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

[The Chair, Conservative, David Tilson]

Thank you, sir.

Monsieur Sauvageau, go ahead, please.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Good morning and welcome, gentlemen.

My first question is for Mr. Conacher. In your Report on the 140 Flaws in the Federal Accountability Act, you talk about 21 promises broken by the Conservatives. I will not ask you to list them, as that will take my entire eight minutes. However, I would like you to clarify two or three of the main commitments that were not honoured and I would like you to send us the list of the 21 broken promises.

Perhaps there are 140 proposed amendments in your document; I have not counted them. Are they all there? Do you want to send more to us?

Finally, this sponsorship scandal is what triggered the Bill C-2. If this bill were to be enforced tomorrow morning, are you convinced that this kind of scandal would no longer happen?

[Duff Conacher]

Thank you, and please excuse the quality of my French. I have a lot of practising to do. Given the details that I must provide you, I will respond in English.

What you have received, first of all, are just the first two parts of our full report. It's simply because this was scheduled on fairly short notice. I submitted the full report just last Friday to the committee, so they will be translating all 140 amendments that follow from the sections you have, which summarize the areas that we see as still having key flaws.

In terms of the broken promises, it's hard to choose among them, but I think what is most offensive is to attempt to delete five rules in the current cabinet, ministerial staff, and senior public servants code, including the rule requiring that people act with honesty, and to bar the public from making complaints to the Ethics Commissioner about their own employees--to actually increase the bar. There is no legal bar now, and there is a legal bar being put in with this bill. I find that completely offensive.

Also, it is a violation of the Conservatives' promise, which was to allow the public to make complaints, not just politicians. That is not in the bill. Some people may think it is, but a member of the public has to file a complaint with a politician, and the politician then has to prove the complaint is valid, somehow—I don't know how that's going to happen without any investigative powers—before they can file with the Ethics Commissioner. It's totally offensive.

But the other areas, the secret lobbying, secret donations, secret rulings from ethics watchdogs--this overall secrecy--and the violation of the Conservatives' promise to include many key changes to the access to information system...all of those things are missing. As a result, Democracy Watch's position is that people who break the honesty, ethics, waste prevention, openness, and hiring and appointments rules in the future will not be caught, they will not be found guilty, and they will not be penalized.

So another ad scam is still very much possible.

[The Chair, Conservative, David Tilson]

Mr. McCandless, the question was directed to Mr. Conacher, but do you have any comments?

[Henry McCandless]

Not especially on that one, no. I've left alone the area of the conduct rules.

[The Chair, Conservative, David Tilson]

Okay.

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Mr. Conacher, there is talk that citizens will be able to send their complaints directly to the Integrity Commissioner, as is the case with the Office of the Commissioner of Official Languages. For our part — and I think that the same is true for the Liberals — we want to eliminate the obstacle that would prevent citizens from proceeding that way.

Will we run the risk of seeing as specific lobby group block the process by filing 58 000 complaints in order to prove that the act is ineffective. As was the case with the Canadian Firearms Registry? People had decided to fill out the forms in a haphazard way, which revealed the ineffectiveness of the act, but in a way that was somewhat questionable.

Would allowing citizens to file their complaints directly with the commissioner enable a group to nail a political party? Could a group like that, under this amendment, take advantage of the opportunity and do something like that?

[Duff Conacher]

I think you have a safeguard that you don't have in the gun registry, so it doesn't quite work as an analogy. And that is that for every complaint you file about a violation of the ethics rules, if it's not true it's slanderous and libellous, and you're opening yourself up to a libel lawsuit.

I have no problem with putting in a bar where the commissioner can reject complaints that they consider frivolous or vexatious. There is going to be a transition period where there likely will be a backlog, as there is with any new law.

[Benoît Sauvageau, Bloc, Repentigny, QC]

May I interrupt you? I understand that part of it. However, I wonder what the lobby group would consider frivolous or vexatious. Couldn't this lobby group simply show how ineffective the commissioner is by filing a whole lot of complaints? They might be considered frivolous and vexatious, but the group would have considered them a priority. However, the Integrity Commissioner would not be able to do his work adequately, because he is inundated with complaints, as frivolous and vexatious as they may be.

[Duff Conacher]

Worst-case scenarios are possible in any situation, and I think you're extending it to a worst-case scenario that's highly unlikely. There's been no bar on filing ethics complaints for the past 20 years, since the cabinet code was created and the almost two years since the MPs' code was created. You've only seen a dozen complaints in the past dozen years, so I don't see the danger, especially when it is libellous to make a false complaint.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Conacher.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chairman.

Thank you to both of the witnesses for being here.

Mr. McCandless, I read with interest your article in the May 22 edition of The Hill Times. I found it very useful. I see your remarks today touch on some of that as well, but we've taken some guidance from that.

Mr. Conacher, as always I find your report very helpful, comprehensive, and thorough. We share your view that this is an historic opportunity. You've dedicated most of your life to these issues, and this is possibly the first realistic window of opportunity you're going to have to see some of those things realized, if not all.

I share that view and take some comfort that much of the FAA--incomplete as it is, perhaps, in your view--reads like the NDP's federal election campaign document almost chapter to chapter. So we're excited by this opportunity. Notwithstanding that, I take how valid many of your observations are, and I can assure you that we are working at crafting amendments to address as many of those as is humanly possible. I'm not sure it will be all.

