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

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

It's my understanding as well. I gather that wasn't the intention Mr. Martin had in putting forward the amendment.

[The Chair, Conservative, David Tilson]

Do you have a point of order, Mr. Martin?

[Pat Martin, NDP, Winnipeg Centre, MB]

I was going to ask if the committee would allow me to qualify that subamendment if we added the word “court” after the words “tribunal”? That would give the full range. That would give the option still.

[The Chair, Conservative, David Tilson]

“Court” after “tribunal”. Is that what you're suggesting?

[Pat Martin, NDP, Winnipeg Centre, MB]

Delete paragraph (a) and add “court” after “tribunal”.

[The Chair, Conservative, David Tilson]

Yes, sir, go ahead, please.

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

I would like to ask Mr. Wild what would be the effect of Mr. Martin's amendment.

[Joe Wild]

From our view, that would be the same as (a). By adding “court” under (b) you're still going to be capturing what's in (a). So it doesn't actually change anything.

[Pat Martin, NDP, Winnipeg Centre, MB]

I withdraw my subamendment then.

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

I think what we're ultimately getting at here is the same thing. This section leaves a very broad range of options to a government and ultimately to Parliament in the selection of a future Ethics Commissioner. But it merely lays out a specific list of qualifications that individual must have to assume such an important position.

If we were to accept the Bloc amendment, there would be absolutely no criteria whatsoever to determine who qualifies and who does not. In other words, the Bloc amendment actually opens the door to more patronage because it removes any qualifying criteria necessary to win the position. We have put in place here some very clear criteria with the goal of taking the discretion out of the hands of the government to appoint whoever they please and replacing that discretion with an obligation to find someone who has proven experience in the execution of the job.

I note that some members of the Liberal side have already supported the concept. Mr. Owen said he would support the amendment in principle; he just doesn't want it to apply to one particular individual. But if we're going to have a rule, presumably, especially if we're talking about a rule that pertains to ethics, it ought to apply equally and across the board. We cannot have a special favour for one particular individual, whether we like that individual or not.

In the interest of consistency, it is my view that we need first to have clear criteria to determine who can be our Ethics Commissioner, and that the criteria must lay out an experience with judicial procedure, an experience with making decisions and rulings, and an experience that will give this individual the intellectual equipment to interpret statutory law. This new office is being given new executive powers that must be met with serious qualifications.

You will note that in other parts of the bill we have done the exact same thing in requiring judges to be involved, for example, in the whistle-blower protection component, because there are serious new powers that we are extending to these offices. If we give these offices new powers those powers must be accompanied strictly by qualifications that are clearly laid out. If they are not laid out over time, they will be abused.

So I am proud to say that I will be voting against the Bloc's amendment, and I would open the floor to Mr. Wild to add any technical advice that might be of interest to the committee.

[Joe Wild]

One thing that may be of interest to the committee is to point out that within the scheme of the Conflict of Interest Act the level of judicial review is to the Federal Court of Appeal. That's in recognition of the fact that the person holding the office of commissioner would be someone who has experience either as a judge, or performing quasi-judicial functions on a board tribunal, and so on. If an amendment were made to remove that completely so that it would be any individual with whatever other set of qualifications, but not those of a judge or the experience on an administrative tribunal, it would be unusual, to say the least, that the Federal Court of Appeal would remain the level where a judicial review would be brought. The norm for that type of decision-maker is that it would be the trial division of the Federal Court.

I just make the point that the scheme of this act is written with the notion that it is in essence a quasi-judicial function that's being carried out, and that the appropriate level of judicial review for those decisions is at the Federal Court of Appeal. If we were to amend that function so that it was no longer a quasi-judicial one, one would also normally want to amend then the level of judicial review from being the Federal Court of Appeal to the Federal Court trial division.

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

Just to finish on that point, you're saying that without these qualifications you would almost alter the legal stature of the conflict of interest commissioner. Is that what you're telling us?

[Joe Wild]

Within the Conflict of Interest Act, it has been set up specifically--because you have to do this through legislation. The conflict of interest commissioner is being included under the Federal Courts Act as being a quasi-judicial body, triggering, then, the Federal Court of Appeal as the level of judicial review.

If you were to pull out these qualifications, there is an amendment that would also be required in this other part of the act in order to take it down to the Federal Court trial division instead of the Federal Court of Appeal.

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

Just to try to put this in language that people like me can understand, if you take away the required qualifications, you are actually changing the legal status of the conflict of interest commissioner's decisions.

[Joe Wild]

Yes. The commissioner would no longer be performing what we would consider a quasi-judicial function. From the perspective of where the level of judicial review should be, you'd be taking it down a step lower so that it would be, as with most other administrative decisions, the Federal Court trial division rather than the Federal Court of Appeal.

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

So to conclude, then, what we're saying here is that the Federal Accountability Act gives quasi-judicial status to the Ethics Commissioner, and in order to have that quasi-judicial status, you must have someone who is qualified to carry out the responsibilities associated with it.

[Joe Wild]

It's saying that the decisions of the Ethics Commissioner are quasi-judicial in nature, because the nature of the person holding the position is that they have the characteristics of a judge.

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

So if you take away those characteristics, which is contemplated in amendment BQ-8, you then take away the quasi-judicial status of that commissioner's decisions. In other words, his decisions would not have the same legal weight.

The Bloc amendment takes away power from the ethics commissioner and opens up the job to patronage and political insidership in a way that this act was meant to avoid. So we need these qualifications here in order to defend the very legal status of the quasi-judicial decisions that this Ethics Commissioner is being empowered with. We need these qualifications here to avoid the kind of cronyism and patronage that this bill is specifically designed to avoid.

I'll conclude on that point.

[The Chair, Conservative, David Tilson]

Okay. We're on amendment BQ-8, and we have a long list, starting with Monsieur Petit and then Ms. Jennings.

Monsieur Petit.

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

It is suggested in some circles that any reference to former judges, council members and so on be deleted. However, even though we're talking about a quasi-judicial body here, you'll see that the judgments, once rendered, will be entirely judicial in nature. We'll all be subject to this act, I believe. In the event of a problem, we would want to ensure that the person responsible for making the judgment has clearly understood the situation in legal terms.

Then it is suggested that a former judge or former member of a board be asked. I believe that what Mr. Martin explained before his amendment was correct: we shouldn't eliminate candidates. But we are eliminating everyone. Then we'll have to call on anyone. In some cases, that could cause a problem. So I suggest, since this is a very important act, that we appoint highly qualified people so that you will have full confidence in their decisions.

[The Chair, Conservative, David Tilson]

Ms. Jennings, and then Monsieur Sauvageau.

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

Mr. Chair, I would request that Mr. Martin speak. You can put me back on the list, at the bottom, but I would cede my place to Mr. Martin at this time.

[The Chair, Conservative, David Tilson]

There are a few people ahead of him.

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

No. I'm ceding my time, my slot, to Mr. Martin.

[The Chair, Conservative, David Tilson]

Mr. Martin.