Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 13 - Evidence
OTTAWA, Monday, October 23, 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 10:07 a.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
The Chairman: Honourable senators, this is a proposed act providing for conflict of interest rules, restrictions on
election financing, and measures respecting administrative transparency, oversight and accountability. It is more
commonly referred to as the federal accountability bill.
As senators, our witnesses and members of the public, both here in this room and across Canada on television know,
this bill reflects a central portion of the new government's agenda and is one of the most significant pieces of legislation
brought before Parliament in recent years. The committee is giving the bill the extensive, careful, and detailed study
that it deserves.
With almost 90 hours of meetings to date, we have heard over 140 witnesses. They have discussed topics ranging
from accountability, ethics and conflict of interest, parliamentary privilege, political financing, the parliamentary
budget office, access to information, privacy, whistle-blowing, audit powers, procurement and lobbying. During this
session, we will focus on the question of public appointments.
We have before us David Zussman, the Jarislowsky Chair in Public Sector Management at the University of
Ottawa. He has had a varied career in government, the private sector and in academia and is a recognized authority on
public sector management, public administration and public policy.
Nancy Averill has recently retired. She was formerly the Director of Research and Methodology at the Public Policy
Forum where her research included public sector recruitment, political appointments and public service leadership. She
was the external adviser to the last two government-wide employee surveys and undertook a number of special studies
for the Treasury Board on Crown corporations outreach and engagement.
On behalf of the committee, I would like to thank you for being with us today. I will turn it over to you now, and
after your opening statement, we will have time for questions and discussion which I am sure will be most helpful to
David R. Zussman, Jarislowsky Chair in Public Sector Management, as an individual: This is a rather extraordinarily
complex piece of legislation and today I have been asked to restrict my comments to two particular aspects of that
legislation, one having to do with the public appointments commission and the other around priority status
This bill encompasses a wide variety of areas and elements of an enormous amount of change. A few weeks ago, I
raised concerns about what I thought might be the unintended consequences of that massive legislation, in large part
because of the requirements to report, for instance, and that there are a lot of elements where Parliament is not using
the information it already has. I also raised at the time the notion that so much new work has been undertaken by the
federal government over the last four or five years that it is imperative that this piece of legislation dovetails with
existing practices and does not overlap or duplicate many activities going on. I can see from subsequent testimonies
that a number of witnesses have raised similar issues.
With respect to the two elements you asked me to speak to, I am excited to talking about this because I think these
are good ideas that are being contemplated in the legislation.
First of all, let me talk about the public appointments commission. I think this represents a dramatic departure from
previous practices and codifies a lot of efforts that have been made in recent years to improve public appointments in
the federal government. What we want to do is improve the quality of appointments based on merit, recognizing that
in the course of a four-year government, almost 3,000 individuals will be appointed through the processes that are
being described in this draft legislation.
In attempting to restore trust in public institutions, which the Prime Minister has said is one of the key components
of this legislation, a transparent process Canadians feel they can access will be critically important. The legislation
attempts to get at that by developing processes that will invite qualified people to apply for jobs.
If I can take a brief moment to discuss some of the history around public appointments, some of the reform around
this type of legislation started in the mid-1990s, when Penny Collenette was the head of appointments in the Prime
Minister's Office. She began the first codification of government appointments by annually issuing a book listing all of
the jobs that the federal government offers up on a full-time and part-time basis, describing in quite a bit a detail each
one of them and inviting Canadians to apply.
That was followed by another effort by Marcel Masse, who was then the President of the Treasury Board. He
undertook what was called at the time the ABC — the agencies, boards and commissions review — which resulted in
about 500 positions being eliminated from the Governor-in-Council roster as deemed no longer useful or appropriate.
That started a mini industry of people concerned and interested in pursuing a better, more merit-based approach to
appointments. I think this part of the bill that addresses appointments neatly follows on some of the reform.
A number of provincial jurisdictions have already implemented appointment systems. The Government of the
United Kingdom has a very broad-based public system. There are some very good models.
There are only a couple of things that might need tweaking. One is to recognize that in the public appointments
system, three elements describe what goes on. One is the process by which people are appointed. The second is
manufacturing or producing a list of eligible appointees from which the government can make its choice. The third
element is having some form of evaluation or audit function that ensures that the processes as described are actually
You already know that the government has set up a public appointments secretariat, which is a small department of
the Prime Minister's at this point, and it is developing a new approach. What is less certain to me is the mechanism by
which this public appointments commission will actually be set up.
In the current draft legislation, the government's intention is to set up this commission through use of the Salaries
Act by amending the Financial Administration Act. That is perfectly fine in that there is no question about the legality
of doing so. However, given the central importance of this legislation as a way of signalling to Canadians that we have
a new system that will be more accessible than previous ones, and where more people will be invited to participate, you
might consider setting up a separate piece of legislation. That legislation could create the commission as it stands as
opposed to using the Salaries Act as a way of doing it in the future.
It might work as a short-term measure to get it going, but I would suggest to you that in the long term, a separate
piece of legislation would be something that we can hold up and show as demonstrable support for this change. The
key thing around that has to do with the fact that we want to build as much confidence as we can in the new type of
Let me move to the second point I was asked to address, having to do with priority status. As you know, the current
Public Service Employment Act allows for exempt staff working in ministers' offices for more than three years to
access permanent jobs in the public service on a priority status basis. My understanding is that you are now considering
an amendment to the draft legislation that will allow individuals not to apply on a priority status basis, but to apply for
internal jobs in the federal public service on an equal footing with any other internal applicant. I think you have found
a perfect place for dealing with this rather important element.
Let me take a couple of minutes to describe to you what the current numbers look like in terms of the people who
have taken advantage of this. Then we can talk about the more general issues around the advantage and disadvantage
of doing so.
The Public Service Commission did a study last year, which has been published. To bring you up to date on that,
every exempt staff member at senior positions in each ministry — let us say there are 25 departments, so the offices of
25 ministers — if he or she stays for more than three years, has access to priority status in looking for full-time
employment. Over an 11-year period, from 1993 to 2004, 243 people from all of these departments took advantage of
the opportunity to move into the public service on a permanent basis. That means a little less than one-third of people
who were eligible to do so took advantage of that.
I want to tell you one important thing, which I think has been mischaracterized in the media quite often. Of the 243
people who took jobs, nine were given jobs in the executive cadre of the federal government. Nine out of 243 became
executives; all the rest took jobs at lower levels.
One interesting fact is that about one-half the people took jobs in the departments in which they had worked and the
others found jobs in other places. Of the 243, 11 of them returned to ministers' offices, so there was movement back in
only 11 cases.
Let me put this in context around exactly how many people took advantage of priority status compared to other
people who have access to priority. From 2001 to 2006, about 5,100 people had priority status in seeking jobs. Of
those, about 220 people were exempt staff in ministers' offices. Therefore, in fact, the notion of priority status is not
exclusive to ministers' staff but is extended to a whole series of categories of other people.
The three most common uses of the word ``priority status'' were applied in the following areas: In the case of
relocation of spouses in public service jobs, spouses are entitled to priority status. About 1,500 people were placed on
the priority status because of relocation of spouse; about 1,600 people were placed on priority when they were declared
surplus in their jobs; and about 1,000 people were placed on priority when they returned from a leave of absence
without pay. You can see that in the giant scheme of things regarding priority status, in this instance, only about 220
people from ministers' offices were eligible.
Priority status is an important issue. My experience is that priority status has served the Government of Canada
extremely well by attracting people to the public service, many of whom were prepared to give up partisanship for a
neutral merit-based appointment in the public service. We have many instances of individuals who have made the
transition from partisanship to permanent public service, having worked for both Conservative and Liberal
Nancy Averill, as an individual: I want to congratulate the committee on calling ordinary citizens such as myself to
speak before you. I wrote most of this presentation from the library of Minnedosa, Manitoba this past weekend.
I also would like to acknowledge my co-authors and co-researchers, Nicole Murphy and Susan Snider, two very
talented and much younger women who were my colleagues at the public policy forum and, of course, the support and
guidance of Mr. Zussman, our president at the time. Bill C-2, the proposed federal accountability act, is one of the
most ambitious pieces of proposed legislation on the agenda and I applaud the committee's comprehensive review. It is
my understanding that today the committee will review those sections of the bill relating to political appointments and
priority status. I have been asked to keep my introductory comments brief, so I propose to provide my understanding
of how the proposed legislation relates to trends in recent decades to reform and update Governor-in-Council
appointment processes; to explain the recommendations that we made in our research study in 2004; and to provide my
humble advice on what the committee might include in its review and recommendations.
I will begin with my understanding of how the proposed legislation relates to trends in recent decades. Clause 227
amends the Salaries Act to allow for the establishment of a new public appointments commission to establish, and to
report to Parliament on, guidelines governing selection processes for Governor-in-Council appointments to agencies,
boards, and commissions and Crown corporations — the ABCs, as we will call them. I understand that the House of
Commons Legislative Committee on Bill C-2 amended clause 227 to include details of the terms of reference for the
proposed appointments commission. I shall not itemize those terms of reference here because I assume we will address
them in the question/discussion portion of today's meeting.
For a moment I will speak to the trends in recent decades on GIC reform initiatives. During and since the
administration of former Prime Minister Mulroney, numerous initiatives have been undertaken to make GIC
appointments more transparent and objective. In 1985, the McGrath committee reviewed the appointment process for
deputy ministers, heads of Crown corporations, heads of regulatory agencies and officers of Parliament. The McGrath
committee set out four principles that guided its recommendations on the role of Parliament with respect to
government appointments. First, the primary purpose of the nomination procedure is to seek the best possible people.
Second, it is important that the public see appointments as more than simply political patronage. Third, there are good
reasons for excluding certain appointments from any political scrutiny. Fourth, some appointments warrant different
degrees of scrutiny by Parliament. In addition, and most important, the McGrath committee recommended that all
appointments be tabled in the House of Commons, thus providing Parliament with the authority to review
appointments. Unfortunately, Parliament seldom exercised this authority. The government of former Prime Minister
Kim Campbell initiated the practice of advertising vacancies for most fixed-term, full-time Governor-in-Council
appointments in the Canada Gazette.
In 1994, a visiting scholar, Gérard Veilleux, at the then Canadian Centre for Management Development, now the
Canada School of Public Service, reviewed the appointment process for directors of Crown corporations. He
determined that there was a political affiliation component to most of the appointments, which he did not address. His
recommendation focused on building competence, including job profiles to match skills and candidates. He also
suggested orientation and training for appointees and reviews of the performance of boards of public organizations to
enhance their accountability to the public.
The first Red Book of the Liberal Party of Canada, Creating Opportunity, pledged to review the process and to
ensure competence and equity in the choice of candidates. As part of the overall program review of that
administration, a greater commitment was made to the appointment of women, visible minorities, Aboriginal peoples
and peoples with disabilities, in addition to the elimination of approximately 500 Governor-in-Council appointments.
In the year 2000, the Auditor General of Canada reported on the governance of Crown corporations and made
recommendations on the need for more emphasis on the skills of appointees, the provision of orientation and training
and, specifically, on the organizations' legislative framework and an enhanced role for the boards in making the
In summary, over the last 20 years or more the focus of the review of the Governor-in-Council appointment process
has been on improved management in the areas of a transparent, merit-based approach to appointments; a provision
of orientation for new appointees; a role for the board in designing the selection process; and an evaluation of the
board's performance. The proposed appointments commission is in keeping with the trend to open transparent and
merit-based appointments but is silent on the issue of orientation and training for appointees and on evaluation of
I will address our study in 2004. It was Public Policy Forum's desire to promote management excellence that
initiated our study of Governor-in-Council appointments, Best Practices and Recommendations for Reform. The key
premise for our study is that having competent people on the boards of public organizations establishes the foundation
for management excellence. At the same time, a comprehensive appointment process must be part of a larger training
and evaluation management system. In our study, we recognized that organizations in the public sector, including the
provinces, the not-for-profit sector and the private sector, had developed best practices in appointments for their
boards as a result of pressures from their shareholders, their members and their funders. We borrowed shamelessly
from their experiences in our work.
We identified the following best practices in terms of appointment processes from these sectors: first, appointments
should reflect the diversity of the Canadian population in age, colour, culture, gender and geography. Studies have
determined that diversity on boards equals innovation and effectiveness. I cite the work of the Conference Board of
Canada by Brown and Brown on the importance of having women as board members and the work of Dr. Richard
Florida on his links with diversity, creativity and innovation. Second, the nomination process should be independent.
We found many excellent examples where committees of the board take on the responsibility to establish skills profiles
and, in some cases, come up with a list of possible names for review by their board and the minister.
Third, identifying the right skills is an essential first step. Many organizations have created board profiles that are a
blueprint to the kinds of skills — either legal, human resource or subject expertise — that are necessary for the
organization to carry on its work. Fourth, current boards must be engaged in the selection process. Currently, this
work is usually done by making recommendations to the minister. Fifth, effective appointments include orientation,
training and performance assessment of the boards and of the individual members.
With the identification of these best practices, we made the following recommendations. First, establish a central
clearing house to serve as an independent coordinator of appointments. Second, engage the current board of directors
in identifying skills and competencies. Third, promote diversity in Governor-in-Council appointments. Fourth,
promote training and continuing education. Fifth, assess individual and board performances. Fifth, provide
parliamentary oversight. Sixth, invest agencies, boards, commissions and Crown corporations with the responsibility
to report on progress. We suggest that the annual reports of these organizations would be an appropriate place to
report on their appointment processes.
I would like to provide my remarks on my assessment of the provisions of Bill C-2 with respect to the GIC
appointment process, specifically the appointments commission. Another key premise of our research in 2004 is that
agencies, boards and commissions undertake important work on behalf of the government. Appointments to these
organizations represent one of the fundamental executive functions. Governments should have the right to appoint
people who reflect the governing party's values and who support its platform. However, governments need to
recognize that relying on political party membership and affiliation has diminishing value in finding candidates.
Membership in all parties is declining and the new political party financing laws prohibit the purchase of political
profile. Individuals' values can be determined either through their community involvement in their professional work
or in their voluntary service.
In the ABC community, in respect of the promotion of best practices, we found many examples of excellent
practices regarding board appointments. However, there is great diversity in the resources available for agencies,
boards and commissions to design and implement their own appointment processes. Some are well resourced and some
are not. I think an essential part of the commission's work will be to ensure they can promote these best practices so
they are available as a tool for all of the ABC community.
Second, in terms of transparency and public education, we determined that the Governor-in-Council process was
one of the least understood government processes, yet we counted almost 2,400 full- and part-time positions that were
appointed through the Governor-in-Council system.
To help citizens understand their government more fully, the commission's public reporting should include more
than an annual report to Parliament; perhaps an ongoing posting on their website of the names, terms and biographies
of appointees. In addition, the report to Parliament should include a listing of all appointees made in that year.
Third, in the area of orientation and training of Governor-in-Council appointments, finding and appointing the
right person is only the foundation for a well-functioning board. That is the first step. Orientation and ongoing
professional development are equally important. I cite the example of the British Columbia Board Resourcing and
Development Office, which includes that employees receive ongoing professional development with respect to board
I recommend that the mandate of the appointments commission include orientation and professional development
because, again, there is a great deal of diversity in the ability of boards and commissions to do this on their own.
Regarding the role of Parliament, as indicated in my earlier remarks, Parliament has always had the authority to
review the Governor-in-Council appointments. The standing orders of the House of Commons provide for the
standing committees of the House of Commons, which have members from all political parties in the House, to give
them the authority to review all non-judicial appointments. This authority has seldom been exercised, and it is
probably more efficient for Parliament to review the report of the appointments commission on the overall process and
all of the appointments as proposed in the legislation.
Finally, I recommend that the Senate committee look to the United Kingdom for the example of the Office for the
Commissioner for Public Appointments. It was established in 1995 with a mandate that appears very similar to the
mandate proposed in the legislation. After almost 11 years of operation, I suggest that office has sufficient experience
in how well their process is working and how the Canadian legislation might be improved.
The Chairman: Thank you for those two very interesting presentations. I believe the drafters, in preparing Bill C-2,
were aware of the work of the Baroness of Finchley in England and her work in relation to the appointments
My question is to you, Mr. Zussman. You stated we need separate pieces of legislation. Have you looked at the
United Kingdom example? Does that system operate through something similar to the Salaries Act, or does it have a
separate piece of legislation as you recommend.
Mr. Zussman: I believe it is a separate piece of legislation. It has symbolic value. Obviously from a legal point of
view, you can operate a system in a whole series of different ways.
The Chairman: I was particularly impressed with your emphasis on the importance of diversity and the ABCs —
agencies, boards and commissions — because that is extremely important in Canada and other countries.
Senator Milne: When I read through this short section of the bill, it sounds to me like a very good idea. However, I
take issue with the wording of it as found on page 175, clause 227 proposed section 1.1(1), ``The Governor in Council
may establish a Public Appointments Commission...''
Do you think that should be mandatory? Should it be left in the hands of future Prime Ministers as to whether or
not they follow what is stated?
Mr. Zussman: I have been confused by that wording myself. I find it a bit unusual. I think the government's
intention is to create a commission. It already has created a secretariat to support the commission. I do not know
whether this is just a drafting issue or whether it suggests broader options that I cannot contemplate.
As Ms. Averill pointed out, we have many jurisdictions around the world moving in this direction. We have a 20-
year history of looking at approving public appointments. I think it is more than likely that the government will follow
Senator Milne: The word should be ``shall'' so that future Prime Ministers cannot back away from the whole idea of
Mr. Zussman: To be perfectly honest, I think once this system is created, it will be very complicated deciding not to
do it this way.
Senator Milne: Yes, it would be very difficult. In clause 227(2) of the bill, it states:
Before making a recommendation to the Governor in Council that a person be appointed to the Commission, the
Prime Minister shall consult with the leader of every recognized party in the House of Commons.
Do you think this is the right approach? The proposed legislation only mentions the House of Commons; it should
include consultation with the Senate as well. This is something that is presently the prerogative of the Prime Minister,
and he is a member of the House of Commons.
Mr. Zussman: That is a good question. I do not know the right answer to that, frankly, because I am unaware of any
other instance or any other piece of legislation where consultation within the Senate is mandatory or required by law. I
also note in the draft legislation that not all appointments are subject to the same level of consultation.
This is the kind of thing that the public appointments commission might undertake as a means of regularizing to
what degree it will consult with the leaders of the various parties in the House or in the Senate.
It is quite clear that one cannot have that level of consultation for every single appointment, nor would one want
that. At this point, the draft legislation is silent. Maybe that is one of the first things the commission could accomplish,
is categorize the types of appointments that are made with increasing consultation with parliamentarians depending
upon the complexity and importance of the appointment.
Senator Milne: As I understand it, in the spring we saw a process where the Prime Minister nominated a candidate
and that candidate was reviewed by the Government Operations and Estimates Committee.
Mr. Zussman: That is correct. On the basis of that vote, I think the name was withdrawn. That was the Prime
Minister's decision. He developed that particular process. It was not required under any current policy or rule.
Senator Cowan: I think there might be a bit of a misunderstanding. I believe Senator Milne was referring to the
appointments of members of the commission, and whether those appointments should involve consultation with
leaders of the parties in the Senate and the House of Commons. I do not think she was referring to the Governor-in-
Mr. Zussman: There are some provisions in the act that require the government to consult with leaders of the parties
formally under their own legislation.
Senator Cowan: Does that apply to commissioners?
Mr. Zussman: Yes. For instance, I think with reference to the Auditor General, there will be a requirement that the
government seek support from the various parties with respect to that appointment. Thank you for that clarification,
but this has a broader application as well.
Senator Milne: This is meant to evaluate and approve the selection processes proposed by ministers. It is not every
single Governor-in-Council appointment; it is the process.
Mr. Zussman: Yes.
Senator Milne: Ms. Averill, what do you think the proper process should be to ensure that these positions are filled
by the best and brightest with both experience and knowledge in the field?
I assume it will not be only PCO publishing a vacancy on their website and that there will be some proper process.
Ms. Averill: There are good processes in practice at this time where, when a vacancy comes up on a board, the board
strikes a committee, or the board acts as a whole to develop a skill profile of the needs of the proposed candidate. For
example, the board of the whole indicates in review that they are weak in areas such as legal skills, human resource
skills, financial skills, or skills or experience in the subject at hand, such as Canada Post or the Mint, as an example.
These skills are then written into the job profile.
Senator Milne: These are the individual boards and commissions.
Ms. Averill: That is right. The board would then provide that skill profile to the minister's office, sometimes together
with a list of possible candidates, given that the board knows who the candidates are in a particular field.
My understanding is that the appointments commission would ensure that these processes were standard, that they
included the issue of skills assessment and that candidates were reviewed in a standard way that looked at their skills
and the best person for the job.
Senator Milne: When I read through your interesting report here to the Public Policy Forum, it seems that every
group has its own criteria and method of filling vacancies right now.
Ms. Averill: That is right.
Senator Milne: There is a wide variation.
Ms. Averill: That is correct, but the principles are the same in terms of having a process that identifies a set of
specific skills; that skills profile and the process itself is open and transparent.
One role of the appointments commission would be to keep an ongoing roster of profiles. I believe in B.C. the
resourcing board keeps biographical information on proposed candidates for a variety of positions. These names are
then added to the list.
Senator Milne: Proposed section 1.1(2)(e) states:
``To report publicly on compliance... an annual report to the Prime Minister to be transmitted to the Speaker of
each House of Parliament...''
It looks as though the Senate will be asked to look at the report on compliance, even though the Senate had nothing
whatsoever to do with the appointment of this person. It is a little bizarre. The Senate has had no input at all as to who
was appointed to the body; that is interesting.
I will go back to proposed subsection 1.1(2)(a) which states, ``to oversee, monitor, review and report on the selection
process....'' This provision looks as though it is modelled after the British model. You say it has been operating since
Ms. Averill: That is right.
Senator Milne: Have they had any problems since then?
Ms. Averill: I am not aware of what their progress has been on this.
Mr. Zussman: My understanding is that it is working well. Obviously, some elements need to be worked out, but this
commission has been extended to almost all appointments in the U.K. It varies enormously in terms of the scope and
range of appointments.
