Bill C-2 (Historical)

Federal Accountability Act

An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability

Part 1 enacts the Conflict of Interest Act and makes consequential amendments in furtherance of that Act. That Act sets out substantive prohibitions governing public office holders. Compliance with the Act is a deemed term and condition of a public office holder’s appointment or employment. The Act also sets out a detailed regime of compliance measures to ensure conformity with the substantive prohibitions, certain of which apply to all public office holders and others of which apply to reporting public office holders. The Act also provides for a regime of detailed post-employment rules. Finally, the Act establishes a complaints regime, sets out the powers of investigation of the Commissioner and provides for public reporting as well as a regime of administrative monetary penalties.
Amongst other matters, the consequential amendments to the Parliament of Canada Act provide for the appointment and office of the Conflict of Interest and Ethics Commissioner along with his or her tenure, expenses, duties and other administrative matters.
Part 1 also amends the Canada Elections Act to
(a) reduce to $1,000 the amount that an individual may contribute annually to a registered party, and create a distinct $1,000 annual limit on contributions to the registered associations, the nomination contestants and the candidates of a registered party;
(b) reduce to $1,000 the amount that an individual may contribute to an independent candidate or to a leadership contestant;
(c) reduce to $1,000 the amount that a nomination contestant, a candidate or a leadership contestant may contribute to his or her own campaign in addition to the $1,000 limit on individual contributions;
(d) totally ban contributions by corporations, trade unions and associations by repealing the exception that allows them to make an annual contribution of $1,000 to the registered associations, the candidates and the nomination contestants of a registered party and a contribution of $1,000 to an independent candidate during an election period;
(e) ban cash donations of more than $20, and reduce to $20 the amount that may be contributed before a receipt must be issued or, in the case of anonymous contributions following a general solicitation at a meeting, before certain record-keeping requirements must be met; and
(f) increase to 5 years after the day on which the Commissioner of Canada Elections became aware of the facts giving rise to a prosecution, and to 10 years following the commission of an offence, the period within which a prosecution may be instituted.
Other amendments to the Canada Elections Act prohibit candidates from accepting gifts that could reasonably be seen to have been given to influence the candidate in the performance of his or her duties and functions as a member, if elected. The wilful contravention of this prohibition is considered to be a corrupt practice. A new disclosure requirement is introduced to require candidates to report to the Chief Electoral Officer any gifts received with a total value exceeding $500. Exceptions are provided for gifts received from relatives, as well as gifts of courtesy or of protocol. The amendments also prohibit registered parties and registered associations from transferring money to candidates directly from a trust fund.
The amendments to the Lobbyists Registration Act rename the Act and provide for the appointment by the Governor in Council of a Commissioner of Lobbying after approval by resolution of both Houses of Parliament. They broaden the scope for investigations by the Commissioner, extend to 10 years the period in respect of which contraventions may be investigated and prosecuted, and increase the penalties for an offence under the Act. In addition, they empower the Commissioner to prohibit someone who has committed an offence from lobbying for a period of up to two years, prohibit the acceptance and payment of contingency fees and prohibit certain public office holders from lobbying for a period of five years after leaving office. They require lobbyists to report their lobbying activities involving certain public office holders and permit the Commissioner to request those office holders to confirm or correct the information reported by lobbyists.
Amendments to the Parliament of Canada Act prohibit members of the House of Commons from accepting benefits or income from certain trusts and require them to disclose all trusts to the Conflict of Interest and Ethics Commissioner. The amendments also authorize the Conflict of Interest and Ethics Commissioner to issue orders requiring members to terminate most trusts and prohibiting them from using the proceeds from their termination for political purposes. In cases where the trusts are not required to be terminated, the amendments authorize the Conflict of Interest and Ethics Commissioner to make orders prohibiting members from using the trusts for political purposes. An offence is created for members who do not comply with such orders. The amendments also provide that, in the event of a prosecution, a committee of the House of Commons may issue an opinion that is to be provided to the judge before whom the proceedings are held.
Finally, Part 1 amends the Public Service Employment Act to remove the right of employees in ministers’ offices to be appointed without competition to positions in the public service for which the Public Service Commission considers them qualified.
Part 2 harmonizes the appointment and removal provisions relating to certain officers.
Amendments to the Parliament of Canada Act establish within the Library of Parliament a position to be known as the Parliamentary Budget Officer, whose mandate is to provide objective analysis to the Senate and House of Commons about the estimates of the government, the state of the nation’s finances and trends in the national economy, to undertake research into those things when requested to do so by certain Parliamentary committees, and to provide estimates of the costs of proposals contained in Bills introduced by members of Parliament other than in their capacity as ministers of the Crown. The amendments also provide the Parliamentary Budget Officer with a right of access to data that are necessary for the performance of his or her mandate.
