Bill C-2 (39th Parliament, 1st Session) Committee on May 30th, 2006

[The Chair, Conservative, David Tilson]

Good morning. I call the meeting to order.

This is the legislative committee on Bill C-2, meeting number 13, pursuant to the order of reference of Thursday, April 27, 2006, on Bill C-2, an act providing for conflict of interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight, and accountability.

We have with us Henry McCandless, who is the general convenor of the Citizens' Circle for Accountability.

Good morning, Mr. McCandless. You have a few moments to make some preliminary comments, and then members of the committee will ask you some questions. Thank you for coming.

[Henry McCandless, General Convenor, Citizens' Circle for Accountability, As an Individual]

This morning I wish simply to put before you the concept and logic of public accountability and how it can increase fairness in society and citizen trust in authorities. Without that trust, society doesn't work properly.

My aim is to try to show you how you can act to prevent harm and injustice, such as the lethally contaminated blood of the 1980s or the management control failures in HRDC in sponsorship. Audit and commissions of inquiry are after the fact, when it's too late.

I have been a rigorous student of public accountability for 15 years. I was the author of this book on the subject in 2002. I was a principal in the Office of the Auditor General for 18 years. My MBA is in organizational behaviour, which is about cause and effect in management processes. In the audit office I served as the Auditor General's parliamentary liaison officer to the public accounts committee, so I know pretty well people's roles and duties.

If we turn to the concept of public accountability and why it's a society imperative, let's assume for a moment that we don't know the difference between conduct, responsibility, and accountability. A simple logic sequence may help us. If an executive government intends something that would affect the public in important ways, in fairness it should tell the public what it intends and why it intends it. This means accounting to the public. An obvious example is a government policy initiative.

Next the executive government should publicly explain its intended performance standards to clarify what it intends to achieve. Hospital emergency waiting times are an example.

Then we want to know whether the government thinks it has met agreed performance standards, and we want to have the government tell us the outcomes from what it did and how it applied the learning available to it. These affect trust in competence.

Then we apply the precautionary principle: we ask for an audit of the fairness and completeness of what the government reports. The combination of these accountings plus audit helps us determine our level of trust in government because we know better what the government intends, why it intends it, and what it's actually doing. MPs can then better control what's going on, and citizens can better see the role of the MP in holding to account.

Accountability does not mean responsibility, the obligation to act, and it doesn't mean conduct, the actual doing of something. The mid-1970s independent committee on the mandate of the Auditor General of Canada authoritatively defined accountability as the obligation to report on responsibilities.

Public accountability isn't new. It has been a mainstay in the business world for centuries. The public accounts of Canada are a governmental offshoot of financial reporting. One reason you're not already steeped in public accountability is that authorities don't like to account unless they're made to--corporations were--so you had nothing to work with. Executive governments have thus far controlled whether standards for accountability reporting get legislated; thus far, they haven't been.

But first we need a useful and comprehensive definition of public accountability to work with, and here's what I have proposed: public accountability is the obligation of authorities to explain publicly, fully, and fairly, before and after the fact, how they are carrying out responsibilities that affect the public in important ways. If you feel you have to go into four-wheel drive to absorb that, don't worry about it. I'm writing it so that it's unassailable to the barracuda critics, mostly academics.

Then you can ask what the benefits of public accountability are. First, MPs and citizens get information they need but wouldn't otherwise have. Access to information requests are no substitute, and weren't meant to be.

Perhaps even more important, the obligation to account publicly, as long as it is audited for fairness and completeness, exerts a self-regulating influence on officials, and this self-regulating influence works in the public interest.

The requirement to account is unassailable because it's non-partisan. It does not tell anyone how to do his or her job; it's simply an explanation requirement. It does not ask for any more information than officials need in any case to do their jobs properly--and what they know, they can report.

My last comment is on legislating accountability. If we're serious about something, we legislate it, but a bill entitled “accountability” that isn't about accountability allows people to continue confusing responsibility conduct with accountability. That means we won't get full and fair public accounting for responsibilities.

Moreover, adding more and more monitoring, policing, and audit instead of accountability obligations will likely turn off good people from entering the civil service, people who would otherwise willingly account for their performance as a self-control, if they knew their accounting would be used competently and fairly.

There is one thing your committee could recommend that doesn't mean adding accountabilities across the board in Bill C-2. In whistle-blower protection, which takes up 32 pages of the bill, you could recommend a short provision that ministers and deputies report annually to the House their own protection performance standards and whether their claimed protection is actually working.

