Proceedings of the Committee on
Rules, Procedures and the Rights of Parliament
Issue 4 - Evidence
OTTAWA, Tuesday, March 23, 2004
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill C-4, to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other acts in consequence, to which they desire the concurrence of the Senate, met this day at 9:39 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Welcome to the meeting. As a result of a last-minute contact yesterday, we have before us Mr. John Reid, Information Commissioner of Canada; Mr. Alan Leadbeater, Deputy Information Commissioner of Canada; and Mr. Ron Wall and Mr. Yves Côté from the Privy Council Office.
With the consent of the committee, we will do clause-by-clause consideration of Bill C-4, so I propose that we complete this part of our meeting within one hour. I would also ask that we save all questions until we have heard from Mr. Reid, Mr. Wall and Mr. Côté.
The Honourable John Reid, Information Commissioner of Canada: I thank honourable senators for hearing me on such short notice. I want to assure you that I am not here to preach for a call to become your new ethics officer.
I have served for just over five years as an officer of Parliament. Members expect me to be frank and fair about what I see in terms of legislation coming through. I am concerned about Bill C-4, particularly clause 5 under "Consequential Amendments" on page 11 in respect of the Access to Information Act. The clause is not unusual because the old office will be discontinued, so nothing will exist to be subject to the Access to Information Act. However, it has been the normal practice when this happens that a second clause would state that the successor institution would become subject to the Access to Information Act. That has not been stated in this bill.
This means, therefore, that all of the activities of the ethics commissioner — who will look after the House of Commons, but especially the activities of the ministries, senior civil servants, all office-holders who are subject to the Prime Minister's ethics guidelines — these people, these records, will not be subject to the Access to Information Act. This also means that they will not be subject to the Privacy Act, which provides the protection necessary for the ethics commissioner to do his work.
It is important to recognize that all of these files were and are currently covered by both the Access to Information Act and the Privacy Act. During that time, there has never been a question of anyone's privacy having been violated by the use of those acts. The record is very clear on that point.
My concern is that it is important for Parliament to know that one of the effects of passage of this bill is to remove significant amounts of information that had been for 20 years subject to the Access to Information Act. No reason has been given for this.
In the questioning that we have seen in committees, both here and in the other place, these issues have not been fully addressed. They have been raised in a tangential fashion, however.
When legislation is passed and there are consequential amendments to other legislation, it is important that, particularly when an officer of Parliament is looking after that legislation, members of Parliament and senators understand the consequences.
My concern is that this is a whittling down or an eroding of the effectiveness of the Access to Information Act. It also impacts negatively on the Privacy Act. It will take away from the public purview the activities of the ethics commissioner's office, and it will ensure that instead of having openness and transparency in terms of the civil service of Canada, there will be less information or material available to the citizens of Canada.
The Chairman: Mr. Leadbeater, do you have anything further to add?
Mr. J. Alan Leadbeater, Deputy Information Commissioner of Canada: No, I do not.
[Translation]
Mr. Yves Côté, Q.C., Counsel to the Clerk of the Privy Council and Assistant Secretary to the Cabinet: First of all, allow me to introduce myself. I am the Assistant Secretary to the Cabinet, Legislation and House Planning. I am also Counsel to the Clerk of the Privy Council.
I am pleased to be here this morning to discuss the important matter brought to your attention by the Information Commissioner. Basically, I would like to review four points in response to Mr. Reid's presentation.
The first point relates to the legal status of the two positions proposed in the bill, namely the Senate Ethics Officer and the Ethics Commissioner. The bill proposes that the incumbents of these positions would be officers of parliament. It is extremely important to bear that in mind, given that Mr. Wilson, the current Ethics Commissioner, is not an officer of Parliament, but rather a public servant working for Industry Canada. He does not enjoy the same status as an officer of Parliament.
[English]
We have an approach in this bill with respect to these parliamentary agents that is, in all respects, similar to and consistent with the approach that has been taken with respect to other parliamentary agents, including, for example, the Auditor General, the Privacy Commissioner and, for that matter, the Information Commissioner, which is to say that these parliamentary agents are not made subject to access to information or to privacy legislation.
[Translation]
That was the first point I wanted to make. The second point is important from a reporting standpoint. Officers of Parliament should not report to Parliament, that is through one another.
[English]
They should not report through one another. The link is between the parliamentary agent you are creating and Parliament; not between the parliamentary agent you are creating, through another parliamentary agent, to Parliament. The links should be direct from parliamentary agents to Parliament.
[Translation]
Regarding my third point, as I indicated earlier, the Senate Ethics Officer and Ethics Commissioner are officers of Parliament. These positions are found on the organization chart of the Parliament of Canada. As you no doubt are aware, Parliament and its various institutions are exempt from the provisions of the Access to Information Act and the Privacy Act. Need I remind you that Parliament is not deemed to be part of the Government of Canada. It is deemed to be an independent institution. For that reason, the incumbents of these two positions should be exempt from the provisions of the Access to Information Act, since they are deemed to come under the jurisdiction of Parliament, within the broad meaning of the word.
[English]
Another point I would like to share with you is the fact that there are, in Bill C-4 as is currently before you, a number of provisions that do several things. First, they ensure that information that should be kept confidential will be kept confidential, but also, and very importantly, that information that should be made public will be made public. In this respect, I would like to bring a few provisions of Bill C-4 to your attention.
