particular minister. We hope that with that kind of definition we narrow it to
someone who meets the intent. It is someone in the minister's office who
provides that kind of advice, whether or not that person is remunerated. That is
the last part of that definition.
The idea is that the provision would not capture someone from outside the
minister's office who provides informal advice or, certainly, advice that does
not touch these areas of policy program or financial advice. Maybe there is more
to it as well.
Mr. Hill: That answer explains the challenge we had and the approach
The second part of your question was with respect to how this provision will
be administered in practice. Ultimately, the new commissioner will determine how
best to do this. The current commissioner and, before him, previous ethics
counsellors have made a practice of proactively publishing guidelines or
communicating with ministers directly.
For background information for the committee's benefit, a new minister upon
being sworn in, be it as a one-off or as the result of a transition, the staff
of the Ethics Commissioner meets quickly with the minister to assess not only
the minister's own reporting and compliance requirements but also those of all
the minister's exempt staff. One option open to the commissioner under this new
regime is, at that point, to make an inquiry of the minister: "Minister, do you
have persons who may or may not fall within the definition of `ministerial
adviser'," and to make the judgment accordingly.
Senator Andreychuk: Would this trap interns who come to work in a
minister's office: young people who volunteer and become part of a minister's
staff? Will it inhibit learning experiences for young people?
Mr. Hill: Those persons are already captured in the current regime
under the current Parliament of Canada provisions, which provide that
ministerial staff are captured. That definition is broad enough that it has been
interpreted in practice to mean both full-time and part-time persons, whether
for pay or unremunerated.
Those persons are already captured as public office holders. Both the regime
in the bill before you and the current regime in the current code provide for
further differentiation for persons who are volunteers and not subject to the
somewhat onerous reporting and compliance measures.
Students are captured under the current regime but are exempted from all
reporting requirements. They are still subject to the substantive provisions
such as being disallowed from working on a file where there is a conflict of
Senator Andreychuk: You believe that present practices are sufficient
for anyone coming into or leaving ministerial office. From what I understand,
you do not anticipate any reorientation of your practices. You said that when a
minister comes into office, you will do the same thing you have been doing.
Ms. O'Hara: To clarify, the commissioner and the commissioner's staff
do that, and we assume they will continue. This provision adds a new question to
the minister: in addition to the people who would normally be covered under the
code, do you have any people who satisfy this definition?
Senator Campbell: I like the document that you have put out. I have no
problem with eliminating corporations or unions. I understand the concept. My
concern is that there seems to be a mean-spiritedness in the way the bill is
written, pointing directly toward the ongoing leadership campaign.
Legislatively, what is the downside of not bringing into play the
contribution portion of this bill before January 1 or until after the leadership
Mr. Hill, am I correct that you worked on Bill C-24?
Mr. Hill: Mr. Chénier did.
Senator Campbell: As you recall, at that time, Prime Minister Chrétien
allowed the Conservative Party to disengage itself from that bill if it called a
leadership convention before the end of 2003, which it did. They were not caught
with one act saying one thing and another act saying another. Is there anything
that would prohibit that legislatively?
Ms. O'Hara: Legislation generally comes into force when you are able
to implement it. Sometimes implementation of legislation has to be delayed when
you are not ready to implement it because regulations must be drafted.
With respect to the Canada Elections Act, in the past, changes to the Canada
Elections Act have often required the Chief Electoral Officer and his office to
train staff or to change manuals. Time is required to implement changes.
There was a sense that the elements of Bill C-2 with respect to limits and
the ban would not require that kind of time frame to implement, that there would
not be significant changes required to the Chief Electoral Officer's procedures
and manuals. This bill bans things or changes limits, so it is fairly
straightforward. Parts of bills come into force when they can be implemented,
and this part can be implemented upon Royal Assent because the Chief Electoral
Officer does not require a lengthy period of time to implement the necessary
changes. A couple of other elements with respect to political financing, such as
the disclosure of gifts, require changes to manuals and training of staff on how
to administer those changes.
Senator Campbell: Could it be deferred to January 1 without any great
Ms. O'Hara: What could be deferred to January 1?
Senator Campbell: Wording in the bill could provide that the
contribution limits, in particular, do not come into force until January 1.
I will explain why I ask this question. I do not know why, but it costs $995
to be a delegate to the December leadership convention. That means that anyone
who gave more than $5 to the party would be breaking the law if they became a
delegate. That does not seem fair or honourable.
Is there any harm in deferring only this portion of the bill to January 1, at
which time these limits come into effect and anyone who violates them is in
violation of the act and subject to whatever penalties are deemed necessary?
Ms. O'Hara: Sections of legislation usually come into effect when they
can be implemented. That is why the provision was written that way.
With respect to the $995, whether that pushes someone over the $1,000 limit
will depend on how much of the $995 is deemed by the Chief Electoral Officer to
be a contribution and how much is for hotel or travel expenses, for example.
Senator Campbell: This fee is not for hotel expenses or any such
thing. In fact, under the Income Tax Act, parties must treat convention fees as
contributions and issue receipts. This fee is just for the convention; it does
not include hotel, meals or anything else.
Ms. O'Hara: The issue is, when will the amount be paid. As you know,
under Bill C-2, if the amount is paid before the bill comes into force, then it
does not have an impact.
Senator Campbell: There seems to be some urgency with regard to this
bill on the part of the government. A person may not know whether they will be a
delegate. This leadership race is going on longer than I would have expected. We
do not know when it will be.
My question is simple. Is there any downside to saying, "We will do it
January 1 in the interests of fair play"? It has been done before with Bill
Ms. O'Hara: As the minister said yesterday, the legislation is about
increasing accountability, trust and confidence in the process. Elements of the
bill can come into effect as soon as they can be implemented. Therefore, as soon
as you can start to impose limits on contributions, which is an important area
of the budget with respect to the democratic electoral process, that element
should come into force.
Senator Campbell: Will Canada go to hell in a hand basket if we do not
do this in three months? There is an idea that a huge amount of money is flowing
to some parties, for whatever reason. I am not trying to trick you in any way.
Do you think that over that three months there will be huge corruption suddenly
in the Canadian government?
In 2003, the Liberals could have done exactly the same thing to the
Conservatives. They did not because they recognized fair play. Some may not
agree that the Liberals practise fair play all the time, but in this case they
If we practise fair play now, will it harm anyone? I believe that the answer
to that is that it will not, that we can put this portion of the act into force
at any time.
Senator Cools: Mr. Chairman, these questions are of a political
nature, which is understandable, and some of those questions are better answered
by the minister.
Senator Campbell: Is this a point of order? If it is, make a point of
order. Otherwise, you are taking up my time.
Senator Cools: I thought I was speaking to the chairman. You can
finish, and I will say it then.
The Chairman: Senator Campbell, you have the floor for your second
Senator Campbell: The second question is with regard to the conflict
of interest and ethics commissioner. Would this person act on behalf of the
Parliament and the Senate separately? Either the Senate or Parliament would ask
the commissioner to investigate. Is that correct?
Mr. Hill: That is correct. There are three substantial roles for the
conflict of interest and ethics commissioner. The first is to administer and
discharge the responsibilities set out under the proposed conflict of interest
act. That act governs public office holders. Included in that group of public
office holders are ministers and parliamentary secretaries. Some ministers, of
course, are members of the Senate. The second responsibility is to discharge
whatever functions the House of Commons may give that officer. The third
function is to discharge whatever functions the Senate may give that officer.
With respect to that second and third function, that same regime, or
architecture, if you will, is currently in place. In other words, the Ethics
Commissioner today wears two hats. The commissioner discharges the
responsibilities under the Code for Public Office Holders, as well as those
responsibilities given by the House of Commons pursuant to the Standing Orders
of the House of Commons.
What we have done here is to merge the third function into the same officer.
I point out that the substantive rules the commissioner will apply in respect of
senators are whatever rules the Senate determines to be appropriate.
Senator Campbell: I apologize for this, but last night, Minister Baird
said that the only two people in the Senate who would be affected by this would
be ministers. That would be Senator Fortier and Senator LeBreton. I may have
misunderstood, but essentially, Minister Baird said only these two people will
be affected in the Senate.
I do not understand how that is possible, because it sounds as though you
want to have us covered by the same conflict of interest and ethics commissioner
— one person.
Mr. Hill: Insofar as the proposed conflict of interest act applies to
public office holders, Minister Baird is correct in saying that only two public
office holders are also currently senators, and you have referred to them. The
substantive obligations in the conflict of interest act will apply to those two
senators currently and any other senators who might be members of the cabinet in
Insofar as the mandate of the commissioner includes the responsibilities
given to that commissioner by the Senate, then all senators will be subject to
that commissioner's jurisdiction, if you will, but the substantive rules are for
the Senate to determine. They are not found here in the act.
Senator Campbell: You are essentially combining two positions that are
there now into one?
Mr. Hill: That is essentially correct.
Senator Campbell: Thank you, Mr. Hill.
Senator Joyal: Point of order, Mr. Chairman. I see many members who
want to question the witnesses, and, of course, we are bound by an agenda today
and tomorrow morning. If the honourable senators do not have the time to
adequately have their questions answered, we can call the witnesses back to
testify when we resume sitting in the fall.
I would not like to rush to finish in 20 minutes, and then say, "Goodbye, we
have had a review, that is enough. We are ready to go." That is not the way the
Senate likes to proceed. If there is no more time for the other senators on your
list, keep those names, and when the witnesses are called to come back, we can
question them then.
The Chairman: Thank you for your intervention.
Senator Cools: It is customary that both the minister and the
departmental representatives appear at the beginning, and then return. It is
only recently that an element of, perhaps, slackness has crept into the system,
but they are supposed to come at least twice on the study of any bill.
The Chairman: Senator Baker, you have the floor.
Senator Baker: I have two questions, and they relate to the wording in
the presentation here today. One reference is to page 10 of the presentation in
which Ms. O'Hara pointed out that the act creates a new conflict of interest and
ethics commissioner. It then describes the qualifications of the commissioner.
Canadians heard prior to the presentation of this act and these particular
sections of the act that this person would have judicial experience. Judicial
experience is clearly recognizable as somebody who was formerly a judge, as was
Senator Andreychuk, or somebody of great legal knowledge, such as our chair,
Senator Oliver, who was a university professor of law for many years, but the
position was certainly restricted to somebody who had judicial experience.
Let me ask the witnesses: At what point was the qualification "or
quasi-judicial experience" added, keeping in mind that almost every position of
administrative decision-making is recognized as being quasi-judicial, especially
that of a cabinet minister?
The Chairman: Last evening, the minister indicated that some of the
language is one of the things he was promoting, and that is on our record, but,
Mr. Stringham, did you want to respond?
Mr. Stringham: It is true that it is broader than a pool of former
judges that is anticipated, yes. It is also provided that a commissioner could
be a former member of a federal or provincial board, commission or tribunal, or,
additionally, could be a former Senate ethics officer or ethics commissioner.
Senator Cools: But not a former senator.
Senator Baker: The reason I ask the question is because, under the
former act, it would have been ludicrous to have, for example, a political hack
of a political party appointed as the commissioner, or somebody who is
recognized as being in and out of cabinet in a former administration or the
present administration who is doing the appointing.
When you look at the law in Canada, a great many decisions are made every
year relating to the quasi-judicial role of a cabinet minister and the decisions
they make. Those decisions are described as being administrative law decisions,
but their quasi-judicial role as cabinet ministers has been clearly spelled out
in many adjudications at all levels of court. Certainly, the most recognized
person who fulfils a quasi-judicial role would be a cabinet minister.
I ask you, then: Do you think that perhaps that is why this wording is
included, so that a cabinet minister could be appointed to the position? I
suppose you do not want to comment on that. Perhaps that is unfair. Mr.
Chairman, is that an unfair question?
The Chairman: No, perhaps they are prepared to answer.
Senator Joyal: The former leader of the NDP was considered to be a
Mr. Hill: We can review that question as to whether a minister, given
the issues that you have raised, senator, would fall within the definition of
clause 81(2) (b). My understanding is, that was not the intention. We had
an occasion to review the provincial regimes in assessing the changes that
needed to be made to our regime and bring it into a statutory form.
While we noted that only one province expressly requires any specific
qualification for the provincial commissioners — only one province requires that
the commissioner be a judge — as a practical matter, most provinces and
territories have, in fact, appointed either judges or persons who have extensive
experience as members or chairs of various administrative tribunals. We were
trying to capture here that practice and that policy goal. I note your point,
and we can look at it.
Senator Baker: I have no difficulty recognizing that what you say is
correct, but it is strange that one would say in legislation that somebody
qualifies if they have quasi-judicial experience. I do not know if it would be
possible to further define what that quasi-judicial experience would be. Can you
think of any other example where the word "quasi-judicial" was used and then
there was a list of persons who qualified under that description?
Mr. Hill: The term "quasi-judicial," although used colloquially to
describe the second pool of eligible commissioners, is not in fact a term that
appears in the legislation itself. We have provided for a former member of a
federal or provincial board, commission or tribunal being eligible. Beyond that,
we have set out some specific criteria, namely demonstrated experience in
conflict of interest, financial arrangements, professional regulation and
discipline or ethics. Those criteria would have the effect of limiting the pool.
Compared to the current regime, without a doubt the group of eligible persons
who can assume the office is narrower than what is currently permissible under
Senator Baker: Let me follow on, then, with the words used in the
presentation on page 4. The question relates to increasing the limitation period
of offences to five years from when the commissioner becomes aware of the facts.
I put this question specifically, if permitted, to Mr. Stringham, simply because
here we have a case where the limitation period is extended to five years from
when the commissioner becomes aware of the facts, keeping in mind that under the
Criminal Code for summary conviction offence, the limitation period is six
months. Certain legislation in Canada, such as the Environmental Protection Act
and the Fisheries Act, says the limitation period that an indictment can be laid
is a year in one case and two years in the other from the moment the minister
becomes aware of the facts.
