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

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

The Bloc québécois amendment raises a single problem. They want the maximum penalty to be $50,000, but I see nowhere in the act any criteria on which a decision can be made on the amount of the penalty or when it will be imposed. Perhaps it's me who's not seeing it.

For example, we're talking about a maximum penalty of $50,000. However, a public office holder must have been found “guilty” of violating a provision that is not contemplated in subclause 1. However, no mention is made of the manner in which the amount of the penalty will be determined. I find this serious.

So I ask my colleagues if we can examine this again.

I'm told that subclause 53(3) states, and I quote:

(3) The amount of a proposed penalty is, in each case, to be determined taking into account the following matters: (a) the fact that penalties have as their purpose to encourage compliance with this Act rather than to punish; (b) the public office holder's history of prior violations under this Act during the five-year period immediately before the violation; and (c) any other relevant matter.

Perfect, that answers my question.

[The Chair, Conservative, David Tilson]

Monsieur Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

My question is for the experts. I'd like to make sure I've properly understood the amendment.

When you refer to a maximum penalty of $50,000...

[The Chair, Conservative, David Tilson]

Just on a point, sir, there's also an amendment of $5,000. There's $50,000 in the amendment, and the subamendment is $5,000.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Let's take the $5,000 amount. That's equal to the same thing when you work in this area. If you work in the legal field and a judge is allowed to assess a $5,000 penalty, you have to think that he can go up to $5,000. If someone is sentenced to pay $5,000, but doesn't pay it, he has two choices: either he goes to prison for a period of time calculated based on the amount of the penalty, because that's provided for, or he declares bankruptcy and, in that case, will go to prison all the same.

If the person doesn't pay the penalty, I'd like to know how many days in prison the sum of $5,000 proposed by Mr. Owen corresponds to. If the government can't seize any property in order to pay the fine, the person will go into detention or will perform community service. One day in prison usually corresponds to an amount of $200. I'd like to know how many days' detention correspond to an amount of $50,000.

[Joe Wild]

Mr. Chairman, I think it might be helpful if I took a moment to clarify what an administrative monetary penalty is and what it is not. It is not a fine, and it's not meant to be in the criminal realm. So there are no judges here, and there is no sense of guilt, fine, and penalty. The idea of a administrative monetary penalty is that you have a certain amount of procedural fairness that is attracted around it, but it is not the same amount as there would be if you had in fact a fine, which is a criminal matter.

With criminal matters, you're going to bring in the Charter of Rights, and the amount of procedural fairness goes up considerably. Administrative monetary penalties are supposed to be little sticks, in essence, that allow the person overseeing the regulatory regime to make sure there is compliance with things like reporting, and so on.

You would also have—and this is important to remember with the Conflict of Interest and Ethics Commissioner—the commissioner advising all public office holders on how to interpret the act and how to meet their obligations under the act. In that capacity, you have the commissioner providing advice. If you had a penalty regime, where the commissioner is also administering penalties with respect to breaches of the fundamental or substantive provisions of the act, then you would have the person who is providing advice, later on, also having to investigate and look at whether or not a person should be penalized for having breached a provision of the act.

So the idea of the administrative monetary penalty scheme is to provide the commissioner with a bit of a stick, if you will, or a carrot—however you want to look at it—to ensure that there is compliance with the reporting requirements.

If you start to go up in the level of money, if you start to take it into substantive parts of the code, you're going to have to increase the procedural fairness safeguards in the act, which currently do not exist, or at least are not sufficient to enable some kind of a penalty scheme to be brought in. There are not the procedural safeguards there with respect to breaches of the substantive provisions—if you were going to go down the path of a $50,000 or more, whatever the amount is, fine for those breaches.

The point, I think, that Mr. Hill made before is the salient one, which is that the whole scheme of this act is that the commissioner's role is to try to make sure these reports are filed on time, and that he has an administrative penalty scheme to allow him to do that. As far as the breaches of the substantive provisions of conflict of interest are concerned, those are matters for the Prime Minister, for which the Prime Minister is accountable to members and Parliament.

[The Chair, Conservative, David Tilson]

Monsieur Sauvageau, and then Mr. Owen.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I'd like to ask the experts a question.

I sat on the Standing Committee on Official Languages for three years. We fought for 25 years to determine whether Part VII was declaratory or mandatory. Can we draw a parallel here, that is to say that, if there is no penalty, it will be a declaratory part and we'll be faced with the same problems that afflict the Official Languages Act, that is to say that we'll simply tell someone who isn't complying with this act to comply with it?