First, the proposed legislation calls for an annual report to be tabled. Second, information on spending by the ethics commissioner would be provided in the Estimates, and Parliament would have a full opportunity to look at those Estimates. Third, when the ethics commissioner would inquire into a complaint from a Parliamentarian on the conduct of a person under the Prime Minister's code, the ethics commissioner would be required to provide the report on the complaint to the parliamentarian who submitted the complaint, to the Prime Minister, to the person who was the subject of the complaint and to the public. All of that would be done at the same time. I would submit to you that in terms of making relevant information public, this is a very interesting and powerful provision.
The last point I would make on this is that the codes that the House and Senate would pass would provide a framework for handling information and for ensuring confidentiality.
Those would be the main remarks that I would like to make at this point about why the bill was conceived the way it was.
The Chairman: Senators, before we go to questions, we have a letter from the Minister of Justice answering two of Senator Grafstein's questions. We just now received the French copy, so I will have the two copies, English and French, circulated to us all.
Senator Carstairs: Thank you to those who have appeared. Mr. Reid, I find it interesting that it has taken you this long to raise these concerns, since the bill has been around for 10 months. I would have thought that if there were a serious concern, your office would have been on top of it sooner.
Why you would think that an officer of Parliament who represents the senators and members of the House of Commons would be subject to acts to which you are not?
Mr. Reid: First, I must apologize, because we have been going through a great deal of agony as a result of the Radwanski affair. That has caused us enormous financial difficulties and we have been unable to man ourselves at an appropriate level. We had to lay off, and not replace, people because of that. We have not been able to get our legal staff up to speed because of the lack of funds. I do apologize. It certainly is an error on my part, and I am responsible.
Second, to answer the other question, it is important to recognize that the access to information office has always considered itself subject to the act and has always provided information when required. Second, there is an officer of Parliament who is subject to the act, the Commissioner of Official Languages. Third, we understand that the process outlined by Mr. Côté was the one in place to look after the affairs of the Privacy Commissioner, and we all know the result there.
It is important to recognize that the Information Commissioner has basically called for all officers of Parliament to be under the act. No one should be outside the act, including Crown corporations. I have never suggested in any statement that I made that either senators or members of Parliament in the House of Commons come under the act because there is a special provision in the access act that takes them out of it. What I am concerned about is all of the other people who have been subject to the act and now will not be. Due to the experience that we have gone through, a very bitter experience indeed, in terms of the Radwanski affair, I do not believe that the protections that Mr. Côté outlined are satisfactory and sufficient to ensure that other events of that nature do not happen. It would be better to have access to information covering all of the officers of Parliament without exception, including the Information Commissioner.
Senator Carstairs: Let us talk for just a moment about the Senate. Since the ethics officer will only be responsible for senators, why would you think that this act should apply to the Senate ethics officer?
Mr. Reid: I do not believe it should apply to the Senate ethics officer at all. It should only apply to the ethics officer from the House of Commons, and only insofar as it deals with the office-holders of the government, not members of Parliament. The way the system operates now, ministers, deputy ministers, assistant deputy ministers, heads of Crown corporations that are under the act, and other officers and place holders are subject to the Access to Information and Privacy Acts. I do not want to see that practice changed. My concerns have nothing to do with members of the House of Commons or members of the Senate, but only in respect of those duties of the ethics commissioner of the House of Commons that are outside the parliamentary realm.
Senator Carstairs: Were you aware that this committee recommended to the House of Commons that there be three officers, one for the House of Commons, one for the Senate and one for public office-holders, and they rejected that?
Mr. Reid: I am aware of that. We have had other preoccupations and I have not followed this proposed legislation as closely as I ought to have.
Senator Grafstein: Mr. Reid, when you look at this bill as often as we have and hold it up to the light, each time you see something different. Part of the problem was that there was a rush to judgment on this proposed legislation. Whenever there is a rush to judgment, we need to slow down and take a longer, harder look.
I want to start with the principle of separation of powers that you and your colleagues have enunciated. From your last response to Senator Carstairs, it seems you are mightily concerned with separation of powers between the executive, the House of Commons and the Senate and to ensure that that separation of powers is appropriately respected. Am I taking your evidence out of context by saying that this is a conclusion that you might have come to when you looked at this proposed legislation?
Mr. Reid: I came to the conclusion that, because the access act and Privacy Act say that the Parliament of Canada is outside their scope, this was not a responsibility of mine. My responsibility is focused totally on what happens to all of those dossiers in existence now, and those that will be in existence in the future, dealing with the ministries, senior public servants, the deputy ministers, ADMs, presidents of Crown corporations and so on, that will be taken out of the Access to Information Act. That is my focus.
Senator Grafstein: Let me deal with the question of privacy and public interest for a moment.
You and your staff have looked at the evidence that we have heard here. A concern shared by some members of this committee has been the balance between the public right to know and the private interest and privilege of individual members of Parliament, specifically, senators.
What would you say if there was a clear-cut provision, which does not appear to be the case at this moment, that there is a solicitor-client relationship between the ethics officer on the Senate side — and I focus only on the Senate side — and individual senators? What would you say to that in order to ensure that senators would arrange their affairs in such a manner that there is a balance between the public interest and the private interest?
Mr. Reid: I cannot answer that question, senator, because that is outside my area. I have no interest in the ethics commissioner in right of the members of the Senate, and I have no interest in the ethics commissioner in the House of Commons in right of members of Parliament. My interest is solely in terms of those people who would be removed from the act.
