Good morning. This is the legislative committee on Bill C-2, meeting number 18, and the order of the day, pursuant to the order of reference of Thursday April 27, 2006, is Bill C-2, an act providing for conflict of interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight, and accountability.
I'm looking for witnesses.
You may come to the front, presuming you're all here.
Our guests this morning are Michael D. Donison, the executive director of the Conservative Party of Canada; Steven MacKinnon, the national director of the Liberal Party of Canada; Eric Hébert, federal secretary, and Jess Turk-Browne, assistant federal secretary, of the New Democratic Party; Gilbert Gardner, general director, and Martin Carpentier, director, of the Bloc Québécois.
It's good to see you all together here. The rule is, as I'm sure you know, that you each can make a few preliminary comments if you wish, and then there'll be questions from members of the committee. I don't know whether you can agree as to who is going to start. We'll start the way I read them.
Mr. Donison, good morning to you, sir.
Good morning Mr. Chairman, members of the committee. First of all, on behalf of myself, the Conservative Party, and I think certainly all the other parties represented, I want to thank the committee, and particularly you, Mr. Chair, for allowing us the opportunity to come before your committee.
The subject matter this morning, of course, is in particular the extent to which Bill C-2 deals with the electoral process and the proposed amendments in Bill C-2 to the Canada Elections Act. As both a student of this process for many years and now a practitioner, I must say this is not a subject that the average Canadian gets really excited about. Even I'm not too excited at 8:10 in the morning, Mr. Chair, but I'll do my best.
The Federal Accountability Act, Bill C-2, basically does two things, I think--it has some minor amendments, but there are two major changes in the electoral law--and I want to say that I think both of those major changes are all movements towards increased accountability and transparency in this essential electoral process in Canada. The two of those, of course, are some changes on the rules considering political party financing and the other change is in the administration of the conduct of the election itself.
On political party financing, as you know, basically what the bill does is create a situation where the maximum contribution that any individual Canadian can give to the national party is $1,000 and then another $1,000 to the local emanations of the party. It seems to us, from the Conservative Party's point of view, that this is an excellent further reform in our electoral financing system. What the $1,000 limit does in both cases, in our view, is it certainly puts to rest any sense now that there is financial influence in this electoral process, either in substance or in appearance. I don't think anybody can seriously argue that an individual giving $1,000 to a political party or a candidate is going to exercise some sort of undue influence. So I think the $1,000 threshold is a good one because it basically ends any argument of substance or appearance. And in an electoral process, appearance is also very important, as honourable members know.
The other change, of course, and I think it's long overdue--I think it is a holdover from, if I may say, Sir John A. Macdonald's era--is that in a federal general election, or a byelection for that matter, the senior state official responsible for the administration, the conduct, of the election within an electoral district is a cabinet appointee. I'm talking, of course, about the returning officers. That's the other really good reform in this bill, Mr. Chair, that we're finally ending this vestige of even any sense of patronage power in the executive in the appointment of returning officers, giving that power to the chief electoral officer, where I think it should be. So I think that is an important reform, and it's certainly one that our party welcomes.
Those are my basic comments, Mr. Chair.
Mr. Chairman, committee members, thank you for inviting us to appear before you today.
I join with my colleague in offering my thanks, but I must say, however, that, in my view, a change as extensive and radical for the political parties as this one deserves more than a five-minute speech to stakeholders who are also affected by this situation. Having said that, I am grateful for the opportunity that is afforded me here.
I am the National Director of the Liberal Party, and I'm proud of that. I'd like to comment on four specific subjects included in Bill C-2: contributions and contribution limits; political party conventions; persons responsible for the administration of elections at the local level; and the coming into force of the provisions of this act.
Specifically on individual contribution levels, we think $1,000 is unreasonable. We think that Bill C-24, passed by members of this House not much more than two years ago, is the most sweeping, open, transparent campaign finance reform undertaken in any western democracy, which I am about to demonstrate.
It is Liberal legislation. It is legislation we support. It is legislation that has been good for this country. However, it is also legislation so sweeping and vast in its import that it is puzzling and perplexing to me that no serious examination of the impact of Bill C-24 has been conducted by a committee of this House or anyone else, nor, frankly, has very much academic research been conducted on Bill C-24. And yet here we are, proposing further sweeping, radical changes to the system of campaign finance and party financing in Canada.
Bill C-24 never contemplated minority governments. If you speak to any of the officials or, frankly, any members of Parliament involved in adopting Bill C-24, their model, the assumptions they used to make the calculations in that bill, were clearly erroneously based on and predicated on the perpetual existence of a majority government and a four-year election cycle. That was part of the inherent trade-off between the limits on contributions and the limits on who may give to political parties, and public financing of political parties.
So I recommend and think and suggest that this committee or another committee of this House be charged with the examination of Bill C-24 and the assumptions made when it was adopted.
But all of that said, we support the philosophy and the specific implementation of Bill C-24. We think that public financing of political parties is a good thing.
Political parties are also a good thing. I am puzzled and perplexed every time I hear members of this House, members of our parties, all parties, including my own, throw mud at each other over people who donate to political parties. Political parties are a bargain. Political parties are good. The financing of political parties is good. Donating to political parties is good. Yes, it should be transparent, but it also should be encouraged. That kind of civic participation is a participation that benefits society as a whole.
