Government Operations Committee on March 6th, 2008

[Jeremy DeBeer]

I agree with the first part of your remarks, but in the end it isn't true that the decision can be unfair or arbitrary. The decision needs to be reasoned, and if it isn't, there will be a judicial review and the courts can reverse the decision of the Governor in Council.

[The Chair, Liberal, Diane Marleau]

Thank you.

Mr. Albrecht.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Madam Chair.

Thank you, Mr. DeBeer, for being here today.

I just want to follow up a bit on these terms that you've used, and that we've heard before and I am not familiar with at all. In terms of the Governor in Council's power to remove someone, you used the term “at pleasure and good behaviour”. Could you just outline for me what the criteria are to determine whether it's at pleasure or good behaviour? Is it based on tenure? Is it based on the level of the appointment or a combination of the above? What are the criteria that determine those two differences?

[Jeremy DeBeer]

It will be specified in the legislation that empowers the Governor in Council to make the appointment.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

So it will vary across public office-holders?

[Jeremy DeBeer]

Absolutely correct. For example, members of the Copyright Board of Canada hold their appointments during good behaviour. The members of the Canadian Nuclear Safety Commission hold office during good behaviour. If I'm not mistaken, the head of VIA Rail would hold office at pleasure.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

And the rationale for the differences is simply based on specific legislation?

[Jeremy DeBeer]

That's correct, which presumably Parliament has considered and enacted for some reason. One likely reason would be the degree of independence Parliament decides the office-holder should have from the executive branch.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

So would all crown corporation CEOs be on “good behaviour”?

[Jeremy DeBeer]

I don't know the answer to that question.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Just to follow up, then, in terms of the “procedural fairness” that you indicated was part of the picture, you indicated there needed to be notice given, that the person needed to have the opportunity to be heard, and that reasons for the removal needed to be given. But then you said something about the method being variable. So there's a huge degree of discretion and variability in terms of even the “procedural fairness” definition.

[Jeremy DeBeer]

Precisely, and how much procedural fairness is due will depend on the various factors I outlined: the gravity of the decision, the nature of the decision-maker, and the processes.

Perhaps one of the easiest concrete examples is whether the right to be heard includes the right to an oral hearing or a meeting or simply constitutes the right to make written submissions.

The duty to provide reasons can also be variable. How specific do the reasons need to be? Do they need to be just general--“You've lost the faith of the Governor in Council”, or “You did X, Y, and Z”? That is also variable.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

When Mr. O'Sullivan was here before the committee, he pointed out that there are roughly 3,000 Governor in Council positions that are established in legislation, and he commented about the lack of consistency across the enabling legislation. You commented as well today, in response to a question, that Parliament could decide to have very specific legislation zeroed in on a specific appointment or could do a broader mandate across a number of different appointments.

In your opinion, would Parliament be wise to have a more broad general application that would fit multiple agencies, or do you think this piecemeal approach to establishing the enabling legislation is a better one?

[Jeremy DeBeer]

If Parliament did decide to retain some supervisory role over the relationship between the Governor in Council and an office-holder, my personal opinion is that it would be preferable to do so through legislation that has blanket application rather than a piecemeal approach.

The reason I say that is in part because as I understand it, the Federal Accountability Act provides a process for Parliament to play a role, or at least there is a consultative mechanism on the appointment side of things. So it may be sensible to establish a corollary in terms of the removal process. I think a piecemeal approach would be haphazard and potentially irrational and very difficult to monitor and implement.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

It would seem to me too that if there are significant numbers that are being challenged, the whole process could get bogged down if there is a piecemeal approach to making all of these different legislative mandates.

I'm going to share my time with Mr. Kramp.

Thank you.

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

Thank you, and welcome, Mr. DeBeer.

I am left wanting in your explanation. I think we need to extrapolate a little bit further. In comparing the capacities of the legislative and the executive branches, you stated that in your opinion the role of Parliament is rather limited.

As a parliamentarian, I'd like to more clearly define my area of capacity or capabilities. So could you give me an idea of what role Parliament and members of Parliament can or should play, the parameters?

[Jeremy DeBeer]

Yes. I didn't intend to minimize the role of Parliament or parliamentarians. In fact, to the contrary, the role of Parliament is absolutely fundamental. Without authority delegated from Parliament, the Governor in Council can do nothing.

The limitation, however, is that Parliament's role in the current system is limited to the front end. So when Parliament decides that we need a privacy commissioner or a member of the Veterans Appeal Board, the process for deciding what the terms of the appointment will be is considered prospectively. There is consideration of whether the office should be during pleasure or during good behaviour, for how long, whether the office-holder should be, for example, a sitting or a retired judge, or full-time or part-time. Parliament specifies all of this in the legislation. Then it's for the Governor in Council to go and execute Parliament's instructions, and it's at that point where, metaphorically, the torch is passed.

So Parliament has an enormous role to play, but it's a front-end role under the current system. Essentially, that's for reasons of administrative efficiency. A government is elected to carry out the will of Parliament. Parliament, in a welfare state, enacts legislation to implement various different social programs, but it can't do so without delegating that authority to somebody. So the question is really whether, once you've delegated the authority, you want to continue to play a supervisory role. Under the current system the answer is typically no, but there's nothing stopping Parliament from changing its mind on that, either on a wholesale basis or on an individual basis.

