Debates of Sept. 15th, 2003

Parliament of Canada Act

[Ken Epp, Canadian Alliance, Elk Island, AB]

Mr. Speaker, it is a privilege to stand here on the first day of the resumption of this session. I would like to again say welcome to all of the new pages. It is wonderful to see these young people here. They keep us old fellows thinking young and we always enjoy the wonderful service they provide to us as members.

I would also like to say that it was a brutal summer because of the issues before the House. I believe that we need to do a great job as parliamentarians in representing those people who sent us here and in every way reflect the values and the expectations our constituents have.

I would like to address this question, because this whole thing regarding the ethics commissioner has to do with meeting the expectations of our electors. Our electors want parliamentarians to act in such a way that they are above reproach. The expectation of our electors is that we will act ethically. Because of tremendously large breaches of ethical behaviour by the government, the Prime Minister brought forward this multi-faceted package in which one of the facets is the creation of an independent ethics commissioner.

Mr. Speaker, I do not know if your memory is as good as mine, but I clearly remember when I first ran for Parliament. Way back in 1993, the Liberal red book said, “We will establish an independent ethics commissioner”. Here it is 10 years later and we now have a bill that says they want to establish an independent ethics commissioner, so I do not know whether the protestations of the Prime Minister in the intervening 10 years are now suspect, because all the time he was saying that we have an independent commissioner. We have raised many questions about the fact that the commissioner answered only to the Prime Minister and hence was anything but independent. I think those protestations over the last 10 years basically are now confessed by the government to have been misleading. The Liberals are saying that now we are going to have an independent ethics commissioner, but when the bill came forward we found out that it is really much of the same.

I would like to assure members that I am leading up to the actual discussion of the amendment before the House.

The ethics commissioner must be totally independent of the government. I am going to say to the Liberal members opposite, all listening so intently as I speak, that they should pay attention to this, because in the next Parliament, when they are sitting on this side, they will want the protections we want now that we are on this side. They should think ahead a little about the next move and whether or not they should support the bill, as they are now refusing to amend it, because it is going to apply to them in opposition as it applies to them now as the government. I am speaking especially to the Liberal backbenchers.

The issue before us is very clearly hinged upon the independence of the ethics commissioner. I would be inclined to oppose this motion, just as the parliamentary secretary said, if in fact we had assurances that both the appointment of the ethics commissioner and the ethics commissioner's work were truly independent, if that were really true. We asked for it in committee when we were debating this issue day after day. Our party put forward amendments that would require all members of Parliament from all parties to actively be involved in the recruitment and the appointment.

We went so far as to say that there should be agreement among the party leaders. We suggested that there be a two-thirds majority vote in the House. Of course the House leader for the government said no, that cannot be, because the Constitution says there can only be a 50% majority. The fact of the matter is that our research shows we as a Parliament can say that on a certain question we need a two-thirds majority and, notwithstanding anything else, it could apply to that particular issue. We would like to apply that to the appointment of the commissioner.

We live in a very hostile political environment here. The Liberals have shown us in the last 10 years that winning elections is motivation number one. Everything else becomes secondary to it. If they can utilize an ethics commissioner bringing charges against members of the opposition at the appropriate time, that can become a very important factor at election time. So it is absolutely mandatory that the ethics commissioner behave in a totally independent way.

Had the government accepted our amendments in committee, which as we know we cannot bring here now because they were dealt with at committee, if the Liberals had accepted those amendments at committee, then we would have been very pleased to move forward with this new act to establish the role of the ethics commissioner.

As a matter of fact, the way it is going to work will be the same as always. The Prime Minister and his office are going to come up with a name. The legislation says all that is required is that there be discussion with the House leaders or the leaders of the other parties. I do not even remember now which it is, whether it is House leaders or leaders, but there will be discussions with the other parties. It does not say an agreement has to be reached. It does not say anything about consensus. Presently we have five parties in the House and the legislation does not even say that a majority of the parties must agree.

Consequently, the Prime Minister could come up with a name of a person that is unacceptable to those of us on this side of the House and to the Liberal members in the next Parliament when they are on this side of the House. Let us think about it: they will not be there forever. No government has ever sat for 100 years, being re-elected and re-elected. There will come a time when the Liberals will be relegated to opposition status, and they must think of this in the long term.

This motion we are debating here today is one which unfortunately covers only half the issue, I think, but at least it is a step. It says that if there is a ruling by the commissioner, then the member of Parliament affected, or for that matter someone else, can appeal it to a presumably more independent body: the courts of our land. Sometimes we have a little apprehension about the true independence of the courts and their way of thinking as well, but be that as it may, at least it is better. This amendment would carry that.

I would like to, however, put out a challenge to the government. The parliamentary secretary has spoken and I would like to ask him a question; I am sure the staffers are listening and I would like them to answer a technical question. Clause 38 states that only if such-and-such happens, and I will not read the details, “then section 7 of this Act is replaced by the following”. I have read this thing 18 times and what it replaces is identical to what is here; it says that if this thing in the Courts Administration Service Act comes into force, then replace section 7 with what is already there. This is just a notice to the people out there in the legal services department for the government that they should really think about this, those fellows and gals, whoever they are, to make sure they have it right.

I will be supporting this motion on that account.

[Michel Guimond, Bloc, Beauport—Montmorency—Côte-De- Beaupré—Île-D'Orléans, QC]

Mr. Speaker, I am pleased to have this opportunity to speak to Bill C-34, as Parliament resumes. I recall my conversations with some reporters on June 15, when they were asking me what I was going to do for my three month vacation. It has to be said that the fact that Parliament is not sitting does not necessarily mean that the MPs, regardless of what side of the House they sit on, were on holiday for three months. We are, certainly, human beings who need a rest like everybody else, like all other people who work. We took the time to rest and recharge our batteries, but we were not on holiday for three months. Not me anyway.

This morning we have an important exercise to carry out with respect to Bill C-34, which will create the position of ethics commissioner. We are at report stage and second reading.

In a ironic twist of events, only this past week, the RCMP at last laid criminal charges against a Montreal communications firm, Communication Coffin by name, in what has become known as the sponsorship scandal.

I would remind hon. members that we are occasionally stopped by people on the street or at the shopping centre who want to know what our role is, what the importance of the Bloc Quebecois is in Ottawa, when there is no referendum on Quebec sovereignty in the offing.

I would remind everyone that the party that raised this whole matter of the sponsorship scandal is the Bloc Quebecois. This ought to be part of our collective memory, but memories are not, unfortunately, always reliable.

We called upon the public works minister, now the government House leader, but very briefly public works minister, to resign, in light of the circumstances we all will recall. I will spare members any mention of the person who was pPublic works minister three cabinet shuffles ago, the Hon. Alfonso Gagliano, the former member for Saint-Léonard—Saint-Michel. As a reward for services rendered, he was appointed Canadian ambassador to Denmark. Imagine, this was a fine reward for all services rendered, particularly in connection with the sponsorship affair.

I have no intention of going over the history of this sponsorship program. The police investigation will take care of that anyway. An initial charge is expected to be laid, and we hope that more will follow in the whole issue of what actions were taken by Groupaction and so on.

When we questioned the government on behalf of the people of Quebec, we in the Bloc Quebecois were trying to determine whether there was a connection between these sponsorships and the whole matter of subsidies or contributions to election campaigns made under the table to the Liberal Party.