I am a strong believer in the Privacy Act. There is a good relationship between the access act and Privacy Act. It is important to understand that there has never been a breach of an individual's confidential information in the 20 years that we have had the act dealing with the ethics commissioner. The law as it exists in the Privacy Act and the access act is a model that you should be looking at because it provides that kind of protection.
Senator Grafstein: I have two other questions. One is a final substantive question that relates to the concern that I had as I watched in the press the evolution of the ethics officer, Mr. Wilson. I was mightily concerned, and was never able to trace the source of this, when it appeared that when ministers attended upon the ethics officer with respect to specific matters affecting their interests versus the public interest, all of a sudden, this emerged as an issue of public debate. Whether it was 1, 2 or 10 times, it emerged as an issue of public debate. I found that to be unfair and curious. How could that have happened, if in fact the ethics officer, as presently constituted, was there to advise two people, and two people only, the Prime Minister, and the cabinet minister who, in fact, had to arrange his or her affairs in a manner to meet with the Prime Minister's guidelines? How could that have happened?
Mr. Reid: I cannot speculate, but I can tell you that it did not become public as a result of the Access to Information Act.
That information would be protected under those circumstances, I believe.
Senator Grafstein: I have one last question that follows on from Senator Carstairs' questions. Bill C-4 was whipped through the House of Commons, but we have taken our time and we have made changes — some of those have been respected and others have yet to be respected — based on principles.
How is it that when an officer of Parliament is cut out of proposed legislation, the issue is not raised by either the House of Commons committee or by our committee? Why so? It affects not only you, but also a number of others. Do you have a comment on that? I am not being critical of you or of your office in any way, shape or form. I do not believe you are obliged to step up to the mark each time there is a piece of proposed legislation. I think it is the duty of committees to ensure that any proposed change in the current structure or law is based on evidence and the rationale for such change. Why has this happened? You are a former member of Parliament.
Mr. Reid: I have no idea.
Senator Grafstein: Would you care to speculate?
Mr. Reid: No.
Senator Grafstein: Madam Chairman, I find this evidence very convincing.
Senator Joyal: Mr. Reid, I want to take the first point that Mr. Côté mentioned, about the creation of a parliamentary officer. Professor Saint-Martin, from Laval University, appeared before the committee last week. In his testimony last Wednesday, he outlined that, under the label "officer of Parliament" in the other place, we are creating two kinds of officers — a Crown officer, who advises the administration; and a parliamentary officer, who advises the members of Parliament. He said that the confusion of the two under one label is the potential source of many unfulfilled expectations in the future. He said that everyone seems to be moved by good intentions to do the right thing, so that we have transparency, proper disclosure and accessibility. However, he said that we would be creating a problem such that when a situation arises, people will realize that the system is the source of conflicts.
Again, I refer you to Professor Saint-Martin's written brief and his article in a Canadian political science magazine last year, which outline those aspects of his contribution to our work last week.
In previous months, Mr. Wilson appeared before the committee to testify on Bill C-34, the precursor to Bill C-4. He also provided a written brief in which he clearly outlined that the original proposal, for a House of Commons officer, a Senate officer and a government officer in one was unworkable. One reason was that the work of that ethics officer would pertain to the administration and would cover, I believe, 2,500 positions. He said that this would add major confusion to the office. He recommended that we take a second look at the original proposal drafted by the government.
Many of us around this table argue that we should separate the two functions, that the legislative aspect has to be clearly stated versus the administrative aspect, and that both should be totally separate. Each House of Parliament has its own constitutional duty, one after the other —
The Chairman: Senator, may I remind you that our time is limited?
Senator Joyal: In your opinion, why did the government not see that problem, even though its own officers recommended a clear separation of various functions and not the confusion of one office?
Mr. Reid: I do not want to speculate on what goes on in the cabinet room, any more than I want to speculate on what goes on in Parliamentary committees; but I do understand the source of his concerns. In effect, it would be implementing two pieces of regulatory law: one that is applied by the Prime Minister and one that emerges to deal with the activities of the House of Commons. The structure in the Senate flies on its own and would not have any problems. The confusion would occur with the ethics commissioner in the other place, and I believe that would depend on the ability of the commissioner to distinguish between the two activities that he would undertake.
Your figure of 2,500 people who would come under the Prime Minister's regulations is fairly accurate.
Senator Joyal: How would Mr. Côté answer the fact that having parliamentary agents totally autonomous from one another does not meet the test of proposed section 72.06? The proposed Senate ethics officer would be subject to the other ethics officer because he would be appointed through Governor in Council, according to proposed section 20.1 of the bill. There would be no clear-cut delineation of the status of the two officers.
Mr. Ron Wall, Director, Parliamentary Relations, Legislation and House Planning/Counsel, Privy Council Office: Senator Joyal has raised a number of interesting issues. If I could just deal with the matter of the "confusion" and point to the experience of the provinces. I believe that provincial ethics commissioners have testified before this committee about the challenge of handling both ministers under what would be akin to the Prime Minister's code, and members under what would be akin to a code for this particular chamber. They have found the experience to be manageable. That said, it is a significant issue in terms of the machinery considerations, and there are two possible approaches. The government's consultations on the draft legislation led them to believe that the appropriate balance could best be struck by putting the current ethic's commissioner's functions and the functions of the ethics commissioner responsible for the code of the members of the House of Commons together. The experience of the provinces was pointing to that as a workable model. With respect to the Senate, the bill provides a clear delineation of the functions of the Senate ethics officer with respect to senators, and the Prime Minister's code with respect to members of the ministry and GIC appointees.
