Information & Ethics Committee on April 23rd, 2021

[Greg Fergus, Liberal, Hull—Aylmer, QC]

A point of order, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

Is it on the same point of order, Mr. Fergus?

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Yes, but I interpret the situation differently.

[The Chair, Conservative, Chris Warkentin]

Mr. Fergus, I'll hear your submission on the point of order.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you very much, Mr. Chair.

I think that my colleague's remarks are quite relevant because she is indicating that the premise of Mr. Fortin's motion is indeed not valid. That's why she's raising this issue.

Mr. Chair, whether you agree with me or Mr. Fortin, one thing is certain: Mrs. Shanahan's comments are directly related to the motion, which responds to your request.

[The Chair, Conservative, Chris Warkentin]

I believe she's on the subject now more than she was earlier in the meeting. I'm going to again remind the honourable member to be aware that her colleagues are anxious to move to a vote. However, I'll allow her to continue.

Ms. Shanahan.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Thank you, Mr. Chair.

In this context, my comments are quite relevant, because we're talking about point 3 of Mr. Fortin's motion. The employee's duty to answer to a committee is always related to that of the minister, and the minister is responsible for that. Since the minister is responsible for answering to Parliament, it is part of the minister's accountability obligations. The minister can delegate certain matters to an employee, and this has been a long‑standing practice in the House.

It is recognized that for employees who have the status of political staffers, it is even thornier. These people, who may hold positions such as political advisor, may communicate with committee stakeholders and provide policy advice. At the end of the day, these people are employees. They can be fired at any time like any employee. There are rules that are followed, and there is always a disciplinary system in place. At least that's my understanding. But these employees arrive on the job one day and can leave at any time. That's why the Prime Minister entrusts that responsibility to the minister, who is an elected official.

It's not just me saying this, and it's not just the Liberals saying this. In 2010, under the Harper government, Minister Jay Hill made it clear that political staffers would not appear before committees. I will quote what he said:

These employees are accountable to their superiors and ultimately to their Minister for the proper and competent execution of their duties.

Then he said:

There is a clear case to be made that the accountability of political staff ought to be satisfied through ministers. Ministers ran for office and accepted the role and responsibility of being a minister. Staff did not.

I think it's fairly clear.

I wonder if we can ask Mr. Hill to appear before the committee so we can hear his testimony. He also said the following:

Like public servants, ministerial staff are not accountable to Parliament for governmental policies, decisions or operations. Any information given by ministerial staff on these topics would be on behalf of their Minister. Moreover, unlike public servants, ministerial staff are not involved in departmental operations and are therefore not in the same position to answer questions—

[Colin Carrie, Conservative, Oshawa, ON]

I have a point of order, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

I'm recognizing a point of order from Mr. Carrie.

[Colin Carrie, Conservative, Oshawa, ON]

It's to relevance again, Mr. Chair. We're not debating the validity that these individuals were at committee.

Mr. Fortin was very clear. This was an order from the House. All we're doing is reporting these events to the House and expressing our dissatisfaction that the House's instructions were not followed through on. I find it hard to understand where the relevance is in the current argument that Ms. Shanahan is bringing forward.

[The Chair, Conservative, Chris Warkentin]

I think there is a growing agreement that the members of the committee want to debate the motion at hand.

Ms. Shanahan, I will caution that while you may be on subject material that's tangential to the issue, we are debating this specific motion, so I'd encourage you to move to debate with regard to the motion itself.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Thank you, Mr. Chair.

I will return to the fact that it is the point number three in Mr. Fortin's motion that I am discussing right now. We have said in that point number three—and I'll say it in English—“That the Committee confirms that it has not released these witnesses from their obligation to appear”. I am right on that point, in that I am discussing the role of political staff vis-à-vis the minister.

It is not for political staff to be held responsible in this way, and it's not just me that has said it. Mr. Jay Hill also spoke at length about this.

Mr. Hill has some good quotes here: “The tyranny of the opposition has turned its attention to the men and women who make up our political staff. Men and women who did not sign up to be tried by a committee—to be humiliated and intimidated by members of parliament.” I really would like to have Mr. Hill in front of this committee.

