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

[The Chair, Conservative, David Tilson]

Okay, are we finished?

Mr. Martin and then Mr. Owen.

[Pat Martin, NDP, Winnipeg Centre, MB]

I think I answered my own question by doing my own research here. I was wondering why there was reference to section 28, but I understand now that it's section 28 of the Parliament of Canada Act. So proposed section 81 of Bill C-2 is actually changing section 28 of the Parliament of Canada Act. Is that correct? Is it the other way around?

[Joe Wild]

I'm sorry, the reference to 28 is actually to clause 28 of Bill C-2.

[Pat Martin, NDP, Winnipeg Centre, MB]

So clause 28 of Bill C-2 is changing section 81 of the Parliament of Canada Act.

[Joe Wild]

That's right.

[Pat Martin, NDP, Winnipeg Centre, MB]

All right. Thank you.

[The Chair, Conservative, David Tilson]

Mr. Owen and then Monsieur Sauvageau.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Chair.

In looking at these types of offices, frankly, in different parts of the world--ombudsman offices, information and privacy commissioners, ethics commissioners, there is a great number of them, and the general ombudsman's role, of course, is very similar as well--I'm not aware of any that require a person to be a judge or a former judge, or to have legal training. What happens in effect in these offices is that if a person isn't a lawyer, then he or she always has commission counsel and relies on all sorts of advice. They have professional investigators to assist with investigative matters.

The typical qualification for this type of role is good judgment. While there are some aspects of executive powers put in here.... I'm not necessarily against this provision, but I feel it's necessary to point out that it's an unusual provision in these types of offices, and I'm familiar with ombudsman and commission-type offices in about 90 different countries. I used to be president of the International Ombudsman Institute. Some countries require judges, but very few.

So I'm not sure, given the type of assistance that office will necessarily have, in any event, that the role should require a person to be a former judge or have quasi-judicial training.

This may be clouding my thinking on this and I just want to get it on the table here. What really worries me is that this provision may not have been intended for this purpose but will give the impression of being intended to specifically eliminate Dr. Shapiro from consideration for this role. In passing this proposed act, we would effectively terminate his role. I'm worried that this would be a dishonourable role for this committee to play,

Perhaps I could suggest, therefore, an amendment to this section that would satisfy me, and that would be to grandfather--we'd have to get the right language--to in fact provide that this would not lead to the termination of Dr. Shapiro's employment as Ethics Commissioner.

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

On a point of clarification, Mr. Owen, are you indicating that you would support this amendment if it included a grandfathering clause for Mr. Shapiro?

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Yes. He would continue throughout his term. He can be terminated under the current terms of his employment, given certain conditions, but I think for this committee to in effect terminate his role and therefore terminate his employment would be improper.

[The Chair, Conservative, David Tilson]

Mr. Owen, I have a problem with what you're proposing. I don't think what you're proposing is a subamendment; I think it's a new amendment. It's quite different from what the paragraph says. Because it's a new amendment, you're going to have to give 24 hours' notice.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I will withdraw the amendment.

[The Chair, Conservative, David Tilson]

I have a list. Next is Ms. Jennings, then Mr. Murphy and Mr. Martin.

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

Mr. Hill gave us an explanation about the quasi-judicial powers of the new conflict of interest and ethics commissioner. In addition, Mr. Owen told us about his experience as an ombudsman. He said that, in the rest of the world, no one required that a candidate for the position of ombudsman be a judge. In that regard, I could talk about the situation in Quebec.

Some 10 years ago, by means of a bill, Quebec carried out a reform of all its administrative agencies and tribunals with quasi-judicial powers. Everything was brought together, all of those organizations were reformed and eligibility criteria were established for positions in the various agencies and tribunals. It was quite clear: at most, it could be asked that the person be a member of the Barreau. Depending on the nature of the agency's powers, the requirement could be five years' experience as a member of the Barreau, or 10 years in cases where powers were somewhat greater.

