Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 14 - Evidence, October 25, 2006
OTTAWA, Wednesday, October 25, 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 12:12 p.m. to give clause-by-clause consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order.
As we resume our study of clause-by-clause consideration of Bill C-2, we will begin at clause 116. Before so doing, however, there are a couple of preliminary matters to deal with. First, I call on Mr. Joe Wild who has a brief clarification he would like to make with respect to something that was represented here yesterday.
Joe Wild, Senior Counsel, Legal Services, Treasury Board Portfolio, Treasury Board of Canada: Mr. Chairman, I would like to bring honourable senators back to clause 110 on page 95 of Bill C-2, which clause amends the Auditor General Act.
Concerning proposed section 3(1), I made the statement that the Auditor General had asked us to insert the provision "appoint a qualified auditor". In fact, where she asked us to insert that was under (4) with respect to temporary auditors. The reference to "appoint a qualified auditor" has been in the existing Auditor General Act since it was initially introduced back in the 1970s.
The Chairman: Does this affect anything passed yesterday?
Mr. Wild: I am making the statement because I did not want honourable senators to be under the impression that Bill C-2 was introducing the concept of appointing a qualified auditor, which is an existing concept in the Auditor General Act established back in the 1970s.
I do not know if that affects anything in terms of the motion moved by Senator Cowan. However, I wanted to ensure the record is clear and people were not reacting to my statement that was actually inserted through Bill C-2.
Senator Baker: Mr. Chairman, I had understood from Mr. Wild exactly what he now gives us specificity to, that is, at what section the qualified auditor was recommended by the Auditor General. I did not take it to mean that he had been explicit in what he believes he was explicit in. It really does not affect our position at all. I do not think that Mr. Wild gave an improper suggestion yesterday.
The Chairman: Thank you, Senator Baker; I appreciate that comment.
Senator Andreychuk: I think Mr. Wild was making the comment as to where those words came from since there was some discussion. I had a recollection of that. I found the indication convincing, and therefore, we did not vote in favour of that amendment.
I think it only strengthens the position that it was there. It has had meaning. It has not been questioned. I would urge my colleagues opposite to reconsider their motion. However, that is something they can do in the fullness of time.
The Chairman: That is not why Mr. Wild brought up the clarification.
Senator Cowan: I appreciate Mr. Wild's clarification. I do not think it changes our position. We looked through the act and we saw in the case of any number of other officers and officials that it was simply that either the Governor-in- Council shall appoint or the Governor-in-Council may appoint. There was not in the text of those sections language like "qualified auditor," "qualified lawyer," "qualified ombudsman" or "qualified commissioner."
Senator Baker: We left it in for the short term.
Senator Cowan: My position remains the same as yesterday. I think my colleagues would support that. Thus the amendment will stand.
The Chairman: This afternoon we will be considering six new packages of opposition amendments. All senators should by now have received those six new packages. There is one opposition package left over from yesterday which we will also be considering today. There are also some government amendments left over from yesterday that we will be considering today.
We will be proceeding, as we did yesterday, with a bit more flexibility in the pages and the clauses. I understand that there may be some last minute changes or substitutions, but when we come to those particular clauses, the appropriate officials will let us know about them. There is nothing else unusual about them.
The administrative staff has told me that they listened to our proceedings of yesterday until two o'clock. They think it is important that if we are to dispense with the reading of a formal amendment that we at least identify it before we have dispensed with it so that the official record will show something like, "amended in clause 121, on page 105, replacing line..." As long as that much is there, the official record will be clear as to what exactly we are dispensing with.
Honourable senators, shall clause 116 carry?
Senator Mitchell: No. I have some amendments to that clause.
Mr. Chairman, before I begin I would like to say that I think I speak on behalf of the committee when I say that you have been doing a remarkable job in leading us through a difficult and complex bill. Thank you for doing that and for your patience.
I move:
That Bill C-2 be amended in clause 116, on page 97, by replacing line 26 with the following:
"(3) The Governor in Council shall select the".
That takes away the option of selecting or not selecting from a list of names that is submitted by an appropriate body. We think that once that list has been determined, the Governor-in-Council should be required to select from that list.
The Chairman: Is there someone from the government side who would like to respond? Mr. Wild?
Mr. Wild: I do not have anything to add on this particular amendment, Mr. Chairman. It is clear that it prevents the Governor-in-Council from selecting anybody that is not on the list that is being proposed by the committee.
The Chairman: Honourable senators, before we left last night we already had one amendment on clause 116.
Thus, in amendment to the motion that clause 116 carry, the Honourable Senator Mitchell moves that Bill C-2 be amended in clause 116, on page 97 by replacing line 26 with the following — shall I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Senator Mitchell: I have a second amendment. I move:
That Bill C-2 be amended in clause 116, on page 97, by replacing line 29 with the following:
"the Leader of the Government in the Senate and the Leader of the Government in the House of".
That has the effect of bringing the Senate into this process. It strikes me that probably all members of this committee would not want the Senate diminished in this process.
Mr. Wild: The only clarification I would bring for the committee's attention is that the role of the Leader of the Government of the House of Commons under subsection (3) is that of a post office box. It is simply moving the list from the committee to the Governor-in-Council. There is nothing else happening there. It is the only role that that Leader of the Government is playing. He is simply a conduit who has standing in order to appear before the Governor- in-Council to deposit the list.
The Chairman: Honourable senators, in amendment to the motion that clause 116 carry, the Honourable Senator Mitchell moves that Bill C-2 be amended in clause 116, on page 97, by replacing line 29 with the following — shall I dispense?
Hon. Senators: Agreed.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The motion in amendment is carried, on division.
Resuming debate on clause 116.
Senator Mitchell: I have another amendment. I move:
That Bill C-2 be amended in clause 116, on page 97, by replacing lines 30 and 31 with the following:
"Commons, by a committee composed of the Leader of the Government in the Senate, the Leader of the Opposition in the Senate, the Leader of the Government in the House of Commons, the Leader of the Opposition in the House of Commons and the Parliamentary Librarian.".
Our thinking here is that because this budget officer will play such an important role in both Houses and both sides of both Houses' analysis of budgetary matters that all of those people should be involved in the selection process.
Mr. Wild: The intention of the proposal put forward by Bill C-2 was to leave it to the discretion of the parliamentary librarian as to the composition of that committee. The amendment that is proposed would set out a specific structure for that committee.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The motion in amendment is carried, on division.
Resuming debate on clause 116.
Senator Mitchell: I have a fourth amendment. I move:
That Bill C-2 be amended in clause 116, on page 97, by replacing line 37 with the following:
"(a) provide independent analysis to the Senate".
That excludes "provide objective analysis." Our feeling is that the determination of "objective" is quite subjective, so we would like it to be independent. I can explain.
Senator Andreychuk: I certainly take "objective" to mean objective and professional. Usually, you give an objective if it is contrary; my understanding is that you are saying that it makes it subjective. I think, on the contrary, it makes it something that I would rely on if it were objective. Otherwise, it would be subjective. Therefore, saying "independent" is not where I want to go, because is it independent capacity or position? We have a structure in place.
What I want is someone who will give an objective analysis, and that is a term that I think is used normally in the areas of budget. They talk about objective or subjective. I prefer that word on a professional basis. With respect, I disagree.
The Chairman: Mr. Wild, is there anything from the drafter's point of view that you wanted to add?
Mr. Wild: It just raises a question, independent from whom?
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The motion in amendment is carried, on division.
Resuming debate on clause 116.
Senator Mitchell: I have a fifth amendment, but I think that Senator Andreychuk may have one on line 3 that precedes mine, is that correct?
Senator Andreychuk: I have passed two parts so I think we did that.
Senator Mitchell: Thank you. I move:
That Bill C-2 be amended in clause 116,
(a) on page 98, by replacing, in the English version, line 47 with the following:
"of this section, to free and timely access";
We feel that the way it is worded now, the phrase "to access at all convenient times" gives the department far too much discretion on whether or not they might want to provide information that is required when it is required.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division
The Chairman: The motion in amendment is carried, on division.
Honourable senators, shall clause 116, as amended, carry?
Senator Andreychuk: I believe on page 99, at the top in the French version, there is —
Senator Mitchell: We get to that next. We still have one more to go. We want to vote on this one and then I have one more to do.
Is it the same? It is (a) and (b). Will I read the second part of it then?
The Chairman: It has been passed, Senator Mitchell, and I am now just about to deal with the clause.
As I started to say before, honourable senators, shall clause 116, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division
The Chairman: Clause 116, as amended, is carried on division.
Shall clause 117 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 118 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 119 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 120 carry?
Senator Andreychuk: I move:
That Bill C-2, in clause 120, be amended by
(a) deleting lines 22 and 23 on page 102;
(b) deleting lines 27 to 30 on page 102.
Senator Day: We can agree with that.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 120, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 121 carry?
An Hon. Senator: No.
The Chairman: This is the director of public prosecutions.
Senator Joyal: On a point of order, I note from Senator Andreychuk's package that there were two amendments. There was an amendment deleting line 22 and 23 on page 102, and then there is —
Senator Andreychuk: They were together and I read both of them.
Senator Joyal: You are right. Thank you.
The Chairman: Honourable senators, everyone should have a package entitled "Bill C-2, DPP, Role of the Senate Amendments." This is what we will be dealing with now for the next few sections. We are at clause 121.
Senator Baker: I move:
That Bill C-2 be amended in clause 121, on page 105, by replacing lines 19 and 20 with the following:
"(a.1) a person named by the Leader in the Senate of each recognized party in that House;
(b) a person named by the Leader in the House of Commons of each recognized party in that House;".
The Chairman: Could you explain?
Senator Baker: It removes the word "political party" and replaces it with "recognized party." It adds representation from the recognized parties in the Senate to recognized parties in the House of Commons to be a part of the selection committee, along with the person named from the Federation of Law Societies, the deputy minister of Justice, the deputy minister of the department of Solicitor General, it used to be, and a person selected by the Attorney General as well. It adds Senate recognized parties to that list.
The Chairman: I notice you did not say anything about independent senators in the Senate.
Senator Baker: No, I did not. I note that the government did not include independent members in the House of Commons, either.
Mr. Wild: I have nothing to add, Mr. Chairman.
Senator Andreychuk: Mr. Wild, are there unintended consequences if we add this amendment?
Mr. Wild: I am not sure that there would be an unintended consequence. It adds to the process, so it makes it more elaborate in the sense of enlarging the committee. I do not foresee any unintended consequences.
It simply allows the leader of each recognized party in the Senate along with each recognized party in the House of Commons to have someone participate on that committee.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Baker: I have a further amendment to clause 121, and I think I have one beyond that as well. This one is on page 105.
You will notice that the next subsection (2) of proposed section 4 gives the process of selecting the names of those under consideration for the position of director of public prosecutions.
I move:
That Bill C-2 be amended in clause 121, on page 105, by replacing lines 27 to 34 with the following:
"(2) The selection committee shall identify and assess candidates for appointment to the office of Director, each of whom must be a member of at least 10 years' standing at the bar of any province, and the committee shall recommend to the Attorney General three assessed candidates whom it considers suitable for appointment."
The only change is in the identification of whom these candidates would be, and that the assessment would be by the committee and not by the politician at the top, the Attorney General of Canada.
Senator Day: For clarification, Mr. Chairman, earlier today we had another amendment that did not have in the first line after subsection (2) the word "identify." If you have that amendment, you should add the word "identify" so it reads "the selection committee shall identify and assess," et cetera.
The Chairman: I had both the old and the new. Do all honourable senators have the new, which have the words "identify and assess?"
Senator Day: Yes: Throw away the old.
The Chairman: Mr. Wild, do you want to make a comment?
Mr. Wild: What was proposed in Bill C-2 was that the Attorney General have an involvement in the development of this list. The reasoning behind that was that the government felt it was important that the Attorney General be involved in the selection process because there is a relationship between the director of public prosecutions and the Attorney General.
While it is true that the director of public prosecutions is independent from a decision-making perspective — in other words, in exercising the decision-making power as the director of public prosecution — those powers are still exercised under and on behalf of the Attorney General. Constitutionally, that is where the power resides.
This amendment further removes the Attorney General from any substantive involvement in the actual selection process. That is unusual in the sense that the proposed director of public prosecutions act now contains a selection process and, as it is now being amended, a selection process that would be the most elaborate process for any public office-holder in Canada.
Numerous safeguards are now present in this process, all designed towards trying to provide some balance so that it is not viewed simply as a political appointment. At this stage, the process is now more elaborate than that for Supreme Court of Canada judges.
Senator Baker: Yes, we understand. Of course, Mr. Wild is correct in his statement, but not completely correct in that Mr. Wild expressed the opinion that the substantive involvement of the Attorney General would no longer be there.
The involvement of the Attorney General prior to moving this amendment was total. It was 100 per cent. That total involvement of the Attorney General is being replaced by a committee made up of six persons, one of whom is appointed by the Attorney General, one of whom is the Deputy Minister of Justice and one of whom is the Deputy Minister of Emergency Preparedness.
If you look at the persons I listed, three of the six are either appointed by the Attorney General or appointed by the Deputy Ministers of Justice or Emergency Preparedness.
Whereas Mr. Wild is correct, he is not substantially correct in saying that the Attorney General will be removed from the process. We recognize that the Attorney General should be a part of the process. Three members of the committee will represent deputy ministers in the Government of Canada, and the Attorney General shall also appoint one other member. However, that amendment does not completely remove the Attorney General from the process.
Senator Cowan: I have two points. First, the Attorney General of course is free to suggest any names that he or she would like. His or her participation is not precluded here.
Second, we do not propose any change to proposed subsection 4(3), which provides that the Attorney General makes the final selection from three names that come forward from the committee.
We are trying to enhance the independence and remove any perception of political interference or political control, recognizing the reporting mechanism to which Mr. Wild refers.
The Chairman: Honourable senators, in amendment to the motion that clause 121 carry, the Honourable Senator Baker moves that Bill C-2 be amended in clause 121, on page 105, by replacing lines 27 — shall I dispense?
Hon. Senators: Dispense.
Senator Andreychuk: Is there no further debate?
The Chairman: Would you like further debate?
Senator Andreychuk: While I had some sympathy for the motion prior to the insertion of the word "identify," I think the motion moves the process far away from the Attorney General. I think there is a unique relationship there that must be respected.
We wanted some independence and some transparency, but by inserting the words "identify and assess candidates," the amendment takes it away to a much greater degree than I think is acceptable. We are moving into a new area. If we go all the way into a new area to that extent, we can compound our problems in Canada in a way that we probably would not have foreseen by trying to make a better process for ourselves.
With respect, I will not support this.
Senator Joyal: In the group that would have access to the identification process I count the Attorney General, the Deputy Minister of Public Safety, the Deputy Minister of Justice, a person named by the government party in the House and a person named by the Leader of the Government in the Senate. There are already five people on the committee who almost have the majority on the committee, then you go to the Federation of Law Societies of Canada.
I do not think that the composition of the committee is so politicized that the committee will lose the public interest objective. That is why I feel that it remains a balance in terms of credibility and capacity for the government to move names of proper candidates.
I understand the arguments of Senator Andreychuk and Mr. Wild, but as to how that would function in practical terms, it seems to me that we will maintain the neutrality and balance that is essential for the committee to function.
The Chairman: Honourable senators, in view of the fact that this is considered by some to be quite broad reaching, does anyone else want to comment before I call the question?
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chairman: It is carried, on division.
Resuming debate on clause 121.
Senator Ringuette: I move:
That Bill C-2 be amended in clause 121,
(a) on page 105, by replacing lines 41 and 42 with the following:
"to a committee of the Senate, of the House of Commons or of both Houses of Parliament designated or established for that purpose"; and
(b) on page 106,
(i) by replacing line 2 with the following:
"committee referred to in subsection (4) gives its approval,", and
(ii) by replacing, in the English version, line 5 with the following:
"or, if the committee does not give".