Senator Milne: I do not know if honourable senators are aware, but this bill allows for the reappointment of the
public appointments commissioner for one or more five-year terms. The public wants these commissioners to be
independent. Their pay will be set by cabinet and their prospects of reappointment will be by cabinet. Under these
circumstances how can we set safeguards to ensure that they will be independent? Do you have any suggestions you
would like to make?
Mr. Zussman: Not particularly, other than the fact that we do this all the time, in the sense that we have
appointments where independence is critical, for example, the Auditor General, the Public Service Commission and
judges. We have done well in Canada. You are right to raise the concern, but our track record in Canada is exemplary.
We have managed to maintain independence while at the same time allowing governments to make the appointments.
Ms. Averill: My suggestion is to enshrine their independence in the legislation. We have had excellent experience
with independent officers of Parliament.
Senator Milne: There is nothing in the bill whatsoever that says anything about a complaints mechanism. Do you
have any suggestions as to how a complaints mechanism could be established if someone feels they have been treated
Ms. Averill: In terms of not being appointed?
Senator Milne: Yes.
Ms. Averill: If the process is transparent and open the commission can always illustrate how one candidate was
viewed to have better skills than the other, just as in any job competition.
Senator Milne: Mr. Zussman, you spoke a bit about priority status. I was not aware of it, but you said something
about spouses having priority status. Would that be the spouses of diplomats, people serving abroad?
Mr. Zussman: Under the Public Service Employment Act we have a category of employees who enjoy a priority
status. They have, in a sense, first access to available jobs. One category of priority employee is a federal employee who
must move to be with a spouse. As a consequence, these individuals are accorded priority status in seeking jobs in the
new location. They are not guaranteed a job, but if a job becomes available for which they are qualified they have first
Senator Milne: How long does this priority status last?
Mr. Zussman: That is a good question.
Senator Milne: How long would it last under this bill? Is it changed by this bill?
Mr. Zussman: No, it is not changed. It does not change the Public Service Employment Act. I was attempting to
situate employment status for exempt staff in ministers' offices in the broader context of priorities. The point is that
they are not a large part of the priority status system, but this matter has been of some interest to the government in
terms of Bill C-2.
Senator Zimmer: Ms. Averill, I have three questions for you.
In the document you submitted to this committee about the Governor-in-Council appointments reform you
recommended the establishment of a central clearing house that will serve as an independent coordinator of
appointments. If such a clearing house were established what role, if any, do you envisage for this proposed public
appointments commission in terms of overseeing and reporting on its work?
Ms. Averill: The central clearing house must be part and parcel of the mandate of the public appointments
commission where, on the one side they establish processes and ensure that there is a code of practice, but on the other
side it is similar to the B.C. model where they have a roster of names. All the processes are reviewed by the commission
and it acts as a clearing house.
Senator Zimmer: You mentioned this morning that boards have the opportunity to make recommendations to the
minister responsible, and I thought you said they strike a committee. My understanding is that all the boards have
standing appointment committees whereby, on an ongoing basis, they are prepared to follow this process. I believe
they already have existing standing committees; they do not just strike one when it occurs. Is it on an ongoing basis?
Ms. Averill: That depends on the size. The larger Crown corporations have the luxury to be able to do that. They
have an evergreen list. The smaller agencies, boards and commissions do not. From time to time, as is necessary, they
strike a committee or the board will look at appointments.
Senator Zimmer: Do you know of any analyses that have been done on appointments that have been recommended
by the board to the minister? Do you have any analyses as to the percentage of successful appointments that have come
from the board itself?
Ms. Averill: I do not have that information.
Senator Joyal: If I understand the terms of reference of the public appointments commission, it does not deal with
the appointment of deputy ministers or assistant deputy ministers, which was one of the core recommendations of
Mr. Zussman: That is correct.
Senator Joyal: Proposed section 1.1(1)(a) deals with the appointment of agencies, boards, commissions and Crown
corporations and, not all the appointments that deal with the management of departments, which is the core of
government administration, would be within the scope of the public appointments commission.
Mr. Zussman: It is my understanding that the deputy ministers would continue to be appointed by the Prime
Minister using the same method that we have used for many years.
Senator Joyal: It deals essentially with the agencies, boards, commissions and Crown corporations.
Mr. Zussman: Yes.
Senator Joyal: I am trying to understand this bill in comparison with the U.K. legislation. Does the U.K. legislation
have the same terms of reference?
Mr. Zussman: That is a good question. The United Kingdom, Australia and New Zealand have been experimenting
with new ways of appointing deputy ministers or permanent secretaries, as they call them. Many of them have moved
to a model of a contractual nature with a fixed term, performance standards and performance payments. We have not
gone that route in Canada.
We feel quite comfortable with the current system, which is a traditional system. In other words, it is not fixed in
legislation. Traditionally, prime ministers have appointed their own deputy ministers feeling that they want to have
around them a management team with whom they are comfortable.
As we know, our deputy minister community is almost exclusively drawn from the public service. Almost every
deputy minister we have had in Canada for the last 50 years has been a career public servant who has worked his or her
way up the system.
Senator Joyal: Yes, an even though Justice Gomery recommended a different appointment process. As you know,
that is one of the key recommendations of Justice Gomery's report.
I was watching the news last night and heard an announcement that Justice Gomery would comment on the list of
his recommendations that have and have not been implemented. In reading the bill concerning the public appointments
commission, it seems to be obvious that this recommendation, one which was central to his report, is not addressed in
Mr. Zussman: Frankly, I do not see the link between deputy minister appointments and the sponsorship program in
Justice Gomery's report. I do not think that is where the problems lay with the program. One can consider different
ways to appoint deputy ministers, but that did not lie at the heart or even at the fringe of the Gomery inquiry.
Senator Joyal: One of the first comments that we heard Professor Ned Franks underline was with respect to the
game of musical chairs played by deputy ministers who do not last an average of more than a year and a half in the
same portfolio. They are always touring around, which is a way to change the accountability capacity of the deputy
minister. If there is a problem in a department, the tendency is to replace the deputy minister. In that way the new
deputy minister can say, ``It was not me. It was at another time. We now have a different process.'' That is a way to
temper the principle of accountability. The person who heads the department should be the one answering if something
inappropriate happens. That person should be the one to be called to testify before Parliament to answer for his or her
acts. Justice Gomery spoke at length about this issue. Professor Franks came forward with statistics that corroborated
Justice Gomery's comments. Perhaps there is a link between the work that Professor Franks did for the commission
and his statistics.
Mr. Zussman: He did significant work for the commission, and it is of high quality. I agree 100 per cent with the
observation that our deputy minister community moves around with more frequency than their equivalents in most
other countries. That is an issue that could be addressed with or without the commission playing a role. In a sense, it is
the Prime Minister of the day who makes the decision to move people around. The Prime Minister can simply decide
that for good management reasons and for better accountability, which is the second cornerstone of this legislation,
that is, to increase trust in public institutions, he will keep his deputy ministers in one portfolio for a longer period.
A simple management decision on the part of the Prime Minister could resolve that issue without adding the
commission and its involvement in this appointment process. I think Professor Franks is entirely correct in making that
It is not just for accountability purposes that I think the frequent movement of people from department to
department is somewhat problematic. From a management point of view, when you have a multi-thousand person
organization it does take some time to get up to speed and to appreciate the complexities of the portfolio. I am sure
some deputy ministers would agree with you; they would like to stay a bit longer to be able to accomplish what they set
out to do.
Senator Joyal: In other words, we have not addressed the issue of the status of the deputy minister, even though in
some other countries with a system of government that is parallel to ours, they question themselves on how better to
stabilize the system and give it that kind of neutrality, which is one of the key elements of transparency and trust in
Mr. Zussman: We have dealt with the neutrality part quite well in Canada; however, you raise an important point.
One of the things we could borrow is whether we want fixed-term contracts for our deputy minister community, which
state that when hired the term is for a five- or seven-year fixed term. The notion of movement around would then be
severely limited or, if done, it would be done by extraordinary means.
A number of countries have explored that process, which takes the flexibility out of the hands of the Prime Minister
of the day. If there is a change in government, it would mean that the government could not put people in different
slots. However, it would address the very issue that you are raising, that is, accountability would be more guaranteed
because the deputy ministers are still there after some certain period of time. That is a trade-off that this committee
The only point I am making is that it does not necessarily have to be a particular feature of the public appointments
commission; the Prime Minister could do this.
Senator Joyal: Let me come back to the public appointments commission. I am trying to establish a parallel between
that commission and the Public Service Commission. One of the key objectives of the Public Service Commission is the
principle of merit and neutrality.
Public servants are at the service of the state, not at the service of a partisan government of the day. That principle
has worked well in Canada over the years. We have built a public service that is rather competent and rather neutral.
This commission has a term of reference of five years, which seems to be built on the life span of a government. On
the other hand, in proposed section 1.1 (1)(a) to 1.1(1)(g), the bill goes to great length to build a neutral process of
recruitment, appointments, best practices and building trust. However, the commission has the responsibility of
maintaining that trust and transparency and applying the merit principle, which is stated in subsection (a), ``and that
the appointments are based on merit.'' I believe that provision is the key element of this process. That commission
seems to have a lifespan of a government of whatever stripe.
It seems to me a contradiction that we are building a commission modelled on the life of a government while that
commission has the responsibility of implementing a neutral and independent process.
None of the officers of Parliament have a mandate of less than seven years, and some have a mandate of ten years.
Mr. Zussman: That is correct.
Senator Joyal: The Auditor General has a mandate of seven years and the Chief Electoral Officer's term is up to 65
years. The term for members of the Public Service Commission of Canada is seven years.
It seems contradictory to go to lengths to establish a commission built on trust, publicity, disclosure, access,
training, annual reports, et cetera, while establishing a commission of government appointees.
It says that the Prime Minister ``shall consult'' with the opposition parties. It does not say, ``shall seek concurrence.''
A former prime minister used to say, ``Hello. It is me. At two o'clock this afternoon I will appoint so-and-so. Thank
you very much. You are consulted.''
I will not say the name, but I am sure you know who it is.
To maintain the trust that this exercise is supposed to create, we should have appointments for seven years made
with the concurrence of the opposition party, because that concurrence provides the balance in the system. We
appointed the Senate Ethics Officer with the concurrence of the opposition. The opposition is the guardian of
neutrality. In a democratic system, the opposition holds the balance of neutrality.
It is important, regardless of who forms the government, that the appointment process is as clear as possible under
the rules of neutrality that we want to put into place.
Mr. Zussman: There are three elements in your question. In my understanding, ``consultation'' does seek some level
of concurrence, notwithstanding the example you just used. When I read that, I have the sense that ``consultation''
means there is a real conversation.
The length of the appointment is an important issue. I did not see it necessarily as related to the length of a
government, but you are right that the appointments of many other officers of Parliament are seven and ten years, so
this is something you may want to give some thought to.
I am not worried about being able to find people who can do this job independently. Many Canadians could serve
extremely well in this capacity.
With regard to your reference to the Public Service Commission, I am sure that when the drafters of this bill
considered how this might be organized, they must have given some thought to putting this responsibility with the
Public Service Commission. The drafters must have decided, since the principle of merit-based appointments is the
same, that a separate organization would be better suited for these types of appointments. The Public Service
Commission is preoccupied with people who fall under the Public Service Employment Act. They are basically public
servants. This group is another group of people who work for the agencies, boards and commissions of publicly owned
and publicly controlled institutions.
I believe that the government decided this would be better placed elsewhere. It works either way.
Ms. Averill: Senator Joyal made an excellent argument for why the commission appointment should be a seven-year
appointment rather than a five-year appointment.
In the context of this consultation requirement, would it be helpful if there were parameters around consultation?
On what aspects of the appointment should there be consultation? Issues such as the merit and the skills of the person
appointed should be considered rather than such things as political affiliation. Putting parameters around consultation
might be helpful in terms of ensuring that the consultation process with the other party leaders is objective.
Senator Joyal: This important point requires second thought. When I was Secretary of State, I was involved with the
selection of the chair of the Public Service Commission. We went to great lengths to find someone who would be above
any suspicion, because the credibility of that person represented the credibility of the entire system. A person who is
above reproach conveys that status to the whole of the system. If you select a person who may be perceived to have a
bias, you will not achieve your objective.
Mr. Zussman: When I was assistant secretary for the machinery of government, I learned that each and every one of
these organizations has a constituency for whom this symbolism is extraordinarily important. A busy Privy Council
Office has hundreds of appointments to make, and each appointment is absolutely critical to the esteem that we will
accord the institution. Each appointment is equally important.
Senator Joyal: I wish to remark on the French translation, and I will appeal to Senator Nolin.
Senator Nolin, you will note that every time the term ``code of practice'' is used in the English version — and the
first use of the expression is in paragraph (c) — the translation that appears in the French version is ``code pratique.'' It
seems to me that someone would never say that in French; the usual expression is ``code de pratique.''
Senator Nolin: Yes, ``code de pratique.''
Senator Joyal: The expression ``code pratique'' is used at least four times here; I think it should say ``code de
pratique.'' You and I know full well that the correct expression is ``code de pratique'' and not ``code pratique.'' A ``code
pratique'' is a code that is useful, but a ``code de pratique'' is a manual laying out the appropriate procedure to follow.
Senator Nolin: Yes, a procedural code.
Senator Joyal: Exactly. For greater clarity, it seems to me we should make that correction.
It is a detail, Mr. Chairman, but I think it is important in that we are reviewing the French as much as the English.
Senator Ringuette: I have three questions. Mr. Zussman and Ms. Averill, both of you have talked about the code,
that some work had been done by Penny Collenette on starting to build a code and standards and so forth. How can
we ensure that the code developed by this commission will include respect for Canadian diversity, respect of the
regions, respect gender, language, age and competency? As a French woman, I find that not a lot of attention is given
to competent French women coming from outside major cities. How can we ensure that there is inclusiveness in the
Mr. Zussman: I think Ms. Averill addressed that in her presentation in a sense by talking a bit about the job skills
and requirements for these appointments being made explicit when these jobs are advertised. That makes it clear to the
public and to the decision-makers what type of person we are looking for.
Then there is the review function; subsequently, on an annual basis, reports will be issued that Parliament will
review. It is quite clear then that Parliament can hold the commission to account for meeting the tests that it set out for
This is new territory for Canada: to date, governments make appointments but there is no reviewing of them. This
proposed legislation allows for that type of review. Over some reasonable period of time, one can go back and review
the government's record on certain issues. Parliament can then comment on that.
Senator Ringuette: From what I have seen, when government departments advertise for these positions, the
advertising is limited to the major national paper. Therefore, many regions are missed that can offer competency and
meet the Canadian diversity requirement.
Mr. Zussman: The answer lies in the Internet and getting Canadians to go to the appropriate place on the
Government of Canada website to find out what is available. We do not have to worry about advertising costs; we do
not have to worry too much about the dispersion of the notices, as they are available online around the world to
anyone who might be interested.
Senator Ringuette: My second question is in regard to training. It seems to me that we have to strike a balance here
because most of the time these people are appointed for a five-year term. Many of the positions are casual or part-time.
There must be a balance between how much training we will provide and the benefits or return on investment, shall I
say. What do you suggest would create a balance here?
Ms. Averill: Senator Ringuette, you have quite correctly indicated that many of these positions are part-time. There
are around 2,400 agency, board and commission appointments. About 1,900 of those are part-time director positions.
In terms of training, and I think this would strike a balance, we are talking about training in the relationship of the
agency, the board or the Crown to the government. For example, what is the responsibility, the mandate of the agency?
What is its relationship to government? How are decisions made? How do they reflect the oversight of government, the
basic training in governance and the mandate of the organization? Many organizations that I interviewed indicated
that their directors, although very competent people in their daily lives, really need basic training in those areas.
Senator Ringuette: I would agree that that would be basic training in order to perform their duties in an independent
and knowledgeable way.
My last question is in regard to terms. On page 176 of the bill it says that the Prime Minister shall consult with the
leaders to make an appointment. Then at page 177, proposed new section 1.1(3) of the Salaries Act states:
Members of the Commission hold office during good behaviour for a term of five years and may be
reappointed for a further term or terms...
However, there is no reference to the reappointment process in regard to the consulting process with Parliament. I
would like to have your comments on that. I am not commenting on the duration, because in this bill there are many
Mr. Zussman: I had not noticed that, to be honest. It is perfectly legitimate to question the reappointment process, I
suppose, and one could ask for a reappointment process similar to the process originally used to choose the person.
That wrinkle is certainly worth looking at.
Ms. Averill: When we did our research, we found that seldom is there a sound evaluation process for the
performance of a board, a commission or an individual. It would be helpful if some part of the reappointment process
included a review of the performance over the previous term with respect to meeting the goals and objectives of the
Senator Ringuette: That is a very good idea.
Senator Cowan: I too think that is a good idea. The proposed legislation talks about the appointments of the
members of the commission and their responsibilities with respect to codes of practice. It seems to me that the real
difficulty here, and where the real improvements will come, is in the development of these codes and insisting that
Crown corporations have a regular board review of the performance of existing boards and a self-evaluation or other
evaluation of the performance of the boards.
One of the keys is to make sure that when vacancies occur, the boards go through a very public, structured process
of evaluating of their own needs, the skill sets of the existing board members, the skill sets required in the judgment of
the board to meet the challenges that are changing in any organization on a go-forward basis. There should be an
opportunity and a requirement for those views to be solicited and at least taken into consideration by the government
in the making of the appointments.
In my own experience, which is somewhat limited in this area, the views of Crown corporations and of various
agencies, boards and commissions have not been sought, and members, some very good, some not so good, have been
appointed. Even in the case of good appointments, they are not appointments that fill the real needs of the board.
I am not saying that the boards ought to have the ability to be self-perpetuating, which is a difficulty sometimes. We
tend to look to reappoint the people who are already there. Continuity is a good thing, but it is not necessarily good to
have any person in a position forever.
One real need to be addressed is the requirement on the part of the boards and commissions to evaluate rigorously
their own requirements and skill sets; another is the requirement that the government consult in a meaningful way with
these boards when they come to fill vacancies, without taking away from the government the power to make the
ultimate choice. I would like your comments on those points.
Mr. Zussman: In my estimation, most of our Crown corporations are extremely well managed. They have a very
good governance structure and they do almost all of the things that you just described a few minutes ago. What is
missing, and I think you put your finger on it, is that governments do not feel any particular obligation sometimes to
respond to the needs of the board.
One small example I hear over and over again is that most of the Crown corporation boards desperately need people
who have financial backgrounds, who can read financial statements with a real sense of expertise. Yet often, after the
appointment process is completed, they find themselves with very competent people who do not seem to have the right
Those people are all meritorious. They just do not fit the profile of what the board needs at this particular moment
in time. In this proposed legislation, presumably part of the commission's mandate would be to ensure that such
requirements are more paid attention than they might be currently.
Ms. Averill: I agree. The important issue here is that Crowns, agencies and boards carry on very specialized work on
behalf of the government, and each board is unique in the kinds of skills that it needs.
For example, the board members of the Export Development Corporation really have to understand international
industry and business activity in addition to meeting some other standards. It is important for this appointments
commission to have a close relationship with the various agencies for which it will be developing a code.
Senator Day: I would like to start by reviewing the appointment process for various people who work for
government. We have the Public Service Employment Act. On page 92, Bill C-2 states:
The Governor-in-Council may appoint persons to the following positions and fix their remuneration:
(a) deputy minister, associate deputy minister and positions of equivalent ranks;
(b) deputy head, associate deputy head and positions of equivalent ranks; and
(c) special adviser to a minister, a deputy minister or a deputy head.
There is a whole new group of specialty advisers under the Public Service Employment Act, and that is one area I
The Public Service Commission of Canada has developed, over a number of years, a very good set of rules to ensure
that the merit principle works for people who work for the government. We had some discussion on that when this
committee dealt with the public service reorganization legislation a few years ago. It was paramount that the merit
principle must prevail. Now we have this new public appointments commission; that is a third group. There is no
decision to try to use some of the good process that has been set up with the Public Service Commission. The policy
decision is to create another public appointments commission.
You are right. Here we are in the Senate. The government has made a policy decision on this and so the best thing
that we can do now is to look at this proposal and to try to achieve, through amendments and suggestions for change,
the goals that we would like to achieve, that we think are important and that the public wants.
That is why you are hearing all the questions about whether it is window-dressing when the bill says that the Prime
Minister may or may not do something. We say, let the bill say ``shall.'' Let us decide that this will happen.
Then you say, what about the appointment process for the people who will run this appointments commission?
Would it not be helpful to have sober second thought on who these commissioners are by having the Senate involved in
this process, as in many other places in this bill?
There is another possible feature that has been implemented in several other areas when there are Governor-in-
Council appointments to commissions, and that is that once the Prime Minister says this is who I would like to have,
that appointment must be approved by a resolution in both Houses.
What do you think about some of those possible extra steps? You have commented with respect to the Senate's
being consulted beforehand. To achieve the goal of public confidence in this process, would it hurt if before each
commissioner is ultimately appointed, after the Prime Minister says this is the person I would like, it would then go to
both Houses of Parliament for a resolution of concurrence?
Mr. Zussman: I cannot imagine that it hurts. I am struggling for precedence. I do not know that there are any other
instances where that is normal practice.
Senator Day: You can take my word for it. There are several places in this bill.
Mr. Zussman: In the bill itself. As you well know, eight new organizations are created by this bill.
Senator Day: Only eight?
Mr. Zussman: Eight new commissions or commissioners or organizations of one kind or another. Each one has its
own particular challenges because in some way it touches on territory already covered by other organizations.
Regarding your reference to the Public Service Commission of Canada, as Senator Joyal pointed out, they do
occupy very similar territory. It is not impossible to imagine at all that there could be two different organizations
because they do actually apply to two different groups of individuals where there is almost no overlap. In that case, I
am comfortable with that.
I would like to come back to an important point you made, which I have raised before and which I believe is being
dealt with in amendments. That is the issue of the government's being able to appoint special advisers to deputy
ministers. I believe this was an error in drafting, because the French and English versions were different when the bill
first came out. I understand — although I do not have assurances of this — that the government is not going to pursue
the special adviser to deputy minister appointment as part of the Prime Minister's prerogative.
