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

[The Chair, Conservative, David Tilson]

Madame Guay.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

I would like to ask legal counsel a question, because this is not clear for us. We are in agreement with the substance, but let us take the case of a person who has been a lobbyist all of his or her life and who is working in Mr. Harper's office. Would this provision apply to that person?

That is the question we must ask ourselves. For us, that is what retroactivity is.

[Joe Wild]

I want to make sure I understand the question that you've asked. Are you asking that if you're currently a lobbyist and then you go on a transition team and then you come off the transition team, you would now be prohibited under this provision from lobbying? That is correct if you are designated by the Prime Minister, yes.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

As a registered lobbyist?

[Joe Wild]

If you are a registered lobbyist who leaves that to then go sit on a transition team, you would be banned for five years from lobbying if the Prime Minister designates you. Yes.

[The Chair, Conservative, David Tilson]

Ms. Jennings.

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

I have carefully noted your explanation with regard to the difference between retrospective and retroactive.

I have a lead on the committee. With regard to government's amendment G-32, the English version of which is on page 69, I would like to quote an excerpt from Ms. Elisabeth Roscoe's letter to the Chairman of the committee.

She states the following in the third paragraph of her letter: “Briefly...“

[The Chair, Conservative, David Tilson]

Ms. Jennings, whether this is right or whether this is wrong, I'm bound to go by the rules of this committee. You asked for a notice of motion, for which there was no unanimous consent.

I would rather you stay away from that letter. I think it's inappropriate because of the rule of the committee: there was not unanimous consent that allows you to get into debating this issue.

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

I'm not debating that at all. Chair, may I ask--

[The Chair, Conservative, David Tilson]

And the individual--

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

May I ask the chair if the chair would table the letter that he received from Mrs. Roscoe?

[The Chair, Conservative, David Tilson]

I directed the clerk to give it to all members of the committee.

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

So it's been tabled?

[The Chair, Conservative, David Tilson]

Yes.

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

The third paragraph reads as follows:

Briefly, and for the record, I served the transition committee as a volunteer. I took a two and one half week unpaid leave of absence from my job at Carleton University to serve on the committee. At no time before, during or after my service was I informed that my two and one half weeks of volunteerism would be deemed the equivalent of a life-long career in the public service, let alone resulting in me being retroactively covered by the Accountability Act's provisions prohibiting public office holders from engaging in lobbying activities for 5 years thereafter.

And she continues in the fourth paragraph:

Had that fact been made know to me at the time, I would have respectfully declined the invitation to volunteer. The fact that the government has introduced this amendment after the Bill was initially tabled simply underscores the point that none of the transition committee members had been forewarned that the consequences of their volunteerism could have such a far-reaching and negative impact on their careers.

You are saying that the G-25 amendment will have no retroactive effect, that it is simply retrospective. However, Ms. Elizabeth Roscoe, who works at Carleton University, is of the belief that this retrospective application has a retroactive effect on her. She states that at the time, if she had been able to predict this effect, she would never have accepted to work as a volunteer. These past decisions could have a negative impact on her career. But at the time, this was not at all the case. In summary, we could retrace this person's past and tell her that because of what she chose to do at one point in time, she will be prohibited in the future from undertaking this type of activity.

I would therefore like you to explain to me in what way this retrospective legal impact has no retroactive effect on Ms. Roscoe. After the January 23, 2006 general election, she was free to launch her career. She had worked for two and one half weeks, and that possibility still existed. But that will no longer be the case if this amendment, as well as amendment G-32, are passed.

Imagine Ms. Roscoe's reaction if I send her the transcript of the meeting telling her: “But no, Ms. Roscoe, there is no retroactive effect, this is simply retrospective.“

[Joe Wild]

Mr. Chairman, I'm certainly not going to be commenting on specific facts or otherwise of a specific case; however, in law there is a distinction between retroactive application and retrospective application.

Retroactive application occurs when, after the fact, you change the rule for some past period that has already gone by. In the example before us, it would be to say that for any member who served on the current Prime Minister's transition team, anything they did between the date they commenced serving on that transition team and the date when this law comes into force, if it involved lobbying, would be illegal, because it would breach the ban on lobbying and would thus be an offence under the act.

Retrospective application is different. It's not retroactive. What happens in a retrospective application is that you are identifying people—in the past, yes—and are saying that a new law now applies to that group of people; however, its application only commences on the date on which the law comes into force. So any activity that was undertaken between the time they went onto a transition team until the time the law comes into force is perfectly okay, if it involved lobbying, as no lobbying ban applies to that time period.

However, after the law comes into force and into the future, if they engage in lobbying activity that violates the ban, that would create an offence. That's the distinction between retroactive and retrospective.