Part 3 enacts the Director of Public Prosecutions Act which provides for the appointment of the Director of Public Prosecutions and one or more Deputy Directors. That Act gives the Director the authority to initiate and conduct criminal prosecutions on behalf of the Crown that are under the jurisdiction of the Attorney General of Canada. That Act also provides that the Director has the power to make binding and final decisions as to whether to prosecute, unless the Attorney General of Canada directs otherwise, and that such directives must be in writing and published in the Canada Gazette. The Director holds office for a non-renewable term of seven years during good behaviour and is the Deputy Attorney General of Canada for the purposes of carrying out the work of the office. The Director is given responsibility, in place of the Commissioner of Canada Elections, for prosecutions of offences under the Canada Elections Act.
Part 3 also amends the Access to Information Act to ensure that all parent Crown corporations, and their wholly-owned subsidiaries, within the meaning of section 83 of the Financial Administration Act are encompassed by the definition “government institution” in section 3 of the Access to Information Act and to add five officers, five foundations and the Canadian Wheat Board to Schedule I of that Act. It adjusts some of the exemption provisions accordingly and includes new exemptions or exclusions relating to the added officers and the Crown corporations. It empowers the Governor in Council to prescribe criteria for adding a body or an office to Schedule I and requires Ministers to publish annual reports of all expenses incurred by their offices and paid out of the Consolidated Revenue Fund. It adds any of those same officers and foundations that are not already included in the schedule to the Privacy Act to that schedule, ensures that all of those parent Crown corporations and subsidiaries are encompassed by the definition “government institution” in section 3 of that Act, and makes other consequential amendments to that Act. It amends the Export Development Act to include a provision for the confidentiality of information. It revises certain procedures relating to the processing of requests and handling of complaints and allows for increases to the number of investigators the Information Commissioner may designate to examine records related to defence and national security.
Amendments to the Library and Archives of Canada Act provide for an obligation to send final reports on government public opinion research to the Library and Archives of Canada.
Finally, Part 3 amends the Public Servants Disclosure Protection Act to
(a) establish the Public Servants Disclosure Protection Tribunal and empower it to make remedial orders in favour of victims of reprisal and to order disciplinary action against the person or persons who took the reprisal;
(b) provide for the protection of all Canadians, not only public servants, who report government wrongdoings to the Public Sector Integrity Commissioner;
(c) remove the Governor in Council’s ability to delete the name of Crown corporations and other public bodies from the schedule to the Act;
(d) require the prompt public reporting by chief executives and the Public Sector Integrity Commissioner of cases of wrongdoing; and
(e) permit the Public Sector Integrity Commissioner to provide access to legal advice relating to the Act.
Part 4 amends the Financial Administration Act to create a new schedule that identifies and designates certain officials as accounting officers and, within the framework of their appropriate minister’s responsibilities and accountability to Parliament, sets out the matters for which they are accountable before the appropriate committees of Parliament. A regime for the resolution of issues related to the interpretation or application of a policy, directive or standard issued by the Treasury Board is established along with a requirement that the Treasury Board provide a copy of its decision to the Auditor General of Canada.
Part 4 also amends the Financial Administration Act and the Criminal Code to create indictable offences for fraud with respect to public money or money of a Crown corporation, and makes persons convicted of those offences ineligible to be employed by the Crown or the corporation or to otherwise contract with the Crown.
Other amendments to the Financial Administration Act clarify the authority of the Treasury Board to act on behalf of the Queen’s Privy Council for Canada on matters related to internal audit in the federal public administration. They also set out the deputy head’s responsibility for ensuring that there is an internal audit capacity appropriate to the needs of the department and requires them, subject to directives of the Treasury Board, to establish an audit committee. The Financial Administration Act, the Farm Credit Canada Act and the Public Sector Pension Investment Board Act are amended to require Crown corporations to establish audit committees composed of members who are not officers or employees of the corporation. Other amendments to the Financial Administration Act require, subject to directions of the Treasury Board, that all grant and contribution programs be reviewed at least every five years to ensure their relevance and effectiveness.
Amendments made to the Financial Administration Act and to the constituent legislation of a number of Crown corporations provide for appointments of directors for up to four years from a current maximum of three years.
Part 4 also amends the Canadian Dairy Commission Act, the Enterprise Cape Breton Corporation Act and the National Capital Act to require different individuals to perform the duties of chair of the Board of Directors and chief executive officer of the corporation.
Part 5 amends the Auditor General Act by expanding the class of recipients of grants, contributions and loans into which the Auditor General of Canada may inquire as to the use of funds, whether received from Her Majesty in right of Canada or a Crown corporation. Other amendments provide certain immunities to the Auditor General.
Amendments to the Department of Public Works and Government Services Act provide for the appointment and mandate of a Procurement Auditor.
Part 5 also amends the Financial Administration Act to provide for a government commitment to fairness, openness and transparency in government contract bidding, and a regulation-making power to deem certain clauses to be set out in government contracts in relation to prohibiting the payment of contingency fees and respecting corruption and collusion in the bidding process for procurement contracts, declarations by bidders in respect of specific criminal offences, and the provision of information to the Auditor General of Canada by recipients under funding agreements.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Chairman, I would follow along the line of questioning that you made, as well as Mr. Peterson.