[The Chair, Conservative, David Tilson]

Can you wind up soon, Mr. McCandless?

[Henry McCandless]

Yes.

You could also recommend that a House committee be struck to examine principles and standards in government accountability, and we could call that a Government of Canada Public Accountability Act. It would cover off accountabilities within the executive government and from the executive government to the House.

That's the end of my remarks. I have left with the clerk a copy of my book and a copy of articles in the Canadian Parliamentary Review. I apologize for not having it in French, but I was only called Thursday at noon in Victoria and had no chance to have anything translated, let alone in Victoria. I imagine the clerk will have that. But in the Canadian Parliamentary Review, August 2004, that journal is in both languages, so that would be available to you.

Thanks for your time.

[The Chair, Conservative, David Tilson]

Those will be exhibits, Mr. McCandless?

[Henry McCandless]

I think so, yes. I've given them to Wayne.

[The Chair, Conservative, David Tilson]

Thank you very much.

We have with us Duff Conacher, who is the chairperson of the Government Ethics Coalition and the Money in Politics Coalition. Good morning to you, Mr. Conacher.

[Duff Conacher, Chairperson of the Government Ethics Coalition and the Money in Politics Coalition, Democracy Watch]

Good morning.

[The Chair, Conservative, David Tilson]

Thank you for coming. You have a few moments to make some introductory comments before questions from the committee.

[Duff Conacher]

Thank you very much for the invitation from the committee to appear today on this important bill, Bill C-2, which is very much a breakthrough bill in terms of addressing many much neglected areas of government accountability that have been neglected for more than 130 years, actually since Confederation.

As mentioned, I am chairperson of two coalitions, the Government Ethics Coalition, which is made up of just over 30 groups, and the Money in Politics Coalition, made up of 50 groups—both coalitions with groups from across the country. Democracy Watch's proposals today are also based in part on the platform of the 10-member group Open Government Canada, a coalition that put out a position paper on access to information reform, now five years ago. The details about all of these groups are on the Democracy Watch website. The total membership of the groups represented in the coalitions is more than 3.5 million Canadians.

All of the coalitions' platforms are based on historical experience that has proven that in order to ensure people who are working in large, powerful organizations such as government institutions follow the rules and perform, the rules must have no loopholes; secondly, that the institutions must operate as transparently as possible; thirdly, as Mr. McCandless has set out, that there must be standards in terms of goals and objectives that are measurable, so that performance can be measured; that enforcement agencies must be fully independent, well-resourced, and fully empowered, including having the power to penalize rule violators in significant ways, and must be conducting regular inspections and publicly reporting, of course; and finally, that whistle-blowers must be effectively protected.

This is not to claim at all that everyone involved in the federal government intends to violate rules; however, as has been shown in any organization of human beings throughout history, some people will try to break the rules. So in line with the commonsense sayings—first of all, that people do what you inspect, not what you expect, and second, that when all is said and done, more is said than done—you of course need to have an enforcement system that must include all of the above key elements. It's sad to say it, but it's unfortunately true.

When examining Bill C-2 and taking these elements of effective enforcement systems into account, Democracy Watch's coalitions have looked at these systems for now the past decade, and in examining the bill we see many loopholes, in 15 key areas.

You hopefully will have a list of this summary list of 15 bullet points on the loopholes and flaws in the bill, but if not, it should be arriving soon, along with a very detailed 17-page list of 140 proposed amendments to close the loopholes in these 15 key areas.

As detailed in the report, if these flaws are not corrected, then Democracy Watch's position is that people who break the federal government's honesty, ethics, openness, hiring and appointments, and waste prevention rules will continue to be let off the hook.

If the changes to the Federal Accountability Act are not made—this is the first of the 15 areas—lying to the public will still be legal. The bill will remove—actually proposes to delete—the only ethics rule that requires cabinet ministers, their staff, and senior public servants to act with honesty. This would be an enormous step backwards.

As well, cabinet ministers, their staff, and senior public servants will be allowed by flawed ethics rules to be involved in policy-making proceedings that help their own financial interests and will be allowed to use government property for their own purposes, because that government property rule is also proposed to be deleted from the ethics rules.

Number three, secret unethical lobbying will still be legal, and many ministerial staff will be allowed to become lobbyists too soon after they leave their position.

Number four, the proposed new ban on secret donations to politicians will not be effectively enforced. It's because Canada is not complying with an international agreement that it signed, which is aimed at combatting terrorism and money laundering.