Senator Joyal: Is it not true that in provincial legislation, as Mr. Reid said, the higher-level civil servants remain subject to access to information in the provincial statutes, where such an officer exists?
Mr. Wall: As Mr. Côté indicated, because the proposed Senate ethics officer and the ethics commissioner would be considered agents of Parliament, the government has taken the approach that applies to the Auditor General, the Privacy Commissioner and the Information Commissioner, that they are agents of Parliament and should report directly to Parliament in the carrying out of their duties, and that there should not be a confusion of roles and reporting requirements.
Senator Joyal: Yes, but that does not change the fact that we are excluding from access to information 2,500 public servants who are now accessible under the Access to Information Act. We are subtracting rather than adding with this bill. That, to me, is the puzzling effect of this bill. We should be very conscious of that. The public will not see more transparency with this bill.
[Translation]
Mr. Côté: It is important that I make one clarification. You seem to be inferring from this bill that the 2,500 senior officials to whom the Access to Information Act now applies would be exempted from this legislation's provision. Clearly, the Access to Information Act would continue to apply to all senior public servants and administrators. That point should be made very clear. As Mr. Reid noted, one aspect of the legislation is being amended. Nevertheless, virtually all provisions of the Access to Information Act will continue to apply to senior public servants.
Moreover, it is extremely important to look at the proposed new section 72.08(5) to which I referred in my opening remarks and to understand that pursuant to the bill, when the Ethics Commissioner completes a study or investigation, he is required to make that report available to the public and to provide a copy of the report to the member who made the request and to the minister or parliamentary secretary who made the request. In terms of fundamental guarantees or democratic values, this provision guarantees an extremely high degree of transparency, given that such reports will be made public at the same time as the persons directly affected by their content will be apprised of the Ethics Commissioner's findings.
[English]
Senator Joyal: The report that is mentioned in 72.08(5) is in relation to the report mentioned in 72.08(1), which says:
A member of the Senate or House of Commons who has reasonable grounds to believe that a minister of the Crown, a minister of state or a parliamentary secretary has not observed...
The reports deals only with the ministry, not with the other 2,500 public officers. You have stated, essentially, what the system will be in the case of an allegation against a minister of the Crown or a parliamentary secretary, not against a public officer.
[Translation]
Mr. Côté: You have raised an excellent point, Senator Joyal.
[English]
Senator Andreychuk: Mr. Reid, I want to go back to the point that this bill has been around for 10 months. It has been on the agenda, off and on, for 10 months. I appreciate that you cannot continue to strictly monitor a bill that falls off the parliamentary agenda with prorogation and is then reinstated, as we could not. We had some opportunity to study this bill before prorogation and then upon its reintroduction. I do not apologize for not knowing everything in this bill, for that reason. Quiet reflection has not been part of the process.
If I understand you correctly, you think that, either inadvertently in the drafting of this bill, or perhaps intentionally — and we are not sure because the minister has not addressed this point — proposed section 5 on page 11 gives less access to information than we now have.
Mr. Reid: That is right.
Senator Andreychuk: That is a consequence of cobbling together ministerial and House of Commons ethics and putting them in a bill for the Senate. We have been very conscious of dealing with our ethics requirements while respecting those of the other House. However, the other obligation is to ensure that we have good legislation for all.
You are saying that through proposed section 5, there is a reduction in access to information that, on the face of it, could be corrected by an amendment, because such reduction was probably not intended?
Mr. Reid: I am satisfied, having heard Mr. Côté's testimony, that it was not inadvertence, but rather a deliberate decision based on a theory of governance.
Mr. Coté: That is right.
Mr. Reid: However, there are exceptions within exceptions. For example, I did mention that the official languages commissioner is subject to the Access to Information Act. However, it is also interesting that the commissioners, both in the House and the Senate, will be subject to the Official Languages Act, as will, presumably, the Commissioner of Official Languages.
In this situation, there is a relationship between the parliamentary agents, at least in terms of the Official Languages Act, where there is a compulsion for them to obey the act. They are under the act as, presumably, is the commissioner, and the commissioner is under the Access to Information Act.
There may well be a theory that the parliamentary agents should be separate, but in practical terms, in the real world, it does not always work out as clearly as that. The task force that looked at access to information recommended that all parliamentary agents come under the Access to Information Act. My predecessors and I have taken the position that there should not be exceptions to that, including the Crown corporations that are outside the act, and including anything else within the ambit of the Government of Canada. The only exception to that is the Parliament of Canada.
Senator Andreychuk: One of the fundamental reasons for access to information is that it is the healthiest double- check for citizens. It is not simply for Parliamentarians to scrutinize government officials. One of the hallmarks of a modern society is that a citizen who has concerns can find out what government officials are doing. As I see what you have pointed out to us, we will be narrowing that opportunity.
Mr. Reid: In respect of the dossiers created by the new ethics commissioner in the House of Commons in right of the Prime Minister's regulations, that is true.
Senator Andreychuk: Public scrutiny would be greater if we do nothing than if we create this, which, on its face, seems to provide more scrutiny?
Mr. Reid: That is true.
Senator Austin: I very much appreciate Mr. Reid's evidence this morning. He is very clear that he is maintaining a concept of access to information that is part of his statute. It is his job to come here and argue for the theory of his legislation. He is, after all, charged with doing just that.
The evidence we have heard this morning indicates that the government has made a different choice with respect to access to information concerning the ministry and public officer-holders.