You responded particularly to Mr. Peterson by saying there are some grey areas, which is rather troubling. With the existing law, and indeed the proposed Bill C-2 legislation, are you given discretion to set forward policies and rules and structures as to how you're going to operate? I guess I'm looking ahead to Bill C-2, if that's passed. In other words, if it's not mentioned in the legislation, and there are about eight or nine amendments that have been made, I think, with respect to Bill C-2, you get into the details--to use your words, the grey areas.

Are you able to assist lobbyists, politicians, or anyone with respect to the types of questions that were asked by Mr. Peterson?

[Michael Nelson]

To move to something I could talk about at the very end, what is terribly important in this act, because of the types of situations you've talked about, is that public office holders know what lobbying is and what the obligations are of lobbyists. When somebody is talking to them, they have the reaction of saying--and more and more are, by the way, because they call my office about this--“I can't find you on the registry. Have you considered whether you should be registered or not?”

Without being cute, it takes two to lobby: it takes somebody who is willing to be lobbied and it takes the lobbyist. The education part.... When I go before the Senate I'll be talking about this, if they choose to invite me. Another critical power or obligation that's given by Bill C-2 to the commissioner of lobbying is the explicit mandate to go and tell public office holders what lobbyists are supposed to be doing.

You're right: unless there's a sensitivity on the public office holder's part, I may never find out about that. So it's very important that we and public office holders know what the obligations are. It would take a hundred people like me in an office to ever sort that out, so I need to use leverage, and education is the way to get that leverage.

[Michael Nelson]

I would have to say that's a grey zone. If somebody complained to us about that, we would look into the matter to see how likely it was that there was a connection--you can see why this is a dicey business--between your....

I would like to point out something that we may not get to in this presentation, with respect to the current law and what Bill C-2provides, because this has not been given very much press anywhere. One of the things that Bill C-2does is expand the investigative powers of the commissioner of lobbying so that people can be compelled to provide documents and can be subpoenaed when there is no investigation taking place under the lobbyists code of conduct.

Right now, I rely on everyone concerned to voluntarily provide information, which is not a very good way of doing things. In the case you're talking about, simply determining exactly what the facts of the matter are could take up an awful lot of time. It's a dicey business.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Thank you.

Mr. Nelson, I appreciate the issue you raised about Industry Canada. Of course, the proposal of Bill C-2 is that ultimately when that bill becomes law--if it becomes law, and I assume it will--there will be an independent commissioner of lobbying. My understanding now, and I think you alluded to it, is that your office is really responsible to the Treasury Board. I'd like you to clarify whether that is the case, and if it is the case, I assume that would continue until this new legislation takes place.

My question is, are you put in the same predicament as you were with Industry Canada? There are probably more lobbyists involved in Industry Canada than there are with the Treasury Board, but could you elaborate on that issue, because to me it's the same situation, perhaps not quite as exaggerated, but the same situation.

[Michael Nelson, Registrar of Lobbyists, Office of the Registrar of Lobbyists]

Thank you, Mr. Chairman.

