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Federal Accountability Bill, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability

Hon. Serge Joyal: Honourable senators, I am tempted to follow up on the conclusion of the Honourable Senator Segal and accept the invitation that the Honourable Leader of the Government made during Question Period, informing us that the Prime Minister reads the Debates of the Senate and pays attention to it.

Bill C-2 is mammoth legislation. It is a bill that is approximately a centimetre and a half thick. It amends 70 different statutes and if we were to put all those statutes on our desk, each of us would need an extension to try to understand the interplay of all the clauses this bill contains.

When this bill came out from the other place, the President of the Treasury Board was quoted in an article in the Ottawa Citizen on June 20 as saying:

It would be something remarkable with all parties supporting the bill in the House of Commons for a few rogue senators to delay or postpone it. I am going to be optimistic and hope we will be able to pass it expeditiously.

The Prime Minister, gave an interview to CTV, and made the following statement:

I do not think the... Liberal majority has any business trying to change the fundamental principles of this legislation.... I think it should go through. I think it should go through promptly.

Then the Leader of the Government in the Senate also made a statement:


I trust that the senators will understand the importance of this bill for Canadians and that they will not delay its adoption because of the leadership convention to be held in December.


Honourable senators, we have a constitutional duty. Our constitutional duty is to review a bill that was drafted in the six-week period following the election and that amends 70 statutes and that was pushed through the House of Commons. We have heard how reluctant the witnesses were to be part of a process that was contrary to the reflection that should be brought to such an important exercise.

Bill C-2 is very important and would create a fundamental change in Canadian institutions, and that is what I want to outline this afternoon. When there is such an important bill, what are our constitutional duties? Honourable senators, I will quote Sir John A. Macdonald. Sir John A. Macdonald tells us:

There would be no use of an upper House if it did not exercise when it thought proper the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatever, were it a mere chamber for registering the decrees of the Lower House. It must be an independent House, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people.

Honourable senators, this is the context in which I prefer to set my mind when I approach such an important bill.

There are three points I wish to share with you this afternoon. The foundational principle of our system of democratic government is responsible government. That is what distinguishes us from our friends south of the border. What does responsible government mean? Responsible government means, as Senator Cools has stated, that the government is accountable in the chamber. Anything that improves the process of accountability of the government in the chamber is an initiative that we have to look into carefully and support.

Honourable senators, I humbly submit that Bill C-2 does not essentially look into the priority of the principle of enhancing responsible government. I look to Senator Murray, because this bill does not address the fundamental issues of the study of the estimates.

We have a parliamentary budget officer, as the Honourable Senator Segal has mentioned, but let me remind honourable senators of — former Senator Bolduc, who was a public officer and former Senator Stewart, who was a professor of administrative law. In their wisdom, those two former senators from both sides of this chamber made proposals when we had to strengthen the control of Parliament over the government of the day. Senator Stewart said:

Although the decreasing independence of the House of Commons is visible in other aspects of its operations, nowhere are the consequences more grave than in the study of government estimates. The study of estimates is by far the most important way in which members of the House of Commons can review the success of government policy and the performance of its ministers and public servants.

While ominous in itself, the declining role of the House of Commons and the scrutiny of government estimates is but a symptom of the lower chamber's loss of independence vis-à-vis the government.


Let me read from one of the essential authorities of constitutional reference in this chamber, former Senator Eugene Forsey. Senator Forsey offered a diagnosis that I think will help us in studying Bill C-2 when he stated:

Party governments tend to spurn constitutional limitations and to seek to overcome them. Parties seek to capture all the organs of the state and to make them work to the party purpose or for the benefit of the party leader, their principal supporters and their friends. An independently minded House of Commons is an obstacle to this outcome; a strong upper house, an even greater one.

Honourable senators, the first scrutiny that we should bring to this bill is how the capacity of Parliament to scrutinize estimates should be enhanced to ensure that the government remains accountable.

The problem with this bill is that, as Senator Day and other senators have mentioned, it creates five new parliamentary officers — a new group of people whose responsibility would be to act with very specific terms of reference. In fact, being called officers of Parliament, for whom will they stand? Will they stand for the members on the other side or the members on this side? They are not honourable senators.

Those five new officers that come on top of all the layers of administration we already have, even though they are officers of Parliament, and here I quote the law clerk's testimony in the other place:

It should be noted that for present purposes, those "officers of parliament" carry out an executive function — that is, they do not act in accordance with house rules and under the direction of the house. They act in accordance with statutory requirements. More, they are not appointed by either house but by the Governor in Council. And finally, though described as officers of Parliament because they report directly to one or both houses of Parliament, as a matter of public law, these are positions of executive function and, as such, are part of the executive branch.

