EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, December 12, 1995

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[English]

The Chairman: We'll start the meeting for today. We have Bill C-106, and today we have gentlemen from the Office of the Auditor General with us.

We have Richard Fadden, assistant auditor general and legal counsel, audit operations; and Alan Gilmore, principal, audit operations. You've been here before. You know the procedures. Please start with your opening statement and then we'll go to a round of questioning.

Mr. Richard Fadden (Assistant Auditor General and Legal Counsel, Audit Operations, Office of the Auditor General): Thank you for inviting us to discuss our 1985 audit of the Law Reform Commission. Although the audit is somewhat dated, we hope its findings may be helpful for your consideration of Bill C-106.

Our audit focused on financial and management controls relating to the overall program as well as on projects. We would be happy to discuss these matters with your committee. However, I hope you will understand that our audit mandate under the Auditor General Act does not provide for us to comment on the merits of the legislation per se.

Our 1985 value-for-money audit on the Law Reform Commission raised a number of concerns about the management and the administration at the commission. While we noted some progress in our follow-up report two years later, further improvements were required. I would like to review our audit findings with you.

[Translation]

We were concerned about the relevance of the work of the Commission. The existing legislation contained requirements for the Commission to submit a research program to the Minister of Justice for approval. We found that the Commission had not submitted a research program to the Minister in over ten years. We concluded that such submissions may have helped to focus the Commission's research efforts towards areas of legislative priority.

We note that the current Bill establishes an Advisory Council, which upon the request of the Commission, will provide advice on any matter relating to the purpose, strategic direction and long-term program of studies. In addition, it requires the Commission to consult with the Minister of Justice on its annual program of studies.

Like its predecessor, the legislation requires the Commission to submit an annual report on its activities to the Minister of Justice who in turn is required to table it in Parliament. The proposed legislation further requires that the annual report include the financial statements of the Commission, as well as the Auditor General's audit report on the accounts and financial transactions.

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[English]

Mr. Chairman, I would also like to point out that although the commission will be established as a corporation under schedule II to the Financial Administration Act, it may not be subject to value-for-money audits by our office as was the case in 1985 under the Auditor General Act. The bill specifically provides for an annual financial audit by our office, but this could be interpreted as limiting the office to only an annual financial audit. It is, of course, for Parliament to prescribe the audit regime it considers appropriate for the proposed commission.

Our 1985 audit also found a number of weaknesses in the commission's planning and management of research projects.

All of the legal research carried out by the commission was conducted by consultants under contract. However, the commission did not establish clear contracting procedures and rules and the projects did not have clear objectives and deadlines. Further, the government contract regulations did not apply to contracts entered into by the commission because of its ``commission status''.

Because the proposed legislation establishes the commission as a corporation under schedule II to the FAA, the government contract regulations will now apply. We hope that if a new commission is established it will take into account our audit findings on contract and project management.

[Translation]

The evaluation of the Commission's program was the remaining area of concern of our previous audit. The current Bill calls for the creation of an Advisory Committee, which on the request of the Commission, may review the Commission's performance.

On the basis of our previous experience, we would suggest this provision be strengthened to require a review of the Commission's performance after a suitable period of time, say five years. Such a review would assure the Minister and Parliament as to the relevance and quality of the Commission's research and advice.

[English]

In closing, Mr. Chairman, I would like to thank you once again for inviting our comments. I shall be pleased, with my colleague, to answer any questions you might have.

The Chairman: Thank you very much.

The first round of questioning is by Madame Venne for ten minutes.

[Translation]

Ms Venne (Saint-Hubert): Gentlemen, thank you for coming since it is upon my request, and certainly because of my insistence, that you are here.

It is understood that you are not here to comment on policy. Rather, you are here to discuss the follow-up and recommendations that you made regarding the other Commission.

In your 1988 follow-up, you pointed out that the former Commission have still not undertaken a global evaluation of the effectiveness of its program three years after your recommendations.

I would like to know if you find that normal. Do organizations like this Commission often take that much time to submit to your recommendations? In your opinion, is this one of the reasons why it was abolished at that time?