This was the forum where we could raise these issues, hence the importance of having a real ethics councillor, and not a political advisor like Mr. Wilson under the current Prime Minister.

We called for a real ethics counsellor who would report to Parliament.

This government and this Prime Minister, looking for some kind of political legacy entitling them to a few lines in the book of Canadian political history, tabled, or rather had the government House leader table Bill C-34, establishing these ethics officer and ethics commissioner positions. There will be two, as we know, one for the House of Commons and one for the Senate.

The Bloc Quebecois maintains its support for Bill C-34, especially since this matter is among our priorities. In fact, we have been asking for and demanding this for several years.

This morning, we are debating an amendment put forward by our colleague from the New Democratic Party to make the decisions made by the ethics counsellor conditional on or subject to the approval of the Federal Court. In other words, these decisions would become conditional and be referred to the Federal Court. Without lapsing into legalism, for the benefit of those listening, we are talking about possibly asking the Federal Court to review a committee decision on ethics.

Our honourable colleague from the NDP asks that we withdraw clause 38 from the bill and thus remove the ethics counsellor from the list of persons who cannot be challenged in the Federal Court. At the moment, that list of persons and institutions includes the Senate, the House of Commons and all committees or members of either of these Houses. Their decisions are not subject to challenge in the Federal Court.

At first sight, one might think, “That is a good amendment. Decisions made by the ethics commissioner could be reviewed by the Federal Court.” In theory, I agree. But in practical terms, the members of the Bloc Quebecois disagree. That is why we shall continue to oppose and vote against the amendment proposed by the hon. NDP member. We consider that it is detrimental to parliamentary privilege.

Parliamentary privilege is what protects us. It allows parliamentarians to do their work effectively within this chamber and also within the committees, which are legal extensions of the House of Commons.

If we want members of Parliament to be free to raise issues and questions—and that is our role—I think that parliamentary privilege must be respected. For these reasons, we will not vote in favour of the amendment proposed by the hon. member.

In fact, it is clear from the Federal Court Act, especially the definitions in section 2, that the Office of the Ethics Counsellor is comparable to a federal board, commission or other tribunal. The act refers to a federal board, commission or other tribunal, all of which are subject to the Federal Court Act.

So, there are enormous political implications. As I mentioned earlier, if the Federal Court can review decisions made by the ethics commissioner, this inevitably gives the judicial branch, meaning the courts, oversight of the political branch in terms of the balance of powers in our British parliamentary system. This is our current system. Quebec's National Assembly is also based on the British parliamentary tradition and the same comments apply.

We must be clear that this right of review of the ethics commissioner's decisions no longer serves a purpose when it comes to requesting a review of a decision about a minister's behaviour. The ethics commissioner can only issue opinions about a minister's behaviour.

In short, when it comes to decisions about members, the ethics commissioner must apply the rules concerning members implemented by the House of Commons. In our opinion, an appeal by an individual of a decision made in that context before the Federal Court constitutes challenging parliamentary privilege. The House of Commons is responsible for making decisions about the behaviour of its members insofar as it relates to the fulfillment of their parliamentary duties.

I am not suggesting the possibility of excluding appeals when it comes to the actions of parliamentarians outside their parliamentary duties. As a result, we believe that the Federal Court cannot play this role and, therefore, this amendment must be defeated.

[Gerald Keddy, Progressive Conservative, South Shore, NS]

Mr. Speaker, it is rather ironic that on the first day the House resumes sitting in this fall session, the first item on the agenda is one of the most prominent examples of Liberal arrogance and failure of leadership.

We would have expected to have an ethics bill brought in by this government many years ago. It absolutely has refused to even consider anything along that line. The bill that it has brought in is kind of last minute, is a little late in being tabled and is far from being a perfect piece of legislation, which an ethics bill absolutely must be.

It is rather sad that in the twilight of the Prime Minister's 10 year reign, his quest for a legacy involves an attempt to weave an illusion that his government conformed to any ethical standards at all or did anything meaningful to address the longstanding concerns about parliamentary and electoral reform. I think government members would be hard pressed to find an example of any meaningful change to the system that they have brought about.

History will show the true nature of the Liberal government's arrogance. In the early 1990s the Liberals campaigned on a theme of ethics in politics. Canadians will recall that this government promised in the 1993 red book to introduce change to revive parliamentary democracy by improving ethics, elections and introducing parliamentary reform. After 10 years one must doubt whether the Liberals had any sincere intention at all of fulfilling these promises.

At the beginning of his reign, the Prime Minister was quick to ask ethical questions about the last Progressive Conservative government despite any evidence of wrongdoing or ill intent. The Liberals continued to push these issues and spent millions of taxpayer dollars for their own political agenda long after the cases had been closed, apologies given and million dollar compensations awarded to the victims of Liberal spite.

Meanwhile, the government faced a long series of scandals of its own that forced not the resignation of one member of the crown but four ministers of the crown.

Questions remain over the conduct of the Prime Minister himself in what is now the notorious Shawinigate affair. Questions remain regarding the blind trust of the former minister of finance. It was blind trust that allowed several sneak peeks along the way, presumably only when tens of millions of dollars were on the line in some type of a deal. Canadians are denied the details of these secret meetings.

On these issues, all that Canada and Parliament has is the word of the Prime Minister and his ethics counsellor. This situation is far from being called a standard of ethical conduct of governance in Canada. For 10 years the Liberals have faced an internal power struggle as rival factions, unsatisfied with the democratic election of Liberal leadership, have vied for power and have plotted the downfall of the sitting Prime Minister. In the last year these internal power struggles have erupted into the public eye under the pseudonym of the Liberal leadership race.

It can hardly be called a race. It is more like a one-man marathon with a multi-billion dollar antique steam turtle trotting toward a golden tower of power.

The Liberal leadership race has dragged on so long that it no longer garners much of anyone's interest. The heir apparent has taken to saying absolutely nothing at all on ethics, or policy, or electoral reform or anything, and why should he? His crown is nearly in hand and he stands only to damage himself by speaking for anything at all besides his own interests with a promise to reveal his policy plans from on high once he has ascended to the throne. Mr. Speaker, Canadians yawn.

Contrast the Liberal leadership race to that of the Progressive Conservatives where rival candidates hotly debated radically different visions for the future of Canada, put forth a plethora of new policy ideas and exhibited a degree of youthful enthusiasm for governance not seen in the country for years.

The Liberal government has failed to earn the public's trust to set ethical standards. It has also failed to hold to the principles of effective parliamentary democracy. Yet this a government that in spite of its long list of scandals and circumvention of democracy proposes to introduce ethical reform to Canada's Parliament. What a tragedy.

The Progressive Conservative Party supports the principles of improved ethics, parliamentary improvement and electoral reform, and for 10 years the Progressive Conservatives have been by far the most effective party at holding the government to account in this Parliament. Our pressure has finally seen some results. Efforts to recognize the need of an appointed independent ethics commissioner reporting to Parliament are essential for effective democracy in Canada.

The proposed ethics commissioner would have powers to investigate ethical issues, analyze facts and draw conclusions. That information would be released to the Prime Minister, to the person making the complaint, and to the minister under investigation.

We note, however, that the bill discusses only the means to enforce ethics, rather than the code of ethics itself. If this bill were to pass tomorrow, what ethical code would the ethics commissioner enforce?

