Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 8 - Evidence, September 21, 2006 - Afternoon meeting
OTTAWA, Thursday, September 21, 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 1:50 p.m. to give consideration to the bill.
Senator Lorna Milne (Deputy Chairman) in the chair.
The Deputy Chairman: This meeting of the Legal and Constitutional Affairs Committee is now in session. Senator
Stratton wishes to speak.
Senator Stratton: I would like to tender an apology to the committee. When I was talking about that letter, I
assumed everyone had it. My apologies for doing so. When I received it, I assumed everyone else had received it.
The Deputy Chairman: I thank you very much for that, Senator Stratton.
Senator Day: The letter has been sent to the Chairman. We accept Senator Stratton's apology, but I think it
appropriate that the letter be read into the record and submitted.
The Deputy Chairman: Certainly, Senator Day. This is a letter from Steven MacKinnon, the executive director of the
Liberal Party of Canada. It reads:
Dear Mr. Lafrenière,
At my presentation before the Senate Committee on Legal and Constitutional Affairs on September 7, 2006, I
stated that I would file a written statement with the committee. Upon review of the session, we believe that we
have aired all issues and stated all our substantive objections with Bill C-2. Therefore, we will rely on the record
and not submit any additional document. We remain available for consultation at your request.
We are meeting to continue the study of Bill C-2, providing for conflict of interest rules, restrictions on election
financing, and measures respecting administrative transparency, oversight and accountability. The bill is more
commonly known as the federal accountability act.
As senators, our witnesses and members of the public, both here in the room and across Canada on television know,
this bill reflects a central portion of the government's agenda and is an important piece of legislation. The committee is
giving the bill the extensive, careful and detailed study that it deserves. By the end of the day today, we will have held
over 60 hours of meetings on the bill and heard from 90 witnesses.
Our first witnesses this afternoon will continue with the issue of privacy and access to information, which we
considered this morning.
I welcome Anne Kothawala, President and CEO of the Canadian Newspaper Association, and David Gollob, the
organization's Vice-President of Public Affairs. The Canadian Newspaper Association is the voice of Canada's daily
newspaper industry, promoting the positive reputation of newspapers as an important medium that benefits all
The association is a vigorous champion of journalistic freedom and democratic reform. It is an important source of
industry information, trends and best practices.
I am also glad to welcome Stanley Tromp, Research Director of the B.C. Freedom of Information and Privacy
Association. The association's main objectives are twofold: first, to defend and improve public access to information;
and, second, to defend personal privacy. The committee welcomes you, and we will open the session to presentations
Stanley Tromp, Research Director, B.C. Freedom of Information and Privacy Association: For eight years, I have
been the research director for the B.C. Freedom of Information and Privacy Association, FIPA, a non-profit group
based in sunny Vancouver. I am also a freelance journalist who has made hundreds of access requests over the past 15
years. I am delighted to be here. We are not so rushed as we were in the House of Commons Bill C-2 committee, and
the context seems less partisan. I am honoured and grateful for this opportunity to appear before you. Although I am
not averse to the concept of Senate reform, I have long thought that the hard work and reports produced by senators
are mostly unknown and unappreciated by the public.
Government transparency is a basic moral principle that transcends political parties and ideologies. We support
reforms to the Access to Information Act proposed by Justice Gomery, Information Commissioner John Reid and the
federal Conservative Party during the recent federal election.
FIPA urges the federal government to fulfill all eight promises of Access to Information reform made in the
Conservative election platform of 2005, and we urge that the accountability act, Bill C-2, be amended to include these
reforms. We were deeply dismayed that these promises were broken. I am sure we all know what the eight promises
were; they have been repeated countless times. In my printed submission, our main point is that the time for study on
access to information reform has long passed, and the time for action is now. Many pledges made by the Prime
Minister were also advised in a 2001 all-party House committee report on Access to Information reform led by Liberal
MP John Bryden, and in the massive 2002 report on the subject sponsored by the Treasury Board. After all this work,
it seems astonishing that the new Treasury Board president has sent a regressive White Paper to the House committee
on ethics information and privacy for yet more study.
Senators have a fine opportunity to compel the government to keep its promises to the public. You can send your
amendments, including Mr. Harper's eight points, to the House of Commons for a vote. Also, senators or MPs can
propose a private member's bill. The only major amendment to the Access to Information Act directly was produced
by backbench Liberal MP Colleen Beaumier in 1998 on section 67.1 of the act. The amendment raised penalties for
improper destruction of access to information records. That bill passed, as yours could, too, especially in a minority
parliament. I urge you to be proactive, not reactive, to be creative and, to use an old cliché, to think outside the box. If
the House of Commons or Senate legal counsel tells you that amendments that fall outside the wording of Bill C-2 are
inadmissible, I hope you seek a wider variety of legal opinions on that point.
On needed reforms, for example, this book is the report of an all-party House of Commons committee on access to
information reform. Six of the eight members were Conservatives, and it was chaired by a Conservative. It is called
Open and Shut. I propose that you endorse its recommendation number 4.1, on what is perhaps the most contentious
dispute in Access to Information reform: that is, order-making power for the Information Commissioner. The book
advises that the commissioner not be empowered to order the release of records but would be allowed to issue orders
on procedural or so-called secondary issues, such as to request delays and waiver fees. I, of course, would prefer record
release powers, but still, this temporary compromise would break the deadlock.
I wonder how anyone could object to such a modest change. Any senator could propose this measure in a private
member's bill or advise an MP how to do so. Even I know that politics is the art of realism and compromise. In my
view, the biggest single problem with the Access to Information Act is the fact that only 49 of Ottawa's 246 Crown
corporations, agencies and foundations are covered by the act. These organizations perform vital public functions,
spend $9 billion of taxpayers' money and are not fully accountable to the public or even to parliamentarians. Most
such entities are covered in the access to information acts of Britain, Australia, New Zealand, South Africa and other
nations, so why not here? The dilemma is old. A Canadian Press story in August 2002 reported that Prime Minister
Chrétien's office was ``working overtime to draft amendments to extend the Access to Information Act to these
entities,'' but this was not done.
These quasi-governmental bodies have fiercely resisted Access to Information coverage for decades with a plea that
Access to Information could imperil their economic and competitive interests or their very existence. These arguments
are simply unjustified because the Access to Information Act already contains sections 18 and 20, which amply protects
them from commercial harm. Other countries have Access to Information. If an official of one of these entities comes
here and makes these arguments to you, I hope that you insist that they explain exactly how sections 18 and 20 of the
Access to Information Act supposedly do not offer them enough protection, and that they have evidence and
precedents for their claims.
Even if their claims were true, why are the Canadian Blood Agency and the Nuclear Waste Management
Organization not covered by the Access to Information Act? These organizations deal with subjects vital to the public's
health and safety and are not profit-driven. Even the Seaborne panel that set up the nuclear waste agency advised that
it be covered by the Access to Information Act, but it never was. The decision seems to be, to use an old cliché, a no-
On the issue of cabinet records, it is vital to note that the original Access to Information Act in 1982 did include
cabinet records. However, as Senator Fox, who introduced the act as a cabinet minister in 1982, may recall, cabinet
approved a new version of Bill C-43 at the time with a major amendment that cabinet documents not be covered and
the court review power not extend to cabinet records. The opposition parties gave cautious approval at the time, and
the act passed, as we know. That need not be the case again today.
Also, there is a special problem raised in an essential new book called BlackedOut: Government Secrecy in the
Information Age, by Canadian professor Alasdair Roberts, the academic expert on the topic. He notes that government
has a so-called amber light process to filter out politically sensitive access to information requests made by the media
and opposition MPs and to delay them so that public relations staff can strategize and spin a response prior to release.
I expect that this process runs counter to the will of Parliament when it drafted the Access to Information Act, and I
urge you to raise amendments to stop this intolerable practice. Also, I hope you will protest the manner in which the
successor to Information Commissioner John Reid was chosen this month, that is, by a brief advertisement in the Privy
Council Office. It would be most amenable to internal bureaucratic applicants. I hope you can propose an amendment
to ensure that this practice not happen again.
To conclude, I mentioned the report, Open and Shut, at the beginning.
The date on this book is 1987. That is nearly 20 years ago. It urges the coverage of quasi-governmental bodies; it
urges that all records released, except cabinet records, be discretionary and subject to an injury test; it urges a stronger
public interest override section with a positive duty to disclose records.
These are all issues we are pleading for again today. I worry that 20 years from now I will be back in this chair
pleading for the same reforms in a kind of circular time warp.
Each senator can create a legacy for the public and his or her constituents that will survive long after we are gone.
Senator Fox, we are grateful to note, worked as a cabinet minister to pass the Bill C-43 in 1982. This is an historic
opportunity for open government. I hope you will all seize it as it may not come again.
I close with two lines from the British television series ``Yes, Minister,'' an episode entitled ``Open Government.'' Sir
Humphrey Appleby, the supreme bureaucrat says, ``I explained that we are calling the white paper open government
because you always dispose of the difficult bit in the title. It does less harm there than on the statute books.'' ``It is the
law of inverse relevance: The less you intend to do about something, the more you keep talking about it.''
Anne Kothawala, President and Chief Executive Officer, Canadian Newspaper Association: I will be saying a few
Honourable senators, I would like to start by thanking the chairman for having given me the opportunity to appear
before your committee and address the concerns of our members regarding Bill C-2. I am accompanied by David
Gollob, Vice-President of Public Affairs for our organization.
The Canadian Newspaper Association speaks on behalf of newspapers which provide news and information to over
12 million Canadian adults each and every day. Our members include 81 dailies published from coast to coast in both
official languages, and Chinese.
Just as Canadians look to the Senate for thoughtful analysis of legislation, they look to newspapers for insight and
context. Our readers depend on the stories we publish to make informed choices about government decisions. They
depend on us to get the story right, not just the facts, but also the story behind the facts.
We share your committee's interest in greater transparency and better government accountability. We need to have
access to the facts behind government decisions, as you do.
Canadians want the real story, warts and all, as opposed to the version preferred by government communications
teams. As I know you well appreciate, these are often not the same.
When access to information is blocked, we cannot do our job. If we cannot do our job, our system of democracy
suffers. All Canadians should be concerned about that, given the lessons of recent history. From the tainted blood
scandal where records were shredded, to the Somalia affair where records were hidden, to the sponsorship issue where
records were deliberately not created or were intentionally withheld. The lessons are that accountability is impossible
The campaign platform of the Conservative Party in the federal election of 2006 promised that a Harper
government would take steps to prevent such breaches of public trust in the future. The Conservative platform, Stand
up for Canada, provided a detailed, five-point plan to reform the Access to Information Act as part of a program to
restore accountability and trust in our system of government.
The core of this plan included 100 recommendations from the Honourable John Reid, Information Commissioner
of Canada, at the request of the House of Commons Standing Committee on Access to Information, Privacy and
Instead of implementing these recommendations as promised in Stand up for Canada, the government, on assuming
office, opted for a so-called two-track approach. Riding on one of these tracks are amendments to the Access to
Information Act contained in Bill C-2. On this track, you will see only one of the five promises made in Stand up for
Canada. The other four promises, including the promise to implement the Information Commissioner's 100
recommendations for change, have been literally sidetracked. The promised reforms to strengthen the Access to
Information Act, along with a discussion paper prepared by bureaucrats listing every conceivable reason why no
government in its right mind would implement them, have been sent to a standing committee of the House.
Our fear is that a once bold initiative to restore transparency will languish until after the next election and perhaps
forever. Therefore, despite its name, critical steps, without which improvement in accountability is not possible, are
missing from the proposed federal accountability act in its current form.
The only promise kept under Bill C-2 is that which extends the Access to Information Act to crown corporations,
foundations and government agencies.
In doing this, the drafters of this legislation also attached exemptions and exclusions that undermine the usefulness
of this change. In most cases, the exemptions limit what can be requested to matters of general administration. Things
Canadians might actually care more about — the mandated activities of the Crown — are excluded without injury test,
without a public interest override, without oversight or review and for all eternity. These exemptions and exclusions are
contrary to the spirit of the Access to Information Act, which says that exceptions to openness should be limited and
specific. They undercut the public's right to know. That is why we are appealing for you to amend Bill C-2.
The CNA had hoped that a government elected with a specific mandate to carry out long-awaited reforms to
strengthen the Access to Information Act would carry out its program. However, the changes promised were perceived
by many within government as being too radical. They would compel government institutions to change the way they
It does seem a lot easier to change a government than to change the behaviour of government.
We continue to hope that the Conservatives will find a more effective method to honour their five promises with
respect to enhancing transparency and accountability.
