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.

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.

Speaker's Ruling

[The Speaker, Peter Milliken]

There are 30 motions in amendment standing on the notice paper for the report stage of Bill C-2.

Motions Nos. 5, 15 and 25 to 27 will not be selected by the Chair as they could have been proposed in committee.

All the remaining motions have been examined and the Chair is satisfied that they meet the guidelines expressed in the note to Standing Order 76.1(5) regarding the selection of motions in amendment at the report stage.

Two of the report stage motions received are identical to the proposed amendments negatived in committee by a casting vote of the chair.

Since the rejection of these motions was essentially a matter of procedure rather than a judgment on their foundation, I have decided to select them at report stage, which will allow the House to vote on the substance of these amendments.

The motions will be grouped for debate as follows:

Group No. 1, concerning conflicts of interest and lobbying, will include Motions Nos. 1 to 4, 6, 7 and 9.

Group No. 2, concerning access to information, Motions Nos. 8, 13, 14 and 17 to 22.

Group No. 3, concerning the director of public prosecutions, will include Motions Nos. 10 to 12, 16, 23 and 24.

Group No. 4, concerning procurements and contracting, Motions Nos. 28 to 30.

The voting patterns for the motions within each group are available from the clerk. The Chair will provide the details to the House at the time of voting.

I shall now propose Motions Nos. 1 to 4, 6, 7 and 9 in Group No. 1 to the House.

Motions in amendment

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

moved:

Motion No. 1

That Bill C-2, in Clause 2, be amended by replacing line 12 on page 6 with the following:

“(2) No minister of the Crown, minister of state or parliamentary secretary shall, in his or her capacity as a member of the Senate or the House of Commons, debate or vote on a question that would place him or her in a conflict of interest.”

Motion No. 2

That Bill C-2, in Clause 2, be amended

(a) by replacing, in the English version, line 10 on page 22 with the following:

“ministerial staff;”

(b) by replacing, in the English version, lines 16 and 17 on page 22 with the following:

“or decision-making power in the office of a minister of the Crown or a minister of state; and”

Motion No. 3

That Bill C-2, in Clause 2, be amended by replacing line 1 on page 33 with the following:

“(2) Subject to subsection 6(2) and sections 21 and 30, nothing in this Act abrogates or dero-”

Motion No. 4

That Bill C-2, in Clause 2, be amended by replacing lines 18 and 19 on page 33 with the following:

“67. (1) Within five years after the day on which this section comes into force, a comprehensive review”

Motion No. 6

That Bill C-2, in Clause 78, be amended by deleting lines 4 to 8 on page 80.

Motion No. 7

That Bill C-2 be amended by adding after line 42 on page 84 the following new clause:

“88.11 (1) Any member of a transition team referred to in section 88.1 may apply to the Commissioner of Lobbying for an exemption from that section.

(2) The Commissioner of Lobbying may, on any conditions that the Commissioner of Lobbying specifies, exempt the member from the application of section 88.1 having regard to any circumstance or factor that the Commissioner of Lobbying considers relevant, including the following:

(a) the circumstances under which the member left the functions referred to in subsection 88.1(5);

(b) the nature, and significance to the Government of Canada, of information that the member possessed by virtue of the functions referred to in subsection 88.1(5);

(c) the degree to which the member’s new employer might gain unfair commercial advantage by hiring the member;

(d) the authority and influence that the member possessed while having the functions referred to in subsection 88.1(5); and

(e) the disposition of other cases.

(3) The Commissioner of Lobbying shall without delay cause every exemption and the Commissioner of Lobbying’s reasons for it to be made available to the public.

(4) The Commissioner of Lobbying may verify the information contained in any application under subsection (1).”

Motion No. 9

That Bill C-2, in Clause 99, be amended by deleting line 9 on page 89 to line 5 on page 90.

[Pierre Poilievre, Conservative, Parliamentary Secretary to the President of the Treasury Board]

Mr. Speaker, I am thankful for the occasion to speak to these motions. I think most members of the House will agree that these amendments are largely technical in nature and fix the minor problems that the committee was not able to address.