Mr. Fadden: Do we think that the former Commission's decision not to self-evaluate was normal? No, especially since the agency was independent from government.

If the Commission had been accountable to the Minister, there would have been some way of determining whether it was useful or not. However, given the Commission's independent status, it was our opinion that it would have been particularly useful for it to conduct an evaluation within the timetable prescribed by law.

Was this taken into account when the previous government decided to abolish the former Commission? I cannot answer that question, Mr. Chairman.

Ms Venne: The former Commission was roundly criticized by your office. In 1985, the Office of the Auditor General of Canada had conducted an in-depth analysis of the operation and management of this Commission. In his report, the Auditor General did not refer to the Commission's project management methods in gentle terms.

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Among other things, I can quote a very interesting little paragraph:

10.13 Since 1972 the Commission has not revised its original research program or submitted a supplementary or a second program, despite extensive changes in its work. Also significant delays have occurred in carrying out its research program and significantly more resources have been committed to it than were envisaged in 1972. For example, none of the estimated completion dates was met...

Your statements were very eloquent.

You certainly had the opportunity to see what this new Commission will look like. How can this future Commission remedy the problems that were raised in your 1985 report?

Mr. Fadden: I will try to answer the question, but I must admit that in doing so, I will be predicting the future. That's always a little difficult.

I think that there are some elements in the new legislation that will improve the situation of the new Commission. Among other things, it allows the Minister to order the preparation of reports that are of particular interest to the current government.

One of our specific complaints regarding the former Commission was that its work does not correspond to the government's priorities. If money has to be spent, the Commission must ensure that the studies that it chooses to conduct are likely to be of some interest to the government and Parliament.

In that sense, we think that the new legislation, which allows the Minister to request the production of specific reports, will be useful. We also think that the fact the new Commission will be subject to the rules of government regarding contracting out will help.

Since the former Commission did not have a mandate from Her Majesty, it was not subject to the rules concerning contracting out. One of our most important concerns was that its project management and contract practices left a great deal to be desired. We feel that if this new Commission respects regular government standards, that will help.

Another one of our concerns, which was rather implicit in our report, was that a significant proportion of an approximately $5 million budget was being spent on administration. There was quite a large permanent staff and five commissioners rather than four. We believe that the current bill will allow for some reduction in the amounts that must be spent for administrative support.

On the other hand, we do regret the fact that the new legislation does not contain the provision in the former legislation which suggested to the Commission that it used existing facilities. For example, the Commission could have invoked the former legislation to say: ``I will use all the administrative services of the Canadian Human Rights Commission.''

This provision is absent from the bill. It seems to us, particularly if the government wants to create a small Commission, that there would be some advantage to suggesting to the Commission that it use the administrative support services of an existing agency. Such a provision does not appear here.

We also regret somewhat that the audit provision contained in the bill does not allow us to undertake a resource optimization audit such as the one we did in 1985 since the bill limits us to a financial audit.

I don't know if I have answered your question, but those are general comments on the issue.

Ms Venne: The previous government had concluded that the functions of the former Commission could be executed appropriately if the responsibility to order research from non-governmental organizations with specific mandates was transferred to the Department of Justice. We all recall that. The Minister of Justice and his department would thus solicit the opinions of researchers, and practitioners on a factual basis. The Law Reform Commission was therefore dissolved and the resources that were to be maintained were transferred to the Department of Justice. I am giving you some background here but I think it is necessary.

I would like to know if you conducted an operation of audit of the Law Reform Division of the Department of Justice which succeeded the Commission.

Mr. Fadden: Non, Mr. Chairman.

Ms Venne: You haven't done so. All right. I will stop here for now, Mr. Chairman. I will continue during the next round. Thank you.

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[English]

Mrs. Ablonczy (Calgary North): In point 10 you say that the current bill calls for the creation of an advisory committee that on the request of the commission may review the commission's performance. Now, as you're aware, the commission itself appoints the advisory committee, so from an auditing and performance evaluation point of view, how satisfactory is it for a commission to be appointing the body that is supposed to review its performance?

