Oh, I'll watch you, absolutely.
The Chair: Thank you.
Mr. Pat Martin: Mr. Fortier, you're here really because the restoration of our beloved West Block has turned into a multi-billion dollar fiasco, and this isn't the only project undertaken during your watch where we're still mopping up. There seems to be a pattern of meddling and tampering and allegations of political interference on some of the most major files that you were associated with.
We're here to talk about the West Block fiasco, first of all, but how can you not see the impropriety, or at least the appearance of conflict, when Sauvé pays a well-connected Conservative lobbyist $140,000 and then conveniently runs into Nolin's assistant in a restaurant over lunch, and, shortly after, the contract is amended so profoundly that only Sauvé could win the job?
If we don't connect the dots there, as MPs we're not doing our job, because this has all the appearances of impropriety, and frankly, no one can believe.... And we're left with the results. We have the tangible problem to cope with now because of the way it was handled and--I would say with all due respect--mismanaged, or worse, under your watch.
There's a second thing I'd like to ask about. We had to learn through a labour relations tribunal about the two bureaucrats you fired. You forced Mr. Tipple to allow RBC, your current employer, to get this contract regarding the sale of the buildings, and then you fired these two guys because Tipple saw you talking to Byers and was about to turn you in, or at least report this. All of a sudden, they get fired. The courts have called this a sham and a travesty and have given them millions of dollars in settlement. So frankly, you're costing us a lot of money, Mr. Fortier, even long after your brief tenure as a senator is over.
The third thing I'd like to draw your attention to is today's Ottawa Citizen and this massive front-page story talking all about this huge IT contract, which you steered away from this man--who was probably the front-runner--and steered toward CGI, with whom you had a business relationship. The minister himself, the public works minister, was connected to CGI.
Frankly, your brief tenure as public works minister is just riddled with really inappropriate behaviour, and because you were in the Senate, we couldn't drag you before this committee to ask you these questions. I wonder why the , if he wanted a special representative from Montreal in his cabinet, did not just invite you into his cabinet, the way they invited Stéphane Dion into that cabinet. You don't have to be an MP to be a cabinet minister, but they stuffed you in the Senate where we couldn't get at you. So we do appreciate your being here today, but it's been terribly frustrating, as the oversight committee for the Department of Public Works, to have a public works minister who's hiding behind the red chamber.
So what do you have to say about--
The Chair: Yes, Mr. Warkentin.
I have, in the literal sense--I have some friends who are avid fishers--and there's nothing more frustrating than being on a fishing expedition and not catching anything.
So you'll understand the frustration of the opposition today, because in fact they're on a fishing expedition and they're not catching anything. What we hear, again and again, from every witness that they bring forward and call to this table, is that there was professionalism within the department as it relates to this contract. Your testimony today reinforces the fact that the West Block contract was done under the professional guidance of the department. You've reinforced that today, so we see that they really are on a fishing expedition when they start to bring up issues that actually weren't even on the agenda today, and they start talking about the sale-leaseback.
You'll recall, a couple of years ago, when I was new to this committee, that we as a committee undertook a study of the sale-leaseback. I see that there's one member at this table who was here with me at that time, but I'll remind committee members what happened at that time. There have been some questions about these banks that were called in. In fact, there were two banks called in, but there were three external advisers that determined who these banks would be.
So we, as the committee on government operations and estimates, undertook a study for some time to ensure that there was no funny business as it relates to the contracting to these banks. We were actually assured and heard testimony that three external advisers to the minister actually made this decision. We as a committee, the committee that was incarnated at that time, were very satisfied that full due diligence was undertaken in the selection of that.
As it relates to the decision to sell these, there was an assessment done by yet a third bank, because it was important that two banks set the parameters, and then a bank that assessed the contract later on would ensure that, in fact, the taxpayer was getting best value for money. Deutsche Bank undertook that and actually praised you, Minister, in the work that your department had done in getting best value for the taxpayer.