I ask Mr. Stringham, because Mr. Stringham is well known for a case tried in
the early 1990s, in which he was the lawyer representing the Government of
Canada. They were arguing about a four-day period and whether this period came
in under the definition of when something was filed under the Income Tax Act for
excise tax. Mr. Stringham lost the case. However, he was representing the
government, so I think he was sympathetic to the person applying for the
exemption. There, the case was a four-day period.
I do not know if there is any other legislation in this country today that
gives such a long period of time — a limitation period of five years from the
time the commissioner becomes aware of the offence. I notice that, in your
presentation, the Ms. O'Hara said "but no later than 10 years after the offence
was committed." However, to simply become aware of an offence at the end of 10
years and then have a 5-year period to determine whether or not a charge will be
laid seems ridiculous given that elections are held every three or four years
and the limitation period for an offence could cover four or five elections.
The Chairman: Mr. Stringham is dying to respond.
Mr. Stringham: It was not my sympathies, of course; it was the court's
First, with respect to the 5- and 10-year window, let me clarify something
for committee members. The 10-year window is an absolute window, so if a
prosecution does not occur within the 10-year window, the window does not extend
for another five years, if you will. If you discover the offence as of the last
day, you have to prosecute then. You do not have another five years after you
have discovered it to extend your ability to prosecute.
Senator Baker: But it is to lay the charge, to lay the indictment, to
make the counts presentable to the person who has allegedly committed the
Mr. Stringham: If you do not lay the charge within the 10-year
absolute window, you are out of luck. It is an absolute bar.
I apologize, Mr. Chairman; I have forgotten the senator's second question.
Senator Baker: I have too.
Mr. Stringham: There was a second part to that.
Senator Baker: I thought you would give a reason for losing the case
before the court. You did an excellent job, but it was four days. I accept the
witness's answer to the question, Mr. Chairman.
Senator Ringuette: In regards to the procurement auditor created by
this bill, and speaking to your statement of values and transparency, et cetera,
why does that person not report to both houses of Parliament, just like the new
position you created in regard to the independent parliamentary budget authority
under the Parliament of Canada Act? From my perception, if you create a position
of procurement auditor so there will be greater transparency, the position
should report not to the minister but to Parliament directly. That person should
report on a quarterly basis to the committee of the House of Commons on
estimates and to the Standing Senate Committee on National Finance, so there is
greater transparency and accountability on these issues. I do not see why this
person is in this bill at all if the position reports only to the minister. No
accountability and transparency is brought to the process if the position does
not report directly to Parliament.
Ms. O'Hara: The view was that the objective of transparency and
accountability would be achieved through a process of the procurement auditor
reporting to the minister, submitting reports to the minister and then, as the
legislation requires, having the minister table the reports laid before each
House of Parliament within 15 days.
Senator Ringuette: I am sorry, but I am not of that view. I think
there are many inconsistencies in this bill, and this is one. I agree with the
creation of the independent parliamentary budget authority to help both houses
have a greater review and perception of budgets. Procurement is another big
department or big expense area of government, and I think that this auditor
should report directly to both houses, just like the Auditor General, Ms.
Fraser. When that is done, then you can talk about creating accountability and
I know it is not easy for you to reply. You can say only that since you have
drafted this legislation, that was your instruction. Who will appoint this
procurement auditor and who will appoint the independent budget authority?
Ms. O'Hara: We were not directly involved in this section of the
legislation. I will try to glance at it quickly. The procurement auditor is
appointed by the Governor-in-Council.
Senator Ringuette: Is that the Prime Minister?
Ms. O'Hara: It is a Governor-in-Council appointment.
Senator Ringuette: Is that for the procurement auditor?
Ms. O'Hara: Yes, it is.
Senator Ringuette: The other position was the independent
parliamentary budget authority.
Ms. O'Hara: Again, we did not work on that section.
Senator Ringuette: I am told it is clause 119; it might have changed
with amendments that were passed in the other place.
Ms. O'Hara: It is not clause 119: that is the public service
disclosure protection act. I will try to get that answer before we leave.
Senator Ringuette: I will move to another question.
The Chairman: If this area is not one you specialized in, what witness
or who would be the best person to respond to this question for Senator
Ringuette? Would it be Treasury Board?
Ms. O'Hara: It would be Treasury Board officials. I just found the
clause — it is clause 116 actually — which says that the parliamentary budget
officer is a Governor-in-Council appointment. I believe there is a consultation
though. This is another one where there is consultation.
Senator Ringuette: I did not hear that.
Ms. O'Hara: Looking at clause 116, then clause 79(1)(3), it states:
The Governor in Council may select the Parliamentary Budget Officer from a
list of three names in confidence, through the Leader of the Government in the
House of Commons, by a committee formed and shared by the Parliamentary
Senator Ringuette: In regards to your statement on slide 11, you state
that the appointment process is consistent with other appointment processes of
agents and officers of Parliament. You say the process is a new, uniform process
for appointing agents and officers of Parliament and the process is more
consistent. We have looked at three different appointments and there are three
On page 43, under Conflict of Interest and Ethics Commissioner, subclause
The Governor in Council shall, by commission under the Great Seal, appoint
a Conflict of Interest and Ethics Commissioner after consultation with the
leader of every recognized party in the Senate and House of Commons and
approval of the appointment by resolution of the Senate and House of Commons.
Then, in part 3, of Bill C-2, clause 123, page 100, under Office of the
Director of Public Prosecution, Administrative Transparency and Disclosure of
Wrongdoing, subsection 4(1) states: "The Attorney General shall establish a
selection committee...," and this committee will consist of numerous members
including "a person named by each recognized political party in the House of
Commons." The Senate is not involved at all in this one.
Therefore there is no consistency. No standards are established by this bill
in regards to appointments. Actually, there is a greater and more confusing
number of appointment processes. That is clear. Your comments on page 11 are
My other question is the last one for a second round.
Ms. O'Hara: Two of the positions you described, the director of public
prosecutions and procurement auditor, are not agents of Parliament or officers
of Parliament so they are not captured by page 11.
Senator Ringuette: Even though there is not a standardizing of
appointment in this bill, there is an increase in the different means of
appointment. That is clear. My last question for this first round: Were you
involved in drafting Bill S-4, the Senate tenure of office?
Ms. O'Hara: Yes, I was.
Senator Ringuette: I see that you are the legal arm of the PMO. Then
can you explain —
Ms. O'Hara: No, sorry: Privy Council.
Senator Ringuette: The Privy Council. Yes, I am sorry for that
mistake. Can you explain why there is tenure for returning officers of ten
Ms. O'Hara: I do not know whether Mr. O'Sullivan is more involved with
the returning officers. You want continuity in holding elections over election
periods so you do not want to continually be —
Senator Ringuette: A ten-year term is continuity —
Ms. O'Hara: You would know you are not constant.
Senator Ringuette: I understand the logic that — or should I say, the
system that you brought forth. Thank you.
Senator Cools: Before I move to my questions, I would like to make a
very substantive point, yet again, because I have made it many times. I would
like to raise the abiding concern I have for the fact that the PCO, the
Department of Justice or whoever, places bills before us that are excessively
large, excessively complex and too large and too complex involving too many
issues to be ever really considered one bill. Clearly, the part around the
ethics commissioner here is intended to be its own separate bill so it is clear.
I wonder about the enacting clauses but we can hold that for another day. I
sincerely believe it is not in order and not proper to bring bills that are so
large, cumbersome and detailed that cover so many different issues, so many
questions and so many different orders of complexity. Really, this bill should
be several bills. The practice seems to be increasing: bills are getting larger.
I just make the point.
A famous deputy minister named Elmer Dreidger used to caution against things
like this. He also cautioned that they should draft bills in the Department of
Justice with much consideration to what would happen in the Senate. We have come
a long way from that day. Anyway, I just wanted to make that point and I hope
that it will fall on some ears and not deaf ears.
It is a serious problem when bills of this magnitude come before us and the
government wants them in two weeks. If Senator Day says it took him three days
to read the bill, I think that is a pretty accurate assessment of what it would
take for most people. I think it is wrong, improper and unparliamentary.
I want to bring that problem to my first question. I want to talk about
Parliament a bit. In your introductory testimony, Ms. O'Hara, you said that you
people, in drafting the bill, took careful attention to ensure that the drafting
was consistent with the Charter, its values and so on. I have to tell you the
word "value" is a word that does not have the effect on me that it has on
The term "value," honourable senators, evolved in the language and the
lexicon as a way of avoiding words such as "principles" and "virtues."
Values are relative — your values, my values, their values and someone else's
values. "Values" is not a clear word. When people say Charter values, I have
difficulty understanding what they mean, but that is a story for another day.
To the extent that you were attentive to making sure that the drafting of
Bill C-2 was consistent with the law of the Charter, could you tell us if, in
drafting this bill, you were equally attentive to ensuring that this bill was
consistent with the law of Parliament?
Ms. O'Hara: Yes.
Senator Cools: When you say the law of Parliament, what do you mean?
Do you mean what I mean? Do you mean, for example, what Sir Edward Coke meant
when he described the law of Parliament:
Every court of justice has laws and customs for its direction, some by the
common law, some by the civil and cannon law, some by peculiar laws and
customs, so the high court of Parliament hath also its own peculiar law.
Are we talking about the same thing?
Ms. O'Hara: What I meant was we were intending that the law is drafted
in a way to be respectful of the role of the House and the Senate, and is
respectful of parliamentary privilege, for example.
Senator Cools: I was talking about something quite different.
Parliamentary privileges are one aspect of the law of Parliament — and it is a
huge subject matter, probably the most understudied area of law.
For example, if we were to refer back to Senator Baker's question, when he
says that ministers have quasi-judicial powers, I would say he is wrong;
ministers have judicial powers. I would say that senators are judges as well,
that senators have judicial powers. We must have judicial powers; we create
The Supreme Court of Canada is an act of the Parliament of Canada. It is a
creature of the Parliament of Canada. I find this particular bill ignores many
aspects of the law of Parliament. I will give you one example.
There is a notion that once the Houses have spoken and their request has
received Royal Assent, that the House should not be asked to change its mind
easily — that the House has spoken at least for the next many years. Yet this
bill, in the conflict of interest and commissioner section, repeals the current
regime that was passed only about a year and a half ago.
Perhaps we could begin there. Perhaps you could tell me how this bill is
consistent with that aspect of the law of Parliament, which essentially upholds
the fact that once Parliament has spoken, it has spoken? Can you tell me what
your legal and constitutional authority is for repealing a section that has
barely come into force? I want your legal and constitutional authority.
Ms. O'Hara: I will defer to my colleagues on the legality. My reaction
is, Parliament speaks and then Parliament often speaks again and amends
legislation, so I am not —
Senator Cools: Not quite, because the issues here are profound.
Parliament spoke loudly in a series of reports that were adopted in respect of a
bill that came before us, which was amended. Then there was a prorogation, I
believe; and then a bill came back and the Senate spoke clearly and said that it
did not want an integrated commissioner with the House of Commons.
I want to know what the legal authority is. If you cannot give me any legal
and constitutional authority, then you have to tell me there is none for it. I
have other questions. That is not the last, but give it a shot, Mr. Stringham.
Mr. Stringham: I have to reiterate what Ms. O'Hara has already said,
that Parliament can speak again. I understand the principle that the senator
advances, but it is possible for Parliament to revisit its decisions within a
short period of time. It may not be common practice but it is possible.
Senator Cools: Everything is possible unless you adopt that position.
You think that after an entire machinery of government has been engaged, Royal
Assent has been given and the Governor General has been called upon by the
Governor-in-Council to make an appointment, that right after that you can turn
around and Parliament can change its mind? I was always taught that Parliament
was like a massive ocean liner and it can be turned only very gradually. This is
not gradual. This is abrupt.
If you cannot answer that question, then I will ask another question, which
comes back to the first question. Who among you was looking after the interests
of the Senate, or of Parliament as a whole, in this drafting? Certainly, it is
obvious that something is wrong with this section of the bill.
Mr. Hill: I believe the honourable senator was directing our attention
to the conflict of interest act. Insofar as that is the case, I can speak to
that issue. Perhaps, I will also touch upon the earlier question about the
proposal before Parliament and, of course, before the Senate.
Senator Cools: For this purpose here, I am dealing with the Senate.
Often, many of these terms or principles are articulated in terms of Parliament,
but since we are now into a situation where the common usage of the word
"Parliament" is the House of Commons, for the purposes of this issue, I mean
the Senate as one of the three constituent parts of Parliament.
Mr. Hill: I will touch upon what is proposed — and it is just that, a
proposal for each House of Parliament to consider.
The proposed conflict of interest legislation is not a substantial reworking
of the conflict of interest regime that will govern senators. To a large extent,
the Parliament of Canada Act remains untouched and in place, insofar as the
Senate is the author of its own rules and insofar as the current Parliament of
Canada Act will provide for an independent officer of Parliament to discharge
whatever functions are given by the Senate to that officer. The one change that
the honourable senator alluded to is the proposal before you that the Senate
ethics officer's current function will be discharged by a single officer.
Senator Cools: It is a massive and mighty change.
Mr. Hill: I am here to say simply, that is the substantive change from
the current regime.
Senator Cools: I am well aware of it. When a bill comes before us
seeking our agreement, it is supposed to be consistent with the principles. If
there were any doubt about the principles around the independence of the Senate,
I would have thought any doubts would have been clarified in the last couple of
years. What I do not understand is how there could have been any doubt. Someone
having assumed that there is doubt has put this before us and in the form of a
bill. What is the legal and constitutional authority for it? That is all. That
is a simple little question.
I have another question.