Mr. Fadden: From the perspective of the theology that animates evaluation and audit, it is far from an ideal situation. On the other hand, I think it's fair to say that it's probably better than no evaluation at all. In fact, the system we have in Canada, as I'm sure you know, balances the two. Most departments have internal audit and evaluation shops, but the difficulties you imply in doing these evaluations are compensated for in part by the existence of organizations such as the the Auditor General's office.

Mrs. Ablonczy: You are suggesting in your presentation that the Auditor General's office play that balancing role. Is there room for that in the way this commission is set up at the present time?

Mr. Fadden: Mr. Chairman, the audit clause contained in the current bill suggests that the Auditor General should do an annual financial audit. If we apply the general rules of statutory interpretation, we believe that Parliament is implicitly telling us that we are not to do a general value-for-money audit of the commission. Under the previous regime, the old commission, there was no clause of that nature, so it fell under the general value-for-money mandate that we have at the Auditor General's office.

I don't mean to suggest that we've done an exhaustive legal study of that particular clause, but at first glance it appears to us that it would be difficult for us to do a study similar to the one we did in 1985.

Mrs. Ablonczy: You do make that point in your presentation.

One of the concerns I have with this legislation is this question of independence. Much is made of the fact that this an independent body advising the minister as to how Canada's laws need to be updated and revised. However, this body is, in fact, appointed by the minister. If we were to make some changes in the appointment process for the commission itself in order to enhance its independence, which I think we all agree is desired, from your point of view what sorts of things could be done in order to enhance that quality of independence?

Mr. Fadden: Mr. Chairman, there are a range of appointment tools available to the government and Parliament, such as hiring somebody on contract to the tenure of office given to federal judges and people like the Auditor General, whose removal requires address by both Houses of Parliament. If in the short term you wish to change something, you would have to change the method of appointment from appointment for pleasure to appointment under good behaviour.

I'm simply trying to answer your question in a factual sense. I don't mean to suggest I'm taking a policy position.

Mrs. Ablonczy: You're not recommending any of these; you're just saying objectively that these are things that could be done.

Mr. Fadden: Yes.

Mrs. Ablonczy: Is there anything else that comes to mind?

Mr. Fadden: I think the other thing that could be done is appointing them for fixed terms as opposed to indefinite terms. It makes it relatively more difficult to remove persons when they have fixed terms, even if they're appointed under pleasure.

Mrs. Ablonczy: What about the appointment process itself? Is there a broader appointment process, rather than upon the recommendation of the minister, that in your view would be practical and effective in appointing an appropriate group of people to do the job but perhaps enhance that factor of independence?

Mr. Fadden: Under our current system appointments to governmental bodies are usually made by the federal Crown, so it's very difficult once you take that basic principle as a given to develop another model. I do know there are a number of statutes that require either the Governor in Council or the minister to consult with various parties in Parliament or with other institutions. They require consultation, in other words, before the appointments are made. That might be another mechanism.

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That's not a very good answer, but I'm not an expert on the law of appointments.

Mrs. Ablonczy: I think that will be all for now. Thank you, Mr. Chair.

The Chairman: Thank you.

Mr. Regan.

Mr. Regan (Halifax West): My question is in relation to this issue of the advisory committee and its appointment by the commissioners. Are you aware of other situations like this and how they work in practice? Does it not work that, in fact, it ends up being the minister who appoints through the commissioners? How does that work with other cases that are similar?

Mr. Fadden: I don't know of any, and Mr. Gilmore tells me he doesn't either. I'm sorry.

Mr. Regan: Okay. In terms of this issue of the type of audit there ought to be, is there an ideal situation you would suggest? For instance, should it be referred to as a management audit as opposed to a more narrow term? What should be the right term, in your view?

Mr. Fadden: Well, if it is Parliament's intention that we do an annual financial audit of the commission, then the wording we have there is correct. Are you asking what if we wish to add the commission to the Auditor General's general mandate on value for money?

Mr. Regan: Yes.

Mr. Fadden: I hadn't anticipated the question in quite that fashion, because if there had been no audit clause at all, we believe the commission would have been subject to a value-for-money audit in the regular course of events. That being the case, you would not have had an annual financial audit.

