Evidence of meeting #13 for Access to Information, Privacy and Ethics in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was agents.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Michael Ferguson  Auditor General of Canada, Office of the Auditor General of Canada
Marc Mayrand  Chief Electoral Officer, Elections Canada
Mary Dawson  Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner

11:50 a.m.

NDP

Charmaine Borg NDP Terrebonne—Blainville, QC

Thank you, Mr. Chair.

Mr. Adler, thank you for coming today to speak to us about the content of your bill.

To begin, I would like to come back to a question that my colleague, Mr. Ravignat, asked regarding the absence of definitions. You kept referring to the definition of political staff, which is not the same thing. Section 9 of your bill says that alleged partisan conduct may be examined. However, “partisan conduct” is not defined in your bill, Mr. Adler.

Let us suppose that the Chief Electoral Officer starts an investigation into a candidate of a political party. You decide that that would be partisan conduct because it focuses on one specific political party.

This a very serious concern, and you have to clarify that part of the bill and define partisan conduct. One wouldn't want to create a system that would start a witch hunt targeting all those within the government whose responsibilities involve disclosure.

Mr. Adler, why wasn't “partisan conduct” defined? I would like you to tell us what you mean by that.

11:55 a.m.

Conservative

Mark Adler Conservative York Centre, ON

If a member of Parliament or senator suspects there was partisan motivation behind an investigation or some kind of query, the member of Parliament can request, as you were so right—

11:55 a.m.

NDP

Charmaine Borg NDP Terrebonne—Blainville, QC

Which criteria will be used? Are there criteria or can one simply decide that a given type of conduct is partisan and therefore an investigation can be undertaken?

That is the question that most Canadians are asking.

11:55 a.m.

Conservative

Mark Adler Conservative York Centre, ON

Well, in answer to your question, which I was getting to, it's clear in the bill that the head of the agency may conduct an investigation.

The head of the agency would determine whether or not an investigation is worthy based on the evidence provided by the member of Parliament. It's quite clear that, given the definition in the bill of what partisan activity is, and given the power of the head of the agency to conduct an investigation based on the evidence before him or her, an investigation could or could not be conducted. It's as simple as that.

11:55 a.m.

NDP

Charmaine Borg NDP Terrebonne—Blainville, QC

Mr. Adler, I do not think it is too late, as you seem to believe.

Regardless, I am going to move on to another question because we do not have much time.

I absolutely agree that those who are appointed to important positions must be transparent and impartial. In that regard, based on this Conservative government's record and that of previous Liberal governments, there have been too many partisan appointments.

I am going to refer to a very recent case. Mr. Chuck Strahl was appointed to a very sensitive powerful position, but he would not be subject to the bill that you are putting forward. That is a double standard. Mr. Strahl, who was a lobbyist for Enbridge, was appointed as chair of SIRC but would not have to be impartial nor undergo the process that you are proposing for agents of Parliament, who, in fact, must already be impartial under the Public Service Employment Act.

11:55 a.m.

Conservative

Mark Adler Conservative York Centre, ON

Thank you, Ms. Borg.

As a point of clarification, I don't know the specifics about those other incidents you mentioned.

I am here to talk about Bill C-520. Bill C-520 clearly enumerates who would fall under the purview of this bill. It's the nine agencies of Parliament that stand in judgment of members of Parliament and senators. These agents are held to a higher standard because they stand in judgment. In fact, the Chief Electoral Officer can't vote; that's how high the standard is.

11:55 a.m.

NDP

Charmaine Borg NDP Terrebonne—Blainville, QC

Thank you, Mr. Adler. I believe you are becoming quite repetitive. I've already heard that answer.

I would like to ask another question regarding the Public Service Employment Act. I would like to know if you read that act before drafting your own bill. There are some parts that risk being quite problematic. You are proposing the implementation of two measures that are not always consistent with each other. In fact, section 7 is not consistent with section 6 in your bill, regarding volunteering activities.

Did you at least look at the Public Service Employment Act in order to make sure that it is consistent with what you are proposing?