He isn't the only one to have said so. A former clerk said this as well.

Former clerk Rob Walsh testified in 2010, at this very ethics committee apparently, on this same issue, that in regard to staff, “there would be limitations on the questions that could be asked” and that “there would be some questions that should properly be directed to the minister and not to the political staff person.”

That is why I object heartily to this point number three, and I think that is something which has been discussed already by some of my colleagues.

Mr. Fortin should reconsider his motion. He should take a hard look at some points. This is in line with the understanding of the roles and responsibilities of political staffers with respect to any decision of the government or cabinet.

The Hon. Pablo Rodriguez told our committee that a bedrock principle of Canada's form of responsible government is ministerial responsibility.

This is the exercise in transparency that has been done here. We have even gone a step further. Ministerial staff have no authority to make decisions on behalf of ministers. They report to and are accountable to ministers. Ministers are accountable for their actions to Parliament.

Pablo Rodriguez put forward a quote from former prime minister Stephen Harper, as he stated in “Accountable Government: A Guide for Ministers”, “Ministers are accountable to Parliament for [the exercise of their responsibilities], whether they are assigned by statute or otherwise.... Ministers are personally responsible for the conduct and operation of their office.” Staff are not elected members of the House. They do not have the same rights and privileges as MPs, and calling staff to testify at committee is at odds with the long-standing principle of ministerial responsibility.

I know that this issue isn't important to the Bloc Québécois. We understand that. The Bloc members I know and now consider good friends tell me with pride that they will never form the government and that they have a special role. However, the Conservatives and NDP have the opportunity to form the government one day. We don't know what the future holds.

These traditions and principles are very important, and shouldn't be forgotten just to have a little partisan moment, a little “gotcha” moment, which doesn't exist anyway. Yet it keeps happening.

We know that the Hon. Pablo Rodriguez has appeared before our committee. We heard him speak to us about the case of Mr. Theis and the great concern of some members of the committee in this regard.

Mr. Rodriguez said:

In regard to the decisions on the WE Charity, our government has turned over 5,000 pages of documents to the House of Commons Standing Committee on Finance. We did this in August of last year. Regarding Mr. Theis, as the documents show, he had one interaction with WE Charity, a phone call.

It's also very important to note, because it relates to what I said earlier about the employer‑employee relationship, that the employer is responsible for everything the employee does. The employer also has a duty to know, and that's what Mr. Rodriguez shared with us when he appeared before us on March 29 of this year. He told us that, as the documents showed, Mr. Theis had one interaction with the WE Charity, a phone call.

Mr. Rodriguez added:

In fact, this was disclosed by the Prime Minister's Office itself. This should come as no surprise to anyone, many months later. According to Mr. Theis, the call lasted for about 25 minutes. WE Charity raised their ongoing work with diversity, inclusion and youth on the Canada student summer grant, as well as a proposal for social entrepreneurship. Mr. Theis asked WE how their proposal on summer grants would ensure diversity of placements, and for their part at WE, the Kielburgers expressed concern that this type of program would need to get off the ground soon.

In the discussion, in that communication, at no point were expenses discussed. Also, at no point were any commitments or assurances or advice given by Mr. Theis to WE on any subject other than to contact the officials involved at Diversity and Inclusion and Youth.

So Mr. Theis did his job, which was to connect with the various stakeholders. With all that was going on at the time, I imagine there must have been dozens, if not hundreds, of stakeholders for all sorts of programs, and Mr. Kielburger was one of them. There was a 25‑minute call, during which it was suggested that the relevant officials in the Department of Diversity and Inclusion and Youth be consulted.

That was, roughly, the testimony we had, that day, from the Hon. Minister Pablo Rodriguez. Members who are here will remember that this wasn't the only meeting, that there were two others, for two other employees. I think it was Mr. Singh who we were supposed to meet with first, and then Mr. Chin.

The same principle applied to the Hon. Minister Mona Fortier, when she came to testify. She was on screen on Zoom, and she was ready to testify along the same lines and take responsibility, as she should have. It's important to note, Mr. Chair, that you spoke to the members and that it was the members here who decided not to hear from Ms. Fortier.