I'll cite the example of Quebec's police ethics system, which was introduced in September 1990. That system included a position of Commissioner of Police Ethics, which required 10 years' experience as a member of the Barreau, a police ethics tribunal with exclusive powers, executive powers and power to compel persons to testify and to file documentary evidence, as well as the power to impose disciplinary penalties ranging up to dismissal of a police officer, including the police chiefs of all police departments under Quebec's jurisdiction. I believe they showed they were very serious. And yet they didn't require that candidates for the position of commissioner of police ethics or that of deputy commissioner be judges. They simply required that they be members of the Barreau.

So, as regards clause 28 of Bill C-2, I can't support the government's idea that a candidate for the position of conflict of interest and ethics commissioner be required to be a former judge.

[The Chair, Conservative, David Tilson]

I'm sorry, I skipped Mr. Sauvageau inadvertently. I apologize.

Mr. Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I'm speechless after Ms. Jennings' remarks.

[The Chair, Conservative, David Tilson]

Unbelievable.

Mr. Murphy.

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

It's very nice to hear words from the government supporting judges in a period when I think they're very much under attack from this government in terms of pay scales and so on. But let's talk about the legislation, and not motives.

Well, I'll talk about motives for a moment, to say that this is clearly targeted against Mr. Shapiro. It's more important from the legislative point of view. It narrows the field from which a perfect candidate might be found, because it talks about former judges and former members of tribunals who have fairly arcane and specific experience. The pool would be very narrow.

I think it would be best to delineate what we would be looking for--maybe another amendment might come forward--but not preclude it to a former judge or a former member of a tribunal.

So in that instance, I very much support the Bloc amendment and look forward to something that's a little more small “c” catholic, if you like, in terms of getting the right appointee.

Thank you.

[The Chair, Conservative, David Tilson]

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair.

This is one I've wrestled with quite a bit.

In reading it carefully, I see that the government is calling for a former judge or a former member of a federal or provincial board, commission, or tribunal. I would argue, Mr. Murphy, that actually opens up quite a broad range to draw from. I'm thinking of public utilities boards, or actually anybody who has a demonstrated expertise in conflict of interest, financial arrangements. That actually makes it quite broad.

So the Bloc amendment--which is what we're actually debating; we're not really debating the merits of the government's Bill C-2 so much--seeks to delete all of the qualifications, lines 5 through 20. There would be no reference to qualifications at all. You would simply have the Governor in Council choosing a person, and then consultation with all the political parties and a vote in the House of Commons.

That leaves it wide open so that a majority government could choose the Prime Minister's nephew who couldn't get a job anywhere else; do that consultation process; listen to all of the opposition parties say no, we don't like that person; put it to a vote in the House; and win the vote in the House because they're the majority. We would then wind up with a person who wasn't qualified or suitable in any way. It would be patronage personified. It would be institutionalizing the very patronage that we're trying to avoid here.

I don't mind having the government's language in Bill C-2. I would rather there weren't specific reference to a former judge. I am comfortable with proposed paragraph 81(2)(b) in the clause, which says, “a former member of a federal or provincial board, commission or tribunal....” I'm going to propose, as a compromise, a subamendment that would delete only proposed paragraph 81(2)(a), and leave the rest. In other words, we would be deleting lines 7 through 10, rather than lines 5 through 20.

[The Chair, Conservative, David Tilson]

Does everyone understand that? Are we clear on the subamendment?

Are you finished, Mr. Martin?

I have Mr. Poilievre, and then Mr. Petit.

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

What I'd first like to do is pose a question to our technical experts, and then I'd like to make my intervention.

I'll pose this to Mr. Wild.

First, if Mr. Martin's amendment is accepted.... I'm reading the clause here. It says, “in order to be appointed under subsection (1), a person must be”. Then we'd go straight to “a former member of a federal or provincial board, commission or tribunal who, in the opinion of the Governor in Council, has demonstrated expertise in one or more of the following:” Then it lists some.

Are we then excluding former judges?

[Pat Martin, NDP, Winnipeg Centre, MB]

That wasn't my intent.

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

Is that the effect, though?

[Joe Wild]

With the subamendment that was proposed, you would be excluding judges, as they would not be members of a board, commission, or tribunal. A court is something distinct from that list.