Mr. Hill: I am not sure that I understood the question but certainly
it will be for this committee and for the Senate to consider the bill in its
entirety, including the proposal before you to bring those functions together.
As I mentioned, the protections included in the 2004 bill are now part of the
Parliament of Canada Act. We have maintained those protections in the bill
before the committee.
Senator Cools: These issues are larger than the clauses of this bill.
They speak to the questions: What is Parliament; what is the House of Commons;
and what is the Senate? What are their respective functions? The fact of the
matter is, this bill was put before the House of Commons. In other words, the
House of Commons was asked to pass judgment, you understand, on what the Senate
did before. My understanding of the Parliament of Canada Act is that if we
honour that law and if we honour the law of the prerogative, then we come up
with good law in the form of good proposed bills. When we do not uphold those
two systems of law acting in concert with the necessary tensions, the result is
bad law. I am hearing that this is not about law but about someone's personal
will or whim, or some individual's personal ideological position. These are
hefty political questions.
Ms. O'Hara: No Parliament can bind future Parliaments. The fact that
the previous Parliament acted —
Senator Joyal: Parliament is bound by the Constitution.
Ms. O'Hara: Of course, and so are we.
Senator Cools: You just told us that you are not bound by the
Constitution of the Senate.
Ms. O'Hara: Of course we are.
Senator Cools: In drafting these bills, we are not upholding and
defending what the Senate is as an institution — an independent part of the
system. You are not defending it.
Ms. O'Hara: We believe that the proposed legislation respects the
independence of the Senate.
Senator Cools: Then you have an odd definition of "independence."
These questions are not proper questions for you but rather for the minister. I
have one other question about the removal.
The Chairman: I will give you time on the second round. Senator Joyal
will begin his questions.
Senator Joyal: I do not want to upstage Senator Cools. If she wants to
conclude, that is fine.
The Chairman: I ask that you begin your question, if you wish.
Senator Joyal: I am ready to go. How much time do we have?
The Chairman: I am giving you the time you need to put your questions
if you are prepared to start now.
Senator Joyal: Mr. Chairman, the committee as a group will decide how
much time we will devote to our witnesses and then we question in seriatim. My
question to you is: When should we adjourn or when are we due to adjourn?
The Chairman: The next witnesses come at 4 p.m. We have to adjourn
before that time for technical reasons. The list began with Senator Day, then
Senator Andreychuk, Senator Campbell, Senator Ringuette, Senator Cools and
Senator Joyal: you are the next in seriatim.
Senator Cools: When we sit while the Senate is sitting, the custom for
many years has been that the committee suspend for a few minutes to allow the
The Chairman: I am aware of that and we intend to do that.
Senator Cools: I am just putting it on the record that you said we
would adjourn for a certain time but we have to give colleagues time to get
their attendance in.
Senator Nolin: Your attendance is registered.
Senator Cools: It is required if the committee is travelling and the
committee is not travelling. I refer only to the customs of many years. Do you
want me to continue?
Senator Joyal: I am ready to speak.
Senator Cools: He seems to prefer you to continue rather than me.
Senator Joyal: That should not be the way it looks to viewers.
Senator Cools: I wanted to ask a question on removal.
Senator Joyal: You are entitled to your time.
Senator Cools: I do not understand what the rush is, Mr. Chairman.
The Chairman: Senator Joyal, you do not wish to go in seriatim. I am
offering you an opportunity to present and ask your questions, if you would,
Senator Joyal: Yes, I am ready to ask questions but I do not want to
upstage Senator Cools. I have to respect that each member has the right to
complete their questions.
The Chairman: Every senator has had 15 minutes to conclude questions.
Senator Cools has had 20 minutes. I am trying to be fair to all senators. I
invite you to put your questions.
Senator Joyal: Senator Cools, would you ask your next question on the
Senator Cools: Did he say that we are adjourning in a few minutes? Are
we sitting tonight? Yes, so we cannot adjourn and we have to suspend. Mr.
Chairman, this issue does not concern the witnesses, in a way, but it is hard to
get answers to these questions. Second reading in the Senate was abbreviated. We
could not get many answers on the floor of the house and questions that were put
to you, Mr. Chairman, you said would have to wait to committee. To my mind the
committee is the opportunity.
The Chairman: I am trying to give all honourable senators the fair
opportunity to put their questions. That is exactly what I am trying to do.
There are two senators today who have had no chance to put questions to the
witnesses from the Privy Council Office. I would invite Senator Joyal followed
by Senator Zimmer to put their questions.
Senator Day: Mr. Chairman, it is pretty clear with several of us
asking to be on a second round that we will need to have the witnesses back a
second time. It is a good idea to allow each senator an opportunity to put at
least some of his or her questions.
Senator Joyal: I want to come back to the underlying principles that
reside over the merger of the two positions of the Senate Ethics Officer and the
Ethics Commissioner in the House of Commons. We have debated it in the Senate on
many occasions: On the motion of the then Leader of the Government in the Senate
on a draft bill; on Bill C-34; and on Bill C-4.
We have heard ample testimony from numerous witnesses appearing before the
Standing Senate Committee on Rules, Procedures and the Rights of Parliament that
studied those two bills and the draft bill of the government on the basis that
the two Houses of Parliament, to function constitutionally, have to be
independent from one another. That is essentially based on the principle of the
Constitution of Canada, which provides that, and I read section 17:
There shall be One Parliament for Canada, consisting of the Queen, an Upper
House styled the Senate, and House of Commons.
Article 18 reads:
The privileges, immunities, and powers to be held, enjoyed, and exercised
by the Senate and by the House of Commons, and by their members thereof
respectively, shall be such as are from time to time defined by Act of the
Parliament of Canada ...
It is clear that each house exercises its own immunities and privileges
insofar as its members are concerned. I do not know if Mr. Stringham was
involved in the Vaid case. I did not see his name in it. I was involved
in it and I did not remember reading him on this. In the Vaid case, it
was clearly stated that those privileges are distinct, and are exercised
When you put into one single head "appointed as an officer" of Parliament,
and an arm of the executive, because officers of Parliament are considered to be
arms of the executive, when you appoint the same officer for the Senate and the
House of Commons, you confuse in the Senate the intervention of the executive
with the legislative independent duty of the Senate. That is where,
conceptually, we have problems to follow you by saying: It is not very
important. It will streamline the interpretation of the code. It will ensure
there is correspondence of opinion, and so forth.
For matters of expediency, we could streamline many of sections of the
Constitution of Canada, especially section 91 and 92, which are at the heart of
the Constitution. It would be easier for the functioning of the country.
However, the systems of government and Parliament are based on those principles.
Those principles are defined and are at the heart of the role and duty of each
branch of Parliament.
When you put one authority over and above those two independent elements of
Parliament, you are not just streamlining expediency and efficiency; you are
offending an important principle of independence, especially when that person is
appointed through an executive Order-in-Council, that is, a branch of the
executive government, to deal with privileges, immunities and powers of
Parliament. We have seen in the last year, in the other place, how Mr. Bernard
Shapiro had a tough time in trying to perform his responsibilities. I do not
want to judge this matter. We just read in the paper what we read.
When something happened in the other place, it immediately triggered the
result in this place. We say this is not the proper way of maintaining the
constitutional duty of each House: that one legislates first and the second
legislates after sober second thought.
When you create an authority over and above us that is in the hands of the
executive government, you offend a fundamental principle in the Constitution.
That is why we cannot follow you. We have debated that ad nauseam. That first
draft bill came from your shop, if I can use an un-parliamentary term. Bill C-34
and Bill C-4 also came from your shop. Each time we have maintained the
integrity of the institutional role and duty of the Senate.
Unless somebody was able to come to me and say, "Well, the present system in
the Senate does not function. It does not meet and serve the ethical standards
in the code of the Senate," I would say we have to review it and review section
18 of the Constitution. As long as we do not review sections 17 and 18 of the
Constitution, we have to abide by them.
I agree with Ms. O'Hara that Parliament can speak again. However, I humbly
say to you that if Parliament speaks on those issues, it will have to speak
through the amending formula, not through a simple act of Parliament, especially
for section 17.
In other words, I understand the objective of the Privy Council Office to
make things expedient and efficient, but as I say, we have to respect the letter
and spirit of the Constitution in so doing. It is not because the Senate does
not want to have an ethics officer. We have one. The Ethics Officer produced a
report last week, and in that report — if I remember, on page 23 — it stated
clearly how the matter of maintaining a committee between the work of the Senate
Ethics Officer and the Ethics Commissioner of the House of Commons has been
addressed in the last year. Nobody has been able to pinpoint any major
How many times will we have to say no to convince you that the system as it
works now is a good system? I was almost tempted to say to my fellow Quebecers:
How many times do Quebecers have to say no in response to the question of
whether they are happy to be Canadian?
We have raised this issue. As I say, we have heard the arguments, but so far
we have not been convinced, either through the Vaid case, where I went to
the Supreme Court to plead those principles, as Mr. Stringham knows, or that I
have misread the Constitution, as many others have done.
Mr. Hill: Senator Joyal has asked a number of questions. I am not sure
I will touch upon them all, but I will attempt to answer those questions that I
kept notes on.
First, to the extent that my remarks suggested that this bill was expedient
or efficient, I do not believe I used those words.
Senator Joyal: The minister used those words last night. We understand
that those are the official arguments given to us by the government. You are the
arms of, to my understanding, the preparation and reasoning behind the proposal.
Mr. Hill: The point I attempted to make was that clearly the minister
has spoken and has articulated a policy rationale for bringing these two
functions together. Our effort has been to fulfill that policy to ensure that
the privileges and traditions of the Senate are in fact respected. We have
attempted to do the same with respect to the privileges and traditions of the
House of Commons.
I am certainly aware that a number of proposals have been brought not before
this particular committee but before the Senate itself, and indeed there has
been debate over time about the perceived merits of a merger of the two
functions. I am aware the proposal was initially by a former government that was
later on amended.
That said, I point out that in 1997 a joint report of the Senate and the
House of Commons, amongst other proposals made in respect of the ethical or
conflict of interest regime for parliamentarians generally, proposed that there
be a single officer. Senator Oliver, of course, is aware of this proposal,
having been involved with it. There has been a proposal now for a number of
years, and reasonable people can have reasonable debate about the merits of it.
In light of the current proposal, I can take you through the bill to ensure
that, insofar as possible, we are protecting the privileges of the Senate.
I believe that Senator Joyal referenced the fact, among others, that the
commissioner is somehow an executive intrusion or an executive officer in the
Senate. To that I simply reply that the current Senate Ethics Officer is
appointed under the same provisions that are before you now in respect of the
conflict of interest commissioner. In other words, it is formally a GIC
appointment but only after the concurrence, currently, of the Senate. We are
retaining that intimate involvement of the Senate in the appointment provisions
that govern the appointment of the conflict of interest and ethics commissioner.
To the extent that there is an issue, I leave it for senators to debate, but
I note that the appointment provision is drawn on the current appointment
Turning to the concerns about the undoubted privileges and immunities of the
Senate, the provisions in the Parliament of Canada Act that the government is
proposing by way of this bill are identical to those provisions in the current
Parliament of Canada Act. In other words, the provisions that currently govern
the Senate Ethics Officer in discharging their functions have been replicated in
their entirety in subclause 86(2) of the conflict of interest act at page 46. To
touch upon these, and I suspect most honourable senators have looked at these,
beginning at the bottom of page 46, clause 86(1) clarifies that the
commissioner, in addition to other duties, shall perform the duties and
functions assigned by the Senate; in subclause 86(2), "these functions are
carried out within the institution of the Senate"; and it goes on to state that
"The Commissioner enjoys the privileges and immunities of the Senate and of its
members in carrying out" its functions under this section.
In subclause 86(3), "The commissioner shall carry out those duties and
functions under the general direction of any committee of the Senate."
Skipping over subclause 86(4), which touches upon a somewhat distinct matter,
subclause 86(5) clarifies that "this section," that is, the section that gives
the commissioner a mandate in respect of senators, "shall not be interpreted as
limiting in any way the powers, privileges, rights and immunities of the Senate
or its members."
Mr. Stringham earlier pointed out to honourable senators the provision that
attempts to limit judicial review brought to the Federal Court, insofar as the
commissioner's functions in respect of senators is concerned.
Those provisions were all in the current act. They were designed at that time
as they are intended today to protect the commissioner and, more importantly, of
course, the independence of the Senate as an institution.
A number of issues were raised by Senator Joyal. I will make one more point
before I take further questions. Indeed, the commissioner as proposed will
discharge three distinct functions: namely, administering the conflict of
interest act for public office-holders, and administering the House regime,
whatever that may be, and the Senate regime, whatever that may be. I will make
the trite observation that Mr. Shapiro as the Ethics Commissioner has worn two
of those hats, to put it colloquially, and has had the challenge and the
function of administering two regimes and having to remind himself about the
differences between the two.
It is conceivable that a competent and well-chosen commissioner could
discharge the third function.
The Chairman: Mr. Stringham, as counsel for the PCO, did you want to
add something to Senator Joyal's question?
Mr. Stringham: I believe the honourable senator made reference to
getting into one's head one regime and another. I point out that we added a
further protection in clause 89 of the bill with respect to the information that
is collected by the commissioner in his or her three capacities. To make it
clear, that personal information that is collected by the commissioner is to be
used only for the purpose for which it was collected. Then subclause 89(2)
clarifies that to say that the purpose for which it is collected is determined
by which section the commissioner is acting under, whether it is section 86, 87
or 88. The notion here is that information collected with respect to senators
does not bleed over into a regime with respect to public office-holders, for
example, and vice versa.
The Chairman: Does that mean that private information collected by a
commissioner could be subpoenaed by the superior court of a province?