I think this is problematic, personally. As you know, special advisers are not typically appointed by the government
of the day into departments. We have not done that before. That is a ground-breaking new development that would
raise the issue of politicization of the public service.
I understand Mr. Baird will be looking into that. Also, because the two versions are different, I do not think it was
the government's intention to go in that direction.
The Chairman: Mr. Baird will be here this afternoon.
Senator Day: We have not been told about any amendments.
Senator Cowan: You may have scooped him.
Mr. Zussman: I do not mean to scoop the minister. However, I have raised this issue on a number of different
occasions with various draftspeople.
Senator Day: Are you aware of any other amendments we should be aware of?
Mr. Zussman: No.
Senator Day: We would be very interested in knowing if there are other government amendments that might be
Mr. Zussman: I should also point out that the President of the Public Service Commission has raised this particular
issue in the annual report of the commission that was released.
Senator Day: She raised it here as well. I do not recall her telling us that she had been informed of an amendment.
Mr. Zussman: I have just heard that. I have not been informed either. I am waiting for Mr. Baird. I have been told
that much consideration has been given to this, although I do not know for certain.
Senator Day: You do not know of any other amendments.
Ms. Averill: In consideration of your idea of the resolution of concurrence and review by the Senate, I would
support anything that provided another check and balance. However, I wonder what the special role of the Senate
might be? I would propose that the Senate take on the role of ensuring that the principles of diversity and regional
representation were reflected as is the traditional strength of the Senate. I would certainly agree with that.
Senator Day: That is an excellent point because, you are quite right, that is one of the traditional roles of the Senate.
The scheme contemplates that each ministry will have its own set of rules and that this commission would review the
rules to ensure that certain standards are in place, as opposed to the central appointment process for all of the various
agencies, boards and commissions, the ABCs.
There will be many sets of rules, depending upon which department is involved. You agree with that contemplation.
According to clause 227, at page 176, it does not matter what the minister has contemplated because he or she can
override. Proposed section 1.1(1)(b) states:
...giving special attention to any instances in which ministers make appointments that are inconsistent with the
recommendations of appointment panels;
This contemplates that the many sets of rules do not truly matter because the minister will be able to do what the
minister wants to do. The proposed commission will simply take a look at those things.
Mr. Zussman: However, it has a public reporting responsibility. I do not think any minister would like to be known
as one who contradicts the good advice of the commission. Presumably, the commission will advise a minister on the
process and the minister might respond with a different process, and a discussion will ensue. At least each of these
processes will be made public. It will then be up to a whole host of people, including Parliament, to judge whether the
process is fair.
Keep in mind that to date, none of this is a public issue. We do not know how appointments are made in any ABC.
This would be a huge step forward that would also protect ministers from having a process imposed on them that they
think will not work.
Senator Day: With respect, there are many different systems currently in place. For example, for the Veterans
Affairs Appeal Board you can access the website to learn how it is done.
Mr. Zussman: There is no requirement.
Senator Day: It is done.
Mr. Zussman: You are quite right because many organizations do that.
Senator Day: We are saying that the proposed commission will review all of the different systems to ensure that
certain fundamental principles have been met. Notwithstanding that, the minister can override those. That is what this
Ms. Averill: That is correct but proposed subsection 1.1(4) states that in its report to Parliament, the commission has
the authority to report any non-compliance. If a minister must differ from a standard procedure for whatever reason, I
would assume that he or she would ensure that those reasons were clearly spelled out, such as the uniqueness of the
agency in question, et cetera. It also states that the commission retains its responsibility to table its reports to
Parliament; so they are public.
Senator Day: You are looking at the proposed subsection at page 177, which references a report of the minister
failing to comply with the commission's code of conduct and not failing to follow the recommendation of the system
set up by the minister. They are two different ethics. We do not know what the code of conduct will say because that
has not been generated.
Ms. Averill: I agreed, senator.
Mr. Zussman: There is hope that the proposed commission will bring forward best practices. I suspect that one of
the first things the commission would want to do is tell all of the agencies, boards and commissions all that it knows
about best practices. Ms. Averill's point about training is critical. I am hoping that our Canada School of Public
Service will take on the responsibility and offer standardized training practices for all appointees of the government of
the day so they can be well informed on these important governance issues. The many agencies, boards and
commissions are all asking the same questions: What is my role? What is appropriate behaviour? How do I do this? It
would not take us very long to develop an interesting training session to bring the ABCs up to speed.
Senator Day: Proposed section 1.1(1)(f) states, ``to provide public education and training of public servants involved
in appointment or reappointment processes regarding the code of practice.'' It would be nice to include ``appointed,''
and you would get what you want.
Mr. Zussman: Yes.
Senator Day: I will make a note of that.
Mr. Zussman: This committee is involved in groundbreaking work with its consideration of Bill C-2. This is unique
for Canada but, as Ms. Averill and I pointed out, there are many other jurisdictions that have been experimenting in
Senator Day: You are talking about groundbreaking with respect to the proposed public appointments commission.
Mr. Zussman: Yes, and the secretariat that will support it; this is all new for us.
Senator Day: In your comments, Ms. Averill, I thought I heard you say that under the new rules of political
financing, there is a prohibition on the purchase of public profile. I would love to know what you mean by that
Ms. Averill: In the past, political patronage always involved some relation to party affiliation. First, membership in
all political parties is declining among Canadians so the pool of potential candidates is shrinking. At one time, a person
could gain political profile by making large donations to political parties. My understanding of the proposed
legislation is that that can no longer happen. People cannot buy their way in or, with declining membership, look
elsewhere to find people that support the values of the government of the day for appointments.
Senator Day: I appreciate your comment.
Senator Zimmer: As a supplementary, the myth says that if someone belongs to a political party, that person is
without skills. When we word proposed legislation it is one thing to say that a person involved in the political process
should not be appointed. However, we cannot forget that many such people have extremely good skills comparable to
others. When we mention one, I think we should mention the other. I say that as a point of clarification.
Mr. Zussman: By making explicit criteria known to all Canadians on why and how people are appointed, it does not
exclude necessarily people who have been engaged in partisan work because there will be some other criteria that
clearly will be the reason why they are being appointed.
Senator Zimmer: At times the skills that they acquire elsewhere enhance the skills that qualify them as appointees.
Mr. Zussman: I agree, senator.
Senator Milne: I have a follow-up to Senator Day's question. Where should this proposed appointment commission
be housed to lend the appearance of neutrality? I understand from what you have said, Professor Mr. Zussman that a
secretariat is set up in the PMO.
Mr. Zussman: Currently, it is a department of the Prime Minister and will be something akin to the PCO.
Senator Milne: Should it be under the PMO or under the PCO? What would you suggest?
Mr. Zussman: That is a good question.
Senator Milne: It has nothing to do with the bill but it is the appearance of neutrality concerns me.
Mr. Zussman: I have raised this point with a number of people. We could review a number of existing options: the
Prime Minister's Office; the Privy Council Office within the Privy Council Office, where we have a senior secretary; a
separate department of the Prime Minister, which has been created by Prime Minister Harper; the Department of
Public Service Human Resources Management Canada, PSHRMC; or the Public Service Commission.
Senator Milne: There are three options.
Mr. Zussman: All of them represent workable options. I want to remain somewhat agnostic on this because I am
unsure of the best answer. There are many workable options.
You are quite right to address the issue of which option presents to Canadians a response; appears to be
independent, which is merit-based; and will attract high-quality applicants. Applying those criteria, there is not one
option that is far superior to the other.
The Chairman: Ms. Averill and Mr. Zussman, this has been most interesting, instructive and helpful to the
I am pleased to welcome the Canadian Bar Association. The CBA is a professional, voluntary organization that was
formed in 1896 and today represents some 35,000 lawyers, judges, notaries, law teachers and law students from across
The mandate of the Canadian Bar Association is to improve the law, improve the administration of justice, improve
and promote access to justice, promote equality in the legal profession and in the justice system, improve and promote
the knowledge, skills, ethical standards and well being of members of the legal profession, represent the legal profession
nationally and internationally and promote the interests of the members of the Canadian Bar Association.
With us here today from the Canadian Bar Association are Mr. Bernard Amyot, the vice-president, and Tamra
Thomson, the director, legislative and law reform. I see Kerri Froc is also here.
On behalf of the committee, I would like to thank you for being with us today. I will turn it over to you now, and
after your opening statement, we will have time for questions and discussion which I am sure will be most helpful to
Welcome to the committee. We have been awaiting your presentation for a long time. As you probably know, if you
have looked at any of the transcripts, the CBA's paper has come up with numerous witnesses. We are lucky and happy
to have you here in person.
Bernard Amyot, Vice-President, Canadian Bar Association: I will make a brief presentation, following which I will be
happy to take questions.
The Chairman: You have the floor.
Mr. Amyot: Honourable senators, the Canadian Bar Association would like to thank you for giving it this
opportunity to comment on the Federal Accountability Act. The Association represents more than 36,000 jurists in
every region of the country. As you probably know, improving Canada's laws and the administration of justice are
part of our mandate.
The brief that we are presenting today, which is the result of the combined expertise of a number of sections of the
Canadian Bar Association, is very much in keeping with the fundamental objective being pursued here. The CBA does
believe that the Federal Accountability Act is a commendable initiative. It is undoubtedly in the public interest to make
government more accountable and more transparent, and to reduce the risk of undue influence over government
We support the intention and much of the content of Bill C-2. Having said that, however, we are concerned that
some provisions of the bill may have the opposite effect from the one being sought. For example, we expect that the
Lobbying Act will harm client-solicitor privilege. It is also our expectation that amendments to the Access to
Information Act will have the effect of restricting accountability, rather than enhancing it.
Further, we believe that the Public Servants Disclosure Protection Act will make it even more difficult for people to
disclose wrongdoing in the public service. And finally, we see no overriding justification for the creation of a Director
of Public Prosecutions.
With your permission, Mr. Chairman, I would like to briefly touch on each of these points.
The proposed new lobbying legislation requires lobbyists to report on a monthly basis key details of all
communication with senior public officials. The higher frequency and greater detail of reporting may lead to a serious
problem for lawyers speaking to the government on their clients' behalf. The timing and particulars of their discussions
with government would become a matter of public record, a clear conflict with the lawyer's duty to maintain client
confidentiality. Members of the public are entitled to have confidence that consultations with their lawyer are not
made into public fodder. The new legislation would drastically increase the risk that lawyers would effectively be forced
to betray their clients' trust.
We recommend that the proposed new lobbying legislation exempt any communication made to a public office-
holder on behalf of any person or organization where confidentiality is required by law. We would have no difficulty
with lawyers having to report to the commissioner the fact that they are engaging in confidential communications in
order to safeguard the proper use of the exemption.
The Canadian Bar Association is equally worried by proposed amendments to the Access to Information Act.
Paradoxically, these changes would actually restrict accountability and transparency in government.
Bill C-2 introduces no fewer than 10 new exemptions to the Access to Information Act, including blanket
exemptions for information obtained or created by the Auditor General, the Privacy Commissioner, the lobbying
commissioner and others.
Some of these exemptions are subject to no time limit. These changes directly undermine the government's goal to
increase accountability and transparency in government. We recommend a public interest override to these exemptions
in the Access to Information Act, as is already the case in many Canadian jurisdictions.
The Canadian Bar Association further recommends that even if a public interest override is included, all exemptions
should be subject to time limitations and should eventually be narrowed as much as possible.
Third, the Canadian Bar Association believes that the Public Servants Disclosure Protection Act, which is intended
to codify protections available to public servants who make disclosures, will in actual fact restrict that protection. The
legislation will protect public servants who disclose wrongdoing when they are required to do so, whereas the existing
common law already grants that protection to public servants who disclose wrongdoing without being required to do
so. Thus the legislation will have the effect of diminishing the protection currently available under the common law.
We recommend that the bill be amended to protect all public servants who disclose wrongdoing, both those who are
required to do so, and those who elect to do so. Finally, as regards plans to create a Director of Public Prosecutions, we
see this as a solution looking for a problem.
In our opinion, there is no overriding justification for the creation of such an office. The Federal Prosecution Service
already has publicly available and accessible guidelines and procedures designed to ensure prosecutorial independence.
On rare occasions where prosecutorial misconduct occurs, oversight and discipline through provincial law societies
enable the correction and future deterrence of improper conduct.
If a separate public prosecution service is created, we recommend that the government take any necessary action to
ensure that it does not impede consultation on criminal law policy issues where the practical experience and perspective
of the prosecution service would be of particular benefit.
Mr. Chairman, I would just like to conclude by saying that a broad range of legal expertise was called upon in
preparing the brief we have presented today. We also comment on other provisions of the bill in the brief itself.
We do hope you will seriously consider the amendments being proposed to the legislation by the Canadian Bar
Association. Each of these amendments pursues the commendable and necessary objective of enhanced transparency
and accountability in government. We would now be pleased to answer your questions.
The Chairman: Thank you very much. As you say in your formal written brief, there are a number of other
discussions and recommendations. I know honourable senators have read the entire brief. Some questions may refer to
items you have not discussed, such as the director of public prosecutions.
Senator Baker: I would like to welcome Mr. Amyot to the committee and to congratulate him on his ascension very
shortly to the presidency of the Canadian Bar Association. In looking at his case law, we note it has been exactly 20
years since his first reported case before the Federal Court of Appeal, in which he teamed up with the great John B.
Claxton, whose newly released book 700-page book on trust law in Quebec, written in English, I have had sent to the
Mr. Amyot: It is very well written, but I can accept no compliment for that. It is all Mr. Claxton's hard work.
Senator Baker: You have had 20 years with many reported cases. You are a very busy litigator. Of course, your area
of law is not criminal and would not relate to the specific actions of the director of public prosecutions if in fact this bill
I have a general question. You said that the director of public prosecutions is a solution. Your exact words were ``It
appears to be a solution in search of a problem.'' I wonder if you could elaborate on that. In other words, we presume
you are saying there is no real need for the establishment of the office of the director of public prosecutions. Is that
Mr. Amyot: I will back up one step.
We fully agree with the principle of prosecutorial independence from political interference. We feel and have felt for
a long time that it is fundamental to our system of justice. On the other hand, the system as it works currently, which is
through the associate deputy minister and the prosecutorial service and completely independent of the rest of the
Department of Justice, already works fine and it provides for the independence of the prosecution.
It has public guidelines that are published, and it adheres to those public guidelines in a satisfactory way. We say
there is no need to change something that is working fine as it is. Not that we are against the principle; on the contrary,
we are very much in favour of the principle of the necessity of the independence of prosecutors.
Senator Baker: As you have highlighted in a recommendation, you take particular exception to the notification from
the Attorney General to the Director of Public Prosecutions and the fact that there should be a detailed notice of the
nature of the action taken and why it cannot be provided until the conclusion of the prosecution.
With your expertise in the area of civil litigation, even in your most recent judgment in Hydro-Québec in which you
argued about disclosure and discoverability, is this an important matter to you? Should there be complete disclosure in
such communications between the Attorney General and the Director of Public Prosecutions? Should communication
not be cloaked in secrecy or held until the end of a prosecution, but specific information about that communication
disclosed? Do you wish to elaborate on that?
Mr. Amyot: Under the current system my understanding is that if there is a decision by the associate deputy minister
to intervene, there is no formal requirement. In fact, I am told that in practice it is never done. However, in the
proposed bill, as it formalizes the separation between the two, if the Director of Public Prosecutions were to make such
an intervention, notice can be delayed.
When you referred to full disclosure, I do not believe that is what we say. We do not say full disclosure; we say
prompt notice of the intervention even if the reasons are given at the first available time as to why they cannot give
further detail, which may jeopardize the outcome of a trial.
We believe that prompt notice should be given of such an intervention, because a delay in providing this notice
could help the prosecution justify ex post facto how it handled the case, whereas prompt notice will crystallize the
moment and the events on which the prosecution relies.
It increases the transparency of the process without endangering the outcome of the trial.
Senator Baker: Very precise. Let me ask you, then, a question of the limitation period that you do not address in
your brief, which you may or may not wish to comment on. Under the act, if a commissioner becomes aware of a
violation there are five different instances where the commissioner has an extremely long period of time in which to lay
a charge. Let us not forget that we are dealing here with the actions of politicians, public office-holders of high station.
Let me ask you what you consider to be a realistic period of time after someone becomes aware of the incident that
gives rise to the action. In your opinion, what is a realistic period of time during which an action should be brought? I
am thinking not only of criminal law but of civil law; what you deal with, damages and so on. What is a realistic period
of time in your professional opinion, not only in your position as the next president of the Canadian Bar Association?
The Chairman: He will probably start with the statute of limitations.
Mr. Amyot: Many people from all the different law sections that make up the association contributed to the drafting
of our brief, and volunteers studied the legislation. That question was not raised. So, I would not like to attribute
undue importance to it, if that is not what was intended.
If you are asking my personal opinion, in my home province, the limitation period is three years for civil matters. I
cannot say anything more than that.
Our people saw nothing in here that warranted our attention. As a result, I am very reluctant to add anything to
what they have already said.
Senator Baker: What you said, if I understood you correctly, is that when you think about a limitation period, it is
Mr. Amyot: The period of limitation in the province of Quebec is three years. However, I cannot say for the other
Senator Baker: It certainly is not five or ten years; that is my point. Congratulations on your incredible activity
before the Quebec Superior Court, which appears to continue daily. We try to keep up to date. The CIBC decision was
recently brought down; it was 150 pages long.
Mr. Amyot: We do not need to read that one.
Senator Baker: We will not try. It is two of his decisions.
Senator Zimmer: Thank you, Mr. Amyot, for your presentation. I have two questions. One is in the area of the
proposed restrictions upon the employment and professional activities of reporting public office-holders during and
after their time in public office. It will likely be deemed constitutional by the courts. Given that, can you cite any case
examples that would suggest that they would?
Mr. Amyot: I am not sure I understand your question.
Could you repeat your question, please?
Senator Zimmer: In the report, they indicate that proposed restrictions on employment and professional activities of
reporting public office-holders during and after their time in public office will probably be deemed constitutional. I
wanted to know if you knew of any case examples that would suggest that they would be constitutional.
Mr. Amyot: I am afraid I do not.
Senator Zimmer: With respect to your recommendations that a public interest override to exemptions in the Access
to Information Act be built into legislation, what are your specific concerns with those exemptions? Are you able to
provide any examples of a situation in which such an override might apply?
Mr. Amyot: In our brief, we give specific examples. Starting on page 11, we list a series of new exceptions to the
Access to Information Act. I will limit myself to that.
Senator Zimmer: Could I refer to the report and take them from there?
Mr. Amyot: Yes, but your question is twofold. In the second part, you asked when the public interest override could
come into place.
Senator Zimmer: Could you provide me with specific concerns about the exemptions in the legislation? When do you
think it should apply? I am looking for a situation where it might apply.
Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association: The various exemptions that are
added in this bill would actually allow for information not to be made public. There are situations in any of those 10
exemptions, or in others, where it may well be in the public interest to release that information. We are saying that in
those instances — and public interest can be broadly defined — the course of action should be either for the institution
or for the access commissioner to be able to make a ruling that it is in the public interest to release the information
rather than exempting it from public access.
Mr. Amyot: We referred to provincial legislation where it is done.
Senator Zimmer: Yes, you did. Thank you.
Senator Milne: We heard from both the Information Commissioner and the Privacy Commissioner about the
proposed changes to this bill. One area on which both disagreed with the bill had to do with the interpretation of the
right of public access, that is, the greater good, if you would put it that way. In particular, they were concerned with the
effect the bill would have on the court's judgment in Lavigne v. Canada. Do you have any opinions on that?
Ms. Thomson, I think we have heard from you on this one before.
Ms. Thomson: The general approach we take to access is that, except where there are good reasons to withhold the
information from public access, one should make available publicly as much information as possible.
In terms of the particular impact on the Lavigne decision, our group did not look at that specifically.
Senator Joyal: Welcome, witnesses.
I wish to go back to your recommendations in reference to your amendments to the lobbying act, especially on the
bottom of your page 4. I will read the last three lines of your brief, which state: ``The legislation is vulnerable to legal
challenge and at the very least poses a potential conflict between federal law regulating lobbyists and rules of
confidentiality of the legal profession sanctioned by provincial or territorial law.''
You raise an important point here, which is essentially the Charter protection of the solicitor-client privilege that
has been determined by the court in many previous decisions that you refer to on page 3.
Could you explain to us in greater detail the context in which a lawyer who does lobbying would be prevented from
reporting, as is mentioned in proposed section 69 of the bill? That would put the person in a situation whereby the
person could not comply with the act but would allege a Charter protection to refuse to do so.
You conclude that the proposed legislation is vulnerable to legal challenge. In other words, your obligation to report
under the bill would put you in conflict with the rules of confidentiality that govern the legal profession. In which
context do you foresee that that is a potentiality that is real?
Mr. Amyot: In every province, local law societies enforce codes of ethics. Laws in effect in every province protect
client-solicitor privilege. It is with that in mind that we are saying that this legislation, if it encourages legal counsel to
violate client-solicitor privilege, will give rise to legal challenges.
Senator Joyal: What kind of information being requested by the proposed section do you feel would put you in
conflict with the protection that provincial statute gives to lawyers?
Ms. Thomson: Perhaps we can take a step back and say that this is not for any conversation that a lawyer has with a
public office-holder on behalf of a client. If this is lobbying work, then, by all means, lawyers should be covered by
that. We are not looking for a blanket exception for lawyers.
However, there are some instances where a lawyer is speaking to the government on behalf of a client on a matter
that is subject to solicitor-client privilege. That may be with respect to enforcement of a particular matter in terms of
seeking out a settlement on a matter before the Canada Revenue Agency, or looking for compliance under the
Competition Act or any of the other myriad federal regulatory acts that a lawyer may be speaking on behalf of a client,
in trying to make a settlement on behalf of the client.
In those instances, to report that you will be speaking with a senior public office-holder on behalf of your client may
be in violation of your solicitor-client privilege on behalf of your client.
Mr. Amyot: As regards the fundamental principle of confidentiality, everyone agrees that every person should be
able to defend his or her rights in an enlightened manner.