That is consequential to the first.
The clause currently states "a committee designated or established by Parliament." Parliament does not have the authority to establish committees. Each House has that authority. This amendment gives each House the authority to do so.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: It is carried unanimously.
Resuming debate.
Senator Baker: There is one further amendment that is consequential and also technical in nature.
Senator Joyal: Alternatively but not together.
Senator Baker: I move:
That Bill C-2 be amended in clause 121, on page 106, by replacing line 13 with the following:
"Senate and House of Commons to that effect. The Director".
Previously an amendment was moved involving the Senate in this process, and this amendment is simply to further that.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: It is carried unanimously.
Shall clause 121, as amended, which enacts the director of public prosecutions act, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried on division.
Shall clause 122 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 123 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 124 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 125 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 126 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 127 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 128 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 129 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 130 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 131 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 132 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 133 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 134 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 135 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 136 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 137 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 138 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 139 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 140 carry?
Hon. Senators: Agreed.
Senator Day: Senators may wish to get out their next package as we are getting into the Access to Information Act.
The Chairman: Honourable senator, shall clause 141 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 142 carry?
Senator Andreychuk: I move:
That Bill C-2, in Clause 142, be amended by replacing line 10 on page 117 with the following:
"applies to any of its wholly-owned subsidiaries within the"
This is a technical amendment.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 142 as amended carry?
Hon. Senators: Agreed.
The Chairman: It is carried unanimously.
Shall clause 143 carry?
Senator Milne: Mr. Chair, I have an amendment.
I move:
That Bill C-2 be amended in clause 143, on page 117, by replacing line 40 with the following:
"regulations, provide timely access to the record in the".
This amendment was suggested by Justice Gomery.
Senator Andreychuk: I would like a legal interpretation of "timely access." I would presume that governments and officers have a responsibility to respond in a timely fashion anyway. I am wondering how adding the word affects the meaning. Do we have any precedents as to whether it adds to or just reaffirms what already exists?
Mr. Wild: Honourable senators, it is difficult to say whether the word "timely" adds a significant amount to the regime. The Access to Information Act regime has set time frames within it; there are already, hard-wired into the legislation, response time limits after a request is received by which the government must respond. Generally speaking, that response is either to provide the access, to provide reasons why access is being refused — the justification for an exclusion under the act — or to seek further time if necessary to deal with a request that is too large.
That whole regime around the time is then overseen by the Information Commissioner. The Information Commissioner can receive complaints from the requester, who may say that this request is taking too long, and the commissioner is able to investigate and report on those matters. A scheme around time is already built into the act and it has set time periods within which a response must be provided when a request is received. Whether the word "timely" in this provision adds anything to the actual requirement placed on the head of a government institution is questionable, because it is the specific provisions in the act that put the requirements around time on the head of a government institution.
Senator Andreychuk: I have a follow-up question. If, for example, a reply is due by March 31, and we are sitting at November 1, do we get into a debate then as to whether they could have done it in January and February and they took till March? Is that going to be the consequence of this kind of amendment? In other words, is it going to intrude into the time frame that has been allowed for an answer to determine whether they could have moved faster within that time period?
Senator Day: I am not sure that legal counsel can tell us whether that will be the consequence.
Senator Andreychuk: I want to know if there are any precedents.
Senator Day: Precedents are one thing, but you ask if that will be the consequence of a proposed amendment. I am not sure we can ask our legal counsel for that kind of opinion.
Senator Andreychuk: I will rephrase it. What interpretation would the Department of Justice put on that provision?
Mr. Wild: We would read in "timely" within the scheme of the actual act. From my perspective, it would mean respecting the actual notice periods and requirements that are required under the act. It would mean, if there had been a negotiation with the requester around a due date, respecting that due date. It would be building in, I think, those kinds of things.
I do not think that inserting "timely access" there would necessarily change how the notice requirements contemplated under the legislation already work. I am not sure how much it adds either to that scheme; that is the only point I make.
Senator Joyal: Mr. Wild, we have had a great deal of testimony from witnesses. I do not know whether you have had an opportunity to read their testimony, but that was the major criticism we heard on this aspect of access to information. That was the greatest criticism of all those who had had the experience of getting information. The answer they received is that the person was on holiday, or on sick leave, or on maternity leave, or the department does not have enough resources to give the answers for which the requester asked.
There are all kinds of reasons given for time delays. When you delay access to information, in fact you delay the appropriateness of the information, because the information becomes obsolete when it is finally made available.
That is why witnesses asked us to put an additional constraint on the administration generally, to answer and to take the means to answer, because even though there are parameters of time set out in the act, as Senator Andreychuk has mentioned, you can procrastinate so often for all kinds of reasons that are beyond, quote-unquote, the capacity of the administration, that, in fact, you deny access to information. That is why we were incited to tighten the screws here to make sure that the right is real.
Senator Baker: Mr. Chairman, I am sure Mr. Wild will agree that timelines are not unusual, in fact they are fairly common, in several places in the Criminal Code. I refer him specifically to the most litigated portion of the code, section 253, impaired driving, in which an examination must be made two hours after the occurrence took place. The words in section 253 and section 254 are "as soon as practicable" and "as soon as possible."
Look at all of the cases that are being litigated — every day there are new cases — and thrown out because "as soon as practicable" was not followed and systemic problems within the system are identified and are not acceptable in law.
This is exactly the same as all those other sections of the Criminal Code. May I remind the members of the committee that a few moments ago we passed the words "timely access" to the Auditor General's section and the same objection was not raised?
Senator Milne: I was just going to point out that this was raised, as Senator Joyal has said, in testimony. I think Mr. McKie, in exchange with Senator Cochrane, suggested 30 days. Justice Gomery has suggested "without unreasonable delay," and it seems to me that "timely" is perhaps a little more legalistic term, and it reinforces the need for access.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 143, as amended, carry?
Carried. I said "as amended."
Shall clause 144 carry?
Some Hon. Senators: No.
Senator Milne: I move:
That Bill C-2 be amended in clause 144, on page 118,
(a) by replacing lines 13 and 14 with the following:
"(c) the Information Commissioner;
(d) the Privacy Commissioner; and
(e) the Commissioner of Lobbying."; and
(b) by replacing line 16 with the following:
"institution referred to in any of paragraphs (1)(a) to (e)".
This is really supplementary to the motion that Senator Day made yesterday, when we were discussing an earlier clause. Wait till I find it.
The Chairman: Deletion of clause 89, Senator Milne?
Senator Milne: I believe it was clause 89.
Senator Nolin: I would like to hear from Mr. Wild.
Mr. Wild: My only concern, and it goes back to what I raised yesterday, is whether there is a coordinating amendment issue potentially with putting this provision here. The coming into force of that, which creates the position of the commissioner of lobbying, is on a day or days to be fixed in the future. We do not know when it will come into force.
The others that are listed in (a) through (d) are all existing bodies, and there is no issue of when the first two come in under the Access to Information Act. For the latter two, there is still a question of working out a complaint mechanism.
I want to ensure that there is not a technical issue with proposed subsection 2, which refers to paragraphs (1)(a) to (e). What does it mean if on your list of (a) to (e) only (a) and (b) are actually in force when Royal Assent is received? We can bring the Auditor General and the Commissioner of Official Languages under the act right away because we do not have the same issues that we have to deal with around the other three. Does it colour anything in terms of the reference by saying paragraphs (1)(a) to (e), given that (a) and (b) are the only ones effective in law because the rest have not been brought into force yet?
It is a technical coordinating amendment issue that I have not had the chance to sort through or to think about. However, that was my immediate reaction when I looked at this.
Senator Milne: Not really. I believe that the government could do this whether —
Senator Joyal: They could do this with the commissioner of lobbying at the same time that they do it with the Information Commissioner and the Privacy Commissioner.
The Chairman: Mr. Wild was talking about what the effect will be after proclamation if the new ones are not in place. That is what he meant by the coordinating issue.
Senator Milne: I am sure this kind of problem arises in many bills and has been dealt with before.
Senator Joyal: Canada Post said they will need eighteen months before they implement the proposed act. I am sure there will be administrative arrangements in the context so that the objective of the bill will be satisfied in a reasonable time frame. I do not see that preventing the inclusion of the commissioner of lobbying in that section.
Senator Day: I want to confirm that we had this same debate on clause 89 yesterday. I undertook to bring forward an amendment to clause 144 that would add the commissioner of lobbying. It is important for the record that I have met my undertaking.
The Chairman: You are confirming what I already said.
Senator Day: There was some question about clause 89.
The Chairman: In amendment to the motion that clause 144 carry, the Honourable Senator Milne moves that Bill C- 2 be amended in clause 144 on page 118 by replacing lines 13 and 14 — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chairman: Shall clause 144, as amended, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried, on division.
Shall clause 145 carry?
Senator Milne: I move:
That Bill C-2 be amended in clause 145, on page 118, by replacing line 29 with the following:
"Elections Act, the Chief Electoral Officer may".
We are changing "shall" to "may," which will allow the Chief Electoral Officer to exercise some discretion and perhaps his own injury test.
The Chairman: Some discretion as to what, Senator Milne?
Senator Milne: To disclose records requested under this bill.
Senator Stratton: Could you give an explanation for that? You are giving the Chief Electoral Officer licence to do as he pleases.
Senator Milne: This is from the Information Commissioner, who suggests that the current exemptions under section 16, which is law enforcement and investigation, and under section 19 of the Access to Information Act fully protect sensitive information identified in this division. As a result, the Chief Electoral Officer does not need a specific exemption. The Canadian Bar Association also noted that the lack of a time limit to hold information needs addressing. This amendment is to allow the Chief Electoral Officer the discretion to divulge information if he or she thinks it is in the public interest.
Mr. Wild: The policy intent behind the amendment is, as I read it, exactly as the senator explained. It is a shift from the government proposition that the Chief Electoral Officer not disclose records obtained or created as a result of or during the course of an investigation and would instead be making that discretionary. The balance that the government was trying to seek in its proposal was to ensure that there would be an atmosphere of anonymity for those who wish to cooperate or participate in an investigation without fearing that any record that could potentially disclose some information relating to them could potentially be released. It was about providing a an atmosphere of anonymity during the course of an investigation.
Senator Milne: The Information Commissioner thinks that they have that already.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 145, as amended, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried, on division.
Shall clause 146 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 147 carry?
Senator Milne: I move:
That Bill C-2 be amended in clause 147, on page 119,
(a) by replacing lines 24 and 25 with the following:
"Board;
(d) VIA Rail Canada Inc.; or
(e) the Canada Foundation for Sustainable Development Technology."; and
(b) by replacing line 32 with the following:
"(e); or".
This amendment was fully covered within the House of Commons. Sustainable Development Technology Canada believed that they had been protected by some of the provisions of the act. They appeared before the committee and requested this amendment.
The witness noted that the organization is similar in nature to Export Development Canada and to the Business Development Bank of Canada in that their ability to function is based on handling third party confidential information, and since there has been already some acceptance under this bill that these organizations should be given special consideration, she felt strongly, and we agree with her, that Sustainable Development Technology Canada should also be provided with that ability to protect third party confidential information.
Senator Nolin: We agree.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 147, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried, unanimously.
The Chairman: Shall clause 148 carry?
An Hon. Senator: No.
Senator Milne: Honourable senators, I move:
That Bill C-2 be amended in clause 148, on page 120, by adding after line 10 the following:
"20.3 The head of the Canada Foundation for Sustainable Development Technology shall refuse to disclose a record requested under this Act that contains advice or information obtained in confidence by the Foundation relating to applications for funding, eligible projects or eligible recipients, within the meaning of the Canada Foundation for Sustainable Development Technology Act, if the foundation has consistently treated the advice or information as confidential.".
This amendment is sequential to the other amendment.
Senator Nolin: We agree.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Resuming debate on clause 148.
Senator Milne: Honourable senators, I move:
That Bill C-2 be amended in clause 148, on page 120, by adding before the line 11 the following:
"20.4 The head of the National Arts Centre Corporation shall refuse to disclose a record requested under this Act if the disclosure would reveal the terms of a contract for the services of a performing artist or the identity of a donor who has made a donation in confidence and if the Corporation has consistently treated the information as confidential.".
Senator Joyal: I will abstain from voting on that proposal and section of the bill as a matter of a conflict of interest.
The Chairman: In this case, the clerk does not have to make a special designation because it seems to me that when the witnesses appeared you did so.
Senator Joyal: It was not implied that there would be an amendment, so I prefer to repeat my declaration.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 148 as amended carry?
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 149 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 150 carry?
Senator Day: We have a new clause, but it will come after clause 150. We will accept clause 150, but we would like the opportunity to present proposed section 150.1.
The Chairman: Shall clause 150 carry?
Senator Day: No, we have an amendment.
Senator Milne: Honourable senators, I move:
That Bill C-2 be amended in clause 150, on page 120, by replacing line 37 with the following:
"government institution or any related audit working paper if a final report of the".
The Chairman: Could you give an explanation of the proposed amendment, Senator Milne?
Senator Milne: This amendment would allow audit working papers to be accessible to access to information requests. The amendment relates to testimony from the Office of the Information Commissioner that these papers have been accessible for the last 23 years, and the Information Commissioner sees no reason why they should not continue to be accessible.
The Chairman: Are you able to tell us what would be included in so-called audit working papers? Would they include every draft that would have been prepared?
Senator Milne: I do not see any reason to change what has normally been provided under access to information.
Senator Day: Honourable senators will note in proposed section 22.1 that these words appear in subsection (1), and we are simply tracking that same wording in subsection (2).
Senator Andreychuk: We heard a lot of testimony on this proposal, and you are either on one side or the other. We are not prepared to accept the amendment. We heard some compelling evidence from the Auditor General not to do so.
Senator Joyal: I want to add that Justice Gomery referred to the accessibility of information. The experience of the Gomery inquiry is one of the reasons we are coming back to this issue.
Senator Andreychuk: I thought that the Auditor General gave compelling testimony. She and her predecessors have dealt with the audit process for a number of years and, with respect, she disagreed with the common position. Her testimony was persuasive, in my opinion, and we disagree with the suggested amendment.
Senator Joyal: I know that she disagreed, but she was unable to identify cases whereby the inaccessibility of audit papers and reports prevented her or someone else from performing his or her duties under the act.
I would have been personally open to a review of the act if there had been compelling evidence that it prevented the Auditor General of a province or at the federal level from performing his or her duty. However, given the testimony we received, there was no convincing evidence that we should change the present situation, which is why we maintain what is there now.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Senator Milne: I merely wish to point out that we will be introducing a new clause 150.1.
The Chairman: Shall clause 150, as amended, carry?
Some Hon. Senators: Agreed.
Senator Andreychuk: On division.
The Chairman: Carried, on division.
Senator Day: I will ask Senator Milne to present the amendment.
Senator Milne: Honourable senators, I move:
That Bill C-2 be amended on page 120, by adding after line 41 the following:
"150.1 The Act is amended by adding the following after section 26:
26.1 Despite any other provision of this Act, the head of a government institution may disclose all or part of a record to which this Act applies if the head determines that the public interest in the disclosure clearly outweighs in importance any loss, prejudice or harm that may result from the disclosure. However, the head shall not disclose any information that relates to national security.".
Honourable senators, this amendment is intended to provide a public interest override. The Canadian Bar Association, the B.C. Freedom of Information and Privacy Association and the Canadian Newspaper Association propose adding this general public interest override for all exemptions authorizing — and the amendment does include the discretionary term "may" — the head of a government institution to disclose information that is for any other reason clearly in the public interest to do so.
Similar sections appear in the access to information legislation in B.C., Alberta, Saskatchewan, Manitoba, Ontario and Prince Edward Island.
Senator Joyal: It follows a decision in the Supreme Court in the Lavigne case, which has been explained to us by the witnesses.