We understand it is not within your power to make that happen. However, we are asking the Senate to make some
simple but essential changes to the proposed federal accountability act that will rein in government secrecy and ensure
that its application, as it was intended to be, limited and specific, in keeping with the spirit of the Access to Information
We specifically ask for three things: We ask that you convert the new exclusions from the Access to Information Act
contained in Bill C-2 to exemptions and make them subject to review by the Information Commissioner. We ask that
you provide a general public interest override for all exemptions in this legislation so the public interest is put before
the secrecy of government. We ask that you ensure that all exemptions from disclosure — and this should include draft
audits and whistle-blowing investigations — are justified only on the basis of the harm or injury that would result from
disclosure, not blanket exemption rules.
The CNA sincerely hopes that this chamber will amend Bill C-2 to ensure that it provides for greater openness and
transparency. Without that, the federal accountability act will simply fail to achieve its promise.
I would just like to say in closing, if there was ever an issue that required the sober second thought of the upper
chamber, this would be it. Thank you so much, and I will be happy to answer any questions.
The Deputy Chairman: I thank you very much for your presentations.
Have any of you seen the amendments that were suggested to us by the Information Commissioner's Office
Ms. Kothawala: Yes, we have.
The Deputy Chairman: Do you agree with them?
Ms. Kothawala: Yes, we support them.
The Deputy Chairman: You support them, so that would stand in lieu of your converting the new exclusions to
exemptions and making them subject to review by the Information Commissioner, because one suggestion was
removing clauses 89, 147, 149, 150, 172 and 179 from the bill, and those include the exclusions, I believe.
Mr. David Gollob, Vice-President of Public Affairs, Canadian Newspaper Association : That is correct. We have
followed very closely the arguments that the Information Commissioner and his office have made; in particular the
special report to Parliament that was tabled shortly after the tabling of Bill C-2, and we concur with most of the
recommendations he has made since last April.
Mr. Tromp: The Information Commissioner has always publicly opposed granting order-making power to the
commissioner and we disagree. We strongly believe there should be order-making power. That is our only major point
of disagreement with the commissioner.
The Deputy Chairman: What do you mean by order-making power?
Mr. Tromp: Such as the commissioners have in the provincial acts in B.C., Alberta, Ontario and Quebec, it is the
power to order disclosure of documents and other administrative procedures.
The Deputy Chairman: Have you any suggested wording for such an amendment? That amendment is broad
Mr. Tromp: We are still working on the specific wording clause by clause, but that is the general thrust, and the idea
of order-making power has been widely endorsed by many other groups.
Mr. Gollob: As much as that issue is valid and legitimate to discuss and debate, and being conscious of the pressures
of time and the moment on this committee, our focus today is more in line with the specific provisions of this bill. Our
appeal to you, as Ms. Kothawala stated, is that you reverse the harm that we allege is contained in this bill in its current
The Deputy Chairman: When we asked the access to information officers if they had a minimum requirement to
improve this bill, they suggested removing just two of these clauses from the bill, and they started with clause 150. I
believe clause 172 was the second one. They said their minimum requirement was to remove those clauses from the bill.
Are you holding out for all of them or just two minimum ones?
Ms. Kothawala: Clause 150 deals with the exclusions. At a minimum, we would also include the public interest
override. That is a critical and important one. Finally, what I tabled in my remarks is basically what we consider our
minimum. That would also include ensuring that all exemptions from disclosure are justified only on the basis of harm
The Deputy Chairman: There is an injury threshold there.
Ms. Kothawala: Correct.
The Deputy Chairman: I asked a question of a witness this morning, Ken Rubin, and I would like to put it to all of
you as well. Have you given any thought to what percentage — particularly you, Ms. Kothawala — of your members'
work would be negatively affected by this bill if it goes through without amendment?
Ms. Kothawala: That is the whole trouble with the current system. Even in its current form, the whole access to
information system is driven on a complaints basis. There are times, particularly for smaller media outlets, smaller
newspapers in jurisdictions across the country, where they do not have the resources and money to go through this
long and complicated appeal process that sometimes takes a year or two years. Really, at the heart of this whole
problem is delay. That happens time and again, where the identity of reporters' requests is revealed, and that results in
delay of information coming out. Delay is what kills stories. Those are the stories that newspapers are trying to get to
the bottom of: how taxpayer dollars are being spent and how government is using precious resources. These stories are
all important for Canadians to find out what their government is up to. If we get the information a year after the initial
sense that there might be a story, the delay ends up killing the story.
Mr. Gollob: You asked about our members being negatively affected. The public interest is negatively affected
because every delay is a disincentive to newspapers, particularly small newspapers, as Ms. Kothawala has mentioned,
to make use of this act and to spend time doing the research because of the hoops that you have to go through to get
information which, at the end of the day, may very well be denied to you. Therefore you have made this investment of
time and energy for nothing. This is an important aspect of how the act is administered. What we are saying today
though is, this is not an ideal situation; please do not make it worse.
The Deputy Chairman: As you have pointed out in your presentation, Ms. Kothawala, many of the proposed
exemptions have no time limits. The term you used was for ``all eternity'' these issues will be private. How can this
situation possibly serve the public interest?
Ms. Kothawala: That is precisely our point. It goes beyond even the public interest and it goes to the Auditor
General having powers not to release information for all time. This situation not only impacts on the public interest, it
impacts on our collective history as a nation. It impacts on our ability to reconstruct what happens in our past, when
we do not have access to any of those documents.
We suggest here a level of secrecy that is higher than that afforded to cabinet. Even cabinet has a 20-year time limit.
It seems to me that no officer of government or Parliament should be subject to an exemption that would cover all
time, and would be greater than any member of cabinet.
The Deputy Chairman: That is probably a valid point.
Senator Stratton: I have a brief supplementary question. We will have officials back rather than my going into it, to
at least give an explanation as to why they would do this with respect to, as the senator says, for ``all eternity.'' There is
good reason for that, as we heard in earlier testimony, and I would ask that if you could review that testimony and then
perhaps get back to us with that perspective, I would appreciate that.
Ms. Kothawala: We would be happy to do that.
The Deputy Chairman: I believe the testimony was mainly on sharing economic secrets.
Senator Stratton: Yes.
Mr. Tromp: May I just add one point on time limits? Even when time limits are set they are often far too
conservatively estimated. For example, in British Columbia there is a 15-year limit on cabinet records. Advocates are
pushing to have that reduced to 10. I have seen British Columbia cabinet minutes of the late 1980s and they are so
innocuous and uninteresting, it is hard to understand why anyone would want to conceal them and for what purpose. I
expect the same would not be vastly different with the federal records as well.
The Deputy Chairman: I have been told that is sometimes true about committee hearings, too.
Mr. Tromp: I cannot imagine that.
Senator Joyal: I, too, have some preoccupation about having a blanket on information forever. I can understand
when there are patent issues that need to be protected, and even with drugs the time lapses after 20 years, after which
time the information is made public. There should be a time limit after which information essentially of a public nature
is made available. Let us take an example. If the government decides upon an important new program or policy, many
steps precede that type of decision. There is consultation with various groups, special studies commissioned, experts
called upon to pronounce, and so on, and there are options presented to cabinet and then working papers sent back to
departments. A large amount of information is accumulated. That documentation should be made available as
background historical material. I can understand that for a time that material might not be available, but after a period
of time they are made available. I have been a minister of the Crown, and I knew that what I said on a particular
cabinet decision would be made available after 20 years. I knew that people could go back to what I had said, see the
arguments, and judge whether the arguments were right or wrong, because of course the situation would have evolved
To have a blanket exclusion forever does not distinguish what could be available and what would be useful, because
we learn from access to material that might not be made available immediately but should be available down the road
for the purpose of reflection, analysis and reassessment of policies and so forth.
I have difficulty understanding an argument of blanket exclusion forever, unless it is to protect patents or
proprietary rights of a third party, whereby, as you said, the test of harm and injury would be applied by an arbitrator
who would be independent. I totally agree with that.
To just have an open-ended exclusion forever does not appeal to what I call a balanced mind. Reading your
material, and especially that of Mr. Tromp, in the presentation that was made on your behalf by Mr. Rosenberg last
May in the House of Commons, he concluded the last two points of his presentation with this:
In addition to the above, we wish the Committee to know that FIPA disagrees strongly with two elements of the
— the proposal to keep secret permanently all records relating to investigations of wrongdoing in government;
— the imposition of secrecy over draft internal audit reports and working papers for 15 years.
This kind of blanket secrecy is a clear violation of the public's right to know and we feel it cannot be justified.
We hope that the committee will amend the relevant sections of the Act.
Those two points complement the third point that you make in your own presentation this afternoon, Ms.
Kothawala. How can we manage to have the objectives of the government served and balance in the wording of the act
the capacity to establish a system that protects what needs to be protected for a while, but at a point in time makes it
available? It is important that we try to reflect on it, especially on the basis of investigation of wrongdoings in
government. If the material of a court case becomes available through criminal charges — very serious materials — I
cannot understand why a system of administrative investigation could not become public after a certain period of time,
especially when there is a lapsing period whereby everybody is dead or out, retired and so forth. It does not appeal to
reason to exclude that material forever without criteria to balance it. At a point where someone is involved, he or she
could receive a notice and protest, and the file might be kept confidential, but at least there should be a system to
balance both, which seems to be missing in this approach.
Mr. Tromp: Yes, I completely agree that is a problem. We think the ideal solution would be for a clause in the act for
a systematic proactive disclosure of all records such as cabinet records after 20 years. I cannot see why one would have
to make an ATI request for it. It could even be put on the government internet pages. The other harms test would still
apply to these records, for example, third party privacy or national security, which could last longer than 20 years in
some cases, but in general there is no reason why it should be open-ended at all. I cannot understand why that was
Ms. Kothawala: What you are speaking about is what we have always thought, that there is a fundamental
philosophy here, and the philosophy in this particular piece of legislation and the new piece of legislation is that the
onus is not, in fact, on disclosure. The onus is not on government to say why this document should not be disclosed. It
is the other way around: Here are all the documents that we are not going to disclose, because there are all sorts of
reasons why we think we should never disclose them. They do not actually have to say exactly why.
National security and commercial transactions are absolutely important things, but those are red herrings in the
sense that there is already adequate protection and provisions in the current act and in the federal accountability act
that protect those very issues with which we absolutely agree. We are not suggesting for a moment that these types of
information should just be released willy-nilly if they have something to do with national security or a commercial
transaction. We have never for a moment suggested that. With respect to cabinet confidences, we are not suggesting
that the business of cabinet should be an open book for all Canadians to see from the get-go. We understand that there
are some decisions and deliberations that need to happen behind closed doors so that parliamentarians feel that they
do not have to watch what they are saying and that there can be an open debate. We have never, for a moment,
suggested that that should not be the case. However, there is a happy medium between what is being suggested and
what we are suggesting. I believe ours comes closer to putting us somewhere in that happy medium.
Mr. Gollob: If I could just add to that, in response to Senator Joyal's question, and also with reference to Senator
Stratton's point, that the word ``balance'' that you used is key. In many critical decisions where the rights of a free press
in a democratic society are an issue, the Supreme Court has always said we must take these rights into consideration
and balance them against other rights. That is the spirit of many landmark decisions of the Supreme Court, such as the
Dagenais decision. In this case, too, as Ms. Kothawala was saying, there are protections built into the Access to
Information Act for economic and confidential information of various types, such as propriety information.
The issue is whether we should have a balance and oversight? Should we have a balance of one set of rights against
another? The role of the Information Commissioner is to determine whether an exemption meets an injury test to
justify secrecy. We are saying that secrecy must be justified. There must be a balance. There is no balance when you
have blanket exemptions and exclusions.
Senator Joyal: That is difficult to support enthusiastically in that bill. For a blanket exclusion, there must be such
fundamental reasons that everyone would understand the reasonableness. However, the reasonableness is not so
obvious at first sight that we should include that kind of provision in the bill. One way of addressing it is to establish a
capacity for the system to request a prolonged extension of exclusion on the basis of re-evaluation. As Mr. Tromp said,
something that should be excluded in the next five years could be made totally available ten years from now because
the situation has changed. For example, the people who were involved have gone away and so on. There are many
However, what if there is no such system or capacity to review on the basis of reasonable criteria and to appeal to a
court? If the decision of the commissioner is not accepted by the administration, the administration can go to federal
court and argue. There will be layers of reasonableness decisions to maintain the secrecy on the basis of arguments that
seem to be reasonable to an independent authority. That seems to me to be the system we have always wanted to
maintain in Canada, especially to maintain sound principles of public administration, and the capacity of people to
understand and to have access to the information.
I am wrestling as much with the request to remove those sections as I am trying to understand a fallback solution
that would be acceptable to a reasonable person so that your objectives are met and the objectives of the
administration are met at the same time.
Mr. Tromp: I would like to raise briefly the best example I know about the need for time limits on record disclosure.