Fifth, the public will not be allowed to file ethics complaints against politicians, even though politicians are of course the public's employees, and that, amongst a few of the other things that I've already mentioned, was promised by the Conservatives.

In total as you go through the bill, there are 21 broken promises when you compare it to the Conservatives' election platform, which is a very key piece of evidence as to why we need an effective law and enforcement system for honesty in politics.

Going through the list again of the summary areas where there will still be very key problems, loopholes, gaps, and flaws, the Prime Minister and cabinet will still be able to appoint party loyalists and cronies to more than 2,000 key law enforcement positions without any effective review or parliamentary approval process.

Number seven, government institutions will be allowed to keep secret information, which the public has a clear right to know, because of loopholes that will be left in the Access to Information Act and the enforcement system.

Secret funds like the ad scam fund will not be effectively banned because the Gomery commission's proposal in that area has not been taken up in the bill, and politicians and officials will not have to provide detailed receipts. Although expenses are now disclosed, the details are not disclosed, and as a result, it's still very difficult to ensure that expenses are justifiable.

The key area that Democracy Watch has been pushing for, for a long time is key to accountability, and it fits in with what Mr. McCandless was talking about. Federal government institutions will still not be required to set out proposed plans for action and decisions and to consult with Canadians in a meaningful way before making significant decisions or undertaking significant actions. This is a very key change that needs to be done in terms of accountability. In Sweden, they have a system where the government regularly consults in a meaningful way.

[The Chair, Conservative, David Tilson]

Could you wind up soon, Mr. Conacher, please?

[Duff Conacher]

Yes, I will. Thank you very much.

Citizens will still face very high barriers to banding together into watchdog groups that have the resources to match the resources of industry sector lobby groups. Democracy Watch and its coalitions propose a very simple system that has worked effectively in the U.S. to help citizens band together into these watchdog groups.

Unfortunately, secret rulings will still be possible unless Bill C-2 is strengthened. Secret rulings by the ethics watchdog for the Prime Minister and other senior officials will still be possible, and even that watchdog, the Ethics Commissioner has noted, has a very serious problem with the current mandate.

As well, the identities of politicians, political staff, cabinet appointees, and public servants who are guilty of wrongdoing will often be kept secret.

The Information Commissioner and other watchdogs will lack independence and the key powers that are needed to ensure the rules are followed.

Another key area in an enforcement system, as mentioned, is effective penalties. The penalties will still be too low in the areas of unethical, secretive, and wasteful activities. For example, violating the cabinet ethics code will result in a maximum penalty of $500, which is a joke.

Finally, whistle-blowers who are not public servants will not be effectively protected from retaliation, and no whistle-blowers will receive compensation adequate to seeking other jobs, even if the whistle-blowing process leaves them completely alienated from all their co-workers.

I hope the committee will take this historic opportunity to take the time to work through this bill and to fully consider amendments, which means possibly running into the fall. There's no rush. It's important to get it right. It's an historic opportunity to close all the huge loopholes in the government's accountability system.

I hope the committee will take seriously the 140 amendments that Democracy Watch is proposing today.

Thank you very much. I welcome your questions.

[The Chair, Conservative, David Tilson]

Yes, thank you, Mr. Conacher, for coming on behalf of Democracy Watch. I'm sorry I left that out at the beginning.

Mr. McCandless, thank you as well for coming.

Mr. Conacher, we're curious as to whether you're related to the Conacher hockey players.

[Duff Conacher]

Yes. Grandfather, uncle, great-uncle, it depends which one.

[The Chair, Conservative, David Tilson]

Wow! We welcome you to the committee.

Mr. Tonks has some questions.

[Alan Tonks, Liberal, York South—Weston, ON]

Well, I'm not up to the stickhandling of that family.

Welcome, Mr. Conacher and Mr. McCandless. Both of you have stressed that whistle-blowers must be protected.

Mr. McCandless, you've talked about a culture of responsibility. You've also focused, it appears at least to me, on that culture of responsibility being entrenched in two ways, one according to legislation through the deputy minister being the financially accountable officer, and you go one step further in completing the accountability loop by having that officer take what you've described as responsibility for reporting on his or her whistle-blowing record in terms of any incidents of inappropriate financial conduct or otherwise coming before that officer in carrying on duties.

