In the Chamber
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(File) Bill C-2, The Federal Accountability Act - Third Reading
Hon. Joseph A. Day: Honourable senators, permit me to begin my remarks by echoing thanks to all of the support staff who helped in relation to Bill C-2 throughout the three readings and the report stage. Senator Oliver has read the names, and we on this side support that acknowledgement. One of his comments indicated that they worked all night to prepare the documents and then the difficulty faced with respect to rule 101. Certainly, this place should take a look at a rule that does not add much to help honourable senators understand the process and what has gone on in committee but does bog the system down unnecessarily.
I would like to thank each honourable senator who has risen to speak to Bill C-2, the proposed federal accountability act. Debate in this chamber has been rich. I believe that it has contributed to a greater understanding amongst all honourable senators of the potential impact of this enormous piece of proposed legislation.
I do not intend at third reading to discuss in detail the amendments to Bill C-2 proposed by the Legal Committee. I did so when I spoke at the report stage. The committee's report and the speeches delivered by honourable senators who participated in the committee in the days previous has succeeded in doing just that. I wish to thank all honourable senators for accepting the committee's report in its entirety, including the nearly 50 amendments proposed by the government, 100 amendments by the committee, and the committee's observations.
I would like to focus on the broader aspects of this proposed legislation and some of the challenges that we faced, and the challenges faced by the Standing Senate Committee on Legal and Constitutional Affairs during the study of this bill. That is not an easy task with respect to Bill C-2. To borrow from a well-known expression, we have been amongst the trees of this Bill C-2 legislation for so long that it is difficult to stand back and view the forest. Let me attempt to do so.
Let us stand back and look at what prompted Bill C-2. To begin, I would like to quote from Mr. Justice Gomery's report. He said:
The vast majority of public servants try, in good faith, to do their job properly and effectively, and the Canadian government system consists of solid political institutions with a long and distinguished history of public service. The Sponsorship Program involved only a tiny proportion of the annual expenditures of the government. Its mishandling was an aberration. The majority of the expenditures of the federal government are well handled, and citizens usually get value for money from them...
It is not the Commission's intention to recommend radical solutions, a transformation of our parliamentary system, or a complete overhaul of the doctrine of ministerial responsibility. Rather, we propose to clarify that concept and, where mismanagement has occurred, to strengthen the capacity of those charged with holding people to account to do their job.
I repeat: "— to strengthen the capacity of those charged with holding people to account to do their job."
The federal accountability bill, as provided to the Senate, was not good legislation. The government often has bragged that Bill C-2 was drafted in just six weeks after the election. This was before cabinet was fully established. This was while new MPs were wondering where their offices were and were hiring staff. The bill would have to have been directed by an unelected transition team or a team of campaign workers of the Conservative government.
The committee heard testimony time and time again from officers of Parliament, who are there to support parliamentarians and to hold the government to account, and who are directly affected by Bill C-2, that they were not consulted by the government before this proposed legislation came forward. John Reid, Information Commissioner, was not consulted. Dr. Bernard Shapiro, Ethics Commissioner, was not consulted. Jennifer Stoddart, Privacy Commissioner, was not consulted. In her appearance before the committee, Ms. Stoddart expressed her frustration when she said:
We were not consulted and we did not see the text. Generally speaking, we are consulted for certain bills that could have an impact on privacy but, in this case, we were not consulted and we did not see the draft of the bill.
The following words were delivered by Arthur Kroeger, a person who was just quoted by Honourable Senator Oliver. During his appearance before our committee, Mr. Kroeger expressed his concerns with the way in which the bill was drafted. He said:
If the legislation had been written by a government with more experience in office, it may not have some items in it that it does...There is the other problem that some of the contents of legislation were, I think, developed during an election campaign, and there is always a risk of a bit of overkill for the sake of achieving a public effect during an electoral contest...
In the other place, second reading debate on Bill C-2 began on April 25 and ended two days later, on April 27. Following second reading, the bill was referred to the House of Commons Legislative Committee on Bill C-2, where the committee held hearings between May 3 and June 6.
Witnesses in the other place were given very little time to present their positions. As a result, we were informed that some potential witnesses refused to participate in the charade. In addition, report stage debate and third reading in the other place took one day.
Senator Mercer: One day. One day.
Senator Day: Is that, honourable senators, responsibility?
Some Hon. Senators: No!
Senator Day: Is that accountability?
Senator Mercer: No, not accountable.
Senator Day: Honourable senators, there has been a lot of rhetoric about Bill C-2, and expectations of the public have been raised. However, honourable senators, the federal accountability act, Bill C-2, will not have the impact that the federal government and Minister Baird suggest it will have.
To quote again from Justice Geometry more recently in a CBC interview:
If the proposed legislation is intended to prevent another AdScam, it is beyond comprehension why the Conservative bill ignores virtually all of the recommendations of his inquiry.
Sharon Sutherland, Professor of Public Studies at the University of Ottawa, appeared before our committee to speak, among other things, about the tone in which Bill C-2 was drafted. She said:
Insofar as the bill creates a mood, there is a theme of punishment, of new crimes or crimes relocated from one statute to another, or repeated in statutes, or summary convictions, or of naming, blaming and shaming.
I read this quote because I feel that the reference to "naming, blaming and shaming" is very telling of the current culture prevailing in this new young government. We need to evolve from this culture of distrust to a culture of honesty and respect.
Probably the most serious underlying issue of Bill C-2 relates to the trust of the Canadian people. The public puts its trust in this chamber and in the other place to make decisions after a thorough study and debate. Without this trust, the entire parliamentary system is endangered.
As I stated in this chamber on report stage debate, the notions of true accountability and transparency in government are of the utmost importance. We all support those objectives.
This week in this chamber, we heard honourable senators add to this culture of distrust by suggesting that the lengthy study of Bill C-2 was part of an overall plan by the Liberal party to stall this bill for political gain.
Senator Mercer: Nonsense!
Senator Day: In an effort to prove his point, one honourable senator depicted an elaborate scheme of dishonesty and delay. The honourable senator's accusations are baseless, and they are insulting to each honourable senator who took part in the study of this important bill.
The practice of attempting to achieve political gain by questioning the goodwill and trustworthiness of a political opponent, a parliamentary committee or a political party is counterproductive and simply wrong-minded.
Senator Tkachuk: You would never do that.
Senator Day: Unfortunately, I feel that this practice is occurring more frequently than ever before.
Senator Tkachuk: Yes, it sure is.
Senator Day: Often throughout our committee's study on Bill C-2, allegations were voiced to the media by the Prime Minister and members of his cabinet and even some honourable members of this chamber, which suggested that our intentions were less than honest. Accusations of stall and delay were frequent but were completely without merit.
By attempting to discredit the product and the work that was being completed by our committee, by discrediting the process, the government has potentially weakened the public's perception of all politicians. This does not serve Canada well, and it does not serve the Canadian people well.