There were cabinet meetings around the 1970 FLQ crisis and the War Measures Act that were closed for 20 years. In
the early 1990s, the media made an access to information request for that information and got the minutes of the
cabinet meetings. The minutes revealed that the then commissioner of the RCMP advised cabinet against imposing the
War Measures Act. His advice was ignored, and the War Measures Act was imposed. That is an essential part of our
history. If that was closed off forever or kept under wraps infinitely, then we would have missed that important part of
Senator Joyal: Ms. Kothawala, in your presentation you mentioned, to quote your own remarks, ``Do not make it
worse.'' We have had similar comments earlier this week from the representative of the Information Commissioner, to
the effect that if some provisions of the act would have been implemented at the time of Gomery, the journalists who
investigated the issue would not have had access to the very documents that, after analysis, showed that something was
Are there any other sections of the act that you want to point out to us whereby your conclusion that this act makes
it worse should be addressed by us?
Mr. Gollob: The sections of greatest concern are the ones we have identified in our written submission. We have
some discussion, for example, of a couple of Crown corporations that we mentioned in our submission.
To give you an example, in the Gomery investigation, evidence was presented to Justice Gomery — the Auditor
General investigated it — that VIA Rail issued a contract to a television producer to make a film about Rocket
Richard, and awarded money for this film.
The federal accountability act, as written, would include Crown corporations under the Access to Information Act,
and we applaud them for that. However, it attaches an exemption that would enable VIA Rail in future to say, just as it
would have said in the past at the time of the sponsorship affair, that it was not subject to access to information. For
that reason, any request from a journalist would have come up against a brick wall. In future, VIA Rail would be able
to treat the contract for this hockey series as a confidential document and not release it. A key piece of the sponsorship
puzzle, which was out of bounds yesterday, would be out of bounds tomorrow.
In a similar way, the draft audit report prepared by a well known company for public works in 1996, which was very
harsh in terms of its review of the sponsorship program, was watered down in subsequent renditions. This draft audit
report was critical to our understanding and to journalists' understanding of what was going on in the sponsorship
affair. I believe it was credited yesterday by the Deputy Information Commissioner as the document that sparked the
first Auditor General's investigation.
This draft audit report or future draft audit reports of this type would have been accessible in the past under access
to information, subject to an injury test, but in the future, according to the language of the federal accountability act, it
would be out of bounds.
The Deputy Chairman: Are you telling us that if Bill C-2 is passed the way it stands right now, the Gomery
commission could not have happened and that knowledge would not have become public?
Mr. Gollob: We are saying that only in future will a judicial inquiry or an inquiry by an Auditor General have
sufficient power to uncover such information. If the purpose of the federal accountability act is to bring Crown
corporations under the Access to Information Act and thereby increase transparency, then this act will fail because the
exemptions undercut that purpose.
Senator Joyal: I am trying to understand the critical point that you make when you say the situation will be worse.
In all fairness, we want to be sure that we do the right thing, and we do not make it more difficult for Canadians to
have access to information. We are trying to open it. That is the overall objective of all the endeavours of which we are
This is one key issue that we want to review and address. That is why in your proposal that the secrecy of 15 years
for draft internal audits should not be maintained without a capacity to review it by an independent authority, which
would at least make it possible for someone in a neutral position to arbitrate under those terms. Maybe it is one way to
approach the objective of the government and the balance of rights that a citizen or a journalist should have to have
access to the documentation.
I understand the philosophy behind what Mr. Rubin told us earlier today, namely, that Canadian citizens have a
right to have access to information. The question is: How should that be managed and made available. How soon
should that happen? When you address the way the administration is structured, you form all kinds of distinctions
between government departments and Crown agencies that deal with commercial business and are put into
competition with other businesses, such as those that operate within their own minefield. For instance, the Millennium
Scholarship Foundation does not have competition from the private sector. There are hundreds of differences. The
important thing is to conserve the principle of a system that is right. Essentially, that is all we can do. We then leave the
system to operate within its objectives.
You have had long-standing experience with the act as it is part of your daily activities. Do you have additional
suggestions to make to us?
Mr. Gollob: My primary suggestion — and this is the suggestion Ms. Kothawala made to you — is to look at the
spirit of the original Access to Information Act. It says that the information of government should be disclosable
unless there is a reason not to be, and that exceptions should be limited and specific. Therefore, if you take the view
that all information should be disclosable, unless you can show why not, it means everything should be able to meet an
injury test. If it does meet an injury test, perhaps there might be a public interest why, in spite of the fact that some
harm might result. There may still be a compelling reason to override that injury test. However, your point of
departure of the act is that which was a very brave and ground-breaking piece of legislation 24 years ago today.
That is where we would direct you to focus your attention. Do not allow government to determine that information
of a certain type is not disclosable from here to eternity. Rather, oblige them to agree that this specific record is not
disclosable because it will cause this harm, it will violate this principle or it will cause this impact, which is negative.
Mr. Tromp: It does not seem entirely necessary to always reinvent the wheel. The very least the Canadian Access To
Inforamation Act could do is follow the best practices of the freedom of information acts in the British Commonwealth
countries of Australia, New Zealand, Britain and so on. For example, nearly all of the quasi-governmental bodies are
covered. We could learn from their experiences and see how it worked very well in those cases. It does not seem
necessary to speculate study and argue when those precedents have been established.
Senator Joyal: If I understand you correctly, Mr. Gollob, you are saying that what the bill proposes is to exclude a
whole class of information without having the possibility of qualifying and distinguishing the parts that could be made
available, at what time and under what conditions, with a neutral arbitrator.
Your fundamental objection to the bill is the fact that it contains a class of subject with no capacity to ever be
reviewed or reassessed in a period of time within the context of well-understood criteria. Am I accurately describing
Mr. Gollob: That is right. It is what the Deputy Information Commissioner described yesterday as the mandatory
class exemptions, I believe.
Senator Joyal: As you know, these things appear in different statutes. The Official Secrets Act, for instance,
determined that issues having an impact on foreign relations or the security of Canada might be sensitive to the
security and future contact of Canada as well as relations between Canada and other countries. We understand that;
however, when dealing with administrative issues, unless the rights of citizens would adversely be affected, an
arbitrator should have the capacity to review and rebalance the openness of the file to people.
Senator Day: It is nice to have witnesses who have experience with the act and how it works. We appreciate your
comments and suggestions.
This morning I had a discussion on the 30-day process, and I would appreciate your comments with regard to
section 7 of the existing act. I would like to talk about whether we need to make or propose some amendment to that
section. In addition, I wonder whether the word ``timely,'' as it appears in clause 143 of Bill C-2, which is an
amendment to section 4 of the act, is necessary.
First, tell me how this 30-day process works. You make a request for a record, and section 7 seems pretty clear that
within 30 days you should hear from the head of the department, either agreeing to make the information available or
not. Then it states if access is to be granted, give the person who made the request access to the record. If you are told
you can have access, is there a long protracted delay after that, or do you get it right away? If you do not, what is the
Ms. Kothawala: The issue you are getting at does not deal with the cases in which access is granted within 30 days.
You are concerned with the cases in which access is not granted by the end of 30 days for certain reasons. Then there is
the potential for an appeal, and that is where you get into this long protracted delay process. The Information
Commissioner gets involved, and before you know it, a substantial amount of time has passed. If, for example, the
original request comes from a journalist which, as we have learned, may be potentially flagged as a sensitive request,
there could be some incentive for the department whereby the information is being requested from to rag the puck a
little bit because they do not want that information to get out. They need to get their ducks in a row, so they will delay
a little bit.
The fact is, whether they release the information within the 30-day period or not is really immaterial because there is
no penalty for not releasing within that time.
Senator Day: Except that if they do not comply with the request within 30 days, then they are required to let the
Information Commissioner know, under section 9, that they are extending the time.
Ms. Kothawala: That is right.
Senator Day: We heard this morning that no department wants the Information Commissioner snooping around
asking why they are not doing what they are supposed to be doing. In your experience, is that accurate?
Mr. Gollob: We filed a complaint last year with the Information Commissioner alleging that media requests under
access to information were systematically discriminated against. As Ms. Kothawala was explaining, it was put in a
side-car, wrestled with separately and subjected to additional scrutiny.
Whenever an access request goes in, that request results in a routine response that we need a 30-day, 60-day or 90-
day extension, whatever the request is. The 30-day rule is not a rule that is respected or taken seriously. Then, as we
have experienced, at the end of 90 days, 120 days, 180 days, or in the case of The Globe and Mail reporter Daniel
Leblanc, who put in a request in connection with the sponsorship program, two years, we can be told that the file we
are looking for does not exist, as Mr. Leblanc was told regarding the report he requested. In this particular case it did
not exist because it was a report that had been paid for and the work had never been done, as it appeared.
Our contention is essentially that the statutory time limit is not taken seriously.
Mr. Tromp: I would like to add briefly that I have had many Access-to-Information requests delayed for over a year
and I appealed to the Information Commissioner, but he is swamped, underfunded and understaffed.
The word ``timely'' in an act is far too vague. It could mean almost anything to anyone. The act should specify the
exact number of days. The word ``timely'' is pointless.
Senator Day: You have already answered the second half of my question. Do you get any comfort from page 117,
clause 143 of this Bill C-2:
The head of a government institution shall, without regard to the identity of the person making a request for
access to a record under the control of the institution, make every reasonable effort to assist the person in
connection with the request, respond to the request accurately and completely....
Does that give you more that you could base your argument on if the answers are not forthcoming, if the record is
not forthcoming? I know it is vague, but it creates a responsibility in general terms.
Mr. Gollob: Imagine you had a busy street in which every driver ran through the red lights without stopping and you
put up a sign that said, ``Every driver shall make every reasonable effort to stop their vehicle upon seeing a red light.''
What impact would that sign have? I am convinced that if drivers are persuaded that there are no consequences from
running red lights, they will continue to run red lights. It is great language, but the remedy required here is one that is
much more rigorous.
Senator Day: That proposed amendment does not help you at all, then. If that were not there, would your position
still be the same?
Ms. Kothawala: Yes.
Senator Day: How about the amendment to the definition of ``record''? Do you have any discomfort with respect to
Ms. Kothawala: Remind me of the clause, please.
Senator Day: It is clause 141 on page 116 of the bill. The new definition of ``record'' appears just before sub-clause
(2). In the old definition — the existing law and the existing definition — record includes any correspondence,
memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photographic film, microfilm, sound
recording, videotape, machine-readable record and any other documentary material regardless of physical form or
characteristics and any copy thereof.
That has been shortened significantly and some of the words taken out of the current definition, which legal
interpretation would lead you to believe that something is left out. It is the right of government institutions and people
to obtain records. In my reading of this, that definition restricts considerably the scope of what you can ask for. Do
you share that concern?
Mr. Gollob: Could you clarify, senator? Is the new language what you find restrictive or the old language?
Senator Day: I read to you the current language. There is a proposal to redefine ``record'' to what you see here at
page 116, which is much shorter, easier to say and easier to read, but does not appear to me to be as all-encompassing
as the previous definition. Is that something your colleagues have drawn your attention to and have any concern with.
Mr. Tromp: Do you believe that the new language would not include those formats that were described before?
Perhaps if there was a clause that said ``including but not restricted to these formats'' that would be helpful.
Senator Day: Before now it was very inclusive. The law as it now exists says ``includes'' and lists all these things and
then it says ``includes'' any other documentary material, regardless of physical form or characteristic. The definition is
just that last piece.
Mr. Tromp: I believe those formats could be included in the description of any documentary material.
Senator Day: I hope you are right, but if they were, then why would you list them and then include in the definition
now all those other formats and any other documentary material, regardless of physical form?
Mr. Tromp: Perhaps they contemplated new technologies, because the ATI Act was called an eight-track tape deck
in a digital age, and there are new computer technologies that we do not know of yet that perhaps could be included in
this broad definition. Perhaps they thought it too laborious or did not have the imagination to foresee all the formats
that could exist in the future. I am speculating though.
Senator Day: Now is your chance for amendments. If you are happy with this bill, then we are happy with it, but if
you have some discomfort with it then tell us now. You are close to your last chance.
Ms. Kothawala: I appreciate that, and I think that our more fundamental problem is not around the definition but
more around the lack of anything that provides a duty to document such records.
Senator Day: It seems fundamental when you talk about access to records and there is a question about the
definition of what is included in ``record.'' However, if that is not of concern to you, I appreciate it, and we will go on
to something else.
Mr. Tromp: I do not see how this definition could exclude any of those formats described in the earlier act. I do not
see how this clause could exclude any of those.
Senator Day: Thank you for that.
Your concept is, all records, whatever a record is, are available, subject to a test of injury, and then they would not
be available. However, even if they are not available due to injury test, they might be available again if it is in the public
interest. That is the way that provision flows, back and forth. That is what you proposed in your presentation. Is that
concept in the existing legislation in some place, or is this a new idea? Has the idea been used?
Mr. Gollob: We are students of this act. The act is complex and it was drafted with great care. There are many
safeguards in it. Although it has some weaknesses and could be improved, we feel that structurally it is sound.