11:55 a.m.

NDP

The Chair NDP Pat Martin

We're over time.

Do you have a brief response, Mr. Adler? Otherwise, we're going to move on.

11:55 a.m.

Conservative

Mark Adler Conservative York Centre, ON

Yes, I have read it.

11:55 a.m.

NDP

The Chair NDP Pat Martin

Thank you.

I think we've almost concluded.

I'd like to ask for one point of clarification, Mr. Adler. You say that what you have defined clearly in the bill is partisan positions. You don't have a clear definition of what partisan activities or partisan conduct might be. We can understand partisan positions if you're a staff representative and you ran for office, etc., but what are other partisan activities or partisan conduct? What are you getting at there?

Noon

Conservative

Mark Adler Conservative York Centre, ON

What is covered by this bill is clearly partisan positions as they are defined within the bill.

Noon

NDP

The Chair NDP Pat Martin

You also make reference to “activity and conduct” elsewhere in the bill but there is no such—

Noon

Conservative

Mark Adler Conservative York Centre, ON

That follows from holding those partisan positions. For example, if you're an electoral candidate, it follows that you are running for office. If you are president of a riding association, that's clearly a partisan activity.

Quite frankly, at the end of the day, it's really up to the head of the agency to decide, on reference from a member of Parliament, whether or not that activity is considered to be partisan.

Noon

NDP

The Chair NDP Pat Martin

Okay.

Sadly, we don't have any more time to examine this bill at this stage. Thank you for coming before the committee, Mr. Adler. We appreciate it.

We're going to suspend briefly and invite our next round of witnesses.

Noon

NDP

The Chair NDP Pat Martin

Ladies and gentlemen, we'll clear the room of media and reconvene the meeting.

Mr. Angus.

Noon

NDP

Charlie Angus NDP Timmins—James Bay, ON

At the outset, I'd like to welcome our guests, the Auditor General, Elections Canada, and Ms. Dawson.

I think this is a very good beginning to this set of hearings, because these people have the trust of Canadian voters. I want to thank them and welcome them to our committee.

February 25th, 2014 / noon

NDP

The Chair NDP Pat Martin

That's not really necessary, Mr. Angus.

As the chair, I was going to welcome our witnesses to the committee, but thank you for your enthusiasm.

We appreciate the three officers of Parliament who have made themselves available on very short notice to come and discuss Bill C-520. As committee members, we have received written correspondence signed by seven agents of Parliament, and we appreciated that input as well. We have one thin hour to deal with the situation, unfortunately.

We'll welcome your opening remarks as you see fit to use them up to a maximum of perhaps 10 minutes each, or as a combined effort, as you see fit.

Mr. Mayrand, Madam Dawson, and Mr. Ferguson, welcome.

The floor is yours.

12:05 p.m.

Michael Ferguson Auditor General of Canada, Office of the Auditor General of Canada

Mr. Chair, thank you for this opportunity to present my perspectives on Bill C-520.

At the outset I would like to assure you that my employees and I are committed to carrying out our duties in a fair, independent, impartial, and non-partisan manner. Along with several other agents of Parliament, I recently signed a letter that emphasized this point.

The letter also makes several observations of a technical nature regarding the interaction of the provisions of this bill with the current regime that governs political activities of public servants. The letter provides a description of aspects of the bill on which we would appreciate some clarification.

Section 6 of the bill requires an agent of Parliament who intends to occupy a politically partisan position while still holding his or her position as an agent of Parliament to make a written declaration of intent as soon as possible, before occupying the political position. Currently, under section 117 of the Public Service Employment Act, I am not permitted to engage in any political activity other than voting in an election. The situation described in section 6 could never occur, and I would not like people to get the impression by reading the bill that it could.

Other aspects of the bill may produce unintended consequences.

Under the current legislation, I appoint employees to my office in accordance with the Public Service Employment Act, PSEA. Employees are hired based on the merit principle.

Subclause 7(1) of the bill requires an applicant for employment to provide, as soon as possible in the hiring process, a declaration as to whether or not they have occupied a politically partisan position in the past 10 years. Consideration of prior politically partisan positions would not be permitted to influence the current selection process.