In the later stages of our committee's study of this bill, we had the opportunity to hear testimony from one of Canada's most colourful and well-respected members of the Privy Council, the Honourable Eugene Whelan. Mr. Whelan requested an appearance before the committee to discuss the public appointments process. For the purpose of this speech today, I would like to refer to a statement he made regarding public trust. He said:
Today, there is a very wide feeling in our country, Canada, that there is no accountability and, therefore, no credibility. In turn, no one trusts anyone, especially those in government and the elected politicians. We are listed at the bottom of the totem pole. Why? Are we, the politicians, really that bad?
As I listened to the news reports and read publications from across the country, I find myself pondering the same question: Are politicians in Canada really that bad? My answer continues to be the same: No, we are not.
To conclude his argument regarding the current climate of distrust, Mr. Whelan stated the following:
This old politician has been around a long time and has seen a big part of our world. If there is a better life, a better administered country anywhere that is better than Canada, I want you to tell me, because I am an average Canadian and I want the very best. If there is a better country, show me the way and I will go there.
Well, Mr. Whelan, I do not believe there is a better country or a better way. Canada is a world leader in human and civil rights. We, as Canadians, are respected for our good governance, our respect for the rule of law, and our enormous potential as a fiscally accountable and dependable trading partner.
This is not to say that in a country like ours we cannot grow stronger with the help of good legislation. We can, and if honourable senators in this chamber accept Bill C-2 as it has now been amended, I feel that its significant improvements will have been made.
The other major challenge facing the committee during the study of Bill C-2 is linked closely to the climate of distrust to which I have just referred. Throughout this study, honourable senators, the role and the relevance of the Senate itself has been called into question by the Prime Minister and members of his cabinet. As an expression of the Prime Minister's frustration and disappointment with the amendments that were proposed to Bill C-2, Mr. Harper stated, "The behaviour of the Liberal party is arrogant and anti-democratic. That's really the problem. They haven't accepted the decision of the electorate."
I suggest to Mr. Harper that he has not understood the important role of a bicameral system.
In conjunction with these statements, the President of the Treasury Board, the Honourable John Baird, called a news conference with the sole purpose of denouncing the work of the Senate — not in analyzing the amendments, but denouncing generally the process.
I quote Mr. John Baird, "We have got to go over the heads of the backroom boys in the Liberal Party and speak to Canadians directly to get this bill passed."
Honourable senators, I find these statements quite astounding. The electorate granted the Conservative Party of Canada a minority government. Canadians want and expect our political parties to work together. Throughout the study of Bill C-2, the government has resorted to bullying and bad-mouthing instead of acting as a responsible and effective minority government.
I would also like to comment on Senator Nolin's speech at report stage. Senator Nolin was a participant in the study of Bill C-2, and he demands respect for his 13 years of experience on the Standing Senate Committee on Legal and Constitutional Affairs. Despite this experience, I have great difficulty with my colleague's suggestion that our committee ignored its duty of restraint. It is the responsibility of a Senate committee to scrutinize legislation which has been referred to it.
Due to the size of Bill C-2 and the speed with which it was drafted, the committee's scrutiny resulted in a large number of amendments by the opposition, as well as a large number of amendments, indeed, by the government itself. The reason for the large number is that many of these amendments were consequential. However, it was impossible for our committee to ignore the overwhelming amount of testimony received that deeply criticized many aspects of this bill. That testimony is part of the public record.
I urge those of you who have difficulty with respect to a specific amendment or who wonder why we did not go further in certain areas to refer to the testimony. I would also urge the committee's critics and the critics of the Senate, generally, to read the committee's observations. On several issues, committee members decided to write a critical observation about concerns which had been raised during testimony rather than to propose an amendment. That was an exercise in our duty of restraint, I would say to the Honourable Senator Nolin.
If the Senate is to remain, as it has been since Confederation, a valuable component in the parliamentary system, it must act independently and it must be able to act independently. If the Senate has concluded through testimony and rigorous debate that the administration of the day has acted against the best interests of the Canadian people, then it is the responsibility of senators to make amendments to that proposed legislation.
Honourable senators, I said I was not going to deal with the amendments that you have already voted on, but there are several others that you will be called upon to vote. I would like to look at those briefly. If honourable senators look at their Order Paper, they will see the listing of amendments which have been proposed.
The first list of amendments begins at the paragraph out to the left margin where honourable senators will see the motion in amendment of the Honourable Senator Mercer.
Senator Mercer's amendments all appear on page 3. All of these, honourable senators, relate to the provision for the creation of a director of public prosecutions. Senator Mercer has spoken on this issue. I can tell honourable senators, and a number of honourable senators have already told colleagues, that when we went into these hearings, we felt that the director of public prosecutions provisions were unnecessary. That was the mindset that we had going into the hearing. However, we heard from Antonio Lamer, who said that the concept was a good one. We heard from a former assistant deputy minister who was himself a director of public prosecutions and then became deputy minister. We heard from the Association of Trial Lawyers, and they said that the concept is a good one. They all pointed out that the most important aspect of this concept is that there must not be the possibility for partisan political interference with this extremely important position.
We decided that, based on the testimony, we would accept the concept. It is not a new concept; it exists in three provinces and in a number of jurisdictions. We saw one provision in that particular area of Bill C-2 that provided potentially for the Attorney General to have the opportunity for political interference. We made an amendment to ensure that the position was created objectively and not from a list of names that were given by the Attorney General.
Honourable senators, with all due respect to Senator Mercer, I am asking you to defeat his group of proposed amendments in which he would propose to delete the director of public prosecutions. I am asking you to accept the concept proposed by the government with the amendments which we have already made and voted on.
Senator Murray has four in his list of groups of amendments, and they start at page 4 and run over to the top of page 7. I congratulate Senator Murray the hard work, but I regret to say I am not able to support the honourable senator's amendments.
Senator Murray's first grouping of amendments is public appointments. It is important for honourable senators to understand that the director of public appointments will make no appointments. The job of the director of public appointments is to ensure that each ministry has set up an objective means of coming up with names for potential appointments. He or she and the group will go to each ministry and ensure that a set of rules are in place. Many ministries have sets of rules in place now, and many do not. The role of the director of public appointments is to ensure that there is some objective standard. It sounds like a reasonable concept, and we are prepared to support the concept proposed by the government and, therefore, not to support the proposal to remove that concept from Bill C-2, as proposed by Senator Murray.
The next group of proposed amendments relates to political financing. As I understand Senator Murray's comments from yesterday, he would like to return to the status quo. That is tempting to support, but we decided, following the duty of constraint, to make a strong statement in our observations but to support the government's position, in large part, in relation to political financing. We felt that it made logical sense that the regulations in relation to political financing come into play at the beginning of a donation year, namely, January 1. I fully expect that the government will be accepting all of our amendments, that this bill will be proclaimed and that it will be on January 1, 2007 that this will come into force.
We will not support, with all due respect to the Honourable Senator Murray, those amendments.
With respect to the increase from $1,000 to $2,000, so that everyone is clear, convention expenses are included as political donations because $1,000 was chosen on the concept and mistaken belief that they were not included. Now that they are included, the number must be increased to include those as well. That is really the only major change that we made.