One instance where the injury test is routinely applied has to do with the mandatory exemptions that are not class
exemptions and not for all time. There are exemptions under the act where an injury test is applied. There are various
sections of the Conflict of Interest Act. I am not familiar enough to quote chapter and verse. Clause 18 of the act, I
believe, is one of them.
Senator Day: I am looking at section 18 in the proposed amendments; economic interests of Canada.
Mr. Gollob: Right. Section 18 of the Conflict of Interest Act is a good one.
Senator Day: Yes, but does that section have the public interest override concept?
Mr. Gollob: No, the public interest override is not there.
Senator Day: Is that your new idea?
Mr. Gollob: That is something that we are suggesting that was also recommended by Justice Gomery and by the
Information Commissioner in his reforms.
Ms. Kothawala: The Prime Minister specifically supported it in his platform, ``Stand Up for Canada.''
Senator Stratton: Who decides whether it is overridden?
Mr. Gollob: In the first instance, the commissioner, but often it goes to court. A number of cases have gone to
federal court. One of them is Babcock, which I believe was cited in this chamber.
Senator Stratton: I hate leaving it to the courts, that is all.
Senator Day: My colleague has asked me to follow up on that. It flows from the discussion you were having on the
supplementary by Senator Stratton. How do you see this working? Will it be the head of the department that does all of
this thinking initially — ``Yes, you can have it,'' or ``No, you cannot because of the injury test, but yes, you can again
because of the public'' — or will somebody else apply that test?
Mr. Gollob: We imagine that in the first instance what would happen is that the department would say, ``This meets
our injury test.''
Senator Day: In other words, ``You cannot have it.''
Mr. Gollob: ``You cannot have it; it is denied.'' The requester then makes an appeal to the Information
Commissioner. Currently, my understanding is that the Information Commissioner can only determine whether or not
it meets the injury test. If he or she confirms that it meets the injury test, then of course the record continues to be
denied. If it does not, then the Information Commissioner can seek to resolve this internally or can take the issue to
What we are proposing is that the Information Commissioner might also have the power to say, ``Yes, this does
meet the injury test. However, there is a compelling public interest that requires this to be released.''
In this event, it is possible that were such powers to be given to the Information Commissioner, the department
would still have an avenue of appeal. That appeal might also end up being to a court.
Senator Day: As I understand your evidence on this point, a citizen needs a clause in the act that would provide for
this public interest override, would need some opportunity to debate this based on public interest?
Mr. Tromp: Yes. I might add briefly that public interest override is found in the freedom of information acts of
Ontario, British Columbia, Alberta and others, and these are good models for the federal ATI.
Senator Day: That is helpful. We will make note of that.
My final question is still on section 18, the exceptions or exemptions. You are unable to get something; the head of a
government institution may refuse to disclose any record requested under the act, and then we go on to list a few
things. This is in the current act.
I will refer you to page 118 and 119 of Bill C-2, which purports to amend section 18 and add to it. Down at the
bottom, section 146 amends section 18(b). You will have to take my word on this, if you do not want to spend a great
deal of time comparing them, but what I see as the amendment is the final two lines. The first part of 146, 18(b) says
that the head of the government institution can refuse to give you the material if it would prejudice the competitive
position of the government institution. The next part is being added: ``to interfere with contractual or other
negotiations of a government institution.'' That is the additional out for the government not to produce, based on your
request, if it will interfere.
Is that something that they have been crying out for? Is this something that is an obvious addition that should be
there to prevent the disclosure of documents?
Mr. Gollob: There are clearly examples where it would be in the public interest to know how much the government
has paid for a particular good or service that it has contracted to acquire. It is part of the accountability trail to be able
to follow these transactions and have some public record of them. It is in the interests of Parliament and it is in the
interests of the public.
However, it would appear that this language has been drafted to protect the interests of Crown corporations or their
subsidiaries who compete in the marketplace. However, to my mind, that is not sufficiently made clear in the language
of this amendment.
Senator Day: It is clear that it is another restriction on the access to information.
Mr. Gollob: Again, the issue is, what is broken here that requires repair? Who has been harmed that you need to go
into the act and make this change? We have not been demanding it. I have no record of anyone having suffered or
reported to have suffered harm or injury as a result of anything that is in the act, and we are talking government
institutions, so what is the problem that this clause is trying to fix? If there is no problem that it is trying to fix, and the
language is more restrictive, as you say, why is it being included?
Mr. Tromp: I would like to add that this clause seems to be entirely unnecessary, because these competitive
commercial economic harms are already covered by section 18 and 20 of the current act, and I would encourage you to
ask any quasi-governmental official why this clause is necessary; why section 18 and 20 are insufficient; what harm they
have ever caused; if they can cite precedents from other jurisdictions, et cetera; and insist upon evidence for these
Senator Day: That in fact will be an amendment to the current section 18.
At the top of page 119 is the other amendment to 18, and that is 18(d). This is another basis upon which the head of
a government institution may refuse to disclose a record. In this instance the change I see is in the fourth line:
``materially injurious to the financial interests of,'' and it used to be the Government of Canada and now it has been
changed to ``the government institution.'' Something could be materially injurious to a government institution much
quicker than it would be to the Government of Canada. This will be triggered much sooner than it would have been
under the current act. This is another amendment on which we are asked to vote. I want your help on whether we
should vote for or against this.
Mr. Tromp: Is it clear what ``government institution'' is defined as, if all these quasi-governmental bodies would be
in that definition?
Senator Day: ``Government institution'' is defined. It is a new definition, as you know, under the act, and it is at
page 116. You do not have the luxury of going to a schedule and saying, ``We know what all the government
institutions are; they are all listed.'' That is the way it used to be. In fact, that is the way it still is until this amendment is
voted on. Now ``government institution'' are very general words, and it runs on over to the next page, page 117.
``Government institution'' will be as defined under this Bill C-2.
Ms. Kothawala: Your concern that it could trigger an exemption sooner is a valid one. We would share that concern.
It really broadens the scope. So much of the business of government is now conducted not by the classic Crown
corporation, but by the quasi-governmental bodies. These organizations are still funded by the taxpayer and
supposedly behave like private corporations. The question is whether the institutions are using taxpayer dollars and
performing a public service. So much of what government used to do is now being quasi-privatized. It is not sufficient
to say because it is being quasi-privatized that there is no longer that duty to disclose its dealing. Whether the
organization deals with airline safety or other issues that used to fall completely under government, it should not be
how the organization is defined that determines whether information about their dealings should be made public. That
should not be how we determine whether that information should be accessed, not based on the definition, but based
on whether they engage in the public delivery of a service or whether they use taxpayer dollars. That should be the
Mr. Tromp: The definition in this clause appears to be completely inadequate. It appears that many foundations and
other quasi-governmental bodies could escape this definition and so not be covered, and is unacceptable.
Senator Cowan: I wonder whether the change is because the head of the institution is making a determination
whether or not to disclose. That is why it is restricted to the institution rather than to the Government of Canada,
because it is not Canada or the Prime Minister deciding on behalf of Canada whether or not a disclosure has taken
place. That may be the answer to the reason for the change.
Senator Day: That is a free comment. I do not think you are able to comment on that, but I will just finish with this
comment: We have to study Bill C-2 and determine whether it is achieving what it is purporting to achieve. My concern
is when it says that we are changing the definition of ``government institution''; at first blush, everybody says it is good,
because there should be more accountability and more organizations and government institutions subject to the Access
to Information Act. Then you see many exceptions, which cause the information officer a lot of concern. We focused
on a lot of exceptions that pertained to new organizations that are being brought in under the umbrella, but the ones I
have just drawn do your attention are new exceptions and new restrictions that apply to everyone, all companies and
all government institutions. They are not restricted to the new Crown corporations and new foundations that are being
Ms. Kothawala: As I said, I think you are rightly concerned about that, and we would share that concern.
Senator Stratton: In listening to testimony this morning, it was really fascinating as well, particularly the evidence
given by David McKie a journalist with CBC. He stated that there is a system that seems to be working in response to
inquires, and that is the Department of Defence. He said that departments responses were prompt and informed. He
did not see why that could not be applied across government. If that is an example that works, why would we not want
to look at that and try to ensure that it now translates across government under existing rules? That is the part that
surprises me, which is that there is a department where it does work.
Have you had experience with the National Defence? Is that so, and if it is so, then why can we not have it across
Ms. Kothawala: National Defence is a great example, but it was not such a great example before Somalia. I believe
Somalia played a huge role in terms of bringing to the attention of Canadians that this kind of behaviour could and
would not be tolerated by citizens. The department responded, but it should not take a major event like that to get a
department to change the way it does business. That, unfortunately, does not seem to be the general philosophy. It is
approached from the other side, which is ``here is why we are not going to disclose this information.''
Mr. Gollob: We did have a major event and it caused, arguably, a change in government. Why has it not also
produced the change that you are recommending that it should follow the example of National Defence and that there
be a standard of rigour and compliance with the Access to Information Act right across government? We would
welcome such a change. That would be a big step towards transparency. Instead, we see restrictions on transparency
included in this legislation. We therefore are requesting of the Senate that you pay attention to these areas, and
additional areas that we did not draw to your attention, as Senator Day has just brought up, and ensure that the onus
for transparency remains on government.
Senator Stollery: I am not disagreeing. When you find a department that works and appears to be satisfactory, such
as the National Defence, you would wonder if it works in that department, the system is not broken. It went off the
rails because of the Gomery inquiry — and I want your response to this because it is a little contentious — and if that is
the case with National Defence, then surely to goodness we can find a way to ensure that other departments do the
Coupled with that is my concern that I have expressed this morning, which is the question of chill on the other side.
It is always the question of chill. If you are going to be quoted, you are very careful. If you are going to be on record
and your records are released quickly, then you will be more careful. That becomes a question of balance, as we have
discussed. That bothers me, not from any bias at all, other than it is like anything else, but there are confidential
conversations about an issue or ideas are thrown around the table and some of them can be at times be pretty hair-
brained. At least some of the meetings I had with some of my partners got that way. Not that they were illegal or
inappropriate, but you had to go off the walls and out of the box at times in order to do that.
Do you think that this kind of thing would produce a chill, as it were, with the senior bureaucrats and ministers in
particular with the release of information after a short period of time?
Mr. Tromp: If you are referring to experience in the private sector, it is a different sector from the public sector
where bureaucrats have more of an expectation of openness. The stages and possibilities considered are an important
part of public policy that the public has a right to know what could have been, not just what is and perhaps what could
Without the need to be fearful, I suppose after a few years of experience with such an open system they would
become more acclimatized to it, grow with it and it would be less worrisome than at first. For example, during the first
few years of the Access to Information Act itself, it might have been worrisome to have memos, records and reports
released, but now everyone is accustomed to it. The culture changes.
Ms. Kothawala: If there is a chill and if fundamental pieces of information are not released, the natural question is:
Why? What is the government trying to hide? I understand there are certain deliberations and things that might be
stated on the record that one wants to be cautious of, but that is the nature of democracy and the way government
As I said earlier, the notion of chill is precisely why there are exemptions on cabinet secrecy, documents and
deliberations. They are in place for a long period of time. I think those exemptions are enough to address that issue.
I would like to address your first question about why we do not use the Department of National Defence as a model.
Obviously, the issue in Somalia occurred a number of years ago, and it has been some time now that the Department of
National Defence has scored well vis-à-vis other departments in terms of the record on access requests and timing. The
department has done well. That change has obviously not been enough to produce any kind of widespread change
The fundamental issue at hand is this current piece of legislation, the proposed federal accountability act. With it,
we no longer will be able to champion the Department of National Defence as a wonderful department that releases
records on time because there will be loopholes and exemptions that will worsen the situation.
That is what is so alarming about this piece of proposed legislation; it was supposed to have been put into place to
deal with the problems that are very real in government.
The electorate said loud and clear: We want accountability and transparency in Ottawa. The Prime Minister was
elected on that basis, and this proposed legislation is falling short on delivering, particularly on the transparency part
Senator Stratton: I guess we will hear from the officials as to their response. One question I will ask them is, if the
Department of National Defence seems to be working, why not use the department as a model.
David McKie put it in what I thought was a clear and concise way. He stated he is a practical man looking for
practical solutions. In this instance, as well as looking at the bill, we should look at how we can make the system work
better. Fundamentally, that is what we should look at. Do you agree?
Mr. Tromp: Yes, I agree. The defence department does a good job. I hope you study how they do it and their best
practices legislated to cover all government departments, so we do not need to rely on regulations made by the
government of the day.
The Deputy Chairman: I have a few more questions before we wrap up.
Mr. Gollob, you said a few minutes ago that you feel this bill is well-crafted. I agree. There are a lot of good things
in it. This section, however, seems to be problematic.
We heard this morning from the Privacy Commissioner that she was not consulted in drawing up the bill. We heard
yesterday from the Information Commissioner that he was not consulted when the bill was drawn up. The Office of the
Information Commissioner yesterday testified that they felt the access to information provisions of this bill were
drafted hastily and were not thought through. Do you agree with that?