I'm suggesting wording to legislation, which is something I'm not supposed to do.

An hon. member: You're among friends.

Mr. Regan: If we were going to consider putting it forward, I'm sure we'd have someone review it from that perspective.

Mr. Fadden: I guess the point we'd like to make generally is that to have an annual financial audit for a commission that is going to spend about $3 million a year may be a bit excessive. It requires a bit of work in preparing it, it requires us to plan for it, and it will require systems in the bureaucracy to deal with it.

From our perspective, the ideal situation would be the deletion of clause 22. That would then bring the commission under the general mandate of the Office of the Auditor General for value-for-money purposes. I would want to be clear that if you should opt to do that, you would lose the annual financial audit.

I also want to be clear that if Parliament wants us to do both, we'll do both. It's just that from a strictly value-for-money perspective, it's not entirely clear that one would get value for an annual financial audit of such a small entity.

Mr. Regan: Thank you.

I think I've asked the question my colleague had in mind originally, but hopefully he has another one now.

The Chairman: Mr. Knutson.

Mr. Knutson (Elgin - Norfolk): You're saying $3 million per year is too low to engage the time of the Auditor General on an annual basis. What would be a more appropriate threshold?

Mr. Fadden: I wouldn't want to be interpreted in quite that way. If Parliament wants us to do a $500,000 audit, we will do it and we'll do it quite happily. I was merely trying to suggest that in an era of diminishing resources, the Auditor General should try to assign his resources in those areas where he'll get the greatest return for this House and for the taxpayer. In the case of the $3 million entity, that wasn't immediately apparent to us from a strictly auditing perspective.

You may have other reasons in mind for having us do it -

Mr. Knutson: No, we don't.

Mr. Fadden: - that would be something the Auditor General would assign a priority to. I honestly don't know what the threshold is. I'm not trying to avoid the question; I just don't know.

Mr. Knutson: Okay. Would it make just as much sense to have the books audited by an outside accounting firm, such as a CA firm in Ontario?

Mr. Fadden: That poses another difficulty, because from our perspective, it would create a precedent. The public accounting firms also do not necessarily audit to the same level of attention as we do, nor do they audit the same sorts of things.

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It seems to us, for example, one of the things that should preoccupy an auditor of an independent agency, be it this one or another one, is whether they are operating within the frameworks of the law and the rules that bind them. Since they're independent, it's easier for them to go off and do something different. It's our experience that, broadly, public accounting firms do not give as much attention to authorities issues as do those that are in the public sector.

Mr. Knutson: I don't know if you have clause 22 in front of you.

Mr. Fadden: Yes, sir, I do.

Mr. Knutson: If we made it ``The accounts and financial transactions and other matters of the commission shall be audited annually by the Auditor General'', would that be vague enough to allow you to audit whatever you wanted? We could say ``from time to time'', if you want to get around the annual issue.

Mr. Fadden: If I can draw an analogy to try to be helpful, crown corporations are required to undergo a special examination once every five years. If the committee decided on a timeframe in which it wished a full examination to take place, that would perhaps be one way of going. It could be something along the lines of ``The commission shall be audited once in five years by the Auditor General'', or words to that effect.

Mr. Knutson: ``At least once.''

Mr. Fadden: At least once in every five-year period.

Mr. Knutson: To get around this issue of value for money, we should term what we want as....

Mr. Fadden: If you just say the commission shall be audited at least once in five years.

Mr. Knutson: All right; not the accounts and financial transactions of the commission.

Mr. Fadden: That's correct.

Mr. Knutson: Let me go to the philosophical point. Let's say the commission goes back in a year or two and presents a report on gun control. How would you audit value for money?

Mr. Fadden: That particular component I think would relate to the commission's effectiveness as opposed to its economy or efficiency or whether or not it was operating within the rules. I think our initial position would be, as is suggested in the Auditor General Act, that it is the responsibility of government entities to assess themselves first on whether or not they're effective, and then we audit that assessment. It is only under the most extreme circumstances, I think, that the Auditor General has said he himself would ask the office to audit the effectiveness, in a policy sense, of an institution such as the commission. It is so close to the political and policy processes that audit would be very difficult indeed.