That's unfortunate, because I think she was willing to tell us what she knew about the interactions of her two employees. Mr. Fortin continues to say that the committee has confirmed that the witnesses have not been released from their obligations to appear before the committee. According to Mr. Fortin, this was not enough.

Now, I want to continue on this principle of ministerial accountability. The fact that they are ministers isn't insignificant. Not just anyone can speak for anybody. As Mr. Rodriguez clearly stated, it was a decision. Also, I don't need to repeat what happened last year with the number of programs that proved necessary during the emergency period following the COVID‑19 crisis and the economic crisis. However, those who have worked in a large corporation can imagine how challenging it was for employees at all levels to continue working.

For that to happen, it was necessary to have direction and, I would even say, reassuring leadership for it to really work. The Government of Canada is arguably the largest employer in Canada. It is like a huge boat that had to be turned around at that point. It wasn't easy, but fortunately there are principles and traditions in Parliament. The situation wasn't the same as those we saw during other crises in the United States. At one point, according to a certain general, he was the one in charge.

It's not at all the same thing here. We really have a hierarchy to respect and a different way of working. It is the traditions of the Parliament that make the government, that is, it's the Prime Minister with all his ministers who lead.

As I mentioned earlier, committee members present today may have been around when Prime Minister Harper was having a difficult time. These political and partisan issues weren't just invented today. At that time, it was the government House leader, Jay Hill, who explained to the House why the Harper government wouldn't allow its political assistants to appear before committees.

As Mr. Hill said:

When ministers choose to appear before committees to account for their administration, they are the best source of accountability and they must be heard. Public servants and ministerial staff support the responsibility of their ministers. They do not supplant it. They cannot supplant it.

This statement is very important. Not only do ministers have to table a report or explain why they made a decision, but they should also be heard when they offer to testify before a parliamentary committee.

I find it regrettable that, when Minister Fortier appeared before this committee, twice rather than once, the members refused to hear her testimony. There were partisan games being played at that time to do that. We could have heard her answers.

It's not just people in the Ottawa bubble who are interested in the principle of ministerial responsibility; there are certainly people who work in the field, academics, who have a lot to say about it. The Canadian public is concerned that if the government makes a bad decision, it will find a scapegoat, some poor employee somewhere, to cover it up.

It shouldn't be that way. It's up to the government, to the Prime Minister and his ministers—because he can delegate responsibilities—to make a decision. It's the principle of cabinet solidarity that my colleague Mr. Fergus mentioned a while back, which is very important.

I don't want to quote too many other people, but when I did my reading and research, there were questions from the public about this principle, this tradition of ministerial responsibility and accountability.

Dale Smith, among others, wrote:

The Conservatives are very much aware of this fact. They encountered these very same demands to have their own staffers appear during their time in government, and they also correctly asserted that ministers are the ones who should be appearing to answer questions, and not those staffers. It is a fundamental cornerstone of how our system works, but because our parties are more interested in scoring as many cheap political points as possible, they are deliberately ignoring—

[Charlie Angus, NDP, Timmins—James Bay, ON]

I have a point of order.

[The Chair, Conservative, Chris Warkentin]

Mr. Angus, I recognize a point of order.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Since the Liberals have decided that they are going to instruct committee and not allow us to get on to things like facial recognition technology, I'd like to remind the member, who has I think been very rude from the get-go, that the issue of ministerial responsibility is something that the Liberals have already spoken about multiple, multiple times.

She's just repeating the same old story. If she has nothing new to add, can we go to a vote so we can get back to our work?

[The Chair, Conservative, Chris Warkentin]

There seems to be a hope that we can move to a vote.

Is there consensus to move to a vote at this time?

I'm seeing some positive signs, but I'm seeing some people who don't seem to want to have the vote.

Folks, I need unanimous consent to move to a vote before the speaking list is fully done.

As a reminder, Ms. Shanahan, behind you are Mr. Sorbara, Mr. Fergus, Monsieur Fortin, Mr. Carrie, Mr. Dong, Mr. Angus, Madame Lattanzio, as well as Mr. Barrett, who would like to speak.