The government sees the ethics commissioner — and I will limit my comment to the ethics commissioner in the House, because Mr. Reid has said he is quite content with the situation in the Senate — as limiting the role of the Information Commissioner with respect to the ministry and public office-holders because there is a new parliamentary officer to be put in place to deal with that part of the new function. As has been pointed out, it would be a contradiction to have one parliamentary officer have an overlapping and conflicting jurisdiction with another.
That is how I see the situation here.
The question then amounts to what is the right of Parliament to have access to the information with respect to public office-holders? Mr. Reid mentioned the Radwanski situation, which allows me to ask a question. It does not sound like one, but it is a question to Mr. Reid and to Mr. Côté. It seems to me that Parliament exercised its right to access to information. The Privacy Commissioner was not subject to the Access to Information Act, and yet Parliament insisted, and took parliamentary law into account in doing that, that it have access to the information that the public and the information officer did not have under statute. Parliament had the right to have it under parliamentary rules and law. I would suggest, by way of a question, that the same right exists with respect to the House of Commons today, and we have the same right to ask for information here, should it be relevant to the processes of the Senate.
How is it that there is less access to information in the parliamentary system under Bill C-4, when we have a report by a parliamentary officer, the ethics commissioner, that will be tabled, when that report can be questioned, and when issues arise with respect to public office-holders, parliamentary committees in the other place can demand to know what is relevant to their inquiries?
Mr. Reid, could you deal with that, and then Mr. Côté could respond to it?
Mr. Reid: Madam Chairman, Senator Austin is absolutely correct. The power of a parliamentary committee is significantly greater than that of the citizen under the Access to Information Act.
However, it is noteworthy that if you look at the activities of parliamentary committees in monitoring the activities of parliamentary agents — I can certainly speak for the Office of the Information Commissioner — no commissioner has ever been examined in any detail on his financial activities as outlined in his annual report. In fact, in my time, I have never been subject to an examination by a parliamentary committee on my annual report, so there has developed a question as to how the accountability process for parliamentary agents is to be accomplished. The example of the Radwanski affair is a classic case of a parliamentary committee doing its duty and getting to the bottom of a very difficult situation. They are to be given full marks for that.
However, the dilemma has been that there is no mechanism set up in the parliamentary process for parliamentary agents to come forward on a regular basis and be examined in depth in terms of our financial and other activities. That is one of the reasons I suggested that we all come under the Access to Information Act, so that material can come out on the basis that it is of interest. Parliamentary committees have far more power than a citizen under the Access to Information Act, but it is a power that has been sporadically exercised in both places.
Senator Austin: The fact that we do not exercise the power does not mean we do not have the power, as you say, Mr. Reid. What we are looking at here is a system in which we will have a parliamentary officer who can report, and the parliamentary committee can, on information, proceed with a very great power, as you point out. Therefore, you are arguing that the difference amounts to there being no systematic reporting system; it will be based on parliamentary discretion.
I was almost tempted to ask you, in jest, if you had been asked to appear, what should I have asked you? However, I will go to Mr. Côté.
[Translation]
Mr. Côté: What was common practice in the past should certainly not continue to be common practice in the future. Once we recognize that a parliamentary committee has more power than an ordinary citizen in the area of access to information, then we are acknowledging that genuine, effective mechanisms are in place, although these have not been invoked in the past. They could be at some point in the future and it is extremely important to bear that in mind.
Moreover, I believe all senators present are aware the Prime Minister has stated repeatedly since coming to office that his wish is for parliamentarians, and parliamentary committees in particular, to play a more direct role in matters pertaining to accountability and to the duty of associations or groups appearing before committees to be accountable for their actions.
I think this is a very adequate response to the problem we discussed here this morning, bearing in mind that these powers are real and wide-reaching and that a very clear political will exists to see to it that parliamentarians and committee members play a more direct role in the process.
[English]
Senator Austin: I just wanted to add to a comment, and this is a probably a habit that comes from being a lawyer. Senator Grafstein talked about the bill being rushed through the House of Commons. I want to put on the record that first reading of Bill C-34, which is identical in form to Bill C-4, was April 30, 2003. It was referred to committee on May 6, 2003; the committee report was June 11, 2003; and third reading eventually was given on October 1, 2003. I think the evidence is that the other place gave this bill very due consideration.
Senator Smith: Madam Chairman, the issue I was going to raise has been addressed so I can be put down. I would move clause by clause, but I understand there are more questions.
Senator Oliver: I want to thank Mr. Reid for coming. As usual, he has raised a number of interesting and important issues for the committee to consider. As Senator Joyal has pointed out, the change in policy on the part of PCO means, in effect, that some 2,500 people will now no longer be accessible; so ordinary Canadian citizens will not have the access that they would have had, had this change not been made.
Mr. Reid: In relation to the dossiers under the ethics commissioner's control, that is true.
Senator Oliver: Mr. Reid, under proposed section 72.06 that deals with functions in relation to public office-holders, I want Canadians who will read this transcript to have some idea of the people who will be expressly excluded. Who are these 2,500 people? There are six major exclusions in 72.06. It says minister of the Crown, minister of state, parliamentary secretary, or a person, other than a public servant, who works on behalf of the minister of the Crown or minister of state. Can you give us some examples of the type and class of people who will be excluded, so ordinary Canadians can understand who some of these 2,500 would be?