[The Chair, Conservative, David Tilson]

Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Chair, when we look at this amendment, we look at the concerns we had about the fact that we had people who were able to, on one day, work for government, and then turn around the next day and be able to receive benefit from that work. We had some concerns about the fact that those who one day are lobbying government, turn around and then get contracts from government. That's something we still have concerns about.

The fact is that we aren't going and taking someone out of their job. It's not penalizing. For the people who were in ministers' offices, who were parachuted into various parts of the public service, if we had retroactively enacted the legislation in front of us on that clause, that would be a retroactive kind of measure--which some of us wouldn't mind, but this is not what we're talking about. With that in mind, we're not affecting someone's employ presently, but the opportunities in the future, absolutely, as with everyone else from here on in.

So in terms of the measure of this, it's something that I think is pretty obvious. You shouldn't be able to, in essence, sell your influence. I think that is congruent with what Canadians want to see, that someone doesn't get to the head of the line because of who they knew in the PMO. I think that's consistent here.

[The Chair, Conservative, David Tilson]

Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you, Mr. Chair. I have a couple of comments.

First, I find it curious, the members of the opposition who, when Ms. Roscoe's situation first surfaced in the media, were adamant, saying this is terrible. I mean, how can you allow this person who worked on the transition team to become a lobbyist? I don't want to put words in Ms. Jennings' mouth, but it now seems they're reversing their position and defending Ms. Roscoe.

The Prime Minister made it quite clear at the outset that he did not want to have any lobbyists working on his transition team. The spirit of the act is such that he wanted to make sure that lobbyists, or at least people who worked for the government in some position of influence, would be prevented from lobbying the government for five years.

Quite frankly, some people--witnesses and some members of this committee--have argued that five years is overboard; it's too long; it's almost draconian. Well, the Prime Minister wanted to make it absolutely crystal clear to Canadians that he would not tolerate anyone who had a position of influence within the government then being able to lobby the government, for five years. That's how tough he wanted this to be, to give the Canadian public confidence that there would not be any undue influence and lobbyists would not be able to take advantage of a prestigious position within government for their own personal gain.

When it was discovered that Ms. Roscoe, who was on the transition team, and as my colleague Mr. Poilievre said, was in a considerable position of influence, was then going to be in a position where she could be lobbying the government, the Prime Minister decided to bring forward this amendment to stop that from happening, to close a loophole. That's all this is, and that is the spirit of this act.

Again, I find it curious that now the opposition seems to be defending the right of Ms. Roscoe.

It's nothing against Ms. Roscoe personally. The fact is that she was in a distinct position, a position of great influence, I would argue, and we believe it is not in the best interest of Canadians, certainly from the perception that Canadians would have of this act, if we allowed Ms. Roscoe--or anyone else, for that matter--to hold a position in transition and then be able to lobby the government following that, within a five-year period. That is something that I think is unconscionable, given what we are attempting to create with this act.

So that is all the Prime Minister and the government have stated with this amendment, to close a loophole and not allow anyone, whether it was known before the fact or after the fact.... If someone was on a transition team on behalf of the government, they cannot lobby that government for five years, just like everyone else.

[The Chair, Conservative, David Tilson]

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

I take that comment very seriously, but I wonder in passing why someone who was perhaps in a position of great influence before the election, as the policy chief to the leader of the opposition, could now be a lobbyist. What about filling that loophole? They could be a lobbyist for the telecommunications, energy, and transportation industry. Does that not offend the sensibility that you're suggesting as well?

I'd like to get an explanation of the impact of amendment G-32 on page 69, subsection 88.1(2) of that, as it relates to this amendment.

[Joe Wild]

Mr. Chairman, amendment G-22 basically sets out a set of clauses that would take the transition team that existed on January 24 and apply the five-year ban to it, in that the Prime Minister would have the authority to designate members of that transition team as being under the ban. The ban itself only, of course, comes into effect on the coming into force of the actual legislation, so the ban does not apply to any activities that were undertaken between the time of the creation of that transition team and the coming into force of this act or the time when those individuals are actually designated by the Prime Minister as being subject to the ban. It would only apply to the future activities of those individuals.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I understand what you're saying, and relating it to your previous comments I'm just not sure that's what the amendment's proposed subsection 88.1(2) says. Maybe you can confirm that for me.

[Joe Wild]

If you look particularly at that page's proposed subsection (2), it's exactly as...I guess I'm not doing a good job, but it's exactly as I'm trying to explain it, Mr. Chairman. The subsection that subjects the members of this team to the various bans does not apply to any of the activities that team carried out prior to the coming into force of this act.