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 the bill.

Senator Donald H. Oliver (Chairman) in the chair.

[English]

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 accountability.

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.

[Translation]

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 the Senate.

[English]

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.

[Translation]

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.

[English]

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 electorate.

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 legislation.

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 example.

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 Minister.

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 interim appointments.

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 recognized parties.

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 questioned.

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 Canada.

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 one.

Ms. O'Hara: It is an omnibus bill. The government made the decision that —

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 legislation.

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 read through.

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 speech yesterday.

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 code.

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 view?

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 "consultation."

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 talking here?

Ms. O'Hara: The title is Commissioner of Canada Elections, who actually investigates offences under the Canada Elections Act. It is a separate position.

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 matter: accountability.

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 accountability.

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 funding.

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 review.

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 protected.

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 adopted.

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 interest.

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 convention?

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 difficulty?

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 C-24.

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 did.

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 question.

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 the future.

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 commissioner.

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 the act.

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 sympathies.

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 offence.

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 transparency.

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 Librarian.

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 different processes.

On page 43, under Conflict of Interest and Ethics Commissioner, subclause 81(1) states:

The Governor in Council shall, by commission under the Great Seal, appoint a Conflict of Interest and Ethics Commissioner after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and 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 wrong.

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 years?

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 other people.

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 judges.

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 senators —

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, please.

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 second round?

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 distinctly.

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 fundamental problems.

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 provision.

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 all that.

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 constitutionally.

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 Canada.

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 remarks.

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 particular position.

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 necessary.

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 overkill.

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 each other.

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 improve.

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 raising.

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 organizations.

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.

[Translation]

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 in-depth studies.

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.

[English]

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 government programs.

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 parliamentary committee.

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 look into.

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 2004.

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 consequences.

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 appointments.

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 agency.

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 novel development.

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 Parliament.

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 processed.

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 that.

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 policies.

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 happen.

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.

[Translation]

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.

[English]

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 gets sued.

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 bureaucracy.

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 endless, frankly.

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 Parliament.

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 problems.

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 activities.

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 you.

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 retroactively.

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 estimates process.

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 constitutional relationship.

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 do.

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.

The committee adjourned.