Mr. Gollob: If I may correct the record, the bill that I thought was well-crafted was the Access to Information Act in
1982. I did not make that comment with reference to Bill C-2.
I believe that the Canadian Newspaper Association is in complete agreement with the view of the Office of the
Information Commissioner as expressed to you yesterday.
The concerns of other officers or agents of Parliament who may not have been consulted: the extreme haste with
which some of these measures were drafted is the only legitimate explanation for some of the shortcomings in terms of
achieving the objectives of the legislation.
The Deputy Chairman: Ms. Kothawala, do you want to comment on that?
Ms. Kothawala: Yes: We have talked a lot about what was included in the platform and the five-point plan. I want
to put on the record what I think is so fundamental to why we are here and why we are so concerned.
The detailed plan that was included in the platform stated: A Conservative government will implement the
Information Commissioner's recommendations for reform to the Access to Information Act; give the Information
Commissioner the power to order the release of information, expand the coverage of the act to all Crown corporations,
officers of Parliament, foundations and organizations that spend taxpayers' money or perform public functions;
subject the exclusion of cabinet confidences to review by the Information Commissioner; and, finally, oblige public
officials to create the records necessary to document their actions and decisions.
Our big concern is with knowing what happened. The only one that could be checked off this list is expanding the
coverage to Crown corporations. However, as we outlined in our remarks, access is given with one hand and taken
back with the other. The legislation does not do what it sets out to do. That, we believe, is a fundamental concern. The
proposed federal accountability act was supposed to deal with all these things, and it does not deal with them.
The Deputy Chairman: We must keep in mind as well that the Information Commissioner who wrote that report will
be gone in eight days, and who knows who will replace him.
Mr. Tromp: I believe the Information Commissioner should have been consulted before drafting the bill. It is
troubling that the Information Commissioner's office was not since they have the most expertise on these issues.
The Deputy Chairman: Ms. Kothawala, is it regular practice that an access to information request that would return
a one-page response under normal circumstances is met these days with a data printout of up to 1,000 pages? This is
what we heard from one of the witnesses this morning.
Ms. Kothawala: Yes: That again goes to the core of what we are talking about. Requests answered by a 1,000-page
document forcing one to go through and piece it together tend to discourage journalists from continuing to use the act.
Not only the volume of material discourages them — journalists obviously have time constraints when trying to get a
story out — but sometimes the cost. These tactics are used often to bring about delay or to not release the information
in the final analysis.
The Deputy Chairman: You are looking for a needle in the haystack.
Ms. Kothawala: Precisely.
The Deputy Chairman: Should we or could we add a clause or include some sort of recourse to ensure that a response
is as concise as possible? Sometimes the information one asks for is detailed, in any case.
Ms. Kothawala: That is a good question. I do not know that I can provide you with an answer because, I must
confess, I had not thought about exact language.
However, I would imagine there probably could be something that would deal with that issue. We have heard from
the other side that it often appears that journalists are going on fishing expeditions, so they are asking for a whole
bunch of documents and they do not know what they are going after. Often in that case, they are trying to piece those
pieces of a puzzle together, and that is exactly what happened in the case of Daniel Leblanc and the sponsorship
scandal. On that side of things, there are often good reasons why journalists request documents because they are trying
to piece the pieces of the puzzle together.
The Deputy Chairman: Take one blacked out portion and overlay it with another page and hope that they do not
Mr. Tromp, is your organization private, or is it connected with the government of B.C.?
Mr. Tromp: It is entirely a non-profit organization. Our former president is David Loukidelis, who now the
Information Commissioner of British Columbia. We have been funded partially by the B.C. Law Foundation since
The Deputy Chairman: Since you are funded by a law organization, perhaps this question applies to you. Yesterday,
we heard from the Information Commissioner, and this morning we heard from the Privacy Commissioner, who had
different concerns. Her concerns were in different areas of this portion of the bill. It seems to me your office would
cover both sides of an issue when you are talking about it. In internal discussions within your association, have you
had vigorous debate about this issue?
Mr. Tromp: No, we are the only organization devoted full time to access to information and privacy issues. We focus
much of our time on British Columbia issues, and we are having a campaign for open government starting there on
September 25. There was not much debate on these issues. My specialty is access to information, not so much privacy,
because I am also a freelance journalist and our group is in agreement with the points I have made.
The Deputy Chairman: If there are no further questions from the committee, I thank you very much for your time. It
has been valuable to hear from the people who actually need to access the information, use it and disseminate it to the
public. We appreciate the time that you have spent with us.
We will change our focus to another key element of the bill, that of ethics and conflict of interest.
We have two well-known experts before us. I am delighted to welcome on my right Dr. David Smith, Professor
Emeritus at the University of Saskatchewan, the author of a number of important works dealing with both regional
and national issues. He was elected fellow of the Royal Society of Canada in 1981 and is recipient of a number of
We have with us Dr. Sharon Sutherland, from the School of Public Studies at the University of Ottawa. Ms.
Sutherland served at the Universities of Essex, Dalhousie, Carleton and Queen's. She is a fellow of the Royal Society of
Canada. Dr. Sutherland's interests include democratic theory, machinery of government issues, comparative
institutions, the ethics of public office-holding and organizational theory and behaviour. Her publications are
concentrated in these areas.
Sharon Sutherland, Professor, School of Public Studies, University of Ottawa, as an individual: Thank you very much
for inviting me to speak on Bill C-2. My remarks are about ethics in the broadest sense and not specifically about the
provisions of the bill.
In the small world of institutionalists, it is not thought to be cricket for a minority government to introduce a bill
that would change regime rules, and rules and functioning of all the institutions right off the bat. I put on the table that
Certainly, there are some good things in the bill. The extension of access to information provisions is one. If the new
budget office of the Library of Parliament could also become a scrutiny unit at the disposition of legislators, that could
be another good thing. However, after reflection on this bill and the testimony before this committee and the legislative
committee, I can no longer say that I believe in the capacity of federal politicians to respect our basic system of
government, to respect the design for a responsible government.
I have four overlapping points to make. My theme is that Bill C-2 is not a Conservative bill; it is a radical bill. If it is
passed, we will detach ourselves from institutions that we know or could come to know again for an unknown
destination. Certainly, to be fair, federal institutions have tolerated ever-increasing ambiguity since the late 1960s and
early 1970s. Here I have in mind the reforms to the House of Commons that led to the near abandonment of focused
financial scrutiny of estimates, and second, to the proliferation of officers of Parliament.
Under this general umbrella of gloom, I will position my points.
My first point is that there is no theory of Parliament or theory of government that I can see embodied in the bill.
The bill's proposal to combine the two ethics offices of Senate and House into one is only one indication of its deafness
to these ideas. It has been the understanding that Houses of Parliament are masters of their own processes and
procedures and that one Parliament cannot bind another future parliament, and should not try. Conventions, and not
statutes, are supposed to be the feet of the Constitution.
I know that statutes can be replaced and amended and that management regimes are public policy, because how we
do things is public policy, but do we really want to spend the twenty-first century revising rules to re-establish some
equilibrium in the representative institutions and in the public service? Would we rather spend the next while providing
government and public policy to the public?
A second but related point is on the lack of a theory of parliamentary democracy in the bill. This is that no
draftsperson or parliamentarians so far appear to have investigated how officers of Parliament are connected to their
committees in the other Westminster jurisdictions. This spring, the British House of Commons Public Administration
Select Committee undertook a review of their ethics and standards watchdogs. The work is pertinent to our situation
and to Bill C-2. The committee classified British standards and ethics watchdogs into three different groups. These
include stand-alone bodies established by statute — in other words, bodies that work by themselves. Another group
includes bodies established by statute and given the status of officers of the House of Commons or of the House of
Lords, because their statutes define regimes of accountability to Parliament and its committees. There are two officers
in the House of Commons; the Comptroller and Auditor General is one person, and the Parliamentary Ombudsman is
the other. The third group of bodies are those created under the Royal Prerogative, and the Public Administration
Select Committee is their supervisor generally. Of all these bodies, the committee chose the model used for the
Comptroller and Auditor General as the gold standard for officers of Parliament. The Comptroller and Auditor
General is distinguished by direct accountability to Parliament. Besides the House's normal role in appointment and
dismissal, the House created two different select committees to govern the Comptroller and Auditor General. These
two bodies exercise oversight, give advice on program design, exercise budget approval, and review the Comptroller
and Auditor General's work to build committee reports.
If you look at this definition, we in federal Canada do not have any officers of Parliament. Perhaps you come closest
with your ethics officer. We have instead stand-alone bodies created by statutes. The statutes say that these bodies are
to be called officers or agents of Parliament. The periodic duty to table a report in Parliament is pretty much the whole
of the entire accountability regime; that is it.
It seems to me that the result of total independence from the House for Canadian officers leads to stridency and
some bodies that are ignored by committees; it leads to faltering by other bodies; and it leads to autonomous
redefinition of mandate in the other bodies. The biggest danger that witnesses before the committee talked about was
the autonomous redefinition of mandate, which can sometimes reshape democratic capacities. For example, as a stand-
alone body, our Office of the Auditor General has redefined its program of work to resemble that of a private sector
firm. The Auditor General of Canada herself has said:
But private sector firms are not defined by any core democratic ritual like that of supply, first granting of supply,
followed by scrutiny of how the money was used, and neither is OAG defined by that task.
The best understood democratic task of the House of Commons is at risk: the probity of use of public money and
government. It is not subjected to thorough-going financial audit.
I will move to my third point. In Westminster systems, Parliament is ideally brought forward to agree to changes by
consultation, and the hope is usually that if you do enough consultation, there will be consensus. For one example, the
British Civil Service Code — the code, not an act — was preceded by consultations and the Secretary to Cabinet and
his group looked at more than 2,000 communications. Where this convention is not respected in Britain, there is
vociferous complaint and backbench revolt. The result of this display of knowledge encourages considerably more
scrutiny of the executive by the legislature, even through the course of the Blair government, which has been a
government that has exercised executive powers well beyond even what Ms. Thatcher ever thought of doing, but they
have made gains.
My fourth and last point is that Bill C-2 is not built or does not encompass what I would call an ethics of human
Insofar as the bill creates a mood, there is a theme of punishment, of new crimes or crimes relocated from one
statute to another, or repeated in statutes, or summary convictions, or of naming, blaming and shaming.
Does anybody think the bill could be a good recruitment tool for the federal public service?
At the heart of the sponsorship scandal was the effect of the previous government's program review reductions of
administrative services in the public service. We are not over that yet, after 10 years. We have not rebuilt those services,
and I would ask what the readiness of the federal public service is in 2007 to manage change, including change that puts
them at risk of a $500 fine or 14 years in prison? The fines and the prison sentences are discrepant from one offence to
I conclude by saying I have great sympathy for the Senate and the task that it has before it — very great sympathy. I
looked at Beauchesne before I came here and I saw the concern voiced there with omnibus bills and I noted that
Standing Order 68(3) forbids the introduction of a bill that is in imperfect shape.
I think this bill is in imperfect shape. I do not know how to think of useful changes except to repeat some of what
other people have said. There is a great lack of definitions, and one definition that is lacking is of audit: it is nowhere
defined, yet the powers of the Auditor General are significantly augmented, although she does not want the power to
follow the dollar but she does accept immunity.
The government, I think, should be asked for the general principles behind the bill. In my view, this bill is
incomplete and hurried, and it does not pay attention to the institutional setting.
David Smith, Professor Emeritus, University of Saskatchewan, as an individual: Thank you for inviting me. The
proposed federal accountability act is a massive piece of legislation whose ambit touches virtually all areas of
parliamentary government. Making deputy ministers accounting officers has the potential to change the
understandings that have informed the relationship between minister and deputy since Confederation.
Similarly, creating an appointments commission to advise on Governor-in-Council appointments, the introduction
of so-called whistle-blower legislation and further restrictions on campaign donations, among other examples of
innovations to be found in the omnibus bill, promise a new approach to governing.
The President of the Treasury Board has said that the goal of this political transformation is ``to improve the level of
trust that Canadians have in their government and elected officials.'' Whether either the promise or the goal of this
vision of change is realizable is an assessment that cannot be made feasibly in a few minutes and certainly not in the
next few minutes. For that reason I will restrict my comments to what I see as three related matters found within the
purview of Bill C-2.
These provisions are with respect to officers of Parliament, the creation of a single conflict of interest and ethics
commissioner for the two chambers of Parliament in place of the current arrangement of an Ethics Commissioner for
the House and a Senate Ethics Officer and finally, a preference that I just divined from the bill for using statutory rules
over conventional parliamentary privilege and procedure.
The inference behind the goal of instilling public trust is that Canadians distrust their government, and in order to
turn that sentiment around, it is necessary to create a regime of guardians and laws in place of one that has been
essentially unwritten and self-regulating.