Mr. Stringham: No, that is not what I was referring to. I was
referring rather to the fact that the commissioner, in using information that
she or he collects, would be able to use it only for the purpose for which it
was collected. If the commissioner was acting pursuant to the Senate ethics
code, for example, getting disclosure statements, et cetera, that information
could be used only for the purpose of the Senate ethics code and the Senate
disciplining its own members, That information could not then be transported,
perhaps, to the conflict of interest act regime with respect to public
office-holders, to the extent that one person might be subject to both regimes.
The Chairman: But by the joinder as you explained earlier, and you
gave us the limitation in the act with respect to the Federal Court, you said it
does not cover the issue off with respect to superior courts in provinces. Does
it mean, therefore, that with this bill, private information collected by the
commissioner could be subpoenaed?
Mr. Stringham: With respect, I think what I said, and I apologize if I
in any way misled the committee, is that the commissioner who has the
information with respect to collecting it, for example, under the Senate ethics
code, has all the rights and privileges of the Senate, which includes privileges
with respect to subpoena by the court. The provision in clause 86, which says
that you have conferred upon the commissioner those rights with respect to the
duties that the commissioner undertakes for the Senate, would provide the
protection, unless of course the jurisprudence changes so that the view of the
Supreme Court expressed in Vaid with respect to those categories of
privilege that have been identified previously in the jurisprudence, which
includes discipline internal to the Senate, to the House, to legislative
assemblies, is immune from judicial review.
Senator Joyal: Many elements flow from your presentation. The first
one is that you devise a system that seems to be rational but you ignore totally
the application or implementation of it. The very moment that you have one
ethics commissioner appointed by the Prime Minister, and that this
commissioner's responsibility and duty is with the 307 members — or 308 or 309,
according to the census in the other place — plus the 3,200 members and 105
senators, you create a dynamic in the parliamentary system. Those dynamics are
simple. The weight of influence and the systemic dynamics work contrary to the
principle of independence of the Senate. As I say, that hurts the constitutional
structure of Canada. The way you think about the system is an abstract concept
that does not meet the test of reality.
What happens to the Senate when there is a problem in the other place, as
happened last year, where on two occasions the commissioner was challenged? The
Senate is called into the fallout of that decision without having anything with
which to reproach the commissioner. What happened to the definition of the code?
The two Houses are totally different in terms of composition, role, and input
into legislation. There are at least 10 fundamental, constitutional differences
between the two Houses.
At the very moment that you put the Senate in the same bag as the House and
the 3,000 more public office-holders, you create a situation where the very
principles on which this house can discharge its constitutional duty is
impaired. Reflect on the last year of operation in the other place. Mr. Shapiro
was selected with the overall, unanimous approval of all the MPs. Check the
results after one year. Thank God we have been spared that. The system has
remained unpoliticized in the Senate. However, if the system fails in the other
place, it fails automatically in the Senate. I do not think that is a sound
principle in terms of separation of a bicameral system that works on the basis
of the principles enshrined in the preamble of the Constitution of Canada.
When you rethink the system and try to make it simpler and more efficient,
you instill into the system a different dynamic. You instill what Mr. Zussman
called in his testimony in the other place, "the law of the unintended
consequences." It exists in the Constitution as it exists in any other
institution, which is, with an objective that seems to be rational you put into
place a mechanism that changes the overall objective and denatures the objective
you want to pursue.
I respectfully submit, if there is anything that we can learn from the
operation of last year, it is that the provisions you propose in the bill do not
suffice to satisfy the constitutional principles of the system, especially when
you put in clauses 44 and 45 of the bill and impose a duty to report when you
have reasonable grounds to understand or be informed that some of the public
office holders or former public office holders might have done something wrong.
That is legislated. That confuses the role of the commissioner in relation to
applying the public code with the role of the commissioner applying the
privileges of each chamber. That issue is difficult to reconcile. I am sure Mr.
Stringham, who knows the difficulty of the law of privileges and parliamentary
system, can understand how that would create a difficult situation, and sooner
than later. The proof is in what we have seen in the last year.
The proposal that you put, and the way you try to put some parameters here
and there, do not hold the flood of substantial consequences that will flow from
Ms. O'Hara: I defer to the constitutional experts. I would say that
the intention is not to have the implications or not to have unintended
consequences that the honourable senator describes. As Mr. Stringham has
described, the legislation has been drafted in such a way that it will not have
those kinds of consequences for the Senate.
Senator Joyal: We will have an opportunity, Mr. Chairman, to listen to
our legal adviser. I know that the legal adviser of the other place made
suggestions and comments about one of the key sections of the original bill that
provided for choosing those public officers by secret ballot. He recommended
that, in his opinion, it was unconstitutional.
The Chairman: It was amended.
Senator Joyal: It was amended, but the point is that if such a bill,
drafted in six weeks, comes in conflict with such an important point of the
Constitution of Canada, some other details might have fallen through the cracks.
As a person with a legal background, when I have a bill that seems to fail on
such a simple point of section 49 of the Constitution, I wonder who has tested
the other sections of the Constitution that are involved in it. This bill had
retroactivity. That seems to me to be a fundamental principle of natural
justice, as you know. It was partly amended, but this is another constitutional
test that the bill did not meet. Fortunately, some of it was caught in the other
place and amended, but other points in this bill need to be addressed
The Chairman: Senator Joyal, I have to interrupt you at this point
because we have another group of witnesses to hear from this afternoon. As you
suggested earlier, the subcommittee on agenda and procedure of this committee,
the Standing Senate Committee on Legal and Constitutional Affairs, is vested
with the authority to choose witnesses, to recommend them to the committee and
to invite witnesses to come back again. It is clear that today a number of
senators, such as Senator Zimmer and myself, have not had an opportunity to
question witnesses. You have not had a chance to finish and even get answers to
some of the questions you put.
We would like to say thank you to the witnesses for coming today. We will
call upon you before we complete our examination of this bill. There is a great
advantage to that because Senator Joyal has been able to lay before you a
fundamental constitutional matter that I would like you to give serious
consideration to, so when you come back you will be prepared to answer that and
other constitutional questions that will be put to you.
Senator Day: Perhaps on that point, Mr. Chairman, the witnesses will
propose some amendments when they return.
The Chairman: Honourable senators, I am pleased to welcome our next
witnesses, two experts in the field of public governance who scarcely need any
introduction to us at all, David Zussman and Arthur Kroeger.
Professor David Zussman is the Stephen Jarislowsky Chair in Public Sector
Management at the University of Ottawa and also a part-time commissioner of the
Public Service Commission of Canada. Mr. Zussman has had a varied career in
government, the private sector and in academia. He is a recognized authority on
public sector management, public administration and public policy. He has been
closely involved in some of the most exciting developments in Canada in public
sector governance and alternative service delivery over the past 15 years. He
has also had a number of distinguished teaching positions and is the author of
various books and articles on public management and public policy making in
Arthur Kroeger has had a long and very distinguished career in the federal
public service. He first became a public servant in 1958 when he joined the
Department of External Affairs. In 1974, he was appointed Deputy Minister of
Indian and Northern Affairs. He then served as deputy minister in four other
departments and earned the nickname "dean of deputy ministers" for both his
experience and the skill with which he accomplished his duties.
Since leaving government in 1992, Mr. Kroeger has held a number of academic
posts and was Chancellor of Carleton University from 1993 to 2002. Since 1999,
he has been chair, of Canadian Policy Research Networks.
Arthur Kroeger, Chair, Canadian Policy Networks, as an individual:
Thank you for the invitation to be here. Mr. Zussman and I will do our best to
assist the committee in any way we can. We will both be brief in our opening
The bill before you represents the third of three attempts to deal with
governance issues in the past two and one half years since the sponsorship
affair became public. To give you a bit of perspective, as soon as the Martin
government took office, the then then-President of the Treasury Board, Mr. Reg
Alcock, launched a number of what he called "management improvements," which
essentially increased the procedures, rules and requirements that the public
service had to observe. He announced, in his first 18 months, 153 measures that
he regarded as management improvements and then, on the eve of Mr. Gomery's
report, announced another 80. There were two or three problems, about which I
will not go into in great detail because it is past history, but it is one of
the ways you can deal with governance issues.
Mr. Alcock focused on the public service, although most observers, certainly
including Justice Gomery, agreed that the sponsorship problem had arisen at the
political level and that only a very small number of public servants had been
involved. Secondly, the multiplication of rules and regulations made it more
difficult for the public to deal with government and it made it more difficult
for public servants to function within government. That was the first attempt.
The second approach to improving governance came from Justice Gomery in his
February 1 report. He arrived at the opposite conclusion to that of Mr. Alcock.
Mr. Alcock had said, as officials were the problem, we will put in lots of
regulations to control what they do. Justice Gomery said that officials are not
the problem but the solution. Justice Gomery's view, in effect, was that the
sponsorship affair had come about because ministers were able to exercise
unfettered authority, and that the way to prevent it from happening again was to
withdraw a lot of that authority, to put it in the hands of officials and leave
ministers with just a policy role. In that way, the running of the government
without much political guidance would be left with officials.
There are all kinds of problems with this report. Most people with any
experience in government regard it as very theoretical and very detached from
how government and politics work in Canada. Interestingly enough, every serving
official and past official I ever talked to about it was opposed to giving
officials more power at the expense of ministers. Maybe that tells you that
being an official for a long time makes you a good democrat; I do not know.
However, it is the case that officials regard this as a highly undesirable way
to proceed. They believe that ministers should continue to have undivided
accountability to Parliament.
The measure before you now is the third of three attempts to focus on
governance problems as they have been identified and as they have emerged in the
past two and one half years. I would say that, although this one has some
problem areas, it is the best of the three. First, it addresses a great many of
its measures to the political level, which I think is the right place to focus
because of the history of the sponsorship affair. Second, it includes a number
of measures to improve governance that we have seen in the past decade or so and
moves them to the next level. It avoids multiplying rules that would make
government harder for the public to deal with. There are a variety of measures
of that kind so, in that sense, it has a number of pluses. It also has some
minuses that Mr. Zussman will be pleased to discuss, if you wish. Finally, I am
a little puzzled that it omits one thing that Mr. Gomery recommended that most
people, including myself, thought was a good idea. Justice Gomery recommended
that parliamentarians, parliamentary committees and the Library of Parliament be
given more resources, which in Canada, by most international standards, are
extremely thin. If you want to make Parliament more effective, it seemed to me
and to some others, that providing Parliament with more resources to enable it
to do a more thorough job, was a good way to proceed. I was puzzled as to why,
with the number of comprehensive measure in the legislation, more resources for
Parliament did not make it. Perhaps members of the committee have information
about that that I do not.
David R. Zussman, Jarislowsky Chair in Public Sector Management,
University of Ottawa, as an individual: Thank you for the invitation to be
here this afternoon. I will touch on a couple of things that Mr. Kroeger did
not. I will reinforce the important point that this bill represents a massive
rethinking of the governance structure in Canada. As you know, the 250-page
document under consideration amends almost 100 pieces of federal legislation and
creates a host of new agencies, organizations and positions, and a whole series
of reporting structures that are different than we have experienced in the past.
The Prime Minister has actually set the right tone regarding this legislation
by saying that it has two principal objectives. It is through the lens of those
two objectives that the legislation should be considered. One objective is to
see whether these new measures will, in fact, increase accountability in Canada
and, generally speaking, in the Government of Canada. The second major objective
is whether it restores trust in public institutions. The second point is as
important as the first, because we are aware of the issues of declining trust in
institutions, both in Canada and around the world, and how important it is for
us to get back to the levels of trust that we enjoyed some years ago.
One of the comments I would like to make about the legislation that Mr.
Kroeger touched on is the fact that an enormous amount of governance reform has
taken place in Canada in the last ten years, and particularly, in the last two
years. It is important to point out, as did Mr. Kroeger, that Mr. Alcock alone
introduced more than 200 new performance improvements that are now in place as
this legislation awaits your consideration. It is very important when you
consider this bill to consider it against some of the changes that are already
in place and not to see many of these changes as particularly new when in fact,
in some ways they are additional to improvements already in place. The interplay
between what is in place today and what is being introduced will be extremely
important for the reasons that Senator Joyal mentioned a few minutes ago. The
honourable senator mentioned the unintended consequences of putting new laws in
place that have good intentions, but the intentions may play out in
unpredictable sorts of ways if they are not measured against other things
already in place.
My last point is that, to a large extent, this legislation is about new sets
of rules and players; rules of engagement, if you like. However, there is not
very much consideration given to the administrative consequences of these new
rules, and this is the application of the rules and the sanctions that will be
applied in the application of these new provisions. The balancing of rules,
application and sanctions, will be important for our discussion this afternoon.
I will stop there and look forward to your questions.
The Chairman: Professor Zussman is it your opinion that this bill
will, in fact, increase accountability? Do you think this bill has the potential
to restore public trust?
Mr. Zussman: We are adding a whole series of new organizations that
will certainly report to Parliament, and will therefore give Canadians greater
access and a greater measure of assurance that their tax dollars and government
activities are being held accountable.
My observation, though, and this touches on the point made by Mr. Kroeger, is
there is already a huge amount of information fed to Parliament, both the House
of Commons and the Senate, that is not, in fact, used in any meaningful way. I
made the comment when I appeared before the House of Commons that, for instance,
there are 91 reports submitted every year on the results of each and every major
program and activity in the federal government. To my knowledge, these reports
are never reviewed in any serious way. The estimates of the Government of Canada
are spending which, of course, is clearly the most important activity that
Parliament would touch on an annual basis. The estimates receive hardly any real
consideration and scrutiny.
Will this improve accountability? Sure, it can, but we already have a series
of existing institutions that need to be supported in the same degree.
Otherwise, senators, you might be disappointed with having passed the
legislation to find a lot of new reporting structure just stacking up behind
already-existing information that does not get proper scrutiny.