We also note that although the bill calls for information to be released simultaneously to the public, the commissioner would also provide the Prime Minister with confidential information that would not be included in the public report. In other words, the government is reserving the right to edit the public record and hold back any damaging or unethical findings. The Progressive Conservative Party urges the government to ensure that all relevant findings are made available, both to Parliament and to the public at large.

It is also a concern of ours that the salary of the ethics commissioner would be set by cabinet. This could have the negative effect of making the commissioner beholden to cabinet for raises in pay. How can someone conduct an unbiased investigation into someone who holds the purse string? It would be pretty difficult.

We would prefer that the salary of the ethics commissioner be set as it is for the privacy and information commissioners, that is, that the ethics commissioner should be paid a salary equal to the salary of a judge of the Federal Court, other than the chief justice or the associate chief justice of that court, and be entitled to reasonable travel and living expenses incurred in the performance of his or her duties under this or any other act of Parliament.

Our party also has concerns that the reports tabled in Parliament would not contain more than a simple statistical list of investigations conducted, discarded or completed. We trust that it would be considerably more thorough and detailed.

Finally, the Progressive Conservative Party is pleased that after 10 years of questionable ethical conduct, a lame duck Prime Minister's last gift to Canada is to impose a stricter code of conduct on his successor than he had upon himself. The timing begs the question, however, whether the bill is for the good of the country or is one last poke in the eye at the Prime Minister's old rival, the member for LaSalle--Émard and the Liberal heir apparent.

It is the hope of the PC Party that it will not be lame duck legislation and that it will be a first step in leading to improved ethical standards and parliamentary reform in Canada.

Canada desperately needs the effective ethical leadership that it has lacked for so long. Until an election is called, we can only trust that the Prime Minister's successor chooses to improve the ethical standard rather than to delay it for another 10 years or, worse, continue on as if nothing has changed.

There is a saying, “Meet the new boss, same as the old boss”. We can only hope that Canada's newest Prime Minister does not fall back on his old habits, to the detriment of the country; and when he does, rest assured the Progressive Conservative Party will continue to hold the government to account and work toward genuine, ethical standards and parliamentary reform in Canada.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, it is great to be back to make a couple of speeches on the first day of the autumn session of Parliament. I would like to welcome everyone, especially the new pages. I would like to assure my constituents in Yukon that the new pages have already completed the most important part of their training and fully understand that Yukon is the best constituency in the country.

Before I go into details on the amendment to Bill C-34, the previous speaker discussed the general legislative climate this fall. I would like to follow up on that because it is a very aggressive and detailed legislative agenda and I hope people do not lose track of that.

There are many bills that we are in the midst of bringing forward and must continue with such as, Bill C-34, which we are talking about now; but also Bill C-13, assisted human reproduction; C-22, family law; C-38, marijuana; Bill C-45, which I hope to talk about later today concerning the Westray bill for worker safety; Bill C-46, market fraud; Bill C-19, resource taxation; Bill C-6, first nations specific claims resolution for the economic development of first nations; archives legislation; bills related to child pornography and the sex offenders registry; citizenship; as well as urgent veteran's needs.

And then of course all the committees are working. The finance committee will be doing its pre-budget work. There are always important issues in foreign affairs. The health committee has to work on the West Nile virus and the agriculture committee on mad cow disease.

This is a very detailed agenda and continues to be one of the most productive legislative agendas we must get through. I hope people do not get sidetracked in the House or in the media about other things or go off these important changes that affect real people in Canada.

I am pleased to address the NDP amendment at report stage with respect to Bill C-34, a bill which would establish an independent ethics commissioner reporting to Parliament. The amendment proposes the deletion of clause 38 of the bill in its entirety.

This clause would change subsection 2(2) of the Federal Courts Act by adding references to both the ethics commissioner and Senate ethics officer so that the activities of the ethics commissioner and Senate ethics officer are not subject to review by the Federal Court, whether by judicial review or by appeal.

The Parliamentary Secretary to the Government House Leader has already explained why the NDP amendment is inappropriate and should be rejected. I want to comment on the need to preserve the House's privileges in this area.

The House and its members have traditionally been responsible for their ethical conduct. This is a tradition we in the House have had since Confederation and which we share with other parliamentary democracies.

Let me set out how the bill preserves this tradition of parliamentary privilege and ensures the House's accountability to Canadians.

Clause 38 amends a provision in the Federal Courts Act which itself exists for greater certainty to ensure that the activities of Parliament and parliamentarians are excluded from review by the Federal Court. Given the role of the ethics commissioner and the Senate ethics officer in dealing with the conduct of parliamentarians, it is logical that those provisions be extended to these two officers of Parliament.

This clause is but one of several provisions in the bill intended to ensure that the House, and not the courts, continues to have the ultimate responsibility, and accountability, for the ethical conduct of its members. For instance, the bill would create an ethics commissioner as an officer of the House.

Section 72.05 includes express recognition that the ethics commissioner “enjoys the privileges and immunities of the House of Commons and its members in carrying out his or her duties and functions”. This section also provides express recognition that the bill does not in any way limit the powers, privileges, rights or immunities of the House or of its members.

Further, Section 72.12 would ensure that the ethics commissioner and his or her staff could not be taken to court in respect to their official activities. This section also acknowledges that the commissioner and his or her office are protected by the privileges and immunities accorded to Parliament as an institution. Similar provisions have been made for the Senate ethics officer throughout the bill.

Collectively, these provisions, including clause 38, are essential if we are to create an ethics commissioner who, in respect of matters pertaining to members of the House, is to function as the legislation requires and is accountable to the House.

In this regard, the bill states that the ethics commissioner's functions in relation to members would be carried out “under the general direction of any committee of the House of Commons that may be designated or established by the House for that purpose”.

Canadians expect members of the House to establish and abide by ethical rules. This is only proper because as parliamentarians we are ultimately accountable to the public, both for our own ethical behaviour and for the steps taken by the ethics commissioner as an officer of Parliament.

In our view, the proposed amendment would seriously undermine Parliament's long standing privileges, the ability of the House to properly assign duties and functions to the ethics commissioner, and the House's ultimately accountability for the ethical conduct of its members.

It would undermine the ability of the House to govern its affairs and would open up the possibility that the courts might be called upon to second guess or review the actions of the ethics commissioner.

Canadians have every right to expect that the House would create and enforce the highest ethical guidelines for members. They know and expect that the House and its members are ultimately accountable for the ethical code it will implement. They do not want parliamentarians to transfer this responsibility to the courts. Accordingly, I would encourage members of the House not to support the amendment.

I want to conclude by again referencing the previous speaker's speech when he commented on the tremendous potential leadership awaiting in the wings for the country and how popular that is with Canadians. We will have a great transition to even more exciting times, but as I was saying at the beginning of my speech I hope that the important things that affect the lives of Canadians, which I mentioned and the number of bills that we will be dealing with throughout the fall, winter and spring, would not be lost in the simple transition of politics.

[Gurmant Grewal, Canadian Alliance, Surrey Central, BC]

Mr. Speaker, it gives me great pleasure, on our return to Parliament, to rise today on behalf of the residents of Surrey Central to participate in the debate on Bill C-34.

The Liberal government believes in half measures, which is what we have before us today, a half measure full of loopholes.

Let us remember why we are debating Bill C-34, the first item on the agenda today. We have witnessed boondoggle after boondoggle. Blind trusts are not blind anymore. If at all blind, it is only to the public. There have been so many contract scandals and leadership fundraising peccadillos that the Prime Minister has yielded to the opposition pressure to bring in the new ethics rules.