We also know that this July, the Auditor General, having looked at this, determined that there was no reason--absolutely no reason--to even review this any further. She felt that there was, again, value for the taxpayer and that no rules had been broken, and that the best thing for Canadians had been undertaken during your time as minister, so we want to congratulate you for that, Mr. Fortier.
In terms of the scope of the contract at hand, and the reason that we're actually here today, there are a couple of things that you reinforced today, Mr. Fortier, and that was the testimony that we heard from a number of high-ranking officials within the public works department.
We did hear testimony from Public Works that there was actually a rationale; when these members opposite, in particular, start talking about changes that were made to the contracting process, there were actually legitimate reasons for that. They actually described the changes that were made in terms of the scope of the work to the north towers, that the changes made actually were the same changes that were made to the contract as it related to the southeast tower, I believe. That was something that had been done some time before and they felt that they needed to make those changes, so that it better reflected the parameters that were given for the other one because that tower reconstruction had been quite successful.
Mr. Tom Ring actually stated, as it relates to the question of any political involvement in the pre-qualification of the LM Sauvé contract, that, no, there was no political involvement in that change. When asked if the minister, in fact, awarded the contract to LM Sauvé, he said that, no, the contract request was approved at the ADM level--again, reinforcing what you have said today.
Then further, we asked him if anyone from the minister's office was involved in the process. Tom Ring--for those of you who don't know who Mr. Ring is, he's the assistant deputy minister--said that, no, there had not been any political pressure from the minister's office.
Thank you very much, Chair, and members of the committee for this opportunity today to speak to you.
My name is Duff Conacher. I'm the coordinator of Democracy Watch and also the chairperson of the Government Ethics Coalition, which is made up of more than 30 organizations from across the country, representing more than three million Canadians in total membership. As well, Democracy Watch coordinates the Open Government Coalition and the Money in Politics Coalition, also multi-member group coalitions with groups from across the country.
For more than 10 years Democracy Watch has been pushing for changes to close systemic loopholes in the rules in many good government laws, and that is what I'm going to talk with you about today: the loopholes that Democracy Watch sees revealed by this and similar situations that have arisen recently.
I'm only going to be able to sketch out the loopholes, and I apologize in advance. As I was away for personal reasons all last week, I was not able to prepare a brief, but I'm happy to provide details to the clerk and researchers for the committee of the actual sections in laws that I'll be talking about concerning this overall situation and similar situations.
There are also a lot of technical terms, and as I still need to improve my French, I will give my evidence in English.
I will say that, overall, there are many, many loopholes in key good government laws that allow such situations to arise and also questions to arise about these situations. Until these loopholes are closed, you will see these kinds of situations continue to arise.
In other words, the system is the scandal, and until the system is cleaned up, you will continue to see these kinds of questionable situations arise far too frequently.
I'll start by summarizing the loopholes. First of all, within the contracting policy of Treasury Board, section 8.2.1 states that the minister “customarily delegates contracting authority” to public servants, but they're not required to do so. So it's actually legal for ministers to be intervening in the contracting process under the Treasury Board policy itself.
When you combine that with the very vague notion of what ministerial responsibility is and where the lines are drawn between what ministers do, what staff do, and what public servants do—and there are questions right now concerning staff even testifying before committees about their actions, which is another situation that remains unresolved—you have a very vague situation concerning responsibility, and, beyond responsibility, actual accountability for what happens in contracting processes because the decision-making is legally mixed between the minister, ministerial staff, and public servants.
When you combine that with an Access to Information Act that does not allow you access in many cases to the documents that would track a paper trail of a contracting process, because of loopholes in the Access to Information Act that allow secrecy in this area, you have a situation where it is very easy for a minister to be involved in the contracting process and yet escape responsibility or accountability in any way.
