Speech on Bill C-2, Federal Accountability Act
(Committee Report)
The speech below, given December 7, 2006 is extracted directly from the
Hansard.
Hon. Daniel Hays (Leader of the Opposition): Honourable senators, speaking
to the motion, let me begin by thanking and congratulating Senator Oliver,
Chairman of our Standing Senate Committee on Legal and Constitutional Affairs,
for his good work as Chair and also for his speech and his comments, in
particular those that related to the government's position on the Senate Ethics
Officer.
I also congratulate the Deputy Chair, Senator Milne, and our critic, Senator
Day, and all senators who served on the committee. Senator Oliver described the
enormous amount of work that has been put into Bill C-2. Of course, the bill is
still on the minds of honourable senators.
We have reached a crossroads today in the long process of our examination of
Bill C-2, the so-called "new government's" so-called "accountability act." This
process has been both a satisfying one and a disappointing one for me,
particularly as a long-serving member of the Senate who strongly believes in the
role of a second chamber in a federal system of democratic government.
I say "satisfying" because we have faithfully performed our role as a chamber of
sober second thought in correcting obvious errors in the proposed legislation.
In that role, we have also brought to the attention of the other place, and
Canadians, the glaring deficiencies in this bill that prevent it from fully
living up to its name. Some 50 of our amendments have been accepted by the
government and members of the other place. Unfortunately, these amendments have
been primarily to correct drafting errors and hence my disappointment that our
more substantive amendments were, by and large, not given serious consideration.
However, it would be difficult not to agree that what we have achieved so far
has certainly improved Bill C-2.
As we prepare to send our message to the other place, I believe it would be
useful to highlight some of the serious flaws that still remain. Though the
government has finally shown its willingness to accept some of our amendments
dealing with the constitutional realities of a bicameral system of government, I
am nevertheless disappointed that on some major accountability issues, the
government failed to respond in a reasonable way.
When I last spoke to Bill C-2, I spent time on the gift provisions contained in
the bill. I want to re-emphasize my arguments so that there can be no
misunderstanding in the public about what the government demands as we approach
the third anniversary of the Right Honourable Paul Martin's cancellation of the
sponsorship program.
On December 12, 2003, Paul Martin's first official act as the new Prime Minister
of Canada was the cancellation of the sponsorship program. Through the Gomery
Commission, which he established, we learned much about the myriad relationships
that existed between the private and public sectors and what their results could
be. In a chapter entitled "Politics and Friendship," Justice Gomery wrote about
the relationship between Mr. Chuck Guité, a senior official in the Department of
Public Works and Government Services Canada, and Mr. André Gosselin, of Gosselin
Communications. Mr. Gomery said:
It is safe to conclude that their friendship was at least one of the reasons for
the sudden prosperity of Gosselin Communications and the Gosselin family.
Given this finding, it is incomprehensible to me why the self-styled new
Government of Canada continues to insist that senior government officials be
allowed to accept gifts from friends. Bill C-2 would allow ministers and other
public office-holders to accept expensive gifts, including gifts that appear to
have been to influence their behaviour. As drafted, no one need be told anything
— not the new Conflict of Interest and Ethics Commissioner and not the public.
[Translation]
In the current version of the conflict of interest bill, clause 11 provides that
no public office holder shall accept any gift that might reasonably be seen to
have been given to influence the public office holder in the exercise of an
official power, duty or function unless the gift is given by a relative or
friend.
[English]
In other words, even if a gift might reasonably be seen to have been given to
influence an office-holder, it can be accepted so long as it is from a so-called
"friend."
Sections 23 and 25 of the proposed accountability act provide the general rule
that gifts worth $200 or more must be disclosed to the commissioner and entered
in the public register so that everyone can see who is giving expensive gifts to
public office-holders. However, gifts from friends are specifically exempted
from any disclosure.
[Translation]
The Senate's amendments attempted to change that situation. First, we amended
subclause 11(2) to limit acceptable gifts to those from close personal friends.
Most importantly, we amended clause 23 and subclause 25(5) to require that any
gift exceeding $200 from someone other than a family member be declared to both
the commissioner and the public.
(1450)
[English]
The government rejected these amendments, saying they were "an inappropriate
intrusion into the private lives of public office-holders and their families."
We do not believe that the transparency we were proposing for the dealings of
senior government officials was an inappropriate intrusion into their lives. In
fact, we believe that it would be manifestly inappropriate for senior officials
to be able to accept expensive gifts from their so-called "friends" without
needing to disclose anything, even when such gifts could be seen as being made
in order to influence the performance of their official duties.
Bill C-2 was presented to us and to the Canadian people as necessary to prevent
another sponsorship affair. However, in the sponsorship affair, as Mr. Gomery
pointed out, there were many "friends." Under the provisions the government
insists on keeping in the bill, a minister or senior public servant will
lawfully be able to accept gifts worth thousands of dollars, even ones that most
Canadians would consider as having been made in order to buy influence.
The government needs to provide a better explanation to Canadians how this
loophole they have created for their most senior members strengthens
transparency and accountability and why they are so determined to protect it
from any amendment. That this glaring loophole is intentional, and not merely
inadvertent, is reinforced by how the government is limiting the definition of
"conflict of interest."