So numerous have the infractions been that people are losing track. Never before has the word corruption been uttered so often in this Chamber: not during the Pacific scandal, not during the pipeline debate and not during the notorious first term of Prime Minister Mulroney.

The Liberals came to office 10 years ago promising to restore honesty and integrity to government. Shortly after the 1993 election, the Prime Minister rose in the Commons to announce the dawning of a new era in government ethics, promising to make the system more transparent and open. One would have thought the Liberals would have had an easy time improving on that record but not so. The government has failed to live up to its promise. If anything, government ethics have fallen to a new low.

Half of Canadians surveyed last year believed that this government fared no better ethically than its predecessor. Fifteen per cent believed that the government had worse ethical standards. A Leger Marketing poll taken in April 2002 revealed that 69% of Canadians believed that the federal Canadian political system was highly or somewhat corrupt. Eighty per cent said that they wanted a major reform in the way government contracts were awarded.

Looking back over the last year and a bit it is little wonder that the public has lost faith in the honesty and integrity of the government. With Bill C-34 the Liberals have ensured that a new ethics watchdog for ministers will be an unaccountable, government controlled lapdog.

The Liberals came to power with a mandate to govern based on their red book promises. The red book described the problem of ethical integrity in the government, one of the reasons the previous government was removed. It states on page 91:

--after nine years of Conservative rule, cynicism about political institutions, government, politicians and the political process is at an all-time high. If government is to play a positive role in society, as it must, honesty and integrity in our political institutions must be restored.

What has been done? There has been absolutely no change since 1993. The Prime Minister wasted no time before reneging on his promise. Instead of an ethics watchdog, he installed a lapdog who reports in confidence to the Prime Minister. The Liberal government repeatedly got away with questionable behaviour. No wonder the lapdog commissioner never gained the public confidence so crucial to be effective in his office.

The Liberals have failed to deliver on their own specific red book promises. So much so that they even voted against their own red book promise during a Canadian Alliance motion to appoint an independent ethics commissioner.

What has the Prime Minister's present song been? Up until the former minister of national defence, nobody had been forced to resign. Does that mean he actually dealt with the problems that would lead to resignations? No.

It just meant that his standard was that no one ever had to resign. He has a completely different code of conduct. If a minister engages in misconduct, gross incompetence or outrageous statements he or she is backed to the hilt by the Prime Minister. Then in the next cabinet shuffle they are shipped off to Denmark or so. However he can say that there has been no misconduct and no one has ever been fired in his government, but we know the facts. The fact is that the list of people who should have been fired is longer than the list in the previous Conservative government.

Last year alone Mr. Alfonso Gagliano resigned as minister of public works following accusations that he used his ministerial influence to get jobs for his friends and family. The minister of national defence resigned after revelations that he gave an untendered contract to a former girlfriend. The member for Glengarry--Prescott--Russell was demoted from public works to House leader for staying at a retreat with which his department had done business. The solicitor general resigned after the ethics counsellor concluded that he breached conflict of interest rules by directing government projects and contracts to friends and family.

All of that of course just generates cynicism. It is worse because after talking about ethics and opportunistically getting elected on this issue, the Liberals have turned around and have done nothing about it.

Bill C-34 is flawed. We the opposition MPs on the procedure and House affairs committee tried to correct the serious flaws proposed in Bill C-34 only to have Liberal MPs on the committee defeat the amendments.

The Liberals rejected amendments that would have strengthened the ethics enforcement system in the following ways: making the ethics commissioner actually independent by requiring two-thirds of MPs to approve in a free vote the person appointed as commissioner; making the commissioner independent by guaranteeing that the commissioner's pay could not be cut if cabinet were upset about the commissioner's activities, and by limiting the commissioner to one seven-year term so that the commissioner would not be tempted to please cabinet in order to secure another term in office; ensuring that the public has a right to file complaints with the ethics commissioner about unethical behaviour by ministers; ensuring that the ethics commissioner could be taken to court for failing to enforce ethics rules; and ensuring the ethics commissioner could not give secret advice to the Prime Minister.

If the Liberals were serious about honouring their promises they would grant the House the authority to seek out and nominate a truly independent ethics commissioner. The ethics commissioner would report to the House as a whole either through a select committee or an appropriate standing committee. That would remove the influence of the Prime Minister and his office.

B.C. has the best process for selecting an ethics commissioner. In that legislature, members are directly involved in the selection process. An all party committee makes the selection and the recommendation to the premier and then, in turn, the premier gets the confidence of two-thirds of the members.

The ethics commissioner would be responsible for investigating misconduct of MPs from all parties. Therefore it is absolutely mandatory that the commissioner be totally neutral, politically. Under the bill that would not be the case.

The code of conduct for MPs and their spouses is included to take the heat off the real issue, for example, the constant misconduct by the Liberal cabinet. If this is the best the Liberals can come up with in a decade of ministerial mishaps, then we should all be very disappointed.

It is no surprise that confidence in the Liberal government and in its honesty and integrity is dithering. Thirteen different investigations are ongoing currently involving the Liberals.

While the commissioner would table public reports each year, no information required to be kept confidential can be included. Where is the assurance of transparency?

The public would be denied the right to file ethics complaints against any parliamentarians. Bill C-34 prohibits a court review. Due to separate ethics officers for MPs and senators, there are different ethical standards for the two groups of politicians.

Since my time is over I would say there are no measures in place that, at best, fail to match our confidence and, at worst, undermine it further. Bill C-34 is mostly a damage control exercise to camouflage big scandals involving ministers. Therefore I cannot support the bill.

[The Deputy Speaker]

Maybe it is rustiness but I saw a member across the way going from one seat to another. I just want to verify if in fact that person was seeking the floor. The member for Saanich—Gulf Islands has the floor.

[Gary Lunn, Canadian Alliance, Saanich—Gulf Islands, BC]

Mr. Speaker, I am pleased to stand and represent the people of Saanich—Gulf Islands. I am not too sure if I am so pleased with what we are speaking about.

I have to ask a simple question: Why are we now having a discussion about Bill C-34, which is about ethics? The reason we are having this discussion is simply because of all the scandals that have happened involving ministers and the abuse of public funds. It goes on and on.

Let us have a closer look at exactly what is happening. I would suggest that the bill demonstrates how little respect the government has for this place. There is no question that we do need an independent ethics commissioner. The Canadian Alliance has pressed for such a move. The response, though, is typical: a lot of smoke and mirrors to hide the absence of any real, meaningful change.

In truth, I would like the House of Commons to be a place where we did not need an ethics commissioner. I would like to believe that all parliamentarians would be in a position where they would not be promoting their own personal gain over that of public service. However the problem is that once we have power we lose focus. We lose sight of the fact that we are here as public servants. We are here to serve the public but we become mostly interested in self-promotion.

Six years in this place has taught me that we see more and more self-promotion. Time and again we have witnessed serious conflicts of interest. Unfortunately, when these conflicts happen is anyone held accountable? No, they are not held accountable, but even worse, they are rewarded.

Nothing will change after Bill C-34 passes into law. Like so many bills that have come from the government, it is not about reform. This is a public relations exercise. It is designed to show that the government cares about ethics, but it does nothing to uphold them. The government will be no more accountable as a result of this new version of the ethics commissioner than it is currently.