Mr. Wild: The amendment is a significant policy shift from the way the Access to Information Act currently works. Under the Access to Information Act, there is a scheme of discretionary and mandatory exemptions, as well as exclusions. Setting aside exclusions, because they are outside of the act, we are talking about the mandatory and discretionary exemptions.
The reason there is a distinction between a mandatory and a discretionary exemption is just that: It is the public interest. Where exemptions are discretionary, that is the signal or the intention that public interest will be brought to bear as the head of the institution deliberates on whether to exercise the discretion to release or withhold information within that exemption.
Mandatory exemptions are those where either there is no public interest or some of them have their own public interest exception also provided — for example, section 20 relating to third party information. A public interest provision is built into that section, but not all mandatory exemptions have a public interest exception built into them.
A deliberate policy choice is being taken as to whether there is a public interest that should outweigh the exemption in play. This amendment would change that balance by allowing a public interest override for every exemption regardless of whether it is mandatory.
Senator Milne: I point out that this new clause covers both discretionary and mandatory requirements. The head of the institution "may disclose," but they "shall not disclose any information that relates to national security." It is a mixed bag.
Mr. Wild: That is true. I should have pointed out that national security is not subject to the public interest override, nor are the exclusions under the act.
The Chairman: Honourable senators, it is moved by the Honourable Senator Milne that Bill C-2 be amended by adding after clause 150 a new clause 150.1. Is it your pleasure, honourable senators, to adopt the new amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Adopted, on division.
Honourable senators, shall clause 151 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 152 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 153 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 154 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 155 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 156 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 157 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 158 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 159 carry?
Senator Milne: Honourable senators, I move:
That Bill C-2 be amended in clause 159, on page 123, by adding, in the English version, after line 14 the following:
"68.3 This Act does not apply to any information that was already under the control of the following Foundations before the coming into force of section 166 of the Federal Accountability Act:
(a) the Asia-Pacific Foundation of Canada;
(b) the Canada Foundation for Innovation;
(c) the Canada Foundation for Sustainable Development Technology;
(d) the Canada Millennium Scholarship Foundation; and
(e) the Pierre Elliott Trudeau Foundation.
68.4 This Act does not apply to any information that was already under the control of the Office of the Auditor General of Canada before the coming into force of section 167 of the Federal Accountability Act.
68.5 This Act does not apply to any information that was already under the control of the Office of the Chief Electoral Officer before the coming into force of section 168 of the Federal Accountability Act;
68.6 This Act does not apply to information that was already under the control of the Office of the Commissioner of Official Languages before the coming into force of section 169 of the Federal Accountability Act;
68.7 This Act does not apply to any information that was already under the control of the Office of the Information Commissioner before the coming into force of section 170 of the Federal Accountability Act;
68.8 This Act does not apply to any information that was already under the control of the Office of the Privacy Commissioner before the coming into force of section 171 of the Federal Accountability Act.".
This new clause, honourable senators, is intended to remove any retroactivity or retrospective aspects of this particular bill. This is what it was created to address, and we shall see how it affects those government institutions who will be abiding by this bill after its passage.
These amendments were recommended by the Chief Electoral Officer, the Executive Director of the Canadian Millennium Scholarship Foundation and the President of Sustainable Development and Technology Canada. The aspects of retroactivity concern all of these particular institutions because of information that they may already have in their files that was given to them perhaps years ago on the understanding that it was confidential at that time.
Mr. Wild: The only thing I can add that may be of assistance to the committee is that this is an unprecedented approach in terms of bringing institutions under the Access to Information Act.
The Chairman: Are you suggesting that there is another way to do it?
Mr. Wild: I am simply saying that each institution brought under the Access to Information Act since it was established has operated under the parameters of the act. Any records under their control on the day they were brought under the act, regardless of when they were created, are subject to the act. There has never been a provision saying that it is only going to be information in the future as opposed to what you already have.
Senator Day: We have never had so many new institutions and different types of Crown corporations. They require different considerations because of the way they function in the private sector.
The Chairman: Does any other senator wish to comment on this new amendment?
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 159 as amended carry?
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 160 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 161 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 162 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 163 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 164 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 165 carry?
Some Hon. Senators: No.
Senator Day: There are two ways to vote against this clause, but I understand the preferred procedure is that if one wishes to amend by deleting, one merely has to vote against.
The Chairman: Honourable senators, shall clause 165 carry?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chairman: Clause 165 is not carried, on division.
Shall clause 166 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 167 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 168 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 169 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 170 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 171 carry?
Some Hon. Senators: Agreed.
Senator Milne: Okay.
The Chairman: Shall clause 171 carry, honourable senators?
Hon. Senators: Agreed.
The Chairman: Shall clause 172 carry?
Senator Milne: No.
Senator Milne: We intend to delete clause 172.1 by voting against it.
The Chairman: We are at clause 172 now.
Senator Day: Senator Milne is referring to the next clause.
Senator Milne: Yes, 172.1 is an additional clause. We are giving you a heads-up.
The Chairman: Honourable senators, is there a proposed amendment to clause 172?
Hon. Senators: No.
The Chairman: Honourable senators, shall clause 172 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 172.1 carry?
Some Hon. Senators: No.
Senator Milne: We intend to vote against this clause and to defeat it.
The Chairman: Shall clause 172.1 carry?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chairman: Clause 171.1 is not carried, on division.
Shall clause 173 carry?
Senator Milne: Honourable senators, I have a new clause, 172.01, that I intend to move. I move:
That Bill C-2 be amended on page 127, by adding after line 31 the following:
"172.01 Schedule II to the Act is amended by adding, in alphabetical order, a reference to
Canada Elections Act
Loi électorale du Canada
and a corresponding reference to "section 540"."
The Chairman: Could you provide an explanation of what that means?
Senator Milne: The Chief Electoral Officer of Canada noted that section 540 of the Canada Elections Act currently expressly prohibits access to election documents after an election without the consent of a judge. There is a possible constitutional problem in that the law, as it is presently written, that would allow access to the ballots after an election.
The Chairman: I remember that section.
Senator Milne: That is right. Particularly, if it is a military vote, for example, where there may only be two soldiers who are voting in a particular constituency, their vote could easily be identified. This provision is to protect the privacy of the ballot.
Mr. Wild: If a ballot contains sufficient information that you would be able to identify the individual that cast the ballot, that would be protected under section 19 of the Access to Information Act, personal information.
I am simply making the point that personal information in relation to electoral documents would not be released under the Access to Information Act because of the section 19 exemption, which is a mandatory one in relation personal information.
Senator Nolin: You do not have a problem with that?
Mr. Wild: The point I am making is the effect in which addresses that issue, that issue has been addressed under the scheme of the Access to Information Act.
The Chairman: You are suggesting it is redundant?
Mr. Wild: It is unnecessary if the goal is to protect personal information in relation to ballots.
Senator Milne: The Chief Electoral Office did not feel it was redundant. He felt it was absolutely necessary in the way he read this bill, that he would be required to release those ballots.
The Chairman: It is moved by the Honourable Senator Milne that Bill C-2 be amended by adding after line 31 on page 127 a new clause, 172.01.
Is it your pleasure, honourable senators, that the new clause carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chairman: Agreed, on division.
Honourable senators, shall clause 173 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 174 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 175 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 176 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 177 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 178 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 179 carry?
Hon. Senators: Agreed.
Senator Andreychuk: I am giving an alert on 179.1.
The Chairman: Shall clause 179 carry, honourable senators?
Hon. Senators: Agreed.
Senator Andreychuk: I move:
That Bill C-2 be amended by adding before line 17 on page 131 the following:
179.1, the definition "government institution" in section 2 of the Library and Archives of Canada Act is replaced by the following:
"government institution" has the same meaning as in section 3 of the Access to Information Act or in section 3 of the Privacy Act or means an institution designated by the Governor in Council.
The purpose of this amendment is to maintain the status quo such that Crown corporations currently subject to the Library and Archives of Canada Act remain subject to it.
This amendment is here as a result of the amendments made in the House of Commons that removed Crown corporations from the schedules to the Access to Information Act and the Privacy Act, and included them instead in the definition of "government institution" under these acts.
Because the Library and Archives of Canada Act covers institutions defined in the schedules of the Access to Information Act and Privacy Act, with Bill C-2 in its current form, Crown corporations would not be covered under the Library and Archives of Canada Act. The purpose is to bring this into conformity.
Senator Day: That sounds like a laudable amendment that we can support.
The Chairman: Honourable senators, it is moved by the Honourable Senator Andreychuk that Bill C-2 be amended by adding after clause 179 a new clause, 179.1.
Is it your pleasure, honourable senators, that the new clause be adopted?
Hon. Senators: Agreed.
The Chairman: Adopted unanimously. Shall clause 180 carry?
Senator Andreychuk: This is a consequential amendment. I move:
That Bill C-2, in clause 180, be amended by replacing lines 17 and 18 on page 131 with the following:
180. The Act is amended by adding the following after
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 180, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried unanimously.
Shall clause 181 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 182 carry?
Senator Andreychuk: I move:
That Bill C-2, in clause 182, be amended by replacing line 32 on page 132 with the following:
"applies to any of its wholly-owned subsidiaries within the"
This is consequential.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 182, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried, unanimously.
Shall clause 183 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 184 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 185 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 186 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 187 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 188 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 189 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 190 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 191 carry?
[Translation]
Senator Nolin: I wish to move the following amendment:
That Bill C-2, in Clause 191, be amended by:
(a) adding after line 43, on page 136, the following:
Asia-Pacific Foundation of Canada
Fondation Asie-Pacifique du Canada
(b) adding after line 7, on page 137, the following:
The Pierre Elliott Trudeau Foundation
La Fondation Pierre-Elliott-Trudeau
The Chairman: Could you explain, please?
Senator Day: We are prepared to support this amendment.
[English]
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 191, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried, unanimously.
Shall clause 192 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 193 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 194 carry?
Senator Day: Mr. Chairman, we are now at the part sometimes referred to as whistle-blowing. A bundle of amendments has been circulated to all honourable senators.
The Chairman: Honourable senators, I want to ensure everyone has the package entitled "Bill C-2, Whistleblowing (Public Servants Disclosure Protection Act)."
I would like to announce, honourable senators, that we will be suspending at around three o'clock so honourable senators can go over to the chamber to make their mandatory appearance there. Following that, we will resume.
Senator Day: Is it for just half an hour?
The Chairman: I have not had a chance to confer with you on that, senator. Later on, I will talk to you about that.
Honourable senators, shall clause 194 carry?
Some Hon. Senators: No.
Senator Cowan: Honourable senators, I move:
That Bill C-2 be amended in clause 194, on page 137, by adding after line 27 the following:
"(2.1) Paragraph (d) of the definition "protected disclosure" in subsection 2(1) of the Act is replaced by the following:
(d) when lawfully permitted or required to do so.".
The Chairman: Can you put that into context for us, senator?
Senator Cowan: Yes. The protected disclosure now is when the party disclosing is lawfully required to do so. We are adding the words "lawfully permitted." This amendment was requested by the CBA. It codifies the common-law situation where a citizen has a right to disclose, a right to report wrongdoing, even though there is no statutory obligation to do so, and makes such a disclosure a protected disclosure.
Senator Nolin: I would like to hear from Mr. Wild.
Mr. Wild: I testified previously on this matter when it was raised during my appearance with Minister Baird several days ago. The issue it raises in terms of what the government proposal was trying to do in Bill C-11, which is where this amendment is taking place, was to ensure that there was clarity around employees trying to determine whether they should go public or whether they should be under the Public Servants Disclosure Protection Act. If the phrase "when lawfully permitted or required to do so" is included under the Public Servants Disclosure Protection Act as a statutorily protected disclosure, it then brings in those common-law notions around public whistle-blowing. That muddies the waters in terms of an employee who is debating to go public through their manager or through the Public Sector Integrity Commissioner. There is uncertainty there. It makes it more difficult for managers to know how to act appropriately when an employee goes public. This means that there are public disclosures that can be made by an employee that are inappropriate and should bring about some form of discipline.
Senator Nolin: Can you qualify the word "inappropriate," please?
Mr. Wild: There are always competing interests at play when you get into the field of public disclosures. As public servants, there is a duty of loyalty. Generally, that means that public servants are not to engage, in public, in policy debate against the government for whom they are working. If the government has made a policy decision and it has been ratified by cabinet, then it would be inappropriate for a public servant to simply engage in public debate against that policy proposal.
Where you get into the line, then, is whether that policy proposal actually constitutes some form of wrongdoing and whether that is enough to then clothe them as a whistle-blower. The easy cases are fraud and things like that, where there is an abuse of either resources or power within government.
The idea is that the Public Servants Disclosure Protection Act, as it is set out, created certain exceptions to allow for public disclosure in very specific circumstances. The effect of bringing in the "lawfully permitted" is, it brings in this common law notion, which is not a notion that is precise, so it brings uncertainty into the scheme.
There would be less uncertainty with this than under the current wording of Bill C-11 for an employee or manager to know when it is permitted to do a public disclosure.
Senator Joyal: When you say "with this," do you mean Bill C-2?
Mr. Wild: With the amendment proposed — to include "when lawfully permitted" as a protected disclosure.
It is in Bill C-11, but the scheme of Bill C-11 allows for public disclosure in certain cases. We are talking about public health, it is an emergency, and you need to disclose in order to prevent the wrongdoing from continuing — that kind of thing.
Lawfully permitted is more nebulous and more difficult to be certain about. The issue that it raises is, will managers know how to react appropriately — trying to bring it into a real world scenario so they will know how to react appropriately? Also, will an employee have clarity around when they have a right to go public versus when they should go through the fairly elaborate mechanism that has been set up through Bill C-11 and the amendments brought by Bill C-2 to provide them with a disclosure mechanism that can be independent of the department through an agent of Parliament in the form of the PSIC, who has those broad investigatory powers coupled with a tribunal to help protect them if there is a situation of reprisal.
The Chairman: Does any other senator wish to comment?
Senator Joyal: I think that the brief of the Canadian Bar Association, on page 10, was clear. It refers specifically to Haydon v. Her Majesty the Queen. It quoted specifically paragraph 82 and 83 about the duty of loyalty that Mr. Wilder referred to. The Canadian Bar Association concluded it must be clear that all legally permissible whistle-blowing is protected regardless of the mechanism chosen by the public servant to bring important information to public attention.
We should not confuse the freedom of speech of a public servant — the context in which a public servant, respecting their duty of loyalty, can speak their mind and, of course, whistle-blow.
Whistle-blowing is in a different category of issue. When we whistle-blow, it is because something wrong has happened. We are outside the normal freedom of expression framed within the discipline of public service. We are talking here about whistle-blowing. That is why the Canadian Bar Association wanted to be sure that the protected disclosure was expressed in a way that the Supreme Court has said in 201 is required to do so. That is why I think this amendment is still justified.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Shall clause 194, as amended, carry? I apologize; there is one more motion on clause 194.
Senator Cowan: It is the next in the sequence, Mr. Chairman, at the bottom of page 137. I move:
That Bill C-2 be amended in clause 194, on page 137, by adding after line 36 the following:
"(3.1) The definition "reprisal" in subsection 2(1) of the Act is amended by striking out the word "and" at the end of paragraph (d) and by replacing paragraph (e) with the following:
(e) any other measure that may adversely affect, directly or indirectly, the public servant; and
(f) a threat to take any of the measures referred to in any of paragraphs (a) to (e)."
This recommendation was made by Justice Gomery in his report, as well as by a whole slew of whistle-blowers that appeared before us.
Senator Stratton: Was that over 1,000?
Senator Cowan: I think Senator Stratton is calling for additional witnesses: dozens, many, felt that the restrictive nature of the definition needed to be expanded to allow other types of action or inaction to be included in the definition of reprisals. That is the intent of the amendment: to expand the definition.
Mr. Wild: The expansion of the definition as proposed by the amendment creates risks that it would bring in purely interpersonal behaviour as grounds for a reprisal complaint — behaviour that would not be under the control of the employer.