Other parties claim their accomplishments. I would like to say that the Liberal Party has been a bargain for Canada. We don't even know if there would be a Canada without the Liberal Party and without the volunteers and the donors to the Liberal Party over the past 125 or more years.
So I would invite you to consider that a $1,000 contribution limit is low. We have restrictions now that amount to a cap of $5,400 from individuals only. I would like to offer for the committee some comparative data from around the world. We could start with the G-8. In the U.S. the limit is $27,500, and I'm talking now about donations to national political parties and the caps on those, forgetting about congressional, presidential, and other campaigns, and I'm doing a rough conversion into Canadian dollars.
In England, in the United Kingdom, there's no limit. In France, the limit is $6,500. In Germany, as well, there is no limit. In Japan, the limits are $145 and $150.
In Italy, it's $14,600. Some other countries that may also offer some appropriate comparisons are Spain, where it's $60,500; Ireland, $8,900; Sweden, no limit; and in Australia--a country we seem to be fond of these days--no limit. The government of Mr. Howard has not chosen to introduce this kind of reform.
As you can see, Canada has pretty sweeping and restrictive amounts on contributions. I think the others should serve as a comparison for this committee.
We also question whether this act would stand up to a charter challenge, a challenge of whether $1,000 is reasonable. In fact, we have not had a judicial test of whether the current limits are reasonable. I would invite you to consider that.
Thank you, Mr. Chair. I will attempt to be brief.
If this committee was to pursue a lower limit of $1,000, or any other limit, there is an important facet in the area of party conventions. We all have party conventions; party conventions are a good thing. They draw people from across the country. They debate policy. They get the most active people in political parties together.
The Canada Revenue Agency has judged, and our legal advisers have advised, that we must provide receipts for convention delegate fees. The Liberal Party is a federation, which means that we have provincial conventions and national conventions, all of which may total more than $1,000 in a given year. We are required to have biennial conventions, which means that every two years someone is attending a national convention. Delegate fees, unfortunately, are very sizeable because of the size of this country and the size of our conventions.
With your indulgence, Mr. Chair, let me read, if I may, from a legal opinion we have:
||Pursuant to subsection 127(4.1) of the Income Tax Act, any amount paid to a registered political party by a taxpayer is a “monetary contribution” within the meaning of the Canada Elections Act unless it is a monetary contribution for which the taxpayer receives or is entitled to receive a financial benefit of any kind other than a tax deduction or other financial benefit prescribed by the Income Tax Act.
Therefore we must issue an Elections Canada receipt to--
In our view, this bill is really a step in the right direction. We see once again the extent of participation by unions and businesses in the political system. That's the reason why, in discussions on Bill C-24, we proposed that the $1,000 amount be completely eliminated, because we thought it posed a problem at the technical level and with regard to perception.
It is true that Canada is ahead of a number of developed democracies as regards its political financing legislation, something we should be proud of. However, we still have work to do.
It's also true that the new limits will force us, as political parties, to go after contributions from a larger number of individuals. I think that's a good thing.
When as political parties we are able to simply rely on a handful of donors to give significant contributions, we don't broaden our base or appeal; we don't engage a larger number of people in the political system. So we believe a lower limit is very healthy, and we also recommend it in the discussions regarding Bill C-24.
There are a few recommendations, however, we would make in terms of amendments. One of the nice aspects of this particular piece of legislation is that the $1,000 limit on individual contributions is divided between the local and federal entities of the party, which means that if an individual wants to give $1,000 to their local riding association they can do so, and then give $1,000 to their federal party. This means that within a political party we're not fighting ourselves for the same donor dollars, which is definitely a healthy benefit in this legislation.
However, one of the problems with this particular piece of legislation is that in effect what happens in a number of our parties—certainly in the major parties and in some of the minor ones as well, I would argue—is that the federal parties receipt donations for many of our local entities for credit card or other such donations. For example, a riding association may decide to submit an individual donor's $500 contribution on a credit card to the federal party, so that we can process the donation, instead of 308 ridings having to create their own credit card systems and so on. As a result, we receive the contribution and transfer the money back to the riding. It's all very transparent, and we know how the money flowed. At the end of the day, it allows us to save a lot on the financial administration fees that many of our volunteer organizations would end up having.
The problem with this division now is that if the federal party is receipting all those contributions, a person hits his or her maximum contribution with the federal party before doing so at the riding or local level. So we would recommend that in the same way the act currently provides for federal leadership to have the ability to receipt contributions on behalf of another entity, we be able to do the same with riding associations.
This is particularly important regarding another new provision of this legislation, which is that donations over $20 cannot be made in cash. We believe the accountability of this is very important. The transparency, the paper trail, and so on are very important aspects, but the fact is that many of our local entities, which receipt contributions, are required at that point to either have credit card facilities, or people must bring cheques with them to events and so on. This is a concern that needs to be taken into account, and we hope that by amending the legislation to allow $1,000 to be receipted federally—of course, with proof that it's actually going to the benefit of a particular riding—that this be considered.
On the elimination of corporate and union contributions, we fear that it may be subject to charter challenge too. I believe in part that Bill C-24 allowed limited contributions to prevent this sort of problem from happening. However, instead of simply abandoning the idea of eliminating those contributions—because we believe it's a good step—we would recommend that you do what is currently done in the act regarding unincorporated associations, which are allowed to solicit individual contributions up to a maximum of $1,000 in a particular year. This allows corporations and unions to have a political role, if you will, without being seen as having an influence.
Thank you, Mr. Chairman.