It should be said at the outset that the question of trust is not unique to Canada. That very phrase was the title of the
2002 Reith lectures on the British Broadcasting Corporations, which argued that public trust in all authority —
medical, scientific, for instance, as well as political — was in question. Indeed, the speaker, Onora O'Neill, who was the
principal of Newnham College at the University of Cambridge, said that trust was the cliché of our time. Moreover, the
triteness of the diagnosis is reinforced by the remedy that is favoured — transparency. However, there is an apparent
contradiction between the goals sought and the means employed. How is transparency achieved by adding new layers
of supervisory bureaucracy?
These days, officers of Parliament are popular figures with the media. Jeffrey Simpson, for instance, has described
the Auditor General as a folk hero and popular with the opposition. To my knowledge, how the public views officers
of Parliament has not been a matter of study. It should be, since it would reveal attitudes towards parliamentary
government; attitudes which I expect unfortunately would not altogether hearten parliamentarians. I suspect the public
would say that officers of Parliament do a better job of keeping government under surveillance than do the members
Rather than seeing parliamentarians as carrying through to completion, in the form of recommendations for action,
the work of officers of Parliament, the public and the media too often see the officers as independent of Parliament.
There is a pressing need for clarity on the meaning of independence as that term is applied to officers of Parliament.
In the vocabulary of politics, independence has become a hurrah word, but it also can be confusing. Officers of
Parliament, for example, are not independent of Parliament, nor are they ombudsmen in the classical sense of that
term. They serve Parliament and not the public, at least not directly so.
The terms of Bill C-2, as they touch officers of Parliament, do not eradicate misunderstanding on this issue. In fact,
they add to them. For example, the object is unclear of a secret ballot in the selection of officers of Parliament. The
rationale, as has been offered, talks of a potential undermining of the officer's authority if it were known that the
officer did not carry the support of the whole chamber. The issue surely is the nomination of the candidate, and the
support that nomination garners from parliamentarians.
More than that, to my mind there is something inconsistent about keeping secret from the principal the manner of
selecting its agent. Such a policy perpetuates the confusion around the meaning of independence at the same time that
it reinforces a congressional view of Parliament; one where the legislative branch of government seeks to check the
Finally, there is a constitutional theory, more American than Canadian or British, that sees auditors and officers
such as the officers of Parliament as constituting an integrity branch of government. The phrase is Bruce Ackerman's, a
professor of law at Yale.
Whatever its validity in another political system, the concept of an integrity branch, which uses agents of Parliament
as its components, does not fit well with the Canadian Constitution.
Legislating conflict of interest — that is moving from what another witness has called a values-based regime to a
rules-based regime — presents myriad problems. The parliamentary system originates in an oral tradition where there
is a reluctance to codify practice. More than institutional preference explains this predisposition. Law requires the
three parts of Parliament working together. Parliamentary supremacy signifies the Crown's acquiescence to the
legislature. Law and politics are central to constitutional democracy, but they are not the same thing. Codifying or
legislating parliamentary practice or privilege confounds the distinction at the same time that it submits that practice
and privilege to judicial examination. In this situation, a constitutional principle of the highest order is at stake. The
language may sound portentous, yet the issue is of great importance and not generally understood. There is a serious
shortfall in the understanding of Canada's Constitution, particularly in the unwritten realm. Yet, this principle is the
precise fulcrum of the Constitution. This is the world of constitutional monarchy, just as it is the world of
parliamentary government. Until recently, statute law has been a stranger to both. For instance, the legalization of
political parties begins with the Barbeau commission report in the mid-1960s and the enactment of the commission's
recommendations into election finance law in the 1970s. It is not that long ago. Whether this legalization is a good
thing is unimportant. What matters is that it is a different thing, with wide-spread and unexpected consequences.
Likewise, the federal accountability act will have unintended consequences, although far greater because it seeks to do
so much more all at once.
An example brings me to the last of my three points: the creation of a single ethics commissioner for the two
chambers of Parliament. For proponents of this change, the arguments are efficiency and economy. Leaving aside
ministers and parliamentary secretaries, members of the two chambers are seen to be essentially the same for purposes
of monitoring ethical matters. Yet, even at the most superficial level, this perception is not true. Members of the House
of Commons have terms, in the sense that there is a defined life for a Parliament. Members of the Senate do not. At the
moment, and for the past 40 years, senators hold their position until age 75. Members of the House have defined
constituencies; members of the Senate do not. The House renews itself at regular intervals. The Senate is a continuing
body. Without going any further, these differences between the two chambers are substantial when the discussion
centres on ethics and conflict of interest. MPs have constituents who have interest. That certainty, and the uncertainty
of future electoral victory, places the MP in a position unlike his or her senatorial counterpart. Thus, in composition,
the chambers are unlike one another; a feature reinforced by their different size. The Senate has one-third the number
of the members of the House and, unlike the House of Commons, the Senate has a fixed upper limit — except for
section 26 — and, reinforced by the different career prospects each chamber affords its members: MPs are beginning a
political career; senators are at the end of theirs.
Something more fundamental is at stake than a lack of recognition of difference in personnel. As well, there is a
disregard for the corporate and cultural distinctiveness of the two Houses of the Canadian Parliament. In other words,
there is an inadequate recognition of the imperatives of bicameralism. Symbols are important in politics, and the bill
communicates a disregard for the distinctiveness of the two chambers. Yet, they are different, in roles and functions
and in powers. Senators bring to their work as legislators longer memory, different perspective, and generally a
broader experience than their House of Commons counterparts. Bicameralism is about doubleness: doing things twice
and doing them better because they are done twice. Indeed, that is part of our whole culture. We use phrases such as
two heads are better than one, act in haste and repent at leisure and so on. It is a strong part of our cultural make-up. It
is about doing things twice. In a country with the societal, cultural, regional and economic differences that are found in
Canada, there is a strong argument — one first put to and accepted by the Fathers of Confederation — for a second
chamber, distinct from the lower chamber.
To those unfamiliar with political institutions and the Constitution, the number of ethics overseers may seem an
inconsequential matter. The preceding argument suggests otherwise. There are practical and symbolic reasons to
recommend against the introduction of a single ethics commissioner for both Houses of Parliament.
The Deputy Chairman: Thank you, Dr. Smith. Before I go to the list, I wish to point out that the issue of a secret
ballot to select the officers of Parliament was removed in the House of Commons before it came to us. That part of the
bill is gone.
Mr. Smith: I was not aware of that.
Senator Joyal: May I add that the House of Commons removed it because, after evaluation, it was deemed
Mr. Smith: I did not realize it had been removed.
Senator Joyal: That was done on the basis of the section of the Constitution that it is an open vote. If you make it
secret, it is no longer open. I do not want to elaborate, but it is telling about how fast this bill was drafted when it
violates a provision of the Constitution that seems so fundamental, namely, that the House of Commons and the
Senate vote openly: that somebody, with good intention probably, has not had time to check the Constitution. As you
know, all bills are supposed to be certified by the Department of Justice. Normally, that would be one of the first items
to be identified in a review of a draft bill. However, nobody questioned that. That shows that the bill was put together
quickly, hence the time we are taking to look at it and try to improve on it.
I have three sets of questions that both of you have touched on the surface. Again with good intentions, the bill
creates a certain number of officers of Parliament and adds a lot to the existing numbers — five or six more. With that,
Parliament will feel confident that there is someone besides Parliament to keep the government accountable.
Meanwhile, Parliament can go after other issues. As Dr. Sutherland mentioned, the bill does not contain the link
between those officers and the daily work of Parliament. We have a number of examples where Parliament receives
reports from all kinds of officers such as the human rights officer, the Privacy Commissioner, and the Information
Commissioner, and those reports stay on the table of Parliament. Parliament does not take those reports into its daily
workload to go through them and act upon them. The only report whereby there is an interest is the report of the
Auditor General because there is a House of Commons Standing Committee on Public Accounts. Even the work of the
Public Accounts Committee is structured — and there are ample studies on this — in a limited way, as is the
effectiveness with which it treats the report of the Auditor General.
The dynamics of the bill, on the basis of my own parliamentary experience, is that we will pile up reports on the
table of both the House of Commons and the Senate, but those reports will stay there and they will not be acted upon.
In other words, they will not be processed in the system. In the long term, the responsibility of dealing with
accountability would be left, as you have described, to a branch of folk heroes. The trust of Canadians will not be in
Parliament, it will be in those officers. Parliamentarians will be there as another kind of usefulness, but not the one for
which they are supposed to be there.
This is an important dynamic in this bill — and, again, here I return to this issue in our discussion. This issue was
not properly thought about when the bill was put together in haste to try to improve the situation. Having been a
practitioner of Parliament, I think this dynamic will erode the status of parliamentarians in lieu of, or for the benefit of,
an independent officer who will manage us. This independent officer or officers will be entrusted with the responsibility
of Parliament, but Parliament will not act upon the words of those officers. They become almost unattainable to
parliamentarians on a day-to-day basis.
I think this is a very serious change to the system. It is not a change, as you have properly pointed out, that entices
public opinion. It is an abstract issue today, but over a reasonable period of time, it will produce a fundamental change
to our system of Westminster-style democracy. Am I exaggerating or am I identifying a real issue?
Mr. Smith: I agree. You used the word ``abstract.'' Recognizing the goodwill behind the legislation and the concern
is not limited to this legislation. No longer are abstractions part of political debate and discussion. They deal with trust.
Nobody can actually touch this or measure it. We are told there is no trust. Even accountability is an abstraction. Our
political system and maybe others personalize the abstractions. That was, as I understand it, the benefit of
parliamentary democracy; we have members of Parliament. That is the argument for the plurality system of election as
well. It is very clear who is there, and that person is responsible or at least must answer to the public. Of course, they
are in direct relationship to government.
There is a real difficulty in the way the bill is premised on dealing with abstractions to a large degree. However, this
is not new. This has been in public debate for some time. I argue elsewhere — and you do not want to hear about this
now — that this arises out of a number of Royal Commissions that we have had in Canada that very often use
language of this nature and have said that something is missing. Governments have been left to try to design
institutions to fill in the missing link. I think it is very difficult to do because nobody really understands how to obtain
I am not debating that decline in voter turnout is a serious issue, in particular among young people. This is a serious
matter. It is so serious we need to have a better understanding of why it is happening. First, it is not just happening in
Canada alone; it is everywhere. It is in countries that are at the top of the scale, countries with high income, high
education, high standards of living, and I would argue, with high ethics in government. There are exceptions, but these
are not failed countries.
Why is this happening? It is much more complicated than adding another officer here or another stage there. I do
not have an answer. All I can say is it is much more complicated. Whatever parts of this legislation are implemented, it
will not affect voter turnout. I am absolutely sure of that, if that was what was being sought. It will not affect the claims
that there is no trust or that trust is down. I do not know how you know that. You can ask people, but that is not a
very dependable measure of trust.
Ms. Sutherland: The surveys that measure trust are not very useful because they cannot ever take into account the
maturation effects of having lived with a system longer. The decline of trust, as measured by pollsters — which is a very
simple form of measurement — might actually indicate something very good, like a higher level of education across the
board. It might measure a decline of unthinking reverence or a decline of willingness to put oneself into someone else's
hands. Decline of trust in the medical profession is thought to be due in large part to the proliferation of direct ads for
medications, where people decide they want these medications. It is linked to the Internet that tells you the likelihood
of a certain operation paralyzing you. Decline of trust, as I say, could be something good.
With respect to what you stated about officers of Parliament, it was very well said. The work done by them is not
digested or processed by the bodies or the Houses. It does not become nuanced, and it does not become the work of the
institutions. The public has the impression that MPs do the easy work of shaking hands, asking people for their votes
and running up and down stairs, whereas the officers of Parliament do the serious work. I think that is a very bad
message to send to the Canadian public.
Senator Joyal: Professor Smith, you have studied the Senate and the House of Commons. I am tempted to ask you
the same question in a different way.
What would Parliament have to change in order to keep government accountable in its very fundamental nature and
Mr. Smith: In the House of Commons?
Senator Joyal: Yes.
Mr. Smith: I would say more resources for members of Parliament and for committees. One of the weaknesses in
Canada is that we have this very short tenure of our members of Parliament; there is a high turnover. The political
culture of the House seems to me to have changed over the years. I do not know if there is a single remedy, although I
would say I think in many ways Parliament today is a much stronger institution than it was years ago, both the Senate
and the House. It may be that there is just a better sense of politics in the public. It does not necessarily mean that the
public is satisfied, but it does not mean the public is ignorant either.
If you look at legislative bodies in Western countries, legislatures do more work now and committees meet more and
are more active than in the 1950s. The whole decline of the legislative thesis that was talked about in the 1950s and
1960s is not true today.
There are particular problems, and accountability is perceived to be one of them. It is an abstraction. There are
things governments need to do: They need to be effective as well as accountable, they need to be representative as well
as accountable and they need to be economical as well as accountable. One must be very careful that accountability
does not monopolize as an objective.
