Bill C-2 (39th Parliament, 1st Session) Committee on June 7th, 2006

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

Again, the purpose of this proposed section in the first place is to avoid a situation where someone who has, say, a very short-term temporary role, perhaps they work from out of a temporary agency and they serve in a minister's office for a brief period of time.... Having worked with a minister's office in my role as a public office holder, I've seen this happen already, where people have been in and out of the office on very short-term bases. We do not want someone who comes in and serves as a secretary for a very short term, two or three weeks, from a temp agency to be then covered by the provisions dealing with lobbying and prevent them from ever getting a job working for a lobby firm because they might have been a secretary in a minister's office for a few weeks.

So that's the reason this exists. We just think it would be far better from an administrative standpoint if you allow the minister, who will see up close what kind of work this hypothetical individual will be doing, to make the determination rather than have someone who's detached from the situation make the determination for him.

But the rules are very clear. It's not as though the minister can pick a friend in the office and say, you, you, and you are all excluded; we're not going to apply the law to you. The definitions in the law are very clear, so the room for abuse, which I think is what Mr. Sauvageau is trying to get at, is almost non-existent, and as such, we don't see the purpose of the amendment.

[The Chair, Conservative, David Tilson]

I have Mr. Sauvageau, Ms. Jennings, and Mr. Owen.

Mr. Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Mr. Chairman, let's start from the premise that the person who is appointed Commissioner is a competent person. If the Commissioner is a competent person, he'll definitely want to understand everything that Mr. Poilievre has told us, that is to say when a person has worked in the minister's office for four hours, the minister could say that person is excluded, period.

In a bill on transparency, why would we allow the minister to decide who in his or her cabinet has or hasn't worked long enough?

I've often heard the party in power tell us that it's a matter of perception, that the public's trust absolutely had to be restored with regard to wrongdoing within government, and so on. Now we would be giving the minister the opportunity and the power to make decisions within his department about people he can exempt and those he cannot exempt based on rules that can be quite complicated.

The Integrity Commissioner, who will be appointed upon consultation, could apply the rules, give the reasons, consult the minister and arrive at a response. We simply want to remove any appearance of conflict of interest and give the bill all the transparency it aims to achieve.

If the Conservatives don't agree on this, let them live with it.

[The Chair, Conservative, David Tilson]

I have a speaking order, Mr. Poilievre.

Mrs. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, Chair.

Before I debate the substance of this amendment, I would like to ask a question of the legal staff. I have been unable to find in this legislation any clause or section that states that the commissioner would have the authority to review a decision made by a minister of the Crown or a minister of state under proposed subsection 38(1), where that “minister of the Crown or minister of state may exempt from application of section 35 or 37 a former reporting public office holder” etc.

I would be very pleased if you could point out what section would give the commissioner the authority to review that. The only issue of review that I've been able to find is proposed subsection 38(3), which says:

Every decision to grant an exemption under subsection (1) is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.

Under Bill C-2, is there a section that affords the commissioner the authority to review a decision of exemption that a minister of the Crown or minister of state may have taken under proposed subsection 38(1)? Yes or no.

[Joe Wild]

No, there is not.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

Now I will go to the substance of the amendment. I find it surprising, and I'm sure that the government, in good faith, did not realize that in wishing to provide the authority that they provide the minister of the Crown or minister of state under proposed subsection 38(1), they had neglected to ensure that it would be reviewable by the commissioner. Given that the objectives of Bill C-2 are to ensure (1) transparency, (2) integrity, and (3) proper and effective oversight, I cannot but be in favour of the Bloc amendment, which would rest that authority under the commissioner rather than under a minister of the Crown or a minister of state.

I will be voting in favour of the Bloc amendment.

[The Chair, Conservative, David Tilson]

We're not there yet.

Mr. Owen and then Mr. Poilievre.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Maybe I can begin by asking Mr. Wild a question.

On the reference to not being reviewed by a court, that's outside of the ability under the Federal Courts Act to have a decision of the minister judicially reviewed, I would expect, and that judicial review could go to his jurisdiction under proposed section 38 in terms of the criteria. There is a possibility of judicial review if the minister acts outside of his jurisdiction in terms of the proposed section 38 criteria. Is that right?

[Joe Wild]

That is correct.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Then I would suggest that without potentially overloading the commissioner with a large number of reviews, I'm satisfied there's enough control there to have judicial review. We give ministers all sorts of discretion under statutes to make extremely important decisions, and I'm just afraid of overloading that office. I'm inclined to feel there's enough protection in the way it's drafted.

[Joe Wild]

I think it's important to note, Mr. Chairman, that certainly a minister would be accountable before the House, as the minister is, for the exercise of any powers or duties that are granted under a statute, and that would be no different with this particular section.

[The Chair, Conservative, David Tilson]

Mr. Poilievre is next.

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

Given what Mr. Owen just said, do you think that leaving this authority with the minister, given that the authority is governed by strict laws, is consistent with powers that ministers are given under statute in other areas?

[Joe Wild]

Ministers are certainly given a whole host of types of powers, duties, and functions under statute. Some have far more implications for individual Canadians in their daily lives. Whether this is consistent or not, the only point I would make is, again, that it's a power that has been given to a minister. There are parliamentary processes to which ministers account for the exercise of their powers and duties and functions under legislation, and there is, with respect to the jurisdiction of the decision-making of the minister, a judicial review possibility.

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

Would there be any legal or administrative complications, in your view, in accepting Mr. Sauvageau's amendment?

[Joe Wild]

Would there be a legal complication? I don't see a legal complication with Monsieur Sauvageau's amendment. Administrative is a different question, because--

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

Administratively it couldn't be that hard, because all you'd have to do is fill out a form and apply to have a given employee recognized as exempt from this particular rule, right?

[Joe Wild]

From an administrative perspective, what you're doing is putting a burden on a commissioner to go in and ascertain whether the criteria have been met, in order to then grant the exemption. That does involve a certain amount of administrative burden.

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

From a practical point of view, there's not a whole lot of difference, but if it would give some strengthened appearance of transparency, I can't see a lot of problems with Mr. Sauvageau's amendment. That's my own point of view.

[The Chair, Conservative, David Tilson]

We seem to be in agreement, but we're still debating.

We have Ms. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I'm fine.

[The Chair, Conservative, David Tilson]

We have Mr. Tonks.

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

I would like clarification with respect to proposed subsection 39(2), which deals with the commissioner's discretion. It is very clear in that proposed subsection that the public interest is to be the defining purpose with respect to the waiver he or she has. Does that not satisfy the concern raised by Mr. Sauvageau?

[An hon. member]

No, not at all.