On the whole, the Bloc québécois is in favour of the principles of Bill C-2, particularly since it addresses a certain number of our party's traditional demands, in particular regarding the appointment of returning officers. However, it lacks one aspect that would improve Bill C-2: that returning officers should be selected following public competitions.
In December 2004, the Bloc québécois tabled a bill to introduce this amendment. We would be pleased to see Canada imitate Quebec 25 years later by requiring returning officers to be appointed by public competition. We recommend that section 503 of Quebec's Election Act be adapted to Bill C-2. That section provides as follows:
||The appointment of a returning officer shall be made after a public competition among the qualified electors domiciled in the electoral division concerned or in a contiguous electoral division, provided, in this latter case, that the person is able to carry out his duties in as satisfactory a manner as if he were domiciled in the electoral division for which he is appointed.
In a previous appearance, Mr. Kingsley stated that he wanted to proceed by public competition in the event of vacancies. We think Bill C-2 would be improved if the obligation to hold public competitions for all electoral districts in Canada were included.
Now I'm going to talk about the coming into force of the new clauses 45 to 55 of the bill, which mainly concern authorized contributions. Apart from partisan reasons, there is no reason for these clauses to enter into effect at the time of assent. Citizens have made contributions during the year, based on the act as it stands today. Some have made bank authorizations and have spread their contributions over the entire calendar year. Introducing new provisions would be unfair for those contributors.
As regards the issuing of tax receipts, Revenue Canada could require parties to prove that the contributions were made before Royal Assent. For example, if Royal Assent is given on October 1, bank authorizations following that date would no longer be valid, whereas those made before that date would be. Does the tax receipt apply to the elector's entire contribution for the calendar year or only part of the calendar year? We think that, if you exclude partisan reasons, in the tradition of the implementation of this type of measure, the calendar year is normally the reference year.
We strongly recommend that you ensure that the provisions concerning contributions enter into force on January 1 of the year following Royal Assent.
I'm concerned for John Baird. He came to this committee as one of the very first witnesses and said, “We're going to get the money out of politics.” There may have been many people across the country watching, and it may have been printed in the print media to lead people to believe we were going to get the money out of politics through this long and arduous venture.
But I don't see anything here that will limit the use, for instance, by the major parties of massive amounts of money on negative advertising campaigns that denigrated the political process, in my view and in the view of many of my constituents, in the last couple of elections. I am directing the question primarily to Mr. MacKinnon and Mr. Donison, because I think you are the most guilty as party representatives of the big money negative ad campaigns.
My question is this. There's nothing in this reform about decreasing spending limits. From what I read, the Conservative Party is doing quite well at the bank in rolling in the money, so there'll be lots of money for lots more negative ads. And there's nothing here touching political action committees—PACs, or whatever you like—the non-political parties that deliver a political message on behalf of the major parties or other parties.
And I really don't think at the end of the day, especially with the limits on convention spending indirectly.... I do think there will be a limit on the democratic involvement at conventions and meetings of parties, which is what the democratic process is all about.
In other words, the public may be expecting, because they may have a fresh new feeling of optimism about Mr. Baird—whom I personally like, and he's a wonderful public servant, public office holder.... But what is this going to really do to take the money out of politics? I don't see how it is going to do that. It might even get worse, and the political process would be imbued with this big money negative ad spree if there are no limits on spending.
Mr. Murphy, first of all, the question isn't about taking money out of politics; it's taking large donations of money from single individuals out of politics, and that I think the bill does.
All I can say in defence of my own party is the ads our party would have used during an election campaign were all funded, Mr. Murphy. You can go to the Elections Canada website and see—all small donations from individual Canadians.
Since Bill C-24 was enacted, which restricted corporate donations entirely to political parties, so that the national parties were left to receive money only from individual Canadians, the Conservative Party of Canada has received donations from in excess of 250,000 individual Canadians. The average donation, Mr. Murphy, is around $100.
So all the money that was used, other than the public money Parliament has decided to give to the parties as well.... All the expenses of our party have been funded either by small, individual Ma and Pa Kettles in Orillia, if I may use that riding, giving small donations to our party, or taxpayers' money as mandated by Parliament.
There are no big money contributions in any of that, certainly not under Bill C-24, and even more so under this bill. That would be my defence of that.
It's not a question of taking money entirely out of politics. There is money in politics. Parliament has mandated that there be public money and is now mandating that individual Canadians can make small, individual contributions as part of their role as citizens and residents of Canada. I don't see a contradiction at all.
Thank you, Mr. Chairman, and thank you for the opportunity of being here this morning.
I know that all of you have spent many hours in the last week debating and discussing this bill, and I have very much been looking forward to having a conversation with you about it.
I'd like to mention, too, that I might be here for a number of different reasons. As the chair has pointed out, I'm a professor of public management at the University of Ottawa. In fact, I occupy the Stephen Jarislowsky chair in public management and governance at the university. I'm also the former head of the Public Policy Forum, which in fact did a considerable amount of work in recent years trying to bridge the gap between the public service and elected officials. I also am a former vice-president of EKOS Research, a public opinion research firm that does a considerable amount of work with the federal government, and I look forward to talking to members of the committee who might have some interesting questions about the public opinion research aspect of Bill C-2.
Mr. Martin has, on a number of occasions during the hearings, talked about program review, and I just want to point out that in the mid-1990s I was assistant secretary to the cabinet in the Privy Council Office for program review and machinery of government, and I would very much look forward to answering any question he or any member might have on program review.