Under the PSEA, if an individual had declared prior politically partisan positions, and for reasons of merit was unsuccessful in obtaining a position, that individual could challenge the decision not to hire on the basis that his or her declaration influenced the hiring process. Moreover, the publication requirement of this personal information could discourage individuals from seeking employment with our office.

Clause 9 of the bill states that I may examine allegations made by a member of Parliament or a senator that an employee has carried out their duties and responsibilities in a partisan manner. If an examination of such allegations is carried out, a report must be sent for tabling in both Houses. The proposed examination power would benefit from clarification as to what constitutes partisan conduct and the threshold of evidence required to request an examination.

Under the PSEA, the Public Service Commission investigates allegations of political activity on the part of public servants. Political activity is defined very broadly in that act, and in my view, it could include partisan conduct.

In addition, there is no confidentiality mechanism to protect the reputation of the employee whose conduct was examined and found to be appropriate and non-partisan. It may be worthwhile to consider whether the investigation provisions of the PSEA are a more effective method for independent oversight. Given the apparent overlap with the PSEA, a witness from the Public Service Commission would be of assistance in the committee's deliberations.

There is a third aspect of this bill that I would recommend to the committee for further study, and that is its impact on the privacy of individual employees. I have mentioned some possible consequences in connection with hiring and investigations. I would now like to touch on other possible impacts.

Upon coming into force, the law requires written declarations from all employees in our office as to whether or not they occupied a politically partisan position within the 10 years prior to joining the office, and a declaration from those who may have occupied such a position that they have been carrying out their employment duties in a non-partisan manner. The fact that some employees would be required to make a declaration could have adverse consequences. The public disclosure of this past activity also causes the individual's current place of work to be known. Furthermore, over the past 10 years, the employee may have changed political allegiance. Factors such as these may give an employee incentive to withhold information about past political activity rather than to disclose it. For these reasons, employees may be reluctant to make a declaration.

The bill applies to all employees no matter what duties they carry out. The committee may wish to consider whether the objectives of the bill could still be met by restricting its application to those senior managers and employees with authority, influence, and supervision over the work of the office.

In closing, I'd like to say a few words about the processes and declarations that are currently required of the employees in our office to ensure they comply with professional audit standards, our code of values and ethics, and current legislation.

Each year, every employee completes a Conflict of Interest Declaration, acknowledging, among other things, the obligation to act in a non-partisan, independent and impartial manner. At the start of every audit, every individual who participates in the audit must complete a comprehensive declaration of their independence. Any cases that give rise to a real or perceived threat to independence are reviewed by senior managers and our office's specialists for values and ethics.

Mr. Chair, I hope that these comments will be of assistance to the committee as it undertakes its review of Bill C-520. I would be happy to answer any questions you may have.

12:10 p.m.

NDP

The Chair NDP Pat Martin

Thank you, Mr. Ferguson. That's very helpful.

Next we'll hear from the Chief Electoral Officer, Mr. Marc Mayrand.

12:10 p.m.

Marc Mayrand Chief Electoral Officer, Elections Canada

Thank you, Mr. Chair, for inviting me to address the committee today.

Let me start by saying I am in agreement with the remarks that have just been made by my colleague, the Auditor General. He has identified several important aspects of Bill C-520 that I also believe are worthy of careful review by this committee.

I can assure you that I too, as an agent of Parliament, am deeply committed to the principle and the practice of political neutrality. This principle is fundamental to the administration of the Canada Elections Act and is absolutely central to the performance of my mandate.

Each agent of Parliament is unique. In my case, given my role of administering electoral events and regulating the activities of political participants, the need for political neutrality is particularly acute.