In order to defend one's rights in an enlightened manner, one must have absolute confidence that whatever one tells
one's legal counsel will go no further, in order that he may give an informed opinion with respect to the exercise of
We are not saying that lawyers who perform lobbying activities necessarily disclose confidential information. But
when they do, they should either be exempted from the legislation or a report should be made stating that such and
such a conversation took place, but without providing any details that could compromise the principle of client-
Senator Joyal: I agree with the merit of the principle concerning solicitor-client privilege. It is to allow a full defence
of the person. However, I am trying to figure out where the line must be drawn in cases where, according to the
proposed section 69(3)(a) — at the top of page 70 of the bill — where the information you have to disclose is listed.
That subsection reads:
...every communication referred to in paragraph (1)(a) that is of a prescribed type and that was made in that
month involving a senior public office holder and relating to the undertaking...
Following that are the details of what you must disclose. The name of the senior public office-holder who was the
object of the communications is pretty straightforward. The date of the communication is obvious. Proposed
subsection (iii) reads:
...particulars, including any prescribed particulars, to identify the subject-matter of the communication...
That refers to the name of the file or the subject matter of the representation. The final item is any other information
that is prescribed.
In other words, if you are to maintain solicitor-client privilege and want to satisfy the objective of the disclosure,
perhaps it would be better to hire a lawyer and explain your case but tell him or her that it is privileged information
that cannot be disclosed, and then proceed to lobby. There is a fine line when you say you are protected by solicitor-
Mr. Amyot: Saying that it is privileged does not necessarily make it so. We are not saying that someone would hire a
lawyer just to invoke client-solicitor privilege.
When a lawyer engages in lobbying that does not necessarily involve disclosing confidential information, we are
saying that he has to abide by the law like everyone else and make the same reports as everyone else. As you know, the
name of a client may also be confidential, or the fact that someone has consulted us. In terms of confidentiality, that is
when client-solicitor privilege comes into the equation, and only at that time. There can be protection mechanisms
through what has been suggested — in other words, giving notice that such conversations took place, but noting that
the information is confidential, and if the commissioner wanted to review that assertion, he could do so, because there
would be appropriate protection mechanisms in place. But it is important to lay down that principle, and to state
loudly and clearly that we intend to preserve the principle of solicitor-client privilege which is set out in our Charters of
I agree with you that it is not enough to hire a lawyer for any and all information to become privileged, nor is that
Senator Joyal: I realize that is not your goal here, except that the practical use of such a provision could give rise to
that or a comparable outcome. I am just wondering what kind of safeguards or parameters we would have to include to
ensure we would not be opening the door to the use of solicitor-client privilege as a means of avoiding public disclosure
of actions that basically amount to lobbying.
Mr. Amyot: What I was suggesting was that it would be up to the commissioner, when notice is given, to determine
whether they all believe that this is unreasonable or whether they have suspicions that might prompt them to
Senator Joyal: But you are asking for a very specific amendment, as proposed on page 5 of your brief.
You recommend that the following paragraph be added to section 4.2 of the Lobbying Act:
This act does not apply in respect of any oral or written communication made to a public office-holder by an
individual on behalf of any person or organization where confidentiality is required by law.
You are requesting specific amendments to protect the principle of solicitor-client privilege.
Mr. Amyot: As we state in the following paragraph, the courts can resolve any problems that arise. I imagine it
would be up to the person invoking solicitor-client privilege.
Senator Joyal: Unless you are charged that you have not complied with the disclosure obligation there. If you were
charged with a violation of the act, in your defence you would allege that it was information that you were required by
law to keep confidential. You would do it in defence more than seeking an adjudication.
Senator Nolin: We agree that it is not the burden of proof, it is only an allegation. I would say my client requested
confidentiality, and then the Commissioner would have the burden of proving that it is not true. Do you see the
dilemma we might face? It is a matter of drawing a line that allows us to respect the rights and privileges of everyone,
but how do we actually draw that line?
Mr. Amyot: First of all, the commissioner would do an initial selection, and because we live in a democratic society,
we have the rule of law. If there is complete disagreement on a given matter, that matter is brought before the courts.
That's the reason we have courts of law.
Senator Joyal: And despite the fact that solicitor-client privilege is protected under the Charter, as you clearly
demonstrate in your brief, you are still asking that the legislation be amended to acknowledge the existence of that
relationship, in the context of possible lobbying activities?
Mr. Amyot: Yes, exactly.
Senator Joyal: We heard from Professor Mendes from the University of Ottawa, who made a number of
observations about one aspect of the Charter that could be invoked in the part of the bill that deals with the financing
of political parties.
Have you had an opportunity to familiarize yourself with the comments Professor Mendes brought to our attention
Mr. Amyot: I am afraid not. I sometimes watch CPAC in the evening, but not on a regular basis. I must have missed
it that evening.
Senator Joyal: Moving on now to your second point, with respect to the Access to Information Act, you are asking
that there be two qualifiers added, one with respect to the timeframe and another with respect to the public interest
that would temper the ten exemptions that you list on pages 11, 12 and 13 of your brief.
Why do you believe that time limitations should be formally recognized when access to information is refused — for
example, investigative material or information prepared as part of an accounting audit, and so on?
Mr. Amyot: The reason we are recommending that there be a time limit is that we agree with the general principle
that access must be broader, rather than the opposite. Because exemptions are being added, which has the reverse effect
of reducing access in the provisions you have here, we are saying that this has to be tempered by the public interest and
time limitations, to mitigate the possible harmful effect of these exceptions and ensure greater transparency.
Senator Joyal: When we heard from the Auditor General and raised the argument that the studies or reviews carried
out to prepare the audit —
What we call the draft audit.
She said that she would prefer that it be completely exempted, as the legislation stipulates, because she believes that
making these documents public could prevent people who are involved in the study from making all the information
accessible, since they would remember that the information could become public one day.
If people are protected through a permanent exemption — and that is what we're talking about here, an exemption
for life, just as we used to talk about a life sentence — we would be making it easier for that information to be made
available, rather than keeping it confidential over a limited period of time. How do you respond to that argument?
Mr. Amyot: I find it odd that the Auditor General would tell you that we need to be less transparent, rather than
more transparent. I'm surprised that she would have given you a lesson in transparency, even though that is quite the
reverse of what her work requires, but I was not present when she made those comments. Having a time limitation is a
safeguard to ensure there will be no abuse. If she wants total obscurity, that's her decision, but it certainly will not lead
to greater transparency.
Senator Joyal: What would a reasonable time limit be, in your opinion? In the middle of page 13, you have not
actually specified the length of the time limit in terms of years.
Mr. Amyot: No, that's correct. There must be a reason. It seems to me that this is reasonable to ensure that the
Auditor General, to use the example you cite, can carry out her work without having to be concerned about disclosure,
but at the same time, she is aware that one day that information may become public and that she may have to respond
Senator Joyal: But is a twenty-year time limit, which is the time limit for non-disclosure of cabinet confidences, a
reasonable period or is it excessive?
Mr. Amyot: It seems reasonable to me, but it is longer, rather than shorter.
Senator Joyal: As Senator Milne mentioned, there have been a number of rulings handed down by the highest courts
in Canada with respect to the notion of public interest. In the context of what you are proposing, how do you define
the public interest?
Mr. Amyot: I certainly do not propose to teach senators anything about the public interest. I believe it is the
Senator Joyal: Is it not, rather, the right of individuals to access information that concerns them directly, as
taxpayers and citizens?
Mr. Amyot: Yes, of course; you are right.
Senator Joyal: So, the notion of public good is linked to people's right to have access to government information.
Mr. Amyot: And to transparency for everyone else.
Senator Joyal: And to allow them to make an enlightened judgment about their choice of a government and their
assessment of government action. That is part of a citizen's democratic rights, in a way.
Mr. Amyot: I am not sure what you are driving at here. Was that a question?
Senator Joyal: I'm putting the question to you; since you are a lawyer, I imagine that in your practice, you have had
occasion to look at what is meant by the public interest.
Mr. Amyot: Yes, but you surely know as well as I do that it refers to the common good or interests that are above
and beyond individual interests. It refers to the interests of the community, and respect for the rights of every
individual is closely connected to that.
Senator Joyal: So, in your mind, the ten examples you give of exemptions with respect to access to information are
exemptions that should be lifted in the public interest?
Mr. Amyot: Yes, exactly.
Senator Joyal: Within a reasonable period of time, as you say.
Mr. Amyot: Yes, I believe that is what I said.
Senator Joyal: Can we then move on to the points you have raised with respect to whistle-blowing? You said that
the common law in a way provides protection to people who are required to make disclosures, but that it would be
preferable to broaden or review the legislation to also include people who have the option to make disclosures. Could
you repeat your explanation as to what led you to this conclusion?
Mr. Amyot: Certainly.
It is based on the Haydon case which we cite in our brief.
Senator Joyal: It's on page 10 of the English version.
Mr. Amyot: Yes, we quote from the Haydon case on page 10 of the English version of our brief. In paragraph 83, the
judgment states that ``The common law duty of loyalty does not impose unquestioning silence.''
What we are saying is that the law should not require someone to make a disclosure. It can be done under the
common law, which tempers the duty of loyalty, and it can be done voluntarily, without that being a requirement
under the law. I believe it is really a question of wording.
Senator Joyal: The wording of the bill?
Mr. Amyot: Yes.
Senator Joyal: So, you are asking that clause 2 of the bill be amended to add to the definition of ``protected
...disclosure that is made in good faith and that is made by a public servant
(d) when lawfully required to do so.
Essentially, what you are asking is that we codify the protection provided under the common law for a person who
holds public office.
Mr. Amyot: Yes, in order to broaden the protection given public servants.
Senator Joyal: Let us move on to the director of public prosecution.
Clause 11 which you are referring to is at the bottom of the page. You are recommending that this section be
amended to limit the notification period and you are also asking that the notification include —
— reasons why detailed notice of the nature of the action taken cannot be provided until the conclusion of the
You are asking for two things: you are asking for an amendment that would ensure that notification is not only
prompt, but you are also suggesting —
— prompt notification. In such circumstances prompt official notification.
In other words, it is immediate. And you are also asking that this be done ``together with reasons.'' When the
Honourable Antonio Lamer appeared last week, we asked him that question based on your brief. Did you follow that
Mr. Amyot: Yes, I had the pleasure of reading it. I did not see it live.
Senator Joyal: So, you got some sleep that night; that is good. So, if you read it, you are already aware of Mr.
Lamer's response to the question after reading your recommendation, because we showed it to him. How would you
characterize Mr. Lamer's response to your recommendation?
Mr. Amyot: Correct me if I am wrong, but my recollection is that Chief Justice Lamer said that the Canadian Bar
Association's recommendation ``wasn't bad''. He did not say it was good, but coming from him, I guess that quite a
Senator Joyal: So you still believe that your recommendation is relevant — in other words, that we should include it
among the draft amendments we consider making to the bill?
Mr. Amyot: Absolutely.
Senator Joyal: And how do you respond to his argument that notification of these kinds of details could
prejudicially affect the conduct of a trial?
Mr. Amyot: I believe what he said — and again, correct me if I'm wrong — is that the Canadian Bar Association's
recommendation ``...did not mean that details would be provided that could compromise the conduct of a trial.''
It had to do with giving reasons that I might be required to explain subsequently, once the case was already
completed. That is not the same.
Senator Joyal: No, of course.
Mr. Amyot: I believe he agreed with our recommendation and saw nothing dangerous in the wording we proposed
— in other words, that at the time of notification, no information be disclosed that could result in a mistrial.
Senator Joyal: With respect to clause 11, could you tell us what specific wording you would suggest that we add by
way of amendment? I am trying to get a free legal opinion here.
Mr. Amyot: And I suppose you know what a free legal opinion is worth?
Senator Joyal: Yes, absolutely!
There is no such thing as a free lunch.
Mr. Amyot: Well, the fact is I did not have any lunch. I saw there were some sandwiches, though.
Senator Joyal: Yes, there are still some left!
Mr. Amyot: You are really asking me to do drafting on the spot.
Senator Joyal: Which part of the clause are you suggesting that we amend? Clause 11 contains at least two
paragraphs, and you are suggesting that it be amended. I imagine that if you suggested this, you must have something
Mr. Amyot: I do not have any specific wording to suggest. Sorry.
Senator Joyal: Can we move now to the recommendation you make at the bottom of page 17 of your brief? I am
going to read it, because I consider it to be extremely important.
``The Canadian Bar Association recommends that the process of budgetary request and allocation be transparent
and legislative provisions should be made for the allocation of additional resources for extraordinary prosecutions.''
If you have read the proceedings of this committee, you certainly know that we heard from Mr. MacFarlane, one of
your colleagues. He completed his testimony by talking about how a Director of Public Prosecutions could be subject
to pressure from the Treasury Board, and that the principle of independence would eventually be in doubt. What is the
basis of your recommendation that the budgetary process be transparent and that specific provisions be added for the
allocation of resources for extraordinary prosecutions? What specific situation in terms of legal practice or previous
experience are you relying on to make that recommendation?
Mr. Amyot: Our recommendation is that this be set out in the legislation to ensure absolute protection of the
director's independence, to ensure that his actions will not depend on what the Treasury Board deems appropriate.
That protection would be spelled out in the legislation, so that when a special event occurs that requires additional
resources, he cannot be told that he has exceeded his budget, because that would directly affect his independence. So, in
the name of transparency, we have to make provision for a director having the resources he requires, if a special
situation occurs, so that he is not prevented from carrying out his duties because of a lack of resources.
Senator Joyal: Are you referring to the corresponding legislation in Nova Scotia?
Mr. Amyot: What I'm saying is that the director could be starved of resources and that this would amount to
political interference, even as the government, while proclaiming that he is there and he is independent, was cutting his
funding. Our recommendation is intended to ensure that there is no political interference in the work carried out by the
Senator Joyal: And to justify your conclusion, you refer to legislation in Nova Scotia which created a Director of
Public Prosecutions? That is already provided for in that province's statutes.
Mr. Amyot: Yes, exactly.
Senator Joyal: I see Ms. Thomson nodding in agreement. Do you know more about that particular section of the
Nova Scotia Public Prosecutions Act, Ms. Thomson?
Ms. Thomson: This recommendation used the Nova Scotia Public Prosecutions Act as a model.
Senator Joyal: Does it take into account the budgetary exercise and the extraordinary cases of prosecution or only
the extraordinary cases of prosecution?
Ms. Thomson: My understanding is that it takes both into account.
Senator Joyal: I would like to come back to your opening presentation. As a member of the Bar, which is obviously
one of the main institutions to be concerned with criminal prosecutions, you are supporting the claim that this
initiative is unnecessary. On the basis of what analysis in particular have you concluded that, in practice, this section of
the bill could simply be omitted from Bill C-2?
Mr. Amyot: On the basis of opinions given by experts in our volunteer sections who practice in this area on a daily
basis. There are members of our association on both the defence and the prosecution side. Our Criminal Justice Section
includes people that represent both areas of practice. They concluded that there is no problem in terms of the
independence of the Assistant Deputy Minister — who is responsible for prosecutions — being respected at all times.
They have never noted any interference in that regard. They have public guidelines that they adhere to.
If I could just add one thing, it would be that Justice Lamer noted, in his testimony, that there is a healthy culture at
the federal level and that he has full confidence in the way things are done at this time. I believe those are the words he
Senator Joyal: He actually remembered two cases that may have created that impression, but that were resolved
subsequently — in other words, adjustments were made and no one had to conduct an investigation subsequently to
determine whether the trial had been politically influenced. He did not specifically state what two cases he was referring
to, but they seemed to go pretty far back.
Mr. Amyot: Our member practitioners, who deal with this in real life on a daily basis — and I mean those on both
sides of the fence — have confirmed that Justice Lamer is correct.
Senator Joyal: Thank you.
Senator Milne: I have a question for clarification. I am looking through the summary of your recommendations and
I have found recommendation 1, on clause 68; and recommendation 2, on clause 69. Then you speak to section 15,
which I cannot find in this bill. It has five sections and 300-odd clauses, but there are so many section-15s under those
clauses. Perhaps you could give me a list of the clauses relevant to your recommendations.
Mr. Amyot: I see section 15 on page 9 of the bill.
Senator Milne: At page 9, there is clause 15 and 15(d). I would like to know where to find the definition of
``protected disclosure'' in section 2 of the Public Servants Disclosure Protection Act.
Mr. Amyot: Is there a question?
Senator Milne: Yes. I am asking you on what page I will find that in the act?
Mr. Amyot: Which one, section 15?
Senator Milne: The definition of ``protected disclosure'' in section 2 of the Public Servants Disclosure Protection
Mr. Amyot: You will have to be patient with me, Senator, while I try to find it.
Senator Milne: That is my problem, too. I cannot find it.
Mr. Amyot: I have not memorized it yet.
Ms. Thomson: It is clause 194 of the bill, which amends section 2 of the Public Servants Disclosure Protection Act.
That is on page 137.
Senator Milne: That is precisely what I need. Can you tell me what clause and page?
Ms. Thomson: Yes. That is on page 108. It is section 11 of the proposed director of public prosecutions act, which is
clause 121 of the bill.
Senator Milne: You can see why we get confused. Mr. Amyot is confused too.
Ms. Thomson: We tried to make it as clear as possible, but it could always be clearer.
Senator Milne: That leads me to the fact that some of these recommendations may refer to parts of these acts that
are not opened by this bill; or do they all refer to sections that are opened?
Ms. Thomson: Yes, they all refer to sections in the bill.
Senator Milne: My last point concerns the implications of the DPP initiative for the competitive law division in the
Department of Justice. I am not asking for any conclusions, but I am curious to know what sort of implications it may
Mr. Amyot: We have a specialized competition law section that is very active at the CBA — I do not know the name
in English; in French, it is ``section spécialisée du droit de la concurrence,'' the SDC is a separate entity dealing with
competition issues. What our members have told us is that there is a very particular expertise in that competition
bureau that needs to be retained and fostered. They were afraid that if it is merged into the DPP, this very important
expertise may be lost.
Ms. Thomson: That could apply to any of the units within the Federal Prosecution Service that serve the particular
needs of any of the regulatory agencies — that a particular expertise arises in the prosecutions and in all the legal
matters in that particular area. It would also apply where there are civil and criminal matters being dealt with by those
Senator Milne: You are concerned that this expertise could be drained away or diluted because another body is
being set up.
Ms. Thomson: We would hope that the implementation of this proposed legislation would not lead to that; we
believe that it can be implemented in such a way that expertise is maintained. We just want to bring that to your
attention so that it is an issue.
Mr. Amyot: It is a word of caution.
Senator Day: Have you had a chance to focus on the five-year cooling-off period for senior public office-holders
under the proposed lobbying act?
Mr. Amyot: No; it is not part of our submission. However, we have a rule for people holding political office to seek
an appointment to the bench; I believe the current rule is a two-year cooling-off period. Our recommendation is two
The Chairman: Does that mean if you are a lawyer and you want to go to the bench that you could not hold an office
in a political party? Is that what you mean?
Mr. Amyot: Public office, I believe, is in government.
The Chairman: When you say we have a rule, were you talking about the Canadian Bar?
Mr. Amyot: Our recommendation is that it should be two years.
Ms. Thomson: Our recommendation to the government is that any cabinet member, MP, senator or political staff
have a two-year cooling-off period before judicial appointment.
Senator Milne: Does two years appear to you to be a reasonable length of time?
Ms. Thomson: Yes.
Senator Day: I guess it does as well under the conflict of interest cct, because it is two years and then along comes
this other piece of legislation in the same Bill C-2 — another piece of it called the Lobbyist Registration Act, to become
the lobbyist act — and the cooling-off period is five years. To try to balance these and look for some policy reason for
having both of them has been tough for us. I appreciate that comment with respect to two years, because that gives us
another example of the reasonableness of two years. One might think that five years is a lifetime ban.
Mr. Amyot: I take it that is not a question.
Senator Day: Anyone who leaves a position as a deputy minister and then is five years out doing something else is
not very likely to find his or her contacts or expertise that still relevant. This is just a gratuitous comment, and that is
why I say five years is, in effect, saying that we never want to see any of these senior public office-holders in lobbyist
Mr. Amyot: Senator Joyal wants free legal advice and you make gratuitous comments. I am the only one who is not
getting paid today.
Senator Day: And you have not had anything to eat yet.
I want you to comment on this, after I have read a few of the excerpts from your submission. I am left with the
impression that you feel perhaps we are acting in too much haste with respect to Bill C-2, and that this is just going
through the system a little too quickly.
At page IV in your executive summary, you state, ``The Canadian Bar Association recommends that this portion of
the bill be subject to further study before enactment.'' You are talking here about portions of the proposed lobbying
act, ``Under the Director of Public Prosecutions, the Canadian Bar Association recommends that government further
study these aspects.'' Then at page VI, last paragraph, it says, ``Due to the speed with which Bill C-2 is proceeding
through the legislative process, the CBA has not had the opportunity to fully explore the implications of the DPP
initiative for the specialized competition law division within justice. The CBA recommends that the government further
study this issue and the interested groups have further opportunity to comment on these implications.'' That is just
three of the areas where you have said further study. Then you say, ``The speed with which Bill C-2 is proceeding
through the legislative process...''
We agree with you, but many people do not. We hear it every day, that this is being dragged on and is not
proceeding in a proper manner. I welcome any comments you may wish to make in relation to those excerpts.
Mr. Amyot: No, I think they are self-explanatory. This submission was made for the House, I believe, in June.
The Chairman: That was before the Senate started its extensive hearings.
Mr. Amyot: We were not called upon to testify before the House. We are glad to have the opportunity to be here.
Senator Day: The House of Commons did not call upon you?
Mr. Amyot: I do not believe they did. They received our submission, which is before you.
The Chairman: As I understand it, the Canadian Bar Association was invited but it was a question of scheduling.
Mr. Amyot: Then that is fine.
Senator Day: Did you appear?
Mr. Amyot: No, we did not, hence my comment.
The Chairman: But they were not expressly excluded.
Senator Day: Your submission of this executive summary was prepared and dated in June. What, if any, input have
you had to these amendments to Bill C-2 since that date, prior to your appearing here today?
Mr. Amyot: I have not taken cognizance of the amendments.