Lastly, I just want to point out that about two years ago the federal government restructured a lot of the activities around staffing and human resources and created a new Public Service Commission with one full-time president and two part-time commissioners. I was appointed two years ago to a seven-year term as a part-time commissioner of the Public Service Commission.
You would have heard already from Maria Barrados on the commission's position regarding Bill C-2, and I'm really here in my capacity as an academic to talk about the bill.
I've already spent a fair amount of my time just introducing myself.
I will try to give you some idea of the issues that I'd like to talk about. I'd like to just give some context to the legislation, since many of you members of Parliament are fairly new to Ottawa and might not have fully appreciated the place where Bill C-2 finds itself these days.
The last decade has been a remarkably important one in terms of governance in this country, and particularly at the level of the federal government. As I mentioned, program review in 1995 had enormous impacts on the country in many different ways, but there's an aspect to it that is important for the committee to be aware of, and that is the fact that in our efforts in those years to downsize government, one of the functions that was heavily affected, but really unknowingly by us in those early years, was to downsize two important activities. One was the audit function in the federal government and the other was program evaluation. Over time, many of the activities that were normally associated with audit and program evaluation disappeared as a consequence of program review. To a large extent, the auditing side is being rebuilt, but program evaluation has not yet had the same effect.
I suspect that Arthur Kroeger may have touched on this when he was here a couple of days ago. Many of you are aware of some of the massive so-called management improvements that were introduced by the government in the last couple of years. By my accounting, there are at least 200 major initiatives that were implemented by the federal government post-sponsorship program and post-HRSD. In particular, additional programs and policies were put in place in terms of auditing and financial controls and reporting to Parliament, and the results, frankly, have been additional burdens, clearly, on all of the affected institutions, which has at times made it particularly difficult for Canadians and for interest groups to deal with government. You are arriving at a time when we've already added at least 200 new activities in terms of management improvements.
In a recent speech just a couple of days ago at the APEX conference, Minister Baird talked about the fact that he is going to do what he can to streamline so many of these new management improvements that were brought in.
I also want to tell you that the Government of Canada has been very active in recent years in trying to provide members of Parliament with more information. In fact, I think one of the real challenges that they do have in thinking about Bill C-2 and its implications for governance going forward is the fact that there is already a huge amount of information that has been provided to you as members of Parliament. Parenthetically, I want to say that not enough of that information has been used by you on an active basis to further the governance of the country.
Let me then move quickly, Mr. Chair, to some of the issues around the specifics of the bill itself. I would simply say that this bill is possibly the most massive attempt in at least a generation to restructure the governance structure of the government and of the institution of Canada. To a large extent, of course, as the Prime Minister I think quite rightly identified, it's an attempt to restore confidence in our public institutions.
As you consider it clause by clause in the coming weeks, I think one might ask oneself whether the changes that are being introduced in each of these rather important areas will in fact add to the contribution toward restoring trust. In fact, I think this is going to be a huge and interesting challenge for you as you look at the 13 sections of the bill, which, as all of you know, amends over 100 different federal statutes.
I would now like to talk specifically about a couple of sections, in particular those that I have spent some time researching over the last few years, and then I'll stop, and I will certainly field as many questions as you have.
The Public Appointments Commission I think is a very exciting and welcome addition to the governance structure of Canada. There are lots of machinery options around which one can organize it, but I think the principle is such an important one, where you are proposing to have a uniform approach to appointments and to create an organization of one kind or another that will ensure that the process is explicit, public, and available to Canadians. This is a very important departure from existing norms and would represent I think a very exciting new opportunity.
When it comes to the issues of public opinion research, and there are some suggestions in the legislation of moving forward, particularly insisting on written reports and posting of the results in six months, I would say, frankly, that this already exists. This will be a welcome addition, but in fact it is common practice today. Ninety-nine point nine per cent of public opinion research is reported in a written format, and it certainly finds its way into the public domain in a typically reasonable period of time. So a six-month time limit won't put any particular burdens on practitioners.
I've also been intrigued with the notion of the accounting officer model and introducing more responsibilities for the deputy ministers. There, I think, we have some interesting possibilities, but I would say that already the existing practice in Ottawa has been for many years to see the deputy minister as the chief accounting officer, so making explicit what's already implicit would probably strengthen it but not make any dramatic changes in the way in which things function.
Lastly, I'd like to applaud the government for deciding to go ahead with making the conflict of interest guidelines and policies an act of Parliament. I think this is an important signal to Canadians. It makes more explicit again what has been implicit in terms of the general guidelines as to how one should operate.
Jumping to my conclusions, then, I'd say that this particular legislation is massive in size. It's not likely to be touched again for another generation, so I would invite all of the members involved in this exercise to take the necessary time you need to debate each of the clauses, to ensure that it measures up against and complements existing and contextual issues that are going on today.
I think one of the things one has to look out for is the so-called unintended consequences of legislation, in an effort to solve problems rather than creating new ones that sometimes are larger than the ones you've set out to address. So taking the appropriate time for deliberation I think would really enhance the effectiveness of this legislation and will require people to come back in a few years' time only to fix up those parts of it that aren't working.
I would also like to say that while you're at it, you might want to look at some way of increasing the resources for various parliamentary committees.