Mr. Reid: In addition to the two classes that you have enumerated, there are the Governor-in-Council appointees and the full-time ministerial appointees designated by the appropriate minister of the Crown as public office-holders. Those categories of people would be subject to the Prime Minister's regulations. Their dossiers in that respect would then become part of the files of the ethics commissioner of the House of Commons and outside the ambient of the Access to Information Act. We would be looking at the top 2,500 people in the Public Service of Canada.
You must understand that when people apply for information on the form for the Ethics Counsellor today, the Privacy Act cuts in to protect information. However, these documents are still subject to the Privacy Act, so some valid material could sometimes come out. Generally speaking, even the operations of the office will be clothed from transparency now because that was always open before under the Access to Information Act.
Senator Oliver: In terms of transparency, and given what Mr. Côté of PCO has said, is there a new concept of governance today? Would that provide the kind of transparency that you would like to see for ordinary Canadians?
Mr. Reid: I would hope that the comments made by Senator Austin on the model, of the appropriateness of a parliamentary committee asking questions and obtaining information from the proposed ethics commissioners, would apply.
Senator Oliver: There is a democratic deficit.
Mr. Reid: If that were to happen, that would certainly alleviate my concerns. I have concerns when I see information access that has been working perfectly under the act for 20 years being eliminated. I am concerned that this is an attack on transparency and openness, and certainly it is an attack on the principles of the Access to Information Act.
Senator Oliver: I presume that you were never consulted on this, or its effect, prior to it being drafted?
Mr. Reid: I was not consulted, and nor was any member of my staff.
Senator Stratton: I want to go back to officers of the Privy Council to clarify why, when we have been consistent in other acts in ensuring that these officers are part of access to information, it was taken out in Bill C-4. Why is it not as transparent, given that the Prime Minister has said all along he wants government to be more transparent? It appears that we are taking a backward step with this bill. How can you explain that to the public?
Mr. Côté: I have a few points to make in response to that, senator.
First, I will reiterate a point made by Senator Austin and Mr. Reid a moment ago. We are not creating an office that would not be accountable and not subject to "control," if that is the right word. The relevant parliamentary committee would have various powers to ensure that the information that should be produced would be produced.
Second, I will reiterate, to make it absolutely clear, that the effect of this bill, if passed as it stands, would not be to make the Access to Information Act inapplicable to 2,500 senior public servants and office-holders. Mr. Reid was clear about this, but I want it to be absolutely clear that generally speaking, the legislation would continue to apply with its full force.
Third, a decision was made to be consistent, to a large extent, and with a view to ensuring that this proposed parliamentary officer be subject to the same rules as most other parliamentary officers, including the Auditor General, the Privacy Commissioner and the Information Commissioner, and not make him or her subject to the kind of legislation that we are discussing here today.
Fourth, Mr. Reid made reference to the ATI reform work and report that recommended parliamentary agents be subject to the ATI. As everyone here is well aware, the President of the Treasury Board has already announced, in respect of Crown corporations, that a review will be conducted over the next several months and recommendations finalized by September. This is not directly related, but it is important to note that the government has not rejected the recommendations made in the ATI task force report. These recommendations still exist, and at some point, the government will consider them fully and will perhaps move in a direction that could address some of the issues raised here today.
Senator Stratton: Do you think the public will accept your explanation that this is more transparent, particularly given the situation that we are currently in? The Prime Minister purports to make things more transparent, but will your explanation fly in the eyes of the public? I disagree. I cannot see that your explanation would be sufficient to satisfy the public. I do not know how it could. Surely you should be bending over backwards the other way to ensure that the public servants who are currently subject to access to information would continue to be subject to it, and that there would be transparency. Instead, the perception is that you are taking exactly the opposite tack. You are relying on committees of Parliament to examine the bill when you know full well that the committees, particularly of the House of Commons, do not have time to examine this properly. Even we have difficulty doing that all the time.
How do you explain that to the public in terms that they would understand? That is needed right now.
Mr. Côté: First, I hope the public would understand the point that Mr. Reid made a couple of minutes ago: the Office of the Ethics Counsellor is subject to the ATI, but that does not mean all information applied for is released. The traditional exemptions and exclusions would still apply. Currently, the Ethics Counsellor may not release personal information except in exceptional circumstances. It is not that we would close down something that was entirely open. Currently, a regime exists that has as one of its foundations, a full respect for privacy of information, including that which is held by the current Ethics Counsellor.
I take your point, senator, that parliamentary committees are busy and do not have the time to do everything. However, recent history shows that some parliamentary committees have been, and are being, extremely diligent in keeping people as accountable as they should be. That is very important. Those are the two main comments I would make in response to what you said.
Senator Stratton: Sir, forgive me, but it is only when we have a crisis that parliamentary committees seem to wake up, if I may say so. We want to try to prevent another crisis. This is about just that, and it is the perception of transparency that counts.
Senator Joyal: Mr. Reid, if Parliament were to ask for your office to be audited by the Auditor General, is there anything in your legislation that would prevent that?
Mr. Reid: Such an audit is taking place as we speak. It is very important because this is the first time the office has been audited in its 21 years of existence.
Senator Joyal: Then the argument put forward by Mr. Côté is not valid in relation to the Auditor General. The Auditor General is an officer of Parliament and can audit other officers of Parliament.
Mr. Reid: The other exception is the languages commissioner, who is subject to the act. The ethics commissioner in both Houses will be subject to that act, which is subject to the Access to Information Act.
Senator Joyal: In other words, there is no such thing as a similarity between the various officers as presented to us by Mr. Côté originally as one of the key characteristics of the functioning of the system.
