Government Operations Committee on March 4th, 2008

[Mario Silva, Liberal, Davenport, ON]

I think my concern—and feel free to comment if you wish—has to do with the perception out there that both the firing and the appointment of people tends to be very ideologically driven. If you look specifically in some areas, whether it be environment or even the legal profession, there seems to be a perception out there as of late that there might be a targeting of people who don't share the same values as the Conservative government.

I don't really care if people are members of one party or another, because in this country people are free to join whatever party they wish to. That's not a concern of mine, whether they're Conservatives or not, but to have a specific ideological bent, that does concern me.

If you look at certain events of late, there's a concern also in terms of the films one is able to censor and whether there will be types of appointments to the film board and so forth that will in fact limit the types of films that Canadians will actually be able to see.

So there is that perception out there. You can debate whether it's real or not. The question is out there and there's a real fear.

The industries are also claiming that this is a real fear as well. Government seems to be going after them as well in terms of censoring what type of material they are able to produce.

The transparency of the appointments is extremely important if we are to in fact allay those fears. What exactly would you like to do or say that could alleviate or even assure us that this is in fact not happening?

[Marc O'Sullivan]

To begin, first of all, I think when there's a transition in government, especially after one government has been in place for a very long time, there's always a tension about a new government wanting to bring in a new sense of direction, a new agenda, and new priorities, and expecting that agenda and those priorities will be reflected not only in government departments headed by ministers but also in key agencies headed by holders of those offices. There's a debate there about how far a government can go in doing so, but it's typical in any sort of major transition.

If you go back to 1957 when Prime Minister Diefenbaker came in after a long Liberal period, and then again to Prime Minister Mulroney in 1984 and Prime Minister Chrétien in 1993, these are all transitions in which you have, after a lengthy time in office for one government, a new government coming in. I think it's legitimate for that government to want to be able to steer a different course and expect those agencies that are not of a quasi-judicial nature or an independent arm's-length nature to steer that different course and put leadership in those agencies to reflect that different course. I think that's legitimate in a democracy.

My experience in two years in this government is that the prime concern is qualifications and making sure we attract qualified candidates. It's becoming more and more difficult. The pay rates for these agencies--especially for crown corporations, which are compared to their commercial counterparts in the private sector--are lagging behind the private sector. There is actually a difficulty in attracting qualified candidates, because the economy has been very strong for the past 10 years and private sector salaries have outstripped public sector salaries by a large margin.

The challenge is to find qualified people. There may be anecdotal evidence, but I haven't seen any systematic attempt to impose an ideological brand on the selection process for these appointments. Rather, it's making sure we can attract qualified people, especially for the key positions, which are the heads of the agencies.

[Mario Silva, Liberal, Davenport, ON]

There was one key position that certainly raised alarm bells for us. That was when they were trying to establish this public appointments commission and selected not a neutral person but Gwyn Morgan, whom everybody saw as somebody who was quite radical in his views. There certainly was a fear when that appointment was going to be made. I think when you're trying to establish an oversight institution like that, one that is in fact above being partisan and has incredibly far-reaching implications to all the agencies and boards and commissions of the government operation, you want to choose an individual who is above partisan politics, somebody who is going to be respected by everybody when that name is put forward.

In reality, that was not the case, and that was the reason I think it was rejected by a large percentage; it was because the individual already had some very specific views on certain minority groups and ethnic groups within the country. That was not acceptable to a large number of us.

[The Chair, Liberal, Diane Marleau]

I think your time is up. You've had your seven minutes.

[Mario Silva, Liberal, Davenport, ON]

I think I've made my point as well.

[The Chair, Liberal, Diane Marleau]

Go ahead, Madame Bourgeois.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Thank you, Madam Chair.

Good morning, gentlemen. I would like to understand your precise role. My questions may be a little simple, and I apologize for that, but I am having difficulty grasping what you mean. Could you give me examples of “during good behaviour” appointments and “during pleasure” appointments?

[Marc O'Sullivan]

Deputy ministers are always appointed during pleasure. Heads of organizations whose functions do not require a certain degree of independence are also appointed during pleasure. People are appointed during good behaviour for positions where a level of independence is required. When any kind of inquiry is involved, the appointment is during good behaviour, such as members of quasi-judicial panels.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

In your presentation you said this:

The process which Cabinet follows before it decides whether or not to remove an appointee from office is determined by the rules of procedural fairness and, where applicable, in legislation.

Can you explain what the rules of procedural fairness entail?

[Marc O'Sullivan]

Essentially, this means making sure that the person is informed that the government is considering removing him or her from office and providing him or her with the opportunity to respond. This is usually done by letter. The person is informed and asked for a reaction and an opinion on the matter. Normally, a specific amount of time for the response is allowed. Then the matter is dealt with by the cabinet, which must come to a final decision.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Is removing a person from office something you do often?

[Marc O'Sullivan]

No, it is quite an exceptional situation.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Could you give me an example?

[Marc O'Sullivan]

When a person has been too extravagant and that has led to...

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

Has that happened before?

[Marc O'Sullivan]

There was the Radwanski affair, and, before that, there was Ted Weatherill. Those cases involved lavish personal expenses. They were so egregious that the result was removal from office. There was also the influence-peddling case reported on television, on CTV. A member of the Immigration and Refugee Board was filmed by the boyfriend of a woman whose case he was handling. Essentially, he wanted to exchange sexual favours for a positive decision on her case. It was all caught on video. Actually, it was not necessary to remove that person from office because he resigned. It was perfectly clear that his actions were quite unacceptable.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

I imagine that the financial consequences—which surely there must be in any event—are less in the case of a person appointed during good behaviour.