Indeed, the Elections Canada Code of Conduct imposes on employees an obligation to observe strict political neutrality at the federal, provincial and territorial levels, not only in the exercise of their functions and duties, but also in their activities outside work. Letters of offer to employees detail these conditions of employment regarding political neutrality. These stringent requirements reflect my conviction that everyone working at Elections Canada, no matter their position, must remain and be seen to remain neutral at all times. The objective of maintaining neutrality in the organization would not be achieved by allowing even a small number of employees to engage in political activity, no matter how limited, at the federal, provincial or territorial level.

I believe it is consistent with what Canadians would expect of the people who work for the country's national electoral body. We can take no risks in threatening the confidence of electors and political stakeholders in the administration of the electoral process. Similar conditions have been placed on employees at Elections Canada since long before I became Chief Electoral Officer, and to my knowledge, there have never been any concerns expressed inside the organization about this.

In light of our code of conduct, the restrictions on political activity imposed by Bill C-520 would not have much effect on Elections Canada employees, with one significant exception. The obligation in clause 11 of the bill to publish on our website the past “politically partisan positions” of staff over the last 10 years would be new. I see this unnecessary requirement as a serious infringement of the privacy of employees and incompatible with the principle of merit when hiring staff.

It is unclear from my reading of Bill C-520 whether it is intended to apply to contractors with agents of Parliament as well as employees. The bill refers to a person who “works” or “occupies a position” in the office of an agent of Parliament.

In any event, in cases where Elections Canada directly procures services, and where delivery of those services might raise a reasonable concern regarding political impartiality, contractors are subject to an obligation to avoid political activities for the term of the contract. In fact, suppliers who cannot certify their ability to adhere to this obligation will not be issued a contract.

Finally, you should be aware that key election officers are also severely limited in their ability to engage in political activity. The Canada Elections Act itself makes it an offence for a returning officer to engage in “politically partisan conduct”. Of course, this is not surprising.

In addition, clause 5 of the code of professional conduct for election administrators restricts returning officers from engaging in political activity at the federal, provincial, and municipal levels. This is different from employees and contractors, who are not restricted from political activity at the municipal level, but in light of the work being conducted by returning officers locally, I felt it was important to add this additional restriction for them.

As a last point, I would also like to comment on clause 9 of the bill, which would allow members of the Senate and House of Commons to make a complaint regarding political behaviour on the part of my staff. The Auditor General already touched on this provision in his remarks. It should be noted that even without this bill anyone who wishes to make a complaint about political activity on the part of those who work for an agent of Parliament can do so. There are mechanisms in place to deal with such complaints. For my part, I would like to underline my accountability for the conduct of those in the organization I run. Should there be any concern regarding the conduct of my staff, it is my role to appear before Parliament to account.

That concludes my introductory remarks, Mr. Chair. I have also provided the clerk copies of the Elections Canada code of conduct, as well as the code of professional conduct for election administrators. I would be happy to take your questions.

Thank you.

12:15 p.m.

NDP

The Chair NDP Pat Martin

Thank you, Mr. Mayrand. Yes, the code of conduct has been circulated to committee members.

Next, we welcome the Conflict of Interest and Ethics Commissioner, Ms. Mary Dawson.

12:15 p.m.

Mary Dawson Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner

Mr. Chair, thank you for inviting me to appear before you today. I am pleased to contribute to the committee's study of Bill C-520.

During my opening remarks, I will share some general observations, with reference to relevant practices in my own office. I will also comment briefly on several specific elements of the proposed legislation.

Unlike the others covered by Bill C-520, my office is part of Parliament itself. As an officer of Parliament, my office is a separate employer that is not subject to the Public Service Employment Act. It is for this reason I'm not a signatory of the letter which I believe has been submitted to the committee by the others. However, I do agree in large measure with the views they have expressed.

Although Bill C-520 does not appear to have been introduced in response to a problem that requires fixing, there is certainly no argument to be made against greater transparency. In fact, I am a strong believer in transparency, as I have noted on many occasions, including in previous appearances before this committee.

I am satisfied that given the checks and balances already in place, my office could withstand any scrutiny contemplated by Bill C-520. However, I do note there could be some technical challenges that might arise from the way the bill is currently structured, and I will briefly refer to some of them later.