For example, if co-workers decide to shun a whistle-blower — not to invite that person to coffee, lunch, a social event after work or something like that — any other measure that may adversely affect directly or indirectly could be broad enough to incorporate that kind of behaviour. The issue then created from a technical perspective is that the employer is the actual party when the tribunal deals with the reprisal case. The employer is on the receiving end of the order that comes out of the tribunal and that order to the employer can be —
Senator Nolin: Seen as any other measure.
Mr. Wild: That is the question. How then does the employer control what would be interpersonal behaviour between coworkers that occurs outside the employment relationship?
The only other point I would add is that the existing definition in Bill C-11 is broad, in that paragraph (d) of that definition includes any measure that adversely affects the employment or working conditions of the public servant.
It is geared around the fact that this scheme is designed to ensure that employers address working conditions and the employment conditions of the public servant as opposed to broadening that to include things beyond the control of the employer.
Senator Nolin: The proposed amendment basically does that through paragraph (d). In putting paragraph (d) and paragraph (e) together — you just recited paragraph (d) and it deals with working relationships — paragraph (d) must mean outside that.
Mr. Wild: It introduces the risk that for paragraph (e) to be given meaning, a court will look at paragraph (e) as suggesting it must go beyond just working and employment conditions since they are already covered.
Senator Cowan: I would have thought that the kind of circumstance Mr. Wild describes would only constitute a reprisal if the employer had caused this action to take place in some way — the refusal to include the whistle-blower in the coffee party, or shunning the whistle-blower at the water cooler. If that happened as a result of some action, inaction or encouragement on the part of the employer, then the employer would be responsible. If it is outside the control of the employer, then I do not think any tribunal looking at it would consider that to be a reprisal.
Senator Day: We heard compelling evidence from a number of what Senator Campbell, if he was here, would call "information patriots" in bringing forward important information. We tried to look for a balance between the obvious power of a government department and the individual who is likely to be shunned and could be moved. We heard stories from several of our witnesses that they would be moved off and totally ignored: given nothing to do. We looked at the definition of "reprisals." When you have just exclusive points, a lot of what a heavy-handed employer or government department can do to an individual could be outside the definition of "reprisal." We wanted to make it inclusive and let the tribunal make the determination, whether this was or was not a reprisal. That is our basic attempt in amending and expanding this definition.
The Chairman: Thank you for that explanation. Other comments, honourable senators?
Senator Joyal: There is a lot of jurisprudence in the Canada Labour Relations Code of the interpretation of the responsibility of the employer vis-à-vis the employee. The employer cannot leave a situation whereby the life of an employee is made impossible and affects his performance. There is jurisprudence on that from the labour relations board, which has developed a context of the responsibility of the employer vis-à-vis the employee. It would be too easy for the employer to leave — and I will use a word that may not be well received — a dirty trick about somebody and the employer is not responsible; it is done by somebody else. The employer cannot detach himself from the working conditions in a labour union. The employer has a responsibility for that and it is clearly stated and defined. I do not think that goes overboard.
Senator Andreychuk: Could I have a clarification? If I understand the example that Senator Joyal has given, it would be under paragraph (d) that you had read. With paragraph (e) the difficulty is that if it is covered in paragraph (d), you cannot put in "employee" and, I think we have all agreed to that — anything that happens within the context of the employment. Where do you stop? There are some cases that talk about the after effects. If it was a sexual harassment case and if some of it occurs somewhere else, for example on the parking lot, courts can extend, in a reasonable way, the employment sphere. If they were already doing it, I would say that would be under paragraph (d). If so, what are we doing in paragraph (e)? We will now be monitoring the behaviour of people more distant from the employment site — where?
Senator Joyal: When we say "measure," it does not state any action. "Measure" means there is a will behind the initiative taken. If I take a measure, it means I want to achieve an end. The end to be achieved is, essentially, to adversely affect directly or indirectly the public servant. When we say "public servant," we mean the person in his or her capacity as a public employee and not as an individual.
If it would be "any other measure that may adversely affect the individual," we would go beyond his condition as a public servant. This is in the context of his job or her job, in the precinct of the work and the working relationship with his employer. That is essentially the way that, in many opinion, the tribunal will go to try to interpret this if that goes beyond the scope of the legislation or the scope of what we want to achieve.
The witnesses we heard told us about the number of years that they spent in court trying to seek redress. It is horrendous. There are so many ways to come to somebody without addressing the person to say you are out of the group. The most difficult cases are not the ones where the disciplinary measure is immediate — it is the systemic approach to try to push somebody. I think that this measure protects the individual.
Senator Andreychuk: To the extent it can.
The only thing on which I would disagree with you, Senator Joyal, is whether that is a (d) or a (e) concept. I would take "measure" to be not only as you have put it, namely that something that one does is a measure. I think about "omission" and "commission." You can construe a measure. When you refrain from doing something, it is a measure. If the employer stands by and does not do something, he or she will have to totally determine to what extent they can go and when they have gone inappropriately into the private lives of people as opposed to the employment.
Senator Joyal: I do not want to prolong this. I will just add this: What are we trying to do? We are trying to protect somebody who has done something for the public good. That person exposed himself or herself to risk. The person has created vulnerability for a working condition and we want to ensure that the system protects the person. The very moment that the person becomes public, and it is known that the person has whistle-blown, that person is subject to a potential "reprisal." We then must rebalance the system to ensure that we cover that person in the various circumstances in which the person could have made him or herself more vulnerable. That is essentially the approach: To make a balance. There is a public goal objective in having somebody coming forward and saying, "I am sorry, but this is wrong and I cannot stand with this. I will take the measures within the legislation to disclose this." That is why we must be sure we cover it.
Senator Andreychuk: My interpretation is that the government's public policy is to go to the furthest extent possible. It is not a guarantee that if someone comes forward there will be no reprisal. They are balancing what is reasonable and what would be expected of an employer and, in this case throughout the act, of the government. This is much better than Bill C-11; I wonder why we passed it. I questioned it then.
Senator Joyal: There is a first step to everything.
Senator Andreychuk: We were told it was less than anything. I take this to be much more measured. Could it be improved upon? I think in the fullness of time, absolutely. It will be interesting to test the propositions you have put forward.
The Chairman: On the issue of "reprisals," we have had extensive debate. Mr. Wild and Senator Cowan want to have a closing comment and we will do that. I will then put the question.
Mr. Wild: To clarify, that the government's position is that working conditions and any measure that adversely affects a working condition, including direct or indirect, is covered under paragraph (d).
Senator Cowan: Briefly, it seems to me to be exactly for the kinds of reasons that Senator Joyal has talked about that we are trying here to struggle with the difficulty of defining precisely the kinds of reprisals that would arise under those circumstances. We want to broaden the definition. It is for that reason that the tribunal is included. The tribunal will make those determinations as to whether or not there is a reprisal, and if so, is it a reprisal for which the employer is responsible and against whom a remedy can be ordered?
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 194, as amended, carry?
Some Hon. Senators: No.
Senator Cowan: On page 138, continuing on clause 194, I move:
That Bill C-2 be amended in clause 194, on page 138, by adding after line 12 the following:
"(4.1) The portion of the definition "public sector" in subsection 2(1) of the Act after paragraph (c) is replaced by the following:
However, subject to sections 52 and 53, "public sector" does not include the Canadian Forces.".
Our understanding is that the Canadian Forces have their own whistle-blowing regime, procedures and disciplinary code. For that reason, it seems wise to exclude the forces from the definition of public sector.
The Chairman: Senator Cowan, was there evidence to that effect from some witnesses? From whence does this proposed amendment come?
Senator Day: When we were drafting the amendment, we had originally intended to include the Canadian Armed Forces, and then in discussions with Justice drafters indicated it might be more appropriate not to include them.
Senator Joyal: The National Defence Act is not in front of us whereby we could amend it in a way to address that.
Senator Milne: It is beyond the scope of this bill.
Senator Nolin: We are in a bit of a fog. Mr. Wild, maybe you can enlighten us before we vote.
Mr. Wild: The effect of the amendment is to bring in CSIS and the Communications Security Establishment, which are currently not under the PSDPA under Bill C-11, but to continue to exclude the Canadian Forces, which is not under the PSDPA under Bill C-11.
The issue with the Canadian Forces is that the National Defence Act provides a mechanism, and there is an existing mechanism for Canadian Forces, so there are issues around how to bring them in under a PSDPA. It would require a fair amount of work to get to that point.
Senator Nolin: It does or does not exist?
Mr. Wild: The Canadian Forces are not subject to the PSDPA under Bill C-11 or Bill C-2, nor would they be brought in through this amendment.
With this amendment, CSIS and the Communications Security Establishment, which are not under the PSDPA under Bill C-11 or Bill C-2, would now be brought under. This amendment adds two additional organizations, in the nature of CSIS and the CSE.
Senator Day: Along with the RCMP?
Mr. Wild: The RCMP is already under Bill C-2.
Senator Nolin: I think it is a policy question.
The Chairman: There being no further comments, is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Honourable senators, shall clause 194, as amended, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried, on division.
Shall clause 195 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 196 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 197 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 198 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 199 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 200 carry?
Hon. Senators: Agreed.
The Chairman: Is there a new clause, 200.1?
Senator Cowan: New clause 200.1. I move:
That Bill C-2 be amended on page 139, by adding after line 43 the following:
"Subsection 16(2) of the Act is repealed."
This is a consequential amendment to the amendment we passed a few moments ago expanding the definition of protected disclosure in clause 194.
The Chairman: What does 16(2) say, the one you are repealing?
Senator Cowan: It states:
16(2) Nothing in subsection (1) affects the rights of a public servant to make to the public in accordance with the law a disclosure that is not protected under this Act.
The Chairman: Honourable senators, it is moved by the Honourable Senator Cowan that Bill C-2 be modified by adding, after clause 200, a new clause, 200.1.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The new clause is adopted, on division.
Shall clause 201 carry?
Hon. Senators: No.
The Chairman: Senator Joyal says it was very much like a Greek chorus.
Senator Cowan: This is on page 140. I move:
That Bill C-2 be amended in clause 201, on page 140, by adding, before line 7, the following:
"19.01 For the purposes of the provisions of this act relating to complaints in relation to a reprisal, any administrative or disciplinary measure taken against a public servant within one year after the public servant makes a disclosure concerning a particular matter under any of sections 12 to 24 shall be presumed, in the absence of a preponderance of evidence to the contrary, to be a reprisal."
This is reversing the onus within the one-year period.
The Chairman: Senator Nolin.
Senator Nolin: I have no comments.
Mr. Wild: The point I would make so that the committee has full consideration of the effect of this in terms of the policy choices made in the scheme as presented by Bill C-11 and Bill C-2, is that again the government did set up in Bill C-2 that the PSIC would be there to investigate, bring forward and make the case before the tribunal on a question of reprisal, and that was seen as providing balance to the perception of the government's authority in those cases.
Second, a reverse onus could have the potential of creating unintended adverse effects on a manager's ability to take legitimate disciplinary measures, or other measures, to manage employee performance for a year after the disclosure. There may be a disclosure made, but completely unrelated to the disclosure, the employee may simply be a bad performer in some respect or commit an act that requires a disciplinary measure.
The tribunal has the power to order the employee to take a disciplinary measure against the manager, in this question. So if the manager is fearful that if he does something for this next year and he is not clear whether he will be able to negate the reverse onus, he himself could end up being fired. That ultimately is one of the orders the tribunal could make.
This sets up an issue for a manager who may become personally exposed in trying to address an employee performance issue, even if it is unrelated. It means that he will go through that mechanism, and it creates a potential disincentive for a manager to deal with an employee during that year.
The only other issue to raise — and this is on the nefarious side — is that there is potential for abuse by an employee who may make a disclosure to insulate himself from an administrative or disciplinary action for that year period. He may know that he has done something wrong and that discipline is coming, so he may decide to make a disclosure about something. It may or may not be a valid disclosure in the end, but it buys him an additional year.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chairman: Shall clause 201, as amended, carry?
Some Hon. Senators: No.
The Chairman: Continuing the debate on clause 201, Senator Cowan.
Senator Cowan: I move:
That Bill C-2 be amended in clause 201,
(a) on page 140, by replacing line 16 with the following:
"one year after the day on which the complainant"; and
(b) on page 141,
(i) by replacing line 1 with the following:
"(b) the complaint is filed within one year after"; and
(ii) by replacing line 13 with the following:
"within one year after the later of".
The purpose here is to extend the limitation period from 60 days to one year. We heard evidence from Mr. Cutler and others that 60 days in the context was an insufficient time during which a public servant would be required to take action. If they felt there was a reprisal, sometimes it might not be —
The Chairman: Sometimes you would not need a year.
Senator Cowan: That is right. The point was that you might not know within 60 days. You might hope it was not a reprisal. You might think it was just having a bad day or week, but one year seemed to be an appropriate time, a reasonable limitation period, within which a public servant could file a complaint. That is the purpose of the amendment.
Mr. Wild: With respect to part (a) of the amendment, dealing with 19.1(2), under (3) the commissioner has the discretion to extend the time. The commissioner does have the discretion to extend the 60 days, and there is no limit as to how far out he can do that. It is completely dependent on the commissioner's discretion and whether he feels it is appropriate in the circumstances.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Continuing the debate, Senator Cowan?
Senator Cowan: Moving along to page 154, I move:
That Bill C-2 be amended in clause 201, on page 154, by replacing lines 39 and 40 with the following:
"(f) compensate the complainant for any".
You will note that in the text of the bill before us the compensation for pain and suffering is limited to $10,000. In our view, it is appropriate to remove the limit and to leave that to the discretion of the tribunal.
Mr. Wild: The policy objective behind the limit that the government was seeking to achieve was that a limit provides guidance for decision-makers as well as predictability of outcomes for complainants.
Senator Day: In our view, after hearing the witnesses, that limit is far too low. We felt it more appropriate to leave it to the discretion of the tribunal. You can see with all of these amendments that we were moved by Ms. Gualtieri, Mr. Cutler and many others who came to talk to us about the imbalance between a whistle-blower, an individual, and the power of a government department. We were trying to establish this balance. This is another one of those amendments in that regard.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Honourable senators, shall clause 201, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 202 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 203 carry?
Some Hon. Senators: No.
The Chairman: The chorus again.
Senator Cowan: Moving right along to page 160 —
Senator Andreychuk: I have an amendment on page 159. Shall I proceed? I move:
That Bill C-2, in clause 203, be amended by replacing, in the English version, line 7 on page 159 with the following:
an investigation;
This amendment replaces the word "an" for the word "another." It is a drafting error.
Senator Day: We would be pleased to support that amendment.
Senator Andreychuk: Thank you, senator. In your absence, we had the debate about substantial amendments and procedural amendments. There are some procedural things that are substantial. I was reprimanded for using technical language.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Resuming debate, Senator Cowan.
Senator Cowan: I move:
That Bill C-2 be amended in clause 203, at page 160,
(a) by replacing line 30 with the following:
"constitute a wrongdoing or reprisal is $25,000.";
(b) by replacing line 39 with the following:
"more than $25,000."; and
(c) by replacing line 43 with the following:
"and (5) is at the discretion of the Commissioner."
The intent here is to up the dollar limits in subsections (4) and (5) from $1,500 to $25,000, in line with Treasury Board guidelines, and the upper limit in subsection (6) of the bill, which is $3,000. For reasons we discussed earlier, we felt this is best left to the discretion of, in this case, the commissioner, for exactly the same reasoning as in the case of the previous amendment where it was left to the discretion of the tribunal.
Senator Andreychuk: We are ready for the vote.
The Chairman: Mr. Wild, did you have any additional comment?
Mr. Wild: I would simply note that this amendment would shift the government's policy objective in terms of the use of that legal assistance, and the tribunal, where there is a reprisal complaint, is in a position to order reimbursement of expenses incurred, which would include all legal costs already.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Are there further amendments to clause 203? If not, honourable senators, shall clause 203 as amended carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Clause 203, as amended, is carried on division.