Ms. Thomson: The amendments that were made in the House do not reflect any of the recommendations of the
written submission that we made to the House committee; we did not have any input into the amendments.
Senator Day: Our chairman tells us that as a result of a scheduling error, you were unable to make an oral
representation before the House. Is this your first opportunity, other than your written submission of June, to talk
about the points that concern the Canadian Bar Association?
Ms. Thomson: The scheduling was very tight. We were asked to appear on very short notice, and we were unable to
accommodate the House. The House received our written submission, and I can only assume that it was read.
Senator Day: It was not acted upon in any regard. This is obviously important to the Canadian Bar Association. If it
is important to the process, is this your first opportunity to appear to discuss these points that are of concern to you?
Ms. Thomson: To make oral submissions, yes, but the House had our written submission.
Senator Day: Have we received the same written submission?
Ms. Thomson: Yes.
Senator Day: You have told us that no action was taken with respect to any of the recommendations.
Ms. Thomson: That is correct.
Senator Nolin: Last June, you seemed to be somewhat frustrated about the time you had available to you to consult
your members and try to explore alternatives. Since writing your last brief, have you looked at other options?
Mr. Amyot: No, and the reason for that is quite simple. Our recommendation is intended to ensure that this
expertise is passed on and preserved. The bill is the same as previously and we have no additional submissions to make
in that regard.
There is no frustration, however, and I want that to be perfectly clear. We are all volunteers and we draft briefs on a
vast array of subjects. We do it as best we can and in whatever timeframe we have available. Our volunteers come from
every region of the country and it is not always easy to bring people together and get things done quickly.
I want to point out that I was not expressing any frustration. On the contrary, I think that your committee is doing a
very good job, and we are grateful for the opportunity to appear before the committee.
The Chairman: Mr. Amyot and Ms. Thomson, on behalf of the committee, thank you very much for attending
As you have probably gathered, a number of people around the table are or have been former members of the
Canadian Bar Association, so they are not required to declare any kind of conflict. It indicates a lot of support for the
work that the Canadian Bar Association does and continues to do for Parliament. It is always a useful exercise when
Canadian Bar Association representatives appear before parliamentary committees, and it was again today. Thank you
We have before us the Honourable Eugene Whelan, who hardly needs an introduction. He is a farmer who has
served us in the Senate. Prior to that, Mr. Whelan had served in the House of Commons between 1962 and 1984, and
served as the Minister of Agriculture between 1972 and 1979.
Mr. Whelan, I welcome you back to Parliament Hill. I know that honourable senators will be very interested in the
ideas that you have on this important bill, Bill C-2.
You now have the floor. After you make some opening comments you can be assured that honourable senators will
have questions to put to you.
Hon. Eugene F. Whelan, P.C., as an individual: First of all, I wish to thank you for allowing me the honour to appear
before this committee, which is doing such an important job of preserving what has been built by our forefathers —
one of the best institutions in the world. I would compare what we have in Canada to any other place in the world.
I want to make one little correction in the introduction. I had a short sabbatical from 1979 to 1980 and then I served
in cabinet from 1980 to 1984, which I will touch on.
When I see so many of you here who know me, it is hard to be an important stranger involved in some kind of great
presentation. I listened a bit to the Canadian Bar Association, and I was thinking that I have one of the highest law
degrees that one can have, because I have an honorary law degree from the University of Windsor, and I was waiting
for you to call me Dr. Whelan.
I have difficulty hearing. When I was in the Senate before, few remember I had a special little hearing device, which I
failed to tell the Clerk of the Committee, Mr. Lafrenière. We had Lafrenières in Belle River, Ontario, my old
constituency. I am half French and half Irish; no Newfoundlander at all.
When we talk about accountability, we must also mention and consider credibility. I feel the two go hand in hand.
The present government stresses accountability as though in government it has been a total loss. Yet, on the very
day the government was sworn in, they lost both these positions as far as I am concerned. This was done by taking a
person elected as a Liberal and appointing him to the cabinet, as well as appointing a non-elected person to the cabinet
and then to the Senate.
Not long after that, with much fanfare and noise, they acted as though history were being made and Parliament was
making a new breakthrough by having a parliamentary committee hold hearings on a new appointment to the
Supreme Court of Canada. It was as phoney, Mr. Chairman, as a three-dollar bill. Who was the chairman of the
parliamentary committee? None other than the newly minted Minister of Justice. It was a sham. No cabinet minister
can ever be a chair of a parliamentary committee. Yet the press and everybody played this up as an earth-shattering
breakthrough. To me, it was a fraud on what we call accountability.
Accountability and credibility just flew out the window. In my dictionary, the short definition of accountability is as
follows: Liable to be called to account; responsible and answerable to explain why. The definition of credible is as
follows: Believable, reliable and trustworthy.
When we talk about ``accountability,'' especially when we talk about those of us in public office, I am a firm believer
that credibility is a good partner to go along with the first reason we are all here today. Today, there is a very wide
feeling in our country, Canada, that there is no accountability and, therefore, no credibility. In turn, no one trusts
anyone, especially those in government and the elected politicians. We are listed at the bottom of the totem pole. Why?
Are we, the politicians, really that bad?
Let us look at some facts. To do so, I will use my lifetime experience of having had the privilege of being elected to
public office for 39 years, plus three years in which I served in the Senate. That experience is in addition to positions of
elected office I held in farm organizations, including Harrow Farmers Co-op, my local co-op, the United Co-operatives
of Ontario, the Co-operators Insurance Co., the Ontario Federation of Agriculture, an association of rural
municipalities, and others.
We in these organizations handled close to $100 million a year. We were the largest customer of the Canadian
Imperial Bank of Commerce in Ontario at that time, doing over $50 million alone with them.
In my public life, including 22 years in Parliament, 10 years as a backbencher and nearly 12 as a cabinet minister, I
never had one person, elected or non-elected, ever offer me a payment for anything that I did. Remember, I dealt with
elected MPs of every political affiliation and description from all over Canada. Also, you must remember, I worked
with bureaucrats for a long time. Never once did a bureaucrat suggest anything to be dishonest. No one from the
private sector ever suggested to me that they ever encountered this practice of payout.
I remember when I received a phone call from the Prime Minister of Canada, Pierre Trudeau, to be Canada's
Minister of Agriculture. I remember his words as though they were spoken yesterday. I said to him, ``Are you sure?''
He said, ``Yes, and you stay just as you are and stay honest, and I will support you, most of the time,'' which he did.
You must remember being appointed as minister of the Crown is a very public appointment.
At this time, to those persons who have created the thought in peoples' minds that we are a bunch of thieves and
crooks, I challenge you to put a handle on those persons. Name them. I dare anyone — members of the media,
politicians, academics, anyone out there — to do so. You cannot do it because not one of you can name an elected
politician that I know of who is guilty of that charge. I will compare politicians with any part of our society, business or
otherwise, for honesty.
We have some would-be politicians who will make this Canada purer than ever. I say all the power to them. This old
politician has been around a long time and has seen a big part of our world. If there is a better life, a better
administered country anywhere that is better than Canada, I want you to tell me, because I am an average Canadian
and I want the very best. If there is a better country, show me the way and I will go there.
I will admit that we can make some improvements, but let me point out to you how we have strayed backwards in
making departments of government more efficient. I will use my long service as Minister of Agriculture for nearly 20
years as an example. I have not followed everything everyone who has appeared before this committee has said, but I
will touch on what I feel is the general trend, especially that put forward by some professors and others who talk about
who should run a department — the minister or the deputy minister. Let me tell you how an efficient department runs.
When I became Canada's Minister of Agriculture in 1972, everyone of any authority in that department had either
agricultural training or a degree. I am talking about the deputy, assistant deputies and directors. My deputy, Mr.
Williams, who was born in the Eastern Townships of Quebec, never worked in a field other than agriculture all his
working life, from the age of 18 while attending Macdonald College at McGill, even as a summer student. The only
time Mr. Williams did not work in the field of agriculture was during his four years abroad as a soldier during World
War II, and he came back a major. All his assistant deputies and directors were trained in agriculture. The person
responsible for the health of animals was a veterinarian who came from Swan River, Manitoba— the same place my
green hat comes from — Dr. Ken Wells, whom I remember well. The head scientist at that time was a doctor who also
came from Manitoba.
Mr. Williams had worked in several parts of Canada, from demonstration farms to large experimental farms, before
coming to Ottawa to work for Agriculture Canada. He was bilingual. He knew agriculture from coast to coast in
Canada. He knew all the laws — provincial, federal and international. He lived and breathed agriculture. He loved it
and he loved Canada. He was deputy minister for eight years. If you check the history of deputy ministers, some of the
first ones were there for 21 years.
Things have changed since that time. Mr. Williams was like a walking computer. When we met in cabinet
committee, he was a match for anyone, including Simon Reisman, the deputy minister of finance. Whether in
Washington, Rome or Paris, Mr. Williams knew international laws. He understood them.
I remember the day he came to see me to tell me was resigning because they wanted him to be a deputy in another
department. He said, ``I have never worked in any other department and I am not going to start now.'' I believe at that
time he was 62 years of age. He went to work in Alberta with Senator Hays' father, Harry, who was a farmer and had
been an MP and Minister of Agriculture under Mr. Pearson and whose company did engineering and setting up
irrigation systems for Canada. Mr. Williams was one of the greatest Canadians I ever knew. We met at least every two
weeks, and sometimes once a week, with my deputy and all assistant deputies and directors to discuss what we were
doing with regard to new programs, government issues, et cetera. We talked about everything.
If I wanted something done and the bureaucrats could not convince me that it was wrong, my deputy would say to
all present, ``You heard what the minister said. That is what we are going to do.'' That was it. He never came back the
next day to try to change my mind.
When he retired, I was to get a new deputy from the Privy Council, Mr. Denis Hudon, whom I knew from cabinet
meetings. I told Prime Minister Trudeau that I wanted Mr. Edmond Jarvis from Manitoba as my deputy assistant. Mr.
Trudeau originally said no, but offered Mr. Jarvis to the head of the Canadian Wheat Board in Winnipeg. He wanted
me to have a bilingual deputy.
I told Mr. Trudeau that I did not want Mr. Hudon for my deputy for three reasons. First, he wrote so small that I
could not read it. Second, he spoke so quietly that I could not hear him. Third, he did not know a sow from a cow.
The Prime Minister told me that he appointed deputies. I said, ``Yes, Prime Minister, but I have to work with them.''
He asked me to try Denis Hudon for one year, and I agreed. That was the year the dairy farmers marched on the Hill.
Dairy farmers from Nova Scotia to British Columbia said that the world price of skim milk powder had collapsed and
that to stay alive they needed $26 million.
The bureaucrats had decided, and I could not convince my cabinet colleagues of what would happen, especially in
Quebec, from where 50 per cent of industrial dairy products come and where they could produce nothing but good
forage and good livestock. I predicted what would happen.
I went to see the Prime Minister exactly one year later and he asked me, ``Who do you want?'' He remembered. I
said I wanted Gaétan Lussier, the Deputy Minister of Agriculture from Quebec. He asked why I wanted him and I said
it was because I had seen him at federal and provincial meetings of ministers of agriculture and he was the smartest
person at the table. The Prime Minister asked if he was a federalist. I said yes. He wondered how I knew and I told him
that Mr. Lussier spoke about everything, including federalism. The Prime Minister met Mr. Lussier and he was
He was the youngest deputy ever hired by any department before or since. He made the mistake of going to the
Department of Immigration for Flora MacDonald. He did not last there for very long and he resigned. He then
worked for a food company in Quebec making $400,000 a year. He is still involved in the food industry throughout
I hope you have gathered from this long presentation on public appointments that I have strong feelings about how
departments should be run, that the minister is the boss and not merely a mouthpiece for a deputy.
I believe strongly that ministers should have knowledge of their department. It is obvious in past and present
cabinets that some have no knowledge of the ministry they are in charge of. It has been said that deputies should have a
strong tenure in a department so that they can learn. Learn at whose expense? Are they serving an apprenticeship
running one of the most important departments of all? Are they serving the Canadian population they are supposed to
serve? Some think all you need is a good education and you can run anything. I can think of deputies of the
Department of Agriculture who knew so little they nearly destroyed what we had built over a period of years — a
department that was the envy of the world.
People come from around the world to see agriculture in Canada. Some people used to say that they came to see me,
but they come to see our scientists and our farmers, because we produce 75 per cent of our food further north than any
other country in the northern hemisphere. That is because our Agriculture Canada scientists developed crops, livestock
and poultry that could exist in the severe winter conditions that we have in this country. They also want to see why our
farmers work so hard.
There were a couple of deputies who were not there very long, but they were there long enough to destroy some of
the things we built — Raymond Protti, who is now working for the Canadian Bankers Association and Samy Watson,
who is in Washington representing one of the banking organizations. I do not know whether, because they nearly
destroyed what we built, they thought they could make money for banks. Can you imagine having both a minister and
a deputy minister without an education or a background in agriculture? What a catastrophe that would be. We had
that not long ago.
It is probably more important to have qualified people running the Department of Agriculture than any other
department, because food is the most important part of our lives. Healthy food makes healthy Canadians.
While speaking of public appointments of people, let us move to positions on boards, Crown corporations and
ambassadorships. Why not appoint a person who has been a good member of Parliament, a good minister of the
Crown, who has gained an education that no school can give?
I recall going to the Prime Minister asking for more money for my assistants. He said, ``Eugene, they are getting an
education here that no school gives them. They will be valuable people when they go into the private sector to work.'' I
was not successful in raising their pay. However, I paid women equal pay for work equal to what the men in my
department did. I learned later that I was the only minister who did that. Maybe that was because I was raised by a
single mother and had eight brothers and sisters. My father died when I was six years of age and we were raised on
mother's allowance. I knew what a woman can do. There used to be a sign in my office that said: ``What does a woman
do? She does the work of six men.'' I do not know whether a woman put up that sign.
Some countries have a policy of appointing one third of former members of cabinet to ambassadorships. Australia,
New Zealand and the United States have that policy. In Canada, it is almost treated as a crime when we appoint
someone with that great knowledge of Canada to represent our country abroad.
After I was fired as Minister of Agriculture by Prime Minister Turner, I was appointed as Canada's ambassador to
the World Food Organization in Rome. I would have been the highest profile person there. I would have been a
member of the World Food Council in the terrible famine that took place in 1984. However, I never went to Rome
because I was fired three months to the day after my appointment. Perhaps we could have saved lives by having
someone experienced in that organization. I noticed that at the United Nations there were unqualified people talking
about food processing, storage, et cetera, with no knowledge whatsoever.
I was fired by the new Conservative government three months after Prime Minister Turner fired me. I was president
of the World Food Council at the time. In order to fulfil my term as president of the World Food Council, I had to sign
an agreement that I would not sue the government. There were a number of ambassadors who took their cases to
court. I knew it was better for me to serve my term, because that was during the terrible famine in Africa.
You can understand that not only can public appointments be unfair, the removal from public appointments can be
unfair and unjustified.
I remember a meeting I had again with Prime Minister Trudeau regarding the Minister of Agriculture. He told me
that he had been briefed by all the best agriculture experts and he had read document after document and all kinds of
reports, and agriculture in Canada is so complex; it is just impossible for an outsider to grasp it. ``I do not know how
you do it,'' he said, ``but you just keep on doing it.''
I never won everything in the cabinet for agriculture, but when my cousin, who was business manager of the Detroit
Tigers, a team that claims it is a world organization, asked me how I am doing, I told him, ``I win some, I lose some.''
He said, ``If you bat 50/50, you stay in the big leagues.''
I am sorry for taking so long, Mr. Chairman, but I have tried to cover my feelings. I just read an article in The Hill
Times today about the meeting that will take place in November including academic people and former defeated
premiers of provinces. I have to come and advise the special committee to bring accountability to task.
The Chairman: Mr. Whelan, thank you very much for a most interesting overview. I was interested in the comments
you made about your experiences as Minister of Agriculture. In particular, I was interested in the Gaétan Lussier you
mentioned from Quebec. You said that he was one of the youngest members appointed at the time. How old was he?
Mr. Whelan: I think he was 34 years of age at that time; I did not ask him his age. I saw him at the federal-provincial
meetings and we dealt with provincial ministers from four different political faiths. We were constructive and did
things together. His contribution was always very significant at those meetings with the other deputies. We got to know
The Prime Minister had offered me different portfolios but he never offered me finance. He never offered me defence
either. If you look at my background, I was an honorary colonel in the militia for twelve years and on the defence
committee for nine years.
We learned to work in the true spirit of Confederation, as far as I was concerned, and Mr. Lucier was one of the key
people on that.
I saw him last January at a meeting here on science for agriculture. It was held across the river, but they had people
from all over Canada participating in that. He is now with the food industry. He travelled with me to different world
meetings, et cetera. I used to take one or two provincial ministers of agriculture or people from farm organizations
when we did that same kind of thing.
Senator Joyal: Welcome, Mr. Whelan. I had two reactions while I was listening to your presentation. The first one is
that we can legislate tons of regulations and hours of hearings and witnesses and so forth, but at the end of the day,
ethics is not something you legislate. Ethics is something that you have built in your own set of values as a public
If someone enters public service or is elected and is a member of Parliament and sits in cabinet, as you did, for a long
period of time, there is a presumption that he is honest or is a genius in deceit.
I prefer to think that you were honest. We can put into place many regulations, overseers and a capacity to monitor
and we can try to nit-pick, but everyone is a person and, hopefully everyone wants to do well. Most of the men and
women in public life want to do well. The system should afford them that opportunity and the opportunity to be
creative and to give the best advice to their ministers or to perform the best way for public service.
It seems to me that we tend to concentrate on the trees and forget the forest. Is not the first conclusion we draw from
your presentation that if you want to survive in public life, you have to be honest and you have to be dedicated in
serving the values you strongly believe in? That seems to me to be the first testimony that we should draw from your
Mr. Whelan: It has been quite a while since I was a minister, but I still follow things closely. I cannot believe there
can be such a drastic change from when we were there. That is why I am stressing the fact that you do not put people in
charge of a department who know nothing about it. I used Mr. Williams so often because his background was totally
agriculture. His military service of four and a half years overseas was the only time he was away from agriculture.
I remember when we went to Washington and I told him I was a little frightened. He told me not to worry. We were
to meet the Secretary of Agriculture and his officials. He kept telling me not to worry.
We went there and I had four officials and my executive assistant with me. When we went into the room to meet the
Secretary of Agriculture, it was full of people. There were 40-some people there. I knew why they came. They came to
learn from Mr. Williams and his people. These were all new people and we had continuity of people who were
knowledgeable in running the department. That is what I say in my presentation. He knew international law. He was
deputy for eight years. When we first put Canada together, there were deputies for 21 years.
The first agriculture station we had in Canada was La Pocatière. I was the first minister to visit there for 100 years.
They did work on crossbreeding sheep trying to make them more productive so they would have lambs twice a year.
Quebec has a great potential for that, but a deputy who did not know much about that closed that station. That should
have been kept for history and heritage. It had a Canadian flag right in the middle of a separatist community and he
got away with that. I would say that for a deputy to do that kind of thing, maybe he was a little separatist inclined.
Wherever I went with Mr. Williams, he knew all the laws. People say I was a good Minister of Agriculture. I was so
lucky to have good officials. I get infuriated when I see them called ``bureaucratic beasts'' in an unsigned editorial in my
local paper, the Windsor Star. We wonder why people think our government is bad when we have a responsible paper
writing that kind of thing. It is difficult for me to understand.
Our daughter was a member of Parliament for 10 years. She had inherited, from both her mother and myself,
honesty. I still think that we are at fault maybe when we appoint people who have no knowledge.
Roméo LeBlanc, who became Governor General, was offered a portfolio as Minister of Fisheries and he said, give
me two days to think it over. Can you imagine a cabinet minister being offered a job like that? He went back to
Trudeau and said, ``I will be Minister of Fisheries if you let me do it the way you let Whelan be Minister of
Agriculture.'' That is in Roméo's writing of the account. I never knew it until afterwards.
Senator Joyal: You were on the Agriculture Committee when you sat as a senator. Do you recall the lengthy
hearings on BSE that the Agriculture Committee had with departmental officials over the use of a hormone that
proved to be damaging? In a way, a form of whistle-blowing occurred when public servants appeared to testify because
they were afraid to come forward with the information in their own departments. Would you comment on that?
Mr. Whelan: I had a hands-on approach to the running of the department. I could not believe it when they said what
had happened to them; how they were put in isolation, et cetera. Under our system, if someone had a complaint about
that, they could speak to the minister. I even extended that policy beyond Ottawa. I was the only minister who had a
Western office, in Regina, Saskatchewan, for ten years. Someone could even call from British Columbia or anywhere. I
just could not believe that that kind of thing would happen in the civil service.
When I left Agriculture Canada, people working for me who operated under the Whelan philosophy were put in
isolation. They had their desks and their paycheques, but nothing else — they did not do a damn thing. Some of them
quit and went to other businesses. That is what I mean by ``minister.''
Senator Joyal: Is your experience not conclusive in terms that the system must provide for the civil servant who feels
strongly about an issue and is honestly convinced that information has been hidden or put aside? It does not serve the
public interest to keep it secret or confidential and is in the public interest for a person to come forward while being
protected by the system?
Mr. Whelan: Yes, I feel strongly about that. In a participatory democratic system, that is a must. Under the old
system we met with the backup staff, sometimes it was once a week, on the top floor of the Sir John Carling building
with the directors, ADMs and DMs, where we discussed everything. If something like were going on, I would bring it
to their attention if it were brought to my attention. I do not remember anything truly that bad such that people would
try to cover up things by going into offices and stealing files. I could not believe that was happening in Canada.
Senator Joyal: You support legislative measures to establish a system whereby a person loyal to Canadians and the
Government of Canada would be protected if he or she were to come forward with information for release. There
would be nothing to prevent an individual from exercising his or her conscience in respect of public duty.
Mr. Whelan: Yes, I strongly believe that.
Senator Joyal: This is one element in the bill that we should consider and ensure that it is put into effect with great
Mr. Whelan: I agree.
Senator Milne: Mr. Whelan, are you aware that this bill prohibits senior public servants — Governor-in-Council
appointments — from acting as lobbyists for five years after leaving their positions?