The next bundle of amendments appears at page 5 of the Order Paper, regarding the director of public prosecutions. I have already spoken on that subject with respect to Senator Mercer. I will not be supporting it. I am not speaking for the other members of our committee, certainly, but I can tell honourable senators that all of the points that have been brought forward in these amendments were debated and considered at length. We came up with a balance, making some amendments that we felt absolutely had to be made, and including observations that were a critical part of the report for that reason. When we were getting no support from the government side with respect to what we were doing, and in fact were being criticized, it was awfully tempting to go the way of these amendments. However, we did not do that, in the interests of this institution.
The final grouping from Senator Murray involves access to information. In this particular instance, we again debated the concept at length. It is my view that it was important to expand the base of those subject to access to information now, and in fact we expanded the base further in amendment. That is an important aspect of access to information. It is an important facility for Canadians to have this legislation. As long as certain protections are put in place for foundations that are dealing with the private sector, which we have ensured in our amendments, then it seemed more logical to go ahead with the amendments rather than, as has been suggested, to take them all out of Bill C-2 and wait for the review in the House of Commons. The Information Commissioner recommended that that happen, but we were not convinced that we should do so. Therefore, I will not be able to support that bundle of amendments.
The next amendment is a single amendment on page 7 of the Order Paper. It was presented by the Honourable Senator Milne. I was not convinced initially that it was necessary, but there was some concern by the Information Commissioner that the wording in the amendment that we had proposed for the public interest override, that items of national security would not need to be produced under the access to information request, went beyond that section.
To avoid any likelihood that this will be challenged in a court system later on — and that is one of our roles, to try to clarify where we can to avoid court processes and court-made law and judge-made law — we are asking honourable senators to support this amendment to add the words "under this section."
Honourable senators, the next amendment was presented by Senator Andreychuk. We had an interesting debate with respect to what is and what is not a technical amendment. Time does not permit me to analyze this particular matter further, other than to say that this is not the same wording as the amendment that was presented during clause-by-clause consideration. The most important aspect of it is that there was a reference to section 64, which we intended to remove and have removed, but there is also a reference to section 20 and section 31, which in effect said that you can be a senator or a member of the House of Commons and do everything they do except subject to section 20 and section 31, which we felt went to the core of parliamentary privilege. You either can or cannot exercise your parliamentary privilege, and no former senior public office-holder, such as Senator Murray, Senator Carstairs or Senator Fairbairn, can act as a senator. You do not want to be a second-class senator and be subject to two sections of the bill.
With that qualifier removed, we are pleased to support Senator Andreychuk's amendment.
Finally, honourable senators, with respect to the amendments that we will be called upon to consider and vote upon at four o'clock, we have Honourable Senator Nolin's grouping. He explained that well yesterday. It is a question that we debated at the committee. It is a question of whether the proper reference is to a "code pratique" or a "code de pratique," and he has recommended the amendment in the French provisions to call the code a "code de pratique." We accept his amendment.
Honourable senators, today the Senate is under unprecedented scrutiny. The Conservative government has expressed a desire to reform this chamber in a number of ways. I believe that the Senate must be willing to adapt, but it must not abdicate its responsibility.
It would have been easy during our study of Bill C-2 to succumb to the political pressure. We could have treated the study of this bill as it was treated in the other place, but if we had done so we would have fallen into the hands of those who criticize us.
I do not expect that the debate over the role and the relevance of the Senate will conclude in the near future. It is for this reason that we must be more vigilant and more effective in our work than ever before. Our committees must not be deterred by the media or politicians in the other place who are intent on discrediting this institution. Public opinion will be won as long as we continue to perform our duties as a responsible chamber of sober second thought.
Joanna Gualtieri, Director of the Federal Accountability Initiative for Reform, a well-known whistle-blower and former external affairs employee who saved the federal government millions of dollars, by their own admission, appeared before our committee to express her thoughts regarding this legislation and to speak of the important role of the Senate. Let me quote from her testimony:
We genuinely believe that the Senate's finest hour will be found in being proponents of accountability. That will be done by getting back to the drawing board and doing this right.
With the work that we have done, this legislation is now, in my respectful view, honourable senators, in a form that the government can accept. There are no amendments that we have made that fundamentally alter the stated policy initiatives of this legislation. Whether this Conservative government is interested in accepting this bill as amended will depend on its true purpose for the legislation. Does the government seek better policy?
Senator Segal: Yes!
Senator Day: I am sorry I only heard from one person over there.
Or is it only interested in the politics? Honourable senators, we will soon know.
In any event, we in this chamber can be proud of our work. We have been given poor legislation and we have improved upon it. We have been invited time after time to let the debate deteriorate into a political squabble, but we have resisted. We have risen to the occasion by doing what the Senate of Canada does best: study, understand and, where warranted, improve the legislation.
Whatever comes of this bill, we in this chamber can be content that we do have a significant role to play. This bill, more than most, has allowed us to demonstrate that important role. This indeed, honourable senators, has been one of our finest hours, and I congratulate you all.
Some Hon. Senators: Hear, hear!
Senator Murray: Will the honourable senator take a question?
Senator Day: If time permits, I would be pleased to attempt to answer the honourable senator's question.
Senator Murray: Honourable senators, I was not present for the committee hearings, and I may have missed some of the flavour or forcefulness of the testimony by simply reading the printed transcript. However, I must say with regard to the proposed director of public prosecutions and the testimony referring to that, my reading of it was that it was faint praise indeed and of the nature of, "Well, it cannot do any harm, and another set of eyes will be useful," and that kind of thing.
However, the question that I want to ask the honourable senator is whether he would not agree that, in addition to what he regards as the favourable testimony from the witnesses whose names he mentioned, there was, on the other side, also testimony by experienced people wondering aloud whether the position was necessary and, indeed, suggesting — fairly strongly, I thought — that it was not necessary.
I have one other question, and it has to do with the public appointments commission. My amendment would leave it to the government, to the Prime Minister, if they want to go ahead with something like this, recognizing that it is purely cosmetic, and I would leave Parliament out of it. Would the honourable senator not feel better, as I would, if the Prime Minister would content himself with consulting Senator LeBreton and Senator Downe, who together have more experienced in patronage appointments than anyone in the modern history of Canada?
Senator Day: I will deal with the latter question first, and then I will deal with the substantive one after that.
The appointments side of things was debated in this chamber between the honourable senator and Senator Hays yesterday, and the amendment that the committee proposed was brought to his attention. That was our compromise. We felt it was important to be inclusive, and we felt that that was a reasonable provision to put into the director of appointments.
Senator Murray: I think that discussion yesterday was about the budgetary officer.
Senator Day: The director of appointments — and I mentioned this when I was going through the analysis of the honourable senator's various amendments — is not someone who is making the appointments. I think it is important for all honourable senators to understand that. The concept is to ensure that the ministries have set in place an appointments process that meets minimum standards. That seems to me to be a reasonable approach. The appointments will still take place by the ministry in the normal way that you are quite familiar with.
With respect to the director of public prosecutions, I indicated that that was not an easy one for us. The honourable senator is quite right: There was other testimony that suggested that maybe this was not necessary, and that some of the endorsement was not awfully strong. However, some of the endorsement was strong. When the former Chief Justice of Canada, Antonio Lamer, is sitting before you and says that this concept is all right and that it will do no harm and could well do some good, what do we say?
Senator LeBreton: We say: "Yes, sir."