Right now we have an ethics counsellor that is appointed by the Prime Minister. What would happen under the new bill? The Prime Minister would still appoint the ethics commissioner and it would be ratified by a simple vote in the House of Commons. However what happens in this place? As we saw during the hep C vote and other votes, when some of the government members even talk about voting against their own party, I am told, although I am not privy to witnesses, in the government lobbies that the Prime Minister actually stands up and tells his own members that if they do not vote with the government they will not be Liberal candidates in the next election. It is that simple. They then fall into line. In some cases we have seen them literally in tears, with mascara running down some of their faces as they stand up to vote against their own beliefs and everything they have stood for to follow the government.

Let us look at some of the specifics here. Why are we having this discussion? This is a government where cabinet ministers help their personal friends through Human Resources Development Canada and are awarded diplomatic posts when they are caught; a government where a Liberal advertising company is given $1.5 million to write the same three reports and no one thinks there is anything wrong with it; a government where corruption in sponsorship programs is so widespread that the 2002 Auditor General's report revealed that senior bureaucrats broke every rule in the book in awarding contracts to Liberal contributors. This led to revelations of waste in government advertising spending totalling over $230 million. Has anyone ever been held accountable? No. No one has actually said that there is something wrong and that it needs to be fixed. Government members go into justification mode and try to justify the expenses.

The current Prime Minister has consistently used his position to unfairly lobby in his home riding where his friends received $600,000 in grants from HRDC where the only approval is announced without any departmental paperwork, and where internal memos revealed the government office felt that it had no choice but to approve the grant since the Prime Minister had personally promised money even though it did not meet existing guidelines.

This is wrong. Exactly one-third of the $90,325 in donations to the Prime Minister's 1997 personal election campaign has been linked to grants, contributions and contracts in his riding. Is it any wonder that the Canadian public has so little trust in this place?

The government comes along with a “new” ethics bill, but it is a whitewash. It is not genuine. The Prime Minister is still going to appoint, and absolutely nothing will change; prime ministers still can secretly solicit advice from the ethics counsellor.

Let us look at British Columbia's legislation. In the British Columbia legislature, an all-party committee, an all-party representation, has to select appointments for the ethics commissioner, which are then recommended to the premier. It is done by all parties. It is not an appointment by the Prime Minister. They select the candidate and advise the premier, who makes the appointment, which then has to receive a ratification vote in the legislature of two-thirds of the members.

Not here: this is another charade. It is another game. It is another way to fool Canadians. This is a public relations exercise. This is not about public service. This is about their own self-promotion. It is wrong.

Let us go to the member for LaSalle-Émard. Of course he is going to be taking over the government. In fact he will acknowledge that he wrote the Liberal red book in 1993, which incidentally promised “an independent ethics commissioner”. In 10 years, he has done absolutely nothing to ensure that it happens.

If we are going to create an ethics commissioner, then that ethics commissioner must have certain characteristics if he or she is going to actually be useful. They absolutely must be independent. They must be acceptable to all parties in the House, not an appointment by the Prime Minister and a rubber stamp in this place, with its own members being threatened. They must have their decisions open to review by Parliament. This bill fails on all counts.

Why have the Liberals failed to deliver a true ethics commissioner? I believe it can only be for one or two reasons. It could be because they know just how inappropriate the behaviour of their cabinet has been. They know that a truly independent agency would expose these conflicts and force them to resign.

Or could it be they feel in their hearts that all the things I mentioned earlier were completely fair? That giving special deals to friends is part of being an MP, that being the Prime Minister or the Minister of Finance means that they can be just as carefree with their telephone calls and stock options as any other backbencher, and that when ministers of the crown gets caught with a hand in the cookie jar the worst they should endure is to shuffle back to the House leader's office or a short holiday to Denmark. That is punishment, is it not? When one gets caught with a hand in the cookie jar, how about an appointment to Denmark? It is pretty good over there, what with being given a nice new house, a car and a driver, and a big fat salary, all on the backs of the taxpayer. That just sounds wonderful.

I know Canadians can see the difference. Why cannot the government see the difference?

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I want to say a couple of words about this report stage motion on Bill C-34. Bill C-34 is an act to amend the Parliament of Canada Act with regard to the ethics commissioner and Senate ethics officer and other acts in consequence.

The motion before the House is with regard to clause 38. Its intent is to delete clause 38. The purpose of clause 38 is to ensure that the activities of the ethics commissioner and the Senate ethics officer are not within the jurisdiction of the Federal Court. The amendment is interesting. At first blush, my impression is that it again raises the question about the supremacy of parliament and the issue of court made law.

In Bill C-34, there are a couple of the provisions that are useful. I think it is probably worth putting into the record. With regard to the mandate of the ethics commissioner as stated in the bill, proposed section 72.07 states:

The mandate of the Ethics Commissioner in relation to public office holders is

(a) to administer any ethical principles, rules or obligations established by the Prime Minister for public office holders;

(b) to provide confidential advice to the Prime Minister with respect to those ethical principles, rules or obligations and ethical issues in general; and

(c) to provide confidential advice to a public office holder with respect to the application to him or her of those ethical principles, rules or obligations.

The aspect of confidentiality is very clear in terms of the mandate of the ethics commissioner. It also raises the question about whether or not there should be an ethics commissioner who reports to parliament.

As the previous speaker said, in fact it is laid out that the ethics commissioner position is a position which is in fact nominated by the Prime Minister, but let us look at that. It is the governor in council, “by commission under the Great Seal”, that appoints an ethics commissioner “after consultation with the leader of every recognized party in the House”, so there is a consultation process that takes place. As well, it states “after approval of the appointment by resolution of that House”, so there will be a vote in the House.

This raises for me the reflection of the whole question about whether or not there should be an ethics commissioner who is responsible to parliament and reports to parliament. I can recall that this issue has surfaced time and time again: it is the matter of whether or not an ethics commissioner could properly discharge his responsibilities, be open with the House in all its detail, and still protect, for instance, cabinet confidentiality. I do recall that the ethics counsellor ultimately appointed was of the opinion that he would be unable to discharge the responsibility if he were to report directly to parliament, simply for the reason that cabinet confidentiality could not be compromised. It is an interesting point, but I think the will of the House has always been to promote accountability for and transparency of the activities of public office holders, and in the event there were some allegations or suggestions of an impropriety or a breach of basic ethical rules this place should be able to be assured that this was being looked at with independence and transparency in regard to the process.

I am not so sure it was the wish of the House or the intent of the House or of anybody else that the full details of any alleged impropriety be dealt with and discussed on the floor. We know what happens when we deal with allegations. Obviously there is a process to be followed, which would protect the integrity of the process but at the same time protect the rights and the reputations of those who may be involved in the discussions with regard to an allegation of a breach of ethics.

There is much more to this than just simply asking that we in fact delete clause 38 and allow the Federal Court or the Federal Court of Appeal to have access to the information with regard to the ethics commissioner. I would tend to agree that Parliament and parliamentary supremacy are very important. That brings with it some parameters which I think we all understand. We went through this when we discussed the role of Parliament and the role of the courts. I believe that the preponderant position taken by the people in this place is that Parliament is the supreme court of the land and that parliamentary supremacy is to be protected and defended.

We have other issues before us that are going to challenge that concept, but there comes a point when parliamentary privilege and the supremacy of Parliament have to be defended. I believe that clause 38 is consistent with the premise that the privileges of Parliament have to be protected. We have certain privileges in this place. Unfortunately from time to time maybe they do not serve the public well because even in this place members are protected from prosecution should they make public allegations. Within the confines of this chamber they are not subject to challenge and to being dealt with in regard to their statements or comments or allegations which outside this place would probably lead them into some difficulty.