As I suggested earlier, members of Parliament have more information available to them now than ever before. As you know, for at least the last five years, the Government of Canada has been seen around the world and noted by Accenture to be the most effective online government in the world. So you don't have a shortage of information, but you do have a shortage of analytical skills to make use of the information provided to you.
I would suggest then, Mr. Chair, if it is at all possible to expand the scope of committee work at least in terms of staffing, you might find this bill will provide you with some additional resources. Thanks for the opportunity to speak.
I guess the point I'm trying to make is that it's really Parliament and the committees of Parliament that dictate how successful any of these models will be. That is to say, if you make use of the information, if you bring forward the data in a venue like this, to debate and discuss the merit of programs around the table, then the new system will work.
Just creating a new office that collects more information won't make any large difference to improving the two objectives of this legislation: increased accountability and restoring trust in public institutions. That's what the government says is the purpose of this whole exercise.
According to my accounting in this exercise, we are going to create eight new agencies. The creation of new agencies alone does not necessarily guarantee that we are going to have more accountability. For your purposes, it's the use of the information that these agencies are going to collect that will be the measure of success down the road.
After some reasonable period of time--five years from now, for instance--it will be useful to look back and say, “Okay, with all of these new agencies and new mechanisms we've put in place, is it in fact true that the government is more accountable?” Frankly, I don't want to call it the weak point, but the point to which we've paid the least amount of attention is the way in which the members of Parliament will use the information.
I know there have been some fascinating pieces of work done by, for instance, the Treasury Board in recent years. These department reviews are submitted to you every single year. They list the intentions of every department, and then performance reports on what they accomplished the previous year are given to you. You got 91 of them last year from 91 different departments and agencies, but I suspect that Parliament has spent very little time holding the government to account for the success of any of these particular programs.
The data is there. More data isn't necessarily going to make the Government of Canada more accountable, so we have to find another way. I hope in your deliberations, as you work through clause by clause, you'll be inspired to find a way to make use of the information, both old and new.
One of the points I'm trying to make in this presentation is there have been so many new changes brought in over the last two or three years to improve accountability that we already have a very strong accountability regime at the federal level. This will just add more to it.
There are many unique elements in this bill; for instance, political party financing is quite new. However, when it comes strictly to administration of government, Mr. Alcock alone brought in 200 new measures regarding accountability. So my word of caution is that we have to make sure that the new ideas contained in Bill C-2 do not in any way overburden the system, to the extent that you end up with so many new rules and procedures that the time expended by public servants and others to comply will sometimes cost more in terms of effort than the outcome.
I don't really know at this point. I'm not referring to anything in particular; it's more of a general statement. So as you consider the clause-by-clause, I think you have to ask yourself what other kinds of regulations do we have when, for instance, it comes to whistle-blowing or conflicts of interest, and do these add marginally more value than not? In that case, you may decide that the current regimes are sufficient, at which point you may decide that you don't want or need to go any further.
In other instances, when it comes to the Public Appointments Commission, you may say that we don't have any regime similar to what is being proposed. So this is new, in my view. But when it comes to changing the accountability regime for deputy ministers, I would argue that much of what's contained in the legislation already exists.
You may want to see a value in having a special title around it, so that the public gets a better sense of what's intended. But in terms of actual practices, deputy ministers in this city are extremely accountable to Parliament today. They have been appearing on a regular basis as financial auditors—or responsible for financial activities—for at least 10 to 15 years, and they have been accountable to you for those activities for that period of time. The fact that you want to make this more formal adds to the conversation, and perhaps packages it a bit better, but it won't substantially change their behaviour.
Thank you very much for your presentation, Dr. Zussman.
I wanted to ask you about the Public Appointments Commission. You correctly underlined the fact that there is no formal system in place with a whole infrastructure at this time at the federal level, while in some provinces they do have an infrastructure in place for those kinds of appointments. So do you think that having some form of formal infrastructure, with clearly defined mandate, rules, authorities, etc., is a good thing?
Now, given the Prime Minister's reaction when his personally picked choice for appointment as chair was not supported by a committee...he decided he's not going to implement a formal system. Many of us believe this is a good thing. Since I came in, in 1997, I tried to convince the previous government, and now I'm trying to convince the current government, to put it in place.
We already have a similar system in place for the public service. Under the Public Service Employment Act, the Public Service Commission has that authority, which it normally delegates out to the various departments, and then exercises the oversight mechanism and audit function.
What would you think if, through Bill C-2, the Public Service Employment Act was amended to provide that the chair and the vice-chairs of the Public Service Commission also have the responsibility and duty to set this system in place, so that, for instance, the IRB would develop its criteria selection? A public, transparent selection process, etc., would identify the qualified candidates, and the Public Service Commission would then conduct audits to ensure that the appointments process was open, transparent, fair, and based on merit. What would you think if that was done through amendments to the act?
As I mentioned earlier, I am a part-time commissioner. I hope it doesn't appear that I'm in any way conflicted. But this would make a whole lot of sense. There's already an existing institution that has been testing merit-based appointments for 50 years under a regime, and it is now implementing a new one. It would be, frankly, very little additional work to ensure that the processes by which order in council appointments are made....
By the way, members of Parliament would know that in the life of a four-year government, they might make over 3,000 such appointments through the process we're talking about. So this is not a trivial exercise by any means.
It does take an infrastructure. Already a group in the Privy Council Office has been created, in fact, as part of this commission to begin the process of figuring out how we are going to make 3,000 appointments in the course of a four-year period. We already have an infrastructure. I would look at that.