Senator Day: The practitioners, the Association of Criminal Lawyers, were much stronger in support of the concept. These are the people who work in this business every day, and they endorsed the concept. We had a preponderance of evidence in support of the concept, so we tried to make it as good as we could with the tools that we had.
Hon. Terry M. Mercer: Would the honourable senator permit a few other questions? I wanted to direct this question to Senator Oliver, but that time has passed.
Senator Oliver and Senator Day both referred several times to Mr. Justice Gomery's report. Senator Oliver said that this bill was to fulfill Justice Gomery's report. Can Senator Day perhaps enlighten us as to what Justice Geometry actually said about this bill as it related to his report?
Senator Day: I hate to be answering questions on behalf of Senator Oliver. I will tell the honourable senator that, during my remarks, I indicated that as recently as two weeks ago, Mr. Justice Geometry said that this particular bill is in no way reflective of his report or his recommendations.
Senator Mercer: Thank you very much. That is exactly what I thought he said.
In Senator Oliver's speech, and in speeches by others as well, there is a reference to ministerial responsibility. Ministerial responsibility is an important thing. If we accept that concept, would it be the honourable senator's interpretation that ministerial responsibility would extend to the Leader of the Government in the Senate as a minister of the Crown? Would she, in this case Senator LeBreton, be responsible for her ministry, which means responsible for her staff and perhaps for the actions of her staff?
Senator Day: I think that is probably a question that would better be posed to other people at another time.
Hon. A. Raynell Andreychuk: Senator Day, in his initial remarks, did in fact thank the Senate for adopting the report of the Standing Senate Committee on Legal and Constitutional Affairs, along with all of the amendments. I think he also said, "and the observations." As we have been discussing for several days, observations do not form part of the report and are not brought forward here for acceptance by the committee. They are attached after the signature of the chair and therefore do not form part of the report. In essence, this Senate adopted the report and the amendments. Would I be correct in my interpretation?
Senator Day: I know that the honourable senator has an inquiry on that very subject, and I am sure that there will be an interesting debate with diverging points of view on that very issue. I spoke during the committee hearings, and I referred to the observations as being a critical part of our report when we had Minister Baird before us. He undertook to pay close attention not only to the amendments but also to the observations. The practical effect of whether they are before or after the amendments is not as critical as the fact that they will be given due consideration.
Senator Andreychuk: That may be in the honourable senator's dialogue with the minister, but for the conduct of this Senate, which I think is important, and to maintain the integrity of this chamber, would you not agree that they do not form part of the report?
Senator Day: It is my understanding that the report includes the bill as amended with attached observations.
The Hon. the Speaker: Honourable senators, it being 3:30, pursuant to the order adopted by the Senate on November 7, I must interrupt the proceedings for the purpose of putting all questions necessary to dispose of third reading of Bill C-2.
Senator Comeau: Honourable senators, we have a series of amendments before the Senate. If some are adopted there could be consequences on other amendments that have been proposed. I have consulted with the opposition and we agreed to seek the guidance of the chair as to how best to dispose of the amendments.
The Hon. the Speaker: Honourable senators, in order to facilitate and simplify the process of voting without distorting in any way the results, we could dispose of the amendments or groups of amendments in the order they were presented. This can be done because there are no conflicts in the amendments that have been proposed except in one case. In addition, there are two cases where amendments overlap others involving the deletion of clauses. Regardless of the outcome, we could proceed with the votes without any procedural difficulties, in the opinion of the chair.
Before amendments are presented, I will advise the Senate of any consequences the adoption of any previous amendments will have made on it so that we can act accordingly. Packages with amendments proposed by senators have been prepared with the assistance of the table and are now being distributed.
With that, honourable senators, we will now proceed with the putting of the questions.
The first question is the motion in amendment proposed by the Honourable Senator Mercer.
Honourable senators, is it your pleasure to adopt the motion in amendment?
Some Hon. Senators: Yea.
Some Hon. Senators: Nay.
The Hon. the Speaker: Will those in favour of the motion in amendment please say "yea"?
Some Hon. Senators: Yea.
The Hon. the Speaker: Will those opposed to the motion in amendment please say "nay"?
Some Hon. Senators: Nay.
The Hon. the Speaker: In my opinion the "nays" have it.
And two honourable senators having risen:
The Hon. the Speaker: Call in the senators. There is a 30-minute bell unless it is agreed otherwise.
For the information of the house, should there be other standing votes there will be no bell. We shall therefore proceed with the vote at five minutes past four.
The sitting of the Senate was resumed.
Motion in amendment of Senator Mercer negatived on the following division:
THE HONOURABLE SENATORS
THE HONOURABLE SENATORS
THE HONOURABLE SENATORS
Bill C-2, The Federal Accountability Act—Second Reading
On the Order:
Resuming debate on the motion of the Honourable Senator Oliver, seconded by the Honourable Senator Champagne, P.C., for the second reading of Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability.
Hon. Joseph A. Day: Honourable senators, I rise to join in the second reading debate on Bill C-2, which, in part, is stated to be an act providing for measures respecting administrative transparency, oversight and accountability. All of us share the goal of working to ensure the government works well and is accountable, transparent and open to Canadians.
It is a very good thing in our country when Canadians are involved in the democratic process, scrutinizing the actions of their government, getting involved in political parties and contributing to the development of public policy, whether at national party conventions, through letters to their members of Parliament and cabinet ministers appearing before parliamentary committees, or through dialogue with the public servants who draft the policies that will affect them.
As honourable senators will know, the government produced Bill C-2 very quickly. As we are all aware, this bill is a monumental undertaking. Honourable senators have had a chance to look at this bill of some 210 pages and 217 clauses. Prime Minister Harper is seeking to make significant changes that will resonate for many years to come. This bill was prepared in an extraordinarily short time frame. The legislative committee in the other place was told that the bill was drafted in only six weeks. It must be pointed out that a lot of work done under the previous government is reflected in this legislation, such as the work of the Treasury Board Secretariat, led by the Honourable Reg Alcock, with respect to cleaning up the rules that govern the operation of other government departments. Government procurement rules were also under review, led by Walt Lastewka, Parliamentary Secretary to the Minister of Public Works and Government Services.
Those initiatives are reflected in this bill, and many of us will find favour with a lot of the initiatives that have been taken. Nevertheless, six weeks is a very impressive accomplishment. The numerous amendments the government itself introduced in committee and at report stage would lead us to believe that the legislation may have been tabled prematurely, before all the checking had been done. Since hastily drafted legislation often results in bad legislation, our role as a chamber of sober reflection is perhaps even more important for this legislation.
Honourable senators, our job, our constitutional responsibility, is to do our best to make sure that the bill actually accomplishes what it sets out to do. Whether by chance or not, we are presented with a very extensive proposal at the same time as Bill S-4 proposes an eight-year term for Senate appointments. As a result, many of us have been reflecting a great deal on the role of the Senate, those times when we fulfilled our constitutional role best and those instances when perhaps we could have done better.
In reading various scholarly and other articles written on the subject, I have been struck that the examples most frequently cited to demonstrate the valuable contribution of this chamber have been instances when we refuse to accede to the request by the government of the day of whatever political stripe to just trust them and hurry to pass the particular piece of legislation.