I do not believe that is where we should be going or that we want to continue to perpetuate this aspect, but by the same token we need to be sure about the business of Parliament, particularly since the mandate of the ethics commissioner is to deal with matters on a confidential basis and to deal with matters that are very sensitive and do impact the lives of public office holders. There is a way to deal with them without in fact potentially damaging unduly the reputations of public office holders. I think we want to protect those things.

For me it also raises, in terms of matters to do with whistle-blowers, which I have discussed with the President of the Treasury Board, another aspect of how one deals with allegations of impropriety in terms of following policies and procedures of the public service and how to assure people who have concerns. I mentioned to the minister that in my own profession of chartered accountancy there are rules within our code of conduct which state that in the event I become aware of the impropriety of a colleague, a member of the Canadian Institute of Chartered Accountants, it is incumbent on me to bring it to the attention of the ethics commission of the Canadian Institute of Chartered Accountants. It is up to the commission to discharge the determination of whether any work should be done or any action should be taken. In the event that it subsequently comes to the commission's attention that I knew of but did not disclose that information, there is a consequence and there are sanctions against me.

In this regard I think there is some precedent for organizations and institutions, whether it be the public service or a profession, or indeed Parliament. There is certain business in its activities that should be dealt with within the organization simply because it is important to protect the integrity and the good name of people.

At this point I will conclude simply by saying that I believe the amendment does not fit what should be the premise of this place, that Parliament is supreme, that the privileges of Parliament must be protected and that maintaining clause 38 is consistent with that position.

[Stockwell Day, Canadian Alliance, Okanagan—Coquihalla, BC]

Mr. Speaker, my hon. colleague across the floor has made a game attempt at defending the indefensible. I struggled with him. I know he was asked to do that and it was difficult task. He has great ability and he has tried to put that ability to its best use. However he was given a flawed document to begin with, so it was very difficult for him.

At first I was concerned how he would handle the sadness of being disavowed of the thought that this in fact was good legislation. However I must disavow him of another notion which he stumbled into by raising it. He said that this Parliament was the highest court in the land. That is an honourable notion and one which I hope one day will be the case. However it is a notion thoroughly discredited by his government in the way it has allowed other assemblies of people to be the final presiders over decisions, incidents and situations that are very important to Canadians. I will look to him to take some steps that are in the Constitution, one of which will be a notwithstanding clause. When courts try to take away from Parliament this correct notion that we should be the highest court in the land, I will look to him to work with us in ways to re-establish Parliament as the highest court in the land. I am sure he will be excited to do that because he has stated that is the case today.

I move to another book, the one which he gamely trying to defend, the Liberal red book. It has been thought of by my colleagues across the way as a catalogue of commitments. In fact it has been proven not to be a catalogue of commitments. It is a manual on mendacity. It is a brochure of broken promises. It is a pamphlet on pandering. It is not a catalogue of commitments.

It has been the task of Canadian Alliance MPs, and they have shouldered this task in an admirable way, to slog their way through that red book of promises and find out just how mendacious they are. The one that we are focused on today is the commitment that there would be a truly independent ethics commissioner operating in this House on behalf of all Canadians. That is a commitment that was thoroughly discredited right here in this House.

I believe members are aware of what took place when Canadians were frustrated, at times beyond words, with what was happening out of the Prime Minister's office related to involvements that were--the best euphemism could be misconduct. Whether we are talking about golf courses, hotels or the litany of contracts, which my friend in the Canadian Alliance referenced just moments ago, it has become shocking. You were here the day, Mr. Speaker, when we were so upset by the fact that the government was not living up to its election commitment to have an independent ethics commissioner in place in the House of Commons.

When members of Parliament or aspiring members of Parliament are out in public and make commitments, make promises, and even have them in print, if they are good commitments that resonate with the voters, then they will pick up the currency of politics, which is votes, by making those commitments. In the last election, when we were quite rightly exposing the lack of ethics exhibited by the government to cover its tracks, it promised people there would be an independent ethics commissioner in this House and it picked up the currency of politics, it gained some votes. It is hard to say how many votes, whether it was in the hundreds of thousands or the tens of thousands, but across the country, as we know now, the government usurped the votes of Canadians based on that promise. After the election, when we continued to see in an even more incredible fashion the need for an independent ethics commissioner, the government continued to stall and did not live up to its promise.

Therefore, the Canadian Alliance, the official opposition, on one of its days in which it got to propose certain things in a very formal way in the House, took the promise that was in the red book, the promise that Liberal MPs had used during the election to gain votes, and brought it into the House in the form of a motion using the words of the government itself, right from its red book of promises. We used its words. We said that we agreed there should be an independent ethics commissioner.

Members will recall that a vote was taken in the House and the Liberal government forced all its members to vote against the motion and break their own promise. It is one thing if we as individuals break our word with somebody. We have to bear that responsibility. It is a very serious thing when we tell other people to break their word or as a matter of fact when we order them to break their word. That was exposed. It was a calamity.

Good people like my honourable friend across the way were pulled into the vortex of that power move to force people to break their word, to force them to stand and vote against a promise that they had in fact printed.

In a strategy with which we and all Canadians are well familiar, when the government, not governing on principle but governing only under pressure, feels the pressure of a bill, of a law, of a suggestion or of a policy that is not its own, when it feels the pressure coming from the public perhaps because the opposition or some other group has raised it, it just keeps testing the water. It polls nightly and if it looks like it might be harmed if it does not adopt what the opposition suggests, then it takes a half step in that direction, partially appropriates the idea or initiative, just enough to put a title on it and says to Canadians that it has dealt with it. It is an ingenious although somewhat devious process and it works a lot of the time because Canadians are busy. They are working, paying their taxes, are law-abiding and raising their kids so they do not have time always to plumb the depths beyond the title of a certain bill.

It was after the Liberals published in the red book that they would have an independent ethics commissioner, that we brought that promise to the floor of the House and gave them full credit for it. They broke their promise and voted against it. The pressure has continued to rise.

The opposition, though we should take some of the credit, cannot take all the credit for this. It has become so obvious to Canadians. Now unfortunately it has become so obvious to the authorities that investigations abound in terms of the contracts and some of the conduct of the government. It has become so obvious that we need an independent ethics commissioner that the government has put forward a bill. However remember the process that it uses. It takes a half step, the baby step. It only partially appropriates the good initiative the opposition is proposing, whether it be an ethics commissioner, lowering taxes, mandatory sentences for vicious repeat offenders or whatever it might be, and publishes what looks like a big headline. Under cover of that, under the radar of that headline, it says it has done it and it tries to put to rest the concern of the public.

Bill C-34 does not provide for a truly independent ethics commissioner. The person would still be the appointee of the Prime Minister, would still operate in a veil of secrecy and would still not fully report and be fully accountable to Parliament.

We will do all we can to raise and bring to the attention of Canadians that not only did these Liberals break their own promise, which was written in their manual of mendacity, not only did they rise one by one and vote against it under threat of their whip, they also voted to break their own word. Now they are trying to cover that whole sham with something called Bill C-34 to do with apparently an ethics commissioner.