I am extremely happy to be here today. These meetings are very important to me. I am accompanied today by our counsel, Bruce Bergen, by Karen Shepherd, Director of Investigations, as well as by Pierre Ricard-Desjardins, Director of Operations.

I think it was interesting to hear the bit of discussion about a seminar. We're going to try to whip very quickly through this deck that we have, but for an act that is relatively simple in its intent, it's a little tricky to work your way through. Particularly if you are going to be asking some questions about what Bill C-2 might mean for this, as I've been advised you might, it's very important to budget a bit of your time to do this. So I commend the committee for the learning that needs to go on, and I apologize to those members of the committee who may have heard some of this before and possibly know more than I do about the act.

What is a senior public servant without a deck? So we have a deck to go through, and I'll start on page 3.

Why do lobbying laws exist? Of course we aren't the only jurisdiction that has lobbying laws, and I'll say a little bit about that in a second. The pretty simple reason they exist and they're being talked about in all jurisdictions, or in most jurisdictions, is to address the concern that some people have more access to government decision-makers and thus to influence government decision than other people have, and they do this by virtue of hiring people either because of who they know or what they know about government. This ends up being a concern in democracies, and so lobbying laws become enacted, I believe, to contribute to confidence in the integrity of government decision-making. This isn't about just creating a registry with names on it; this is about the outcome of confidence in government decision-making.

As I mentioned, there are laws in many jurisdictions. Most jurisdictions consider lobbying law to be part of a family of ethics legislation, so some folks in some jurisdictions may have my responsibilities, and they may also be responsible for election law, election financing. Here in Canada at the federal level currently, the Parliament has chosen to make this just a single lobbying registration function.

The emphasis in most legislation in various jurisdictions ends up being on transparency rather than regulation in most cases, especially at the beginning, and then as the legislation matures, usually the disclosure gets more intense and some regulation starts to move in. This is what we're seeing through BillC-2, I believe. I know the OECD is studying lobbying law. The United States have a myriad of different legislation at the federal level and the state level. I saw something from New York City the other day. Five provinces in Canada have lobbying legislation: British Columbia; Ontario; Nova Scotia; Newfoundland and Labrador; and Quebec, which is the closest to the legislative powers that we have here at the federal level. The latest trend is that you're hearing about municipal registries. In fact, the City of Toronto asked me to go down, which I did earlier this summer, and talk to them about our federal registry, because they've just enacted their own regulations for the City of Toronto, and I know a couple of other cities are talking about it. I would point out that in Quebec the provincial legislation covers municipal lobbying as well, so my colleague Pierre-André Côté has quite a lot on his hands.

As for the history, very quickly, the Lobbying Act has been around for about 17 years. In some major initiatives in 1996 there was the introduction of the lobbyists code of conduct, which Karen will speak to briefly in a second. The most recent amendments to the act came into force only last summer, with tremendous effect actually in terms of the number of registrations, and now we see that Bill C-2, the Federal Accountability Act, has major amendments proposed to the Lobbyists Registration Act.

The Office of the Registrar of Lobbyists has been around, of course, as long as the registry. In 1994 the Ethics Counsellor was made responsible for the registry as well as being Ethics Counsellor. In 2004 Parliament decided to split that function, creating the office of Mr. Shapiro--Mr. Bernard Shapiro was the Ethics Commissioner--and the residual responsibilities were given to an ADM at Industry Canada, which Mr. Tilson knows because he asked me that question the very first time I appeared. I was that ADM, and the question was very appropriately, “How can you be an ADM and also be the registrar of lobbyists?” So not long after, with the workload increasing and, I would like to say, with the encouragement of the members of that committee at the time, the Office of the Registrar of Lobbyists became a stand-alone function within Industry Canada at that time and my office was moved. Physically we moved out, and I became the registrar of lobbyists on a full-time basis and was no longer the assistant deputy minister.

Then in February 2006 when there were some machinery moves around the creation of the cabinet of Prime Minister Harper, one move was made that didn't get a lot of attention but was certainly very important for us and, I think, for the independence of the portfolio. As you can do in the machinery of government at the federal level, my office was made a department--all 20 of us--for the purposes of the Federal Accountability Act. I was made the deputy head of that office, and we were moved to the portfolio of the President of the Treasury Board.