The other thing I would say is that the United Kingdom, for instance, has been running a public appointments commission for at least, if I can recall, eight to ten years, with enormous success. So there are lots of good success stories out there that we can easily model.
I really applaud the government's efforts to set up the commission. Where you place it, of course, is your own choice, but there are lots of different vehicles that are possible. I'll leave it at that.
Thank you, Mr. Chairman.
Ladies and gentlemen members of the committee, my name is Michel Bouchard, and I am the Associate Deputy Minister responsible, at the Department of Justice, for matters pertaining to criminal prosecutions.
As the Chairman has just told you, I am here with Pierre Lapointe, who had just been assigned responsibility for examining the institution of the director of public prosecutions for Quebec when I left my duties as Deputy Minister of Justice in Quebec, more than two years ago now. Mr. Lapointe has thus spent a good part of the past two years constructing and drafting the bill passed by the Quebec National Assembly a few months ago, introducing the institution of the director of public prosecutions in Quebec.
My comments this morning will focus more particularly on the proposal to create a position of Director of Public Prosecutions at the federal level. The relevant clauses appear in Part 3 of Bill C-2.
Mr. Chairman, this proposal is based on one of the most important principles of our legal system, that prosecutions must be free of all partisan political interference or pressure. This principle is already reflected in our constitutional law, and there can be no doubt that all members subscribe to it. By this bill, the government is proposing a new institutional structure entrenched in the act that will provide greater protection for this principle of non-intervention.
Mr. Chairman, the ministers of Justice, the men and women who make up the Federal Prosecution Service have proven to be faithful guardians of the prosecutor's independence. However, it is the present government's view that it is time to go one step further. It is time to go beyond mere confidence and tradition.
There is a different approach. Two Canadian provinces have already adopted it, Nova Scotia and Quebec, as well as British Columbia, to a certain degree. The former Law Reform Commission of Canada had approved it. A number of countries have adopted it, including the United Kingdom, Australia and Ireland.
This different approach requires the establishment of an independent organization called the Office of the Director of Public Prosecutions, an organization operating independently from government. This is precisely what has been contemplated in the proposed law.
This bill proposes that the Office of Public Prosecutions be created. The acronym DPP is used to designate the office and the person who heads it. The DPP will conduct all prosecutions currently under the jurisdiction of the Federal Prosecution Service. It will also be responsible for prosecutions conducted under the Canada Elections Act. It'll be responsible as well for prosecuting the new fraud offences proposed by the present government under the Financial Administration Act.
Unlike the Federal Prosecution Service, the Office of the Director of Public Prosecutions will not be part of the Department of Justice. Instead it will constitute an independent organization that will be accountable to Parliament, through the Attorney General of Canada.
The government is proposing that the director be appointed in much the same manner as the most recent addition to the Supreme Court of Canada.
To ensure the appointee's independence, the DPP will have security of tenure, a seven-year, non-renewable term of office, and guaranteed salary and pension benefits.
The DPP will be removable from office at any time by the Governor in Council, but only for cause.
Most important of all, the director will have the power to make binding and final decisions related to prosecutions, unless the Attorney General instructs the DPP to do otherwise by means of a public written notice.
The Attorney General retains the power to intervene in proceedings, rising issues of general public interest, issues that go beyond the scope of those usually raised in prosecutions.
The bill also permits the Attorney General to take over a prosecution, but only where the Attorney General gives the DPP a notice of intention to do so. The notice must be published in the Canada Gazette. We have retained this discretion, which we anticipate will be used sparingly, because the Attorney General is ultimately accountable to this House for the actions of the DPP. Some residual capacity must exist to ensure decisions are taken in the public interest. This is a feature of other DPP schemes, and as I said, history has shown that it is a seldom exercised power.
As Mr. Bouchard told you, I have been responsible for the DPP project at the Government of Quebec since July 24, a project that resulted in passage of Bill 109 on December 1 last, creating the position of what, in Quebec, is called the Director of Criminal and Penal Prosecutions, but who is in fact a DPP, a Director of Public Prosecutions.
I'll make some very general comments on the act and two or three more specific comments.
First, by way of a general comment on this act, I would say that, in reading the part of Bill C-2 concerning the Director of Public Prosecutions, one can't avoid seeing a DPP model that is very similar to the one adopted in Quebec. So you won't be surprised if I tell you that, in our opinion, this is an ideal model for achieving the two objectives that essentially must be achieved when you establish a DPP: first, to provide institutional, functional and operational guarantees of independence for the director—that's the purpose of the exercise—and, second, to maintain a reasonable and necessary measure of accountability to government.
In our view, the introduction of a DPP based on this model will necessarily have beneficial effects on the office of the prosecutor itself, as well as on the credibility of the prosecution system in the public's eyes. We know to what extent public confidence is essential to the proper operation of the judicial system.
There is no legal or constitutional obligation to establish a director of public prosecutions, but we think—and, in view of the tabling of Bill C-2, it appears the government thought the same thing — that this was an important and necessary measure in the context of the process of improving and modernizing our judicial institutions. That's the general comment that we wanted to make on Bill C-2.
As to specific comments, there are two that concern very specific provisions. These are about differences that can be seen between the bill that was passed by the National Assembly and the government's proposal in Bill C-2. That doesn't mean, and I don't want to be understood as meaning that these differences are disadvantageous or advantageous. I am pointing them out because, in our view, these issues were very important and were the subject of debate, because they go to the very heart of the matter of the functional independence of the DPP and because they concern the question of the image of independence and apolitical operation that emerges from this bill.