Shall clause 204 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 205 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 206 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 207 carry?
Some Hon. Senators: No.
Senator Cowan: I move:
That Bill C-2 be amended in clause 207, on page 162, by adding after line 29 the following:
"(1.1) Where the Commissioner is of the opinion that it is necessary for the purpose of an investigation to obtain information from outside the public sector, the Commissioner may use his or her powers under subsection (1) to direct that such information be provided.".
The intent here is simply to broaden the scope of the commissioner's powers to obtain the information that is required to enable him or her to carry out his investigation.
The Chairman: The powers under subsection (1) are what?
Senator Day: He can ask within the government for the production of documents.
The Chairman: Within the government, okay.
Senator Cowan: This appears to go outside the public sector.
Senator Day: If he feels it is necessary for the purpose of conducting his examination and his investigation.
The Chairman: Mr. Wild, from the department's point of view, could we have your comment?
Mr. Wild: The commissioner would have to be very vigilant in exercising the authority provided under this amendment. The amendment would have to be vigilant so as to ensure that the commissioner is not exceeding the limits of the constitutional jurisdiction of the federal government.
Because it is a compulsory power that would be used, going outside the federal realm would have to be linked clearly with federal public sector wrongdoing. As long as it is clearly federal public sector wrongdoing that is being investigated, then there may not be a constitutional issue with the commissioner trying to seek information from someone who is outside the federally-regulated division of powers.
The issue that this then raises, of course, is it could bring about additional challenges to the powers of the commissioner, depending upon how far the commissioner may be pushing those powers.
Senator Joyal: There is no question that the commissioner, before using or resorting to that power, would seek an opinion as to how far he could go. If I were the commissioner, that is the first thing I would do on the basis of your comment, Mr. Wild. I feel it is important to give him the power to do so within the limits of the constraints of the federal jurisdiction. To me, that is not an argument that would prevent us from adopting this amendment.
Mr. Wild: I want to be clear. It is certainly not my intention to present arguments either for or against motions. I am simply trying to highlight potential implications so that they are clear, and the committee can take them into consideration in its deliberations.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Honourable senators, shall clause 207, as amended, carry?
Some Hon. Senators: No.
Some Hon. Senators: On division.
The Chairman: We should do clause 207 again. Shall clause 207, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
The Chairman: Next, Senator Cowan?
Senator Cowan: Again, continuing on page 162, I move:
That Bill C-2 be amended, on page 162, by adding after line 29 the following:
"207.1 Section 34 of the Act is repealed.".
This is an amendment that is consequential to the one we have just dealt with.
Senator Day: Honourable senators, I have just had a chance to look at section 34 of the act which is being repealed. If section 34 stayed, then it would be in conflict with the policy of the amendment that we just made. That is because section 34 provides that if his investigation leads him to believe that there is information outside the public sector, he must cease his investigation.
The Chairman: Honourable senators, it is moved by the Honourable Senator Cowan that Bill C-2 be modified by adding after clause 207, new clause 207.1.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
An Hon. Senator: No.
The Chairman: It is adopted, on division.
Shall clause 208 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 209 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 210 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 211 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 212 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 213 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 214 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 215 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 216 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 217 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 218 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 219 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 220 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 221 carry?
Some Hon. Senators: No.
Senator Cowan: Honourable senators, I move:
That Bill C-12 be amended in clause 221, on page 171, by replacing lines 39 and 40 with the following:
"33 of that Act if the information identifies or could reasonably be expected to lead to the identification of a public servant who made a disclosure, or a person who provided information or who cooperated in an investigation, under that Act;
(b) obtained by him or her or on his or her behalf in the course of an investigation into a disclosure made under that Act or an investigation commenced under section 33 of that Act, unless he or she is of the opinion that it would be in the public interest to disclose the record;
(c) created by him or her or on his or her behalf in the course of an investigation into a disclosure made under that Act, or an investigation commenced under section 33 of that Act, if the investigation is not yet completed; or
(d) received by a conciliator in the course of".
We heard testimony from a number of witnesses that we needed to beef up and enhance the protection against the identification of public servants who were making disclosures or who were providing information in the course of these investigations.
Mr. Wild: The amendment as proposed would not provide any additional protection beyond existing personal information exemptions under the Access to Information Act for persons who have been actually accused of the wrongdoing prior to a finding of actual wrongdoing having been committed by them. If it turns out that someone who has been accused has been falsely accused, then there would be no protection for their identity except under the existing personal information exemption under the Access to Information Act. That is a difference between the proposal as Bill C-2 sits now and the effect of the amendment.
The only other point that I wish to bring to the committee's attention that the general public interest override that was adopted earlier today would apply in this section. It is important to note, of course, that the general public interest override is under the discretion of the PSIC. Thus, the integrity commissioner would be exercising discretion as to whether or not to use that public interest override, but it would apply to that mandatory exemption around the identity of the discloser.
Again, I wish to make the point that the public interest override contemplated in this amendment does not actually affect the disclosure of the identity of the whistle-blower. The general interest public override, which was adopted earlier, would apply to that section. The point is that that is still under the discretion of the PSIC, but it does provide less certainty for the whistle-blower in the sense that there is not a mandatory requirement on the PSIC not to disclose their identity. There is a risk that the PSIC could decide to disclose the identity if the PSIC feels it is in the public interest to do so. I want to ensure that is clear, given the impact of what was adopted earlier.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
An Hon. Senator: No.
The Chairman: Carried, on division.
Senator Cowan: On the next page, page 172, I move:
That Bill C-2 be amended in clause 221, on page 172, by replacing line 12 with the following:
"under that Act if
(a) the information identifies or could reasonably be expected to lead to the identification of a public servant who made a disclosure, or a person who provided information or who cooperated in an investigation, under that Act; or
(b) the investigation is not yet completed."
This qualifies the absolute prohibition on disclosure, which is contained in proposed section 16.5 as it presently stands.
The Chairman: Mr. Wild, do you have anything to add on behalf of the Department of Justice?
Mr. Wild: This applies to the part of the whistle-blowing scheme whereby, this particular exemption applies internally to the designated officer in the department.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Is there another one, Senator Cowan?
Senator Cowan: No.
The Chairman: Shall clause 221, as amended, carry?
Some Hon. Senators: Agreed.
The Chairman: Carried, on division.
Shall clause 222 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 223 carry?
Senator Day: No. Before Senator Cowan introduces this amendment, I want to ensure that each senator has received a new copy of our amendment to clause 223.
The Chairman: I believe it has already been distributed.
Senator Day: One was passed out earlier that should be ignored. This is the one that should be relied on.
The Chairman: Can you tell us what words are different?
Senator Day: We have left out paragraph (ii) that appeared in the earlier version.
Senator Cowan: I am glad you drew that to our attention.
Senator Day: That is our job.
Senator Cowan: That is what leadership is all about, Mr. Chair.
I move:
That Bill C-2 be amended in clause 223, on page 174, by replacing line 15 with the following:
"disclosure under that Act and the information identifies or could reasonably be expected to lead to the identification of a public servant who made a disclosure, or a person who provided information or who cooperated in an investigation, under that Act."
The same rationale applies as in the previous amendment.
The Chairman: Mr. Wild?
Mr. Wild: I do not have any additional comments beyond what I have already stated in this area.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Honourable senators, shall clause 223 carry as amended?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chairman: Carried, on division.
Shall clause 224 carry?
Some Hon. Senators: No.
Senator Cowan: There is a typo in the first line. It will read that Bill C-2 be amended in clause 224. The one that my colleagues have reads 24, and it should be:
That Bill C-2 be amended in clause 224, on page 174, by replacing lines 20 to 28 with the following:
"22.2 (1) Subject to paragraph 22(d) of the Public Servants Disclosure Protection Act, the Public Sector Integrity Commissioner shall refuse to disclose any personal information requested under subsection 12(1) that was obtained or created by him or her or on his or her behalf in the course of an investigation into a disclosure made under that Act or an investigation commenced under section 33 of that Act if the information identifies or could reasonably be expected to lead to the identification of a public servant who made a disclosure, or a person who provided information or who cooperated in an investigation, under that Act.
(2) Subsection (1) does not apply if the public servant or person who is or could reasonably be identified consents to disclosure of the information."
The first part is consistent with the amendments that I have moved and which have been adopted by the committee previously. The second adds an exception in the case where there is the consent of the person who could be identified if, for whatever reason, that person consents.
The Chairman: Is that a verbal consent or is it in writing?
Senator Cowan: I would think anyone would want it in writing.
The Chairman: Senator Nolin and Senator Andreychuk, do either of you have anything to add?
Senator Nolin: No. We are consequential with our previous votes.
Mr. Wild: The only comment I would make again is that there is nothing in here that protects the identity of a person who may be accused of a wrongdoing. There is enhanced protection for the identity of the discloser but not necessarily the accused, where the accused's identity could potentially be revealed to an individual who may be cooperating in an investigation but does not know everything that is going on, through the request for personal information about themselves. It is a bit remote. I only raise that as a possibility.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
The Chairman: Carried, on division.
Senator Cowan: I have further amendment on line 35, section 22(3), on page 174:
That Bill C-2 be amended in clause 224, on page 174, by replacing line 35 with the following:
"disclosure under that Act if the information identifies or could reasonably be expected to lead to the identification of a public servant who made a disclosure, or a person who provided information or who cooperated in an investigation, under that Act, unless the public servant or person who is or could reasonably be identified consents to disclosure of the information."
This is consistent with the amendments that have been adopted by the committee.
The Chairman: Mr. Wild.
Mr. Wild: It goes along with the Privacy Act with the PIPEDA and ATI amendments that have been adopted today.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried, on division.
Shall clause 224, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Senator Day: Mr. Chairman, we are close to the end of this subject matter, but I have an indication of one government amendment before we proceed.
The Chairman: Shall clause 225 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 226 carry?
Senator Andreychuk: I move:
That Bill C-2, in clause 226, be amended by replacing lines 12 and 13 with the following:
section 45 of the Conflict of Interest Act comes into
Senator Day: We can support it.
The Chairman: Honourable senators, is it your pleasure that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 226, as amended, carry?
Senator Day: We are pleased to enthusiastically support it.
Hon. Senators: Agreed.
The Chairman: Carried.
Honourable senators, we shall suspend for one hour.
The committee suspended.
The committee resumed.
The Chairman: Honourable senators, I call the meeting to order. We are now at clause 227.
Shall clause 227 carry?
Some Hon. Senators: No.
Senator Milne: I move:
That Bill C-2 be amended in clause 227, on page 175, by replacing line 32 with the following:
"1.1 (1) The Governor in Council shall establish".
This amendment replaces the word "may" with "shall." As our side strongly agrees with the appointment of a public appointments commission, we think it should be mandatory, not discretionary. We heard evidence in the committee from Dr. Ned Franks and Dr. David Zussman that this commission should be established, and this amendment would compel the establishment.
Senator Nolin: I would like to ask Mr. Wild if the process is written in Bill C-2. The obvious counterargument to the amendment is that it proposes an obligation on the government to act. Is there any legislative precedent?
Mr. Wild: The normal drafting convention around appointment authorities is to use the word "may." There are some instances where a specific process is in place. At the end of that process, the appointment authority is obligated to make that appointment, premised on the process where a recommendation comes forward. As a result of that recommendation, the appointment authority is obligated to appoint.
The issue that the move from "may" to "shall" causes an incident in this instance is the public appointments commission is currently framed to come into force on Royal Assent of Bill C-2. The timing of Royal Assent of Bill C-2 is somewhat unknown but could happen fairly quickly in the sense that it is not under the government's control when Royal Assent will occur.
The only issue the use of the word "shall" could raise is that immediately upon Royal Assent, the government has to have the public appointments commission in place or it will be in violation of the law. Practical machinery items such as money, commissioners, office space, et cetera, are required.
The way we normally do it is that it is a "may" for that reason, to allow the time to actually put those things into place. Alternatively, if it were to be a "shall," one would want the coming into force to be based on a day or days to be fixed by order, as opposed to Royal Assent.
That would be addressed in the following clause 228, which deals with coming into force.
The Chairman: Senator Milne, do you have any response?
Senator Milne: No; the reasoning behind it was that this amendment would compel any government to go forward rather than use its discretion.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: The motion in amendment is carried, on division.
Resuming debate on the main motion.
Senator Milne: I move:
That Bill C-2 be amended in clause 227, on page 176, by replacing line 38 with the following:
"Governor in Council that a person be appointed or reappointed"
The Chairman: Did you say by replacing line 38?
Senator Milne: Yes.
Senator Day: It was passed out to you. It is in a separate document; there were two of them.
Senator Milne: It is one of the extra amendments that you received today. It is not in the package.
This is to address the concerns raised during our study of the bill that no mention was made in the bill of how the reappointment process would proceed. This proposed amendment addresses this omission and will treat the reappointment process in the same manner as the appointment process was originally treated.
Senator Nolin: Maybe the committee already knows, but I am interested to know from Mr. Wild if a person has been appointed to occupy a position and was there for the period allotted by the act, when it comes to the reappointment is it usual to go through the process again?
Mr. Wild: Generally speaking, no. I cannot think of another example, but in most, if not all, of the appointment regimes established in law with respect to the federal government, reappointment does not require going back through the vetting process.
Senator Nolin: In a hypothetical situation — even though I personally refuse to answer hypothetical questions — imagine for a moment that for that person who has been appointed once, a qualifying element has changed. What would happen then?
Mr. Wild: I am not sure I fully understand the hypothetical question. The person is appointed and when you say a qualifying change, what do you mean?
Senator Nolin: A quality that person needs to have, to have that position — let us say that one of these conditions disappears.
Mr. Wild: Reappointment is at the discretion of the Governor-in-Council. If there was a feeling that for some reason someone was no longer qualified to continue in the position after the term had expired and reappointment was an issue, there is no obligation to reappoint under the current proposal.
The Chairman: Is there any other commentary?
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: On division.
The Chairman: Resuming debate on the main motion.
Senator Milne: I move:
That Bill C-2 be amended in clause 227,
(a) on page 176, by replacing lines 40 and 41 with the following:
"consult with the leader in the Senate of each recognized party in that House and the leader in the House of Commons of each recognized party in that House. An announce-"; and
(b) on page 177, by replacing lines 2 and 3 with the following:
"each of the Speakers of the two Houses of Parliament for tabling in their respective Houses."
This brings the Senate into the act in this particular clause. Since under subsection (e) on page 176, a little farther up the page, you will notice that the Senate will be charged with studying the public appointments commission's annual report, then I believe the Senate should be able to provide input into the appointment to this commission.
Senator Nolin: I have no comment, but perhaps Mr. Wild has a follow-up comment on what we discussed yesterday in a similar situation.
Mr. Wild: I do not have much to add on this. It is simply placing the Senate in parity with the role of the House of Commons around the appointment and the announcement related to the appointment.
The Chairman: That is never that bad.
Senator Nolin: That is probably why I refused to comment.
The Chairman: It is not that I am showing my flag.
Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Resuming debate on the main motion.
Senator Milne: I am moving back up that same page. I move:
That Bill C-2 be amended in clause 227, on page 176, by replacing line 32 with the following:
"of public servants and appointees involved in the appointment".
The Chairman: Can you tell us what that refers to?
Senator Milne: That refers to provide public education and training; and I think that the appointee should certainly be trained.
Mr. Wild: I think it may help to be clear about the training that is contemplated under (f). The training under (f) is public education and training regarding the code of practice. The code of practice is in (c), a little further up that page.
The code of practice is for appointments by the Governor-in-Council and ministers. It sets out the steps that are necessary for a fair, open and transparent appointment process, including requirements for appointments and criteria for appointments to be made fully public.
The training in question — and the reason why it is geared in this to public servants involved in the appointment process — is that the training is geared toward those that are actually working through the appointment process for appointees. It is unclear what purpose it would serve to have an appointee go through a training process that is all about the actual appointment process.
