Public Accounts Committee on June 11th, 2009

[Kevin Lynch]

Let me go to your points. I think we're all in agreement that the mandate of this audit was on process and was to understand how the appointments process for Governor in Council is working.

Let me give you an example, if I can, from my letter to you. It's at the bottom of the first page. The concern we raised was that the audit report included in its analysis of vacancies two organizations that were actually under mandate review by the governor and Government of Canada. Ministerial discretion was actually exercised to decide what they wanted to do with the mandates of those departments. That's not a process issue about whether the process is transparent and what have you. The government was deciding whether for those two or three, which are referenced in the report, they should change it and were holding in abeyance decisions on appointments during that period of time.

This is an example--as I both indicated in my letter and said in my remarks--of elements concerning which we thought the audit strayed from the process per se.

[The Chair, Liberal, Shawn Murphy]

I have just one more question, and we will have to move on, Mr. Lynch. This gets into the Public Appointments Commission.

This is very elaborate. It was done after much public consultation. It talks about a commission. It talks about the code of practice, policies, an audit, and public reporting. It's all good legislation, but there's one little problem in that the whole legislation is not being followed. No one could argue that this is being followed even remotely. You can make your statements that processes have been implemented. You can make your argument that the process has improved. I don't know for sure, but I can tell you one thing: this legislation has not been followed.

So what obligation is there upon your office, the Clerk of the Privy Council, to follow the law? Because we all come to this institution accepting the rule of law. I am under a legal mandate to file my income tax by a certain date. CRA is usually pretty strict on that. I can see it will take time to get this up and running, but it's been almost three years now. Do you see a violation of the rule of law in what's going on here?

[Kevin Lynch]

Mr. Chair, as you well know, the timing of the implementation of the Public Appointments Commission is really not in question. The public service can answer that it's the prerogative of the government. The framework legislation is there. It's the government's decision as to when it wants to implement it. You would really have to pose that to the government.

[The Chair, Liberal, Shawn Murphy]

Do you have any comment on whether or not you think the law is being broken?

[Kevin Lynch]

The law, the structure, and the legislative framework are there. It's the government's choice when it wants to implement that with the Public Appointments Commission.

[The Chair, Liberal, Shawn Murphy]

Okay, we're going to proceed now to the second round.

Mr. Kania, you have five minutes, and I'm going to be tight on the time.

[Andrew Kania, Liberal, Brampton West, ON]

Okay. Thank you.

[The Chair, Liberal, Shawn Murphy]

What I'm telling you is not to load up the question with four questions.

[Terence Young, Conservative, Oakville, ON]

No, that's the next party.

[Andrew Kania, Liberal, Brampton West, ON]

I'm going to continue with the mandate issue. Under subsection 7(2) of the Auditor General's statute,

Each report of the Auditor General under subsection (1) shall call attention to anything that he considers to be of significance and of a nature that should be brought to the attention of the House of Commons, including any cases in which he has observed that....

Now that is very general. I'll ask Mr. Lynch, and I'm going to involve Mr. Walsh as well. Mr. Lynch, as far as I'm aware, there is no specific express legal provision within the Auditor General's statute preventing the Auditor General from making any form of policy recommendations or comments. Do you agree with that?

[Kevin Lynch]

I'm going to ask Mr. Roy. The issue we raised in our response dealt with the specific scope of this mandate and whether we thought it moved outside of this mandate. That's the area we were looking in. That's the area we commented on. It wasn't general; it was actually quite specific in areas, and we had good interaction with the Office of the Auditor General in that regard.

But I'd like to turn to Mr. Roy regarding the legal and interpretive issue raised.

[Yvan Roy, Deputy Secretary to the Cabinet and Counsel to the Clerk of the Privy Council, Legislation and House Planning and Machinery of Government, Privy Council Office]

Mr. Chairman, you're raising the chapeau of subsection 7(2) of the Auditor General Act. The way we are looking at this is that the analysis has to start with section 5 of that same act, which provides the mandate of the Auditor General. I will quote from that section: “The Auditor General is the auditor of the accounts of Canada”. When you go to section 7, it is presented in the context of the general mandate that is given to the Auditor General to audit the accounts of Canada.

