Order, please. This is the 37th meeting of the Standing Committee on Access to Information, Privacy and Ethics. The order of the day is pursuant to Standing Order 108(2), the study of the review of the ethical standards in the Guide for Ministers and Ministers of State
This morning our witnesses from the Privy Council Office are Mr. Joe Wild, assistant secretary to the cabinet, machinery of government, and Eileen Boyd, assistant secretary to the cabinet, senior personnel.
Welcome to both of you. I appreciate your taking the time to come and assist the committee to better understand the subject matter before us. I understand that you do have an opening statement, and I know that the members will want to engage in some dialogue with you after that.
Welcome, and please proceed.
Thank you, Mr. Chairman.
Mr. Chair, I'd like to thank the committee for inviting us to discuss the ethical standards contained in Accountable Government: A Guide for Ministers and Ministers of State. With me today is my colleague, Eileen Boyd, assistant secretary to the cabinet for senior personnel.
With your permission, I would like to begin by giving you a brief overview of the purpose and content of Accountable Government, including some background on the constitutional context in which this document and its standards of conduct arise.
Accountable Government provides high-level, principles-based guidance to ministers on the structure of Canadian government and their roles and responsibilities within that framework. This includes, among other important subjects, key principles of responsible government in the Westminster system; the structure of federal institutions, particularly those of the executive; rules for the conduct of cabinet business; relations with Parliament; administrative duties; consultation and coordination; and standards of conduct for ministers and other government officials.
This essential information helps members of a ministry, individually and collectively, support the Prime Minister in managing the business of the Government of Canada. At the core of the standards of conduct in Accountable Government are high-level ethical guidelines whose fundamental objective is to ensure that ministers and other public office holders uphold the highest ethical standards and make decisions in the public interest. In addition, the guide indicates that ministers are expected to comply with the Conflict of Interest Act, not intervene in judicial or quasi-judicial proceedings, respect the arm's-length relationship of the various agencies and crown corporations that may fall within their portfolios, and exercise discretion with regard to any invitations they may receive.
Additional guidelines are laid out in annex H in relation to political activities. These guidelines state that public office holders should not participate in a political activity where it may reasonably be seen to be incompatible with the office holder's ability to discharge their duties in a politically impartial fashion. Of course these particular guidelines do not apply to those public office holders whose roles and functions are necessarily of a political or partisan character, namely ministers, ministers of state, secretaries of state, parliamentary secretaries, or their staff.
The standards of conduct set out in Accountable Government must be understood within a larger constitutional framework—specifically, that in Canada, as in other Westminster parliamentary systems, it is by convention the Prime Minister who is responsible for forming and leading the ministry. The formation of a government is a defining responsibility of the Prime Minister. In so doing, the Prime Minister advises the Governor General on the appointment of other ministers. Flowing from this effective power of appointment and his overall accountability for the executive, it is the Prime Minister's authority to establish standards of conduct for ministers and other public office holders in the executive whose appointment he recommends. This includes standards above and beyond the requirements of the law the Prime Minister may set out as the basis on which he or she makes appointments.
It is the who must answer to Parliament and ultimately to Canadians for the conduct of the ministry and government. The Prime Minister must gage when the conduct of ministers—even conduct that may be entirely lawful—falls short of his expectations and what he can defend in the political forum of Parliament.
Consistent with this responsibility, the Prime Minister may ask for the resignation of ministers at any time. The Supreme Court of Canada has acknowledged this, most recently in the Dunsmuir case, where the court stated that unlike other public office holders, ministers do not have a contractual relationship with the crown.
The standard of conduct set out in Accountable Government: A Guide for Ministers and Ministers of State lets ministers know what the Prime Minister expects of them. It is worth noting that until recently, such documents were considered confidential as between the Prime Minister and the ministry; for example, both Canada's guidance for ministers and its United Kingdom counterpart were secret documents until into the 1990s.