I wonder if you could expand on that, because you go one step further and you say that officer should report to Parliament through a special committee. You know this committee is wrestling with how you increase the oversight of the committee system, or some part of the parliamentary structure, and how you complete the accountability loop in reporting directly to Parliament.

Could you expand on that just a little bit more, please, for the committee?

[Henry McCandless]

There is a lot of debate on to what extent deputy ministers report directly to parliamentary committees. The academics--or some of them, anyway--say deputy ministers should account to Parliament only for those responsibilities that are statutorily or authoritatively told to them.

My view is what Commissioner Gomery missed and the academics aren't that clued in about: the concept of management control, which simply means causing to happen that which should and causing not to happen that which shouldn't.

I believe the minister is ultimately responsible for the quality of management control. The ministers collectively do appoint the deputy ministers. I know the Prime Minister does, but it's still the ministry's responsibility to put in place deputies who know what management control is and set in place the control processes that make sure that what's supposed to happen does and what isn't supposed to happen doesn't.

I'm proposing something that's probably new, that the deputies as well as the ministers report to the House on what their whistle-blower protection practices actually are and whether they think their protection practices are doing the job. I'm claiming that without that public accountability you don't get that self-regulating influence on their conduct.

In my view--and I've put this in writing in several places--if we don't have that direct accountability reporting by the ministers and the deputies on whistle-blowing, forget whistle-blower protection; it won't happen.

[Alan Tonks, Liberal, York South—Weston, ON]

Thank you, Mr. McCandless.

[Duff Conacher]

I believe the chief executives are required under the bill to be reporting regularly to the proposed public sector integrity commissioner on how their whistle-blower protection systems are working. That is not the same as coming to a committee, but of course a committee can always question anyone who comes before them on anything within their mandate.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

Thank you, gentlemen, for being here.

Mr. McCandless, it seems to me that what you're describing, although you're putting it in a unique way, is simply good public sector management, in which there is a normal expectation that the chief senior person will ensure sound public policies on channels for whistle-blowers to report apparent errors, public access to information within the department, and fair treatment of individuals of the public who are served by the department. The public accountability officer really is just that: a combination internal ombudsperson, privacy commissioner, and whistle-blower protection commissioner.

While we can deal with symptoms of poor internal management by adding more and more independent officers of Parliament, I'm concerned that as this group grows, we may be creating a parallel universe between Parliament and the executive in which the officers are not really directly accountable to Parliament and certainly are not to the electorate. By allowing proliferation of these offices, we almost remove responsibility from senior managers to look after these matters properly internally. If we're going to have these officers, their role should be remedial over time, so that accountability within the departments that you describe is actually there as a natural part of management, and only in exceptional cases would anybody have to make use of the residual independent office.

That would seem to me to be the healthy way that a public administration should grow. We understand that mistakes will happen and that we may have to have a residual, independent review or action, but it would be justified only if its role were remedial over time to improve accountability. I wonder if either one of you would want to comment on that.

[The Chair, Conservative, David Tilson]

Well, you've left about 30 seconds, Mr. Owen.

[Henry McCandless]

I maintain that if you are publicly accountable, which is to say that you have to state publicly what you intend to do and why you intend it and what your performance is and all that stuff, then the fact that you have to report publicly and can be audited by someone for fairness and completeness is a motivation to do the right thing. I agree with all these intermediate inspectors general and whatever.

You probably haven't really thought that since 1978 the Auditor General of Canada has been doing government's reporting job for it. In 1978, when the Auditor General Act was passed for the value-for-money mandate, the Treasury Board did not accompany that with amendments to the Financial Administration Act requiring department heads and officials themselves to account for the performance of their own duty. They passed the buck to the Auditor General. You mustn't pass the buck to the Auditor General; that's not what you're there for. That would have allowed the Auditor General to attest to the fairness and completeness of what management itself was reporting. The Auditor General served the accountability relationship, but she stands outside it.

[The Chair, Conservative, David Tilson]

Go ahead, very briefly, Mr. Conacher.

[Duff Conacher]

I would agree with your concern about independent watchdogs if there had been a better historical record of Parliament holding people to account. I use the example of ethics enforcement. Prime ministers have not held their ministers to account on ethics. George Radwanski was not found accountable in any way by Parliament, despite what he did and despite that he's now facing criminal charges.

So parliamentarians have not done the job--I'm sorry--for 139 years. We need independent watchdogs who are fully empowered and who, hopefully, will have the attitude to do the job, which we're still missing, certainly, in the ethics enforcement area.