Mr. Knutson: What does ``effective'' mean, then? You might have a report on gun control. It might be a wonderful report, thoroughly researched, with excellent logic. It goes to a particular government. They don't like it, for political reasons, policy reasons, or whatever. It sits on the shelf. Ten years later it's acted on and everyone says that report was really effective. Ten years later, how do you...? It seems to me it's like trying to evaluate pure research.

Mr. Fadden: To some degree that's true. That's why we say in most instances effectiveness of that nature should be reviewed by the government itself, in the first instance.

Mr. Knutson: Right.

Mr. Fadden: We then try to evaluate the methodology used by the government to evaluate its own effectiveness. I think that particular section was put into our act by Parliament to take into account the concerns you've just set out. In some situations it is extremely difficult to do that.

On the other hand, you have other instances of dealing with operational effectiveness, which is rather easier. If you lower the level of the effectiveness of which you're speaking, it becomes easier.

Mr. Knutson: Those are things such as that they don't get the reports on time, they don't work to deadline -

Mr. Fadden: Or something like that; that's right.

The previous commission evaluated itself largely on the basis of whether or not the government of the day and the parliament of the day took its advice. That's one criterion that could be developed. It also used whether or not the courts referred to its work and its judgments.

If we were ever asked to do this sort of thing, what we would try to do is to elaborate a series of criteria of that nature, try to get the agreement of the commission and of experts in the field, and, to use the vernacular, do our darnedest. But we would agree it would be very, very difficult indeed to do it objectively.

The Chairman: Madam Venne.

[Translation]

Ms Venne: In paragraph 10.30 of the 1985 report, the Auditor General pointed out:

10.30 The lack of documented procedures and guidelines has resulted in deficiencies in the contracting practices of the Commission.

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Among other things, the report cited the fact that justification for choosing a particular consultant or a researcher was not documented. The report concluded that in the absence of tendering, written justification ``would be a necessary procedure to ensure reasonableness of a particular choice''.

I would like to know whether you're not apprehensive that a similar situation could occur in the new commission.

Mr. Fadden: There's always that risk even if the procedures in place are virtually perfect. However, as I tried to explain earlier, the new commission will be subject to federal regulations on contracting out and those regulations do contain some restrictions and procedures.

Having said that, above and beyond that, there is nothing in the federal administration that sets out contracting out methods more forcefully.

Ms Venne: Thank you, Mr. Chairman.

[English]

The Chairman: Thank you.

Mrs. Ablonczy.

Mrs. Ablonczy: Mr. Chairman, I have a question, then my colleague may have one as well.

The Chairman: We have no one on the list. Go ahead.

Mrs. Ablonczy: Thank you, Mr. Chairman.

I want to get back to this value-for-money audit idea and also to your suggestion in point 11 of your presentation that the effectiveness of the commission be reviewed, say, every five years.

I know that in other legislation such as the Young Offenders Act and some others a provision for a parliamentary review of the effectiveness of the legislation within a specific timeframe is written into the legislation. In your view, would it be appropriate to amend the legislation to write in a provision such as you've recommended?

Mr. Fadden: Mr. Chairman, if I were to address that question very directly, I would be commenting on the substance of the legislation, so if you'll forgive me, I'll sort of take an auditor's excuse and simply say that from our perspective just about any entity that is spending any money at all can easily justify an evaluation or a review of its ongoing usefulness every five to ten years. But again, I would not want to be interpreted as suggesting that it is absolutely necessary in this case, because that's a policy matter.

Mrs. Ablonczy: With respect, you have raised it in your point 11, and so I think it's fair to ask you if something like that would fulfil the recommendation you made in point 11.

Mr. Fadden: Mr. Chairman, I think I was referring to the possible review of the commission's work by the advisory committee to which Madame Venne had made allusion earlier, so in my mind at any rate, it wasn't exactly the same thing.