As part of ongoing efforts to increase government accountability and transparency, Accountable Government is now a public document. While the Prime Minister may effectively dismiss ministers at any time, other public office holders are not governed by the same constitutional conventions. In wanting to ensure that public office holders would discharge their function with integrity and in a non-partisan manner, the government has made compliance with the “Ethical Guidelines for Public Office Holders” and the “Guidelines for the Political Activities of Public Office Holders” a term and condition of appointment. The Privy Council monitors these guidelines, ensuring certification documents are provided prior to an appointment being made and providing advice based on the general principle and the guiding factors laid out in the guidelines.
Before I conclude, I'd like to say a few words about the relationship between the statutory scheme created by the Conflict of Interest Act, and the principles and standards laid out in Accountable Government.
As members know, a key component of the Federal Accountability Act was to strengthen conflict of interest rules for ministers and other public office holders by strengthening and enshrining in the law the conflict of interest and post-employment code for public office holders via the creation of the Conflict of Interest Act, and creating the new Office of the Conflict of Interest and Ethics Commissioner as an independent officer of Parliament with a mandate to administer and enforce the act.
By enshrining conflict of interest rules for ministers and other public office holders in legislation and entrusting its administration to an independent officer of Parliament, Canada became the only Westminster country to have created a statutory regime for ministers in this area.
An important consideration in legislating the conflict of interest regime was that this was determined to be an area in which it was possible to set out precise rules, compliance, and reporting standards. On the other hand, it was not considered desirable or even feasible to define ethical conduct in terms of adherence to statutory rules, nor can the role of an appointed official, however vital, fundamentally displace the responsibility of the Prime Minister for the ethical standards of his or her government.
Mr. Chairman, that concludes my opening remarks, and we would be pleased to address any questions the committee may have.
I'm pleased to sit on this committee, especially given that the issue of ethics has been greatly affecting the public service, recently. Over the last few years, I've been sitting on the Standing Committee on Government Operations and Estimates. I now sit on the Standing Committee on Public Accounts.
The commissioner mentioned that under the present act, she could not intervene on ethical matters and that her role was rather limited. Could you give us your opinion on this matter and explain the rationale for comments she made at the meeting held last October 20th?
Further, could you tell us where we can get details on the relationship between public office holders and lobbyists as well as individuals not registered on the lobbyists' registry? I would like to know how and where this information is to be found and how Treasury Board and the Privy Council perceive the matter.
No, I don't think so. In a Westminster system, the collective responsibility of ministers to cabinet and the consensus decision-making process are absolutely fundamental. One could argue that it's the defining characteristic of a Westminster system. It's what differentiates that system from a republican government in which you have various levels of government that all have power and collide, so as to end up either in deadlock or in some compromise.
The beauty of the cabinet system is that by bringing together a collectivity of ministers from across the country and driving decision-making on a consensus basis, public policy is developed in a way that attempts to meet the expectations of Canadians. Ultimately, of course, it's a matter of political judgment.
I think the notion of individual ministerial responsibility to Parliament for the conduct of his or her department is perfectly compatible with the notion of collective responsibility. The idea behind collective responsibility is that once the government has made a policy decision, all stand behind that decision. If a minister feels he cannot in good conscience stand behind that policy decision, then his option is to resign from cabinet.
To my mind, there's nothing incompatible about, on the one hand, having a government speak with one voice and, on the other hand, having individual ministers responsible for the powers, duties, and functions that they're discharging under their statutory mandates.
Mr. Wild, you correctly pointed out in your responses to Mr. Wrzesnewskyj that, with the Westminster parliamentary system, when Canadians feel that governments aren't upholding the ethical standards they've been elected to uphold, they throw them out through the democratic process. That's what we saw occur to the Liberal Party in 2006. We witnessed Canadians punish them in the 2008 election. Canadians just punished them again in four by-elections with four third-place finishes, including a terrible showing in Montreal, which has to cause concern to a party whose bastion of support tends to emanate from around the city of Montreal. It has to be very concerning.
We know that between the years 1993 and 2005 we didn't have this; we didn't have accountable government. We witnessed abhorrent abuses of taxpayers' dollars, and certainly what Justice Gomery referred to as a culture of entitlement had formed. We saw an elaborate kickback scheme invented whereby money was doled out beyond the reach of Treasury Board, with more than $360 million paid directly to Liberal operatives who then took money in unmarked brown envelopes and.... We don't know who gave or who directed that the money be given to these Liberal operatives or bagmen. These individuals then took that money in brown envelopes and gave it to Liberal riding associations in Quebec, but we don't know which Liberal riding associations received that money. In fact, more than $43 million couldn't even be accounted for.