What are we doing here, honourable senators? We are strengthening the executive branch. We are taking some of our responsibilities and giving them to another group or set of people, deemed officers of Parliament, who will be outside our control.

Honourable senators, this issue is fundamental, because we have so-called officers of Parliament. We have the Auditor General. We have the Chief Electoral Officer. We have the Privacy Commissioner. We have the Information Commissioner. We have the Commissioner of Official Languages. We have a Senate Ethics Officer and an Ethics Commissioner in the other place. Ask yourselves, when all those officers of Parliament report to this place or the other place, what do we do with their report? What are our resources when we receive those reports? Honourable senators, to ask the question is to receive the answer.

My first point is this: If we are to give additional strength to the Canadian democratic principle, we should concern ourselves with wherein lies the fundamental problems of responsible government, and how we want to maintain responsible government and better improve our control over the administration. The honourable Senator Segal has a suggestion for the budgetary reports of Crown agencies and departments. This suggestion is one way for us to try to understand it, but once we have an officer that exercises responsibilities outside our day-to-day control, we include in the system another layer whereby our own responsibility will be diminished. This point is very important.

My second point this afternoon, honourable senators, is about the proposal in this bill that the Senate Ethics Officer merge with the Ethics Commissioner of the other place. I was tempted, the first time I read that, to do what Senator Day did this afternoon and go through all the statements made by all the senators in this place when we discussed this previously. I have them here. Honourable senators who want to consult what they said at that time can come and look at them.



Senator Joyal: This is not the most important thing. The most important thing is that three constitutional principles are at stake.

The first is that the Parliament of Canada consist of three elements, according to section 17: the Crown, an upper house styled the Senate and the other place. Those three elements of the Constitution have to maintain their independence if they are to work properly. This is a fundamental principle, honourable senators.

The second is that each house, this one and the other one, has sole jurisdiction over its internal affairs and the discipline of its members.

The third is that the court system, or the justice system, should remain out of our daily business if we are to conduct our operation with the objective of maintaining the democratic principle in our institution. In other words, the court should not meddle in our internal affairs.

Those principles are simple to understand. Many of us, if not the majority of us, repeated those fundamental principles when we discussed the draft bill introduced at that time by Senator Carstairs, and then Bill C-34 and I am looking at the honourable speakers who studied that bill very specifically at that time, and then Bill C-4. We came forward with a system that, honourable senators, I think operates satisfactorily.



Senator Joyal: In fact, you received this report —




Senator Joyal: Thank you, honourable senators. I appreciate your leniency.




Senator Joyal: Do you think we could ensure that, when there is an investigation, that investigation is not over-politicized? We know that ethics is a difficult area. If we want to maintain trust in the system, we have to maintain the kind of independence that is essential for the Senate to function.

Honourable senators, if you read section 6 and section 44 of this bill, you will realize that we will be dragged into that situation. If the system we have put into place in the last year had not given results, I would be the first one, as Sir John A. Macdonald said, to exercise sober second thought about it. However, the system functions presently. Before we throw it aside, we should think twice.


Finally, honourable senators, I have listened carefully and read most of the comments of honourable senators, as well as the testimony that many of the witnesses gave in the other place. When something is done that affects the functioning of the institutions — and I call upon those senators involved in public administration, or who have studied public administration before — there is a law called the Law of Unintended Consequences. The objective of the law is good. We want transparency, accountability, equity and justice for all. We want the justice system to go after rogue people. That is something we spontaneously support. When the government introduces proposed legislation and amend 70 statutes in one bill, something is put in motion. We trigger something.

When I read this bill, there is a pervasive element of distrust. It seems we cannot trust anyone anymore. If one joins the public service now, one will be submitted to layers and layers of over-the-shoulder control. There are commissions, officers and tribunals. Employees must deal with investigations, surveys and reports.

This morning the National Post outlined in an editorial that the major challenge now is to invite younger recruits into the public service.

If the culture is distrust and not the benefit of the doubt, not the quality of someone with education to serve the public, people who join the service or who are in the service will have to be well aware that the first foot that they put ahead, something very heavy will be on them. A different kind of culture of public service will be created or triggered.

This is an important point. This is the dynamic that the bill will trigger.

Honourable senators, we are the ones to try to bring that reflection in this chamber. We are well-positioned to try to evaluate the impact of this bill and to ensure that the objective of accountability and transparency are served in the best interests of all Canadians.