But you're quite right. Increasingly Parliament is inserting the requirement for a parliamentary review in statutes, and on the face of it, we believe that's a reasonable thing to do.

Mrs. Ablonczy: I appreciate that. Thank you.

Mr. Ramsay.

Mr. Ramsay (Crowfoot): In number 11 you refer to the ``relevance and quality'' of the commission's research and advice. How does an audit determine relevance?

Mr. Fadden: Well, Mr. Chairman, that's an excellent question, and I think we would have to admit that to some degree the answer has to be subjective. But in reviewing the work of the previous commission, it was very clear that a large part of its activity was off-stream regarding the priorities of the government of the day and of parliamentary interest.

We're not meaning to suggest that everything the commission does should be exactly what Parliament or this committee or the minister wants it to do, but it seems to us reasonable to ask that there be some congruence between the two.

So if we were going to look at this sort of thing, we would look at the work plan of the commission, at the priorities of the government of the day and - to the extent we can deduce them - at the interests of parliamentary committees to see to what extent there's a meshing between the two. We would also look at the extent to which the various reports of the commission are used by Parliament, by the courts and by other institutions who might benefit from them.

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Mr. Ramsay: From your previous audits of the old law commission, to what extent was this work relevant?

Mr. Fadden: I think, Mr. Chairman, we concluded that there was a serious problem in that respect, and to some degree the commission disagreed with us on that. They thought they were rather more relevant than we concluded they were. They, for example, were undertaking a really major review of the criminal law, parts of which were of interest to the government of the day and parts of which appeared not to have been, just to give you an example.

I must admit, however, that in preparing for this hearing we did not have access to our working papers, so it's very hard for us to give a much more detailed answer than that. But we really had relatively serious concerns about the relevance of the work over time.

Mr. Ramsay: Was there a requirement of the previous commission to report to the minister on a regular basis?

Mr. Fadden: They were required to provide the minister with an indication of what their program was going to be, and the minister was required to indicate whether or not he or she approved. This was required to be tabled in Parliament. However, the commission did not do that over a 10-year period, so the requirements of the legislation were not followed, and any benefit that might have flowed from following the procedure was lost.

Mr. Ramsay: Was there not a statutory requirement that this reporting be done?

Mr. Fadden: Yes, Mr. Chairman, there was.

Mr. Ramsay: Then how is it that the law was simply ignored for that period of time?

Mr. Fadden: Mr. Chairman, I'm not sure I can answer that. All I can say is that from our perspective, when we undertook the audit we found this to be the case, and we reported it to Parliament. My understanding was that it was not a matter of great contention at the time, but again I'm relying on my memory and not on our detailed working papers.

Mr. Ramsay: Of course I was concerned about why the old commission was disbanded, and I asked some questions of previous witnesses about that. They said it was a matter of cost. However, if I was the justice minister and these people weren't abiding by the law and were so independent that they could function for 10 years and not follow the law in terms of reporting and so on, I think that would be real justification to wonder why they should continue to exist.

Now, what's the difference between that situation under the legislation that governed the old commission and this new bill that's going to govern this new law commission? We've talked about independence, and there's a degree of assurance there's going to be independence. How do we know that independence isn't going to be exercised in the same way perhaps or more so than it was with the old commission? Is there any reassurance?

How in the world can people who are in the business of reforming the law simply ignore the law that governs them? How could that happen? How could it continue? Is there any safeguard against the same kind of situation occurring in this situation?

Mr. Fadden: Mr. Chairman, why it happened I really can't answer. I wish I could. If I knew I would say.

I think the only real guarantee, Mr. Chairman, against it happening again is the vigilance of the Minister of Justice, on the one hand, who will remain responsible to some degree for this commission and who is required to consider its reports and programs and to table them in Parliament, and I think, if I may say so, it will rely to some degree on the vigilance of parliamentary committees.

That is one of the dangers of establishing very independent entities. They tend to go off on their own, and sometimes they do not respect all the requirements that are imposed on them.

Mr. Ramsay: Is there a requirement under Bill C-106 that anyone be responsible to this committee, including the justice minister, in the application of the act?