Specifically, I myself do not agree with the idea of deputy ministers being accounting officers. For the advocates of
that, it was never clear to me how it changes the situation much from what it is now. That is not to say there were not
problems recently, but it is not clear to me those problems would not have happened anyway. I understand the
description they provide, but I do not actually see how it is much different in Britain or Ireland. As a specific
recommendation, I am not very wedded to that idea. One could do it, but I do not think it will have a great effect.
Senator Joyal: My second question is on the issue of the merger of the commissioner of ethics, which proceeds from
confusion about the nature of the institution. Witnesses have established that if you want to maintain a high level of
ethics, the ethics commissioner, officer, counsellor or whatever the title of the position, has to be accessible. The officer
has to be available to provide immediate contact and so establish a level of trust. That is especially true in the Senate,
where, as you pointed out, senators are appointed for longer terms than the fast turnover in the House of Commons.
If we are to maintain the sound operation of Parliament, we must keep institutional principles well understood and
implemented in the legislation or in the institutions that are created to help Parliament to deliver what it is supposed to
accomplish for Canadians.
I try to understand the rationale between the two, and I do not want to confuse the debates, but it seems to proceed
from the same understanding that all parliamentarians are equal. Now we will have eight-year terms, we will be elected
and so forth, so we will be streamlined with the members in the other place; therefore, we should have one ethics
commissioner, one set of rules and those rules should be contained in the statute.
It seems to me if you change something as fundamental as the institutional principles, you need to pause and
evaluate the implications, not just for the sake of efficiency and economy of budget because it would be easier to have
only one service dealing with everyone at the same time. I have great difficulty understanding how we do not
understand the principles of the institutions that we are supposed to make living and bear in our arms on a daily basis
by the work that we do. How do you see the definition of our institution in relation to such an important position that
has to exercise the privilege of parliamentarians?
Ms. Sutherland: With respect to the combining of the two bodies, the efficiency excuse is just that; to me, it is not
convincing, because we have a number of other expensive bodies that will be dropped into the House of Commons and
not much thought has gone into them. That has been done almost lightly, or I, at least, cannot see that there is a theory
of Parliament. They are not connected to committees, and they are not directed by committees and so on. To come up
with efficiency as a primary excuse for combining the ethics offices of the Senate and the House of Commons does not
seem to address the issue.
The issue is blindness to the understanding that the Houses of Parliament design their own procedures and processes
and that they are responsible for the conduct of their own members. The self-regulating aspect does not come across in
the bill. If that had been in the mind of the government when it was setting out what must have been the major
provisions and if the notion of self-regulation had been front and centre, they would not have done it.
I recall watching a little bit on CPAC of the Prime Minister's appearance before another Senate committee, and he
said that their procedure was to start where they could. To me, that implies that somewhere there is a strategic plan
that has 50 elements in it, and at this precise moment in time, they feel that a number of those elements are in their
control, so they are doing those tasks. There is not an understanding that you cannot do that because once you have
intervened and changed the situation, you cannot go back to the difficult item number on your agenda and assume that
the situation around that will be unchanged. I am, if anything, more mystified than you are.
Mr. Smith: Any time words like ``efficiency'' and ``economy'' are raised in any discussion of federalism or
bicameralism, there is a problem. The principle of bicameralism and the principle of federalism is redundancy. It is
more efficient at one, but that is not the principle. That is an admirable principle, but it is not the principle on which
the institution rests. There is a whole theory by Martin Landau on the American federal system, and he argues about
redundancy and it is not just in policies. You have it in the design of jet aircraft. There is a backup. If one engine goes,
the airplane does not fall out of the sky, something else kicks in. Most of the time, it is an expensive way, but it may be
necessary. That is sort of what federalism and bicameralism do. They act as backup. They check one another. If you
start combining it and saying it is inefficient to have the two, yes, it is, if you are talking at one level, but that is not the
principle that is at issue.
To come back to what Professor Sutherland said, the political principle or philosophy on which the legislation is
based is far from clear. There are so many parts to it. If you look at any one of them, it does not elucidate the principle;
it only raises further questions. On this particular issue about combining the two offices, on those grounds, I do not
find it convincing. There may be other arguments, although I doubt it, because bicameralism is very necessary to the
Parliament of Canada. It is part of the essence of the Parliament of Canada and should be, in my view, strengthened,
encouraged and nurtured rather than weakened.
Senator Day: I find it difficult to find questions to ask because I agree so much with the points that you make, and I
thank you both for making those points very clearly. I look forward to reviewing them again in the transcript.
I want you to expand on the point you talked about. In terms of the history of the Ethics Officer in the Senate and
the commissioner in the House of Commons, originally, the proposal was for one. That was three years ago. However,
senators, almost unanimously, stood up and said, ``No, that is not right. Because we are a bicameral system, we need
our independence. We need to be different. We insist on having our own regime.''
Since we entered that debate on this bill, a number of presenters have suggested that there should not be two ethics
officers but three. Because a higher standard and more scrutiny is expected of the executive branch, that is, the Prime
Minister and cabinet, it has been suggested that there should be a separate ethics regime for that group, separate from
the House of Commons and the Senate.
Can you comment on that?
Ms. Sutherland: I would be glad to try to comment. If it is necessary to regulate the House of Commons and the
Senate, then it is necessary to regulate cabinet and ministers. That being said, it is an oddity in a parliamentary system
to legislate this regulation.
Up to this point, every Prime Minister has deposited a code of conduct. The Prime Minister expects the ministers to
adhere to that code of conduct. Then there has been a code for the behaviour of MPs and senators. As well, there are
provisions in the Criminal Code.
I found that I just fell into the transcript of the public administration select committee because the two speakers
were Anthony King and David Hine. Professor King has been at the University of Essex for a long time. I was a
student there. I always admired him. David Hine is head of an ethics unit or program at Oxford. They both said that it
is really the Prime Minister's responsibility to ensure that the behaviour of cabinet members is ethical. If the Prime
Minister fails, then that becomes an opposition matter on the floor of the House of Commons. It is better to allow it to
work out politically because it works out politically in a rough and approximate way. It works out on the basis of what
kind of explanations people give, how fast they learn their brief and what information they can bring up from the
bureaucracy to the House of Commons. Something happens, there is a vote and it is over with. The Prime Minister
then decides whether or not that person is a liability or whether they are such an advantage in the cabinet that the
Prime Minister is determined to keep them. There is a political working out. Neither Professor King nor Professor
Hine were in favour of codes.
In fact, Anthony King listed nine points, some of which are quite amusing. I extracted the essence of them and
brought them along in case anyone would like to hear his wisdom. He sat on the Committee of Standards in Public Life
for four years, the first one under Lord Nolan. What they have to say about the other bodies is similar. They say that
codes are enough because codes contain a small number of principles and values. Codes afford enough flexibility that
new circumstances can be taken into account and the body itself can enter into the adjudication of justice, if you like,
for a particular case.
In Britain, the regime in the House of Commons is different, as you have heard from other witnesses, I am sure. The
members of Parliament sift cases. They work on excluding vexatious complaints. They arrange for penalties against
people who complain vexatiously too many times. All the experience that a person can draw from Britain and
Australia to some point makes it clear that there are more concerns than coming up with some kind of judicial answer
to whether or not a case fits a rule. There is far more to justice than that because you have all those other members, and
it might serve their political interests to complain about someone. There are no provisions for vexatious complaints in
this legislation. It is almost as though it were thought that it is the same thing to have a statute as a code.
If you look back at what Mr. Chrétien brought into power with him in 2002, you will see that it resembles the
accountability act except for the fact that the provisions of the accountability act will be enacted in law.
I am sorry, but I talked around it.
Senator Day: I appreciate your discussion.
Dr. Smith, do you have anything to add?
Mr. Smith: I am not sure I do. The more these things are put into statute form, the more it becomes an unenviable
job for the judiciary. We have judicial independence. There has been some dispute about judges and their work on
royal commissions and such, but it gets them into areas of controversy. This legislation would take them even further
into these areas. From the point of view of the judiciary, it is not a good idea. However, that is my own view.
It does not lead to good politics either. It is hard to see the advantage of it, except that in modern society, the
judiciary — again, not in this country — is seen somehow to not have any interest. In the book Stealth Democracy,
which has come out in the United States, Americans are interviewed. They do not trust congressmen, despite what
Canadian critics of our own system say. However, they trust unelected people. They trust unelected people such as
judges because they have no interests. There is a weird kind of inversion that happens.
Senator Day: We need some of that here.
Mr. Smith: We know the view of the Charter.
Senator Day: Some people commented that the Clerk of the Privy Council is really the commissioner for ethics for
Prime Minister and the executive. In the traditional format, the Clerk of the Privy Council keeps an eye on ethics.
However, that is not what is proposed here.
When you have a code and a values-based system, you can have these principles in the code, but the drafters of Bill
C-2, have put the code into statutory form and dropped the principles. Is that necessary? Does that make it an even less
You were describing, Ms. Sutherland, that the non-statutory type of code can have principles and a flexible
document that is living, but it is much more difficult when it is put it in statutory form. Is it not even more difficult
when you take away those basic principles?
Ms. Sutherland: I think so. We go back to legislative intention all the time when we are looking at statutes and talk
about what people would have intended at that time and sometimes how to update it. It is helpful in an exercise of this
nature to give people a hint of what you think are the bones that will hold this very odd being together. We do not
know any of the structure of what they think the system would be as an end state, where it is moving.
What alarms me is that the proposed legislation may just put the system into motion in ways that we cannot
anticipate. We are not even very good at running the simpler system.
Mr. Smith: I am not sure I have anything more to add. In every organization, whether it is political, business or
academic, the way you achieve respect for ethics is by example and encouragement, not by punishment. Obviously, you
need punishment at the extreme level, but it is a spectrum and punishment is the last resort.
With regard to politics, and the high turnover in the House, very often, many of the problems arise just out of
ignorance or lack of understanding of how the institution works. The way you make better members of Parliament or
senators is by encouragement and example. The way it is set up here, it is too black and white; it is too final; and too
unsympathetic to human relations.
Ms. Sutherland: One of the items that I drew from the testimony in England is that it is not useful to proliferate
formal rules, because the result is that people are encouraged to believe that whatever is not forbidden is correct. They
argue that it is better to have general principles that provoke deliberation. In other words, if you have everything
written down, people look at it and say do not take the fax machine home, so it is okay to do so.
Senator Day: I will change the subject slightly and react to one of your comments about the accounting officer.
Some of us have had a chance to look at the model in Ireland and the U.K. I am not convinced that what is written
here, based on the evidence that we have heard and the interpretation of the description of the accounting officer here,
that we have the same type of institution as exists there, although we are using the same words, which creates its own
set of problems in terms of interpretation.
I recall one of the important factors of the accounting officer was the independence of the accounting officer in
Ireland and the U.K. The officer signs a contract for a finite period of time of seven years.
We have noted that over the last 10-12 years, the deputy ministers have been in position in their departments for
phenomenally short times. You were talking about the short period of time for members of Parliament. Perhaps we are
seeing the symptoms of that high turnover. Of course, one of the values of the Senate is the longer term that senators
hold their positions. Senator Joyal pointed out he has been serving on this committee for eight years over which time he
has developed an expertise and a history that is extremely valuable.
Do you see that? Do you know that the deputy ministers are serving for such a short period of time? In one time
frame, it was 1.7 years.
Mr. Smith: I have read that, although I have not done any statistics that number. It was impressionistic that that has
become the case, not just nationally but in many of the provinces, where at one time it was the reverse. At one time
deputy ministers were there for generations. Even in the days when the Saskatchewan bureaucracy was considered a
patronage bureaucracy, at the senior levels that was not really true. There has been much greater turnover in recent
Talking about human relations, and this is not an area in which I have done a great deal of work, but one of the
areas in which personal regard must be very important would be between the deputy and the minister. This is extremely
important to the nation, the government and to the individuals themselves. How that relationship is affected by any
recommendation for change, such as the accounting officer, is the important question. It is not clear to me that the
benefit is any greater than what we have now. I know what people say, but I do not actually see any evidence that
convinces me. It seems to me that the detriment may be greater than a benefit, but I remain to be convinced. That is my
Senator Joyal: On the point that Senator Day raised, there is a contradiction in the objectives of the bill and the
system put into place. As I say, the objectives of the bill are accountability, trust, honesty, integrity, transparency and
so forth. However, in practical terms, what kind of public service will we have? Tomorrow, when you go back to your
class, will you tell your students that the public service of Canada will become so honest that it will be a beacon of
idealism of public administration, or will you tell them to be careful if they join the public service? Will you tell them to
be cautious because there will be an audit and they will have to report? Will you tell them that everything will be
accessible and that their level of creativity will be to a point whereby they will be left as a number in a system in which
the most important thing is the oversight over what they do?