From our perspective, we thought that an audit would have led the auditors to look at the process through which you get to bring forward candidates to these positions. If the auditors, as part of that process, say the government is missing a lot of things, that it doesn't have a process that provides for enough candidates, and that people don't know what's going on.... The chair was talking about people who are already incumbents in these positions and who do not know it has expired; it's stuff of that nature. We should welcome, and we do welcome, these comments, because we think they have to do with the process. But the process is leading to an appointment.

The appointment itself, whether or not it takes place, is not in the hands of the Privy Council Office or anyone in the bureaucracy, but is part of what the Governor in Council has as its prerogative. And when you get to that, it seems to us that you are crossing beyond the mandate of the Auditor General, which is to audit the mechanisms.

A case in point, if I may, is the IRB. You've heard Mr. Goodman describe, I think, in a very fair way, what the audit is providing, that the process is better and is bringing candidates to the table. What the audit does is it then goes beyond that and starts talking about the fact that there are vacancies and the things that follow from that.

We are saying—and maybe the point is technical, maybe the point is narrow, but I don't think it's insignificant—is that when you do that, you're going beyond what an audit is supposed to be. In that sense, we think the point should be made. Other people, perhaps, may disagree, but from our perspective, this is where the line should be drawn. That's the only reason we raise the issue at this point in time.

[Andrew Kania, Liberal, Brampton West, ON]

My assumption would be that before you declined to answer on the three areas, you would first have relied upon specific statutory provisions or case law in coming to that conclusion. So my request to you is to please advise us in writing, or provide us with the legal opinion you may have obtained, specifically of the statutory provisions and body of case law you relied upon to turn down the request of the Auditor General to form this conclusion.

The second part of this question is for Mr. Walsh to please comment upon this June 11, 2009, correspondence from you—and maybe you will have to do that in writing, because I'm running out of time—and provide us with your opinion on that.

So the first part is whether you can provide to us now—or maybe you can do it in writing—specifically what you did rely upon in coming to that conclusion by way of statutes and case law.

[Yvan Roy]

Point number one is that my client is the Government of Canada. There is that solicitor-client privilege, which I'm sure you're familiar with, preventing me from giving an opinion of that nature.

Point number two is basically that the argument is what I have tried to outline.

[Andrew Kania, Liberal, Brampton West, ON]

But can I just briefly—

[The Chair, Liberal, Shawn Murphy]

I'm sorry, but your five minutes are up. There will be another five minutes for the Liberal Party.

Mr. Kramp, five minutes.

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

Thank you, Chair. Welcome to our guests.

My apologies if I don't spend a lot of time with you today. I'm going to in one way, but on a different topic.

I very seldom rant, but since Mr. Christopherson has had his little rant, I'd like to have mine today, too. It's with regard to the appointments commissioner and the whole discussion on when he should have been there, when he shouldn't have, how, and why.

I can tell you that I have served in this House for the better good of Canadian citizens. I've been honoured to have had some of the highest of highs and the lowest of lows, as we all have. I was privileged to sit on the vetting committee for Justice Marshall Rothstein. There was representation from all parties, and it was absolutely a wonderful education for all of us, quite frankly. I think it was a great method of demonstrating to the public quite clearly his compassion and capability. It was just a win-win all the way through. I don't think there was a member from any party who served on that who was not pleased with that process.

It was in total contrast to the vetting of the appointments commissioner. At that time, I was the only member here now who was sitting on the government operations committee when the most butchered case of character assassination, the most shameful exhibition I have ever witnessed in this House since I have been here, took place. It was vicious. It was disgusting. It was completely untruthful. We had a gentleman of unbelievably high character—and I could elaborate at great length—who came in here. And the most blatant partisan attack I've ever seen in this House took place. This gentleman was accused of being deliberately racist and un-Canadian. Words were taken right out of context completely and other people's words were put in his mouth. He was deemed to have completely insufficient qualifications and competence, and he was deemed a political supporter, because he had admittedly donated funds in his career to both the Liberal Party and the Conservative Party.