Mr. Fadden: I believe there is a clause in the bill that says the commission is responsible to Parliament through the Minister of Justice, so as I understand the system, the accountability would be first to the Minister of Justice and thence to the committee.

Mr. Ramsay: But that's in terms of filing reports to the justice minister and the justice minister's requirement to file them with Parliament and to submit any responses to the report that he has. Are there any other requirements in terms of accountability?

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Mr. Fadden: Mr. Chairman, I think the member is correct in saying that there are a number of specific requirements relating to the tabling of reports and what not, but I was referring in particular to clause 6, which reads:

The Commission is ultimately accountable, through the Minister of Justice, to Parliament for the conduct of its affairs.

Just reading this as an auditor, to our minds that means that in the end, through the Minister of Justice, the commission is accountable to Parliament for everything it does.

Mr. Ramsay: Did the old act have a similar section in it?

Mr. Fadden: I'm not sure. I'll look it up. I do not think it did, Mr. Chairman.

Mr. Ramsay: Then if we turn our attention to clause 6, what really is the interpretation of that clause in terms of the ultimate accountability of the commission? On the one hand, we're talking about independence. On the other hand, there must be a balance between that degree of independence and accountability back to the taxpayer through the elected representatives of government.

So what does the Minister of Justice have to do? In what form can Parliament demand accountability or a report or whatever from the Law Commission except through the Minister of Justice,? Is there some way Parliament can examine the conduct of the affairs of the commission, or is that left entirely to the Minister of Justice?

Mr. Fadden: Mr. Chairman, I wouldn't presume to try to explain my understanding of the powers of this and other committees, but our experience would suggest to us that any entity that is funded by Parliament is subject to inquiry by Parliament and that notwithstanding this formal accountability through the Minister of Justice, if this committee or any other wished to summon the president and other commissioners, you would be entirely entitled to do so.

Mr. Ramsay: We'd have to get that back on the agenda, then, wouldn't we?

How much time do I have left?

The Chairman: You're about five minutes over.

Mr. Ramsay: Okay. I'll pause for breath.

The Chairman: I don't believe there are any questioners on the government side, unless you have some questions, Mrs. Venne.

Mrs. Venne: No.

The Chairman: It's a short pause, Mr. Ramsay.

Mr. Ramsay: I would like to know what the other Law Reform Commission accomplished.

I ask that because apparently when it was abandoned, there was a huge hue and cry across the country objecting to it. I have the submission of Mr. Mosley, the assistant deputy minister, indicating that the abolition in 1992 of the former Law Reform Commission of Canada provoked widespread criticism from the justice community relating to the need for independent law reform advice to the government, Parliament and the judiciary.

Was the former Law Reform Commission advising the government, Parliament, and the judiciary; and if so, to what extent?

Mr. Fadden: Mr. Chairman, as we tried to set out in our 1985 report, there clearly are instances where reports of the commission appear to have formed the basis for Parliament's enactment of legislation. I think that in one instance the commission indicated that 10 of its reports served as the real basis for statutory change. They have provided us with a number of indications where the thinking of the commission influenced judicial decisions and things of that nature.

Beyond that, Mr. Chairman, because we really didn't audit it from that perspective, it's very difficult for me to say a great deal more. I'm not trying to avoid your question. We simply didn't audit it from that perspective.

Mr. Ramsay: Whenever you create something for 21 years, fund it at $5 million a year - at least that was the amount that was being funded at the time it was shut down - and shut it down after that length of time, certainly you're going to have people who are against that action because of vested interest, influence and so on. Apparently, 30 people lost their jobs, so there would be a great degree of concern within that area.

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But I'm asking what kind of vacuum was created as a result of the cessation of the Law Reform Commission; what vacuum is this new Law Commission filling? In other words, what practical use was it? When it was shut down, we lost that use; we're now bringing it back. What is it going to provide, in a real sense?

Mr. Fadden: Mr. Chairman, I can try to give a general answer, because I really do want to be helpful.