The training that is contemplated here is not a broader training around how government works. It is very specific to the code of practice, which are the actual details of how this appointment process will work and how the commission sees that appointment process should work.
The appointee does not play a role in that process. The appointee is the end product that comes out of the process. It is unclear as to the need for the appointee to be involved in training for the appointment process itself.
Senator Ringuette: Paragraph (g) says "to perform any other functions specified by the Governor-in-Council." You must bear in mind that we have heard witnesses who said that appointees to different boards or Governor-in-Council appointees require basic training and education in regards to what will be required from them.
Mr. Wild: I do not dispute that training of that nature may be necessary for appointees or anybody coming into government. The point that I am trying to make is that paragraph (f) is not about that kind of training; it is about training with respect to a code of practice. The code of practice is specifically what is set out in paragraph (c). That code of practice is around the steps necessary to have a fair, open, and transparent appointment process.
Without this amendment, paragraph (g) could be used by the Governor-in-Council to say to the public appointments commission, "Go do training for all the appointees." This amendment would not be necessary to paragraph (g) to be used in that regard. The amendment ties to the education and training for those involved in the appointment process when the appointees themselves are not actually the ones that are the decision makers or playing a role in that appointment process other than the fact that they are the ones that are subject to it.
Senator Milne: They will have to live up to it.
Mr. Wild: I would not say they live up it: They are the end result of it. The process determines whether or not an appointee ends up in the position, or how that appointee will be selected. The appointee does not play a role in the design of the process or in the process itself. The appointee simply follows the steps that are established. The code of practice is about what steps you will establish and what steps you will use to implement the appointment process.
Senator Milne: This change will compel appointees to educate themselves about the process that generated their own appointment, but it is also for further clarification. It will compel Governor-in-Council appointees to educate themselves about the code of practice — that is, about what they must abide by and live up to and they cannot fail in some of the steps that got them there.
Mr. Wild: I want to make sure that everyone has a clear understanding about the code of practice. It is about the appointment process itself and not about the obligations put upon the appointee in terms of performance of their duties. That is not what the code of practice is. It is specific to the appointment process itself and how that appointment process will be conducted.
The Chairman: I think we understand the differences.
Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Senator Nolin: I know you have an amendment on the next page, but before we leave this page, Mr. Wild, I have a question that relates to the French version of the text. Are you familiar with the French version? Do you want to seek some help?
Mr. Patrice, can you look at paragraph (c), referring to the code of practice?
[Translation]
Would it be more practical to add "de pratique" as was recommended to us? I would add the word "de" in order for it to read "code de pratique". I will move this as an amendment at third reading. I wanted to have the opinion of the drafters in order to determine if they would have any objection as to this type of change being made.
Mr. Patrice: It is a good question. We understand that the literal translation of "code of practice" would be "code de pratique".
Senator Nolin: "Pratique" is more of an attribute than a noun.
Mr. Patrice: To my mind, a "code de pratique" would be more like a guide for the functioning of the process. It is practical and we will draft a common language document to explain very simply the way the process works.
[English]
Mr. Wild: That is the code of practice. That is what it is meant to be. It is meant to be a code about the actual process.
Mr. Patrice: In that sense, you would say "practical code." If you want to put it to that level —
[Translation]
I would not want my judgment to override that of the jurilinguists who have certainly studied the bill.
Senator Nolin: This is why I asked the question right away rather than waiting for third reading and being told that that is the way people wanted it to read.
[English]
Do you understand that problem? The word "pratique" is an adjective and it should be a noun.
Mr. Wild: Yes.
Senator Day: It is like a practical code.
Senator Nolin: Substantively, yes.
Mr. Patrice: In English it would be more a practical manual or practical code.
[Translation]
What I was suggesting to you, senator, if you are putting the question, is that we could consult our respective jurilinguists and provide you with an answer through the Chairman.
Senator Nolin: We will have the opportunity to move an amendment at third reading. I do not wish to let that opportunity pass.
Mr. Patrice: We have taken note of this, senator.
[English]
The Chairman: I thank you for that intervention. We will now resume debate on the main motion.
Senator Milne: The same wording appears in paragraphs (d) and (e). It is in five places in that same section.
Senator Joyal: Yes, and subparagraph (4) on the following place. There are five places with the same wording.
Senator Milne: In clause 227 on page 177, I move:
That Bill C-2 be amended in clause 227, on page 177, by replacing line 5 with the following:
"during good behaviour for a term of seven years".
I am moving that we extend the period of time from five years to seven years because precedents have been set with other officers of Parliament whose terms are for seven years. Frankly, this acknowledges the time it will take this poor guy to learn the various appointment processes for the various agencies, boards and commissions. This expanded time, I believe, will give Canadians a more effective commissioner.
Senator Nolin: Mr. Wild, if we appoint a lady, would it be different?
Senator Ringuette: It would be appropriate.
Senator Milne: She would learn faster.
Mr. Wild: To make sure there is clarity, the honourable senator had mentioned about the terms of offices for officers, agents of Parliament. This is not one of those entities. That said, five years or seven years; I do not think the government has a particular position on it.
The one thing to consider from a technical perspective is, instead of saying "for a term of seven years," perhaps say "for a term up to seven years."
This is a commission with five members appointed to it. If you say a term of seven years, that is a fixed term; it can be no other number. You will have a complete rollover potentially every time and there is no method for staggering the term of appointment to allow for corporate knowledge to be built up and proper transference of that knowledge through time. I hope I am not overstepping my bounds, but I suggest in a friendly way, to assist the committee, that "up to" would not be a problem from the government's perspective in terms of allowing for that rollover of corporate knowledge.
Senator Day: I think Mr. Wild was being a friend of the committee on that comment and not a close personal friend of the committee.
Senator Joyal: I have lived through appointments that leave to the Governor-in-Council the possibility to appoint someone for three years, another for five years, and so on. I think there must be stability in that commission. That is one of the key elements in maintaining its credibility. Besides, as you said, if corporate memory should remain within the commission, we have provided for reappointment. In other words, depending on the composition of the commission — and we all hope that the commission will reflect some kind of a gender parity or sensitivity to diversity in Canada — it is important, as you said, that there be corporate memory but also that there be the capacity to assume some kind of renewal within the membership.
I do not see such a commission being composed of someone who would be appointed for three years because it gives the opportunity to the Prime Minister to make appointments.
The principle here is essentially the principle that is followed in the Public Service Commission of Canada. What they want to assume, as stated on page 176 of the bill at line 4, is "that appointments are based on merit." If we want to maintain the credibility of the merit principle being implemented, there has to be stability in that commission. That is why subsection (3) says "of five years." If we say "up to five years," then it means that one could be appointed for two, three, four, five years, and one could play with the rollover of the commission. As soon as you introduce that into the membership of the commission, you change the dynamic and you change the credibility of the commission.
I would personally much prefer to remain with a fixed term and ensure that it offers the possibility of reappointment. I support the reappointment principle because it allows the passing of information gained through the experience and expertise that the commission would develop.
Mr. Wild: I understand the concern that the honourable senator is raising. Given the length of a seven-year term and then reappointment for another seven-year term, it is tricky to predict whether many people will even be interested in reappointment. If there is a concern that the government would use that discretion inappropriately, it is certainly open to the committee to suggest a minimum, as well as a maximum. That would give flexibility between five and seven years to allow for an appropriate staggering.
I do not want to belabour the point. It is merely a suggestion. I leave it in your hands.
The Chairman: A final word to Senator Milne, please, before I put the question.
Senator Milne: I take your point, Mr. Wild, about "adding up to," but I think that very shortly you would find that the terms no longer coincide. Someone gets sick, someone resigns or someone dies. There will be, very quickly, a natural staggering of the turnover.
I stand by my amendment.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Honourable senators, shall clause 227, as amended, carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chairman: Clause 227, as amended, shall carry, on division.
Shall clause 228 carry?
Senator Joyal: I have something in front of me. It says "clause 228, page 177." I do not know if you have it. It has been circulated. I am upstaging my colleagues and close personal friends.
[Translation]
Senator Nolin: I am the one who is going to present it. I wish to move the following amendment:
That Bill C-2, in Clause 228, be amended by replacing line 28 on page 177 with the following:
"sections 183, 184, 186 to 193 and 227 of this Act."
[English]
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 228, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 229 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 230 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 231 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 232 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 233 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 234 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 235 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 236 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 237 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 238 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 239 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 240 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 241 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 242 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 243 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 244 carry?
Senator Nolin, have you an amendment?
[Translation]
Senator Nolin: I move the following amendment: addition of two clauses.
That Bill C-2 be amended by adding after line 30 on page 181 the following:
"Canadian Tourism Commission Act
244.1 Subsection 14(4) of the Canadian Tourism Commission Act is replaced by the following:
(4) The directors appointed under subsection (1) hold office during pleasure on a part-time basis for a term not exceeding four years.
244.2 Subsection 12(3) of the Act is replaced by the following:
(3) The directors appointed under subsection (1) hold office during pleasure on a part-time basis for a term not exceeding four years."
[English]
Senator Day: We have had an opportunity to review this proposed government amendment and are prepared to support it.
The Chairman: Honourable senators, it is moved by the Honourable Senator Nolin that Bill C-2 be modified by adding after clause 244, new clauses 244.1 and 244.2.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 245 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 246 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 247 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 248 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 249 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 250 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 251 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 252 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 253 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 254 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 255 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 256 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 257 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 258 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 259 carry?
[Translation]
Senator Nolin: Mr. Chairman, dear colleagues, I move:
That Bill C-2, in Clause 259, be amended by adding after line 12 on page 187 the following:
16.21 (1) A person who does not occupy a position in the federal public administration but who meets the qualifications established by directive of the Treasury Board may be appointed to an audit committee by the Treasury Board on the recommendation of the President of the Treasury Board.
(2) A member of an audit committee so appointed holds office during pleasure for a term not exceeding four years, which may be renewed for a second term.
(3) A member of an audit committee so appointed shall be paid the remuneration and expenses fixed by the Treasury Board.
[English]
The Chairman: Can you give us an explanation, please?
Senator Nolin: This motion is in order to provide Treasury Board with the authority to appoint external members of departmental audit committees.
Senator Day: Could I ask Mr. Wild to give us some more in-depth explanation on the reason why?
Mr. Wild: The current proposed section 16.2 on page 187 of Bill C-2 creates a requirement for deputies or chief executives of departments to establish an audit committee for their department. The provision also references that the establishment of those committees would be subject to the directives issued by the Treasury Board under the Treasury Board's policy function that it has with respect to internal audit.
The amendment tries to bridge together this statutory requirement plus detail that is contained in the internal audit policy that was issued by the Treasury Board last year. That policy requires departments to move gradually, through a stepped in system over time, to have audit committees on which the majority of the members are external to the government, not public servants.
In order to have people who are not public servants sit on those audit committees there needs to be a mechanism to appoint them to the audit committee, to provide for their remuneration, and so on.
The policy currently drafted contemplates that the deputy of the department along with the Comptroller General would jointly recommend to the Treasury Board the individual who should sit on that external audit committee. That appointment would, again in accordance with the policy, have to meet certain qualifications that are set by Treasury Board policy, so the person has to meet a certain minimum qualification. The person is investigated through that process, and the Comptroller General is there to ensure that he or she meets those qualifications before being appointed to the audit committee of the department. This amendment merely provides the legal authority necessary for Treasury Board to make that appointment.
Senator Day: We thank Mr. Wild for that explanation, and we thank the government for introducing the substantive and important amendment. Some of my colleagues may wish to comment on it but I would like to say that I wholly endorse the idea of external non-public servants on audit committees. That idea is reflected in a number of places here and I think it is reflective of what has been happening in the private sector. It is a very worthwhile initiative.
Senator Ringuette: I understand and I certainly agree also with department audit committees. However, if in this bill we are putting together an entire new scheme for public appointments, which is the public nominations commission, why would we make a change here to allow the President of the Treasury Board to make those public appointments? The amendment refers to a person who does not occupy a position in the federal public administration, so we are talking about the public sector. Why would we accept this amendment while one of the major thrusts of Bill C-2 is to put together a public appointments commission?
Mr. Wild: It may be helpful to clarify the role of the public appointments commission. The public appointments commission is not an appointment body. It will not be making appointments. Rather, it oversees appointments being made by ministers and the Governor-in-Council. It is certainly contemplated that in making these appointments there would be discussion with the public appointments commission to ensure that these appointments also meet the code of practice that they are establishing.
The public appointments commission is not an appointment authority. It oversees the appointment authority being exercised by the Governor-in-Council and ministers.
Senator Ringuette: Will they oversee this one?
Mr. Wild: The link, in terms of overseeing this one, is not as strong as it is for Governor-in-Council and ministerial appointments. It is clear and specific in the public appointments commission mandate that it is attaching itself to those two bodies exercising appointment and authority in terms of oversight. Treasury Board is not mentioned.
From a legal perspective, whether or not the public appointments commission would have mandate to oversee these Treasury Board appointments in the same way it does other Governor-in-Council and ministerial appointments is a valid question to be asked.
The Comptroller General, in working through the internal audit policy and in working through the qualifications that he is establishing, has been working with the public servants now in place around the public appointments commission to ensure that this process will meet their criteria. However, there is no link in the law that directly connects this appointment back to the public appointments commission oversight.
Senator Ringuette: All the other appointment processes at which we are looking are department by department. Now you are talking about the Treasury Board appointing people to the different departments. There is quite a difference there.
Mr. Wild: There are appointments to audit committees that will service the various departments. I want to be careful because for me it means something a bit different to say that they are appointed to the department. They are not appointed to the department. They will be appointed to function on the audit committee.
In terms of the actual oversight function, that is why it is a joint recommendation. In order to get to the Treasury Board under the policies, it is a joint recommendation by the deputy and the Comptroller General. The Comptroller General puts himself in the position of overseeing and ensuring, granted it is through policy, that these appointments will meet the qualifications and specifications necessary to be effective members on audit committees. It is the Comptroller General who is placing himself and his position as Comptroller General of Canada to oversee this mechanism.
Senator Milne: Mr. Wild, do you think the purpose behind this amendment is to ensure that departments do not audit themselves, that there is some outside input so that the departments are not in the position of auditing themselves, which may raise questions again in the public mind?
Mr. Wild: The amendment itself is merely about an appointment authority. The objective, with respect to audit committees and having external members on those audit committees, is really driven through the policy and the legislative requirement to create the audit committee. It is very much about trying to make sure that there is an audit function occurring within the department that has sufficient independence from management that it is not coloured or biased by management.
Senator Milne: Exactly.
Senator Nolin: Mr. Wild, do I understand that when we look at the function of the commission in the new clause 227, creating the public appointment commission, (b) will apply to that? To appoint those officers, will they oversee, evaluate and approve the processes?
Mr. Wild: The mandate of the public appointments commission as it is currently drafted in the bill is to oversee, monitor, review and report on the selection process for appointments and reappointments by the Governor-in-Council, and then there is later scope under (b) to evaluate and improve the selection processes proposed by ministers.
Senator Nolin: Is the board between (a) and (b)?
Mr. Wild: That is the thing. Neither of those necessarily hits the board on the head, so to speak. Again, the oversight that is currently contemplated for these appointments is contemplated under the internal audit policy, and it is the Comptroller General who is providing that oversight to ensure that these appointments meet the necessary qualifications. It is true that this is not fitting under the public appointments commission explicitly. The public appointments commission may play a role in assisting the Comptroller General in playing his role, but that will be informal. That is not something that is required by law. That is the point I am trying to make.
Senator Nolin: The famous "code de pratique" could apply. I hope the answer is yes.
The Chairman: Thank you.
Senator Nolin: He is nodding, so he is saying yes.
Mr. Wild: Yes, it could.
Senator Joyal: When I read the English version of the proposed text, it says "Governor in Council appointees" in the margin.