I'm hopeful that you'll be mindful of that. I hope that we can move to a vote and dispose of this motion so we can move on to more pressing matters.

Ms. Shanahan, we'll turn back to you.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Thank you, Mr. Chair.

I find it unfortunate that some of my colleagues think we should talk about something else. I, too, would have liked to talk about something else, but the motion before us is Mr. Fortin's. It still talks about point 3, which reads, “The Committee confirms that it has not released these witnesses from their obligation to appear”.

I would like to come back to Mr. Smith's comments.

“Apparently they”—politicians, I think of all stripes—“are not too concerned about the whiff of hypocrisy that surrounds these demands (possibly because that may require a dose of shame that pretty much every politician seems to be lacking in this day and age).”

He was quite honest when he made this comment. It's a way of telling the hon. members that they should be careful with the traditions of Parliament, that they don't belong to them, that they belong to the Canadian people and that their mission is to protect them.

We're just looking after these traditions and we try to act as best we can.

I'm far from an expert in this area. I did a little research. The Treasury Board of Canada Secretariat submitted a report to Parliament. I think it was in 2005. This report was an overview of the responsibilities of ministers, officials and senior staff. I'll read it to you.

There is, in “Overview of accountability in responsible government”, the following:

Any discussion of accountability in our constitutional system—the Westminister system of parliamentary democracy—must be informed by an understanding of how the system functions and why. Although the Westminister system developed incrementally, rooted in evolving democratic values rather than an abstract or static concepts, it has deep integrity, and the roles of different players complement each other in a fine balance.

That's what's very important. I feel fortunate to be a Quebecker and to have been educated in Quebec, especially for some of my studies. I studied our history, but also the evolution of our parliamentary system and the legislative system, which is different in every province. There is common law in the rest of Canada and the Civil Code in Quebec. What is interesting, as my colleagues from Quebec know very well, is that everything is written down in the Civil Code. That kind of system has a lot of value, but in the rest of Canada, as in our parliamentary system generally, it is really the evolution of traditions that allows us to keep up with our day‑to‑day affairs.

Ministers, who together as the ministry form the government of the day, exercise executive authority in this system.

It's very important to understand that it's the government, cabinet, that has this executive power.

These ministers, who act largely through the work of a non-partisan public service, are accountable to Parliament both individually and collectively. All accountabilities in Canadian government flow from ministers' individual and collective accountability to Parliament.

Although Parliament does not exercise executive authority, it is the principal guarantor of the government's accountability, scrutinizing the government's policies and actions and holding it to account.

I don't need to describe that to the opposition members; they do it very well.

Parliament has a spectrum of tools for doing this, ranging from its role in the passage of legislation to the review and approval of public expenditure to the interrogations of Question Period.

I'm going to come back to question period a little later.

But while the specific tool may vary, the environment remains constant—that of partisan politics. Parliament and its processes are inherently political.

And there is nothing wrong with that. It's exactly the nature of partisan politics that each party presents, to my mind, a different set of options and alternatives, a different vision to the Canadian people.

The political responsibility of ministers, or accountability to Parliament, is an important element of electoral democracy. However, political responsibility is not the mechanism that ensures accountability on the part of public servants—that mechanism is managerial.

Again, we're emphasizing the fact that it's very important for ministers and the government be responsible for managing the government as a whole.

Political responsibility is also not the means of determining civil or criminal liability for unlawful conduct—that is the justice system.

If employees commit a criminal offence, there is recourse through the justice system.

I'll wrap up by saying what I have to say about point 3. I'll read it:

3. The Committee confirms that it has not released these witnesses from their obligation to appear;

I think I made it clear that this committee really had no reason to compel these individuals, who are mere employees, to appear before it. I clearly explained that the government's obligation to answer questions was met by Mr. Rodriguez, who testified before the committee. Moreover, had the committee decided to allow her to testify, Ms. Fortier could have fulfilled that obligation. That's why I'm opposed to point 3 of the motion.

Some may think that the appearance of ministers isn't important. I'll read point 4.