Honourable senators, with Bill C-2, we may be embarking on another such episode, particularly when one examines what the governing members of the other place expect us to do with this legislation.
The Prime Minister, on June 22 of this year, in a CTV interview, talking about this bill, which is now in the Senate, stated, with respect to the Senate:
I think it should go through promptly.
There was no discussion of the important role that we have to play, no request for help in improving on this important piece of legislation, but rather a warning of intense criticism if we hold off on prompt passage.
The other place had its own reasons for the timetable it accepted with respect to this bill. I respect that. As a result, the legislative committee in the other place rushed into hearings and then proceeded to hear witnesses under marathon conditions.
Witnesses were given six minutes — many even less, only three minutes — to make their presentations. Committee members were severely constrained in terms of the time allotted to ask questions, notwithstanding that written submissions by the witnesses were often lengthy and raised a number of important issues.
I read one committee transcript when the chair cut off a witness one minute or so into her submission — literally in mid-sentence — as the committee was behind and needed to make up time to keep to their strict schedule. This witness was from a government department and that was the reason offered by the chair for suddenly abridging her time.
Honourable senators, this bill makes extensive changes that will have a significant impact on our government departments. These witnesses need to be heard on this important bill.
According to a newspaper report, the Public Service Alliance of Canada was initially going to decline an invitation to appear before the committee, because it so strongly disagreed with the strict time allotments provided for witnesses to express concerns about:
the massive bill, which will significantly affect the work of Canada's bureaucracy.
According to an article in the Ottawa Citizen on May 15, 2006, and I quote:
The union, which represents 130,000 public servants, argues the hearings, conducted under strict time limits, are "window-dressing" and not aimed at getting any meaningful feedback from those affected by the bill.
Honourable senators, I was particularly struck by the following paragraph in that newspaper article:
Instead, PSAC decided to send in their brief, but save their public presentation for the Senate where "we will get a full hearing" said Mr. Gordon.
Mr. John Gordon is President of PSAC. In the end, he did appear on a panel, the whole of which was rushed in and out in 39 minutes.
At one point, one of the witnesses on that panel stopped during her opening remarks as the chair was laughing as he worked to move the speed of the proceedings along faster. The witness had to point out to the chair that the issues she was raising were very serious ones for her organization.
Honourable senators, that is not how we do things in this chamber or in our committees. I am confident we will do better by the witnesses who are prepared to take the time to appear before us and do their part to make this important proposed legislation the best it can be for Canadians.
Some Hon. Senators: Hear, hear!
Senator Day: Many amendments were made on this bill in the other place — just under 150 amendments at clause-by-clause consideration, and some 23 more at report stage, honourable senators, with hundreds more put forward for consideration. All amendments were debated and voted on under marathon-like conditions both in the committee and in the chamber, where sitting days were specially extended to allow members to compress that huge task into a matter of a few days.
The recent report by Mr. Justice Gomery laid an important foundation for this bill. I was struck that he introduced his recommendations on his publicationRestoring Accountability, saying:
As readers will see, the recommendations aim to restore accountability by rebalancing the relationship between the Government and Parliament, and by achieving greater transparency in the operation of government.
Mr. Gomery said that a key failure in the management of the sponsorship program was the failure of Parliament to fulfil its traditional and historic role in that case as watchdog of spending by the executive branch.
Honourable senators, if this legislation is intended to address Mr. Gomery's conclusions, we should be looking for provisions that will strengthen the role of parliamentarians in fulfilling our role as watchdogs of the spending of the government.
Some Hon. Senators: Hear, hear!
Senator Day: Honourable senators, it would be singularly wrong for us to abdicate our responsibility on this bill. We must take the time to study the bill carefully and thoroughly. We cannot seek to enhance accountability to Parliament and transparency to government with the first step being a failure to fulfil our role and thoroughly study this bill.
How can we contemplate bringing in an accountability act without first being accountable and transparent to those Canadians who wish to be involved in the process, make representations to our committee and have their concerns thoroughly heard and considered? That would be absolutely and patently wrong. We are legislating for and on behalf of Canadians. I am uneasy about how Canadians were treated in the other place; we need to do better.
Honourable senators, this is a far-reaching bill. Arthur Kroeger, the highly respected former senior mandarin, whose experience stretches throughout the federal government, told the legislative committee in the other place studying Bill C-2:
These are institutional questions you are dealing with. You are creating new officers of Parliament, who are going to be there for a long time, or so you hope. You are creating new procedures, and again, it is not a quick fix. This is something that you, as parliamentarians and officials and ministers, are going to live with for the foreseeable future. It is not as though it was really urgent to pass this bill because people were stealing money hand over fist. Canada is not that kind of country. You are not trying to deal with larceny or fraud in regional offices or on the part of anybody in politics.
Every year there is an organization called Transparency International that publishes a so-called "corruption perception index." It lists 170-plus countries in its organization. Canada is always in the top 10 along with Scandinavians, New Zealanders, the Dutch and good folks like that. So, it is not as though we have a question of rampant corruption that is urgent to deal with; you are dealing with longer-term matters.
Indeed, Mr. Kroeger felt so strongly about the importance of the committee in the other place, in not rushing its study on the bill, he broke with his customary approach when testifying before that committee. He said:
If I may, Mr. Chairman, I would like to offer just one last observation. This runs contrary to all my years of conditioning as a senior official in the Canadian bureaucracy, when I always thought that what parliamentarians did was none of my business. You do not give them advice. Since I am now a private citizen, and some other private citizens have given you advice, maybe I can too. I hope you will take enough time with this bill. This is a major piece of legislation.
One of the great advantages you have, as far as I can tell, from the outside, is that this is not really a matter in which there are intense partisan divisions. When I was in government, my observation was that Parliament was at its best when a committee did not have a situation in which one side was dug in on one position, and another was dug in on the other. Instead of that, you had members of Parliament putting their heads together and trying to figure out what kind of outcome would best correspond to the public interest. As parliamentarians, you have the responsibility in that you had the last word about the public interest.
So, I am not going to tell you what should or should not be in the bill, but I do think it is really important that you not rush it, and that when you get into clause-by-clause, you take as much time as you need to work it out. It is complicated. There are some things in the bill that I think show some haste. There are some things that a more experienced government probably would not have done. In putting you heads together on this committee, I hope you will be able to sort those out and arrive at improvements.
Mr. Kroeger went on to say that he thought Bill C-2 was a good bill, but that he hoped the committee would take the opportunity to make it a better bill.
That hope, of course, honourable senators, applies to the role in the Senate and the importance of the committee hearings in regard to this proposed legislation. We need to take the time to make Bill C-2 better.
As we learn more about the 317 clauses in this bill, Canadians have concerns about a number of provisions. Time does not permit me to detail them all but I want briefly to raise a few.
First, concerns have been expressed over the plethora of officers of Parliament that we would create with the passage of this bill. The bill would create a new procurement auditor, a public sector integrity commissioner, a parliamentary budget officer and a parliamentary budget authority, a new director of public prosecutions, a public appointments commission, a public servant disclosure protection tribunal and a commissioner of lobbying.
An Hon. Senator: We can all go home!