It falls short, and Canadians deserve better. We will continue to press on this point and on others so Canadians will get better service and better government as they listen to the opposition and other concerned Canadians about how they are being taken down the garden path on this and other pieces of legislation by this government.

[John Bryden, Liberal, Ancaster—Dundas—Flamborough—Aldershot, ON]

Mr. Speaker, after the remarks of the member opposite who spoke, I felt compelled to rise just to straighten out a point here.

What is before the House right now is an amendment, proposed by another party, one of the minor parties in the House, that would basically ensure that Parliament and the ethics commissioner and ethics officer would not come under the courts. The member who spoke just now indicated, I think fairly strongly, that his party and he himself intend to vote against Bill C-34 for the reasons he outlined. I accept that. Obviously the opposition must oppose and if the opposition feels the bill is inadequate, so be it.

However, I will be very interested to see whether the member who just spoke and his party vote against or for the motion that is before the House because what the motion that is before the House does is put Parliament behind the courts.

We have seen only too vividly in the last few months the impact of judicial activism of the courts overruling Parliament on issues that are near and dear to Canadians. Therefore it strikes me as passing strange that the opposition should now say that it resists the government's very laudable intent to ensure that Parliament remains, as indeed it is, supreme above the courts and not answerable to the courts by having a section in it that would change the Federal Court Act. It states:

For greater certainty, the expression “federal board, commission or other tribunal”, as defined in subsection (1), does not include the Senate, the House of Commons, any committee or member of either House, the Senate Ethics Officer or the Ethics Commissioner.

This is precisely what every member in the House of Commons should want. The whole problem that we are experiencing today in this Parliament is the fact that we pass laws and unelected courts overturn them.

Therefore I am going to look forward to watching very closely how the members opposite vote on this motion. Let them discard at third reading all of Bill C-34, but I do challenge them to vote with the minor party that put forward the motion. They should vote with them and see how the public feels about it when the next day they rise and complain about judicial activism and the fact that Parliament has been sidelined by the courts when they support this type of motion that is before the House.

[Lynne Yelich, Canadian Alliance, Blackstrap, SK]

Mr. Speaker, today we are speaking to Bill C-34 and the roles of the ethics commissioner and the Senate ethics officer. I am pleased to have the opportunity to add my concerns to those already outlined by my colleagues. By now members will have heard most of these points more than once and that fact should be an indicator that these are valid concerns held by a diverse group of people.

First of all, I must say that I am in favour of setting and maintaining a high ethical standard for government and parliamentarians. I am also in favour of ensuring that standard is met and enforced by an independent and objective body. Unfortunately, Bill C-34 does not fulfill those requirements.

What the Liberals have suggested is the creation of an ethics overseer who really would not be independent at all. As proposed, the ethics commissioner would be appointed by the Prime Minister and that choice would be ratified by a vote in the House of Commons by a majority government. It is true that the Prime Minister would have to consult the leaders of the other political parties, but the scope of that consultation has not been defined. Essentially the Prime Minister could ask the other party leaders what they thought about whom he had chosen and then simply ignore any feedback he received.

The ethics commissioner would be responsible for investigating misconduct of MPs from all parties. It is therefore absolutely mandatory that the commissioner be totally neutral from a political perspective. The appointment process outlined in the bill sets the foundation for just the opposite circumstance, an individual that could be biased in favour of the ruling party that chose him or her for the job. All parties should approve a truly independent commissioner; otherwise the government majority will prevail in hand-picking its so-called independent watchdog and skewing any possible perception of fairness.

I am also concerned about the appearance and the presence of accountability within the system. The Canadian public has been exposed to scandal after scandal throughout the reign of the Liberal government: wasted money, a lack of transparency, conflict of interest and preferential treatment. Bill C-34 is an exercise in Liberal damage control. Unfortunately, there is no reason for Canadians to believe that the government that perpetuated these fiascos is capable of appointing an effective ethics commissioner to monitor its own behaviour.

Some time ago I sent a survey to every household in my riding. One of the questions asked constituents to rank several issues in terms of their importance. The number one issue was not health care; it was not taxes; it was not defence. The overwhelming majority of respondents identified government accountability as the most important issue facing our country today. That is where I am coming from in making my points.

To conclude, I would like to share a quote from Duff Conacher, coordinator of Democracy Watch and chairperson of the Government Ethics Coalition, which I believe sums up my concerns about Bill C-34:

Prime Minister Chrétien has proposed a new 'Swiss-cheese' ethics enforcement system filled with holes that will prove to be fatal flaws, especially given that the new ethics watchdogs will conflict with each other, be appointed by Cabinet, operate in secret, and be unaccountable to the public or the courts.

[The Deputy Speaker]

Is the House ready for the question?

[Some hon. members]

Question.

[The Deputy Speaker]

The question is on Motion No. 1. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[The Deputy Speaker]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker]

In my opinion the nays have it.

And more than five members having risen:

[The Deputy Speaker]

Call in the members.

And the bells having rung:

[The Deputy Speaker]

The vote is deferred until tomorrow at the end of government orders.

Criminal Code

[John McCallum, Liberal, for the Minister of Justice]

moved that Bill C-45, An Act to amend the Criminal Code (criminal liability of organizations), be read the second time and referred to a committee.

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker,I am pleased to begin the debate on Bill C-45, an act to amend the Criminal Code concerning the criminal liability of organizations. The bill will transform the principles contained in the government's response to the 15th report of the Standing Committee on Justice and Human Rights looking into provisions in the Criminal Code. The standing committee's report was the result of hearings that were prompted by the debate on Bill C-284 sponsored by the hon. member for Churchill.

Fundamentally the bill has its origins in the tragic deaths of 26 miners in the Westray mine explosion in May 1992. I will not review in detail the lengthy and ultimately fruitless criminal proceedings that followed the investigation of the explosion. All members are aware that the company that operated the mine, and two of its executives, were charged with manslaughter. The trial judge ordered a stay of the charges because of problems with disclosure of evidence by the Crown. Although the appeal courts overturned that decision, the prosecution decided it could not go forward.

The Government of Nova Scotia appointed Justice K. Peter Richard to conduct an inquiry into the disaster. The inquiry itself was delayed by legal proceedings but when hearings got underway, the evidence disclosed, in Justice Richard's own words, “a complex mosaic of actions, omissions, mistakes, incompetence, apathy, cynicism, stupidity and neglect”. Justice Richard ultimately made 74 recommendations to enhance workplace safety. These recommendations dealt with such issues as training, ventilation, mine safety and the like.

The United Steelworkers of America, to their credit, have been the untiring champions of the families of the Westray victims. They urged Justice Richard to recommend fundamental reform of the criminal law as it affects workplace safety and the responsibility of corporate directors and officers for maintaining a safe workplace.

Justice Richard concluded that this was beyond his mandate but he did make recommendation 73:

The Government of Canada, through the Department of Justice, should institute a study of the accountability of corporate executives and directors for the wrongful or negligent acts of the corporation and should introduce in the Parliament of Canada such amendments to legislation as are necessary to ensure that corporate executives and directors are held properly accountable for workplace safety.

In this Parliament all members of the standing committee have given careful consideration to both the issue of the role of the criminal law in promoting workplace safety and the general rules that should govern the liability of corporations and their officers and directors.

A discussion paper setting out the issues and reviewing the evidence of other countries, which had been prepared by the justice department, was provided to the committee. The committee heard from officials of the justice department and other experts. It heard moving testimony from victims and relatives of victims of industrial accidents. The 15th report of the committee recommended “that the government table in the House legislation to deal with the criminal liability of corporations, directors and officers”.