Mr. Whelan: I am not aware that it proposes to be that restrictive.
Senator Milne: The bill specifies five years after they leave their position. However, the bill does not put the same
requirement or limitation on former MPs or senators. Is that fair?
Mr. Whelan: I have strong feelings about the education that people obtain and, therefore, how valuable they can be
to Canada instead of retiring to fish or travel. I was a registered lobbyist against Monsanto for the RBST hormone that
they injected in cows, but that was the only thing that I did. I used the education that I had obtained in agriculture and
from working very closely with our research scientists, who were world leaders in their work. We give that to the world
to make it a better place.
After I was minister, I formed a company, I could not get a government contract, and anything over $10,000 would
be quashed. I could get a $10,000 contract but that would be all. We survived by getting contracts from the private
Senator Milne: Mr. Whelan, when you were Minister of Agriculture, was there any back and forth flow between the
private agricultural industry and the department? I refer to the movement of people back and forth from industry to
the department and back to industry — a kind of cross-fertilization process.
Mr. Whelan: We seconded people from the private sector to work for the department. For example, we brought over
a man who had been with Robin Hood flourmills to Agriculture Canada. At our meetings we like to hand out the
challenges and a man who had been a chef, and who had worked at trades, tourism and other provincial and federal
departments came to me and said that his department needed help. I told him I did not know what we could do in the
Department of Agriculture. They wanted to compete within Canada and internationally. The man came to me three
days after to say that they had solved the problem. I asked, how? Those were the days when people could call the
minister directly. That changed after we left. Today, you have to go through seven people before you get to the
minister. I asked how it could be done and the man said that we could give them money as long as they used Canadian
food. They won the world championship in 1984. We funded them for 10 years. Some economists would say that is
bad. They built a reputation for good food and the ability to be good chefs too.
We had an open-door policy with industry. Never did we refuse. If they wanted to meet, even at 11:00 p.m., we did it
because that was the proper functioning of our department. Under our constitution, we worked closely with the
provinces because it was one of the few departments that had the 50/50 authority.
Senator Milne: Shared authority.
Mr. Whelan: That is right. I can remember one of the first federal-provincial meetings. The minister from Ontario,
Bill Newman, asked after the meeting, ``Are all your meetings like this?'' I said, ``Yes, pretty much like this.'' He was
amazed by how much we accomplished compared with the work completed at Consumer Affairs. We believed in
Senator Milne: Do you think this five-year restriction might put a damper on that sort of back and forth?
Mr. Whelan: I think that is too restrictive. What are they supposed to do if they know everyone and if they are
honest in their deliberations? Unless society has changed so much, and I cannot believe it has changed that much in
Canada — that after they have been an honest person, all of a sudden they change to a dishonest person by entering
another occupation or profession.
Senator Milne: Both you and I know Paul Couse pretty well and he is as honest as the day is long.
Senator Day: Mr. Whelan, thank you for being here. Should I call you colonel? I wanted to ask some further
questions along the lines of Senator Milne with respect to this five-year cooling-off period, a period of five years after
being a senior public servant or a cabinet minister before one can put forth the client's point of view to the government.
You expressed your view on that, but it occurred to me in passing with respect to your comment about Raymond
Protti, from the Canadian Bankers Association, that he probably would never have been able to do that job if this five-
year restriction was in place. The same applies to Samy Watson, when he went off to Washington.
A lot of capable people have taken, as you described it, the best education they could possibly get — their time
within the civil service or within cabinet — and used that valuable information in a way that is valuable to Canada.
That could potentially be lost with this five-year restriction.
Mr. Whelan: I see a lot of members of Parliament running for a new office at the same age I retired. A lot of them
have good pensions; but they have an ability — whether through the world of education or wherever — that they can
use to make a contribution to Canada.
Senator Day: I appreciate your comments with respect to your experience during the time that you were a cabinet
minister, and your relationship with the Prime Minister in terms of appointing your deputy and how important that
was to you in performing your work.
Significant changes will be brought about in this legislation, Bill C-2, in the creation of what is referred to as an
accounting officer for deputy ministers. If you are familiar with the U.K., Irish or Australian examples, you should not
confuse them, but the accounting officer model that is in Bill C-2 is to give the deputy minister direct reporting
responsibilities to committees of Parliament on certain issues.
Do you see that as a workable thing or should the cabinet minister be the person who is ultimately responsible?
Mr. Whelan: I think the cabinet minister is the one who should be responsible ultimately. I cannot see a deputy
going to a committee and saying, my minister is a bad apple, get rid of him. He is not doing what I told him to do.
If I was Minister of National Defence today, I would tell the head of the Department of National Defence to be
quiet. The politicians run this country; it is a democratic country. I have strong feelings when I watch him.
I was on the defence committee in cabinet for nine years, so I dealt with all the generals and everyone. In a
democratic country, ministers have the responsibility and the authority, and ministers should fulfill that responsibility
Senator Day: Still on the issue of deputy ministers, I believe the model in other jurisdictions, including the United
Kingdom, is that the minister chooses the deputy minister, much like you chose your deputy minister under Mr.
In Bill C-2, it is codified that the prime minister will appoint the deputy minister. Do you think that is the way we
should continue or do you have some thoughts on who should appoint the deputy minister?
Mr. Whelan: First, Mr. Chairman, even a cabinet minister should have some knowledge of his or her department.
Whether you are the Minister of Agriculture, the Minister of Finance or the Minister of Health, you should have some
knowledge and background in that field.
For deputy ministers, ministers should have some knowledge of the kind of person they are getting, because they
will work with that person closely, every day and night. If there is an emergency, they must talk to one another. If
something goes astray, the minister must be able to contact that person.
That deputy should not be appointed by the prime minister. Maybe the prime minister should be informed on what
the minister will do, but I do not think the prime minister should have total say. As I pointed out, Denis Hudon was a
nice person, but he did not know a sow from a cow.
Senator Day: And he wrote too small.
Mr. Whelan: He came from the Privy Council. Too many people have the idea that anyone can be fluffed about the
Department of Agriculture. However, when you study the history, you see how long they kept deputy ministers in that
position. Mr. Williams was one of the longest ones at the end; he was there eight years. In the early years of the
department, they served 21 years as a deputy minister.
Agriculture was the main thing in the nation — forestry, agriculture and mining; agriculture topped everything. The
Minister of Agriculture at that time was also the Minister of Immigration, because most of the people who came to
Canada then were involved in the agriculture industry. The minister had a strong portfolio.
Senator Day: Mr. Whelan, you talked about Mr. Williams and how great that relationship worked. You indicated
that he was there for eight years and others were deputy ministers for as long as 21 years.
Witnesses here have said that one problem with the system right now is that some deputy ministers are in their
positions from a year and a half to three years. They move so quickly they do not get to know their departments.
Do you have any comment on that?
Mr. Whelan: As I said, one deputy should not have been appointed in the first place, because that was the year the
dairy farmers marched on the Hill. There were 14,000 of them — no minister ever had so many people visit him at
once. I said if I was the farmers, I would have been out there mad at the same time.
Joseph-Charles Taché was deputy minister for 21 years and he was the one who established the first agriculture
research station at La Pocatière, which was over 100 years old. John Lowe was deputy for 17 years, W. B. Scarth for 17
years, George O'Hollarhan for 16 years, Joseph Grisdale for 14 years, George Barton for 17 years and then they
started to go down. Mr. Taggart was eight years and Dr. Cliff Barrie, who later became head of the Canadian Dairy
Commission when we formed it, was deputy minister for six years. Mr. Williams then was deputy minister for eight
years and Mr. Hudon was deputy minister for nearly two. That is according to this, but I think they are just going by
dates, because I know he was only there for one year. Gaetan Lussier was there five years and Peter Connell was there
four years. Peter Connell was a difficult deputy to deal with. We would make a decision in the department and he
would come the next day to argue with me. I would have to tell him, ``Get out of here. We made a decision, and we will
not discuss it any further.'' Peter was stubborn. I do not know if the Privy Council Office was giving him orders, ``Get
that old minister,'' or what was going on.
Senator Day: Your experience of many years is that the system worked well when the deputy minister stayed for
some period of time and built a good rapport with the minister. In the current situation, deputy ministers are not
staying very long. In other jurisdictions, the deputy minister, and I am thinking specifically of the accounting office
model I mentioned earlier, signs a contract. Under that scenario, the deputy minister knows that he or she will be doing
that job, unless there is some cause for removal, for a period of seven years. There is some history and continuity built
up. Would that work, given that what worked well for you is not present reality? They are not staying that long in these
Mr. Whelan: I had a lot of experience in agriculture, actually in administering agriculture. Even in my local
community, I was active from the time I was 18 in the credit union and co-op movement, and then the Federation of
Agriculture and the co-op movement. As a farmer, we grow processing crops, wheat, corn, peas and tomatoes. We had
cattle, wheat, soybeans and corn. My wife was from a farming family also, even though she was a legal stenographer.
She graded peppers and tomatoes and so on before they went to the Windsor market. Like Mr. Diefenbaker, I will say
as humbly as I can say that there was never a more qualified couple representing agriculture in Canada than my wife
Liz and myself. Maybe it is difficult to get that kind of person.
I remember they asked me one time at a college about the greatest mistake Prime Minister Trudeau ever made. I
said, ``Not appointing me Minister of Agriculture sooner.'' I will go back further with Mr. Pearson. No one in the
Liberal caucus had as much experience in agriculture as I did, and Mr. Pearson, Mr. Pickersgill and Mr. Davey, who
later became a senator, could not make up their mind. That was after Harry Hays was defeated, and Mr. Pearson put
him in the Senate. They could not make up their minds, so they appointed Joe Green as Minister of Agriculture, and he
did not know a sow from a cow. He was a Member of Parliament from up the valley at that period of time. He had
been a miner and in the air force. He did not turn out to be too bad of a minister because he consulted. I will give you
an example of what he did.
He was going out West one time, and he said, ``I want you to come over to my room.'' I said, ``Joe, it is nine o'clock
at night.'' I was in the West Block. He had something on his desk all covered up with newspaper. He said, ``If you ever
tell anyone this'' — and you are the first group I am telling — ``I will kill you.'' He meant politically or something like
that. Anyway, he uncovered it, and it was all packages of oats, barley, wheat, rye, oilseeds, and they were not labelled.
He did not know what they were. I could have done something to him, but I put the right labels on. He was going out
West. You can imagine what would happen if he took a handful of wheat and said, ``Is that not great barley,'' or
I did not become Harry Hays's parliamentary secretary, because we knew one another before we were in politics
through agriculture. I said to Harry afterwards, ``Why did I not become your parliamentary secretary?'' Bruce Baird
became his parliamentary secretary. He said, ``Because they said two Catholics could not work together.'' I said, ``I did
not know you were a Catholic.'' He said, ``I did not know you were, and I have not been to church in 28 years.''
I remember Mr. Pickersgill saying afterwards to Doug Fisher, ``Our biggest mistake was when we did not appoint
Mr. Whelan as Minister of Agriculture.'' They appointed Joe Greene because they felt he could handle himself in the
House better than I. That is one of the tragic things that happened in politics. Some decisions are made geographically,
but Prime Minister Trudeau did not adhere to that all the time. He ran a good government for almost 16 years without
a scandal or anything of any consequence. If remember what he said to me when I first became minister. I was at a
farm meeting and dinner in Leamington, Ontario, and he said over the telephone, ``You just stay the way you are and
stay honest, and you will have no trouble with me,'' and that type of thing. I am sure that Senator Joyal can verify that,
too. He had a mind like a steel tap, and he remembered, too. He was honest about agriculture. That is what I am
stressing now. Agriculture is so complex that, as he said, it is just impossible for an outsider to grasp it.
Senator Day: Thank you very much, Mr. Whelan.
Mr. Whelan: To continue to send people from the Privy Council to be deputy ministers of any department is wrong.
You should have an open concept competition, if necessary, for deputy ministers if you are going to fluff him or her off
to that other position.
Senator Day: In the interest of time, I will pass on, but I do appreciate having the opportunity to have a successful
politician here from whom we can learn many lessons. We really do appreciate your comments, Mr. Whelan.
Senator Milne: This is not really a supplementary question but another trip down memory lane. In defence of Bruce
Baird, who was the Member of Parliament for Brampton, where I come from, he did sort of farm on the side, and he
was also the agricultural representative. He worked for the Department of Agriculture in Ontario for quite a few years.
Mr. Whelan: I am very much aware, and he was not a Catholic, either. He was a Mason.
Senator Ringuette: I appreciate your presentation and your very honest and upfront comments. Over time, we have
increased the layers of bureaucracy. We have increased red tape. We have increased the number of ``required studies.''
We have created mazes, and now we have a growing lobbying industry that we have to regulate.
I am looking at a press release today that indicates that last year the government hired 45,000 people, out of which
only 15,000 were permanent employees. This goes back to what you were saying. We need to look at the bigger picture
and learn from past experience. I am not certain that we are getting the right lessons or that this is correcting something
that needs to be corrected. Maybe we are not on the right track at all.
Mr. Whelan: I brag about what we did, and I say ``we.'' If the department has good leadership, they work much
harder. Everybody thought that we were the big spenders in Agriculture. Our share of the budget was 1.4 per cent of
the federal budget. We added 14 new programs when we were there, and we added five person years, so they just
worked harder. I can remember one of the young women who worked in the communications department. I used to
give more speeches in Canada than all the other members of cabinet put together. She had to prepare them. I met her
one day and she said, ''Mr. Whelan, I go home at four o'clock. There is no incentive for me to work until 11 o'clock
when you need documents the next day.'' I worked hard and I knew the department and I understood it and we
promoted it. I cannot remember being refused a document by anyone.
If I needed a report the following morning for a visiting minister, I had it. We had that rapport. Our department was
upfront and they thought we were the big spenders because I bragged so much about what we were doing.
I remember Walter Baker was Leader of the Official Opposition, House leader. I made a speech about the super
dairy herd we had built. A little over one third of the cows that we had 10 years earlier were giving more milk and a
higher quality of milk. Our dairies were rejuvenated, they were clean and they had a genetic feeding program, no
hormones. I said that we had built the most super dairy herd in the world, and Walter Baker said, ``No wonder. They
had a super bull.''
We were the envy of the world with what we did, but it was because of continuity and working together. We did not
need all these regulations.
If you wrote me a letter, I would pass it on to my back-up staff and they would send it to the department. When we
were there it would come right back. When we left it had to go through the deputy's office and through seven people.
Can you imagine the waste?
The last year I was there we kept track of letters that people wrote me and that I signed: over 18,600 letters. They
knew it was me and not a machine because I would sign them and put a ``p.s.'' asking them to contact me if they did not
like the answer. It was not some form of technology or mechanism that did it. I think you can over-regulate anything
but you still need some rules and regulations to abide by, too. It cannot be hog wild.
You are from New Brunswick?
Senator Ringuette: Yes.
Mr. Whelan: Which part?
Senator Ringuette: Edmundston?
Mr. Whelan: Madawaska?
Senator Ringuette: Yes, buckwheat flour.
Mr. Whelan: We did a lot of things in New Brunswick, sharing costs. It is nothing new for the federal government to
become involved in different projects across this great nation.
Senator Ringuette: As a closing comment, I think we have lost our common sense that is still active in the Canadian
population but maybe not reflected in their government.
Mr. Whelan: I do not know if you remember C. D. Howe. He was a minister during the war. A lot of people do not
realize that he never believed in regulation. They do not realize how he did things so fast. For instance, we built
runways during the war every hundred miles across Canada for the planes to learn how to land. Those runways were
built two miles long. I used some of them, as your minister, to land in what we called isolated areas of Canada. Today
they would think he was wild, rambunctious and a spendthrift. They did things because they were allowed to do them
in that way and he sold them to Parliament.
I was not called a ``C. D. Howe'' as Minister of Agriculture but we did a lot of things. We followed the procedure
through the department and through the cabinet proposals. A number of times I won them in the cabinet, but lots of
times I did not. However, I had a pretty good batting average.
The Chairman: Honourable Eugene Whelan, when you came in the door with the green stetson on, you were readily
recognizable. Having heard you for the last three quarters of an hour, we remember well the years you spent in the
House of Commons and your time in the Senate. We thank you for coming here today and helping us with our an
analysis and study of Bill C-2. It has been useful and helpful.
Honourable senators, we will move on to our next panel of witnesses. Once their testimony is completed, we will
have heard from more than 150 witnesses during almost 100 hours of meetings.
The Honourable John Baird is President of the Treasury Board. He appeared before this committee on June 27
when the committee began its consideration of Bill C-2. Welcome back, Minister Baird.
As senators know, Mr. Baird was elected to the House of Commons in 2006 for the riding of Ottawa West-Nepean.
Before that, he was a member of the Legislative Assembly for Ontario from 1995 to 2005. In the Ontario legislature,
Mr. Baird served as Minister of Community and Social Services and as Government House Leader. He also served as
parliamentary assistant to a number of ministers, including labour, management board and finance.
In opposition, he served as critic of finance, culture and health, and he was Deputy House Leader. He is joined
today by officials from Treasury Board, Mr. Joe Wild, Ms. Catrina Tapley, and Mr. Alister Smith. Welcome.
On behalf of the Committee, I'd like to thank you for being with us today. I will turn it over to you now, and after
your opening statement, we will have time for questions and discussion which I'm sure will be most helpful to
The Steering Committee agreed that the CBC could be here for the first 30 seconds of the meeting; they have been
here and are gone.
Minister Baird, please proceed.
Hon. John Baird, P.C., M.P., President of the Treasury Board: Thank you very much, Mr. Chairman and
honourable senators. I am very pleased to be here as one of the last witnesses on the proposed federal accountability
act before this committee.
In the spirit of our most recent holiday, let me say that I am thankful that we have finally reached this point, as it
has been a long time coming. It is no secret that I have been frustrated by the amount of time this committee has spent
reviewing the draft legislation. I am very eager, as I believe Canadians are, to see the bill implemented quickly.
Nevertheless, I have no doubt that we all support the same objective of making government more effective and more
accountable so that it meets the expectations, needs and priorities of Canadians.
In my opening remarks, I would like to do two things. The first is to address specific issues that I know are of
particular interest to members of the committee. My second objective is to briefly summarize why I believe, and why
the government believes, this legislation is so important.
Committee members have raised questions about this bill. For example, some believe that the role of the Conflict of
Interest and Ethics Commissioner is rather vague. You may be wondering how such an individual can, at the same
time, both advise and monitor the Prime Minister.
The new commissioner will have an expanded role to implement the new conflict of interest act and will provide
advice and guidance to members of both Houses and the Prime Minister on the act. The commissioner will oversee the
conflict of interest codes in the House of Commons and the Senate. However, we have been very careful to ensure that
each of these roles is clearly segregated. Advice and reports to the Prime Minister from the commissioner will only
pertain to those public office-holders subject to the conflict of interest act. Those are positions for which the Prime
Minister is responsible in terms of appointment or termination. The commissioner has no mandate to report to the
Prime Minister on matters concerning senators and their compliance with the Senate's conflict of interest rules.
Under the conflict of interest act, the commissioner is, first, an adviser to public office-holders; second, an adviser to
the Prime Minister; and, potentially, an investigator with clear reporting requirements. There is no conflict between
these various functions as they serve to ensure that the substantive rules in the conflict of interest act are observed.
They ensure that there is full transparency in respect to any breach and that the Prime Minister has all the information
needed to make a decision on how to deal with a public office-holder who has been found in breach. In addition to
these functions, the commissioner has broadly similar duties under the substantive regimes established by both the
Senate and the House. These duties and powers are established by each House alone and, in discharging them, the
commissioner will be under the ``general direction'' of each House.
There is no conflict between administering the conflict of interest act, on the one hand, and the two parliamentary
regimes, on the other. Indeed, these regimes are all watertight and complementary in that each House, not the
government, establishes its own rules and procedures. They are complementary in that the single commissioner, in
administering the three regimes, can bring a broad perspective to bear, informed by the best practices and the
experiences under all three regimes. This approach is, in the government's view, the best suited to ensuring that
Canadians can have full confidence in public office-holders and in parliamentarians alike.
This government has worked cooperatively to make the proposed federal accountability act both effective and
flexible. A good example of that process in action concerns the Canadian Wheat Board. Some have questioned why
this was added at the last moment as an organization subject to the Access to Information Act. This step was taken as a
result of an amendment introduced by an opposition party member on the House committee reviewing the legislation.
The government was, and is, supportive of this change.
The provision authorizing the Prime Minister to appoint special advisors to senior officials is additional evidence of
our pledge to forge a solid consensus with respect to Bill C-2.
In order to respond to concerns raised by the Public Service Commission, the government promptly agreed to
amend that provision during clause-by-clause consideration of the Bill in the Senate. That measure ensures that special
advisors and deputy ministers are impartial and that they are appointed the same way as all other public servants.
The government must balance a host of interests, and the provisions in Bill C-2 reflect this responsibility. This is an
omnibus bill and, as such, addresses a great many issues. While in some ways it might seem easier to provide everyone
with everything they want, the fact is that leadership means making tough choices. Nowhere is this more important
than when it comes to the Access to Information Act. This is particularly relevant when considering concerns raised by
the former Information Commissioner. Addressing all of his concerns would have created consequences that, I believe,
would not be acceptable to this committee or to Canadians across the country.
For example, no one wants the Canadian Broadcasting Corporation to be the only news-gathering organization in
the country whose reporters would have to disclose journalistic sources to the Information Commissioner. By the same
token, Canadian exporters that rely on access to Export Development Canada's programs should not be hampered in
competing on the world stage because their international customers dealt with EDC, with their information subject to
the access to information laws. We would not want to see those falsely accused of wrongdoing have either their careers
or their reputations tarnished. That is something that is particularly important to me since I believe we made every
effort to go as far as we can to expand protection for public servants and whistle-blowers. I think we equally have a
responsibility to protect those who might have their reputations unfairly besmirched.
This brings me to the issue of whistle-blowing. Professional, dedicated and highly skilled people staff Canada's
public service. Its employees play a crucial role in supporting the government's agenda and helping it deliver quality
programs and important services to citizens.