This was over $360 million. Let's call a spade a spade: they did this because they were using it as an unfair advantage over the Bloc Québécois. They didn't feel they could hold them off in the province of Quebec without using taxpayers' money in an illegal fashion to do so.
Do you think that Canadians deserve to know which Liberal operatives operating out of the Prime Minister's Office directed this theft of more than $360 million from taxpayers? Do you think those people should be held accountable? Do you think they deserve to know where the missing $43 million went? Do you think that public trust will continue to be challenged if we don't get answers to these questions and hold those Liberal members accountable for their crimes?
And thank you, Mr. Wild, for your remarks.
You mentioned in your opening comments that a key component of the Federal Accountability Act was to strengthen conflict of interest rules for ministers and other public office holders. You said:
||By enshrining conflict of interest rules for ministers and other public office holders in legislation and entrusting its administration to an independent officer of Parliament, Canada became the only Westminster country to have created a statutory regime for ministers in this area.
I thought that was quite interesting. Could you tell us what other countries with similar systems of government do, if they don't do what we do? For example, what is done in the U.K., and how would you compare Canada to the U.K. and other Westminster-type countries in that regard?
Most of the Westminster countries take what some commentators would call an integrity-based approach to ethics and conflict of interest, in that it's done through a series of guidelines and guidance documents.
The United States, which does not have a Westminster system, is probably one of the most legislated systems when it comes to conflict of interest.
Canada has basically moved, you could say, partway towards that, in the sense that it's trying to balance both the integrity-based approach that most Commonwealth countries take, of having softer concepts such as honesty and integrity remain in a guidance document, while taking concepts that could be more readily reduced to a set of rules—those mainly being conflict of interest and post-employment conduct—and establishing a rules-based system around them in law.
Those are really the main differences. Australia and New Zealand operate on a set of guidelines, and in the U.K. they have a set of guidelines. But if you put it on a sort of spectrum, you would probably find the U.K. having the least amount written down, with Australia and New Zealand next, and then Canada further along that spectrum.
Mr. Wild, I'd like to continue where we left off in the first round. You've stated that the Prime Minister must answer to Parliament and ultimately to Canadians for the conduct of his office and his ministries.
Then you appeared to say that ultimately, if there's a disconnect between the ethical standards of the Prime Minister and his ministries and the expectations of Canadians and Parliament, it's up to Parliament, I guess, through our institutions, through the mechanisms that we have at our disposal, to hold the Prime Minister and his ministries to account on this ethical disconnect. Is that correct?
Perhaps you could consult your agenda and tell us chronologically over the last few years what has happened with respect to requests from the commissioner. I am certain she wants to fulfil her mandate pursuant to the expectations of government and of the machinery of government. I would imagine she meets with you regularly. I would like you to consult your agendas and see when the most recent requests were made by her, so you may inform the committee of your dealings with the commissioner.
My second question is to you, Ms. Boyd.
Are you made aware, systematically, of public office holders who are the subject of investigations for reasons of conflicts of interests or other types of investigations where there is some suspicion of potential conflicts of interest?
Could you also tell me what would be the penalties provided and what the process is? Would these people be put on leave without pay, with pay, are they transferred? Would a deputy minister, who himself has been appointed, have the power to direct such an investigation?
I'm asking you all these questions because it seems as though there are no guidelines as to who is responsible for managing the application of the code as such.
Perhaps I could comment on some of our processes, because I think that might address some of your questions.
When we have a Governor in Council appointee, whether it's a deputy minister, a CEO, a chair of a crown corporation, or a head of a federal agency, we make sure that, number one, they understand the requirements of the position. When we post some of these Governor in Council appointees on the public website, the notice of vacancy, in the cases when we do post a notice of vacancy, will specify that the guidelines are a term and condition of appointment. Prior to being appointed, we ask that Governor in Council appointees sign a certification form so that they understand that it is a condition of appointment.
