Government Operations Committee on March 13th, 2008

[The Chair, Liberal, Diane Marleau]

Ladies and gentlemen, today we welcome Justice Gomery.

I don't know whether we can still call you that, but I feel that we should.

The committee has invited Justice Gomery to appear before it to respond to the 19 recommendations that were made, flowing from his report.

As is customary, Justice Gomery, we will give you up to ten minutes to make opening remarks before we open it to questions and answers.

Mr. Gomery, I wish to welcome you before the Committee.

[John H. Gomery, Former Commissioner, Commission of Inquiry into the Sponsorship Program and Advertising Activities, As an Individual]

Good morning, Madam Chair.

Good morning, everyone.

I thank you for your invitation to be here. It's an invitation that is difficult to refuse. It is gratifying to me to know that members of Parliament are interested in the report and recommendations that were made about two years ago by the commission of inquiry over which I presided.

Let me begin by giving you some background, and I hope you'll forgive me if I take time to say things that you may already know.

By an order in council dated February 19, 2004, I was given the task of conducting an inquiry into the sponsorship program and advertising activities of the Government of Canada, which had been the subject of a very critical report by the Auditor General of Canada.

The terms of reference expressly required me not only to investigate the facts that caused the mismanagement and corruption dealt with in the commission's first report, which was dated November 1, 2005, but I was also required to make recommendations, based on the factual findings of the first report, on a series of issues that were detailed in the terms of reference. They included the respective responsibilities and accountabilities of ministers and public servants, as recommended by the Auditor General; whistle-blowing; access to information legislation; and “the adequacy of the current accountability framework with respect to Crown corporations”.

Finally, the commission was asked--and I think this goes to the heart of what was required of it--to make recommendations to prevent mismanagement of this kind happening in the future.

Although the first part of the commission's mandate was to investigate what had gone wrong and to identify who was responsible for the errors and mismanagement that had been uncovered, this part of the commission's work drew a huge amount of public and media attention. But I always thought that in the long run the second part of our mandate was more important, because no one can change the past, but we can learn from past errors and take steps to avoid them in the future. And I thought that was the principal purpose of the commission of inquiry.

So even while the commission was completing the first part of its mandate by public hearings and the preparation of its report, we were working very hard on the second part.

Because I have never pretended to be an expert in matters of public administration, I recruited some of the best minds in all of Canada to work with me and for the commission. They formed an advisory committee composed of prominent Canadians with broad and varied experience in public policy.

I also engaged the services of Dr. Donald Savoie, a professor at the University of Moncton and a very respected authority on Canadian government. He directed a research program that resulted in the preparation of 17 studies by prominent academics on various subjects related to our mandate.

These studies, which assisted me very greatly in the preparation of the recommendations, are appended to the second report, dated February 1, 2006. And in case you haven't seen them, here they are. I think they are a notable contribution to the literature on Canadian government, and they certainly were of assistance to me, as I said.

The advisory committee travelled across Canada and held round-table discussions--I was with them at these times--in a number of cities with groups of experienced and knowledgeable persons whose advice and comments were valuable contributions to our thinking.

The commission sought the opinions of ordinary Canadians through its website, and we were agreeably surprised by the number and quality of the responses.

All of this is to say that the commission's second report and recommendations are not the work of one individual. They represent the accumulated experience and wisdom of noted academics, politicians, former public servants, journalists, and the public in general. I suggest, for this reason, that the report and recommendations deserved the government's attention and careful consideration.

You will also remember that between the date of the first report, which was delivered on November 1, 2005, and the second report, which is dated February 1, 2006, a general election occurred. It resulted in a change of government. The new government had campaigned on a platform that promised that it would, as its first piece of legislation, introduce an accountability act that would deal with the abuses uncovered by the commission's hearings and described in its first report.

The new government kept its promise, and the Federal Accountability Act is the result. That legislation, when it was first proposed, had been, I believe, already drafted and decided upon before the commission's second report was delivered into the hands of the newly elected Prime Minister. Still, I expected that in due course the recommendations contained in our report would at some future time be studied and at least to some degree acted upon.

Unfortunately, that was not the case. I never received any acknowledgment of receipt of my report.

Recommendations 4 and 13 prompted a very negative reaction on the part of an impressive number of officials and others. The Prime Minister announced publicly that those two recommendations would not be followed. I was invited to come to Ottawa shortly after the tabling of my report to meet with the new chairman of Treasury Board in order to discuss my recommendations. But the minister in question indicated to me, during our meeting, that the government's policy was to table as quickly as possible before Parliament its bill, that had already been drafted, and that any implementation of the recommendations contained in the commission's report would be put off until later.

I had expected that any administration would take the time to study, discuss and reflect before doing anything whatsoever. This is the reason why I had recommended that a report on the measures taken as a follow-up to the recommendations be tabled before Parliament within 24 months of receiving the recommendations. That was recommendation 19.