The first of these comments concerns the DPP appointment process. The process favoured here is obviously very similar to the one that we adopted, subject to certain differences that are not important here. The only comment that forms the subject of major discussions in Quebec and which made our act slightly different—here my sole purpose is to point this out to you—is the absence from the bill of any legal obligation to trigger the process of appointing a DPP.
The bill provides that the DPP is appointed for seven years, that his term is not renewable and that the DPP remains in office until he is replaced, which is perfectly normal and necessary. However, the bill provides that the Attorney General may hold a competition, but it does not provide for an obligation to do so within a certain period of time after the position becomes vacant.
Following this debate, we chose to provide that the Attorney General or the Minister of Justice shall start the competition process in the year preceding the year when the position becomes vacant. That was my first comment.
The second concerns a question that goes to the heart of all these acts, and that is the obligation for the Attorney General to make public any intervention that he must make in respect of the DPP. The primary purpose of this act is to create the functional independence of the DPP in the performance of his duties. However, as a result of constitutional necessities, the Attorney General remains in his traditional institutional form and thus holds ultimate powers of prosecution. Those fall to him. He may therefore intervene with the DPP, both to establish general standards and to intervene specifically in prosecutions that are the DPP's responsibility.
The situation is identical under our act. As a result, the desired objective, which is to establish functional independence, is one that can never be completely achieved, since there will always be an Attorney General who can intervene.
In general, in all acts, whether it be this one, ours, or those of Australia, Nova Scotia, British Columbia or England—in fact, I know nothing about England; I was talking through my hat—we're replacing this absence of functional independence with a transparency measure. It states that, if there is an intervention, it must be made public. In fact, we're ensuring that the Attorney General's interventions will be effective. They must always be made in the public interest, not for a public purpose. The object of this act is to prevent political intervention in the prosecutor's decisions, while preserving the Attorney General's power.
Now this power of publication...
Thank you, gentlemen, for coming before us and bringing your consolidated expertise in these matters.
I have two questions. The first is for Mr. Bouchard.
I am curious as to what problem we are trying to fix here with respect to the Director of Public Prosecutions, so my first question, Mr. Bouchard, is whether there is, to your knowledge, any recent history of challenges to the image--I think Mr. Lapointe used that word translated--or the appearance of independence in the federal prosecution.
I put this in this context, because of course the Attorney General, in that part of his dual role, is the chief law officer of the crown. He or she has a quasi-judicial responsibility in criminal prosecutions to do the very things this act sets out, except for putting direction in writing.
I am wondering if there is some great distrust in the public, related to past practice of improper interference, that we're trying to solve here. How would setting up another independent office for this DPP be different from simply the situation in British Columbia? There, the Crown Counsel Act--from where I suspect the wording for this was taken--simply requires of the prosecution service that it can take from the Attorney General direction on prosecution policy or a specific case if it's in writing and is gazetted, as you say, at the appropriate time. That's my first question.
Could that simply, without taking apart the prosecution service and putting it somewhere else, be handled sufficiently, as it has been in British Columbia, without having a new so-called independent office? I think in reality it is not much more independent than our criminal justice systems across the country.
The second point is that in his role as chief law officer of the crown, the Attorney General is not only the chief lawyer for the executive branch but also the chief legal adviser to cabinet, to Parliament, and in fact to the Governor General.
So I am interested to know that with respect to this bill, it is invariable that the Attorney General, through the Department of Justice, provides legal advice to the government on the legality, particularly the constitutional legality, of the legislation before it's tabled in the House. I see that as a firm responsibility of an Attorney General in that person's independent and even quasi-judicial role as chief law officer.
I am wondering if that was done in this case. I am assuming it was. As members of Parliament who represent one of the clients of the Attorney General of Canada, we'd be very interested in having a copy of that legal opinion.
Thank you for your question, sir.
With regard to your first point, at the origin of the bill, there's no response to a specific problem that would have made this government feel obliged to intervene quickly with regard to the creation of a DPP, as might have occurred in other jurisdictions, where the establishment of the institution of the DPP was the result of a commission of inquiry. Among other things, I'm referring to Nova Scotia and, to a certain degree, perhaps as well to a case in British Columbia with which you are very familiar. As a result, in preparing this legislation, we had occasion to refer to the work and recommendations that you prepared in the early 1990s.
That said, you know as well as I do, sir, that, in the administration of justice, appearances are at times as important as, if not more important than, reality. During my nearly 33-year career of prosecuting criminal cases in government, both Quebec and federal, I have never been involved in a situation in which a political intervention occurred in the prosecution of a case. However, I was faced with situations in which the public perception, fortunately not in many cases, was that a political intervention might have occurred, which was incorrect. It is extremely difficult, once a perception is rooted among the public, to eliminate that concern and prove that no political intervention occurred.
