Government Operations Committee on May 15th, 2023

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

Several parts of his definition he has invented for this purpose as opposed to relying upon already well-travelled, understood principles in the existing legislation. There are three or four times.... What is “public interest”, then, in that definition?

This is why, when we start getting into the weeds, it's much better, if we can, to stick to existing legislation, where we know what the definitions are, as opposed to inventing something new. I think that will lead us down the garden path, in a sense.

[The Chair, Conservative, Kelly McCauley]

Could you move your microphone a bit closer to you?

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

I'd be happy to do so.

[The Chair, Conservative, Kelly McCauley]

Thank you, Mr. Fergus.

Go ahead, Mr. Garon.

[Jean-Denis Garon, Bloc, Mirabel, QC]

Besides the fact that I think we're ready to vote on the amendment, the current definition of wrongdoing in the act includes the contravention of an existing act, including the Conflict of Interest Act.

The Liberal Party is proposing two amendments. The first would remove the reference to political interference from the bill, and that would weaken the bill, no matter what members say. The second would include the Conflict of Interest Act. All BQ‑1 does is enhance the bill, since the existing definition in the act includes the contravention of any existing act, including the Conflict of Interest Act.

I'm not sure whether the committee will be able to settle the matter through debate, Mr. Chair, but on our side, we are ready to vote.

[The Chair, Conservative, Kelly McCauley]

Shall BQ-1 carry?

[Stephanie Kusie, Conservative, Calgary Midnapore, AB]

I'd like a recorded vote.

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

I hate to do this, because I want this to be done in a collaborative spirit, but I really do think we'll be creating a difficulty here, Mr. Chair, in terms of the definition, by adding a new legal definition. I'm not certain we will get to the point that Mr. Garon truly wants to get to.

I don't know if there is an opportunity to ask a question of our officials from TBS, or ask our officials—

[The Chair, Conservative, Kelly McCauley]

At this point, they are not offering anything, but perhaps our witnesses could weigh in.

This is specifically about having this motion pass with one definition, with an amendment to be discussed later...but not necessarily a changed one from the Liberal amendment.

[Mireille Laroche, Assistant Deputy Minister, People and Culture, Office of the Chief Human Resources Officer, Treasury Board Secretariat]

Could you please repeat that? I'm sorry. It's only BQ-1 and not....

[The Chair, Conservative, Kelly McCauley]

You can go ahead, Mr. Fergus, but I believe the question is this. If we have one definition here under BQ-1, does it conflict with another definition in another amendment that hasn't passed yet later in the bill?

Mr. Fergus, do you wish to clarify?

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

Sure.

The question I would ask is this. Is it better to use an accepted definition for the purposes of coming to an understanding of what political interference is as opposed to inventing a new definition?

[Mireille Laroche]

I'll leave it up to the committee to choose the definition, but there are a number of definitions. As mentioned, the Conflict of Interest Act has a definition, but so does the Public Service Employment Act.

Therefore, depending on how the various acts are used, the definition is usually understood as having a particular scope. Having definitions is very important in order to make sure that the commissioner, chief executive or the person responsible in the department can apply the definition in a practical way that achieves the intended purpose.

[The Chair, Conservative, Kelly McCauley]

We'll have Mr. Housefather and then Mr. Garon.

Go ahead, Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you.

I want to understand from the witnesses... My understanding is that political interference should probably be left defined by regulation, because we have to make sure it's both consistent and objective. There's one part of this definition that I find quite troubling.

For example, look at (i):

(i) to apply a law not according to the intention of Parliament but according to some other interpretation preferred by the person so influencing or directing,

I would think that is incredibly subjective. There are probably 10 people who would offer 10 different interpretations of what Parliament intended laws to mean sometimes, and that becomes the subject of all kinds of litigation.

Do you believe this is an objective component of a definition if you look at (i)? Would we be best advised to do what I think a further Conservative amendment does, which is define this by regulation, think it through and have an objective definition consistent with other laws?

[Mireille Laroche]

Building upon the previous response I gave, in order to have a practical or functional definition, we need precision in what it means.

I will agree that with some definitions, and even interpretations at times of different laws and practices, we look at what the intent is behind certain policies and programs. The advantage of having a regulation is twofold. It allows further elaboration, and it also allows for consultation, so people can actually comment on it to make sure it meets the intended outcome that Parliament would be seeking.

[The Chair, Conservative, Kelly McCauley]

We'll have Mr. Garon and then Mr. Fergus.

[Jean-Denis Garon, Bloc, Mirabel, QC]

I have a question for the experts we have with us.

Are there references to the intention of Parliament in other laws or legal regimes that have resulted in the courts or administrative tribunals having to rule on that intention, to ensure that the law stands up well and keeps pace with the times?

[Mireille Laroche]

Sorry, but what was your question?

[Jean-Denis Garon, Bloc, Mirabel, QC]

My understanding is that the courts, administrative tribunals and other decision-making bodies have had to rule on Parliament's original intent as referenced in laws or regulations. Can you tell me whether that is indeed true?

The Public Service Employment Act includes a number of definitions, and in some cases, they aren't very clear. With all due respect to Mr. Housefather, whom I hold in high regard, I would remind my fellow members that a regulatory definition doesn't necessarily ensure any more clarity. In many cases, the courts have had to clarify, in a number of ways, definitions as they apply in practice, including in connection with the Public Service Employment Act and federal labour law. Is that an accurate statement?

[Mireille Laroche]

Thank you for your question. I'm actually not a lawyer, so I wouldn't want to venture an answer. I will say, though, that the courts do have to interpret legislation in applying the law and obeying the spirit of the law as intended by parliamentarians.

[The Chair, Conservative, Kelly McCauley]

Mr. Fergus, please go ahead.

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

Is there a compromise solution here? I'd be interested in hearing from my colleagues across the table. Looking at CPC-1, it would amend clause 3 but would allow for regulations to be prescribed to ensure we can get that going.

Might that be a solution there?

[The Chair, Conservative, Kelly McCauley]

If I can interject, CPC-1 will not move forward if NDP-3 or NDP-4 go forward. Those two have to be voted on first before we can get to CPC-1 and G-3.

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

What about CPC-3, then?