As for restoring trust, that is a long-term issue, and certainly, more public
disclosure adds to greater confidence in public institutions, and for that
reason alone, this bill will probably move in the right direction.
Senator Day: I hope that this is the beginning of a number of sessions
we will have with respect to helping this committee work its way through this
very important piece of legislation. We have been working hard over the last
three days. I am sure you know that we received this proposed legislation last
Wednesday, we have done first and second reading, and this is our second day of
hearings. We recognize the importance of this bill and the importance that the
current government puts to this bill.
We would like to, with your help and the help of others, improve upon the
work that will have an impact for a long time that was put together, we are
told, in six weeks.
I will tell you, first of all, my five priorities, and I am sure that each of
us has five priorities. I would then like to invite you to comment on any of
them, or Mr. Kroeger mentioned that you have some points where you think this
bill could be improved. It would be a good place to start if you could talk
about where it could be improved.
A number of us have heard many concerns about the reduction in political
financing, the individual contribution from $5,000 to $1,000. We have heard
concerns regarding the many new positions that are being created, the agencies,
and the agents, sometimes referred to as the abilities of Parliament. The third
item is the lobbying act and the very extensive reporting requirements found
within it, and the impact that it will have on public policy development and the
interplay between the public and senior government officials. That could be very
serious. The creation of a single ethics officer is the fourth point that is of
great concern to us as it relates to the independence of the Senate. Finally, I
am concerned with the creation of the director of public prosecutions. I have
given you five concerns and I must add one more. I am concerned with the new
position proposed in the bill, the accounting officer.
I invite you to comment on any one of those concerns, and I do not want to
take up all of the time. If you make note of those and comment later, that is
fine. Your comments will help us with some of the areas where you believe this
legislation falls short that we can concentrate on over our break and get back
at in the fall.
Mr. Kroeger: If the legislation had been written by a government with
more experience in office, it may not have some items in it that it does, which
I will explain in a minute. There is the other problem that some of the contents
of legislation were, I think, developed during an election campaign, and there
is always a risk of a bit of overkill for the sake of achieving a public effect
during an electoral contest, which is readily understandable. The director of
public prosecutions, to which you refer, is a good example of measures where the
bill goes fairly far and adds some items. I am not clear as to what problem it
intends to solve. You have a deputy minister of justice; you have an assistant
deputy minister, whose function is prosecutions. Virtually, all prosecution is
handled under the Criminal Code and administered by the provinces. I am puzzled
as to why the position was necessary, and, in particular, if you already have a
deputy minister of justice, why would you create a second deputy minister
position to manage a function that, at least viewed from outside, seems to be
rather limited. That is an example where it might have come out differently had
people of more experience been directly involved in writing the legislation.
There may be a problem there that I am not aware of, but I was puzzled by that
A second example is the procurement auditor. Certainly, there has been great
controversy about procurement in the past few years over the sponsorship affair.
In the sponsorship affair, again what happened was that procurement regulations
were by-passed. It was not that the regulations and the system were ineffective.
The Auditor General has said that Public Works and Government Services had a
sophisticated and effective regime for the management of procurement. It is also
a very transparent regime. Public Works does not very often get access to
information requests because practically everything everyone would want to know
is already public. This dates from reforms made approximately 20 years ago.
Again, I am a little puzzled as to what the procurement auditor would do. You
can always find something for a new official to do, but the question is whether
it is important enough to have that function carried out to warrant the creation
of another position and perhaps another set of requirements.
I do not want to go on too long, Mr. Chairman, but those are illustrations of
areas where the bill perhaps goes a little further than is really necessary. The
bill has a lot of things in it that in my view will improve governance in
Canada, but there are some places where it may go further than is really
The Chairman: His third point was lobbying and some of the reporting
requirements. As a deputy minister, we would love to hear some of your views on
the new reporting requirements for lobbyists when they visit a deputy minister
and so on.
Mr. Kroeger: Again, I am not sure what problem we are trying to solve.
Certainly there are several hundred lobbying firms in Ottawa. The bill itself
acknowledges that lobbying is actually a valid and important function, because
people outside government are puzzled about how to deal with this place.
Lobbyists can assist members of the public in finding their way through the
maze. Have we had lobbying scandals? I cannot think of anything of a major
character. There have been controversies about lobbying. I would contrast this
with the United States, where people are going to prison currently because of
some of their lobbying activities where there were abuses. It is not clear to me
there are abuses here in Canada.
There may be some problems with these reporting requirements. The business
community is concerned that if they have to go public with every meeting they
have with a government official, then that could tip off their commercial
competition and put them at some kind of a disadvantage.
Another part that I am not sure about, but I have read, and maybe it was the
Information Commissioner who proposed this, that every time an official made a
decision or had a meeting, the official has to produce a record of it. In my
experience, deputy ministers work between 65 and 70 hours a week and have maybe
15 or 20 meetings a day. If, after every meeting, the deputy minister has to sit
down and dictate a memo about who he or she saw and what it was about and what
the decision was, he or she will be working a lot more than 70 hours a work. I
hope that is not in the bill or does not arise as part of the attempts to
improve governance in Canada. It seems to me that is an example of possible
I do not think I should comment on the question of whether the Senate or the
House should have the same ethics officer or not. That is a matter very much
between the two Houses, and I hesitate to venture into an area that pertains
very much to parliamentarians. I will, however, make a last comment about the
accounting officer, which I can elaborate on after a bit.
Professor Ned Franks of Queen's University and I have disagreed in public
print for a long time about the introduction of the accounting officer into
Canada. This bill introduces the accounting officer concept so skilfully and
with exactly the right provisions that Professor Franks and I now agree with
Senator Day: Which one of you wrote it?
Mr. Kroeger: I will give Wayne Wouters, the Secretary of the Treasury
Board, the credit for having come up with that wonderful bridging formula.
Senator Day: Mr. Chairman, I would hear from Mr. Zussman on those
points and hear where he sees some of the weaknesses in the bill where we can
Mr. Zussman: I do not have much to add to Mr. Kroeger's reaction,
because it very much mirrors my own views. He did not touch on the political
financing question, but let me step back a bit by saying I too have been
pondering what problems are being addressed by some of these issues that you are
I have the same view about the director of public prosecutions and
procurement auditors. In each case, we are creating new positions at
considerable cost to the taxpayers of Canada, so we have to ask ourselves simply
will these costs produce results that will make a tangible difference or a
marginal difference over the information and analysis that we already have. Just
think as senators how you will deal with the reports from all these eight new
agencies that are being created under this legislation alone, in addition to the
additional powers that we have given, for instance, the Auditor General, who
will now have to report on a whole host of new things that she has not been
doing in the past, as well as the Treasury Board and other central agencies as
well. You have to satisfy yourself that you will use this information in a way
that will give us different sets of results.
Since in many instances we are struggling with why it is that we are doing
this, it is hard to comment on how effective it will be in the long term. As Mr.
Kroeger has pointed out on the issue of procurement, we have made some dramatic
changes in the federal government on procurement issues over the last two or
three years that have materially changed the way in which it functions, to a
large extent because everything is now on the public record. Disappointed
bidders can see where they ranked, and they have a proper appeals process
already in place. These are another set of appeals over and above the current
set of appeals, for example.
Mr. Kroeger did not touch on the political financing question, and I do not
feel competent to speak to it except to say that this represents a dramatic
change in the way in which politics will be done in Canada today. We have to ask
what we are trying to do. Will we have more public money in the financing of
political parties in Canada, much like we did with the last change that was done
by the previous government in terms of electoral financing? With the limits
being placed on all sorts of activities, it is not likely under the current
system that our political parties will be able to survive simply on the basis of
these kinds of donations. I do not know enough about it, frankly, in real terms,
but does that mean that the parties will be less visible than they have been in
the past, or does it mean that the public will be asked to pay the difference
between what parties can raise through this proposed scheme and what they have
in the past. I do not know, and of course the government position on this is
fairly silent. What is the purpose of it?
As for the lobbying registration, the Lobbyist Registration Act has worked
fairly well and effectively in Canada in the last 10 to 15 years. I have been
teaching a course on government business relations at the graduate level for at
least 15 years, and my students and I spend a lot of time monitoring the
activities of various firms. I think I can say we have a good sense of what
people are up to and who they represent. There is no question that some of the
requirements will force confidentiality issues out to the fore, an issue about
which I am sure you will hear much more. Whether you want to allow commercial
confidentiality to remain confidential is a very important commercial question
you will be asked to consider, because many companies will probably not be able
to do business in Canada if they are forced to make public some of their
commercial activities or potential commercial activities. Again, it is all
do-able. What are we trying to fix by asking for these new requirements that go
well beyond what most other countries currently ask of private sector
Senator Day: Mr. Zussman, you have already commented on the fact that
there is nothing in the bill that says that there should be more resources for
parliamentarians to do that, and I think we will work on that another day. Given
that Mr. Justice Gomery said he felt the primary failure was the failure by
parliamentarians to properly hold the executive to account I am wondering if
your view is that the creation of all these new agencies, officers,
commissioners, will help the parliamentarians or will it complicate things even
more, and make our jobs that much more difficult?
Mr. Zussman: Right now I would say members of Parliament are not able
to take advantage of the information that they have today. Unless more resources
are given to the House, either through committees or through the offices of
individual members of Parliament — and I think there are all sorts of models you
can work on — we will not see any material difference after this debate and the
passage of this particular bill because they will not be able to process all of
this new information.
You can have this discussion later but it is important that you have this
discussion at the same time as you consider this bill. It has to go
hand-in-hand. You have to find a way for parliamentarians to use the
information. Parliamentarians also have to learn how to work with this
information and to understand that their primary responsibility is to hold the
government to account. That has often been lost in Parliament over the years. As
fundamental as the principle is, we sometimes forget it and do not take
advantage of the time parliamentarians have to consider much of the information
that will be presented under this or other pieces of legislation.
Senator Nolin: I would like to come back to where we left off with
Senator Day. You were talking about parliamentarians' capability to work
efficiently and said that the bill does not provide for any budget increase. You
must be aware that it is not this kind of a bill that will allow for increasing
MPs' budgets. I wanted that matter cleared up.
I am certain that my colleagues from Internal Economy, in the House or in the
Senate, have taken note of your comments. That is where the budgets for MPs and
senators are established. I would like to deal with this new officer of
Parliament to be called "Parliamentary Budget Officer." Is that some element
of a solution to the issue of increasing parliamentarians' efficiency in their
duty to question the activity or activities of the executive? It is an entire
administrative machine that will have to be tagged on to that individual and to
that position, because it is not just one individual.
There will be a research structure in support of this officer. To what extent
can we draw a parallel with what exists in the United States with regard to the
study of public accounts? Are we going to have a parliamentary tool similar to
that of the American Congress?
Mr. Kroeger: It would be useful to have a second opinion with regard
to these fiscal, economic and financial management questions. We could always
find commentary on this in the financial pages of our newspapers, but the
advantage of having a parliamentary budget officer is that this person will have
access to the same data and the same numbers as the minister of Finance. This
officer will be able to study the data and determine if he or she is in
agreement with them or not.
My interpretation is the following: For parliamentarians, it will be the
opportunity to see two points of view. You will thus be better able to judge the
situation, and, at the end of the fiscal year, we will see who was right. In
principle, I am not opposed to the creation of this position.
Senator Nolin: As for my parallel with the American system, would
either one of you have any comment to make? Would the American equivalent be the
Government Accountability Office?
Mr. Kroeger: No, the GAO is closer to our Auditor General's office. It
would be closer to the Congressional Budget Office. That is the model put
forward by the bill you have before you. I worked for three years at the embassy
in Washington. My impression was that the members of Congress and the public
found it useful to have analyses done by the Congressional Office. We might draw
a comparison between the Congressional Office and the Treasury Board
Secretariat. That might be useful for parliamentarians wishing to carry out
Senator Nolin: I can therefore at this time not compare this with the
American GAO, because the GAO examines public investment efficiency in a very
specific manner. The GAO can, in the context of very short reports, point the
finger at a case of misuse of funds or an expenditure that clearly misses the
mark, especially in the area of military expenditures. We often see GAO reports
that remind parliamentarians that they discussed such and such an investment in
great detail, only to see that virtually nothing came of it.
Mr. Kroeger: Those are the functions of our Auditor General, Ms.
Fraser. She does studies and sees where money has been poorly spent. She finds
examples, expenditures that were not authorized by Parliament, for example. The
GAO, in the United States, is much closer, in its role, to our Auditor General
and to the Congressional Budget Officer.
Senator Nolin: The Auditor General decides when an investigation
should be undertaken. Parliament cannot dictate her choices. Would it be
possible to have a combination of the two? When the Finance committees of both
Houses examine the estimates of the various departments, would there not be
greater parliamentary efficiency if a committee of Parliament were able to give
instructions to the Auditor General?
Mr. Kroeger: That is a rather complex question. In principle, it is to
me important that the Auditor General be independent from Parliament and,
obviously, from ministers and their officials.
Second, I have no recollection of any case where parliamentarians stated that
an investigation was required and the Auditor General refused. Usually, the
Auditor General is quite sensitive to the wishes of parliamentarians.
Mr. Zussman: Maybe one other point to that question is just to
remember that Parliament can also ask departments or ministers to do
effectiveness evaluations of their own programs. In fact, much of our
legislation has in place requirements that effectiveness evaluations be done on
a regular basis. It surprises me how rarely any reference is made to
effectiveness evaluations, which are published regularly by departments and
agencies about each of the programs they run.