In your introduction, you said one of the things that bothered you most was that the obligation to act with honesty won't find its way into the legislative side of the package. I'd only ask you to consider--if you agree with it--that the absence of an obligation to act with honesty doesn't give someone licence to act dishonestly. There are other regulatory measures and legislation that certainly curb senior politicians or their staff from acting in a blatantly dishonest way that would be illegal, in many senses.

Would reference in the preamble of Bill C-2 to an obligation to act at the highest standard of ethics and honesty satisfy your observations or concerns?

[Duff Conacher]

Not at all, because a preamble is not enforceable. I don't see—

[Pat Martin, NDP, Winnipeg Centre, MB]

How is an obligation to act with honesty enforceable in legislation?

[Duff Conacher]

It's enforceable in the same way that corporations are required to be truthful in their advertising. If they're not, six people--they don't have to go through a politician--can file a complaint directly with the Competition Bureau. The Competition Bureau is required to investigate and rule. Sears Canada was found guilty of false advertising through this exact method a year ago.

Corporations are also required to be honest with their shareholders. They have to state everything accurately. If they don't, shareholders have grounds to sue, and so do securities commissions, which are independent enforcement agencies that enforce that law. Corporate leaders cannot lie to consumers or shareholders, so political leaders, public servants, should not be allowed to lie to the public. I don't see the bars that you see there now legally against being dishonest.

If you're talking about the breach of trust in the Criminal Code, how many times have you seen that enforced? We need a civil process. We already have it in the ethics code and there's no reason to remove it. I think it's being removed because David Emerson was accused of not acting with honesty. So the government realized this was a potent rule and it had better get rid of it.

[Pat Martin, NDP, Winnipeg Centre, MB]

Well, I think there are some valid points there.

[Duff Conacher]

Again, it's not talking about legislating morality. Legislating morality means that even when you set out laws, it will not make people moral. Some people will break the laws. That's what the saying that you can't legislate morality means. It doesn't mean you don't have laws; we do have laws. Corporate leaders cannot lie and politicians and public officials should not be able to lie either.

It's fundamental. And it's the number one issue of government accountability for Canadians, as every single poll has shown in the last decade, including every single poll done in the last election. This is why I find it so shocking that this government would attempt to remove this rule, when it's the number one hot button issue on accountability for Canadians, as every single poll showed in the last election.

[The Chair, Conservative, David Tilson]

Mr. McCandless, I don't want to leave you out. Do you have anything to comment?

[Henry McCandless]

Yes. It just occurred to me what would be really different in Bill C-2 if you stuck in the definition of lying by the American scholar Sissela Bok, who wrote a book in 1978 called Lying , because the U.S. administration was lying to the American people on Vietnam. Her definition of lying is pretty damned rigorous; it is “any intentionally deceptive message that is stated”.

Now, if you go back to the interview with Erik Neilsen by Peter Gzowski some years ago, where Neilsen said there's a hell of a lot of lying by politicians--in fact, it was worse than what I've just said. But if that was the criterion for what you call lying, it would be very powerful indeed.

I don't think there's a hope in heck of Bill C-2 including that, but you might consider what is a definition, a criterion for lying, versus not. It's something the committee could consider and see if they can put in something of that nature.

[The Chair, Conservative, David Tilson]

You have less than a minute, Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

I think that's a really interesting idea. Actually, I jotted that down. You know, Mr. Conacher, I think your point is well taken.

I would like to believe that some of the obligation to honesty is sort of deemed to be in effect with everything we do. Your point is that there is no obligation to tell the truth, other than the ultimate test, I suppose. At election time, if you get caught you get unelected. But that's a pretty blunt and clumsy instrument to enforce a better standard of ethics.

Our point of view is that the single strongest thing we could do in this FAA is to improve the access to information law so that even if you can't legislate some ethical practices by better scrutiny, better observation of what's going on, you force the standards up by shining the light of day on them.

Would you agree that perhaps the single most important amendment we can make now is expanding--

[The Chair, Conservative, David Tilson]

I'm going to stop you right here. We have a bit of a problem, Mr. Martin. The 40 minutes has expired. We haven't heard from the Conservatives yet. Your time has expired. Obviously, for us to continue we need unanimous consent, and that will cut into the next group.

Does anyone have any bright ideas?

[A voice]

[Inaudible--Editor]

[The Chair, Conservative, David Tilson]

The Conservatives have....

Mr. Martin, I have to cut you off, I'm sorry. You were well over time.

Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I thank my colleagues for granting the unanimous consent, and thank you both for appearing here today.

Mr. Conacher, you have obviously made some very serious allegations about the proposed Federal Accountability Act. In your release of last week, you stated that the Prime Minister, the President of the Treasury Board, and the Prime Minister's spokespersons are being dishonest and claimed a number of broken promises.

You've reiterated those claims today, and I challenge those. I would argue that...you use the term “offensive”. Well, quite frankly, with respect, sir, I find it offensive that you would make those comments and those claims against this legislation.

I want to go over a few of your accusations today. Obviously, I don't have a lot of time, so I can't go through every single one of them, but I do want to point out a few.

The first accusation is that the promise to enshrine the conflict of interest code into law is a broken promise. I would ask you, sir, do you have a copy of the bill with you?