There are a number of institutions in this town that have been set up by Parliament outside of the regular system of ministerial accountability - that is, direct ministerial control - because the judgment of this House and of this and other parliaments has been that it is sometimes very difficult for civil servants to review certain things, given the political or policy or other pressures.

It's been suggested that law reform is one of those issues. You yourself suggested a moment ago, sir, that there are lot of interests involved. This bill and the other bill called a great deal for consultations. In some ways it's very difficult for civil servants to go out and implicitly criticize their boss, the minister.

I really am not trying to take sides here, because that is not the Auditor General's job, but one of the advantages of creating commissions of this sort with some measure of independence is that it allows them, directly and indirectly, to criticize or to review the activities of government in a way that is sometimes difficult for civil servants to do. To our mind, that is probably one of the most fundamental reasons for Parliament allowing the establishment of independent agencies outside of direct ministerial control.

I suspect that's an inadequate answer but I don't think I could go much further on the basis of the work we've done.

Mr. Ramsay: Perhaps that's one of the reasons it was shut down. Was it criticizing the boss? Was it criticizing the government? They shut it down. I don't think there's any real protection against that, if they have the power to cut the purse strings or simply shut the whole thing down. If that played a part in it, or there was even a hint of it, then we're not going to get this new Law Commission really attacking the government in areas where they might think there's justification to do so, or pointing out weaknesses or flaws. If it was shut down once, it can be shut down again.

Mr. Fadden: I didn't mean to suggest, Mr. Chairman, that the commission would directly attack the government, but rather the law, which develops a certain inertia. I take your point about the government or Parliament having abolished the Law Reform Commission. But I think it's also fair to say that governmental institutions are relatively rarely abolished. If I may say, I believe that your party has argued this on a number of occasions. So there is a certain permanence to some of these institutions which has, I submit, both good and bad sides.

Again, I really am stepping, Mr. Chairman, outside of the ambit of my boss's mandate, and it would probably behove me to stop doing that.

Mr. Ramsay: Mr. Chairman, I guess I'm not satisfied with what we've heard from the witnesses. I'm not clear on the work that the Law Reform Commission did; I'm not clear on the contribution it made in the three areas mentioned in Mr. Mosley's presentation; and I'm certainly not clear as to the role this new Law Commission is going to play.

They're setting up what appears to be a very elite group, an organization that's going to be funded. It's going to have a degree of independence reporting only to the minister - to what extent we'll have to see - and what their specific goal and objectives are is not at all clear to me, and maybe it's not meant to be.

I have some real concerns because I don't see those goals and objectives, and I would like to see them. I'd like to know what this Law Commission is going to do.

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I have one other question that should be asked, and I don't know who to ask it to, so I ask it to you as you're the last witnesses here. It concerns appointments.

We get an awful lot of feedback from our constituents about the appointments by government to these various boards and institutions. We would like to see...and this committee has the power to call any appointee to the parole board, or, as I would imagine, to this Law Commission, and interview them. I've only participated once in that kind of exercise, and it was a very worthwhile exercise for me and, I thought, also for the three people that were appointed to temporary positions on the parole board.

I'd like to see those people appear before our committee prior to appointment, perhaps after selection, but prior to appointment, so that we're not speaking to them after the fact, after they have received the appointment. The three people we interviewed seemed to have the qualifications, and I was very impressed by two of them - by their common sense and so on. I think that exercise is a good one, but greater value would be placed upon that exercise if we were able to talk to those people before the final appointment took place.

How do you feel about that?

Mr. Fadden: Mr. Chairman, I think I'm going to have to decline to comment. You're asking me to comment on a matter that has been decided by government and by Parliament, and it is really a policy matter. Secondly, we have not audited - if it is indeed auditable - that issue. So with great respect, I would decline to comment.

Mr. Ramsay: I kind of expected that answer. Thank you, Mr. Chairman.

The Chairman: Thank you, Mr. Ramsay.

Thank you, Mr. Fadden and Mr. Gilmore, for appearing here today, and for giving a different perspective on this particular legislation. Thank you again.

We will meet tomorrow at 3:30 p.m. for clause-by-clause on Bill C-106.

The meeting is adjourned.