This gentleman obviously we all know. This is a person who was the president and CEO of EnCana. He chose the name EnCana to show his pride in his country. He has 40 years of classic business experience. He was recognized by 250 CEOs in this country as the most respected chief executive officer in this country. He was willing to do the job for a buck. Obviously, his concern was for the country and the people. I quote from him in his one statement, and I was so privileged to hear what he said: “...I'm willing to put whatever I can and whatever abilities and effort and enthusiasm I have into this role.”

I sat there and listened. I might not be the most perfect judge of character, but quite frankly, I was really impressed that there was the possibility of someone like this coming forward and serving our country. When I saw that process unfold, I asked myself who in their right mind would ever put their name forward to serve for the public good after having to put up with that kind of abuse. It was a shameful act, and I say that to all members here today opposite. I'm thankful that you were not involved. I'm thankful that we've never had that kind of display on this committee, and I hope we never see it again.

The question I can put, then, is to either Mr. Lynch or Ms. Hassard. There was the impression that all of sudden, if they appointed this person, he would automatically just go and make a lot of appointments, not even understanding that it was not his responsibility.

Mr. Lynch or Ms. Hassard, could you actually tell me what the responsibility of Mr. Morgan would have been had he been nominated to appoint? Would he have been able to make appointments all over? What exactly would his role have been?

[Kevin Lynch]

If I can, the Public Appointments Commission--the head of it and the commission--will not be responsible for proposing candidates for positions. Nor will it set out timeframes for appointments. Nor will it make the decisions on appointments. That rests with the Governor in Council and the discretion of government.

The mandate, as set out by legislation and passed by Parliament, is to focus on the appointments process, the code of practice, a competency-based selection process, and a number of other things, which I went through in my opening remarks.

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

Thank you. If there has been a delay, then I suggest we look inward as well, and not just outward to other officials.

Thank you, Chair.

[The Chair, Liberal, Shawn Murphy]

Thank you.

Mr. Desnoyers, you have five minutes.

[Luc Desnoyers, Bloc, Rivière-des-Mille-Îles, QC]

When the Auditor General tabled her report, I was pleased because I felt it was important for the government and the House of Commons to be aware of the appointment process, timelines and delays. I am not a lawyer, but I think that the Auditor General legitimately wants to report on these things to Parliament because they can have a major economic impact.

Take the example of the Champlain Bridge board of directors. It is important to hear from the Auditor General that people are not being appointed any longer to that board or that major accidents are taking place, or that there are major costs associated with that.

We can also look at the additional training costs that occur because appointments are not made or are delayed or are based on skills, abilities and the personal suitability needed for these positions. Mr. Goodman's document talks about this. I am not certain that these are really the usual recruitment criteria. They are criteria to politicize the process and carry out a series of appointments.

That being the case, my question is for Mr. Goodman. The Minister of Immigration indicated in April that 90% of the positions had been filled. Is that correct?

[Brian Goodman]

Well, it may have been correct at that time. I'm not sure when he said it. But what I can say is that it's around 84% now, I think, because it changes constantly. Members' terms expire. New members are appointed.

[Luc Desnoyers, Bloc, Rivière-des-Mille-Îles, QC]

Is it possible that it is now 73%?

[Brian Goodman]

No.

[Luc Desnoyers, Bloc, Rivière-des-Mille-Îles, QC]

Do you really believe that the answer is no, given all the people who will soon be leaving? I will tell you why. Once again, the Auditor General has clearly indicated that the Immigration and Refugee Board of Canada is one of the most contentious places.

The number of cases—correct me if I am wrong—is growing. You have also said that. There will be even more cases. It has not been possible to fill the positions. There is a process that is not working. You could answer that question better than I could.