Clearly all parties in the House felt that it was time for fundamental reform in this area. The government in its response to the report reviewed the evidence that had been heard by the committee and agreed on the need for reform. The government also concluded that there was no perfect system in other countries that Canada could simply copy. The report therefore set out the principles that would guide the drafting of a made in Canada approach to the problem of corporate crime.

However, just as reform of the criminal law was not the primary focus of Mr. Justice Richard's report, this bill is not the primary response of the Government of Canada to the Westray tragedy. The government has already acted decisively to promote workplace safety because prevention of accidents is always better than prosecutions after a tragedy.

In 2000, amendments to part II of the Canada Labour Code established a number of improvements to occupational health and safety in workplaces under federal jurisdiction. Three fundamental employee rights were established: the right to know about hazards in the workplace; the right to participate in correcting those hazards; and the right to refuse dangerous work. The role of workplace health and safety committees and of policy health and safety committees was strengthened.

Bill C-45 builds on those changes by proposing to include in the Criminal Code a new section, section 217.1, which provides that everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person or any other person arising from that work or task.

The importance of having such a duty in the Criminal Code is that if there is a breach of that duty, wanton and reckless disregard for the life or safety of people, and injury or death results from that breach, a person can be convicted of criminal negligence causing death which is punishable by up to life imprisonment, or criminal negligence causing bodily harm which is punishable by up to 10 years imprisonment.

Members will note that this duty is not specific to corporations. Many corporations already have a similar duty. The Canada Labour Code for example provides in section 124 that “every employer shall ensure that the health and safety of work of every person employed by the employer is protected”.

As well, a duty of care to workers may exist in provincial legislation or under the common law. Breach of these duties can currently lead to criminal charges where there is reckless disregard for the safety of others.

Bill C-45, if adopted, will have its greatest impact on the liability of corporations and other associations of persons for all criminal offences. The definitions of “representative” and “senior officer” and the rules for attributing criminal liability for negligence offences and other offences set out in proposed sections 22.1, 22.2 and 22.3 will modernize the approach to criminal liability of all corporations.

Members will have noted that although the standing committee held hearings on corporate criminal liability, the bill refers to “organizations” which is defined broadly to include all major participants in the economy and all associations of persons created for a common purpose, having an operational structure and holding itself out to the public as an association.

There has been a great deal of creativity shown by corporate lawyers in developing new structures, for example, limited liability partnerships and joint ventures. Quite simply we want to ensure the Criminal Code applies to every organization of persons without any artificial distinctions based on how those persons chose to structure their legal relations.

In practice of course, corporations are likely to be charged far more frequently than other forms of association because of their dominant role in Canadian society. The proposed rules for attributing criminal liability to an organization are necessarily complex because the criminal law requires proof of both the commission of a prohibited act and that the person had the necessary mental state.

Since organizations can only act through individuals, the fundamental problem with which the law has struggled is to decide whose acts are to be considered the acts of the organization and who in the organization has to have the necessary guilty mind for the organization itself to be considered as having a guilty mind.

Until now, Parliament has been content to have bodies, corporate societies and companies included as persons and to leave it to the courts to develop the tests for determining when they are criminally liable. At first, the courts were reluctant to find that a corporation could commit a crime, but case by case they have built up rules for holding corporations accountable for crimes carried out in their name and for their benefit by their employees and officers.

With respect to the first question, namely, whose acts should be considered the acts of the organization, we propose that the acts of representatives are the acts of the organization. Representative is defined broadly so that it includes not just officers and employees, but also agents and contractors. As long as they are acting within the scope of the authority given them by the organization, their actions should be the actions of the corporation.

As for whose guilty mind should be the guilty mind of the organization, the government in its response stated that it found the Supreme Court approach too narrow because of its insistence that a directing mind had to have executive decision making authority on matters of corporate policy.

Through the definition of senior officer, we propose to broaden who can be the directing mind by including, in addition to those who would already be so considered, a person who has an important role in establishing policy rather than having to have the ultimate power to make policy, and a person who is responsible for managing an important aspect of the organization's activities even if that person has no policy making authority whatsoever. The proposed change reflects the way that large modern corporations are organized.

While the courts would still have to decide in each case whether a particular person is a senior officer, I believe the proposal clearly indicates our intention that the guilty mind of a middle manager should be considered the guilty mind of the corporation itself. For example, the manager of a sector of a business such as sales, security or marketing, and the manager of a unit of the enterprise like a region, a store or a plant, could be considered senior officers by the courts.

An organization would be responsible for crimes based on negligence where the acts and omissions of its representatives, taken as a whole, are negligent and its senior officers showed a marked departure from the standard normally expected in the circumstances.

In a tragedy such as Westray, it may not be possible to find a single representative of a corporation who was criminally negligent. The deaths may have resulted from a series of actions and omissions by many representatives. Even though no single individual might be convicted of a criminal offence, it may be possible for the corporation operating the mine to be criminally liable. For example, if three employees simultaneously turned off three separate safety systems and death resulted, these employees might not be subject to criminal prosecution because they each believed that turning off one system would not endanger anyone because the other two systems would still be in operation. However, the corporation might be charged with criminal negligence.

For the court to convict the company that operated the mine, the Crown would have to show that the management fell well below the standard of care that would be expected in the circumstances. In making this determination, the court would have to consider industry practice and procedure. If other companies have a system to ensure that no more than one safety system could be turned off at a time, the court could well conclude that the accused corporation had fallen far below what was reasonably to be expected and convicted.

For all other criminal offences, we are proposing that the organization be criminally liable whenever a senior officer with intent to benefit the organization commits the prohibited act, or uses representatives lower down in the organization, or outsiders to commit the act, or fails to act on knowledge of criminal activity by its representatives.

An organization should not be able to avoid criminal liability by turning a blind eye to indications that its representatives are committing crimes.

All of these changes reflect the positions taken by the government when it tabled its response. At that time the government indicated that the Criminal Code should provide more guidance for the courts when they impose sentences on a corporation, but we made no specific proposal.

The Criminal Code contains principles of sentencing and aggravating factors for judges to consider, but mainly they are applicable to the individual. For example, it is an aggravating factor to abuse a spouse or a child in committing the offence.

We are seeking, through the proposed new section 718.21, to assist the courts in determining an appropriate sentence for an organization. Of course, jail is not an option for a corporation. Therefore, in practice the court has to decide how heavy the fine to impose.

In determining that fine the court should consider the moral blameworthiness of the organization through such factors as the profit it made and the planning involved in the offence. It should also consider the public interest. Except in unusual circumstances, a fine should not be so high that the company is bankrupted and morally blameless employees lose their jobs.

Just as the criminal record of an individual is very important in determining sentence, the court should take into account any previous criminal convictions and convictions for regulatory offences of the organization and its personnel involved in committing the offence.

Finally, rehabilitation of the offender is always important. An organization may have shown that it is determined not to commit further offences by imposing penalties on managers involved in the commission of the offence or by paying restitution to victims.

We are also proposing to encourage the courts to innovate by setting out optional conditions of probation geared to the corporate offender in the proposed new subsection 732.1(3.1). Probation is possible for corporations, but it is virtually never imposed.

We believe there may be circumstances where the court wants to ensure as best it can that the corporation will change its ways and commit no further crimes.