It would not be unusual for the Senate or the House of Commons to request
that a department or minister evaluate, if they can, the effectiveness of a
given program. As Mr. Kroeger has pointed out, it would be a bit unusual to
direct or ask the Auditor General, who would very much want to maintain her
strict independence and would find it awkward to have to respond to that type of
request. However, the requests certainly could be made of the government and the
relevant department and minister. That might lead to some interesting
discussions in the Senate and the House of Commons about the effectiveness of
The Chairman: When Senator Day and I were in England last year
studying the accounting officer concept, we met with the Public Accounts
Committee in Westminster. As you know, the Westminster model is very much along
the line that Senator Nolin suggested. In other words, the Auditor General gives
a lot of assistance to the Public Accounts Committee, even to the point of
drafting their reports and suggesting what areas they study, et cetera. I know
that it opened our eyes to see the influence of the Auditor General on a
Mr. Zussman: Our model has evolved in the last 20-30 years.
The Chairman: Quite substantially.
Senator Cools: Substantially less since 1977, and Mr. Kroeger would
know the conditions why. At the outset, the role of the Auditor General here was
not that different from how it used to be.
The Chairman: I do have a list.
Senator Cools: It is important because we are coming back to the
essential problem, which I will raise in my question. However, I thank you for
doing that because everybody forgets that the Auditor General at the outset was
a Deputy Minister of Finance. Part of the job of the Auditor General was to
support the Public Accounts Committee in the same way that the Treasury Board
people would be supporting the estimates group. If we only look to our own
history, we can see easily where it went astray.
Senator Zimmer: My question is in the area you touched on, Mr.
Zussman, which is political donations. I would like to get from both of you your
opinion and wisdom. Reducing the amounts in the proposed amendments from $5,400
to $1,000 is drastic in any arena. I asked the previous witnesses we had last
night what research did they do, what knowledge they based it on, how did they
arrive at that number.
If you look at different locations around the world, different countries such
as France has a limit of $6,500 and in Ireland it is $9,000. Australia, Germany
and the United Kingdom do not have a limit to the amount of donations a person
can give to a political party. How did they arrive at those figures? Also, I
want your opinion if you consider this quite drastic; it is an 80 per cent drop.
I would like to tie that in with what Senator Segal said in the Senate said
yesterday, and reported this morning in the Canadian Press and with whom I
agree. Senator Segal said that the proposed $1,000 limit on personal political
donations, and the total ban on corporate and union donations, could actually
prompt the kind of illicit fundraising practices that the federal accountability
act is designed to prevent. He added that it radically limits the amount of
monies parties and candidates can collect without simultaneously addressing the
amount of money they can spend. This could induce politicians to find a way
around the law to raise the money they need, and create a gap that may produce
precisely the kind of circumstances Mr. Gomery's commission was brought in to
Gentlemen, I would like your opinion and your thoughts. Some of your wisdom
as to where we should go on this would be appreciated.
Mr. Zussman: I have no wisdom to offer. Senator Segal is far more
experienced than I am as to what impact this might have on political parties.
It is important to think through what the consequences of this will be, and
whether this is entirely what Parliament wants to achieve. It strikes me that by
lowering the limits, there is an expectation this will engage more Canadians in
political participation. It would have to in order to maintain the same level of
funding that currently exists; or we will have a political system that receives
60 per cent less funding. What will political parties and campaigns look like in
those ways? Given the context of electioneering today, I do not expect that
elections cost less today than they did last year or 10 or 20 years ago. I will
answer your question with a question. What are we trying to achieve in putting
those types of provisions into the legislation?
One of the considerations I would like you to think about is the issue of
political participation in the context of restoring trust in public
institutions. One way to restore trust is to have higher levels of
participation. As you know, it was not until this recent election that the rate
began to rise. Our participation rate in federal elections has been dropping for
the last 20 years. We were seriously close to dropping below 60 per cent in
If we have an eye to increase participation because that is good for our
democratic process, this legislation and these provisions get us higher levels
of legislation. My answer is I do not see how it gets us there in that regard.
Senator Segal raises another issue about which I have no knowledge, which is
whether this would encourage underground behaviour that would work to the exact
opposite effect of what is being intended. Let us watch out for the unintended
Mr. Kroeger: The concept I keep coming back to when I look at this
bill is the question of balance. Have we hit the right balance between control
and being sensible?
In the case of political donations, although it is outside all my experience,
the question comes up: What problem are we trying to solve? Were there abuses
when the level was $5,400? I do not know. I do not remember reading of any such
abuses. Were there abuses that merit the reduced levels of contributions that
were permitted by business and unions? If you cannot identify the problem that
justifies a provision in the bill, then have you lost balance and have you
pushed things too far? Those are questions in my mind, although I am out of my
territory. It is an example of measures found elsewhere in the bill that we
talked about earlier. Do we truly need to go that far to achieve good governance
and are we risking harm? It is possible.
Senator Zimmer: I have done much corporate fundraising for many years
and I have to say that not once in 38 years has someone come to me, especially
corporations perhaps because my face is frightening, to bargain at the level of
$1,000. It is not worth it, and you made a good point. In addition, the issues
of open, transparent and accountable come into play. These are great and noble
words and I believe in them. However, we can swing the pendulum too far whereby
any time we want to achieve an objective we can pull out those words to frighten
off or get the desired results. I cautioned the minister last night. They are
great words and we should use them. Since becoming a senator last fall, I have
witnessed that the code of conduct by these members in this chamber and in the
other place is exemplary. I do not see where they break those rules of open,
transparent and accountable government. We should live our lives by those words
but we should not let them control our lives and dictate objectives that might
not achieve the desired results.
Mr. Kroeger: Senator Zimmer's comment reminded me of a saying that
might be of interest to members of the committee. A professor at Berkley
University once remarked that in public policy the solution to every problem
creates another problem and success is when the problem created is smaller than
the one you solved.
Senator Zimmer: May I use that in my speeches?
Mr. Kroeger: I do not have a patent on it.
Senator Joyal: Mr. Zussman, you testified in the other place on June 1
you said in your opening remarks:
The public appointments commission, I think, is a very exciting and welcome
addition to the governance structure of Canada. There are lots of machinery
options around which one can organize but the principle is such an important
one where at least you are proposing to have a uniform approach to
I would address proposed clause 227 on page 175 of the bill. At the bottom of
the page, it states in proposed section 1.1(1):
1.1 (1) The Governor-in-Council may establish a Public Appointments
Commission consisting of a chairperson and not more than four other members...
(a) to oversee monitor, review and report on the selection process for
appointments and reappointments...
On the following page, 176, it states,
(2) Before making a recommendation to the Governor-in-Council that the
person be appointed to the commission the Prime Minister shall consult with
the leader of every recognized party in the House of Commons. An announcement
of an appointment shall be transmitted to the Speaker of the House of Commons
for tabling in that House.
I have two questions. First, the word used is "may." I do not like to
change the system and put it at the whim of who happens to be the Prime Minister
of Canada. Second, the composition is such that the Prime Minister decides who
the members will be after consultation, which is a loose concept. I have heard
previous prime ministers make the decision to appoint and that was it. It comes
back to the question: Who is policing the police? That four-member board would
be highly important such that I would suggest "the wife of Caesar test" might
need to be applied. The members have to be purer than the purest because they
will be the ones to select based on the stated conditions. This structure, which
is such an important one to change the system, would need to be reviewed on the
basis of those two aspects of reality.
Mr. Zussman: Senator, I must admit the word "may" surprised me. I
cannot imagine why we would put this in legislation and leave it as
discretionary. I disregarded that as a drafting issue in the end, but you are
quite right. This does represent a significant departure from current practices,
even in the way that it is framed today. In other words, the prime minister is
making explicit that he or she would have an organization that would speak to
the process that leads to the appointment of individuals. As you well know,
Senator Joyal, any given government in the course of a four-year mandate would
make over 3,000 appointments. The prime minister is not giving up his or her
right to appoint. Rather, the prime minister is suggesting that in this section
is we are to have an explicit and public process upon which everyone will
understand and agree. In the case of particularly high profile jobs, like the
president of the CBC, there might be a certain kind of process that is far more
public than the appointment of part-time commissioners to a small federal
Therefore, this would represent an enormous change from current practices
whereby the process is managed out of the prime minister's office, where the
prime minister makes the appointment, sometimes in consultation. This is a great
first start in my view but you raised a good point, which I had not been too
concerned about because this is so radically different from the current
practice: Why should the prime minister make the appointment or even set up this
group after a simple consultation? Are you proposing another way? Do you have
another model in mind that would bypass this?
Senator Joyal: The Public Service Commission can make recommendations
to the prime minister on possible candidates. They are not compelled to limit
the numbers to four. They can offer the prime minister an issue of gender
balance. In today's world, the objective of women's participation is an
important principle. The Public Service Commission has that as an objective when
they recruit and suggest appointments. The same is true for visible minorities
because part of Canada's objective is to show diversity in Canada and is,
therefore, and important element of public policy, at least at the federal
level. If we are to select a board that bears credibility, we must remember our
two objectives — accountability and the restoration of trust.
When you restore trust, as Senator Andreychuk said, it is not only justice
but also the appearance of justice. We must at least devise a system that
maintains discretion for the prime minister. I am not opposed to the prime
minister having discretion but that discretion must go through a strainer
process such that we know that the candidates on the selection list for the
prime minister will offer the kind of confidence that the public deserves to see
in such a system of appointments.
Mr. Zussman: That is why I said in my statement in the House of
Commons that there are other ways to do this. As pointed out by Senator Oliver,
I am a part-time commissioner in the Public Service Commission of Canada. There
is no question that the commission could carry out the roles and
responsibilities that are described here. However, you may decide that you want
to create a separate one that has its own set of commissioners appointed in this
manner. There are a number of mechanisms for doing this. They are discrete.
There are no more than three or four different ways of doing this within a
reasonable machinery framework. The objectives of this are clear.
You have asked us a couple of times what this is for and we have not been
able to answer. This is about becoming more transparent with regard to the
appointment of individuals to full -and part-time positions that are outside the
normal public service, of which there are almost 3,000 over a four-year period.
This is important.
Anyone who knows anything about agencies, boards and commissions will know
that each has its own constituents, and the appointment of individuals to these
really matters. This is important to me, and I am excited that we are moving
forward with a new mechanism that makes explicit the overseeing, monitoring,
reviewing and reporting on the selection process. That itself would be quite a
Senator Nolin: I want to hear your views on the word "may." I would
like to hear your comments on the fact that the board of the executive is
ultimately bending its authority, its exclusive discretion to make decisions.
Mr. Kroeger, since you have been a member and have advised the executive do
you not see in the word "may" the maintenance of the executive being in charge
of executing, in the interests of the nation, what they think should be decided?
Let me put the question differently. Let us say we amend it and that everyone
agrees that the wording will now be "shall." What about the
Governor-in-Council forced to decide because a commission decided he should
select "A" for being let us say, chair of VRI?
Mr. Kroeger: I would invite the committee to do a little research
about this as to why the term "may" is used. My recollection is that every
departmental act, says the Governor-in-Council, may appoint a deputy minister. I
never took it personally in my day, but there may be a legal reason why the term
"may" is used. I do not know; I am not a lawyer. I am conscious of the fact
that it is always there. You might want to ask for advice as to the reason for
that in all of the departmental acts. The term may not be as important as it
looks at first glance.
Senator Joyal: I have two questions. The first question is about what
I call the "substance of accountability," which is composed of two essential
elements. The equation is a simple one, with two elements. The first one, as you
said, is the information, in other words, to have reliable information. You have
said, quite appropriately, that we receive, on a yearly basis, 91 reports and
that we now get eight more on the pile.
Mr. Zussman: You get thousands of reports including ninety-one
departmental reports on the performance of every single department and agency.
Senator Joyal: Let us add a couple of thousand more if we want to. One
part of the equation is the information and the second part is the process. If
you process that information appropriately, you achieve accountability. In other
words, to put it in parliamentary terms, you keep the government accountable in
Mr. Gomery made 16 recommendations. A group of those recommendations were set
aside based on an initiative that Mr. Kroeger took to have a letter signed by a
reasonable aréopage of learned Canadians. The government, I think appropriately,
received those representations. However, to me the big mission of this bill is
the second part of the equation, which is how do we process that information in
Parliament? As Senator Zimmer has said, we agitate a lot of concepts and create
all kinds of agencies and multiply the information, but at the end of day that
information goes into a very small opening in the bottle. I feel that now we are
in a tunnel vision syndrome. We are legislating the multiplication of
information, but we are not paying close enough attention. The other place did
not seem to see the challenge that if we are to achieve the result of
accountability, Parliament has to review the way it functions.
To me, with great respect to Senator Nolin, it is not only a question of
budget. There are other issues involved, for instance, the way that Parliament
deals with the estimates. You can have a pile of information, with the estimates
done very well by thousands of auditors at the Library of Parliament, However,
but since the estimates are deemed to be approved by the third week of May, in
fact all that information will stay there unless the press jumps on some kind of
scandal. When that happens there is a buzzword in the system, and then there are
headlines all over the place and parliamentarians gets agitated. However, this
is not keeping the government accountable. The system should work and should be
reviewed in order to ensure that the end result of all that information is duly
I was surprised, when the other place rushed to look into all the commas in
the bill and made sure that the hundreds of amendments were made, that in fact
this bill has not been conceived to address the second part and the last
recommendation of Justice Gomery, which is the most important one. All the
information that was generated out of the so-called ad scam issue was already
there in the system but was not processed in due time, as some honourable
senators have said.
Is not one of the key issues of the overall exercise that we are entering
that we should fundamentally review the way that parliamentarians in both Houses
address the issues of the principle of responsible government?
Mr. Kroeger: I think a lot depends on how parliamentarians themselves
want to organize their work. I do not think that it is really a matter that must
be legislated. I have been struck by the difficulty that House committees seem
to have in establishing a work program and systematically going through a series
of steps to enable themselves to arrive at a conclusion. The ability to do that
exists in the sense that officials are always at the disposal of parliamentary
committees. A summons to a parliamentary committee, Senate or House, takes
precedence over virtually everything, including a meeting with a minister.
