Bill C-2 (39th Parliament, 1st Session) Committee on June 12th, 2006

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Chair.

Let me ask Mr. Wild whether, in his interpretation of clause 28 as it is currently worded, the current ethics commissioner would qualify under its set of criteria, given that we're talking about a federal commission that involves ethics.

[Joe Wild]

The current ethics commissioner would not qualify under proposed paragraph 28(2)(b), in that the office is currently not a commission. It has not been defined or created as a commission—it's the office of the ethics commissioner—and has been specifically excluded from the meaning of those words in the Federal Court Act.

[The Chair, Conservative, David Tilson]

Mr. Martin, and then Ms. Jennings.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Chairman, I understand Mr. Poilievre's point, and I understand the government's position, but it's our position that we don't want this committee to be used as a lynch mob. What I put forward is a very balanced idea that doesn't guarantee that the current ethics commissioner will somehow carry on into the newly contemplated position, but it also doesn't preclude that possibility.

We've all seen job postings that are cleverly written to give some kind of preferential advantage to a specific person you have in mind. I don't want to see this job outline rigged like some shady ring toss on a carnival midway. I want it to be fair and open and transparent and such that this person will survive or fail on their merits, and not on some rigged setup by this committee. I just don't want to be a part of that.

[The Chair, Conservative, David Tilson]

Ms. Jennings.

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

When I look at the other sections, proposed subsection 81(4) says:

The Commissioner is eligible to be reappointed for one or more terms of up to seven years each.

We could theoretically have a situation, if Mr. Martin's amendment is not carried....

When the legislation goes into effect, someone who is qualified under proposed paragraphs 81(2)(a) or (b) is appointed as the Commissioner of Conflict of Interest and Ethics, takes a turn, and is appointed for seven years, for instance. The commissioner could possibly complete the entire seven years or leave beforehand for personal reasons—it could be an illness or any problem whatsoever in the family—and someone else would be appointed for a term.

The initial commissioner would then be available to be appointed at the end of the subsequent seven-year term and would not be qualified. Am I correct? Would the commissioner not be qualified, under the current wording?

[Joe Wild]

If the initial commissioner fits under the categories in proposed paragraphs 81(2)(a) or (b) before being appointed, there would be no issue with that commissioner continuing to be reappointed after leaving office for a certain amount of time and then being appointed again, because the qualifications in paragraphs 81(2)(a) or (b) would continue with that person for his or her natural life.

Once you're a former judge or a former member of a board, commission, or tribunal, you would continue to be one. The wording of paragraphs 81(2)(a) and (b) does not mean to say that the day before the appointment comes into effect, you must be a judge or a member of a board, commission, or tribunal.

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

Yes, but you know as well as I do that I can't ask you for an opinion. You've made it quite clear that you're not here to give legal advice.

If someone has been out of a particular position that has a required qualification for five, seven, or eight years, he or she is generally not going to be considered. You're going to take someone who's currently in the position.

You put “former judge” so that someone who's an actual judge could be appointed, and he or she would have to be a former judge to take up the appointment. The explanation that you had given was that it was because we had specifically said it should be a judge or a former judge and a member or a former member. The explanation you gave was that under the legal definition and tradition, you put “former” because you're looking for the current one, and the person would have to automatically resign from the position of judge or a position in a tribunal or commission in order to be appointed.

The point you're making now doesn't hold water, if your first explanation was right.

[Joe Wild]

My first explanation was specifically to the question of whether or not a current member was actually eligible. The answer is yes, because the word “former” is really signaling the fact that you are not holding two jobs. At the time of appointment, you would have been “former”.

It did not in any way shape or form limit or put in place some kind of a temporal restriction on when “former” actually occurred. If you ceased to be a judge five years ago, you would still be eligible under proposed paragraph 81(2)(a). If you were a member of a federal or provincial board, commission, or tribunal a decade ago, you would still have the qualification of being a former member of a board, commission, or tribunal.

Whether or not someone who has been out of a position for a given length of time is of interest to the Governor in Council when looking at the whole appointment process, I can't speak to that. It depends on the particular individual and the particular characteristics that are in play at the time.

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

Thank you.

[The Chair, Conservative, David Tilson]

All those in favour?

(Amendment agreed to)

[The Chair, Conservative, David Tilson]

We now move to a new stage.

We're going to vote. If there's debate, that's fine. It's the overall vote on clause 2.

I would like to emphasize to members that the vote on clause 2 applies to clauses 3 and clauses 4 to 38.

Is there any debate?

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Just to be clear, Mr. Chairman, when you ask, “Shall clause 2 carry?”--I'm not sure, from the way you just phrased it...does it apply to clauses 3 to 38?

[The Chair, Conservative, David Tilson]

Yes, it's clause 3 and clauses 4 to 38. You're right.

[Pat Martin, NDP, Winnipeg Centre, MB]

Okay. Thank you. I just wanted to be sure I understood you.

That's remarkable, isn't it?

[The Chair, Conservative, David Tilson]

We're in remarkable times.

Is there any debate on this vote?

(Clauses 2 to 38 inclusive agreed to)

[The Chair, Conservative, David Tilson]

We go on to new clause 3.1 at page 37, if I'm correct.

Mr. Poilievre, does new clause 3.1 replace the amendment on page G-21? Should we still be looking at amendment G-21?

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

Yes. We are going to withdraw amendment G-22.

[The Chair, Conservative, David Tilson]

You're going to withdraw amendment G-22?

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

That's right. Then we're going to move to amendment G-22.1, which accomplishes the desired outcome.

[The Chair, Conservative, David Tilson]

So we're on to page 38.1, Mr. Poilievre--I believe that's correct--which is amendment G-22.1.

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

I move this amendment. I'll open my remarks by allowing a technical explanation from the panel of experts.

[Joe Wild]

Mr. Stringham will explain this one.

[James Stringham, Legal Counsel, Office of the Counsel to the Clerk of the Privy Council, Privy Council Office]

Mr. Chairman, amendment G-22.1 addresses a concern that might arise if two different parts of the act come into force at different times. The concern is with respect to the five-year lobbying ban, which is currently found in section 29 of the Conflict of Interest and Post-Employment Code, as established by the Prime Minister under the current Parliament of Canada Act.

Section 29 sets out a five-year lobbying ban for former ministers, senior public servants, and ministerial staff designated under section 24 of the code. Now, most provisions of the code are making their way into the Conflict of Interest Act. However, the lobbying ban is not. It's migrating to the lobbying act. The Conflict of Interest Act, when it comes into force, will effectively supersede the code. The code will be no more. If the Conflict of Interest Act comes into force before proposed section 10.11 of the lobbying act, which provides for the five-year lobbying ban, then there will be a period of time between the coming into force of the first and the coming into force of the second when there will be no five-year lobbying ban.

The result is that if a senior public office holder leaves office during this period--that is, the period between the coming into force of the Conflict of Interest Act and the coming into force of proposed section 10.11 of the lobbying act--then that person would not be subject to the five-year lobbying ban.

This transitional provision, new clause 3.1, carries section 29 of the code in effect during that period. It may be that if those two parts of the act come into force at the same time, there won't be an interregnum, a need to fill a gap, but if there is a gap, then section 29 will be sustained and the registrar of lobbyists will be put in the position of--effectively stand in the shoes of--the current Ethics Commissioner and be able to enforce section 29 of the code.

Thank you, Mr. Chairman.

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

It's a coming into force issue, effectively.