I would invite any comments and questions from members across the way but I do not see these as being particularly controversial.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Mr. Speaker, members of the official opposition do not agree that these are merely technical amendments. We will be willing and anxious to debate them in the proper groupings.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I rise on a point of order. The parliamentary secretary has just delivered a speech on Group No. 1 but I do not believe there was a call for questions. I wonder if the Chair would entertain questions for the parliamentary secretary.

[The Deputy Speaker, Bill Blaikie]

I was not in the chair at exactly that moment but my understanding was that debate was called, the parliamentary secretary rose and gave a very short speech and then the member for Vancouver Quadra rose and gave an even shorter speech.

Apparently questions and comments were in order and were not called.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I believe my remarks were a preamble to my questions and comments, at which point I deferred to my friend on a point of order.

[The Deputy Speaker, Bill Blaikie]

That certainly was not obvious but if the member wants to proceed to questions or comments to the parliamentary secretary then feel free to do so.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Mr. Speaker, thank you so much. I appreciate your clarifying the situation so well.

With respect to Motion No. 1, we had considerable evidence and testimony before us in the special committee from the Law Clerk and Parliamentary Counsel on the infringement on the autonomy of the House of Commons and members of Parliament with respect to Bill C-2.

Numbers of amendments were made, including the one that is restored in Motion No. 1. They were made by committee in direct response to the advice that such an inclusion in the bill would offend the autonomy of the House and its members and disturb the appropriate independence between the members of Parliament, the House, with respect to both the executive of government and the judicial branch. I have great concern that this motion would reinstate the amendment that the committee took out on the recommendation or at least the strong advice of the chief law clerk.

Furthermore, with respect to Motion No. 6, this again reflects the replacement of a deletion by committee with respect to Mr. Walsh's advice of infringing the autonomy of the House. I would ask the parliamentary secretary if he would explain exactly why he is continuing with that infringement after we had dealt with it at committee.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Mr. Speaker, I thank the member for his work on the committee.

On the question of Motion No. 1, I will bring to the House's attention exactly what this amendment does. It deals with the provisions around parliamentary secretaries and ministers of the Crown voting on matters in which they have a direct commercial or financial interest. The member has asked why we believe this should continue to be in the law. There are a couple of reasons, but the most obvious is that if a member of cabinet or a parliamentary secretary has a financial interest in a particular sector or industry, they should not be able to use their position in the House of Commons to further that interest.

We did hear some interesting and persuasive testimony to the contrary from the House legal clerk. He believed that it infringed upon members of Parliament and their parliamentary privileges. We, however, take a different point of view.

As initially proposed by the government, subclause 6(2) would have expressly prohibited a minister or a parliamentary secretary from debating or voting on a question “that would place him or her in a conflict of interest”. This provision is an essential element of the conflict of interest regime that we are attempting to codify in the accountability act. It is based in part on a similar provision found in the Conflict of Interest Code for Members of the House of Commons, itself forming part of the Standing Orders of the House.

These provisions already exist in the Standing Orders of the House of Commons and therefore we believe they should be codified directly into statutory law. That is what the accountability act sought to do in the first place. It was to take what were rules of the House and make them statutory law, codified in law so that they could be enforced more.

Absent such a provision, it would be open for a minister or a parliamentary secretary to vote even where to do so would be a conflict of interest and even where the conflict of interest and Ethics Commissioner had ordered him or her to refrain from voting. In other words, an individual could come into the House against the explicit instructions of the Ethics Commissioner and vote on an issue in which he or she had a direct financial interest.

In addition, absent such a ban, a minister or parliamentary secretary who did vote on a question that would put him or her in a conflict would not be subject to complaint, as no breach of the act would be made. In other words, they could stand in the House and vote on something that related directly to their personal financial interest and no member of the House would be in a position to file a complaint with the Ethics Commissioner because there would be no statutory prohibition on doing such.