Mr. Reid: I did say that there was a theory, but there are also certain practical realities that must be respected from time to time.
The Chairman: Thank you very much, witnesses, for appearing before us this morning. I would ask particularly Mr. Wall and Mr. Côté to remain in case we have questions when we proceed with clause by clause.
Senator Smith: I am ready to proceed with clause-by-clause, Madam Chair.
Senator Andreychuk: Just a point of order, Madam Chair. We had an understanding. I would very much appreciate it if the Chair and the Leader of the Government in the Senate would understand the concept that if we hear witnesses, we need sufficient time to digest what they have said and to deliberate on whether we are doing the best thing with the bill, whether it needs amendments and what weight we should put on the evidence. It was with that understanding that we heard our final witnesses last week and came to clause-by-clause consideration today.
We have heard some very compelling evidence today. I find it strange that we would simply hear them, thank them, and go right to clause-by-clause consideration of the bill.
Certainly, on behalf of the members opposite here, I am suggesting that we take until tomorrow at noon, which is not an undue delay, to reflect on whether there is a serious, substantive issue being raised here that needs to be addressed immediately by an amendment or whether the explanations are satisfactory. They are highly legalistic and it is difficult to understand the full implications, legally and practically, when first raised. We would be doing a disservice to the citizens that we are to serve on such an important bill if we do not at least take time to reflect for 24 hours.
It would be a signal that our minds are made up and that input is not important. We would just proceed because there is a majority. I would ask for a 24-hour delay.
The Chairman: I thank you, Senator Andreychuk. That is not a point of order. That is a suggestion for the committee. We have a motion before us.
Senator Carstairs: It has been quite clear since last Wednesday that we would proceed with clause-by-clause consideration today. The addition of the witness today was to ensure that all were accommodated. I thank the Chair for doing that. However, I think that there is no need for any further delay, in that we are here to proceed.
There is always the opportunity for members on both sides to introduce amendments at the third reading stage. This is not the House of Commons. We allow amendments at the third reading stage, so there is ample opportunity to proceed further without delaying this bill from going to the chamber.
Senator Austin: As sponsor of the bill, I believe we should proceed with clause by clause. Time has been given for all other issues to be weighed and considered. I do not believe that additional time would add to the thoughtfulness of members with respect to the present proposed legislation.
I do not believe that the issue we heard about this morning is material to the bill. We have been at this a long time, Chair, and I would ask you to proceed with clause by clause.
Senator Di Nino: I totally disagree with my friend Senator Austin's comment that the witness's comments today are not material to the bill. A serious flaw has been presented in this bill, in which Canadians will be very interested.
Mr. Côté agreed that the flaw exists. The deletion of some 2,500 senior office-holders from access to information is a very material issue. I support Senator Andreychuk's suggestion.
I would like to make a couple of phone calls to people who know much more about this than I do, to better understand it. The witness today has brought information to us that is very much of material value. We should reflect on it before we proceed further.
Senator Stratton: If we are to proceed to clause by clause, and it would appear we are, I would like a recorded vote. I would like the members on both sides to be named, as to whether they are members of the committee, so that there is a clear understanding of who voted how.
The Chairman: Thank you, Senator Stratton. I had planned to have the clerk read the list of those entitled to vote.
Mr. Blair Armitage, Clerk of the Committee: Before I read the list, may I ask Senator Austin whether he wishes to exercise his ex officio rights?
Senator Austin: No, I do not.
Mr. Armitage: Thank you. As is the custom in the Senate, I will begin each roll call with the chair of the committee. I will read it accordingly. The Honourable Senators Milne, Andreychuk, Carstairs, Di Nino, Fairbairn, Grafstein, Harb, Hubley, Joyal, Losier-Cool, Robertson, Smith, Stratton, Mercer and Oliver.
The Chairman: Are we agreed, honourable senators, to move to clause by clause?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
Senator Stratton: Recorded vote, please.
The Chairman: A recorded vote is called. I will read the motion:
Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill C-4, an act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence?
Mr. Armitage: I will call it.
The Honourable Senator Milne?
The Chairman: Yes.
Mr. Armitage: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Armitage: The Honourable Senator Carstairs?
Senator Carstairs: Yes.
Mr. Armitage: The Honourable Senator Di Nino?
Senator Di Nino: No.
Mr. Armitage: The Honourable Senator Fairbairn?
Senator Fairbairn: Yes.
Mr. Armitage: The Honourable Senator Grafstein?
Senator Grafstein: Abstain.
Mr. Armitage: The Honourable Senator Harb?
Senator Harb: Yes.
Mr. Armitage: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Armitage: The Honourable Senator Joyal?
Senator Joyal: I will abstain.
Mr. Armitage: The Honourable Senator Losier-Cool?
Senator Losier-Cool: Yes.
Mr. Armitage: The Honourable Senator Robertson?
Senator Robertson: No.
Mr. Armitage: The Honourable Senator Smith?
Senator Smith: I am in favour.
Mr. Armitage: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Armitage: The Honourable Senator Mercer?
Senator Mercer: In favour.
Mr. Armitage: The Honourable Senator Oliver?
Senator Oliver: No.
Mr. Armitage: Eight yes; five nay; two abstentions. The motion carries.
The Chairman: Thank you. We will move to clause by clause.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: It is agreed.
Shall clause 1 carry?
An Hon. Senator: Waive.
Senator Stratton: I would like to record that throughout the proposed sections with respect specifically to the Senate we will be on division. We would like to have a recorded vote on particular clauses as we move through this bill.