For more than 20 years, Canadian prime ministers have required their ministers
and other public office-holders to avoid not only so-called real conflicts of
interest but also potential and apparent conflicts of interest. Bill C-2 would
change this. For the first time in decades, ministers and other public
office-holders will be permitted to make decisions and participate in
decision-making, for example, around the cabinet table, even where they are in a
potential or apparent conflict of interest.
Furthermore, by virtue of section 16 of the proposed conflict of interest act,
ministers and other senior officials will be able to personally solicit funds
from individuals or organizations, even if it will place the official in a
potential or apparent conflict of interest. For the first time in over 20 years,
the only issue of concern will be whether the public office-holder is in a
so-called "real" conflict of interest; potential and apparent conflicts are
henceforth to be ignored.
As I have already described, it will be perfectly acceptable for a minister or
senior official in Prime Minister Harper's government, or any Prime Minister's
government — this stays as it is — to accept secret gifts from so-called
"friends," be they new-found friends or even lobbyist friends; there is no
limitation. Had apparent and potential conflicts of interest remained in the
definition, the ability for a senior official to accept such gifts would have
been circumscribed, because a gift from a lobbyist would certainly put a public
office-holder in a potential conflict of interest in the eyes of most Canadians.
However, as I have already described, Canadians will never know about such
gifts.
Bill C-2 was presented by Minister Baird as going "farther than any government
has ever proposed." Canadians, therefore, had a right to expect that ministers
and other senior officials serving the Prime Minister would be held to at least
as high a standard as that applied by previous governments. The reality is, by
eliminating all references to potential and apparent conflicts, the standard has
been seriously eroded.
We amended the bill to return potential and apparent conflicts of interest to
the rules governing the behaviour of senior government officials. The government
rejected our amendments. It said the amendments "would undermine the ability of
public office-holders to discharge their duties."
We do not believe Canadians want their ministers and other senior officials to
"discharge their duties" when they are in a potential or apparent conflict of
interest. For this government, however, apparent or potential conflicts of
interest are totally irrelevant to how government should operate. Again,
Canadians will never know, because everything will be done in secret.
This obsession with secrecy is displayed not only in how the government treats
gifts to senior public officials, and their day-to-day dealings with the media,
but also in its determination to limit the freedom speech of parliamentarians
themselves.
Section 44(5) and (6) of the proposed conflict of interest act are designed to
muzzle parliamentarians if a member of the public tells them about possible
unethical behaviour committed by a cabinet minister or other senior government
official.
Although Bill C-2 does not expressly allow members of the public to lodge
complaints with the Conflict of Interest and Ethics Commissioner, it does
provide that they may bring such complaints to members of the Senate and House
of Commons. However, if a parliamentarian receives such information from the
public, "the member, while considering whether to bring that information to the
attention of the Commissioner, shall not disclose that information to anyone."
Furthermore, if the parliamentarian does not bring that information to the
commissioner's attention, subsection 44(5) goes on to provide that "the member
shall not disclose that information to anyone until the Commissioner has issued
a report."
There is no requirement that the commissioner issue a report within a certain
period of time. The prohibition would apply only to parliamentarians and not to
anyone in the general public or media.
Amendment 19 made by the Senate removed this gag order. Senators, on the advice
of our law clerk, concluded that the provision infringed on the fundamental
parliamentary right of freedom of speech and was the antithesis of transparency
and accountability.
The government rejected this amendment, claiming that it would "deter the public
from bringing matters to the attention of...a member of either House, create
unfairness to individuals who are subject to complaints whose merits have not
been substantiated..."
What this provision actually undermines is the freedom of speech of all
parliamentarians and the ability of parliamentarians to discuss with anyone,
including their parliamentary colleagues privately or the general public openly,
information they receive about alleged wrongdoing committed by the most senior
of government officials. It is still not clear to us how this gag order would
promote transparency and openness in government.
[Translation]
From a practical point of view, this measure could in fact discourage members
from contacting the ethics commissioner to pass on information about an alleged
wrongdoing because, in doing so, they would immediately lose their freedom of
expression. Members would maintain that freedom of expression if they raise the
same allegation on the floor of the House or with the media instead of
contacting the commissioner.
[English]
This gag order is but another unfortunate example of provisions that would deter
openness and accountability instead of enhancing it. As in so many other
instances, when it comes to this legislation, the government's refusal to give
serious consideration to our amendments makes me question whether Bill C-2 is
about accountability or whether it is primarily a public relations exercise.
However, this is something Canadians will have an opportunity to judge in the
not-too-distant future.
Honourable senators, the members of the other place are directly accountable to
Canadians in a way that we are not, and we are mindful of that reality. We are
also mindful that the current government did receive a mandate from the
electorate, albeit a very tenuous minority mandate. It is for those reasons that
we believe we have gone as far as we can in bringing much-needed improvements to
this legislation.
Unfortunately, notwithstanding the improvements we have successfully made to
Bill C-2, it remains a badly flawed piece of legislation that will undoubtedly
need to be revised by future governments. This is regrettable for Canadians, who
were promised more.