I thought that it was sufficient time to allow for an in-depth study of each of the issues.

The two-year delay has gone by and no report has been deposited. I'm still waiting to hear what the government thinks of the commission's other recommendations. No one has communicated with me in any way, except your committee, for which I'm grateful.

Some of the recommendations, at least to some degree, were dealt with by the Federal Accountability Act, but the basic problem described in the report has not been dealt with. That problem is the growing imbalance between the executive side of the government, represented by the Prime Minister and his cabinet, and the legislative side, represented by Parliament.

The report and the academic studies supporting it make the case that over the years there has been a greater and greater concentration of power and authority in the executive, and a corresponding diminution of the role of members of Parliament. This problem is made more acute by the expansion of the Prime Minister's Office, which has grown in size rapidly in recent years and seems to have an ever-increasing influence on government policy and decision-making.

It should be remembered that the political staff in the Prime Minister's Office are not elected. They are not subject to any rules or laws of which I am aware. And they have the ear of the most important and powerful person in Canadian government.

I suggest that this trend is a danger to Canadian democracy, and leaves the door wide open to the kind of political interference in the day-to-day administration of government programs that led to what is commonly called the sponsorship scandal.

The recommendations in the report of February 1, 2006, attempt to remedy this problem. I don't propose to discuss, in these preliminary remarks, each of the 18 recommendations in the report, but I'm happy to do so if you ask me to during questions.

Thank you for your attention and for having listened to me.

[The Chair, Liberal, Diane Marleau]

Thank you, Mr. Gomery.

We are going to begin with questions from the opposition. Mr. Holland, you have seven minutes.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Thank you very much, Madam Chair.

Thank you very much, Mr. Gomery, for appearing before the committee today. Thank you as well for the work you've undertaken on behalf of Canadians to attempt to ensure that accountability, the greatest level of accountability, is brought to government.

[John H. Gomery]

That's the first time any person representing the government has thanked me, so I'm very grateful for that.

[Some hon. members]

Hear, hear!

[The Chair, Liberal, Diane Marleau]

We don't represent the government.

[Mark Holland, Liberal, Ajax—Pickering, ON]

I wish we did represent the government; but absolutely, I do thank you, Mr. Gomery.

I would start by saying that your recommendations were met at the time with universal support, all parties saying that they needed to be acted upon immediately. In fact, before your recommendations came forward in the last election campaign, all parties campaigned that they would immediately implement your recommendations, and that they thought they were critical in bringing forward the types of changes we needed to see.

Yet here we are, two years after your recommendations were tabled, with you before our committee essentially telling us that the recommendations have been ignored, that all the rhetoric we heard during the campaigns has been replaced with a complete absence of action.

As my first question, have you ever had occasion to have a conversation with the Prime Minister about your recommendations and how they might be implemented?

[John H. Gomery]

I met the Prime Minister on one occasion. It was the day my report was filed, I think February 1, 2006, when I appeared at the press centre. I had agreed to a press conference. I met the Prime Minister by accident—except I don't think it was an accident—on the sidewalk outside. As I was leaving, he was going in, similarly to be questioned by journalists. We had a very brief conversation on the sidewalk, which I think was filmed. He sounded very positive, and said that the report would certainly be studied. I said “That's good; that's all I ask.”

That's the only time I've ever spoken to the Prime Minister.

[Mark Holland, Liberal, Ajax—Pickering, ON]

So aside from the photo op when he had said that he would respond positively, not only was there not a further response from him, but have you ever received from his cabinet even a call or a meeting where they talked about implementing your recommendations or what their plan was to implement the recommendations?

[John H. Gomery]

As I indicated in my first introductory remarks, I had a call from someone in the office of the President of the Treasury Board, who was Mr. John Baird at the time. He had newly been.... Everybody was sort of new at that time. I responded by going up to Ottawa. I had a very cordial meeting with him, and he had several people on his staff present at that meeting. I don't know to what extent I can describe that meeting, except that, as I said, he indicated that his task, the task that had been assigned to him by the Prime Minister, had been to see to the enactment of the Federal Accountability Act.

Now, I had not even seen a draft of that legislation at that time, so I didn't know what was in it. It was clearly legislation that had been drafted before they received my report. When people say that the Federal Accountability Act is a response to my report, that's incorrect. The Federal Accountability Act was drafted and the decisions as to what it would contain were made long before my report was produced.

Some of the provisions in that legislation were clearly inspired, I think, by some of the revelations that occurred during the commission's hearings and some of them anticipated a few of my recommendations. But because you call a piece of legislation an accountability act doesn't mean, in my view, that it is necessarily the right way to re-establish accountability.

I called my second report “Restoring Accountability”; that is my recipe for how you restore accountability, and it doesn't necessarily correspond to the Federal Accountability Act.