Beyond that, under the Conflict of Interest Act, ministers are allowed to be involved in situations, even if they have a private financial interest in the situation, as long as the matter that is being dealt with is a matter of general application. It could be argued that an RFP, because it's generally aimed at a bunch of different companies, during that whole time period is a situation that is a matter of general application. It doesn't involve a specific company yet because bids haven't been received. Even when bids are received, they're received from more than one company, so even then it could be viewed as a matter of general application.
The Conflict of Interest Commissioner, although she's been on the job now for almost three and a half years, has not defined what general application means. It's a huge loophole in the Conflict of Interest Act. You cannot be in a conflict of interest as a cabinet minister when you are dealing with any matter that's of general application, even if you have a personal financial interest in that matter. That is a gigantic loophole.
I'll come back to another aspect with regard to cabinet ministers.
When you turn to the Lobbying Act, it is legal to lobby without registering. It is legal if you are not paid to lobby. So if you have a lobbyist who is paid by a company, that lobbyist can simply claim they were paid to give advice to the company and that they did the lobbying for free, as a volunteer. It's a very simple arrangement for anyone to do, and then you do not have to register. Or you can say, “Oh, yes, I was paid, but I was paid as an employee”. If you're paid as an employee to lobby the federal government, an employee of a for-profit corporation, you do not have to register if you do not lobby more than 20% of your time. Every six months is how it's counted, so you can lobby for 34 days, eight hours a day, full time, and not have to register as a lobbyist.
So you can even be paid and you don't have to do the “Oh, I was giving advice and lobbying for free”; you can say, “Oh, yes, I was paid to lobby, but I lobbied 19.9% of my time”.
As well, I would just mention--it's an unrelated loophole, but it's also a giant loophole--that you do not have to register if you were lobbying about the enforcement of a law or an inspection or administration of a law or a regulation or a policy or code. That's just another loophole that doesn't really apply to this particular situation that's arisen.
So secret lobbying is legal. In terms of cabinet ministers, there was a code brought in by Prime Minister Chrétien to prohibit cabinet ministers--sort of--from raising funds and soliciting funds, especially from entities in which they had dealings as a cabinet minister. now, this was just a code; it was the Prime Minister's code. It wasn't ever enforced at all. It was enforced by the Prime Minister himself, who didn't really have an interest in finding any of his cabinet ministers guilty of violating this code.
Apparently there's now a new code that Prime Minister Harper has issued that we still haven't seen. It's secret. These rules are not in the Conflict of Interest Act, and they should be, because that code by Prime Minister Harper is, again, enforced by him, and the rules, again, aren't even made public yet, so we don't know where the lines are.
The real controversy that Democracy Watch sees arising from contractors attending a fundraising event is not that they attended the event and donated a nominal sum, because the political finance donation limits are fairly good now--not as low as they should be, but fairly low. The real question about that situation is who invited them to come to those fundraising events? Was it the minister or ministerial staff soliciting those donations? If so, then, of course, any entity that would be dealing with a minister who receives an invitation, the not-so-subtle message would be, come and make the donation or you're not going to get any further with this minister. That's why Chrétien outlawed it--again, sort of, as it wasn't enforced--and that's why it needs to be put in the Conflict of Interest Act, again, as the Ethics Commissioner has actually recommended.
Finally, we need to have a safeguard in place that's a front-line safeguard and also the end safeguard that you need, and that's effective whistle-blower protection. Currently the system is not strong enough. Not everyone's protected. For example, political staff are not protected, nor are suppliers or contractors protected under the whistle-blower protection act. It's only directed at public servants, not even all of them. So suppliers, political staff, and contractors are not protected. Even if they see wrongdoing from retaliation, they can't complain under the system and receive protection from the system.
When you add up all of these loopholes, you see that all of the players have very vague rules and can escape accountability and responsibility, can act in secret, and actually can act unethically. It's not surprising at all that these situations arise and they'll continue to arise and you'll continue to have these unclear situations about whether anyone's guilty of any wrongdoing as long as these loopholes exist in the rules, the enforcement's weak, and you have an overall situation of secrecy.
I welcome your questions.