The Chairman: Okay. If you would tell me, Senator Stratton, on which clauses you would like to do that, it would probably help.
Senator Stratton: Clause 20.1.
The Chairman: Clause 20.1 is part of clause 2. We shall proceed.
Shall clause 1 carry?
Some Hon. Senators: Agreed.
Senator Grafstein: Abstention.
The Chairman: On division?
Senator Grafstein: No, an abstention.
The Chairman: We need a roll call.
Mr. Armitage: On clause 1, and the motion being shall the clause carry, the Honourable Senator Milne?
Senator Milne: Yes.
Mr. Armitage: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Armitage: The Honourable Senator Carstairs?
Senator Carstairs: Yes.
Mr. Armitage: The Honourable Senator Di Nino?
Senator Di Nino: No.
Mr. Armitage: The Honourable Senator Fairbairn?
Senator Fairbairn: Yes.
Mr. Armitage: The Honourable Senator Grafstein?
Senator Grafstein: Abstain.
Mr. Armitage: The Honourable Senator Harb?
Senator Harb: Yes.
Mr. Armitage: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Armitage: The Honourable Senator Joyal?
Senator Joyal: Abstain.
Mr. Armitage: The Honourable Senator Losier-Cool?
Senator Losier-Cool: Yes.
Mr. Armitage: The Honourable Senator Robertson?
Senator Robertson: No.
Mr. Armitage: The Honourable Senator Smith?
Senator Smith: Yes.
Mr. Armitage: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Armitage: The Honourable Senator Mercer?
Senator Mercer: Yes.
Mr. Armitage: The Honourable Senator Oliver?
Senator Oliver: No.
Mr. Armitage: The motion carries, eight yes, five nay, and two abstentions.
The Chairman: Thank you. Shall clause 2 carry? We will have a roll call vote, as requested by Senator Stratton.
Shall clause 2 carry? Call the roll?
Mr. Armitage: On clause 2, shall the clause carry? The Honourable Senator Milne?
Senator Milne: Yes.
Mr. Armitage: The Honourable Senator Andreychuk?
Senator Andreychuk: No.
Mr. Armitage: The Honourable Senator Carstairs?
Senator Carstairs: Yes.
Mr. Armitage: The Honourable Senator Di Nino?
Senator Di Nino: No.
Mr. Armitage: The Honourable Senator Fairbairn?
Senator Fairbairn: Yes.
Mr. Armitage: The Honourable Senator Grafstein?
Senator Grafstein: Abstain.
Mr. Armitage: The Honourable Senator Harb?
Senator Harb: Yes.
Mr. Armitage: The Honourable Senator Hubley?
Senator Hubley: Yes.
Mr. Armitage: The Honourable Senator Joyal?
Senator Joyal: I abstain.
Mr. Armitage: The Honourable Senator Losier-Cool?
Senator Losier-Cool: Yes.
Mr. Armitage: The Honourable Senator Robertson?
Senator Robertson: No.
Mr. Armitage: The Honourable Senator Smith?
Senator Smith: Yes.
Mr. Armitage: The Honourable Senator Stratton?
Senator Stratton: No.
Mr. Armitage: The Honourable Senator Mercer?
Senator Mercer: Yes.
Mr. Armitage: The Honourable Senator Oliver?
Senator Oliver: No.
Mr. Armitage: Eight yeas, nays five, and abstentions two.
The Chairman: Clause 2 carries. We are now, over to page 4, on clause 3.
Senator Stratton: We will just vote on division on the balance of any references to the Senate. This is because it is pointless going through the balance of this proposed section. Thereafter, we were going to agree with that portion pertaining to the House of Commons because they had dealt with their own issues and we felt it was their business, but now with the evidence given this morning, we will also say no, on division, with respect, unless someone else in this room wants a recorded vote. We will object to the House of Commons portion of the bill as well.
Senator Andreychuk: The objection is that we are not being given the time to seriously consider a very fundamental point that has been raised in this bill that even in an appellate division on trial, one does not review. It is true the bill has been before us, but new and compelling evidence was brought forward today that was not brought by either of the parties or the minister introducing it. If it had been inadvertent, that would have been one thing, but it was, in fact, intended, as the Privy Council has said.
In light of that, and since it was not signalled, it seems to me that it is fundamental. Consequently, we are on division so that we can have the proper time to assess the full extent of the implications of this bill, and today was a turning point.
The Chairman: Thank you, Senator Andreychuk.
That includes the rest of the clauses of the bill, from clause 3 to clause 42, that is, both the Senate and the House of Commons portions.
Senator Stratton: Yes.
The Chairman: I shall group those and we will do it on the previous division.
Shall clauses 3 to 42 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: On division.
Senator Joyal: Madam Chair, I would like my abstention to be noted, please.
Senator Grafstein: And mine as well.
The Chairman: Yes, it is on the previous division, and that includes the abstentions. Absolutely.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Is it agreed that this bill be adopted without amendment?
Some Hon. Senators: Agreed
The Chairman: On division?
Some Hon. Senators: On division and abstentions.
Senator Grafstein: You are noting the abstentions.
Senator Joyal: Yes.
The Chairman: Yes, on the previous division and abstentions.
Is it agreed that the Chair report this bill at the next sitting of the Senate?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: It is agreed on division, with the previous abstentions as noted.
I thank you very much, senators. I believe this has been a rather painful exercise for all of us. I thank you for your time and your patience.
The committee adjourned.