I think the Federal Accountability Act is a fine piece of legislation, which deals in a very positive way with many problems. It's just that I don't think it deals with the main problem.

[Mark Holland, Liberal, Ajax—Pickering, ON]

It doesn't deal with the main problems.

To confirm--and I think you have through what you've said--there wasn't any follow-up after your report was tabled. I see you agreeing through your head gestures that there was no follow-up after you tabled your report to get to, as you called them, the key recommendations, the most important changes that needed to be made.

[John H. Gomery]

I'll be frank with you, I was just astonished that I didn't get so much as a letter. There was nothing. There hasn't been, and two years have gone by.

[Mark Holland, Liberal, Ajax—Pickering, ON]

You also had stated to Kathryn May, who's a reporter, that when you had that conversation with Minister Baird, it seemed that he was more concerned that you would cause fuss or trouble for the government than he was in listening to the recommendations and the things that you were going to follow out of your report. Can you just explain what you meant by that?

[John H. Gomery]

Well, one of the things that I recall from that meeting was that Mr. Baird asked me what was the most important recommendation I was making. He said, “Out of the 18, which do you think is the most important?”

That sort of set me back. I responded by saying that I thought they were all important. I didn't think there was a rank of importance. I thought it was a package and that all of the recommendations were important. I wasn't prepared to say, well, you can look at this one and forget about all the rest of them. I thought that each and every one of the recommendations was important for the reasons that I have explained in the report.

It was clear to me; he made it clear.... Then he asked a few questions about what I would do about implementing the report. I responded to him by saying that I was still a judge of the Superior Court at that time. After the commission was over, I went back to the bench and started hearing cases, and I reassumed what we call the judicial reserve, which means that judges don't comment publicly on any matter.

I did point out to him that by the time the two years were up, I would no longer be a judge and I would be free of that judicial reserve. That's why I permit myself to come here and appear before you. I'm able to make comments that a judge would not be advised to make.

[The Chair, Liberal, Diane Marleau]

Thank you very much, Mr. Holland.

Madame Bourgeois.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Thank you, Madam Chair.

Good morning, Mr. Gomery.

[John H. Gomery]

Good morning, Madam.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

I am very impressed to be meeting with you. You are a wise man who managed to navigate through many things in order to be able to table this report which, as you were saying earlier, somewhat landed in a hole.

I would like to come back to the fundamental problem you were talking about earlier, namely the imbalance between the executive and legislative branches of government. You stated that power is more and more concentrated on the executive side and that you are somewhat exasperated by the expansion of the Prime Minister's Office. That is also our feeling, as a matter of fact. Unelected political staff are not subject to rules, which leaves the door wide open to political interference.

For some months now, this committee has been subjected to interference on the part of the PMO. What should we be doing, in your view, in order to put a stop to this interference from staff and officials?

[John H. Gomery]

One of my recommendations was that certain rules be established with regard to the behaviour of political staff. According to the information I have, there exists no such thing at the present time. There is no code of conduct, no training offered to these people. As a rule, these people are recruited after an election among the staff that helped the individual in question get elected. Naturally, they have a certain preference for their employer, but they nevertheless fill political positions.

I have nothing whatsoever against politicians or those who work for them, but I feel that they often do not have the training and are not aware of what an appropriate rule of conduct might be. For example, when a member of the public service receives a phone call from a person who identifies her or himself as being part of the Prime Minister's Office and who requests certain information, the civil servant would have great difficulty in telling the person to mind his or her own business and to no longer call in the hope of exercising some influence. That is virtually impossible. In my view, there should be a rule prohibiting any such phone calls.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

We nevertheless would have thought, Mr. Gomery, that the Federal Accountability Act would have gone further, would have involved a recommendation or provisions in this regard.

[John H. Gomery]

I would have at least liked to have seen some attempt at establishing rules of conduct, for the simple purpose of checking this trend.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

And there is no such thing in the Act?

[John H. Gomery]

I made another recommendation, which went unheeded. It was one of the first. I suggested that some type of code of conduct be established for members of the public service, so as to allow them to determine their rights and at what point they should be able to tell these people to mind their own business. There exists no such rule at present. In certain countries, a type of charter or code protects members of the public service.

I was informed during the course of our hearings that public servants had been placed before a moral dilemma during the sponsorship scandal. Indeed, they did not know what their rights were nor beyond what stage they could refuse to follow directives that proved to be illegal.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Mr. Gomery, I would like you to answer my final question as a Canadian citizen, but also as a wise judge.

During the election campaign, much was made of the scandal surrounding the sponsorships. You touched upon this a little earlier. You stated that the Federal Accountability Act had even been drafted during the election campaign. It is however not being applied. Is it your view that it was a simple electioneering manoeuvre?