Senator Day: Members are well aware that the bill would also replace the Ethics Commissioner and Senate Ethics Officer with a new parliamentary officer, called a conflict of interest and ethics commissioner. Will these new officers of Parliament and agents help parliamentarians conduct their oversight? Will they help with transparency, or will we get lost in a maze of agents and officers? How many levels of bureaucracy will we impose on an already complex system?
I would have thought we needed to reduce the size of government, to do what we can to help our public servants work more effectively for Canadians. It is particularly relevant for us, as parliamentarians and watchdogs of the government spending, to ask what will these new officers and bureaucracies cost the Canadian public, both directly and in increased work for the public service?
This question was asked of Minister John Baird, President of the Treasury Board, who was the sponsor of this bill in the other place. I am disappointed to tell you, honourable senators, that no satisfactory answer was provided. He said:
With respect to how much the fiscal accounting will cost, the price of accountability is priceless.
Senator Oliver: Good answer.
Senator Day: He went on to say:
These measures hopefully will save money, not cost money.
That was his answer, honourable senators.
Hopes alone should not satisfy us. I trust the government will provide a proper answer as we proceed to study this bill in committee.
We know from testimony of other witnesses before the legislative committee that indeed there will be costs associated with this bill, as there would have to be given the number of new parliamentary officers — and staff to assist them and automobiles — that would be created by Bill C-2.
Honourable senators may question the wisdom of creating new officers of Parliament if we do not fully use the ones that already exist. Perhaps because this new order of parliamentary officers is relatively new to our system, the government of the day appears able to pick and choose with equanimity whose views will be accepted and whose ignored.
As Senator Chaput and Senator Tardif have reminded us in recent days, the term of our current Commissioner of Official Languages expires this summer, yet no replacement has been put forward for our consideration. I was concerned to learn that the Privacy Commissioner, who already exists as well, was not consulted during the drafting of Bill C-2. As many of us are no doubt aware, the Information Commissioner's recommendations were largely ignored — despite the fact that one of the election promises made by the new Prime Minister was, to quote from the Conservative election platform, to "implement the Information Commissioner's recommendations for reform of the Access to Information Act."
Obviously, that promise has not been kept.
Recently, the Information Commissioner submitted a special report to Parliament, responding to the current government's action plan for reform of the Access to Information Act, in which he said:
All of the positions the government now takes in the discussion paper are contrary to the positions the Conservative Party took, and its leader espoused, during the election campaign.
The Information Commissioner's special report continued — and this is a special report that has been filed recently in the other place — with a discussion of Bill C-2, the very bill under consideration here today. He said:
Finally, and most important, the content of the Federal Accountability Act, and the government's discussion paper on access reform, is a cause for grave concern. What the government now proposes — if accepted — will reduce the amount of information available to the public, weaken the oversight role of the Information Commissioner and increase government's ability to cover up wrongdoing, shield itself from embarrassment and control the flow of information to Canadians.
He ends up with this final quote:
No previous government, since the Access to Information Act came into force in 1983, has put forward a more retrograde and dangerous set of proposals to change the Access to Information Act.
That was the Information Commissioner. I am confident we will want to explore these issues in depth at our committee hearings when the committee is entrusted to study this bill.
As mentioned, the bill would create another new position, the director of public prosecutions. Honourable senators may recall that this idea was first presented by now-Prime Minister Harper during the election campaign. There was some confusion in the party at the time, however, as the then-Deputy Leader of the Conservative Party, and now Foreign Affairs Minister, disagreed with the leader publicly about this proposal.
Foreign Affairs Minister Peter MacKay was previously a Crown prosecutor in Nova Scotia, one of the few jurisdictions in Canada that had experience with a director of public prosecutions. No doubt he was familiar, as a former Crown prosecutor himself, with the controversy that, as one commentator put it:
...has plagued this Service on a number of fronts, including its effectiveness, organizational structure, level of resources and public confidence.
Honourable senators, I share the doubts about the wisdom of this proposal, and look forward to learning why this new position is deemed necessary. Certainly, some provisions set out in Bill C-2 regarding prosecution in the federal government accurately describe the rules now in effect to ensure that there is not even the appearance of political interference in the prosecution process.
My impression is that, indeed, those provisions are useful in that regard. The issue, however, is why we need to create a new position of director of public prosecutions. In fact, federal responsibility for criminal prosecutions is limited. The provinces and territories are responsible for the administration of justice, and the vast majority of prosecutions in our country are handled by provincial Crown prosecutors.
When representatives of the Department of Justice testified before the legislative committee in the other place, they were asked specifically what problem was trying to be fixed. Was there any recent history of challenges to the appearance of independence in the federal prosecutions? The senior official replied that no such problems had provoked this proposal. Indeed, the official went on to say that in his thirty-three year career of prosecuting criminal cases in government, both Quebec and federal, he had never been involved in a situation in which a political intervention occurred in the prosecution of a case.
I am aware of some concern among members of the government that there should have been more prosecutions in respect of the sponsorship affair. The origin of these provisions might lie in that belief. However, honourable senators, in the sponsorship affair, for which prosecutions continue, the federal prosecution service is not involved. The prosecutions were handled by the prosecution service of the Province of Quebec, and the Sûreté du Québec, not the RCMP, is doing the supporting investigations.
Creation of a new prosecutorial service, even though it is expected to use the existing prosecutors, will require significant upheaval and great expense. As the legislative committee in the other place was told, it will require the transfer of some 600 employees from the Department of Justice, where in some cases they have worked for over 30 years, to a new office of the director of public prosecutions. The committee was told that the transfer "will have a significant impact on interpersonal relations within the Department of Justice." In addition, the office will need separate office space from the Department of Justice, which will involve an expense. Finally, presumably, there will be an individual to fill the new position of director of public prosecutions. As the legislative committee was told, "the budgetary impact shouldn't be enormous but there will nevertheless be an impact." Is this an appropriate expenditure of time and resources, honourable senators, given that not one problem has been cited that would be fixed by the creation of this new office? I look forward to learning why this change is being proposed as our committee studies this bill.
The next issue that requires attention relates to the obligations that this bill imposes on the private sector and some of the broader implications this bill might have in policy development in Canada. David Stewart-Patterson, Executive Vice-President of the Canadian Council of Chief Executives, testified before the House of Commons Legislative Committee on Bill C-2. He raised concerns about the administrative burden imposed on the private sector by what he termed "the intrusive record-keeping and recording both by anyone who talks to a senior official in the government and de facto by government officials themselves in order to provide a check."
The lobbying provisions of the bill require individuals to file monthly reports setting out the names of senior public office- holders with whom they met or communicated, the date of the communication or meeting, particulars to identify the subject matter of the meeting or communication and any other information that may be prescribed in the future. A number of issues have been raised about these disclosure requirements. Several individuals worry that the provisions will impose a considerable administrative burden. I hope that the Standing Senate Committee on Legal and Constitutional Affairs will look into whether these requirements will unintentionally harm or even destroy grassroots advocacy and volunteer advocacy for not-for- profit groups.