Canadians have every right to expect that public office-holders and public-sector employees behave ethically and in
accordance with their legal obligations. The public sector must, therefore, foster an environment in which employees
may honestly and openly raise concerns without fear or threat of reprisal.
Under the new legislation, public-sector employees will have direct access to the public sector integrity commissioner
to report wrongdoing in the workplace. If they do so, public servants will be protected. Persons who report or are
considering reporting wrongdoing will also have access to legal advice. We have ensured confidentiality for this
process. For example, the identities of those who report wrongdoing, as well as the reputations of those falsely accused,
will be protected.
The intent is not to create an environment of mistrust, where people are continually looking over their shoulders.
Instead, the government is committed to fostering an environment in which employees feel comfortable raising
legitimate concerns about possible wrongdoing and reprisal. These significantly strengthened measures to protect
whistle-blowers, in my judgment, are long overdue.
The final specific issue I want to touch on briefly concerns how Bill C-2 will affect human resource management
within the federal public service. In many cases — for example, the position of commissioner of lobbying — current
offices within the public service are having their power and independence increased to becoming agents of Parliament.
This will require minimal funding changes. For those offices, transitional provisions call for current employees to
become employees of the new office, with the same positions. Where a new function is created, such as the
parliamentary budget officer within the Library of Parliament, additional staff will be required. In these cases, budget
planning has been conducted and funds for the new function have been designated.
Honourable senators, Mr. Chairman, I have addressed a number of specific issues of interest to members of this
committee. I would like to conclude my brief presentation by saying a few words about the overall importance of this
I am proud of the Federal Accountability Act and of the effort that has gone into it.
In the House of Commons, members thoroughly reviewed and analyzed hundreds of separate clauses and
amendments. They put in well over 90 hours in six weeks, above and beyond their regular duties, to make sure that this
legislation meets the government's commitment to accountability and openness while balancing oversight and
flexibility. In fact, not a single member of the House of Commons went on record to oppose this bill.
New legislation inevitably requires collaboration, and this act demonstrates how doing the right thing for Canadians
crosses party lines, how it involves input from many people from all sectors and how it requires real determination.
I appreciate the significant investment in time and thought made by this committee in reviewing the many proposals
of Bill C-2. It addresses many areas, requiring committee members to become experts in each one to provide the right
level of scrutiny to address each of the details effectively.
We have worked with all parties to improve this legislation before this bill was submitted to this committee.
I should like to, on the side, make note that the late member from Repentigny was someone of great moral standing.
I disagreed with him on his vision on the national unity file, but it was a privilege to work with him on these issues. We
did not agree with everything on these issues, but we always had frank and thorough discussions. He was the very best
that this Parliament has to offer.
When I appeared before you in June, I reminded you of what Canadians said on January 23 — that they want an
honest and accountable government that they can trust. That message is even more important today.
I was very pleased, Mr. Chairman, that you publicly stated that implementation of the proposed federal
accountability act ``will show Canada has the finest piece of legislation in terms of transparency and accountability of
any democratic country in the world.''
By instituting an unprecedented level of transparency and accountability, the proposed federal accountability act
provides a firm foundation and an effective starting point for rebuilding the public's trust.
I look forward to your questions today and your assistance in the future as we pursue our common goal — that is, a
government that reflects the very best that Canada has to offer.
Senator Joyal: Welcome, Mr. Minister. In relation to access to information, the officers of the Treasury Board have
probably reviewed with you the long testimony and presentations made by the people from the Office of the
Information Commissioner. They had a list of exceptions that has been studied by this committee at length. Even the
Canadian Bar Association, when they testified this morning, outlined a list of exceptions that they feel should be
limited by the factor of time and the criteria of public interest. They do not object in principle that a certain amount of
information be barred from public access for a limited period of time, based on the criteria of public interest. The bar
has been quite demonstrative in that regard. Many other witnesses also concurred in that kind of approach to the
The idea is not to prevent government from functioning and, as you said, to keep information that needs to be kept
aside for a while, to better ensure the spontaneity of public servants coming forward and so forth, but there is a criteria
of time. If cabinet discussions are made public after 20 years, why do we have to accept the principle of a perpetual ban
of some information that is certainly not as sensitive as cabinet information?
Would you be open to criteria based on two factors, reasonable limit of time, within 15 or 20 years, and the criteria
of public interest, to determine what must be released and when it should be released?
Mr. Baird: I take some issue with the former Information Commissioner and his office's pronouncements that
would lead a fair person to come to the conclusion that we are limiting information that was available in the past,
making it tougher rather than easier. Nothing in the proposals limits in any way information that will be available
today that will not be available the day after this proposed legislation is introduced. I will give a few examples.
I am a minister coming forward with a piece of legislation, wanting to include the Canadian Broadcasting
Corporation under the act. In doing so, I think it is important for openness and transparency — they are public funds
— but I have a special responsibility to protect reasonable and fair practices as they relate to journalistic integrity. If a
CBC reporter has a source, that source is confidential. It is not limited to being confidential for a period of one year,
two years, 10 years, 20 years; it is confidential. I do not have a problem with that being confidential for more than 20
years or even forever, because no other journalist would have to undertake that. I do not want a journalist to have to
stop on the spot and go through a great explanation either that the Information Commissioner has a right to review
their name and their information or that it would become available in 20 or 30 years.
Another example that I would use is the issue with respect to public servants. If Public Servant A says that Public
Servant B is a thief and the matter is investigated and found to be untrue, I do not think those allegations should
become public in 20 years. They should be permanent. I do not have a problem with that.
If there are specific examples of incidents that you have obtained from these committee hearings, I am open to
hearing them. I do not have an ideological or intellectual bent against what you posed in your question, but you would
have to convince me, and I have not seen anything thus far.
Senator Joyal: Our concern is not so much the protection of journalistic sources as, for instance, the draft audit. The
draft audit has been accessible up until now. It was accessibility to draft audit that allowed journalists to go forward
with investigation of the ad scam. Why do you want to prevent the draft audit from being accessible, since historically
it has always been accessible? Can you explain cases or past experience that conclusively indicates that draft audits
should be kept accessible forever? That would create a chill in the system. No one has been able to come up with a
comprehensive analysis that would lead us to conclude that we should put a perpetual ban on draft audits. The draft
audit is essentially based on analysis of statistics and documentation related to a contract or to a grant or to public
expenses. We understand that there are some exceptions to the principle of public access, but we understand also that
there is a distinction to be made between some kinds of information and others. While you have an overall ban, it runs
contrary to the openness and transparency that we want to maintain in the system.
Mr. Baird: I do not have a problem with draft audits being made public. I think it should follow, though, the main
audit. Draft audits are released 15 years or, if there is no final audit, two years after. I do not have a problem with them
being released, in terms of coming back to the 20-year example you gave in your first question.
I have a huge amount of respect for the office of the Auditor General. I always have. My stepmother worked in the
Office of the Auditor General for many years. When I was a teenager, I met the Auditor General of Canada. I followed
their work there, and I worked very well with the provincial auditor general both before my time in cabinet and during
my time in cabinet in Ontario.
I have a huge regard for Sheila Fraser. I think she is probably one of the best defenders the taxpayers have. I am
convinced by her that protecting the audit function is something that is important. When she appeared before the
committee, she said, ``With respect, the position of the Information Commissioner, John Reid, reflects a fundamental
lack of understanding of the audit function.'' I think you want the audit function. You want to protect the audit
function and its work. I take the wise counsel of the highest auditor in the land on that issue.
Senator Joyal: She also mentioned also that she does not need the new power to investigate the grants that are given
to non-profit corporations or agencies that might request a government grant. I am sure your officers have informed
you that she does not need and she does not want these new powers. She claims that, in terms of sound administrative
practice, the department has that responsibility. She does not want those powers. She repeated it at least two or three
times here when she was a witness.
Mr. Baird: I think she would be concerned if there were an expectation that she followed every dollar vis-à-vis her
audit. She has been clear that it would be a power that she would be allowed to use if she felt it appropriate. She
indicated that she does not see a wide range of issues to use it on. It will be an arrow in her quiver. Should she need to
use it, she will have it there.
At the end of the day, that is her counsel. I would rather have the power for her to follow the money if she feels she
needs to do so. She has said that in certain instances she would not need to because the RCMP does that job. In the
example you cited, Adscam, the RCMP was called in, so she did not need to follow the money. There were others to do
that. However, there may be examples in the future where she could.
As with anything, particularly the whistle-blower functions, this is another one that deals head on with the culture
change we want to achieve. The fact that you know it is accessible, that she could follow the money, hopefully will
change behaviour. The fact is that people will know that whistle-blowers can be protected. If we are successful, my
hope is that this process will not be used or will be used rarely because people will think before committing a reprisal. I
think it goes to the culture change, which addresses your question. I took my counsel from Ms. Fraser on that point.
They are not locked up forever. They do at some point become public.
Senator Milne: Minister Baird, I am pretty sure I heard you say that in your testimony that the government is
supportive of removing the Wheat Board from under the auspices of this bill.
Mr. Baird: We accepted the opposition amendment to include better access to information.
Senator Milne: You accepted the amendment; in other words, you would not be averse to removing the Wheat
Mr. Baird: I wish to correct the record. If I gave that impression, I would like to clarify it by saying that we strongly
support the amendment that came forward and believe that more accountability and transparency is better.
Senator Milne: This committee has heard a lot of evidence regarding problems with the bill. The intent behind the
bill is great, and I am with you on that point. I agree with the intent of this bill; however, I think the bill was drafted so
quickly that it contains many errors and mistakes and requires a number of technical amendments. Will the
government make those amendments, or are you going to depend on us to do it?
Mr. Baird: Whether it is drafted expeditiously or over a significant period of time, I cannot think of any bill of this
size where you would not find errors that you would like to be clearer or more exact, or in some cases a drafting or
translation error. If this committee were to be good enough to give us the bill as written, we will accept it. There are no
amendments that we require for the bill.
Senator Milne: There are none? You will not do anything about correcting any of these errors we have found?
Mr. Baird: We can take the bill as it is.
Senator Milne: I sincerely hope that the Department of Justice is drafting something.
Mr. Baird: Perhaps Mr. Wild can comment. He has had a big promotion since this committee started.
Joe Wild, Senior Counsel, Legal Services, Treasury Board Portfolio, Treasury Board of Canada: I will take the
opportunity to clarify that my presentation is as Senior Counsel for the Department of Justice. I am splitting my time
between two positions until this bill is completed.
Mr. Baird: There will be no promotion until you say there is a promotion.
Mr. Wild: On the point about technical amendments, the government has been preparing motions to address a host
of technical issues, mainly drafting errors that arose either because of amendments that occurred during the committee
process in the other place, or during report stage, and because of other things that we just missed and did not see. We
have been working with the Senate law clerk's office to ensure that we have an appropriate package of technical
amendments. We have been working in a spirit of cooperation around the technical amendments to ensure that we
capture as many as we can see and put forward those amendments in the spirit of trying to make the bill the best we can
Mr. Baird: Technical or translation changes are made quite often. I think this is the sixteenth department or ministry
that I have worked with, and the federal public service has given us a calibre of people that I have never seen in any
project I have been involved in or worked on.
Senator Milne: We have had Department of Justice officials before us many times over the last 10 years that I have
been here, and they have always given us excellent advice.
This morning, the Canadian Bar Association appeared before us to discuss the issue of whistle-blowers. The bill says
that whistle-blowers are protected when they are required to disclose something, but the CBA also recommends that
whistle-blowers be protected when they are permitted to disclose something. The CBA suggests that whether it is
mandated upon the whistle-blower to disclose or whether it is just that the whistle-blower has decided to speak because
of outrage, the whistle-blower should be protected.
Mr. Baird: In my judgment, if they feel there is wrongdoing and they act in good faith, whether it is a financial,
criminal or another instance of wrongdoing, they should come forward and follow due process. Every time you think
something goes wrong, you do not have the right to book the National Press Gallery, but if they are following a fair
process and act in good faith, they should be protected.
Mr. Wild: I am not familiar with what the CBA presented this morning. I did not have an opportunity to follow
their testimony or to review their presentation.
Senator Milne: We will give it to you.
Mr. Wild: I am not 100 per cent sure I fully understand their position.
Senator Cowan: They gave the same presentation to the House of Commons.
The Chairman: They did not appear in person. It is the same brief.
Senator Milne: My next question has to do with the public interest override. Why is there no injury test or public
interest override in respect of these 10 new exclusions from the Access to Information Act? We have 10 brand new
exclusions and there is no public interest override.
Mr. Baird: When people say there are 10 new exclusions that have never been used before, we are also bringing in 30
new organizations and groups, and they are by and large covering those.
Senator Milne: The Canadian Wheat Board.
Mr. Baird: I do not think, for example, that Julie Van Dusen from CBC News should have to demonstrate that there
is no national interest in finding a Canadian version of Deep Throat. If a journalist makes a commitment that
something will be kept confidential, it will be kept confidential.
Senator Milne: I am not asking about journalists. I fully agree that they are allowed to protect their sources. I am
concerned that where it may be in the public interest to know something, there is no public interest override as there is
in so many other acts of Parliament.
Mr. Baird: I use the CBC example. You cited 10 exclusions, and that is one of them. Everyone says they agree with
me. I met with the former commissioner, and he feels that his office has worked well for 25 years. The CBC journalist
should have full confidence that he can review their notes and files.
I do not agree. I do not accept that. I think it should be iron clad. I do not think there should be a public interest
override. When managing public servants have their reputations besmirched even though there is not an ounce of
evidence against them, there is no public interest override. That is the basis upon which we put this forward.
Senator Milne: You will answer the questions I am not asking then, in spite of what I am asking.
Mr. Baird: Give me an example, then. I have given you two so give me one.
Senator Milne: I think there should be an injury test in most of these instances, for example if there is an injury to an
individual for releasing private information that must not be released. However, if the case is not about the release of
private information but is about something the public should know, then there should be an injury test in the
Mr. Baird: Of the 10 examples that you cited at the beginning of your question, which one would cause you to say
there should be a public interest override?
Senator Milne: I can read to you from the submission of the Canadian Bar Association. It says that clause 89 of the
bill gives the commissioner of lobbying a mandatory, class exemption with no time limit for any record that contains
information that was obtained or created by the commissioner or on the commissioner's behalf in the course of an
investigation conducted by or under the authority of the commissioner of lobbying.
Mr. Baird: Someone might launch a complaint with respect to the lobbying act that has no factual basis. If such a
complaint were against senator X or minister Y but upon investigation it was found that senator X or minister Y
retired 10 years earlier, why would the matter be made public?
Senator Milne: I agree with you, minister, but what if there were a basis in fact?
Mr. Baird: I am open to be convinced, senator. We have the general public interest override, Mr. Wild has just
reminded me. It is addressed in a public discussion paper of a House committee. We are looking forward to hearing
back from the House on that. This general issue has been spoken about in this town for some time but it has not
received support in the past from Parliament, and it is being looked at now. We look forward to hearing back from
Parliament on that general override on all things.
Senator Milne: That is the Information Commissioner's report before the House committee.
Mr. Baird: His draft bill and the discussion paper.
Senator Zimmer: I think your return to this committee and your presentation send the signal that an end to Bill C-2
is in sight.
You might expect me to ask questions on fundraising and election donations. I had a supplementary to Senator
Milne's question but I will take it a little further. As she indicated, Mr. Amyot, the President of the Canadian Bar
Association, stated strongly that the CBA supports providing additional protection for whistle-blowers who witness
wrongdoings in the workplace. However, the CBA recommended that the bill go further to protect not only the public
officials who have made disclosures that are lawfully required but also those who make disclosures that are lawfully
permitted. That would codify protection for whistle-blowers who are entitled to go public with their concerns
according to the common law. The operative words are ``required'' versus ``permitted.'' I would like to hear your
comments on that.
Mr. Baird: That is an excellent question. Although I studied law for three years and graduated with 90 per cent, I
was in grades 11, 12 and 13 at the time. Therefore, I would ask the expert, Mr. Wild, to respond.
Mr. Wild: I understand that the amendment being proposed by the Canadian Bar Association would allow for a
disclosure by a public servant wherever lawfully permitted. The scheme under the Public Servants Disclosure
Protection Act, PSDPA, and that particular aspect of it is established under Bill C-11. This issue has not been opened
by Bill C-2. I will explain how it works. All public disclosures are made in accordance with the common law principles.
A balance is being struck currently in the PSDPA around the public disclosures. The PSDPA is about setting out a
regime whereby public servants can go anonymously either internally through the public service or through the public
sector integrity commissioner who has a full mandate with full powers of investigation. The idea is to allow anonymity
around the process to protect the identities of both the public servant who is making the disclosure and those who, it is
alleged, have committed either the wrongdoing or perhaps a reprisal.
If the balance between that and a restricted basis for allowing a public disclosure, which limits circumstances
involving urgency, serious offences or some form of public health safety or danger, were broadened to include anything
lawfully permitted where there is no confidentiality requirement on the part of the public servant, you would be setting
up the potential for this regime to not be used at all. You would immediately go public and make allegations against
any individual. Again, the intent of the government is to try to balance the importance of ensuring that allegations are
proven before the supposed wrongdoer's identity becomes public. The intent is to try to put in place a process that
allows for a full investigation by an independent investigator with full powers in the form of the public sector integrity
commissioner. It is those safeguards that are trying to balance out this need for an immediate public disclosure versus
making ensure that the facts are straight before the matter becomes public knowledge.
Bill C-2 is trying to strike that balance. The CBA's intervention is skewing that balance in favour of raising the risk
of unsubstantiated allegations or what will ultimately prove, perhaps, to be falsehoods going public and potentially
harming the reputations of the people who have been accused.
Mr. Baird: The existing regime finds quite a low percentage. I just saw the report that we tabled in Parliament for the
year under the previous regime. Quite a small number of cases are found to be genuine wrongdoing — fewer than 10
per cent, I believe. You want to create a balance with an open environment where people can come forward, while
bearing in mind that not everything reported is true.
Senator Zimmer: Mr. Wild, you said ``public servant to public servant.'' Would that also include someone making
an allegation against the department, not just against another public servant?
Mr. Wild: Yes.
Mr. Baird: I was inclined to scrap Bill C-11, I must confess, out of concern that it did not go far enough in terms of
the independence. I do not mind putting on the record that the government decided to keep it and build on it. That was
the advice we received from some of the unions representing public servants. That was a bit of a compromise when we
moved on the consultations.
Senator Zimmer: I wanted to get that feedback from you today.
Senator Baker: You mentioned that you were a student of law. Our chairman is a former professor of law. He rules
with an iron fist here in this committee.
The Canadian Bar Association said that your proposal for a DPP is ``a solution in search of a problem.'' The CBA
consulted with Crown and defence attorneys across Canada and they all came to the conclusion that this was not
necessary at all. What do you have to say to the Canadian Bar Association and all the lawyers they represent across
Mr. Baird: I would say that I respectfully disagree.
Senator Baker: Let me go to the second question. The ordinary Canadian citizen looking at this bill —
accountability, cabinet ministers in conflict of interest, public office-holders, people of high station, who are doing
things wrong. Bill C-2 is designed to correct those things if, in fact, any of this is happening in the conflict of interest
sections or in any of the other sections.
The bill establishes a regime for charges in summary conviction matters, which are not as serious as indictable
matters. These are rather lower on the scale, to the point where charges have to be laid within six months because
memories fade, and so on. Under this bill, if someone is judged to be contravening the law, the person who discovers
the contravention does not have to lay a charge immediately but rather can hold off for five years before a charge is
The ordinary Canadian citizen will ask why, in a summary conviction matter, a cabinet minister can break the law
or be suspected of breaking the law and the commissioner, the person set up to investigate it, can be aware of it but the
commissioner, who is probably appointed by the politicians, does not have to lay a charge under this law for five years
from the time the commissioner became aware of the offence.
Quite honestly, minister, I have looked through our case law of similar types of legislation and I cannot find
anything similar to this. Do you have any explanation as to why this bill would allow a cabinet minister off the hook
for five years?
A cabinet minister's position is fleeting — here today, gone tomorrow. You would have to agree that if it is
determined that a cabinet minister has done wrong, is involved in a conflict of interest, the matter should be dealt with
immediately and not wait for five years in which to do it.
Mr. Baird: I thought you were initially going to talk about having a cloud over their head for five years, not the
direction that you took. I will ask Mr. Wild to respond to the legal question.
Senator Baker: I figured you would.
Mr. Baird: When you are blessed with the best public servants, you would be crazy not to use them.
Senator Baker: You have one fine lawyer there advising you, I can tell you that.
Mr. Baird: I am a lucky man. We like him so much we are bringing him over from the Department of Justice.
Mr. Wild: With respect to the question, the up to five years is to allow time for both discovery and investigation of a
matter. There is no requirement that the commissioner must wait five years before carrying forward an investigation
and concluding it. The idea is to build in enough flexibility to allow for a period of time before something actually
comes to light or a period of time to complete the investigation. It is not trying to put the commissioner in the position
of having to wait that five years; it is just giving a discretion of up to five years.
One little nuance, to make sure there is clarity around this point: When it comes to the actual Conflict of Interest
Act, we are talking about an administrative monetary penalty scheme in terms of that investigation, if you are looking
for a sanction. There are no criminal sanctions as a result of the investigations of the commissioner. Rather, the matter
would go back to the Prime Minister for ultimate determination around what to do with a given public office-holder
who has violated the substantive provisions of the act.
Mr. Baird: The ultimate jury will be the electorate.
Senator Baker: Understandably so.
When a cabinet minister violates the conflict of interest legislation, public embarrassment follows. Why would a
cabinet minister be allowed to continue, once the commissioner becomes aware of the matter that gave rise to the
Mr. Wild, you and I know that in other federal legislation — for example, having to do with deleterious substances
in rivers, pollution, the Fisheries Act — says ``two years from the time that the minister became aware of the
proceedings.'' That has been interpreted in law — I have some of the cases here — to mean ``when the department
became aware that an offence had been committed.'' It gives them time to test the waters that were polluting a river, to
test the chemicals and so on.
You are suggesting here that someone be allowed to wait five years before that cabinet minister is charged with, as
you say, a minor offence under summary conviction. That just does not sound right.