4. The Committee also noted the absence of the Prime Minister, who was given the option of appearing in place of these witnesses in the motion of March 25, 2021;

Again, as I indicated in my speech today, the Prime Minister has every right to delegate responsibilities to ministers. In fact, he must, because he cannot do everything.

This is indicated on page 10 of the document published in 2015 by the Treasury Board Secretariat.

This speaks to the collective responsibility of cabinet. “Collective ministerial responsibility refers to the convention requiring coherence and discipline of the ministry in deciding policy, managing government operations, and speaking to Parliament with a single voice.”

We're not talking about the Prime Minister or the ministers, but all members of cabinet, who speak with one voice. I think it's a convention and not a rule, but if a cabinet minister ever disagrees with the decisions made by the Prime Minister, that person must simply resign. We see an example of this convention during question period. I'll talk about it later.

I noticed in the report that there was a reference to political staffers. I think this is interesting information for the members of the committee.

On minister’s exempt staff, it says:

One area that merits specific mention is the appropriate role of the minister’s office in communicating and transmitting instructions to the department. In Canada, political staff (also known as “exempt” staff), while partly occupied with parliamentary and constituency work, also play an important but limited role in the operation of the department. Gordon Robertson, a former clerk of the Privy Council, described the role of the Prime Minister’s Office, which can be extrapolated to all ministers’ offices, as partisan, politically oriented, yet operationally sensitive.

The role of political staff is to provide strategic, partisan advice....

Partisan here does have the meaning that we've all come to associate with it now:

partisan questions or comments.

It's about representing your party. It's about representing the party that is in power, that is in government. That's really the only way to be transparent. It would be very deceptive if a party ran on a certain platform, saying one thing, and then did something completely different. That is not what Canadians expect.

The report continues:

...partisan advice to the minister that complements the professional, expert, and non-partisan advice that comes from the deputy minister and the Public Service at large.

Exempt staff are not part of the executive.... Accordingly, exempt staff have no authority to give direction to public servants.... Exempt staff...transmit the minister’s instructions.... It should also be noted that the minister is accountable for anything done in his or her name by exempt staff.

It is therefore the minister who must be heard.

If anyone is interested, I found that on the website for the Treasury Board of Canada Secretariat.

I mentioned earlier that this evolution of parliamentary traditions was interesting. The way the Quebec government has adopted these same traditions by adapting them to the particular reality of Quebec is also very interesting. Its approach is often forward‑thinking and points in a new direction.

Just out of personal interest, I consulted the website of the Quebec National Assembly to see if these same principles were present in the Quebec government and, yes, they are. It includes the principle of individual ministerial responsibility: “Ministers are individually responsible for the management of their departments”.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

A point of order, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

Mr. Fortin.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I don't want to repeat myself unnecessarily, but we're still way off topic. With all due respect to my colleague Mrs. Shanahan, that isn't what we're talking about.

She's trying to convince us that the order adopted by the House on March 25 wasn't appropriate. Although she may be right, the fact is that the order was adopted. The question is whether or not we report to the House that the witnesses did not appear. I know that my Liberal colleagues have a custom of hiding a certain number of items, but I don't think we should do that.

The opportunity to summon or not summon these people has passed; it's too late. The day of March 25 was completely devoted to this topic. The 338 members of the House of Commons could speak. It's over and done with, rightly or wrongly. The House of Commons decided to summon them.

Our role today is to decide whether we report their absence to the House. That's the only valid question.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Unfortunately, Mr. Chair—

[The Chair, Conservative, Chris Warkentin]

It appears to me that this is debate.

Ms. Shanahan, you have now spoken for an hour, and as you can clearly see, a sense of disorder is starting to develop as a result of our not being able to move on to additional speakers and move to the vote. Are you getting close to the end of your comments?

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Mr. Chair, I understand that it's frustrating for my colleagues. However, I did my research because I knew we'd be talking about Mr. Fortin's motion. So, with the patience of the other members—

[The Chair, Conservative, Chris Warkentin]

Ms. Shanahan, do you believe that we'll be able to move to a vote today?

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

I can't speak for my colleagues. I see that other people will speak after me. Since I didn't get a chance to speak the other day, I would like to continue my comments.