Mr. Wild: The marginal note is in error.
Senator Joyal: It is an error?
Mr. Wild: The marginal note is in error.
Senator Joyal: We have an answer. We can change this.
I am not sure that the interpretation of section 227 that you gave to Senator Nolin is correct. The appointments commission has various mandates. The first mandate is "to oversee, monitor, review and report on the selection process for appointments and reappointments by the Governor in Council to agencies, boards, commissions and Crown corporations..." The first group that the public appointments commission oversees is the agencies, boards, commissions and Crown corporations. The commission evaluates and approves "the selection processes proposed by ministers to fill vacancies and determine reappointments within their portfolios, monitor and reviews these processes and ensures that they are implemented as approved, giving special attention to any instances in which ministers make appointments that are inconsistent with the recommendation of the appointment panels."
The second field of responsibility of the public appointments commission is, to my reading of (b), ministerial appointments within their portfolio. That is the second field. Then they have practical responsibilities, which fall the code and so on. To me, they have two branches of responsibility: The agencies, boards, commission, Crown corporations, and then ministerial appointments. When I read 16.21, I see that the President of the Treasury Board receives the power to appoint persons to audit committees within the federal service. It seems that there is a link between 16.1 and paragraph (b) of the appointments commission, unless I am mistaken in my interpretation.
Mr. Wild: There are two points. First, in terms of agencies, boards, commissions and Crown corporations, it is only Governor-in-Council appointments with respect to those agencies that are under the mandate of the public appointments commission.
To go back to 16.21(1), the appointment is by the Treasury Board on the recommendation of the President of the Treasury Board. It is actually an appointment by the Treasury Board; it is not an appointment by the minister. The minister is merely making the recommendation. Treasury Board is a committee of the cabinet, so it is not the Governor-in-Council and it is not a minister.
Senator Day: It is on the recommendation of Mr. Baird.
Mr. Wild: A recommendation is not an appointment. There are ministerial appointments that are direct appointments by ministers.
Senator Ringuette: Is Treasury Board not part of the Governor-in-Council?
Mr. Wild: No, there is a distinction between the Governor-in-Council and Treasury Board. They are not the same thing.
Senator Joyal: I understand that.
Mr. Wild: Where you could possibly come in would be if, under (g), an Order-in-Council were issued to give the public appointments commission jurisdiction to oversee, but that requires the executive order through the Governor- in-Council. That could happen. There is the potential of a linkage made between the public appointments commission and this. At the moment, the way it is working through the policy is the Comptroller General would be overseeing this process to ensure that it is merit based.
Senator Joyal: It seems to me that the logic would want that practice of hiring outside the service, but for people who perform for four years within the service, they would review, evaluate and approve the selection process. That is the spirit, if you want, of the new public appointments commission. It is not that we do not trust the committee of the Treasury Board, which is normally formed by three ministers of the cabinet, but I think that it falls within the spirit of (b) that the process of an appointment by a minister would be reviewed. It does not change or remove the ability of the minister to choose whoever he or she wants to choose, but at least the process would have been reviewed by the public appointments commission. That seems to me to be the spirit of the intention here.
Senator Nolin: If I may, Mr. Chairman, I think we are in a very interesting area of an uncharted zone. We can ask Mr. Wild and Ms. Tapley to consult with their colleagues. Perhaps we can have ten minutes to look into this. If I follow Senator Joyal's reasoning, I would be inclined to say it is more of an (a) than a (b), because it is a committee of the cabinet. It does not exist.
The Chairman: Honourable senators, we will suspend for 10 minutes.
The committee suspended.
The committee resumed.
The Chairman: Are you ready to proceed, Senator Day?
Senator Day: We had an opportunity to discuss this matter during the break, and I think we have broken the logjam.
I move a subamendment to subsection 16.21(1) in the proposed motion that is before us. I move that "Treasury Board" be replaced with "Governor in Council." That subsection would then read: "...may be appointed to an audit committee by the Governor in Council on the recommendation of the President of the Treasury Board."
The second subamendment is in subsection 16.21(3). I move that "Treasury Board" be replaced with "Governor in Council."
In effect, that brings us under (a) of the clause that we were talking about earlier — the overseeing by (a) — and it also, coincidentally, makes the marginal note correct again.
Senator Nolin: I have not read the marginal notes, but now I will read them. They were correct in French; now we will have to correct them. The English version of the marginal notes were not okay, but now they are.
Senator Day: That is right.
The Chairman: The Honourable Senator Day moves a subamendment in the form of 16.21(1). "A person who does not occupy" — shall I dispense?
Hon. Senators: Dispense.
The Chairman: Is it your pleasure, honourable senators, to adopt the subamendment?
Hon. Senators: Agreed.
The Chairman: Resuming debate on the amendment. Is there any further debate on the amendment, as amended?
Senator Nolin: Do you want me to read the marginal notes again because I have not read them in the first place?
The Chairman: No. We cannot modify a marginal note.
We are now voting on the amendment, as amended, of the Honourable Senator Nolin.
Shall the amendment, as amended, carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 259 carry, as amended?
Hon. Senators: Agreed.
The Chairman: Clause 259 is carried, as amended.
Shall clause 260 carry?
Hon. Senators: Agreed.
The Chairman: Honourable senators, we are at clause 260 now. The next place where there is an amendment is at clause 306. With the unanimous consent of every member of the committee, we could bulk them together and do them all.
Senator Day: I will thumb through here while you are being briefed.
The Chairman: Honourable senators, shall clauses 260 to 305 inclusive carry?
Hon. Senators: Agreed.
The Chairman: With the leave — and we have leave, I presume honourable senators?
Hon. Senators: Agreed.
The Chairman: Clauses 260 to 305 are therefore carried.
Senator Day: We are now into another subject matter of procurement auditor. Senator Cowan will be presenting some amendments in that regard.
The Chairman: Honourable senators, shall clause 306 carry?
Some Hon. Senators: No.
Senator Day: We have three amendments.
Senator Cowan: There is a package of procurement auditor amendments. Does everyone have that? They were circulated yesterday, I think.
On page 203, I move:
That Bill C-2 be amended in clause 306, on page 203, by replacing line 4 with the following:
"22.1(1) The Governor in Council shall".
We believe the government wants to do this and, therefore, they should do it.
The Chairman: The "shall" is replacing "may."
Senator Cowan: We have heard the discussion before about the practice.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Resuming debate on the main motion.
Senator Cowan: I move:
That Bill C-2 be amended in clause 306, on page 204, by replacing line 22 with the following:
"(4) The Procurement Auditor may re-".
The current wording says that the procurement auditor may not recommend the cancellation of the contract to which the complaint relates. We feel it is appropriate that the procurement auditor have the power not to cancel a contract but to recommend the cancellation of the contract.
The Chairman: Could I ask Mr. Wild if there are any unintended consequences from that?
Mr. Wild: It is a shift from the policy intention of the government. The rationale behind the government's policy intention is that these are the contracts that the procurement auditor would be examining or receiving complaints on, or contracts under the thresholds of the international trade tribunal — under $25,000 for goods and under $100,000 for services. There is a high volume of contracts under those values. I believe somewhere in the vicinity of 750,000 contracts fall under that nature. It could be disruptive to the procurement process if every time a decision was made a complainant came forward to suggest that he had been biased against or not given a fair shake in the process.
I understand that "may recommend the cancellation of contracts" does not give the procurement auditor the authority to cancel the contract. However, it leaves uncertainty as to the purpose of the recommendation. If the contract has gone on, the work is completed and the money is owed, what effect does a recommendation have? It has none on the legal validity of the contract, so it sits there. It is unclear from the government's perspective as to what the purpose would be behind procurement auditor's making a recommendation to actually cancel a contract.
Senator Cowan: If the contract has already been completed, then there is not much point in making a recommendation that it be cancelled. However, there might be a circumstance where a contract has been entered into or is proposed to be entered into but has not been completed or fulfilled, and there is some irregularity that would justify the procurement auditor's making the recommendation. The government may or may not act on the recommendation, but the auditor would make a recommendation. It seemed odd to us that this layer of supervision and scrutiny would be established and the auditor put in place but he or she would not have the power to recommend cancellation if cancellation was appropriate. If the contract was completed, there would not be much point in making a recommendation. There is no requirement that this auditor audit personally, through his office, 750,000 contracts. An auditor does not do that in any circumstance.
Senator Ringuette: He is just a complaint mechanism.
Mr. Wild: Nor was I trying to suggest that. I was merely providing an idea of the magnitude of business that is actually done under those thresholds. The mandate of the procurement auditor is to ensure that the department has appropriate procedures and practices in place and to provide a mechanism independent from the departmental officials for contractors to bring forward issues they may be having with respect to the administration of their contracts or a contracting process under those thresholds.
Senator Joyal: It would be quite odd that the procurement auditor could make any recommendation but cancellation. Proposed subsection 22.2(3) says, "and the minister, with the procurement auditor's findings and any recommendation." That is the line before the line we have been talking about. He can, therefore, make any kind of recommendation. For example, he could recommend payment of damages but he could not recommend cancelling the contract. That is a contradiction. He could review, in his analysis of the findings, all the proper conclusions that you would draw from something improper that has been found in his investigation but he could not recommend a cancellation. He could recommend that the company or persons be awarded damages. There is something wrong with allowing recommendation but no cancellation. Sometimes he will conclude not only that the contract be cancelled but also that the person be compensated. There is an illogical element in the overall capacity to recommend that does not include authority to cancel, while he could recommend the remedy following the cancellation.
I prefer to say "may recommend the cancellation of the contract" or just delete proposed subsection 22.2 (4) and leave it like that.
The Chairman: The amendment to delete is not before us now.
Honourable senators, is it your pleasure that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 306 carry?
Senator Cowan: We reviewed this clause and looked at the plethora of new functions, organizations and offices that are being created by this act. Therefore, between this plethora and the fact that there are other audit functions referred to elsewhere in the act, we think that the best description of this officer is a "procurement ombudsman." With that in mind, I move:
That Bill C-2 be amended in clause 306, on pages 203 and 204, by replacing the expression "Procurement Auditor" with the expression "Procurement Ombudsman" wherever it occurs, with such modifications as the circumstances require.
The Chairman: Did Senator Campbell give you any assistance?
Senator Cowan: I do not recall that this particular point is his but I am sure he agrees.
Senator Andreychuk: From a personal point of view, I put my objection to the word "ombudsman" in this category. The whole concept of ombudsman started in Sweden many years ago and was used for different purposes, although I do not presume to tell you all about that. I have been interested particularly in studying and supporting that area. I support the development of ombudsmen but this would not been an appropriate use of the term. At this late hour, if I feel strongly, perhaps I can address it at third reading in the Senate.
The Chairman: Honourable senators, is it your pleasure that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 306, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 307 carry?
Some Hon. Senators: No.
Senator Cowan: I move:
That Bill C-2 be amended in clause 307, on page 204, by replacing lines 41 to 43 with the following:
"in subsection 22.1(3);"
The effect of the amendment is to delete the words including the departments in respect of which those duties and functions shall not be performed."
It is our view that the Governor-in-Council can make regulations, or ought to make regulations, respecting the performance of the duties and functions of the procurement ombudsman but ought not to direct that person to not perform functions in relation to any particular departments.
Senator Andreychuk: Perhaps Mr. Wild could refresh my memory.
In the drafting, if those words were taken out, it would give a broad ability to perform duties and functions, and regulate those. What was the reason for putting in "including the departments in respect of." Are they automatically excluded?
Mr. Wild: As I understand it, the intent of those words is so that it is possible to exclude certain departments from the auditor's or ombudsman's review and, in particular, where the kind of contracting would involve national security. Unless this person has a specific kind of security clearance, there would be an issue as to whether this particular person would be involved in reviewing contracting related to national security. As far as I understand, that is the intent behind those regulations: to be able to deal with national security concerns.
Senator Andreychuk: It would provide more flexibility.
Mr. Wild: That flexibility would allow you to "out" certain departments or aspects of the contracting within that department where there might be a concern as to whether it is appropriate to have this particular individual overseeing what is going on.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Shall clause 307 carry?
Senator Cowan: I have two consequential amendments. I move:
That Bill C-2 be amended in clause 307,
(a) on page 204, by replacing line 40 with the following:
"tions of the Procurement Ombudsman referred to"; and
(b) on page 205, by replacing line 7 with the following:
"Procurement Ombudsman may make in response".
These are consequential to the amendment so enthusiastically received a moment ago.
The Chairman: Is it your pleasure, honourable senators, that the motion in amendment carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 307, as amended, carry?
Some Hon. Senators: On division.
Some Hon. Senators: Agreed.
The Chairman: Carried, on division.
Shall clause 308 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 309 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 310 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 311 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 312 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 313 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 314 carry?
Hon. Senators: Agreed.
The Chairman: Shall the schedule carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 1, the short title, carry?
Senator Day: Before we go back to the front and pass all these clauses, I want to let honourable senators know that I would speak on the issue of observations. Can you tell me the appropriate time for me to speak on that issue?
The Chairman: My instruction is that we should carry the short title and the title, pass the bill, and then deal with observations.
Senator Day: Would you make a modification on that — if we do the title and then before we adopt the bill, we could have a discussion on the other?
The Chairman: Agreed.
Senator Stratton: Is there a reason for that? That is unusual.
Senator Day: I do not consider it unusual. I would like to discuss with the committee the observations and make some comments in that regard. They are available, they just arrived. We will talk about that once I start making my presentation with respect to the observations. Without an agreement with respect to the observations, we cannot agree on adopting the bill.
Senator Andreychuk: It is unusual. We have to determine what we, as a committee — not a particular part of the committee — wish to do.
We have gone through the bill. We have gone to the amendments and we either adopt the bill, reject the bill or amend the bill.
Senator Day: Adopt the bill with observations.
Senator Andreychuk: When we get to the reporting portion, we determine whether we are going to attach observations. I would hope we would be given an opportunity to determine whether we, as a committee, wish to have observations, and discuss the appropriateness of observations, which would be after we have completed the bill.
To preclude that is, I am sure, outside our rules but also highly unusual. I cannot agree to be talking about observations when I have not even agreed that there should be observations.
I know I am in a minority position in this Senate with my colleagues. If you want to exercise your prerogative as a majority, I know what the consequences will be to me. However, I would hope that you would respect the rules of the committee, follow them, and take this to its logical conclusion.
Senator Day: The committee determines its own rules. That is why I asked this question now — I guess we are going into this discussion at this stage, Mr. Chairman. My point was simply that for us to adopt the bill without having a determination that there will be observations, it could be taken that we are adopting the bill without observations. Therefore, I think it is important that we have that established agreement.
Senator Prud'homme: I have been through this before in another committee. I admire the work you have done so I will not keep you because I am not a member of the committee.
I would have thought that the chair could solve it in the following way: Is the bill adopted? Yes or no. Once this is completed, I think you have another motion, which is: Shall I report the bill? It is, in my view, at that time that Senator Day could refuse and says no, you will not report the bill unless you accept a minority report or observation or something of that kind. He has two options. I just want to share what I went through in a previous committee.
The Chairman: Senator Prud'homme is correct. That is the standard procedure.
Senator Day: I defer to the wisdom of my good friend, Senator Prud'homme. I appreciate your help.
The Chairman: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Shall the bill carry as amended?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chairman: Carried, on division.
Senator Day: Is this the appropriate time, Mr. Chairman?
The Chairman: Not quite yet.
Shall I report the bill to the Senate, as amended?
Now is the proper time.
Senator Day: Mr. Chairman, thank you for recognizing me.
Before I go into my presentation, I have been asked by the Senate counsel if he could leave. We will not need his counsel with respect to this. I believe Mr. Wild said he may wish to stay. Would the committee agree that Mr. Patrice can leave?
The Chairman: Yes, it is agreed.
Mr. Patrice, on behalf of the committee, I would like to say thank you very much for the long hours, and the extensive and excellent work you have done to assist the committee on a difficult piece of work. It is much appreciated.