[Joe Wild]

Again, I think we should go back to the point that the penalty for a breach of the substantive provisions of the act would be a matter between the Prime Minister and the particular public office holder, and the Prime Minister is accountable to Parliament for what actions are taken.

So to use an extreme example, if there is a minister who has violated a provision of the Conflict of Interest Act, and the commissioner gives a recommendation to the Prime Minister saying that the minister should not sit in the House and vote on those matters, and the minister refuses to follow that and tries to sit in the House and vote on those matters, I suspect that person would not be a minister for very long. And if he or she continued to engage in that behaviour, I suspect the Prime Minister would have a pretty interesting time in the House.

Just to draw the point, that is the mechanism intended here.

[Benoît Sauvageau, Bloc, Repentigny, QC]

So if we take the sponsorship scandal as an example, the Prime Minister himself should have decided whether one of his ministers, the Minister of Public Works and Government Services, for example, had violated the conflict of interest code.

Second, as regards the post-employment clauses, since a minister is responsible for his department only during the term of his employment, I suppose that the Prime Minister doesn't have a lot of power over someone who is no longer a minister or a member.

[Patrick Hill]

If I might reply to the latter part of the last question, in a post-employment situation, there is one remedy--

[Benoît Sauvageau, Bloc, Repentigny, QC]

Clauses 33 to 37.

[Patrick Hill]

--available, which is that the Conflict of Interest and Ethics Commissioner may order incumbent public office holders not to have dealings with the former public office holder who is found to have violated the post-employment obligation. Otherwise, you're correct that there is no effective sanction on the part of the Prime Minister. In that event, the commissioner would have, in the appropriate case, the ability to order an incumbent public office holder not to have dealings with the person in breach of post-employment obligations.

[The Chair, Conservative, David Tilson]

Now, Mr. Owen, and then Ms. Jennings.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I think it might be helpful for us all to reflect on what the role of parliamentary officers is.

On reflection, I'm going to withdraw my amendment to change it to $5,000, actually, and just vote against the $50,000. Parliamentary officers are not elected, they're not surrounded by any due process. They have a great deal of independence, including pretty strong security of tenure, and they are there with investigative powers to shine light on a situation. I think if we introduced a severe penalty regime, even to $5,000, beyond just the administrative wrist slapping, we would set up the commissioner to all sorts of challenges on due process, for really overseeing a criminal-type sanction regime, which is not the intended purpose of that office. While it's fine to think that we're just looking for wrongdoers, and who cares, I think the system would be under severe challenge very quickly.

Just to give you the other side of a potential scenario, we could have a person as a commissioner who is totally unreasonable, who could start handing out large fines without any due process around it, and I think the whole scheme would crumble in front of us as being unconstitutional.

So I withdraw my $5,000.

[The Chair, Conservative, David Tilson]

Thank you, sir.

Ms. Jennings? No, you're fine.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

I found that very useful, Mr. Wild's intervention and Mr. Owen's, because my thought process is coming around to very much the same thing, that with either one of these figures--the $50,000 or the $5,000--it's almost as if we're trying to replace the courts. If we are going to apply this large...whether you call it a levy, or a penalty, or a fine to other aspects of the commissioner's activities, other due process, and natural justice, and rules of evidence, all of this would have to kick in or it would be vulnerable to huge challenges. Even before we left this room, we'd be getting challenged on it.

So I'm going to vote against the Bloc motion, the $50,000.

[The Chair, Conservative, David Tilson]

The subamendment is withdrawn, so we will vote on the amendment, which is on page 33.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, David Tilson]

We now move to page 34, which is a Bloc Québécois amendment, BQ-7.

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Unless I'm mistaken, it's the amendment concerning the review of the act after five years.

[The Chair, Conservative, David Tilson]

It's your amendment, sir, if you'd like to move it, please.

[Benoît Sauvageau, Bloc, Repentigny, QC]

The idea is to review the act after five years. There are two philosophies: if you think that this bill is perfect, you vote against this amendment, and if you think this bill is like all other acts of Parliament, that is to say that it can be improved, you vote for it.

[The Chair, Conservative, David Tilson]

Is there any discussion?

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

I think the bill is perfect, but I'm nevertheless going to support the amendment.

(Amendment agreed to [See Minutes of Proceedings])

[The Chair, Conservative, David Tilson]

As I indicated yesterday, we now move to clause 3 amendments, and specifically amendment G-20, which is on page 35.

Mr. Poilievre.