Mr. Stewart-Patterson also expressed his organization's concerns that the level and speed of reporting required under the act might lead to the unfair release of commercially sensitive information. Again, these are important questions concerning implications that I am sure were never intended by the drafters of this proposed legislation but that could have significant impact on Canadians and Canadian business.
It is my hope that honourable senators will consider the broad impact of these provisions on policy making in the federal government. Will this put a chill on the members of the public service who seek to engage Canadians in the development of public policy? Right now, an important part of public policy development is engaging the stakeholders to learn about the problems being addressed and to consider the various alternatives to try to fix them. Each stakeholder who attends any policy development meeting would be required by law to file a report, within a month, with the commissioner of lobbying. Just think about the consultations held in respect of proposed environmental legislation or think of the pre-budget consultations of the Minister of Finance. If Health Canada held a consultation meeting on the future of the Food and Drugs Act with 30 stakeholders, each participant would be required to file a report. The failure to file that report would be a criminal offence, leading to fines of up to $50,000 and/or imprisonment for up to six months. The offence could be prosecuted as indictable, leading to a fine of up $200,000 and/or imprisonment for up to two years.
Surely these provisions are a disincentive to Canadians engaging in policy development. Is this the message we want to send to Canadians, honourable senators: avoid meeting with government officials for fear of inadvertently facing criminal prosecution? Do not engage in policy development or, unwittingly, you might fall afoul of the law. Does this enhance transparency and accountability or does it accomplish the reverse, driving Canadians away from government by constructing a wall between policy-makers and the citizens they serve?
Do we want to make the process more accessible to Canadians, not less; and engage more with the people who will be affected by the policies of our government? Surely our objective should be to make the process more transparent and open, not closed and forbidding. Is this forbidding, walled-in government the new face of our federal government? Is the treatment of witnesses in the other place on Bill C-2 the touchstone of what openness, transparency and engagement really mean to this new government?
One wonders if the same trend to close off government and the political process for Canadians underscores the provisions in electoral financing as well. Reasonable people may differ on the appropriate limits of campaign contributions. This bill proposes to reduce the maximum contribution that an individual may make from $5,400 to $1000. This seems to me to be especially low. In the United States, the maximum allowable is $27,000. The United Kingdom, Australia, Germany and Sweden have no prescribed limit. In France, the limit is $6,500; in Italy, $14,600; in Spain, $60,500; and in Ireland, $8,900. Our current limit has been in place for only two years and is already quite modest, in the amount of $5,400, when compared to other leading Western democracies.
In the context of national political parties, the sum of $1,000 is so low as to potentially interfere with the freedom of association and freedom of speech rights of the individual. It is important to get this right, honourable senators. A national policy on electoral financing should never be designed after one political party's fundraising model and must be constructed to be in the best interests of the country as a whole, taking into account its history, traditions and how best to engage Canadians in the political process. It might be commendable if a political party has a broad- based, small, individual contribution system for fundraising, but legislation should not necessarily be based on that model to the exclusion of all others.
Honourable senators, what about attendance at party conventions? Why should those costs be included as part of the annual donation limit? Is there an attempt to curtail party activity? Is this another example of this bill constructing a wall between Canadians and the political process? Instead, should we not encourage Canadians to actively engage in the political process and draft our proposed legislation and make our policies accordingly? A healthy democracy depends on more involvement by more citizens. We need higher voter turn-outs in elections, more Canadians involved in policy discussions and debates if we are to build a more inclusive, healthy future for our democratic institutions.
Right now it costs $10 to join either the Conservative Party of Canada or the Liberal Party for one year. How can a person join the Liberal Party, pay his $10 and attend a national convention at a cost of $995? The drafting of these provisions would appear to make this impossible. Why, honourable senators? What is the democratic principle that we are seeking to advance in this rule? How are we opening up the Government of Canada to Canadians if we are drafting the laws in such a way that Canadians are excluded from participation in the drafting of policies and platforms?
Honourable senators, these are important changes we are making with potentially far-reaching consequences for our country. I look forward to in-depth consideration of these issues and a discussion of the alternatives.
The Chief Electoral Officer has indicated that should this bill pass in its current form, in order to enforce it, he will have to go back and force people to get back some of the money they donated before the law changed. This is an issue the committee will want to pursue with witnesses in committee hearings.
Honourable senators, the final issue I would like to address is one that is well known to many of us in this chamber, namely, the provisions on conflict of interest and the newly proposed conflict of interest and ethics commissioner. There is a long history on this matter in this place, and most of us are very familiar with it.
In brief, in October of 2002, then-Prime Minister Chrétien tabled a draft bill in the Senate for preliminary consideration by this chamber. That draft bill would have established a single ethics commissioner, to be appointed by the Governor-in- Council, to serve each of the Senate, the House of Commons and the public office-holders, namely, the executive branch. This proposal met with significant resistance from honourable senators on both sides. In particular, as Senator Joyal stated:
The structure of government provides for a clear separation of rights and privileges or prerogatives between the executive, the legislative and the judicial branches of government. These are the vital checks and balances of our system of government. In other words, each branch of government — the executive, the legislative and the judicial — is autonomous in its responsibility and master of its privileges and rights.
The Senate rejected the suggestion of one commissioner responsible for senators and also members of the other place and the executive. That rejection was accepted by the government at that time, which returned in October of 2003 with a bill to establish a Senate Ethics Officer for this chamber and a separate Ethics Commissioner for the other place and public office- holders.
Honourable senators, to our surprise, the present government has chosen to reopen this debate. I am not aware of any problems or concerns with the current system. It is particularly surprising that a government, under the guise of a bill that purports to make the executive more accountable to Parliament and creates so many new parliamentary officers specifically, we are told, to help Parliament do its work, wants to reduce the number of ethics officers who assist parliamentarians to do their work. We look forward to learning the rationale for this decision.
Senator Cools asked Senator Oliver specifically about this issue last Thursday in this place when Senator Oliver, the sponsor of the bill, spoke about its provisions. Senator Cools asked for information about the problems in the current regime that caused the government to want to replace it. Senator Oliver replied by noting that it was a decision of cabinet, and the honourable senator does not sit in cabinet. Senator Oliver went on to say, "As I understand it, the Prime Minister wanted to have someone involved with judicial and legal training."
According to press releases, the Prime Minister, when he first decided to proceed in this manner, offered the position of Ethics Commissioner to Ed Broadbent. Mr. Broadbent, to my knowledge, is neither a lawyer nor a former judge.
Honourable senators, this underscores the question we have debated at length in this chamber. Who should properly be responsible for deciding who will oversee the conduct of the senators of this chamber? In this case, it would seem that the long arm of the Prime Minister's office is reaching into the Senate and overruling our clear decision and consensus about the independence of this chamber.
I join with Senator Cools and look forward to learning, during our committee hearings, the precise problems with the current regime that we in this chamber chose to adopt. I also look forward to learning how the proposed regime purports to be an improvement.
Another issue which was a point of particular concern to many honourable senators was the fact that the officer was to be appointed by the Governor-in-Council. The provision of the former Bills C-34 and C-4 that caused significant concern read as follows, in clause 20.1:
The Governor-in-Council shall, by commission under the Great Seal, appoint a Senate Ethics Officer after consultation with the leader of every recognized party in the Senate and after approval of the appointment by resolution of the Senate.
