Bill C-2 (39th Parliament, 1st Session) Committee on June 8th, 2006

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

I so move.

(Amendment agreed to [See Minutes of Proceedings])

[The Chair, Conservative, David Tilson]

We now move to page 31, which is the government's motion.

Mr. Poilievre.

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

I so move.

(Amendment agreed to [See Minutes of Proceedings])

[The Chair, Conservative, David Tilson]

We now move to page 33, which is BQ-6, and page 32, of course, is the French version.

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I'm going to ask our experts to confirm the matter for us, but from what I understand, a person who violates this part of the act would be liable to a penalty of up to $500. For example, an individual who accepted a job that was supposed to pay him $200,000 a year and who violated the code would be liable to a maximum penalty of $500.

In our opinion, the maximum amounts of the penalties are ineffective and inapplicable; in short, they're not serious. It's as though we were imposing maximum finds of $5 under the Highway Safety Code. If you want to enforce the code, we think you have to have significant penalties. The maximum, which would not apply every time a person violated the code, should be $50,000, rather than $500.

[The Chair, Conservative, David Tilson]

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I'm not sure, Mr. Chair--maybe we can get some legal advice on this--if any monetary penalties for administrative offences would get to this high level. I would suggest perhaps, if $500 seems insufficient or not really a penalty, that we might go as high as $2,000, or even $5,000, but the $50,000 range, I think, for an administrative penalty really is inconsistent with that type of practice.

[The Chair, Conservative, David Tilson]

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I was going to ask the panel--

[The Chair, Conservative, David Tilson]

Excuse me. Is that an amendment to the amendment that you're suggesting?

[Stephen Owen, Liberal, Vancouver Quadra, BC]

That would amend the $50,000 to $5,000.

[The Chair, Conservative, David Tilson]

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I was going to ask about the range of maximum penalties. Obviously a judge or somebody would have discretion on that, a commissioner, whoever.

What are the ranges for administrative penalties in all of the acts--and I don't mean littering, I mean white collar administrative breaches. Do you have anything offhand?

[The Chair, Conservative, David Tilson]

Mr. Wild.

[Joe Wild, Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice]

There are certainly a variety; as to how low they go and how high they go, I don't know. The Competition Act certainly has an administrative monetary penalty regime. The only point I would make is that usually the amount prescribed in an administrative monetary penalty scheme takes into account the nature of the potential regulatory offences that one is talking about, as well as all the facts and context.

For example, in the Competition Act you may be dealing with millions and millions of dollars, so the administrative monetary penalty scheme may reflect the amounts you are actually dealing with. So it may be a larger amount than you might see in another administrative monetary penalty scheme where you're dealing with things like a failure to file a report and you're talking about people who make $100,000 a year.

It's going to vary. There's a point where, once you get to...and what that point is is difficult to say, because it's contextual and the courts will determine on a fact-by-fact basis. There's a point where, if you're trying to create an administrative monetary penalty scheme, if you set the threshold of your monetary penalty too high, it then transforms. In a sense, it can be viewed as more akin to a fine and bring with it a whole host of procedural fairness, natural justice safeguards. If they are not in the act, the court will strike down your regime as being not sufficient under the charter. So there are issues.

The one point I would make is that the amendment as has been proposed does not simply raise the $500 threshold under proposed section 52 of the Conflict of Interest Act; it is setting out that there would be a $50,000 administrative monetary penalty for violations that are not set out in proposed section 52. So it's actually hitting on violations that are not the ones we have prescribed in clause 52, which are the ones around filing of reports and so on; it would actually be violations of the substantive parts of the code.

[The Chair, Conservative, David Tilson]

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Yes. Thank you, Mr. Wild.

That was my observation too, a concern that it isn't really clear, or it wasn't clear to me what would be caught up by this in proposed section 52, because proposed section 52 as it stands refers to subsection 22(1), proposed sections 23, 24, 25, 26; it doesn't talk about proposed subsection 52(1). Or is it referring to...?

Would it be your understanding that if we passed BQ-6, proposed section 52 would then have proposed subsections 52(1) and (2), and the proposed subsection that Mr. Sauvageau is putting forward is referring to proposed subsection 52(1)?

[Joe Wild]

Certainly when I read the motion that was my assumption of what was happening. What if proposed section 52 currently in the act becomes proposed subsection 52(1), and then this is proposed subsection 52(2). So what it is saying is that for the other provisions in the proposed act, the actual conflict of interest obligations, it is with those things that there would be an administrative monetary penalty of $50,000; it would not be for the failure to file the reports on time and so on, which is what the current section 52 was actually addressing, the $500 monetary penalty.

[Pat Martin, NDP, Winnipeg Centre, MB]

Administrative in nature, breaches of administrative rules.

[Joe Wild]

Correct.

[Pat Martin, NDP, Winnipeg Centre, MB]

I understand. Thank you.

[The Chair, Conservative, David Tilson]

Mr. Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

It's indeed an addition. We're keeping the $500 as it stands. I have two examples to give you. If I'm mistaken, I'll be pleased to make an adjustment.

Under section 21, if ministers do not recuse themselves in any matter that concerns them, they won't even be subject to the $500 fine, or any other fine, by the way.

According to clauses 33 to 37, every post-employment offence, particularly in the case of a former minister who shares with his associates information obtained during his employment and that is not available to the public, would not be liable to any fine, not even $500. In our view, the maximum fine should not be systematically imposed. In the case of information not of crucial financial importance, the fine could be set at $5,000. However, if it concerned a $4 billion submarine, the fine could then total $50,000.

Decisions makers could determine the amount of the penalty, to a maximum of $50,000. However, we're told that a person violating clause 21 and clauses 33 to 37, as currently worded, would not even be subject to the $500 penalty, as minor as it is. Am I mistaken?

[Patrick Hill]

It's quite correct that the current section 52 does not provide for a monetary penalty at all in respect of the substantive obligations that are imposed today, the obligations that obtain during one's time as a public office holder or afterwards, when one is governed by the post-employment obligations, a cooling-off period and the like. That is not in the nature of an omission.

The current provision in proposed section 52 is designed to assist the Ethics Commissioner in ensuring compliance with the various filing requirements, which can be quite burdensome. The Ethics Commissioner had raised this at one point, that he would like some administrative tools to ensure that public office holders across the board are filing and giving him the information as required. So these tailored provisions are designed to assist in that.

In respect of breaches of the substantive provisions, the act, as did the code before it, has as the major compliance mechanism the public report. We have a commissioner who has powers to compel evidence, powers to compel persons to give testimony before him. He issues a report. The report is made public. The report is filed with the Prime Minister, the complainant, and the public office holder complained against. At that point, the matter of sanction, if any, becomes a matter for the Prime Minister. In some cases the Prime Minister would have to act, of course, through the Governor in Council.

All of that is consistent with and doesn't derogate from the Prime Minister's role and accountability for the comportment of his ministry, the comportment of public office holders. That's a feature of this system and of any Westminster system.

[The Chair, Conservative, David Tilson]

Ms. Jennings, then Monsieur Petit, and then Monsieur Sauvageau.