You have access to the information, to people who are knowledgeable and whom
you can question. The difficult part, because of the multiple pressures that
parliamentarians are under, is to be able to organize an examination of a
particular subject. I know that when I was a deputy, I would have liked it if
the standing committee of my department called us in and said that they wanted a
two-hour briefing on how we organized our programs, and asked which of the
programs worked. You start with that. Then the committee can ask questions and
decide whether it should investigate the grants and contributions, because they
do not seem to be working too well. All of this can be done, but the difficulty
is that parliamentarians are pulled in many different directions. Members of the
Senate probably are more capable of maintaining a sustained course than members
of the House.
However, if I understood the concern of Senator Joyal correctly, it is not a
matter to put in a bill. It is a question of how individual members of
Parliament, the chairs of their committees and the representatives on some of
the bodies go about organizing their time. The officials are there and the
information is there, if they want to tap into it. The question is how to do
Have I interpreted your question correctly, senator?
Senator Joyal: In a way, yes, but as I say, how do we articulate the
political will at this point to change the system? You can leave individual
parliamentarians with the mammoth task of digesting that pile of information,
but they are, as you said, solicited by many other issues and, especially, being
elected, they need to get the votes. If there is a merely administrative issue
with no political fallout or benefit from the electorate, there is a 99 per cent
chance that the issue will be left aside. We must be able to trigger a review of
parliamentary practices to come to a different "culture" for addressing the
issues of accountability that will be generated through the approach that we
want to support.
Mr. Zussman: You have put your finger on an important aspect, which is
the cultural issue. Since the innovations that Mr. Trudeau brought in during the
1970s and Mr. McGrath elaborated on in 1984, parliamentarians have had a wide
range of opportunities to do a host of activities. What you are describing is
just not done. I do not think you will find that you have to rewrite the rules.
The rules and the opportunities are there. What is not exercised is the type of
behaviour you are describing and Mr. Kroeger described, of a systematic
examination of portfolios and programs, which calls for all members of
Parliament working together in the examination of individual programs and
At some point down the road, once they have a common understanding of the
programs and their effectiveness, they may then depart along party lines as to
whether to continue or not, but we do not typically even get that far into the
discussion. Most people and I used to be a senior public servant myself
appearing before House committees, would know that it is rare to have a
sustained discussion about any one topic for any one committee. This does not
Mr. Kroeger: As a supplementary comment, one of the things that struck
me since leaving government is that over the years there has been a great
evolution in the administrative side of government. We have special operating
agencies, new procedures and horizontality. Many things have happened in the
executive branch. I am struck that there has not been a comparable evolution in
the way parliamentarians conduct their business.
Another point is that we have all seen editorials and columns in the media
expressing restlessness about the way Parliament handles the estimates, for
example, and parliamentarians themselves very often express that view. If the
House and the Senate really wanted to organize an examination of how they do
their business and how they might do it better, I would have thought they would
get applause in every newspaper in the country. You would get excellent public
reception because there is a kind of malaise on the part of the public about how
public business is conducted. An attempt to modernize our legislative process
would be a very interesting undertaking for both Houses of Parliament to try.
Senator Rivest: I would like to come back to the problem of political
party financing. You stated that the aim is to show oneself more virtuous than
the previous government, because there have been no comprehensive studies on the
role of political parties. We talk of citizens' disinterest. Political parties,
whether we like it or not, will remain at the heart of the democratic process.
The measures proposed to, for example, prohibit contributions from companies,
cooperatives and unions, where did that idea come from? It seems to have just
cropped up, without our really knowing why.
In Quebec, we have for 30 years now had a law containing that provision. For
some years now, there has been a consensus forming around the idea of precisely
allowing adequate funding of these organizations, which are vital to our
democracy, because of the evolution of the role of political parties and the
evolution of public opinion.
As Senator Segal was saying yesterday, it is a certainty that people will
find something. Furthermore, is it not your belief that what risks happening—and
this has already happened in Quebec and elsewhere—, is that the financing of
political parties, if there is no way to circumvent the act, will essentially be
provided by public monies, because the portion of the contribution of publics
funds to the life of our political parties is extremely important?
Senator Joyal: Are we going to nationalize political parties?
Senator Rivest: That is what is going to happen.
Mr. Zussman: We were talking earlier about the level of contribution
and what effect that would have on behaviour. Certainly banning corporate Quebec
has demonstrated that the political system works well in Quebec with these
provisions. What is unclear is individual contributions and whether this will
lead to either greater participation or greater faith in the system. I just do
not know. I do not feel particularly confident to speak to this because I have
had no direct experience with it at all.
Senator Andreychuk: I want to go back to procurement. Mr. Kroeger said
that there is no need for another evaluation or another reporting; there are
many reporting and auditing functions already there that are just not being
utilized. You do not think the answer is in this bill, which creates this
procurement officer in an audit capacity. How can we get the procurement
policies properly implemented?
Mr. Kroeger: My comment was that in the case of sponsorship they are
bypassed. This was equally true of the provisions of the Financial
Administration Act and Treasury Board regulations. Sponsorship operated outside
of everything. However, the basic procurement system in Public Works and
Government Services Canada is very transparent. It is free from political
direction. If a government tries to interfere with a helicopter procurement, it
As Mr. Zussman said, if a company enters a competition and loses, it can find
out why it lost. It is all there. If you create the procurement auditor, I
imagine you could find some useful functions for this person. Whether the person
would be useful enough to justify creating yet another position, another
bureaucracy and another set of procedures, the doubt we both expressed is
whether the value added is equal to the cost. If you have a procurement auditor
who can review bids, you can bet that every time someone loses and all else has
failed, he or she will try the procurement auditor. There might be some activity
there, but whether it would be productive, we have some doubt, particularly
whether the benefits would be commensurate with the creation of more
Senator Andreychuk: Mr. Zussman, you said there are 91 departmental
reports filed. When I came into the Senate, I started reading everything that
came to my desk. I found that I was getting a week behind, then two weeks
behind, then three weeks behind, then four weeks behind. I may be up to about
the year 2000 now.
I found that these reports were not very helpful to me as a parliamentarian.
Forty years ago, I think there was a more honest evaluation of what a department
was doing. When I came back to reading reports in the early 1990s I found more
of a defence of an existing policy rather than an evaluation of an existing
policy. I saw the reports get glossier, more picture-oriented, include more
success stories and be more of a pitch as opposed to a document that would tell
me that this program is a good one, and these are the ups but these are the
downs. I found the auditor's report and all the officers' reports to Parliament
were more balanced and less of a pitch. Can you respond to that comment?
Mr. Zussman: I probably cannot respond to it very well. That is a very
interesting observation because you make the distinction between reports from
agents of Parliament and departments. That is a new observation to me. There is
no question that as a parliamentarian you certainly have the right to say that
even though the report is interesting, it is not what you need to do your job.
In that instance, the public service would be responsive to the concerns that
you might have. In other words, I am sure the reports have become glossier. As
communication shops have grown larger and more professional, every effort is
made to make the reports look useful. However, the reports are for
parliamentarians and the fact that they are made public is, in a sense,
incidental. If you become a demander, in a sense, for a different kind of
report, you will find a very responsive audience. Every official in the public
service, particularly those who deal regularly with Parliament, would be
thrilled to respond to questions about what he or she does on a day-to-day
basis. They would be responsive to ways to improve it, if the conversation could
be around the substance of the outcomes of the various programs. In fact, you
can take advantage of a complementarity interest in this situation.
Mr. Kroeger: As to the 91 reports, that number represents just a
particular kind of report. Last fall, Mr. Alcock said that every year Parliament
receives over 1,000 required-by-statute reports. First, you are getting this
huge volume of reports. Second, they are written by officials for officials,
although they are not consciously written for officials. They deal with the
stuff that departmental managers live with such as the yearly goals. At the end
of the year, the manager checks to see the yearly performance as pertains to the
goals. This is interesting stuff to a bureaucrat and the departmental manager.
It is however, too intricate and technocratic to be of any use to
parliamentarians. There is equal frustration on the part of parliamentarians who
find the stuff uninteresting and on the part of officials who have to write it
knowing no one will ever read it. It would be desirable to see if you could find
a better way.
In response to Senator Joyal, I suggest you could have a look at some of the
ways Parliament functions, and this is another question: What kind of things do
you really want to know? There is a limitation. These reports are fed into a
political environment. You are not going to open your minister to any more
criticism than you have to when you write it. It does not matter who the
government is; that is sort of in the dynamics of the system. However, the
internal audit reports, to which Senator Andreychuk referred, are good. They are
rather more informative because they are there as a tool for the deputy minister
to say, "I'd better fix that." It is better to look at the internal audit
reports and evaluation reports where this is more transparency. My guess is you
will learn a lot more from reading those reports than reading long detailed
reports on how we made out against the statement of last year's objectives.
Senator Andreychuk: It seems to me that the average citizen in
Saskatchewan lacks confidence in these reports and documents because they are
not very helpful. They want to know if the government is doing what is said it
would do. They want to know whether it has done it efficiently, whether it has
used their taxpayers' money efficiently, and all of the reports that come and go
are not very helpful. There is a thirst for the truth, whether I am sitting in a
workshop in Africa or sitting here in Canada. People want to get to know the
truth. People feel that it is a pitch and I am using a nice term, not a negative
term. We are putting the best face on it. With the volume of Internet and all
the websites, there is a certain cynicism that needs to be corrected. This act
is one attempt at correcting that cynicism. We need to see whether it is
well-balanced in its attempt.
Mr. Zussman: You make a valid point about the Internet. Canada's
Government On-Line initiative keeps Canada in the forefront of providing
information to its citizens. Accenture rated Canada number one for the last five
or six years with respect to providing information and interactivity. We are out
there. However, we may have to do something about the products that are online.
With almost all Canadians having access to the Internet, the possibilities are
Senator Ringuette: I can certainly agree with you that the required
balancing act in this legislation and the quantity of information is not equal
to the right information. For instance, I have a motion before the Senate
requesting that with each piece of government legislation we have an impact
analysis for the regions and the minorities. That is a primary document that we
should have when we review legislation or any kind of budget.
With respect to your comments about the procurement auditor, when Mr. Alcock,
the former President of the Treasury Board brought all these rules in he also
brought back internal auditors. We have internal auditors in public service
departments, and now we have the creation of a procurement auditor within that
same department that will be reporting to the minister, and the minister will
report once a year to the House on that issue. To look realistically at the
issue of accountability and what parliamentarians can do in regard to making
government more accountable, do you not think that maybe this procurement
auditor should be in the same pool in the Library of Parliament and under the
same kind of authority as the independent budget authority proposed in this
bill? I know that we do not want to increase the level of bureaucracy. However,
procurement is a big-ticket item with regard to expenses and making government
accountable. I believe that the position would serve parliamentarians well if
the procurement auditor was independent and reported under the Library of
Mr. Kroeger: I will make a preliminary comment before coming to the
main point about the procurement auditor.
Internal audit is a long-established practice in government. I was a deputy
minister 30 years ago and I chaired my internal audit committee. The auditor
general and the comptroller each had a representative on the committee. My
financial staff was on the committee and we met regularly. While it is now law
that you have to have an internal audit committee, there is no harm in having
that provision in the bill. In fact, as a deputy minister you would be foolish
not to have an internal audit committee because that is one of the ways you
manage the place. That is one of the ways you find out where there could be
The whole controversy about Human Resources Development Canada five or six
years ago arose because the deputy minister of the day got uneasy about how
things were working and ordered an internal audit. It was not something that
came from the Treasury Board or anywhere else. Internal audit is a standard
management tool that has been in place for a long time. Now, as has been the
case for several years, internal audit reports are made public. Putting it in
the statute serves to underline publicly that this is an important function. It
is certainly not new.
As to the procurement auditor, I am not sufficiently clear about exactly how
this is supposed to work. If you are talking about someone to whom an
unsuccessful bidder can go, which I believe is one of the specified functions,
the Library of Parliament is probably not the right place for that official. You
would probably want that person located in the Department of Public Works and
Government Services, but separate from the rest of the officials.
In terms of an investigation on behalf of Parliament where it looks at some
wrongdoing, we have the auditor general. If parliamentarians are uneasy about
what happened in a particular procurement, they always have the option of
proposing to the auditor general that this might be worth looking at. As I
suggested to Senator Nolin, the auditor general is responsive when
parliamentarians express unease about something and it does not take too long
before the auditor general decides to see what is going on.
Mr. Zussman: To point out the complexity of so many of these
proposals, as Mr. Kroeger pointed out, we had audit committees 30 years ago.
Unless things have changed in the last few weeks, one of Mr. Alcock's legacies
was the constitution of audit committees that required a majority of the members
to be from the external environment. We now have close to 100 audit committees
populated by a majority of outside audit experts. It is very possible that their
work might include, through their audit function, the auditing of procurement
Again, this may already be covered by this innovative approach that was
implemented only last year. We are hardly in a position to judge its
effectiveness, because it is really just up and running. I know that deputy
ministers and in some departments are taking this very seriously. The audit
committees are functioning to mirror as closely as possible what would happen in
an audit committee in a private corporation. Many new things are happening. That
is very innovative. It may answer your procurement question without necessarily
the need, although I do not know for sure, for a new agency.
When I read this bill, I wonder whether its drafters, who did their work in
six weeks only a few months ago, knew that we had a new committee of external
auditors in every single department. Did they conclude that this was a really
good idea even knowing that, or did they do this without knowing that this
activity was going on? I guess Minister Baird could answer that question for
The Chairman: He was here last night and he did answer it in part.
Senator Ringuette: I cannot help but ask you this question knowing of
your experience as part of a transition team.