[Marc O'Sullivan]

A number of factors come into play. It must be decided, for example, if a serious offence is involved or not. This depends on the circumstances. Or it can be a person appointed for an indeterminate period, that is to say, whose appointment has no fixed end date, and who is told that it is time to change the leadership, to move on, but for whom no other position is offered. In those circumstances, an order is issued to end the appointment that was previously indeterminate. It depends on the situation, on the time remaining until the end of the appointment.

If the person has committed a serious offence, there is no effort to offer him or her compensation. On the other hand, if the government and the appointee come to the conclusion that it is time to move on, there can be negotiations intended to come to an amicable understanding.

[Diane Bourgeois, Bloc, Terrebonne—Blainville, QC]

I understand. Thank you very much, gentlemen.

[The Chair, Liberal, Diane Marleau]

Thank you, Ms. Bourgeois.

Mr. Kramp.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

Thank you, Madam Chair.

Mr. O'Sullivan, you made one point that I think goes right to the core of where we're going with this issue. You believe it's legitimate for a government to steer a course and obviously put people in who they are comfortable with who will take the government in that direction. The most important concern, of course, is the qualifications of that individual. I think all through our history—and you've mentioned various governments—we've always had a government make decisions as such.

So this is my concern. In your opinion—and this goes right to the very crux of why we are here as a committee of government operations dealing with not a specific issue, and I'll talk about a specific issue or more than one in a second, but the generalization, the fact of whether our system is intact—is it working? Does it need amendments, or modification, or changes? In your opinion, are the acts governing the appointments or the revocation of order in council appointments consistent with the current standards for a good government and ethics, both here in this country and in comparison to any other jurisdiction you might be familiar with?

[Marc O'Sullivan]

In terms of the enabling legislation that creates all these GIC positions, there are almost 3,000 GIC positions out there that are established in legislation.

Regarding areas for improvement, you know better than I do what the legislative process is like and how bills get amended in committee and how the bills will change in the course of adoption in the House of Commons. There is one thing that is evident to me, which is that there's a lack of consistency across all this enabling legislation. You would think that in a structure as big and complex as the Government of Canada you would have templates. You would have, say, 12 types of organizations, and if it's this type of organization, this is what the appointment provisions look like. It would all be pretty well set out in advance and you'd have a clear and coherent picture of how to proceed. But because legislation evolves and drafting techniques evolve, there's a certain inconsistency in how enabling legislation is drafted all across the board. That's something we have to struggle with, and we have to figure out and interpret the provisions and ensure that we're proceeding in a consistent manner.

The important thing is that I think the overall framework is a good one in that it provides the necessary indications of qualifications. When a qualification is absolutely required for a position, it will oftentimes be set out in the legislation. It will say that the person must have this as a qualification. In some instances, legislation will provide that certain groups have to be consulted. For example, for port authorities, users have to be consulted for a certain number of the positions. So you have provisions like that.

So I think that overall framework is good, and I think it provides the necessary indications of specific requirements, while at the same time leaving enough discretion for the government to try to manage this effectively. For me it's a process of continuous improvement. For example, we want to have open selection processes for a growing number of positions. We're focusing on the heads of agencies. There are certain agencies out there that run qualification processes, and we want to extend that and improve them. We have a website. People are apprised of openings for government positions on the website. We want to make that website interactive. We want to improve it. So it's a matter for us to keep improving it as we go along.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

Have you found this particular government has dramatically changed the process compared to all the governments before them?

[Marc O'Sullivan]

I've only been working in the appointment secretariat since January 23, 2006, purely by coincidence. So I haven't seen how previous governments have operated. If you look at the number of appointments, in fact this government has been making fewer appointments than were made in the past. I look at it in terms of operations and ask whether we are filling vacancies fast enough and keeping agencies fully operational. So I would like to push for a greater number of appointments, but I guess when the government makes a huge number of appointments it then gets criticized.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

Thank you.

What I will come back to, of course, is getting started on the right foot. You mentioned the prime concern of any appointment process or individual being qualifications. I note that my opposition members don't like us to go down this path, but when a gentleman's name was put forward for the director of public appointments, Gwyn Morgan, at that particular time I took some serious offence to my colleague across the floor, Mr. Silva, actually naming Mr. Morgan as a radical. I find that literally unbelievable. Here we have a gentleman whose credentials speak for themselves. He's CEO of the year in Canada. He's recognized not by government but by his peers as one of the most capable CEOs in the history of this country. He's recognized not only in this country but internationally. He offered to take the job for $1.

As you mentioned, it's very difficult to get qualified, capable people to step forward sometimes and be involved with the public purse when their options are so much greater in the private sector, which this gentleman's obviously are. Yet I was on that committee and we were listening to the testimony, and literally I could not refute the man's capacity anywhere. His capability demonstrated a level of humanity that most people didn't even know he was associated with. He had a tremendous amount of personal generosity, not only to employees and employers but to the general community as well. He demonstrated to me, as maybe almost the prime element of a perfect candidate, in addition to his capacity and qualifications, a complete love of country and a passion and a commitment to serve. Yet in this committee we really got started off on the wrong foot, because this then became a partisan issue, unfortunately. We then, in the judgment of the opposition, deemed this individual not acceptable. To defame a person of that integrity and character, honestly, it blew me away. I do want that on the record.