So what emerges from this bill with regard to the Director of Public Prosecutions is that you want to create a climate of independence and transparency with regard to public prosecutions. You want the public to get the impression, as a result of the way in which the individual has been appointed to perform that office, that the decisions he makes, which are final, are made independently of any political intervention. The public's perception of a prosecution or a decision is extremely important. A number of parameters are associated with the independence of the person who holds the position: the fact that he occupies a position from which he cannot be removed, except for misconduct; the job security he enjoys; the fact that the Attorney General, although he does not lose his powers of prosecution, must, if he wishes to prosecute instead of the Director of Public Prosecutions, state his intention in writing and make the proceeding public. Why wait for a scandal, when the public wants the assurance that criminal prosecutions are instituted by someone who is completely independent of all political intervention? From the start of my remarks, I have emphasized that, over the years, the attorneys general who have preceded the one who currently occupies the position and all those currently working in the Federal Prosecution Service for a number of years have performed their duties with complete independence, free of all political intervention. However, what is important, and I want to point this out again, is knowing whether the public perceives every day that all decisions are made completely independently. It is this situation that the bill addresses.
Thank you, Mr. Chair, and thank you to both witnesses for being here.
I see the creation of this new office as a natural extension of the spirit of this bill, in many ways. If we have, for instance, better access to information as a result of this bill, we want to have the information that may be unearthed by virtue of those new strengths dealt with promptly. Canadians not only have a right to know how their money is being spent and a right to be aware of any wrongdoing that may have occurred, but they also have a right to speedy prosecution of any maladministration or wrongdoing that may be unearthed.
So I am excited by this prospect, and I welcome this idea. I'm relieved to hear that we don't see it as being contradictory to any provincial jurisdiction, as I would have had to have found fault with that.
One of the criticisms I've heard, and it's almost a motif, a theme, of the criticism we get of the Conservative government, is that it kind of smacks of the American model. This isn't a prime concern of mine, but I would like you to clarify, perhaps, if you could. People have negative images of, I think his name was Starr, in the Clinton period. They felt they had a special office that was there to harass the government in a quasi-political way.
Could you differentiate for us how this new office is different from the similar prosecutor's office in the United States?
I just want to return to the core purpose and origins of the Director of Public Prosecutions. The reason this was proposed in the last election--and I'm not afraid to say it--is that a lot of people were confused about the fact that a number of advertising agencies were pursued with legal action when one organization, which was clearly at the centre of the same scandal and benefited directly from it without any question whatsoever--this is beyond debate--was not. That organization was given the ability to decide how much of its stolen money it wanted to repay.
The purpose of the Director of Public Prosecutions demonstrates that there should be an independence in public federal prosecutions and that the public should know if there is political direction given to the Attorney General's office. In cases such as that one, where the partisan interest of the Attorney General himself seems to conflict with the public interest he is meant to serve, there should be as much space as possible between that Attorney General, who is a partisan elected official, and the prosecutorial component of the federal government. If the Attorney General, who is partisan, does want to direct the prosecutorial arm of his department, he has to do so in a way that is public, not secret, so that people know.
That is the real reason we want to have this separation. It doesn't create a new bureaucracy; in fact, it will be the same office. It just separates the powers and basically opens up the drapes so the sunshine can come in. We can see what's going on in there--to use an analogy that Mr. Martin has been fond of in the past.
That is the purpose of this office. I wanted to state that on the record to remind people of why we are doing this and where the idea was born.
I'll just move to the question. Do you believe that this will cause any major upheaval or problems, from an administrative standpoint, in the Department of Justice or in the Attorney General's office, or do you think these changes can be accommodated in a fairly efficient way?
I have no contradictory comment to make on what I've just heard, sir. Thank you for your question. You summarized, among other things, the purposes of these amendments very well.
Your last question is very important, because it concerns the human component. The transfer of this unit, which consists of a number of employees, to a separate unit from the Department of Justice, will have a significant impact on interpersonal relations. These people are leaving a department for which they've worked, in some cases, for nearly 30 years. From a human standpoint, these people are sad to leave the Department of Justice in order to create this new institution, but happy as well because they know that they'll play a very important role which will have been confirmed in an independent manner by the act. So they'll be proud to create and introduce this new concept of Director of Public Prosecutions, but sad at the same time to leave the Department of Justice.
From a budgetary standpoint, under the act—and this is included in the transitional provisions—the some 600 employees who are currently part of the Federal Prosecution Service will become members of the Office of the Director of Public Prosecutions the day after the bill is passed. Four hundred and eleven lawyers work in the Federal Prosecution Service, along with 273 employees who are not lawyers, and we call on nearly 250 firms around the country, representing 800 lawyers, to conduct trials in regions where we don't have a permanent office.
So the budgetary impact shouldn't be enormous, but there will nevertheless be an impact. To guarantee the independence of the Federal Prosecution Service, which will become the Office of the Director of Public Prosecutions, it will have to have separate premises from those of the employees of the Department of Justice, which will perhaps entail a one-time expenditure for one year.
We'll break for a minute.
The Chair: Before we have our next delegation, just to get you all thinking, unless you have a brief comment--order, please, this is important--I need the committee's advice.
Ms. Jennings, Mr. Walsh is available tomorrow or on Monday to come at either 5 or 6 p.m. I think the motion said three hours. Does the committee want him to come at 5 or at 6 p.m.? You say 5 p.m. That's all I want to know.
We are going to proceed. We are completely out of control here with time, but we're going to do our best.
We have Yvette Aloïsi, I hope, who is the Associate Deputy Minister with the Department of Public Works and Government Services. We also have Emmy Verdun, who is the Director General, Policy Risk and a whole bunch of other things. Mr. Wild, who has been here before, is here from the Department of Justice in case there are some legal issues, I suppose.
We're really pressed, so could you make your opening comments very brief, please?