The Conflict of Interest and Ethics Commissioner sets out the regime for reporting public office holders: essentially full-time Governor in Council appointees and, to a lesser extent, those Governor in Council appointees who are only public office holders, that is, those who are part-time Governor in Council appointees.
Prior to the actual appointment, we have a discussion with individuals to make them aware of the obligations under the Conflict of Interest Act. Once somebody is appointed, the person is required to certify to the Conflict of Interest Commissioner within 60 days. At that point, it is the Conflict of Interest Commissioner's role to determine whether there's a conflict of interest. If at any time during the tenure of a Governor in Council appointee she feels there is a need for investigation, that is certainly her role. She does not interact with PCO. She does not inform us of who she's investigating, and she does not consult with us. That is her independent role, and it is up to her to determine what the penalties need to be or what the changes need to be. In some cases, it may be a divesting of their assets, and in some cases it may be some other measures that need to be taken.
Thank you, Mr. Wild and Ms. Boyd, for appearing before the committee.
I'm looking at page 31, under “Standards of Conduct”, specifically to “Ministerial Conduct”, which states:
||Ministers and Ministers of State must act with honesty and must uphold the highest ethical standards so that public confidence and trust in the integrity, objectivity and impartiality of government are maintained and enhanced.
I bring this up because I'm specifically referring to a Globe and Mail article this morning with respect to the abuse of the ten percenters, the MPs' franking privilege. Today's Globe and Mail states:
||One sent out by Foreign Affairs Minister Lawrence Cannon and other Tory MPs shows a picture of a little girl, with text that says the Conservative government worked to stop criminals who target children, while the Bloc Quebecois “prefers candy sentences.” A headline said: “Your Bloc MP voted against protecting children.”
I'd like to ask both of you, as an opinion, how much trust, integrity, objectivity, and impartiality did the conduct of this minister instill in the public by signing and sending out this message across Canada? I ask for your opinion.
That's helpful, so that everyone understands that the other public office holders, other than the politicians, are subject to the Conflict of Interest Act and to the bylaws and operating policies and practices of the agency or authority to which they have been appointed.
That's great. We're done.
Thank you kindly. It has been very helpful. You're excused, because we have some other business to attend to now.
I don't want to suspend. I want to just move right on to make sure we have time to deal with the issues still before us. We'll circulate for all members copies of both motions that are outstanding in our committee business, in case members don't have that.
Colleagues, the first motion, by date of notice, is Mr. Poilievre's motion, which is before you. I won't read it.
Mr. Poilievre, would you care to move your motion?
The second item is a notice of motion by Mr. Del Mastro. I would like to advise the members that when I received the motion I asked for the clerk's advice. I also asked the Auditor General to examine the motion and give me some information as to the rules of the game under which she operates. I have, in both official languages, the response from the Auditor General, dated November 13. She says:
||Thank you for your letter dated 9 November 2009, informing me of the motion before the Committee, to request that my Office “conduct a full audit of the sponsorship program to determine which federal Liberal riding associations received stolen funds, and to clarify for Canadians who received the missing $43 million dollars”.
|| I wish to inform the Committee that we do not have the authority to undertake this audit as our mandate is limited to federal departments and agencies.
||Further, my Office has already conducted a full audit of the sponsorship program, the government of the day commissioned a public inquiry and the RCMP has investigated this matter.
||I hope that this information is helpful....
We can circulate copies of this to the committee.
For information purposes only, the committee's mandate is included under Stand Order 108(3)(h). We have dealt with this before, but the first five subparagraphs under (h) refer to matters related to the Information Commissioner, the Privacy Commissioner, and the Conflict of Interest and Ethics Commissioner. The only part of our mandate that remains would be subparagraph 108(4)(h)(vi), which says that we can propose, promote, monitor or assess “initiatives which relate to access to information and privacy across all sectors of Canadian society and to ethical standards relating to public office holders”.
The motion by Mr. Del Mastro refers to an investigation and asks the Auditor General to conduct an audit. We are not authorized to review her work or specifically direct her to do anything, and the Auditor General says she cannot do that because it's beyond her mandate. Also, in regard to determining which federal Liberal riding associations have stolen funds, we have no responsibility for political institutions and associations.
The clerk's opinion and advice is that this motion is out of order--