The relevant provision of the current bill is similarly worded, other than that the commissioner is called a Conflict of Interest and Ethics Commissioner and he is for the Senate and the House of Commons.
I am sure we will have a lively discussion on this clause. In particular, I look forward to hearing the views of senators opposite. At the time, in 2004, many were adamantly opposed to a statutory provision that would give the Governor-in-Council — in effect, the Prime Minister — the power to appoint the Ethics Commissioner for members of this chamber.
As an example, permit me to quote Senator Oliver. The following words were spoken in this chamber with regard to the previous bill:
Honourable senators, even though it has been quoted to you on several occasions by several speakers, one cannot help but go back to the main language in Bill C-4, proposed section 20.1. The language is clear and unmistakable: "The Governor-in-Council shall..." Nothing could be clearer. In other words, not the Senate; this is not a Senate initiative. It does not become a Senate initiative until we read the amendment of Senator Bryden...
Honourable senators will recall that Senator Bryden's amendment was not passed, but there was an undertaking given by the government, through the then-Leader of the Government in the Senate, on how that process would take place.
Senator Oliver continued:
As Bill C-4 stands now, it not only continues to provide the Prime Minister with this control and influence, but it suggests that he would also have similar control over the ethics officer appointed to the Senate. I suggest to honourable senators that if the Senate blindly accepts Bill C-4 as it now stands, then we, too, would be seen as lapdogs, not watchdogs. We, too, would comprise our independence. That independence is crucial to preserving our integrity. The Senate, and not the Governor-in-Council, must appoint the Senate ethics officer, and we should do it by resolution of this chamber.
I thank the Honourable Senator Oliver.
Senator Andreychuk spoke in a similar vein, but she concentrated on the Prime Minister and the consolidation of power in the Prime Minister's office:
We will be creating a further democratic deficit in Parliament at a time when the public wants a real return to parliamentary process.
Senator Andreychuk goes on to say:
Honourable senators, Bill C-4 represents the first time in over 100 years that our independence from the government will be tested by law. This comes at the very time when the public is questioning our legitimacy due to the fact that we are appointed. Surely, our critics will be right if we do not at least pass Senator Bryden's amendment.
Senator Di Nino was equally clear in his view of the proposed provision:
This debate is about the even further erosion of our independence.
Those are beautiful words.
Senator Di Nino continues:
The ethics officer will be appointed by Governor in Council, which office will also set his or her compensation. The officer will be removable by the Governor in Council. The Governor in Council will appoint an interim ethics officer. In short, the ethics officer will owe his or her allegiance primarily to the Governor in Council and not the Senate.
By all means, let us establish an ethics officer....Let us do it ourselves.
An Hon. Senator: Hear, hear!
The Hon. the Speaker: Honourable senators, Senator Day had 45 minutes to speak and has a few more pages to read.
Senator Day: Could I request a short extension?
Hon. Gerald J. Comeau (Deputy Leader of the Government): We will give him five minutes.
Senator Day: Thank you.
Honourable senators, I have so many quotations that I would like to give to you.
Let me read one quotation from Senator Comeau. He is talking about the Prime Minister at the time and says the following:
In addition to his own members of Parliament, which he now controls quite well, he will now extend that control over opposition members. The executive, in effect, will control Parliament...
An Hon. Senator: Good comment.
Senator Day: I note that the Law Clerk and Parliamentary Counsel for the House of Commons took the unusual step of presenting the legislative committee on this bill with an unsolicited report, raising questions about a number of provisions in the bill he felt impacted "the constitutional position of the House of Commons and its Members or that otherwise violate provisions of the Constitution Act, 1867 pertaining to the House of Commons." I look forward to hearing the views of the Law Clerk and Parliamentary Counsel of our own chamber to learn whether he also has constitutional or other concerns with respect to this bill.
While I have spoken at length, I have only touched on some of the issues that I believe deserve our consideration in reviewing Bill C-2. Let me summarize some of those issues, and I will try to do it in five priorities.
Senator Comeau: In five minutes.
Senator Day: There are many officers of Parliament. Are they all needed? Will they help parliamentarians do their job to oversee the executive and bring accountability to the system?
Political financing reduction from $5,400 to $1,000: Why? What problem is being addressed? Is there an ulterior motive for this proposal?
The creation of a director of public prosecutions: Is this an overreaction to a misunderstanding as to who is responsible for the federal prosecutions?
New lobbying filing requirements: Will these new reporting rules stifle private/public sector exchanges? Why the last-minute change in the rules relating to the transition team exemption from the five-year rule on government lobbying?
Finally, there is the question of the abolition of the Senate Ethics Officer and the constitutional challenge this brings to the fundamental requirement of an independent Senate.
I appreciate that this bill is a priority for the government. I understand that it was an important plank of its election platform. No one on this side, at least, has any plan to derail this bill or delay its passage unnecessarily. However, it is a major and lengthy bill that would amend many statutes and make significant changes. It deserves careful study. There are witnesses whose views deserve to be heard.
We have seen this before, honourable senators. A government, with the best of intentions and purposes, rushes an important bill through the other place without allowing appropriate time for parliamentary scrutiny or the hearing of witnesses.
If we have a role to play in legislative review, this is it. As Senator Austin described the other day, our constitutional role is "democracy slow," to provide the opportunity for careful scrutiny and full airing of the views by interested Canadians.
Happily, there is no crisis afoot. We have the time to do the job right. Bill C-2 is too important to treat quickly or lightly.
I will end by quoting the words of Senator Nolin spoken also with respect to Bill C-4, the proposal to establish the Senate Ethics Officer:
I have been here for 10 years. Do you think I am preoccupied by perception? Every day, when I look at my e- mails, if I were driven by perception, I would probably change jobs....
Let us do our job properly. Our burden is not only to vote for a law that will give a shot to someone else. No. We must do it ourselves. We must be in charge, but we must be in charge of a process that will be efficient, transparent and credible.
I could not have said it better, honourable senators. We have work to do. This may be our finest hour.
World Intellectual Property Day 2006
Hon. Joseph A. Day: Honourable senators, I would like to begin my statement today with a question: What do Yousuf Karsh, Bill Gates, Walt Disney and Oscar Peterson have in common? The answer is: an appreciation for the value of intellectual property.
Today, honourable senators, is World Intellectual Property Day. Intellectual property is that nonphysical, intangible right that one has for his or her creativity, for inventions. We often take for granted the value of new ideas and life-saving technologies, the pleasure that we derive from music and designs, and the labour-saving inventions that flow from the ideas of others.
Honourable senators, the importance of intellectual property was displayed in the World Trade Organization Uruguay Round of discussions with respect to trade-related intellectual property matters called TRIPS. In Canada, we have the Canadian Intellectual Property Office, where inventors or creators go to obtain and perfect their rights. In addition, there is a professional organization known as the Intellectual Property Institute of Canada, which, this year, is celebrating its eightieth anniversary. Honourable senators are invited to a reception this afternoon from 5 p.m. to 7 p.m. in room 256-S to help celebrate this anniversary, to learn more about intellectual property and to meet with some of the senior officials from the Canadian Intellectual Property Office, as well as professionals who work in the field.