Mr. Patrice: Thank you, Mr. Chairman, and members of the committee.
Mr. Wild: There is no need for me to continue at the table. I will probably take a seat in the audience to listen to the senators. I do not need to be on camera anymore.
The Chairman: Senator Day, I understand that certain papers called "observations" have arrived. Do we have your permission to circulate them to everyone at this time?
Senator Day: Absolutely.
Senator Baker: I wonder if, for the record, we could also thank Mr. Wild and his staff. I think he has done a marvellous job over the entire period of time.
The Chairman: Mr. Wild, the clapping and the applause speaks for itself. Thank you both very much.
Senator Day: It is getting awfully lonely down here, Mr. Chairman.
Senator Stratton: I have to ask a simple question. How many trees have you people killed as we have gone through this proposed legislation? There over 100 amendments and these are your observations.
The Chairman: Senator Day, there are certain members who have never seen this document before now. It would be useful if we could have some time to read it. Before doing so, could you give us an overview, as well as an outline of what you had intended in tabling these with us at this time?
Senator Day: Thank you very much, Mr. Chairman.
Honourable senators, the approach that we in the opposition have taken in the committee in relation to this particular matter is one of cooperation with the government.
We met after Parliament adjourned in June. We met again for two weeks when Parliament was not sitting in September; and then we met, as honourable senators will know, on several dates. We had extended times, including these last two days, to help meet a very tight schedule, recognizing the importance of this legislation to the current government.
Having said that, Mr. Chairman, there were times when we were not able to meet the time demands in determining whether we should make an amendment or not make an amendment. As I pointed out to the President of the Treasury Board when he appeared two days ago, in our observations we want him to understand that these are serious observations where, given different circumstances, we might well have proposed further amendments to the legislation.
There was another impediment to filing amendments, which is that in certain portions of acts referred to — and there are probably nearly 100 acts referred to in Bill C-2 — we received very compelling evidence, but perhaps one of these statutes was not opened up enough to incorporate some of those comments.
We prepared some serious observations in this report, which we would like to see attached to the bill when we report it back and have you report it back to the chamber. We wish them to be taken as serious observations — points that should be dealt with by the government and perhaps by the Senate chamber in due course.
That is the overview. That is why it is as lengthy as it is.
The fact that the government came forward with nearly 50 amendments of its own is an indication of the hard work that we have all done. We are not criticizing the government — in fact, we are complimenting the government for having done so.
That is my overview, Mr. Chairman.
The Chairman: Thank you, Senator Day.
You have handed us a document of some 59 pages. I have not had a chance to read one word of it. You are asking us to have this 59-page document attached to the report when it goes to the Senate tomorrow. I would like to ask you this: Are you saying to us as a committee that it has been impossible for you to have even given us half of this document before this time so we could have read it rather than at this very last moment, at ten minutes to six the night before we are to report? What is the reason why this is suddenly thrust upon us — a 60-page document for us to read and approve, with no notice of the contents before now? Is there not a way where there could have been a bit of cooperation to assist honourable senators on the other side to be able to participate meaningfully on a debate on these observations?
Senator Day: Mr. Chairman, that would have worked beautifully if we had had about a week to 10 days following the last witnesses for us to get together on our amendments and our observations. Unfortunately, we had one day. In that one day we had to prepare, number one in priority, all of our amendments. As you know, until the minister appeared two days ago, we had no cooperation with respect to drafting. We had a group of two —
The Chairman: There was some assistance in drafting.
Senator Day: Not until two days ago. We had to do that work ourselves. The first priority is always the amendments. The second priority was to comment on those items that we felt strongly about that we could not incorporate in amendments.
The Chairman: I would like to call on Senator Andreychuk.
Senator Andreychuk: I want a point of information. Perhaps someone who has been around longer can tell me. As we work through a bill and question witnesses and discuss with each other and debate with each other, we often say, perhaps if this does not come as an amendment we should give our advice either to the chamber or to the government. So we want observations.
Certainly 10 to 15 years ago, observations were very sparingly used. They would be directed at some comment. More recently, we have added more and more observations, I think for positive reasons. It has always occurred to me that it is at the end. Even if we disagree with amendments, the observations are generally what we, as a committee feel, think and suggest. In my time, I can only think of one time where a document has come forward and been presented not only in its length but in scanning the first little bit in the way this is critiquing policy, critiquing the government and making observations.
Senator Baker: When was that? Which report are you talking about? You said there was another instance. I am wondering what instance that was.
Senator Andreychuk: No; I am sorry. Let me finish. This report seems to go a lot further.
In the other instance, in the Standing Senate Committee on Legal and Constitutional Affairs, one particular member did not want to thwart the majority. I think we were unanimous but for this member, and he signalled his differences with us very early in the review of the bill and came to the Senate and put forward his opposing point of view. I believe I can just say it is the gambling one, if Senator Milne is looking at me and remembers it. I thought it was done with a lot of respect for the collective group.
I want to read it. I would like to know whether this is your report, because I have often come with observations on my own or others have come and then we ask the clerk to put them together as the report. This seems to be a report. Is it your report? Is it yours, plus someone else's? Could I know whose report this is?
Senator Day: Mr. Chairman, I would be pleased to rely to that. This is a report that I have moved that this committee adopt as a report to be attached to Bill C-2.
The Chairman: We cannot accept that until we have each had an opportunity to read it. It is a 60-page report that has just been given to us and I have not read one word of it yet.
Senator Day: I am in your hands in that regard.
The Chairman: Honourable senators, we will have to suspend while we have time to read this report.
Senator Stratton: If I may make a few observations, fundamentally, you have had time. We started this in June; we finished section by section. You could have had your observations written on each section as you went through this and modified them slightly at the end, of course, but you had the time. We have sat for over 122 days now; in a span of 122 days.
Senator Day: There you go.
Senator Stratton: I look at that and say that there was time; you cannot deny that part.
The second part is that I take umbrage with the reference made of me on page 29.
The Chairman: Senator Stratton, I have not read the report.
Senator Stratton: I do not know whether that is in context or out of context. It is like quoting Pierre Elliott Trudeau: Why should I sell your wheat? It is the same thing here. I object to that being there. That is just one observation. I will get back to you with the balance.
The Chairman: Honourable senators, before we suspend, I do not mean to put him on the spot, but there is one senator around this table with more experience than any of the rest of us and it is Honourable Senator Prud'homme. Senator Prud'homme, do you have anything to help us understand the procedures that are now before us?
Senator Prud'homme: I do, but I do not want to be killed by everyone if I input my views. I have not been a member of the committee. You are asking me not an opinion but strictly about procedure.
The Chairman: Yes, procedure.
Senator Prud'homme: I will watch the staff that are very able and then give you my opinion, because I have been asked to do so; otherwise, I would have kept silent.
For example, as chairman of the Foreign Affairs and National Defence Committee, I was the first one to allow a minority report within the report. I used as educational tools what happened in the Supreme Court. As you know, in order to understand the feeling of the law at the Supreme Court, you have the majority report and annexed to it you have the minority report. Any scholar who wants to know what happened there will read both sides. I said, "That is not the rule, it is not the custom, but I will allow the minority report." Here it could happen that what I call a minority report will happen to be a bill with a majority report of disagreement with the minority. It is for you to decide which one you want.
There would be nothing wrong in adding to your report whatever minority report you can find. Is it a minority report of the Honourable Senator Day or is it by a group of senators, the views of a senator who disagrees over the period of your discussion? Having been asked, yes, I think it could be added to a report. You have the bill and now you have the dilemma of deciding. The bill was passed but I do not have authority to report it. That is not in my hands. This is strictly for you to decide, not for me.
Yes, as disagreeable or agreeable that we may find the process, this could easily be added to the report of the bill, with views expressed by — it could be signed by one. You can allow yourself to say "with minority report" or, if everyone in the majority here feels like Senator Day, it can be attached to the bill.
Am I clear? It has been done in the House of Commons; in the Senate, I have not enough experience, but it has been done.
Senator Andreychuk: You were chair of a committee on the House of Commons side.
The Chairman: Senator Prud'homme, I deeply appreciate those words.
Honourable senators, before I ask that we suspend for an hour, I wish to refer honourable senators to the Rules of the Senate of Canada, rule 96 (1), which states:
96. (1) A question before a select committee shall be decided by a majority vote including the vote of the chairman. When the votes are equal, the decision shall be deemed to be in the negative.
(2) A report of any select committee shall contain the conclusions agreed to by the majority.
The next clause is not relevant. It states that "A motion made in any select committee shall not require a seconder."
Honourable senators, I now suspend for an hour while we have an opportunity to read the report.
The committee suspended.
The committee resumed.
The Chairman: Honourable senators, I call the meeting back to order. Before we suspended, a motion had been made by Senator Day that the committee adopt the observations to be appended to the report. I said that I had not had a chance to read the 60-page report, and leave was given for those senators who had not reviewed the report to read it.
I have had a chance to skim-read the report, and I looked at page 13, the second paragraph of which states:
Your committee finds this attempt by the "New Government of Canada" to muzzle Members of Parliament in order to prevent them from discussing with anyone information received from ordinary Canadians about possible wrongdoing by Members of Cabinet and other senior public office holders to be offensive in the extreme.
That is not language that I can agree with, and I, for one, would not agree with these draft observations. I would like to ask other members their views.
Senator Andreychuk: I have read it quickly twice, and I must say that, in all my years in the Senate, I am shocked and appalled both by the language and the content.
It is unprecedented that we are facing a 59-page observation on a bill that the opposition has substantially changed, and I need to reflect on what that means. However, it is the language and it is the tone. It is not within what I have ever seen in a Senate report. It is partisan; it is political; and, unfortunately, it is argumentative rather than facilitating, as observation reports should be.
Honourable senators, we do not set policy. We look at laws and bills, and we respect governments of all stripes in their policy initiatives and directions. This report clearly states that you disagree with the policy directions. It is not, therefore, what senators normally, traditionally and, by convention, have done.
In this report, I see a great departure in the language, the tone and the demeanour. If I were still in my previous position, I would say that it is an inelegant report.
[Translation]
Senator Nolin: Bill C-2 was passed in the version in which we received it from the House of Commons on June 21 last. The Senate, and more specifically our Committee, laboured over this bill during some 126 days, 28 meetings, 110 hours of sittings, and heard more than 150 witnesses. The purpose of all of this work was to study a bill introduced by the government in the House of Commons.
I have been a member of the Standing Committee on Legal and Constitutional Affairs since 1993 and to be quite honest with you, dear colleagues, up until today I prided myself on sitting on the least politicized committee of the Senate.
I remember—I do not know the exact dates of arrival of each one of you on the Committee—a bill, and you will remember it as well, a bill from the Department of Transport, from the House of Commons, on the cancellation of the Toronto airport, the Pearson airport contract.
Senator Milne: I had just arrived.
Senator Nolin: My colleague and myself were the only ones among the people present here who sat on that committee. We held the majority, a little like the way things are now. Despite tremendous partisan political pressure, we resisted every attempt at politicizing our work and turning the study of the bill into political manoeuvring.
I am not saying that I do not approve of political jousting, on the contrary. I have been participating in it, with great pleasure, for many years, and I hope, God willing, that I will be able to continue to do so for many more years.
All of this to say that, as is the case of my colleagues, I am bothered by the text that my colleagues from the Liberal majority have provided. You will understand that I do not agree with this report. As my colleague was saying, our role is not to question the political foundations of a government, whatever its stripe. We could have many times done so, but on this Committee we have always resisted any temptation do act in this way. Unfortunately, we have been unsuccessful this time.
I do however wish to thank my colleagues from both sides. We had many wonderful discussions on several amendments. Some of them were carried on division, and others were carried unanimously. I believe that everyone should be thanked.
That being said, I do not agree with the document you have tabled. I believe that there is a place for this kind of comment, and that place is not here on the Standing Senate Committee on Legal and Constitutional Affairs. I do hope, given that we will have other bills to study, that we will be able to reclaim the serenity that we have always enjoyed—at least I have, since arriving here in 1993—, and which has allowed us to overcome situations where we could have sunk into petty partisanship and stay on course and make the best possible laws; and this is especially the case for our Committee, that is charged with examining the legal load capacity of the bills that are submitted to us.
For these reasons, Mr. Chairman, I will vote against this report that has been submitted by the majority. It goes without saying that I will exercise my right and my privilege to express my comments during the debate on the report and during that at third reading.
[English]
Senator Stratton: When I looked at the report, I thought that it was a little beneath all our dignity, and that is not a personal attack on anyone. I feel it is rather reprehensible. If we are prepared to do this in writing, can the kazoos be far behind? That is the thing you have to bring in to question, really. What is next?
I simply will await the judgment of the people because they will ultimately judge the report, and I am counting on that fervently. In the end, when they understand what is in this document and what you have done with this document, you shall regret it.
The Chairman: Do other honourable senators wish to participate in the debate? Senator Day, please go ahead.
Senator Day: I thank the honourable senators for their comments, and I can assure you that they were heard. I regret it, and, it was not intended, but if there was any personal offence to Senator Stratton, who has sat through this committee from the beginning, we sincerely apologize for that. On page 29, it was a quotation and we put it in for that reason. In retrospect, and upon reflection, to mention a senator's name who is on the committee who has taken offence to that, although I have a motion before this committee, I ask for permission to amend that motion and to delete at page 29 the reference to Senator Stratton and the three lines that follow the quotation.
The Chairman: Is permission granted?
Senator Stratton: No.
The Chairman: Honourable senators, it has been moved by the Honourable Senator Day that the committee adopt the draft observation to be appended to the report in the bill to the Senate. All in favour?
Senator Andreychuk: I am asking for a vote.
The Chairman: A roll call vote has been asked for.
We will proceed to a roll call. The clerk of the committee will call members' names, beginning with the chair and then going in alphabetical order. Senators should verbally indicate whether they vote for, against or abstain. The clerk will then announce the results of the vote. It is my duty as chair to declare whether or not the motion is carried or defeated.
Gérald Lafrenière, Clerk of the Committee: The Honourable Senator Oliver.
The Chairman: Against.
Mr. Lafrenière: The Honourable Senator Andreychuk.
Senator Andreychuk: Against.
Mr. Lafrenière: The Honourable Senator Baker, P.C.
Senator Baker: Yes.
Mr. Lafrenière: The Honourable Senator Cowan.
Senator Cowan: Yes.
Mr. Lafrenière: The Honourable Senator Day.
Senator Day: For.
Mr. Lafrenière: The Honourable Senator Joyal, P.C.
Senator Joyal: For.
Mr. Lafrenière: The Honourable Senator Milne.
Senator Milne: Yes.
Mr. Lafrenière: The Honourable Senator Nolin.
Senator Nolin: Against.
Mr. Lafrenière: The Honourable Senator Ringuette.
Senator Ringuette: Yes.
Mr. Lafrenière: The Honourable Senator Stratton.
Senator Stratton: Against.
Mr. Lafrenière: The Honourable Senator Zimmer.
Senator Zimmer: For.
Mr. Lafrenière: Yeas, 7; nays, 4; abstentions, nil.
The Chairman: Honourable senators, I declare that the motion is carried.
Senator Milne: Honourable senators, Mr. Chairman, I move that the chair of the committee on the day that he tables the report on Bill C-2 ask for these observations to be attached as an appendix to the printed Debates of the Senate of that day.
The Chairman: It has been moved by Senator Milne that the chair of the committee on the day he tables the report on Bill C-2 ask for these observations to be attached as an appendix to the printed debates of the day. All in favour?
Hon. Senators: Agreed.
The Chairman: Contrary minded? Abstentions?
The motion is carried.
Honourable senators, shall I report the bill to the Senate at the earliest opportunity, as amended, and with agreed observations?
Hon. Senators: Agreed.
The Chairman: Honourable senators, unless something else is to come before the committee at this time, the committee is adjourned.
The committee adjourned.