We have objectives that appear sound, even though you question them, Professor Smith. We will achieve a different
result from the one we contemplate in the objectives of this bill. It is difficult for us to appreciate that because we are so
caught up in the different clauses of the bill and trying to understand them. We are like ``les exégèses'' of the Middle
Ages. We look into the word and we try to understand this word with that word, but in so doing we lose the overall
picture of what that word will trigger in the system.
Can you advise us on what we need to do to be able at any point in time to redirect or correct the dynamics that this
bill could initiate in this system and the consequences that we do not want?
Mr. Smith: Maybe it is not feasible, but one has to do what Professor Sutherland said in her opening comments. One
must delineate the principles that government should follow, and how this bill either furthers those principles or
inadvertently creates problems in realizing the principles. Is the principle, participation? How do the restrictions on
campaign financing fit in, let us say? Why put the restriction in this act anyway? Why not have a separate act with
regard to campaign donations?
One problem with the act is that it is so broad. Where does this fit? What does that have to do with officers of
Parliament? What does that have to do with an appointments commissioner? What has that to do with the Director of
Public Prosecutions? It is so broad. The difficulty is that there is no coherence. I suppose, that is the common criticism
of omnibus bills. The principles that we understand legislation should be based on — promoting political participation,
as the courts have said with regard to the Figueroa case and so forth, or strengthening the institutions of Parliament
because these are the historic bases of Canadian democracy — how does this proposed legislation do that? Does it
actually undermine the principles in some perhaps unintended way?
With regard to a single officer of Parliament one might say the institutions of Parliament are one of the fundamental
principles of bicameralism. This legislation does not address this principle. This undermines it. It is important, and
Canadians see it as important, to address that.
I do not know what one says about the director of public prosecutions. To go that route to the degree I understand
— and I am not trained in the law — is a fundamental change in the way our system works. I know there are criticisms,
but there is a rationale for the way the system currently works. I do not know how a director of public prosecutions fits
in. It is not fair to say it is an Americanization or something — it may or may not be — but the act certainly changes
the sense of where authority lies. Again, the authority of our Constitution is through Parliament.
Ms. Sutherland: I agree with Professor Smith, and I would like to add something about it being an omnibus bill.
Even though it is an omnibus bill, all the elements in it touch on the way in which we are governed. The elements
confuse the way in which we are governed because the theory of the institutions — the new institutional arrangement,
the New Jerusalem — is not described.
I saw that Kevin Lynch addressed the Dalhousie public administration group and he used the language of ``the best
and the brightest.'' That always strikes me as such an unusual thing to say, an unusual recruiting tool, but I thought,
will the best and the brightest crowd to Ottawa enlist themselves in a public service where they had better learn that
something that merits a $500 fine could also put them in jail for a number of years.
It is bad for the public service in that sense, and there is no coherence. I have looked for coherence, I have puzzled
about the coherence, and it crossed my mind that maybe the unifying principle that the bill exemplifies is a view of
human nature. The feeling I get is that human nature is bad and people are not perfectible. It is hard to think about
things such as leadership when you have the statutory principles that outline punishment. It is hard to think of
leadership, innovation and developing new ways for efficiency, and all the old language. That famous word
``empowerment'' does not make a lot of sense: self-empowerment and that somebody is a can-do person. None of that
seems to fit, because the view of human nature is that it is something that ought to be put in a straight-jacket, ought to
be tied down, and people ought not to behave like people, because when people behave like people, it is bad. I see that
view as the unifying principle.
As for the Director of Public Prosecutions, I wondered at one point whether the Director of Public Prosecutions is
in the bill because it would at least centralize prosecutions for fraud in Ottawa and make that activity more visible. We
used to get only this many crooks per year, now we have this huge goldfish pond full of them. It would centralize that
kind of prosecution.
I do not understand, if you are willing to mess with the Constitution to this extent, why they would not simply take
prosecution right out of the cabinet; take the Attorney General out of the cabinet and make the Attorney General
independent of government. If the principle to have independence all over the place is good, why not make
prosecutions independent of government? That is what happened in Britain. Mr. Blair abolished a 1400-year-old
institution in a press conference on a Friday afternoon, so why not do it here?
The Deputy Chairman: Do not challenge our present Prime Minister.
Senator Stratton: Briefly, Dr. Sutherland, I believe that there is a decline in institutions and I believe it is because
people, for the most part, are more highly educated. That is a good thing.
I can sit and argue all day. Philosophically I could agree with you, but practically I have a problem in the sense that
parliamentarians are in politics, they are in the real world in a sense as parliamentarians and if there is something that
goes wrong, the opposition would come out and say they must do something about it and this bill is a result of that.
That is really where we are in day-to-day politics.
As an example, Senator Day and I went to London and Dublin and looked at their accounting officer system, which
seems to work quite well. Their politicians and the senior bureaucrats seem to be quite happy with their rules-based
system. If that seems to have worked in those two countries, then perhaps we should try it here.
While the bill is not perfect, to a large degree, in trying something like this accounting officer — and our finance
committee took at look at this and really was very positive about that — I see that we have to try to do something. The
way we were going does not seem to be working. Yet, when you look at London and Dublin, it seems to be working.
Being practical, you would have to say, let us give it a shot.
Mr. Smith: Might you give it a shot, say, in sort of test departments for a period of time such as five years.
Senator Stratton: I think yes, in an ideal world you could. It should, perhaps, be reviewable. However, in the real
world of politics, you have to do something, and not a test. I think we are beyond that, in my view.
Ms. Sutherland: Would you agree that it would be an intelligent thing to stagger the provisions of the bill such that,
to take the Prime Minister's own principle, you start with the elements that are most doable and you leave the elements
that are least well understood to the end. You could start with the accounting officer, which is fairly new to Canada,
though it has been studied and suggested several times. The version that is promoted in this bill is the least worrisome
version so far. When it was discussed by the Public Accounts Committee, it was suggested that in the case of a
disagreement between a deputy minister and a minister, a minister would then put his or her orders on paper and then
that document would go directly to the Auditor General. I am not sure what he or she would do after that.
Senator Stratton: He or she would make it public.
That is what they do in England. It happened once under Prime Minister Thatcher.
Ms. Sutherland: What is kinder and gentler in the provision that is contained in this bill than in the British provision
is that maybe it recognizes the principle of inexperience that you and Professor Smith were talking about earlier. I refer
to the short terms that deputy ministers stay in a particular job, and the even shorter period in which a minister and a
deputy minister might work together. It was thought that maybe in Canada we would have more difficulties and,
people being inexperienced, a minister might take the question of delegation of administration extremely seriously and
not delegate too much to the deputy minister. You then have a dispute, and so you go to see the Treasury Board and
you get it sorted out at either the secretary level or at the board level.
That seems to be kind of a helpful Canadianization because it is adapted more to our circumstances. I do not know
if I am allowed to ask you questions. Is that all right?
Senator Stratton: Go right ahead.
Ms. Sutherland: What about a phased implementation? One of the great principles of scientific experimentation is
that you do one thing at a time until you know what those two things do, and then you put them together and watch
them interact. Maybe you then prescribe the two medications at the same time to the poor patient, but you do not just
load them up. What about a staggered implementation?
Senator Stratton: In an ideal world, I would agree. However, this is not an ideal world. We are in a Parliament and
reality. The Prime Minister saw fit that this is the route we will take. We had to be seen to be doing something. The
public was out of patience. It really had to be done. You may disagree with it — and the future will determine whether
it was right or wrong — but insofar as doing it a bit at a time, if we had the grace of a majority or two terms, then
perhaps we would, but we do not.
The Deputy Chairman: Senator Stratton has just raised the fact that we are a parliamentary system. Dr. Smith, you
mentioned the implementation of an integrity office in the American model that does not fit well with the Westminster
system of government. Are you making the argument that the provisions in this bill would make the Canadian
parliamentary system closer to the American system?
Mr. Smith: I think it would. I have great respect for the American Constitution, but to the degree that you
increasingly perceive officers of Parliament being independent from Parliament itself, from the parent. They are not
independent; they are agents of the parent. It is not only the officers but also the public which sees it this way. This is a
serious misunderstanding, and one that can grow. The role of the officer is to serve Parliament and, indirectly and
ultimately, the people of Canada as Parliament serve the people of Canada. In my mind ``officers of Parliament'', from
the greatest to the least great, if there is any hierarchy there, serve Parliament. Indeed, they cannot do anything without
Parliament's action. They make recommendations; members of Parliament and committees decide whether or not to
follow those recommendations. It is very important that the relationship be understood. Maybe this is resisting a tide
that cannot be resisted. It would not strengthen Parliament for that to happen.
The Deputy Chairman: Dr. Smith, I liked your quote that putting the code into law would make bad law and it
would not make good politics.
Dr. Sutherland, you also spoke of the code. You think that codes work by agreement and they should not be in the
act, they should not be in law. We had Democracy Watch before us on September 18. Mr. Conacher's point was that
codes are inadequate and should be frozen into law. Therefore, they should be subject to judicial review.
Ms. Sutherland: If you have a law and you convict someone, there should be redress. The act is a little shocking in
that respect in the public service provisions, because there is even funding for an accuser, but there is no funding for the
manager who is being accused to try to pursue an appeal and clear their name. In fact, it seems to be that the
assumption is that if you are accused, it will turn out that you did something very wrong.
If Democracy Watch favours solidifying codes into law, they should probably favour going through the bill with a
fine-toothed comb, to ensure there is always a provision for redress and it is always fair.
Democracy Watch watches for democracy and not for governance, implementation. You are all familiar with the
problem of dirty hands in politics, which is when someone uses a rule or a power to do something that was not
intended when that power was conferred on them. In the public service, there is the problem of many hands: you have
to work through people, and there are work groups. The provisions are set now that one individual would have direct
access to the integrity officer, I believe it is called, and events would unfold from there. Charges would be laid and there
would be some kind of adjudication and resolution.
There is also protection for whistle-blowers, and this provision does not recognize the fabric of work in any
professional organization. If you are working with six or eight people, you are clearly obliged to discuss your
reservations with them. If they do not agree with you and you are not being asked to do something that is against the
law, you try to work your way through it and keep moving. Decisions are not taken by only one individual; they are
taken by groups of people. To quote Senator Stratton, the business of codifying does not meet the real world of
bureaucracy, which is one of collaboration — not insisting too much on yourself but submerging yourself in a group
and working together for a greater good.
Senator Day: I have a supplementary question on Senator Stratton's earlier point. I wanted to confirm what you
said, that there are several recommendations with respect to an accounting officer. The best interpretation of what is
here is a statutory reflection of what was going on in Canada before. It is not the British or the Irish model of an
accounting officer. The danger of choosing a term that is used somewhere else that has a different meaning and
whatever that brings along with it is part of the problem. Putting in statutory form a practice that already exists has
another set of problems, as you discussed earlier.
Because you made this point about the parliamentary officers, I wanted to make a point about the parliamentary
budget officer. In terms of independence, acting for Parliament, this person is chosen by the Governor-in-Council from
a list of three people submitted by the Parliamentary Librarian's committee. This officer is not someone chosen by
Parliament to work as an agent for Parliament, yet we call that person a parliamentary budget officer. We have those
problems that are inherent in choosing a name that suggests something it is not.
Ms. Sutherland: I agree with you. Language is there to be respected. We could not communicate with each other if
we did not agree on the meaning of words, and just applying a term of the moment is a confusing thing to do.
With regard to the parliamentary budget officer, we have the idea that we have a fiscal imbalance because
throughout the era that Mr. Martin was finance minister the federal government ran such enormous surpluses that
people became exasperated with the finance department. That has now been shown not to be a problem. That is why I
suggested that that office could be transmuted into something like a scrutiny office. There is a scrutiny office in the
British Parliament that helps parliamentarians do their work. If they need facts to show that a particular policy will not
address the problem it is aimed at, they can get some help from the scrutiny office.
I say that the parliamentary budget officer will not have a major problem to solve because literature has recently
emerged that shows that the surpluses were the direct result of a year-by-year promise made by Mr. Martin to never
run a deficit again, come hell or high water, to use his words. As a result of that pressure on the finance department and
the officers working directly with the minister, they took all the factors that would fit into the budget and hedged
conservatively so that they would never step over the precipice into a deficit.
As a result of not being allowed to run a deficit even once every third or fourth year, even a small deficit, they over-
accomplished time and again. The result of that over-accomplishment has not been good for Canadian federalism. The
provinces had a suspicion that the federal government has unlimited taxing room and unlimited capacity to draw in
money and that it would be a good thing to divide that among the provinces. The answer is simple; it is to agree that it
would be acceptable to have a shortfall once every so often and to judge the finance minister and the finance
department on their performance over a number of years rather than year by year.
The Deputy Chairman: Thank you for appearing before us, Dr. Sutherland and Dr. Smith. You have made
thoughtful and insightful presentations to us this afternoon.