That is the reason why we have introduced this amendment, Motion No. 1. We stand by it. We believe it is the right thing to do. We encourage all members of the House to support it.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Mr. Speaker, in looking at the amendments, Motions Nos. 6 and 7, it is curious that in Motion No. 6, which the government seeks to delete, we are deleting the requirement of the commissioner to table reports in both Houses of Parliament on such matters. I am certainly very curious as to why that would be thought to be appropriate. That is Motion No. 6.

Motion No. 7 adds further sweeping powers to those of the commissioner to exempt people who might otherwise be precluded from registering as lobbyists. I can only recall the words of the Prime Minister when declaring publicly that a volunteer member of his transition team would be caught by the proposed accountability act and that it would not be appropriate for that person to register as a lobbyist for five years. A great deal was made of that, whether that person was a sacrificial lamb or whatever, and it was said that this showed the toughness of the act.

However, Motion No. 7 seems to provide an exception for that type of situation. While I am not necessarily debating against that provision, I find it curious that after making such a matter of it in the public as a demonstration of the strictness of the act, an exemption then would be allowed by order of the commissioner. I find that quite strange.

Also, while I am on my feet in the matter of this debate, I might say more broadly that the Liberal amendment put forward to ensure that the restrictions against lobbying for the period of five years not simply be against ministerial staff, public office holders and their senior staff, but should also be for senior members with official positions in the opposition and their senior political or policy staff, for a period of five years, for the obvious purpose of ensuring that when there is a change of government, the opposition House leader, party leader, deputy leader, whip and their senior staff, with their party in government, also would be precluded from registering as lobbyists, whether it is for three years or five years, and we are still debating those terms.

It would seem only logical, if the government, which was the opposition, were truly serious and genuine about getting money out of politics in the sense of political influence, of not going into the lobbying business and making money out of contacts in government. If the government were genuine about that, I would think that it would have accepted the opposition amendment to make sure this was balanced.

After all, we must make sure that the revolving door between positions of political influence and the lobbying industry, of which the Prime Minister and the President of the Treasury Board have often spoken, is not a one way street. We must have balance in it. If the stated government objective is to be achieved, that balance is absolutely necessary.

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

Mr. Speaker, I hope I can clarify two issues for my esteemed colleague from Vancouver Quadra.

With respect to Motion No. 6, it is a technical one. Basically the amendment we have introduced today would remove the duplication in the bill that came out of committee in favour of the amendments introduced by the Liberals. I would specifically cite Liberal amendments Nos. 6.1 and 6.2. There was also government amendment No. 29. We are basically just eliminating duplication as the bill came out of committee. Officials are here should the member wish further clarification to be certain on that.

With respect to the transition team members, parliamentary secretaries and ministers have no appeal process, although everyone else does, to the independent commissioner, someone of a judicial or quasi-judicial background. Whether it is senior officials, people at the deputy minister or assistant deputy minister rank, and staff working for ministers, all of those categories, which is the overwhelming percentage, some 95% to 98%, of those covered by the act, do have the capacity to appeal to the commissioner. What we are doing is extending that to the transition team, which was an oversight on our part.

I did notice that at committee the member did not support including the transition team, which is certainly his right. We just wanted to create the equity for assistant deputy ministers, deputy ministers and other staff that existed for everyone else except for ministers and parliamentary secretaries.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Mr. Speaker, while I thank the President of the Treasury Board for that explanation, I think the concern that I and my colleagues had in committee with respect to the transition team inclusion, the extra amendment that would include this, was simply on the basis of an apparent unfairness, in that the impact would have a retrospective negative outcome for a particular person who was a member of the transition team.

I appreciate that explanation. I think the inclusion is appropriate on that ground so that there could be special circumstances that are considered.

[John Baird, Conservative, Ottawa West—Nepean, ON]

Mr. Speaker, I may disagree on positions with the member for Vancouver Quadra, but I would never doubt his motivation.