Let me turn the question to the minister. Would the minister be in agreement to treat cabinet ministers the same way
as we treat ordinary Canadian citizens under the law and make the person who is conducting the investigation bring a
proceeding in two years, just like everybody else?
Mr. Baird: I believe the thought — if I am not mistaken, and Mr. Wild will correct me if I am — is that having a
longer statute of limitations would demonstrate that we were not going to let people off the hook just because time was
Senator Baker: Ah, but you knew that he committed the offence — from the commencement of the proceeding. That
is the law.
Mr. Baird: The issue was brought to your attention and you believe there was a basis there. Sometimes the discovery
process takes longer. I appreciate the point, but I think it is exactly the opposite motivation, that is, that we do not
want to let someone off the hook because the charges were not brought fast enough, if they were not able to go through
discovery and get all the evidence, and so on.
Senator Baker: The cabinet minister is gone.
Mr. Baird: A cabinet minister may or may not be gone. There was a case in Ontario where a member filed a
complaint against a minister and the minister stayed while the complaint was being investigated.
Senator Baker: Would you agree or not agree that the same —
Mr. Baird: I think we are being held to a higher standard. The statute of limitations generally is longer for more
serious crimes. Petty theft —
Senator Baker: These are minor offences, as Mr. Wild has pointed out.
Mr. Baird: I guess the intention is, to be clear —
Senator Baker: The intention is not to embarrass the cabinet minister while the cabinet minister is in power. That is
the way it appears to me.
Mr. Baird: That is not it. It is the exact opposite. The intention is to want to give the additional power — to not let
time be the enemy and time run out.
Mr. Wild: I certainly was not minimizing the violation of the Conflict of Interest Act. I was merely pointing out, in
terms of criminal sanctions, that one must be a little bit careful on that. These are not criminal matters; these are dealt
with in a different way through a different mechanism.
The point around the time is about ensuring that there is a long enough period to deal with something that perhaps
did not come to light until later. It is just allowing a longer stretch of time during which something can come to light in
order for the commissioner to have jurisdiction to move forward with an investigation. The whole idea behind the
statute of limitations is to allow sufficient time.
Senator Baker: I know I have to conclude, but the professor will not let me go on here.
The statute of limitations is covered by your 10-year period. You really have stretched things here. I am talking
about only when the commissioner is aware that an offence has been committed and the commissioner has time now
before the cabinet minister is brought to public account. That does not wash with the ordinary Canadian citizen. It is
not a big point.
Mr. Baird: The commissioner would not be aware that there could have been a problem. Nothing will be dropped on
this. The commissioner does not work for government. The commissioner works for Parliament. That person,
generally speaking, should have the confidence of Parliament. No one will drop an air-tight case on his desk. A concern
will be brought to his attention, and that starts a chain of events. Sometimes events do not move as quickly as any of us
Senator Baker: Are you suggesting that there could be a whole pile of those conflict of interest facts about cabinet
ministers in the present administration?
Mr. Baird: My experience, certainly in Ontario, is that many complaints are made. Over time, in Ontario, there
might have been a few hundred complaints. One member of the opposition was found guilty of abusing her Purolator
discount rates. There have been very few. It is like points of privilege in the House or the Senate. Many are made, but
few are actually granted.
Senator Baker: Thank you very much. I wanted to point out to Mr. Wild that there are five instances in the
proposed act, as we discussed. Some are hybrid offences. They carry penal consequences. You referred to them in one
particular act. I understand where you are coming from.
Mr. Wild: That is where you referred me.
Senator Baker: Exactly.
Minister, you still want to keep this long period of time for cabinet ministers, and ordinary Canadian citizens are
Mr. Baird: We do not want to let time be the enemy to the investigation. We do not want someone to get off because
the statute of limitations has lapsed, senator.
Senator Baker: To be serious, there is no statute of limitations for indictable offences if it is a serious offence, so you
never get away from that.
Senator Day: Mr. President of the Treasury Board —
Mr. Baird: Finally, someone who shows me some respect. Thank you.
Senator Day: We appreciate you being here today.
Let me start out by saying that the objective you referred to in your opening remarks of openness, transparency and
accountability of government operations is supported by all of us here. Not one person in this room does not support
that concept. Many of the witnesses that started out that way, thinking that perhaps the fact that they were appearing
here was an indication that they did not support that objective.
Our role as the Senate is to look at the legislation that has been proposed and to try to see what some of the
unintended consequences are and how we might be able to improve some of the approaches that are outlined here.
You have heard a lot about the Canadian Bar Association because we just heard from them today, but we have been
hearing evidence, as the chairman pointed out, for almost 100 hours. That compares pretty closely to the 90 hours that
the House of Commons put in studying the bill.
Mr. Baird: That is over their regular time, senator.
Senator Day: That, sir, is over our regular time. You should understand that three full weeks of that was when you
were off doing something else. We came back from break and sat when Parliament was not in session.
Mr. Baird: Was that in September, senator?
Senator Day: That was in September and in late June. We recognized that this is an important government initiative.
All of us here put that time in to try to move this matter along.
We were dealing with evidence up to today, and we are hopeful that we will be able to start on a clause-by-clause
analysis of the bill tomorrow. That puts a tremendous strain on all the support staff, as you might guess. Many of us
worked over the weekend on this. We have been trying to take all of the many, many points that have come out of
these hearings and say, ``This is a basic government policy decision, so we should not go against the mandate of an
elected government, but we can help out. Do we help out better by making an amendment or by making an
Mr. Baird: I am Senator Day, and I am here to help.
Senator Day: If we decide, and I believe we will, to put in a significant number of observations, will those
observations be given due consideration by you and your staff when you receive them?
Mr. Baird: Yes.
Senator Day: Thank you. That is an important point in our determining just where we go.
There will be some matters where we feel we should make some amendments, and I can tell you we will be making
some amendments. Having said that, I would like to know if you will be making some amendments.
Mr. Baird: As I said, we would be prepared to take the bill as is. There are no amendments that we see as a must. It
is clear there are amendments as far as technical matters that we could bring forward.
Senator Day: Can you tell me how many technical amendments will be coming forward?
Mr. Baird: We will let you know in short order, will we not?
Senator Day: We will start clause-by-clause consideration of the bill tomorrow.
Senator Milne: In short order.
Mr. Baird: We are ready to go. We have a good number of what I would call technical amendments that are not
substantive in nature. Many amendments were made in committee by government and opposition members. There
were substantial amendments made on the access to information side, but not the accompanying ones on the privacy
side. I think Senator Joyal mentioned during my previous appearance before this committee that there were
amendments made talking about Parliament but defining Parliament as only the lower house, not both Houses. There
are some technical amendments like that.
Senator Day: Can you give us an indication in numbers as to how much ``a good number'' is?
Mr. Baird: We will get that to you shortly.
Senator Day: We would appreciate knowing the number.
I understand that the Senate legal counsel has had some discussions with the Department of Justice, because we
have such a short period of time to prepare our amendments. The more that you are proposing to do, the more we will
not have to do. That will save us a lot of time. Believe me — and I hope you will believe me — we are anxious to get on
with clause-by-clause analysis of the bill.
Mr. Baird: I think there will be a few dozen technical amendments. I have said this before to members of all parties.
Certainly Mr. Wild and others are available if you wanted to get counsel in the drafting of amendments. Even if they
are not ones that I might agree with, I would like them to be done properly.
Senator Day: I am told by our legal counsel that we asked for assistance in drafting —
The Chairman: The minister has just given the undertaking.
Senator Day: That is why we had been bogged down on this thing.
Mr. Baird: You were told no?
Senator Day: We were told no.
Mr. Baird: I can ask Mr. Wild on this, but that is certainly not the government's view. I had a good discussion just
today with the Member of Parliament for Vancouver Quadra, the critic in the House on your issue. If you ask him, he
will tell you we certainly did our best to work with all parties. If they wanted to meet with the policy and legal staff
without any political actors present, we would be more than happy, because it is good legislative work.
Mr. Wild: I have had a number of meetings and discussions with the Senate law clerk's office over the last four days.
The Department of Justice has offered and has been providing technical reviews of the amendments drafted by the
Senate law clerk, as well as having discussions about any particular issue that they wish to raise and they want our
technical perspective on how one would go about it. We have not gone so far as to actually draft specific amendments
for senators, and that is a normal and, from our view, appropriate line and divide that we would strike.
Senator Day: The minister just asked you to change that rule and help draft some of these amendments. Would you
be able to change your rule?
Mr. Wild: The minister is the minister.
Mr. Baird: If you talk to Stephen Owen in the House, he will say that was my policy.
Senator Day: Will we soon be able to see the amendments that have been prepared so we can compare them to what
Mr. Baird: I will show you mine if you show me yours.
Senator Day: We would like you to show yours first.
Mr. Baird: You are the one who asked, senator. You asked me first, so you show me yours first. I asked first. You
are the upper house here, so you should go first.
Senator Day: Do not forget it.
Mr. Baird: You should go first.
Senator Day: I am still waiting for the answer.
Mr. Baird: I am told on Thursday that we shared the technical amendments with the Senate law clerk with the
understanding he could share them with senators.
Senator Day: I have been in contact with the law clerk all weekend and my understanding is that they were shared
with the law clerk on a confidential basis and cannot be shared with us.
The Chairman: They are in everyone's office now.
Mr. Wild: That is a misunderstanding.
Mr. Baird: Let us all holds hands and sing Kumbaya.
Senator Day: We are interested in getting on with this bill tomorrow. We have many amendments. We need to
consider whether we will make them or you will make them.
Mr. Baird: I offer our full co-operation, senator.
Senator Day: I was trying to point out that your offer for full co-operation has not been reflected in the attitude of
Mr. Baird: If there has been wires crossed, that certainly is Mr. Wild's contention.
Mr. Wild: When we handed the package to the Senate law clerk's office I followed up with an indication that it
could be shared with senators the next day. That was Friday.
Mr. Baird: That is our intention.
Senator Day: Are there any amendments for legal services to a whistle-blower who has cooperated with the
government and with the commissioner? The commissioner has the option of allowing legal services to the extent of
$1,500. We had Joanna Gualtieri here and she has been involved in a lawsuit for the last nine years without any
assistance. Is it not time to recognize that a $1,500 offer of assistance is a pretty unrealistic amount?
Mr. Wild: The purpose of the $1,500 is to provide someone who is contemplating making a disclosure or
contemplating going to the PSIC. It is to give them an opportunity to sit down with a lawyer and have a discussion
about their responsibilities under the act, the repercussions of going down that path, and for general advice as to
whether this is something they wish to do. That is the purpose of the $1,500. It was not designed to provide ongoing
legal assistance throughout the entire process.
Again, in balance, with the idea that the PSIC conducts an independent investigation, it makes a recommendation to
the tribunal and it goes before the tribunal to help make the argument that a reprisal has occurred in the opinion of the
PSIC. That is the balance of the scheme. That legal assistance was never contemplated to provide full cost recovery for
legal costs associated with any proceeding.
Mr. Baird: From a policy direction, what we spoke of in our election document was legal counsel, not legal
representation. There was never an intent for full legal representation for other counsel to let someone make a decision
so that they knew.
Senator Day: Are you satisfied with the wording at page 159 of Bill C-2:
25.1(1) The Commissioner may provide access to legal advice to
(c) any public servant who has made a disclosure under this Act.
Are you satisfied that the wording is as restrictive as you have just said?
Mr. Wild: The wording reflects the intention of the government, which is exactly as stated.
Senator Day: Anyone who has made a disclosure at any time thereafter, the commissioner can give them legal advice
Mr. Wild: It is within the commissioner's discretion.
Senator Day: And access to legal advice?
Mr. Wild: Yes.
Senator Day: Up to $1500?
Mr. Wild: Yes.
Mr. Baird: We never presented that as full representation for other counsel.
Senator Day: Should we amend the section then?
Mr. Wild: Our view is that the section is fairly clear. We did not want to delineate the exact nature of the advice any
further than that. The amount is used to help signal the intention of the legal advice that is contemplated in this
section. If there is consideration of making a disclosure or proceeding down a certain path, the commissioner can
Senator Day: That is subsection 25.1(1)(a):
any public servant who is considering making a disclosure...
If you want to have that policy adjust in that regard, then stop there, but not by putting in subsection 25.1(1)(c), any
public disclosure under the act at any time.
I made my point, but I want you to understand that sometimes in order for you to achieve your policy objective, we
have to help you with the wording a little bit, because that wording clearly does not achieve your objective.
Mr. Wild: I am giving the narrow example, it is true, but the objective here is to provide up to $1,500 or in the
extreme cases, $3,000, of legal advice, with respect to any of these particular matters or areas.
If the public servant has made a disclosure but, let us say, after the disclosure has been concluded and the PSIC is
making a decision, the question now on the public servant's shoulders is, should I go forward with representation
before the tribunal or do I let the PSIC do it? There is $1,500 available for the commissioner to provide funding for
legal advice around whether or not to take that next step.
It is not necessarily that any one of these is inappropriate; it is only that the purpose is not to provide full-blown cost
recovery of all legal fees associated with the panoply of potential procedural processes that could come up under the
Senator Day: I have made my point in terms of interpretation. I understand what your policy basis was. I do not
object to that. What I object to is that I do not think you have achieved it with this wording.
Mr. Baird: A number of cases are certainly in the public domain where people allege reprisals under the previous
legislative regulatory regime, not so much Bill C-11 but the pre-existing one. Those are under review. I have had
discussion with members of Parliament on the government and opposition side with respect to what sort of more
expeditious review could be made of them and something on that will come forward in short order.
Senator Day: I appreciate that information.
Senator Ringuette: Minister, in regard to reprisal, we have heard a lot of suggestions that the onus should be on the
employer and not on the employee in regard to reprisal for a whistle-blower. Where to you stand on this issue?
Mr. Baird: The legislation speaks to that.
Senator Ringuette: You have all the legal counsel of government and all the financial and human resources. This
whistle-blower, this sole person, with no financial assistance for legal fees or other kinds of fees, encountering a
probable loss of job in the process, in regard to reprisal, still has to bear the onus of proving this. This is not balanced,
from my perspective.
Mr. Wild: To explain how the reprisal mechanism works under the act, the PSIC, the independent commissioner
who has all the resources necessary to conduct investigations, including full powers to summons public servants and so
forth, is the one who determines, at the conclusion of the investigation, whether there is sufficient evidence, in their
mind, or reasonable grounds to believe that there is a reprisal. The commissioner then takes it forward to the tribunal.
The PSIC can be a party before that tribunal in terms of the fact that it is their report, so they go forward to the
tribunal to represent that there is a reprisal, in their view. The whistle-blower has someone very powerful in their
corner: the proposed public sector integrity commissioner, PSIC.
Mr. Baird: The intent of the bill is that the PSIC be an independent officer of Parliament and, therefore, the one that
brings the charges forward. After that the charges go to the adjudicative body, which I hope, will not be called upon
daily or the government will have failed in its intent with the bill.
I do not disagree with anything you have said. When you go up against the government at any level, it is a challenge.
That is why we put this new independent officer of Parliament in the corner of someone who feels aggrieved. Bill C-2
goes much farther than Bill C-11 went.
Senator Ringuette: The words in the bill and the words that you said indicate that when the proposed commissioner
receives complaints, there will be no mechanism in place to support the whistle-blower who, in their perspective, might
face reprisal in respect of their employment. For a certain period of time, their pain and suffering throughout the
process will not be adequately looked upon if the onus of the burden of proof is not put on the employer. We could
argue for a few days on this one but I strongly believe that if you want an effective whistle-blower system that has
safeguards and protection for the whistle-blowers, the onus of reprisal must be on the employer, that is, the
government that has no financial or other resource limits.
Mr. Baird: I do not profess this bill to be perfect but it would be fair to say that it goes a country mile, if not a
thousand country miles, farther than Bill C-11 went. I am glad we are having this conversation but let us not lose sight
of the fact that this is the Mount Everest of whistle-blower protection. There is no country in the Western world with
stronger whistle-blowing protection than we will have in Canada with this proposed legislation. Is it perfect? No. Will
we watch how it goes once it is up and running? Yes. This is literally country miles ahead of where we were before,
although I do not profess it will be perfect. It is still hard to go up against city hall, so to speak but we will be leaders in
the world on whistle-blower protection.
The goal is not only for whistle-blower protection but also for a culture change. In respect of access to information,
it is not so much the information that is accessed but that people will know that they can be held accountable when
they make that access. People in government do not spend money today the way they spent it 40 or 50 years ago.
Access to information has raised the bar of all actors, be they political, bureaucratic or parliamentary.
The Chairman: Honourable senators, the minister is 17 minutes over his time. He has been gracious enough to stay
and hear many questions.
Senator Zimmer: The teeter totter is weighted to one side at the moment. Will the proposed act be retroactive such
that it will allow the cases currently before it to be dealt with?
Mr. Baird: The intent is no.
Mr. Wild: The act is premised upon when the disclosure is made to the commissioner.
Mr. Baird: If you want to make it all retroactive, I am open to the suggestion.
Senator Zimmer: There is only this one area that I referenced.
Mr. Baird: Not to be cute, but I am concerned with the number of celebrated, high-profile cases where whistle-
blowing is alleged to have occurred. There are allegations. I have had conversations about what we might do to review
those cases. They are under review and I would not mind a retroactive aspect to the bill. Like everything in life, I
suggest there is some guilt and some innocence. Generally speaking, some allegations are accurate and some are likely
not so accurate. These allegations are not against our government so I would be cautious about saying that everyone
who alleges something is true. We will come forward soon with a policy for a more expedited review of those issues.
That is important.
Senator Zimmer: Yes, Senator Ringuette has mentioned the tremendous suffering in a couple of cases.
Senator Day: I have before me a 16-page document prepared by the Library of Parliament, Parliamentary
Information Research Services. The document lists 47 subject-matter areas that have been of concern to senators. We
could be here all night and tomorrow if we were to go through each one with you and your staff. I do not propose to do
that but I know that you have had feedback throughout our 100 hours of hearings on the issues and we have heard you
today reflect on some of the points that arose. We have heard during the hearings from some of the government
members on this committee giving the government's position. I look forward to seeing the amendments.
Mr. Baird: I look forward to seeing your amendments, senator.
Senator Day: You will see them as soon as I see them. I worked here this past weekend on my amendments. Usually
I am at home in New Brunswick on the weekends because senators are required to reside in the area that they
represent. I had an opportunity to read the Ottawa Citizen on the weekend. I read your article, which stated:
Canadians should be prepared for the Liberal-dominated Senate to dream up further ways to stall
accountability. Delay tactics, such as dozens of irrelevant amendments, should be expected.
You will see no irrelevant amendments from this committee.
Mr. Baird: I hope so.
Senator Day: Look in the eye of everyone here; we are not interested in introducing any irrelevant amendments, I
can assure you of that. At this time, given all the extra time that senators have spent to try to move this legislation
along because we know how anxious you are to have it pass, for you to write an article like this two or three days
before the committee gives clause-by-clause consideration to the bill is not helpful.
Mr. Baird: I stand by those words; and you can bet your boots that I do. We have had a substantial debate in this
country on accountability. We have had a substantial debate on various other things during an election campaign. We
have had a substantial debate in the House of Commons, where not a single member voted against this bill on record. I
will commit to you, senator, and to all senators to reflect thoughtfully on any changes that you make to this bill. I also
make the commitment that I will get back to you quickly. We have a huge job to do on behalf of Canadians to regain
the public trust. None of those scandals involved you or me but our collective job is to clean up the lapses that have
taken place in government over many years. We can move from a time of pointing fingers to a time of pointing to the
way forward. I will reflect on any thoughtful amendment presented.
The Chairman: — including any observations?
Mr. Baird: Yes, and observations. I want the same commitment from senators that we will deal with this quickly and
bring this law into force. We will work overtime if need be. This debate has been protracted and I want to see it
brought to an end. I want to see this bill go forward.
This government was elected with this bill as a priority. This Parliament, the House of Commons, spoke loudly and
clearly by its action and by its voice. We want this bill.
If the Senate wants to make amendments to the bill, we are prepared to reflect on those amendments; but we will
reflect on them quickly and we will get back to you quickly. At the same time, we want that same commitment as well
— that we can enact this bill into law and receive Royal Proclamation so we can implement it.
It is tremendously important. I think Canadians see that. If this Parliament can accomplish nothing else but to deal
head on with this issue of accountability, we will have accomplished a great deal for Canadians.
Senator Day: We understand fully the urgency of this bill. As I have told you, we have met out of our normal time
on many days to move this forward, to help meet your agenda. However, as long as our Constitution provides for a
chamber of sober second thought, we will continue to do the job that is required of us; and that is to look at this
legislation in detail, and to correct it and amend it where we feel we can do so within the mandate that we have. That is
what we will do.
Mr. Baird: The parliamentary process has a lot of time for debate. It also has a lot of time for voting and going on
the record with what those decisions are. That is part of the process.
On Friday evening I attended the launch of a book by Sir Martin Gilbert, who was Churchill's official biographer.
The title of the book is The Will of the People: Churchill and Parliamentary Democracy. I suggest to you that the will of
the people is that they want accountability; they want these changes; and they want all of us to come together and
tackle these problems.
I think that the will of the people has expressed itself through the results of that general election and through the
unanimous support for this bill in the House of Commons.
Senator Day: I have felt throughout this debate that we were educating some people in the House of Commons as to
the effective role of a bicameral system. That is what we do here. We make sure that there are as few unforeseen
consequences that will impact adversely on society as we can.
Mr. Baird: Part of that parliamentary process, sir, is also a vote — up or down.
Senator Stratton: For the record, minister and Senator Day, because he does not like it when I come last, we have
had 122 days. We have heard 154 witnesses, as compared to 66 in the House. I think we have done our job thoroughly.
The Chairman: Minister, on behalf of the committee, I want to thank you and your staff for coming. I know that
you have stayed 26 minutes over your due time, but we appreciate your kindness in doing so. Your testimony has been
thoughtful, persuasive and interesting. You brought us back to the real objectives of the accountability legislation, and
that is what is most important to me.
We will resume our hearings tomorrow at 2:30 in the afternoon on the consensus of the steering committee, which
has agreed to start clause-by-clause consideration of Bill C-2.