I acknowledge the importance of non-partisanship. I believe that non-partisanship is essential to the ability of all agents and officers of Parliament to fulfill their mandates. They and their staff must perform their duties in a fair and politically impartial manner and be perceived to do so. I note that non-partisanship is likely already being taken into account in the appointment process for agents and officers of Parliament. The Conflict of Interest and Ethics Commissioner, for example, is appointed under the Parliament of Canada Act. That act requires that the Governor in Council consult with the leader of every recognized party in the House of Commons, and the appointment must be approved by resolution of the House of Commons.

Indeed, the principle of non-partisanship is one that underlies my approach to my role. As is the case with the others covered by Bill C-520, I have implemented a code of values and standards of conduct in my office, again, copies of which I have tabled with the committee. This document specifically and extensively addresses political activity and impartiality. It notes the importance of employees maintaining their independence from political interference and discharging their responsibilities in an impartial way. It also recognizes the effect that employees' actions and comments outside the office could have on the reputation of the office as it relates to impartiality and independence.

In addition to prescribing desired behaviours and actions, the code of values and standards of conduct for my office specifically prohibit certain actions. Employees may not participate in any political activities. They are not allowed to share publicly any political allegiance during election campaigns, for example, by posting lawn signs. Also, they must refrain from making any written or verbal comments, including in the media or on social networks, that favour or could be perceived as favouring one political party over another.

During the more than six years that I have been commissioner, there has never been a case where the work of an employee in my office has been influenced or has appeared to have been influenced by political opinions or beliefs. If such a case were to arise, it would contravene our standards of conduct and the employee would be subject to disciplinary measures up to termination of employment.

A few of my employees have previously worked in political offices of various party affiliations. As professionals, however, they perform their official duties and responsibilities in a strictly non-partisan manner. I also note that their knowledge and experience of the workings of Parliament have been very helpful in fulfilling their duties at the office. It would be an unfortunate consequence of any initiative if it became an impediment to qualified people taking on positions in the office of an officer or agent of Parliament.

As I mentioned earlier, I believe there are changes to the bill that should be considered. For example, it does not establish a clear threshold for launching an examination, such as requiring the person making the request to set out the reasonable grounds for the belief that the staff member conducted his or her duties and responsibilities in a partisan manner. Nor does it provide a process by which an employee has the right to respond to the allegation being made. As well, the bill does not define what constitutes partisan behaviour. It does not set out provisions for conducting an examination in private.

I note that both the Conflict of Interest Act and the “Conflict of Interest Code for Members of the House of Commons” contain such provisions, ensuring the application of principles of procedural fairness and natural justice.

Finally, the bill is very broad and applies equally to all employees regardless of level or whether they are in a position to make or influence decisions.

In short, while I have no issue with the principle of transparency that underpins the bill, I'm not convinced that the bill is necessary. I believe that the current draft could be improved. I hope, if this bill is enacted, that the final version clarifies these matters.

Again, I thank the committee for this opportunity to discuss Bill C-520.

Mr. Chair, I look forward to answering your questions.

12:25 p.m.

NDP

The Chair NDP Pat Martin

Thank you very much, Ms. Dawson, for the very helpful presentation.

We'll go right to questioning. The first round goes to the NDP, Mr. Charlie Angus.

You have seven minutes, Mr. Angus.

12:25 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

It's a real honour to have the three of you here today.

In order for those who are watching back home to understand what we're talking about, your collective responsibility is to ensure accountability from the elected members of Parliament and from the bureaucracy in this country and to ensure, Mr. Mayrand, in your case that the electoral process is conducted in a fair manner.

Mr. Adler told us that it was “imperative”—he used that word a number of times—to bring this bill forward. We asked him if he could find any examples of any partisan abuse, but he was unable to answer that.

Are any of you aware of any allegations that would warrant this bill against any of your staff or any of the agents of Parliament? Has this issue been raised prior to this bill?

12:25 p.m.

Auditor General of Canada, Office of the Auditor General of Canada

Michael Ferguson

There have been no allegations in the case of the Office of the Auditor General.