[The Chair, Liberal, Diane Marleau]

That's it. Thank you.

Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you, Chair.

Thank you to our guests, who provided a very succinct overview of the issue and the dilemma.

Speaking of dilemmas, listening to you reminded me of a bit of Canadian history, and you probably are somewhat versed in Canadian history. It was Lord Elgin's dilemma—you remember what that was about—at the point of responsible government. Lord Elgin's dilemma was whether or not he would sign off a bill that was provided to him from the legislative branch.

I'm giving that example for my friends in the Conservative Party because they have Lord Elgin's dilemma in front of them. Lord Elgin's dilemma for them is the Accountability Act, and in legislation we have the public appointments commission. At everything you said today, I kept on nodding and then looking to the legislation. That isn't something we have to contemplate; it's something we have at the front end.

I really appreciate your comments about how that might be used, maybe at the other end when things happen. But where I come from, it's always important to prevent the dilemmas we have in front of us, like what we've seen most recently in the case of the nuclear agency.

I'm just assuming everyone has read this legislation at this committee, on the public appointments commission. I have to say I'm a little saddened that every time this is brought up the government says, “Well, we had our guy and you guys said no.” Let's get over that and get on to good public policy and what's in the legislation and enact it.

In this legislation, Bill C-2, the cornerstone of this government, the Accountability Act, it asks for the government to set up a public appointments commission. In it, it says appointments should be based on merit. We haven't seen that in this town for a long time. This government has a hissy fit because it didn't get what it wanted with the person who was named by the Prime Minister before the act was passed.

So give me a break when you say, “Oh we were going to do it, but they didn't allow us.” It's in legislation. It says, “to audit appointment policies”—this is what it says in the legislation as to what the public appointments commission should do—“and practices in order to determine whether the code of practice that is aforementioned is being observed”; to ensure that “public education and training of public servants involved in appointment and reappointment processes regarding the code of practice” is put in place.

It talks about the commission itself—and we're getting the spin lines now from the staffers here—that it makes sure it's under good behaviour. I'm glad you underlined good behaviour. I don't want the pleasure, because we've seen what happens at pleasure.

Before my Liberal friends jump on this, the reason why we had the Accountability Act and the public appointments commission was because of the smell and whiff of scandal that came from their government. So we have a crisis. My concern is that this government is going to do the same as the previous government and they're going to take Lord Elgin's dilemma and not do the responsible thing. Lord Elgin signed the bill, by the way, the Rebellion Losses Bill; we know that.

This government seems not to be going to honour Lord Elgin; it seems to be looking the other way.

I want to ask you what you think of the public appointments commission proposal.

[Jeremy DeBeer]

What do I think of the public appointments commission proposal? I think it's a potentially viable solution to the dilemma, although it strikes me as somewhat odd that there would be all this process and input into the appointments end of things without any input into the removal. It strikes me that unless you extend the scope of this legislation to governing both the appointment and the removal of Governor in Council appointees, public office-holders, all of the good intentions and everything that might be positive within the legislation could be thwarted by a decision made by the Governor in Council to remove the office-holder.

[Paul Dewar, NDP, Ottawa Centre, ON]

One of the things in the legislation is that you would have appointments based on merit and good behaviour—this is for the public appointments commission itself—and that there would be a fixed term of five years.

In terms of appointments themselves, do you think this practice that is assigned to the public appointments commission could and should be assigned to public appointments in general, if that's a way to deal with the dilemma you're providing us?

[Jeremy DeBeer]

The limited term is something that you see very commonly in various different appointments. Sometimes the terms are renewable infinitely, sometimes the terms are renewable once, and sometimes they're non-renewable.

To be totally frank, I think the consideration in assessing whether the term is renewable or non-renewable is slightly different from deciding whether the terms should be during pleasure or during good behaviour. Typically the purpose of putting a limitation on the time during which an office-holder serves facilitates the rejuvenation of the institution, the injection of fresh blood; you want people to turn over every five or ten years, or whatever the case may be, whereas the issue as to whether the appointment should be at pleasure or good behaviour really relates more to the independence of the institution from the government of the day.

I wouldn't think it would be wise to categorically say that every public office-holder should be appointed for five years and that's it, because there may be reasons—

[Paul Dewar, NDP, Ottawa Centre, ON]

As long as you have good behaviour, is what you're saying.

[Jeremy DeBeer]

I think that's the key, the good behaviour.

The at pleasure appointment--I won't saying anything else about that for now.

[Paul Dewar, NDP, Ottawa Centre, ON]

It's a political thing, and basically it gives the government a way to appoint their buddies. But I can say that--you don't have to, and you really can't.

If you look at the public appointments commission as a policy tool in the tool kit, would you agree that it's an important first step to have a process—you don't have to comment on whether it's this one—in other words, that it's merit based, there's oversight, there are some criteria as to what the job is about, to have a group that is other than the PMO looking at appointments?