Mr. Zussman: Yes, in 1993.
Senator Ringuette: There was a last-minute amendment with regard to
lobbying activities of transition team members. Could you comment on that in
light of your experience as part of a transition team?
Mr. Zussman: There are two parts to the question. The first has to do
with retroactivity, in other words, passing legislation today that affects
activities that occurred before the legislation was contemplated. I do not know
whether the intention is to include those who participated in the last
transition in these rules. There is no question that transition teams have
access to about as much information as there is in a government, because every
effort is made during a transition phase to give the incoming group as much
access as possible to all existing information. In fact, there is a
long-standing tradition of very smooth transitions in Canada as opposed to other
governments. We can do transitions in 10 days or three weeks because there is a
very close working relationship within the public service and incoming
governments. That also means that the transition team has access to every
important document that exists. Therefore, I can understand why there would be
some consideration given to treating transition staff the same way they would
treat people who subsequently work in ministers' offices. It would be, in my
view, contradictory to create different categories of people in that instance. I
know that attempts are being made to distinguish between people who have
significant roles in ministers' offices and people who do not have access to
confidential information or to the minister and the parliamentary process.
Senior transition people would have an enormous amount of access to those
things. I should have said at the outset that the transition team is sworn to
secrecy many weeks before the election takes place in order to start the
transition process in the event that the party is successful in the election.
Mr. Kroeger: It occurs to me, in listening to this discussion, that I
may be affected by this bill in a way that I had not thought of. I was on a
transition team, too, three years ago. Fortunately, I have no intention of
becoming a lobbyist. I have other occupations.
Senator Joyal: We will take your confession as a declaration.
Mr. Kroeger: The key point is the one raised by Mr. Zussman. I do not
like retroactive legislation and I am very surprised that, for the first time in
my recollection, there is a bill in Parliament that would try to legislate
The Chairman: We had a very bad one in the Standing Senate Committee
on Banking, Trade and Commerce. It has happened very recently.
Mr. Zussman: I might add that people are donating a huge amount of
their time to these types of exercises.
The Chairman: They are volunteers?
Mr. Zussman: Yes, and they are very sincere in the work they are
attempting to do. It would make a significant difference if people involved in
transitions knew in advance the potential consequences of this type of
involvement. I wish to add that Mr. Harper attempted quite dramatically to make
this a short-lived exercise, where people were dispersed to go back to their
day-to-day lives. There was no expectation, as far as I know, of anyone on Mr.
Harper's transition team that they would stay on in any significant way, which,
by the way, is quite unusual for transition teams. That is a new model and I am
not aware that it has been used in that manner before.
Senator Cools: I would like to thank the witnesses for their
thoughtful testimony and for their efforts to share with us the benefits of
their wisdom and experience over successive generations. I have observed the
work of both witnesses for quite some time. My questions are more relevant to
the issues that Senator Joyal had been raising, and the debate here took a turn
that went off into procurement, and so on.
The central issue at every turn comes back to the fact that Parliament, both
Houses, have become weakened institutions. Both witnesses mention the phenomenon
of the estimates, but I sponsored an appropriations bill in the Senate a few
weeks ago for $43.5 billion, and at third reading in the House of Commons, that
bill was passed in about 10 minutes. As I recall, it went through all readings
in the matter of minutes. Of course, that situation appals me every time. The
whole situation was made possible by a standing order that gave the government
what I would describe as extravagant and inordinate powers in respect of the
I am both touched and impressed that these two witnesses, as did Mr. Aucoin,
keep returning to the central problem, which is the concentration of power in
the hands of the prime minister and his staff, and the displacement of both
Houses, if not the degradation of the role.
I was listening with care as the witnesses offered ideas as to how members
could do things better, but what we are talking about is a displacement of
power. It does not really matter how much more members read, although knowledge
is power. At the end of the day, prime ministers for successive generations have
a view of Parliament as their servants, and that less debate is good, no debate
is better, and huge bills like this are introduced with the expectation, and
sometimes the orders, that they be passed in days and weeks.
I wonder if you could turn your minds to this phenomenon, because I do not
know anymore what the prime minister is minister of. There was a time when prime
ministers were ministers of an important portfolio, but I do not know any longer
what a prime minister does and what a prime minister is the minister of. He has
to be the minister of something, or is the prime minister a minister without
portfolio? The prime minister has to be minister of something; otherwise, he or
she cannot be a first minister.
Most Canadians will show a blank face, and to most Canadians who believe that
they vote directly for the position of prime minister, I am very fast to say
that prime minister is appointed just like me. In fact, senators are not
appointed in the classical sense; we are summoned, which is a slightly different
I could cite what Peter Aucoin had to say, but the hour is getting late.
Could you comment on this enlargement of the jurisdiction, the enhancements of
the powers of prime ministers that are now shared with the staff around them?
I know of what I speak. I have been summoned to the offices of prime
ministers' chiefs of staff to explain why I disagreed. Members are very
interesting. Members are overwhelmed, in any event, with demands, but the major
condition that overwhelms members is paralysis by fear.
I spoke out some years ago, I will not say under which leader, but that
person threatened not to sign the nomination papers of approximately 50 of the
MPs, and that is powerful. That is pretty powerful coercion. I was raised to
believe that we are supposed to govern by the use of persuasion and force of
intellect and conviction. This is coercion.
This act, however well-intentioned, I am sad to say, would not prevent
another sponsorship scandal. It simply would not, because when individuals set
out to defeat the accountability systems, we are dealing with deviants. This
proposed legislation is well-intentioned, but there has to be a change. However,
what this act does not address is the fact that Parliament needs to be
strengthened. It is a lopsided relationship. For example, senators have two
staff in their office, and when I came here, the minister of justice had 1,200
lawyers. It is now up to about 3,500. It is an extremely lopsided relationship.
In addition to that, the policy of governments for years has been to keep MPs
and senators starved of resources to even run their offices.
I wonder if you would comment on that, because what I notice is whenever
witnesses come before us, they come back to that central point, which is the
weakening and degradation of Parliament. I want to be crystal clear. I am not
speaking about any particular prime minister, because this phenomenon is
universal. It has developed universally in the Westminster-type systems.
Mr. Zussman: You have made many important points. I agree with you on
the point that I do not feel legislation will be able to prevent another
sponsorship program. As both the auditor general and Mr. Justice Gomery have
pointed out this is an aberration of people breaking all of the rules. You could
make new rules only to have them broken, as well.
The issue of the prime minister and his or her relationship with Parliament
is important, and you have put you finger on number of issues.
There is no question that in all democracies in the world, prime ministers or
presidents have increased powers to a large extent because public policy has
become so inter-related, inter-corrected and international that the focal point
for many of these activities turns out to be prime ministers or presidents. As
you suggested, honourable senator, consequently, prime ministers' offices have
grown in importance as well.
Another unique feature of the Canadian system is that our prime ministers are
also the heads of the parties that they represent, so they wield a whole series
of levers that give them huge amounts of power, and effective prime ministers
know how to exercise power.
Since the Magna Carta, there has been a tussle between the legislative and
the executive branches of government. To a large extent, it is this contest of
wills, if you like, between the executive and legislative that gives the
dynamism to our parliamentary system. I agree with you 100 per cent that,
generally speaking, we have seen, over the last 20 years, a diminution in the
role of Parliament. I do not think it has been deliberate or strategic; it just
has evolved. No one is looking out for the collective interest of the
institution itself. That is why this type of conversation is useful to have. I
do not believe that Parliament has any fewer powers or rights or
responsibilities, but I am not sure that Parliament is not exercising all the
opportunities that are available to it to hold governments to account, which is
in fact is its primary role. Therein lays the challenge.
Mr. Kroeger: Justice Gomery expressed concern about the powers of the
prime minister and tried to come up with ways of mitigating those powers. The
trouble is that he wanted to put those powers in the hands of officials, which
is the wrong place to put it. He did recommend, and I expressed earlier my full
agreement with him, that more resources for Parliament would enable Parliament
to do its job better. I hope somehow out of all of this work on governance that
we do not lose sight of that.
On the question of the ability of parliamentarians to get into what the
executive does, you often hear about how well Parliament can really do its job
on the estimates. This is a hugely complicated undertaking. I used to be a
Treasury Board official and was responsible for producing the estimates. You all
know that the book is very thick. My program analyst for the Department of
Agriculture would work for three or four weeks with the department trying to
understand their submission. His superior would go over it and come to me, and
then we would spend a whole day going over it, trying to understand it and draw
budgetary judgments. Then it goes to Parliament, and how much time do you have
to deal with this? The answer is that you have to be very selective.
Number one, it is important that our parliamentary committees be much better
informed about their departments than they are at present. That is a question of
how they organize themselves. Number two, again going to how they organize
themselves, they should pick a particular aspect in that great fat book that is
interesting, and focus on that to learn something and really go into it in depth
on the subject. To try to deal with all the estimates of a department in the
time available to Parliamentarians, with all the other pressures on them, is
hopeless. As I said to Senator Joyal, much depends on how parliamentarians
organize themselves. I do hope that that subject will get some attention.
Senator Cools: The principle is that the ministry is responsible to
members. However, the principles have been reversed. In other words, if members
are supposed to censure ministers for the malfunctioning of a department or
misadministration, the principle is that MPs and senators censure ministers. The
principles have been turned on their head, or corrupted in a way, because we now
have the situation that if a member questions an estimate, that member may face
expulsion from the caucus. You have ministers censuring members for performing
their constitutional duties. Perhaps we can pursue this at some future point.
Senator Fox: This conversation brings me a long way back to Walter
Bagehot's classic on the English Constitution, where he made the distinction
between the written constitution and the efficient constitution. We are all
talking here about Parliament in its traditional heyday and its Magna Carta role
of keeping governments accountable. We all know it does not work that way any
more. Members of Parliament belong to caucuses, they belong to parties, and they
are there to keep the government in power and to try to get that government
re-elected. There must be a different way of dealing with it. We cannot think of
a parliamentarian as being disembodied from all these "constraints," as
Senator Cools refers to them. There is a traditional role, and then there is the
reality of the role. That has changed the system in a great way.
Senator Cools: There needs to be a redress of power.
Mr. Zussman: We have been playing with these. Committees have been
restructured. Standing orders have been changed. The notion of free votes has
been introduced. All of these things have been attempts at various points in the
process to free up from the partisanship from the scrutiny. I think we can have
a long conversation about some of the options available, but the first thing is
that there should be recognition that things should change. There are many ways
we could change things to make them work better. If you watch Question Period,
you will be reminded that it is an important institution, Senator Baker and
others, but does it really get at accountability? Does it meet that objective?
We can pretend it away, but remember that we have millions of Canadians who tune
in once in a while and watch that and say to themselves, "This is what my
member of Parliament does." The first thing is the recognition that we have to
change things, and then have a conversation on how to do it. I am sure we could
come up with some good ideas.
Senator Cools: This current situation cannot continue. I have done a
fair amount of reading on this particular issue in the last few weeks, and a
number of writers are saying that there is despotism inherent in modern
government. We have to do something, even if we engage some public debate on the
very role of government and the very role of the ministry. However, I do know
that when you hold a different opinion, you have to be pretty brave.
Senator Joyal: Mr. Kroeger, in your opening remarks, you said we have
now had three rounds of changes. You cannot but conclude that the general
perception for anyone within the public service or who would consider entering
the public service, which I think is even more important considering the
attrition that the Public Service of Canada will face in the forthcoming years
because of the retirement of the baby boomer generation, is that they have to
watch themselves from all sides and from the top and the bottom. To my mind, it
has created a perception of distrust.
You will be over-investigated, over-researched, watched and if you ever
happen to do something outside the box, the risk is enormous. A recent survey of
more than 100,000 public servants indicates that if we want to have workers who
should be rewarded rather than viewed with suspicion for vigorously seeking new
challenges we have to change the signals that we send to them.
Mr. Kroeger, you have practised in the public service for many years, how can
we address the problems that I feel will probably undermine and change the very
nature of the public service?
Mr. Kroeger: Senator Joyal raises a very important question. Go back
to the Glassco commission of early 1960s that started deregulation and
decontrol. The detailed kinds of controls that departments operated under before
that were extraordinary. Glassco said, let the managers manage; everyone
remembers that phrase from 1960s. You had, from the early 1960s to about the
year 2000, steady decontrolled, deregulated processes. We got rid of person-year
controls and gave departments operating budgets. The whole emphasis was giving
people latitude to think for themselves and do sensible things and not to try to
do everything by the book.
Then came human resources development and about the same time sponsorship and
there were some other controversies. When something goes wrong they say we must
have rules to make sure this does not happen again. What happened around
2000-2001 was a re-bureaucratization of government, a sense that decontrol and
deregulation had gone too far. Then you had multiplication of controls and Mr.
Alcock piled even more regulations and central controls on what already existed.
Senator Joyal is absolutely right. The message was we do not trust you; we will
hire auditors to watch every move you make. An atmosphere prevailed so that even
the central agencies started to cut back on their regulations. Then you have to
deal with risk averseness in departments. No department wants what happened to
Jane Stewart have happen to their minister. It is a question of the whole
"gotcha" atmosphere that has existed in town for some years now and has had
very adverse effects.
Mr. Baird and the Prime Minister have both said they want to revisit those
controls, something like thinning it by 50 per cent. The intention is good.
The Chairman: They made that very point last evening.
Mr. Kroeger: If they can reverse the re-bureaucratization that has
been going on for the past five or six years and start to give public servants
confidence that they can exercise discretion again, the government will work
better and the public will be better served, but that is not an easy thing to
The Chairman: Gentlemen, this has been wonderful. It has been a great
experience. You shared your very considerable experience and I hope that if we
need to bring you back before we finish our deliberations you would agree to
that as well because you certainly have benefited our understanding of this
complicated piece of legislation.