I would say the registrar of lobbyists is a unique creation within government. It's a public servant--

[Continuation of proceedings from part A]

The House resumed consideration of the motion that Bill C-2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, be read the third time and passed.

Federal Accountability Act

[Loyola Hearn, Conservative, St. John's South—Mount Pearl, NL]

moved that Bill C-2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, be read the third time and passed.

The House resumed from June 20 consideration of Bill C-2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, as reported (with amendments) from the committee.

[John Baird, Conservative, President of the Treasury Board]

He said: Mr. Speaker, I would be remiss if I did not say to all members of the House that there has been a lot of due diligence from the members of the official opposition, the Bloc and the New Democrats on this. Members have certainly tried to do their very best to fulfill their responsibilities. I would be negligent if I did not point that out to the House and, through you, Mr. Speaker, to Canadians who are watching.

I rise to speak to two motions to amend clause 123 of Bill C-2, the federal accountability act, which proposes the enactment of a director of public prosecutions act. This is something that is tremendously important. Clause 123 was amended by the committee examining the bill to confer authority on a parliamentary committee to approve the appointment of a selected candidate to the position of the director of public prosecutions and to require a resolution from the House of Commons to remove the incumbent from office.

It is the government's view that these amendments which were proposed, I believe in good faith by my colleagues in the Bloc Québécois in committee, are beyond the scope and the principle of Bill C-2 as they run counter to the accountability regime that was carefully designed for the position of the director of public prosecutions.

Pursuant to clause 123, the DPP has the rank and status of a deputy head of department, a deputy minister. The DPP is responsible for initiating and conducting prosecutions under and on behalf of the Attorney General of Canada. The DPP is also required to provide an annual report to the Attorney General in respect of the activities of his or her office.

Accountability is inextricably linked to the authority to appoint and remove an office holder. Bill C-2 has introduced and contemplated an accountability framework whereby the DPP would be responsible and accountable to the Attorney General for the exercise of these executive functions. I would underline the executive as apart from the parliamentary or legislative function in this place. A central feature of this accountability framework is the authority to appoint and remove the DPP, which is conferred solely on the governor in council.

In addition, the DPP would be designated an accounting officer under Bill C-2, which prescribes the nature of the accountability of the DPP before the appropriate committees of the House of Commons and the Senate, as well as setting out how this accountability is discharged in appearing before the committee and answering questions. This is a made in Canada regime and this person would have the status of a deputy minister, while the accountability regimes would be blurred through the amendment that was made in committee.

Clause 123 as amended requires parliamentary approval of the appointment and removal of the DPP. It asks that the House of Commons now have a key role to play in the appointment and removal of a public office holder whose functions do form part of the executive branch of government. The Bloc amendment fundamentally changes the nature of the position and confuses the line of accountability of the DPP. This falls outside the principle and scope of the bill as approved by the House of Commons at second reading.

For this reason, I would like to encourage all members, particularly my good friend, the member for Vancouver Quadra, to give serious consideration to reviewing this decision. Is it really an appropriate line of accountability to have someone exercising executive power with the blurred lines of being designated an accounting officer in part of the bill and then being essentially a quasi-agent of Parliament, exercising executive authority? I commend this advice to members of the House.

The House resumed consideration of Bill C-2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, as reported (with amendment) from the committee, and of the motions in Group No. 2.

The House resumed consideration of Bill C-2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, as reported (with amendments) from the Legislative Committee on Bill C-2; and of the motions in Group No. 2.

The House proceeded to the consideration of Bill C-2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, as reported (with amendment) from the committee.

Access to Information

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, the Conservative government's access to information plan will not strengthen accountability. It will clearly weaken it.

Bill C-2 will actually reduce the amount of information available to the public and increase the government's ability to cover up wrongdoings.

The government's approach to the access to information reforms came as a surprising disappointment to many, including the Information Commissioner.

According to the commissioner's recent report:

No previous government...has put forward a more retrograde and dangerous set of proposals to change the Access to Information Act.

The Prime Minister just makes it up as he goes along, falsely accusing the Information Commissioner of intent to interfere with journalistic freedom instead of acknowledging the shortcomings of his own accountability act.

It is a step backwards and will actually work against openness and transparency. That is certainly not what I call accountability.

The House resumed consideration of the motion that Bill C-2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, be read the second time and referred to a committee.

The House resumed consideration of the motion that Bill C-2, an act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, be read the second time and referred to a committee.